Filed 9/9/13 P. v. Superior Court CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Petitioner,
v.
THE SUPERIOR COURT OF SOLANO                                         A139482
COUNTY,
                                                                     (Solano County
         Respondent;                                                 Super. Ct. No. FCR 298052)
DOMINGO MONTAR,
         Real Party in Interest.


         In this case we reverse the trial court's order suppressing the evidence derived
from a nonconsensual, warrantless blood draw. The police acted in compliance with
binding precedent and with a good faith belief that their actions were consistent with
applicable law, despite the fact that the Supreme Court subsequently ruled that the
elimination of alcohol from the blood does not constitute a per se emergency excusing the
requirement to obtain a search warrant.
                                                 INTRODUCTION
         Real Party Domingo Montar is charged by information with violating Vehicle
Code section 23152, subdivisions (a) and (b) (driving under the influence and driving
with a blood alcohol level of .08 percent or more). He is also charged with three prior
driving under the influence convictions and a high blood alcohol enhancement.



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       Montar was stopped on September 9, 2012 for driving on the wrong side of the
road, driving erratically, and almost running over a police officer. During the traffic stop
the officer concluded that Montar was under the influence of alcohol based, in part, on
the observation that Montar's face was relaxed, he was unable or refused to follow
commands, he was staggering, and his breath smelled of alcohol. Furthermore, his eyes
were bloodshot and watery and his speech was slurred.
       Montar refused to submit to any field sobriety or chemical tests. A nonconsensual
blood draw was completed. The police did not obtain a warrant for the blood draw,
relying on their policy permitting the seizure of blood evidence because, otherwise, that
evidence would "lessen in the defendant's system over time."
       Montar moved, pursuant to Penal Code section 1538.5, to suppress the blood
sample taken from him, as well as the observations of and statements stemming from the
forcible blood draw and any related evidence. On July 16, 2013 the superior court
granted Montar's motion to suppress ruling that, in light of Missouri v. McNeely (2013)
133 S.Ct. 1552 (McNeely), there were no exigent circumstances to justify the forcible,
warrantless blood draw.1 At that hearing Montar, who is in custody, withdrew his time
waiver, making September 16, 2013 his speedy trial deadline. The court set September 4,
2013 as his trial date.
       On August 15, 2013 the People filed the instant writ petition seeking an order
compelling the trial court to vacate its order suppressing the blood draw and to issue a
new order denying Montar's motion to suppress. On August 22, 2013 we temporarily
stayed the trial, requested informal briefing, and gave notice pursuant to Palma v. U.S.
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 that, if appropriate, we might issue a
peremptory writ in the first instance.
       We have reviewed Montar's opposition to the petition, which, in part, requests that
we deny the People's stay request to avoid violating his right to a speedy trial. Although

1
 McNeely was decided April 17, 2013. The arrest and blood draw at issue here took
place on September 9, 2012. Thus, any application of McNeely to this case would
necessarily be retroactive.
                                             2
there is case law supporting the view that an appellate court's reversal of a trial court's
order at the request of the prosecution constitutes good cause for delay of the trial
(People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908, 911), we are concerned
that the prosecution did not promptly seek a writ petition challenging the trial court's
order2 and petitioner remains incarcerated. The deadline for the prosecution to submit a
reply to the opposition has not yet passed. However, because we are granting the relief
sought by the prosecution, there is no reason to delay issuing our decision.
                                       DISCUSSION
I. BECAUSE THE "GOOD FAITH" EXCEPTION APPLIES, THE EVIDENCE
CONCERNING THE BLOOD DRAW SHOULD NOT BE EXCLUDED PURSUANT
TO McNEELY.

       Until McNeely was decided, the leading United States Supreme Court case
concerning nonconsensual blood draws was Schmerber v. California (1966) 384 U.S.
757. In determining that the forcible blood draw at issue in Schmerber did not violate the
Fourth Amendment, the Court examined "the context of [the] arrest . . . ." (Id. at 768.)
The Court reasoned that because of the body's natural elimination of alcohol from the
system, an arresting officer could reasonably conclude that the delay involved in seeking
a warrant might result in the destruction of evidence. (Id. at 770-771.) California courts
routinely applied Schmerber and, absent special circumstances, permitted a warrantless
compulsory blood draw where "the procedure (1) is done in a reasonable, medically
approved manner, (2) is incident to a lawful arrest, and (3) is based upon reasonable
belief the arrestee is intoxicated. [Citations.]" (People v. Ford (1992) 4 Cal.App.4th 32,
35-36 (Ford).)
       McNeely held that the natural metabolic elimination of alcohol from the blood
does not per se constitute emergency justifying a warrantless, forcible blood draw.
(McNeely, supra, 133 S.Ct. at p. 1568.)



