Filed 8/29/14 P. v. Benedict CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C074198

         v.                                                                      (Super. Ct. No. 12F04318)

KAREN ANN BENEDICT,

                   Defendant and Appellant.


         Defendant Karen Ann Benedict appeals her judgment following the trial court’s
denial of her motion to suppress evidence obtained as a result of a warrantless blood
draw. She contends the blood draw was illegal because it was not obtained incident to
an arrest, it was obtained without probable cause, and there was no exigent circumstance
to excuse not obtaining a warrant. We reject defendant’s contentions because (1) the
lack of an actual arrest does not render the warrantless blood draw illegal if there was
probable cause to believe defendant was driving under the influence of alcohol, (2) the
record supports the officer’s probable cause to arrest defendant for driving under the
influence of alcohol at the time the blood sample was taken, and (3) the totality of the



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circumstances supports a finding of exigent circumstance. Accordingly, we affirm the
trial court’s judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On March 9, 2012, at approximately 9:30 p.m., Officer Adam Gonzalez was
dispatched pursuant to a reported “wrong-way driver” and “head-on collision” on Iron
Point in Folsom. Iron Point has two lanes in each direction with a 12- to 14-foot-wide
center divider with raised concrete curbs. When he arrived on scene, Gonzalez saw two
vehicles -- a white Toyota Camry in a westbound lane facing south and a white Nissan
Sentra on the center divider facing north with its front wheels in a westbound lane. Both
vehicles had sustained major front end damage.
       The three individuals from the Toyota Camry were lying on the sidewalk being
attended to by witnesses. Gonzalez found defendant in the Nissan Sentra driver’s seat
with her head “slumped backwards,” eyes closed, and “a significant amount of blood
around her nose and mouth area.” Defendant was initially unresponsive but she began to
“come to” when Gonzalez attempted to obtain defendant’s pulse after cutting the
deployed curtain side air bag. When she began to respond, Gonzalez climbed into the
seat behind defendant to support her neck and prevent her from moving. At the time,
Gonzalez was unable to note any objective symptoms of intoxication because the air bag
explosive and powders overpowered any other odor in the car, and Gonzalez was more
focused on preventing and assessing defendant’s injuries than on “check[ing] her pupils.”
But defendant admitted to Gonzalez she had been drinking “earlier.”
       Defendant was removed from the vehicle by other personnel and transported to the
hospital. Gonzalez coordinated with officers at the accident scene and followed the
ambulances (one each for defendant and for the driver and passengers of the Toyota
Camry) to the University of California at Davis Medical Center. At the hospital,
Gonzalez attempted to speak with defendant, but she was being treated, so he spoke with



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the victims. The driver of the Toyota Camry reported he was driving westbound on Iron
Point “when he saw headlights in his lane [and before] he could react, he was struck by
another vehicle.” The female passenger of the Toyota Camry confirmed defendant hit
them head-on, traveling in the wrong direction.
       Gonzalez spoke with defendant, who confirmed she had a “glass of wine” and had
been heading home but “couldn’t remember what had happened.” Defendant appeared
“to be out of it” and “was not fully cognizant,” either because of the accident or
intoxication -- Gonzalez was “not totally sure.” Defendant appeared to be “noticeably
impaired,” though Gonzalez was unsure if that was due to the medication she was
receiving, “alcohol, or the accident itself.” Based on “all of the observations from
multiple phone calls of a wrong way driver,” his “training and experience,” defendant’s
statement she had been “drinking wine earlier in the night and her actions,” Gonzalez
suspected she might have been driving under the influence and arranged for a nurse to
perform a blood draw. The result of defendant’s blood alcohol analysis, drawn at
10:48 p.m., was 0.18 percent.
       Defendant was charged in count one with causing injury to another while
driving in the wrong direction and under the influence of alcohol and a drug (Veh.
Code, §§ 23153, subd. (a), 21651, subd. (b)) along with special allegations of causing
great bodily injury to multiple victims (Veh. Code, § 23558; Pen. Code, § 12022.7,
subd. (a)), and, in count two, with causing injury to another while driving with a blood
alcohol level above the legal limit and above 0.15 percent (Veh. Code, §§ 23153,
subd. (b), 23578), along with bodily injury special allegations (Pen. Code, § 12022.7,
subd. (a)).
       Defendant moved to suppress evidence of her blood analysis on the basis that the
warrantless blood draw was illegal because Gonzalez lacked probable cause and there
were not exigent circumstances. The trial court found there was probable cause to arrest



