*1 Dist., Aug. D002197. Fourth Div. One. [No. 1985.] CARLETON, Petitioner, ROBERT SCOTT COUNTY,
THE SUPERIOR COURT OF SAN DIEGO Respondent; PEOPLE, THE Real Party Interest.
Counsel R. Petitioner.
David for Thompson
No for appearance Respondent. Miller, Jr., and Edward J. Edwin L. District Peter C. Lehman Attorney, Party District for Real Interest. Mantyla, Deputy Attorneys, Opinion
WIENER, J. Scott with under charged driving Carleton was Robert Code, (a)), run (Veh. 23152, influence of hit and alcohol subd. felony § Code, (Veh. (Veh. 20001) and two of vehicular manslaughter counts § arrest, Code, to the 23153, (a) (b)). his he was taken subds. After § blood, to Vista Detention and was asked Facility (jail) provide sample Code, (Veh. breath or be urine so his blood alcohol level could determined. from 13353.) A extracted forcibly Carleton refused. blood was § being arm and two hours after his the later test showed that approximately moved (BA) unsuccessfully .21. He Carleton’s blood/alcohol was stopped no (1) there were blood and related results on the basis suppress the test from a warrant circumstances exigent excusing getting due process circumstances of blood violated his surrounding stay. Carleton then mandate or rights. sought prohibition requested We disposition from granted stay pending response the ruling, the matter. there substantial Believing support we, and vacated with Staniforth denied the petition Justice dissenting, (1981) 116 (People Cal.Rptr. stay. Ryan for den., then successfully Carleton petn. hg. petitioned Apr. the case That court transferred the California Court. hearing Supreme alternative us to an directing to itself and then retransferred here issue deny Carleton’s again petition. writ. After and further we argument briefing I of People doctrine” Carleton that the “emergency claims factually 281, 493 (Hawkins) (1972) 6 Cal.3d Superior Court his P.2d cannot to him. Carleton’s is tied to conclu- apply argument 1145] sion that a search warrant must be obtained before lacking emergency bemay driving. Withdrawn from a arrested for drunk felony suspect Hawkins, with Carleton conclusion is inconsistent asserts Recognizing we must deviate accommodate the precedent technological properly advances since 1972 when Hawkins was decided. Carleton record argues here illustrates that a search warrant can be obtained within min- telephonic utes risk of eliminating any losing the evidence. Carleton also explains increased enables BA to the knowledge experts accurately extrapolate time of the offense where the test is within a few hours after the taken incident to the rise arrest. We are giving unpersuaded.
Hawkins holds a search warrant is not the defendant is required provided arrest, under cause exists for the blood and the withdrawal probable taking is Thus, in a our accomplished medically approved Supreme manner. Court has created need for a warrant a drunk exception following felony arrest driving by blood to be withdrawn incidental to the lawful permitting is arrest. “It clear . . the . Fourth Amendment does not bar a compulsory seizure, warrant, without a aof blood for the of a blood person’s purposes intoxication, alcohol test to determine ... provided taking sample is done in a medically manner, arrest, is incident a lawful approved is based upon (Hawk belief reasonable . . . the is intoxicated.” person ins, at p.
Even if Carleton were correct Hawkins established an “emergency we doctrine” would hold an was on the facts of this emergency present case. it Although theoretically is BA level possible determine person’s at arrest, the time he was driving, the driver’s there are numerous following variables such as weight, or time and content of meal may last which affect the rate at which the alcohol Parties whose blood alcohol level dissipates. if, was .10 at the of time arrest would well that as would test below figure have been the case here had tested a warrant been were four sought, hours after being have a in- stopped. important legitimate terest in destruction of evidence as preventing sample by obtaining soon as we here possible. conclude the facts Accordingly, present type of situation where there is no need a warrant. There was emergency substantial evidence after he Carleton was intoxicated. The blood was taken was lawfully arrested.
