People v. Ascenio CA4/1

Filed 8/31/15 P. v. Ascenio CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D066806

Plaintiff and Respondent,

v. (Super. Ct. No. SCE338858)

RODRIGO ASCENCIO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Laura W.

Halgren, Judge. Affirmed.

Henry C. Coker, Public Defender, Randy Mize, Chief Deputy Public Defender,

Robert Ford and Thomas Bahr, Deputy Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and

Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

Rodrigo Ascencio pled guilty to driving with a blood-alcohol level of .08 percent

or more causing injury (Veh. Code,1 § 23153, subd. (b)) and failing to comply with

1 Subsequent unspecified statutory references are to the Vehicle Code.
duties when involved in a vehicular accident resulting in injury (§ 20001, subd. (a)). On

appeal, he challenges the trial court's denial of his suppression motion. He contends his

Fourth Amendment rights were violated by the warrantless seizure of a sample of his

blood while he was in a sleeping, unresponsive state at the hospital after the motor

vehicle collision giving rise to the charged offenses.

In Missouri v. McNeely (2013) __ U.S. __ [133 S.Ct. 1552, 1566] (McNeely), the

United States Supreme Court recently clarified that, absent an exception such as consent

or exigent circumstances, a warrant is required for a blood draw from a suspected drunk

driver. McNeely rejected the principle, which had been adopted by numerous courts, that

the natural dissipation of alcohol in the bloodstream always creates an exigency

permitting a nonconsensual warrantless blood draw in all drunk-driving cases. The court

acknowledged that the dissipation of alcohol was a relevant factor to consider on the

question of exigency, but held the determination of exigency requires a case-by-case

evaluation of the totality of circumstances. (Id. at pp. 1556, 1561.)

Responding to the government's concern about the compelling need to combat

drunk driving, the McNeely court recognized that implied consent statutes are a legally

permissible tool to obtain consensual blood draws from suspected drunk drivers.

(McNeely, supra, 133 S.Ct. at pp. 1565-1566.) Under California's implied consent statute

(§ 23612), a driver, as a condition for operating a motor vehicle (1) is deemed to have

consented to chemical testing to determine blood-alcohol concentration if lawfully

arrested for violating the laws prohibiting driving while intoxicated; (2) has an

opportunity to withdraw this implied consent upon admonishment by an officer, subject

2
to imposition of penalties including license suspension; and (3) is deemed not to have

withdrawn this implied consent if unconscious or otherwise incapable of refusing the

chemical test. After McNeely, numerous courts have evaluated the import of its analysis

on the exceptions to the warrant requirement derived from implied consent statutes and

exigency principles, and concluded that McNeely's essential directive is that the

reasonableness of a warrantless blood draw should not rest on any per se exceptions to

the warrant requirement, but rather requires an evaluation of all the circumstances in the

particular case.

Evaluating the totality of the circumstances here, we conclude the warrantless

blood draw was constitutionally permissible under consent and exigency principles.

Unlike the circumstances in McNeely, this is not a case where the defendant overtly

refused the blood draw, thereby creating clear Fourth Amendment coercion concerns, nor

is this a case where the sole basis for an exigency claim was the natural dissipation of

alcohol that occurs in every drunk-driving case. Rather, the record shows defendant did

not withdraw his statutory implied consent at the scene; he ultimately could not do so

because he fell asleep and was unresponsive; and an exigency developed at the hospital

due to a CT scan that would be performed once defendant awoke. The officer could

reasonably assess that defendant might be removed from his hospital bed for the medical

testing before the warrant was secured and the blood draw accomplished, thereby

creating the risk of a significant delay in the blood draw and undermining the evidentiary

efficacy of the testing results. Under circumstances showing an unresponsive drunk

driving suspect incapable of withdrawing statutory implied consent and an exigency apart

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from the mere natural dissipation of alcohol, the officer reasonably elected to forego the

warrant process. There was no Fourth Amendment violation arising from the warrantless

blood draw.

FACTUAL AND PROCEDURAL BACKGROUND

The Accident

At about 3:47 a.m. on March 16, 2014, Deputy Sheriff Travis Womack noticed

two vehicles (an Audi and a Honda) on the freeway that appeared to have just been in an

accident. There was smoke coming from the Honda; its air bags had deployed; the Audi

was "crunched up"; and both vehicles had extensive body damage. The Honda was

unoccupied, and a male (later identified as Chad Price) was in the driver's seat of the

Audi. Deputy Womack parked his patrol vehicle behind the Audi to create a block from

approaching vehicles, and found defendant in the bushes on the side of the road.

When Deputy Womack asked what he was doing, defendant responded, " 'I'm

drunk and I don't have a license.' " After some resistance, Deputy Womack subdued

defendant, placed him in handcuffs, and escorted him to his patrol vehicle. Deputy

Womack told defendant that he was not under arrest at that point but detained, and

defendant kept saying, " 'Take me to County already.' " By this point the paramedics had

arrived and examined defendant for injuries.

