Filed 5/5/17




                              CERTIFIED FOR PUBLICATION


                   SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                    COUNTY OF SAN MATEO
                                     APPELLATE DIVISION


THE PEOPLE,                                            )   AD-5574
                                                       )
        Plaintiff and Respondent,                      )   (Super. Ct. No. SM399013A)
        v.                                             )
                                                       )
SAMUEL HING-MING LING,                                 )               OPINION
                                                       )
        Defendant and Appellant.                       )


        APPEAL from an order of the Superior Court of San Mateo County, Richard H. Du Bois,
Judge. Reversed and remanded.


                                      I. INTRODUCTION.
        In 1966, the United States Supreme Court ruled that a nonconsensual blood draw taken
from a suspect arrested on suspicion of driving under the influence of alcohol did not violate the
Fourth Amendment because exigent circumstances existed that allowed for a blood draw to be
conducted in a reasonable manner incident to the defendant’s arrest. (Schmerber v. California
(1966) 384 U.S. 757, 770-71 (Schmerber).) Almost fifty years later in 2013, the United States
Supreme Court ruled that a nonconsensual blood draw taken from a suspect arrested on suspicion
of driving under the influence of alcohol violated the Fourth Amendment after concluding that
exigent circumstances, which could have provided an exception to the warrant requirement,
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could not be presumed in every case where an individual has been arrested for suspicion of
driving under the influence of alcohol, despite the natural dissipation of alcohol in the
bloodstream. (Missouri v. McNeely (2013) 133 S.Ct. 1552 (McNeely).) During the intervening
years between these two decisions, California enacted and amended statutes intended to obtain
cooperation from individuals who had been arrested for suspicion of driving under the influence
of alcohol during chemical tests of their blood alcohol levels in response to the holding in
Schmerber. Although referred to as “implied consent,” the legislation was an attempt to provide
law enforcement officials with a tool to secure voluntary submission to a chemical test and to
eliminate the potential for violence inherent in physically subduing a suspect who might
otherwise resist a chemical test. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753,
760.)
        For nearly fifty years in California, countless prosecutions arising from arrests for driving
under the influence of alcohol resulted in a myriad of legal challenges. The corresponding
rulings uniformly abided by the interpretation of Schmerber that a warrantless compulsory
seizure of blood for the purpose of a blood-alcohol test was lawful if the procedure was
conducted in a reasonable, medically approved manner, conducted incident to a lawful arrest,
and based upon a reasonable belief that the arrestee was intoxicated. (People v. Jones (2014)
231 Cal.App.4th 1257, 1263.) Implicit in these decisions was the presumption that exigent
circumstances existed in every case where a suspect was arrested for driving under the influence
of alcohol. Given the clarification of Schmerber in McNeely, Fourth Amendment challenges to
blood draws must now be viewed through a fresh lens that is unencumbered by the past
presumption of an existing exception to the warrant requirement. The holding in McNeely now
requires trial courts to approach such constitutional challenges from a new posture, where the
blood draw can no longer be presumed lawful absent some showing that the manner in which the
blood draw was taken violated constitutional rights. Consequently, because McNeely prohibits
the presumption of exigent circumstances, trial courts must acknowledge that every driving
under the influence prosecution may be subject to the holding of McNeely to the extent that every
blood draw challenged as a violation of the Fourth Amendment must now be supported by


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evidence of a warrant or an exception to the warrant requirement.
       The instant appeal presents just such a warrantless blood draw, where McNeely does not
require a particular outcome, as the defendant did not expressly refuse a chemical test, but does
require that the People sufficiently support with evidence some exception to the warrant
requirement, which would have been unnecessary prior to McNeely. In other words, the
challenged blood draw here is not ultimately lawful or unlawful under McNeely, but, ultimately,
this challenged blood draw must be specifically justified by evidence of an exception to the
warrant requirement because of McNeely. Here, the People rely solely on consent as an
exception to the warrant requirement. An examination of the record reveals that the People
failed to establish under the totality of the circumstances that defendant consented to a chemical
test. Consequently, we reverse the order denying the motion to suppress and direct the trial court
to enter a new order granting the motion to suppress the evidence obtained as a result of the
warrantless blood draw.
                      II. FACTS AND PROCEDURAL BACKGROUND.
       Defendant Samuel Hing-Ming Ling appeals from the order denying his motion to
suppress.1 At the suppression hearing, defendant did not contest the lawfulness of his initial
traffic stop. Instead, defendant challenged only the actions subsequent to the traffic stop.
       At the hearing on defendant’s motion, California Highway Patrol Officer Jeremy Watson
was the only witness, and the following facts are based on his testimony. Officer Watson was on
duty on June 13, 2015, at approximately 4 a.m., near the intersection of Highway 101 and
Highway 92, when he conducted a traffic stop of a black 2013 Honda Accord driven by
defendant. When the officer made contact with defendant, the officer smelled the strong odor of
an alcoholic beverage emanating from the vehicle. There were two passengers in the vehicle,



1 By failing to file his motion to suppress no later than 45 days after his arraignment, defendant
arguably forfeited his right to pretrial review of the denial of his motion. (Penal Code, § 1510.)
 However, the People did not move to dismiss defendant’s pretrial appeal on the basis that he
failed to comply with Penal Code section 1510. Therefore, we need not address that issue.
(People v. Harris (2015) 234 Cal.App.4th 671, 677.)


