People v. Lane

• Decision Date: 08 March 1966
• Docket Number: Cr. 11195
• Citation: 240 Cal.App.2d 634,49 Cal.Rptr. 712
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Albert LANE, Defendant and Appellant.

Page 712

49 Cal.Rptr. 712

240 Cal.App.2d 634

The PEOPLE, Plaintiff and Respondent, v. Frank Albert LANE, Defendant and Appellant.

Cr. 11195.

District Court of Appeal, Second District, Division 3, California.

March 8, 1966.

Hearing Denied May 4, 1966.

Jacques Leslie, Daniel A. Schiffer, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, Alan R. Wolen, Deputy Attys. Gen., for respondent.

DRUCKER, Justice pro tem. ^*

In a nonjury trial defendant was convicted of violation of section 23101 Vehicle Code. Upon consideration of the probation report the court suspended proceedings and granted probation for a period of two years. Defendant appeals from the judgment (order granting probation) upon the grounds that the unauthorized extraction of blood while he was unconscious was: (1) An unreasonable search and seizure, (2) a violation of his privilege against self-incrimination, and (3) a violation of his right to counsel, to remain silent, and to be cautioned that any evidence given could be used against him.

It appears from the evidence that on July 6, 1964 about 8 p. m. the defendant entered an off ramp of the Hollywood Freeway, proceeded diagonally across the freeway in the wrong direction and collided with another vehicle. The defendant was rendered unconscious, and two people in the other vehicle were injured. A police officer arrived at the scene almost immediately after the accident happened, saw the defendant lying unconscious on the freeway. The defendant had a strong odor of alcohol on his breath. In the car driven by the defendant the officer found broken glass from three vodka one-half pint bottles, the neck of one of the bottles was still sealed. He detected a strong odor of alcohol within the interior of the car. The defendant was transported to the receiving hospital. At the time the officer arrived at the hospital twenty minutes later, the defendant was still unconscious. While the defendant was being medically treated, the officer still detected a strong odor of alcohol on defendant's breath. At this point he 'mentally' placed defendant under arrest for driving under the influence of alcohol. At the request of the officer the doctor withdrew a blood specimen from the arm of the unconscious defendant, in a medically approved manner. A forensic chemist testified that the specimen contained .19 percent blood alcohol. This is indicative that the defendant was under the influence of intoxicating liquor. The defendant remained unconscious for a period of approximately five days.

Supportive of the decision of the trial court, appropriate to the facts of the instant case, and determinative of the issues before us, is the case of People v. Duroncelay, 48 Cal.2d 766, at pages 770-772, 312 P.2d 690, at page 693, in which the Supreme Court stated, as follows: 'It is settled by our decision in People v. Haeussler, 41 Cal.2d 252, 257, 260 P.2d 8, that the admission of the evidence did not violate defendant's privilege against self-incrimination because the privilege relates only to testimonial compulsion and not to real evidence. We also held in the Haeussler case that the taking of the defendant's blood for an alcohol test in a medically approved manner did not constitute brutality or shock the conscience and that, therefore, the defendant had not been denied due process of law under the rule applied in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R. 1396. This holding is in accord with the recent decision of the United States Supreme Court in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 411, 1 L.Ed.2d 448, where blood for an alcohol test was taken by a doctor while the defendant was unconscious. The court pointed out that blood tests had become routine in everyday life and concluded that 'a blood test taken by a skilled technician is not such 'conduct that shocks the conscience,' Rochin, supra, 342 U.S. at page 172, 72 S.Ct. at page 209, nor such a method of obtaining evidence that it offends a 'sense of justice,' Brown v. [State of] Mississippi, 297 U.S. 278, 285-286, 56 S.Ct. 461, 464-465, 80 L.Ed. 682.' * * *

'The question remains as to whether the taking of defendant's blood constituted an unreasonable search and seizure in violation of his constitutional rights. We did not decide that question in People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8, because its determination was not necessary in view of the rule then followed in this state that illegally obtained evidence was admissible. Nor was it decided in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448, for the reason that New Mexico, where the judgment under review had been entered, permitted introduction of such evidence. The question is now squarely before us, however, since, subsequent to our decision in the Haeussler case, we adopted the exclusionary rule in People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d 905, .

