People v. Mason

• Decision Date: 29 December 2016
• Docket Number: No. 1–14–AP–001674,1–14–AP–001674
• Citation: 8 Cal.App.5th Supp. 11,214 Cal.Rptr.3d 685
• Court: California Superior Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rebecca MASON, Defendant and Appellant.

8 Cal.App.5th Supp. 11

214 Cal.Rptr.3d 685

The PEOPLE, Plaintiff and Respondent,

v.Rebecca MASON, Defendant and Appellant.

No. 1–14–AP–001674

Appellate Division, Superior Court, SANTA CLARA COUNTY.

Filed December 29, 2016

Counsel for Plaintiff/Respondent, The People: Jen Jiang, Deputy District Attorney

Counsel for Defendant/Appellant, Rebecca Mason: Donald Gray Drewry

OPINION

Williams, J. Presiding Judge, Appellate DivisionAppellant Rebecca Mason was charged in two misdemeanor counts with driving under the influence of alcohol and driving with a blood alcohol level of 0.08 or more in violation of Vehicle Code sections 23152, subdivisions (a) and (b), respectively. She appeals the denial of her pretrial motion to suppress, challenging the ruling with respect to the warrantless blood draw only. She physically submitted to the blood draw, electing that over a breath test, after first declining submission to a voluntary preliminary alcohol screening and after being told by an officer she was "required" to submit to a chemical test under the implied consent law, but without the officer providing the full implied consent admonishment, including any of the consequences of refusal.

After a thorough review of the record, which consists of undisputed facts pertaining to the motion, we hold that notwithstanding California's implied consent law, which we recognize is a factor to be considered in the totality of the circumstances, the People failed to establish that Mason freely and voluntarily consented to the blood draw, as was their burden. While Mason was driving and using the state's roads, whatever "deemed consent" she had given to a blood draw in advance by virtue of the implied consent law and her use of the public roads did not amount on these facts to actual free and voluntary consent for purposes of the Fourth Amendment. And even if the scope of any advance express consent given under the implied consent law extended to a waiver of Fourth Amendment rights in a criminal prosecution, a conclusion we find doubtful, there was also a total absence of proof in the suppression hearing that Mason was licensed to drive in California or of the advance express consent she, in particular, is urged to have provided through obtaining a license. This absence of proof precludes the position posited by the People: that she had, in fact, provided advance express consent, subject to her showing that consent was withdrawn. Moreover, under Penal Code section 1538.5, the burden of proof remained with the People to affirmatively show actual free and voluntary consent as an exception to the warrant requirement. While the implied consent law "deems" consent by drivers to a chemical test to have been given, it does not shift the burden in a suppression motion to require a defendant to show that advance "deemed" consent, falling short of actual free and voluntary consent under the Fourth Amendment, has been withdrawn. Accordingly, we reverse and remand with directions to the trial court to grant Mason's motion to suppress the results of the warrantless blood draw.

STATEMENT OF THE CASE

I. Factual Background¹

On May 2, 2013, around 10 p.m., Campbell Police Officer Daniel Stromska was driving westbound on Civic Center Drive towards Second Street in Campbell. Civic Center Drive is a one-way, westbound street. The officer conducted an enforcement stop on a silver car that turned eastbound onto Civic Center Drive, thus going the wrong way on that one-way street. Mason was the driver of the car.

The officer approached and asked Mason if she knew why he had stopped her. She responded by acknowledging that she had driven the wrong way on a one-way street, having turned too early while looking for the freeway. During their contact, Officer Stromska smelled an alcoholic odor on Mason's breath, and could see that she had bloodshot and watery eyes. He also noticed her speech was slurred. Officer Stromska asked Mason if she had consumed any alcohol that evening. She said she had had one or two margaritas and had recently left a nearby restaurant, Aqui.

The officer asked Mason to get out of the car to perform field sobriety exercises.

