Filed 4/11/14


                         CERTIFIED FOR PARTIAL PUBLICATION*


                 SUPERIOR COURT OF THE STATE OF CALIFORNIA
                       COUNTY OF RIVERSIDE APPELLATE DIVISION




   THE PEOPLE,
                                                        APP1300100
                  Plaintiff and Respondent,
                                                        (Trial Ct. No. RIM1216935)
                  v.
   ANTHONY A. HARRIS,
                  Defendant and Appellant.




          APPEAL from an order of the Superior Court of Riverside County, Becky Dugan, Judge.

 Affirmed.

          Michael J. Kennedy for Defendant and Appellant.

          Paul E. Zellerbach, District Attorney, and Matt Reilly, Deputy District Attorney, for

 Plaintiff and Respondent.

          THE COURT*

          Defendant appeals from the denial of his motion to suppress, contending that the blood

 draw with which he cooperated after being arrested for driving under the influence (DUI) of

 drugs was nevertheless constitutionally invalid because police failed to obtain a warrant and


          Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion ts
 certified for publication with the exception of part II of the Discussion.
 *       Sharon J. Waters, Presiding Judge, Jeffrey J. Prevost and Raquel A. Marquez, Judges.
                                                 I
because there was no applicable exception to the warrant requirement. He also argues that there

was insufficient evidence that the blood draw was performed in a constitutionally reasonable

manner. In the published portion of this opinion, we find that the blood draw was justified under

the Fourth Amendment by defendant's consent pursuant to California's implied consent law

consent he never purported to withdraw by refusing to comply with the blood draw.            In the

unpublished portion of this opinion, we find that there was sufficient evidence to establish that

the blood draw was performed in a reasonable manner. Accordingly, we affirm the trial court's

denial of defendant's motion to suppress.

                                              FACTS

       On the afternoon of October 16, 2012, motorcycle officer Eric Robinson of the Riverside

County Sheriff's Department was on duty traveling on I-215 near the 60 freeway interchange,

when he saw a car unsafely cut across four lanes through traffic without signaling and accelerate

up to about 90 miles per hour. Officer Robinson followed the car at that speed for a half mile or

so, and saw it drift to the left over a double yellow line into the center median strip and back, and

then drift to the right onto the division line with the adjoining lane and back. Officer Robinson

made several attempts over his loudspeaker to pull the vehicle over, and the driver eventually

complied. He noticed that the driver, defendant, was sweating and had a rigid, flushed face,

bloodshot eyes, dilated pupils, and fast, jerky movements. The officer testified that he is a drug

recognition expert, and that these symptoms are typical of being under the influence of a

stimulant.   Defendant performed five field sobriety tests, after which Officer Robinson

concluded that defendant was "under the influence of a substance," arrested him, and advised

him pursuant to the implied consent law that he was required to take a blood test. After the

advisement defendant responded, "okay."



                                                 2
          Defendant was transported to the Moreno Valley station where Officer Robinson, who

had received some training regarding the proper procedures for DUI blood draws, saw blood

nurse Coughlin, a phlebotomist, draw a sample of defendant's blood. She swabbed the inside of

defendant's right elbow with an apparent disinfectant, and used a dry, normal hypodermic

syringe to take a sample of defendant's blood. Defendant never resisted or indicated any sort of

refusal to cooperate with the blood draw.

          Defendant was charged with DUI and with being under the influence of a controlled

substance. (Veh. Code, § 23152, subd. (a); Health & Saf. Code, § 11550, subd. (a).) 1 Prior to

trial he brought a motion to suppress, at which Officer Robinson testified to the above facts and

at which defendant testified on his own behalf. (Pen. Code, § 1538.5.) He said that his blood

was drawn in a holding cell while he was handcuffed behind his back and to a bar on the seat.

He also claimed that the officer was not, in fact, present during the draw. He admitted to having

used meth that day, and ecstasy at least two days prior, but he said that the drugs did not affect

him "[o]ther than making me alert on my drive home," and specifically that they did not impair

his perception or memory of the events surrounding his arrest. Defendant argued that Officer

Robinson had no constitutional justification for failing to obtain a warrant for the blood draw,

and that there was no evidence that accepted medical practices were followed, but the trial court

found that the blood draw was authorized under the implied consent law and denied the motion

to suppress. Defendant brings a pretrial appeal from that order. (Pen. Code, § 1538.5, subd. G).)

