Metropolitan News-Enterprise


Wednesday, November 28, 2018


Page 1


Court of Appeal:

Burden Was on DUI Defendant to Show Blood Drawn in Unreasonable Manner

Yegan Says Case Is One of First Impression


By a MetNews Staff Writer


The Court of Appeal for this district yesterday reversed an order suppressing blood test results, holding that the prosecution had no burden of showing that a DUI suspect’s blood was drawn in a reasonable manner.

Acting Presiding Justice Kenneth Yegan of Div. Six wrote:

“Here, the question is who has the burden of proof on the ‘reasonable manner’ issue when a valid search warrant authorizes the blood draw. This is an issue of first impression in California. We hold that, where the circumstances of the blood draw are typical and routine, i.e., not peculiarly within the knowledge of the People, the burden of proof is on the defendant.”

Ventura Superior Court Judge Michael S. Lief had suppressed evidence of the alcohol content of motorist Edward Ryan Fish’s blood based on his perception that the prosecution had not shown that the test was performed in accordance with acceptable medical practices. The People appealed his order; the Appellate Division of the Ventura Superior Court affirmed; the Court of Appeal transferred the case to itself.

Evidence Code Cited

In explaining the reversal, Yegan pointed to Evidence Code §664, which provides:

“It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.”

The arresting officer was Michael Ramos, who testified at the suppression hearing. In light of §664, Yegan said, the court will “presume” that Ramos “oversaw the procedure to assure it was performed in a sanitary manner that did not involve pain or trauma” and will “presume” he made certain the blood was drawn by personnel licensed to perform that task.

Defendant’s Options

He declared:

 “The circumstances of the blood draw here are typical and routine. The circumstances are not peculiarly within the government’s knowledge or control and there is no suggestion that there was anything unusual about the blood draw. The blood was not drawn at a police station by a government employee. It was drawn at a hospital, presumably by a person legally licensed to draw blood. Defendant was in as good a position as Officer Ramos to observe the blood draw. If defendant’s observations had led him to suspect that the blood draw was not performed in a reasonable manner, he could have subpoenaed the person who performed the blood draw.”

He noted that Fish could have questioned Ramos about the blood draw in cross examination.

Fish is charged with one count of driving while under the influence of alcohol and one count of driving with a blood-alcohol level of 0.08 percent or greater.

The case is People v. Fish, 2018 S.O.S. 5524.


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