Filed 5/23/18

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



 THE PEOPLE,                                        D073018

          Plaintiff and Respondent,

          v.                                        (Super. Ct. Nos. CA270404 &
                                                    M199722)
 PETER BALOV,

          Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County, Timothy R.

Walsh, Judge. Affirmed.



        Law Office of David Wilson and David Wilson; Law Offices of Gretchen von

Helms and Gretchen C. von Helms for Defendant and Appellant.

        Mara W. Elliot, City Attorney, John C. Hemmerling, Assistant City Attorney, and

Shelley A. Webb, Deputy City Attorney, for Plaintiff and Respondent.

        After Peter Balov was arrested for suspected drunk driving, the arresting officer

advised Balov "that per California law he was required to submit to a chemical test, either

a breath or a blood test." Balov did not object and chose a blood test, which showed his
blood alcohol level was above the legal limit. Balov was charged with misdemeanor

driving under the influence (Veh. Code, § 23152, subds. (a) & (b)).1 Before trial, Balov

moved to suppress the results of the blood test, arguing, inter alia, that his consent to the

test was coerced. The court denied the motion, the appellate division affirmed, and Balov

now challenges the ruling here, arguing as he did below that his consent to the blood test

was not voluntary. We reject Balov's argument and affirm the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       At the hearing on Balov's motion to suppress, San Diego Police Officer Luis

Martinez testified that just before 3:00 a.m. on March 22, 2015, he saw Balov abruptly

stop his black Range Rover in an intersection when the traffic signal turned yellow. In

response, Martinez turned on his police vehicle's emergency lights and instructed Balov

to pull over. Martinez reported that he noticed the smell of alcohol on Balov's breath and

that Balov's speech was slurred. Balov admitted he had been drinking and agreed to

submit to field sobriety exercises and a preliminary breath sample, which showed his

blood alcohol level was over the legal limit.

       As a result, Martinez placed Balov under arrest for driving under the influence of

alcohol. Martinez testified that after the arrest, he informed Balov of the implied consent

law, telling Balov "that per California Law he was required to submit to a chemical test,

either a breath or a blood test." Martinez did not inform Balov of the statutory

consequences of refusing a test. Balov stated he wanted a blood test and Martinez drove



1      Undesignated statutory references are to the Vehicle Code.
                                                2
Balov to the police headquarters. During the routine blood draw that followed, Balov

was calm and gave no indication of wanting to refuse the test.

       Before trial, Balov moved to suppress the results of the warrantless blood test

under Penal Code section 1538.5, arguing that his consent was invalid because Martinez

had not explained the consequences of refusing chemical testing under section 23612.

The city attorney opposed the motion. After the evidentiary hearing, the trial court

denied Balov's motion. The court concluded that under the totality of the circumstances,

Balov voluntarily consented to the blood test and the test was not taken in violation of his

Fourth Amendment right to be free from unreasonable searches.

       Balov challenged the order in the San Diego County Superior Court's Appellate

Division, which unanimously affirmed the trial court's order. After the city attorney filed

a request for publication of the appellate division's order, on its own motion, the division

certified the matter for transfer to this court. The certification order notes a split of

authority on the issue of implied consent contained in two decisions of the Santa Clara

County Superior Court Appellate Division, People v. Mason (2016) 8 Cal.App.5th Supp.

11 (Mason), and People v. Agnew (2015) 242 Cal.App.4th Supp. 1 (Agnew). We

accepted the transfer under California Rules of Court, rule 8.1008.

                                        DISCUSSION

                                               I

       "The standard of appellate review of a trial court's ruling on a motion to suppress

is well established. We defer to the trial court's factual findings, express or implied,

where supported by substantial evidence. In determining whether, on the facts so found,

                                               3
the search or seizure was reasonable under the Fourth Amendment, we exercise our

independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)

       A blood draw is a search subject to the Fourth Amendment. (Schmerber v. Cal.

(1966) 384 U.S. 757, 767.) Under the Fourth Amendment "[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . ."

While the Fourth Amendment does not specify when a search warrant must be obtained,

the United States Supreme Court "has inferred that a warrant must generally be secured."

(Kentucky v. King (2011) 563 U.S. 452, 459.) However, "the ultimate touchstone of the

Fourth Amendment is 'reasonableness.' " (Brigham City v. Stuart (2006) 547 U.S. 398,

403.) "The Fourth Amendment does not proscribe all state-initiated searches and

seizures; it merely proscribes those which are unreasonable." (Florida v. Jimeno (1991)

500 U.S. 248, 250.) It is well established that 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." (Id. at pp. 250-251.)

       "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 . . . .' " (Ohio v. Robinette (1996) 519 U.S. 33, 40.) " '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. Harris (2015) 234 Cal.App.4th 671, 689-

690 (Harris).) " ' "The . . . voluntariness of the consent is to be determined in the first

                                              4
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.' " ' " (Id. at p. 690.)

