Filed 10/1/19 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE

Plaintiff and Respondent,

v.

JULIO NZOLAMESO

Defendant and Appellant.

B292164

(Los Angeles County

Super. Ct. No. SA096190)

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on September 17, 

2019, be modified as follows:

On page 7, replace the last paragraph beginning with 

“Birchfield therefore prohibits,” with the following paragraph:

Birchfield therefore prohibits a court from finding implied

consent where an arrestee’s only choice is to consent to a 

warrantless blood test or be prosecuted for refusing to do so. Any 

consent obtained by law enforcement cannot be deemed valid 

where the only choice is consent to the blood test or be punished 

criminally. Here, however, that was not Nzolameso’s only choice. 

Under California’s former implied consent law, Nzolameso was 
2

given a choice of tests to choose from. He was subject to criminal 

penalties only if he refused both the blood and breath test. 

Under Birchfield, the state of California was not insisting on only 

the more intrusive alternative of a blood test. Instead, it offered 

motorists suspected of drunk driving a less intrusive alternative: 

a breath test. And, even though the implied consent statute 

required Nzolameso to submit to only blood or breath testing on 

penalty of criminal penalty, the officers here also gave Nzolameso 

the option of a urine test, which he subsequently requested.1 

Nzolameso was not required to take the blood test or face 

criminal prosecution; he was required only to choose between 

alternative tests. Only refusing all tests would have exposed him 

to criminal penalties under the law. As the First District stated 

in People v. Gutierrez (2018) 27 Cal.App.5th 1155, review granted 

January 2, 2019, S252532 (Gutierrez), just because “the state 

cannot compel a warrantless blood test does not mean that it 

cannot offer one as an alternative to the breath test that it clearly 

1 The former implied consent law stated that a motorist is 

deemed to have consented to a urine test on suspicion of driving 

under the influence of alcohol only if blood or breath testing is 

unavailable. (Veh. Code, § 23612, former subds. (a)(1)(A) &

(d)(2).)) Thus, under the law, Nzolameso would have faced 

criminal penalties for refusing a urine test only if blood and 

breath testing were unavailable. Whether Nzolameso would have 

faced criminal penalties under the facts of this case if he had 

refused blood and breath, but submitted to urine testing, is 

immaterial because he gave actual consent to the blood and urine 

tests.
3

can compel.” (Id. at p. 1161.)2 Hence, Birchfield does not 

prohibit a finding of implied consent under California’s former 

law under these circumstances.

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

____________________________________________________________

BIGELOW, P. J. GRIMES, J. STRATTON, J.

2 Review was granted in Gutierrez on whether law 

enforcement violates the Fourth Amendment by taking a 

warrantless blood sample from an unconscious defendant, or can 

the defendant be deemed to have given implied consent under 

California’s implied consent law?
Filed 9/17/19 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JULIO NZOLAMESO,

Defendant and Appellant.

B292164

(Los Angeles County

Super. Ct. No. SA096190)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mark A. Young, Judge. Affirmed.

Aaron J. Schechter, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Stephanie C. Brenan and Jonathan M. Krauss, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

INTRODUCTION

 Police arrested appellant Julio Nzolameso for alleged 

drunk driving after he drove his car into a crowd of people and 

seriously injured four pedestrians. The arresting officers 

admonished Nzolameso that he was required to submit to either 

blood, urine, or breath testing and that refusal to submit to any 

testing at all would result in civil and criminal penalties. 

Nzolameso chose the blood test, which revealed a blood alcohol 

level above the legal limit.

Nzolameso moved to suppress the results of the blood test 

on the grounds that the blood testing was a warrantless search in 

violation of the Fourth Amendment. He also argued that his 

consent to the blood test was invalid because it was given under 

threat of criminal prosecution. The court denied the motion.

On appeal, Nzolameso relies on Birchfield v. North Dakota

(2016) 579 U.S. ___, [136 S.Ct. 2160] (Birchfield) in support of his 

argument that his consent was illegal per se because it was given 

under threat of criminal prosecution. Because we disagree with 

Nzolameso’s broad interpretation of Birchfield and agree 

Nzolameso’s consent was freely and voluntarily given, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On a night in June 2017, Nzolameso drove his car into a 

crowd of pedestrians who were socializing in the parking lot of a 

club. After hitting several pedestrians, Nzolameso exited the 

parking lot, made a right-hand turn into heavy traffic, and 

crashed into a parked car. Nzolameso was immediately detained 

by Los Angeles Police Department Officers Ernest Fields and 

Samuel Kim, who transported Nzolameso to a hospital to ensure 

he was not injured. At the hospital, Officer Fields conducted field 

sobriety tests, which Nzolameso failed.
3

Officer Fields then placed Nzolameso under arrest and 

advised him of California’s implied consent law as follows:

“You must submit to a blood test, urine test, breath 

test, or urine and breath test, per California Vehicle Code 

23612. Failure to submit to or failure to complete required 

chemical testing will result in a fine, mandatory 

imprisonment if convicted of 23152 or 23153, and the 

suspension of your privilege to operate a motor vehicle for 

one year.

