Filed 4/11/14

CERTIFIED FOR PARTIAL PUBLICATION*

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF RIVERSIDE APPELLATE DIVISION

THE PEOPLE,

Plaintiff and Respondent, 

v.

ANTHONY A. HARRIS,

Defendant and Appellant.

APP1300100

(Trial Ct. No. RIM1216935)

APPEAL from an order of the Superior Court of Riverside County, Becky Dugan, Judge. 

Affirmed.

Michael J. Kennedy for Defendant and Appellant.

Paul E. Zellerbach, District Attorney, and Matt Reilly, Deputy District Attorney, for

Plaintiff and Respondent.

THE COURT*

Defendant appeals from the denial of his motion to suppress, contending that the blood 

draw with which he cooperated after being arrested for driving under the influence (DUI) of 

drugs was nevertheless constitutionally invalid because police failed to obtain a warrant and

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion ts 

certified for publication with the exception of part II of the Discussion.

* Sharon J. Waters, Presiding Judge, Jeffrey J. Prevost and Raquel A. Marquez, Judges.

I
2

because there was no applicable exception to the warrant requirement. He also argues that there 

was insufficient evidence that the blood draw was performed in a constitutionally reasonable 

manner. In the published portion of this opinion, we find that the blood draw was justified under 

the Fourth Amendment by defendant's consent pursuant to California's implied consent law 

consent he never purported to withdraw by refusing to comply with the blood draw. In the 

unpublished portion of this opinion, we find that there was sufficient evidence to establish that 

the blood draw was performed in a reasonable manner. Accordingly, we affirm the trial court's 

denial of defendant's motion to suppress.

FACTS

On the afternoon of October 16, 2012, motorcycle officer Eric Robinson of the Riverside 

County Sheriff's Department was on duty traveling on I-215 near the 60 freeway interchange, 

when he saw a car unsafely cut across four lanes through traffic without signaling and accelerate 

up to about 90 miles per hour. Officer Robinson followed the car at that speed for a half mile or 

so, and saw it drift to the left over a double yellow line into the center median strip and back, and 

then drift to the right onto the division line with the adjoining lane and back. Officer Robinson 

made several attempts over his loudspeaker to pull the vehicle over, and the driver eventually 

complied. He noticed that the driver, defendant, was sweating and had a rigid, flushed face, 

bloodshot eyes, dilated pupils, and fast, jerky movements. The officer testified that he is a drug 

recognition expert, and that these symptoms are typical of being under the influence of a 

stimulant. Defendant performed five field sobriety tests, after which Officer Robinson 

concluded that defendant was "under the influence of a substance," arrested him, and advised 

him pursuant to the implied consent law that he was required to take a blood test. After the 

advisement defendant responded, "okay."
3

Defendant was transported to the Moreno Valley station where Officer Robinson, who 

had received some training regarding the proper procedures for DUI blood draws, saw blood 

nurse Coughlin, a phlebotomist, draw a sample of defendant's blood. She swabbed the inside of 

defendant's right elbow with an apparent disinfectant, and used a dry, normal hypodermic 

syringe to take a sample of defendant's blood. Defendant never resisted or indicated any sort of 

refusal to cooperate with the blood draw.

Defendant was charged with DUI and with being under the influence of a controlled 

substance. (Veh. Code, § 23152, subd. (a); Health & Saf. Code, § 11550, subd. (a).) 1 Prior to 

trial he brought a motion to suppress, at which Officer Robinson testified to the above facts and 

at which defendant testified on his own behalf. (Pen. Code, § 1538.5.) He said that his blood 

was drawn in a holding cell while he was handcuffed behind his back and to a bar on the seat.

He also claimed that the officer was not, in fact, present during the draw. He admitted to having 

used meth that day, and ecstasy at least two days prior, but he said that the drugs did not affect 

him "[o]ther than making me alert on my drive home," and specifically that they did not impair 

his perception or memory of the events surrounding his arrest. Defendant argued that Officer 

Robinson had no constitutional justification for failing to obtain a warrant for the blood draw, 

and that there was no evidence that accepted medical practices were followed, but the trial court 

found that the blood draw was authorized under the implied consent law and denied the motion 

to suppress. Defendant brings a pretrial appeal from that order. (Pen. Code, § 1538.5, subd. G).) 

