1

Filed 11/26/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

BOBBY LYNN JONES,

Defendant and Appellant.

 A140054

 (Solano County

 Super. Ct. No. FCR296214)

Appellant Bobby Lynn Jones was arrested for driving a vehicle under the 

influence of alcohol and causing injury. Following his arrest, a sample of his blood was 

taken over his objection and without warrant. His motion to suppress the results of the 

chemical analysis of his blood sample was denied. Jones contends that the decision of 

the United States Supreme Court in Missouri v. McNeely (2013) ___ U.S. ___ [133 S.Ct. 

1552] (McNeely), rendered subsequent to his arrest, mandates suppression of the 

evidence. We disagree and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 21, 2012, shortly before midnight, Fairfield police were called to 

the scene of a rear-end, two-car collision on Airbase Parkway. The collision had forced 

the first vehicle off the road and down an embankment, and the driver had sustained softtissue injuries for which she sought medical treatment. The other car, a newer model 

Toyota with major front-end damage, was on the street unattended, with the air bags 

deployed. The driver of the Toyota had reportedly fled on foot, possibly headed

westbound on the north side of Air Base Parkway.
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At about 12:06 a.m., Jones was observed walking westbound on the north side of 

Air Base Parkway about 400 yards from the scene of the collision, in an area with no 

sidewalks and where pedestrian traffic is prohibited by local ordinance (Fairfield Ord. 

No. 11.6.2). When detained by police, Jones was observed to be disheveled, and he had 

leaves on his person as if he had come out of the nearby bushes. He appeared to be

intoxicated with an alcoholic odor, watery bloodshot eyes, and unsteady gait. Jones 

denied having been involved in an accident and said that he was walking from Vacaville, 

a distance of about three miles. Jones admitted that he was on probation, and a records 

check confirmed that he was on active probation supervision, with terms including a 

search and seizure condition. A search of Jones’s person revealed what appeared to be 

powder residue from a deployed vehicle airbag on the front of his clothing and a Toyota 

key in his pants pocket. Officers determined that the key operated the door locks of the 

Toyota at the crash scene. After a Miranda admonishment,

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Jones admitted that he had 

been the sole occupant of the Toyota and that a Bluetooth headset found on the floor of 

the Toyota was his. Jones was arrested.

When advised of the requirement that he submit to a chemical test to determine his 

blood alcohol content, Jones said that he would not take a blood test. Jones was 

transported to the Fairfield Police Department for a breath test, but then refused to 

provide a breath sample. Jones was then taken to the North Bay Medical Center where a 

blood sample was drawn by a phlebotomist at about 1:10 a.m. Subsequent analysis 

determined that Jones had a blood alcohol content of 0.25 percent.

Jones was charged by amended information with driving under the influence 

causing bodily injury (Veh. Code, § 23153, subd. (a); count 1), driving with a blood 

alcohol level of 0.08 percent causing bodily injury (Id., § 23153, subd. (b); count 2), 

leaving the scene of an accident involving an injury (Id., § 20001, subd. (a); count 3), and 

resisting a peace officer (Pen. Code, § 148, subd. (a)(1); count 4).2 Counts 1 and 2 

 

1 Miranda v. Arizona (1966) 384 U.S. 436.

2 All further undesignated statutory references are to the Penal Code.
3

alleged a 2006 prior conviction for driving under the influence (Veh. Code, § 23566, 

subd. (a)). Counts 1 through 3 further alleged that Jones had separately served five prior 

prison terms (§ 667.5, subd. (b)). The information also alleged Jones was ineligible for a

county jail sentence pursuant to sections 1170, subdivisions (f) and (h)(3); and 1385.

Jones’s motion to suppress the evidence resulting from the blood draw was denied 

at his preliminary hearing. Following the preliminary hearing, Jones renewed his 

suppression motion, arguing that the intervening decision of the United States Supreme 

Court in McNeely, supra, 133 S.Ct. 1552, required a warrant or exigent circumstances for 

the blood draw. The court conducted a further evidentiary hearing (§ 1538.5, 

subd. (c)(1)), and denied the motion.

