Filed 6/1/18 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ALEXANDER JEFFREY 

VANNESSE,

 Defendant and Appellant.

2d Crim. No. B283857

(Super. Ct. No. 2015000120)

(Ventura County)

ORDER MODIFYING OPINION 

[No Change in Judgment]

THE COURT:

It is ordered that the opinion filed herein on May 16, 2018, 

be modified as follows:

1. On page 8, line 4, following immediately after “(People v. 

Pickard (2017) 15 Cal.App.5th Supp. 12, 15.) ” insert:

If the officer had given the statutorily-required advisement and 

appellant had chosen a breath test, the officer could and would 

have required him to submit to a blood test pursuant to section 

23612, subdivision (a)(2)(C), which provides: “A person who 

chooses to submit to a breath test may also be requested to 

submit to a blood test if the officer has reasonable cause to 
2

believe that the person was driving under the influence of a drug 

or the combined influence of an alcoholic beverage and a drug 

and if the officer has a clear indication that a blood test will 

reveal evidence of the person being under the influence. . . . The 

officer shall advise the person that he or she is required to submit 

to an additional test. The person shall submit to and complete a 

blood test.” 

2. Starting on page 8, delete the last paragraph beginning 

with “Even if the Fourth Amendment” and ends on page 9 with 

“(In re Rudy F. (2004) 117 Cal.App.4th 1124, 1136.)”

3. On page 9, delete the first full paragraph beginning with 

“If the officer had complied with the letter.”

There is no change in judgment.
Filed 5/16/18 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ALEXANDER JEFFREY 

VANNESSE,

 Defendant and Appellant.

2d Crim. No. B283857

(Super. Ct. No. 2015000120)

(Ventura County)

The Vehicle Code provides that, if a person is lawfully 

arrested for driving under the influence of a drug or a 

combination of a drug and alcohol, he shall be advised that he 

has the choice of submitting to either a blood or breath test. 

(Veh. Code, § 23612, subd. (a)(2)(b).)1 Notwithstanding this 

statutory directive, we hold that if a peace officer advises the 

arrestee that his only choice is to submit to a blood test, the test 

results are admissible in a criminal proceeding provided that the 

arrestee freely and voluntarily consents to a blood test. The 

failure to advise the arrestee of his statutory right to choose 

 

1 Unless otherwise stated, all statutory references are to 

the Vehicle Code.
2

between a breath and blood test does not run afoul of any 

constitutional restraint.

In a misdemeanor complaint, Alexander Vannesse was 

charged with driving under the influence of a drug. (§ 23152, 

subd. (e).) He appeals an order denying his Penal Code section 

1538.5 (hereafter section 1538.5) motion to suppress the results 

of a chemical test of his blood contending that his consent to the 

blood draw violates statutory and constitutional law. 

In an opinion certified for publication, the Appellate 

Division of the Ventura County Superior Court affirmed the order 

denying the motion to suppress. On our own motion, we 

transferred the matter to this court. We affirm.

Section 1538.5 Hearing 

Appellant was the driver of a vehicle involved in a collision. 

Responding to the report of an accident, Officer Quinn Redeker, 

the first police officer to arrive at the scene, concluded that 

appellant “was possibly under the influence of drugs or alcohol.” 

He “requested additional officers to respond for a DUI 

investigation.” 

Officer Matthew Baumann (hereafter the officer), a 

“certified drug recognition expert,” responded to the scene of the 

collision. After his preliminary investigation, he arrested 

appellant “for driving under the influence.” The officer then 

conducted a “drug recognition evaluation.”2 He formed the 

opinion that appellant was under the influence of a “central 

nervous system depressant.” Both alcohol and some drugs are

 

2 The only reasonable inference is that the officer did so 

because he suspected that appellant had been driving under the 

influence of a drug or the combined influence of a drug and 

alcohol.
3

central nervous system depressants. (See People v. Huynh (2012) 

212 Cal.App.4th 285, 292, fn. 2.) The record does not show 

whether the officer or Officer Redeker smelled the “tell-tale” odor 

of an alcoholic beverage on appellant’s breath. Neither officer 

was asked whether appellant’s breath had this odor.

