People v. Huber

• Decision Date: 08 March 1965
• Docket Number: Cr. 10336
• Citation: 232 Cal.App.2d 663,43 Cal.Rptr. 65
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Kenneth L. HUBER, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 65

43 Cal.Rptr. 65

232 Cal.App.2d 663

The PEOPLE of the State of California, Plaintiff and Appellant, v. Kenneth L. HUBER, Defendant and Respondent.

Cr. 10336.

District Court of Appeal, Second District, Division 1, California.

March 8, 1965.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty. of Los Angeles County, Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., for appellant.

Sydney M. Williams, Beverly Hills, and Andrew Landay, Los Angeles, for respondent.

LILLIE, Justice.

Defendant was charged with driving while under the influence of intoxicating liquor in an unlawful manner resulting in bodily injury to another human being. (§ 23101, Veh.Code.) The committing magistrate held him to answer; the superior court dismissed the charge under section 995, Penal Code. The People appeal from the order.

Around 2:20 a. m. on April 22, 1964, Sandra Silvers, was involved in an automobile accident the result of which she sustained serious injury. Ten minutes later Officer Clark arrived at the scene and observed the two vehicles; there was damage to the left fender of each; he found Miss Silvers lying injured in a vehicle facing east on the north bound portion of La Cienega; he found defendant alone, unconscious behind the steering wheel of the other which, too, was facing east on the north bound portion of the street. Officer Hickey arrived at the scene around 2:50 a. m.: he examined the physical evidence and determined therefrom the point of impact and concluded that the only way the accident could have happened was that defendant had been driving on the wrong side of the street. He testified that in defendant's vehicle there was an odor of alcoholic beverage. He left the scene of the accident around 3:30 a. m. and went to the U.C.L.A. Medical Center; he saw defendant around 4 a. m. and noticed a strong odor of alcohol emitting from his breath.

When brought to U.C.L.A. Medical Center defendant was unconscious; Dr. Levin, an intern, saw defendant at approximately 4 a. m.; he detected an aroma of alcohol about the presence of defendant when he examined him; while he was semiconscious, and without defendant's permission, Dr. Levin withdrew blood from his arm under medically accepted conditions, placed the sample in a tube (Peo. Exh. 1) and gave it to a nurse who handed it to Officer Hickey, which he testified was 'the usual routine.'

Officer Howe, Blood Alcohol Unit, Scientific Investigation Division, Police Department, twice ran a blood alcohol test on defendant's blood and obtained readings of .167 per cent and .164 per cent. In his opinion an individual with those blood alcohol readings would be under the influence of an intoxicating beverage at the time the blood sample was taken. He further testified that in his opinion all individuals would be under the influence at .15 per cent blood alcohol. According to the officer, assuming that a blood sample had been taken approximately one hour after the person had his last drink, the blood alcohol content at that point would be at a maximum; he stated that the percentage lost per hour is approximately .02.

In considering the propriety of a motion under section 995, Penal Code, this court may not substitute its judgment as to the weight of the evidence for that of the committing magistrate, and if there is some evidence in support of the information, we will not inquire into its sufficiency. (People v. Flanders, 140 Cal.App.2d 765, 768, 296 P.2d 13.) While the function of the magistrate is to weigh the evidence, resolve conflicts, and determine the credibility of witnesses, balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order. (People v. Jackson, 146 Cal.App.2d 553, 556, 303 P.2d 767; Perry v. Superior Court, 57 Cal.2d 276, 283-284, 19 Cal.Rptr. 1, 368 P.2d 529.) The record shows: '* * * (1) that the defendant drove a vehicle on the public highway way [defendant, sole occupant in the car, was found behind the steering wheel immediately after the accident]; (2) that he was then and there under the influence of intoxicating liquor [at the scene of the accident there was an odor of alcoholic beverage in defendant's car and almost two hours after the accident an odor of alcohol emitted from his breath and was detected about his person; the results of the blood test indicate he was under the influence of intoxicating liquor two hours after the accident; and an investigation of the accident shows that defendant was driving on the wrong side of the road when the impact occurred]; (3) that he did some act forbidden by law or neglected a duty imposed by law in the driving of such vehicle [the point of impact, determined from the physical evidence, established that defendant had been driving on the wrong side of the road just before the accident]; and (4) that such act or neglect proximately caused bodily injury to a person other than himself [Miss Silvers suffered a brain concussion and severe injuries to her leg].' (People v. Clark, 202 Cal.App.2d 513, 516, 20 Cal.Rptr. 806, 805.)