After denial of the suppression motion, Jones entered a plea of no contest to 

counts 1 and 3 and admitted having served three prior prison terms under section 667.5, 

subdivision (b), in exchange for an agreed five-year prison sentence. Jones filed a timely

notice of appeal, challenging only the denial of his motion to suppress.

II. DISCUSSION

“The standard of appellate review of a trial court’s ruling on a motion to suppress 

is well established. We defer to the trial court’s factual findings, express or implied, 

where supported by substantial evidence. In determining whether, on the facts so found, 

the search or seizure was reasonable under the Fourth Amendment, we exercise our 

independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)

A. Application of McNeely

In McNeely, the Supreme Court “granted certiorari to resolve a split of authority 

on the question whether the natural dissipation of alcohol in the bloodstream establishes a 

per se exigency that suffices on its own to justify an exception to the warrant requirement 

for nonconsensual blood testing in drunk-driving investigations.” (McNeely, supra, 

133 S.Ct. at p. 1558.) McNeely was arrested for driving while intoxicated following a 

traffic stop and an officer’s observations of McNeely’s bloodshot eyes, slurred speech, 

and the smell of alcohol on McNeely’s breath. McNeely performed poorly on fieldsobriety tests and refused to use a portable breath-test device. (Id. at pp. 1556–1557.) 
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Similar to the circumstances here, McNeely refused to provide a breath sample and the

arresting officer took him to a nearby hospital for blood testing. At the hospital, 

McNeely refused to consent to a blood test and the officer then had a hospital lab

technician take a blood sample over McNeely’s objection. McNeely’s blood-alcohol 

content was above the Missouri legal limit. (Id. at p. 1557.) In a decision rendered on 

April 17, 2013 (id. at p 1552), seven months after Jones’s arrest, the Supreme Court held 

that the natural dissipation of alcohol in the bloodstream does not constitute an exigency 

in every drunk-driving case, and that “the nonconsensual warrantless blood draw violated

McNeely’s Fourth Amendment right to be free from unreasonable searches of his 

person.” (Id. at pp. 1557–1558.) “In those drunk-driving investigations where police 

officers can reasonably obtain a warrant before a blood sample can be drawn without 

significantly undermining the efficacy of the search, the Fourth Amendment mandates 

that they do so.” (Id. at p. 1561.)

In the case before us, the People presented no evidence of any case specific 

exigent circumstances in the hearings below, and the trial court made no finding of 

exigent circumstances. The threshold question then is whether McNeely applies 

retroactively to the search in this case. We hold that it does not.

Prior to McNeely, the rule applicable to nonconsensual warrantless blood draws

incident to a lawful arrest for driving under the influence was articulated in Schmerber v. 

California (1966) 384 U.S. 757 (Schmerber). Schmerber was arrested at a hospital while 

receiving treatment for injuries suffered in an accident involving the automobile that he 

had been driving. (Id. at p 758.) He exhibited objective symptoms of intoxication both at 

the scene of the accident and at the hospital. (Id. at pp. 768–769.) In finding a compelled 

sampling of Schmerber’s blood to be a reasonable search and seizure, the court focused 

on the evanescent nature of alcohol in the body as it is metabolized and the consequent 

risk of “ ‘destruction of evidence.’ ” (Id. at pp. 770–771.) The court also found that the 

test was performed in a reasonable manner by medical personnel. (Id. at p. 771.)

“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 
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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. (See, 

e.g., Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 759–760; People v. 

Superior Court (Hawkins) (1972) 6 Cal.3d 757, 761; People v. Fiscalini (1991) 

228 Cal.App.3d 1639, 1642; People v. Ryan (1981) 116 Cal.App.3d 168, 182; People v. 

Brannon (1973) 32 Cal.App.3d 971, 974–975.)” (People v. Ford (1992) 4 Cal.App.4th 

32, 35–36, parallel citations omitted; see also Troppman v. Valverde (2007) 40 Cal.4th 

1121, 1136.)

