Forced blood draw of probationer suspected of DUI does not violate the Fourth Amendment
The People, v. Manuel Miramontes Cruz, Jr.
F074667, Filed 4/25/2019; 2019 WL 1856600
Probationer with a prior DUI conviction refuses to consent to chemical DUI test
Defendant Manuel Miramontes Cruz, Jr., was charged with driving under the influence (DUI) of alcohol within 10 years of a prior felony DUI conviction and driving with a blood-alcohol level of 0.08 percent or more within 10 years of a prior felony DUI conviction. [(Veh. Code, § 23550.5, subd. (a)]
Defendant refused to take a breath or blood test, and a Merced Police Officer transported him to the police station to author a search warrant for defendant’s blood. Upon receiving paperwork and information from dispatch that defendant was on DUI probation and required to submit to a breath or blood test, the officer abandoned the warrant and instead transported defendant to the hospital for a blood draw. At the hospital, defendant expressly stated he was not consenting to a blood draw but a forced blood draw was taken and showed a blood alcohol level of 0.157 percent.
Because defendant expressly consented to chemical tests if he were arrested for and a Fourth Amendment waiver as a condition of probation, the court found that he had no right to refuse a blood draw. When he did refuse, the officer was legally justified in having his blood drawn.
Consent to warrantless searches and seizures by probationers
In California, a person may consent in advance to warrantless searches and seizures in exchange for avoiding serving a state prison term. Warrantless searches aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. Probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.
The California Supreme Court has not yet determined whether a general probation search condition authorizes a warrantless, nonconsensual blood draw. (See People v. Simon (2016) 1 Cal.5th 98, 120) In this case the defendant was not just subject to California’s implied consent law or a general probation search condition requiring that he submit his person, vehicle, place of residence, and belongings to search and seizure. Here, the defendant expressly agreed that if he was arrested for drunk driving, he would not refuse to submit to a chemical test of his blood.
Second -Degree Felony Murder Rule is not unconstitutionally vague but has been eliminated by statute.
In re White, 2019 WL 1922706 (Cal.App. 4 Dist.) (Cal.App. 4 Dist., 2019)
Defendant and a friend were engaged in the manufacture of methamphetamine when an explosion occurred that resulted in the death of the friend. The jury found defendant guilty of second degree felony murder and specially found that the murder “occurred during the commission of the crime of manufacturing methamphetamine” and that the murder “was not committed with implied malice.”
Defendant filed a petition for writ of habeas corpus claiming that second degree felony murder is unconstitutionally vague relying on a US Supreme Court State. A federal statute providing an enhancement for prior “violent felonies,” a term which includes any offense that “involves conduct that presents a serious potential risk of physical injury to another” was found void for vagueness by the US Supreme Court (Johnson v. U.S., 135 S.Ct. 2551) However, the court did not address constitutional argument because scientific evidence and expert testimony proves manufacture of methamphetamine is an inherently dangerous felony
California’s second degree felony-murder rule was eliminated effective January 1, 2019
California’s former second degree felony-murder rule, “makes a killing while committing certain felonies murder without the necessity of further examining the defendant’s mental state.” Second degree felony murder is ‘an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 ….’ “ ‘In determining whether a felony is inherently dangerous, the court looks to the elements of the felony in the abstract, “not the ‘particular’ facts of the case,” i.e., not to the defendant’s specific conduct.
California’s approach also admits of the possibility of taking expert testimony and scientific evidence on the issue of determining whether a felony is inherently dangerous to human life, in the appropriate case. There was ample expert testimony to support the finding that manufacture of methamphetamine is an inherently dangerous felony.