California Highway Patrol (CHP) officer Francisco Cruz arrived at the scene at

about 4:14 a.m. Officer Cruz's partner placed flares to prevent collisions from

approaching vehicles, while Officer Cruz investigated the accident, including taking

statements from defendant and Price. Price was on a gurney inside an ambulance, and he

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told Officer Cruz he was in pain and did not know what had happened. Defendant

appeared to be in some pain, but he was conscious and able to answer Officer Cruz's

questions.

Defendant acknowledged that he had been driving the Honda. Officer Cruz

assessed that defendant might be under the influence of alcohol because he smelled like

alcohol; his eyes were red and watery; and his speech was slurred. As part of his driving

under the influence investigation, Officer Cruz asked defendant a series of field sobriety

questions, which defendant answered. Defendant said he had consumed two beers, and

he had not been drinking since the accident. When Officer Cruz asked defendant to

perform various physical field sobriety tests, defendant repeatedly refused all his

requests. Officer Cruz also asked defendant if he would perform a preliminary alcohol

screening test (to measure lung air), providing him the following admonition: "I am

requesting that you take a preliminary alcohol screening test to further assist me in

determining whether you are under the influence of alcohol. You may refuse to take this

test, however this is not a required consent test, and if you are arrested you will be

required to give a blood or breath or urine sample for the purposes of determining actual

alcoholic/drug content of your blood." (Italics added.) Defendant refused the

preliminary alcohol screening test, responding, "[N]o, I understand my rights" and "Take

me to County" (apparently referring to county jail).

The paramedics decided that defendant should be transported to a hospital, and

Officer Cruz rode with defendant in the back of the ambulance. While in the ambulance,

defendant was initially awake, but then fell asleep. They arrived at the hospital at 4:34

5
a.m., and defendant remained sleeping and unresponsive the entire time Officer Cruz was

with him at the hospital.

The Blood Draw

Defendant was placed in a bed and several nurses attended to him. When Officer

Cruz asked them about defendant's status, a nurse stated defendant was going to undergo

a CT scan, but the nurse did not know what time this would occur because it depended on

defendant waking up. No one was able to communicate with defendant; he was not

answering any questions; his eyes were not open; he was not moving; and he was

snoring. Officer Cruz could not determine "any concrete time" that he would be able to

speak with defendant. At 4:43 a.m., while defendant was still asleep and unresponsive,

Officer Cruz provided him the implied consent admonishment.2 Defendant did not

answer. Officer Cruz testified that he "took [defendant's] silence as consent."3

After providing the implied consent admonishment, Officer Cruz called for a

phlebotomist under contract with the CHP to come to the hospital. The phlebotomist

made blood draws at 5:05 a.m. and 5:12 a.m., and the subsequent testing showed

defendant had a .19 blood-alcohol concentration. Defendant did not wake up during the

2 The officer's testimony does not reflect precisely when defendant was formally
arrested, but there is no dispute that he was under arrest when the implied consent
admonishment was provided.

3 Defendant maintains that Officer Cruz testified that he believed defendant "could
hear the questions [he] was asking" during the implied consent admonishment. To the
contrary, Officer Cruz's testimony reflects that he believed defendant could understand
and answer his questions at the scene, but defendant thereafter fell asleep in the
ambulance and was unresponsive.
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blood draws, and he was still sleeping and unresponsive when Officer Cruz left the

hospital sometime before 6:10 a.m.

Officer Cruz testified his investigation at the scene was brief, lasting about five or

six minutes; i.e., he contacted defendant, and "immediately after that he went and jumped

into the ambulance and went to the hospital" with defendant. Officer Cruz had been a

CHP officer for four years; he had received training on the McNeely case; he knew

telephonic warrants were authorized under the Penal Code; he had never "had to call in

for a warrant before"; and he did not try to secure a telephonic warrant at any point,

including after defendant did not respond to the implied consent admonishment.

Trial Court's Ruling

In support of his suppression motion, defendant argued that based on the totality of

the circumstances a warrant was required for the blood draw. Defense counsel stated

technological advances allowed warrants to be obtained "rather quickly"; it was common

knowledge that this was true in San Diego County; and officers were allowed to call for a

warrant on a cell phone. Further, when awake and fully conscious at the scene, defendant

had repeatedly refused multiple field sobriety tests and preliminary alcohol screening and

he was admonished about the implied consent requirement that he provide a blood

sample, and he had "expressed, clearly, his wish to not consent to all these field sobriety

tests [or] to getting blood drawn or anything of that nature." Also, defendant noted the

officer did not try to wake him up at the hospital, and maintained the Vehicle Code

statute (§ 23612, subd. (a)(5)), providing that implied consent is deemed not to be

7
withdrawn if the drunk-driving suspect was unconscious or otherwise incapable of

refusing, was inapplicable to the facts of his case.

Further, defendant asserted there were no exigent circumstances justifying the

warrantless blood draw. He contended the delay between the accident and the arrival at

the hospital was not significant, and when he fell asleep and could not respond to the

implied consent admonishment, the officer should have called in for a telephonic warrant.

Opposing the suppression motion, the prosecutor argued that under the implied

consent statute, defendant had not withdrawn his implied consent. That is, defendant was

asleep or unconscious; he was not communicating with anyone or responding; he could

not refuse and did not withdraw his consent; and his refusals at the scene did not mean he

would have refused had he been awake at the hospital.

