People v. Harris , 234 Cal. App. 4th 671 ( 2015 )

Filed 2/19/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060962
v. (Super.Ct.Nos. APP1300100 and
RIM1216935)
ANTHONY A. HARRIS,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Michael J. Kennedy for Defendant and Appellant.
Steven L. Harmon, Public Defender, Joseph J. Martinez, Deputy Public Defender,
for the Riverside County Office of the Public Defender, and Bartell & Hensel, Donald J.
Bartell, Lara J. Gressley and Jared D. Bartell for the California DUI Lawyers Association
as Amici Curiae on behalf of Defendant and Appellant.
Paul E. Zellerbach and Michael Hestrin, District Attorneys, and Matt Reilly,
Deputy District Attorney, for Plaintiff and Respondent.
1
I.
INTRODUCTION
In Missouri v. McNeely (2013) 569 U.S. ___ [133 S. Ct. 1552] (McNeely), the
United States Supreme Court held that, before the police may conduct a nonconsensual
blood test of a motorist who is arrested on suspicion of driving under the influence of
alcohol (DUI), the police must either obtain a warrant from a detached magistrate or later
show that exigent circumstances prevented them from timely obtaining a warrant.
(133 S.Ct. at p. 1563.) The high court also held that the natural dissipation of alcohol in a
driver’s bloodstream does not create exigent circumstances in every case, and that the
government must show on a case-by-case basis that a warrantless blood draw was
reasonable under the Fourth Amendment to the United States Constitution. (Id. at
pp. 1563, 1568.)
In this case, defendant and appellant Anthony A. Harris appealed from the denial
of his motion to suppress evidence obtained during a blood test taken after he was
arrested on suspicion of DUI. The superior court appellate division affirmed the order
denying defendant’s motion to suppress. The appellate division did not address whether
exigent circumstances supported the warrantless blood test because the People did not
argue that exigent circumstances existed, and because the court concluded defendant
consented to the test after the arresting officer advised defendant of the consequences of
refusing to submit. The appellate division held that McNeely did not foreclose
consensual blood tests conducted under the implied consent law, and that defendant’s
voluntarily and freely given consent satisfied the Fourth Amendment.
2
We transferred the appeal from the superior court appellate division to decide an
important issue of statewide importance and to secure uniformity of decision and,
thereafter, we directed the parties to submit supplemental briefs addressing, inter alia, the
impact of McNeely on this case. (Cal. Rules of Court, rules 8.1002, 8.1012(a)(1).) We
conclude that McNeely does not govern defendant’s case; that actual consent to a blood
test satisfies the Fourth Amendment; that defendant’s submission to the blood test in this
case was freely and voluntarily given and did not violate the Fourth Amendment; and that
the record contains substantial evidence that defendant’s blood draw was conducted in a
reasonable manner.
Even assuming that McNeely is applicable and that defendant’s warrantless blood
test may only be supported by exigent circumstances, which the People did not argue and
the facts do not demonstrate, we conclude that the evidence in this case may not be
suppressed because the good faith exception to the exclusionary rule applies here.
Defendant’s blood test was taken before the United States Supreme Court decided
McNeely, and at a time when the California courts uniformly held that probable cause of
DUI and the natural dissipation of alcohol or drugs in the bloodstream was sufficient to
justify a warrantless blood test. Because the police obtained defendant’s blood sample
without a warrant in reliance of binding precedent, excluding the evidence in this case
would not achieve the exclusionary rule’s purpose of deterring future Fourth Amendment
violations.
Therefore, we affirm the order denying defendant’s motion to suppress.
3
II.
FACTS AND PROCEDURAL HISTORY
On December 13, 2012, the People charged defendant by misdemeanor complaint
with one count of driving a motor vehicle under the influence of a drug or alcohol (Veh.
Code, § 23152, subd. (a)), and with one count of being under the influence of a controlled
substance (Health & Saf. Code, § 11550, subd. (a)). Defendant pleaded not guilty to both
charges at his January 14, 2013 arraignment, and on March 22, 2013, he filed a motion to
suppress evidence.1 (Pen. Code, § 1538.5.)
A. Motion to Suppress
In his written motion, defendant asserted that, incident to his arrest on suspicion of
DUI, “he was forced to submit to a blood test.” Defendant argued that the People bore
the burden of establishing that the warrantless search was reasonable under the Fourth
Amendment, and that the blood test was conducted in a reasonable manner.
In its opposition, the People argued the warrantless search in this case was
reasonable under the Fourth Amendment because, contrary to the suggestion in the
1 By not filing his motion to suppress no later than 45 days after pleading not
guilty, defendant arguably forfeited his right to pretrial review of the denial of his motion.
(Pen. Code, § 1510.) In its brief filed in the superior court appellate division, the People
argued that defendant’s failure to comply with Penal Code section 1510 meant that his
notice of appeal was untimely. That statute governs the availability of pretrial review of
denial of an order denying a motion to suppress, and has nothing to do with the timeliness
of a notice of appeal. (See Cal. Rules of Court, rule 8.853(a) [providing the normal time
in which to appeal a judgment or appealable order in misdemeanor cases].) Because the
People did not move to dismiss defendant’s pretrial appeal on the basis that he did not
comply with Penal Code section 1510, we need not address that issue further.
4
motion to suppress, defendant was not forced to submit to the blood test but consented to
it. The People also argued the blood test was performed in a reasonable manner because
it was conducted by a trained professional and was observed by an experienced drug
recognition expert. Finally, anticipating that defendant would rely on the recently
decided decision in McNeely, the People argued that, even if the search was invalid under
McNeely, the trial court should apply the good faith exception to the exclusionary rule
because the search was conducted under then-existing law that a blood draw based on
probable cause of DUI did not require a warrant or a separate showing of exigent
circumstances.
At the hearing on defendant’s motion, Deputy Robinson of the Riverside County
Sheriff’s Department testified that at approximately 5:00 p.m. on October 16, 2012, he
was on motorcycle patrol near the transition of the 60 and 215 freeways. Deputy
Robinson paced defendant’s silver Honda driving approximately 90 miles per hour, and
witnessed the vehicle crossing all four lanes of traffic without using a turn signal. He
testified the vehicle was traveling well over the 65 miles per hour speed limit, and that
crossing all four lanes without using a turn signal was an unsafe maneuver. Deputy
Robinson initiated a traffic stop.
Using the loud speaker on his motorcycle, Deputy Robinson directed defendant to
pull over to the right shoulder. Defendant did not follow Deputy Robinson’s direction,
and instead came to a stop in the center median of the freeway. Deputy Robinson
dismounted from his motorcycle, approached defendant, and asked for defendant’s
driver’s license and vehicle registration. While speaking to defendant, Deputy Robinson
5
observed objective symptoms of impairment with a stimulant. Defendant had a flushed,
rigid face, his pupils were dilated, his eyes were bloodshot and watery, and he made
“jerky movements.” Therefore, Deputy Robinson asked defendant to get out of his
vehicle so Deputy Robinson could perform field sobriety tests.
Deputy Robinson testified that he was an expert in drug recognition, that he was
trained in administering and interpreting the results of field sobriety examinations, and
that he had advanced training in DUI investigations. Deputy Robinson conducted the
horizontal gaze nystagmus examination, the Romberg examination, and other traditional
field sobriety tests on defendant. Based on defendant’s performance on those
examinations, Deputy Robinson concluded that defendant was under the influence of a
controlled substance and, he placed defendant under arrest.
Deputy Robinson told defendant that, based on the deputy’s belief that defendant
was under the influence of a drug, defendant was required to submit to a chemical blood
test. Deputy Robinson advised defendant that he did not have the right to talk to a lawyer
when deciding whether to submit to the chemical test, that refusal to submit to the test
would result in the suspension of his driver’s license, and that refusal could be used
against him in court. Defendant responded, “okay,” and Deputy Robinson testified that at
no time did defendant appear unwilling to provide a blood sample. Deputy Robinson was
transported by another deputy to the Moreno Valley Sheriff’s station.
At the sheriff’s station, a phlebotomist with whom Deputy Robinson had
previously worked drew defendant’s blood. Deputy Robinson observed the phlebotomist
swab the inside of defendant’s right elbow with what appeared to be a disinfectant. The
6
phlebotomist then obtained a blood sample from defendant using a hypodermic syringe.
Deputy Robinson testified that defendant did not resist the blood draw or say, “no, I don’t
want to do this.” The phlebotomist packaged the sample, and Deputy Robinson placed it
into the station’s blood depository.
On cross-examination, Deputy Robinson testified that he did not attempt to obtain
a warrant before the blood test was conducted on defendant. He also testified that he
twice told defendant that he was required to submit to the blood test.
Defendant testified that his blood was drawn while he was inside “kind of a
holding cell.” He also testified that his hands were handcuffed behind his back and to a
bar on his seat when his blood was drawn, and that Deputy Robinson was not present at
the time.
On cross-examination, defendant testified that he had used a “very little” amount
of methamphetamine on the day of his arrest. When asked if he had taken any ecstasy,
defendant said he took one pill two days earlier. Defendant testified that, other than
making him feel alert, he felt fine from the methamphetamine. Finally, defendant
testified that the methamphetamine he took that day and the ecstasy he took earlier in the
week had no effect on his memory or on his ability to perceive the events happening
around him.
