People v. Harris, E060962

CourtCalifornia Court of Appeals
Writing for the CourtMcKINSTER, Acting P.J.
Citation184 Cal.Rptr.3d 198,234 Cal.App.4th 671
PartiesThe PEOPLE, Plaintiff and Respondent, v. Anthony A. HARRIS, Defendant and Appellant.
Docket NumberE060962
Decision Date19 February 2015

234 Cal.App.4th 671
184 Cal.Rptr.3d 198

The PEOPLE, Plaintiff and Respondent
Anthony A. HARRIS, Defendant and Appellant.


Court of Appeal, Fourth District, Division 2, California.

Filed February 19, 2015

Michael J. Kennedy for Defendant and Appellant.

Steven L. Harmon, Public Defender, Joseph J. Martinez, Deputy Public Defender, for the Riverside County Office of the Public Defender, and Bartell & Hensel, Oakland, Donald J. Bartell, Riverside, Lara J. Gressley and Jared D. Bartell for the California DUI Lawyers Association as Amici Curiae on behalf of Defendant and Appellant.

Paul E. Zellerbach and Michael Hestrin, District Attorneys, and Matt Reilly, Deputy District Attorney, for Plaintiff and Respondent.


McKINSTER, Acting P.J.

234 Cal.App.4th 675



In Missouri v. McNeely (2013) 569 U.S. ––––, [133 S.Ct. 1552, 185 L.Ed.2d 696]

184 Cal.Rptr.3d 202

(McNeely ), the United States Supreme Court held that, before the police may conduct a nonconsensual blood test of a motorist who is arrested on suspicion of driving under the influence (DUI) of alcohol, the police must either obtain a warrant from a detached magistrate or later show that exigent circumstances prevented them from timely obtaining a warrant. (569 U.S. at p. –––– [133 S.Ct. at p. 1563].) The high court also held that the natural dissipation of alcohol in a driver's bloodstream does not create exigent circumstances in every case, and that the government must show on a case-by-case basis that a warrantless blood draw was reasonable under the Fourth Amendment to the United States Constitution. (569 U.S. at pp. ––––, –––– [133 S.Ct. at pp. 1563, 1568].)

In this case, defendant and appellant Anthony A. Harris appealed from the denial of his motion to suppress evidence obtained during a blood test taken after he was arrested on suspicion of DUI. The superior court appellate division affirmed the order denying defendant's motion to suppress. The appellate division did not address whether exigent circumstances supported the warrantless blood test because the People did not argue that exigent

234 Cal.App.4th 676

circumstances existed, and because the court concluded defendant consented to the test after the arresting officer advised defendant of the consequences of refusing to submit. The appellate division held that McNeely did not foreclose consensual blood tests conducted under the implied consent law, and that defendant's voluntarily and freely given consent satisfied the Fourth Amendment.

We transferred the appeal from the superior court appellate division to decide an important issue of statewide importance and to secure uniformity of decision and, thereafter, we directed the parties to submit supplemental briefs addressing, inter alia, the impact of McNeely on this case. (Cal. Rules of Court, rules 8.1002, 8.1012(a)(1).) We conclude that McNeely does not govern defendant's case; that actual consent to a blood test satisfies the Fourth Amendment; that defendant's submission to the blood test in this case was freely and voluntarily given and did not violate the Fourth Amendment; and that the record contains substantial evidence that defendant's blood draw was conducted in a reasonable manner.

Even assuming that McNeely is applicable and that defendant's warrantless blood test may only be supported by exigent circumstances, which the People did not argue and the facts do not demonstrate, we conclude that the evidence in this case may not be suppressed because the good faith exception to the exclusionary rule applies here. Defendant's blood test was taken before the United States Supreme Court decided McNeely, and at a time when the California courts uniformly held that probable cause of DUI and the natural dissipation of alcohol or drugs in the bloodstream was sufficient to justify a warrantless blood test. Because the police obtained defendant's blood sample without a warrant in reliance on binding precedent, excluding the evidence in this case would not achieve the exclusionary rule's purpose of deterring future Fourth Amendment violations.