The prosecutor further asserted the officer could reasonably believe there were

exigent circumstances under which the delay necessary to obtain a warrant threatened the

destruction of the evidence. The prosecutor stated the officer did not know when

defendant would wake up and be taken away for the CT scan and other possible medical

procedures of unknown duration, and the officer should not have to risk that defendant

might be removed for an unknown length of time before the warrant process was

completed, thereby delaying the blood draw for potentially hours and causing the loss of

evidence through the dissipation of alcohol in the blood. The prosecutor argued an

officer should not "have to take that risk, get on the phone and start a process, and then in

the middle of that lose evidence because the defendant awakens" and is taken away by

medical staff.

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 After considering the parties' arguments, the court stated that it had to decide

whether it was reasonable for the officer to determine that defendant was incapable of

making a refusal under the implied consent law, and that there were exigent

circumstances which "would call for the dissipation of . . . blood alcohol in the

defendant's blood." The trial court concluded that "on balance the officer did act

reasonably in allowing the blood draw, and not obtaining a search warrant," and

accordingly denied the suppression motion.

DISCUSSION

I. Search and Seizure Principles

The Fourth Amendment protects against unreasonable searches and seizures, and

generally requires that a warrant be issued before a search or seizure. (Schneckloth v.

Bustamonte (1973) 412 U.S. 218, 219.) However, "warrantless searches are allowed

when the circumstances make it reasonable, within the meaning of the Fourth

Amendment, to dispense with the warrant requirement." (Kentucky v. King (2011) ___

U.S. ___ [131 S.Ct. 1849, 1858].) "[T]he 'touchstone of the Fourth Amendment is

reasonableness' " and "[r]easonableness, in turn, is measured in objective terms by

examining the totality of the circumstances." (Ohio v. Robinette (1996) 519 U.S. 33, 39.)

The "objective reasonableness of a particular [search or] seizure under the Fourth

Amendment 'requires a careful balancing of the nature and quality of the intrusion on the

individual's Fourth Amendment interests against the countervailing governmental

interests at stake.' " (Plumhoff v. Rickard (2014) __ U.S. __ [134 S.Ct. 2012, 2020].)

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 The withdrawal of a blood sample constitutes a search governed by Fourth

Amendment standards. (McNeely, supra, 133 S.Ct. at p. 1558.) A blood draw requires a

physical intrusion into a person's skin and veins, and constitutes "an invasion of bodily

integrity" that "implicates an individual's 'most personal and deep-rooted expectations of

privacy.' " (Ibid.) Accordingly, even when a driver is lawfully arrested based on

probable cause of intoxication, a warrant is required for a blood draw unless the

government establishes by a preponderance of the evidence that an exception to the

warrant requirement rendered the warrantless blood draw constitutionally permissible.

(Ibid.; see People v. Rios (2011) 193 Cal.App.4th 584, 590.)

Exigent circumstances and voluntary consent are two well-recognized exceptions

to the warrant requirement that can justify a warrantless blood draw. (McNeely, supra,

133 S.Ct. at pp. 1558, 1566; see Schneckloth v. Bustamonte, supra, 412 U.S. at p. 219.)

When evaluating whether an officer could reasonably rely on an exception to the warrant

requirement, the facts are " ' "judged against an objective standard; would the facts

available to the officer at the moment of the seizure or the search 'warrant a [person] of

reasonable caution in the belief' that the action taken was appropriate?" ' " (People v.

Glick (1988) 203 Cal.App.3d 796, 801; Kentucky v. King, supra, 131 S.Ct. at p. 1859.)

A. The Exigency Exception to the Warrant Requirement

Under the exigency exception to the warrant requirement, the circumstances must

show " 'the exigencies of the situation make the needs of law enforcement so compelling

that a warrantless search is objectively reasonable under the Fourth Amendment.' "

(McNeely, supra, 133 S.Ct. at p. 1558.) For example, an exigency may arise when there

10
is a need to prevent the imminent destruction of evidence; in this circumstance "a

warrantless search is potentially reasonable because 'there is compelling need for official

action and no time to secure a warrant.' " (Id. at p. 1559.)

In Schmerber v. California (1966) 384 U.S. 757, the United States Supreme Court

evaluated the constitutionality of a warrantless withdrawal of a blood sample from a

drunk-driving suspect who had refused to consent to the test. (Id. at pp. 758-759, 770.)

The suspect had been injured and taken to the hospital for treatment; he was arrested at

the hospital while receiving treatment; on the advice of counsel he refused to consent to

the blood test; and the officer nevertheless directed a physician to withdraw the blood

sample. (Id. at pp. 758-759.) Applying the exigency exception, the Schmerber court

concluded the officer could have reasonably believed he was confronted with an

emergency in which the delay necessary to obtain a warrant threatened the destruction of

evidence, noting that the percentage of alcohol in the blood begins to diminish shortly

after drinking stops, and the officers had no time to seek out a magistrate for a warrant

during the time needed to take the injured suspect to the hospital and to investigate the

accident scene. (Id. at pp. 770-771.)