II Carleton also his blood manner argues obtaining sample violated due process. her
Whether be taken a defendant without his or consent been a and used as him in his criminal trial has against hotly in Abram 352 U.S. debated question. Dissenting Breithaupt hesitancy Warren had no in L.Ed.2d 77 S.Ct. Chief Justice that consent a blood test was inadmissible. asserting defendant’s lacking does not follow from the fact that a science technique product “[I]t common, in use that it can be used to or is consensual for other purposes Would without consent. extract evidence from a criminal defendant be because such fluid from an unconscious condoned taking spinal as a aid to law en- tests are made and be used scientific commonly might forcement? [1] Only personal reaction to the stomach pump and the blood To the Due test can them. base the restriction which Process distinguish criminal such reactions is to build procedures Clause on state imposes upon should, hold that due means sands. We shifting my opinion, process efforts to obtain evidence from at least law-enforcement officers in their must the body, breaking of crime short persons suspected stop bruising fluids, skin, whether body they contemplate tissue puncturing extracting at 454- force or stealth.” L.Ed.2d doing pp. Justice, 455].) however, his breth- Chief did not succeed persuading A “brutal” or “of- ren. decided there majority Breithaupt nothing medically fensive” in the blood when done in a of a ap- *5 become in our every- “The blood test has routine procedure fashion. proved well life. It is for into the service as as day military a ritual those going such tests be- applying Many colleges those for licenses. marriage require voluntarily gone fore and millions of us have literally entrance permitting same, . . a routine in blood donors. . through longer, becoming though We, therefore, a technician conclude that a blood test taken skilled conscience,’ nor such a method not such ‘conduct that shocks [citation] (Id., of that it of obtaining justice,”’ offends a ‘sense [citation.] 451-452].) at 436-437 L.Ed.2d at pp. pp. [1 (1966) The same examined further in Schmerber v. issue was California 908, There,
384
757
at the direction of
U.S.
L.Ed.2d
1187 Schmerber in context on where proposed perform surgery People the defendant to remove a bullet under his collarbone. Although left lodged a unanimous court held into intrusion an individual’s compelled surgical (id., for body evidence was unreasonable at under Fourth Amendment — 672, L.Ed.2d at 105 at p. p. 1620]), again S.Ct. p. repeated [84 in Schmerber language the blood test quoting pro- Breithaupt emphasizing cedure is routine. Taking blood must be “contrasted with the sharply prac- 205, v. 165, tice Rochin 342 U.S. 72 L.Ed. 183 S.Ct. 96 California (1952), room, in which officers broke into a police attempted suspect’s mouth, extract narcotics he had into his him capsules put took to a hospital, directed that emetic be administered to induce . . . Rochin vomiting. the individual’s interest in . . . search recognizing ‘human held the dignity’ and seizure under (Winston, unconstitutional the Due Process Clause.” at — 670, 1617-1618, L.Ed.2d at 105 p. 5].) S.Ct. at fn. pp. [84 This introduction is for the lengthy the substantial purpose emphasizing difference between sufficient for a taking blood test the unconsti tutional conduct condemned Rochin. here the Car Conceptually leton’s blood test sample was not forbidden. (People constitutionally (1957) 690]; Duroncelay 48 Cal.2d Ryan, P.2d People [312 supra, 116 181-183; Cal.App.3d (1973) v. Brannon pp. People Cal.App.3d 620]; v. Fite Cal.Rptr. 666].) 690-691 It is if Carleton’s to the only resistance
test resulted in excessive
force that the
unconstitutional
possibility
conduct arises.
Law
only
enforcement must act
and use
reasonably
that degree of force which is
to overcome a
resistance
necessary
defendant’s
in taking a blood
Even where
to obtain a blood
sample.1
1At
argument
oral
we
supplemental briefing
asked for
v. De
the effect Hernandez
*6
partment
(1981)
Motor Vehicles
30
634
Cal.Rptr.
