People v. Ritchie

Opinion

Charged with violation of Vehicle Code section 231Q5, subdivision (a), driving under the influence of a drug, defendant brought a motion to suppress evidence resulting from the extraction of a sample of her blood following her arrest. The municipal court granted the motion. The Appellate Department of the Orange County Superior Court reversed and certified the matter to this court as one involving an important question of law. The question presented on certification is whether a search warrant is required to permit a nonconsensual withdrawal of a blood sample, in a medically approved manner, as an incident to an arrest for violation of Vehicle Code section 23105, subdivision (a).

The facts are uncontradicted and derived from a settled statement. Defendant was arrested for a violation of Vehicle Code section 23105, subdivision (a), which prohibits driving a vehicle under the influence of drugs. The details of the stop and arrest are not part of the appeal record but instead it was settled that the arrest for driving under the influence of drugs was lawful. Thus, our resolution must start with it being a given fact that the officer was fully equipped with all necessary information to properly conclude defendant was under the influence of drugs.

The arresting officer advised defendant that in addition to a blood, breath or urine test, as required by Vehicle Code section 13353, he was, whether she consented or not, going to take a sample of her blood to provide evidence of its drug content.^[2] The defendant had requested a breath test. However, the officer knew that such a test would not indicate the presence of any drugs in the defendant’s system. Thereupon, at the officer’s direction, a sample of defendant’s blood was withdrawn in a medically approved manner. The defendant did not consent nor did the officer have a search warrant. The municipal court held that there was no showing of exigent circumstances in that there was no evidence that whatever particular drug substance was in the defendant’s blood would quickly dissipate and thus the extraction of the blood was illegal. We do not agree and reverse the municipal court.

The Supreme Court of the United States (Schmerber v. California (1966) 384 U.S. 757 [ 16 L.Ed.2d 908 , 86 S.Ct. 1826 ]) and the Supreme Court of this state (People v. Superior Court (Hawkins), (1972) 6 Cal.3d 757 [ 100 Cal.Rptr. 281 , 493 P.2d 1145 ]) have held that a blood sample may be taken without consent to determine intoxication due to the consumption of alcohol provided (1) the removal is done in a reasonable medically approved manner, (2) it is incident to the defendant’s arrest, and (3) it is based on a reasonable belief that the defendant is under the influence.^[3] The mere fact of a lawful arrest is not sufficient. Special factors must exist which make the taking of the sample reasonable. In intoxication by alcohol, the special factor that the percentage of alcohol in the blood begins to diminish shortly after its consumption triggers the warrantless intrusion into the body. In Schmerber, the Supreme Court recognized that the percentage of alcohol begins to diminish shortly after consumption as the body functions to eliminate it from the system and treated this as an exigent circumstance, the destruction of evidence, justifying the warrantless intrusion subject, of course, to the factors mentioned above.

The municipal court apparently felt that a distinction exists between the ingestion of alcohol and the 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,^[4] nevertheless, the amount of drug in the blood stream does diminish with the passage of time. The alternative is a lifetime high which may be a desirable result but is hardly consistent with elementary physiology.

It is true that in cases involving the swallowing of objects which will eventually pass through the bodily processes of digestion and elimination (balloons of heroin, rings, etc.) (see People v. Bracamonte (1975) 15 Cal.3d 394 [ 124 Cal.Rptr. 528 , 540 P.2d 624 ]) forced regurgitation is forbidden since the authorities have only to wait with such patience as they can muster for the body to eliminate the substance via the intestinal tract. However, drugs in the blood stream, like alcohol, dissipate.