In holding that the natural dissipation of alcohol in the bloodstream, while a factor,

does not constitute an exigency in every case sufficient to justify conducting a 

warrantless blood test (McNeely, supra, 133 S.Ct. at p. 1568), the high court noted “the 

more expeditious processing of warrant applications” (including widespread use of 

telephonic search warrants since Schmerber was decided in 1966), “particularly in 

contexts like drunk-driving investigations where the evidence offered to establish 

probable cause is simple.” (Id. at pp. 1561–1562, & fn. 4; see id. at pp. 1572–1573 

(conc. & dis. opn. of Roberts, C. J.).) McNeely requires that the reasonableness of a 

warrantless blood draw from a suspected drunk driver now be determined on a case by 

case basis, on its own facts and circumstances. (Id. at p. 1559.)

The trial court found that McNeely would have retroactive application to all cases 

not then final on appeal. (See Griffith v. Kentucky (1987) 479 U.S. 314, 328 (Griffith) [a 

new rule for the conduct of criminal prosecutions is to be applied retroactively to all 

cases, state or federal, pending on direct review or not yet final, with no exception for 

cases in which the new rule constitutes a “clear break” with the past].) Griffith, however, 

did not involve application of the judicially evolved exclusionary rule, but rather the 

Batson3requirements for review, at trial, of claims of invidious discrimination in jury 

selection. (Griffith, at p. 316.) The exclusionary rule is “a ‘prudential’ doctrine

[citation], created by [the Supreme] Court to ‘compel respect for the constitutional 

 

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Batson v. Kentucky (1986) 476 U.S. 79.
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guaranty.’ [Citations.] Exclusion is ‘not a personal constitutional right,’ nor is it 

designed to ‘redress the injury’ occasioned by an unconstitutional search.” (Davis v. U.S.

(2011) 564 U.S.___ [131 S.Ct. 2419, 2426] (Davis).) “For exclusion to be appropriate, 

the deterrence benefits of suppression must outweigh its heavy costs.” (Id. at p. 2427.) 

Davis recognized a “good-faith” exception to the exclusionary rule and held that where a 

search is conducted by police officers in objectively reasonable reliance on binding 

judicial precedent, the conduct of the officers is not wrongful, and that “[e]vidence 

obtained during a search conducted in reasonable reliance on binding precedent is not 

subject to the exclusionary rule.” (Id. at pp. 2428–2429.)

Prior to McNeely, all binding judicial precedent in this state, both at the Supreme 

Court and intermediate appellate levels, consistently interpreted Schmerber to permit 

warrantless blood draws incident to a valid arrest and done in a medically approved 

manner. (See People v Harris (2014) 225 Cal.App.4th Supp. 1, 5 and cases cited therein

[“California cases uniformly interpreted Schmerber to mean that no exigency beyond the 

natural evanescence of intoxicants in the bloodstream, present in every DUI case, was 

needed to establish an exception to the warrant requirement”].) “[W]hen binding 

appellate precedent specifically authorizes a particular police practice, well-trained 

officers will and should use that tool to fulfill their crime-detection and public-safety 

responsibilities.” (Davis, supra, 131 S.Ct. at p. 2429.)4 McNeely affords no basis for 

exclusion of the evidence here, and the motion to suppress was properly denied.5

 

4

Jones suggests that the “good-faith” rule of Davis is inapplicable because the 

arresting officer relied only on the policy of his police department, testifying that he was 

aware of Jones’s postrelease community supervision status, and that “our policy within 

the Fairfield Police Department policy [sic], it allowed us to do forced blood draws.” 

Jones cites no authority for the proposition that an individual police officer must be able 

to cite or interpret applicable precedent in order to act in good faith. Law enforcement 

policies and procedures develop in response to judicial directives, and it is an underlying 

premise of the prophylactic exclusionary rule that they do so.