DISCUSSION

Defendant's first argument is that the blood draw violated the Fourth Amendment 

because there were no special facts, i.e., exigent circumstances, to justify the warrantless search

 

1

All furtherstatutory references are to the Vehicle Code unless otherwise indicated.
4

as required by Schmerber v. California (1966) 384 U.S. 757, 770-71 (Schmerber), and Missouri 

v. McNeely (2013) 569 U.S._ [133 S.Ct. 1552] (McNeely). He also argues that there was no 

evidence that the search was performed according to accepted medical practices, as required in 

order to be constitutionally reasonable. The People briefly respond that they were required to 

show neither exigent circumstances nor constitutionally reasonable performance because the 

blood was taken with defendant's consent pursuant to the implied consent law. Though it is not 

nearly as simple a question as the People suggest, we find that cooperation with the implied 

consent law does indeed constitute Fourth Amendment consent. On the other hand, we agree 

with defendant that even consensual blood draws must be performed in accordance with 

accepted medical practices. We ultimately find that in this case the evidence below established 

the constitutionality of the blood draw in both aspects.

I. No Special Facts Establishing Exigent Circumstances Were Required Because the Blood 

Draw Was Independently Justifiable as a Consent Search Pursuant to the Implied Consent 

Law

A bit of legal background is necessary here: In 1966, in Schmerber, the United States

Supreme Court upheld a warrantless, forced blood draw done in the course of a DUI 

investigation where the officer was confronted with an emergency making it unfeasible to obtain a

warrant before the defendant's blood alcohol dissipated, and where the blood draw was 

performed according to accepted medical practices. (Schmerber, supra, 384 U.S. at pp. 770-72.) 

Subsequent California cases uniformly interpreted Schmerber to mean that no exigency beyond 

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

needed to establish an exception to the warrant requirement. (See Mercer v. Department of 

Motor Vehicles (1991) 53 Cal.3d 753, 757-60, 762-63, 769 (Mercer); People v. Superior Court
5

(Hawkins) (1972) 6 Cal.3d 757, 761 (Hawkins); People v. Sugarman (2002) 96 Cal.App.4th 210,

214 (Sugarman); People v. Ford(l992) 4 Cal.App.4th 32,35 (Ford); People v. Fiscalini (1991)

228 Cal.App.3d 1639, 1642 (Fiscalini); Scott v. Meese (1985) 174 Cal.App.3d 249, 251-52; 

People v. Ritchie (1982) 130 Cal.App.3d 455,458-59 [specifically with regard to drugs]; People 

v. Ryan (1981) 116 Cal.App.3d 168, 182; People v. Puccinelli (1976) 63 Cal.App.3d 742, 746 

(Puccinelli).) Last year, however, the high court held in McNeely that,

while the natural dissipation of alcohol in the blood may support a finding of 

exigency in a specific case, as it did in Schmerber, it does not do so categorically. 

Whether a warrantless blood test of a drunk-driving suspect is reasonable must be 

determined case by case based on the totality of the circumstances.

(McNeely, supra, 133 S.Ct. at p. 1563.) McNeely thus repudiated the long-standing California 

interpretation of Schmerber.

The blood draw in this case was not supported by exigent circumstances as outlined in 

McNeely, and the People do not so claim 2 Rather, they argue that the blood draw was taken 

with defendant's consent, citing the principle "that 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." (Schneckloth v. Bustamante (1972) 412 U.S. 218, 219.)

No California court has expressly considered the question of whether chemical tests taken 

pursuant to the implied consent law are justifiable under the Fourth Amendment as consent 

searches; before McNeely, none has had to. While in decades past it was declared that "[t]he 

California 'implied consent' statute [citation][footnote] has repeatedly withstood assault on

2

Even though the arrest and blood draw took place before McNeely was decided, defendant is 

entitled to the benefit of that decision because his case is on direct appeal and not yet 

final. (Griffith v. Kentucky (1987) 479 U.S. 314; People v. Song (2004) 124 Cal.App.4th 973,

982.) Furthermore, the People have not argued that the good faith exception to the exclusionary 

rule set forth in Davis v. United States (2011) 564 U.S._ [131 S.Ct. 2419], applies here, and so

we have no occasion to reach that question.
6

constitutional grounds" (Anderson v, Cozens (1976) 60 CaLApp.3d 130, 139), and in particular 

that the statute does not violate one's right "to be free from illegal searches and seizures" (id at 

pp, 140-41; Westmoreland v. Chapman (1968) 268 CaLApp.2d I, 4; Bush v. Bright (1968) 264

CaLApp.2d 788, 790), these cases simply cite Schmerber as authority, and it is easy to see why 

they did. The Legislature first enacted California's original implied consent law shortly after the 

decision in Schmerber, with the goal of limiting the number of '""unpleasant, undignified and 

undesirable""' forced blood draws. (Ritschel v. City of Fountain Valley (2006) 137 Cai.AppAth