Therefore, we affirm the order denying defendant's motion to suppress.



On December 13, 2012, the People charged defendant by misdemeanor complaint with one count of driving a motor vehicle under the influence of a drug or alcohol (Veh.Code, § 23152, subd. (a) ), and with one count of being under the influence of a controlled substance (

184 Cal.Rptr.3d 203

Health & Saf.Code, § 11550, subd. (a) ). Defendant pleaded not guilty to both charges at his January 14,

234 Cal.App.4th 677

2013 arraignment, and on March 22, 2013, he filed a motion to suppress evidence.1 (Pen.Code, § 1538.5.)

A. Motion to Suppress

In his written motion, defendant asserted that, incident to his arrest on suspicion of DUI, “he was forced to submit to a blood test.” Defendant argued that the People bore the burden of establishing that the warrantless search was reasonable under the Fourth Amendment, and that the blood test was conducted in a reasonable manner.

In its opposition, the People argued the warrantless search in this case was reasonable under the Fourth Amendment because, contrary to the suggestion in the motion to suppress, defendant was not forced to submit to the blood test but consented to it. The People also argued the blood test was performed in a reasonable manner because it was conducted by a trained professional and was observed by an experienced drug recognition expert. Finally, anticipating that defendant would rely on the recently decided decision in McNeely, the People argued that, even if the search was invalid under McNeely, the trial court should apply the good faith exception to the exclusionary rule because the search was conducted under then-existing law that a blood draw based on probable cause of DUI did not require a warrant or a separate showing of exigent circumstances.

At the hearing on defendant's motion, Deputy Robinson of the Riverside County Sheriff's Department testified that at approximately 5:00 p.m. on October 16, 2012, he was on motorcycle patrol near the transition of State Route 60 and Interstate 215. Deputy Robinson paced defendant's silver Honda driving approximately 90 miles per hour, and witnessed the vehicle crossing all four lanes of traffic without using a turn signal. He testified the vehicle was traveling well over the 65 mile-per-hour speed limit, and that crossing all four lanes without using a turn signal was an unsafe maneuver. Deputy Robinson initiated a traffic stop.

Using the loudspeaker on his motorcycle, Deputy Robinson directed defendant to pull over to the right shoulder. Defendant did not follow Deputy

234 Cal.App.4th 678

Robinson's direction, and instead came to a stop in the center median of the freeway. Deputy Robinson dismounted from his motorcycle, approached defendant, and asked for defendant's driver's license and vehicle registration. While speaking to defendant, Deputy Robinson observed objective symptoms of impairment with a stimulant. Defendant had a flushed, rigid face, his pupils were dilated, his eyes were bloodshot and watery, and he made “jerky movements.” Therefore, Deputy Robinson asked defendant to get out of his vehicle so Deputy Robinson could perform field sobriety tests.

184 Cal.Rptr.3d 204

Deputy Robinson testified that he was an expert in drug recognition, that he was trained in administering and interpreting the results of field sobriety examinations, and that he had advanced training in DUI investigations. Deputy Robinson conducted the horizontal gaze nystagmus examination, the Romberg examination, and other traditional field sobriety tests on defendant. Based on defendant's performance on those examinations, Deputy Robinson concluded that defendant was under the influence of a controlled substance, and he placed defendant under arrest.

Deputy Robinson told defendant that, based on his belief that defendant was under the influence of a drug, defendant was required to submit to a chemical blood test. Deputy Robinson advised defendant that he did not have the right to talk to a lawyer when deciding whether to submit to the chemical test, that refusal to submit to the test would result in the suspension of his driver's license, and that refusal could be used against him in court. Defendant responded, “okay,” and Deputy Robinson testified that at no time did defendant appear unwilling to provide a blood sample. Defendant was transported by another deputy to the Moreno Valley sheriff's station.

At the sheriff's station, a phlebotomist with whom Deputy Robinson had previously worked drew defendant's blood. Deputy Robinson observed the phlebotomist swab the inside of defendant's right elbow with what appeared to be a disinfectant. The phlebotomist then obtained a blood sample from defendant using a hypodermic syringe. Deputy Robinson testified that defendant did not...

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