“[¶] . . . [¶]

“Breath test violation 23614 C.V.C. If you choose the 

breath test, the breath testing equipment does not retain 

any sample of the breath and no breath sample will be 

available after the first test, which could be analyzed later 

by any other person or yourself.

“Because no breath sample is retained, . . . you have 

the opportunity to provide a blood sample that will be 

retained at no cost to you. There will be something 

retained that may be subsequently analyzed for the alcohol 

content of your blood. And if you choose the blood or urine, 

your sample may be tested by either party in any criminal 

prosecution.”

Nzolameso informed Officers Fields and Kim that he 

wanted a blood test. He also asked for a urine test. At no point 

did he withdraw his consent to either test. His urine and blood 

were taken by the nursing staff as the officers looked on. The 

nursing staff also took Nzolameso’s consent to the blood test to 

satisfy its own ethical obligations. He was given a cup for the 

urine test and shown the toilet. He asked for water, which he 

received, and discussed the timing of the testing with the nursing 
4

staff, ultimately telling the nurses exactly when he was ready to 

give urine and blood. Nzolameso’s blood alcohol concentration 

was measured at 0.05 percent. Using retrograde extrapolation, 

the People’s criminalist estimated Nzolameso’s blood alcohol 

concentration was between 0.05 and 0.16 at the time of the 

collision.

Nzolameso was charged via information with six counts: 

driving under the influence (DUI) of alcohol causing great bodily 

injury within 10 years of two other DUI offenses (Veh. Code, 

§§ 23153, subd. (a) & 23566, subd. (b); count 1); DUI with a 

0.08 percent blood alcohol content causing great bodily injury 

within 10 years of two other DUI offenses (Veh. Code, §§ 23153, 

subd. (b) & 23566, subd. (b); count 2); driving when privilege 

suspended or revoked for being a habitual offender (Veh. Code, 

§ 14601.3, subd. (d)(2); count 3); driving when privilege 

suspended or revoked for driving under the influence conviction 

(Veh. Code, § 14601.2, subd. (a); count 4); driving a vehicle not

equipped with an ignition interlock device when privilege 

restricted (Veh. Code, § 23247, subd. (e); count 5); and hit and 

run driving resulting in injury to another person (Veh. Code, 

§ 20001, subd. (b)(1); count 6). Count 5 was later dismissed 

pursuant to Penal Code section 995.

Nzolameso moved to suppress the blood test. At the 

hearing on the motion at which Officers Fields and Kim testified, 

Nzolameso stipulated that he was lawfully arrested and had been 

properly advised of the implied consent law, and that he had 

consented to a blood test. Nzolameso’s sole argument was that 

the police were required to obtain a warrant to draw his blood. 

Relying on Birchfield, Nzolameso argued he did not freely and 

voluntarily consent to the blood draw because he faced criminal 
5

penalties if he refused. The trial court determined Nzolameso did 

not face any criminal prosecution for failing to comply with 

California’s implied consent law. The trial court also found, after 

looking “at all of the factors” and “under the totality of the 

circumstances,” that Nzolameso freely and voluntarily consented 

to the blood draw. The court denied the motion.

Nzolameso pled nolo contendere to count 2, admitted he 

caused great bodily injury to two victims, and admitted he 

suffered two prior DUI convictions. The court sentenced 

Nzolameso to 10 years in prison, consisting of four years on 

count 2, plus three years on each of the great bodily injury 

enhancement allegations.

Nzolameso timely appealed.

DISCUSSION

Nzolameso’s sole argument on appeal is that the trial court 

erred in denying his motion to suppress the blood test because 

the Fourth Amendment required law enforcement to obtain a 

warrant before taking a sample of his blood. Nzolameso argues 

California’s former implied consent law, which was amended 

after his conviction, made his failure to submit to a blood draw 

subject to mandatory imprisonment upon a DUI conviction and 

therefore invalidated his consent. We agree there can be no 

implied consent to a warrantless blood draw upon threat of 

criminal penalty, but disagree with Nzolameso’s contention that 

Birchfield mandates that we invalidate his actual consent.

A. The Warrant Requirement

The first issue in Birchfield was whether the Fourth 

Amendment permits warrantless blood alcohol chemical testing 

incident to an arrest for drunk driving. (Birchfield, supra,

136 S.Ct. at pp. 2166–2167.) The Birchfield court considered 
6

three consolidated cases: two involving a North Dakota law 

requiring drunk drivers to submit to warrantless blood tests or 

face misdemeanor prosecution for refusing the test; and one in 

Minnesota which requires a breath test and threatens criminal 

prosecution upon refusal to consent. (Id. at p. 2170.) As the 

Court noted, “success for all three petitioners depends on the 

proposition that the criminal law ordinarily may not compel a 

motorist to submit to the taking of a blood sample or to a breath 

test unless a warrant authorizing such testing is issued by a 

magistrate.” (Id. at p. 2172.)