Defendant’s attorney argued that, under McNeely, “a search warrant is required for
drunk driving blood draws.” He characterized as “absurd” the People’s argument that the
blood draw was consensual. “The officer said, ‘You are required to do this.’ If an officer
comes to your door and says, ‘You are required to let me in,’ so you stand back so they
7
can come in, that is not a consensual entry.” Counsel also argued the People introduced
no evidence that the blood draw was conducted in a medically approved manner.
After hearing solely from defense counsel, the trial court denied the motion. With
respect to defendant’s argument that the blood draw was not consensual, the court noted,
“You’re right, it’s not consensual in the sense there [are] repercussions if you refuse. He
doesn’t deny or dispute he was told that. He was told, you are required to take this, and if
you don’t take it, X, Y, and Z will follow as a consequence if you refuse. [¶] He chose
not to refuse because he didn’t want all of the consequences. Is that a forced consent?
Sure it is. Is it legal? Yes.”
B. Appeal to the Appellate Division of the Superior Court
Defendant appealed to the appellate division of the superior court from the order
denying his motion to suppress. (Pen. Code, § 1538.5, subd. (j).) In his brief, defendant
argued the trial court erred by denying his motion to suppress because McNeely
reaffirmed the holding in Schmerber v. California (1966) 384 U.S. 757 (Schmerber) that
a blood draw in DUI cases requires either a warrant or exigent circumstances above and
beyond the natural dissipation of alcohol or drugs in the blood, and that the blood sample
taken in this case was supported by neither. He also argued the People did not introduce
evidence that the blood sample was taken in a professional manner and in a medical
setting, as mandated by Schmerber, and that blood draws taken by police contractors in a
police station do not satisfy the Fourth Amendment. Finally, defendant argued the blood
test was not consensual because his submission was coercively obtained pursuant to the
8
implied consent law and did not constitute free, voluntary, and unequivocal consent for
purposes of the Fourth Amendment.
In its respondent’s brief, the People argued that, notwithstanding McNeely,
consent is a recognized exception to the warrant requirement, and the search in this case
was reasonable under the Fourth Amendment because defendant did, in fact, consent to
the search. The People argued that consent to a blood test given after being advised of
the consequences of refusal is not coerced. With respect to the manner in which the
blood draw was conducted, the People argued that defendant’s reliance on Schmerber
was misplaced because, according to the People, that decision set forth the constitutional
requirements for a nonsconsensual blood draw and did not address the manner in which a
consensual blood draw must be taken. In any event, the People argued the defendant’s
blood was drawn “in the usual, commonplace manner.” Finally, the People argued in a
footnote that, if the appellate division were to conclude that the blood draw violated
defendant’s Fourth Amendment rights, under the good faith exception to the exclusionary
rule the evidence should not be suppressed.
In a partially published per curiam opinion, the superior court appellate division
affirmed the denial of defendant’s motion to suppress. (People v. Harris (2014) 225
Cal.App.4th Supp. 1 (Harris).) In the published portion of the decision, the appellate
division noted that, prior to McNeely, California courts uniformly interpreted Schmerber
as permitting forced blood draws based solely on probable cause of DUI because the
natural dissipation of alcohol or drugs in the blood was itself an exigent circumstance.
(Id. at p. Supp. 5.) The appellate division concluded that McNeely “repudiated the long-
9
standing California interpretation of Schmerber.” (Id. at pp. Supp. 5-6.) Because the
People did not argue that defendant’s blood draw was supported by exigent
circumstances, the appellate division did not address whether such circumstances
existed.2 (Id. at Supp. 6.) Instead, the appellate division focused on whether defendant’s
consent to the blood draw satisfied the Fourth Amendment independent of McNeely.
(Ibid.)
Although the appellate division concluded that McNeely did not rule out
consensual blood draws, the court concluded that McNeely forced a reexamination of the
implied consent law and narrowed the circumstances under which a warrantless, forced
blood draw may be justified under the implied consent law. (Harris, supra, 225
Cal.App.4th at p. Supp. 7.) The court concluded that, after McNeely, “a warrantless
[blood] test in the absence of case-specific exigent circumstances can comply with the
[implied consent] statute if done cooperatively, but now violates the Fourth Amendment
if done forcibly.” (Ibid.) The court also concluded that actual consent to a blood draw
pursuant to the informed consent law is freely and voluntarily given notwithstanding that
the motorist gives consent in the face of administrative and criminal penalties for refusing
to consent. (Id. at pp. Supp. 8-10.) Because the defendant cooperated with the police and
“never, at any point, gave either the slightest resistance or suggestion that he wished to
2
In a footnote, the appellate division wrote it would also not consider whether the
good faith exception to the exclusionary rule applied to defendant’s blood draw because
the People did not argue the exception. (Harris, supra, 225 Cal.App.4th at p. Supp. 6,
fn. 2.) As we explain, post, we disagree with the appellate division on that point and
conclude the People sufficiently preserved the good faith exception argument for appeal.
10
revoke his consent,” the appellate division ruled that the blood draw did not violate the
Fourth Amendment. (Id. at p. Supp. 10.)
In an unpublished portion of the opinion, the appellate division ruled that the
blood draw was performed in a medically reasonable manner.
By order dated May 16, 2014, this court, on its own motion, certified the appeal
for transfer.3 This court subsequently granted a request from the People that the parties
be permitted to submit supplemental briefs, and granted requests from the Riverside
County Office of the Public Defender and the California DUI Lawyers Association
(CDLA) for permission to file amici curiae briefs.
III.
DISCUSSION
A. Standard of Review
“‘“In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. We review the court’s resolution of the factual inquiry under
the deferential substantial-evidence standard. The ruling on whether the applicable law
applies to the facts is a mixed question of law and fact that is subject to independent
review.” [Citation.] On appeal we consider the correctness of the trial court’s ruling
itself, not the correctness of the trial court’s reasons for reaching its decision.
3 The Supreme Court denied requests to depublish the opinion of the appellate
division. (People v. Harris (June 11, 2014, S218034) 2014 Cal. Lexis 3862.)
11
[Citations.]’” (People v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th 335, 364-365,
quoting People v. Letner and Tobin (2010) 50 Cal. 4th 99, 145.)
“Under the current provisions of the California Constitution, evidence sought to be
introduced at a criminal trial is subject to suppression as the fruit of an unconstitutional
search and seizure ‘only if exclusion is . . . mandated by the federal exclusionary rule
applicable to evidence seized in violation of the Fourth Amendment [of the United States
Constitution].’” (People v. Maikhio (2011) 51 Cal. 4th 1074, 1089, quoting In re
Lance W. (1985) 37 Cal. 3d 873, 896; see Cal. Const., art I, § 28, subd. (f)(2).)
B. Defendant’s Warrantless Blood Draw Did Not Violate the Fourth
Amendment Because He Freely and Voluntarily Consented to a Chemical Test, and It
Was Conducted in a Reasonable Manner
Defendant contends that a warrantless blood draw may only be justified under the
Fourth Amendment by a showing of exigent circumstances, and that submission to a
chemical test under the implied consent law does not constitute valid consent for
purposes of the Fourth Amendment. We conclude that actual consent to a blood draw
does satisfy the Fourth Amendment; that admonition under the implied consent law of the
consequences of refusing to submit to a chemical test does not always result in coerced
consent; and that, under the totality of the circumstances, defendant freely and voluntarily
agreed to submit to a blood draw. Finally, we conclude the blood draw was conducted in
a reasonable manner. Therefore, we find no Fourth Amendment violation.
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1. The Fourth Amendment Does Not Mandate That All Warrantless Blood
Draws Be Supported by Exigent Circumstances
“The Fourth Amendment provides: [¶] ‘The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.’” (Riley v. California (2014) 573 U.S. ___ [134 S. Ct. 2473,
2482].)
“The Fourth Amendment generally requires police to secure a warrant before
conducting a search.” (Maryland v. Dyson (1999) 527 U.S. 465, 466, citing California v.
Carney (1985) 471 U.S. 386, 390-391.) Put another way, “[t]he Fourth Amendment
demonstrates a ‘strong preference for searches conducted pursuant to a warrant . . . .’”
(Ornelas v. United States (1996) 517 U.S. 690, 699, quoting Illinois v. Gates (1983) 462
U.S. 213, 236.) “[I]t is a cardinal principle that ‘searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-delineated
exceptions.’” (Mincey v. Arizona (1978) 437 U.S. 385, 390, quoting Katz v. United
States (1967) 389 U.S. 347, 357 (Katz), fns. omitted.)
On two occasions, the United States Supreme Court has addressed whether a
warrantless blood test in a DUI case violated the Fourth Amendment. In Schmerber, the
defendant was taken to the hospital following an automobile accident and, against his
express refusal on the advice of counsel, the police directed a physician to draw
13
defendant’s blood to be tested for the presence of alcohol. (Schmerber, supra, 384 U.S.
at pp. 758-759.) Among other things, the United States Supreme Court in Schmerber
addressed whether the warrantless blood test violated the Fourth Amendment. The high
court concluded that “compulsory administration of a blood test” was a search under the
Fourth Amendment. (Id. at p. 767.) Although “there was plainly probable cause” to
arrest the defendant on suspicion of DUI, the court found that the search could not be
justified as a search incident to arrest because the cases articulating that exception to the
warrant requirement “have little applicability with respect to searches involving
intrusions beyond the body’s surface.” (Id. at pp. 768-769.)
