Filed 10/2/18

                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,
                                                  A153419
v.
ELIO GUTIERREZ,                                   (Contra Costa County
                                                  Super. Ct. No. 5170563)
        Defendant and Appellant.



        The issue in this case is one that arises every day in California. A law
enforcement officer arresting someone for driving under the influence (DUI) informs the
suspect that he or she must submit to a breath test or blood test to measure blood alcohol
content (BAC). If the suspect, faced with this choice between tests, elects a blood test,
must the arresting officer then get a warrant before having the suspect’s blood drawn?
We conclude no warrant is necessary in these circumstances, under the well-recognized
and categorical exception to the Fourth Amendment’s warrant requirement for a search
incident to arrest.
        The United States Supreme Court recently applied the search-incident-to-arrest
doctrine to BAC testing in Birchfield v. North Dakota (2016) 579 U.S. ___
[136 S.Ct. 2160] (Birchfield). Birchfield held that a motorist arrested on DUI charges
may be compelled to blow into a machine to measure the driver’s BAC; the arresting
officer needs no warrant because a breath test is a valid search incident to a DUI arrest.
(Id. at p. 2176.) But if instead the officer directs that the suspect’s blood be drawn for
the same purpose, the officer does need a warrant. A blood test is more intrusive, and so

                                              1
cannot be justified under the search-incident-to-arrest exception to the warrant
requirement, Birchfield held. (Id. at p. 2184.) What Birchfield does not address is how
the search-incident-to-arrest exception applies when a suspect is compelled to undergo
BAC testing but given a choice as to what form that testing takes. We hold that this
element of choice is dispositive, and that if a DUI suspect freely and voluntarily chooses
a blood test over a breath test then the arresting officer does not need a warrant to have
the suspect’s blood drawn.


                   I.   FACTS AND PROCEDURAL BACKGROUND

       The district attorney charged Gutierrez with three misdemeanor counts: driving
under the influence of an alcoholic beverage (Veh. Code, § 23152, subd. (a)), driving
with a .08-percent blood alcohol content (Veh. Code, § 23152, subd. (b)), and driving a
motor vehicle without a valid license (Veh. Code, § 12500, subd. (a)). Gutierrez moved
pursuant to Penal Code section 1538.5 to suppress all evidence obtained from a blood
draw administered after his arrest, arguing that the blood test violated the Fourth
Amendment because the police did not obtain a warrant.
       The evidence at the hearing on defendant’s motion showed that at approximately
12:30 a.m. on August 24, 2015, Concord police officer Justin Wilson was dispatched to a
parking lot where a security guard had observed a red truck “doing a burn-out in the
parking lot spinning its back tires.” Approaching the red truck, which was then parked,
Wilson observed an individual later identified as Gutierrez asleep in the driver’s seat.
Wilson asked Gutierrez for his driver’s license, and Gutierrez responded with a Mexican
consular identification card instead. Wilson ran a driver’s license check and learned that
Gutierrez had no valid California driver’s license.
       While speaking with Gutierrez, Wilson smelled alcohol on his breath and noticed
watery eyes and a slight slur to his speech. Gutierrez admitted to drinking several beers.
With the aid of a Spanish-speaking police officer to translate, Wilson administered field


                                              2
sobriety tests including a Preliminary Alcohol Screening test. Concluding as a result of
this investigation that Gutierrez had been driving under the influence of alcohol, Wilson
placed him under arrest.
       With the assistance of the Spanish-speaking officer, Wilson informed Gutierrez
that the law required him to submit to a blood or breath test. Wilson then transported
Gutierrez to jail, where Gutierrez chose the blood test.1 A phlebotomist arrived to draw
Gutierrez’s blood, which Gutierrez did not resist. Neither Wilson nor the Spanish-
speaking officer ever informed Gutierrez that if he refused both tests, he could face
penalties under California’s implied consent laws.
       At the close of the hearing on the motion to suppress, the prosecution argued that
police properly administered the blood draw without a warrant because Gutierrez had
consented to the test. The trial court disagreed, finding that the prosecution had not
proven voluntary consent because it had not established that Gutierrez understood he
could refuse the test and face the consequences. The judge distilled the facts of the case
to this: “what the officer said to Mr. Gutierrez was the functional equivalent of, [‘]We’re
either going to have your breath or we’re going to have your blood. Take your
choice[.’] ” Citing Missouri v. McNeely (2013) 569 U.S. 141 (McNeely), a case that
narrows the circumstances justifying a warrantless blood draw, the court concluded this
was an unconstitutional search and granted Gutierrez’s motion. The prosecutor had made
only passing reference to Birchfield, and the court did not mention the case in explaining
its ruling.
       The prosecution appealed, and a divided panel of the superior court’s appellate
division reversed. Although a majority of the panel agreed with the trial court that
Gutierrez had not consented to the blood draw, a different majority concluded the officer

1
  The evidence is conflicting on whether the Spanish-speaking officer accompanied
Gutierrez and Wilson to the jail, but it is uncontested on the central point: the Spanish-
speaking officer translated for Gutierrez while Wilson explained to him the requirement
for a breath or blood test, and thereafter Gutierrez chose a blood test. Gutierrez does not
argue that he did not understand the choice between the two tests, only that he was not
informed of his right to refuse both of them.

