People v. Duroncelay

GIBSON, C. J.

Defendant was convicted by a jury of violating section 501 of the Vehicle Code which provides that one who drives an automobile while under the influence of intoxicating liquor and causes personal injury is guilty of a felony.

The accident happened at about 10 p. m. as defendant was driving his automobile in a westerly direction on Tosemite Avenue in Merced County. A boulevard stop sign for westbound traffic was located at the intersection where Yosemite Avenue terminated, and, directly across the intersection, there was a “reflectorized” warning sign on the bank of an irrigation ditch. Defendant’s automobile went through the intersection and collided with the bank of the ditch, knocking down the warning sign. An eyewitness testified that the automobile was “going pretty fast” and that there was no illumination from its brake lights to indicate that the brakes had been applied. There was also evidence that there were no skid marks on the road.

Kenneth Riggs, who owned an ambulance and held the position of coroner, drove his vehicle to the scene of the accident and found that defendant was unconscious and that one of two men riding with defendant was injured. The three men were sitting in the front seat of the automobile, and the passenger farthest to the right had a wine bottle in one hand and a can of beer in the other. There were beer cans on the floor of the automobile, and each of the men had an odor of alcohol on his breath. A highway patrolman who arrived at the scene before the ambulance departed and who conducted an investigation noticed that there was an odor of alcohol in the car.

Defendant was taken to a hospital, and, after he regained consciousness, he vomited matter which had a strong smell of alcohol. Riggs, the ambulance driver, had been requested by the highway patrol officer to obtain a sample of blood from defendant to be used for an alcohol test, and he asked defendant whether he consented to having the sample taken, informing him that it would be used for such a test. According to Riggs, defendant, who was “quite sick at the time and throwing up,” did not give a negative answer, and, to the best of his knowledge, Riggs received an answer to take the sample, although he could not recall “the exact words, or that it actually was a yes.” When a nurse approached with a needle, defendant withdrew his arm, and Riggs held the arm while she extracted the blood. On cross-examination Riggs was questioned on the subject of defendant’s consent and testified as follows:

Q. . . . I believe you said that you did not get a negative answer and you therefore assumed that you got an affirmative answer, is that right?

A. Yes, I think I did say it just about like that. I can’t recall. He was not in any condition to come out and say, “Yes, go ahead and take a blood alcohol.” He couldn’t say that much because he didn’t say that many words all the time he was in the hospital. . . .

Q. . . . would you assume therefore that he could answer yes or no?

A. Yes, with a little prodding he could, because it took about 30 minutes to get who he was and where he was from. . . .

Q. And I think that it is your testimony therefore that he did not say yes, is that right?

A. No, I would say that he did not say no.

Q. Well, could you say that he did say yes?

A. I took it, and so I would say that he said yes, or I wouldn’t have taken it. . . .

Q. . . . you did not get an affirmative answer, is that right ?

A. I still won’t say that he said—if he said, “No,” the blood alcohol wouldn’t have been taken.

Q. Well, I understand that it is your position that he didn’t say no. Did he say yes?

A. Well, I tell you, between the holding of the pan and the bottle and his heaving, I can’t tell that he said yes, but I would say that he didn’t say no.

The nurse who extracted the blood testified that, when defendant was asked for his consent, he gave no answer.

The blood sample taken from defendant had an alcohol content of .22 per cent. A criminologist testified that everyone is under the influence of alcohol when the alcohol content in his blood reaches .15 per cent and that, in his opinion, the person from whom the sample was taken was no longer capable of operating a motor vehicle with his normal degree of skill and judgment.

We are of the opinion that the only reasonable conclusion permitted by the testimony of Riggs and the nurse who assisted him in taking the blood sample is that, when asked for his permission, defendant made no verbal response to indicate whether he consented or refused. Because of defendant’s condition, it would have been extremely difficult for him to give an answer, but, when the nurse approached him with the needle, he reacted by withdrawing his arm.^* Under the circumstances, a finding that defendant consented is unwarranted, and we must therefore determine whether the results of the blood test were admissible in the absence of defendant’s consent to the taking of the sample.

It is settled by our decision in People v. Haeussler, 41 Cal.2d 252, 257 [260 P.2d 8], that the admission of the evidence did not violate defendant’s privilege against self-incrimination because the privilege relates only to testimonial compulsion and not to real evidence. We also held in the Ilaeussler case that the taking of the defendant’s blood for an alcohol test in a medically approved manner did not constitute brutality or shock the conscience and that, therefore, the defendant had not been denied due process of law under the rule applied in Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396], This holding is in accord with the recent decision of the United States Supreme Court in Breithaupt v. Abram, 352 U.S. 432 [77 S.Ct. 408, 1 L.Ed.2d 448], where blood for an alcohol test was taken by a doctor while the defendant was unconscious. The court pointed out that blood tests had become routine in everyday life and concluded that “a blood test taken by a skilled technician is not such ‘ conduct that shocks the conscience, ’ Rochin, supra (342 U.S. at 172), nor such a method of obtaining evidence that it offends a ‘sense of justice,’ Brown v. Mississippi, 297 U.S. 278, 285, 286 [56 S.Ct. 461, 80 L.Ed. 682].” There is no claim in the present case that the blood sample was not withdrawn in a medically approved manner. The blood was extracted by a registered nurse, and her testimony shows that she sterilized defendant’s arm and used sterilized instruments.