107, 117-18 (Ritschel) [quoting Hernandez v. Department of Motor Vehicles (1981) 30 Ca1.3d

70, 77].) And so even though the implied consent law has never been considered a simple 

codification of Schmerber, and compliance with the more strict provisions of the implied consent 

law has never been a necessary prerequisite for constitutionality (id. at pp. 118-20), the two 

strands ran in parallel under the longstanding California interpretation of Schmerber (see Mercer, 

supra, 53 Cal.3d at p. 760 [noting that the implied consent law "is an adjunct to" Schmerber]), 

such that any chemical test taken cooperatively pursuant to the implied consent law would have 

also been constitutionally permissible as a forced test had the person refused to cooperate (see 

Sugarman, supra, 96 CaLAppAth at p. 214 [observing that by statute drivers impliedly consent 

to chemical testing if they are arrested for DUI, and also that under Schmerber drivers arrested 

for DUI may be forced to undergo a blood test]). Implied consent tests were simply a subset of 

all Schmerber tests, in other words. But McNeely forces a reexamination of the constitutional 

basis for the implied consent regime by narrowing the circumstances under which a forced 

chemical test is justified, such that a warrantless test in in the absence of case-specific exigent 

circumstances can comply with the statute if done cooperatively, but now violates the Fourth 

Amendment if done forcibly. For the reasons discussed below, we hold that chemical tests
7

performed in compliance with the implied consent law satisfy the Fourth Amendment as consent 

searches, independently of Schmerber-McNeely.

To divorce the constitutionality of the California implied consent law from the Schmerber

rule is consistent with the pronouncements of the United States Supreme Court and federal law. 

Since at least the early 1980's, the high court has recognized that the sort of forced blood draw 

authorized under Schmerber is categorically different from a blood draw that an arrestee 

consented to under the persuasion of an implied consent law. (See McNeely, supra, 133 S.Ct. at 

p. 1566 (plur. opn. of Sotomayor, J.); South Dakota v. Neville (1983) 459 U.S. 553, 559-60 

(Neville).) Similarly, the Ninth Circuit has recognized that chemical tests done in accordance 

with the implied consent law for federal lands are legally distinct from forcible tests under 

Schmerber - the two categories result from the two alternative avenues available to law 

enforcement for obtaining the evidence. (United States v. Chapel (9th Cir. 1995) 55 FJd 1416,

1419-20.) Furthermore, an evolving understanding of the constitutional basis for California's 

implied consent statute is right at home in the history and development of the law regarding 

chemical tests in DUI cases. The California Supreme Court first approved warrantless, forced 

blood draws in DUI cases on the ground that they were searches incident to arrest. (People v. 

Duroncelay (1957) 48 Cal.2d 766, 771-72.) The following decade, the United States Supreme 

Court followed suit and in Schmerber found that the warrantless, forced blood draw in that case 

complied with the Fourth Amendment as "an appropriate incident to petitioner's arrest." 

(Schmerber, supra, 384 U.S. at pp. 770-71; accord Hawkins, supra, 6 Cal.3d at p. 761.) But 

despite the Schmerber court's own characterization of its holding, its conclusion "did not turn on 

the existence of a valid prior arrest. To the contrary, the court relied almost exclusively on the 

exigency created by the evanescent nature of blood alcohol and the danger that important
8

evidence would disappear without an immediate search." (People v. Trotman (1989) 214

Cal.App.3d 430, 436.) Today, the Schmerber rule is fully understood to be an application of the 

exigent circumstances exception to the warrant requirement. (McNeely, supra, 133 S.Ct. at pp.

1558-60.) Likewise, in light of the entire body of law as it has developed over the decades, it is 

no great innovation to say that implied consent is legally effective consent, at least so long as the 

arrestee has not purported to withdraw that consent. Indeed, other California courts have 

impliedly held this understanding. In Fiscalini, supra, 228 Cal.App.3d at pp. 1641, 1645, 

Division One of the Fourth District Court of Appeal construed the defendant's choice of a urine 

test under the version of the implied consent law then in effect as resulting in a urine sample 

"obtained ... with his consent." More recently, in People v. Cuevas (2013) 218 Cal.App.4th

1278, 1286 & fu. 3 (Cuevas), Division One of the First District Court of Appeal spoke of 

defendants who chose blood tests has having given "consent under California's implied consent 

law." This view also comports with the Legislature's apparent view as to the nature of the 

statute, as expressed in the clause that a person who is dead, unconscious, or otherwise incapable 

of refusal "is deemed not to have withdrawn his or her consent and a test or tests may be 

administered ...." (§ 23612, subd. (a)(5).)

