Filed 5/16/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                                   2d Crim. No. B283857
                                           (Super. Ct. No. 2015000120)
     Plaintiff and Respondent,                  (Ventura County)

v.

ALEXANDER JEFFREY
VANNESSE,

     Defendant and Appellant.



      The Vehicle Code provides that, if a person is lawfully
arrested for driving under the influence of a drug or a
combination of a drug and alcohol, he shall be advised that he
has the choice of submitting to either a blood or breath test.
(Veh. Code, § 23612, subd. (a)(2)(b).)1 Notwithstanding this
statutory directive, we hold that if a peace officer advises the
arrestee that his only choice is to submit to a blood test, the test
results are admissible in a criminal proceeding provided that the
arrestee freely and voluntarily consents to a blood test. The
failure to advise the arrestee of his statutory right to choose

       Unless otherwise stated, all statutory references are to
        1

the Vehicle Code.
between a breath and blood test does not run afoul of any
constitutional restraint.
       In a misdemeanor complaint, Alexander Vannesse was
charged with driving under the influence of a drug. (§ 23152,
subd. (e).) He appeals an order denying his Penal Code section
1538.5 (hereafter section 1538.5) motion to suppress the results
of a chemical test of his blood contending that his consent to the
blood draw violates statutory and constitutional law.
       In an opinion certified for publication, the Appellate
Division of the Ventura County Superior Court affirmed the order
denying the motion to suppress. On our own motion, we
transferred the matter to this court. We affirm.
                        Section 1538.5 Hearing
       Appellant was the driver of a vehicle involved in a collision.
Responding to the report of an accident, Officer Quinn Redeker,
the first police officer to arrive at the scene, concluded that
appellant “was possibly under the influence of drugs or alcohol.”
He “requested additional officers to respond for a DUI
investigation.”
       Officer Matthew Baumann (hereafter the officer), a
“certified drug recognition expert,” responded to the scene of the
collision. After his preliminary investigation, he arrested
appellant “for driving under the influence.” The officer then
conducted a “drug recognition evaluation.”2 He formed the
opinion that appellant was under the influence of a “central
nervous system depressant.” Both alcohol and some drugs are


      2
       The only reasonable inference is that the officer did so
because he suspected that appellant had been driving under the
influence of a drug or the combined influence of a drug and
alcohol.



                                 2
central nervous system depressants. (See People v. Huynh (2012)
212 Cal.App.4th 285, 292, fn. 2.) The record does not show
whether the officer or Officer Redeker smelled the “tell-tale” odor
of an alcoholic beverage on appellant’s breath. Neither officer
was asked whether appellant’s breath had this odor.
       The officer read to appellant “verbatim” an advisement
from a Ventura police department form: “Drugs slash -- drugs
and alcohol: You are required to submit to a chemical test.
Implied consent of your blood: A sample of your blood will be
taken by nursing staff at the hospital. If you fail to adequately
provide a sample, it will result in the suspension of your driving
privilege for a period of one year.” The officer did not advise
appellant that he could choose whether the chemical test would
be of his blood or breath. The officer also did not advise appellant
that he could refuse to provide any sample.
       Appellant verbally agreed to provide a blood sample and
signed a consent form that gave him the option of refusing
consent. He was transported to a hospital where a blood draw
was performed. After the blood draw, he lost consciousness. The
officer did not know the cause of the loss of consciousness.
       At the section 1538.5 hearing, defense counsel said that
appellant was not challenging “the probable cause for the arrest.”
Counsel asserted, “The focus of the motion is really a McNeely
issue.” In Missouri v. McNeely (2013) 569 U.S. 141, the Supreme
Court applied the Fourth Amendment’s warrant requirement to
nonconsensual blood testing in driving under the influence of
alcohol cases. The Court “h[e]ld that in drunk-driving
investigations, the natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case
sufficient to justify conducting a blood test without a warrant.”