Based on Schmerber, numerous courts formulated a rule that "the natural

dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its

own to justify an exception to the warrant requirement for nonconsensual blood testing in

drunk-driving investigations." (McNeely, supra, 133 S.Ct. at p. 1558; People v. Jones

(2014) 231 Cal.App.4th 1257, 1263-1265.) McNeely rejected this interpretation of

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Schmerber, explaining the existence of an exigency "must be determined case by case

based on the totality of the circumstances." (McNeely, supra, at p. 1556.)

In McNeely, the drunk-driving suspect consented to field sobriety tests; twice

refused to provide a breath sample; was taken to a hospital for blood testing; and at the

hospital was admonished based on the state's implied consent statute that refusal of the

blood test would result in a one-year revocation of his license and could be used against

him in a future prosecution. (McNeely, supra, 133 S.Ct. at p. 1557.) The suspect refused

the blood test, but the officer nonetheless directed a technician to take a blood sample.

(Ibid.) Defendant succeeded in suppressing the evidence based on the warrantless

nonconsensual blood draw, and the United States Supreme Court affirmed. (Id. at pp.

1557-1558.)

The McNeely court rejected the state's argument that there should be a "per se rule

for blood testing in drunk-driving cases" so that "whenever an officer has probable cause

to believe an individual has been driving under the influence of alcohol, exigent

circumstances will necessarily exist because [blood-alcohol concentration] is inherently

evanescent" and hence "it is categorically reasonable for law enforcement to obtain the

blood sample without a warrant." (McNeely, supra, 133 S.Ct. at p. 1560.) Declining to

sanction a per se exigency rule, McNeely explained the natural dissipation of alcohol in

the blood is one circumstance to consider when evaluating exigency, but there may be

other circumstances showing the warrant process would not cause a significant delay in

the performance of the blood test, and when the "officers can reasonably obtain a warrant

before a blood sample can be drawn without significantly undermining the efficacy of the

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search, the Fourth Amendment mandates that they do so." (Id. at pp. 1561.) For

example, the circumstances might show one officer could take steps to secure a warrant

while another officer transports the suspect to a medical facility, or that modern

technological devices or streamlined procedures are available to permit expeditious

processing of warrant applications. (Id. at pp. 1561-1562.) McNeely concluded:

"[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency

in a specific case . . . , it does not do so categorically. Whether a warrantless blood test of

a drunk-driving suspect is reasonable must be determined case by case based on the

totality of the circumstances." (Id. at p. 1563.)

Although it reiterated the traditional totality of the circumstances test for

warrantless blood draws in drunk-driving cases based on claims of exigency, McNeely

recognized that warrants "inevitably take some time for police officers or prosecutors to

complete and for magistrate judges to review"; a significant delay in the performance of a

blood test could raise questions about the accuracy of the blood-alcohol level calculation;

and accordingly the delay caused by the warrant application process could in some cases

show exigent circumstances justifying a warrantless blood draw. (McNeely, supra, 133

S.Ct. at pp. 1562-1563.)

McNeely reasoned that officers "can make reasonable judgments about whether the

warrant process would produce unacceptable delay under the circumstances" and

"[r]eviewing courts in turn should assess those judgments ' "from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight." ' "

(McNeely, supra, 133 S.Ct. at p. 1564, fn. 7.) McNeely elaborated that an exigency may

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arise even in a " 'routine' " drunk-driving case, explaining: "[T]he fact that a particular

drunk-driving stop is 'routine' in the sense that it does not involve ' "special facts," '

. . . such as the need for the police to attend to a car accident, does not mean a warrant is

required. Other factors present in an ordinary traffic stop, such as the procedures in place

for obtaining a warrant or the availability of a magistrate judge, may affect whether the

police can obtain a warrant in an expeditious way and therefore may establish an

exigency that permits a warrantless search. The relevant factors in determining whether a

warrantless search is reasonable, including the practical problems of obtaining a warrant

within a timeframe that still preserves the opportunity to obtain reliable evidence, will no

doubt vary depending upon the circumstances in the case." (Id. at p. 1568; see People v.

Toure (2015) 232 Cal.App.4th 1096, 1104-1105 [exigency existed based on factors in

addition to natural dissipation of alcohol in blood].)4

B. The Consent Exception to the Warrant Requirement

Under the consent exception to the warrant requirement, a warrantless search may

be conducted when the totality of the circumstances show the person consented to the

search, and the consent was voluntary and not the product of express or implied coercion.

4 The trial court in the McNeely case found there were no exigent circumstances
because the officer had failed to identify any factors that would suggest he faced an
emergency or unusual delay in securing a warrant, and his testimony supported that a
prosecutor and judge were readily available to issue a warrant. (McNeely, supra, 133
S.Ct. at pp. 1567-1568.) On review before the United States Supreme Court, the
government confined its argument to the claim that there should be a per se exigency rule
in drunk-driving cases, and accordingly the high court declined to evaluate the lower
court's exigency finding or elaborate further on the factors that can establish exigency.
(Id. at p. 1568.)

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(Schneckloth v. Bustamonte, supra, 412 U.S. at p. 227.) In the context of drunk-driving

laws, California (along with all the other states) has enacted an implied consent statute

that places a driver lawfully arrested for drunk driving on notice that he or she has

consented to a chemical test to determine blood-alcohol concentration. (§ 23612; see

McNeely, supra, 133 S.Ct. at p. 1566.)