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and the officer could not tell from whom the odor of alcohol was emanating. Defendant was
unable to provide the requested driver’s license, registration or insurance to the officer.
       The officer asked defendant to step out of the vehicle and observed that defendant’s eyes
were red and watery and that his speech was slow and slurred. The officer smelled the odor of
alcohol emanating from defendant’s person. Defendant and the People stipulated that the officer
concluded that defendant’s performance on four field sobriety tests was unsatisfactory, which
gave the officer further reasonable suspicion to conduct the driving under the influence (“DUI”)
investigation.
       The officer informed defendant that the PAS test was the last voluntary field sobriety test.
The officer additionally told defendant that the PAS test was not the test required by the implied
consent law. The officer began to administer the PAS test without waiting for defendant to
indicate whether he would submit to the test. The results of the PAS test were .144, .177, and
.159, and the results were admitted solely for purposes of the officer’s subsequent conduct and
not for the truth of the matter asserted.
       The officer then arrested defendant based on the officer’s observations and the results of
the field sobriety tests. The officer handcuffed defendant and placed him in the rear of the patrol
vehicle. The officer then advised defendant of implied consent by telling defendant, “Because
you’re under arrest for DUI, you have to submit to a chemical test, which is a test of either your
breath or your blood.” The officer’s communication with defendant regarding implied consent
was limited to the instruction that defendant had to submit to a blood or breath test. The officer
did not advise defendant of the consequences of failing to submit to a chemical test.
       Initially, defendant did not choose either chemical test. The officer discussed with
defendant the characteristics of the blood and breath tests. After this discussion, defendant did
not indicate either that he did or did not want to provide a blood or a breath sample. Within a
couple of minutes, the officer drove defendant from the scene, and at that time, defendant still
had not elected a blood or a breath test.
       The officer had three choices of places to transport defendant: First Chance, the Maguire
Correctional Facility or the Redwood City California Highway Patrol (“CHP”) Station. The


                                                  4
officer drove defendant to the Redwood City CHP Station. Defendant made no election of a
chemical test during the drive to the Redwood City CHP Station.
       When they arrived at the Redwood City CHP Station, the officer placed defendant in the
briefing room. The only chemical test that can be conducted at the Redwood City CHP Station is
a blood test. The officer then called for someone to draw defendant’s blood. At this time,
defendant still had made no indication that he wanted a particular chemical test or any test.
Defendant’s blood sample was taken, and the officer went through an 18-item checklist during
the blood draw. The officer observed no complications and no appearance of pain from
defendant during the blood draw. Although the officer initially testified that Defendant chose a
blood test, he agreed on cross-examination that a more accurate description would be that
defendant “submit[ted] to a blood draw.”
       After the People and Defendant had made their initial arguments, the trial court stated:
       The concern the Court had, and I was a little confused over the evidence, was it
       doesn’t appear that he was given a choice between a breath and a blood test. It
       doesn’t appear that he made a choice. And then the officer ended up in a place
       where the blood test was the only test available. And the totality of the evidence
       would show that he certainly didn’t consent to taking that test. Whether he had
       the free choice or not, I’m not too sure of, but I don’t know if that goes to the
       Fourth Amendment protection against unlawful search and seizures or not.
       Do you have anything additional to add to that? I mean, I agree with you. It
       sounds like he was there, he consented to the test. And I’m not sure if he
       intelligently chose that test or another test under that factual situation.

