People v. Superior Court of Kern County
| Decision Date | 09 July 1971 |
| Citation | 18 Cal.App.3d 640,96 Cal.Rptr. 94 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent, Allan Foster HAWKINS, Real Party in Interest. Civ. 1500. |
Evelle J. Younger, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Jack R. Winkler, Deputy Atty. Gen., Sacramento, for petitioner.
No appearance for respondent.
Vizzard, Baker, Sullivan, McFarland & Long, Richard M. Long, Bakersfield, for real party in interest.
Defendant was charged with vehicle manslaughter, violation of Penal Code, section 192, subdivision 3(a), and felony drunk driving, violation of Vehicle Code, section 23101. He moved the superior court for an order suppressing evidence concerning a blood test, which was granted; the People seek review by way of mandate
About 9:30 p. m. on June 21, 1967, Robert Craig was driving his station wagon on Rosedale Highway, accompanied by his wife, Lela, and their three children. At the intersection with Allen Road, real party in interest Hawkins drove his pickup through the stop sign and struck the Craig station wagon. Hawkins was injured and his twin sister, who was riding with him in the pickup, was killed. Mr. and Mrs. Craig were injured and she was taken to the hospital by ambulance. California Highway Patrol Officers Hernandez and Apsit arrived at the scene a few minutes after the accident, and found Hawkins standing near the station wagon. There were two full cans of beer and one empty in the pickup. The officers testified that Hawkins appeared to be dazed and his breath smelled of alcohol, his speech was a little slow and his eyes were bloodshot. Because Hawkins suffered back injuries in the accident, he was not given a roadside sobriety test but was sent to the hospital in the same ambulance as Mrs. Craig.
When the officers completed their investigation at the scene, they went to the hospital, where Officer Apsit contacted Hawkins in the emergency room. He asked him if he would consent to a blood-alcohol test. The officer testified that Hawkins said that he would, so the officer prepared a written consent which was then signed by Hawkins. The blood sample was taken at the hospital in a medically approved fashion, and a chemical test revealed that it contained 203 milligrams per cent alcohol.
At a 1538.5 hearing to suppress the result of the blood test, Hawkins testified that he could not read the form he signed, because blood was in his eyes, and that he thought the paper was an authorization for treatment. He also testified that he did not know who had handed the paper to him and that he had lost consciousness subsequent to the accident. The trial court ordered the results of the blood test suppressed upon the ground the blood sample was obtained in an unreasonable search and seizure in violation of Hawkins' Fourth Amendment rights.
The word 'unreasonable,' given its dictionary definition, would support the People's contention that there was nothing unreasonable in taking the blood sample. Officer Apsit believed in good faith that Hawkins consented, and the conditions under which the blood sample was taken are above criticism. However, within the framework of the Fourth Amendment the courts have given the word 'unreasonable' a narrower and more specialized meaning from that in common usage. The United States Supreme Court held, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, that compulsory administration of a blood test comes within the ambit of the Fourth Amendment proscription against unreasonable search and seizure. It is settled that one may consent to waive his constitutional rights and, in particular, his Fourth Amendment right against unreasonable search. (Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477.) But, here, the trial court found that consent was not given knowingly and intelligently and we cannot go behind that finding. (People v. Stroud, 273 Cal.App.2d 670, 674-677, 78 Cal.Rptr. 270.) Thus the question that emerges is whether, absent consent, there can be a valid search and seizure where there is no warrant and no arrest.
It is significant that at the scene of the accident the officers had reasonable and probable cause to believe that Hawkins had been driving while intoxicated. They were informed that he had run a stop sign, there were two full cans of beer and one empty in the pickup, his breath smelled of alcohol, his speech was a little slow, his eyes were bloodshot, and he appeared to be somewhat disoriented. However, because of back injuries suffered in the accident, Hawkins was sent to the hospital without being give a roadside sobriety test. In following up their investigation, Officer Apsit went to the hospital to obtain a blood sample in order to determine the amount of alcohol in Hawkins' blood; he was confronted with an emergency in which delay necessary to obtain a search warrant threatened the destruction of the evidence through dissipation (Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409; Schmerber v. California, supra). Thus the officer faced a dilemma: he had reasonable cause to arrest Hawkins and obtain a sample of his blood pursuant to Vehicle Code, section 13353, or he could obtain Hawkins' express consent and defer the arrest in order to permit him to be treated unhampered by being in custody. Rather than arrest him or seek a warrant, the officer selected the alternative procedure and asked Hawkins if he would consent to a chemical test of his blood; when he gave his consent, Officer Apsit prepared a written authorization which Hawkins signed. The blood sample was taken in the hospital, using approved medical procedures under sanitary conditions; no force was used, and the officer did nothing to offend the sense of justice, as occurred in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (see also Schmerber v. California, supra). The officer acted in utmost good faith in that he obtained what he believed was a valid express consent to take a blood sample.
Had the officer arrested Hawkins, the taking of the blood sample would have been incidental to a lawful arrest made upon reasonable and probable cause, removing all doubt. (Schmerber v. California, supra.) Moreover, Vehicle Code, section 13353 provides implied consent as a matter of law where the driver 'is dead, unconscious, or otherwise in a condition rendering him incapable of refusal,' which would include Hawkins' condition as the trial court viewed it. But since no arrest was made, the critical question is whether there can be a valid seizure, absent either a search warrant or an arrest, where there is reasonable or probable cause to seize evidence. Specifically, can the seizure stand even though the arrest is not made at or about the time of the search or, as here, defendant's attorney surrenders him by voluntary appearance in a committing court?
We find no California case directly in point. However, in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, we find discussion by the United States Supreme Court that appears to be pertinent. In Chambers, the court traced the history of warrantless searches based upon probable cause to search and seize evidence, quite aside from reasonable or probable cause to arrest. The court relied heavily upon an earlier United States Supreme Court case, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and quoted therefrom as follows:
"The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.' 267 U.S., at 158-159, 45 S.Ct. at 287.'
The court then summarized as follows:
(Cf. People v. Ball, 162 Cal.App.2d 465, 467, 328 P.2d 276; People v. Gonzales, 182 Cal.App.2d 276, 5 Cal.Rptr. 920.)
The circumstances known to Officer Apsit gave reasonable and probable cause to make an arrest. He did not make the arrest, but nevertheless those same circumstances gave reasonable and probable cause to take the blood sample.
In view of the language quoted from Chambers v. Maroney, the validity or reasonableness of a search and the validity of seizure of evidence are not necessarily dependent upon the officer making an arrest. 'Reasonableness' being a relative term, we go no further than the facts of this case dictate in holding that taking the blood sample in the instant case was based upon reasonable and probable cause, and did not violate Hawkins' rights under the Fourth and Fourteenth Amendments. We are not constrained to suppress the evidence under compulsion of the exclusionary rule since its purpose is to balance the desirability of deterring objectionable police conduct against the undesirability of excluding relevant and reliable evidence. There was nothing objectionable about the police conduct in this case.
Let the writ issue as prayed.
I concur in the reasoning and judgment of the majority opinion and add a few additional comments thereto.
This case does not involve aggravated police illegality or obnoxious or offensive law enforcement conduct or brutal or shocking activity such as may have been involved in People v. Irvine, 113 Cal.App.2d 460, 248 P.2d 502 (affirmed Irvine v. People (1954) 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561) or People v. Rochin, ...
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