Filed 9/5/14 P. v. Gartley CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049235

                   v.                                                  (Super. Ct. No. 13HF1128)

DARRYL LAMMAR GARTLEY,                                                 OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Frederick
P. Aguirre, Judge. Affirmed.
                   John L. Staley, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Charles C. Ragland, Scott C. Taylor and Meredith S. White, Deputy Attorneys
General, for Plaintiff and Respondent.


                                             *               *               *
              A jury convicted defendant Darryl Lammar Gartley of driving under the
influence of a drug (Veh. Code, § 23152, subd. (a), as amended by Stats. 2012, ch. 753,
§ 1) and being under the influence of a drug (Health & Saf. Code, § 11550, subd. (a)).
The trial court sentenced defendant to five years in prison and imposed several fines and
fees. Relying on the recent decision in Missouri v. McNeely (2013) ___ U.S. ___ [133
S.Ct. 1552, 185 L.Ed.2d 696] (McNeely), defendant argues the court erred in denying his
pretrial motion to suppress the results of a blood test because his blood was drawn
without a warrant. We disagree for two reasons and affirm. First, defendant consented to
the drawing of his blood. Second, even if a warrant was required, the deputy sheriff who
requested the blood draw reasonably relied on then controlling legal precedent.


                                          FACTS


              On April 2, 2013, Orange County Deputy Sheriff Arthur Tiscareno stopped
a car driven by defendant after noticing the vehicle’s registration tag had expired.
Defendant appeared intoxicated. He agreed to a search of the car and Tiscareno found a
vial under the floor mat that appeared to have spilled its contents. Using a narcotic
identification kit, Tiscareno determined the substance to be Phencyclidine (PCP).
              Defendant was transported to a substation where Deputy Sheriff William
Simandl, a certified drug recognition expert, evaluated him. Simandl concluded
defendant was under the influence of a disassociate anesthetic, a category of drugs that
includes PCP, and informed defendant he was under arrest and required to submit to a
test of his blood. According to Simandl, when told he would have to submit to a blood
draw defendant “made no response.”
              A licensed vocational nurse was called to obtain the blood sample. Upon
her arrival, defendant was asked to sit down. He submitted to the blood draw without



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resistance. Simandl testified that if defendant had refused the test, the back of an
administrative form used by the sheriff’s department would have been completed.
              Defendant testified at the suppression hearing. He admitted using PCP
“probably like the day before,” but claimed its effect on him lasted only a few hours.
According to defendant, when told his blood was about to be drawn, he stated “‘you are
not taking my blood’” and “‘I don’t like needles.’”
              In denying the motion to suppress, the trial court concluded defendant
consented to the blood draw. The court found his testimony to be “unreliable,” and “I
would still believe the officers; that if there were a refusal, at least we’d have the back of
the form filled out.” The court stated, “I simply don’t see that this was other than a
consensual blood draw.” In addition, the court held the deputy sheriffs acted in good
faith, noting law enforcement is now aware of “McNeely.”


                                       DISCUSSION


1. Defendant consented to the blood draw.
              Defendant argues the trial court erred in finding he consented to having a
sample of his blood drawn for chemical testing. He claims his mere acquiescence to the
procedure was insufficient to show actual consent. Further, Simandl failed to provide the
warning required by California’s implied consent law and, in any event, McNeely
precludes reliance on that statute to support admission of the blood test results at trial.
              In the absence of exigent circumstances, the constitutional prohibition on
illegal searches requires law enforcement officers to obtain a warrant before drawing
blood from a person arrested for driving while intoxicated. (McNeely, supra, 133 S.Ct. at
p. 1558.) One exception to the warrant requirement is a person’s consent to the search.
(People v. James (1977) 19 Cal.3d 99, 106.) The requisite consent “may be express or
implied, and may be demonstrated by conduct as well as words.” (People v. Superior