Cal.3d 70
P.2d
917]
of
(and People
Duroncelay,
supra,
766).
Schmerber
v.
Cal.2d
were concerned with
48
We
language in
suggesting
legislative
that
section
was the
re
Hernandez
Vehicle Code
13353
sponse to
permitting
Schmerber
test
further
barring
the defendant’s refusal to take a blood
as
Hernandez,
(See
77.)
forcibly.
efforts
do so
supra,
reviewing
Cal.3d
After
the
at
presented including
supra,
authorities
not
Ryan,
but
limited to
168, we conclude that
existing
there is no reason to
precedent.
deviate
desirability
blood
of the
obtaining
samples
“[T]he
in a noncoercive manner
one
provided
may
tests
for
constitutionality
in section
not
with
It is
equated
be
[citation].
government may
analysis
well established that the
performed
utilize
results of chemical
the
reasonable,
upon
(a)
a
sample forcibly
provided
blood
removed
the
is done in a
that
removal
manner;
arrest;
medically
(b)
(c)
approved
upon
is incident
to the defendant’s
is based
the reasonable
that the person
belief
is intoxicated.
[Citations.]
“.
. . As our Supreme Court
the
blood
repeatedly emphasized,
taking
the
defendant’s
alcohol
in a medically approved
brutality
test
did not
or shock the
manner
constitute
conscience even
circum-
place against
if
takes
the will
that in such
defendant and
the nonconsenting
may
stance
under
complain
process
defendant
not well
of denial
due
pronounced
(Ryan,
rule
California,
Rochin v.
police unlaw- will not excuse blood test to submit to a refusal arbitrary defendant’s determine that we must within this framework legal conduct. It is ful police findings the court’s evidence to support is substantial whether there lawfully. acted Ill A Penal a trial court’s mindful that factual inquiry We this approach first In the step, process. involves two-step Code section 1538.5 ruling deference. which we must give proper findings trial court makes factual “ witnesses, conflicts resolve credibility judge power ‘[T]he inferences, is vested draw factual evidence and in the testimony, weigh that exercise of favor the trial court. On all appeal presumptions matters, or whether express on such findings and the trial court’s power, evidence.’” substantial must be if are supported implied, upheld 867, 629 596-597 29 Cal.3d (People Leyba i.e., effect the legal 961].) step, with reference to the second P.2d It is only judgment. our independent we can exercise of the factual findings at p.
B and the later arrest to Carleton’s relating the events Chronologically first periods. within three separate withdrawal of his blood occurred taken to what when he was his arrest occurred immediately following the second cell, jail; the sallyport, referred to as a receiving officers where his cell safety to an isolation is when Carleton was taken in the cell withdrawn; safety alone when he was left the last is what oc solely is directed Carleton’s argument beaten. Since allegedly occurred blood, during of what the withdrawal of his curred during final during Events to that issue. irrelevant legally this last period before the earlier periods blur the facts of not be used to period blood sample. of Carleton’s during
C on both was decided motion Penal Code section 1538.5 Carleton’s and live hearing of the preliminary contained in the transcript court. in the testimony superior of California testimony contains the transcript
The preliminary hearing George Charles F. (Heaton) and Heaton Patrol Officers L. Harvey Highway Carleton; Heaton the accident. It (George). arrested George investigated also contains the Robert Sergeant sheriff’s James testimony deputies (Bels- Plumbley (Plumbley), (Miller) Belstering Scott Miller and Norman Miller, The defense called and tering). Belstering George. Plumbley, The record of that establishes Carleton was combative. Because hearing of Carleton’s to resistance it was hold Carleton in Plumbley what he described as a without un- “carotid-restraint but carotid position, arm, I consciousness had one left one on his deputy deputy [Carleton’s] arm, and one right every on each for this force deputy leg.” witness Except denied Carleton was either or verbally abused. physically
D The live testimony adds a further dimension what The to occurred.
