Carleton v. Superior Court , 216 Cal. Rptr. 890 ( 1985 )

Opinion

WIENER, J.

Robert Scott Carleton was charged with driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), felony hit and run (Veh. Code, § 20001) and two counts of vehicular manslaughter (Veh. Code, § 23153, subds. (a) and (b)). After his arrest, he was taken to the Vista Detention Facility (jail) and was asked to provide a sample of blood, breath or urine so his blood alcohol level could be determined. (Veh. Code, § 13353.) Carleton refused. A blood sample was forcibly extracted from his arm and the later test showed that approximately two hours after being stopped Carleton’s blood/alcohol (BA) was .21. He unsuccessfully moved to suppress the blood and related test results on the basis (1) there were no exigent circumstances excusing the police from getting a warrant or (2) the circumstances surrounding the taking of blood violated his due process rights. Carleton then sought mandate or prohibition and requested a stay. We granted the stay pending response from the People and disposition of the matter. Believing there was substantial evidence to support the ruling, we, with Justice Staniforth dissenting, denied the petition and vacated the stay. (People v. Ryan (1981) 116 Cal.App.3d 168, 183 [171 Cal.Rptr. 854], petn. for hg. den., Apr. 1, 1981.) Carleton then successfully petitioned for a hearing in the California Supreme Court. That court transferred the case to itself and then retransferred it here directing us to issue an alternative writ. After argument and further briefing we again deny Carleton’s petition.

I

Carleton claims that factually the “emergency doctrine” of People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757 [100 Cal.Rptr. 281, 493 P.2d 1145] cannot apply to him. Carleton’s argument is tied to his conclusion that lacking an emergency a search warrant must be obtained before blood may be Withdrawn from a suspect arrested for felony drunk driving. Recognizing his conclusion is inconsistent with Hawkins, Carleton asserts we must deviate from precedent to properly accommodate the technological advances since 1972 when Hawkins was decided. Carleton argues the record here illustrates that a telephonic search warrant can be obtained within minutes eliminating any risk of losing the evidence. Carleton also explains that increased knowledge enables experts to accurately extrapolate the BA to the time of the offense where the test is taken within a few hours after the incident giving rise to the arrest. We are unpersuaded.

Hawkins holds a search warrant is not required provided the defendant is under arrest, probable cause exists for taking the blood and the withdrawal is accomplished in a medically approved manner. Thus, our Supreme Court has created an exception to the need for a warrant following a felony drunk driving arrest by permitting blood to be withdrawn incidental to the lawful arrest. “It is clear . . . 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 ... 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 . . . the person is intoxicated.” (Hawkins, at p. 761.)

Even if Carleton were correct and Hawkins established an “emergency doctrine” we would hold an emergency was present on the facts of this case. Although it is theoretically possible to determine a person’s BA level at the time he was driving, following the driver’s arrest, there are numerous variables such as weight, or time and content of last meal which may affect the rate at which the alcohol dissipates. Parties whose blood alcohol level was .10 at the time of arrest would test well below that figure if, as would have been the case here had a warrant been sought, they were tested four hours after being stopped. The People have a legitimate and important interest in preventing the destruction of evidence by obtaining a sample as soon as possible. Accordingly, we conclude the facts here present the type of emergency situation where there is no need for a warrant. There was substantial evidence Carleton was intoxicated. The blood was taken after he was lawfully arrested.

II

Carleton also argues the manner of obtaining his blood sample violated due process.

Whether blood may be taken from a defendant without his or her consent and used as evidence against him in his criminal trial has been a hotly debated question. Dissenting in Breithaupt v. Abram (1957) 352 U.S. 432 [1 L.Ed.2d 448, 77 S.Ct. 408], Chief Justice Warren had no hesitancy in asserting that lacking consent a defendant’s blood test was inadmissible. “[I]t does not follow from the fact that a technique is a product of science or is in common, consensual use for other purposes that it can be used to extract evidence from a criminal defendant without his consent. Would the taking of spinal fluid from an unconscious person be condoned because such tests are commonly made and might be used as a scientific aid to law enforcement? [1] Only personal reaction to the stomach pump and the blood test can distinguish them. To base the restriction which the Due Process Clause imposes on state criminal procedures upon such reactions is to build on shifting sands. We should, in my opinion, hold that due process means at least that law-enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids, whether they contemplate doing it by force or by stealth.” (Id., at p. 442 [1 L.Ed.2d at pp. 454-455].) The Chief Justice, however, did not succeed in persuading his brethren. A majority in Breithaupt decided there was nothing “brutal” or “offensive” in the taking of a sample of blood when done in a medically approved fashion. “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. . . . We, therefore, conclude that a blood test taken by a skilled technician is not such ‘conduct that shocks the conscience,’ [citation] nor such a method of obtaining evidence that it offends a ‘sense of justice,”’ [citation.] (Id., at pp. 436-437 [1 L.Ed.2d at pp. 451-452].)

