People v. Harris

• Decision Date: 11 April 2014
• Docket Number: No. APP1300100.,APP1300100.
• Citation: 225 Cal.App.4th Supp. 1,170 Cal.Rptr.3d 729
• Court: California Superior Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony A. HARRIS, Defendant and Appellant.

225 Cal.App.4th Supp. 1

170 Cal.Rptr.3d 729

The PEOPLE, Plaintiff and Respondent,

v.Anthony A. HARRIS, Defendant and Appellant.

No. APP1300100.

Appellate Division, Superior Court, Riverside County.

April 11, 2014.

Certified For Partial Publication.^*

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 293 et seq.

Michael J. Kennedy for Defendant and Appellant.

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

THE COURT.^**

Defendant appeals from the denial of his motion to suppress, contending that the blood draw with which he cooperated after being arrested for driving under the influence (DUI) of drugs was nevertheless constitutionally invalid because police failed to obtain a warrant and because there was no applicable exception to the warrant requirement. He also argues that there was insufficient evidence that the blood draw was performed in a constitutionally reasonable manner. In the published portion of this opinion, we find that the blood draw was justified under the Fourth Amendment by defendant's consent pursuant to California's implied consent law consent he never purported to withdraw by refusing to comply with the blood draw. In the unpublished portion of this opinion, we find that there was sufficient evidence to establish that the blood draw was performed in a reasonable manner. Accordingly, we affirm the trial court's denial of defendant's motion to suppress.

FACTS

On the afternoon of October 16, 2012, motorcycle officer Eric Robinson of the Riverside County Sheriff's Department was on duty traveling on I–215 near the 60 freeway interchange, when he saw a car unsafely cut across four lanes through traffic without signaling and accelerate up to about 90 miles per hour. Officer Robinson followed the car at that speed for a half mile or so, and saw it drift to the left over a double yellow line into the center median strip and back, and then drift to the right onto the division line with the adjoining lane and back. Officer Robinson made several attempts over his loudspeaker to pull the vehicle over, and the driver eventually complied. He noticed that the driver, defendant, was sweating and had a rigid, flushed face, bloodshot eyes, dilated pupils, and fast, jerky movements. The officer testified that he is a drug recognition expert, and that these symptoms are typical of being under the influence of a stimulant. Defendant performed five field sobriety tests, after which Officer Robinson concluded that defendant was “under the influence of a substance,” arrested him, and advised him pursuant to the implied consent law that he was required to take a blood test. After the advisement defendant responded, “okay.”

Defendant was transported to the Moreno Valley station where Officer Robinson, who had received some training regarding the proper procedures for DUI blood draws, saw blood nurse Coughlin, a phlebotomist, draw a sample of defendant's blood. She swabbed the inside of defendant's right elbow with an apparent disinfectant, and used a dry, normal hypodermic syringe to take a sample of defendant's blood. Defendant never resisted or indicated any sort of refusal to cooperate with the blood draw.

Defendant was charged with DUI and with being under the influence of a controlled substance. (Veh.Code, § 23152, subd. (a); Health & Saf.Code, § 11550, subd. (a).) ¹ Prior to trial he brought a motion to suppress, at which Officer Robinson testified to the above facts and at which defendant testified on his own behalf. ( Pen.Code, § 1538.5.) He said that his blood was drawn in a holding cell while he was handcuffed behind his back and to a bar on the seat. He also claimed that the officer was not, in fact, present during the draw. He admitted to having used meth that day, and ecstasy at least two days prior, but he said that the drugs did not affect him “[o]ther than making me alert on my drive home,” and specifically that they did not impair his perception or memory of the events surrounding his arrest. Defendant argued that Officer Robinson had no constitutional justification for failing to obtain a warrant for the blood draw, and that there was no evidence that accepted medical practices were followed, but the trial court found that the blood draw was authorized under the implied consent law and denied the motion to suppress. Defendant brings a pretrial appeal from that order. ( Pen.Code, § 1538.5, subd. (g).)