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defendant “based on the defendant’s seriously dangerous driving pattern including going
the wrong way for a significant enough period of time that people were calling 911; the
fact that she hit head-on a vehicle going the wrong way, [and] that she admitted that she
had been drinking at the scene and admitted at least to consuming one glass of wine.”
The court also found an exigency in that defendant had already been admitted to the
hospital and was receiving medical intervention, “including the introduction of
intravenous fluid or other medical prescriptions” that might have affected the ability to
obtain an accurate analysis of her blood alcohol level. Additionally, the court found the
officer was acting “in good faith” based on the law in California at the time of the
incident. Finally, the court concluded that “the delay necessary to obtain a warrant
would . . . have caused the loss of relevant evidence.” Therefore, the trial court denied
defendant’s suppression motion.
       Defendant ultimately pled no contest to driving under the influence of alcohol and
a drug, admitted one allegation of great bodily injury, and admitted two multiple victim
enhancements. The court dismissed count two in the interest of justice and in view of the
plea, and sentenced defendant to serve an aggregate term of 6 years 4 months: 16 months
for count one, 3 years for the great bodily injury enhancement, and 2 one-year multiple
victim enhancements.
                                      DISCUSSION
       Challenges to the admissibility of evidence obtained by a search or seizure are
evaluated under federal constitutional standards. (People v. Schmitz (2012) 55 Cal.4th
909, 916.) The Fourth Amendment to the United States Constitution protects an
individual’s right to be secure in his or her person against unreasonable searches
and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9 [20
L.Ed.2d 898].) The central inquiry under the Fourth Amendment is the reasonableness
under all of the circumstances of the particular governmental invasion of a defendant’s



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personal security. (Terry, supra, at p. 19.) A defendant may move to suppress evidence
obtained as the result of an unreasonable search or seizure. (Pen. Code, § 1538.5,
subd. (a)(1)(A).)
       In reviewing the trial court’s denial of a suppression motion, we consider the
record in the light most favorable to the trial court’s disposition and defer to the trial
court’s factual findings, if supported by substantial evidence. (People v. Tully (2012)
54 Cal.4th 952, 979.) Any conflicts in the evidence are resolved in favor of the trial
court’s order. (People v. Limon (1993) 17 Cal.App.4th 524, 529.) If “ ‘ “the evidence is
uncontradicted, we do not engage in a substantial evidence review, but face pure
questions of law.” [Citation.]’ ” (Ibid.) We exercise our independent judgment to
determine whether, on the facts found, the search or seizure was reasonable under the
Fourth Amendment. (Tully, supra, at p. 979.) And we will affirm the trial court’s ruling
if correct on any theory of applicable law, even if for reasons different than those given
by the trial court. (People v. Evans (2011) 200 Cal.App.4th 735, 742; People v. Hua
(2008) 158 Cal.App.4th 1027, 1033.)
                                              A.
                                        Lack of Arrest
       Defendant first contends her warrantless blood draw was illegal because
Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2d 908] (Schmerber) only applies
incident to an arrest and defendant had not been formally arrested at the time of the blood
draw. We disagree.
       California courts have routinely applied Schmerber, supra, 834 U.S. 747 to permit
a warrantless compulsory blood draw where “the procedure (1) is done in a reasonable
medically approved manner,[1] (2) is incident to a lawful arrest, and (3) is based upon



1      Defendant does not dispute the procedure conformed to this requirement.


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reasonable belief the arrestee is intoxicated. [Citations.]” (People v. Ford (1992)
4 Cal.App.4th 32, 35-36.)
       Two California appellate court cases, People v. Trotman (1989) 214 Cal.App.3d
430 (Trotman) and People v. Deltoro (1989) 214 Cal.App.3d 1417 (Deltoro), have found
that a blood sample may be obtained from a driver even in the absence of an actual arrest.
(Accord, United States v. Chapel (9th Cir. 1995) 55 F.3d 1416, 1419.) Trotman further
holds that “[t]he rationale of both Schmerber and Cupp makes it clear that probable cause
to arrest a defendant is the constitutional equivalent of an actual arrest for the limited
purpose of determining blood alcohol content.” (Trotman, supra, at pp. 437-438.) Thus,
“a formal arrest is not a precondition to the warrantless extraction of blood so long as
probable cause exists to believe that the defendant was driving under the influence and
that an analysis of the sample will yield evidence of that crime.” (Id. at pp. 436-437.)
       Therefore, the lack of an actual arrest does not render the warrantless blood draw
illegal if there was probable cause to believe defendant was driving under the influence of
alcohol.
                                              B.
                                       Probable Cause
       Here, there was probable cause to support the warrantless blood draw of
defendant. The record shows Gonzalez was aware multiple calls had been placed to 911
reporting a driver traveling in the wrong direction on Iron Point, defendant had collided
head-on with the victims while travelling in the wrong direction on Iron Point, defendant
repeatedly admitted to drinking, and defendant appeared to be significantly impaired. We
conclude substantial evidence supported the trial court’s finding Gonzalez had probable
cause to arrest defendant for driving under the influence of alcohol at the time the blood
sample was taken.