called Sheriff’s Dan William nurse Deputy Mary Ellen Jopes (Jopes) (Pedersen). Pedersen Heaton, Carleton, The called defendant Plumbley, (Gilbert) Gilbert Roy and Elizabeth Ann Reilly (Reilly). testified he
Jopes saw Carleton Plumbley with scuffling sallyport. Carleton was neither handcuffed nor shackled. restrained Carleton’s Jopes left hand to him keep anyone. At no time did he ever striking pull push struck, Carleton’s left arm behind his back. No hit or otherwise physically abused Carleton.
Pedersen is an experienced nurse. She took Carleton’s blood registered When she sample. first saw Carleton in his clothes were all sallyport he hostile, rumpled, extremely refused to answer and refused questions, to give his arm the tried to deputy deputies wristband. apply secure him so blood could be withdrawn. actual with- safely drawal of the blood took a few just seconds. During period time Carleton was conscious. The blood in a medically was removed ap- proved manner. Pedersen did not anyone see strike or abuse Carleton in manner.
Plumbley Heaton testified the same facts to which essentially had testified earlier the preliminary hearing.
Carleton gave a different version of the said that when events. He he refused to hold his arm out CHP “stuck it bars a officer out through headlock, the deputy sheriff me in and two other officers re- placed my strained said legs.” Carleton he was unable resist because physically the officers had secured all of his limbs. The was taken from his right arm when he was the floor. After the blood was removed Carleton facing *8 holding officer who had been him
said he received a blow to head into a safety in headlock. then led six officers and placed He was away by in the face and In the cell he was forced to the hit ground, cell. safety in the kicked ribs. after Carleton he shortly
Gilbert and testified that when saw Reilly released, blue, cut below there was an open was his left was black and eye both on the face was swollen on sides his of the cheek bone. His eye tip and he was unable to move his left shoulder.
E resisted the aggressively the facts the court found Carleton Reviewing for four officers to use carotid restraint police requiring temporary five seconds Carleton The court said was limp. which became during active resis- time court found Carleton’s only Carleton cooperated. tance to control him. six law enforcement officers required he was testimony
The court Carleton and rejected disbelieved The court found his arm the bars of cell. place through required when Carleton’s blood withdrawn in room to the adjacent sallyport was four holding he was face down with officers all extremities placed police in medically approved essential withdrawal of Carleton’s blood sample Carleton was a “threat their fashion. acted since police reasonably or before the during own No officer struck the defendant security.” police blood was withdrawn.
The trial court’s statements reflect its consideration reading the court In Kraft Kraft force. The excluded the used excessive because the sample is, if guilty, court “The of drunkenness nonetheless driver accused opined, recalcitrant, and—not typically obstreporous, infrequently—belligerent. think, and, to be Greater are we condoned.” necessary restraints facts it to the facts Here when the trial court before compared it said: Kraft defensive, “Unlike that the defendant was wherein the court found Kraft was aggressive and where court found that the conduct officers used to assist need, all here the amount of force beyond the court finds that under the circumstan- the nurse the blood drawing ces and reasonable. otherwise generally *9 sum, me, totality the considering I find that in
“From the before shocked, the circumstances, of is not of the court the the conscience officers, strength had to use considerable conduct of the police although they defendant, him- defendant, because the on the was necessary restraint And, course, the self, steady had to they was resistive and of aggressive. blood, one arm because of that arm during drawing movement course, a needle or would the defendant by breaking endanger perhaps arm, and, course, didn’t certainly some other to his causing injury that to want happen.”
IV The factual record the court’s The more difficult findings. ques- supports conduct deciding tion is whether court was correct in legally police lawful. was of force to the to overcome a defendant’s resistance degree necessary of a blood on the of the individual strength turns size sample force necessary
defendant. Less will be to restrain proverbial 98-pound the 280- weakling. more force will be subdue Considerably required pound At the outer extremes it be weight lifting may impossible champion. to control such physical behemoths without the use tranquilizers propel- led large from dart to those veterinarians to guns similar used pacify course, Such be would, constitutionally animals. humans intrusions on objectionable.