5 Our colleagues in Division Eight of the Second District and Division Four of this 

District, have recently reached the same conclusion. (People v. Youn (2014) 
7

B. The Postrelease Community Supervision Search Condition

The trial court denied the motion to suppress on the basis that Jones was subject to 

search and seizure without consent at the time of his arrest as a condition of postrelease

community supervision (PRCS).

6

 Both the People and Jones agree that no California 

appellate court has yet considered, in any published decision, whether a warrantless blood 

draw falls within the scope of a search-and-seizure condition of parole, probation, or 

PRCS. We find that it does, and agree that the PCRS terms Jones was subject to provide 

an independent basis for denial of the motion to suppress.

The evidence presented to the preliminary hearing magistrate and to the trial court 

showed that Jones acknowledged to investigating officers that he was on active 

“probation” at the time of his initial detention. A contemporaneous records check

showed that Jones was on PRCS supervision. The records check also confirmed that 

Jones was subject to a search condition. The arresting officer understood from the record 

confirmation that Jones was on PCRS supervision and testified, “. . . I believe everybody

on PRCS usually has a search term. I haven’t come across anyone in my experience 

beyond [sic] PRCS that does not have searchable probation. It’s like parolees, you’re 

always able to search them.” The trial court took judicial notice of its own records in 

case No. FCR 296398, which established Jones’s PRCS status at the time of his arrest.7

PCRS supervision was established as an element of the Criminal Justice 

Realignment Act of 2011 (enacted by Stats. 2011, ch. 15, §§ 1, 450; amended by 

Stats. 2011, ch. 361, § 6.7; Stats. 2012, ch. 43, § 27). The Criminal Justice Realignment 

Act made significant changes to the sentencing and supervision of persons convicted of 

felony offenses and shifted responsibility for the custodial housing and postrelease 

 

229 Cal.App.4th 571; People v. Rossetti (Oct. 22, 2014, A139041) ___ Cal.App.4th ___ 

[2014 WL 5361334].)

6

See the Postrelease Community Supervision Act of 2011. (§ 3450 et seq.)

7

The materials are not in the record provided to us, and we have no details as to 

the underlying offense(s) or the terms of the sentence imposed, but Jones makes no 

challenge to the court’s factual finding.
8

supervision of certain felons from the state to the local jails and probation departments. 

(People v. Cruz (2012) 207 Cal.App.4th 664, 668; id. at p. 671.) Under section 3451, 

low-level offenders serving a prison term who are released from prison, “shall, upon 

release from prison and for a period not exceeding three years immediately following 

release, be subject to community supervision provided by a county agency designated by 

each county's board of supervisors which is consistent with evidence-based practices, 

including, but not limited to, supervision policies, procedures, programs, and practices 

demonstrated by scientific research to reduce recidivism among individuals under 

postrelease supervision.” The conditions of supervision are detailed in section 3453, and 

are imposed without the need for the defendant’s agreement. Section 3453, subdivision 

(f) imposes a mandatory condition, as a term of PRCS release, that “[t]he person, and his 

or her residence and possessions, shall be subject to search at any time of the day or 

night, with or without a warrant, by an agent of the supervising county agency or by a 

peace officer.”

Although monitored by county probation officers, a defendant on PRCS is not on 

probation and PCRS is similar to parole. (People v. Fandinola (2013) 221 Cal.App.4th 

1415, 1422–1423 [considering postrelease “mandatory supervision” of felon sentenced to 

serve term in county jail under analogous provisions of § 1170, subd. (h): “a county jail 

commitment followed by mandatory supervision imposed under [this provision] is akin to 

a state prison commitment [and] not a grant of probation or a conditional sentence”]; see

People v. Martinez (2014) 226 Cal.App.4th 759, 762–763.)8PRCS does not change any 

 