       Under section 23612, a "person who drives a motor vehicle is deemed to have

given his or her consent to chemical testing of his or her blood or breath for the purpose

of determining the alcoholic content of his or her blood, if lawfully arrested for an

offense allegedly committed in violation of Section 23140, 23152, or 23153." (§ 23612,

subd. (a)(1)(A).) The statute "applies broadly and generally to 'those who drive'—that is,

to those who avail themselves of the public streets, roads, and highways to operate motor

vehicles in this state." (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1139

(Troppman).)

       The implied consent law was adopted in response to the United States Supreme

Court's decision in Schmerber, which "approved forcible, warrantless chemical testing of

arrested persons under certain conditions, including certain exigent circumstances."

(Agnew, supra, 242 Cal.App.4th Supp. at p. 6.) " 'Although it is clear under Schmerber

that a person who has been lawfully arrested may have a blood sample forcibly removed

without his consent, provided [certain conditions are met], nevertheless such an episode

remains an unpleasant, undignified and undesirable one.' " (Mercer v. Department of

Motor Vehicles (1991) 53 Cal.3d 753, 759, quoting People v. Superior Court of Kern

County (Hawkins) (1972) 6 Cal.3d 757, 764.) "[B]y enacting the implied consent law,

                                               5
thereby providing an alternative method of compelling a person arrested for driving while

under the influence to submit to chemical testing, the Legislature afforded officers a

means of enforcement that does not involve physical compulsion." (Troppman, supra, 40

Cal.4th at p. 1136.)

       Under section 23612, by the act of driving on California's roads, Balov accepted

the condition of implied, advance consent if lawfully arrested for drunk driving. 2 That

advance consent, however, could also have been withdrawn at the time of arrest by

Balov'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. Framed in the terms of "implied

consent," choosing the "yes" option affirms the driver's implied consent and constitutes

actual consent for the blood draw. Choosing the "no" option acts to withdraw the driver's

implied consent and establishes that the driver does not give actual consent.' [Citation.]

Therefore, rather than determine whether 'implied consent' to a chemical test satisfies the

Fourth Amendment, we must determine whether submission to a chemical test, after

advisement under the implied consent law, is freely and voluntarily given and constitutes

actual consent." (Harris, supra, 234 Cal.App.4th at p. 686.) The totality of the



2       In his briefing, Balov discusses another implied consent statute, section 13384,
which makes consent to chemical testing if arrested for driving under the influence a
condition of obtaining a California driver's license. As the city attorney points out in her
brief, however, the People did not rely on this provision in the trial court and it is not
relevant on appeal.
                                             6
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.

                                              II

       As he did below, Balov argues that because he was not informed by Martinez that

he could object to chemical testing, his consent to the blood test was not voluntary and

the warrantless search was obtained in violation of his Fourth Amendment right. In

support of this argument, Balov looks primarily to the United States Supreme Court's

decision in Bumper v. North Carolina (1968) 391 U.S. 543 (Bumper). Bumper

considered whether a false claim by law enforcement that it had a warrant to search the

defendant's home vitiated the defendant's cohabitant's subsequent consent to the search.

The court held that it did, stating that a "search conducted in reliance upon a warrant

cannot later be justified on the basis of consent if it turns out that the warrant was

invalid." (Id. at p. 549.)

       Balov agrees that "it is the totality of circumstances of an individual's consent that

must be analyzed to determine whether consent was voluntary or coerced." However, he

argues that Martinez's statement "that per California Law [Balov] was required to submit

to a chemical test," is no different than the false claim of a search warrant in Bumper and

precludes a finding that Balov's consent was voluntary. We do not agree. Unlike law

enforcement's claim in Bumper, Martinez's statement to Balov was not false.

       Section 23612 required Balov to submit to a chemical test. If Balov refused, he

would have faced the consequences specified under the consent law including a fine, the

                                              7
loss of his driver's license, and mandatory imprisonment if convicted of driving under the

influence. (§ 23612, subd. (a)(1)(D).) Section 23612 requires the driver to be told that

his or her failure to submit to a test will result in these consequences.3 However, no

"presumption of invalidity attaches if a citizen consent[s to a search] without explicit

notification that he or she was free to refuse to cooperate. Instead, the [United States

Supreme] Court has repeated that the totality of the circumstances must control, without

giving extra weight to the absence of this type of warning." (United States v. Drayton

(2002) 536 U.S. 194, 207; see Harris, supra, 234 Cal.App.4th at p. 692 ["failure to

strictly follow the implied consent law does not violate a defendant's constitutional

rights"].)