                                             3
did not violate the Fourth Amendment because he allowed Gutierrez to choose between a
blood draw and a breath test. Under Birchfield the police may require a person arrested
on DUI charges to submit to a breath test without a warrant or consent, the majority
reasoned, so the option for a breath test meant that Gutierrez was never compelled to
submit to a blood draw. The dissenting judge disagreed on this point: “the fact that the
suspect could have elected a different test method that does not require a warrant has no
effect on the duty to seek a warrant for a blood draw,” in his view.
       Gutierrez petitioned our court for review. We granted the petition after
concluding “that transfer is necessary to secure uniformity of decision or to settle an
important question of law.” (Cal. Rules of Court, rule 8.1002.)


                                    II. DISCUSSION

       A. Warrentless Searches
       “Under the Fourth Amendment to the United States Constitution, a warrantless
search is per se unreasonable unless the People prove that the search comes within a
recognized exception to the warrant requirement.” (People v. Meza (2018)
23 Cal.App.5th 604, 609-610 (Meza).) Drawing a blood sample or administering a breath
test is a search (Birchfield, supra, 136 S.Ct. at p. 2173), and in Gutierrez’s case there was
no warrant, so the question becomes whether any of the well-recognized exceptions to the
warrant requirement justifies this blood draw.
       At least three exceptions to the warrant requirement may apply in a DUI case.
Each must be analyzed separately. Exigent circumstances, the exception to the warrant
requirement at issue in McNeeley, is not relevant here, as no party has argued the
circumstances of this case bring it within the exigent circumstances exception.
(Cf. McNeeley, supra, 569 U.S. at p. 165; Meza, supra, 23 Cal.App.5th at p. 611.)
Consent, the exception to the warrant requirement that the parties addressed at length in
their original briefing before this Court, supplies the rule of decision in a number of



                                              4
recent cases addressing DUI blood draws, with conflicting results. (See, e.g., People v.
Balov (2018) 23 Cal.App.5th 696, review granted Sept. 12, 2018, S249708 (Balov)
[consent, although suspect was not told of right to refuse]; People v. Vannesse (2018)
23 Cal.App.5th 440, 448, review granted Aug. 29, 2018, S249428 [consent, where
suspect signed a form giving option to refuse]; People v. Ling (2017)
15 Cal.App.5th Supp. 1 [no consent]; People v. Mason (2016) 8 Cal.App.5th Supp. 11
[no consent].) Search incident to arrest is a third exception to the warrant requirement,
and the one primarily at issue in Birchfield. At our request, the parties submitted
supplemental letter briefs addressing this exception.
       We conclude that the blood draw in this case requires no warrant under the search-
incident-to arrest exception. We agree with the appellate panel that the police may,
without a warrant, subject a DUI suspect to a breath or blood test as long as the suspect,
rather than the arresting officer, is choosing which test to administer. Like the appellate
panel, our disagreement with the trial court is strictly legal, so we exercise independent
judgment in reviewing the constitutionality of the search. (People v. Tully (2012)
54 Cal.4th 952, 979.)
       B. Birchfield Comes to California
       “The search-incident-to-arrest doctrine has an ancient pedigree.” (Birchfield,
supra, 136 S.Ct. at p. 2174.) It is a “ ‘categorical rule’ ” that “justifies ‘a full search of
the person’ ” upon lawful arrest. (Id. at p. 2176.) In Birchfield, the United States
Supreme Court heard three consolidated cases, each addressing an aspect of “how the
search-incident-to-arrest doctrine applies to breath and blood tests incident to [DUI]
arrests.” (Id. at p. 2174.) In two of the cases, North Dakota drivers were directed to take
blood tests, and in the third a Minnesota driver was ordered to take a breath test, all
without warrants. (Id. at pp. 2170-2172.) One of the three drivers submitted to the test;
the other two refused and incurred the attendant penalties. (Ibid.) All three drivers