The court in Schmerber noted that “[s]earch warrants are ordinarily required for
searches of dwellings, and, absent an emergency, no less could be required where
intrusions into the human body are concerned.” (Schmerber, supra, 384 U.S. at p. 770.)
However, the court concluded that the arresting officer “might reasonably have believed
that he was confronted with an emergency, in which the delay necessary to obtain a
warrant, under the circumstances, threatened ‘the destruction of evidence,’ [citation].”
(Ibid.) The high court acknowledged “that the percentage of alcohol in the blood begins
to diminish shortly after drinking stops, as the body functions to eliminate it from the
system,” and because the defendant had to be rushed to the hospital and the officers had
to investigate the accident scene, it concluded “there was no time to seek out a magistrate
and secure a warrant.” (Id. at pp. 770-771.) Under those “special facts,” the court held
that the warrantless search was justified. (Id. at p. 771.)
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More recently, in McNeely, the defendant refused to take a breathalyzer test during
a DUI investigation and again when being transported to the police station, in order to
measure his blood-alcohol concentration (BAC), so the arresting officer transported the
defendant to a nearby hospital. (McNeely, supra, 133 S.Ct. at pp. 1556-1557.) At the
hospital, the arresting officer read an admonition to the defendant under the Missouri
implied consent law, and “explained to [the defendant] that under state law refusal to
submit voluntarily to the test would lead to the immediate revocation of his driver’s
license . . . and [his refusal] could be used against him in a future prosecution.
[Citation.]” (Ibid.) The defendant refused to submit to the blood test so the arresting
officer directed a laboratory technician to draw a blood sample. (Id. at p. 1557.) The
United States Supreme Court granted certiorari in McNeely to resolve a split in authority
on the question of “whether the natural metabolization of alcohol in the bloodstream
presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant
requirement for nonconsensual blood testing in all drunk-driving cases.” (Id. at pp. 1556,
1558.)
The majority in McNeely held that the natural dissipation of alcohol in the
bloodstream does not create exigent circumstances in every DUI case. (McNeely, supra,
133 S.Ct. at pp. 1563, 1568 (maj. opn. of Sotomayor, J.).) “In those drunk-driving
investigations where police officers can reasonably obtain a warrant before a blood
sample can be drawn without significantly undermining the efficacy of the search, the
Fourth Amendment mandates that they do so. [Citation.]” (Id. at p. 1561.) Although the
court had no “doubt that some circumstances will make obtaining a warrant impractical
15
such that the dissipation of alcohol from the bloodstream will support an exigency
justifying a properly conducted warrantless blood test,” the high court held that the state
was required to make such a showing under the totality of the circumstances and on a
case-by-case basis. (Id. at pp. 1561, 1563.)
McNeely had no occasion to address whether a warrantless blood draw is
reasonable under the Fourth Amendment under another exception to the warrant
requirement. In both McNeely and Schmerber, the defendants refused to consent, so the
sole issue in those cases was whether exigent circumstances supported nonconsensual
searches. Nor, as defendant and amici curiae seem to suggest, did the court in McNeely
hold that a warrantless blood test is reasonable under the Fourth Amendment only when
exigent circumstances are present. “‘“It is axiomatic that language in a judicial opinion is
to be understood in accordance with the facts and issues before the court. An opinion is
not authority for propositions not considered.”’ [Citations.]” (People v. Knoller (2007)
41 Cal. 4th 139, 154-155; accord, Cooper Industries v. Aviall Services (2004) 543 U.S.
157, 170 [“‘Questions which merely lurk in the record, neither brought to the attention of
the court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents’”].) Therefore, we must determine whether another recognized
exception to the warrant requirement will justify defendant’s blood draw.
2. Actual Consent to a Blood Draw Satisfies the Fourth Amendment
Having concluded that McNeely did not hold that warrantless blood draws may
only be justified under the Fourth Amendment by establishing exigent circumstances
under the totality of the circumstances, we conclude that free and voluntary submission to
16
a blood test, after receiving an advisement under the implied consent law, constitutes
actual consent to a blood draw under the Fourth Amendment.
The exigent circumstances doctrine is not the only recognized exception to the
general requirement of obtaining a warrant before conducting a search. “It is ‘well
settled that one of the specifically established exceptions to the requirements of both a
warrant and probable cause is a search that is conducted pursuant to consent.’” (People
v. Woods (1999) 21 Cal. 4th 668, 674, quoting Schneckloth v. Bustamonte (1973) 412 U.S.
218, 219 (Schneckloth); see Katz, supra, 389 U.S. at p. 358, fn. 22 [“A search to which an
individual consents meets Fourth Amendment requirements”]; Fernandez v. California
(2014) ___ U.S. ___ [134 S. Ct. 1126, 1137] [“A warrantless consent search is reasonable
and thus consistent with the Fourth Amendment irrespective of the availability of a
warrant”]; People v. Ledesma (1987) 43 Cal. 3d 171, 233 (Ledesma) [“Failure to comply
with the warrant requirement is . . . not fatal when consent is given”].)
As noted, the high court in McNeely had no occasion to address whether consent
to a chemical test satisfies the Fourth Amendment because the defendant in that case
expressly refused to submit to a blood draw. (McNeely, supra, 133 S.Ct. at p. 1557.)
However, a plurality of the court acknowledged, without deciding, that a motorist’s
consent will justify a warrantless blood draw. In response to the assertion that
application of the totality of the circumstances analysis rather than a per se exigency rule
based on the natural dissipation of alcohol “will undermine the governmental interest in
preventing and prosecuting drunk-driving offenses,” the plurality noted that “States have
a broad range of legal tools to enforce their drunk-driving laws and to secure BAC
17
evidence without undertaking warrantless nonconsensual blood draws.” (Id. at pp. 1565-
1566 (plur. opn. of Sotomayor, J.).) Chief among these tools, “all 50 states have adopted
implied consent laws that require motorists, as a condition of operating a motor vehicle
within the State, to consent to BAC testing if they are arrested or otherwise detained on
suspicion of a drink-driving offense. [Citations.] Such laws impose significant
consequences when a motorist withdraws consent; typically the motorist’s driver’s
license is immediately suspended or revoked, and most States allow the motorist’s refusal
to take a BAC test to be used as evidence against him in a subsequent criminal
prosecution. [Citations.]” (Id. at p. 1566 (plur. opn. of Sotomayor, J.).)
Although the plurality in McNeely discussed state implied consent laws as a means
of legally obtaining blood samples in DUI investigations, we agree with the Wisconsin
Court of Appeals that the concept of “implied consent” in this context is confusing and
somewhat unhelpful in determining whether a motorists’ voluntary submission to a
chemical test constitutes valid Fourth Amendment consent. Therefore, we quote that
court’s helpful observations. “‘Implied consent’ is not an intuitive or plainly descriptive
term with respect to how the implied consent law works. We suspect that it is a source of
confusion. On occasion in the past we have seen the term ‘implied consent’ used
inappropriately to refer to the consent a driver gives to a blood draw at the time a law
enforcement officer requires that driver to decide whether to give consent. However,
actual consent to a blood draw is not ‘implied consent,’ but rather a possible result of
requiring the driver to choose whether to consent under the implied consent law.” (State
v. Padley (Wis.Ct.App. 2014) 849 N.W.2d 867, 876.) “[T]he implied consent law is
18
explicitly designed to allow the driver, and not the police officer, to make the choice as to
whether the driver will give or decline to give actual consent to a blood draw when put to
the choice between consent or automatic sanctions. Framed in the terms of ‘implied
consent,’ choosing the ‘yes’ option affirms the driver’s implied consent and constitutes
actual consent for the blood draw. Choosing the ‘no’ option acts to withdraw the driver’s
implied consent and establishes that the driver does not give actual consent.” (Id. at
p. 879.) Therefore, rather than determine whether “implied consent” to a chemical test
satisfies the Fourth Amendment, we must determine whether submission to a chemical
test, after advisement under the implied consent law, is freely and voluntarily given and
constitutes actual consent.
Citing Bumper v. North Carolina (1968) 391 U.S. 543 (Bumper), defendant argues
that a driver’s submission to a blood draw, given only after admonition by the police
pursuant to California’s implied consent law, can never (or almost never) be considered
valid consent under the Fourth Amendment because submission is extracted under the
threat of serious consequences for refusal. True, California’s implied consent law
provides that “[a] person who drives a motor vehicle is deemed to have given his or her
consent to chemical testing of his or her blood or breath for the purpose of determining”
the alcoholic or drug content of his or her blood, if he or she is lawfully arrested for
driving under the influence of alcohol or a drug. (Veh. Code, § 23612, subd. (a)(1)(A),
(B).) And failure to consent to a chemical test will result in a fine, suspension of the
suspect’s driver’s license, and other serious consequences. (Veh. Code, §§ 13353, 23612,
19
subd. (a)(1)(D).) But the categorical rule suggested by defendant has no more place in
Fourth Amendment law than the per se exigency rejected by the majority in McNeely.