8

Jones argues that People v Espinoza (2014) 226 Cal.App.4th 635 (Espinoza) 

reached a contrary conclusion, holding that a “ ‘term of imprisonment and parole’ does 

not include PRCS.” (Id. at p. 638.) Espinoza, however, merely noted the differences 

between PRCS and parole in explaining why the defendant was not entitled to certain 

custody credits—unlike parole, a felon participating in PRCS cannot be returned to 

prison for violation of his or her postrelease supervision agreement (§ 3458) and the

Department of Corrections and Rehabilitation does not have jurisdiction over persons 

subject to PRCS (§ 3457). (See People v. Tubbs (2014) 234 Cal.App.4th 578.) While 

not a perfect analog, we agree with People v. Martinez, supra, 226 Cal.App.4th at pages 

762–763, that PRCS supervision conditions are best analyzed in the context of parole 
9

terms of a defendant’s sentence, but merely modifies the agency that will supervise the

defendant after release from prison.

“[N]either probationers nor parolees enjoy ‘ “the absolute liberty to which every 

citizen is entitled, but only . . . conditional liberty properly dependent on observance of 

special [probation] restrictions.” ’ ” (People v. Reyes, supra, 19 Cal.4th at p. 747

(Reyes).) Our Supreme Court has held that a search pursuant to a parole condition, even 

in the absence of a reasonable suspicion of criminal activity “does not ‘intrude on a 

reasonable expectation of privacy, that is, an expectation that society is willing to 

recognize as legitimate.’ ” (Id. at pp. 751; see also Samson v. California (2006) 547 U.S. 

843, 852.) “When involuntary search conditions are properly imposed, reasonable 

suspicion is no longer a prerequisite to conducting a search of the subject’s person or 

property. Such a search is reasonable within the meaning of the Fourth Amendment as 

long as it is not arbitrary, capricious or harassing.” (Reyes, at p. 752; See also People v. 

Schmitz (2012) 55 Cal.4th 909, 916; People v. Smith (2009) 172 Cal.App.4th 1354, 

1360.) Far from being arbitrary, or even absent reasonable suspicion, the search here was 

conducted on unquestioned probable cause to believe that Jones had been involved in an

accident causing injury while intoxicated.

Jones does not contend that the blood draw here was arbitrary, capricious or

harassing, and he acknowledges that “the warrantless blood draw conducted in this case 

does not fall within any of the limitations set forth by the California Supreme Court in 

Reyes and other decisions concerning searches pursuant to conditions of parole and 

probation.” Nevertheless, he argues that, given the nature of the bodily intrusion, a blood

draw “would fall outside the parameters of what we ordinarily think the search and 

seizure clause to entail” and that a nonconsensual blood draw is therefore outside the 

 

conditions, since they are imposed involuntarily. An adult probationer consents to a 

waiver of his Fourth Amendment rights in exchange for the opportunity to avoid serving 

a state prison sentence. (Reyes (1998) 19 Cal.4th 743, 749; People v. Robles (2000) 23 

Cal.4th 789, 795.) PRCS conditions, like parole conditions, are not a matter of choice, and 

there is no voluntary consent to the conditions.
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scope of warrantless searches and seizures permitted to be undertaken against a person on 

PRCS. He presents no authority for this proposition and fails to persuade us that this is 

so. He attempts to distinguish clear case authority providing for involuntary collection of 

bodily fluid samples. Jones suggests that although collection of biological samples for 

identification purposes may be reasonable under the Fourth Amendment, doing so to 

collect evidence of a crime mandates review by a neutral magistrate. We find no basis 

for the distinctions he attempts to draw.

