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Officer’s failure to give implied consent admonition for a DUI blood test does not make a driver’s voluntary consent invalid

People v. Lopez, 2020 WL 1163518; C080065 (Cal.App. 3 Dist., 2020)

Summary:

Sharon Darlene Lopez appealed the trial court’s denial of her motion to suppress evidence obtained from a warrantless blood draw after her arrest for driving under the influence of a controlled substance. The officer instructed Lopez that she was required to submit to a blood draw under the state’s implied consent law, but he did not provide her with the law’s admonitions regarding the consequences should she refuse the test. Lopez did not object or resist, and the draw was performed without a warrant. The trial court concluded defendant consented to the test. The Court of Appeal concluded that substantial evidence supports the court’s ruling, and affirmed the judgment.

Facts:

DUI stop and and implied consent for blood sample

Lopez was charged with one misdemeanor count of driving under the influence of a controlled substance. (Veh. Code, § 23152, subd. (a).) Lopez moved to suppress evidence pursuant to Penal Code section 1538.5, claiming that her blood sample was drawn without her consent or a warrant in violation of the Fourth Amendment.

Rocklin Police Officer Evan Adams observed Lopez’ unsteady gait, constricted pupils, and slurred speech. He conducted field sobriety tests that indicated she was impaired. He had her blow into a preliminary alcohol screening (PAS) device which registered .000, indicating an absence of alcohol. Believing she was under the influence of controlled substances, as opposed to alcohol, he arrested her and transported her to the county jail.

Officer Adams sought a blood sample from defendant. Officer Adams stated he told defendant that “since she was under arrest for a DUI, and since I believed it was a controlled substance DUI, she’s required, by law, to submit to a blood test.” The officer said defendant did not refuse the blood test: “She consented and cooperated.” Lopez did not object or resist, but had she done so, he would have obtained a warrant and performed a forced blood draw.

When asked on cross-examination how he determined that defendant consented to the blood test, Officer Adams replied, “I informed her she was required by law, she gave no objection, Phlebotomist [Sasha] Perez arrives, and she did not resist saying at any point she wanted to refuse the blood draw at all, and the blood was taken without any incident.” Officer Adams did not “directly” ask for her consent, and defendant did not say she consented. He explained, “What I did is I informed her that she’s required by law to submit to it, and then I believe her consent was implied.” Asked how defendant manifested consent, Officer Adams said, “I can’t recall if she nodded, I can’t recall if she said yes, to be honest with you. But I can tell you with 100 percent certainty she did not refuse and she did not not consent to the blood draw.”
Lopez testified that did not recall Officer Adams telling her she was required to give a blood sample and never consented. No one in the room asked her if she consented and she would not have consented had she been asked.
The trial court denied the suppression motion, finding defendant consented to the blood draw. The court stated: “Officer Adams testified that the defendant was cooperative and did not object to the blood draw. The defendant, on the other hand, testified that she did object and was physically forced to give the blood sample. The court finds the officer’s testimony to be more credible and finds that the defendant consented to the blood draw pursuant to California’s implied consent law. The court further finds that the blood was drawn in a reasonable manner by a professional phlebotomist.”

Lopez appealed to the Superior Court Appellate Division, which affirmed the trial court’s order denying suppression. The Appellate Division denied defendant’s request to have the matter transferred to the Court of Appeal. We granted defendant’s petition for transfer.

Fourth Amendment snd blood draws

The Fourth Amendment protects the “right of the people to be secure in their persons … against unreasonable searches” and provides that “no warrants shall issue, but upon probable cause.” A blood draw is a search of the person. (Birchfield v. North Dakota (2016) 579 U.S. ––––, 136 S.Ct. 2160, [195 L.Ed.2d 560] (Birchfield).

A state may not compel a suspect to undergo a blood test without a warrant as a search incident to arrest. (Birchfield, supra, 136 S.Ct. 2160, 195 L.Ed.2d at pp. 588-589.) California courts have found a blood test may be administered without a warrant as a search incident to arrest where the suspect chooses a blood test after being given a choice between a blood test and a breath or urine test, but that did not occur here. (People v. Nzolameso (2019) 39 Cal.App.5th 1181, 1186, 252 Cal.Rptr.3d 589; People v. Gutierrez (2018) 27 Cal.App.5th 1155, 1161, 238 Cal.Rptr.3d 729, review granted Jan. 2, 2019, S252532.)

A consensual search does not violate the Fourth Amendment “because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.” (Florida v. Jimeno (1991) 500 U.S. 248, 250-251, 111 S.Ct. 1801, [114 L.Ed.2d 297].) Voluntary consent to a blood test required under the implied consent law satisfies the Fourth Amendment. (People v. Harris (2015) 234 Cal.App.4th 671, 685, 184 Cal.Rptr.3d 198 (Harris).)

