Opinion
SULLIVAN, J.Defendant (real party in interest) Allan Foster Hawkins was charged by information with one count of vehicle manslaughter (Pen. Code, § 192, subd. (3)(a)) and one count of felony drunk driving (Veh. Code, § 23101). He moved pursuant to section 1538.5 of the Penal Code to suppress as evidence the results of a blood-alcohol test on the ground that they were the product of an illegal search and seizure. Defendant’s motion was granted and the People seek review by writ of mandate. (Pen. Code, § 1538.5, subd. (o).)1
The pertinent facts giving rise to the motion to suppress are as follows: On the evening of June 21, 1970, defendant, accompanied by his sister, was driving a pickup truck along Allen Road in Kern County. At the same time Robert Craig accompanied by his wife and children was driving his station wagon along Rosedale Highway, a through highway. (See Veh. Code, § 600.) Without stopping or slowing down at the stop sign, defendant drove his truck into the intersection and collided with the Craig vehicle. Defendant’s sister was killed and Mrs. Craig was seriously injured.
Officers of the California Highway Patrol arrived upon the scene within 10 minutes. They found defendant standing near the station wagon in a dazed condition, eyes bloodshot, shirt off, back and head bloody from injuries. Officer Hernandez testified that defendant’s breath smelled of alcoholic beverages and that there were three beer cans in defendant’s truck, two full and one empty. Due to defendant’s physical condition, he was not given a field sobriety test, but placed in an ambulance along with Mrs. Craig and sent to the Kern General Hospital for medical attention.
At the hospital defendant and Mrs. Craig were transferred to the emergency room. After completing their investigation at the scene of the *760accident, the two officers also proceeded to the hospital. While defendant was lying in the emergency room awaiting treatment, Officer Apsit approached defendant and asked that he consent to a blood-alcohol test for intoxication. Defendant apparently agreed and signed a written consent. A blood sample was thereupon taken in a medically approved manner; Several hours later defendant was released from the hospital. At no time was defendant placed under arrest.
The result of the blood-alcohol test showed that defendant’s blood contained 203 milligrams percent alcohol. Several weeks after the accident a complaint was filed in the Bakersfield Municipal Court charging defendant with the above-mentioned felonies. Defendant voluntarily surrendered to the authorities. At the preliminary hearing, the magistrate found that defendant had consented to the blood-alcohol test, denied his motion to suppress the results of the test and held him to answer.
Defendant renewed his motion to suppress in the superior court. (§ 1538.5, subd. (i).)2 At the special hearing his motion was submitted on the transcript of the preliminary hearing, supplemented by defendant’s testimony. The People conceded that the only ground upon which they sought to justify the seizure of defendant’s blood was his written consent.3 The trial judge found that defendant’s written consent was not free and voluntary and granted the motion to suppress.4 The People thereupon filed the instant petition for a writ of mandate. (§ 1538.5, subd. (o).)
*761The People concede, as indeed they must, that there is substantial evidence in the record to support the trial court’s findings that defendant’s written consent to the blood-alcohol test was not freely and voluntarily given. They contend, however, that the taking of a blood sample in a medically approved manner but without the consent of the subject is not violative of his right to be secure against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution where there is probable cause to arrest at the time the sample is taken, even though the taking of the sample is not pursuant to a search warrant or incident to an arrest. We disagree. Accordingly we deny the People’s petition for the writ.
It is clear that the Fourth Amendment does not bar a compulsory seizure, without a warrant, of a person’s blood for the purposes of a blood alcohol test to determine intoxication, provided that the taking of the sample is done in a medically approved manner, is incident to a lawful arrest, and is based upon the reasonable belief that the person is intoxicated. (Schmerber v. California (1966) 384 U.S. 757, 766-772 [16 L.Ed.2d 908, 917-920, 86 S.Ct. 1826]; People v. Duroncelay (1957) 48 Cal.2d 766, 771-772 [312 P.2d 690].) As previously indicated, the People claim, without any citation of authority, that such a seizure of a person’s blood is lawful even when it is not incident to a lawful arrest. They argue that the real thrust of Schmerber and Duroncelay is that intrusion into the privacy of a person’s body depends upon a clear indication of his intoxication and that his arrest is a mere formality. They point to the following language in Schmerber: “The interests in human dignity and privacy which the Fourth Amendment protects forbids any such intrusion on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” (Schmerber v. California, supra, 384 U.S. 757, 769-770 [16 L.Ed.2d 908, 919].)
