People v. Ling

• Citation: 15 Cal.App.5th Supp. 1,222 Cal.Rptr.3d 463
• Decision Date: 05 May 2017
• Docket Number: AD-5574
• Parties: The PEOPLE, Plaintiff and Respondent, v. Samuel Hing-Ming LING, Defendant and Appellant.
• Court: California Superior Court

15 Cal.App.5th Supp. 1

222 Cal.Rptr.3d 463

The PEOPLE, Plaintiff and Respondent,

v.Samuel Hing-Ming LING, Defendant and Appellant.

AD-5574

Appellate Division, Superior Court, California. SAN MATEO COUNTY.

Filed May 5, 2017

Stephen M. Wagstaffe, District Attorney, Kimberley Perrotti, Deputy District Attorney and Mary Louise Christinsen, Deputy District Attorney, for Plaintiff and Respondent.

Law Offices of Marsanne Weese, Marsanne Weese, San Francisco, for Defendant and Appellant.

OPINION

DAVIS, P. J.—

I. INTRODUCTION.

In 1966, the United States Supreme Court ruled that a nonconsensual blood draw taken from a suspect arrested on suspicion of driving under the influence of alcohol did not violate the Fourth Amendment because exigent circumstances existed that allowed for a blood draw to be conducted in a reasonable manner incident to the defendant's arrest. ( Schmerber v. California (1966) 384 U.S. 757, 770-771 [16 L.Ed. 2d 908, 86 S. Ct. 1826] ( Schmerber ).) Almost 50 years later in 2013, the United States Supreme Court ruled that a nonconsensual blood draw taken from a suspect arrested on suspicion of driving under the influence of alcohol violated the Fourth Amendment after concluding that exigent circumstances, which could have provided an exception to the warrant requirement, could not be presumed in every case where an individual has been arrested for suspicion of driving under the influence of alcohol, despite the natural dissipation of alcohol in the bloodstream. ( Missouri v. McNeely (2013) 569 U.S. 141, [185 L.Ed.2d 696, 133 S.Ct. 1552] ( McNeely ).) During the intervening years between these two decisions, California enacted and amended statutes intended to obtain cooperation from individuals who had been arrested for suspicion of driving under the influence of alcohol during chemical tests of their blood alcohol levels in response to the holding in Schmerber. Although referred to as "implied consent," the legislation was an attempt to provide law enforcement officials with a tool to secure voluntary submission to a chemical test and to eliminate the potential for violence inherent in physically subduing a suspect who might otherwise resist a chemical test. ( Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 760 [280 Cal.Rptr. 745, 809 P.2d 404].)

For nearly fifty 50 years in California, countless prosecutions arising from arrests for driving under the influence of alcohol resulted in a myriad of legal challenges. The corresponding rulings uniformly abided by the interpretation of Schmerber that a warrantless compulsory seizure of blood for the purpose of a blood-alcohol test was lawful if the procedure was conducted in a reasonable, medically approved manner, conducted incident to a lawful arrest, and based upon a reasonable belief that the arrestee was intoxicated. ( People v. Jones (2014) 231 Cal.App.4th 1257, 1263 .) Implicit in these decisions was the presumption that exigent circumstances existed in every case where a suspect was arrested for driving under the influence of alcohol. Given the clarification of Schmerber in McNeely, Fourth Amendment challenges to blood draws must now be viewed through a fresh lens that is unencumbered by the past presumption of an existing exception to the warrant requirement. The holding in McNeely now requires trial courts to approach such constitutional challenges from a new posture, where the blood draw can no longer be presumed lawful absent some showing that the manner in which the blood draw was taken violated constitutional rights. Consequently, because McNeely prohibits the presumption of exigent circumstances, trial courts must acknowledge that every driving under the influence prosecution may be subject to the holding of McNeely to the extent that every blood draw challenged as a violation of the Fourth Amendment must now be supported by evidence of a warrant or an exception to the warrant requirement.

The instant appeal presents just such a warrantless blood draw, where McNeely does not require a particular outcome, as the defendant did not expressly refuse a chemical test, but does require that the People sufficiently support with evidence some exception to the warrant requirement, which would have been unnecessary prior to McNeely. In other words, the challenged blood draw here is not ultimately lawful or unlawful under McNeely, but, ultimately, this challenged blood draw must be specifically justified by evidence of an exception to the warrant requirement because of McNeely. Here, the People rely solely on consent as an exception to the warrant requirement. An examination of the record reveals that the People failed to establish under the totality of the circumstances that defendant consented to a chemical test. Consequently, we reverse the order denying the motion to suppress and direct the trial court to enter a new order granting the motion to suppress the evidence obtained as a result of the warrantless blood draw.

