27 Cal. App. 5th 1155
Cal. Ct. App. 5th2018Background
- At ~12:30 a.m. Concord officer found Gutierrez asleep in the driver’s seat, smelled alcohol, observed signs of intoxication, administered field sobriety tests, and arrested him for DUI.
- Officer (with Spanish translation) informed Gutierrez he was required to submit to either a breath or blood test; at the jail Gutierrez chose a blood test and did not resist the draw.
- Police did not obtain a warrant for the blood draw and did not tell Gutierrez he could refuse both tests and face implied‑consent penalties.
- Gutierrez moved to suppress the blood evidence under Penal Code § 1538.5; the trial court granted the motion, finding no voluntary consent and citing McNeely.
- The appellate panel reversed, holding that offering a choice between breath and blood means a warrant is not required when the suspect elects blood; the prosecutor appealed to the superior court, which granted review to resolve the legal question.
Issues
| Issue | Plaintiff's Argument (Gutierrez) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether a warrant is required for a blood draw when an arrestee is given a choice between breath or blood testing | A suspect's voluntary choice of blood does not override Birchfield’s rule that blood testing requires a warrant; offering a choice does not transform the search | Because Birchfield permits warrantless breath tests, offering the suspect a choice between breath or blood means a suspect‑chosen blood draw is a lawful search incident to arrest without a warrant | The court held no warrant required when the arrestee freely and voluntarily chooses blood over breath (search‑incident‑to‑arrest applies to the breath‑or‑blood choice) |
| Whether the blood draw here constituted voluntary consent such that the consent exception would apply | Gutierrez argued consent was not voluntary because he was not told he could refuse both tests and face penalties | The People argued Gutierrez voluntarily elected blood (and alternatively that consent to additional intrusion is implied when choosing blood) | The court did not rely on consent; it treated the act of choosing blood as creating a breath‑or‑blood category justified as search incident to arrest (it left voluntariness questions to other contexts) |
| Whether Birchfield forecloses warrantless blood draws categorically, even when the suspect elects blood after being offered breath | Gutierrez: Birchfield’s categorical prohibition on warrantless blood tests controls regardless of statutory choice | People: Birchfield permits warrantless breath tests; California law gives suspects the statutory choice, so electing blood places the search in a different category (breath‑or‑blood) | The court concluded Birchfield did not address the choice scenario; offering breath as a less‑intrusive alternative means the breath‑or‑blood category is permissible without a warrant |
| Whether requiring a warrant when a suspect chooses blood would further Fourth Amendment interests | Gutierrez: Requiring a warrant protects privacy when a suspect opts for a more intrusive test | People: Requiring a warrant undermines statutory design and yields no meaningful Fourth Amendment benefit because the state can lawfully compel breath testing | The court found Fourth Amendment values not advanced by requiring a warrant in the choice context and affirmed that no warrant is required when the suspect freely chooses blood |
Key Cases Cited
- Birchfield v. North Dakota, 579 U.S. 438 (2016) (breath tests may be compelled incident to DUI arrest; warrant needed for blood tests when compelled by the State)
- Missouri v. McNeely, 569 U.S. 141 (2013) (natural metabolization of alcohol does not create a per se exigency for warrantless blood draws)
- Riley v. California, 573 U.S. 373 (2014) (categorical approach for certain searches incident to arrest; importance of weighing privacy intrusion against governmental need)
- South Dakota v. Neville, 459 U.S. 553 (1983) (offering a suspect the choice to take a test or refuse it with penalties does not constitute compelled testimonial communication)
- Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989) (some testing intrusions implicate minimal privacy concerns; used in Birchfield framing)
- People v. Knoller, 41 Cal.4th 139 (2007) (principle that judicial language should be read in light of the facts and issues presented)