People v. Mateljan

• Citation: 28 Cal.Rptr.3d 506,129 Cal.App.4th 367
• Decision Date: 12 May 2005
• Docket Number: No. D044282.,D044282.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Erik Hans MATELJAN, Defendant and Appellant. [And five other cases.].<SMALL><SUP>*</SUP></SMALL>
• Court: California Court of Appeals

28 Cal.Rptr.3d 506

129 Cal.App.4th 367

The PEOPLE, Plaintiff and Respondent, v. Erik Hans MATELJAN, Defendant and Appellant.

[And five other cases.].^*

No. D044282.

Court of Appeal, Fourth District, Division 1.

May 12, 2005.

Rehearing Denied June 1, 2005.

Review Denied August 24, 2005.

Certiorari Denied February 21, 2006. See 126 S.Ct. 1333.

Gary Nichols, County Public Defender, for Defendant and Appellant Willie Augusta Short, Jr.

Mary Frances Prevost, San Diego, for Defendants and Appellants Erik Hans Mateljan, Matin Davari, Brian Yui, Benjamin Fanale and Carol L. Paulick.

Casey Guinn, City Attorney, Susan M. Heath, Assistant City Attorney, Monica A. Tiana and Stephen Hanson, Deputy City Attorneys; Bonnie M. Dumanis, District Attorney, Kim-Thoa Hoang, Chief Deputy District Attorney, Anthony Lovett, Assistant Chief Deputy District Attorney, and Laura E. Tanney, Deputy District Attorney, for Plaintiff and Respondent.

BENKE, Acting P.J.

Since February 11, 2004, Vehicle Code¹ section 23158 has permitted certified phlebotomists to draw blood without direct supervision from a physician or registered nurse from persons suspected of driving under the influence of alcohol. However, each of the appellants in this case was suspected of driving under the influence and taken into custody before February 11, 2004. Each appellant elected to have a blood test rather than a breath test. In each case, although the practice had not yet been authorized by the Legislature, a phlebotomist acting without direct supervision from a physician, registered nurse, licensed clinical laboratory scientist or analyst drew the suspect's blood. According to an expert offered by the People, the draws were accomplished in a manner which did not create any medical risk for the suspects.

By way of motions to suppress, each appellant argued that the absence of statutory authority to use phlebotomists should prevent the prosecution from relying on the blood which had been drawn from him or her. The trial court denied their motions, the appellate division affirmed the trial court's ruling and granted appellants' application for certification to this court. We transferred the appeals and consolidated them.

We affirm the trial court's orders. In two prior cases, People v. Esayian (2003) 112 Cal.App.4th 1031, 5 Cal.Rptr.3d 542 (Esayian) and People v. McHugh (2004) 119 Cal.App.4th 202, 14 Cal.Rptr.3d 142 (McHugh), we rejected somewhat similar attacks on blood evidence drawn by phlebotomists and used in convicting defendants of driving under the influence. Here, in addition to the Fourth Amendment and due process arguments raised in Esayian and McHugh, appellants argue use of phlebotomists deprived them of equal protection of the law. We reject this argument as well. The use of phlebotomists did not discriminate against appellants on any invidious basis. Hence use of phlebotomists did not deny appellants equal protection of the law.

SUMMARY

A. City of San Diego

Nineteen of the appellants were arrested in the City of San Diego² on suspicion of drunk driving and chose to provide law enforcement officers with blood samples rather than perform a breath test. All of their arrests occurred before February 11, 2004, and all of their blood samples were drawn by phlebotomists employed by American Forensic Nurses (AFN), a corporation which had contracted with a number of San Diego law enforcement agencies to take blood tests of drunk driving suspects.

In moving to suppress their blood tests, appellants joined 48 other drunk driving suspects whose blood had been drawn by AFN phlebotomists before February 11, 2004. They argued that in using phlebotomists, the City of San Diego violated their Fourth Amendment right to be free of unreasonable searches and seizures, their right to due process of law and their right to equal protection of the laws.

The trial court conducted a fairly extensive evidentiary hearing on the motion to suppress. The parties stipulated that each of the appellants was stopped by a law enforcement officer after the officer observed behavior which led the officer to believe the suspect had been driving under the influence of alcohol. They further stipulated that the suspects consented to the blood tests and that the blood draws were done at the request of law enforcement officers. At the hearing the prosecution offered the testimony of the principal owner of AFN, Faye Battiste-Otto. Otto stated that in 1999 she began having difficulty providing personnel qualified under section 23158 to draw blood and met her contractual obligations to San Diego area law enforcement agencies with phlebotomists. According to Otto, she could not on an economic basis provide personnel who met the requirements of section 23158. With the knowledge of the supervising criminalist of the San Diego Police Department and other city officials, AFN used phlebotomists until November 2003.