The fact that a motorist is told he will face serious consequences if he refuses to
submit to a blood test does not, in itself, mean that his submission was coerced. In a
related context, the United States Supreme Court in South Dakota v. Neville (1983)
459 U.S. 553 (Neville) held that use of a defendant’s refusal to submit to a chemical test
as evidence in a DUI trial does not violate the defendant’s Fifth Amendment privilege
against self-incrimination. “‘[T]he Fifth Amendment is limited to prohibiting the use of
“physical or moral compulsion” exerted on the person asserting the privilege.’” (Id. at
p. 562.) “Here, the State did not directly compel respondent to refuse the test, for it gave
him the choice of submitting to the test or refusing.” (Ibid.) Although the court
recognized that in extreme situations the choice given to a suspect is no choice at all,
such as when the blood is extracted in a manner “so painful, dangerous, or severe, or so
violative of religious beliefs, that almost inevitably a person would prefer ‘confession,’”
the court held that “the values behind the Fifth Amendment are not hindered when the
State offers a suspect the choice of submitting to the blood-alcohol test or having his
refusal used against him.” (Id. at p. 563.)
The defendant in Neville conceded that “[t]he simple blood-alcohol test is so safe,
painless, and commonplace . . . that the State could legitimately compel the suspect,
against his will, to accede to the test.” (Neville, supra, 459 U.S. at p. 563.) Therefore,
because “the offer of taking a blood-alcohol test is clearly legitimate,” the court
concluded that “the action becomes no less legitimate when the State offers a second
20
option of refusing the test, with the attendant penalties for making that choice. Nor is this
a case where the State has subtly coerced respondent into choosing the option it had no
right to compel, rather than offering a true choice. To the contrary, the State wants
respondent to choose to take the test, for the inference of intoxication arising from a
positive blood-alcohol test is far stronger than that arising from a refusal to take the test.”
(Id. at pp. 563-564.) Finally, the court acknowledged that, although “the choice to submit
or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to
make,” the difficultly of the decision does not mean the motorist’s ultimate choice is
coerced. (Id. at p. 564.) “[T]he criminal process often requires suspects and defendants
to make difficult choices. [Citation.]” (Ibid.) We find it significant that, in its discussion
of state implied consent laws, the McNeely plurality cited Neville with approval.
(McNeely, supra, 133 S.Ct. at p. 1566 (plur. opn. of Sotomayor, J.), citing Neville, at
pp. 554, 563-564.)
A number of sister state courts in the post-McNeely era have had occasion to
address whether submission to a blood draw under an implied consent law may constitute
valid Fourth Amendment consent and, relying on Neville, those courts have rejected the
categorical argument advanced here by defendant. For example, in State v. Brooks
(Minn. 2013) 838 N.W.2d 563 (Brooks), the defendant agreed to chemical tests under the
Minnesota implied consent law after speaking to his attorney and, later, he unsuccessfully
moved to suppress the results of those tests. (Id. at pp. 565-566.) The defendant relied
on McNeely for the proposition that warrantless chemical tests violate the Fourth
Amendment, and the State responded that the defendant voluntarily consented to
21
chemical testing. (Id. at p. 567.) Relying on Neville and its own authority, the Minnesota
Supreme Court held that “a driver’s decision to agree to take a [chemical] test is not
coerced” solely because that state’s implied consent law imposes criminal penalties for
refusing to comply. (Id. at p. 570.) Although Neville and the Minnesota Supreme
Court’s prior case “examin[ed] the issue of coercion within the context of the Fifth
Amendment privilege against self-incrimination,” the Brooks court noted that “the
question in both cases was whether the existence of a consequence for refusing to take a
chemical test rendered the driver’s choice involuntary,” which was “the same question in
the context presented here when we examine whether Brooks’s consent was voluntary, as
the State argues, or whether it was coerced, as Brooks argues. [Citation.]” (Brooks, at
p. 570.)
The court in Brooks distinguished Bumper. As the Minnesota Supreme Court
explained, “In Bumper, police sought to justify their search of a house based on the
owner’s consent, contending that she consented to the search by saying ‘[G]o ahead’ after
police told her they had a warrant. [Citation.] . . . The Court concluded that when a
police officer claims authority to search a house under a warrant, ‘he announces in effect
that the occupant has no right to resist the search. The situation is instinct with
coercion—albeit colorably lawful coercion. Where there is coercion there cannot be
consent.’ [Citation.]” (Brooks, supra, 838 N.W.2d at p. 571, fn. omitted.) In contrast,
the Minnesota Supreme Court noted that the state “has given those who drive on
Minnesota roads a right to refuse the chemical test,” and “the police are required to honor
that refusal and not perform the test. [Citation.] Although refusing the test comes with
22
criminal penalties in Minnesota, the [United States] Supreme Court has made clear that
while the choice to submit or refuse to take a chemical test ‘will not be an easy or
pleasant one for a suspect to make,’ the criminal process ‘often requires suspects and
defendants to make difficult choices.’” (Ibid., quoting Neville, supra, 459 U.S. at p. 564,
fn. omitted.) Finally, applying the totality of the circumstances analysis, the Minnesota
Supreme Court concluded that the defendant voluntarily consented to the chemical tests.
(Brooks, at p. 572.)
Similarly, in State v. Moore (Or. 2013) 318 P.3d 1133 (Moore), the Oregon
Supreme Court held that an advisory read to a motorist pursuant to the state’s implied
consent law does not render involuntary the motorist’s submission to a chemical test.
“[I]t is difficult to see why the disclosure of accurate information about a particular
penalty that may be imposed—if it is permissible for the state to impose that penalty—
could be unconstitutionally coercive. Rather, advising a defendant of the lawful
consequences that may flow from his or her decision to engage in a certain behavior
ensures that that defendant makes an informed choice whether to engage in that behavior
or not. Indeed, the failure to disclose accurate information regarding the potential legal
consequences of certain behavior would seem to be a more logical basis for a defendant
to assert that his or her decision to engage in that behavior was coerced and involuntary.
Of course, accurately advising a defendant of a lawful penalty that could be imposed may
well play a role in the defendant’s decision to engage in the particular behavior, but that
does not mean that the defendant’s decision was ‘involuntary.’” (Id. at p. 1138.)
23
We agree with Brooks and Moore that a motorist’s submission to a chemical test,
if freely and voluntarily given, is actual consent under the Fourth Amendment. 4 That the
motorist is forced to choose between submitting to the chemical test and facing serious
consequences for refusing to submit, pursuant to the implied consent law, does not in
itself render the motorist’s submission to be coerced or otherwise invalid for purposes of
the Fourth Amendment.
3. Defendant Freely and Voluntarily Consented to the Blood Draw
Because submission to a blood test is not coerced merely because it is made after
advisement under the implied consent law, we must determine whether defendant’s
submission in this case was freely and voluntarily given under the normal totality of the
circumstances analysis.
“To be effective, consent must be voluntary. [Citations.]” (Ledesma, supra, 43
Cal.3d at p. 234.) “[W]here the validity of a search rests on consent, the State has the
burden of proving that the necessary consent was obtained and that it was freely and
voluntarily given, a burden that is not satisfied by showing a mere submission to a claim
of lawful authority. [Citations.]” (Florida v. Royer (1983) 460 U.S. 491, 497.) “The
voluntariness of consent is a question of fact to be determined from the totality of
circumstances. [Citations.] If the validity of a consent is challenged, the prosecution
4 (Accord, McCoy v. North Dakota Dept. of Trans. (N.D. 2014) 848 N.W.2d 659,
667-668 [“a driver’s decision to agree to take a [chemical] test is not coerced simply
because an administrative penalty has been attached to refusing the test”; finding driver’s
consent was freely and voluntarily given under the totality of the circumstances].)
24
must prove it was freely and voluntarily given—i.e., ‘that it was [not] coerced by threats
or force, or granted only in submission to a claim of lawful authority.’ [Citations.]”
(People v. Boyer (2006) 38 Cal. 4th 412, 445-446.)
“‘The . . . voluntariness of the consent is to be determined in the first instance by
the trier of fact; and in that stage of the process, “The power to judge credibility of
witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is
vested in the trial court. On appeal all presumptions favor proper exercise of that power,
and the trial court’s findings—whether express or implied—must be upheld if supported
by substantial evidence.”’” (People v. Monterroso (2004) 34 Cal. 4th 743, 758, quoting
People v. James (1977) 19 Cal. 3d 99, 107.)
After arresting defendant on suspicion of driving under the influence of a drug,
Deputy Robinson told defendant that he did not have the right to talk to a lawyer when
deciding whether to submit to a chemical test, that his driver’s license would be
suspended if he refused to submit to a chemical test, and that his refusal could be used
against him in court. Deputy Robinson testified that defendant responded, “okay,” and
that at no time did defendant appear unwilling to provide a blood sample. Deputy
Robinson also testified that he observed a phlebotomist draw defendant’s blood, and that
defendant did not resist or say, “no, I don’t want to do this.” At the suppression hearing,
defendant was not asked whether he responded “okay” to Deputy Robinson’s admonition
under the implied consent law. At most, he testified that Deputy Robinson was not
present during the blood draw, and that the blood draw was performed while defendant
was inside a holding cell with his hands handcuffed behind his back to a chair.
