after his car crossed over a double yellow line and collided head-on
with [114 Cal.App.4th 956] another vehicle. Both the driver of the
other car and her passenger suffered severe injuries as a result of
the accident. Defendant was charged by information with driving under
the influence causing bodily injury (Veh. Code, § 23153, subd. (a) fn.
1 ; count 1), and driving with a 0.08 percent blood-alcohol level
causing injury (§ 23153, subd. (b); count 2). The information also
alleged that defendant caused bodily injury to more that one victim (§
23558), and that defendant personally inflicted great bodily injury on
both victims (Pen. Code, § 12022.7, subd. (a)). Finally, the
information alleged that defendant had suffered two prior strike
convictions (Pen. Code, § 667, subd. (a)(1)), and two prior serious
felony convictions (Pen. Code, § 667.5, subd. (b)).
Prior to trial, defendant made a motion to suppress the results of a
blood test taken after his arrest. The testimony given at the
suppression hearing provides the following factual history. Officer
Jerry Chu arrived on the scene of the accident shortly after it
occurred. Based on his initial observations that defendant's eyes were
quite red, watery and bloodshot, Chu believed that defendant was
intoxicated. Because of defendant's injuries, however, he was
transported to the hospital before Chu could conduct a field sobriety
test.
At the hospital, Chu conducted a nystagmus test whereby defendant was
asked to follow Chu's finger as it was moved back and forth in front
of his face. Defendant's inability to track Chu's finger indicated
that he was intoxicated. Chu also requested that defendant submit to a
PAS test and advised defendant that the test was voluntary and would
not satisfy his obligation to submit to a subsequent BAL test if he
were arrested. The PAS test showed a BAL of 0.09 percent. Based on his
observations and the test results, Chu determined that defendant was
under the influence of alcohol and arrested defendant.
After placing defendant under arrest, Chu advised defendant that he
was required to provide a blood sample. Although defendant maintained
that he was not consenting to the test, he permitted hospital staff to
draw the blood sample. The blood was tested and the toxicologist
determined that it contained a 0.12 percent BAL.
Based on this testimony, defendant argued that the results of the
blood test should be suppressed on the ground that they were the
product of an illegal warrantless search because any exigency that
might have justified the administration of the blood test was
eliminated by the prior administration of the PAS test. The trial
court denied defendant's motion, finding that the officer acted
reasonably in requiring the postarrest blood test. [114 Cal.App.4th
957]
After a three-day trial, the jury convicted defendant on both counts
contained in the information and found true the great bodily injury
and multiple-victim allegations. Thereafter, the trial court found
true the prior conviction allegations. Defendant was sentenced to 22
years in state prison. Defendant filed a timely notice of appeal.
Discussion
Defendant contends that his Fourth Amendment rights were violated by
the taking of his blood after he voluntarily submitted to a PAS breath
test. He acknowledges that prior case law and Vehicle Code section
23612, subdivisions (h) and (i), permit an officer to administer both
a PAS test to help determine whether defendant is intoxicated and a
postarrest blood, breath, or urine test to confirm the defendant's
BAL. Nonetheless, he argues that the recent decision in People v.
Williams (2002) 28 Cal.4th 408 [121 Cal. Rptr. 2d 854, 49 P.3d 203],
taken together with People v. Fiscalini (1991) 228 Cal. App. 3d 1639
[279 Cal. Rptr. 682], eliminated any justification for the
nonconsensual taking of a blood sample following the administration of
a PAS test.
[1] We review the trial court's denial of defendant's motion to
suppress by deferring to factual findings by the trial court that are
supported by substantial evidence. [2] We independently review,
however, whether the search and seizure was reasonable under the
United States Constitution. ( People v. Leyba (1981) 29 Cal.3d 591 ,
596-597 [174 Cal. Rptr. 867, 629 P.2d 961]; People v. Stanley (1999)