The Court began with a recap of its jurisprudence—that 

taking a blood sample or administering a breath test is a search 

governed by the Fourth Amendment and that a search warrant 

must be secured unless an exception to the warrant requirement 

applies. (Birchfield, supra, 136 S.Ct. at p. 2173.) The Court held 

that a breath test comes within the categorical search-incidentto-arrest exception to the warrant requirement. It held that, as 

in all cases involving reasonable searches incident to arrest, a 

warrant is not needed. (Id. at p. 2185.) Thus, the Minnesota 

arrestee who refused the warrantless breath test was out of luck. 

(Id. at p. 2186.)

As to blood tests, however, the Court held a warrant is 

required. (Birchfield, supra, 136 S.Ct. at pp. 2184, 2186.) In 

reaching “a different conclusion with respect to blood tests,” the 

Court found that “[b]lood tests are significantly more intrusive, 

and their reasonableness must be judged in light of the 

availability of the less invasive alternative of a breath test.” 

(Id. at p. 2184.) The Court found no satisfactory justification for 

demanding the more intrusive alternative without a warrant. 

(Ibid.) Thus, the North Dakota arrestee who refused a 
7

warrantless blood test had his conviction for refusing the test 

reversed. (Id. at p. 2186.)

B. The Consent Exception to the Warrant Requirement 

Having found that blood tests require a warrant, the next 

step was to determine whether any exception to the warrant 

requirement applied. A defendant’s free and voluntary consent to 

a blood draw constitutes an exception to the Fourth Amendment 

search warrant requirement. (People v. Elder (2017) 

11 Cal.App.5th 123, 131.) It is well established that a search is

reasonable when the subject consents and that sometimes 

consent to a search need not be express but may be fairly inferred 

from context. (Birchfield, supra, 136 S.Ct. at p. 2185.) As to the 

remaining arrestee in Birchfield who had actually agreed to take 

the blood test, the state court had found implied consent only 

based on the erroneous assumption that the state could compel 

both blood and breath tests. The Court found that motorists 

cannot be deemed to have consented to blood tests on pain of 

committing a criminal offense. (Id. at p. 2186.) The finding of 

implied consent, then, was erroneous. Because actual consent 

had not been adjudicated, the Court remanded the consent issue 

so the state court could evaluate the voluntariness of the actual 

consent under the totality of the circumstances test set out in 

Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227, 249–250. 

(Birchfield, at p. 2186.)

Birchfield therefore prohibits a court from finding implied

consent where an arrestee’s only choice is to consent to a 

warrantless blood test or be prosecuted for refusing to do so. Any 

consent obtained by law enforcement cannot be deemed valid 

where the only choice is consent to the blood test or be punished 

criminally. Here, however, that was not Nzolameso’s only choice. 
8

Under California’s former implied consent law, Nzolameso was 

given a choice of tests to choose from. He was subject to criminal 

penalties only if he refused all options (breath, blood, urine). 

Under Birchfield, the state of California was not insisting on only 

the more intrusive alternative of a blood test. Instead, it offered 

Nzolameso an array of less intrusive alternatives. He was not 

required to take the blood test or face criminal prosecution; he 

was required only to choose between alternative tests. Only 

refusing all tests would have exposed him to criminal penalties 

under the law. As the First District stated in People v. Gutierrez

(2018) 27 Cal.App.5th 1155, review granted January 2, 2019, 

S252532 (Gutierrez), just because “the state cannot compel a 

warrantless blood test does not mean that it cannot offer one as 

an alternative to the breath test that it clearly can compel.” 

(Id. at p. 1161.)3 Hence, Birchfield does not prohibit a finding of 

implied consent under California’s former law under these 

circumstances.

Here, however, we need not rest our affirmance only on the 

former implied consent law. The trial court held a hearing on the 

issue of actual consent and found consent to be voluntary. The 

voluntariness of a consent is to be determined in the first 

instance by the trier of fact. On appeal all presumptions favor 

the proper exercise of that power and the trial court’s findings—

whether express or implied—must be upheld if supported by 

substantial evidence. (People v. James (1977) 19 Cal.3d 99, 107.)