25
Moreover, defendant did not testify that he told the phlebotomist that he did not want to
give a blood sample or that he otherwise resisted.
The undisputed evidence in the record demonstrates that defendant verbally agreed
to a blood test after being admonished by Deputy Robinson under the implied consent
law, and that he did not verbally refuse to give a blood sample or demonstrate a desire to
withdraw his consent either verbally or by physically resisting the phlebotomist’s attempt
to draw his blood. Although defendant testified that his hands were handcuffed behind
his back to a chair when his blood was drawn, which might indicate that defendant’s
submission to the blood test was not freely and voluntarily given, the trial court implicitly
found that defendant’s testimony was not credible. “‘As the finder of fact . . . the
superior court is vested with the power to judge the credibility of the witnesses, resolve
any conflicts in the testimony, weigh the evidence and draw factual inferences in
deciding whether a search is constitutionally unreasonable.’ [Citation.]” (People v. Tully
(2012) 54 Cal. 4th 952, 979 (Tully).) “Moreover, the reviewing court ‘must accept the
trial court’s resolution of disputed facts and its assessment of credibility.’ [Citation.]”
(Ibid.) Therefore, we must accept the trial court’s implied findings and also conclude that
defendant’s testimony was not credible.
In the brief defendant filed in the superior court appellate division, which he
incorporates by reference into his supplemental brief filed in this court, defendant argued
that Deputy Robinson’s admonition under the implied consent law was false, and that
valid Fourth Amendment consent may not be obtained if the police lie about the implied
consent law. Deputy Robinson admonished that because he concluded defendant was
26
under the influence of a drug, defendant was required to submit to a chemical test, and
that a blood test was “the only option” available. Defendant argues this was false
because when a motorist is arrested on suspicion of driving under the combined influence
of alcohol and a drug, he must be given the choice between a blood or breath test and
may only be compelled to take a blood test “if the officer has a clear indication that a
blood test will reveal evidence of the person being under the influence.” (Veh. Code,
§ 23612, subd. (a)(2)(B), (C).) Deputy Robinson also told defendant that, if he refused to
submit to a blood test, his license would be suspended “for the next two to three years.”
Again, defendant contends this was false because refusing to submit to a chemical test
results in a one-year suspension for a first-time DUI offense. (Veh. Code, § 23612,
subd. (a)(1)(D).)
In Moore, supra, 318 P.3d 1133, the Oregon Supreme Court recognized that,
while accurate advisement of the consequences under an implied consent law of refusing
to submit to chemical testing does not mean that submission to a chemical test is coerced,
“failure to disclose accurate information regarding the potential legal consequences of
certain behavior would seem to be a more logical basis for a defendant to assert that his
or her decision to engage in that behavior was coerced and involuntary.” (Id. at p. 1138.)
There, the officer’s admonition to the motorist differed from the Oregon implied consent
law in several respects, yet the Oregon Supreme Court concluded that the officer’s
admonition accurately advised the motorist about the consequences of refusing to submit
to a blood test and did not result in a coerced submission to a chemical test. (Id. at
pp. 1139-1140.)
27
The same is true here. There is nothing in the record to support defendant’s
suggestion that Deputy Robinson intentionally deceived him about the contours of the
implied consent law. Moreover, Deputy Robinson’s admonition, though not entirely
accurate, was not patently false and it did sufficiently inform defendant that because the
deputy suspected defendant of driving under the influence of a drug, and not under the
influence of alcohol or a combination of alcohol and a drug, defendant was required
under the implied consent law to submit to a blood test. Finally, although Deputy
Robinson inaccurately advised defendant that refusing to submit to a blood test would
automatically result in a two- or three-year license suspension, he correctly informed
defendant that his license would in fact be suspended if he refused to submit to a blood
test. As the appellate division recognized in its opinion, failure to strictly follow the
implied consent law does not violate a defendant’s constitutional rights. (Harris, supra,
225 Cal.App.4th at p. Supp. 10, fn. 3, quoting Ritschel v. City of Fountain Valley (2006)
137 Cal. App. 4th 107, 118.)
Under the totality of the circumstances, we conclude that defendant freely and
voluntarily consented to his blood being drawn, and that he was not coerced or tricked
into submitting to the blood test.
4. The Blood Draw Was Conducted in a Reasonable Manner
Finally, defendant contends his blood draw was not conducted in a reasonable
manner. According to defendant, the United States Supreme Court has held that, for a
blood draw to be reasonably performed under the Fourth Amendment, it must be
performed in a hospital or medical environment by medical personnel utilizing “accepted
28
medical practices.” He argues that, because his blood was drawn at a police station and
the record does not contain substantial evidence that it was performed by a medical
professional using accepted medical practices, his blood draw was not reasonably
performed. We conclude otherwise.
In Schmerber, the United States Supreme Court held that “compulsory
administration of a blood test . . . plainly involves the broadly conceived reach of a search
and seizure under the Fourth Amendment.” (Schmerber, supra, 384 U.S. at p. 767.)
Because “the Fourth Amendment’s proper function is to constrain, not against all
intrusions as such, but against intrusions which are not justified in the circumstances, or
which are made in an improper manner,” one question before the court was “whether the
means and procedures employed in taking [the defendant’s] blood respected relevant
Fourth Amendment standards of reasonableness.” (Id. at p. 768.)
The defendant in Schmerber was transported to a hospital because of the injuries
he sustained in a car accident and, “[a]t the direction of a police officer, a blood sample
was . . . withdrawn from petitioner’s body by a physician at the hospital.” (Schmerber,
supra, 384 U.S. at p. 758.) The court had previously observed that drawing blood with a
hypodermic needle was commonplace. “The blood test procedure has become routine in
our everyday life. It is a ritual for those going into the military service as well as those
applying for marriage licenses. Many colleges require such tests before permitting
entrance and literally millions of us have voluntarily gone through the same, though a
longer, routine in becoming blood donors.” (Breithaupt v. Abram (1957) 352 U.S. 432,
436.) The Schmerber court reiterated that observation. “[W]e are satisfied that the test
29
chosen to measure petitioner’s blood-alcohol level was a reasonable one. Extraction of
blood samples for testing is a highly effective means of determining the degree to which
a person is under the influence of alcohol. [Citation.] Such tests are a commonplace in
these days of periodic physical examinations and experience with them teaches that the
quantity of blood extracted is minimal, and that for most people the procedure involves
virtually no risk, trauma, or pain.” (Schmerber, at p. 771, fn. omitted; see id. at p. 771,
fn. 13 [“‘The blood test procedure has become routine in our everyday life’”].)
Finally, the court concluded “the record shows that the test was performed in a
reasonable manner. Petitioner’s blood was taken by a physician in a hospital
environment according to accepted medical practices.” (Schmerber, supra, 384 U.S. at
p. 771.) But the court did not decide whether blood draws were only reasonable when
performed in a hospital. “We are . . . not presented with the serious questions which
would arise if a search involving use of a medical technique, even of the most
rudimentary sort, were made by other than medical personnel or in other than a medical
environment—for example, if it were administered by police in the privacy of the
stationhouse. To tolerate searches under these conditions might be to invite an
unjustified element of personal risk of infection and pain.” (Id. pp. 771-772.)
In McNeely, the defendant was transported to a hospital when he refused to submit
to a breath test. (McNeely, supra, 133 S.Ct. at p. 1557.) At the direction of the police
officer, a hospital lab technician drew the defendant’s blood. (Ibid.) The sole issue in
that case was whether the natural dissipation of alcohol in the bloodstream was sufficient,
in itself, to justify a warrantless blood draw. (Id. at p. 1558.) The court did not decide
30
whether McNeely’s blood draw was performed in a reasonable manner, and it merely
reiterated what it said in Schmerber. (McNeely, at p. 1560.) However, it bears noting
that, while the majority in McNeely recognized that “a police officer must typically
transport a drunk-driving suspect to a medical facility and obtain the assistance of
someone with appropriate medical training before conducting a blood test,” the court did
not hold that the police must always transport the suspect to a hospital or medical facility.
(Id. at p. 1561, italics added.)
Defendant cites no decision that interpreted Schmerber (or McNeely) as mandating
that blood draws must always take place in a hospital or medical facility and that the
People must always establish that the person who conducted the blood draw was properly
licensed. In fact, the appellate courts of this state have uniformly “concluded that a blood
test was not unconstitutional even though the person drawing the blood may not have
been authorized to perform the extraction under applicable statutory provisions and even
though the blood was drawn at a jail rather than at a medical facility. (See People v. Ford
(1992) 4 Cal. App. 4th 32, 34–37 [5 Cal. Rptr. 2d 189] [(Ford)] [blood draw conducted at
police station]; see also People v. Esayian (2003) 112 Cal. App. 4th 1031, 1035, 1037–
1041 [5 Cal. Rptr. 3d 542] [(Esayian)] [drawing of arrestee’s blood by phlebotomist who
was not fully qualified to draw blood under state law for purposes of determining its
alcoholic content did not violate 4th Amend.]; People v. McHugh (2004) 119 Cal. App. 4th
202, 213–214 [14 Cal. Rptr. 3d 142] [same]; People v. Mateljan (2005) 129 Cal. App. 4th
367, 376 [28 Cal. Rptr. 3d 506] [(Mateljan)] [same].)” (People v. Cuevas (2013) 218
Cal. App. 4th 1278, 1284 (Cuevas).)
