Filed 9/5/14 P. v. Gartley CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.

D ARR Y L L AM M AR G ARTLEY , Defendant and Appellant. G049235
(Super. Ct. No. 13HF1128)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Frederick P. Aguirre, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland , Scott C. Taylor and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

* * *2 A jury convicted defendant Darryl Lam m ar Gartley of driving under the influence of a drug (Veh. Code, § 23152, subd. (a) , as amended by Stats. 2012, ch. 753, § 1 ) and being under the influence of a drug (Health & Saf. Code, § 11550, subd. (a) )

. The trial co urt sentenced defendant to five years in prison and imposed several fines and
fees. Relying on the recent decision in Missouri v. McNeely (2013)

_ __ U.S. _

__ [ 1 33
S.Ct. 1552 , 185 L.Ed.2d 696] ( McNeely ), d efendant argues the court erred in denying his pretrial motion to suppress the results of a blood test because his blood was drawn
without a warrant. We disagree for two reasons and affirm. First, d efendant consented to the drawing of his blood

. S econd , even if a warrant was required, the deputy she riff who requested the blood draw reasonably relied on then controlling legal precedent

.

FACTS

On April 2, 2013, Orange County Deputy Sheriff Arthur Tiscareno stopped a car driven by defendant after noticing t h e vehicle ’ s registration tag had expired. Defendant appeared intoxicated. H e agreed to a search of the car and Tiscareno found a
vial under the floor mat that appeared to have spilled its contents . Using a narcotic
identification kit , Tiscareno d etermin ed t he substance t o be P hencyclidine (P CP )

.

Defendant was transported to a substation where Deputy S heriff William
Simandl , a certified drug recognition expert, evaluated him

. Simandl conclude d
defendant was under the influence of a disassociate anesthetic , a category of drugs that
include s PCP , and informed defendant he was under arrest and required to submit to a
test of his blood

. According to Simandl , when told he would have to submit to a blood
draw defendant “made no response.”

A licensed vocational nurse was called to obtain the b l ood sample

. Upon her arrival, defendant was asked to sit down. He submitted to the blood draw without3

resistance. Simandl testified that if defendant had refused the test , the back of an administrative form used by the sheriff’s department would have b een completed

.

Defendant testified at the suppression hearing . He a dmitted us ing PCP

“ probably like the day before , ” but claimed its effect o n him lasted only a few hours. According to defendant , when told his blood was about to be drawn, he stated “‘ you are not taking my blood ’” and “‘ I don ’ t like needles. ’”

In denying the motion to suppress , the trial court concluded defendant
consented to the blood draw. The court found his testimony to be “ unreliable , ” and “ I would still believe the officers; that if there were a refusal, at least we ’ d have the back of
the form filled out. ” The court stated , “ I simply don ’ t see that this was other than a
consensual blood draw. ” In addition, the court held the deputy sheriffs acted in good faith, noting law en forcement is now aware of “ Mc Neely

. ”

DISCUSSION

1. Defendant consented to the blood draw.

Defendant argues the trial court erred in finding he consented to having a sample of his blood draw n for chemical testing . He claims his mere acquiescence to the procedure was insufficient to show actual consent. Further, Simandl fail ed to provide the warning required by California’s implied consent law and , in any event, McNeely preclude s reliance on th at statute to support admission of the blood test results at trial.

In the absence of exigent circumstances, the constitutional prohibition on illegal searches requires law enforcement officers to obtain a warrant before drawing blood from a person arrested for driving while intoxicated. ( McNeely , supra, 133 S.Ct. at p. 1558.) One exception to the warrant requirement is a person’s consent to the search. ( People v. James (1977) 19 Cal.3d 99, 106.) The requisite consent “ may be express or implied, and may be demonstrated by conduct as well as words. ” ( P eople v. Superior4

Court (2012) 204 Cal.App.4th 1004, 1012.) “ The voluntariness of the consent is in every

case ‘ a question of fact to be determined in the light of all the circumstances. ’” ( People v. James, supra, 19 Cal.3d at p. 106; Schneckloth v. Bust amonte (1973) 412 U.S. 218,
227 [93 S.Ct. 2041, 36 L.Ed.2d 854] [existence of valid consent “ to be determined from the totality of all the circumstances ”]

. )

One factor supporting the consent finding is defendant’s operation of the
car. Vehicle Code sec tion 23612, subdivision (a)(1)(B) provides “[a] person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his of her blood, if lawfully
arrested f or an offense allegedly committed in violation of Section .

