Filed 7/8/15 P. v. Castro CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066771

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD248288)

DANIEL CASTRO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Timothy R. Walsh, Judge. Affirmed.

         Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Megan J.

Beale, Deputy Attorneys General, for Plaintiff and Respondent.

         Daniel Castro was charged with violating Vehicle Code section 23153,

subdivision (a) (driving under the influence (DUI) causing injury, with two or more prior
DUI convictions within 10 years); Vehicle Code section 23153, subdivision (b) (driving

with a measurable blood alcohol content (BAC), causing injury and with two or more

prior DUI convictions within 10 years); and Penal Code section 1320.5 (failure to appear

while on bail).

       Following a preliminary examination, Castro unsuccessfully moved to suppress

the results of a warrantless blood test. Castro petitioned for review of the trial court's

denial of his suppression motion, which we denied.

       Thereafter, Castro pled guilty to driving with a BAC of 0.08 percent or more,

causing injury, and admitted his two prior convictions for DUI. The prosecutor agreed to

dismiss the remaining charges in exchange for his guilty plea. Castro was sentenced to

the maximum term of seven years in prison for the DUI charge and a consecutive term of

two years eight months for failing to appear while out on bail.

       On appeal, Castro renews his challenge to the denial of his suppression motion.

As we explain, we conclude the court properly denied that motion and thus affirm his

judgment of conviction.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On the night of his arrest, Castro had been drinking at a nightclub in San Diego

until about 1:45 a.m. when he left to drive home. Witnesses reported Castro appeared

"really drunk" before he left the nightclub. Several bystanders attempted to stop Castro

from driving away by standing in front of his vehicle, and one person even attempted to

pull Castro out of the vehicle and take the keys out of the ignition. Despite these efforts,

Castro drove away, entered the freeway driving in the opposite direction of traffic, and hit

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a smaller car head on. The other driver had to be cut out of her car by emergency

responders and was severely injured. The collision site spread across every lane of the

freeway and was at least 200 feet long.

       Officer Vizcarro arrived at the scene of the collision around 2:00 a.m. and saw

Castro walking with fire personnel away from his vehicle. Vizcarro approached Castro

and observed that he had red watery eyes, was stumbling as he walked, and smelled of

alcohol. Vizcarro contacted the police dispatch and learned that Castro was on probation

for a previous DUI. Castro submitted to a breathalyzer test and registered a BAC of

0.317 at 2:21 a.m., a 0.342 at 2:23 a.m., and a 0.331 at 2:25 a.m. Castro was arrested and

taken to the hospital for minor injuries. At that time, only Vizcarro and his partner were

on the scene.

       Vizcarro remained at the scene of the accident to direct the investigation and assist

with clearing the highway. Once the scene was under control, Vizcarro went to the

hospital where Castro had been taken. Vizcarro arrived around 3:00 a.m. and saw trauma

nurses assisting Castro. Vizcarro requested a blood technician who arrived around

3:30 a.m. At that time, Castro was sedated and the technician took a blood sample.

Castro's BAC was 0.33 percent. After he was released from the hospital, Castro told

police he did not remember leaving the club or the collision.

                                      DISCUSSION

       Castro argues the court erred in denying his motion to suppress the results of his

warrantless blood draw. He contends that the blood draw constituted a violation of the



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Fourth Amendment rights as set forth in Missouri v. McNeely (2013) 569 U.S. __

[133 S.Ct. 1552] (McNeely).) We disagree.

       In reviewing the denial of a motion to suppress evidence, "[w]e defer to the trial

court's factual findings, express or implied, where supported by substantial evidence. In

determining whether, on the facts so found, the search or seizure was reasonable under

the Fourth Amendment, we exercise our independent judgment." (People v. Glaser

(1995) 11 Cal.4th 354, 362 (Glaser).)

       The Fourth Amendment provides that "[t]he right of people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable cause." (U.S. Const., 4th

Amend.) However, a warrantless search of a person is reasonable if it falls within a

recognized exception. (McNeely, supra, 133 S.Ct. at p. 1558, citing United States v.

Robinson (1973) 414 U.S. 218, 224.)

       "One well-recognized exception," and the one at issue here, "applies when the

' "exigencies of the situation make the needs of law enforcement so compelling that [a]

warrantless search is objectively reasonable under the Fourth Amendment." ' " (Kentucky

v. King (2011) 563 U.S. __ [131 S.Ct. 1849, 1856].) In some circumstances law

enforcement may conduct a search without a warrant to prevent the imminent destruction

of evidence. (See Cupp v. Murphy (1973) 412 U.S. 291, 296.) However, while the

natural dissipation of alcohol in the blood may support a finding of exigency in a specific

case, it does not do so categorically. (McNeely, supra, 133 S.Ct. at p. 1563; Schmerber v.

State of California (1966) 384 U.S. 757, 770-771 (Schmerber).)

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       Although the natural dissipation of alcohol in the blood is not alone sufficient to

support a finding of an exigency (see McNeely, supra, 133 S.Ct. at p. 1564), alcohol's

dissipation may support an exigency when circumstances make obtaining a warrant

impractical. (Ibid.) The court looks to the totality of the circumstances to determine

whether law enforcement faced an emergency that justified acting without a warrant.