II. FACTS AND PROCEDURAL BACKGROUND.

Defendant Samuel Hing-Ming Ling appeals from the order denying his motion to suppress.¹ At the suppression hearing, defendant did not contest the lawfulness of his initial traffic stop. Instead, defendant challenged only the actions subsequent to the traffic stop.

At the hearing on defendant's motion, California Highway Patrol Officer Jeremy Watson was the only witness, and the following facts are based on his testimony. Officer Watson was on duty on June 13, 2015, at approximately 4:00 a.m., near the intersection of Highway 101 and Highway 92, when he conducted a traffic stop of a black 2013 Honda Accord driven by defendant. When the officer made contact with defendant, the officer smelled the strong odor of an alcoholic beverage emanating from the vehicle. There were two passengers in the vehicle, and the officer could not tell from whom the odor of alcohol was emanating. Defendant was unable to provide the requested driver's license, registration or insurance to the officer.

The officer asked defendant to step out of the vehicle and observed that defendant's eyes were red and watery and that his speech was slow and slurred. The officer smelled the odor of alcohol emanating from defendant's person. Defendant and the People stipulated that the officer concluded that defendant's performance on four field sobriety tests was unsatisfactory, which gave the officer further reasonable suspicion to conduct the driving under the influence ("DUI") investigation.

The officer informed defendant that the PAS (preliminary alcohol screening) test was the last voluntary field sobriety test. The officer additionally told defendant that the PAS test was not the test required by the implied consent law. The officer began to administer the PAS test without waiting for defendant to indicate whether he would submit to the test. The results of the PAS test were 0.144, 0.177, and 0.159, and the results were admitted solely for purposes of the officer's subsequent conduct and not for the truth of the matter asserted.

The officer then arrested defendant based on the officer's observations and the results of the field sobriety tests. The officer handcuffed defendant and placed him in the rear of the patrol vehicle. The officer then advised defendant of implied consent by telling defendant, "Because you're under arrest for DUI, you have to submit to a chemical test, which is a test of either your breath or your blood." The officer's communication with defendant regarding implied consent was limited to the instruction that defendant had to submit to a blood or breath test. The officer did not advise defendant of the consequences of failing to submit to a chemical test.

Initially, defendant did not choose either chemical test. The officer discussed with defendant the characteristics of the blood and breath tests. After this discussion, defendant did not indicate either that he did or did not want to provide a blood or a breath sample. Within a couple of minutes, the officer drove defendant from the scene, and at that time, defendant still had not elected a blood or a breath test.

The officer had three choices of places to transport defendant: First Chance, the Maguire Correctional Facility or the Redwood City California Highway Patrol (CHP) station. The officer drove defendant to the Redwood City CHP station. Defendant made no election of a chemical test during the drive to the Redwood City CHP station.

When they arrived at the Redwood City CHP station, the officer placed defendant in the briefing room. The only chemical test that can be conducted at the Redwood City CHP station is a blood test. The officer then called for someone to draw defendant's blood. At this time, defendant still had made no indication that he wanted a particular chemical test or any test. Defendant's blood sample was taken, and the officer went through an 18-item checklist during the blood draw. The officer observed no complications and no appearance of pain from defendant during the blood draw. Although the officer initially testified that defendant chose a blood test, he agreed on cross-examination that a more accurate description would be that defendant "submit[ted] to a blood draw."

After the People and defendant had made their initial arguments, the trial court stated:

The concern the Court had, and I was a little confused over the evidence, was it doesn't appear that he was given a choice between a breath and a blood test. It doesn't appear that he made a choice. And then the officer ended up in a place where the blood test was the only test available. And the totality of the evidence would show that he certainly didn't consent to taking that test. Whether he had the free choice or not, I'm not too sure of, but I don't know if that goes to the Fourth Amendment protection against unlawful search and seizures or not. Do you have anything additional to add to that? I mean, I agree with you. It sounds like he was there, he consented to the test.

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