More decisions on implied consent as we await Arredondo

Posted by on June 10, 2018 in #DUIdata | 0 comments

More decisions on implied consent as we await Arredondo

From February 26, 2016, the Court of Appeals of California, Sixth District decided People v. Arredondo which discussed whether implied consent for a DUI blood draw is actual consent (see 245 Cal.App.4th 186). I blogged about Arredondo here.

Implied consent meaning that when you apply for a California driver license, CA DMV makes you sign into a statement saying if you’re arrested for DUI in California that you have given implied consent to submit to a chemical test. In Arredondo Defendant crashed his car, leaving him unconscious. About 90 minutes later, Police executed the DMV Admin Per Se form on Defendant’s unconscious body and a phlebotomist drew Defendant’s blood at the hospital.  The Officer did not obtain a warrant (he had actually never tried to obtain a warrant ever before in his career).

Well, the California Supremes took this case, and we’re still waiting for their decision.

In the meantime, we keep getting thoughts and rulings from lower Courts. Here are the recent tasters. I’ll go through them in order of decision:

Vannesse:

People v. Vannesse, 5/16/18, Court of Appeals of California, Second District, Division Six.

Here, there was an accident and DUI arrest. The Officer read Defendant “verbatim” an advisement from a Ventura police department form: “Drugs slash — drugs and alcohol: You are required to submit to a chemical test. Implied consent of your blood: A sample of your blood will be taken by nursing staff at the hospital. If you fail to adequately provide a sample, it will result in the suspension of your driving privilege for a period of one year.” The officer did not advise Defendant that he could choose whether the chemical test would be of his blood or breath. The Officer also did not advise Defendant that he could refuse to provide any sample.

Defendant verbally agreed to provide a blood sample and signed a consent form that gave him the option of refusing consent. He was transported to a hospital where a blood draw was performed. After the blood draw, he lost consciousness. The Officer did not know the cause of the loss of consciousness.

Holding: “The failure to give an advisement in compliance with the implied consent law does not mandate the suppression of the test result.”

And the reasoning: “[I]f a peace officer advises the arrestee that his only choice is to submit to a blood test, the test results are admissible in a criminal proceeding provided that the arrestee freely and voluntarily consents to a blood test. The failure to advise the arrestee of his statutory right to choose between a breath and blood test does not run afoul of any constitutional restraint.”

“The officer did not comply with the letter of section 23612, subdivision (a)(2)(B) because he did not advise appellant of his statutory right to choose either a blood or breath test. But this violation did not prejudice appellant and is of no constitutional significance. The administration of a breath test would have been inconclusive because it would not have disclosed whether appellant was under the influence of drugs or a combination of drugs and alcohol.”

Meza:

People v. Meza, 5/18/18 from the Court of Appeals of California, First District, Division Two.

Here, there was a crash, Defendant was taken to the hospital where there was a hospital blood draw and a warrantless forensic blood draw. The Officer thought Defendant’s “acquiescence constituted consent.” “The forensic blood draw in this case did not occur until two hours after the accident.”

Holding: Get a warrant. This violated the 4th Amendment and the Court did not find exigent circumstances. However, the error was harmless.

The reasoning: The Court addresses the 2013 US Supreme Court decision McNeely (569 U.S. 141): “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.”

“If the court were to conclude on this record that exigent circumstances excuse law enforcement from getting a warrant, it would be hard to imagine a case requiring a warrant for a blood draw when a DUI suspect is taken to the hospital. We would be creating, sub rosa, a rule that exempts accident cases from the totality-of-the-circumstances inquiry that McNeely requires, and we would be ignoring McNeely’s point about the availability of electronic warrants. This we decline to do.”

So, Police violated the 4th Amendment. But it was harmless because the Court says we have a hospital blood draw. Hospital blood draws and testings are different than those of forensic draws and analysis. But the Court here was satisfied that with the hospital testing, this error was harmless.

Balov:

People v. Balov, 5/23/18 from the Court of Appeals of California, Fourth District, Division One. Here, there was no accident, Defendant did the balance tests and blew into the PAS breath machine before arrest. For the blood draw, the Officer told Defendant “that per California Law he was required to submit to a chemical test, either a breath or a blood test.” But the Officer did not inform Defendant of the statutory consequences of refusing a test. “During the routine blood draw that followed, Balov was calm and gave no indication of wanting to refuse the test.”

Holding: Failure to advise of ability to refuse does not violate the 4th Amendment. As the “[t]otality of the circumstances must be considered.”

So:

We continue to be in disagreement…and we continue to wait for Arredondo from the Cal Supremes..

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    Eric Ganci

    Eric Ganci practices in DUI defense, with a focus on science and trial work. He was awarded the “Lawyer-Scientist” designation by the American Chemical Society, Chemistry and the Law Section. Eric teaches with the Trial Lawyers College and is a founding member of the DUI Defense Lawyers Association.

    He earned his JD from Thomas Jefferson School of Law and his BA in Music Education from Northern Illinois University.
    Eric Ganci

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