Filed 10/26/15

                              CERTIFIED FOR PUBLICATION
                             SUPERIOR COURT OF CALIFORNIA
                                 COUNTY OF SANTA CLARA
                                    APPELLATE DIVISION


 THE PEOPLE,                                         No. 1-14-AP-001652
                 Plaintiff and Appellant,            Trial Ct. No. C1367965
   v.
 STEVEN ALFRED AGNEW,                                OPINION
                 Defendant and Respondent.




        The People appeal from the granting of respondent’s motion to suppress evidence of his
blood draw in this prosecution for driving under the influence of alcohol. We find that, in
granting the motion, the trial court did not examine the totality of the circumstances in the
context of California’s implied consent law. We therefore reverse the granting of the motion to
suppress and remand the case.
                       FACTS AND PROCEDURAL BACKGROUND
        Defendant and respondent Steven Agnew was charged with driving under the influence
of alcohol in violation of both subdivisions (a) and (b) of Vehicle Code section 23152,
misdemeanors. On February 4, 2014, he filed a motion to suppress evidence under Penal Code
section 1538.5. At the conclusion of the hearing on February 14, 2014, the trial court granted
the motion.
        Campbell Police Officer William Nunn testified at the hearing on the motion to
suppress. Officer Nunn testified that, on September 9, 2013, at approximately 2:45 a.m., he
pulled over respondent Steven Agnew for pulling away from the curb without signaling and for
making an unsafe U-turn in a business district, violations of sections 24953(a) and 22102 of the



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Vehicle Code. Respondent told Officer Nunn that he had come from a downtown bar/diner,
where he drank three beers between 8 p.m. and midnight. Officer Nunn smelled an odor of
alcohol on respondent’s breath and noticed that he had slurred speech. Officer Nunn checked
respondent’s eyes, and noticed the presence of nystagmus. Officer Nunn then asked respondent
to perform two field sobriety tests, the “one-leg raise” and the “walk-and-turn.” Officer Nunn
testified that respondent did not perform those tests as Officer Nunn had explained and
demonstrated, and that Officer Nunn’s observations were consistent with someone who was
under the influence of alcohol. Respondent also had red, bloodshot eyes.
       Officer Nunn advised respondent that a preliminary alcohol screening (PAS) test was
voluntary and he did not need to provide that breath sample. Respondent replied that, since it
was voluntary, he did not want to provide the sample. Based on respondent’s driving, his
performance on the field sobriety tests, and the objective symptoms of alcohol, Officer Nunn
believed that respondent was under the influence of alcohol, and placed him under arrest in
handcuffs. Respondent then, without any further request from Officer Nunn, advised Officer
Nunn that he wanted to provide the PAS breath sample, and took the PAS test.
       Officer Nunn then advised respondent that he was required by California law to provide
a blood or breath sample, and asked which test he preferred. Respondent chose to provide a
blood sample. Officer Nunn testified that he believed he admonished respondent about the
requirement to provide a breath or blood test while in the field, after respondent was in
handcuffs. Officer Nunn testified that he did not obtain a warrant because respondent did not
refuse to provide the blood or breath sample.
       Officer Nunn then transported respondent to a building near the Santa Clara County
main jail, and called for a certified nurse technician to obtain a blood sample from respondent.
The certified nurse technician put on gloves, cleaned the area to be punctured with a new cotton
swab, removed the needle from a sealed package, and, after the blood was drawn, cleaned and
bandaged the wound. Officer Nunn testified that the certified nurse technician did not use any
force when attempting to draw blood, that he did not recall respondent exhibiting any




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discomfort or pain during the blood draw, and that, while in the officer’s presence, respondent
did not suffer any complications after the procedure.
       At the conclusion of the hearing on February 14, 2014, the trial court found that there
was consent for the PAS test, which was a voluntary request by the defendant after he was
arrested without a further prompt by the officer, but, for the blood test, “the fact that the officer
informed the defendant that he was required by law to give a blood or breath test without
informing him of the consequences did not provide adequate evidence of choice, voluntary
choice on the part of the defendant.” The trial court then granted the motion to suppress the
blood draw, and set a date for a pretrial conference.
       On March 3, 2014, the People timely filed a notice of appeal. On March 25, 2014, the
trial court granted a temporary stay of the proceedings until the conclusion of this appeal.
                                            ANALYSIS
                      The Consent Exception under the Fourth Amendment
       Blood draws are searches covered by the Fourth Amendment to the United States
Constitution. (Schmerber v. California (1966) 384 U.S. 757, 767, 770 (Schmerber).) In this
case, the officer did not seek a search warrant for the blood draw, but the People rely on an
exception to the warrant requirement based on respondent’s consent.
       The Fourth Amendment states that “[t]he right of the 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.” “Although the text of the
Fourth Amendment does not specify when a search warrant must be obtained, this Court has
inferred that a warrant must generally be secured.” (Kentucky v. King (2011) 563 U.S. 452, __,
131 S.Ct. 1849, 1856 (King).) The United States Supreme Court, however, has also long held
that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” (Brigham City v.
Stuart (2006) 547 U.S. 398, 403; see Florida v. Jimeno (1991) 500 U.S. 248, 250 (Jimeno);
Katz v. United States (1967) 389 U.S. 347, 360.) The warrant requirement is therefore subject
to certain reasonable exceptions. (King, supra, 563 U.S. at p. __, 131 S.Ct. at p. 1856.) “The
Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely




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proscribes those which are unreasonable.” (Jimeno, supra, 500 U.S. at p. 250 (citing Illinois v.
Rodriguez (1990) 497 U.S. 177, 183).) “Thus, we have long approved consensual searches
because it is no doubt reasonable for the police to conduct a search once they have been
permitted to do so.” (Jimeno, supra, 500 U.S. at pp. 250-251 (citing Schneckloth v. Bustamonte
(1973) 412 U.S. 218, 219 (Schneckloth)).)
       Reasonableness under the Fourth Amendment “is measured in objective terms by
examining the totality of the circumstances.” (Ohio v. Robinette (1996) 519 U.S. 33, 39.) “The
Fourth Amendment test for a valid consent to search is that the consent be voluntary, and
‘voluntariness is a question of fact to be determined from all the circumstances.’ ” (Id. at p. 40,
quoting Schneckloth, supra, 412 U.S. at pp. 248-249.)
                                California’s Implied Consent Law
       The totality of the circumstances in this case includes California’s implied consent law.
Under section 23612 of California’s Vehicle Code, “[a] person who drives a motor vehicle is
deemed to have given his or her consent to chemical testing of his or her blood or breath for the
purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an
offense allegedly committed in violation of Section 23140, 23152, or 23153.” That a person is
“deemed to have given” consent in advance by driving explains the “implied consent” label.
(Hernandez v. DMV (1981) 30 Cal.3d 70, 73, fn. 1 (Hernandez).) The California Supreme
Court has held that “section 23612 applies broadly and generally to ‘those who drive’ – that is,
to those who avail themselves of the public streets, roads, and highways to operate motor
vehicles in this state.” (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1139 (Troppman).)
       The Legislature adopted the implied consent law in 1966 in response to the United
States Supreme Court decision in Schmerber, which had approved forcible, warrantless
chemical testing of arrested persons under certain conditions, including certain exigent
circumstances. “ ‘Although it is clear under Schmerber that a person who has been lawfully
arrested may have a blood sample forcibly removed without his consent, provided [certain
conditions are met], nevertheless such an episode remains an unpleasant, undignified and
undesirable one. ’ ” (Mercer v. DMV (1991) 53 Cal.3d 753, 759-760, quoting People v. Superior




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Court (Hawkins) (1972) 6 Cal.3d 757, 764-765.) “We observed in Mercer and Hawkins that by
enacting the implied consent law, thereby providing an alternative method of compelling a
person arrested for driving while under the influence to submit to chemical testing, the
Legislature afforded officers a means of enforcement that does not involve physical
compulsion.” (Troppman, supra, 40 Cal.4th at p. 1136.) In enacting the initial implied consent
law, “the Legislature sought to obviate these consequences for the driver and ‘avoid the possible
violence which could erupt if forcible tests were made upon a recalcitrant and belligerent
inebriate’ [citation], while at the same time preserving the state’s strong interest in obtaining the
best evidence of the defendant’s blood alcohol content at the time of the arrest.” (Hernandez,
supra, 30 Cal.3d at p. 77, quoting Anderson v. Cozens (1976) 60 Cal.App.3d 130, 143.)
       The Legislature therefore has determined that the ability to drive in California is a
privilege, and that it is important to condition that privilege on implied consent to testing if
lawfully arrested for drunk driving. By driving on California’s roads, respondent accepted that
condition of implied, advance consent if lawfully arrested for drunk driving. California courts
have upheld advance consent to search, for example, as a condition of probation. (People v.
Robles (2000) 23 Cal.4th 789, 795 (person may validly consent in advance to warrantless
searches as a condition of probation; such searches aid in deterring further offenses and in
monitoring compliance with terms of probation); People v. Bravo (1987) 43 Cal.3d 600, 611
(probation warrantless search condition permits search even without reasonable cause); People
v. Mason (1971) 5 Cal.3d 759, 765 (defendant who agreed to permit warrantless searches to
obtain the privilege of probation waives in advance traditional Fourth Amendment protection);
cf. United States v. Knights (2001) 534 U.S. 112, 118 (2001) (holding that warrantless search,
supported by reasonable suspicion and authorized as a condition of probation, was reasonable
under general Fourth Amendment approach of examining totality of circumstances, without
deciding whether it constituted consent).
       Even with advance consent, however, respondent could have withdrawn that consent and
objected to any blood draw. The totality of the circumstances, therefore, includes not only the
advance consent, but respondent’s conduct and the circumstances surrounding the testing.




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       In Missouri v. McNeely (2013) ___ U.S. ___, 133 S.Ct. 1552 (McNeely), the United
States Supreme Court recognized the tool of advance consent. In McNeely, the Supreme Court
addressed whether the natural metabolization of alcohol in the bloodstream presented a per se
exigency that justifies an exception to the Fourth Amendment’s warrant requirement for
nonconsensual blood testing in all drunk-driving cases, and held that it did not. (Id., 133 S.Ct.
at p. 1556.) The Supreme Court held that exigency must be determined instead case by case
based on the totality of the circumstances. (Ibid.) In McNeely, of course, the Court was
addressing the exigency exception to the warrant requirement, not the consent exception. In
fact, in that case the defendant, McNeely, had refused when asked whether he would consent to
a blood test under Missouri’s implied consent law. (Id., 133 S.Ct. at p. 1558.) A plurality of the
Court, however, addressed why the arguments advanced to support a per se exigency,
particularly the important governmental interest in preventing and prosecuting drunk-driving
offenses, were not persuasive. “As an initial matter, States have a broad range of legal tools to
enforce their drunk-driving laws and to secure BAC [blood alcohol concentration] 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.” (Id., 133 S.Ct. at p. 1566.) The plurality opinion
continued: “Such laws impose significant consequences when a motorist withdraws consent;
typically the motorist’s driver’s license is immediately suspended or revoked, and most States
allow the motorist’s refusal to take a BAC test to be used as evidence against him in a
subsequent criminal prosecution.” (Ibid.) This recognition of implied consent “as a condition
of operating a motor vehicle,” and recognition of the consequences when a motorist “withdraws
consent,” suggests that the implied advance consent is valid.
       In a recent opinion, People v. Harris (2015) 234 Cal.App.4th 671 (Harris), the Court of
Appeal held that warrantless blood draws are not limited to the exception of exigent
circumstances under McNeely. (Id. at p. 684.) The Court of Appeal found that actual consent
under the implied consent statute satisfies the Fourth Amendment. (Id. at p. 689.) The Court,