       After further argument, the trial court denied the motion to suppress without further
elaboration. Defendant filed the instant appeal.
                                       III. DISCUSSION.
       On appeal, defendant challenges only the warrantless blood draw. Defendant contends
that the blood draw violated his Fourth Amendment rights because it was conducted without a
warrant and because the People failed to establish any exception to the warrant requirement. We
agree, and, therefore, reverse the trial court’s order denying the motion to suppress the blood
draw evidence. Given our conclusion with respect to the constitutionality of the blood draw, we
need not address defendant’s second contention that he was denied the right to fully litigate the
motion.
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       “In ruling on a motion to suppress, the trial court must find the historical facts, select the
rule of law, and apply it to the facts in order to determine whether the law as applied has been
violated. We review the court’s resolution of the factual inquiry under the deferential
substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a
mixed question of law and fact that is subject to independent review.” (People v. Letner (2010)
50 Cal.4th 99, 145.)
       The People contend that the blood draw was constitutional because defendant consented
to it. “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has
the burden of proving that the consent was, in fact, freely and voluntarily given. (Bumper v.
North Carolina (1968) 391 U.S. 543, 548.) “This burden cannot be discharged by showing no
more than acquiescence to a claim of lawful authority.” (Ibid.)
       Here, the People simply assert that defendant consented to the blood draw. The People
contend that defendant chose a blood test without making any indication that he did not want to
provide a blood or breath sample. The People concede that only a blood test was available at the
Redwood City CHP office, but assert that no evidence at the hearing established that this fact
was communicated to or otherwise known by defendant. The People further contend that there
was no evidence that the officer would have refused to transport defendant elsewhere had
defendant requested a breath test. The People contend that because there was no evidence that
defendant refused or revoked his consent or that he resisted the blood draw procedure in any
manner, the warrantless blood draw was consensual under the Fourth Amendment. The People
assert no other theory to justify the constitutionality of the blood draw.2
       “To be effective, consent must be voluntary.” (People v. Harris (2015) 234 Cal.App.4th
671, 989.) “[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress
or coercion, express or implied, is a question of fact to be determined from the totality of all the
circumstances.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.) “While knowledge of

2 Although the People initially set forth in their respondent’s brief the additional theory that the
evidence from the blood draw was admissible under the inevitable discovery doctrine, the People
withdrew that theory at the hearing.


                                                  6
the right to refuse consent is one factor to be taken into account, the government need not
establish such knowledge as the sine qua non of an effective consent. As with police
questioning, two competing concerns must be accommodated in determining the meaning of a
‘voluntary’ consent—the legitimate need for such searches and the equally important
requirement of assuring the absence of coercion.” (Ibid.) Thus, the analysis naturally involves
distinguishing consent from assent. (People v. Fields (1979) 95 Cal.App.3d 972, 977.)
“Consent, in law, means a voluntary agreement by a person in the possession and exercise of
sufficient mentality to make an intelligent choice, to do something proposed by another ...
[Assent] means mere passivity or submission, which does not include consent.” (Ibid.)
       “Where, as here, the prosecution relies on consent to justify a warrantless search or
seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the
product of his free will and not a mere submission to an express or implied assertion of
authority.’” (People v. Zamudio (2008) 43 Cal.4th 327, 341.) The People fail to point to any
evidence in the record showing that defendant consented to the blood draw nor could they. To
summarize, the evidence established that defendant was placed under arrest, handcuffed, and put
into a police vehicle. Defendant was then told that he had to submit to a chemical test. He never
expressed any choice for a test nor did he vocalize any words whose meaning could be construed
as consent to any chemical test. He was transported to a location where his blood was drawn,
and he offered no resistance to the administration of the blood draw. The officer characterized
defendant’s conduct as “submit[ting] to a blood draw.” Thus, there was no manifestation of
consent. The evidence instead shows that defendant submitted to a blood draw and that this
submission was due to the officer’s expression of lawful authority.
       The People effectively contend that defendant’s lack of physical or vocal resistance
constitutes consent. However, this contention is based on a single fact and ignores the totality of
the circumstances showing acquiescence to lawful authority, which is not consent. (See, e.g.,
(Florida v. Royer (1983) 460 U.S. 491, 497; Schneckloth, supra, 412 U.S. 218, 229-230;
Bumper, supra, 391 U.S. 543, 548-49.) Indeed, where the court in People v. Harris, supra, 234
Cal.App.4th 671, 689, rejected the defendant’s contention that advising a motorist of the lawful


