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 Cou nty 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 moti on 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 arres t, mandates suppression of the evidence. We disagree and affirm

.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND On September 21, 2012, shortly before midnight, Fairfield p olice were called to
the scene of a rear

- end
, two

- car collision on Airbase Parkway. The coll ision had forced
the first vehicle off the road and down an embankment, and the driver had sustained soft

tissue 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

.2

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 a s 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 t hree 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 fr om 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
, 1 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
al cohol 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 s ections 1170, subdivi sions (f) and (h)(3); and 1385.
Jone s ’s motion t o suppress the evidence resulting from the blood draw was denied at his preliminary hearing. Following the preliminary hearing, J ones 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 hear ing ( § 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 a n agreed five

- year prison sentence. Jones filed a timely
notice of appeal , challenging only the denial of his motion to suppress.
II. D ISCUSSION

“ The standard of ap pellate review of a trial court’ s ruling on a motion to suppress
is well established. We de fer to the tria l 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 . M cNeely performed poorly on field

sobriety tests and r efused to use a portable breath

- test device . ( Id. at pp. 1556

– 1557. )4

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 McNee ly’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, t he Supreme Cour t 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 searche s 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 m andates that they do so.” ( Id. at p. 1561.) In the case before us, t he People pr esented 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 th en is whether McNeely applies retroactively to the search in this case. We hold that it does not.
Prior to McNeely , the rule applicable to non consensual warrantless blood draw s incident to a lawful arrest for driving under the influence was articulated i n 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 symp toms 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, t he court focused
on the evanescent nature of alcohol in the bod y as it is metabolized and the consequent
risk of “ ‘ destruction of evidence. ’ ” ( Id . at p p

. 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 frequen tly summarized Schmerber as permitting warrantless compulsory seizure of blood for the purpose of a blood

- alcohol test if the5

procedure (1) is done in a reasonable, medically approved manner, (2) is incident to a lawful arrest, and (3) is based upon reason able 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 (1 981) 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 diss ipation 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 n ot ed “the

more expeditious pro cessing 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

. ” ( I d. at pp. 1561

– 1562, & fn. 4; see id. at pp. 1572

– 1573 (co nc. & 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 bas is, on its own facts and circums tances. ( Id. at p

. 15 59 .)
The trial court found that McNeely would have retroactive applic a tion to all cases not then final on appeal

. (S ee 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 jud icially evolved exclusionary rule, but rather the
Batson 3 requirements 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 Sup reme] Court to ‘ compel respect for the constitutional

3 Batson v. Kentucky (1986) 476 U.S. 79.6

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._

__ [ 13 1 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 c onducted 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 level s , 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 case s uniformly interpreted Schmerber to mean that no exigency beyond the
natural evanescence of intoxican ts in the bloodstream, present in every DUI case, was needed to establish an exception to the w arrant 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 p olicy [ 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 proced ures develop in response to judicial directives, and it is an underlying premise of the prophylactic exclu sionary 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 S upervision 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 hi s arrest as a condition of p ostr elease community s upervision (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 th e 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 o n 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 th e 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 parol ees, you’re always able to search them.” The trial court took judicial notice of it s 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 t he Criminal Jus tice 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 ma de significant changes to the sentencing and supervision of persons convict ed 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 reco rd 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 s ection 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 indi viduals 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, s ubdivision (f) imposes a mandatory condition, as a term of PRCS release, th at “ [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

. ”
A lthough 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 j ail under analogous p rovisions of § 1170 , subd. (h) : “ a county jail commitment followed by mandatory supervision imposed under [this provision] is ak in to a state prison commitment [and] not a grant of prob ation or a conditional sentence”] ; see People v. Martinez (2014) 226 Ca l.App.4th 759, 762

– 763 .) 8 PRCS 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 custod y credits

—u nlike 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 parole9

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 ev ery 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 c ondition, 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 p p. 751 ; see also Samson v. Cal ifornia (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 th e 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 o r harassing
, and h e 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

p robation. ” N evertheless, he argues that, given the n ature 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

conditi ons, 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 Ca l.4th 789, 795 .) PRCS conditions, like parole conditions, are not a matter of choice, and there is no voluntary consent to the conditions.10

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 co llection 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 attempt s to draw.
While t he compulsory, nonconsensual gathering of biological samples constitutes a search and seizure subject to Fourth Amendment protection , th e authorities are consistent in holding that the extrac tion 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, 44 6

– 44 8 [ nonconsensual extraction of the biological samples necessary for DNA testing under § 296 9 is a minimal intrusion into the privacy of the offender ] , citing People v. Travis (2006) 139 Cal.App.4th 1271 , 1281

– 1290, People v. Johnson (2 006) 139 Cal.App.4th 1135, 1168
, Alfaro v. Terhune (20 02) 98 Cal.App.4th 492, 505

– 506, Peopl e v. King (2000) 82 Ca l.App.4th 1363, 1371

– 1378;
see also Maryland v King (2013) ___U.S. ___ [ 133 S.Ct 1958 ] [ n o Fourth Amendment
violation when officers tak e and analyz e a buccal swab of a person arrested and detained, on probable cause, for a serious off ense].) Jones argues that a buccal swab may be a minimal bodily intrusio n, 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 proce ss 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 S ection 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.)11

obtain evidence of a crime is an inherently unreasonable intrusion, and S chmerber 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 examination s 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 conse nts as a condition of operating a motor vehicle in this state. 10

In Maryland v

. King , th e 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 justifi ed 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
constitutionali ty of a governm ental search is ‘reasonableness’ ” and the r easonableness 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
cond itions, Jones did not have an “ expectation of p rivacy ‘ society is “ prepared to recognize as legitimate. ” ’ ” ( Reyes, supra, 19 Cal.4th at p

. 754.)
T he 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 Vehicl e 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 d riving

- 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 .)12 III. D ISPOS ITION The judgment is affirmed.

_________________________ BRUINIERS, J.

WE CONCUR:

_________________________ JONES, P. J.

_________________________ SIMONS, J.13

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. Schal i t and Laurence K. Sul livan
, Deputy Attorney s General, for Plaintiff and Respondent.