Here controlled by scientific assistance was Carleton was unnecessary. six all of the withdrawal of his whom were persons permit Ryan, blood in a medically (See People fashion. approved at five while a restrained officers [defendant technician removed of force degree may the blood sample].) Although excessiveness, the brink of not excessive. Carleton’s self- approach induced brief before the withdrawal of a physical during restraint not is conscience shocking. of driving time testimony on the defendant’s blood alcohol Expert take refusal to driving Although evidence in a drunk case. powerful defendant, test the impact blood alcohol be used court may against with of direct evidence strength such refusal cannot be equated a defendant absolute that issue. Absent clear mandate legislative giving obtained, such whether a test be the lack of control of blood alcohol awith evidence should not of a defendant’s degree cooperation turn on more suc- drunk driver who is premium given the more obstreperous This should of a blood forcibly sample. cessful the withdrawal resisting means to not we would ever the use of unconstitutional suggest approve lawful accomplish ends. It is to reflect the only that to restrain reality *10 defendant reasonable force be withdraw a blood properly from an actively defendant. On the facts here we resisting hold the court correctly admitted the blood test.
Disposition Writ denied.
Work, J., concurred. STANIFORTH, P. J. Acting respectfully dissent. I majority my view errs in two (a) areas: significant to ex- failing amine and evaluate the conceded (b) facts of this case and controlling ig- the substantial noring of case law body and statutes which deny any legal for the support (use specific challenged restraint) activities of carotid/karate of the officers here.
I First, as to the critical and facts. The court in undisputed on Car- ruling leton’s Penal Code 1538.5 motion held:
“I guess they could have talked to him for a time and tried to talk long him into it or calm attitude, him down or but I am change satisfied that the facts here were that defendant, when confronted with that prospect, it, arm, it, he doesn’t deny initially resisted with his tensing drawing left that, it back. The police interpreted and not as not unreasonably, only re- sistance, but a threat perhaps to their own security. . . . him, the police came and a carotid put “[W\hen restraint on there officer seconds,
was a temporary, perhaps couple or as the defendant testified to, seconds, maybe where he was but limp, that is the only four five evidence the court has it as to the body essentially going before defendant’s ” in a limp otherwise (Italics added.) cooperating. fashion
The factual of the finding carotid/karate restraint application (commonly called choke hold hold) or sleeper amply supported by not testimony only the officer who the restraint as well applied as those who observed it.
According Officer at a time Jopes, when six officers and a were nurse trying get violence, from drunken Carleton force or “Sergeant arm, left I holding neck restraint. was had administered a Plumbley him were holding officers that or three other there was two approximately down.” sort had some Plumbley Sergeant You mentioned that Mr.
“[By Koch]: neck. of neck restraint around Mr. Carleton’s *11 stand, could dem- and if you
“If could down from the witness you step which, to the best of onstrate, your if recall you the exact manner please, the defendant?” restraining observed ability, you Sergeant Plumbley counsel, Mr. court then asked defendant’s witness complied. like a “It looks to responded “describe that.” Mr. Thompson, Thompson barbaric hold.” it:
Mr. Koch for the district then described attorney neck, of Mr. Koch’s has his arm to the deputy right right portion “[T]he over the left shoul- and his forearm around the neck and back right wrapped der. hand, his left
“It also as if hand is appears right grasping Deputy Jopes’ the circle. completing or is the apex It that the Adam’s windpipe appears apple
“The Court: of the elbow of the deputy.” was, Honor, at least
“Mr. Koch: Your it also reflect that there observation, the Adam’s apple there was no on my being pressure placed neck area or . . . .” restraint, the
When further about the use of this particular questioned that in that regard,” testified that avoid “something you deputy specifically is, the Adam’s “any your apple windpipe arm part against clear the ca- it is testimony quité restrained.” From the foregoing rotid/karate restraint was on Carleton. placed district attorney to a urine test. The
Carleton testified he offered to submit “No, are you The officer said conceded this offer was made but refused. a series of blows to Carleton described submit a blood test.” going on face caused my the “headlock his head and his Carleton testified body. some He recalled seeing I could some blood.” my some nose. taste pain context, He the blood was taken. for a of time. In this stars short period then taken to cell.” He said the “safety “officers forced me directly the floor of the cell.”