                                 3
(Id. at p. 165.) “Whether a warrantless blood test of a drunk-
driving suspect is reasonable must be determined case by case
based on the totality of the circumstances.” (Id. at p. 156.)
       The People argued that McNeely was inapplicable because
“unlike the defendant in McNeely who was subjected to a
nonconsensual blood draw, [appellant] freely and voluntarily gave
his consent to have his blood drawn.” (See People v. Harris
(2015) 234 Cal.App.4th 671, 676, 689 (Harris) [McNeely is
inapposite where a motorist freely and voluntarily consents to a
warrantless blood test since such consent “is actual consent
under the Fourth Amendment,” an exception to the warrant
requirement]; Schneckloth v. Bustamonte (1973) 412 U.S. 218,
219 [“one of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search
that is conducted pursuant to consent”].)
       Defense counsel responded: Appellant did not freely and
voluntarily consent to the blood draw because the officer “did not
give him an admonition that’s in accord with California State
Law . . . . [¶] . . . [A] properly given implied consent admonition
would give him the option to choose between a breath sample or a
blood sample, and it would not say that he is required to give a
blood sample.” But defense counsel acknowledged that a breath
test would not have shown whether appellant was under the
influence of a drug. He further argued that appellant’s consent
was not voluntary because he lost consciousness after signing the
consent form.
       In denying the suppression motion, the trial court impliedly
found that appellant had freely and voluntarily consented to the
blood draw. It expressly found that he had consented pursuant to
the “implied consent law.” We do not dwell upon the latter




                                4
reason for the court’s ruling. “We may sustain the trial
court’s decision without embracing its reasoning. Thus, we may
affirm the superior court’s ruling on [appellant’s] motion to
suppress if the ruling is correct on any theory of the law
applicable to the case, even if the ruling was made for an
incorrect reason. [Citation.]” (People v. McDonald (2006) 137
Cal.App.4th 521, 529; see also People v. Smithey (1999) 20
Cal.4th 936, 972.) As we explain below, appellant freely and
voluntarily gave both verbal and written consent to the blood
draw.
                         Standard of Review
       When a defendant moves to suppress evidence pursuant to
section 1538.5, the People have “the burden of proving that the
warrantless search or seizure was reasonable under the
circumstances. [Citations.]” (People v. Williams (1999) 20
Cal.4th 119, 130.) On appeal, “[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.
[Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
       “In a suppression motion ‘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.’
[Citation.] Consequently, if an inference is permissible under the
evidence and it upholds the trial court’s decision, we must
presume that the trial court drew it. Thus, we must ‘view the
facts upon which the suppression motions were submitted in the
light most favorable to the People, drawing therefrom all
reasonable inferences in support of the trial court’s order denying




                                 5
the motions.’ [Citation.]” (People v. Dominguez (1988) 201
Cal.App.3d 345, 353; see also People v. Woods (1999) 21 Cal.4th
668, 673.)
          Substantial Evidence Supports the Finding that
  Appellant Freely and Voluntarily Consented to the Blood Draw
      “[A] court may exclude . . . evidence [pursuant to section
1538.5] only if exclusion is . . . mandated by the federal
exclusionary rule applicable to evidence seized in violation of the
Fourth Amendment.” (In re Lance W. (1985) 37 Cal.3d 873, 896.)
There is no Fourth Amendment violation when a motorist freely
and voluntarily consents to a warrantless chemical test of his
blood. (Harris, supra, 234 Cal.App.4th at pp. 685, 689.) “That
the motorist is forced to choose between submitting to the
chemical test and facing serious consequences for refusing to
submit, pursuant to the implied consent law, does not in itself
render the motorist’s submission to be coerced or otherwise
invalid for purposes of the Fourth Amendment.” (Id. at p. 689.)
“‘The voluntariness of consent is a question of fact to be
determined from the totality of circumstances. . . . [Citations.]’
[Citation.]” (Id. at p. 690.) The trial court’s determination will be
upheld if supported by substantial evidence. (People v. James
(1977) 19 Cal.3d 99, 107.)
      Appellant claims that he did not freely and voluntarily
consent to the blood draw because the officer failed to give a
proper advisement under the implied consent law. Instead of
advising him that he was required to give a blood sample,
appellant argues that the officer should have advised that he
could choose either a blood or breath test.3 Appellant relies on

      3
       At oral argument before this court, appellant also claimed
that 1) he should have been expressly advised that he could