. . 23152 .

. . .” ( People v. Harris (2014) 225 Cal.App.4th Supp. 1, 8 [“ To drive a motor vehicle on the highways of this state is a privilege subject to regulation, not a right

. . ., and one su ch 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

. . . if lawfully arrested for ’ DUI ”; thus,

“ By choosing to use the highways, drivers voluntarily bring themselves under the regulation of the implied consent law ”].)

Defendant argues this statute is inapplicable because Simandl failed to tell him he could opt for a breath or urine test and that his refusal to submit to testing could result in the suspension of his driver’s license. As for the failure to offer a choice of chemical tests, defendant’s argument is premised on a former version of the implied consent law. With certain exceptions not relevant in this case, effective as of January 1, 2013, Vehicle Code se ction 23612 was amended to state a person arrested for driving while under the influence of a drug impliedly consents to a test of his or her blood alone. (Stats. 2012, ch. 196, § 1.) Therefore, Simandl did not err by failing to offer defendant
the choic e of either a breath or urine test.

On the failure to inform defendant that a refusal could lead to administrative penalties, even he acknowledges this misstep did not violate his5

constitutional rights. ( People v. Brannon (1973) 32 Cal.App.3d 971, 975 [“We fail to perceive .

. . how the failure to advise a person of his choice of .

. . tests .

. . violates any constitutionally protected right”].) Without citing any supporting authority, defendant argues Vehicle Code section 23612 is merely “a legal fic tion designed to implement a statutory scheme to suspend the driver’s licenses of individuals who are arrested for driving under the influence and do not consent to appropriate chemical testing.” Not so.
In Troppman v. Valverde (2007) 40 Cal.4th 1121, th e California Supreme Court recognized the “legislative purpose[s] underlying the implied consent Law [are] .

. . ‘(1) to obtain the best evidence of blood alcohol content while ensuring cooperation of the person arrested, and (2) to inhibit driving under t he influence.’” ( Id. at p. 1136.)

Alternatively, defendant relies on McNeely to argue California’s implied consent law is unconstitutional. He reasons that, because Missouri also had an implied consent statute, there would have been no need for the court to address whether a warrant was required. However, McNeely did not conclud e implied consent statutes are unconstitutional. In fact, the court’s opinion spoke approvingly of them: “States have a broad range of legal tools to enforce their drunk

- driving laws and to secure BAC [blood alcohol content] evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they
are arrested or otherwise detained on suspicion of a drunk

- driving offense.” ( McNeely,

supra, 133 S.Ct. at p. 1566.) The court continued: “Such laws impose significant consequences when a motorist withdraws consent.” ( Ibid. ) If the implied consent law did not create a valid consent, Mc Neely’s statement “when the motorist withdraws consent,” would be meaningless.

In the context of these statements, we interpret McNeely as approving of implied consent laws. But , as noted, the consent can be withdrawn. In McNeely , defendant did just t hat: “the officer explained to McNeely that under state law refusal to6

submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution. [Citation.] McNeely nonetheless refused.” ( McNeely, supra, 133 S.Ct. at p. 1557.)

Here, the trial court found that defendant did not withdraw his consent and
the evidence supports its finding

. According to Simandl, when told he was required to submit to a blood test, def endant “made no response.” Upon the nurse’s arrival,
defendant sat down and allowed the nurse draw his blood without the need of any deputy holding his arm. Further, the sheriff’s department did not complete the portion of an
administrative form used to document an arrestee ’s refusal to submit to a chemical test.

Defendant testified he verbally objected to the procedure. But the trial court rejected his testimony. On a motion to suppress evidence “ 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 ,” and “[o] n appeal all presumptions favor the exercise of that power

. . . . ” ( People v. Lawler (1973) 9
Cal.3d 156, 160.) Thus, we lack the authority to second

- guess the court’s finding on this issue. ( People v. Leyba (1981) 29 Cal.3d 591, 596

- 597.) While d efendant was under

arrest at the time and Simandl did not expressly inform him of his right to refuse consent,
neither fact necessarily invalidates the trial court’s finding he voluntarily consent ed to the blood draw. ( People v. Monterroso (2004) 34 Cal.4th 743, 758.)

Hence no search warrant was required in this case because defendant
consented to the blood draw

.