While the sample was withdrawn in a medically approved manner by a doctor in a hospital, defendant's condition was such that his consent could not be, and was not, obtained. The officer had no search warrant and defendant was not then under arrest; there is no evidence relative to when defendant was arrested. Dr. Levin attended him as his physician, but the facts indicate that when he took the sample he was acting as an agent of law enforcement officers. After making an investigation at the scene, Officer Hickey, having reasonable cause to believe that defendant drove on the wrong side of the road causing the accident and was then under the influence of intoxicating liquor, went to the hospital where he saw him at approximately 4 a. m. An odor of alcohol was emitting from defendant's breath. After the officer's arrival and in his presence, Dr. Levin withdrew the blood sample and placed it in a tube which was given to Officer Hickey. There is no evidence that the sample was taken to aid the treatment of defendant or to save his life. The only reasonable inference is that Dr. Levin, an employee of a State agency, withdrew the blood at the instance of the officer for analysis for presentation to the court, and in so doing acted as his agent.

The crucial point is whether the result of an analysis of a blood sample taken from defendant while semi-conscious, without his consent and in the absence of an arrest, must be excluded because the withdrawal of the blood constituted an unlawful search and seizure. In dismissing the charge the superior court said, 'the People have not proved that the taking of this blood sample was incidental to an unlawful [sic] arrest.' Appellant argues that an arrest was not necessary, for under federal and state authorities the 'emergency' and 'exceptional circumstances' present herein justify the action of the police.

The United States Supreme Court in Johnson v. United States (1948), 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, recognized that under certain 'exceptional circumstances,' among them, threatened destruction of evidence, law enforcement officers have the right to conduct a search and seizure without a warrant, without consent and without the same being incident to an arrest. In Johnson, supra, narcotic agents detected a strong odor of burning opium coming from a room; without knowing the occupant they knocked on the door which defendant opened after some delay; they entered, told her to consider herself under arrest and without a search warrant or consent, searched the room; they seized opium and a warm smoking apparatus. The search and seizure could not be justified as having been incidental to an arrest for the court declared the arrest to be unlawful; then it said that in the absence of 'exceptional circumstances' the search and seizure without a warrant, consent or arrest were not lawful. 'There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with. But this is not such a case. No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to bypass the constitutional requirement. No suspect was fleeing or likely to take flight. The search was of permanent premises, not a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time will disappear. But they were not capable at any time of being reduced to possession for presentation to court. * * *' (pp. 14-15, 68 S.Ct. p. 369.) In McDonald v. United States (1948), 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed 153, the court cited the Johnson case and while it held there were no 'exceptional circumstances' in the record to justify entry of a room and seizure of lottery paraphernalia without a warrant, it said: 'Where, as here, officers are not responding to an emergency, there must be compelling reasons to justify the absence of a search warrant. A search without a warrant demands exceptional circumstances, as was held in Johnson v. United States, supra. * * *

'Here, as in Johnson v. United States * * * the defendant was not fleeing or seeking to escape. Officers were there to apprehend petitioners in case they tried to leave. Nor was the property in the process of destruction nor as likely to be destroyed as the opium paraphernalia in the Johnson case. * * * We cannot be true to that constitutional requirement (Fourth Amendment) and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of...