The officers denied the use of of violence or that any type they injured Carleton in ribs, denied respect, they him in the him kicking striking on the cheek or him onto the floor on forcing his face. The court made a finding that Carleton while in about, the rubber room was thrashing “prob- ably very upset he had been or will his had been overcome.” The court further found “in the did struggle, officers cause substantial bruis- police arms, es both to shoulder, his perhaps wrenching his caused in by his part Also, own resistance. caused marks in and about his neck virtue him, holds had and that all the during more than scuffling likely head, face, cheek and areas came eye arms, into contact with officers’ bodies, shoulders, floor and so forth.”
The trial court concluded these activities were not to the con- shocking court, science of the the Schmerber citing and Rochin standards as author- ity.1
The majority cites no case to of the carotid/karate support application restraint described above in connection with the withdrawal blood. The reason is obvious. This is without in the type activity law. approval Whenever and wherever life endangering activity has been used choking by it has been police, disapproved the court. by
II The cases cited by majority to its conclusion are correct support state- ments the law but of academic interest do not reach the only. They environs of the problem raised these facts where a was choked suspect out in order to accomplish of blood.
A
has no
suspect
constitutional
or
right
destroy
evidence.
dispose
People
(1957)
v. Duroncelay
690],
In
v.
People Ryan (1981) 116
168
five
Cal.App.3d
Cal.Rptr.
[171
officers restrained the defendant while a technician withdrew blood. The
(1966)
908,
1Schmerber
1826];
v.
1195 because police Rochin standard found no violation of the court in Ryan the defendant’s to overcome than was did not use more force restraint or wan- carotid In did not Ryan, engage any resistance. tonness, violence or beating. commenc- of cases within the penumbra falls factually
The case at bench
restraint, choke hold or the karate technique suppression ers, (the technique In Sanders the judo choking 802. in order to case) compel as was used precise technique applied in Sanders justified The officer Sanders out his mouth. spit object “ It humane hold. very as common.” ‘It is a choking “very technique swallowing, leave doesn’t marks.’ . . . This stops out.’” head, he then the blood flow to the eventually passes stops him due denied Sanders contended the force used by police *13 the judgment. of law. The court and reversed process appellate agreed Sanders, in no choking In there was fact General asserted Attorney de- to necessary prevent and the force used was no more than reasonably was a technique” struction of the He insisted the term “choking evidence. hold. misnomer a legitimate judo competition Al- this contention.