We recognize, as defendant points out, that Fourth Amendment consent must be free and 

voluntary, rather than coerced or given in mere submission to authority. (People v. Lawler 

(1973) 9 Cal.3d 156, 163; People v. Challoner (1982) 136 Cal.App.3d 779, 781.) Even so, 

consent is not invalid under the Fourth Amendment simply because it was given in advance and 

in exchange for a related benefit, and this is all the implied consent law accomplishes. (See 

People v. Robles (2000) 23 Cal.4th 789, 795 [for Fourth Amendment purposes, a defendant "may 

validly consent in advance to warrantless searches and seizures in exchange for the opportunity
9

to avoid serving a state prison term" by being placed on probation]; People v. Bravo (1987) 43

Cal.3d 600, 608 [same, with the added recognition that "[p]robation is not a right, but a 

privilege"].) To drive a motor vehicle on the highways of this state is a privilege subject to 

regulation, not a right (Tolces v. Trask (1999) 76 Cal.App.4th 285, 290), and one such regulation 

is that any person who does so is statutorily "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," or "of his or her blood for the purpose of determining the drug 

content of his or her blood, if lawfully arrested for" DUI (§ 23612, subds. (a)(l)(A), (B)). By 

choosing to use the highways, drivers voluntarily bring themselves under the regulation of the 

implied consent law. (See Troppman v. Valverde (2007) 40 Cal.4th 1121, 1125, 1139; see also 

McNeely, supra, 133 S.Ct. at p. 1566 (plur. opn. of Sotomayor, J.) [speaking favorably of 

"implied consent laws that require motorists, as a condition of operating a motor vehicle within 

the State, to consent to [blood alcohol] testing if they are arrested or otherwise detained on 

suspicion of a drunk-driving offense"]; State v. Brooks (Minn. 2013) 838 N.W.2d 563, 572 

[recognizing that the McNeely plurality opinion supports the idea that a state can require consent 

to appropriate chemical testing as a precondition for driving in the state].) Furthermore, drivers 

are presumed to know the law. (See Murphy v. Clayton (1896) 113 Cal. 153, 161 ["every one is 

presumed to know the law"]; People v. Munroe (1893) 100 Cal. 664, 670 [similar]; Bank One 

Texas v. Pollack (1994) 24 Cal.App.4th 973, 981 [similar].) It follows that motorists freely 

consent for Fourth Amendment purposes to chemical testing in accordance with the terms of the 

implied consent law, in exchange for the privilege of using the roads. (See also McNeely, supra,

133 S.Ct. at p. 1566 (plur. opn. of Sotomayor, J.) [characterizing a chemical test performed 

pursuant to an implied consent law as an alternative to a nonconsensual blood draw].)
10

The fact that there are penalties for a refusal to cooperate with such testing upon arrest 

does not render the consent illusory or coercive. (See §§ 13353 [setting forth the consequences 

to one's driving privilege for refusal], 23577 [setting forth the enhanced penal consequences 

upon being convicted for DUI].) In the first place, the Court of Appeal has expressly upheld the 

use of a refusal to enhance the punishment for DUI against a Fourth Amendment challenge; it 

reasoned that there is no coercion if the Legislature has "the authority ... to impose a condition 

on the right to refuse," and that the Legislature does have that authority here because, even 

though a fundamental liberty interested is affected, the refusal penalty statute meets strict 

scrutiny and so satisfies due process. (Quintana v. Municipal Court (1987) 192 Cai.App.3d 361,

367-69 [reviewing former section 23159, now numbered as section 23577].) Similarly, with 

regard to administrative penalties, as discussed above the privilege to drive on the public 

highways in the first place is conditional on implied consent to chemical testing upon a DUI 

arrest. To have used the roads, only thereafter to refuse to submit to chemical testing when 

required, is to abuse the driving privilege, and justifies a suspension of those privileges. In the 

unique context of giving consent to a search and seizure in exchange for a benefit, the person 

cannot enjoy the benefit only then to renounce the cost, and expect to continue enjoying the 

benefit. (See People v. Mason (1971) 5 Cal.3d 759, 762-63, disapproved on another ground in 

People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1 [holding that a probationer who agreed to a 

search term cannot avoid an imminent search by refusing law enforcement permission to conduct 

it].) The public also has a right to expect the bargain to be honored, and a person who has shown 

a disinclination to abide by the agreement is not a fit candidate for continued, immediate, 

limitless use of the highways. In this way we can understand how case law has described the 

implied consent law as a "method of compelling a person arrested for drunk driving to submit to
a test for intoxication" (Hawkins, supra, 6 Cal.3d at p. 765), while describing chemical tests 

submitted to under the law as "noncoercive" and the product of "volition" as opposed to 

compulsion (Puccinelli,supra, 63 Cal.App.3d at pp. 745-46).

