People v. Kraft

• Decision Date: 09 January 1970
• Docket Number: Cr. 5344
• Citation: 84 Cal.Rptr. 280,3 Cal.App.3d 890
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ricardo Matthew KRAFT, Defendant and Appellant.

Page 280

84 Cal.Rptr. 280

3 Cal.App.3d 890

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ricardo Matthew KRAFT, Defendant and Appellant.

Cr. 5344.

Court of Appeal, Third District, California.

Jan. 9, 1970.

As Modified on Denial of Rehearing Feb. 6, 1970. ^*

Hearing Denied March 4, 1970.

Thomas C. Lynch, Atty. Gen., by Edsel W. Haws and Nelson P. Kempsky, Deputy Attys. Gen., and John Price, Dist. Atty., by Peter Franchi, Deputy Dist. Atty., Sacramento, for plaintiff-respondent.

David A. Wilson, Sacramento, for defendant-appellant.

PIERCE, Presiding Justice.

Defendant was convicted, after a non-jury trial in the municipal court of misdemeanor drunk driving (violation of Veh.Code, § 23102, subd. (a)). He appealed to the appellate division of the superior court. That court by a two to one decision affirmed the judgment 77 Cal.Rptr. 205. This court accepted certification 'to secure uniformity of decision or to settle important questions of law.' (Cal.Rules of Court, rule 63, subd. (a).)

After defendant had been arrested a blood sample was taken. The analysis was introduced into evidence. It showed a blood alcohol content of .24 of one percent. Defendant had refused to submit voluntarily to that or any other of the tests specified in Vehicle Code section 13353. Force was used in the taking of the sample. This court will hold that the force used was under the circumstances unlawfully excessive. Although the actual withdrawal of blood itself may not have been objectionable, it was immediately preceded by conduct such as to constitute the process as a whole not 'medically acceptable' and therefore judgment must be reversed.

The reasons for our conclusions will, we think, be clearer if we reverse the traditional opinion writing method by discussing the rules of law involved before outlining in facts.

In cases not involving the California 'Implied Consent Law' (Veh.Code, § 13353) utilization of the results of chemical analyses performed upon a blood sample drawn from a nonconsenting defendant has been held permissible as against constitutional attacks under the Fourth, Fifth, Sixth and Fourteenth Amendments. Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, launches most juridical discussions where this topic has been relevant. Defendant Schmerber, suspected of drunk driving, had been taken to a hospital for emergency treatment after an automobile accident. A blood sample was drawn by a staff physician, acting at the direction of a warrantless police officer, despite defendant's refusal to consent to the test. Report of the chemical analysis was admitted in evidence at the trial. Defendant was convicted of drunk driving. In Schmerber a majority of the court overruled defendant's contentions that admission in evidence of the results of the blood analysis violated his right to due process under the Fourteenth Amendment, his privilege against self-incrimination under the Fifth Amendment, his right to counsel under the Sixth Amendment, and his right against unreasonable searches and seizures under the Fourth Amendment.

The court in Schmerber analyzed Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448. It pointed out that there the defendant driver was unconscious and that the blood had been withdrawn in a 'simple medically acceptable manner.' (Id. 384 U.S. at 759--760, 86 S.Ct. 1826.) Thus there was no act offensive to that 'sense of justice' condemned in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. Breithaupt, said the Schmerber court, required denial of the argument that involuntary blood withdrawal was per se a denial of due process. (Id. 384 U.S. at 760, 86 S.Ct. 1826.) The court also held that since the privilege against self-incrimination applied only to evidence testimonial or communicative in nature the Fifth Amendment had not been violated. (Id. at 761, 86 S.Ct. 1826.) The court also held that Sixth Amendment rights had not been violated. Defendant had been represented by counsel. The contention was that because defendant's objection to the taking of the test had been made on the advice of counsel his Sixth Amendment right to counsel had been infringed. The court said (at p. 766 of 384 U.S., at p. 1833 of 86 S.Ct.): '* * * Since petitioner was not entitled to assert the privilege, he has no greater right because counsel erroneously advised him that he could assert it. * * * No issue of counsel's ability to assist petitioner in respect of any right he did possess is presented.'