3       The statute provides that the driver "shall be told that his or her failure to submit
to, or the failure to complete, the required chemical testing will result in a fine,
mandatory imprisonment if the person is convicted of a violation of Section 23152 or
23153, and (i) the suspension of the person's privilege to operate a motor vehicle for a
period of one year, (ii) the revocation of the person's privilege to operate a motor vehicle
for a period of two years if the refusal occurs within 10 years of a separate violation of
Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153 of
this code, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code that
resulted in a conviction, or if the person's privilege to operate a motor vehicle has been
suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2 for an offense that
occurred on a separate occasion, or (iii) the revocation of the person's privilege to operate
a motor vehicle for a period of three years if the refusal occurs within 10 years of two or
more separate violations of Section 23103 as specified in Section 23103.5, or of Section
23140, 23152, or 23153 of this code, or of Section 191.5 or subdivision (a) of Section
192.5 of the Penal Code, or any combination thereof, that resulted in convictions, or if the
person's privilege to operate a motor vehicle has been suspended or revoked two or more
times pursuant to Section 13353, 13353.1, or 13353.2 for offenses that occurred on
separate occasions, or if there is any combination of those convictions, administrative
suspensions, or revocations." (§ 23612, subd. (a)(1)(D).)

                                              8
       Here, Balov freely consented to the search of his blood. After driving on the

public road and being lawfully arrested for driving under the influence, Martinez

correctly told Balov he was required to submit to a breath or a blood test. Although the

statement was incomplete under section 23612, subdivision (a)(1)(D), there was no

evidence Martinez intended to deceive Balov about his right to refuse a test altogether.

Nor was Martinez's statement about the implied consent law demonstrably false.4 (See

Harris, supra, 234 Cal.App.4th at p. 692 ["failure to strictly follow the implied consent




4      Balov asserts that under Harris, supra, 234 Cal.App.4th 671, which also upheld a
consensual search under similar facts, we must conclude that his consent was coerced
because—unlike the officer in Harris—Martinez did not reference the consequences of
refusal. In Harris, the defendant was pulled over for speeding and dangerous driving,
and then arrested after exhibiting signs of drug use. The arresting officer told the
defendant "that, based on his belief that defendant was under the influence of a drug,
defendant was required to submit to a chemical blood test. [The officer] advised
defendant that he did not have the right to talk to a lawyer when deciding whether to
submit to the chemical test, that refusal to submit to the test would result in the
suspension of his driver's license, and that refusal could be used against him in court.
Defendant responded, 'okay,' and [the officer] testified that at no time did defendant
appear unwilling to provide a blood sample." (Id. at p. 678.)

                                             9
law does not violate a defendant's constitutional rights"].) Martinez's failure to

communicate the consequences of refusing a chemical test did not make Martinez's

statement any more or less coercive than if the information had been provided. In neither

case is the driver advised of his or her right to refuse to test altogether.5

       Further, at no point before or after Balov consented to the test did he indicate any

objection. Looking at the totality of the circumstances, including Martinez's conduct, the

existence of the implied consent law, and Balov's actions before and after he consented,



        On appeal of the denial of the defendant's motion to suppress, the Court of Appeal
rejected the defendant's argument that his consent was not voluntary because the arresting
officer's statements concerning the implied consent law were false. The defendant argued
the officer's statements were false because section 23612, subdivision (a)(1)(A) requires
the driver to "be given the choice between a blood or breath test" and that the officer
incorrectly informed him that his license would be suspended for two or three years
(rather than one year). (Harris, supra, 234 Cal.App.4th at p. 691.) In rejecting this
argument, the Harris court upheld the trial court's finding that the arresting officer did not
intentionally deceive the defendant about the implied consent law and concluded the trial
court appropriately considered all the circumstances to find the defendant's consent to the
blood test was voluntary. (Id. at pp. 691-692.) Contrary to Balov's assertion, Harris does
not hold that failure to inform the defendant of the consequences of refusing a chemical
test under section 23612 necessarily results in coerced consent. Rather, Harris reiterates
the principle that the court must look at the totality of the circumstances to determine the
voluntariness of a defendant's consent.

5       Likewise, we disagree with Mason, supra, 8 Cal.App.5th Supp. 11 that the failure
to communicate the consequences of refusing the chemical test necessarily conveys to the
driver that refusal to test is not an option. Indeed, the Mason panel itself conceded that
this conclusion is merely an implication that could be drawn by the driver, and not a
necessary conclusion. (Id. at p. 33.) "[R]equiring the statutory admonition about the
consequences of withdrawing consent in every case, or even treating that as the critical
factor, would improperly elevate the admonishment to a constitutional requirement under
the Fourth Amendment." (Agnew, supra, 242 Cal.App.4th Supp. at p. 16; see Ritschel v.
City of Fountain Valley (2006) 137 Cal.App.4th 107, 119 [rejecting plaintiff's claim that
his Fourth Amendment right against an unreasonable search was violated by the police
officers' failure to comply with section 23612].)
                                              10
we cannot say the trial court's finding that Balov voluntarily consented to the blood test

was error.

                                      DISPOSITION

       The order is affirmed.




                                                                      BENKE, Acting P. J.

WE CONCUR:



HUFFMAN, J.



O'ROURKE, J.




                                             11