72 Cal.App.4th 1547 , 1551 [86 Cal. Rptr. 2d 89].)
Section 23612, subdivision (a)(1)(A), 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 or breath for the purpose of determining
the alcoholic content of his or her blood, if lawfully arrested for an
offense allegedly committed in violation of Section 23140, 23152, or
23153. If a blood or breath test, or both, are unavailable, then
paragraph (2) of subdivision (d) [urine test] applies." Section 23612
provides further, "(h) A preliminary alcohol screening test that
indicates the presence or concentration of alcohol based on a breath
sample in order to establish reasonable cause to believe the person
was driving a vehicle in violation of Section 23140, 23152, or 23153
is a field sobriety test and may be used by an officer as a further
investigative tool. [¶] (i) If the officer decides to use a
preliminary alcohol screening test, the officer shall advise the
person that he or she is requesting that person to take a preliminary
alcohol screening test to assist the officer in determining if that
person is under the influence of alcohol or drugs, or a combination of
alcohol and drugs. The person's obligation to submit to a blood,
breath, or [114 Cal.App.4th 958] urine test, as required by this
section, for the purpose of determining the alcohol or drug content of
that person's blood, is not satisfied by the person submitting to a
preliminary alcohol screening test. The officer shall advise the
person of that fact and of the person's right to refuse to take the
preliminary alcohol screening test." Section 23612 has been upheld
against constitutional challenge on the ground that the warrantless
taking of blood (or breath or urine) to prevent the destruction of
evidence is reasonable under the Fourth Amendment. ( Schmerber v.
California (1966) 384 U.S. 757 [16 L. Ed. 2d 908, 86 S. Ct. 1826].)
In People v. Bury (1996) 41 Cal.App.4th 1194 [49 Cal. Rptr. 2d 107],
the court held that PAS test results are admissible to prove a
defendant's guilt if the proper foundation is laid. The court also
rejected the argument that a defendant who submits to a PAS test has
satisfied his obligations under section 23612, subdivision (a)(1)(A).
The court explained that former section 23157, subdivision (h), was
enacted in part "to require police to advise a suspected drunk driver
that the PAS test does not satisfy the chemical testing requirement
under the implied consent law. [Citation] ... The express exemption of
PAS devices from the implied consent law was necessary to correct the
problem ' "that occurs when a DUI suspect submits to a pre-arrest
Alco-Sensor test but subsequently refuses to submit to a post-arrest
blood, breath or urine test as required under section 23157 of the
Vehicle Code. At trial, these defendants typically argue that they
satisfied the implied consent law by submitting to the Alco-Sensor
test. [¶] Apparently, most judges have agreed with this argument and
hence do not allow the jury to be instructed that the defendant
refused to give a chemical test as required by the implied consent
law. If the Alco-Sensor results are not admissible at trial, which
seems to be occurring in most counties due to the lack of foundation
... the district attorney is left to prosecute the case without an
admissible chemical test and without a refusal instruction. Needless
to say, a case without a post-arrest alcohol screening result or a
refusal instruction is almost impossible to win." ' " ( People v.
Bury, supra, at p. 1205.) The court also stated, "The statute requires
police to obtain a driver's consent to PAS testing, along with
advising the driver that a PAS test is not a substitute for chemical
testing under the implied consent law. If this advisement is properly
given, a suspect who voluntarily submits to a PAS test cannot
reasonably believe that his submission to further chemical testing is
optional. Where, as here, the driver voluntarily takes a PAS test but
later wrongfully refuses to take a chemical test under the implied
consent law, he should not be able to profit therefrom by successfully
challenging the admission of the PAS evidence." ( Id. at p. 1206.)
Thus, the PAS test results are admissible to prove a defendant's guilt
if the proper foundation is laid, but the test does not satisfy
defendant's obligation under the section 23612 to submit to a
subsequent blood, urine or breath test after being arrested for drunk
driving. [114 Cal.App.4th 959]
Contrary to the defendant's assertion, nothing in People v. Williams,
supra , 28 Cal.4th 408 , or People v. Fiscalini , supra , 228 Cal.
App. 3d 1639, conflicts with or alters this rule of law. In Williams ,
the court reiterated, and perhaps clarified, the foundational
requirements for admitting PAS test results into evidence that were
applied in Bury . The court held that the results of a PAS test are
admissible even if the tests were not performed in compliance with
Department of Health Services regulations. The court held that the
foundational requirements for the admission of PAS test results may be
demonstrated either by showing compliance with the regulations or by
showing that (1) the equipment was properly functioning, (2) the test
was properly administered, and (3) the test was administered by a
qualified operator. (28 Cal.4th at p. 417.) Williams did not address
section 23612, subdivision (h) or (i).
[3] In Fiscalini , the court held that the implied consent law permits
the arresting officer to conduct only one of the alternate tests
provided by the statute based upon the suspect's choice. ( Fiscalini,
supra , 228 Cal. App. 3d at pp. 1644-1645.) The court reasoned that
once a defendant takes a urine test, the officer may not forcibly draw
blood without providing some additional justification for the
warrantless search, and that having successfully completed a urine
test, there is no longer an exigency to justify a second test. ( Id .
at p. 1645.) Fiscalini is distinguishable from the present case,
however, because the PAS test and the postarrest BAL blood test are
not mutually exclusive alternatives under the statute. To the
contrary, section 23612 specifically provides for the use of both
tests.