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applying “the normal totality of circumstances analysis,” found that defendant’s submission to
the blood draw was free and voluntary. (Ibid.)
                                California’s Statutory Admonition
       Before oral argument on this appeal, this court ordered supplemental briefing to address
the Harris decision. In his supplemental brief, respondent distinguished Harris on the ground
that the police there gave an admonishment informing the defendant of the consequences of
refusing to submit to chemical testing, and argued that the officer’s failure to give respondent
the admonishment here was a factor tending to show that respondent did not voluntarily consent
to the chemical test. As mentioned above, the trial court went even further than respondent’s
argument by relying on the fact that the officer did not inform defendant of the consequences of
failing to test as the sole factor in finding no voluntary consent. We actually agree with
respondent that whether the admonition is given should be considered in the totality of
circumstances, but the admonition is not required and is not the critical factor here.
       In Harris, the officer told defendant that, based on the officer’s belief that defendant was
under the influence of a drug, defendant was required to submit to a chemical blood test.
(Harris, supra, 234 Cal.App.4th at p. 678.) The officer did tell defendant that he did not have
the right to talk to a lawyer when deciding to submit to the chemical test, that refusal to submit
to the test would result in the suspension of his driver’s license, and that refusal could be used
against him in court. (Id.) The Court of Appeal, though, considered all the circumstances in
finding the consent to be free and voluntary, including that the officer twice told defendant that
he was required to submit to the blood test, that defendant responded “okay” to the officer’s
advisement, that at no time did defendant appear unwilling to provide a blood sample, and that
defendant “did not resist the blood draw or say ‘no, I don’t want to do this.’ ” (Id. at pp. 678,
690.) The Court of Appeal did not hold that an admonition of the consequences of refusing to
submit to testing is required in order to find voluntary consent. In fact, the defendant in Harris
argued “that a driver’s submission to a blood draw, given only after admonition by the police
pursuant to California’s implied consent law, can never (or almost never) be considered valid
consent under the Fourth Amendment because submission is extracted under the threat of




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serious consequences for refusal.” (Id. at p. 686.) The Court rejected this categorical rule,
holding that “[t]he fact that a motorist is told he will face serious consequences if he refuses to
submit to a blood test does not, in itself, mean that his submission was coerced.” (Id. at p. 687.)
The Court of Appeal did quote language from an out-of-state case suggesting that “ ‘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.’ ” (Id. at p. 689, quoting State v. Moore (2013)
354 Ore. 493, 318 P.3d 1133, 1138, italics in original.) This quoted language was dicta,
however, and the Court of Appeal in Harris did not hold that the admonishment was required in
order to find voluntary consent. Again, the Court considered the totality of all the
circumstances. Indeed, the Court summarized its conclusion as holding “that admonition under
the implied consent law of the consequences of refusing to submit to a chemical test does not
always result in coerced consent,” suggesting that in certain cases the admonition might result in
coercion. (Id. at p. 682, italics added.)
        In Harris, moreover, the Court addressed defendant’s further contention that consent
was invalid because the officer’s admonition was false in certain respects. The Court of Appeal
found “nothing in the record to support defendant’s suggestion that Deputy Robinson
intentionally deceived him about the contours of the implied consent law.” (Id. at p. 691.) The
admonition, “though not entirely accurate, was not patently false,” and the officer correctly
informed the defendant of certain consequences. (Ibid.) The Court of Appeal recognized that
“failure to strictly follow the implied consent law does not violate a defendant’s constitutional
rights.” (Id. at p. 692, citation omitted.)
        Section 23612, subdivision (a)(1)(D), of California’s Vehicle Code states that “[t]he
person shall be told that his or her failure to submit to, or the failure to complete, the required
chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a
violation of section 23152 or 23153,” and the suspension of the person’s privilege to operate a
motor vehicle for one year, or the revocation for two or three years depending on certain prior
Vehicle Code violations. The actual text of the admonishment, describing the conditions for the




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various periods of license suspension or revocation, extends many, many lines. Section 23612,
subdivision (a)(4), of the Vehicle Code states that “the officer shall also advise the person that
he or she does not have the right to have an attorney present before stating whether he or she
will submit to a test or tests, before deciding which test or tests to take, or during administration
of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal
may be used against him or her in a court of law.”
        The admonition is intended to encourage arrested motorists to take the required test,
because “the inference of intoxication arising from a positive blood-alcohol test is far stronger
than that arising from a refusal to take the test.” (South Dakota v. Neville (1983) 459 U.S. 553,
564.) The admonition therefore encourages consent to testing and reduces the need for forced
blood draws, by informing arrested motorists of the serious consequences of refusing to test.
(See id. at p. 566, fn. 17 (“Since the State wants the suspect to submit to the test, it is in its
interest to fully warn suspects of the consequences of refusal.”).) In fact, although consent is
measured under an objective standard, the officer in this case actually explained during his
testimony his general practice of providing admonitions. Officer Nunn testified that when
arrested motorists refuse to provide a sample by saying that they do not want to provide the
breath or blood sample that is mandated under California law, he advises them that their license
can be suspended, that their refusal to complete a test may be used against them in court, that it
will result in a fine and imprisonment if the arrest results in a conviction, and that they do not
have a right to talk to an attorney before stating whether they will submit to the test, before
deciding which test to take, or during the test.
        The failure to provide the admonition of the consequences of refusing to test might
preclude the imposition of those consequences for any refusal to test, in any later administrative
license proceedings. (See Vehicle Code § 13353, subd. (d)(4); § 13557, subd. (b)(1)(D) (based
on explicit statutory language; there is no comparable language excluding the results of testing
if the admonition is not given).) As mentioned above, in his supplemental briefing on this
appeal, respondent raised the failure to give the admonition as a factor showing that consent was
not voluntary under the Fourth Amendment. At the actual oral argument, though, respondent’s




