People v. Alvarez

316 Cal. Rptr. 3d 705

The PEOPLE, Plaintiff and Respondent,

v.Francisco Andres ALVAREZ, Defendant and Appellant.

D080585

Court of Appeal, Fourth District, Division 1.

Filed December 29, 2023

APPEAL from an order of the Superior Court of San Diego County, Harry M. Elias, Judge. Reversed and remanded with directions. (Super. Ct. No. SCN385509)

Deanna L. Lopas, under appointment of the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Andrew Meatman, and Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P. J.

In Mitchell v. Wisconsin (2019) 588 U.S. —, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (Mitchell), a plurality of the United States Supreme Court held when a "driver is unconscious and therefore cannot be given a breath test … the exigent-circumstances rule almost always permits a blood test without a warrant." (Id. at p. 2531 (plur. opn. of Alito, J.).) In this appeal we consider the constitutionality of a warrantless blood draw from a person involved in a car accident where unconsciousness or unresponsiveness occurred in a hospital about 90 minutes after the incident. We conclude no exigent circumstance as defined in Mitchell or Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (Schmerber) allowed a warrantless blood draw. We reject the People’s argument that the officer’s good faith reliance on Vehicle Code¹ section 23612, subdivision (a)(5),² allowed prosecutors to use the fruits of the otherwise illegal search. Accordingly, the trial court erred when it denied the motion to suppress filed by Francisco Andres Alvarez. We therefore reverse the judgment and remand the matter with instructions to grant Alvarez’s motion to suppress and conduct further proceedings regarding Alvarez’s guilty plea.

FACTUAL AND PROCEDURAL BACKGROUND

At around 11:30 p.m. on March 25, 2018, officers arrived at the scene of a fatal ear accident. One vehicle, a silver Dodge Charger, lay upside down in the roadway just north of the intersection at Ash Street and El Norte Parkway in Escondido. Another car, a Ford Mustang, rested in a house’s front yard immediately next to the intersection.³ Officer Guy Yost spoke briefly to Alvarez who admitted to driving the silver Charger. Alvarez seemed uninjured but shaken by the collision. The officer did not detect any overt signs or symptoms that Alvarez drove while under the influence of alcohol or drugs. Nonetheless, Officer Yost administered to Alvarez the horizontal gaze nystagmus (HGN) field sobriety test.⁴ The officer noted "just a faint jerking in [Alvarez’s] eyes at the extremes." Emergency medical personnel arrived. They transported Alvarez and the sole surviving Mustang occupant, then 15-year-old Jose M., to Scripps La Jolla Hospital emergency room.

An on-scene witness told Officer Yost that prior to the accident a silver car (later identified as Alvarez’s), came up behind the witness, either tailgating or flashing its high beams, as they both drove north on Ash Street. When the roadway opened to become two lanes, Alvarez passed the witness quickly on the right.⁵ Officer Yost drew no conclusion regarding fault for this incident, and did not form an opinion whether the traffic light for Alvarez was red, yellow, or green until after completing the investigation.⁶

After completing his work at the crash site at 12:14 a.m., Officer Yost went to the hospital to speak with Alvarez and Jose M. Officer Yost arrived about 12:45 a.m., or roughly 75 minutes after the accident. In the emergency room doctors and nurses periodically attended to Alvarez. Officer Yost smelled an odor of alcohol emanating from him. Alvarez admitted to drinking a beer earlier that day. About 1:00 a.m., Officer Yost performed another field sobriety test using a preliminary alcohol screening (PAS) device.⁷

Alvarez could not, or would not, provide a breath sample sufficient for the PAS device to operate automatically and give a blood alcohol readout. Officer Yost used a PAS technique called a manual trap. This means the PAS operator presses a button on the device making it capture and test a subject’s breath sample even when that sample is insufficient to trigger the device’s automated features. Based on Officer Yost’s experience, manual traps typically yield a lower blood alcohol result than the normal, automatic method. Alvarez’s PAS results reflected a 0.037 and 0.039 blood alcohol concentration (BAC).