Defendant raises a novel question about the continued validity of
section 23612, subdivisions (h) and (i), which is not answered
directly by the authority cited above. Defendant suggests that since
the results of his PAS test were admissible under Williams and Bury ,
the provisions of section 23612 which permit the arresting officer to
take a subsequent BAL test are unconstitutional, because an additional
test is not necessary to preserve the blood-alcohol evidence.
[4] This argument is premised, however, on the assumption that the PAS
test is the scientific equivalent of a postarrest blood, breath or
urine test. Nothing in Williams compels the conclusion that the PAS
test is the functional equivalent of the mandatory BAL test under
section 23612, subdivision (a). Williams merely establishes the
requirements for receiving the PAS test in evidence. The Legislature,
however, has concluded that significant differences exist between the
two types of tests, as demonstrated by their separate treatment in the
statute. (§ 23612, subds. (h) & (i); see also Legis. Counsel's Dig.,
Sen. Bill No. 602 (1991-1992 Reg. Sess.), Stats. 1992, ch. 1242, pp.
3-4 [amending former section 23517 to permit use of consensual PAS
test, "which indicates the presence or concentration of alcohol based
[114 Cal.App.4th 960] on a breath sample in order to establish
reasonable cause, prior to arrest"]; Coniglio v. Department of Motor
Vehicles (1995) 39 Cal.App.4th 666 , 676 [46 Cal. Rptr. 2d 123],
citing Assem. Com. on Public Safety, Analysis of Sen. Bill No. 689
(1993-1994 Reg. Sess.) July 13, 1993 [legislative history of
amendments to "zero tolerance law" (§ 23137) demonstrates that
"Legislature considered arguments regarding the reliability of the PAS
test" and "reveals a recognition of possible foundational problems
associated with the PAS test"]; 59 Fed.Reg. 39382-02 (Aug. 2, 1994)
[differentiating between "evidential breath testing devices," which
"measure the alcohol content of deep lung breath samples with
sufficient accuracy for evidential purposes," and "alcohol-screening
devices," which are primarily used to detect the presence of alcohol
in a person's breath or bodily fluids]; 72 Ops.Cal.Atty.Gen 226
(1989).) [5] The Legislature may well have found that the results of
the PAS breath test, normally administered by a police officer in the
field, are less accurate and reliable than the chemical tests
administered under more controlled circumstances and likely with more
precise equipment. The immediate purpose of the implied consent law
"is to obtain the best evidence of blood alcohol content at the time
of the arrest of a person who is reasonably believed to be driving
while intoxicated." ( People v. Ryan (1981) 116 Cal. App. 3d 168, 182
[171 Cal. Rptr. 854], italics added.) In the absence of any evidence
to the contrary, we must accept the Legislature's implicit finding
that the tests are not equivalent, and therefore that despite the
taking of the PAS test, it remains important to obtain the more
reliable results of the chemical test before the evidence becomes
unavailable with the passage of time. ( People v. Ireland (1995) 33
Cal.App.4th 680 , 693 [39 Cal. Rptr. 2d 870] [" 'where scientific
opinions conflict on a particular point, the Legislature is free to
adopt the opinion it chooses, and the court will not substitute its
judgment for that of the Legislature' "].) "[T]he exigency created by
the evanescent nature of blood alcohol and the danger that important
evidence would disappear" is sufficient to satisfy Fourth Amendment
standards. ( People v. Trotman (1989) 214 Cal. App. 3d 430, 436 [262
Cal. Rptr. 640].) fn. 2
Disposition
The judgment is affirmed.
McGuiness, P. J., and Parrilli, J., concurred.
Appellant's petition for review by the Supreme Court was denied March 17, 2004.
FN 1. All statutory references are to the Vehicle Code unless otherwise noted.
FN 2. In light of this conclusion, we do not reach the Attorney
General's alternative argument that the blood test was justified here
by defendant's attempt to obstruct the breath test. (See People v.
Sugarman (2002) 96 Cal.App.4th 210 , 214-216 [116 Cal. Rptr. 2d 689].)
Although there was evidence that Officer Chu tried on three occasions
to obtain a proper breath sample, and that defendant interfered with
the results by failing to seal his lips around the tube, this evidence
was presented at trial and was not before the trial court when it
denied defendant's motion to suppress.
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