The same issue was examined further in Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct. 1826]. There, at the direction of a police officer Schmerber’s blood sample was taken by a physician at the hospital. Schmerber unsuccessfully argued admitting the blood denied him his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments. Schmerber reiterated that the withdrawal of blood “did not offend ‘that “sense of justice” of which we spoke in Rochin v. California [1952] 342 U.S. 165’ . . . and nothing in the circumstances of this case or in supervening events persuades us that this aspect of Breithaupt should be overruled.” (Id., at p. 760 [16 L.Ed.2d at p. 913], fn. omitted.)

Recently in Winston v. Lee (1985) 470 U.S. — [84 L.Ed.2d 662, 105 S.Ct. 1611] the United States Supreme Court had occasion to review Schmerber in a context where the People proposed to perform surgery on the defendant to remove a bullet lodged under his left collarbone. Although a unanimous court held this compelled surgical intrusion into an individual’s body for evidence was unreasonable under the Fourth Amendment (id., at p. — [84 L.Ed.2d at p. 672, 105 S.Ct. at p. 1620]), it again repeated the language in Schmerber quoting Breithaupt emphasizing the blood test procedure is routine. Taking blood must be “contrasted sharply with the practice in Rochin v. California 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which police officers broke into a suspect’s room, attempted to extract narcotics capsules he had put into his mouth, took him to a hospital, and directed that an emetic be administered to induce vomiting. . . . Rochin recognizing the individual’s interest in ‘human dignity’ . . . held the search and seizure unconstitutional under the Due Process Clause.” (Winston, at p. — [84 L.Ed.2d at p. 670, 105 S.Ct. at pp. 1617-1618, fn. 5].)

This lengthy introduction is for the purpose of emphasizing the substantial difference between taking sufficient blood for a blood test and the unconstitutional conduct condemned in Rochin. Conceptually here the taking of Carleton’s blood sample for the test was not constitutionally forbidden. (People v. Duroncelay (1957) 48 Cal.2d 766, 770 [312 P.2d 690]; People v. Ryan, supra, 116 Cal.App.3d at pp. 181-183; People v. Brannon (1973) 32 Cal.App.3d 971 [108 Cal.Rptr. 620]; People v. Fite (1968) 267 Cal.App.2d 685, 690-691 [73 Cal.Rptr. 666].) It is only if Carleton’s resistance to the test resulted in excessive police force that the possibility of unconstitutional conduct arises. Law enforcement must act reasonably and use only that degree of force which is necessary to overcome a defendant’s resistance in taking a blood sample.¹ Even where necessary to obtain a blood sample police may not act in a manner which will “shock the conscience.” A defendant’s arbitrary refusal to submit to a blood test will not excuse unlawful police conduct. It is within this legal framework that we must determine whether there is substantial evidence to support the court’s findings the police acted lawfully.

Ill

A

We approach this factual inquiry mindful that a trial court’s Penal Code section 1538.5 ruling involves a two-step process. In the first step, a trial court makes factual findings to which we must give proper deference. “ ‘[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’” (People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].) It is only with reference to the second step, i.e., the legal effect of the factual findings that we can exercise our independent judgment. (Id., at p. 597.)

B

Chronologically the events relating to Carleton’s arrest and the later withdrawal of his blood occurred within three separate periods. The first occurred immediately following his arrest when he was taken to what the officers referred to as a receiving cell, the sallyport, of the jail; the second is when Carleton was taken to an isolation or safety cell where his blood was withdrawn; the last is when he was left alone in the safety cell and allegedly beaten. Since Carleton’s argument is directed solely to what occurred during the withdrawal of his blood, evidence of what occurred during this last period is legally irrelevant to that issue. Events during this final period may not be used to blur the facts of the earlier periods before and during the taking of Carleton’s blood sample.