                                             DISCUSSION

          Defendant's first argument is that the blood draw violated the Fourth Amendment

because there were no special facts, i.e., exigent circumstances, to justify the warrantless search


1
    All further statutory references are to the Vehicle Code unless otherwise indicated.


                                                    3
as required by Schmerber v. California (1966) 384 U.S. 757, 770-71 (Schmerber), and Missouri

v. McNeely (2013) 569 U.S._ [133 S.Ct. 1552] (McNeely). He also argues that there was no

evidence that the search was performed according to accepted medical practices, as required in

order to be constitutionally reasonable. The People briefly respond that they were required to

show neither exigent circumstances nor constitutionally reasonable performance because the

blood was taken with defendant's consent pursuant to the implied consent law. Though it is not

nearly as simple a question as the People suggest, we find that cooperation with the implied

consent law does indeed constitute Fourth Amendment consent. On the other hand, we agree

with defendant that even consensual blood draws must be performed in accordance with

accepted medical practices. We ultimately find that in this case the evidence below established

the constitutionality of the blood draw in both aspects.

I. No Special Facts Establishing Exigent Circumstances Were Required Because the Blood

Draw Was Independently Justifiable as a Consent Search Pursuant to the Implied Consent

Law

       A bit of legal background is necessary here: In 1966, in Schmerber, the United States

Supreme Court upheld a warrantless, forced blood draw done in the course of a DUI

investigation where the officer was confronted with an emergency making it unfeasible to obtain a

 warrant before the defendant's blood alcohol dissipated, and where the blood draw was

performed according to accepted medical practices. (Schmerber, supra, 384 U.S. at pp. 770-72.)

Subsequent California cases uniformly interpreted Schmerber to mean that no exigency beyond

the natural evanescence of intoxicants in the blood stream, present in every DUI case, was

needed to establish an exception to the warrant requirement. (See Mercer v. Department of

Motor Vehicles (1991) 53 Cal.3d 753, 757-60, 762-63, 769 (Mercer); People v. Superior Court
                                                 4
(Hawkins) (1972) 6 Cal.3d 757, 761 (Hawkins); People v. Sugarman (2002) 96 Cal.App.4th 210,

214 (Sugarman); People v. Ford(l992) 4 Cal.App.4th 32,35 (Ford); People v. Fiscalini (1991)

228 Cal.App.3d 1639, 1642 (Fiscalini); Scott v. Meese (1985) 174 Cal.App.3d 249, 251-52;

People v. Ritchie (1982) 130 Cal.App.3d 455,458-59 [specifically with regard to drugs]; People

v. Ryan (1981) 116 Cal.App.3d 168, 182; People v. Puccinelli (1976) 63 Cal.App.3d 742, 746

(Puccinelli).) Last year, however, the high court held in McNeely that,

       while the natural dissipation of alcohol in the blood may support a finding of
       exigency in a specific case, as it did in Schmerber, it does not do so categorically.
       Whether a warrantless blood test of a drunk-driving suspect is reasonable must be
       determined case by case based on the totality of the circumstances.

(McNeely, supra, 133 S.Ct. at p. 1563.) McNeely thus repudiated the long-standing California

interpretation of Schmerber.

       The blood draw in this case was not supported by exigent circumstances as outlined in

McNeely, and the People do not so claim 2 Rather, they argue that the blood draw was taken

with defendant's consent, citing the principle "that one of the specifically established exceptions

to the requirements of both a warrant and probable cause is a search that is conducted pursuant to

consent." (Schneckloth v. Bustamante (1972) 412 U.S. 218, 219.)

       No California court has expressly considered the question of whether chemical tests taken

pursuant to the implied consent law are justifiable under the Fourth Amendment as consent

searches; before McNeely, none has had to. While in decades past it was declared that "[t]he

California 'implied consent' statute [citation][footnote] has repeatedly withstood assault on



2
  Even though the arrest and blood draw took place before McNeely was decided, defendant is
entitled to the benefit of that decision because his case is on direct appeal and not yet
final. (Griffith v. Kentucky (1987) 479 U.S. 314; People v. Song (2004) 124 Cal.App.4th 973,
982.) Furthermore, the People have not argued that the good faith exception to the exclusionary
rule set forth in Davis v. United States (2011) 564 U.S._ [131 S.Ct. 2419], applies here, and so
we have no occasion to reach that question.

