People v. Fiscalini

Opinion

KREMER, P. J.

A jury convicted defendant Alfred David Fiscalini of driving under the influence of alcohol causing injury to more than one victim (Veh. Code, §§ 23153, subd. (a), 23182), being under the influence of a controlled substance (Health & Saf. Code, § 11550), driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), and possessing 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b)). The court found Fiscalini had two prior felony convictions. (Pen. Code, § 667.5, subd. (b).) Fiscalini appeals, contending the superior court erred in denying his motion to suppress evidence of his blood sample. We conclude the superior court should have granted Fiscalini’s motion to suppress. We reverse Fiscalini’s conviction of driving under the influence of alcohol causing injury to more than one victim. We affirm the remainder of the judgment.

I

Facts

On April 9, 1989, on Imperial Avenue in San Diego, while his driving privilege was suspended Fiscalini drove his car into the lane of an oncoming car, resulting in a collision injuring the other driver and her passenger. Police arrived and perceived Fiscalini to be under the influence of either alcohol or drugs. Fiscalini was sweating and agitated with muscle rigidity and fluctuating mood. After giving Fiscalini several field sobriety tests, police arrested him. At the police station, an officer asked Fiscalini to complete either a blood, breath, or urine test. Fiscalini consented to a urine test and provided a sample for police. Later police asked Fiscalini to provide a blood sample because the officer believed that was the best means of testing blood-alcohol level and the officer also wanted to test the blood sample for drugs. The officer said he would take the blood sample even if Fiscalini refused. When Fiscalini refused and physically resisted, police restrained him and a laboratory technician took a blood sample. Chemical analysis revealed Fiscalini’s blood-alcohol level was 0.1357 percent.

*1642 II

Search and Seizure of Blood Sample

Before trial Fiscalini asked the court to suppress evidence of his blood sample as assertedly the product of an unreasonable warrantless search and seizure. (Pen. Code, § 1538.5, subd. (a)(1).) Specifically, asserting the police withdrew his blood through infliction of pain and force despite his having voluntarily given a urine sample, Fiscalini contended the officers (1) violated his right to be free from an unreasonable search and seizure shocking the conscience (Carleton v. Superior Court (1985) 170 Cal.App.3d 1182, 1187 [216 Cal.Rptr. 890]) and (2) violated his right to choose the test to be given. After an evidentiary hearing, the court denied Fiscalini’s motion. 1

Fiscalini contends the superior court should have suppressed evidence of his blood sample. Fiscalini asserts police violated the Fourth Amendment and Vehicle Code section 23157 by forcibly drawing his blood after he had given a urine sample. We conclude the court erred in denying Fiscalini’s motion to suppress evidence of his blood sample. (Winston v. Lee (1985) 470 U.S. 753 [84 L.Ed.2d 662, 105 S.Ct. 1611]; Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct. 1826].)

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” (Schmerber v. California, supra, 384 U.S. at p. 767 [16 L.Ed.2d at p. 917].) In Schmerber the defendant was arrested for driving under the influence of alcohol. At police direction, a blood sample was drawn from the defendant without his consent by a physician at a hospital. The United States Supreme Court was faced with the questions “whether the police were justified in requiring [defendant] to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.” (Id. at p. 768 [16 L.Ed.2d at p. 918].) The Supreme Court essentially concluded the Fourth Amendment does not bar a warrantless compulsory seizure of blood for the purpose of a blood-alcohol test as long as the procedure is (1) done in a reasonable medically approved manner, (2) incident to a lawful arrest, and (3) based upon probable cause to believe the person is intoxicated. (Id. at pp. 766-772 [16 L.Ed.2d at pp. 917-921]; People v. Superior Court (1972) 6 *1643 Cal.3d 757, 761 [100 Cal.Rptr. 281, 493 P.2d 1145]; Carleton v. Superior Court, supra, 170 Cal.App.3d at p. 1185.) 2 However, the Supreme Court noted the interests in human dignity and privacy protected by the Fourth Amendment forbid searches involving intrusions beyond the body’s surface based “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. at pp. 769-770 [16 L.Ed.2d at p. 919].) The Supreme Court also stated: “That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” (Id. at p. 772 [16 L.Ed.2d at p. 920] .) 3