While the compulsory, nonconsensual gathering of biological samples constitutes 

a search and seizure subject to Fourth Amendment protection, the authorities are 

consistent in holding that the extraction of biological samples from an adult felon is not 

an unreasonable search and seizure within the meaning of the Fourth Amendment. (In re 

Calvin S. (2007) 150 Cal.App.4th 443, 446–448 [nonconsensual extraction of the 

biological samples necessary for DNA testing under § 2969is a minimal intrusion into the 

privacy of the offender], citing People v. Travis (2006) 139 Cal.App.4th 1271, 1281–

1290, People v. Johnson (2006) 139 Cal.App.4th 1135, 1168, Alfaro v. Terhune (2002) 

98 Cal.App.4th 492, 505–506, People v. King (2000) 82 Cal.App.4th 1363, 1371–1378;

see also Maryland v King (2013) ___U.S. ___ [133 S.Ct 1958] [no Fourth Amendment 

violation when officers take and analyze a buccal swab of a person arrested and detained, 

on probable cause, for a serious offense].)

Jones argues that a buccal swab may be a minimal bodily intrusion, but that a 

blood draw is not, and that the Supreme Court in Maryland v. King draws this distinction. 

The Supreme Court did observe that “[a] buccal swab is a far more gentle process than a 

venipuncture to draw blood.” (Maryland v. King, supra, 133 S.Ct. at p. 1969.) Nothing 

in that case, however, suggests that drawing blood in a medically approved manner to 

 

9

Section 296 provides that persons arrested for, or charged with, certain felony 

offenses must provide “buccal swab samples, right thumbprints, and a full palm print 

impression of each hand, and any blood specimens or other biological samples required 

pursuant to this chapter for law enforcement identification analysis.” (§ 296, subd. (a), 

italics added.)
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obtain evidence of a crime is an inherently unreasonable intrusion, and Schmerber and 

McNeely clearly hold otherwise. As the Supreme Court noted long ago in Schmerber, 

“[s]uch tests are a commonplace in these days of periodic physical examinations and 

experience with them teaches that the quantity of blood extracted is minimal, and that for 

most people the procedure involves virtually no risk, trauma, or pain.” (Schmerber, 

supra, 384 U.S. at p. 771.) The drawing of blood is sufficiently routine that it is one of 

the procedures to which every California driver implicitly consents as a condition of 

operating a motor vehicle in this state.10

In Maryland v. King, the Court also observed that “ ‘[T]he Fourth Amendment’s 

proper function is to constrain, not against all intrusions as such, but against intrusions 

which are not justified in the circumstances, or which are made in an improper manner.’ ” 

(Maryland v. King, supra, 133 S.Ct. at p. 1969, citing Schmerber, supra, 384 U.S. at 

p. 768.) “As the text of the Fourth Amendment indicates, the ultimate measure of the 

constitutionality of a governmental search is ‘reasonableness’ ” and the reasonableness of 

any bodily intrusions must be considered in the context of an individual’s legitimate 

privacy expectations. (Maryland v. King, at p. 1969.) By virtue of his PRCS supervision 

conditions, Jones did not have an “expectation of privacy ‘society is “prepared to 

recognize as legitimate.” ’ ” (Reyes, supra, 19 Cal.4th at p. 754.)

The purpose of a search condition is to deter the commission of crimes and to 

protect the public. (Reyes, supra, 19 Cal.4th at p. 753.) That purpose was served here. 

Jones’s mandatory PRCS search and seizure condition authorized the blood draw without 

the necessity of a warrant and offends no interest the Fourth Amendment is intended to 

protect.

 

10 The Vehicle Code provides that “[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 [a driving-under-the influence offense].” (Veh. Code, § 23612, 

subd. (a)(1)(A).) Consent under California’s implied consent law is a factor weighing in 

favor of the reasonableness of the search. (People v. Cuevas (2013) 218 Cal.App.4th 

1278, 1286.)
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III. DISPOSITION

The judgment is affirmed.

_________________________

BRUINIERS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.
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Superior Court of Solano County, No. FCR296214, Hon. Peter B. Foor, Judge.

Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Seth K. Schalit and Laurence K. Sullivan, Deputy Attorneys General, for 

Plaintiff and Respondent.