The officer read to appellant “verbatim” an advisement 

from a Ventura police department form: “Drugs slash -- drugs 

and alcohol: You are required to submit to a chemical test. 

Implied consent of your blood: A sample of your blood will be 

taken by nursing staff at the hospital. If you fail to adequately 

provide a sample, it will result in the suspension of your driving 

privilege for a period of one year.” The officer did not advise 

appellant that he could choose whether the chemical test would 

be of his blood or breath. The officer also did not advise appellant 

that he could refuse to provide any sample.

Appellant verbally agreed to provide a blood sample and 

signed a consent form that gave him the option of refusing 

consent. He was transported to a hospital where a blood draw 

was performed. After the blood draw, he lost consciousness. The 

officer did not know the cause of the loss of consciousness. 

At the section 1538.5 hearing, defense counsel said that 

appellant was not challenging “the probable cause for the arrest.” 

Counsel asserted, “The focus of the motion is really a McNeely 

issue.” In Missouri v. McNeely (2013) 569 U.S. 141, the Supreme 

Court applied the Fourth Amendment’s warrant requirement to 

nonconsensual blood testing in driving under the influence of 

alcohol cases. The Court “h[e]ld that in drunk-driving 

investigations, the natural dissipation of alcohol in the 

bloodstream does not constitute an exigency in every case 

sufficient to justify conducting a blood test without a warrant.” 
4

(Id. at p. 165.) “Whether a warrantless blood test of a drunkdriving suspect is reasonable must be determined case by case 

based on the totality of the circumstances.” (Id. at p. 156.) 

The People argued that McNeely was inapplicable because 

“unlike the defendant in McNeely who was subjected to a 

nonconsensual blood draw, [appellant] freely and voluntarily gave 

his consent to have his blood drawn.” (See People v. Harris

(2015) 234 Cal.App.4th 671, 676, 689 (Harris) [McNeely is 

inapposite where a motorist freely and voluntarily consents to a 

warrantless blood test since such consent “is actual consent 

under the Fourth Amendment,” an exception to the warrant 

requirement]; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 

219 [“one of the specifically established exceptions to the 

requirements of both a warrant and probable cause is a search 

that is conducted pursuant to consent”].) 

Defense counsel responded: Appellant did not freely and 

voluntarily consent to the blood draw because the officer “did not 

give him an admonition that’s in accord with California State 

Law . . . . [¶] . . . [A] properly given implied consent admonition 

would give him the option to choose between a breath sample or a 

blood sample, and it would not say that he is required to give a 

blood sample.” But defense counsel acknowledged that a breath 

test would not have shown whether appellant was under the 

influence of a drug. He further argued that appellant’s consent 

was not voluntary because he lost consciousness after signing the 

consent form. 

In denying the suppression motion, the trial court impliedly 

found that appellant had freely and voluntarily consented to the 

blood draw. It expressly found that he had consented pursuant to 

the “implied consent law.” We do not dwell upon the latter 
5

reason for the court’s ruling. “We may sustain the trial 

court’s decision without embracing its reasoning. Thus, we may 

affirm the superior court’s ruling on [appellant’s] motion to 

suppress if the ruling is correct on any theory of the law 

applicable to the case, even if the ruling was made for an 

incorrect reason. [Citation.]” (People v. McDonald (2006) 137 

Cal.App.4th 521, 529; see also People v. Smithey (1999) 20 

Cal.4th 936, 972.) As we explain below, appellant freely and 

voluntarily gave both verbal and written consent to the blood 

draw.

Standard of Review

When a defendant moves to suppress evidence pursuant to 

section 1538.5, the People have “the burden of proving that the 

warrantless search or seizure was reasonable under the 

circumstances. [Citations.]” (People v. Williams (1999) 20 

Cal.4th 119, 130.) On appeal, “[w]e defer to the trial court’s 

factual findings, express or implied, where supported by 

substantial evidence. In determining whether, on the facts so 

found, the search or seizure was reasonable under the Fourth 

Amendment, we exercise our independent judgment. 

[Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)

“In a suppression motion ‘the power to judge the credibility 

of the witnesses, resolve any conflicts in the testimony, weigh the 

evidence and draw factual inferences, is vested in the trial court.’ 

[Citation.] Consequently, if an inference is permissible under the 

evidence and it upholds the trial court’s decision, we must 

presume that the trial court drew it. Thus, we must ‘view the 

facts upon which the suppression motions were submitted in the 

light most favorable to the People, drawing therefrom all 

reasonable inferences in support of the trial court’s order denying 
6

the motions.’ [Citation.]” (People v. Dominguez (1988) 201 

Cal.App.3d 345, 353; see also People v. Woods (1999) 21 Cal.4th 

668, 673.) 

Substantial Evidence Supports the Finding that

Appellant Freely and Voluntarily Consented to the Blood Draw 

“[A] court may exclude . . . evidence [pursuant to section 

1538.5] only if exclusion is . . . mandated by the federal 

exclusionary rule applicable to evidence seized in violation of the 

Fourth Amendment.” (In re Lance W. (1985) 37 Cal.3d 873, 896.) 

There is no Fourth Amendment violation when a motorist freely 

and voluntarily consents to a warrantless chemical test of his 

blood. (Harris, supra, 234 Cal.App.4th at pp. 685, 689.) “That 

the motorist is forced to choose between submitting to the 

chemical test and facing serious consequences for refusing to 

submit, pursuant to the implied consent law, does not in itself 

render the motorist’s submission to be coerced or otherwise 

invalid for purposes of the Fourth Amendment.” (Id. at p. 689.) 

“‘The voluntariness of consent is a question of fact to be 

determined from the totality of circumstances. . . . [Citations.]’ 

[Citation.]” (Id. at p. 690.) The trial court’s determination will be 

upheld if supported by substantial evidence. (People v. James 

(1977) 19 Cal.3d 99, 107.)

Appellant claims that he did not freely and voluntarily 

consent to the blood draw because the officer failed to give a

proper advisement under the implied consent law. Instead of 

advising him that he was required to give a blood sample, 

appellant argues that the officer should have advised that he 

could choose either a blood or breath test.3 Appellant relies on 

 

3 At oral argument before this court, appellant also claimed 

that 1) he should have been expressly advised that he could 
7

section 23612, subdivision (a)(2)(B), which provides, “If the 

person is lawfully arrested for driving under the influence of any 

drug or the combined influence of an alcoholic beverage and any 

drug, the person has the choice of whether the test shall be of his 

or her blood or breath, and the officer shall advise the person that 

he or she has that choice.” (Italics added.)

The officer did not comply with the letter of section 23612, 

subdivision (a)(2)(B) because he did not advise appellant of his 

statutory right to choose either a blood or breath test. But this 

violation did not prejudice appellant and is of no constitutional 

significance. The administration of a breath test would have 

 

refuse to submit to a blood test, and 2) the officer’s failure to so 

advise him renders his consent invalid because it was coerced. 

The implied consent law does not require such an express 

advisement. The law provides, “The [arrestee] shall be told that 

his or her failure to submit to, or the failure to complete, the 

required chemical testing will result” in specified consequences. 

(§ 23612, subd. (a)(1)(D).) “The defendant need not be advised of 

the right to refuse as a prerequisite to a finding of voluntariness. 

But if so advised, this fact supports that a search was in fact 

voluntary as a product of free choice and not coercion. 