                                                5
challenged their searches on Fourth Amendment grounds, but only the North Dakotans’
challenges succeeded. (Id. at p. 2187.)
       Weighing the degree to which a test intrudes upon an individual’s privacy against
the government’s interest in obtaining test results, the Supreme Court adopted this rule: a
breath test may proceed without a warrant as a search incident to a valid DUI arrest; a
blood test may not. (Birchfield, supra, 136 S.Ct. at pp. 2176, 2185.) The Court reasoned
“that breath tests do not ‘implicat[e] significant privacy concerns’ ” and “entail ‘a
minimum of inconvenience.’ ” (Id. at p. 2176 (quoting Skinner v. Railway Labor
Executives’ Assn. (1989) 489 U.S. 602, 625-626).) By contrast, blood tests “ ‘require
piercing the skin’ ” and “plac[ing] in the hands of law enforcement authorities a sample
... from which it is possible to extract information beyond a simple BAC reading.”
(Birchfield, supra, at p. 2178.) The need for this greater intrusion “must be judged in
light of the availability of the less invasive alternative of a breath test,” the Supreme
Court explained. (Id. at p. 2184.) The State of North Dakota “offered no satisfactory
justification for demanding the more intrusive alternative without a warrant,” and so
could not compel a blood test. (Id. at p. 2184.)
       In cases such as Gutierrez’s, California’s statutory scheme does not demand the
more intrusive alternative of a blood test without a warrant. Unlike North Dakota, where
the law enforcement officer determines which test to administer, in California a DUI
suspect usually is given the choice between a breath test and a blood test. (Compare
N.D. Cent. Code Ann. §39-20-01(2) (2016) (“law enforcement officer shall determine
which of the tests is to be used”) with Cal. Veh. Code, § 23612(a)(2)(A) (“lawfully
arrested ... person has the choice of whether the test shall be of his or her blood or
breath”).) Gutierrez was given that choice. For him, the search consisted of whichever
of the two chemical tests he preferred. If the state can lawfully require a DUI suspect to
take a breath test – and Birchfield says that it can – then surely the state can lawfully
require the suspect to take that same breath test or an alternative if he prefers it. That the

                                               6
state cannot compel a warrantless blood test does not mean that it cannot offer one as an
alternative to the breath test that it clearly can compel. This was the essential insight of
the appellate panel that led it to reverse the trial court in this case.
       C. Breath-or-Blood Testing
       We reach the same conclusion by analyzing from first principles the search-
incident-to-arrest doctrine and the search to which Gutierrez was subjected. Let us call
this search a “breath-or-blood” test, since the arresting officer gave Gutierrez the choice
of a breath or blood test.
       Birchfield teaches that to determine whether this category of search is a valid
search incident to arrest, we must weigh two competing interests: “ ‘ “on the one hand,
the degree to which [the breath-or-blood test] intrudes upon an individual’s privacy and,
on the other, the degree to which it is needed for the promotion of legitimate
governmental interests.” ’ ” (See Birchfield, supra, 136 S.Ct. at p. 2176 (quoting Riley v.
California (2014) 573 U.S.___ [134 S.Ct. 2473]).) Deductive reasoning compels the
conclusion that the breath-or-blood test intrudes on an individual’s privacy no more than
does the breath test, the less-intrusive option that it includes. Thus, under Birchfield, the
breath-or-blood test “ ‘does not implicate significant privacy concerns’ ” because the
breath test does not. (See id. at p. 2178.) As in Birchfield, “[t]he need for BAC testing is
great,” and weighing this legitimate governmental interest against the intrusion on
privacy, we conclude that the Fourth Amendment permits warrantless breath-or-blood
testing, based on the same calculus that led the Supreme Court to approve warrantless
breath testing. (Id. at p. 2184.)
       Gutierrez objects that there is no such thing as a breath-or-blood test, but only two
distinct tests that encroach on a suspect’s privacy to differing degrees and are therefore
governed by different categorical rules – a blood test requiring a warrant, and a breath
test not. This is essentially the argument of the dissenting judge on the appellate panel,
who opined that the available option of a breath test had no bearing on the