31
Rather than apply categorical rules to blood draws conducted outside of a hospital
or medical facility, California courts “emphasize the key inquiry is whether ‘the manner
in which the sample was obtained deviated so far from the medical practices found to be
reasonable in Schmerber as to render the seizure constitutionally impermissible.’
([Ford], supra, 4 Cal.App.4th at p. 37; see [Esayian], supra, 112 Cal.App.4th at p. 1040
[noting that whereas the high court in Schmerber ‘express[ed] some doubts about blood
being drawn in the private setting of the police station, it did not attempt to set any
specific rules for blood tests conducted outside the hospital setting’].) Under this
standard, the court considers the overall reasonableness of the blood draw to determine
whether ‘the test conditions subjected [the arrestee] to “an unjustified element of personal
risk of infection or pain.”’ ([Ford], at p. 38; see [Mateljan], supra, 129 Cal.App.4th at
p. 376 [court evaluates whether ‘draws were performed in a manner which . . . create[d]
undue harm or risk . . .’]; People v. Sugarman (2002) 96 Cal. App. 4th 210, 216 [116
Cal. Rptr. 2d 689] (Sugarman) [court inquires whether defendant was exposed ‘to an
unreasonable risk of infection or pain’]; [Esayian], at p. 1041 [stating ‘nothing in this
record . . . justif[ied] an inference that the manner of drawing the blood was unsanitary,
or subjected the suspect to any unusual pain or indignity’].)” (Cuevas, supra, 218
Cal.App.4th at pp. 1284-1285.)
Based on this well-settled law, we reject defendant’s assertion that his blood test
was unreasonable merely because it was conducted in a police station instead of in a
32
hospital or medical facility.5 There is no evidence in the record to suggest that the fact
defendant’s blood was drawn in a police station, by itself, increased the danger that he
would suffer unreasonable pain or risk of infection. (See Ford, supra, 4 Cal.App.4th at
p. 38 [“nothing in this record suggests that the location in which this test occurred was
unsafe or unsanitary or that the personnel present would fail to respond properly in the
unlikely event of a medical problem resulting from the test”].)
Moreover, we reject the suggestion in defendant’s supplemental brief that the
blood draw was unreasonable because he was handcuffed to a chair and that Deputy
Robinson could not have truthfully testified about how the blood draw was conducted
because he was in another room and did not actually witness the blood draw. As already
noted, ante, the trial court made an implied determination that Deputy Robinson was a
credible witness, and that defendant was not credible. We may not disturb that implied
credibility finding. (Tully, supra, 54 Cal.4th at p. 979.) Consequently, we do not credit
defendant’s testimony that his hands were handcuffed behind his back to a chair when the
5 A number of sister state courts have also concluded that Schmerber does not
mandate that blood testing be conducted in a hospital or medical facility. (See, e.g., State
v. Boehm (N.D. 2014) 849 N.W.2d 239, 247 [“A blood test is not per se unreasonable
because it was done at a jail, rather than a hospital, when conducted by a medically
qualified person”]; State v. Johnston (Tex.Crim.App. 2011) 336 S.W.3d 649, 662 [“we
are not convinced that Schmerber’s reasonable manner requirement acts as a per se bar to
blood draws conducted in a non-medical environment. Though a medical environment
may be ideal, it does not mean that other settings are unreasonable under the Fourth
Amendment”]; State v. May (Ariz.Ct.App. 2005) 112 P.3d 39, 41 [relying on, inter alia,
Esayian for the proposition that Schmerber did not categorically rule out blood tests
conducted outside of a medical setting].)
33
phlebotomist drew his blood, and that Deputy Robinson was not in the room and did not
witness the blood draw.
Deputy Robinson testified that when defendant was transported to the Moreno
Valley sheriff’s station, “AFN Coughlin” responded to a call for a blood nurse. Deputy
Robinson testified that AFN Coughlin was a phlebotomist with whom he had previously
worked, and that he watched her draw defendant’s blood. Deputy Robinson saw the
phlebotomist swab the inside of defendant’s right elbow with what appeared to be
disinfectant. The phlebotomist then used what appeared to be a normal, dry hypodermic
syringe, and glass vials with rubber tops that slipped onto the syringe, to take a sample of
defendant’s blood. Deputy Robinson testified that defendant did not resist the attempt to
take his blood sample or otherwise express his unwillingness to give a sample. The
phlebotomist then packaged the blood sample, and Deputy Robinson deposited it in a
blood depository at the station. Other than testify that Deputy Robinson was not present
during the blood draw, and that defendant’s hands were handcuffed behind his back to a
chair, defendant did not testify about how the blood draw was administered and did not
testify that he experienced any pain or discomfort during or after the blood draw.
Although the testimony about defendant’s blood draw was somewhat sparse, we
agree with the appellate division that the method used to extract his blood sample was
reasonable under the Fourth Amendment. The decision in Cuevas is instructive. There,
the defendants were transported to a jail facility or, in one case, to a hospital where the
defendants’ blood samples were taken “either [by] phlebotomists, blood technicians, or
individuals who routinely draw blood.” (Cuevas, supra, 218 Cal.App.4th at p. 1282.)
34
The arresting officers testified that they “observed that the individual drawing blood
cleaned the area before drawing blood and used a needle from a sealed package.” (Ibid.)
There was no evidence that either of the defendants experienced pain or discomfort from
the blood draw. (Ibid.) Finally, the officers testified that they observed the person who
drew the blood bandage the injection area after taking the sample. (Ibid.)
With respect to the person who drew the blood, “in each case the officer testified
the blood draw was performed by a person the officer believed to be a trained
phlebotomist or blood technician. These beliefs were supported either by the officer’s
prior contacts with that person in the context of prior arrestee blood draws, by the
procedure employed by the officer to cause that person to respond to the jail to perform
the blood draw, or . . . by the officer’s account that the person responded to his request
for a phlebotomist at the hospital.” (Cuevas, supra, 218 Cal.App.4th at p. 1286.) The
court concluded the evidence established the defendants’ blood was drawn in a
reasonable manner. “[T]he officers’ testimony confirmed that none of the defendants
exhibited any signs of pain or discomfort during the blood draw procedure; indeed, the
testimony reflects these were routine blood draws consistent either with the officer’s own
experience of having blood drawn or with the officer’s observation of other arrestee
blood draws. Moreover, the testimony reflects the blood draws were conducted in a
cooperative manner, utilizing needles from sealed packages and ensuring the blood
extraction area was cleaned prior to inserting the needle and cleaned and bandaged after
the blood was drawn.” (Ibid.) Viewing the totality of the circumstances, the court
concluded “the officer’s unrebutted testimony shows the blood draw did not expose the
35
defendant to ‘“an unjustified element of personal risk of infection or pain”’ [citations],
and was not performed in a manner which created any ‘undue harm or risk’ to defendant
[citation]. In sum, we are persuaded the blood draws in these cases were conducted in a
constitutionally reasonable manner.” (Ibid.)
So too here. Deputy Robinson testified that defendant’s blood was drawn by a
trained phlebotomist, which was substantiated by his prior experience with her and by the
fact that she responded to the call for a blood nurse. (Cuevas, supra, 218 Cal.App.4th at
p. 1286.) That the People introduced no testimony about the phlebotomist’s
qualifications or certification under state law is irrelevant for purposes of determining
whether defendant’s blood was drawn in a constitutionally reasonable manner.
(Mateljan, supra, 129 Cal.App.4th at pp. 373-374.) Furthermore, Deputy Robinson’s
testimony about how the phlebotomist went about drawing defendant’s blood, while by
no means comprehensive, established that the phlebotomist followed routine procedures
for safely and effectively drawing blood. (Cuevas, at pp. 1282, 1286.) Finally, Deputy
Robinson testified that defendant did not resist the phlebotomist’s attempt to draw his
blood, and neither Deputy Robinson nor defendant testified that defendant experienced
any pain or discomfort. (Id. at p. 1286.) Under the totality of the circumstances, we
conclude defendant’s blood was drawn in a reasonable manner that conformed to the
dictates of the Fourth Amendment.
5. Conclusion
In sum, we conclude that defendant’s blood draw was reasonable under the Fourth
Amendment because actual consent to a chemical test is a valid exception to the warrant
36
requirement, and because defendant freely and voluntarily submitted to the chemical test.
We also conclude that defendant’s blood draw was performed in a reasonable manner
that comports to the Fourth Amendment. Therefore, we conclude the trial court correctly
denied defendant’s motion to suppress.
C. Even If Consent to a Blood Draw Does Not Satisfy the Fourth Amendment,
the Good Faith Exception to the Exclusionary Rule Applies
Even if we were to conclude that a warrantless blood draw may not be justified
under the consent exception to the warrant requirement, and that a warrantless blood
draw is only justified under the exigent circumstances doctrine, we would still affirm the
trial court by applying the good faith exception to the exclusionary rule. First, we reject
the assertion by amici curiae that the United States Supreme Court has already ruled that
the good faith exception does not apply to blood draws taken before McNeely was
decided. Last, we conclude that, at the time of defendant’s blood draw, it was well
settled in California that the natural dissipation of alcohol or drugs in the bloodstream
was a sufficient exigency to support a warrantless blood draw. Therefore, penalizing the
police for reasonably acting pursuant to binding pre-McNeely law will not advance the
purpose of the exclusionary rule by deterring future Fourth Amendment violations.