[Citation.]” (People v. Mason (2016) 8 Cal.App.5th Supp. 11, 20-

21.) Appellant’s right to refuse to provide a blood sample was 

implied by the officer’s advisement that his license would be 

suspended if he “fail[ed] to adequately provide a sample.” In 

other words, appellant could refuse and suffer the legal 

consequences of a refusal. (See Birchfield v. North Dakota (2016) 

__ U.S. __, 136 S.Ct. 2160, 2169 [“Suspension or revocation of the 

motorist’s driver’s license remains the standard legal 

consequence of refusal”].) Appellant’s right to refuse was also 

implied by the consent form that he signed. The form gave him 

the option of refusing.
8

been inconclusive because it would not have disclosed whether 

appellant was under the influence of drugs or a combination of 

drugs and alcohol. “[A] breath test . . . only tests for alcohol 

content.” (People v. Pickard (2017) 15 Cal.App.5th Supp. 12, 15.)4

The failure to give an advisement in compliance with the 

implied consent law does not mandate the suppression of the test 

result. As previously noted, evidence may be suppressed 

pursuant to section 1538.5 only if the defendant’s Fourth 

Amendment rights were violated and suppression is mandated by 

the federal exclusionary rule. (In re Lance W., supra, 37 Cal.3d 

at p. 896.) “[C]ase law has rejected contentions that a failure to 

advise an arrestee of the tests available or to honor the arrestee’s 

choice of a particular test amounts to a constitutional violation. 

[Citations.]” (Ritschel v. City of Fountain Valley (2006) 137 

Cal.App.4th 107, 119; see also Harris, supra, 234 Cal.App.4th at 

p. 692 [“[F]ailure to strictly follow the implied consent law does 

not violate a defendant’s constitutional rights”]; People v. Ling

(2017) 15 Cal.App.5th Supp. 1, 10 [“although the actions of the 

arresting officer failed to comply with the requirements of the 

implied consent law, no court has held that such a failure rises to 

the level of a constitutional violation, and we do not so hold 

now”].)

Even if the Fourth Amendment had required the officer to 

comply with the letter of the implied consent law, the blood test 

result would have been admissible under the inevitable discovery 

 

4 There is a suggestion in the record that Officer Redeker 

administered a preliminary alcohol screening test (P.A.S.) which 

showed a .00 blood alcohol level. We do not factor this into our 

analysis because this evidence was not admitted at the 1538.5 

hearing. But this suggestion may explain why the officer did not 

comply with the letter of section 23612, subdivision (a)(2)(B).
9

doctrine. Pursuant to this doctrine, “illegally seized evidence 

may be used where it would have been discovered by the police

through lawful means. . . . The purpose of the inevitable

discovery rule is to prevent the setting aside of convictions that 

would have been obtained without police misconduct. [Citation.]” 

(People v. Robles (2000) 23 Cal.4th 789, 800.) “The test is not 

whether ‘the police would have certainly discovered the tainted 

evidence, rather, it is only necessary to show a reasonably strong 

probability that they would have.’ [Citations.]” (In re Rudy F.

(2004) 117 Cal.App.4th 1124, 1136.)

If the officer had complied with the letter of the implied 

consent law by giving the statutory advisement and appellant 

had chosen a breath test, the officer could and would have 

required him to submit to a blood test pursuant to section 23612, 

subdivision (a)(2)(C), which provides: “A person who chooses to 

submit to a breath test may also be requested to submit to a 

blood test if the officer has reasonable cause to believe that the 

person was driving under the influence of a drug or the combined 

influence of an alcoholic beverage and a drug and if the officer 

has a clear indication that a blood test will reveal evidence of the 

person being under the influence. . . . The officer shall advise the 

person that he or she is required to submit to an additional test. 

The person shall submit to and complete a blood test.” Thus, 

appellant’s blood test result would have been admissible because 

“it would have been inevitably discovered independent of the 

[allegedly] improper police conduct. [Citation.]” (In re Rudy F., 

supra, 117 Cal.App.4th at p. 1136.)

Moreover, exclusion of the test result is prohibited by the 

“Truth-in-Evidence” provision of Article I, section 28, subdivision 

(f)(2) of the California Constitution. “By its plain terms, section 
10

28(d) [now section 28(f)(2)] requires the admission in criminal 

cases of all ‘relevant’ proffered evidence unless exclusion is 

allowed or required by an ‘existing statutory rule of evidence 

relating to privilege or hearsay, or Evidence Code, [s]ections 352, 

782 or 1103,’ or by new laws passed by two-thirds of each house of 

the Legislature. (Italics added.)” (People v. Wheeler (1992) 4 

Cal.4th 284, 292.) “‘[S]ection 28(d) supersedes all California [as 

opposed to federal] restrictions on the admission of relevant 

evidence except those preserved or permitted by the express 

words of section 28(d) itself. [Citations.] . . .’ [Citation.]” (People 

v. Alvarez (2002) 27 Cal.4th 1161, 1173, second brackets in 

original.)