(People v. Toure (2015) 232 Cal.App.4th 1096, 1103 (Toure), citing McNeely, supra, at

p. 1559.) The relevant factors in determining whether a warrantless search is reasonable

include the practical problems of obtaining a warrant within a timeframe that still

preserves the opportunity to obtain reliable evidence. (McNeely, supra, at p. 1568; see

also Schmerber, 384 U.S. at p. 770.)

       In McNeely, the defendant was pulled over for speeding and crossing the

centerline. He refused to take a breath or blood test, and subsequently, defendant's blood

was drawn without a warrant. (McNeely, supra, 133 S.Ct. at p. 1557.) The Court noted

that the situation the officer was facing did not constitute an emergency in which he

could not practicably obtain a warrant. (Ibid.) The Court found McNeely to be a routine

DUI investigation where no factors other than the natural dissipation of blood alcohol

suggested that there was an emergency, and thus, the nonconsensual, warrantless test

violated the defendant's right to be free from unreasonable searches of his person. (Id. at

pp. 1557, 1568; Toure, supra, 232 Cal.App.4th at p. 1104.)

       Castro alleges that, like the defendant in McNeely, supra, 133 S.Ct. 1552, his

investigation involved a "routine, middle of the night DUI accident." However, there are

factors present that show this accident was anything but routine. As noted, Castro caused

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a multicar collision by driving the wrong way on the freeway, which resulted in the

hospitalization of two people and the temporary closure of the highway. The instant case

thus did not involve a "routine DUI stop" like was the situation in McNeely, but instead

involved an emergency situation in the middle of the night where only a few officers

were initially at the accident scene.

       The Supreme Court in Schmerber held that a nonconsensual, warrantless blood

draw was reasonable due to the presence of "special facts" that created an emergency that

justified an exception to the warrant requirement. (Schmerber, supra, 384 U.S. at

pp. 770-771.) In that case, the officer arrived at the scene of a car accident and noticed

that the defendant smelled like liquor and had bloodshot eyes. (Id. at pp. 768-769.) The

defendant was taken to the hospital and the officer had to investigate the scene of the

accident, which delayed him getting to the hospital. (Ibid.) These "special facts" and the

naturally dissipating BAC taken together, created a situation where the officer "might

reasonably have believed that he was confronted with an emergency, in which the delay

necessary to obtain a warrant, under the circumstances threatened the 'destruction of

evidence.' " (Id. at p. 770, citing Preston v. United States (1964) 376 U.S. 364, 367

(Preston).)

       In Toure, the court held that a nonconsensual, warrantless blood draw was proper

under the Fourth Amendment because it was justified by exigent circumstances. (Toure,

supra, 232 Cal.App.4th at p. 1105.) In that case, there was a traffic accident in which at

least one person sustained injuries, the collision was spread out over approximately 2,000

feet, the defendant was combative at the scene, which delayed officers from investigating

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the accident, he prevented officers from conducting field sobriety tests, and he refused to

provide officers with information about when he had stopped drinking. (Id. at p. 1104.)

The amount of time it took officers to conduct their investigation and to subdue the

defendant threatened the destruction of evidence. (Id. at pp. 1104-1105.) The court

concluded that the finding of an exigency was not based solely on the natural dissipation

of alcohol in the blood, rather it was established by the totality of the circumstances and

therefore the blood draw was justified. (Id. at p. 1105.)

       The case here presents "special facts" that are analogous to Schmerber and Toure.

Like in Schmerber, Vizcarro "might reasonably have believed that he was confronted

with an emergency, in which the delay necessary to obtain a warrant under the

circumstances threatened the 'destruction of evidence.' " (Schmerber, supra, 284 U.S. at

p. 770, citing Preston, supra, 376 U.S. at p. 367.) Similar to Schmerber and Toure, here

Castro caused a collision that required Vizcarro to focus his attention on matters besides

securing a warrant. Vizcarro was directing the investigation and assisting with clearing

the highway. He was unable to make it to the hospital until over one hour after the

collision. In that time, Castro's BAC was dissipating and, like in Toure, Vizcarro was

unaware when Castro had stopped drinking which would make it difficult to "calculate

backward" to determine Castro's BAC at the time of the accident. (Toure, supra, 232

Cal.App.4th at p. 1104.) The circumstances here present " 'practical problems [to]

obtaining a warrant within a timeframe that still preserves the opportunity to obtain

reliable evidence.' " (Ibid., quoting McNeely, supra, 133 S.Ct. at p. 1568.)



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       We conclude the trial court's finding of exigent circumstances was supported by

substantial evidence in the record and was not based solely upon the natural dissipation of

Castro's blood alcohol content. The totality of the circumstances here, presented a

situation where the officer could not have reasonably obtained a warrant without

threatening the destruction of evidence. (See Schmerber, supra, 384 U.S. at pp. 770-771;

Toure, supra, 232 Cal.App.4th at p. 1104.) We thus independently conclude the

warrantless blood draw was reasonable under the totality of the circumstances and did not

constitute a violation of Castro's Fourth Amendment rights.1

                                     DISPOSITION

       The judgment is affirmed.


                                                                 HUFFMAN, Acting P. J.

WE CONCUR:


                       NARES, J.


                         IRION, J.




1     Due to our finding of exigent circumstances, we do not address People's implied
consent or good faith argument.
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