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counsel did not assert that failure as a basis for involuntary consent under the Fourth
Amendment, and seemed to concede that the admonition was relevant only for potential
administrative remedies. (Respondent, of course, was not subject to any of these consequences,
because he did consent to the test.) Contrary to both those arguments, though, in his initial brief
on this appeal, respondent argued: “On its face, if such an admonishment [under Vehicle Code
section 23612, subdivision (a)(1)(D)] is administered subsequent to an arrest in the search and
seizure context, respondent submits that such a chemical testing requirement is inherently
coercive. An arrestee is not ‘free’ to decline chemical testing.” (Respondent’s Reply Brief filed
November 24, 2014, at pp. 14-15.) Respondent therefore was initially arguing that giving the
admonition, not failing to give the admonition, would support a finding of involuntary consent.
As described above, the defendant in Harris raised the same argument, which the Court of
Appeal addressed.
       Although providing the admonition about the consequences of withdrawing consent
would be considered in the totality of the circumstances surrounding the consent, the
admonition is not required in order to find voluntary consent. Requiring the admonition as a
condition for voluntary consent would, in effect, elevate the statutory admonition to a
constitutional requirement under the Fourth Amendment. United States Supreme Court cases
and California cases have rejected similar advisements as constitutional requirements.
       The United States Supreme Court, in evaluating consent under the Fourth Amendment in
other contexts, has consistently refused to require informing the person of the right to refuse a
request to search. In United States v. Drayton (2002) 536 U.S. 194 (Drayton), for example, the
Court considered the searches of two passengers traveling together on a bus. The federal Court
of Appeals in that case had reversed denials of motions to suppress, adopting “what is in effect a
per se rule that evidence obtained during suspicionless drug interdiction efforts aboard buses
must be suppressed unless the officers have advised passengers of their right not to cooperate
and to refuse consent to a search.” (Id. at p. 202.) The Supreme Court reversed the Court of
Appeals. “The Court has rejected in specific terms the suggestion that police officers must
always inform citizens of their right to refuse when seeking permission to conduct a warrantless




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consent search.” (Id. at p. 206.) “Nor do this Court’s decisions suggest that even though there
are no per se rules, a presumption of invalidity attaches if a citizen consented without explicit
notification that he or she was free to refuse to cooperate. Instead, the Court has repeated that
the totality of the circumstances must control, without giving extra weight to the absence of this
type of warning.” (Id. at p. 207.)
       In Drayton, the Court cited its earlier decisions in Schneckloth v. Bustamonte (1973)
412 U.S. 218 (Schneckloth), and Ohio v. Robinette (1996) 519 U.S. 33 (Robinette). In
Schneckloth, the United States Supreme Court reviewed a federal Court of Appeals decision that
had held, on a writ of habeas corpus from a California case, that the State had to demonstrate
that consent to search after a traffic stop was not only uncoerced, but that it had been given with
the understanding that it could be freely and effectively withheld. (Schneckloth, supra, 412 U.S.
at pp. 221-222.) In other words, the State had to prove that a person knows he or she has the
right to refuse consent. (Id. at p. 223.) After discussing the expositions of the meaning of
“voluntariness” in its earlier decisions, the Court concluded that the question whether consent to
a search was voluntary, at least in the context of someone not in custody, is a question of fact to
be determined from the totality of all the circumstances. (Id. at p. 227.) “While knowledge of
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.” (Ibid.) The Court
recognized that one alternative that “would go far toward proving” that the subject of a search
did know that he or she had a right to refuse consent would be to advise the subject of that right
before eliciting consent. “That, however, is a suggestion that has been almost universally
repudiated by both federal and state courts, and, we think, rightly so.” (Id. at p. 231 (footnotes
omitted).) In a footnote, the Court cited two California cases, People v. Roberts (1966)
246 Cal.App.2d 715, and People v. Dahlke (1967) 257 Cal.App.2d 82 (Dahlke). (Schneckloth,
supra, 412 U.S. at p. 231, fn. 14.) In Dahlke, one defendant consented to a search of a car after
being arrested and taken to the police station. The Court of Appeal stated: “Defendants’
contention that a consent is invalid when obtained from a defendant who is in police custody
and who has not first been advised of his right to refuse consent may not be sustained.”




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(257 Cal.App.2d at p. 87.) Whether the consent was voluntary was to be determined in light of
all the circumstances. (Ibid.)
       In United States v. Watson (1976) 423 U.S. 411, the Supreme Court applied the holding
of Schneckloth to a consent given while under arrest and in custody. “[T]he fact of custody
alone has never been enough in itself to demonstrate a coerced confession or consent to search.
Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his
consent, though it may be a factor in the overall judgment, is not to be given controlling
significance.” (Id. at p. 424.) “In these circumstances, to hold that illegal coercion is made out
from the fact of arrest and the failure to inform the arrestee that he could withhold consent
would not be consistent with Schneckloth and would distort the voluntariness standard that we
reaffirmed in that case.” (Id. at p. 425.)
       In Robinette, the United States Supreme Court reviewed a decision of the Supreme
Court of Ohio that had held, under the Fourth Amendment, that citizens stopped for a traffic
offense must be informed by the officer when they are free to go after the valid detention based
on the traffic stop, before the officer attempts to engage in a consensual interrogation. The
United States Supreme Court recognized that, in applying the touchstone test of reasonableness
under the Fourth Amendment, measured in objective terms by examining the totality of the
circumstances, “we have consistently eschewed bright-line rules, instead emphasizing the fact-
specific nature of the reasonableness inquiry.” (Robinette, supra, 519 U.S. at p. 39.) The Court
cited and quoted Schneckloth, and concluded that “just as it ‘would be thoroughly impractical to
impose on the normal consent search the detailed requirements of an effective warning,’
[citation], so too would it be unrealistic to require police officers to always inform detainees that
they are free to go before a consent to search may be deemed voluntary.” (Robinette, supra,
519 U.S. at pp. 39-40, quoting Schneckloth, supra, 412 U.S. at p. 231.) The Court confirmed
that voluntariness is a question of fact to be determined from all the circumstances, and reversed
the decision of the Supreme Court of Ohio. (Robinette, supra, 519 U.S. at p. 40.)
       In South Dakota v. Neville (1983) 459 U.S. 553 (Neville), the United States Supreme
Court considered whether admitting into evidence at trial a defendant’s refusal to submit to a