                                                7
constitutionality of the warrantless blood draw. We agree with Gutierrez that the search-
incident-to-arrest doctrine operates by categorical rule, rather than by weighing the
totality of circumstances in each case anew. (Birchfield, supra, 136 S.Ct. at p. 2176.)
But this categorical approach highlights the importance of getting right the determination
of which category applies. On that issue we disagree with Gutierrez. We conclude that
to analyze this case – or any case that fits into the broad category of breath-or-blood
testing – as if it involved merely a blood test is a category error. From the perspective of
the suspect subjected to a search, there is a material difference between being compelled
to take a blood test and being compelled to take either a breath or blood test, whichever
the suspect prefers.
       A careful reading of Birchfield shows that the United States Supreme Court has
not yet addressed the category of cases into which Gutierrez’s fits. Although the opinion
includes broad language that a blood test may not “be administered as a search incident
to” arrest (Birchfield, supra, 136 S.Ct. at p. 2185), we know that “ ‘ “language in a
judicial opinion is to be understood in accordance with the facts and issues before the
court. An opinion is not authority for propositions not considered.” ’ ” (People v.
Knoller (2007) 41 Cal.4th 139, 154-155 (internal citations omitted).) The United States
Supreme Court never considered whether a blood test could be administered as a search
incident to arrest if a suspect elects it over a breath test, when both are offered. The
defendant who submitted to a blood test in Birchfield was told that the law required his
submission (Birchfield, supra, 136 S.Ct. at p. 2186; see also Beylund v. Levi (2015)
859 N.W.2d 403), and under North Dakota law it was the arresting officer, not the
motorist, who had to decide which test to administer. (N.D. Cent. Code Ann. § 39-20-
01(2) (2016).) The same sentence in Birchfield that announces the rule against
warrantless blood tests grounds this rule on a comparison to the less-intrusive alternative
of breath testing. (Birchfield, supra, 136 S.Ct. at p. 2185 [“Because breath tests are
significantly less intrusive than blood tests and in most cases amply serve law

                                              8
enforcement interests, we conclude that a breath test, but not a blood test, may be
administered as a search incident to a lawful arrest for drunk driving.”]) California’s
statutory scheme completely undermines this rationale. It creates an entire category of
cases in which the DUI suspect must take a blood test only because he or she has chosen
it over a breath test. Birchfield did not consider this category of cases.
       An older case confirms that the availability of options for a DUI suspect may be
dispositive in constitutional analysis. In South Dakota v. Neville (1983) 459 U.S. 553,
the United States Supreme Court considered whether the constitution allows a prosecutor
to introduce evidence of a DUI suspect’s refusal to take a chemical test. The defendant in
Neville had declined BAC testing at the time of his arrest, protesting “I’m too drunk, I
won’t pass the test,” and he then objected on grounds of self-incrimination to this
evidence being used at trial. (Id. at pp. 555-557.) The Court was unmoved. It concluded
the government had not compelled this communication because it had given Neville a
choice to take the test. (Id. at p. 562-564.) “[T]he values behind the Fifth Amendment
are not hindered when the state offers a suspect the choice of submitting to the blood-
alcohol test or having his refusal used against him.” (Id. at p. 563.) Neville conceded,
“as he must, that the state could legitimately compel the suspect, against his will, to
accede to the test. Given, then, that the offer of taking a blood-alcohol test is clearly
legitimate, the action becomes no less legitimate when the State offers a second option of
refusing the test, with the attendant penalties for making that choice.” (Ibid.) By
analogy, Fourth Amendment values are not hindered when the state offers a suspect the
choice between submitting to a warrantless breath test – which the state concededly can
compel – and submitting to the more-intrusive blood test if the suspect prefers it.
       Gutierrez likened the choice he faced between breath and blood testing to a
defendant arrested in his car for drug possession who is then given a choice between two
searches: a warrantless search of his car, which the constitution allows (Arizona v. Gant
(2009) 556 U.S. 332, 350), and a warrantless search of his cellphone, which it does not

                                              9
(Riley v. California, supra, 134 S.Ct. 2473). Counsel argued that if the suspect in this
hypothetical chose the cellphone search, we would not consider it a valid search incident
to arrest even though the suspect had chosen the cellphone search over a search that
would have been a valid search incident to arrest. Counsel’s argument is creative, but
unpersuasive.
       Gutierrez’s hypothetical differs from the breath-or-blood test at issue in this case
because the category of car-or-cellphone testing is a fiction. We cannot imagine, as
anything other than an academic exercise, that the state would routinely put suspects to
the choice in Gutierrez’s hypothetical. A car search and a cellphone search generally
serve different purposes and yield different kinds of evidence, so law enforcement would
likely pursue these two searches independently, rather than treating them as alternatives.
By contrast, California law requires arresting officers in most DUI cases to treat breath
and blood testing as equally acceptable alternatives. The Vehicle Code states the suspect
“has the choice of whether the test shall be of his or her blood or breath and the officer
shall advise the person that he or she has that choice.” (Veh. Code, § 23612(a)(2)(A).)2
It is this statute that establishes the category of breath-or-blood testing, because it
describes the test an officer should administer – a breath test or a blood test at the
suspect’s election. No similar statutory or practical rationale creates a category of car-or-
cellphone testing.
       Conceding, as he must, the constitutionality of a warrantless breath test, Gutierrez
would have his act of choosing a blood test over that breath test trigger the requirement
for a warrant. We fail to see how Fourth Amendment values are enhanced by requiring a
2
  The statute also allows the arresting officer to request a blood test in addition to breath-
or-blood testing in certain cases where the suspect has been arrested for driving under the
influence of drugs, or a combination of drugs and alcohol. (Veh. Code,
§ 23612(a)(2)(B)&(C).) The constitutionality of that second test, where it occurs, can
and should be separately analyzed. Also we note that the Legislature recently amended
other portions of Vehicle Code section 23612, but those amendments do not affect this
analysis. (See Assembly Bill No. 2717 (2017–2018 Reg. Sess.).)