DISCUSSION

Defendant's first argument is that the blood draw violated the Fourth Amendment because there were no special facts, i.e., exigent circumstances, to justify the warrantless search as required by Schmerber v. California (1966) 384 U.S. 757, 770–71, 86 S.Ct. 1826, 16 L.Ed.2d 908( Schmerber ), and Missouri v. McNeely (2013) 569 U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696( McNeely ). He also argues that there was no evidence that the search was performed according to accepted medical practices, as required in order to be constitutionally reasonable. The People briefly respond that they were required to show neither exigent circumstances nor constitutionally reasonable performance because the blood was taken with defendant's consent pursuant to the implied consent law. Though it is not nearly as simple a question as the People suggest, we find that cooperation with the implied consent law does indeed constitute Fourth Amendment consent. On the other hand, we agree with defendant that even consensual blood draws must be performed in accordance with accepted medical practices. We ultimately find that in this case the evidence below established the constitutionality of the blood draw in both aspects.

I. No Special Facts Establishing Exigent Circumstances Were Required Because the Blood Draw Was Independently Justifiable as a Consent Search Pursuant to the Implied Consent Law

A bit of legal background is necessary here: In 1966, in Schmerber, the United States Supreme Court upheld a warrantless,forced blood draw done in the course of a DUI investigation where the officer was confronted with an emergency making it unfeasible to obtain a warrant before the defendant's blood alcohol dissipated, and where the blood draw was performed according to accepted medical practices. ( Schmerber, supra, 384 U.S. at pp. 770–72, 86 S.Ct. 1826.) Subsequent California cases uniformly interpreted Schmerber to mean that no exigency beyond the natural evanescence of intoxicants in the blood stream, present in every DUI case, was needed to establish an exception to the warrant requirement. (See Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 757–60, 762–63, 769, 280 Cal.Rptr. 745, 809 P.2d 404( Mercer );People v. Superior Court ( Hawkins ) (1972) 6 Cal.3d 757, 761, 100 Cal.Rptr. 281, 493 P.2d 1145( Hawkins );People v. Sugarman (2002) 96 Cal.App.4th 210, 214, 116 Cal.Rptr.2d 689( Sugarman );People v. Ford (1992) 4 Cal.App.4th 32, 35, 5 Cal.Rptr.2d 189( Ford );People v. Fiscalini (1991) 228 Cal.App.3d 1639, 1642, 279 Cal.Rptr. 682( Fiscalini );Scott v. Meese (1985) 174 Cal.App.3d 249, 251–52, 219 Cal.Rptr. 857;People v. Ritchie (1982) 130 Cal.App.3d 455, 458–59, 181 Cal.Rptr. 773 [specifically with regard to drugs]; People v. Ryan (1981) 116 Cal.App.3d 168, 182, 171 Cal.Rptr. 854;People v. Puccinelli (1976) 63 Cal.App.3d 742, 746, 135 Cal.Rptr. 534( Puccinelli ).) Last year, however, the high court held in McNeely that,

while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.

( McNeely, supra, 133 S.Ct. at p. 1563.)McNeely thus repudiated the long-standing California interpretation of Schmerber.

The blood draw in this case was not supported by exigent circumstances as outlined in McNeely, and the People do not so claim.² Rather, they argue that the blood draw was taken with defendant's consent, citing the principle “that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” ( Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854.)

No California court has expressly considered the question of whether chemical tests taken pursuant to the implied consent law are justifiable under the Fourth Amendment as consent searches; before McNeely, none has had to. While in decades past it was declared that “[t]he California ‘implied consent’ statute [citation][footnote] has repeatedly withstood assault on constitutional grounds” ( Anderson v. Cozens (1976) 60 Cal.App.3d 130, 139, 131 Cal.Rptr. 256), and in particular that the statute does not violate one's right “to be free from illegal searches and seizures” ( id. at pp. 140–41, 131 Cal.Rptr. 256;Westmoreland v. Chapman (1968) 268 Cal.App.2d 1, 4, 74 Cal.Rptr. 363; Bush v. Bright (1968) 264 Cal.App.2d 788, 790, 71 Cal.Rptr. 123), these cases simply cite Schmerber as authority, and it is easy to see why they did. The Legislature first enacted California's original implied consent law shortly after the decision in Schmerber, with the goal of limiting the number of “ ‘ “unpleasant, undignified and undesirable” ’ ” forced blood draws. ( Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 117–18, 40 Cal.Rptr.3d 48( Ritschel ) [quoting Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 77, 177 Cal.Rptr. 566, 634 P.2d 917].) And so even though the implied consent law has never been considered a simple codification of Schmerber, and compliance with the more strict provisions of the implied consent law has never been a necessary prerequisite for constitutionality ( id. at pp. 118–20, 40 Cal.Rptr.3d 48), the two strands ran in parallel under the...