'It is obvious from the evidence that, before the blood sample was taken at the request of the highway patrolman, there was reasonable cause to believe that defendant had committed the felony of which he was convicted, and he could have been lawfully arrested at that time. Pen.Code, § 836. There is no claim that defendant was not arrested within a reasonable time or that the arrest was not made on the basis of the facts known to the officer who investigated the accident, and we must presume that there was a lawful arrest, in the absence of any showing to the contrary. People v. Farrara, 46 Cal.2d 265, 268-269, 294 P.2d 21; People v. Beard, 46 Cal.2d 278, 280, 294 P.2d 29; see Code Civ.Proc., § 1963, subds. 15, 33. Where there are reasonable grounds for an arrest, a reasonable search of a person and the area under his control to obtain evidence against him is justified as incident to arrest, and the search is not unlawful merely because it precedes, rather than follows, the arrest. People v. Simon, 45 Cal.2d 645, 648-649, 290 P.2d 531; People v. Boyles, 45 Cal.2d 652, 655, 290 P.2d 535; People v. Martin, 45 Cal.2d 755, 762, 290 P.2d 855. Under the circumstances, a search, for example, of defendant's pockets or his automobile to obtain additional evidence of the offense would have been proper, regardless of whether he consented thereto. The question to be determined here is whether the taking of a sample of his blood for an alcohol test was a matter of such a different character that it must be regarded as an unreasonable search and seizure.

'As we have seen, the extraction of defendant's blood was accomplished with medical precautions by a registered nurse, and it is settled that such conduct is not brutal or shocking. Defendant does not challenge the accuracy of the alcohol test, and it merits emphasis that, while the accounts of eyewitnesses are often uncertain and conflicting on the issue of intoxication, blood alcohol tests are so subject to reliable scientific analysis that 23 states have enacted statutes sanctioning the use of such tests. See Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448, 451-452, footnote 3. Nor should it be ignored that a test of this kind may serve to exonerate, as well as to convict.

'The incidence of death and serious injury on the highways has undeniably assumed tragic dimensions and has been due in a significant degree to the effects of alcohol upon drivers. See National Safety Council Accident Facts--1955, pp. 43-71. So long as the measures adopted do not amount to a substantial invasion of individual rights, society must not be prevented from seeking to combat this hazard to the safety of the public. The extraction of blood for testing purposes is, of course, an experience which, every day, many undergo without hardship or ill effects. When this fact, together with the scientific reliability of blood alcohol tests in establishing guilt or innocence, is considered in the light of the imperative public interest involved, the taking of a sample for such a test without consent cannot be regarded as an unreasonable search and seizure where, as here, the extraction is made in a medically approved manner and is incident to the lawful arrest of one who is reasonably believed to have violated section 501 of the Vehicle Code.

'We conclude that there was no violation of defendant's rights and that the results of the alcohol test were properly admitted in evidence.'

The defendant urges that by reason of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the Fourth and Fifth Amendments to the United States Constitution are obligatory upon the states through the due process clause of the Fourteenth Amendment and, therefore, he contends, Breithaupt v. Abram, supra, 352 U.S. 432, 77 S.Ct. 408, and People v. Duroncelay, supra, 48 Cal.2d 766, 312 P.2d 690, are no longer authorities for the admissibility of nonconsensual blood test evidence.

Although until Mapp v. Ohio, supra, California was not bound by the due process clause to apply the exclusionary rule and although People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, expressly reserved to this State the power to reject 'needless limitations' on the right of search and seizure developed by the federal decisions--a reservation no longer permissible--we do not believe Duroncelay runs afoul of defendant's rights under the Fourth Amendment, as developed in the federal courts. In this connection we take note of the statement by the majority in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, that 'mapp did not attempt the impossible task of laying down a 'fixed formula' for the application in specific cases of the constitutional prohibition against unreasonable searches and seizures; * * *.' Id., 31-32, 83 S.Ct. 1629. The court further said: 'This Court's longestablished recognition that standards of reasonableness under the ...