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test under an implied consent law violated the defendant’s right against self-incrimination under
the Fifth Amendment. At the outset, the Court distinguished the holding in Griffin v. California
(1965) 380 U.S. 609, which had held that a prosecutor’s or trial court’s comments on a
defendant’s refusal to take the stand impermissibly burdened the defendant’s Fifth Amendment
right to refuse to testify. “Unlike the defendant’s situation in Griffin, a person suspected of
drunk driving has no constitutional right to refuse to take a blood-alcohol test.” (Neville, supra,
459 U.S. at p. 560, fn. 10.) The Court then held that a refusal to take a blood-alcohol test,
after an officer has lawfully requested it, is not an act coerced by the officer and is therefore not
protected by the Fifth Amendment privilege against self-incrimination. In Neville, the officer
had informed defendant of certain consequences of refusing to test under South Dakota’s
implied consent law, including license revocation, but had failed to advise defendant that the
refusal could be used against him at trial. The Supreme Court therefore then addressed
defendant’s argument that admitting at trial his refusal to test violated the Due Process Clause
because he was not fully warned of the consequences of refusal. The Supreme Court also
rejected this challenge. “[W]e do not think it fundamentally unfair for South Dakota to use the
refusal to take the test as evidence of guilt, even though respondent was not specifically warned
that his refusal could be used against him at trial.” (Id. at p. 565.) The Court held again that, in
contrast to the constitutional right to silence, defendant’s right to refuse the blood-alcohol test
“is simply a matter of grace bestowed by the South Dakota Legislature.” (Ibid.) The Court also
recognized that other warnings made it clear that refusing to test was not free of adverse
consequences.
       In Neville, in addressing the consequences under the Due Process Clause of the fact that
the officers did not specifically warn defendant that the test results could be used against him at
trial, the Supreme Court added a note about the effect of warnings under the Fourth
Amendment, applying the principles discussed above from earlier Supreme Court cases: “Even
though the officers did not specifically advise respondent that the test results could be used
against him in court, no one would seriously contend that this failure to warn would make the
test results inadmissible, had respondent chosen to submit to the test. Cf. Schneckloth v.




                                                 13
Bustamonte, 412 U.S. 218 (1973) (knowledge of right to refuse not an essential part of proving
effective consent to a search).” (Neville, supra, 459 U.S. at p. 565, fn. 16.) In a recent Ninth
Circuit Court of Appeals decision, the Court considered whether an admonition that incorrectly
informed the suspect that his refusal to test was not a freestanding crime under federal law
violated due process. The Court cited Neville and McNeely in stating: “We doubt that the
Constitution requires any admonition be given to DUI suspects. Cf. Missouri v. McNeely,
133 S.Ct. 1552, 1566, 185 L.Ed.2d 696 (2013) (noting that ‘States have a broad range of legal
tools to enforce their drunk-driving laws,’ with ‘all 50 States hav[ing] adopted implied consent
laws’); Neville, 459 U.S. at 565 (explaining that one’s ‘right to refuse’ a blood alcohol test is not
of constitutional origin; it is ‘simply a matter of grace bestowed by’ state legislatures).” (United
States v. Harrington (9th Cir. 2014) 749 F.3d 825, 830.) The Court held, though, that when an
admonition is given, due process is violated when it “incorrectly informs the suspect that his
refusal is not a freestanding crime, when in fact it is.” (Ibid.)
       In all the above cases addressing consent under the Fourth Amendment, of course, the
Supreme Court was addressing the purported failure to inform persons of the right to refuse
voluntary consent, where there was no advance consent and where the consequences of refusing
consent were not codified. Here, respondent already provided advance consent under the
implied consent law, and respondent is relying upon the failure to inform him of the
consequences of withdrawing that consent, which are stated in the statute. As an initial matter,
respondent should be presumed to know the law. (People v. Hagedorn (2005) 127 Cal.App.4th
734, 748.) In any event, even applying the Supreme Court’s analysis in the cases discussed
above, the statutory admonishment of the consequences of refusing to submit to testing under
section 23612 should not be a constitutional requirement under the Fourth Amendment.
       In fact, the California courts have held that a similar statutorily-required admonition is
not constitutionally required. Subdivision (a)(2)(A) of that same section 23612 of the Vehicle
Code states: “If the person is lawfully arrested for driving under the influence of an alcoholic
beverage, 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.” This requirement that the




                                                  14
officer “shall advise” the arrested person of the choice of test is therefore similar to the
requirement that a person “shall be told” of certain consequences of failing to submit to testing
under subdivision (a)(1)(D), and that the officer “shall advise” the person of other matters under
subdivision (a)(4). The courts have nevertheless held that the failure to inform defendants of
the choice of tests does not render the blood draw unconstitutional. (Respondent here was told
of that choice.)
       In Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107 (Ritschel), the Court
of Appeal affirmed the dismissal of civil rights claims that were based on officers’ forcible
taking of a blood sample. The plaintiff alleged that the officers had failed to comply with
California’s implied consent law by not offering him a choice between blood or breath tests, and
therefore had violated his constitutional rights. The Court rejected the claim under the Fourth
Amendment, holding that “even assuming the officers violated plaintiff’s statutory rights under
California’s implied consent law, it was not a violation of his federal constitutional rights.” (Id.
at p. 118, italics in original.) The Court then cited the California cases supporting that principle.
“California case law unequivocally establishes a police officer’s failure to comply with the
implied consent law does not amount to a violation of an arrestee’s constitutional rights.”
(Ibid.) “More apropos to the present appeal, case 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.” (Id. at p. 119 (citations omitted).) The Court concluded:
“Thus, California decisional law holds a police officer’s mere failure to comply with the
requirements of this state’s implied consent law does not equate with or amount to a violation of
the arrestee’s rights under the federal Constitution.” (Id. at 119.) In Harris, as discussed above,
in addressing the contention that the admonition there about the consequences of refusing to test
was false, the Court of Appeal relied on this same principle: “As the appellate division
recognized in its opinion, failure to strictly follow the implied consent law does not violate a
defendant’s constitutional rights.” (Harris, supra, 225 Cal.App.4th at p. 692 (citation to
appellate division opinion, which in turn was quoting Ritschel, omitted).)