California's Implied Consent Statute

Section 23612 states: "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 a driving

while intoxicated offense. (§ 23612, subd. (a)(1)(A), italics added.) The statute requires

the officer to tell the person that the failure to submit to the chemical test will result in

various penalties including a fine, suspension of the driving privilege, and (in some

cases) mandatory incarceration; the person does not have the right to have an attorney

present before stating whether he or she will submit to the test; and a refusal may be used

against the person in a court of law. (§ 23612, subds. (a)(1)(A), (D), (a)(4).)5 Further,

5 These section 23612 provisions state:
"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 [the driving under the influence statutes] Section 23140, 23152,
or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of
subdivision (d) [providing for a urine test] applies." (§ 23612, subd. (a)(1)(A), italics
added.)
"The person shall be told that his or her failure to submit to, or the failure to
complete, the required chemical testing will result in a fine, mandatory imprisonment if
the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of
15
addressing the situation when the person is unable to exercise the right to withdraw the

implied consent, the statute states: "A person who is unconscious or otherwise in a

condition rendering him or her incapable of refusal is deemed not to have withdrawn his

or her consent and a test or tests may be administered whether or not the person is told

that his or her failure to submit to, or the noncompletion of, the test or tests will result in

the suspension or revocation of his or her privilege to operate a motor vehicle . . . ."

(§ 23612, subd. (a)(5), italics added.)

The implied consent statute also distinguishes between testing at the scene for

purposes of investigating whether the driver is intoxicated, and testing for purposes of

evidence gathering once the driver is lawfully arrested for drunk driving. Regarding

investigatory testing, section 23612, subdivision (h) states that a preliminary alcohol

screening test based on a breath sample that is used to establish reasonable cause that the

person was driving under the influence "is a field sobriety test and may be used by an

officer as a further investigative tool." Section 23612, subdivision (i) sets forth the

advisements the officer must provide concerning the preliminary alcohol screening test,

including that the officer is requesting the screening to assist in determining if the person

is under the influence; the person has the right to refuse the screening test; and the

the person's privilege to operate a motor vehicle for a period of one year [or more] . . . ."
(§ 23612, subd. (a)(1)(D), italics added.)
"The officer shall also advise the person that he or she does not have the right to
have an attorney present before stating whether he or she will submit to a test or tests,
before deciding which test or tests to take, or during administration of the test or tests
chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be
used against him or her in a court of law." (§ 23612, subd. (a)(4), italics added.)

16
obligation to submit to a chemical test as required by the implied consent statute is not

satisfied by submitting to the preliminary screening test.6 (See People v. Wilson (2003)

114 Cal.App.4th 953, 957-960.)

In cases decided before McNeely, the courts recognized that drunk-driving implied

consent statutes created voluntary consent for Fourth Amendment purposes, reasoning

that under the law the motorist has "already given his implied consent to evidentiary

testing by driving on [a] road." (State v. Diaz (Idaho 2007) 160 P.3d 739, 742, italics

added.) As one court explained: "In addition to . . . exigent circumstances . . . , the

statutorily created implied consent of the motorist permits the warrantless search of the

motorist's breath or blood. [Citations.] . . . [A]nyone who exercises the privilege of

operating a motor vehicle in this state has consented in advance to submit to a breath

alcohol test." (State v. Humphreys (Tenn. 2001) 70 S.W.3d 752, 761, italics added.)

Another court elaborated: "The central feature of the Implied Consent Law is that

persons who avail themselves of the privilege of driving on the state's public streets and

6 Section 23612, subdivisions (h) and (i) states:
"(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 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." (Italics added.)
17
highways are deemed to have consented to a chemical analysis of their blood alcohol

level or drug content. [Citations.] This 'implied consent' allows law enforcement officers

to obtain blood in circumstances in which a warrant or actual consent may otherwise be

required. 'Therefore, . . . obtaining blood from an arrestee on probable cause without a

warrant and without actual consent does not offend the constitutional guarantees

of . . . freedom from unreasonable search and seizure . . . .' " (State v. Smith (Mo.Ct.App.

2003) 134 S.W.3d 35, 39, italics added; see People v. Sugarman (2002) 96 Cal.App.4th

210, 214 [California drivers impliedly consent to the chemical testing of their blood if

they are arrested for violating driving under the influence laws].)

Post-McNeely Evaluation of Implied Consent Statutes

In McNeely, the United States Supreme Court gave a nod of approval to implied

consent statutes when responding to the contention that the government's compelling

interest in combating drunk driving required access to prompt blood testing procedures.

(McNeely, supra, 133 S.Ct. at pp. 1565-1566.) McNeely stated, ". . . States have a broad

range of legal tools to enforce their drunk-driving laws and to secure [blood-alcohol

concentration] evidence without undertaking warrantless nonconsensual blood draws.

For example, all 50 States have adopted implied consent laws that require motorists, as a

condition of operating a motor vehicle within the State, to consent to [blood-alcohol

concentration] testing if they are arrested or otherwise detained on suspicion of a drunk-

driving offense. [Citation.] Such laws impose significant consequences when a motorist

withdraws consent; typically the motorist's driver's license is immediately suspended or

revoked, and most States allow the motorist's refusal to take a [blood-alcohol

18
concentration] test to be used as evidence against him in a subsequent criminal

prosecution." (Id. at p. 1566, italics added.)