Said the “We are unable to accept court: appellate hold,’ humane ‘very was a the officer concluded that his though technique or throat calcu- to one’s neck it to us that of force any appears application officer, blood flow to ‘the to, does, stop lated and which as stated head, or its equivalent.” choking and then he out’ constitutes passes omitted.)2 Sanders, 802, 805, fn. v. 268 (People supra, Cal.App.2d 2A footnote of Sanders relates: Fun, (1961), (Bruce Judo for Tegner Library we find a work “In the San Francisco Public 61-16761) ‘Chokes it is stated: wherein pp. 20-21—Library Congress Catalog of number who present Belt instructor is a Black attempted by any player not be Judo unless there must attempt to Katsu). dangerous It is foolish (Kappo is trained in the art of or resuscitation who, are some instructors safety Although there choking techniques precaution. without this
1196 allow Sanders court reasoned: “It is is unreasonable to argued an officer to use arrest such force as is to felon’s accomplish [citation], to the officer a to destruction yet right similar deny prevent of the evidence felony. This assumes that choking assumption [italics orig.] swallowing from nar ordinarily necessary suspect prevent cotics—an And in assumption apparently experience. unsupported event, as an direc appellate intermediate court we must the clear respect Parham, 378, 384, tions People v. 60 Cal. 2d prohibiting of choking under the this v. suspect (People circumstances case.’’’ Sanders, 805-806, 802, added.) supra, 268 italics v. Cal.App.2d People (1963) 378, Parham 497, 1001], 60 384 says Cal.2d 384 P.2d Cal.Rptr. [33 most a man to explicitly: “Choking extract evidence his mouth violates due process.”
Not only
authoritative,
does Sanders rest on
but it
controlling precedent
has been cited with
Court
v.
recent
cases
approval
People
Supreme
(1978)
284,
Scott
21
876,
123], and
Cal.3d
293
578 P.2d
Cal.Rptr.
[145
People
(1975)
Bracamonte
15
405
540
Cal.3d
Cal.Rptr.
Bracamonte,
P.2d
footnote
In
Court
cer-
6.
said: “We
Supreme
do not
tainly
intend to curtail
efforts to
the destruction
prevent
evidence. Inasmuch
the mouth
is no
as
is not a sacred orifice and there
evidence,
constitutional
or
right
destroy
swallow
dispose
attempts
evidence can be
em-
as
as excessive
is not
prevented
long
[citations]
force
.;
ployed. (People
(1963)
v. Parham
Recently, v. Trevino (officer throat), placed hand defendant’s Justice 243] Compton speaking for the unanimous said: “As to of force court the amount that is permissible the cases the use of a means of uniformly reject as choking preventing destruction of it.” defendant forcing disgorge *14 691.) p.
permanent unfortunately submit the minutes. danger.” must not [1] of the flow of choke “This It requires windpipe against immediately comment ’ apply (People injury allow can be the more skill to even a blood to the head until one or even v. iterates what must be considered common carotid it, and refuse Sanders, fatal. If legal chokes fatality artery choke without the apply supra, against at to practice can if any Judo 268 cause the windpipe time a unconscious chokes Cal.App.2d with unconsciousness windpipe becomes unconscious presence anyone properly, should not be 802, 805, of Black Belt Instructor. The choke is who is not revived within against and there is knowledge—that any applies fn. applied practiced. the carotid 1, is attended chokes italics to danger you—you Chokes added.) artery. a matter by stoppage serious nature. serious against legal must You
1197 Carleton he grabbed one occasion the officer testified on Here sufficient pressure occasion described applying throat and on another re Compton off air. Justice to cut but not sufficient swallowing prevent is a dan throat to a person’s “The application most aptly. sponds of force that, any more than It activity. type and sensitive is gerous of force ” (Trevino, other, arrestee. in violent resistance likely is result alone, should standing 692.) at Justice Compton’s nonimprimatur, supra, come can in no wise Such barbarous acts doubt on the matter. settle The of serious danger under the medical heading “accepted practices.” v. knowledge.” (People is “common fatality and even injury permanent Sanders, Rather, v. 802, 805, People as fn. supra, Cal.App.2d Parham, due 378, holds, blatant violation of process 60 Cal.2d it is a supra, more officers here “do The acts of the police such engage procedures. about sentimentalism offend or private than some fastidious squeamishness that shocks conscience.” This is conduct crime too combatting energetically. (Ro 183, L.Ed. U.S. California, supra, chin 190].) care must heed and consider
The determination of due judicial process To and credible evidence. the means used to obtain otherwise relevant fully cloak brutality sanction a brutal life choke-out is to afford endangering law and therefore be to discredit law. would more calculated “Nothing 173-174 (Rochin, to brutalize the society.” pp. of a temper 191].) L.Ed. at p.