Contrary to the People’s claim, Schmerber’s approval of the compulsory seizure of blood is clearly grounded on the premise that it is incidental to a lawful arrest. “In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant.” (Id. at *762p. 768 [16 L.Ed.2d at p. 918].) “While early cases suggest that there is an unrestricted ‘right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime,’ [citations] the mere fact of a lawful arrest does not end our inquiry.” (Id. at p. 769 [16 L.Ed.2d at p. 919].) “Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” (Id. at p. 771 [16 L.Ed. 2d at p. 920], italics added.) Similarly in Duroncelay, we made it perfectly clear that the seizure of the blood sample could only be justified as “incident to the lawful arrest of one who is reasonably believed to have violated section 501 of the Vehicle Code.” (People v. Duroncelay, supra, 48 Cal.2d 766, 772.)
The People favor u,s with no authority supportive of their startling proposition that in this context a lawful arrest is but a mere formality. Indeed this proposition runs directly counter to the law on search and seizure developed by the United States Supreme Court. “[T]his Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably showing probable cause,’ Agnello v. United States, 269 U.S. 20, 33, for the Constitution requires ‘that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . .’ Wong Sun v. United States, 371 U.S. 471, 481-482. ‘Over and over again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,’ United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment:—subject only to a few specifically established and well-delineated exceptions.” (Fns. omitted.) (Katz v. United States (1967) 389 U.S. 347, 356-357 [19 L.Ed.2d 576, 585, 88 S.Ct. 507].)
In Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034], the United States Supreme Court reiterated the doctrine that searches and seizures without warrants are per se unreasonable under the Fourth Amendment even if there is probable cause to search, except in rare situations, and traced the history of one of these rare situations, namely searches incident to a lawful arrest. The Supreme Court pointed out that this exception emerged in dictum in Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341] and gradually wound its way to the dignity of a holding. The legitimate extent of a search incident to a lawful *763arrest followed an unclear and apparently inconsistent path until Chimel where the court unequivocally defined the purpose and extent of searches incident to a lawful arrest. “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons the latter might seek to use in order to resist arrest or effect his escape. ... In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” (Chimel v. California, supra, 395 U.S. 752, 762-763 [23 L.Ed.2d 685, 694].)
In Schmerber, the Supreme Court unequivocally stated that even a lawful arrest would not in itself justify a seizure of blood without a warrant, unless there was in addition a “clear indication” that a blood-alcohol test will reveal intoxication. The court indicated that a more stringent test was applicable because of the great interest in protecting the human body from intrusion. In the light of the clear and consistent holdings of the high court in this area, it would indeed be incongruous to say that absent exigent circumstances an intrusion without a warrant into a person’s home is per se unreasonable even though the authorities have probable cause to believe it contains contraband or evidence of crime, and to reason at the same time from the same legal premises that such an intrusion into his physical body is constitutionally permissible merely if they have probable cause to believe it contains evidence of his intoxication.
The Supreme Court has made it abundantly clear that the burden is on the People to show an overwhelming need that would justify a search without a warrant. “The exceptions [to the requirement of a warrant] are ‘jealously and carefully drawn,’ [Jones v. United States, 357 U.S. 493, 499] and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ [McDonald v. United States, 335 U.S. 451, 456.] ‘[T]he burden is on those seeking the exemption to show the need for it.’ [United States v. Jeffers, 342 U.S. 48, 51.]” (Coolidge v. New Hampshire (1971) 403 U.S. 443, 455 [29 L.Ed.2d 564, 576, 91 S.Ct. 2022].)
As we previously stated, the People attempt to meet this burden, by claiming that arrest is merely a formality, a ritualistic incantation of words, as it were, that in no way goes to the substance of the situation. At the same time the People argue that out of a humane consideration for the condition of the injured motorist, it is normal and proper police procedure not to arrest him until after the results of the blood-alcohol test are received. *764We are at a loss to determine how a meaningless ritual of words is at the same time so great a burden that it is inhumane to inflict this ritual upon an injured person. At any rate, the burden was never inflicted in the case at bench, since defendant was never arrested.5
We find it instructive at this point to consider the legislative purpose underlying the California “implied consent” law. (Veh. Code, § 13353.)6 Although it is clear under Schmerber that a person who- has been lawfully arrested may have a blood sample forcibly removed without his consent, provided it is done in a reasonable, medically approved manner and provided further that the arresting officer had probable cause to believe the arrestee was intoxicated, nevertheless such an episode remains an unpleasant, undignified and undesirable one.