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Court (2012) 204 Cal.App.4th 1004, 1012.) “The voluntariness of the consent is in every
case ‘a question of fact to be determined in the light of all the circumstances.’” (People
v. James, supra, 19 Cal.3d at p. 106; Schneckloth v. Bustamonte (1973) 412 U.S. 218,
227 [93 S.Ct. 2041, 36 L.Ed.2d 854] [existence of valid consent “to be determined from
the totality of all the circumstances”].)
              One factor supporting the consent finding is defendant’s operation of the
car. Vehicle Code section 23612, subdivision (a)(1)(B) provides “[a] person who drives
a motor vehicle is deemed to have given his or her consent to chemical testing of his or
her blood for the purpose of determining the drug content of his of her blood, if lawfully
arrested for an offense allegedly committed in violation of Section . . . 23152 . . . .”
(People v. Harris (2014) 225 Cal.App.4th Supp. 1, 8 [“To drive a motor vehicle on the
highways of this state is a privilege subject to regulation, not a right . . ., 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 . . . if lawfully arrested for’ DUI”; thus,
“By choosing to use the highways, drivers voluntarily bring themselves under the
regulation of the implied consent law”].)
              Defendant argues this statute is inapplicable because Simandl failed to tell
him he could opt for a breath or urine test and that his refusal to submit to testing could
result in the suspension of his driver’s license. As for the failure to offer a choice of
chemical tests, defendant’s argument is premised on a former version of the implied
consent law. With certain exceptions not relevant in this case, effective as of January 1,
2013, Vehicle Code section 23612 was amended to state a person arrested for driving
while under the influence of a drug impliedly consents to a test of his or her blood alone.
(Stats. 2012, ch. 196, § 1.) Therefore, Simandl did not err by failing to offer defendant
the choice of either a breath or urine test.
              On the failure to inform defendant that a refusal could lead to
administrative penalties, even he acknowledges this misstep did not violate his

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constitutional rights. (People v. Brannon (1973) 32 Cal.App.3d 971, 975 [“We fail to
perceive . . . how the failure to advise a person of his choice of . . . tests . . . violates any
constitutionally protected right”].) Without citing any supporting authority, defendant
argues Vehicle Code section 23612 is merely “a legal fiction designed to implement a
statutory scheme to suspend the driver’s licenses of individuals who are arrested for
driving under the influence and do not consent to appropriate chemical testing.” Not so.
In Troppman v. Valverde (2007) 40 Cal.4th 1121, the California Supreme Court
recognized the “legislative purpose[s] underlying the implied consent Law [are] . . . ‘(1)
to obtain the best evidence of blood alcohol content while ensuring cooperation of the
person arrested, and (2) to inhibit driving under the influence.’” (Id. at p. 1136.)
               Alternatively, defendant relies on McNeely to argue California’s implied
consent law is unconstitutional. He reasons that, because Missouri also had an implied
consent statute, there would have been no need for the court to address whether a warrant
was required. However, McNeely did not conclude implied consent statutes are
unconstitutional. In fact, the court’s opinion spoke approvingly of them: “States have a
broad range of legal tools to enforce their drunk-driving laws and to secure BAC [blood
alcohol content] evidence without undertaking warrantless nonconsensual blood draws.
For example, all 50 States have adopted implied consent laws that require motorists, as a
condition of operating a motor vehicle within the State, to consent to BAC testing if they
are arrested or otherwise detained on suspicion of a drunk-driving offense.” (McNeely,
supra, 133 S.Ct. at p. 1566.) The court continued: “Such laws impose significant
consequences when a motorist withdraws consent.” (Ibid.) If the implied consent law
did not create a valid consent, McNeely’s statement “when the motorist withdraws
consent,” would be meaningless.
               In the context of these statements, we interpret McNeely as approving of
implied consent laws. But, as noted, the consent can be withdrawn. In McNeely,
defendant did just that: “the officer explained to McNeely that under state law refusal to

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submit voluntarily to the test would lead to the immediate revocation of his driver’s
license for one year and could be used against him in a future prosecution. [Citation.]
McNeely nonetheless refused.” (McNeely, supra, 133 S.Ct. at p. 1557.)
              Here, the trial court found that defendant did not withdraw his consent and
the evidence supports its finding. According to Simandl, when told he was required to
submit to a blood test, defendant “made no response.” Upon the nurse’s arrival,
defendant sat down and allowed the nurse draw his blood without the need of any deputy
holding his arm. Further, the sheriff’s department did not complete the portion of an
administrative form used to document an arrestee’s refusal to submit to a chemical test.
              Defendant testified he verbally objected to the procedure. But the trial
court rejected his testimony. On a motion to suppress evidence “the power to judge the
credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence
and draw factual inferences, is vested in the trial court,” and “[o]n appeal all
presumptions favor the exercise of that power . . . .” (People v. Lawler (1973) 9
Cal.3d 156, 160.) Thus, we lack the authority to second-guess the court’s finding on this
issue. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) While defendant was under
arrest at the time and Simandl did not expressly inform him of his right to refuse consent,
neither fact necessarily invalidates the trial court’s finding he voluntarily consented to the
blood draw. (People v. Monterroso (2004) 34 Cal.4th 743, 758.)
              Hence no search warrant was required in this case because defendant
consented to the blood draw.