                                                 15
        In People v. Brannon (1973) 32 Cal.App.3d 971, the Court of Appeal much earlier
concluded that, even though the officer had intentionally failed to advise the defendant of his
right to choose among blood, breath, or urine tests, such a violation of the implied consent
statute “involves no violation of any constitutionally protected interest,” and, without an express
statutory provision making the evidence obtained as a result of such statutory violation
inadmissible, the evidence was properly admitted. (Id. at p. 975; People v. Puccinelli (1976) 63
Cal.App.3d 742, 746 (“The desirability of obtaining blood samples in a noncoercive manner by
one of the tests provided for in [the implied consent statute] may not be equated, however, with
constitutionality.”).)
        Just as the failure to advise arrestees about the choice of tests in violation of the statute is
not a constitutional violation, the failure to inform respondent of certain consequences of
refusing to submit to testing under the statute cannot be elevated to a constitutional requirement.
In fact, under the statute, the Legislature did not even require an admonition of the
consequences of refusing to submit to testing in all cases. Under Vehicle Code section 23612,
subdivision (a)(5): “Any person who is unconscious or otherwise in a condition rendering him
or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests
may be administered whether or not the person is told that his or her failure to submit to, or the
noncompletion of, the test or tests will result in the suspension or revocation of his or her
privilege to operate a motor vehicle.” Under the implied consent law, then, a person incapable
of refusing could be tested, and the results presumably admissible in court, even though the
person was not admonished of the consequences of failing to test, because that person’s implied
advance consent would be deemed not to have been withdrawn. (Cf. Bush v. Bright (1968)
264 Cal.App.2d 788, 792-793 (the statute’s provision allowing the chemical test of a person
unconscious or otherwise unable to refuse makes “it clear that even in such cases the earlier
provision that the person shall be deemed to have given his consent shall nevertheless apply”;
and the person is subject to the license suspension provisions).)
        Under the above principles, requiring the statutory admonition about the consequences
of withdrawing consent in every case, or even treating that as the critical factor, would




                                                  16
improperly elevate the admonishment to a constitutional requirement under the Fourth
Amendment. Providing the statutory admonishment therefore should be only a factor in
weighing the voluntariness of consent under the totality of circumstances. Indeed, it is not even
clear how the admonishment would always affect voluntariness. As discussed above, in his
initial briefing on this appeal, respondent asserted that the statutory admonition would make the
testing requirement “inherently coercive,” so that any implied consent would be “obviated.”
(Respondent’s Reply Brief filed on November 24, 2014, at pp. 14-15.) As also discussed above,
the defendant in Harris raised the same argument, which the Court of Appeal addressed.
                                     The Trial Court’s Ruling
       Respondent urges us to affirm the trial court’s granting of his motion to suppress on the
ground that we must defer to the trial court’s factual findings that the prosecution had not met
its burden of establishing free and voluntary consent. Respondent argues that substantial
evidence supports the trial court’s ruling. The People, of course, do bear the burden of proving
voluntary consent. (Schneckloth, supra, 412 U.S. at p. 222.) Further, respondent has cited the
general standard of review: “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.” (People v. Letner and Tobin (2010) 50 Cal.4th
99, 145 (Letner and Tobin); Harris, supra, 234 Cal.App.4th at p. 681, quoting People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 364-365, which was, in turn, quoting Letner and
Tobin.) However, “[t]he ruling on whether the applicable law applies to the facts is a mixed
question of law and fact that is subject to independent review.” (Letner and Tobin, supra,
50 Cal.4th at p. 145; Harris, supra, 234 Cal.App.4th at p.681.)
       In this case, the trial court did not actually make any findings of fact, as the facts were
not disputed. Officer Nunn was the only witness who testified. The trial court accepted his
testimony, and did not judge witness credibility or resolve any conflicts in testimony. Then, in
applying the law to the facts, the trial court did not even seem to apply the test of whether, under
the totality of all the circumstances, the People had proved voluntary consent.




                                                 17
       In ruling, the trial court stated that there was no published California case discussing
“the implied consent requirement vis-à-vis the Fourth Amendment issues that McNeely touches
on.” The Court continued: “The Fourth Amendment aspects are elevated over the implied
consent law. The implied consent law is approved of by the Supreme Court in McNeely, but it
doesn’t rise to the level of the Fourth Amendment.” The court said that it seemed that “the
question is whether factually there was consent for the blood test.” As mentioned above, the
court found consent for the PAS test. “But with respect to the later blood test, the fact that the
officer informed the defendant that he was required by law to give a blood or breath test without
informing him of the consequences did not provide adequate evidence of choice, voluntary
choice on the part of the defendant. The fact that the officer said you are required by law to
provide one or the other is indicative of the factual scenario in the Bumper case, . . . that the
consent that’s given is vitiated by a representation about legal authority.”
       The trial court therefore relied solely on the fact that the officer told respondent that the
test was “required by law,” and did not inform him of the consequences of refusing. The trial
court relied exclusively on Bumper v. North Carolina (1968) 391 U.S. 543 (Bumper). In that
case, the defendant’s grandmother had allowed officers to enter her home after they announced
that they had a search warrant to search her house. “The issue thus presented is whether a
search can be justified as lawful on the basis of consent when that ‘consent’ has been given only
after the official conducting the search has asserted that he possesses a warrant. We hold that
there can be no consent under such circumstances.” (Id. at p. 548 (footnote omitted).) The
Court reasoned that “[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. The result can be no different
when it turns out that the State does not even attempt to rely upon the validity of the warrant, or
fails to show that there was, in fact, any warrant at all.” (Id. at pp. 549-550 (footnotes omitted).)
“When a law enforcement officer claims authority to search a home under a warrant, he
announces in effect that the occupant has no right to resist the search. The situation is instinct
with coercion – albeit colorably lawful coercion. Where there is coercion there cannot be
consent.” (Id. at p. 550.) In a footnote, the Supreme Court cited a court stating that “[o]rderly