All of the phlebotomists used by AFN had received postsecondary training as medical assistants, including instruction in phlebotomy. Each of the phlebotomists testified as to their respective training and experience and the procedures each used in drawing a suspect's blood. The city also offered the testimony of a registered nurse, Alice Cresci, who testified that the phlebotomists performed the blood draws in a medically appropriate manner. Her testimony was supported by the testimony of Dr. Leland Rickman, a UCSD physician who specializes in infectious diseases.

In support of their joint motion, the suspects offered testimony from the phlebotomy manager of Pomerado Hospital, Ted Drescher. Drescher testified that the procedures employed by AFN's phlebotomists did not comply with his hospital's disposal protocols. Drescher's testimony was supported by Leslie Revier, the Chief of Quality Assurance at UCSD clinical laboratories. He criticized the decontamination and storage practices of the AFN phlebotomists. In criticizing AFN's phlebotomists, Revier also testified that a medical history should be taken before blood is drawn and that tourniquets left on patients for more than four minutes might cause injury.

The joint motion was also supported by testimony from a registered nurse, Patricia Hunter, who testified that it is not medically acceptable to permit phlebotomists to draw blood unless they are under the direct supervision of a physician, nurse or licensed clinical laboratory scientist.

The trial court denied the motion to suppress. The trial court found that the use of phlebotomists did not create any undue medical risk to drunk driving suspects and that the city's violation of section 23158 did not constitute a violation of the Fourth Amendment or any denial of due process or equal protection of the law. As indicated, 19 of the suspects appealed to the appellate division, which certified their equal protection claim to this court. We transferred the case to our court.

B. County of San Diego

Four of the appellants were stopped in areas of the County of San Diego, where the district attorney is responsible for prosecuting misdemeanors. Like the 19 appellants prosecuted by the city attorney they moved to suppress the blood draws performed by AFN phlebotomists. They too argued that the use of phlebotomists violated the Fourth Amendment and deprived them of due process and equal protection of the law.

Much of the testimony used in the motion brought in the city's prosecution was introduced in the county proceeding. In addition the county offered the testimony of a medical expert, Dr. Howard Robin. Dr. Robin was formerly a phlebotomist himself and is a licensed pathologist, the Medical Director of Laboratory Services at Sharp Memorial Hospital, director of the hospital's blood blank and a former chairman of the Physician's Committee of the California Blood Bank system. According to Dr. Robin, it is standard medical procedure in San Diego to use phlebotomists to draw blood rather than registered nurses or licensed vocational nurses. He believes phlebotomists are more proficient at drawing blood than registered or licensed vocational nurses. Robin testified that the procedure used by AFN's phlebotomists were, with one exception, medically acceptable. He criticized one phlebotomist's use of non-sterile cotton to dry disinfected venipuncture sites before inserting a needle; however, Dr. Robin testified that this created a miniscule risk of infection.

In response to questions about the length of time phlebotomists left tourniquets on patients, the storage of their equipment, their use of gloves and whether they washed their hands, Dr. Robin testified that none of those issues was medically significant. According to Dr. Robin, it is not medically necessary that phlebotomists take a medical history before drawing blood.

The trial court denied the county appellants' motion. Like the city appellants, the county appellants appealed to the appellate division and the appellate division certified their equal protection claim. We transferred the county appellants' appeal to our court and consolidated their appeal with the city appellants' appeal.

DISCUSSION

I

Before we examine the merits of the parties' contentions, we set forth the appropriate standard of review. "On appeal from a denial of a motion to suppress evidence on Fourth Amendment grounds we review the historical facts as determined by the trial court under the familiar substantial evidence standard of review. Once the historical facts underlying the motion have been determined, we review those facts and apply the de novo standard of review in determining their consequences. Although we give deference to the trial court's factual determinations, we independently decide the legal effect of such determinations. [Citation.]" (Esayian, supra, 112 Cal.App.4th at p. 1038, 5 Cal.Rptr.3d 542.)

II

Prior to February 11, 2004, section 23158, subdivision (a), provided in pertinent part: "Only a licensed physician and surgeon,...