2. The police reasonably relied on controlling precedent.
              As noted, defendant’s arrest and blood draw occurred on April 2, 2013.
The Supreme Court issued its decision in McNeely on April 17, 2013.
              When the police conduct a warrantless search in reliance on established
law, the exclusionary rule does not require suppression of the search’s results. In Davis

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v. United States (2011) 564 U.S. ___ [131 S.Ct. 2419, 180 L.Ed.2d 285], the petitioner
was convicted of possession of a firearm by a felon. The police stopped a car in which he
was a passenger and removed him from the vehicle. The defendant was then arrested for
giving a false name. The police searched the car, locating the weapon. While the
petitioner’s case was on appeal, the United States Supreme Court issued Arizona v. Gant
(2009) 556 U.S. 332 [129 S.Ct. 1710, 173 L.Ed.2d 485], which held “[p]olice may search
a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest.” (Id. at p. 501.)
              The petitioner in Davis claimed that he was entitled to the benefit of this
change in the law. The Supreme Court disagreed. “Under our exclusionary-rule
precedents, this acknowledged absence of police culpability dooms Davis’s claim. Police
practices trigger the harsh sanction of exclusion only when they are deliberate enough to
yield ‘meaningfu[l]’ deterrence, and culpable enough to be ‘worth the price paid by the
justice system.’ [Citation.] The conduct of the officers here was neither of these things.
The officers who conducted the search did not violate Davis’s Fourth Amendment rights
deliberately, recklessly, or with gross negligence. [Citation.] Nor does this case involve
any ‘recurring or systemic negligence’ on the part of law enforcement. [Citation.] The
police acted in strict compliance with binding precedent, and their behavior was not
wrongful.” (Davis v. United States, supra, 131 S.Ct. at p. 2428; see United States v. Leon
(1984) 468 U.S. 897, 909-911 [104 S.Ct. 3405, 82 L.Ed.2d 677].)
              The same principle applies in our case. When defendant’s blood was
drawn, the controlling precedent was Schmerber v. California (1966) 384 U.S. 757 [86
S.Ct. 1826, 16 L.Ed.2d 908] (Schmerber). In Schmerber, a police officer arranged for a
blood draw from a person arrested for driving while intoxicated. The Supreme Court
held the blood sample was properly seized even though the arrestee objected and no
search warrant had been obtained. “The officer in the present case, however, might

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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,’ [citation]. We are told that the percentage of alcohol in the blood begins to
diminish shortly after drinking stops, as the body functions to eliminate it from the
system. Particularly in a case such as this, where time had to be taken to bring the
accused to a hospital and to investigate the scene of the accident, there was no time to
seek out a magistrate and secure a warrant. Given these special facts, we conclude that
the attempt to secure evidence of blood-alcohol content in this case was an appropriate
incident to petitioner’s arrest.” (Id. at pp. 770-771.)
              Although Schmerber did not hold a search warrant was never required, the
opinion recognized the diminishment of an arrestee’s blood alcohol level creates an
exigency that may justify drawing blood without a warrant. The opinion is, at best,
unclear as to whether this fact generally justifies blood draws without a search warrant.
But it was generally so interpreted. As both parties acknowledge, California cases
decided after Schmerber, concluded: “The courts of this state have frequently
summarized Schmerber as permitting warrantless compulsory seizure of blood for the
purpose of a blood-alcohol test if the procedure (1) is done in a reasonable, medically
approved manner, (2) is incident to a lawful arrest, and (3) is based upon reasonable
belief the arrestee is intoxicated.” (People v. Ford (1992) 4 Cal.App.4th 32, 35.)
Defendant argues the statements of the rule in cases Ford cited were frequently in the
nature of dicta rather than holdings. Nevertheless it was reasonable for law enforcement
to understand the law to be that, when dealing with substances that diminish from the
blood stream as time passes, a warrant is not required for a blood draw.
              And People v. Ritchie (1982) 130 Cal.App.3d 455, a case defendant fails to
address, held that under Schmerber there was no difference between alcohol and drugs in
the tendency to diminish from the blood stream with the passage of time: “The municipal
court apparently felt that a distinction exists between the ingestion of alcohol and the

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ingestion of drugs. We detect no appreciable difference. It is a matter of common
knowledge that from the moment of ingestion the body begins to eliminate drugs from
the system. While the rate of dissipation may depend on many factors, one, of course,
being the type of drug involved, nevertheless, the amount of drug in the blood stream
does diminish with the passage of time. The alternative is a lifetime high which may be a
desirable result but is hardly consistent with elementary physiology.” (Id. at p. 458, fn.
omitted.) The case concluded no search warrant was required for a blood draw from a
person suspected of being under the influence of a drug.
              We conclude Simandl reasonably relied on what he understood to be
established law in obtaining a blood sample from defendant without first seeking a search
warrant.


                                      DISPOSITION


              The judgment is affirmed.




                                                 RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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