About five minutes after the PAS test, given the elapsed time since the accident, the officer informed Alvarez that the officer wanted to get a blood sample. At this point, Alvarez stopped responding verbally or nonverbally to the officer. Alvarez lay in the hospital bed with his eyes closed, not opening them while the officer spoke to him. Nor did Alvarez communicate further to hospital personnel. Officer Yost could not tell whether Alvarez was asleep, unconscious, or just ignoring him. Concerned that Alvarez could be moved to another part of the hospital for treatment, Officer Yost radioed for a forensic blood draw. His dispatch center informed him that the phlebotomist’s estimated arrival time would be 30 minutes later. Almost two and one-half hours after the accident, at 1:57 a.m., the phlebotomist took Alvarez’s blood. Alvarez did not react when the phlebotomist stuck the needle into his arm. The blood test revealed a 0.05 percent blood alcohol level with the presence of cocaine and THC.⁸

The People charged Alvarez with, among other crimes, two alcohol related vehicular manslaughter counts under Penal Code section 191.5, subdivision (a).⁹ On August 29, 2018, Alvarez moved to suppress the blood testing results pursuant to Penal Code section 1538.5, subdivision (a)(1).¹⁰ On November 30, 2018, the parties appeared for the suppression motion hearing. The People could find no exception allowing Officer Yost to obtain a blood sample without first securing a warrant. Consequently, the People conceded the motion.

As a result, on January 15, 2019, prosecutors filed an amended information charging Alvarez with two non-alcohol related vehicular manslaughter violations under Penal Code section 192, subdivision (c)(1)¹¹ and a reckless driving charge. On January 15, 2019, Alvarez pled not guilty to the new allegations. After a series of continuances, the court scheduled the jury trial for October 1, 2019.

[1] However, in the interim, on June 27, 2019, the United States Supreme Court delivered its opinion in Mitchell, supra, 588 U.S. —, 139 S.Ct. 2525. In a plurality decision, the court found "when police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment." (Id. at p. 2539 (plur. opn. of Alito, J.).)¹² Citing Mitchell, the People moved the trial court for reconsideration of Alvarez’s motion to suppress. The trial court granted the request.

The rescheduled suppression hearing commenced on September 20, 2019. Officer Yost testified he believed the PAS test result would support probable cause to obtain a warrant. He also said getting the warrant would have created substantial delays primarily because he was the only officer at the hospital, he did not have the proper paperwork, and other officers were still investigating the scene. At the end of the hearing’s first day the trial judge posed these questions for the attorneys to address when they reconvened: Did facts support finding probable cause existed to get a blood sample from Alvarez? Even if probable cause existed, did exigent circumstances allow taking a blood sample from Alvarez without a warrant? The court requested additional briefing from the parties, recessed the matter, and reconvened on December 5, 2019.

At the hearing’s continuation on December 5, 2019, the People recalled Officer Yost. Officer Yost expanded on his earlier testimony. Specifically, among other statements, the officer said he felt exigent circumstances existed. Given the medical activity surrounding Alvarez, and that Alvarez appeared unresponsive, by the time warrant paperwork might arrive, the officer believed hospital personnel would take Alvarez away from the trauma room for further treatment and eliminate any possibility he could obtain a blood sample. Further, the officer explained he did not believe he needed a warrant because Alvarez appeared unresponsive or unconscious triggering section 23612, subdivision (a)(5).¹³

The trial court denied Alvarez’s suppression motion finding Mitchell, supra, 588 U.S. —, 139 S.Ct. 2525 applied. The court stated, "exigent circumstances permit[ed] a blood test without a warrant." Alvarez later pled guilty but did not waive his appeal rights.

DISCUSSION

A. Standard of Review

[2–4] "On appeal from a motion to suppress evidence, all presumptions are in favor of the trial court’s factual findings, whether express or implied, where supported by substantial evidence …. " (People v. Ledesma (2003) 106 Cal.App.4th 857, 862, 131 Cal.Rptr.2d 249.) " ‘Substantial evidence’ means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined." (People v. Conner (1983) 34 Cal.3d 141, 149, 193 Cal.Rptr. 148, 666 P.2d 5.) "But while we defer to the superior court’s express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search [or seizure] on the facts so found." (People v. Woods (1999) 21 Cal.4th 668,...