                                                5
constitutional grounds" (Anderson v, Cozens (1976) 60 CaLApp.3d 130, 139), and in particular

that the statute does not violate one's right "to be free from illegal searches and seizures" (id at

pp, 140-41; Westmoreland v. Chapman (1968) 268 CaLApp.2d I, 4; Bush v. Bright (1968) 264

CaLApp.2d 788, 790), these cases simply cite Schmerber as authority, and it is easy to see why

they did. The Legislature first enacted California's original implied consent law shortly after the

decision in Schmerber, with the goal of limiting the number of '""unpleasant, undignified and

undesirable""' forced blood draws. (Ritschel v. City of Fountain Valley (2006) 137 Cai.AppAth

107, 117-18 (Ritschel) [quoting Hernandez v. Department of Motor Vehicles (1981) 30 Ca1.3d

70, 77].)   And so even though the implied consent law has never been considered a simple

codification of Schmerber, and compliance with the more strict provisions of the implied consent

law has never been a necessary prerequisite for constitutionality (id. at pp. 118-20), the two

strands ran in parallel under the longstanding California interpretation of Schmerber (see Mercer,

supra, 53 Cal.3d at p. 760 [noting that the implied consent law "is an adjunct to" Schmerber]),

such that any chemical test taken cooperatively pursuant to the implied consent law would have

also been constitutionally permissible as a forced test had the person refused to cooperate (see

Sugarman, supra, 96 CaLAppAth at p. 214 [observing that by statute drivers impliedly consent

to chemical testing if they are arrested for DUI, and also that under Schmerber drivers arrested

for DUI may be forced to undergo a blood test]). Implied consent tests were simply a subset of

all Schmerber tests, in other words. But McNeely forces a reexamination of the constitutional

basis for the implied consent regime by narrowing the circumstances under which a forced

chemical test is justified, such that a warrantless test in in the absence of case-specific exigent

circumstances can comply with the statute if done cooperatively, but now violates the Fourth

Amendment if done forcibly.     For the reasons discussed below, we hold that chemical tests



                                                6
performed in compliance with the implied consent law satisfy the Fourth Amendment as consent

searches, independently of Schmerber-McNeely.

       To divorce the constitutionality of the California implied consent law from the Schmerber

rule is consistent with the pronouncements of the United States Supreme Court and federal law.

Since at least the early 1980's, the high court has recognized that the sort of forced blood draw

authorized under Schmerber is categorically different from a blood draw that an arrestee

consented to under the persuasion of an implied consent law. (See McNeely, supra, 133 S.Ct. at

p. 1566 (plur. opn. of Sotomayor, J.); South Dakota v. Neville (1983) 459 U.S. 553, 559-60

(Neville).) Similarly, the Ninth Circuit has recognized that chemical tests done in accordance

with the implied consent law for federal lands are legally distinct from forcible tests under

Schmerber - the two categories result from the two alternative avenues available to law

enforcement for obtaining the evidence. (United States v. Chapel (9th Cir. 1995) 55 FJd 1416,

1419-20.) Furthermore, an evolving understanding of the constitutional basis for California's

implied consent statute is right at home in the history and development of the law regarding

chemical tests in DUI cases. The California Supreme Court first approved warrantless, forced

blood draws in DUI cases on the ground that they were searches incident to arrest. (People v.

Duroncelay (1957) 48 Cal.2d 766, 771-72.) The following decade, the United States Supreme

Court followed suit and in Schmerber found that the warrantless, forced blood draw in that case

complied with the Fourth Amendment as "an appropriate incident to petitioner's arrest."

(Schmerber, supra, 384 U.S. at pp. 770-71; accord Hawkins, supra, 6 Cal.3d at p. 761.) But

despite the Schmerber court's own characterization of its holding, its conclusion "did not turn on

the existence of a valid prior arrest. To the contrary, the court relied almost exclusively on the

exigency created by the evanescent nature of blood alcohol and the danger that important



                                               7
evidence would disappear without an immediate search." (People v. Trotman (1989) 214

Cal.App.3d 430, 436.) Today, the Schmerber rule is fully understood to be an application of the

exigent circumstances exception to the warrant requirement. (McNeely, supra, 133 S.Ct. at pp.

1558-60.) Likewise, in light of the entire body of law as it has developed over the decades, it is

no great innovation to say that implied consent is legally effective consent, at least so long as the

arrestee has not purported to withdraw that consent.         Indeed, other California courts have

impliedly held this understanding. In Fiscalini, supra, 228 Cal.App.3d at pp. 1641, 1645,

Division One of the Fourth District Court of Appeal construed the defendant's choice of a urine

test under the version of the implied consent law then in effect as resulting in a urine sample

"obtained ... with his consent." More recently, in People v. Cuevas (2013) 218 Cal.App.4th

1278, 1286 & fu. 3 (Cuevas), Division One of the First District Court of Appeal spoke of

defendants who chose blood tests has having given "consent under California's implied consent

law." This view also comports with the Legislature's apparent view as to the nature of the

statute, as expressed in the clause that a person who is dead, unconscious, or otherwise incapable

of refusal "is deemed not to have withdrawn his or her consent and a test or tests may be

administered ...." (§ 23612, subd. (a)(5).)