C

Carleton’s Penal Code section 1538.5 motion was decided on both the evidence contained in the transcript of the preliminary hearing and live testimony in the superior court.

The preliminary hearing transcript contains the testimony of California Highway Patrol Officers Harvey L. Heaton (Heaton) and Charles F. George (George). Heaton arrested Carleton; George investigated the accident. It also contains the testimony of sheriff’s deputies Sergeant Robert James Plumbley (Plumbley), Scott Miller (Miller) and Norman Belstering (Belstering). The defense called Plumbley, Miller, Belstering and George.

The record of that hearing establishes Carleton was combative. Because of Carleton’s resistance it was necessary for Plumbley to hold Carleton in what he described as a “carotid-restraint position, but without carotid unconsciousness I had one deputy on [Carleton’s] left arm, one deputy on his right arm, and one deputy on each leg.” Except for this force every witness denied Carleton was either physically or verbally abused.

D

The live testimony adds a further dimension to what occurred. The People called Sheriff’s Deputy Dan William Jopes (Jopes) and nurse Mary Ellen Pedersen (Pedersen). The defendant called Plumbley, Heaton, Carleton, Roy Gilbert (Gilbert) and Elizabeth Ann Reilly (Reilly).

Jopes testified he saw Carleton scuffling with Plumbley in the sallyport. Carleton was neither handcuffed nor shackled. Jopes restrained Carleton’s left hand to keep him from striking anyone. At no time did he ever pull or push Carleton’s left arm behind his back. No person struck, hit or otherwise physically abused Carleton.

Pedersen is an experienced registered nurse. She took Carleton’s blood sample. When she first saw Carleton in the sallyport his clothes were all rumpled, he was extremely hostile, refused to answer questions, and refused to give his arm to the deputy to apply a wristband. The deputies tried to secure him so that his blood could be safely withdrawn. The actual withdrawal of the blood sample took just a few seconds. During this period of time Carleton was conscious. The blood was removed in a medically approved manner. Pedersen did not see anyone strike or abuse Carleton in any manner.

Plumbley and Heaton testified to essentially the same facts to which they had testified earlier in the preliminary hearing.

Carleton gave a different version of the events. He said that when he refused to hold his arm out through the bars a CHP officer “stuck it out and the deputy sheriff placed me in a headlock, and two other officers restrained my legs.” Carleton said he was unable to physically resist because the officers had secured all of his limbs. The blood was taken from his right arm when he was facing the floor. After the blood was removed Carleton said he received a blow to the head by an officer who had been holding him in a headlock. He was then led away by six officers and placed into a safety cell. In the safety cell he was forced to the ground, hit in the face and kicked in the ribs.

Gilbert and Reilly testified that when they saw Carleton shortly after he was released, his left eye was black and blue, there was an open cut below his eye on the tip of the cheek bone. His face was swollen on both sides and he was unable to move his left shoulder.

E

Reviewing the facts the court found Carleton aggressively resisted the police requiring the officers to use a temporary carotid restraint for four or five seconds during which Carleton became limp. The court said this was the only time Carleton cooperated. The court found Carleton’s active resistance required six law enforcement officers to control him.

The court disbelieved Carleton and rejected his testimony that he was required to place his arm through the bars of the cell. The court found Carleton’s blood was withdrawn in the room adjacent to the sallyport when he was placed face down with police officers holding all four extremities essential for withdrawal of Carleton’s blood sample in a medically approved fashion. The police acted reasonably since Carleton was a “threat to their own security.” No police officer struck the defendant during or before the blood was withdrawn.