                                 6
section 23612, subdivision (a)(2)(B), which provides, “If the
person is lawfully arrested for driving under the influence of any
drug or the combined influence of an alcoholic beverage and any
drug, the person 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.” (Italics added.)
       The officer did not comply with the letter of section 23612,
subdivision (a)(2)(B) because he did not advise appellant of his
statutory right to choose either a blood or breath test. But this
violation did not prejudice appellant and is of no constitutional
significance. The administration of a breath test would have

refuse to submit to a blood test, and 2) the officer’s failure to so
advise him renders his consent invalid because it was coerced.
The implied consent law does not require such an express
advisement. The law provides, “The [arrestee] shall be told that
his or her failure to submit to, or the failure to complete, the
required chemical testing will result” in specified consequences.
(§ 23612, subd. (a)(1)(D).) “The defendant need not be advised of
the right to refuse as a prerequisite to a finding of voluntariness.
But if so advised, this fact supports that a search was in fact
voluntary as a product of free choice and not coercion.
[Citation.]” (People v. Mason (2016) 8 Cal.App.5th Supp. 11, 20-
21.) Appellant’s right to refuse to provide a blood sample was
implied by the officer’s advisement that his license would be
suspended if he “fail[ed] to adequately provide a sample.” In
other words, appellant could refuse and suffer the legal
consequences of a refusal. (See Birchfield v. North Dakota (2016)
__ U.S. __, 136 S.Ct. 2160, 2169 [“Suspension or revocation of the
motorist’s driver’s license remains the standard legal
consequence of refusal”].) Appellant’s right to refuse was also
implied by the consent form that he signed. The form gave him
the option of refusing.




                                 7
been inconclusive because it would not have disclosed whether
appellant was under the influence of drugs or a combination of
drugs and alcohol. “[A] breath test . . . only tests for alcohol
content.” (People v. Pickard (2017) 15 Cal.App.5th Supp. 12, 15.)4
       The failure to give an advisement in compliance with the
implied consent law does not mandate the suppression of the test
result. As previously noted, evidence may be suppressed
pursuant to section 1538.5 only if the defendant’s Fourth
Amendment rights were violated and suppression is mandated by
the federal exclusionary rule. (In re Lance W., supra, 37 Cal.3d
at p. 896.) “[C]ase law has rejected contentions that a failure to
advise an arrestee of the tests available or to honor the arrestee’s
choice of a particular test amounts to a constitutional violation.
[Citations.]” (Ritschel v. City of Fountain Valley (2006) 137
Cal.App.4th 107, 119; see also Harris, supra, 234 Cal.App.4th at
p. 692 [“[F]ailure to strictly follow the implied consent law does
not violate a defendant’s constitutional rights”]; People v. Ling
(2017) 15 Cal.App.5th Supp. 1, 10 [“although the actions of the
arresting officer failed to comply with the 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”].)
       Even if the Fourth Amendment had required the officer to
comply with the letter of the implied consent law, the blood test
result would have been admissible under the inevitable discovery

      4
       There is a suggestion in the record that Officer Redeker
administered a preliminary alcohol screening test (P.A.S.) which
showed a .00 blood alcohol level. We do not factor this into our
analysis because this evidence was not admitted at the 1538.5
hearing. But this suggestion may explain why the officer did not
comply with the letter of section 23612, subdivision (a)(2)(B).



                                 8
doctrine. Pursuant to this doctrine, “illegally seized evidence
may be used where it would have been discovered by the police
through lawful means. . . . The purpose of the inevitable
discovery rule is to prevent the setting aside of convictions that
would have been obtained without police misconduct. [Citation.]”
(People v. Robles (2000) 23 Cal.4th 789, 800.) “The test is not
whether ‘the police would have certainly discovered the tainted
evidence, rather, it is only necessary to show a reasonably strong
probability that they would have.’ [Citations.]” (In re Rudy F.
(2004) 117 Cal.App.4th 1124, 1136.)
        If the officer had complied with the letter of the implied
consent law by giving the statutory advisement and appellant
had chosen a breath test, the officer could and would have
required him to submit to a blood test pursuant to section 23612,
subdivision (a)(2)(C), which provides: “A person who chooses to
submit to a breath test may also be requested to submit to a
blood test if the officer has reasonable cause to believe that the
person was driving under the influence of a drug or the combined
influence of an alcoholic beverage and a drug and if the officer
has a clear indication that a blood test will reveal evidence of the
person being under the influence. . . . The officer shall advise the
person that he or she is required to submit to an additional test.
The person shall submit to and complete a blood test.” Thus,
appellant’s blood test result would have been admissible because
“it would have been inevitably discovered independent of the
[allegedly] improper police conduct. [Citation.]” (In re Rudy F.,
supra, 117 Cal.App.4th at p. 1136.)
        Moreover, exclusion of the test result is prohibited by the
“Truth-in-Evidence” provision of Article I, section 28, subdivision
(f)(2) of the California Constitution. “By its plain terms, section




