Opinion
C081641
04-05-2017
THE PEOPLE, Plaintiff and Respondent, v. PAVEL TOVPEKO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F04221)
In denying defendant Pavel Tovpeko's motion to suppress evidence that his blood alcohol level was 0.30 percent, the trial court found that he freely and voluntarily consented to a blood draw despite the arresting police officer's failure to inform him of the consequences of refusing to consent. We defer to the trial court's factual findings and agree with its legal conclusion defendant was not subjected to an unreasonable search because he consented to the blood test. We therefore affirm the judgment.
MOTION TO SUPPRESS
On June 25, 2015, California Highway Patrol Officer Roger Williams, who has investigated thousands of driving under the influence cases, believed defendant was under the influence because, as he sat in his car with two blown tires, he kept repeating, "vodka, vodka, vodka" and reeked of the smell of alcohol. The officer could not get defendant to get out of his car so it could be moved from the lane of traffic. Defendant became more agitated and argumentative and Williams concluded defendant was extremely intoxicated based on his slurred speech, red, watery eyes, the smell of alcohol on his breath and body, and difficulty standing. Without any backup, Williams was unable to conduct any field sobriety tests and he placed defendant under arrest and took him to the Sacramento County jail.
At the jail, Williams told defendant that "since he has is under arrest for driving under the influence, he has to submit to a blood or breath test." At trial he explained: "When a driver gets a driver's license in the State of California, they advise DMV that they would submit to a blood or breath test if arrested for a DUI. The blood or breath sample is for court cases later on down the road to see what the contents of the alcohol in their system is at that time." Williams' protocol was to offer a suspect to take the breath or blood test and, if they declined, he would seek a warrant.
By the time defendant arrived at the jail he had calmed down, and although he had a Russian accent, was able to communicate in English. Defendant had been previously arrested for driving under the influence and asked Williams about his car. After Williams told defendant he was required to take a breath or blood test, he asked defendant if he would submit to a breath test. Defendant replied that he "didn't want to blow into a machine." Williams told him, "[W]e can do blood then." Defendant responded that was ok. He did not resist or object during the administration of the blood draw.
A criminalist testified that defendant had a blood alcohol content of 0.30 percent. She opined that a 170-pound man would need the equivalent of 13 1/2 vodkas in his system to have a blood alcohol level of 0.30.
The trial court denied defendant's motion to suppress the blood test results.
DISCUSSION
Compelling a suspect to take a breath test without a warrant does not violate the Fourth Amendment's prohibition against unreasonable searches and seizures; a warrantless blood draw does. (Birchfield v. North Dakota (2016) 579 U.S. ___, ___ [136 S.Ct. 2160, 2186].) A search is reasonable, however, if the suspect consents. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [93 S.Ct. 2041, 2043-2044].) This is a case about express, not implied, consent. The state took a sample of defendant's blood, not because he impliedly consented when he obtained his driver's license, but because he told Williams he preferred a blood test and it was ok to take a blood draw. The implied consent laws provide a backdrop and a context for the issue before us, but that issue is simply whether there is substantial evidence to support the trial court's factual finding that defendant freely and voluntarily consented to the blood draw. Two recent opinions of the California Courts of Appeal support the trial court's denial of the motion to suppress.
The peripheral role played by the so-called implied consent laws was highlighted in People v. Harris (2015) 234 Cal.App.4th 671 (Harris). In Harris, the arresting police officer advised the driving under the influence suspect of the consequences of refusing to submit to a blood or breath test including the likely suspension of his license and the ability to use his refusal against him in court. (Id. at p. 678.) The defendant testified he was in a holding cell with his hands handcuffed behind his back when his blood was drawn. (Id. at pp. 678-679.) The officer testified defendant consented to a chemical blood draw and he did not resist when it was administered. (Id. at p. 678.) Acknowledging that the use of "implied consent" in this context is confusing and unhelpful, the court aptly framed the issue this way: "[R]ather than determine whether 'implied consent' to a chemical test satisfies the Fourth Amendment, we must determine whether submission to a chemical test, after advisement under the implied consent law, is freely and voluntarily given and constitutes actual consent." (Harris, at p. 686.)