                                                 18
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,
citing United States v. Elliott (D.Mass. 1962) 210 F.Supp. 357, 360.)
       In Harris, the defendant cited Bumper in arguing that submitting to a blood draw, given
only after admonition by the police under the implied consent law, “can never (or almost never)
be considered valid consent under the Fourth Amendment.” (Harris, supra, 234 Cal.App.4th
at p. 686.) As described above, the Court rejected this categorical rule, holding that “[t]he fact
that a motorist is told he will face serious consequences if he refuses to submit to a blood test
does not, in itself, mean his submission was coerced.” (Id. at p. 687.)
       This case did not involve the type of coercion or “claim of lawful authority”
demonstrated in Bumper, where the officer coerced “consent” by falsely announcing a search
warrant that presumably either did not exist or was not valid. Here, the officer simply informed
respondent that he was “required” by California law to submit to a blood or breath test, which is
an accurate statement of the implied consent law. Vehicle Code section 23612, subdivision
(a)(1)(D) refers to the “required chemical testing.” As quoted above, even the United States
Supreme Court recognized, as a legal tool to enforce drunk-driving laws without undertaking
warrantless nonconsensual blood draws, implied consent laws that “require” motorists, as a
condition of operating a motor vehicle, to consent to testing. (McNeely, supra, 133 S.Ct. at
p. 1566.) To equate this accurate statement of the law with the false statement of having a
search warrant in Bumper is to ignore the implied consent law. Under the implied consent law,
moreover, a motorist consents in advance to testing if arrested for driving under the influence,
and the issue is then whether the arrested motorist withdraws that consent by refusing to test.
Again, in citing the legal tool of implied consent laws, the Supreme Court recognized that such
laws impose significant consequences when a motorist “withdraws” consent. (McNeely, supra,
133 S.Ct. at p. 1566.) The implied consent statute is not framed in terms of having to request
consent once a motorist is arrested, with a choice at that time of whether to consent to test or




                                                19
face later specified consequences. The issue under the implied consent law is whether
respondent withdrew advance consent to testing. The fact that the officer did not provide the
statutory admonition concerning the consequences of the refusal to test is a fact to be considered
in weighing consent under the totality of all the circumstances, which is what respondent
seemed to be arguing at least in his supplemental briefing. Relying on that fact as the only
dispositive fact to defeat consent, however, in effect elevates that statutory admonition into a
constitutional requirement under the Fourth Amendment. As discussed above, California cases
have rejected elevating a similar admonition under the implied consent law to a constitutional
requirement, and the United States Supreme Court has rejected imposing analogous
admonitions as constitutional requirements.
                         The Totality of the Circumstances in This Case
       We therefore find that the trial court did not apply the appropriate test of weighing the
totality of the circumstances in the context of the implied consent law. The motion to suppress
was based solely on the testimony of Officer Nunn. Officer Nunn testified that, after placing
respondent under arrest, he advised him that he was required by California law to provide a
blood or breath sample, and asked him which one he would prefer. Respondent chose a blood
test. According to Officer Nunn’s testimony, respondent did not indicate in any way that he did
not want to provide a blood or breath sample. Officer Nunn did not threaten respondent with
force or state that, even if respondent refused, a test would be forced. Respondent then did not
object or resist in any way in actually providing the sample to the certified nurse technician.
These facts would support a finding that respondent voluntarily consented to the blood test, and
did not withdraw his consent.
       As discussed above, the fact that Officer Nunn did not advise respondent of the
consequences of refusing to test would be another fact to consider in the totality of the
circumstances. Respondent argues that the fact that he had been arrested and was handcuffed in
the field when offered the choice of tests, and later when he provided the sample, supports a
finding that there was no voluntary consent. Those facts, however, are always present when
motorists are tested after being arrested for suspected driving under the influence. The facts that




                                                20
a person is under arrest and in handcuffs do not by themselves show that the blood test was
involuntary, or that the respondent could not have withdrawn consent by refusing to test.
(People v. Monterroso (2004) 34 Cal.4th 743, 758; People v. James (1977) 19 Cal.3d 99,
109-110.)
       The fact that advising motorists, even after being arrested and handcuffed, that they are
required to test under California law is not inherently coercive, is demonstrated by Officer
Nunn’s own testimony. As discussed above, Officer Nunn described his general practice under
which he does read certain admonitions about the consequences of refusing to test if an arrested
motorist refuses to test. Officer Nunn explained the context for those admonitions: “Once a
person is placed under arrest, I advise them that it is required by the State of California to
provide a blood or breath sample. Sometimes they will say I would like to provide a blood
sample, sometimes a breath sample. Sometimes they say they don’t want to provide either, at
which point I continue and tell them, you must realize that if you do not provide a breath sample
required by the State of California, your license can be suspended for a year and whatnot from
the back of [a DMV form].” This testimony based on the officer’s experience shows that others
have refused to test, after being advised that it is required under California law.
       Finally, in this case we have the additional facts that earlier, after completing certain
field sobriety tests and before being placed under arrest, respondent was advised by Officer
Nunn that a PAS test was voluntary, and respondent replied that he did not want to provide it.
After being arrested and handcuffed, and before being informed of the required testing, though,
respondent, voluntarily and without prompting, offered to take the PAS test. This fact would
support the voluntariness and lack of coercion, under the totality of the circumstances, of
respondent’s then providing the blood sample.
       On this appeal, the People offered, to further support the conclusion that respondent’s
consent was voluntary, additional information to show that respondent would have been made
aware of the terms of California’s implied consent law when he applied for his driver’s license.
We discuss that request for judicial notice below.