3 Review was granted in Gutierrez on whether law 

enforcement violates the Fourth Amendment by taking a 

warrantless blood sample from an unconscious defendant, or can 

the defendant be deemed to have given implied consent under 

California’s implied consent law?
9

As set out above, both arresting officers testified to the 

circumstances under which Nzolameso gave his consent to the 

blood test. There was no testimony at all from Nzolameso, 

including no testimony that he only gave actual consent because 

of the threat of criminal prosecution. The court used the totality 

of the circumstances test and found, after looking at all factors, 

that Nzolameso freely and voluntarily consented to the blood test, 

despite the admonition he was given. Substantial evidence 

supports the trial court’s findings.

Nzolameso does not challenge the factual bases of the trial 

court’s findings except to insist that actual consent can never be 

found where the defendant faces the threat of criminal 

prosecution if he refuses. There is simply no language in 

Birchfield suggesting that an implied consent law with criminal 

penalties attached eviscerates the possibility of finding actual 

consent. If that were the case, the third arrestee in Birchfield

would not have been accorded a remand on the issue of actual 

consent. 

C. The Recent Amendment of The Implied Consent Law

Nzolameso also argues that the Legislature’s decision to 

amend California’s implied consent law in response to the 

Birchfield decision “strongly indicates” that Nzolameso could not 

have freely and voluntary consented to the warrantless blood 

draw based on the former law, which was in effect at the time of 

his arrest. We are not convinced.

Assembly Bill No. 2717 (Assem. Bill 2717) amended 

California’s implied consent laws by clarifying that criminal 

penalties do not attach to a suspected drunk driver’s refusal to 

submit to a blood test. In pertinent part, Vehicle Code 

section 23612 stated that drivers were deemed to have given 
10

consent to chemical testing of their blood or breath; and that 

failure to submit to such chemical testing would result in both 

civil and criminal penalties upon conviction of drunk driving. 

(Veh. Code, § 23612, subd. (a)(1)(A) & former subd. (a)(1)(D).) 

Former law also stated that the person lawfully arrested for 

drunk driving shall be advised that he or she has the choice of 

submitting to blood or breath testing. (Veh. Code, § 23612, 

subd. (a)(2)(A).)

Current law states that drivers are deemed to have given 

consent to chemical testing of their blood or breath; that failure 

to submit to the required breath testing will result in civil and 

criminal penalties; and that failure to submit to both breath or 

blood testing will result in civil penalties only. (Veh. Code, 

§ 23612, subds. (a)(1)(A) & (D).) The provision stating a person 

lawfully arrested for drunk driving shall be advised that he or 

she has the choice of submitting to blood or breath testing 

remains the same. (Veh. Code, § 23612, subd. (a)(2)(A).)

Nowhere in the summaries of analysis of Assem. Bill 2717 

does the Legislature express concern that the former implied 

consent laws were unconstitutional. Rather, the legislative 

history reveals that Assem. Bill 2717 was intended to comply, 

comport, or be in conformity with Birchfield by clarifying that no 

criminal penalty will attach to a driver’s refusal to submit to a 

blood test only. (Legis. Counsel’s Dig., Assem. Bill No. 2717 

(2018 Reg. Sess.); Sen. Rules Com., Off. of Sen. Floor Analyses, 

3d reading analysis of Assem. Bill No. 2717 (2017–2018 Reg. 

Sess.).)

Nevertheless, even if the Legislature were concerned that 

the former implied consent laws ran afoul of the Fourth 

Amendment, our analysis would not change because, as discussed 
11

above, Nzolameso gave actual consent to the blood draw. Again,

Birchfield does not render invalid a suspect’s actual consent to a 

warrantless blood draw.4

Here Officer Fields informed Nzolameso that he could 

choose a breath or blood test. He was told that no sample would 

be retained from a breath test; accordingly, he could provide a 

blood test in order to retain a sample for testing should he be 

criminally prosecuted. The only consequence Nzolameso would 

have faced had he chosen a breath test instead of a blood test was 

the loss of evidence that may or may not have benefitted him in a 

prosecution. Birchfield made clear that its holding barring 

warrantless blood tests on pain of criminal penalty should not be 

read to “cast doubt” on the constitutionality of “implied-consent 

laws that impose civil penalties and evidentiary consequences on 

motorists who refuse to comply” with blood tests. (Birchfield,

supra, 136 S.Ct. at p. 2187.)

At the time of his arrest, Nzolameso faced no threat of 

criminal penalties for refusing a blood test only. That he chose a 

blood instead of a breath test does not render the warrantless 

blood draw in his case unconstitutional.

4 Not only does Nzolameso ask us to construe Birchfield as 

eviscerating the possibility of actual consent, he is essentially 

asking us to analyze his case as if the implied consent law as 

applied to him involved only a blood test. Not only would this be 

error, it would lead to an absurd result. Under Nzolameso’s 

reasoning, a driver could actually consent to the blood test 

instead of the breath test and then successfully move to suppress 

the results to avoid criminal prosecution entirely.
12

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION

STRATTON, J.

We concur:

BIGELOW, P. J.

GRIMES, J.