The court next considered the search and seizure claim. The contention that a search warrant should have been obtained was answered by the court's recognition of the fact that alcohol in the blood stream is rapidly absorbed by the body and that the delay involved in obtaining a search warrant might destroy the value of a blood analysis. (Id. 384 U.S. at 767--768, 86 S.Ct. 1826.)

The court did not hold--indeed respondent did not argue--that the administration of a blood test is entirely free of Fourth Amendment constraints. The majority opinion is liberally sprinkled with phrases abjuring 'intrusions into the body * * * not justified in the circumstances, or which are made in an improper manner,' and the court demands that 'means and procedures employed * * * (must respect) relevant Fourth Amendment standards of reasonableness.' (Id. 384 U.S. at 768, 86 S.Ct. at 1834.) But the opinion also contains 'on-the-other-hands,' saying that the 'quantity of blood extracted (in a blood analysis) is minimal' and 'involves virtually no risk' when withdrawn 'by a physician in a hospital environment according to accepted medical practices.' (Id. 384 U.S. at 771, 86 S.Ct. at 1836.) The opinion concludes with the warning (on p. 772, 86 S.Ct. on p. 1836): 'It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.'

Schmerber was first referred to and applied by our Supreme Court in People v. Sudduth (1966) 66 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401. That case did not involve the taking of one of the chemical tests specified in our implied consent law. It involved the right (which was upheld) of the prosecutor to comment on the refusal of a defendant to submit to a breathalizer test.

This court held in People v. Fite (1968) 267 Cal.App.2d 685, 73 Cal.Rptr. 666, that Vehicle Code section 13353 did not supersede other penal provisions and that a defendant who had physically submitted to a test given, although verbally refusing consent thereto, could not escape prosecution and sentencing for felony drunk driving; that the results of the chemical analysis were properly admitted against him at the criminal trial; and that evidence of his attempted refusal was similarly admissible at that trial. The additional statement 'in the absence of force or violence' was repeated in the majority opinion in People v. Wren (1969) 271 A.C.A. 897, 900--901, 76 Cal.Rptr. 673, 676.

The phrase 'in the absence of force and violence' is troublesome. How much force is force? Under the portion of the opinion in Schmerber, supra, which we have quoted above, it is obvious that that amount of force which exceeds 'relevant Fourth Amendment standards of reasonableness' may not lawfully be employed. It is also certain that the bounds of reasonableness are exceeded unless blood is withdrawn 'according to accepted medical practices.' In the case now before us the majority opinions in the superior court did not construe the evidence as showing a violation of Fourth Amendment standards of reasonableness. The minority opinion disagreed. We now examine the facts.

In the early morning hours defendant was observed by two patrolling police officers, Curtright and Spieth, driving an automobile northward along Watt Avenue. Watt Avenue is a well traveled thoroughfare in Sacramento County. Defendant was driving on the wrong side of the street. Defendant's car made a right turn onto a side street and 'with some difficulty' it proceeded into, and was parked in, a driveway. One of the officers approached defendant as he alighted from the car. He noted a strong odor of liquor about defendant. Defendant was standing in front of the door by the driver's compartment. There was a pile of gravel at that point on which defendant was standing. Curtright took hold of defendant by the arm and shoved him back into the street. He did not shove very hard but it caused defendant to fall down. When he got up he was unsteady. The officer asked for his driver's license. At first he refused to surrender it but did later. A series of roadside tests were given, as the result of which the officers determined defendant was very intoxicated. He was placed under arrest for violation of Vehicle Code section 23102, subdivision (a) (misdemeanor drunk driving). He was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He was then handcuffed and taken to the city emergency hospital. At the time of the arrest defendant's right arm was bandaged above and at the wrist and in the metacarpel area. He told the officers that it ached but when asked the cause he said 'forget it.' Subsequently, he told the doctor he had suffered a fracture three weeks earlier. On the ride to the hospital defendant complained continuously about pain due to the handcuffs. To the officers this was the customary behavior of a handcuffed prisoner. During the ride downtown defendant carried on a silly conversation. When the trio reached the police station, the officers started to take defendant to the hospital. At that point he became what Officer...