Subsequent to McNeely, numerous courts have scrutinized the application of their

state's implied consent statutes to determine whether a warrantless blood draw comported

with the standards and principles enunciated in McNeely. In People v. Harris (2015) 234

Cal.App.4th 671, the defendant provided actual consent to the blood test after he was

admonished under the implied consent statute that refusal would result in license

suspension and could be used against him, and the court found his consent was voluntary

notwithstanding the imposition of a penalty should he refuse the test. (Id. at pp. 678, 682,

685, 687.) The Harris court reasoned that the "fact that a motorist is told he will face

serious consequences if he refuses to submit to a blood test does not, in itself, mean that

his submission is coerced," and concluded that under the totality of the circumstances the

defendant freely and voluntarily agreed to submit to the blood draw. (Id. at pp. 682,

685.) That is, even though the defendant was told he would incur a penalty if he refused

to take the test, he was still given a choice to consent or refuse, and the penalty did not

rise to the level of coerciveness so as to render the consent constitutionally involuntary.

(Id. at pp. 682, 687, 690-692; accord State v. Brooks (Minn. 2013) 838 N.W.2d 563, 569-

570.) Using similar reasoning, another court stated: "[I]t is difficult to see why the

disclosure of accurate information about a particular penalty that may be imposed—if it

is permissible for the state to impose that penalty—could be constitutionally coercive.

Rather, advising a defendant of the lawful consequences that may flow from his or her

decision to engage in certain behavior ensures that that defendant makes an informed

19
choice whether to engage in that behavior or not. . . . Of course, accurately advising a

defendant of a lawful penalty that could be imposed may well play a role in the

defendant's decision to engage in the particular behavior, but that does not mean that the

defendant's decision was 'involuntary.' " (State v. Moore (Or. 2013) 318 P.3d 1133, 1138,

italics added.)

The courts have recognized that the core principle under McNeely is that the states

may not establish per se exceptions to the warrant requirement for blood draws, and that

each case—including those involving use of implied consent statutes—must be evaluated

for Fourth Amendment constitutional reasonableness under the totality of circumstances.

(See, e.g., State v. Wulff (Idaho 2014) 337 P.3d 575, 580-582 [implied consent statute

created unconstitutional per se exception to warrant requirement when interpreted not to

recognize driver's right to revoke statutory implied consent]; accord Byars v. Nevada

(Nev. 2014) 336 P.3d 939, 945-947; Aviles v. State (Tex. App. 2014) 443 S.W.3d 291,

292-294 [implied consent statute created improper per se exception to warrant

requirement by requiring officer to order blood test over defendant's refusal based on

prior driving while intoxicated convictions]; Flonnory v. State (Del. 2015) 109 A.3d

1060, 1065 [statutory implied consent does not automatically dispense with warrant

requirement; totality of circumstances must be examined to determine voluntary consent];

State v. Halseth (Idaho 2014) 339 P.3d 368, 371 [implied consent statute does not alone

justify warrantless blood draw from driver who refuses to consent; "[i]nherent in the

requirement that consent be voluntary is the right of the person to withdraw that

consent"]; see also People v. Harris, supra, 234 Cal.App.4th at p. 689 ["Because

20
submission to a blood test is not coerced merely because it is made after advisement

under the implied consent law, we must determine whether defendant's submission in this

case was freely and voluntarily given under the normal totality of the circumstances

analysis."].)

II. Analysis

On appeal from a ruling on a suppression motion, we defer to the trial court's

express and implied factual findings if they are supported by substantial evidence, and we

exercise our independent judgment in determining whether, on the facts so found, the

search and seizure was reasonable under the Fourth Amendment. (People v. Toure,

supra, 232 Cal.App.4th at p. 1103.)

Applying the standard set forth in McNeely, the question before us is whether

under the totality of the circumstances Officer Cruz could reasonably determine the

warrantless blood draw was permissible based on consent or exigent circumstances.

Initially, we note that it is apparent from McNeely that Officer Cruz was not required to

immediately commence the warrant process for a blood draw upon his arrival at the scene

and encounter with a suspected drunk driver. It was proper for him to first carry out the

necessary law enforcement duties related to a motor vehicle collision, including

observing the physical evidence at the scene, investigating for indicia of intoxication,

deciding whether defendant should be arrested, and allowing the paramedics to determine

whether defendant needed medical attention at a hospital.

Further, given McNeely's recognition of the propriety of implied consent statutes

when balancing the state's need for prompt blood draws against a driver's right to be free

21
from unreasonable intrusions, Officer Cruz was entitled to consider the existence of

statutory implied consent for postarrest testing and was not required to commence the

warrant process until he had the opportunity to determine whether defendant wished to

revoke his implied consent. Also, there is nothing in McNeely that precluded Officer

Cruz from considering, along with all the other circumstances, the fact that defendant had

been rendered incapable of withdrawing statutory implied consent when evaluating

whether a warrantless blood draw was appropriate.