Vehicle Code section 23612, subdivision (a)(1)(A), provides that anyone who "drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath," if lawfully arrested for driving under the influence. Vehicle Code section 23612, subdivision (a)(1)(D) requires the officer to advise the motorist of the consequences of refusal and Vehicle Code section 23617, subdivision (a)(4) requires the officer to advise that the person does not have the right to an attorney before deciding whether to submit to the test. --------
Interestingly, the defendant in Harris argued the admonition of the consequences for refusing a blood draw rendered the consent coercive in the same way the Supreme Court recognized in Bumper v. North Carolina (1968) 391 U.S. 543 (Bumper) that when four white police officers confronted an African-American grandmother, a widow, at the end of a rural and isolated road and told her they had a search warrant which presumably did not exist or was not valid she had not voluntarily consented to the ensuing search. (Id. at pp. 546-548; see People v. Agnew (2015) 242 Cal.App.4th Supp. 1, 18 (Agnew).) The Supreme Court admonished that "[w]here there is coercion there cannot be consent." (Bumper, at p. 550.) The far more egregious totality of circumstances present in Bumper, the Harris court concluded, did not justify a categorical rule that any admonition about the consequences of refusing chemical tests amounted to coercion and precluded an individualized assessment whether the defendant had voluntarily consented. (Harris, supra, 234 Cal.App.4th at pp. 686-687.)
As a result, the court in Harris affirmed the trial court's order denying the motion to suppress and concluded, under the totality of the circumstances, the defendant had freely and voluntarily consented to his blood being drawn. (Harris, supra, 234 Cal.App.4th at p. 692.) An admonition of the consequences of refusing a chemical test may or may not amount to coercion depending on a host of factors the trial court must consider. (Id. at pp. 689-692.) It is important to note that the court in Harris did not hold that such an admonition is required; rather it held that the admonition, if given, is only one of many circumstances the trial court must consider in determining whether actual consent was given. (Id. at pp. 685-689.)
By contrast, the arresting police officer in Agnew, supra, 242 Cal.App.4th Supp. 1, advised the defendant that he was required by law to provide blood or breath, but the officer did not inform defendant of the consequences for refusing the tests. That failure was the sole factor the trial court relied upon in granting the motion to suppress. (Id. at p. 19.) Again the Court of Appeal reversed. "[R]equiring the statutory admonition about the consequences of withdrawing consent in every case, or even treating that as the critical factor, would improperly elevate the admonishment to a constitutional requirement under the Fourth Amendment. Providing the statutory admonishment therefore should be only a factor in weighing the voluntariness of consent under the totality of the circumstances. Indeed, it is not even clear how the admonishment would always affect voluntariness." (Id. at p. 16.)
Advising motorists, even after they have been arrested and handcuffed, that they are required to take a chemical test under California law is not inherently coercive. (Agnew, supra, 242 Cal.App.4th Supp at p. 19.) And we agree with the Attorney General and the courts in Harris and Agnew, that the egregious facts in Bumper do not approximate the circumstances involved in asking a motorist suspected of driving under the influence to consent to a test he or she has already consented to. We must proceed, therefore, to assess the totality of the circumstances mindful of the prosecution's burden of proof and the standard of review on appeal.
The prosecution bears the burden of proving voluntary consent. (People v. Mason (2016) 8 Cal.App.5th Supp. 11, 19-20.) On appeal of the trial court's denial of a motion to suppress, we must determine whether there is substantial evidence to support the trial court's factual findings, including the finding of consent, and independently review any legal determinations that the blood draw met constitutional standards. (People v. Carter (2005) 36 Cal.4th 1114, 1140; People v. Rios (2011) 193 Cal.App.4th 584, 589.)
Here, as in Agnew, the arresting police officer did not tell defendant of the adverse consequences of refusing to take a breath or blood test. But there was no evidence that defendant refused to take the test. Rather, when he was confronted with the choice to take a breath or blood test, he chose to take a blood test. Nor is there any evidence he resisted at the time his blood was drawn. To the contrary, he expressed his preference for a blood test over a breath test and cooperated with the phlebotomist. While it is true the police officer did not inform defendant of the consequences of withdrawing his consent to a blood test, we agree with the court in Agnew that failure is only one of many factors relevant to our assessment of the voluntariness of defendant's consent. And, quite frankly, we find it a very insignificant factor as the advisement could be argued to be coercive, as opposed to informational. Thus, there is ample evidence to support the trial court's factual finding that defendant freely and voluntarily consented to the blood draw. Because defendant consented, he was not subjected to an unreasonable search and seizure under the Fourth Amendment.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BLEASE, J. RENNER, J.