Implied consent law

The implied consent law stated that Lopez, by driving a motor vehicle, was deemed to have given her consent to chemical testing of her breath or blood if she was lawfully arrested for driving under the influence. (§ 23612, subd. (a)(1)(A), (B).)1
The implied consent law also required Officer Adams to inform Lopez that she could choose between a breath test and a blood test. (§ 23612, subd. (a)(2)(A), (B).) However, if Lopez chose a breath test, Officer Adams was authorized to request that she take a blood test because he had reasonable cause to believe she was under the influence of drugs. (§ 23612, subd. (a)(2)(C).) In that event, “[t]he officer shall advise the person that he or she is required to submit to an additional test. The person shall submit to and complete a blood test.”
The implied consent law grants a suspect the right not to consent to a test. “Under section 23612, by the act of driving on California’s roads, [defendant] accepted the condition of implied, advance consent if lawfully arrested for drunk driving. That advance consent, however, could also have been withdrawn at the time of arrest by [defendant’s] objection to a breath test or blood draw. ‘ “[T]he implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions. A suspect’s refusal to consent will have consequences. The implied consent law required Officer Adams to inform defendant that her refusal to submit to testing would result in a fine, suspension of her driver’s license, and, if she was convicted of DUI, mandatory imprisonment. (§ 23612, subd. (a)(1)(D).) The law also required Officer Adams to inform defendant that a refusal to submit to the test could be used against her in a court of law, and that she was not entitled to have an attorney present when she decided whether to take the test or during the test. (§ 23612, subd. (a)(4).)

A reviewing court must determine whether submission to a chemical test, after advisement [or lack of advisement] under the implied consent law, is freely and voluntarily given and constitutes actual consent.” (Harris, supra, 234 Cal.App.4th at p. 686, 184 Cal.Rptr.3d 198)
“The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘voluntariness is a question of fact to be determined from all the circumstances,’ [citation].” (Ohio v. Robinette (1996) 519 U.S. 33, 40, 117 S.Ct. 417, [136 L.Ed.2d 347].) “The totality of the circumstances that must be considered in determining if consent is voluntary includes not only advance consent, but the driver’s conduct at the time of arrest and the circumstances surrounding the testing.” (Balov, supra, 23 Cal.App.5th at p. 702, 233 Cal.Rptr.3d 235, review granted Sept. 12, 2018, S249708.)

“If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given—i.e., ‘that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority.’ [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 445-446, 42 Cal.Rptr.3d 677, 133 P.3d 581.) “ ‘ “The … voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, ‘The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings—whether express or implied—must be upheld if supported by substantial evidence.’ ” ’ [Citations.]” (Harris, supra, 234 Cal.App.4th at p. 690, 184 Cal.Rptr.3d 198.)

Substantial Evidence and Omission of Admonitions

The a Court of Appeal found that substantial evidence supported the trial court’s finding that defendant voluntarily consented to the blood draw. Consent need not be express. It may be implied from the suspect’s actions. “[N]o words at all need be spoken: in appropriate circumstances, consent to enter may be unmistakably manifested by a gesture alone.” (People v. James (1977) 19 Cal.3d 99, 113, 137 Cal.Rptr. 447, 561 P.2d 1135 (James).) Here, Officer Adams correctly instructed
Lopez that she was required to undergo a blood test and she did not object or refuse to undergo the test. Lopez did not resist any of the officers’ directions or actions but voluntarily placed her arm on the table to allow the phlebotomist to draw her blood.

Officer Adams testified he obtained consent. He said that if a suspect did not give him consent, he would explain the warrant procedure, implying he would seek a warrant if the suspect did not consent. He did not seek a warrant here. He stated that “with 100 percent certainty [Lopez] did not refuse and she did not not consent to the blood draw.” Under the totality of the circumstances, Lopez consented to her blood test.
The trial court here considered Officer Adams’s omissions of the implied consent law’s admonitions when it reviewed the totality of the circumstances, and it found defendant nonetheless voluntarily consented to the blood draw. The omission of the admonitions does not overcome our conclusion that substantial evidence supports the trial court’s determination.

In this case, Officer Adams did not make a false claim of authority to perform the blood test. Unlike a false or invalid warrant, the implied consent law required defendant to undergo the blood test, and, significantly, it gave her the option to refuse.
Under the implied consent law, a motorist consents in advance to testing if arrested for driving under the influence, and the issue is then whether the arrested motorist withdraws that consent by refusing to test.”
The officer’s omission of the statutory admonitions was a fact to be considered when weighing the totality of the circumstances.

DISPOSITION
The order denying defendant’s suppression motion was affirmed.

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