*765However, the shocking number of injuries and deaths on the highways caused by drunk drivers has compelled society to adopt extreme measures in response. By its enactment in 1966 of section 13353, the Legislature devised an additional or alternative method of compelling a person arrested for drunk driving to submit to a test for intoxication, by providing that such person will lose his automobile driver’s license for a period of six months if he refuses to submit to a test for intoxication. The effect of this legislation is to equip peace officers with an instrument of enforcement not involving physical compulsion. It is noteworthy that in so doing, the Legislature took pains to condition its use upon a lawful arrest for driving under the influence of intoxicating liquor and upon the reasonable belief of the peace officer that the arrestee was in fact so driving.
The People have not even attempted to justify the taking of a blood sample from defendant under any of the “few specifically established and well-delineated exceptions” to the “basic constitutional rule in this area that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment’ ” (Coolidge v. New Hampshire, supra, 403 U.S. 443, 454-455 [29 L.Ed.2d 564, 576], quoting Katz v. United States, supra, 389 U.S. 347, 357 [19 L.Ed.2d 576, 585]),7 other than the “incident to lawful arrest” exception discussed earlier in this opinion.
*766Since in the light of the foregoing authorities the People have failed to meet their burden of justifying the taking of a blood sample from defendant and since there is substantial evidence in the record to support the trial court’s finding that defendant did not freely and voluntarily consent to the taking of his blood, it follows that the trial court quite correctly suppressed the results of the blood-alcohol test as having been obtained by an unlawful search and seizure.
The order to show cause is discharged and the petition for a peremptory writ of mandate is denied.
Wright, C. J., Peters, J., Tobriner, J., and Mosk, J., concurred.
Hereafter, unless otherwise indicated, all section references are to the Penal Code.
Defendant also moved to dismiss the count of vehicle manslaughter on the ground that there was insufficient evidence to support a finding of gross negligence and moved in the alternative that the felony-manslaughter proceedings be reduced to a misdemeanor. The trial court denied both motions.
“Mr. Vander Noor [Prosecutor]: Your Honor, I can shorten this up considerably. I will concede that when you take a blood test you are intruding into that body and, therefore, you are seizing evidence. So, we have a search and seizure problem. . . . [Par.] I will also concede that Mr. Hawkins at no time was placed under arrest at the scene or at the hospital. Consequently, the justification for the admissibility of the blood test does not rest on the search warrant [there being none] and it does not rest on incident to lawful arrest. . . . [Par.] The basis under which we are offering this as a product of a legal search and seizure is simply that according to the evidence adduced at the preliminary hearing, this man was asked to take a blood test. He said he would and he signed a consent slip to that effect. . . . Since in a nut shell the only basis upon which the prosecution can offer this, since there was no arrest, was no search warrant, is consent. . . . [Pars.] So, I submit to the Court that in this case the pivotal decision need only be was there a free and voluntary consent. I will stipulate with counsel that there was no arrest, there was no search warrant . . . .”
The judge stated: “The defendant was in the emergency room being administered first aid from a severe accident which caused the death of his sister, as well as others. He was lying on his stomach with blood all over and had just regained consciousness. He couldn’t even read the paper because he had blood in his eyes and thought it was an authorization for treatment; the paper, of course, being the signed consent. Suffer*761ing from shock and injury, he does not remember even signing the paper or who talked to him, although he does admit seeing an officer leave the room. Under the facts adduced at the evidentiary hearing in Superior Court, this court finds it as a fact that this was not a free and voluntary consent and, therefore, the motion to suppress evidence, insofar as the results of the blood test are concerned, is hereby granted.”
