People v. Arter, JAD1720A

On Sept. 24, 2016, Officer Sgt. Sam Machado stopped a boat on the Sacramento River for speeding and detained Adam Arter.
Officer observed signs of intoxication (nystagmus, odor of alcohol); Arter initially denied drinking, later admitted drinking two pints 45–60 minutes earlier.
Arter submitted to an initial portable breath test (.079% BAC) and then to a second preliminary/field breath test (.094% BAC) after being asked as part of field sobriety testing.
Officer arrested Arter and, after giving an advisement about implied consent and consequences of refusal, obtained two evidentiary breath samples at the station (.08% and .09%).
Arter moved to suppress all three breath results, arguing lack of valid consent for the .094% preliminary test and that the post-arrest advisement/coercion vitiated consent for the two evidentiary tests; the trial court denied the motion and Arter appealed.
The Appellate Division affirmed the denial of the suppression motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of consent to the second (pre-arrest) .094% breath test	Consent was voluntary; test was one of several field sobriety measures and not coerced	Consent was not voluntary because test was administered as part of field sobriety tests and under officer influence	Court held consent to the second breath test was voluntary under totality of circumstances
Validity of post-arrest evidentiary breath tests (.08 and .09) given officer advisement	Breath samples were lawful as searches incident to arrest; even if advisement was imperfect, Birchfield permits warrantless breath tests after lawful arrest; inevitable discovery not required to decide	Advisement was coercive/incorrect and vitiated consent; inevitable discovery does not save the samples	Court upheld post-arrest breath tests as constitutional under Birchfield and therefore affirmed suppression denial; court did not decide inevitability doctrine applicability

Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (warrantless breath tests incident to arrest are permissible; warrantless blood tests generally are not)
Bumper v. North Carolina, 391 U.S. 543 (U.S. 1968) (consent to search must be voluntary and not the product of coercion)
People v. Lawler, 9 Cal.3d 156 (Cal. 1973) (appellate review framework for suppression rulings: defer to factual findings, independently review legal reasonableness)
People v. Leyba, 29 Cal.3d 591 (Cal. 1981) (clarifies two-step suppression review and appellate responsibility to assess constitutional reasonableness)
People v. Monterroso, 34 Cal.4th 743 (Cal. 2004) (consent given while under arrest may nonetheless be voluntary under totality of circumstances)
State v. Pettijohn, 899 N.W.2d 1 (Iowa 2017) (applied Birchfield to boating-under-the-influence context and found warrantless post-arrest breath tests permissible)