This cause comes before us, upon certification from the appellate department of the superior court, solely because the dicta of People v. Fite (1968) 267 Cal.App.2d 685 [73 Cal.Rptr. 666], repeated in People v. Wren (1969) 271 Cal.App.2d 788, 791-792 [76 Cal.Rptr. 673], was that the taking of blood samples was not inhibited by the Fourth Amendment, “in the absence of force and violence.” This was confusing logically because every such sampling requires a minimal force, and when resisted, requires even more. This was an inaccurate paraphrase of the constitutional requirement, which is, that the “seizure” must be reasonable, under the circumstances. In Schmerber v. California, 384 U.S. 757, 760, footnote 4 [16 L.Ed.2d 908, 913, 86 S.Ct. 1826], the court said: “We ‘cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest.’ Breithaupt v. Abram, 352 U.S. at 441 [1 L.Ed.2d at 454] (Warren, C. J., dissenting). It would be a different case if the police initiated the violence, refused to respect a reasonable request to undergo a different form of testing or responded to resistance with inappropriate force.” (Italics added.) In the same case the United States Supreme Court further stated (at pp. 766-767 [16 L.Ed.2d at p. 917]): “. . . The question is squarely presented, therefore, whether the chemical analysis introduced in evidence in this case should have been excluded as the product of an unconstitutional search and seizure.” And again, at page 768 [16 L.Ed.2d at p. 918], “the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” In that connection, it is indicated that the sample should be taken under such medical conditions as would negative “an unjustified element of personal risk of infection and pain.” (P. 772 [16 L.Ed.2d at p. 920].) Applying the further language of that court (at p. 772 [16 L.Ed.2d at p. 920]) to the present cáse: “We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures.”
I concur with the majority in the correction of the inappropriate dicta. I *901also concur with the majority in holding that there is no showing of any violation of constitutional right to the “threshold of the hospital anteroom.” I respectfully must dissent from the declaration of the majority that “although we deem the question to be a close one, that the force used was under the circumstances, unlawfully excessive.” Neither the law nor any evidence supports the semantic gymnastics of declaring that “although the actual withdrawal of blood itself may not have been objectionable” the restraint used to hold the drunk still to permit the sample to be taken makes the process “medically unacceptable” within the caveats expressed by Schmerber v. California, supra, 384 U.S. 757, 759 [16 L.Ed.2d 908, 913, 86 S.Ct. 1826], I do not conclude that “The officers . . . were aggressive beyond all need,” and I am not pointed to any course of conduct at the very time and place which would have more speedily and reasonably accomplished the taking of the blood sample. The test is not whether officers are aggressive or defensive; it is whether the force which they are permitted or required to use is clearly excessive. The amount of force or strength used legally to overcome resistance must always be greater than the resistance. It is not only the one whose heart is pure whose “strength is as the strength of ten” for a loaded and resistive drunk may have the same. Drunks are not always friendly boisterous parlor comics or tragic figures weeping in alcoholic despair, to be gently ushered to a quiet corner, to sleep off the poison. One should hesitate a long time before overturning the verdict of the trier of the facts, and of the appellate department, for it is impossible to apply any gauge to a printed page to measure the mercurial moods of a resistive drunk, to guess in retrospect what was the boundary between reasonable and unreasonable force in his restraint. Even in this respect, the majority have disregarded the well-settled rule that that view of conflicting facts and inferences therefrom will be taken which will support the judgment of the courts below.
If it were conceded that the taking of the blood sample was an “unreasonable search and seizure,” the judgment herein still should stand. The other evidence, as the majority concedes, was of itself clear and convincing. There is no Sccasion to negative the conviction and to let the defendant go free, despite his clear violation of the rights of the public by his drunk driving.
There is not one iota of evidence that the taking of the blood sample by the doctor was not completely in accord with the approved medical practice. When he arose from his chair, the officers started to conduct the drunk to a bed where he could be immobilized sufficiently to enable the doctor to secure the blood sample. He fell on top of one officer, with the other officer partly upon him. The opportunity to hold him there with one officer with a scissors upon his legs, and the other twisting his arm behind him, while the doctor took the blood sample, was perhaps ludicrous, but certainly not clearly excessive nor illegal. (Cf. People v. Dawson, 127 Cal.App.2d 375 [273 *902P.2d 938].) Had the resistive drunk been placed on the bed, as intended, it seems likely his arms and legs would have to have been pinioned for the purposes of the doctor. There is no contention that the defendant was restrained upon the floor longer than necessary, and we have noted that the application of a tourniquet, the swabbing of the arm with an antiseptic, the insertion of the needle, and the withdrawal of the blood can be accomplished in from 15 to 45 seconds.
