Metropolitan News-Enterprise


Friday, September 8, 2017


Page 1


Appellate Division Opinion Declares:

Blood Alcohol Evidence Excludable If Driver Didn’t Consent to Test

Consent Under ‘Implied Consent’ Law Is Inadequate, San Mateo Appeals Court Holds, Declaring That Actual Permission Is Required by U.S. Supreme Court Decision


By a MetNews Staff Writer


A judge must suppress blood-test evidence against a man lawfully arrested on suspicion of driving under the influence because there was no search warrant and the suspect, while acquiescing in the drawing of his blood, did not expressly consent, the Appellate Division of the San Mateo Superior Court has held, declaring that California decisions to the contrary must be scrapped in light of a 2013 United States Supreme Court opinion.

The result is dictated by the U.S. high court’s 2013 decision in Missouri v. McNeely, the appeals panel said in a May 5 opinion, designated for publication, and publicly released Tuesday after the Court of Appeal found that a transfer to itself was unnecessary.

In McNeely, the Supreme Court limited application of its 1966 decision in Schmerber v. California which upheld the warrantless drawing of blood of a drunk driving suspect owing to exigent circumstances in the form of the rapid deterioration of the presence of alcohol in the blood. Justice Sonia Sotomayor said in McNeely:

“Though a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

She noted that procedures for obtaining warrants are faster now than in 1966.

Writing for the appellate division of the San Mateo court, Presiding Judge Leland Davis III recited that appellant Samuel Ling was arrested on suspicion of drunk driving, was told that he had a choice of taking a blood or breath test, did not respond, was taken to a facility equipped only to take a blood sample, and expressed no opposition as his blood was drawn. The choice presented to Ling was in conformity with the state’s implied consent law under which a motorist, by accepting a driver’s license, is deemed to have consented to a blood or breath test if lawfully arrested for a DUI.

Davis minimized the efficacy of the implied consent statute, which requires a one-year license suspension of a motorist arrested for a DUI who refuses to submit to a blood or breath test. He said:

“Although referred to as ‘implied consent,’ the legislation was an attempt to provide law enforcement officials with a tool to secure voluntary submission to a chemical test and to eliminate the potential for violence inherent in physically subduing a suspect who might otherwise resist a chemical test.”

The judge said there was no evidence that Ling expressly consented to a drawing of his blood.

‘Submission,’ Not Consent

He wrote:

“[T]he evidence established that defendant was placed under arrest, handcuffed, and put into a police vehicle. Defendant was then told that he had to submit to a chemical test. He never expressed any choice for a test nor did he vocalize any words whose meaning could be construed as consent to any chemical test. He was transported to a location where his blood was drawn, and he offered no resistance to the administration of the blood draw. The officer characterized defendant’s conduct as ‘submit[ting] to a blood draw.’ Thus, there was no manifestation of consent. The evidence instead shows that defendant submitted to a blood draw and that this submission was due to the officer’s expression of lawful authority.”

Davis declared that “acquiescence to lawful authority” does not amount to consent.

“It should not be ignored that for decades prior to the ruling in McNeely, forcible, warrantless blood draws were permissible,” he wrote. “Thus, absent evidence to the contrary, it cannot be presumed that individuals under arrest could reasonably construe a direction from an arresting officer that they must take some action as a mere query as to whether they will voluntarily consent to it.”

He counseled that “trial courts must acknowledge that every driving under the influence prosecution may be subject to the holding of McNeely to the extent that every blood draw challenged as a violation of the Fourth Amendment must now be supported by evidence of a warrant or an exception to the warrant requirement.”    

State Precedent Upset

The San Mateo judge, after concluding that there was no consent by Ling, remarked:

“We concede that after decades of blood draws in California passing constitutional muster under similar factual scenarios, it may be difficult to now conceive of such a search as violating the constitution or conceive of the officer’s actions as violating defendant’s constitutional rights. Yet, even though peace officers are not required to anticipate legal rulings, they may only rely on binding legal precedents. McNeely has effectively eliminated decades of them.”

Davis added that while the arresting officer did not adequately explain to Ling the consequences of failing to submit to a chemical test of his blood alcohol level, no court has deemed such a failure a constitutional violation. He suggested that where officers do make sure “that those arrested for suspicion of DUI understand that a blood draw will not be compelled against their will bolster a subsequent assertion that the blood draw was voluntarily consented to.”

He noted that the implied consent law “is an adjunct to the preexisting, and still valid rule of Schmerber” and that apart from that law, “forcible, warrantless chemical testing may occur under the authority of Schmerber if the circumstances require prompt testing, the arresting officer has reasonable cause to believe the arrestee is intoxicated, and the test is conducted in a medically approved manner.”

The opinion reverses the decision by San Mateo Superior Court Judge Richard H. Du Bois that there is no need to suppress blood test evidence showing that Ling was, in fact, driving in an intoxicated state.

The case is People v. Ling, 17 S.O.S. 4550.

San Diego Case

In another case involving the implied consent law, the San Diego Superior Court Appellate Division affirmed an order granting a motion to suppress the results of a blood test showing that the defendant had been driving under the influence of drugs. The opinion was filed June 30 and made public yesterday.

The arresting officer had told the defendant, Aubree Pickard, that if she chose a breath test, there would be no sample for retesting, but if she chose a blood test, there would be two vials; one would be tested for alcohol content; the other would be supplied to her at no charge and could be retested. No mention was made of testing for drugs.

Blood in the first vial was, in fact, tested for alcohol content by the county crime lab and there was a positive result. The second vial, rather than being given to Pickard, was subsequently tested by the crime lab for drugs, and the result was also positive.

The charge was changed to driving under the combined influence of drugs and alcohol. San Diego Superior Court Judge Frank L. Birchak suppressed the results of the test for drugs, and the Office of District Attorney appealed.

In affirming, a three-judge panel said that a limitation on a consensual search may be placed “by the mutual understanding and reasonable expectations of the parties.” The judges reasoned:

“The People fail to acknowledge that it was the officer who limited the scope of the search of the blood to the testing of alcohol. Defendant was offered a breath test, which only tests for alcohol content and does not preserve a sample for retesting, or a blood test for alcohol. Under these facts and circumstances, Defendant did not have an affirmative obligation to expressly place limits on the consent when it was the mutual understanding of the defendant and the officer, and their reasonable expectations that the blood was to be tested only for alcohol.”

The judges added:

“Where, as here, defendant’s blood sample was impounded for alcohol testing only based on limited consent, absent specific evidence of good faith reliance, we find that the secondary testing for drugs was a procedural recurring or systematic failure by the law enforcement agency’s personnel to abide by the Fourth Amendment.”

The case is People v. Pickard, 17 S.O.S. 4548.


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