2
 Although not prompt, the prosecution's petition was timely. (Penal Code § 1538.5,
subd. (o).)
                                               3
       Montar contends that McNeely should be retroactively applied to this case because
McNeely does not articulate a new procedural rule. He contends that both Schmerber
(which considered the context of the arrest) and McNeely utilize the same “totality of the
circumstances” analysis to determine whether an exigent circumstance is created by the
body's metabolism of alcohol. (McNeely, supra, 133 S.Ct. at pp. 1559-1563.)
       To resolve this case, however, we need not determine whether the McNeely
holding that the elimination of alcohol from the blood does not constitute a per se exigent
circumstance justifying a warrantless blood draw is a new procedural rule of law.
Regardless, the police conduct here fell within the "good faith" exception to the
exclusionary rule. (See United States v. Leon (1984) 468 U.S. 897.)
       Prior to McNeely, California courts—using a "totality of the circumstances"
analysis—regularly allowed warrantless blood draws where the factors outlined in Ford,
supra were satisfied. Montar cites three California appellate cases as examples of
different totality-of-the-circumstances approaches applied to specific blood testing
situations: People v. Trotman (1989) 214 Cal.App.3d 430 (Trotman), People v. Wilson
(2003) 114 Cal.App.4th 953 (Wilson), and People v. Fiscalini (1991) 228 Cal.App.3d
1639 (Fiscalini). None of these cases, however, suggests that the appropriate analysis in
this case leads to the conclusion that the nonconsensual warrantless search was
impermissible.
       Trotman begins its analysis with the same factors identified in Ford and then
examines how the passage of Proposition 8 affected that analysis.3 Taking into account
Proposition 8, the Trotman court relaxed the requirements identified in Ford, holding that
the formal arrest of a defendant suspected of drunk driving was not a prerequisite to a
warrantless nonconsensual blood draw. (Trotman, supra, 214 Cal.App.3d at p. 435.) In
Wilson, this Division determined that there was no constitutional violation where a
warrantless nonconsensual blood test was taken after the defendant had submitted to a

3
 Proposition 8 provided that, subject to particular exceptions, no relevant evidence shall
be excluded from a criminal proceeding unless the exclusion is compelled by the United
States Constitution. (Trotman, supra, 214 Cal.App.3d at p. 435.)
                                             4
preliminary alcohol screening test. Of the cited cases, only Fiscalini held that the
nonconsensual blood sample obtained without a warrant had to be suppressed. The
reasoning of the Fiscalini court, however, turned on the fact that Fiscalini had already
voluntarily given a urine sample. No analogous fact exists in the instant case.
       In short, Montar identifies no California case law which suggests that, in the
circumstances of his arrest, a warrantless nonconsensual blood draw was not permissible.
Binding appellate precedent specifically authorized the officers' actions here. Thus,
despite the change in the law, the police acted reasonably. (See Davis v. United States
(2011) 131 S.Ct. 2419, 2429.) Because they acted reasonably, no "appreciable
deterrence" (id. at 2426) would result from the application of the exclusionary rule in this
case and the evidence related to the blood draw should not be suppressed.
                                      CONCLUSION
       Here the People's entitlement to relief is obvious; furthermore, in order to avoid
creating a Speedy Trial Act issue, an immediate decision is required. (See Ng v. Superior
Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232,
1261.) We therefore order the superior court to vacate its July 16, 2013 order granting
real party's motion to suppress evidence in People v. Domingo Chavez-Montar, Solano
County Superior Court, No. FCR 298052, and to issue a new and different order denying
that motion. The August 22, 2013 stay we issued is dissolved. Our decision is final as to
this court immediately. (Cal. Rules of Court, rule 8.490(b)(3).)
       In addition to filing and serving this decision by mail, the clerk of this court is
directed to notify the parties and respondent superior court of this decision immediately
either via facsimile or telephone.




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                                _________________________
                                Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




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