Metropolitan News-Enterprise


Tuesday, January 17, 2017


Page 1


C.A. Upholds Deputy P.D.’s Driver’s License Suspension

Panel Says U.S. Supreme Court Decision Barring Unconsented Warrantless Blood Tests

In Absence of Exigent Circumstances Doesn’t Excuse Refusal to Provide Breath Sample


By a MetNews Staff Writer


The Fourth District Court of Appeal has spurned a Riverside deputy public defender’s bid to overturn a one-year suspension of her driver’s license for failing to submit to a chemical test to determine her blood alcohol content, declaring that she’s wrong in her assertion that she complied with the implied consent law by agreeing to have her blood drawn—but only on condition that officers first obtain a search warrant.

Absent the securing of such a warrant, Div. Two held Thursday, the duty arose on the part of the suspect to submit to a breath test.

The panel on Thursday affirmed the denial of Bernice Espinoza’s petition for a writ of administrative mandamus challenging the Department of Motor Vehicles’ yanking of her license. The court, in an opinion by Justice Art McKinster, rejected Espinoza’s interpretation of the U.S. Supreme Court’s 2013 opinion in Missouri v. McNeely.

There, Justice Sonia M. Sotomayor said, writing for the majority:

“The question presented here is 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. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.”

Espinoza—after being stopped by a California Highway Patrol officer for talking on a cellphone while driving, and being asked to step out of her automobile because the strong scent of alcohol was detected—repeatedly cited McNeeley to officers who arrived on the scene, insisting that as a deputy public defender, she knew the law.

After being placed under arrest based on officers’ observations of her, she said she would submit to a blood test “pursuant to McNeely,” and insisted that officers obtain a “subpoena,” which they took to mean a search warrant. CHP Officer Oscar Gonzalez (since deceased) advised Espinoza that such warrants were sought only in felony DUI cases.

No warrant was obtained and no blood was drawn.

Breath-Test Alternative

McKinster agreed with Espinoza that, under McNeely, Highway Patrol officers “could not force Espinoza to submit to a blood test against her will unless they obtained a warrant or showed there were exigent circumstances that justified a warrantless search.” He pointed out, however, that under the implied consent statute, an alternative to a blood test is giving a breath sample.

(A third alternative, of a urine sample, originally provided for, has been legislatively scratched).

The jurist made note of the U.S. Supreme Court’s decision last year in Birchfield v. North Dakota, remarking:

“[A]s the Supreme Court clearly held in Birchfield, the Fourth Amendment does not prohibit the police from forcing a motorist to submit to a warrantless breath test incident to his or her arrest, the motorist has no right to refuse to submit to a breath test or to condition his or her submission on the police obtaining a warrant, and the motorist’s refusal to submit to the breath test may be the basis of criminal penalties….In light of that clear holding, we conclude refusal to submit to a breath test incident to arrest may also be the basis of imposing civil penalties under the implied consent law, including suspension or revocation of the motorist’s driver’s license.”

Illusory Right

McKinster recited that at oral argument, Espinoza’s lawyer contended that Espinoza had a right, under McNeely, to a blood test pursuant to a warrant, and when Gonzalez failed to obtain that warrant, she had no duty to submit to a breath test, for otherwise, the right established by McNeely would be illusory.

The justice responded:

McNeely did not confer an affirmative or positive right on motorists to demand a blood test with a warrant.  Instead, McNeely conferred a passive or negative right on motorists to be free from warrantless, coerced blood tests unless the police can establish the existence of exigent circumstances. When Gonzalez informed Espinoza that, under the CHP’s policy, he would not obtain a warrant and that a forced blood test would not be administered, Gonzalez in fact honored Espinoza’s rights under McNeely.  Under Birchfield, however, Espinoza had no negative right to be free from a warrantless breath test incident to her lawful arrest for DUI. Therefore, suspending Espinoza’s driver’s license for her failure to submit to and complete a breath test in no way renders illusory Espinoza’s rights under McNeely.”

Lawfulness of Detention

Espinoza also insisted that the license suspension was invalid because a requisite was not met: a lawful arrest. She stressed that she was not pulled over based on erratic driving and her speech was coherent.

McKinister responded that, according to the record, she “exhibited some of the classic, objective symptoms of intoxication, including having red, bloodshot, and watery eyes, and having a strong odor of an alcoholic beverage on her breath,” adding:

“Espinoza’s crying, her initial refusal to get out of her vehicle, her complete refusal to answer field sobriety questions or to perform field sobriety tests, and her repeated requests to be let off with a citation, were additional factors a reasonable officer could properly consider when determining whether there was probable cause to believe Espinoza drove while under the influence of alcohol.”

The case is Espinoza v. Shiomoto, 2017 S.O.S. 162.


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