The trial court’s statements reflect its reading and consideration of People v. Kraft (1970) 3 Cal.App.3d 890 [84 Cal.Rptr. 280], In Kraft the court excluded the blood sample because the police used excessive force. The court nonetheless opined, “The driver accused of drunkenness is, if guilty, typically recalcitrant, obstreporous, and—not infrequently—belligerent. Greater restraints are necessary and, we think, to be condoned.” (Id., at p. 899.) Here when the trial court compared the facts before it to the facts of Kraft it said:

“Unlike Kraft wherein the court found that the defendant was defensive, and where the court found that the conduct of the officers was aggressive beyond all need, the court here finds that the amount of force used to assist the nurse in drawing the blood sample was necessary under the circumstances and otherwise generally reasonable.

“From the evidence before me, I find that in sum, considering the totality of the circumstances, the conscience of the court is not shocked, that the conduct of the police officers, although they had to use considerable strength and restraint on the defendant, was necessary because the defendant, himself, was resistive and aggressive. And, of course, they had to steady the one arm because any movement of that arm during the drawing of the blood, of course, would endanger the defendant by perhaps breaking a needle or causing some other injury to his arm, and, of course, they certainly didn’t want that to happen.”

IV

The factual record supports the court’s findings. The more difficult question is whether the court was legally correct in deciding the police conduct was lawful.

The degree of force necessary to overcome a defendant’s resistance to the taking of a blood sample turns on the size and strength of the individual defendant. Less force will be necessary to restrain the proverbial 98-pound weakling. Considerably more force will be required to subdue the 280-pound weight lifting champion. At the outer extremes it may be impossible to control such physical behemoths without the use of tranquilizers propelled from dart guns similar to those used by veterinarians to pacify large animals. Such intrusions on humans would, of course, be constitutionally objectionable.

Here scientific assistance was unnecessary. Carleton was controlled by six persons all of whom were necessary to permit the withdrawal of his blood in a medically approved fashion. (See People v. Ryan, supra, 116 Cal.App.3d at p. 183 [defendant restrained by five police officers while a technician removed the blood sample].) Although this degree of force may approach the brink of excessiveness, it was not excessive. Carleton’s self-induced brief physical restraint before and during the withdrawal of a blood sample is not conscience shocking.

Expert testimony on the defendant’s blood alcohol at the time of driving is powerful evidence in a drunk driving case. Although the refusal to take a blood alcohol test may be used in court against the defendant, the impact of such refusal cannot be equated with the strength of direct evidence on that issue. Absent a clear legislative mandate giving a defendant absolute control of whether a blood alcohol test may be obtained, the lack of such evidence should not turn on the degree of a defendant’s cooperation with a premium given to the more obstreperous drunk driver who is more successful in forcibly resisting the withdrawal of a blood sample. This should not suggest we would ever approve the use of unconstitutional means to accomplish lawful ends. It is only to reflect the reality that to restrain a defendant reasonable force may be necessary to properly withdraw a blood sample from an actively resisting defendant. On the facts here we hold the court correctly admitted the blood test.

Disposition

Writ denied.

Work, J., concurred.

1 At oral argument we asked for supplemental briefing on the effect of Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70 [177 Cal.Rptr. 566, 634 P.2d 917] on Schmerber (and People v. Duroncelay, supra, 48 Cal.2d 766). We were concerned with language in Hernandez suggesting that Vehicle Code section 13353 was the legislative response to Schmerber permitting the defendant’s refusal to take a blood test as barring further efforts to do so forcibly. (See Hernandez, supra, 30 Cal.3d at p. 77.) After reviewing the authorities presented including but not limited to People v. Ryan, supra, 116 Cal.App.3d 168, we conclude that there is no reason to deviate from existing precedent.

“[T]he desirability of obtaining blood samples in a noncoercive manner by one of the tests provided for in section 13353 may not be equated with constitutionality [citation]. It is well established that the government may utilize the results of chemical analysis performed upon a blood sample forcibly removed provided that (a) the removal is done in a reasonable, medically approved manner; (b) is incident to the defendant’s arrest; and (c) is based upon the reasonable belief that the person is intoxicated. [Citations.]

“. . . As our Supreme Court repeatedly emphasized, the taking of the defendant’s blood for an alcohol test in a medically approved manner did not constitute brutality or shock the conscience even if it takes place against the will of the defendant and that in such circumstance the nonconsenting defendant may not well complain of denial of due process under the rule pronounced in Rochin v. California, supra, 342 U.S. 165. [Citations.]” (Ryan, supra, 116 Cal.App.3d at pp. 182-183.)