As an initial matter, we disagree with the appellate division that the People did not
preserve for appeal the assertion of the good faith exception. (Harris, supra, 225
Cal.App.4th at p. Supp. 6, fn. 2.) The People clearly articulated application of the good
faith exception in the written opposition to defendant’s motion to suppress.
Unsurprisingly, the People did not argue application of the good faith exception at the
37
hearing on the motion because the trial court denied the motion after hearing solely from
defendant’s attorney and before the prosecutor had an opportunity to argue. With that
victory in hand, the prosecutor had no reason to argue application of the good faith
exception. Finally, the People argued in their brief in the appellate division, albeit in a
short footnote, that the good faith exception applies. Therefore, we conclude the People
sufficiently preserved the good faith exception argument for appeal.
1. The United States Supreme Court Has Not Decided Whether the Good
Faith Exception to the Exclusionary Rule Applies to Pre-McNeely Blood Draws
Citing Aviles v. Texas (2014) ___ U.S. ___ [134 S. Ct. 902], amicus curiae CDLA
argues that the United States Supreme Court has already decided that the good faith
exception to the exclusionary rule is inapplicable to warrantless blood draws taken before
McNeely. We disagree.
In Aviles v. State (Tex. App. 2012) 385 S.W.3d 110, the Texas Court of Appeals
held that a warrantless, nonconsensual blood draw did not violate the Fourth Amendment,
and the court affirmed denial of a motion to suppress. (Id. at pp. 115-116.) The court
had no occasion to decide whether the good faith exception to the exclusionary rule
should apply. Nine months after it decided McNeely, the United States Supreme Court
granted a petition for writ of certiorari filed by Aviles, vacated the judgment, and
remanded the case to the Texas Court of Appeals “for further consideration in light of
[McNeely].” (Aviles v. Texas, supra, 134 S. Ct. 902.) On remand, the Texas Court of
Appeals held that the blood draw violated the Fourth Amendment, and the court reversed
denial of the suppression motion. (Aviles v. State (Tex. App. 2014) 443 S.W.3d 291.)
38
Again, the Texas Court of Appeals did not address the good faith exception to the
exclusionary rule.
Contrary to the suggestion from CDLA, the United States Supreme Court’s order
in Aviles v. Texas, supra, 134 S. Ct. 902, did not decide—implicitly or otherwise—
whether the good faith exception applies to warrantless blood draws conducted before
McNeely. In fact, the United States Supreme Court made no ruling whatsoever on the
merits. Orders such as the one in Aviles v. Texas, “colloquially termed ‘GVRs,’ meaning
‘granted, vacated, and remanded,’ do not resolve a case. [Citation.]” (Vazquez-Valentin
v. Santiago-Diaz (1st Cir. 2006) 459 F.3d 144, 147-148.) A GVR order is “not a ‘final
determination on the merits.’ [Citation.] It simply indicat[es] that, in light of
‘intervening developments,’ there [is] a ‘reasonable probability’ that the [lower court]
[will] reject a legal premise on which it relied and which may affect the outcome of the
litigation. [Citation.]” (Tyler v. Cain (2001) 533 U.S. 656, 666, fn. 6.) “When the
Supreme Court grants a GVR, the lower court to which the case is remanded ‘is free to
determine whether its original decision is still correct in light of the changed
circumstances or whether a different result is more appropriate.’ [Citation.]” (Diaz v.
Stephens (5th Cir. 2013) 731 F.3d 370, 378.) In other words, “[i]n issuing a GVR, the
Court does not determine that the intervening event necessarily changes the outcome in
39
the case, just that it might.”6 (Bruhl, The Supreme Court’s Controversial GVRs—And an
Alternative (2009) 107 Mich. L.Rev. 711, 712.)
Nor did the GVR in Aviles v. Texas, supra, 134 S. Ct. 902, mandate the result in
Weems v. State (Tex. App. 2014) 434 S.W.3d 655 (Weems), as suggested by CDLA. In
that case, the Texas Court of Appeals held that blood drawn in violation of the Fourth
Amendment, as interpreted by McNeely, had to be suppressed under Texas law because
“there is no such good faith exception found in Texas’s exclusionary rule—and Texas
can provide more protection to a suspect than federal law.” (Weems, at p. 666.) In any
event, Weems has no application here. Unlike Texas, in California, suppression of
evidence and the good faith exception to the exclusionary rule are interpreted under
federal constitutional standards. (Cal. Const., art. I, § 28, subd. (f)(2); People v. Schmitz
(2012) 55 Cal. 4th 909, 916; People v. Willis (2002) 28 Cal. 4th 22, 29-30.)
6 Some state courts have treated the GVR in Aviles v. Texas, supra, 134 S. Ct. 902,
as authoritative precedent. For example, the Nevada Supreme Court recently held that,
although the GVR in Aviles v. Texas “appears to hold limited precedential value on its
own,” it undermined the state’s argument in that case that a motorist’s consent to a blood
draw satisfied the Fourth Amendment. (Byars v. State (Nev. Oct. 16, 2014) 336 P.3d
939, 946.) For the reasons stated in the text, we respectfully disagree with the Nevada
Supreme Court and decline to give the GVR in Aviles v. Texas more weight than the
United States Supreme Court itself assigns to GVRs. (Accord, State v. Won (Hawai’i Ct.
App. 2014) 332 P.3d 661, 682, fn. 28 [“Won reads the Supreme Court’s action in Aviles
as indicating that there is no ‘implied consent’ exception to the warrant requirement.
However, absent a more definitive statement by the United States Supreme Court, we
decline to read the Court’s action in Aviles as a decision addressing the merits of implied
consent statutes or the issues presented in Won’s case”].)
40
2. The Good Faith Exception Applies to Warrantless Blood Draws
Conducted Under Well-Settled and Binding California Precedent Predating McNeely
“The [Fourth] Amendment says nothing about suppressing evidence obtained in
violation of [its] command. That rule—the exclusionary rule—is a ‘prudential’ doctrine,
[citation], created by this Court to ‘compel respect for the constitutional guaranty.’
[Citations.] Exclusion is ‘not a personal constitutional right,’ nor is it designed to
‘redress the injury’ occasioned by an unconstitutional search. [Citations.] The rule’s sole
purpose, we have repeatedly held, is to deter future Fourth Amendment violations.
[Citations.] Our cases have thus limited the rule’s operation to situations in which this
purpose is ‘thought most efficaciously served.’ [Citation.] Where suppression fails to
yield ‘appreciable deterrence,’ exclusion is ‘clearly . . . unwarranted.’ [Citation.]”
(Davis v. United States (2011) 564 U.S. ___ [131 S. Ct. 2419, 2426-2427] (Davis).)
The high court has held that the decision whether to suppress evidence obtained in
violation of the Fourth Amendment “must also account for the ‘substantial social costs’
generated by the rule,” because “[e]xclusion exacts a heavy toll on both the judicial
system and society at large. [Citation.]” (Davis, supra, 131 S.Ct. at p. 2427.) “Our cases
hold that society must swallow this bitter pill when necessary, but only as a ‘last resort.’
[Citation.] For exclusion to be appropriate, the deterrence benefits of suppression must
outweigh its heavy costs. [Citations.]” (Ibid.) In a series of cases starting with United
States v. Leon (1984) 468 U.S. 897 (Leon), the United States Supreme Court concluded
“that the deterrence benefits of exclusion ‘var[y] with the culpability of the law
enforcement conduct’ at issue. [Citation.] When the police exhibit ‘deliberate,’
41
‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights, the deterrent
value of exclusion is strong and tends to outweigh the resulting costs. [Citation.] But
when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is
lawful, [citation], or when their conduct involves only simple, ‘isolated’ negligence,
[citation], the ‘“deterrence rationale loses much of its force,”’ and exclusion cannot ‘pay
its way.’ [Citation.]” (Davis, at pp. 2427-2428.)
In Davis, the police searched the passenger compartment of a vehicle incident to
the arrest of the driver and the defendant, who was a passenger, and found a revolver in
the defendant’s jacket pocket. (Davis, supra, 131 S.Ct. at p. 2425.) At the time of the
search, binding precedent from the United States Court of Appeals for the Eleventh
Circuit interpreted New York v. Belton (1981) 453 U.S. 454 (Belton) as establishing a
bright-line rule permitting automobile searches incident to the arrest of a recent occupant
regardless of whether the occupant was within reaching distance of the vehicle. (Davis,
at p. 2426.) While the defendants’ appeal from the denial of his suppression motion was
pending before the Eleventh Circuit, the United States Supreme Court held in Arizona v.
Gant (2009) 556 U.S. 332 (Gant) that Belton did not create a bright-line rule permitting
automobile searches, and the court instead held that an automobile search may only be
conducted incident to the arrest of a recent occupant if (1) the arrestee is within reaching
distance of the vehicle during the search, or (2) the police have reason to believe that
evidence relevant to the crime of arrest will be found inside the vehicle. (Davis, at
pp. 2425-2426.) The Eleventh Circuit subsequently ruled that the search in the Davis
42
case was unlawful under Gant, but applied the good faith exception to the exclusionary
rule and declined to suppress the revolver. (Davis, at p. 2426.)