With these principles in mind, we conclude defendant's refusals at the scene did

not constitute a refusal of all further testing, including a postarrest blood draw, and hence

Officer Cruz's duty to seek a warrant was not triggered at this juncture. Further, unlike

the circumstances in McNeely, defendant never overtly refused the blood draw; he

ultimately was incapable of doing so because he was asleep and unresponsive; the

planned CT scan created a risk that defendant would become unavailable for a blood

draw for an undetermined amount of time; and this latter circumstance created an

exigency beyond the natural dissipation of alcohol that occurs in every drunk-driving

case. Under the totality of the circumstances, Officer Cruz could reasonably determine it

was appropriate to perform a warrantless blood draw because defendant's statutory

implied consent was intact and there was an exigency created by the pending CT scan.

Refusals at the Scene

Defendant contends his refusals of testing at the scene necessarily meant he was

telling Officer Cruz he would refuse any and all subsequent test requests, so as to trigger

Officer Cruz's obligation to seek a warrant for a blood draw at this juncture absent

22
exigent circumstances. He posits Officer Cruz "could have initiated a telephonic warrant

while accompanying [him] in the ambulance." We are not persuaded.

At the scene of the accident, Officer Cruz asked defendant to consent to the

physical field sobriety tests and the preliminary alcohol screening, and when inquiring

about the latter provided defendant a standard admonishment stating that he could refuse

to submit to the preliminary alcohol screening test, but if he was arrested he would be

required to provide a blood, breath or urine sample. Thus, defendant was asked at the

scene only whether he would consent to the physical sobriety testing and preliminary

screening, whereas he was affirmatively told the postarrest testing was of a mandatory

nature. Because defendant would have understood that he had a choice during the

investigation at the scene, whereas his obligations were entirely different after his arrest,

Officer Cruz could reasonably conclude his refusal at the scene did not convey a refusal

to postarrest testing.

Further, defendant was not admonished at the scene about the penalties that would

apply in the event he refused postarrest testing, including a fine, suspension of the driving

privilege, and mandatory incarceration upon conviction. If he had stayed awake, he

would have been told that these consequences did apply if he refused the postarrest

testing at the hospital. These consequences, although not constitutionally coercive, are

significant and could well have swayed defendant to consent to the testing at the hospital

rather than incur the penalties. Indeed, the very purpose of these consequences is to

encourage a suspect to voluntarily consent in lieu of incurring the penalties. (Hughey v.

Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757.) In contrast, when faced

23
with the choice of undergoing the testing at the scene, defendant may have readily

declined consent because there were no penalties associated with this refusal. Under

these circumstances, Officer Cruz could reasonably view defendant's refusals at the scene

as limited to the tests then under consideration and as not meaning defendant would

necessarily refuse the blood draw upon transport to a medical facility and admonishment

of the consequences.

Officer's Decision To Dispense with the Warrant Process

Once defendant fell asleep and remained unresponsive at the hospital, Officer

Cruz could reasonably determine he was no longer capable of withdrawing his statutory

implied consent. Further, once Officer Cruz was apprised of the planned CT scan, he

could reasonably decide that it was appropriate to order the blood draw without taking

time to secure a warrant.

Defendant suggests Officer Cruz should have attempted to wake him, or sought

the assistance of medical personnel to do this, so that Officer Cruz could have

meaningfully determined whether he wanted to withdraw his implied consent. Officer

Cruz testified no one could communicate with defendant, and it is apparent from the

record that defendant was entirely unresponsive. Under these circumstances, Officer

Cruz could not reasonably be expected to use, or request that medical personnel use,

physical contact to try to awaken defendant, particularly given the possibility that he had

sustained internal injuries from the car collision.

Evaluating the reasonableness of the warrantless intrusion here, Officer Cruz

could reasonably rely on the fact that defendant's implied consent was intact because he

24
was not capable of responding one way or the other regarding the blood draw; thus, the

officer was not faced with a suspect who had overtly refused the test. Further, Officer

Cruz could reasonably assess that defendant might wake up at any time and be removed

for the CT scan, and defendant would then become unavailable for a blood draw for an

undetermined amount of time. When Officer Cruz provided the implied consent

admonishment at 4:43 a.m., almost one hour had already passed since Deputy Womack

first discovered the accident at 3:47 a.m. Officer Cruz had no means of evaluating how

long defendant would remain in the bed and available for a blood draw, or how long he

would be gone once taken for the CT scan. As recognized in McNeely, notwithstanding

the advancement in technology and streamlining of warrant procedures, a warrant request

is not an instantaneous process and it necessarily takes some time to submit the request

and obtain approval for the warrant. Nor could Officer Cruz reasonably be expected to

seek out the hospital personnel in charge of defendant's treatment for purposes of trying

to delay the CT scan in the event defendant woke up before the warrant was secured and

the blood draw accomplished.7

7 Defendant argues the trial court erred in overruling his hearsay objection to
Officer Cruz's testimony that a nurse told him about the planned CT scan. The court
properly admitted the testimony as nonhearsay because the relevant matter under
consideration was the effect of the statement on Officer Cruz (whether he could
reasonably assess that he should forego the warrant process and order the blood draw due
to the planned CT scan), rather than the truth of whether the medical staff actually
intended to take defendant for a CT scan. (See People v. Livingston (2012) 53 Cal.4th
1145, 1162 [statement offered to prove effect on hearer is not hearsay because " ' "it is the
hearer's reaction to the statement that is the relevant fact sought to be proved, not the
truth of the matter asserted in the statement" ' "].)
Defendant also contends the court erred by failing to admit a CHP video of
defendant with Officer Cruz at the scene. The court apparently watched the video but did
25
 Given the uncertainty about the timing and duration of defendant's removal for the