We agree with the rule and rationale of Harris, supra, 234 

Cal.App.4th 671. There, a sheriff’s deputy arrested the defendant 

for driving under the influence of drugs and advised him that he 

was required to take a blood test. “Defendant responded, ‘okay,’ 

and [the deputy] testified that at no time did defendant appear 

unwilling to provide a blood sample.” (Id. at p. 678.) On appeal, 

defendant argued that the deputy’s “admonition under the 

implied consent law was false” because he said “that a blood test 

was ‘the only option’ available.” (Id. at p. 691.) Defendant 

contended that a motorist in his situation “must be given the 

choice between a blood or breath test and may only be compelled 

to take a blood test ‘if the officer has a clear indication that a 

blood test will reveal evidence of the person being under the 

influence.’ (Veh.Code, § 23612, subd. (a)(2)(B), (C).)” (Ibid.) The 

Harris court decided that, “[u]nder the totality of the 

circumstances, . . . defendant freely and voluntarily consented to 

his blood being drawn, and . . . was not coerced or tricked into 

submitting to the blood test.” (Id. at p. 692.) This is a fair 
11

characterization of what happened in the instant case. Appellant 

has certainly not shown that there is substantial evidence to the 

contrary.

A New Variation on “Diminished Capacity” 

Appellant claims that he was in a state of “diminished 

capacity” and therefore unable to freely and voluntarily consent 

to the blood draw.5 His “diminished capacity” allegedly occurred 

because he “had just been involved in [a] traffic collision.” 

Appellant observes, “Although the record does not reflect the 

extent of [his] injuries, [the officer] testified that [he] lost 

consciousness” after the blood draw. 

The “diminished capacity” issue is forfeited because 

appellant failed to raise it below. (People v. Williams, supra, 20 

Cal.4th at pp. 130-131.) Even if the issue were preserved for 

appeal, there is no evidence in the record that, before losing 

consciousness, appellant lacked the capacity to give consent. The

loss of consciousness could have been a reaction to the blood draw 

rather than the result of injuries sustained in the collision. 

The evidence is insufficient to show that appellant was 

injured at all. Officer Redeker testified that he had been 

informed over the police radio “that there was a noninjury traffic 

collision.” Appellant alleges that he was “required . . . to be 

transported to the emergency room for treatment [of his 

injuries].” In fact, he was transported to the emergency room to 

 

5 This new variation is not to be confused with the 

“diminished capacity” that was, at one time, a rule that could 

reduce culpability for crime. (See, e.g. People v. Wells (1949) 33 

Cal.2d 330, 346; People v. Gorshen (1959) 51 Cal.2d 716, 726, 

overruled on other grounds in People v. Blakeley (2000) 23 

Cal.4th 82, 89; see also People v. Avena (1996) 13 Cal.4th 394, 

414.)
12

have his blood drawn. There is no evidence that he was treated 

in the emergency room for injuries sustained during the collision.

Conclusion

The record of the section 1538.5 hearing contains ample 

evidence that appellant freely and voluntarily consented to a 

chemical test of his blood. He verbally agreed to a blood draw 

and signed a consent form that gave him the option of refusing 

consent. 

Disposition

The order denying appellant’s motion to suppress is 

affirmed.

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.
Mark S. Borrell, Judge

Superior Court County of Ventura

______________________________

Todd W. Howeth, Public Defender, William M. Quest, 

Snr. Deputy, for Defendant and Appellant.

Gregory D. Totten, District Attorney, Michelle J. 

Contois, Deputy District Attorney for Plaintiff and Respondent.