       We recognize, as defendant points out, that Fourth Amendment consent must be free and

voluntary, rather than coerced or given in mere submission to authority.          (People v. Lawler

(1973) 9 Cal.3d 156, 163; People v. Challoner (1982) 136 Cal.App.3d 779, 781.) Even so,

consent is not invalid under the Fourth Amendment simply because it was given in advance and

in exchange for a related benefit, and this is all the implied consent law accomplishes. (See

People v. Robles (2000) 23 Cal.4th 789, 795 [for Fourth Amendment purposes, a defendant "may

validly consent in advance to warrantless searches and seizures in exchange for the opportunity



                                                 8
to avoid serving a state prison term" by being placed on probation]; People v. Bravo (1987) 43

Cal.3d 600, 608 [same, with the added recognition that "[p]robation is not a right, but a

privilege"].) To drive a motor vehicle on the highways of this state is a privilege subject to

regulation, not a right (Tolces v. Trask (1999) 76 Cal.App.4th 285, 290), and one such regulation

is that any person who does so is statutorily "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," or "of his or her blood for the purpose of determining the drug

content of his or her blood, if lawfully arrested for" DUI (§ 23612, subds. (a)(l)(A), (B)). By

choosing to use the highways, drivers voluntarily bring themselves under the regulation of the

implied consent law. (See Troppman v. Valverde (2007) 40 Cal.4th 1121, 1125, 1139; see also

McNeely, supra, 133 S.Ct. at p. 1566 (plur. opn. of Sotomayor, J.) [speaking favorably of

"implied consent laws that require motorists, as a condition of operating a motor vehicle within

the State, to consent to [blood alcohol] testing if they are arrested or otherwise detained on

suspicion of a drunk-driving offense"]; State v. Brooks (Minn. 2013) 838 N.W.2d 563, 572

[recognizing that the McNeely plurality opinion supports the idea that a state can require consent

to appropriate chemical testing as a precondition for driving in the state].) Furthermore, drivers

are presumed to know the law. (See Murphy v. Clayton (1896) 113 Cal. 153, 161 ["every one is

presumed to know the law"]; People v. Munroe (1893) 100 Cal. 664, 670 [similar]; Bank One

Texas v. Pollack (1994) 24 Cal.App.4th 973, 981 [similar].) It follows that motorists freely

consent for Fourth Amendment purposes to chemical testing in accordance with the terms of the

implied consent law, in exchange for the privilege of using the roads. (See also McNeely, supra,

133 S.Ct. at p. 1566 (plur. opn. of Sotomayor, J.) [characterizing a chemical test performed

pursuant to an implied consent law as an alternative to a nonconsensual blood draw].)



                                               9
       The fact that there are penalties for a refusal to cooperate with such testing upon arrest

does not render the consent illusory or coercive. (See §§ 13353 [setting forth the consequences

to one's driving privilege for refusal], 23577 [setting forth the enhanced penal consequences

upon being convicted for DUI].) In the first place, the Court of Appeal has expressly upheld the

use of a refusal to enhance the punishment for DUI against a Fourth Amendment challenge; it

reasoned that there is no coercion if the Legislature has "the authority ... to impose a condition

on the right to refuse," and that the Legislature does have that authority here because, even

though a fundamental liberty interested is affected, the refusal penalty statute meets strict

scrutiny and so satisfies due process. (Quintana v. Municipal Court (1987) 192 Cai.App.3d 361,

367-69 [reviewing former section 23159, now numbered as section 23577].) Similarly, with

regard to administrative penalties, as discussed above the privilege to drive on the public

highways in the first place is conditional on implied consent to chemical testing upon a DUI

arrest. To have used the roads, only thereafter to refuse to submit to chemical testing when

required, is to abuse the driving privilege, and justifies a suspension of those privileges. In the

unique context of giving consent to a search and seizure in exchange for a benefit, the person

cannot enjoy the benefit only then to renounce the cost, and expect to continue enjoying the

benefit. (See People v. Mason (1971) 5 Cal.3d 759, 762-63, disapproved on another ground in

People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1 [holding that a probationer who agreed to a

search term cannot avoid an imminent search by refusing law enforcement permission to conduct

it].) The public also has a right to expect the bargain to be honored, and a person who has shown

a disinclination to abide by the agreement is not a fit candidate for continued, immediate,

limitless use of the highways. In this way we can understand how case law has described the

implied consent law as a "method of compelling a person arrested for drunk driving to submit to



                                                10
a test for intoxication" (Hawkins, supra, 6 Cal.3d at p. 765), while describing chemical tests

submitted to under the law as "noncoercive" and the product of "volition" as opposed to

compulsion (Puccinelli, supra, 63 Cal.App.3d at pp. 745-46).

