Opinion
A145673
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. MARJORIE ANN REITZELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC081182A)
Marjorie Reitzell was driving with a blood alcohol level around three times the legal limit when her car struck and killed two pedestrians, then crossed the median into the oncoming traffic lane and struck a second car. Reitzell was convicted of two counts of murder, driving under the influence (DUI) causing bodily injury and related crimes. She contends the court erred when it denied her pretrial motion to suppress the results of a blood draw obtained without issuance of a search warrant. The court's determination that Reitzell consented to the blood draw is supported by the record, so we affirm.
BACKGROUND
A detailed description of the tragic collision that killed Balbir and Kamal Singh the evening of October 24, 2013, is unnecessary to resolve the issue on appeal, so we will only briefly discuss the facts of the accident. Reitzell was driving east on Chilco Street in Menlo Park when her car struck the Singhs as they walked their dog along the paved shoulder. Reitzell's car crossed over the center median, struck a Nissan Maxima occupied by four teenagers, and crashed into a tree. Balbir and Kamal Singh died at the scene of massive injuries. All four of the Nissan's occupants were injured.
The following evidence was admitted at the hearing on Reitzell's motion to suppress evidence derived from a blood draw conducted the evening of the crash. Menlo Park Police Officer Brent Hughes was dispatched to the scene of the accident with two other officers around 6:54 p.m. Reitzell was in her car with her seatbelt fastened. Her breath smelled strongly of alcohol, her lip was cut and her speech was slurred. She handed Officer Hughes her driver's license without being asked. Hughes interacted with Reitzell for 20 to 30 minutes until medical personnel arrived. They transported her by ambulance to Stanford Hospital about 45 minutes after Hughes arrived at the scene.
Phlebotomist Kathleen Eagles was dispatched to Stanford Hospital emergency room to draw Reitzell's blood. When she arrived at 8:11 p.m. she was informed that Reitzell was undergoing a CAT scan. About 15 or 20 minutes later Reitzell was brought in with a neck brace and "very agitated on the bed. . . . [¶] [Her] arms and legs were moving, and there was some moaning and unpleasant words being said." Her lip was swollen and bloody. She was saying "my lip," "slightly screaming," moaning and cursing.
A Menlo Park police officer was present with Eagle in the emergency room. Eagles introduced herself to Reitzell, told her she worked for the sheriff's department and explained she was there to draw two vials of blood. Reitzell said "okay," and "my lip, my lip." She did not resist or in any way indicate that Eagles should not draw her blood. Reitzell's left arm was being used for an IV or was bandaged, so Eagles took her right hand. Reitzell was "still moving, not flailing but just uncomfortable, agitated." Eagles was able to draw one full and one partial vial of blood from her arm.
Reitzell's blood sample contained .23 percent alcohol, almost three times the legal limit of .08 percent for operating a motor vehicle. A criminalist from the San Mateo County Sheriff's forensic laboratory opined that Reitzell's blood alcohol level at the time of the accident was .26 or .27.
Reitzell moved to suppress the blood evidence under Missouri v. McNeeley (2013) 569 U.S. 141 on the ground that the prosecutor failed to demonstrate exigent circumstances justifying the warrantless blood draw. The court denied the motion, and explained its ruling: "McNeeley requires a warrant to secure a sample of a person's blood absent an exception to the warrant requirement. Exceptions to the warrant requirement include two things: Exigency and consent.
"In looking at this case, is there sufficient evidence to support a finding either that the defendant consented to a blood draw or is there evidence to support a finding that this was a situation made up of exigent circumstances? [¶] . . . [¶]
"On the issue of consent I am very comfortable that implied consent means that absent a demonstration by a driver that they are not agreeing to have their blood chemically tested, that the exception is valid under McNeeley. Harris[] doesn't do anything but affirm the court's belief that implied consent is consent unless evidence demonstrates that that consent is somehow withdrawn.
People v. Harris (2014) 225 Cal.App.4th Supp. 1 (Harris I).