He explained and demonstrated three exercises—the horizontal gaze nystagmus, the leg-balance or single-leg stand, and the heel-to-toe line walk—and then had Mason perform each one. According to Officer Stromska, she did not perform the exercises satisfactorily, meaning she showed signs of impairment. The officer noted that horizontal gaze nystagmus

was present when Mason's eyes were following the movement of his finger from left to right. She also exhibited "an early onset of nystagmus approximately prior to 45 degrees." The officer did not give further testimony regarding Mason's performance on either the single-leg stand or the heel-to-toe line walk exercises.

Officer Stromska then asked Mason if she would submit to a preliminary alcohol screening (PAS) and told her that this was "an optional test." Mason declined.

Officer Stromska then placed Mason under arrest for driving under the influence of alcohol, handcuffing her in the process. He transported her to the Alcohol Investigation Bureau (AIB), where a blood draw was ultimately performed. Before the procedure, the officer asked Mason if she would submit to either a blood or breath test. He "told her she was required to give one or the other." On cross-examination, Officer Stromska was asked if he had "informed [Mason] that she was obligated to give a blood or breath sample once she was arrested" and he replied, "Correct," meaning yes. When asked, by the trial court, whether he had specifically used the word "require," i.e., whether he had told Mason she was "required" to provide a blood or breath sample when informing her about the chemical test, Officer Stromska said he could not recall the specific language he had used. But his standard practice in advising a driving-under-the-influence arrestee on the choice of tests is to "let them know that, when requested by an officer, they have a choice of providing either a blood or breath sample, but it is up to them which one they want to provide[.]"

The officer testified that "[d]eclining the [chemical] test is an option" but he did not tell Mason that she could refuse to provide a sample and did not advise her of any consequences of such a refusal. Officer Stromska explained it was his general practice to not inform an individual about the consequences of refusing a chemical test unless and until the person has first refused, and that he was under no obligation to "let [Mason] know the admonishment on the back of the "DS–367 DMV form" unless she declined to "provide a sample."² In other words, the officer misunderstood, and did not comply with, Vehicle Code section 23612, subdivision (a)(1)(D), which provides that the person "shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153...," and the suspension of the person's privilege to operate a motor vehicle for one year, or the revocation for two or three years depending on certain prior Vehicle Code violations. (Italics added.) Nor did the officer comply with Vehicle Code section 23612, subdivision (a)(4), which likewise provides that the officer "shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during the administration of the test or tests chosen, and that, in the event of a refusal to submit to a test or tests, the refusal may be used against him or her in a court of law." (Italics added.)

Once informed by Officer Stromska that she was required to submit to a chemical test and of her choice between a blood or breath test, Mason opted for a blood test. She did not inquire into other alternatives and did not otherwise verbally or physically resist the blood draw.

Officer Stromska did not attempt to obtain a warrant for the blood draw because he believed "[t]here was no need to." When asked why there was no need for a warrant, the officer explained it was because "there was no need for physical restraints ... to obtain the blood sample from the defendant." We take the officer to have meant that in his understanding, a warrant is required for a blood draw only in the event a DUI suspect physically resists the procedure and actual force would then be required to implement it.

After Mason opted for a blood test, the officer requested through dispatch that a phlebotomist meet him at AIB to perform the blood draw. AIB is a secure facility and Officer Stromska said the area seemed clean to him. He was within six to 10 feet when he observed Mason's blood draw and had witnessed "[r]oughly 50 to 70" other blood draws in the past. The officer testified that Mason's blood draw was done consistently with every other blood draw he had observed, though he could not recall the details of this blood draw, including the technique used, the location on Mason's body from where the blood was drawn, how many attempts "at the puncture" were made, or if Mason showed any signs of discomfort.

There was no evidence at the suppression hearing establishing that Mason was a licensed California driver, and thus of any form of advance express consent to a chemical test she, in particular, may have provided in order to obtain a license.

II. Procedural Background

Mason was charged by misdemeanor complaint with two counts—driving under the influence of alcohol and driving with a blood alcohol level of 0.08 or more in violation of Vehicle Code section 23152, subdivisions (a) and (b), respectively. She waived arraignment on the complaint on June 17, 2013, and then filed a motion to suppress evidence under Penal Code section 1538.5 on July 29, 2013, 42 days later. (Pen. Code, § 1510 [suppression motion...