       This is not to say that a driver arrested for DUI can be said to have consented to a forcible

blood draw in contravention of his then-expressed wishes in the event he purports to withdraw

his consent. Setting aside the question of constitutionality (see McNeely, supra, 133 S.Ct. at p.

1566 (plur. opn. of Sotomayor, J.) [suggesting that a driver's refusal to submit to a chemical test

under an implied consent law operates as a withdrawal of consent and renders any subsequent

test nonconsensual]), there is nothing in the implied consent law to indicate that such measures

are within the scope of the consent, and so in these cases the implied consent law gives way to

the constitutional rules of Schmerber and its progeny (see Ritschel, supra, 137 Cal.App.4th at pp.

118-20). But it does mean that such a person who cooperates with a chemical test pursuant to

the implied consent law has given real and voluntary consent, excusing police from obtaining a

warrant. This is exactly what happened in this case. After the officer informed him that he was

required to submit to a blood draw, defendant responded "okay." Later, at the police station, all

indications are that defendant went along with the blood draw through to its completion. He

never, at any point, gave either the slightest resistance or suggestion that he wished to revoke his

consent. Under the legal principles discussed above, defendant's positive cooperation with the

blood draw therefore constituted valid Fourth Amendment consent 3


3
         Defendant points out that under section 23612, subdivisions (a)(2)(B) and (C) a person
arrested for a drug-related DUI is to be given the choice of a blood test or a breath test, and if he
or she chooses a breath test a subsequent blood test may be required. But "California case law
unequivocally establishes a police officer's failure to comply with the implied consent law does
not amount to a violation of an arrestee's constitutional rights." (Ritschel, supra, 137
Cal.App.4th at p. 118.) Officer Robinson's failure to first offer defendant a choice between a
blood test and a breath test does not change the fact that by the act of driving defendant
                                                 II
II. Even Implied Consent Blood Draws Must Be Performed in a Reasonable Manner, and the

Evidence Here Is Sufficient to Show that Proper Medical Procedures Were Followed

       Defendant is correct that the prosecution was required to show that his blood draw was

performed in accordance with accepted medical practices.           The People suggest that this

requirement only applies to forced blood draws, not those taken cooperatively under the implied

consent law, but the Court of Appeal recently held to the contrary that "even if a defendant

consents to a blood test under California's implied consent law, such consent does not obviate

the requirement that the blood test be conducted in a constitutionally reasonable manner."

(Cuevas, supra, 218 Cal.App.4th at pp. 1285-86 & fn. 3.)

       Nevertheless, we find sufficient evidence in the record to establish that defendant's blood

draw was reasonably performed, specifically Officer Robinson's testimony that it was done with

defendant's cooperation by a phlebotomist using an ordinary, dry syringe after she had swabbed

defendant's arm with what appeared to be a disinfectant, with no indication that medical

standards were violated or that the blood draw was painful or involved a risk of infection. (See

Cuevas, supra, 218 Cal.App.4th at p. 1286; Sugarman, supra, 96 Cal.App.4th at p. 216.) "In

reviewing the trial court's denial of a motion to suppress evidence, we view the record in the

light most favorable to the trial court's ruling, deferring to those express or implied findings of

fact supported by substantial evidence."      (People v. Jenkins (2000) 22 Cal.4th 900, 969.)

Accordingly, we need not accept defendant's contrary assertion that the officer was not present

to observe the blood draw. Additionally, even if we accept defendant's testimony that he was

handcuffed in a holding cell when the blood draw was performed, it does not change the fact that

"nothing in this record suggests that the location in which this test occurred was unsafe or


specifically consented to a blood test - not a breath or blood test - in the event he was lawfully
arrested for a drug-related DUI. (§ 23612, subd. (a)(l)(B).)
                                                12
unsanitary" (Ford, supra, 4 Cai.App.4th at p. 37), or that defendant was "subjected ... to any

unusual pain or indignity" (People v. Esayian (2003) 112 Cai.App.4th I 031, 1041).

                                        DISPOSITION

       The order denying defendant's motion to suppress is affirmed.




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