CT scan that could interfere with the blood draw, Officer Cruz reasonably summoned the

phlebotomist and directed him to take the blood sample without taking time to obtain a

warrant. Officer Cruz could reasonably conclude that if he started the warrant process

and waited for approval of the warrant request, he risked losing defendant's availability if

defendant woke and was transported away for a CT scan. Further, he risked the passage

of an unknown amount of additional time while defendant was removed for the medical

testing, which could significantly compromise the efficacy of the blood-alcohol evidence

due to the continued dissipation of the alcohol in defendant's blood.

Also, there are no circumstances suggesting that Officer Cruz should have

ascertained the need for a warrant and secured it at an earlier point during the

performance of his duties. Officer Cruz arrived at the scene at 4:14 a.m.; 20 minutes later

(at 4:34 a.m.) he was at the hospital with defendant where he was told defendant would

undergo a CT scan when he woke; and 10 minutes after his arrival at the hospital (at 4:43

a.m.) he provided the implied consent admonishment. It would not be reasonable to

expect Officer Cruz to interrupt the performance of his investigatory duties for a serious

accident during the short time he was at the scene to inquire whether defendant wanted to

revoke his implied consent, nor could he reasonably be expected to interject himself into

the paramedic arena to make this inquiry during the short ride in the ambulance to the

hospital. Officer Cruz had no way of knowing that defendant would fall asleep in the

not admit it because defendant had not provided a transcript and the video was
cumulative to the officer's testimony describing defendant's refusals. Defendant has not
shown prejudice from this ruling even assuming there was error.
26
ambulance and remain asleep and unresponsive for a prolonged period of time. Thus, he

cannot be faulted for failing to provide the implied consent admonishment before

defendant fell asleep and became unresponsive. Moreover, once at the hospital, the

exigency concerning the CT scan quickly arose, and Officer Cruz reasonably elected to

go forward with a blood draw without further delay.

Defendant argues there was no exigency because the blood draw occurred about

one hour after the accident, and the Vehicle Code provides for a "three hour presumption

that a sample is presumed valid under the law." In support, he cites section 23152,

subdivision (b) which states there is a rebuttable presumption that a defendant had a

blood-alcohol level of .08 or more at the time of driving if he measured at this level in a

chemical test performed within three hours after the driving. This statutory provision

does not defeat the exigency showing. First, Officer Cruz had no way of knowing

whether the blood draw could be accomplished within three hours of the driving if

defendant was removed for the CT scan before the warrant process and blood draw could

be completed. Second, the statutory provision does not ensure that a blood draw within a

three-hour timeframe will produce effective blood-alcohol level evidence, nor does it

ensure that a driver who has a .08 or higher blood-alcohol level at the time of driving will

necessarily measure at this level within three hours of driving so as to trigger the

presumption.

In People v. Thompson (2006) 38 Cal.4th 811, the court rejected the same claim

made by defendant concerning this statutory provision, explaining, "Defendant contends

that no exigency existed because there is a rebuttable presumption that a driver had a

27
blood-alcohol level of 0.08 percent or more at the time of driving if the person had a

blood-alcohol level of 0.08 percent or more in a chemical test performed 'within three

hours after the driving.'. . . That the jury may, but is not required to, conclude that

defendant's blood-alcohol level was in excess of legal limits based on a test taken within

three hours of the driving does not eviscerate the People's interest in securing a blood test

as soon as possible." (Id. at p. 826.)

Finally, defendant asserts the exigency arising from the planned CT scan cannot

properly be considered because Officer Cruz did not expressly indicate that he ordered

the blood draw due to exigencies. The contention is unavailing. Officer Cruz's testimony

that he asked the medical staff about defendant's status and was told about the anticipated

CT scan supports an inference that he was concerned about whether he would be able to

coordinate the blood draw with whatever measures were going to be taken to address

defendant's medical needs. In any event, Fourth Amendment constitutional

reasonableness turns on an evaluation of the totality of the circumstances under an

objective standard, and it is not controlled by an officer's subjective motivations.

(Kentucky v. King, supra, 131 S.Ct. at p. 1859.)

Considering the totality of circumstances, Officer Cruz could reasonably

determine that it was appropriate to perform a warrantless blood draw. Because

defendant did not withdraw his statutory implied consent at the scene and he

subsequently became incapable of withdrawing that consent, this is not a case where the

blood draw was accomplished over a defendant's overt refusal. Further, the pending CT

scan created an exigency apart from the mere natural dissipation of alcohol in that

28
defendant could become unavailable for a blood draw for an undetermined amount of

time, thereby significantly impacting the efficacy of the blood-alcohol evidence. The

trial court did not err in denying the suppression motion based on the warrantless blood

draw.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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