People v. Cuevas

The Appellate Division of the Superior Court of Alameda County, on its own motion, certified these seven cases for transfer to this court. In each case, the defendant was charged with the misdemeanor offenses of driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)) and driving while having a 0.08 percent or higher blood-alcohol level (Veh. Code, § 23152, subd. (b)). Each defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5, contending the blood drawn from his or her person subsequent arrest, and pursuant to California's implied consent law (see Veh. Code, § 23612), should be suppressed under Schmerber v. California (1966) 384 U.S. 757 [ 16 L.Ed.2d 908 , 86 S.Ct. 1826 ] (Schmerber) because the blood draw was not performed in a constitutionally reasonable manner. In six of the seven cases, the trial court denied the defendant’s motion to suppress; the trial court in the remaining case granted the motion.

Following appeal to the appellate division, the court in all seven cases, splitting two to one, sided with defendants on the suppression motions. The majority concluded the evidence presented by the prosecution at the suppression hearing, consisting solely of testimony from a police officer who described the nature and circumstances of the blood draw in question, was insufficient to show the blood draw was performed in a reasonable manner under the Fourth Amendment. The dissent, on the other hand, concluded the prosecution met its burden of showing the searches were reasonable.

We ordered the cases transferred to this court (Cal. Rules of Court, rule 8.1008(a)(1)), consolidated them for purposes of briefing and disposition, and asked the parties to brief the following issue: “Does the record support a finding defendant’s blood was drawn in a manner that was unreasonable within the meaning of the Fourth Amendment?” Having carefully reviewed the record in each case and the briefs submitted, we agree with the dissent in the appellate division and find the blood draw in each case passes muster under the Fourth Amendment.

B

ecause the sole issue on appeal is whether blood was drawn in an unreasonable manner within the meaning of the Fourth Amendment, we briefly summarize the facts common to all seven cases relating to the

The high court has “long held that the ‘touchstone of the Fourth Amendment is reasonableness.’ [Citation.] Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” (Ohio v. Robinette (1996) 519 U.S. 33 , 39 [ 136 L.Ed.2d 347 , 117 S.Ct. 417 ].) Moreover, in applying the “reasonableness” test, the court has “consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry” and “expressly disavowing] any ‘litmus-paper test’ or single ‘sentence or . . . paragraph . . . rule,’ in recognition of the ‘endless variations in the facts and circumstances’ implicating the Fourth Amendment.” (Ibid.) The court’s “ ‘traditional contextual approach’ ” does not countenance “ ‘bright-line rule[s] applicable to all investigatory pursuits.’ ” (Ibid.)

In Schmerber, supra, 384 U.S. 757 , a DUI (driving under the influence) case, the court applied the same constitutional standard of reasonableness. There, after concluding a blood draw did not violate the Fifth Amendment privilege against self-incrimination, the court stated, “once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol contest, the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.” (Schmerber, at pp. 767-768, italics added.)

The court evaluated the latter consideration—whether the blood draw was performed in a reasonable manner under the Fourth Amendment—concluding “the test chosen to measure petitioner’s blood-alcohol level was a reasonable one.” (Schmerber, supra, 384 U.S. at p. 771.) The court stated: “Extraction of blood samples for testing is a highly effective means of determining the

Since Schmerber, California appellate courts have evaluated whether deviations from the scenario presented in Schmerber—i.e., a blood draw by a physician in a hospital—created an undue risk of harm to the arrestee and thus rendered .the blood extraction unconstitutional. In these decisions, the courts concluded that a blood test was not unconstitutional even though the person drawing the blood may not have been authorized to perform the extraction under applicable statutory provisions and even though the blood was drawn at a jail rather than at a medical facility. (See People v. Ford (1992) 4 Cal.App.4th 32 , 34-37 [ 5 Cal.Rptr.2d 189 ] [blood draw conducted at police station]; see also People v. Esayian (2003) 112 Cal.App.4th 1031 , 1035, 1037-1041. [ 5 Cal.Rptr.3d 542 ] [drawing of arrestee’s blood by phlebotomist who was not fully qualified to draw blood under state law for purposes of determining its alcoholic content did not violate 4th Amend.]; People v. McHugh (2004) 119 Cal.App.4th 202 , 213-214 [ 14 Cal.Rptr.3d 142 ] [same]; People v. Mateljan (2005) 129 Cal.App.4th 367 , 376 [ 28 Cal.Rptr.3d 506 ] [same].)

Furthermore, these decisions of the California appellate courts emphasize the key inquiry is whether “the manner in which the sample was obtained deviated so far from the medical practices found to be reasonable in Schmerber as to render the seizure constitutionally impermissible.” (People v. Ford, supra, 4 Cal.App.4th at p. 37; see People v. Esayian, supra, 112 Cal.App.4th at p. 1040 [noting that whereas the high court in Schmerber “express [ed] some doubts about blood being drawn in the private setting of the police station, it did not attempt to set any specific rules for blood tests conducted outside the hospital setting”].) Under this standard, the court considers the overall reasonableness of the blood draw to determine whether “the test conditions subjected [the arrestee] to ‘an unjustified element of personal risk of infection or pain.’ ” (People v. Ford, at p. 38; see People v. Mateljan, supra, 129 Cal.App.4th at p. 376 [court evaluates whether “draws

Of these cases, Sugarman is the most analogous. In Sugarman, the defendant pleaded guilty to driving under the influence and subsequently appealed the trial court’s denial of his motion to suppress the results of his blood test. (Sugarman, supra, 96 Cal.App.4th at pp. 212-214.) The appellate court summarized the pertinent facts as follows: “[California Highway Patrol Officer] Pedeferri decided that a blood test was necessary. He took Sugarman to a hospital. Sugarman said he did not want to take a blood test but did not physically resist it. He extended his arm with his palm up so it could be tested. Pedeferri placed one hand on Sugarman’s arm and with the other rolled up Sugarman’s sleeve. Pedeferri testified, T didn’t even have to apply any pressure. He didn’t move or flinch . . . .’ A nurse took the blood sample.” (Sugarman, supra, 96 Cal.App.4th at p. 213.)

The appellate court stated that under Schmerber, “ ‘forcible, warrantless chemical testing may occur . . .’ ” if, among other things, “ ‘the test is conducted in a medically approved manner . . . .’ ” (Sugarman, supra, 96 Cal.App.4th at p. 214.) In that regard, the court stated: “A nurse at a hospital took his blood sample showing that the test was performed in a medically approved manner.” (Ibid.) In short, the Sugarman court deemed the testimony of the police officer, relating his observations of the blood draw in question, was sufficient evidence the blood test was conducted in a reasonable manner.

We concur with the reasoning, implicit in Sugarman, that the testimony of a police officer, when he or she is a percipient witness to the blood draw in question, may properly be considered in evaluating whether that blood draw was conducted in a constitutionally reasonable manner. To conclude otherwise, as the majority of the appellate division did in the cases before us, would violate the “ ‘traditional contextual approach’ ” to Fourth Amendment issues mandated by the high court and create a bright-line rule—that expert testimony is required to show a blood test was conducted in a constitutionally reasonable manner—of the sort “expressly disavowed” by the high court. (Ohio v. Robinette, supra, 519 U.S. at p. 39.)

Turning now to the testimony of the officers in question, we address whether the unrebutted evidence presented by the officers is sufficient to show the blood draws were performed in a reasonable manner under the

Dondero, J., and Banke, J., concurred.

Appellants’ petitions for review by the Supreme Court were denied November 20, 2013, S213158. Werdegar, J., was of the opinion that the petitions should be granted.