"The facts in this case are absent of any suggestion that Ms. Reitzell in any way withdrew her consent to a chemical test. What Ms. Eagles testified to is that when she informed Ms. Reitzell that she was going to be taking a sample of her blood, Ms. Reitzell gave her arm. This is as much a manifestation of affirmative consent of saying 'I do' or 'that's okay' or 'that's fine with me.' "
The court also found the warrantless blood draw was justified by exigent circumstances. "I find that this was a situation in which exigency existed, but I'm not making that finding based upon much of the facts relied upon by the prosecution. I don't believe exigency is created because there was a collision. I don't believe exigency was created because officers of the Menlo Park Police Department were tasked with doing other things. All of that is factually true, but that doesn't create exigency.
"The election of officers to engage in certain tasks cannot possibly create the exigency that would be an exception to what the Constitution requires.
"What created the exigency in this circumstance in looking at the totality of the circumstances is the fact that Ms. Reitzell was involved in this collision. Irrespective of the tragedy of two people having lost their lives and other victims in a vehicle possibly also having been injured, the exigency is really created not by any chaos that might have existed at the scene of the accident, nor is it created because the ER room at Stanford Hospital is typically described by Ms. Eagles as chaotic, but rather the condition of the defendant at the time that the blood was taken was one that certainly supports a finding that it was an exigent circumstance.
"Here is a woman having been brought in by ambulance from a very serious collision with obvious injuries to herself. She was in the midst of receiving medical treatment. She was being taken in and out of the room where the blood was drawn undergoing very serious diagnostic measures to determine the extent of her injuries, and Ms. Eagles testified that it was her understanding—and I believe that it had been communicated to her—that the defendant would be going into surgery. All of those factors coupled with the defendant's obvious symptoms of being in extreme pain and distress support a finding of exigency which also justifies a taking of the defendant's blood without taking the time to get a warrant."
Reitzell was convicted by a jury of two counts of second degree murder, two counts of gross vehicular manslaughter while intoxicated, driving under the influence and causing bodily injury, and driving with a .08 percent or greater blood alcohol level and causing injury. The jury also found true special allegations that Reitzell caused bodily injury to multiple victims, drove with a blood alcohol content of 0.15 percent or higher, and was convicted of driving under the influence within the preceding 10 years. The court sentenced her to an indeterminate term of 30 years to life in prison. This appeal is timely.
DISCUSSION
I. The Blood Draw
Reitzell contends a search warrant was required to draw and test her blood and that neither exigent circumstances nor her consent justified the police's failure to obtain a warrant. Accordingly, she maintains, the court erred when it declined to suppress the evidence derived from the blood draw. The contention fails because the court properly found Reitzell consented to the blood draw.
It has long been established that a compulsory blood draw in a DUI case is subject to the constraints of the Fourth Amendment. (Schmerber v. California (1966) 384 U.S. 757, 767.) " 'The Fourth Amendment generally requires police to secure a warrant before conducting a search.' [Citation.] Put another way, '[t]he Fourth Amendment demonstrates a "strong preference for searches conducted pursuant to a warrant. . . ." ' [Citation.] '[I]t is a cardinal principle 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." ' " (People v. Harris (2015) 234 Cal.App.4th 671, 683 (Harris II).) A warrantless search not shown to fall within an exception is presumptively unreasonable, thus violating the constitutional guarantee. ( People v. Toure (2015) 232 Cal.App.4th 1096, 1103.)
Consent is an exception to the warrant requirement. (Harris II, supra, 234 Cal.App.4th at p. 685.) " Where 'the prosecution relies on consent to justify a warrantless search or seizure, it bears "the burden of proving that the defendant's manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]" ' [Citation.] Whether 'consent was voluntarily given is a question of fact, which depends on the 'totality of the circumstances' of the individual case. [Citations.] A court determines whether an officer's belief that he or she had consent to a search or seizure is objectively reasonable under the circumstances; the inquiry is what a reasonable person would have understood by the exchange between the officer and the person providing consent. [Citations.]" (People v. Mason (2016) 8 Cal.App.5th Supp. 11, 20; see People v. Jenkins (2000) 22 Cal.4th 900, 974.)