In Winston v. Lee, supra, 470 U.S. 753, the prosecution sought to compel a defendant suspected of attempted armed robbery to undergo a surgical procedure under general anesthesia to remove a bullet lodged in his chest. The Supreme Court stated: “The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure. In a given case, the question whether the community’s need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers.” (Id. at p. 760 [84 L.Ed.2d at p. 669].) Noting the government established probable cause for the search and provided adequate procedural protections, the Supreme Court focused on balancing the extent of the intrusion on the defendant’s privacy interests against the prosecution’s need for the evidence. (Id. at p.763 [84 L.Ed.2d at pp. 670-671].) The Supreme Court concluded the prosecution did not establish searching for evidence of the crime by the contemplated surgery would be reasonable under the Fourth Amendment. (Id. at p. 766 [84 L.Ed.2d at pp. 672-673].) The court found the intrusion on defendant’s privacy interests was “severe” although the operation’s medical risks were “apparently not extremely severe.” (Ibid. [84 L.Ed.2d at pp. 672-673].) However, the court found—while the bullet might be useful to the prosecution—the strength of other evidence in the case *1644 undercut the government’s argument surgical retrieval of the bullet was necessary. (Id. at pp. 765-766 [84 L.Ed.2d at pp. 671-672].)

Applying the balancing test of Winston v. Lee, supra, 470 U.S. 753, to the evidence before the superior court on Fiscalini’s motion to suppress, we conclude under the circumstances here the People did not demonstrate a need for Fiscalini’s blood sample warranting the blood draw without his consent. As in Winston, the evidence here supports a finding police had probable cause to believe Fiscalini was intoxicated and lawfully arrested him. The record also supports a finding the laboratory technician drew Fiscalini’s blood in a reasonable medically approved manner. The superior court also reasonably rejected Fiscalini’s contention the police took his blood sample by way of excessive force shocking the conscience. 4 However, similar to the situation in Winston v. Lee, supra, the People here did not demonstrate sufficient need to withdraw Fiscalini’s blood without his consent after he provided a urine sample. 5

At the suppression hearing, Police Officer Moberly testified he sought to draw Fiscalini’s blood—despite Fiscalini’s earlier providing a urine sample—because blood was the best test for alcohol. However, the officer’s opinion blood was the best test for detecting alcohol was not sufficient to show any need to take Fiscalini’s blood sample after he already provided a *1645 urine sample. Under the implied consent law a person lawfully arrested for driving under the influence of alcohol has the choice of submitting to a blood, breath, or urine test. (Veh. Code, § 23157, subd. (a)(2)(A).) Enactment of the implied consent law is tantamount to governmental acknowledgement a urine test is functionally equivalent of a blood test for evidentiary purposes with respect to blood-alcohol level. (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 77 [177 Cal.Rptr. 566, 634 P.2d 917].) 6 Thus, having already obtained one sample from Fiscalini with his consent, the government did not demonstrate any need to force him to undergo a second intrusion. (Winston v. Lee, supra, 470 U.S. at pp. 765-766 [84 L.Ed.2d at pp. 761-763].) 7

At the suppression hearing, Police Officer Moberly also testified he had Fiscalini’s blood drawn to test for drugs in addition to alcohol. However, even assuming the police were looking for evidence Fiscalini was under the influence of a controlled substance, at the suppression hearing the People made no showing a blood sample in addition to the urine sample already provided was necessary for that purpose. Under Vehicle Code section 23157, subdivision (a)(2)(B), a person lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug has the choice of submitting to a blood, breath, or urine test. Again, the statute reflects governmental acknowledgement a urine test is the functional equivalent of a blood test for evidentiary purposes with respect to the presence of drugs in the person’s system. 8 Further undercutting any *1646 suggestion of need for the blood sample to disclose the presence of drugs is the fact at trial the People relied on evidence of the urine sample to prove Fiscalini was under the influence of methamphetamine.

On this record the superior court should have granted Fiscalini’s motion to suppress evidence of his blood sample. Since we cannot say introduction of such evidence was harmless beyond a reasonable doubt, Fiscalini’s conviction for driving under the influence of alcohol causing injury to more than one victim must be reversed. 9 We uphold the other convictions as they were not tainted by the constitutional error.

Disposition

The conviction for driving under the influence of alcohol causing injury to more than one victim is reversed. The remainder of the judgment is affirmed.

Wiener, J., and Todd, J., concurred.