2. T he p olice reasonably relied on controlling precedent

. As noted, defendant ’s arrest and blood draw occurred on April 2, 2013. The Supreme Court issued its decision in McNeely on April 17, 2013.

When the police conduct a warrantless search in reliance on es tablished law, the exclusionary rule does not require suppression of the search’s results. In Davis7

v. United States (2011) 564 U.S.

___ [ 131 S.Ct. 2419 , 180 L.Ed.2d 285] , the petitioner was convicted of possession of a firearm by a felon. The police stopped a car in which he
was a passenger and remov ed him from the vehicle . The defendant was then arrest ed for giving a false name . T he police search ed the car , locating the weapon. While the petitioner’s case was on appeal, the United States Supreme C ourt issued Arizona v. Gant (2009) 556 U.S. 332 [129 S.Ct. 1710, 173 L.Ed.2d 485], which held “[p] olice may search a vehicle incident to a recent occupant ’ s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest. ” ( Id. at p. 501.)

The petitioner in Davis claimed that he was entitled to the benefit of this change in the law. The Supreme Court disagreed. “ Under ou r exclusionary

- rule precedents, this acknowledged absence of police culpability dooms Davis ’ s claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘ meaningfu [l] ’ deterrence, and culpable enough to b e ‘ worth the price paid by the justice system

. ’ [Citation.] The conduct of the officers here was neither of these things.
The officers who conducted the search did not violate Davis ’ s Fourth Amendment rights deliberately, recklessly, or with gross negligence. [Citation.] Nor does this case involve
any ‘ recurring or systemic negligence ’ on the part of law enforcement. [Citation.] The police acted in strict compliance with binding precedent, and their behavior was not wrongful

. ” ( Davis v. United States, supra, 131 S.Ct. at p. 2428 ; see United States v. Leon (1984) 468 U.S. 897, 909

- 911 [104 S.Ct. 3405, 82 L.Ed.2d 677] .)

The same principle applies in our case. When defendant’s blood was draw n , the controlling precedent was Schmerber v. California (1966) 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908] ( Schmerber ). In Schmerber , a police officer arranged for a blood draw from a person arrested for driving while intoxicated. The Supreme C ourt held the blood sample was properly seized even though the arrestee objected and no
search warrant had been obtained. “ The officer in the present case, however, might8

reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threa tened ‘ the destruction of evidence, ’ [ c itation]

. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a ca se such as this, where ti me had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood

- alcoho l content in this case was an appropriate incident to petitioner ’ s arrest

. ” ( Id. at pp. 770

- 771.)

Although Schmer ber did not hold a search warrant was never required, the opinion recognized the diminishment of an arrestee’s blood alcohol level creates an exigency that may justify drawing blood without a warrant. The opinion is, at best, unclear as to whether this fact generally justifies blood draws without a search warrant.
But it was generally so interpreted. As both par ties acknowledge , California cases decided after Schmer ber , concluded: “ The courts of this state have frequently
summarized Schmerber as permitting warrantless compulsory seizure of blood for the purpose of a blood

- alcohol test if the procedure (1) is don e in a reasonable, medically approved manner, (2) is incident to a lawful arrest, and (3) is based upon reasonable
belief the arrestee is intoxicated. ” ( People v. Ford (1992) 4 Cal.App.4th 32, 35.)
Defendant argues the statements of the rule in cases Ford cited were frequently in the nature of dicta rather than holdings. Nevertheless it was reasonable for law enforcement to understand the law to be that, when dealing with substances that diminish from the blood stream as time passes, a warrant is not required for a blood draw.

And People v. Ritchie (1982) 130 Cal.App.3d 455, a case defendant fails to address, held that under Schmerber there was no difference between alcohol and drugs in the tendency to diminish from the blood stream with the passage o f time : “ The municipal court apparently felt that a distinction exists between the ingestion of alcohol and the9

ingestion of drugs. We detect no appreciable difference. It is a matter of common knowledge that from the moment of ingestion the body begins to eliminate drugs from the system. While the rate of dissipation may depend on many factors, one, of course, being the type of drug involved, nevertheless, the amount of drug in the blood stream does diminish with the passage of time. The alternative i s a lifetime high which may be a desirable result but is hardly consistent with elementary physiology. ” ( Id. at p. 458, fn. omitted.) The case concluded no search warrant was required for a blood draw from a person suspected of being under the influence of a drug

.

W e conclude Simandl reasonably relied on what he understood to be
established law in obtaining a blood sample from defendant without first seeking a search

warrant.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.