This is not to say that a driver arrested for DUI can be said to have consented to a forcible 

blood draw in contravention of his then-expressed wishes in the event he purports to withdraw 

his consent. Setting aside the question of constitutionality (see McNeely, supra, 133 S.Ct. at p.

1566 (plur. opn. of Sotomayor, J.) [suggesting that a driver's refusal to submit to a chemical test 

under an implied consent law operates as a withdrawal of consent and renders any subsequent 

test nonconsensual]), there is nothing in the implied consent law to indicate that such measures 

are within the scope of the consent, and so in these cases the implied consent law gives way to 

the constitutional rules of Schmerber and its progeny (see Ritschel, supra, 137 Cal.App.4th at pp.

118-20). But it does mean that such a person who cooperates with a chemical test pursuant to 

the implied consent law has given real and voluntary consent, excusing police from obtaining a 

warrant. This is exactly what happened in this case. After the officer informed him that he was 

required to submit to a blood draw, defendant responded "okay." Later, at the police station, all 

indications are that defendant went along with the blood draw through to its completion. He 

never, at any point, gave either the slightest resistance or suggestion that he wished to revoke his 

consent. Under the legal principles discussed above, defendant's positive cooperation with the 

blood draw therefore constituted valid Fourth Amendment consent3

3 Defendant points out that under section 23612, subdivisions (a)(2)(B) and (C) a person 

arrested for a drug-related DUI is to be given the choice of a blood test or a breath test, and if he 

or she chooses a breath test a subsequent blood test may be required. But "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." (Ritschel, supra, 137

Cal.App.4th at p. 118.) Officer Robinson's failure to first offer defendant a choice between a 

blood test and a breath test does not change the fact that by the act of driving defendant

II
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II. Even Implied Consent Blood Draws Must Be Performed in a Reasonable Manner, and the

Evidence Here Is Sufficient to Show that Proper Medical Procedures Were Followed

Defendant is correct that the prosecution was required to show that his blood draw was 

performed in accordance with accepted medical practices. The People suggest that this 

requirement only applies to forced blood draws, not those taken cooperatively under the implied 

consent law, but the Court of Appeal recently held to the contrary that "even if a defendant 

consents to a blood test under California's implied consent law, such consent does not obviate 

the requirement that the blood test be conducted in a constitutionally reasonable manner." 

(Cuevas, supra, 218 Cal.App.4th at pp. 1285-86 & fn. 3.)

Nevertheless, we find sufficient evidence in the record to establish that defendant's blood 

draw was reasonably performed, specifically Officer Robinson's testimony that it was done with 

defendant's cooperation by a phlebotomist using an ordinary, dry syringe after she had swabbed 

defendant's arm with what appeared to be a disinfectant, with no indication that medical 

standards were violated or that the blood draw was painful or involved a risk of infection. (See 

Cuevas, supra, 218 Cal.App.4th at p. 1286; Sugarman, supra, 96 Cal.App.4th at p. 216.) "In 

reviewing the trial court's denial of a motion to suppress evidence, we view the record in the 

light most favorable to the trial court's ruling, deferring to those express or implied findings of 

fact supported by substantial evidence." (People v. Jenkins (2000) 22 Cal.4th 900, 969.) 

Accordingly, we need not accept defendant's contrary assertion that the officer was not present 

to observe the blood draw. Additionally, even if we accept defendant's testimony that he was 

handcuffed in a holding cell when the blood draw was performed, it does not change the fact that 

"nothing in this record suggests that the location in which this test occurred was unsafe or

specifically consented to a blood test -not a breath or blood test-in the event he was lawfully 

arrested for a drug-related DUI. (§ 23612, subd. (a)(l)(B).)
13

unsanitary" (Ford, supra, 4 Cai.App.4th at p. 37), or that defendant was "subjected ... to any 

unusual pain or indignity" (People v. Esayian (2003) 112 Cai.App.4th I 031, 1041).

DISPOSITION

The order denying defendant's motion to suppress is affirmed.