The People also urge, though not very strongly, that the seizure in this case can be justified as incident to lawful “arrest,” which they equate with defendant’s voluntary appearance in the municipal court, several weeks after the seizure. The United States Supreme Court has constantly reiterated the doctrine that ‘.‘a search . . . remote in time or place from the arrest” (Preston v. United States (1964) 376 U.S. 364, 367 [11 L.Ed.2d 777, 780, 84 S.Ct. 881]) cannot be justified as incident to a lawful arrest. (Chimel v. California, supra, 395 U.S. 752.) “A search may be incident to an arrest “only if it is substantially contemporaneous with the arrest . . . ” (Vale v. Louisiana (1970) 399 U.S. 30, 33 [26 L.Ed.2d 409, 413, 90 S.Ct. 1969], The People rely upon language in People v. Duroncelay, supra, 48 Cal.2d 766 to the effect that a search, even if it precedes the arrest, may be lawfully incident thereto. However, it is clear from subsequent California cases that such a rule is clearly subject to the overriding principle that a search to be lawfully incident to an arrest must be substantially contemporaneous therewith. (People v. Henry (1967) 65 Cal.2d 842, 846 [56 Cal.Rptr. 485, 423 P.2d 557]; People v. Williams (1967) 67 Cal.2d 226, 229 [60 Cal.Rptr. 472, 430 P.2d 30].)
Section 13353, subdivision (a) provides: “(a) Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor. The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe such person was driving a motor vehicle upon a highway while under the influence of intoxicating liquor. Such person shall be told that his failure to submit to or complete such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of six months.
“The person arrested shall have the choice of whether the test shall be of his blood, breath or urine, and he shall be advised by the officer that he has such choice. If the person arrested either is incapable, or states that he is incapable, of completing any chosen test, he shall then have the choice of submitting to and completing any of the remaining tests or test, and he shall be advised by the officer that he has such choice.
“Such person shall also be advised by the officer that he does not have the right to have an attorney present before stating whether he will submit to á test, before deciding which test to take, or during administration of the test chosen.
“Any person who is dead, unconscious, or otherwise in a condition, rendering him incapable of refusal shall be deemed not to have withdrawn his consent and such tests may be administered whether or not such person is told that his failure to submit to or complete the test will result in the suspension of his privilege to operate a motor vehicle.”
Indeed it is clear that the factual situation, in the instant case does not involve the search for contraband in an automobile as in Carroll v. United States (1925) 267 U.S. 132, 153-159 [69 L.Ed. 543, 551-554, 45 S.Ct. 280] or Chambers v. Maroney (1959) 399 U.S. 42 [26 L.Ed.2d 419, 90 S.Ct. 1975]; or involve the hot pursuit of a fleeing felon as in Warden v. Hayden (1966) 387 U.S. 294, 298-300 [18 L.Ed.2d 782, 787-788, 87 S.Ct. 1642]; or the need to stop and frisk for weapons as in Terry v. Ohio (1967) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868]. Our esteemed colleague in dissent urges a theory, not presented by the People, that a warrantless, unconsented to seizure of blood not incident to an arrest may be upheld under United States Supreme Court decisions on the basis of an “emergency exception” because the alcohol dissipates rapidly from the blood thereby rapidly reducing the degree of intoxication. Schmerber itself, answers this contention. Since the intoxicated person is of necessity present when the blood is seized, there are ordinarily no exigent circumstances to prevent his arrest. Schmerber recognizes that once the suspect is arrested, a seizure incident thereto may be properly conducted without a warrant, since the rapid dissipation of the alcohol would make the delay involved in obtaining a search warrant unnecessary and unjustifiable. However, the rapid dissipation of the alcohol in the blood would in no way create an “emergency” rendering arrest unnecessary, since the person containing the alcohol is not fleeing nor otherwise unavailable.
The following cases have been brought to our attention: People v. Pack (1962) 199 Cal.App.2d 857 [19 Cal.Rptr. 186]; People v. Huber (1965) 232 Cal.App.2d 663 [43 Cal.Rptr. 65]; People v. Bustos (1966) 247 Cal.App.2d 422 [55 Cal.Rptr. 603]; McDonald v. Justice Court (1967) 249 Cal.App.2d 960 [58 Cal.Rptr. 29]; People v. Glass (1968) 266 Cal.App.2d 222 [71 Cal.Rptr. 858]. None of these cases, with the exception of Huber, were relied upon or even cited by the People. The *766People cited Huber to support their sole argument that probable cause to' arrest justified a warrantless, unconsented to seizure of blood not incident to an arrest and not to support the theory proposed by the dissent. To the extent that they are inconsistent with this opinion, the above cases are disapproved.