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                                              C.
                                   Exigent Circumstances
       Defendant further contends Trotman, supra, 214 Cal.App.3d 430 and Deltoro,
supra, 214 Cal.App.3d 1417 should not be followed because their analyses depend in part
on Cupp v. Murphy (1973) 412 U.S. 291 [36 L.Ed.2d 900] (Cupp), which holds that
ready destruction of evidence, i.e., particle evidence under fingernails, is an exigent
circumstance excusing the warrant requirement even in the absence of a formal arrest.
Trotman relies on both Schmerber, supra, 384 U.S. 757 and Cupp, supra, 412 U.S. 291
for the proposition that “it is the evanescent nature of the evidence sought . . . that
constitutionally justifies the warrantless, nonconsensual seizure of a blood sample from a
defendant suspected of committing an alcohol-related offense.” (Trotman, supra,
214 Cal.App.3d at p. 437.)
       Defendant argues Missouri v. McNeely (2013) __ U.S. __ [133 S.Ct. 1552,
185 L.Ed.2d 696] (McNeely) distinguished the “easily disposable” blood and particle
evidence under a defendant’s fingernails in Cupp, supra, 412 U.S. 291 and blood
alcohol content, which “naturally dissipates over time in a gradual and relatively
predictable manner,” and this distinction erodes the precedential viability of Trotman
supra, 214 Cal.App.3d 430 and Deltoro, supra, 214 Cal.App.3d 1417. (McNeely, supra,
at p. 1561.) McNeely held that the natural metabolic elimination of alcohol from the
body does not per se constitute exigent circumstances justifying a warrantless
nonconsensual blood draw. (Id. at p. 1568.) Rather, whether a warrantless blood draw
is reasonable depends on the totality of the circumstances. (Id. at p. 1565-1566.)
McNeely does not address whether a warrantless search is illegal in the absence of a
formal arrest. (Ibid.) Therefore, the holdings of Trotman, supra, 214 Cal.App.3d 430
and Deltoro, supra, 214 Cal.App.3d 1417, at least for the reasons they are cited here,
remain good law.



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       Additionally, even if McNeely, supra, 133 S.Ct. 1552 did have some import to the
present case, it still would not render the denial of the suppression motion erroneous
because the “totality of circumstances” justify defendant’s warrantless blood draw. Here,
the officer who ordered the warrantless blood draw was aware of defendant’s repeated
admissions, the multiple calls of a wrong-way driver, defendant’s head-on collision while
driving the wrong direction, the delay in assessing defendant’s blood alcohol due to the
medical attention defendant and victims were receiving, and the fact defendant had begun
receiving intravenous fluids and medications as part of her medical treatment. Thus, the
totality of circumstances justified defendant’s warrantless blood draw.
       Even if the warrantless blood draw was not justified, the denial of the suppression
motion was still not erroneous. Binding appellate precedent, Trotman, supra, 214
Cal.App.3d 430 and Deltoro, supra, 214 Cal.App.3d 1417 specifically authorized
Gonzalez’s actions here because the totality of circumstances gave the officer probable
cause to conduct the blood draw. Defendant identifies no California case that suggests
her warrantless nonconsensual blood draw was not permissible based on the law prior to
McNeely, supra, 185 L.Ed. 2d 696. California courts have regularly employed the
“totality of circumstances” analysis to allow warrantless blood draws, even before
McNeely, because it engaged in this analysis to determine whether probable cause exists.
Thus, despite any change in the law McNeely may have effected, the police acted
reasonably based on existing law at the time of the blood draw because, as shown above,
there was probable cause to believe defendant was driving under the influence of alcohol.
(See Davis v. United States (2011) __ U.S. __ [131 S.Ct. 2419, 2429, 180 L.Ed.2d 285].)
Because Gonzalez acted reasonably, no “appreciable deterrence” would result from the
application of the exclusionary rule in this case and the evidence related to the blood
draw need not be suppressed. (Id. at pp. 2426-2427.) Consequently, the police conduct
here, contrary to defendant’s assertion otherwise, fell within the “good faith” exception



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to the exclusionary rule. (See United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d
677].)
                                     DISPOSITION
         The judgment is affirmed.



                                                     HOCH         , J.



We concur:



    BLEASE          , Acting P. J.



         HULL       , J.




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