                                 9
28(d) [now section 28(f)(2)] requires the admission in criminal
cases of all ‘relevant’ proffered evidence unless exclusion is
allowed or required by an ‘existing statutory rule of evidence
relating to privilege or hearsay, or Evidence Code, [s]ections 352,
782 or 1103,’ or by new laws passed by two-thirds of each house of
the Legislature. (Italics added.)” (People v. Wheeler (1992) 4
Cal.4th 284, 292.) “‘[S]ection 28(d) supersedes all California [as
opposed to federal] restrictions on the admission of relevant
evidence except those preserved or permitted by the express
words of section 28(d) itself. [Citations.] . . .’ [Citation.]” (People
v. Alvarez (2002) 27 Cal.4th 1161, 1173, second brackets in
original.)
       We agree with the rule and rationale of Harris, supra, 234
Cal.App.4th 671. There, a sheriff’s deputy arrested the defendant
for driving under the influence of drugs and advised him that he
was required to take a blood test. “Defendant responded, ‘okay,’
and [the deputy] testified that at no time did defendant appear
unwilling to provide a blood sample.” (Id. at p. 678.) On appeal,
defendant argued that the deputy’s “admonition under the
implied consent law was false” because he said “that a blood test
was ‘the only option’ available.” (Id. at p. 691.) Defendant
contended that a motorist in his situation “must be given the
choice between a blood or breath test and may only be compelled
to take a blood test ‘if the officer has a clear indication that a
blood test will reveal evidence of the person being under the
influence.’ (Veh.Code, § 23612, subd. (a)(2)(B), (C).)” (Ibid.) The
Harris court decided that, “[u]nder the totality of the
circumstances, . . . defendant freely and voluntarily consented to
his blood being drawn, and . . . was not coerced or tricked into
submitting to the blood test.” (Id. at p. 692.) This is a fair




                                  10
characterization of what happened in the instant case. Appellant
has certainly not shown that there is substantial evidence to the
contrary.
            A New Variation on “Diminished Capacity”
       Appellant claims that he was in a state of “diminished
capacity” and therefore unable to freely and voluntarily consent
to the blood draw.5 His “diminished capacity” allegedly occurred
because he “had just been involved in [a] traffic collision.”
Appellant observes, “Although the record does not reflect the
extent of [his] injuries, [the officer] testified that [he] lost
consciousness” after the blood draw.
       The “diminished capacity” issue is forfeited because
appellant failed to raise it below. (People v. Williams, supra, 20
Cal.4th at pp. 130-131.) Even if the issue were preserved for
appeal, there is no evidence in the record that, before losing
consciousness, appellant lacked the capacity to give consent. The
loss of consciousness could have been a reaction to the blood draw
rather than the result of injuries sustained in the collision.
       The evidence is insufficient to show that appellant was
injured at all. Officer Redeker testified that he had been
informed over the police radio “that there was a noninjury traffic
collision.” Appellant alleges that he was “required . . . to be
transported to the emergency room for treatment [of his
injuries].” In fact, he was transported to the emergency room to

      5
       This new variation is not to be confused with the
“diminished capacity” that was, at one time, a rule that could
reduce culpability for crime. (See, e.g. People v. Wells (1949) 33
Cal.2d 330, 346; People v. Gorshen (1959) 51 Cal.2d 716, 726,
overruled on other grounds in People v. Blakeley (2000) 23
Cal.4th 82, 89; see also People v. Avena (1996) 13 Cal.4th 394,
414.)



                                 11
have his blood drawn. There is no evidence that he was treated
in the emergency room for injuries sustained during the collision.
                            Conclusion
      The record of the section 1538.5 hearing contains ample
evidence that appellant freely and voluntarily consented to a
chemical test of his blood. He verbally agreed to a blood draw
and signed a consent form that gave him the option of refusing
consent.
                            Disposition
      The order denying appellant’s motion to suppress is
affirmed.
      CERTIFIED FOR PUBLICATION.



                                     YEGAN, Acting P. J.

We concur:

             PERREN, J.



             TANGEMAN, J.




                                12
                    Mark S. Borrell, Judge

               Superior Court County of Ventura

                ______________________________

           Todd W. Howeth, Public Defender, William M. Quest,
Snr. Deputy, for Defendant and Appellant.
           Gregory D. Totten, District Attorney, Michelle J.
Contois, Deputy District Attorney for Plaintiff and Respondent.