The court is not presented in this case with any parallel to Rochin v. California, 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25. A.L.R.2d 1396], where the concatenation of circumstances and the final force used was held to savor of the rack and the screw and to violate due process of law.
Reasonableness of the “search and seizure” is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of each case. (Ker v. California, 374 U.S. 23, 33 [10 L.Ed.2d 726, 737, 83 S.Ct. 1623].) The determination was made upon conflicting evidence. It must be considered in the light most favorable to the People to see whether it supports the determination of the trial court and the appellate department that the evidence was properly admissible over objection and that the judgment of conviction is supported by substantial evidence. (Noto v. United States, 367 U.S. 290, 296 [6 L.Ed.2d 836, 840, 81 S.Ct. 1517], cited in Blefare v. United States, 362 F.2d 870; People v. Hills, 30 Cal.2d 694, 701 [185 P.2d 11]; People v. Hannon, 44 Cal.App.2d 484 [112 P.2d 719].)
It would seem that the majority have disregarded such criteria. Conceding that the former declaration that blood samples could be taken “in the absence of force and violence” inaccurately states the law, the present decision reassesses the factual situation so as to reach essentially the same conclusion. In the language of Schmerber v. California, supra, the court cannot hold that the officers “responded to resistance with inappropriate force.”
It is asserted that the majority opinion will advance the purposes of the testing process. The moral seems to be that if a drunk resists enough, his chances of “beating the rap” increase proportionately with his resistance, followed by his claim of the use of inappropriate force to subdue him.
It is true, of course, that the further a drunk progresses toward alcoholic oblivion, the less able he is to intelligently choose the method of testing to be employed. That he is incapable of rational choice or refusal does not withdraw the consent given as a requirement of the law. (Veh. Code, § 13353.) The tests may be given to any person covered by the statute, even if he be dead, unconscious or otherwise in a condition rendering him incapable of refusal. (State v. Berg, 76 Ariz. 96 [259 P.2d 261], forcible taking of breath sample; cf. Blefare v. United States, supra, 362 F.2d 870, *903giving of emetic; consult generally cases cited in People v. Conterno, 170 Cal.App.2d Supp. 817, 827 [339 P.2d 968].)
If the majority had adopted the view that refusal to take the test at all was a fourth option under the statute, and that refusal in fact could negative the consent implied by law, support would be found in Bush v. Bright, 264 Cal.App.2d 788 [71 Cal.Rptr. 123].
The test in this instance revealed that appellant Kraft had .24 percent alcohol by weight in his blood. This was almost double that specified to mark the borderline.1 It would be a miscarriage of justice to void his conviction.
Any claim that he unjustifiably was struck in the face en route to the hospital is not germane to the blood sampling itself. The officers admitted a blow, but the circumstances were not revealed. It is not presumed that it was not justified. If the circumstances were such that it was not, the fact that it was reprehensible does not void either the arrest or the detention. For any unjustified use of excess force, Kraft has his penal (People v. Giles, 70 Cal.App.2d Supp. 872 [161 P.2d 623]) and civil (Stowell v. Evans, 211 Cal. 565 [296 P. 278]) redress.
Therefore, I would affirm the judgment.
A petition for a rehearing was denied February 6, 1970. David, J. pro tem.,* was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied March 4, 1970. McComb, J., was of the opinion that the petition should be granted.
Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
Based upon the expert testimony developed on the subject, it is the presumption that anyone whose blood contains more than 0.15 percent by weight of alcohol is intoxicated. (Consider: Lawrence v. City of Los Angeles, 53 Cal.App.2d 6 [127 P.2d 931]; People v. Tucker, 88 Cal.App.2d 333 [198 P.2d 941]; State v. Protokowicz, 55 N.J. Super. 598 [151 A.2d 396, 398]; State v. Childress, 78 Ariz. 1 [274 P.2d 333, 46 A.L.R.2d 1169]; Kay v. United States, 255 F.2d 476, 481, cert. den. 358 U.S. 825 [3 L.Ed.2d 65, 79 S.Ct. 42]; Toms v. State, 95 Okla. Crim. 60 [239 P.2d 812].)
Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.