                                              10
magistrate to review a warrant application before an arresting officer can accommodate a
suspect’s preference for a particular BAC test.
       In the related context of a driver’s license suspension hearing, another court of
appeal has similarly refused to require a warrant when a suspect chooses blood testing
over a breath test. (See Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85.) When
Espinoza was arrested for DUI and offered a choice between breath and blood testing,
she chose the blood test but insisted it not go forward without a warrant, which the
arresting officer declined to procure. (Id. at p. 94.) The Department of Motor Vehicles
suspended Espinoza’s license for refusing the chemical test, and the court of appeal
upheld that suspension. (Id. at p. 92.) The court assumed without deciding that Espinoza
was entitled to refuse a warrantless blood test, but because refusing a breath test would
justify suspending her license, the court concluded that her simultaneous refusal to breath
test and to submit to a warrantless blood test supported the license suspension. (Id. at
pp. 113, 116.) At bottom, the Espinoza court refused, as do we, to require a warrant as
the consequence of a suspect’s own preference for a blood test.
       D. Consent to Additional Intrusion
       By opting for the more intrusive procedure, Gutierrez effectively volunteered for
whatever additional intrusion a blood test involves, over and above the intrusion inherent
in a breath test. For this reason, a suspect who opts for a blood test may be said to
consent to the additional intrusion the test entails. But this is a different question from
whether a suspect consents to a chemical test in the first place. Consent to a search, as a
separate exception to the warrant requirement, must be evaluated under the totality of the
circumstances. (Balov, supra, 23 Cal.App.5th at p. 701.) Here, the parties cite a host of
circumstances to support their respective arguments as to whether Gutierrez freely and
voluntarily consented to the search in this case. We need not consider many of those
facts or resolve the contested issue of whether Gutierrez consented to a chemical test
because there is no question that the arresting officer gave Gutierrez a choice between

                                              11
breath and blood testing, and that when faced with this much more constrained choice
Gutierrez elected the blood draw.
       The relevant circumstances in this case are those that establish Gutierrez was
lawfully arrested on suspicion of DUI, and that he then freely and voluntarily exercised
the choice California law gives him to take a blood test instead of a breath test. These are
the facts that bring this blood draw into the category of breath-or-blood searches that
require no warrant under the search-incident-to-arrest doctrine. If Gutierrez had not been
presented with a choice between the two tests, or if he had been presented with a nominal
choice but compelled to take the blood test without freely and voluntarily choosing it
over the breath test, then we could not analyze this search as a breath-or-blood test.
       In sum, because Gutierrez chose between the two types of BAC test (as distinct
from choosing whether to take a chemical test at all), we hold that the search in this case
is properly characterized as a breath-or-blood test and is justified under the search-
incident-to-arrest exception to the warrant requirement.
                                      DISPOSITION
       The judgment of the appellate panel is AFFIRMED.




                                             12
                                     _________________________
                                     Tucher, J.


We concur:


_________________________
Streeter, Acting P.J.


_________________________
Reardon, J.




People v. Gutierrez (A153419)   13
Trial Court:                    Contra Costa County Superior Court

Trial Judge:                    Hon. Charles B. Burch

Counsel for Appellants:         Robin Lipetzky, Contra Costa County Public
                                Defender; Gilbert Rivera, Deputy Public
                                Defender, Anthony Gedeon

Counsel for Respondents:        Xavier Becerra, Attorney General; Gerald A.
                                Engler, Chief Assistant Attorney General;
                                Jeffrey M. Laurence, Senior Assistant Attorney
                                General; Laurence K. Sullivan, Supervising
                                Deputy Attorney General; Bridget Billeter,
                                Deputy Attorney General




People v. Gutierrez (A153419)     14