                                                 21
                                 The Request for Judicial Notice
       In its initial brief on this appeal, the People noted that “in California, a motorist is also
made aware of California’s implied consent law and the terms thereof (i.e. their advance
consent to provide a chemical sample), the moment the person applies for and receives a
California driver’s license.” (Appellant’s Opening Brief filed September 26, 2014, at p. 7,
fn. 5.) Based on that statement, this court issued an order requesting further briefing, asking the
People to address whether there are any forms or other documents that persons submit or
receive when applying for, receiving, or renewing a California driver’s license that contain any
information, agreements, representations, or certifications concerning California’s implied
consent law or the terms of that law, including the advance consent to provide a chemical
sample. The People were also asked to address whether those or other materials, including any
driver’s handbook, describe the consequences of refusing a chemical test. The court further
asked the People to address whether, if the People were offering any such documents, this court
could take judicial notice of the documents under California Evidence Code section 452(h),
section 459, or any other basis. In that order, the court allowed respondent, if the People did
offer any such documents, to present any information relevant to (1) the propriety of this court’s
taking judicial notice of any such matter, and (2) the tenor of the matter to be noticed.
       Further, in that order requesting further briefing, the court noted that the clerk’s
transcript on appeal appeared to contain information concerning respondent’s California
driver’s license, including the issue date. This court asked whether it could consider this
information or any other information concerning respondent’s driver’s license status as part of
the record and, if so, whether any materials offered by the People would cover the date of
respondent’s license.
       In its Second Supplemental Brief filed July 6, 2015 in response to that order, the People
submitted a 2015 California Driver Handbook. Under the “Application Requirements for a
Basic Class C Driver License,” the Handbook states that a person must submit a signed
application (DL 44) form, and that “[s]igning this form means you agree to submit to a chemical
test to determine the alcohol or drug content of your blood when requested by a peace officer.”




                                                 22
Under a section entitled “Admin Per Se,” the Handbook again states: “When you drive in
California, you consent to have your breath, blood or, under certain circumstances, urine tested
if you are arrested for driving under the influence of alcohol, drugs, or a combination of both.”
The section then discusses certain consequences if a person is arrested, including that the
“arresting officer may require you to submit to either a breath or blood test,” and that a person
does not have the right to consult with a lawyer before selecting or completing a test. That
section also states: “If you refuse to submit to the required blood and/or urine test(s), your
driving privilege may be suspended because of your refusal.”
       In a footnote, the People stated that respondent received his California driver’s license in
November 2009, and that the 2009 version of the California Driver Handbook contained
“similar provisions regarding implied consent.” The People stated that a “true and correct
copy” of the 2009 Handbook could be viewed at a cited website, but that cite appears to allow
viewing of past documents that can be printed only by subscription.
       The People also submitted a copy of a Driver License or Identification Card Application
(DL 44). A person must sign the form below the statement: “I certify that I have read,
understand and agree with the contents of this form. I acknowledge that I have received a copy
of the declarations and certification statements pertaining to the issuance of a driver license or
identification card.” Below the signature line, the application states: “IT IS IMPORTANT
THAT YOU READ AND UNDERSTAND THE FOLLOWING INFORMATION AND
CERTIFICATIONS.” In a separate section on another page titled “CERTIFICATIONS,” the
first line states: “I agree to submit to a chemical test of my blood, breath, or urine for the
purpose of determining the alcohol or drug content of my blood when testing is requested by a
peace officer acting in accordance with California Vehicle Code §23612.” The People also
submitted a driver license renewal form with the same certification.
       In its Second Supplemental Brief, the People cited cases to support this court’s taking
judicial notice of the above materials under Evidence Code sections 452 and 459. Finally, the
People also cited cases to support this court’s taking judicial notice of the information in the
appellate record concerning respondent’s driver’s license, including the issuance date.




                                                 23
         In response, respondent filed a Second Supplemental Brief on July 27, 2015. That brief
states: “Respondent does not dispute that under certain circumstances, not presented here, that
it may be proper for an appellate or trial court to take judicial notice of the items that appellant
urges this Court to notice in this case.” Respondent argues, however, that it would be improper
for this court to take judicial notice because, as a general rule, an appellate court should not take
judicial notice of matters that were not presented to the trial court. Respondent cites, among
other cases, People v. Amador (2000) 24 Cal.4th 387, 394 (“The facts relevant to a suppression
motion should be litigated and decided at trial, not on appeal.”). Respondent also concedes that
the information concerning respondent’s California driver’s license is contained in the appellate
record, but again argues that it would be improper for this court to take judicial notice of that
information because it was not marked as an exhibit at the suppression hearing before the trial
court.
         We do not decide whether it would be appropriate for this court to take judicial notice of
the materials offered by the People under Evidence Code sections 452(h) and 459, and under the
cases applying those sections. Rather, we decline to take judicial notice of the materials based
on the apparent missing information about their effective dates. As mentioned above, the
information in the appellate record suggests that respondent received his California driver’s
license in November 2009. The People submitted a 2015 handbook, and suggested in a footnote
that the 2009 handbook contains similar provisions regarding implied consent, but did not
submit that version, instead referring the court to view the materials on a website. The driver’s
license application form (DL 44) that the People submitted, moreover, bears a footer that
appears to indicate that it is a version that was revised in 2014. The People did not submit
information showing that the form in effect when respondent applied for his license contained
the same certification.




                                                 24
                                          CONCLUSION
        The trial court did not consider all the facts discussed above, in the context of the
implied consent law and under the totality of the circumstances, to decide whether respondent
voluntarily consented to the blood draw and did not withdraw his advance consent. We will
remand the case for the trial court, as the initial finder of fact, to weigh all the facts under the
appropriate test we have discussed. The trial court may consider, on remand, the
appropriateness of any party’s request to reopen the suppression hearing or to take judicial
notice of any information.
        For the reasons discussed above, the granting of the motion to suppress the results of the
blood test is reversed, and the case is remanded for further proceedings consistent with this
opinion.




                                                ___________________________________
                                                      Chiarello, Acting P. J.

WE CONCUR:

____________________________
Bonini, J.


____________________________
Arand, J.




                                                  25
Trial Court: Santa Clara County Superior Court

Trial Judge: Hon. Helen E. Williams


Counsel:


Jeffrey F. Rosen, District Attorney, Jen Jiang, Deputy District Attorney, for Plaintiff and
Appellant.



Law Offices of Eloy I. Trujillo, Eloy I. Trujillo, for Defendant and Respondent.




                                                26