In reviewing the trial court's denial of a motion to suppress, we determine whether there is substantial evidence to support the trial court's factual findings, including the finding of consent. We independently review any legal determinations that the blood draw met constitutional standards. (People v. Carter (2005) 36 Cal.4th 1114, 1140; People v. Rios (2011) 193 Cal.App.4th 584, 589.)
Here, the trial court found Reitzell gave actual consent for the blood draw. Reitzell acknowledges as much, but she contends the ruling lacks evidentiary support because it was based on the court's belief that Eagle testified Reitzell "gave her" her arm for the blood draw. As Reitzell correctly notes, Eagles testified that she "took" or "went to" Reitzell's arm, but she did not testify that Reitzell offered it to her.
In argument, the prosecutor characterized Eagles as testifying "that she never tried to take her arm away, she presented her arm, she was willing in all of those endeavors by Ms. Eagles to draw her blood."
Reitzell is factually correct, but that does not end our analysis. "[W]e consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision. (People v. Letner (2010) 50 Cal.4th 99, 145 [if the trial court's ruling is correct ' " 'upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' " ' "].) Here, Eagles testified that Reitzell in fact said "okay" when Eagle told her she was going to draw a blood sample. As the court observed, such verbal acquiescence was an equivalent manifestation of consent as presenting her arm for the procedure. Eagles' testimony supports the finding that Reitzell consented to the blood draw.
Moreover, there was no evidence that Reitzell's verbal acquiescence was anything other than voluntary. There is no evidence that her physical or mental condition rendered her incapable of giving consent. She was not admonished about the adverse civil or criminal consequences of refusing the blood draw or subjected to any other potentially or arguably coercive procedures. Nor is there evidence that Reitzell resisted the blood draw or indicated in any fashion at any time that she was unwilling to comply with police or medical personnel. Under these circumstances, the evidence supports the court's finding that Reitzell affirmatively consented to the blood draw. Indeed, the circumstances here were less potentially coercive than those in Harris II, supra, 234 Cal.App.4th 671, which affirmed a finding that the defendant voluntarily consented to a blood draw by responding "okay" after a police deputy told him his license would be suspended if he refused, he had no right to talk to a lawyer, and that a refusal could be used against him in court. (Id. at p. 690-691.)
To be clear, we do not intend by this to suggest that advising a suspected drunk driver of the consequences of refusing to give a blood, urine or breath sample is inherently unconstitutionally coercive. (See Harris II, supra, 234 Cal.App.4th at pp. 682, 687-689 [holding that admonition under implied consent law of the consequences of refusing chemical test does not necessarily vitiate the voluntary nature of actual consent].) Indeed, the very purpose of those consequences is to encourage a suspect to voluntarily consent in lieu of incurring penalties. (See Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757.)
Under the totality of the circumstances, we conclude Reitzell voluntarily consented to the blood draw and therefore there was no requirement for police to first obtain a search warrant. We therefore do not decide whether the warrantless search was also justified by exigent circumstances or Reitzell's implied consent.
II. Sentencing
The trial court sentenced Reitzell to the aggravated three-year term on count five (driving under the influence causing injury (Veh. Code, § 23153, subd.(a)) and ordered it to run concurrent to the two consecutive 15-years to life terms imposed on the murder convictions. Reitzell points out, and the People correctly acknowledge, that the abstract of judgment does not consistently reflect that the three-year term is concurrent. Specifically, the "concurrent" box on item 1 of the abstract should be checked, and the three years' "total time" indicated on item 8 should be identified as concurrent or the item should be left blank. These errors are plainly clerical and must be corrected to conform to the court's oral pronouncement of sentence. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is affirmed. The trial court is directed to issue an amended abstract of judgment correcting the errors in items 1 and 8 to reflect a concurrent term for driving under the influence causing injury (Veh. Code, § 23153, subd. (a)), and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------