No exigent circumstances for warrantless blood draw from unconscious driver suspected of DUI 90 minutes after accident

The PEOPLE, Plaintiff and Respondent, v. Francisco Andres ALVAREZ, Defendant and Appellant.
2023 WL 9014911 (Cal.App. 4 Dist.), 1

 Summary: In Mitchell v. Wisconsin (2019) 588 U.S. –––– [139 S.Ct. 2525] (Mitchell),  the United States Supreme Court held when a “driver is unconscious and therefore cannot be given a breath test … the exigent-circumstances rule almost always permits a blood test without a warrant.” (Id. at p. 2531 (plur. opn. of Alito, J.).)

 Issue:  The constitutionality of a warrantless blood draw from a person involved in a car accident where unconsciousness or unresponsiveness occurred in a hospital about 90 minutes after the incident.  Here, the Court of Appeal concluded that  no exigent circumstance as defined in Mitchell or Schmerber v. California(1966) 384 U.S. 757 (Schmerber) allowed a warrantless blood draw. The Court rejected the People’s argument that the officer’s good faith reliance on Vehicle Code section 23612, subdivision (a)(5), allowed prosecutors to use the fruits of the otherwise illegal search. The trial court erred when it denied the motion to suppress filed by  Alvarez. The Court reversed the judgment and remand the matter with instructions to grant Alvarez’s motion to suppress and conduct further proceedings regarding Alvarez’s guilty plea.

Factual and Procedural Background

On March 25, 2018, officers arrived at the scene of a fatal car accident. Officer Guy Yost spoke briefly to Alvarez who admitted to driving the silver Charger. Alvarez seemed uninjured but shaken by the collision. The officer did not detect any overt signs or symptoms that Alvarez drove while under the influence of alcohol or drugs. Alvarez’s PAS results reflected a 0.037 and 0.039 blood alcohol concentration (BAC). About five minutes after the PAS test the officer informed Alvarez that the officer wanted to get a blood sample. Alvarez stopped responding verbally or nonverbally to the officer. Officer Yost could not tell whether Alvarez was asleep, unconscious, or just ignoring him. Officer Yost radioed for a forensic blood draw. A phlebotomist took Alvarez’s blood. The blood test revealed a 0.05 percent blood alcohol level with the presence of cocaine and THC.8

Alvarez was charged  with  two alcohol related vehicular manslaughter counts under Penal Code section 191.5, subdivision (a). Alvarez moved to suppress the blood testing results pursuant to Penal Code section 1538.5, subdivision (a)(1). The People could find no exception allowing Officer Yost to obtain a blood sample without first securing a warrant and conceded the motion.

In the interim, on June 27, 2019, the United States Supreme Court delivered its opinion in Mitchell, supra, 588 U.S. –––– [139 S.Ct. 2525]. The court found “when police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.” (Id. at p. 2539 (plur. opn. of Alito, J.).)12 Citing Mitchell, the People moved the trial court for reconsideration of Alvarez’s motion to suppress. The trial court granted the request.

At the hearing, Officer Yost said he felt exigent circumstances existed because Alvarez appeared unresponsive and by the time warrant paperwork might arrive, the officer believed hospital personnel would take Alvarez away from the trauma room for further treatment and eliminate any possibility he could obtain a blood sample. Yost explained he did not believe he needed a warrant because Alvarez appeared unresponsive or unconscious triggering section 23612, subdivision (a)(5).13

The trial court denied Alvarez’s suppression motion finding Mitchell, supra, 588 U.S. –––– [139 S.Ct. 2525] applied. The court stated, “exigent circumstances permit[ed] a blood test without a warrant.” Alvarez later pled guilty but did not waive his appeal rights.

Standard of Review on motion to suppress

“On appeal from a motion to suppress evidence, all presumptions are in favor of the trial court’s factual findings, whether express or implied, where supported by substantial evidence ….” (People v. Ledesma (2003) 106 Cal.App.4th 857, 862.) “ ‘Substantial evidence’ means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.” (People v. Conner (1983) 34 Cal.3d 141, 149.) “But while we defer to the superior court’s express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search [or seizure] on the facts so found.” (People v. Woods (1999) 21 Cal.4th 668, 673–674.)

Exigent Circumstances Did Not Exist to Allow a Warrantless Blood Draw
Alvarez argued that no exigency existed to overcome the requirement that officers get a warrant to obtain a blood sample. Citing to People v. Meza (2018) 23 Cal.App.5th 604 (Meza), Alvarez argues almost two and one-half hours elapsed between when the accident occurred and the phlebotomist’s arrival at the hospital, giving Officer Yost ample time to obtain a warrant.

The Mitchell court held that when a “driver is unconscious and therefore cannot be given a breath test … the exigent-circumstances rule almost always permits a blood test without a warrant.” (Id. at p. 2531.) The court explained a drunk-driving suspect’s unconsciousness creates exigency when “(1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious….” (Id. at p. 2537.)

But the Mitchell court did not reverse McNeely’s rule that officers need a blood-draw warrant if one is practical to obtain. In the emergency scenarios created by unconscious drivers, forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs. That is just what it means for these situations to be emergencies.” (Mitchell, supra, 588 U.S. at p. –––– [139 S.Ct. at p. 2539] (plur. opn. of Alito, J.).)

Implied consent does not apply

One exception to the Fourth Amendment’s warrant requirement is consent. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) No warrant is required for a blood draw if the suspect gives actual consent freely and voluntarily. (People v. Harris (2015) 234 Cal.App.4th 671, 682 (Harris).)

The implied consent law states that any driver of a motor vehicle is “deemed to have given his or her consent” to blood or breath testing for alcohol and drugs upon lawful arrest for driving under the influence. (§ 23612, subd. (a)(1)(A) & (B).) The officer must advise the driver that failure to submit to the required testing will result in a fine and mandatory imprisonment if convicted of driving under the influence, as well as administrative suspension or revocation of driving privileges. The officer must also advise the person “that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.” An unconscious or incapacitated person is “deemed not to have withdrawn his or her consent” and a blood or breath test may therefore be administered without giving any admonition about loss of driving privileges.

It was not objectively reasonable for Officer Yost to believe that the implied consent law even applied here. (§ 23612.) The only two subdivisions of the statute deeming drivers to have given their consent to a blood draw are subdivisions (a)(1)(A) and (B), both of which apply only if the driver is “lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 213153.” Section 23612, subdivision (a)(1)(C) further states that “[t]he testing shall be incidental to a lawful arrest ….” “An unconscious man is incapable of giving consent.” (Carrington v. Superior Court (1973) 31 Cal.App.3d 635, 641.) Even for a conscious driver subject to an implied consent law, the Fourth Amendment demands that the driver have a choice between (1) giving actual consent or (2) refusing to give actual consent and accepting the consequences of the implied consent law, which include forfeiture of driving privileges. (Harris, supra, 234 Cal.App.4th at p. 686.)

Officer Yost did not reasonably rely on the implied consent law of section 23612 to justify the warrantless blood draw and that the good-faith exception to the exclusionary rule does not apply.

The matter was remanded with instructions to (1) vacate its order denying Alvarez’s suppression motion and enter a new order granting the motion; (2) permit Alvarez to withdraw his guilty plea by appropriate motion within 30 days after this opinion becomes final; (3) determine whether the People intend to retry the case; and (4) make such other orders as are necessary and appropriate.

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