The United States Supreme Court held “that searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule.” (Davis, supra, 131 S.Ct. at pp. 2423-2424; see id. at p. 2434.) The search in that
case was conducted before the Supreme Court decided Gant and, although the search
turned out to be unconstitutional, the police “followed the Eleventh Circuit’s . . .
precedent to the letter” and acted “in strict compliance with then-binding Circuit law and
[were] not culpable in any way. [Citation.]” (Davis, at p. 2428.) “Police practices
trigger the harsh sanction of exclusion only when they are deliberate enough to yield
‘meaningfu[l]’ deterrence, and culpable enough to be ‘worth the price paid by the justice
system.’ [Citation.] The conduct of the officers here was neither of these things.” (Ibid.)
Nor did the high court conclude that the officers “violat[ed] Davis’s Fourth Amendment
rights deliberately, recklessly, or with gross negligence,” or that the “case involv[ed] any
‘recurring or systemic negligence’ on the part of law enforcement. [Citation.]” (Ibid.)
The high court also noted that “in 27 years of practice under Leon’s good-faith
exception, we have ‘never applied’ the exclusionary rule to suppress evidence obtained as
a result of nonculpable, innocent police conduct. [Citation.]” (Davis, supra, 131 S.Ct. at
p. 2429.) Therefore, penalizing the officers in that case for following the Eleventh
Circuit’s error would not logically deter future Fourth Amendment violations. (Ibid.)
“About all that exclusion would deter in this case is conscientious police work. . . . An
officer who conducts a search in reliance on binding appellate precedent does no more
43
than ‘“ac[t] as a reasonable officer would and should act”’ under the circumstances.
[Citation.]” (Id. at p. 2429.)
The same is true here. As the appellate division correctly stated, “California cases
uniformly interpreted Schmerber to mean that no exigency beyond the natural
evanescence of intoxicants in the bloodstream, present in every DUI case, was needed to
establish an exception to the warrant requirement. [Citations.]” (Harris, supra, 225
Cal.App.4th at p. Supp. 5.) Our Supreme Court first addressed Schmerber in People v.
Superior Court (Hawkins) (1972) 6 Cal. 3d 757 (Hawkins): “It is clear that the Fourth
Amendment does not bar a compulsory seizure, without a warrant, of a person’s blood for
the purposes of a blood alcohol test to determine intoxication, provided that the taking of
the sample is done in a medically approved manner, is incident to a lawful arrest, and is
based upon the reasonable belief that the person is intoxicated.” (Id. at p. 761, citing
Schmerber, supra, 384 U.S. at pp. 766-772.) “Schmerber recognizes that once the
suspect is arrested, a seizure incident thereto may be properly conducted without a
warrant, since the rapid dissipation of the alcohol would make the delay involved in
obtaining a search warrant unnecessary and unjustifiable.” (Hawkins, at p. 765, fn. 7.)
After Hawkins, our Supreme Court and this state’s intermediate appellate courts
uniformly reiterated that a warrantless blood draw was justified under the Fourth
Amendment if “the arresting officer has reasonable cause to believe the arrestee is
intoxicated” with alcohol (Mercer v. Department of Motor Vehicles (1991) 53 Cal. 3d
753, 757), and those courts did not require any additional showing of exigency to excuse
the lack of a warrant. (See, e.g., Sugarman, supra, 96 Cal.App.4th at p. 214; Ford, supra,
44
4 Cal.App.4th at p. 35; see generally cases cited in Harris, supra, 225 Cal.App.4th at p.
Supp. 5.)
In People v. Ritchie (1982) 130 Cal. App. 3d 455 [Fourth Dist., Div. Two], this
court extended that rule to drivers arrested on suspicion of driving under the influence of
a drug. We rejected the trial court’s conclusion that, for purposes of warrantless blood
draw, “a distinction exists between the ingestion of alcohol and the ingestion of drugs.
We detect no appreciable difference. It is a matter of common knowledge that from the
moment of ingestion the body begins to eliminate drugs from the system. While the rate
of dissipation may depend on many factors, one, of course, being the type of drug
involved, nevertheless, the amount of drug in the blood stream does diminish with the
passage of time.” (Id. at p. 458, fn. omitted.) “We can find no basis for a requirement
that law enforcement officials ascertain the nature of the drug ingested in order to
determine just how fast it will dissipate. A contrary rule would necessitate that in cases
such as this not only would the officer have to identify the drug but some expert
testimony would have to be presented as to the rate of dissipation of that particular drug.
This appears to be completely unreasonable and places an unnecessary burden on the
prosecution.” (Id. at p. 459.)
45
As the appellate division recognized, McNeely “repudiated the long-standing
California interpretation of Schmerber.” (Harris, supra, 225 Cal.App.4th at p. Supp. 6.)
After McNeely, it is now clearly established that the natural dissipation of alcohol or
drugs in the bloodstream is not a sufficient exigency to justify a warrantless blood draw,
and the People must show, on a case-by-case basis, that under the totality of the
circumstances exigent circumstances excused the failure to obtain a search warrant.
(McNeely, supra, 133 S.Ct. at pp. 1563, 1568.) However, the police in this case
conducted a warrantless blood draw in good faith reliance of then-binding California
authority which held that no additional exigent circumstances were required. The record
contains no evidence that Deputy Robinson acted “deliberately, recklessly, or with gross
negligence,” or that this “case involv[ed] any ‘recurring or systemic negligence’ on the
part of law enforcement” (Davis, supra, 131 S.Ct. at p. 2428) to act in contravention of
binding law mandating additional exigent circumstances before performing a warrantless
search. The police were in no way culpable for following the law of this state that had
been settled for just over 40 years. To penalize the police in this case for the courts’
error, which was only brought to light after defendant’s blood draw, would not logically
serve to deter future Fourth Amendment violations. (Davis, at p. 2429.) Therefore,
because Deputy Robinson acted “in objectively reasonable reliance on binding appellate
46
precedent” interpreting Schmerber, the search here is not subject to the exclusionary
rule.7 (Davis, at pp. 2423-2424.)
Defendant contends the good faith exception to the exclusionary rule cannot be
applied here because Deputy Robinson was not acting in objectively reasonable reliance
of binding precedent. According to defendant, the relevant binding precedent in this case
was Schmerber, which, he contends, always required something more than the natural
dissipation of alcohol or drugs in the bloodstream to justify a warrantless search. He
argues “there can never be reasonable reliance on State law that clearly disregards United
States Supreme Court opinions regarding federal constitutional matters . . . .”
Defendant’s argument is based on the assumption that, even before McNeely,
Schmerber was universally recognized as requiring an additional showing of exigent
circumstances on a case-by-case basis that a warrant could not be timely obtained and
that the mere dissipation of alcohol or drugs in the bloodstream did not establish a per se
exigency. Not so. In McNeely, the majority concluded that Schmerber had not set forth a
7 Our colleagues in three other Courts of Appeal have similarly concluded that
warrantless blood draws conducted in the pre-McNeely era were subject to the good faith
exception to the exclusionary rule because the officers reasonably relied on binding
California precedent permitting such tests without an additional showing of exigency.
(People v. Youn (2014) 229 Cal. App. 4th 571, 579; People v. Rossetti (2014) 230
Cal. App. 4th 1070, 1076-1077; People v. Jones (2014) 231 Cal. App. 4th 1257, 1263-
1265.)
Courts from other jurisdictions have also applied the good faith exception as
applied in Davis and concluded that evidence obtained through pre-McNeely warrantless
blood draws could not be suppressed. (See, e.g., State v. Edwards (S.D. 2014) 853
N.W.2d 246, 252-254; State v. Reese (Wis.Ct.App. 2014) 844 N.W.2d 396, 401-403
[applying state law precedent based on Leon and its progeny]; United States v. Lechliter
(D. Md. 2014) 3 F. Supp. 3d 400, 406-409.)
47
per se exigency based on the natural dissipation of alcohol in the bloodstream and,
instead, held that the totality of the circumstances established exigent circumstances for
the warrantless blood draw in that case. (McNeely, supra, 133 S.Ct. at pp. 1559-1560.)
But that was not the universally accepted interpretation of Schmerber before McNeely,
and the high court granted certiorari in McNeely for the express purposes of resolving a
split in authority on that very question. (McNeely, at p. 1558 & fn. 2.)
3. Conclusion
In sum, we conclude that the United States Supreme Court has not yet addressed
whether the good faith exception to the exclusionary rule applies to warrantless blood
draws taken before McNeely. Further, such blood draws conducted in good faith reliance
of binding California precedent, which permitted warrantless blood draws based solely on
a showing of probable cause of intoxication and the natural dissipation of alcohol or
drugs in the bloodstream, are subject to the good faith exception. Because Deputy
Robinson acted in objectively reasonable reliance on binding California precedent when
he conducted defendant’s warrantless blood draw, we conclude this case is not governed
by the exclusionary rule.
48
IV.
DISPOSITION
The order denying defendant’s motion to suppress is affirmed.
CERTIFIED FOR PUBLICATION
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
49