People v. Lopez
| Decision Date | 11 March 2020 |
| Docket Number | C080065 |
| Citation | 46 Cal.App.5th 317,260 Cal.Rptr.3d 18 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Sharon Darlene LOPEZ, Defendant and Appellant. |
Kenneth Cleon Brooks, Los Gatos, Retained Counsel for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, Supervising Deputy Attorney General, Raymond L. Brosterhous II, R. Todd Marshall, and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.
HULL, Acting P. J. Defendant Sharon Darlene Lopez appeals from the trial court’s denial of her motion to suppress evidence obtained from a warrantless blood draw. Police conducted the blood draw upon defendant’s arrest for driving under the influence of a controlled substance. The officer instructed defendant she was required to undergo a blood draw by the state’s implied consent law, but he did not relate the law’s admonitions regarding the consequences should she refuse the test. Defendant did not object or resist, and the draw was performed without a warrant. The trial court concluded defendant consented to the test. We conclude substantial evidence supports the court’s ruling, and we affirm the judgment.
FACTS AND PROCEEDINGS
The People charged defendant with one misdemeanor count of driving under the influence of a controlled substance. ( Veh. Code, § 23152, subd. (a).) (Statutory references that follow are to the Vehicle Code unless otherwise stated.)
Defendant moved to suppress evidence pursuant to Penal Code section 1538.5. She claimed her blood sample, among other matters, was drawn without her consent or a warrant in violation of the Fourth Amendment.
The following evidence was adduced at the trial court’s hearing on the suppression motion. Because defendant does not claim her consent was the result of an unlawful arrest, we relate the facts relevant to the voluntariness of her consent.
Rocklin police detained defendant on September 29, 2013, after observing her driving. Officer Evan Adams took over the investigation for the detaining officer. Officer Adams observed defendant’s unsteady gait, constricted pupils, and slurred speech. He conducted field sobriety tests that indicated she was impaired. He had her blow into a preliminary alcohol screening (PAS) device which registered .000, indicating an absence of alcohol. He believed she was under the influence of controlled substances, as opposed to alcohol. He arrested her and transported her to the county jail.
Officer Adams sought a blood sample from defendant. At trial, he explained his "procedure" for obtaining a blood sample from DUI suspects as follows: The officer said that is what he did this time.
Officer Adams stated he told defendant that "since she was under arrest for a DUI, and since I believed it was a controlled substance DUI, she’s required, by law, to submit to a blood test." The officer said defendant did not refuse the blood test: "She consented and cooperated." She did not object or resist at any point. If she had refused, he would have obtained a warrant and performed a forced blood draw.
When asked on cross-examination how he determined that defendant consented to the blood test, Officer Adams replied, "I informed her she was required by law, she gave no objection, Phlebotomist [Sasha] Perez arrives, and she did not resist saying at any point she wanted to refuse the blood draw at all, and the blood was taken without any incident." Officer Adams did not "directly" ask for her consent, and defendant did not say she consented. He explained, "What I did is I informed her that she’s required by law to submit to it, and then I believe her consent was implied." Asked how defendant manifested consent, Officer Adams said,
When asked what he would do if a suspect did not give consent and yet did not refuse, Officer Adams said, "Well, my opinion, sir, if they don’t give me consent, it is a refusal, so I would go with our DUI refusal procedure which would be the warrant ...."
Defense counsel asked what other signs the officer would look for to determine whether the suspect consented if the suspect did not say, "I give consent." Officer Adams replied,
When asked whether he, as a matter of course, asked a suspect who is being interrogated for consent to a blood draw, Officer Adams said, "I don’t know if I can really answer that because I don’t really interrogate the DUI suspects at that point, if that makes any sense to you...." The officer continued,
In this case, defendant told Officer Adams that she had taken Seroquel
the night before and another medication. This told the officer what was "on board" that could have been causing her impairment. Asked whether, after obtaining this statement from defendant, he saw any reason to further request for consent to draw her blood, Officer Adams stated, "[W]hat I did is I informed her that she’s required by law, as she is, to submit to a blood draw, and then I kind of walk her through the procedure. And, I mean, at any point—I’ve had several people that don’t want to give a blood draw, we’ll take that as a refusal, and then we’ll move on with the warrant procedure. That’s not what happened in this case.
Defense counsel asked Officer Adams what his conversation with defendant was right before she provided her breath sample. The officer stated, "What I probably told her—what I actually did tell her, because I do it on every DUI, is I tell her that this is not an implied consent test. What it is—and then I explained to her if she is to be arrested for DUI, that she’s still required by law to give a blood test or a breath test. In this case it’s blood only because it’s a controlled substance DUI. And then the ... breath test does not count as that test. And I also usually explain that it’s just another one of the standardized field sobriety tests.
Officer Adams testified defendant cooperated with the blood test. He did not remember her specifically but believed her test proceeded normally. She would have been unhandcuffed and directed to take a seat. She moved her arm herself into position for the phlebotomist to draw the blood.
Defendant told a different story at the suppression hearing. She claimed police officers "forcibly" "shoved" her into a chair by physical contact with her shoulders and handcuffed wrists. An officer other than Officer Adams removed the handcuffs, grabbed her arm, and "physically slammed it" down on a counter, telling her they were taking her blood. She repeatedly asked for an attorney. She did not remember a phlebotomist being present.
Defendant did not recall Officer Adams telling her she was required to give a blood sample. She never consented. No one in the room asked her if she consented. She would not have consented had she been asked. On cross-examination, defendant said she did not remember what Officer Adams said to her. She said a male police officer drew her blood. She admitted she was on Metoprolol
, a strong blood pressure medication, at the time of the traffic stop.
On rebuttal, Officer Adams stated that Sasha Perez drew defendant’s blood. Perez is a phlebotomist and not a police officer, and she was not wearing a police officer’s uniform. In turn, Perez testified that her records showed she performed a blood draw for the Rocklin Police Department on the day of defendant’s arrest. Although Perez did not recall defendant, she also did not recall anybody being forced to give a blood sample that day.
The trial court denied the suppression motion, finding defendant consented to the blood draw. The court stated:
Defendant appealed to the Superior Court Appellate Division, which affirmed the trial court’s order denying suppression. The Appellate Division denied defendant’s request to have the matter transferred to the Court of Appeal. We granted defendant’s petition for transfer. The Superior Court stayed proceedings pending our resolution of the appeal.
DISCUSSION
Defendant contends the trial court erred when it denied her motion to suppress.
She argues the blood draw violated her rights under the Fourth Amendment because she...
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