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consequences of refusing a chemical test rendered submission to the test involuntary, the court
explained: “the failure to disclose accurate information regarding the potential legal
consequences of certain behavior would seem to be a more logical basis for a defendant to assert
that his or her decision to engage in that behavior was coerced and involuntary.” Further, when
the People’s theory is taken to its logical conclusion, an unconscious individual could be
characterized as giving consent to a chemical test by remaining unconscious after being told that
he has to submit to a chemical test. As the court in Carrington v. Superior Court (1973) 31
Cal.App.3d 635, 641, most eloquently expressed, “It needs no citation of authorities to state that
an unconscious man is incapable of giving consent.”
       The determination that under these facts defendant did not consent to the blood draw is
further supported by the rationale expressed in Bumper. There, the United States Supreme Court
held that there could be no consent where that “consent” was given only after the official
conducting the search asserted that he possessed a search warrant. “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.” (Bumper, supra, 391 U.S. 543, 548-49.)
       While there have been attempts to distinguish this holding in Bumper based on the final
phrase: “if it turns out that the warrant was invalid,” the quoted language from cases cited in the
footnote immediately following this phrase are instructive. (Bumper, supra, 391 U.S. 543, 549
fn. 14.) In the footnote, the Supreme Court quotes U. S. v. Elliott (D. Mass. 1962) 210 F.Supp.
357, 360: “Orderly submission to law-enforcement officers who, in effect, represented to the
defendant that they had the authority to enter and search the house, against his will if necessary,
was not such consent as constituted an understanding, intentional and voluntary waiver by the
defendant of his fundamental rights under the Fourth Amendment to the Constitution.” (Id. at p.
549 fn. 14.) In the footnote, the Supreme Court also quotes Bull v. Armstrong (1950) 254 Ala.
390, 394: “One is not held to have consented to the search of his premises where it is
accomplished pursuant to an apparently valid search warrant. On the contrary, the legal effect is
that consent is on the basis of such a warrant and his permission is construed as an intention to
abide by the law and not resist the search under the warrant, rather than an invitation to search.”


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(Id. at p. 549 fn. 14.) Finally, the Supreme Court in footnote 14 quotes Meno v. State (1925) 197
Ind. 16, 24: “One who, upon the command of an officer authorized to enter and search and seize
by search warrant, opens the door to the officer and acquiesces in obedience to such a request, no
matter by what language used in such acquiescence, is but showing a regard for the supremacy of
the law. . . . The presentation of a search warrant to those in charge at the place to be searched,
by one authorized to serve it, is tinged with coercion, and submission thereto cannot be
considered an invitation that would waive the constitutional right against unreasonable searches
and seizures, but rather is to be considered a submission to the law.” (Id. at p. 549 fn. 14.)
       The cases quoted in the footnote make clear that submission to a search warrant cannot
be equated with consent. Instead, the described conduct is no more than submission to the law.
Of particular importance is the understanding that the individual believing in the existence of a
valid search warrant reasonably perceives no possibility of preventing the corresponding
intrusion. When police assert that they possess a valid search warrant, they effectively represent
that “they ha[ve] the authority to enter and search the house, against [their] will if necessary.”
(Bumper, supra, 391 U.S. 543, 550.) Likewise, the officer’s statement to defendant, who is
under arrest, that he has to “submit to a chemical test,” communicates a reality where the
chemical test will be conducted against Defendant’s will, if necessary. It should not be ignored
that for decades prior to the ruling in McNeely, forcible, warrantless blood draws were
permissible. Thus, absent evidence to the contrary, it cannot be presumed that individuals under
arrest could reasonably construe a direction from an arresting officer that they must take some
action as a mere query as to whether they will voluntarily consent to it. Consequently, the
totality of the circumstances shows defendant did not consent to the blood draw.
       We concede that after decades of blood draws in California passing constitutional muster
under similar factual scenarios, it may be difficult to now conceive of such a search as violating
the constitution or conceive of the officer’s actions as violating defendant’s constitutional rights.
Yet, even though peace officers are not required to anticipate legal rulings, they may only rely on
binding legal precedents. McNeely has effectively eliminated decades of them. Additionally,
this Court notes that although the actions of the arresting officer failed to comply with the


                                                  9
requirements of the implied consent law, no court has held that such a failure rises to the level of
a constitutional violation, and we do not so hold now. However, while not equating a failure by
peace officers to abide by the requirements of the implied consent law with a constitutional
violation, effectively, their level of compliance with the implied consent law will likely be
considered as part of the totality of the circumstances when determining the constitutionality of
blood draws that the People attempt to justify by consent. Evidence showing officers explaining
the implied consent law so that those arrested for suspicion of DUI understand that a blood draw
will not be compelled against their will bolster a subsequent assertion that the blood draw was
voluntarily consented to while evidence showing that officers asserted only the requirement of a
blood draw will undercut such an assertion of consent. Ultimately, the determination of the
lawfulness of any chemical test, such as the chemical test conducted here, will be based on a
consideration of the totality of all the circumstances.
                                        IV. DISPOSITION.
       Consequently, we reverse the order denying the motion to suppress and direct the trial
court to enter a new order granting the motion to suppress the evidence obtained as a result of the
warrantless blood draw.


Dated: ____________________                    ________________________________
                                               Davis, III, P. J.


We concur:



________________________________
Miram, J.


________________________________
Swope, J.




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Trial Court: Santa Mateo County Superior Court
Trial Judge: Hon. Richard H. Du Bois
Counsel:
Stephen M. Wagstaffe, District Attorney, Kimberley Perrotti, Deputy District Attorney and Mary
Louise Christinsen, Deputy District Attorney, for Plaintiff and Respondent.
Law Offices of Marsanne Weese, Marsanne Weese, for Defendant and Appellant.




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