The question remains as to whether the taking of defendant’s blood constituted an unreasonable search and seizure in violation of his constitutional rights. We did not decide that question in People v. Haeussler, 41 Cal.2d 252 [260 P.2d 8], because its determination was not necessary in view of the rule then followed in this state that illegally obtained evidence was admissible. Nor was it decided in Breithaupt v. Abram, 352 U.S. 432 [77 S.Ct. 408, 1 L.Ed.2d 448], for the reason that New Mexico, where the judgment under review had been entered, permitted introduction of such evidence. The question is now squarely before us, however, since, subsequent to our decision in the Haeussler case, we adopted the exclusionary rule in People v. Cahan, 44 Cal.2d 434, 445 [282 P.2d 905].

It is obvious from the evidence that, before the blood sample was taken at the request of the highway patrolman, there was reasonable cause to believe that defendant had committed the felony of which he was convicted, and he could have been lawfully arrested at that time. (Pen. Code, § 836.) There is no claim that defendant was not arrested within a reasonable time or that the arrest was not made on the basis of the facts known to the officer who investigated the accident, and we must presume that there was a lawful arrest, in the absence of any showing to the contrary. (People v. Farrara, 46 Cal.2d 265, 268-269 [294 P.2d 21] ; People v. Beard, 46 Cal.2d 278, 280 [294 P.2d 29] ; see Code Civ. Proc., § 1963, subds. 15, 33.) Where there are reasonable grounds for an arrest, a reasonable search of a person and the area under his control to obtain evidence against him is justified as an incident to arrest, and the search is not unlawful merely because it precedes, rather than follows, the arrest. (People v. Simon, 45 Cal.2d 645, 648-649 [290 P.2d 531]; People v. Boyles, 45 Cal.2d 652, 655 [290 P.2d 535] ; People v. Martin, 45 Cal.2d 755, 762 [290 P.2d 855].) Under the circumstances, a search, for example, of defendant’s pockets or his automobile to obtain additional evidence of the offense would have been proper, regardless of whether he consented thereto. The question to be determined here is whether the taking of a sample of his blood for an alcohol test was a matter of such a different character that it must be regarded as an unreasonable search and seizure.

As we have seen, the extraction of defendant’s blood was accomplished with medical precautions by a registered nurse, and it is settled that such conduct is not brutal or shocking. Defendant does not challenge the accuracy of the alcohol test, and it merits emphasis that, while the accounts of eyewitnesses are often uncertain and conflicting on the issue of intoxication, hlood alcohol tests are so subject to reliable scientific analysis that 23 states have enacted statutes sanctioning the use of such tests. (See Breithaupt v. Abram, 352 U.S. 432 [77 S.Ct. 408, 1 L.Ed.2d 448, 451-452, fn. 3].) Nor should it be ignored that a test of this kind may serve to exonerate, as well as to convict.

The incidence of death and serious injury on the highways has undeniably assumed tragic dimensions and has been due in a significant degree to the effects of alcohol upon drivers. (See National Safety Council Accident Facts—1955, pp. 43-71.) So long as the measures adopted do not amount to a substantial invasion of individual rights, society must not be prevented from seeking to combat this hazard to the safety of the public. The extraction of blood for testing purposes is, of course, an experience which, every day, many undergo without hardship or ill effects. When this fact, together with the scientific reliability of blood alcohol tests in establishing guilt or innocence, is considered in the light of the imperative public interest involved, the taking of a sample for such a test without consent cannot be regarded as an unreasonable search and seizure where, as here, the extraction is made in a medically approved manner and is incident to the lawful arrest of one who is reasonably believed to have violated section 501 of the Vehicle Code.

We conclude that there was no violation of defendant’s rights and that the results of the alcohol test were properly admitted in evidence.

The judgment and the order denying a new trial are affirmed.

Shenk, J., Traynor, J., Schauer, J., Spence, J., and Mccomb, J., concurred.

* It is clear from the record that the trial court did not admit the results of the alcohol test on the basis of a finding that defendant had consented to the blood test but on the theory that, even if there was no consent, the evidence was admissible under our decision in People v. Haeussler, 41 Cal.2d 252 [260 P.2d 8].