Ill Kraft, supra, The trial court relied here improvidently upon In Kraft, due was violated. whether assessing process hit the arrestee in and another officer arrestee pushed officer necessarily restraints were cheek. court noted that appellate greater Nevertheless, the drunk. be condoned with an obstreperous, belligerant were because they court held the violated the Rochin standard officers Kraft in that there The trial court beyond distinguished all need. aggressive Kraft unnecessarily conduct was the defendant was and the officers’ defensive nonrelevant sophis- dichotomy pure aggressive. defensive/aggressive (defensively aggressively) The facts are clear: Carleton resisted try. choked into submission. of his blood. He was sum, of circum- totality The court here concluded: “In considering shocked, that the conduct stances, not the conscience of the court is and restraint officers, strength had to use considerable although *15 defendant, himself, was resis- defendant, the on the was because necessary tive and aggressive.”
This is not a Rochin It We are proper required is to analysis. incomplete. the trial accept court’s conclusion was Carleton “aggressively resisting”; however, the determination the force used for was control rather necessary than in punitive nature does not end the Rochin If such were the inquiry. then law the could and an batter lawfully unmercifully aggressively- resisting defendant if into submission it obtain control. law; Such is not the the end does not an unlawful or barbarous justify unlawful, means. Evidence of may not be guilt by extracted barbaric means. The of a to a a application choking force throat is and person’s dangerous Parham, sensitive activity. It is a violation due su- (People process. pra.) Rochin,
Under it is not enough to whether the means were nec- question essary accomplish objective obtaining the otherwise relevant and credible evidence. The court also must whether means question justify the end. The conduct of the in a using officers carotid hold suppression reached a degree brutality so as to authorize the refusal admission of a court of law.
IV further errs its majority analyze failure to consent law implied (Veh. Code, 13353) and which intent explicate legislative compelled § enactment this law. (Hawkins) (1972) Court Superior Cal.3d 764-765 493 P.2d is most instruc- There, tive this issue. Court out that under Schmer- Supreme pointed ber, a person who has been arrested have a blood lawfully sample forcibly removed without his a provided consent done in rea- sonable medically manner and approved officer had provided arresting cause to probable “[N)evertheless believe arrestee was intoxicated. such ” an episode remains an unpleasant undignified undesirable one. at p. Court Supreme number of explained: shocking injuries “[T]he
deaths on the caused highways drunk drivers has compelled society extreme adopt measures enactment section response. By its in 1966 of 13353, the devised Legislature an additional or alternative method of com- pelling arrested for test person drunk to submit to a for intoxica- driving tion, that such lose providing will his automobile driver’s license for of six months if he period refuses submit to test for intoxication. The effect of legislation is to officers with instrument of equip peace enforcement not involving It is so physical compulsion. noteworthy doing, took its Legislature to condition use a lawful arrest pains upon under the influence of driving the reason- intoxicating liquor upon
1199 driving.” in so fact able belief of the officer that arrestee peace 757, 765.) (Hawkins), 6 Cal.3d v. Court (People Superior supra, Department in v. The Court became more explicit Hernandez Supreme 70, 566, P.2d 77 634 Vehicles 30 Cal.3d Motor statute, both this court where it “Prior the enactment of the said: has that when a States had held explicitly person United Court Supreme utilizing been drunk lawfully appropriate arrested for driving police, remove a blood forcibly medical procedures, may orig.] [italics of such legality from the driver consent. Despite without his [Citations.] however, that ‘such recognized ep coercive procedure, Legislature v. (People isode remains an and undesirable one.’ unpleasant, undignified . . . .) In section (Hawkins) (1972) 6 Superior enacting Court Cal.3d 757 13353, the driver these Legislature consequences obviate sought for were tests ‘avoid the which could possible erupt violence if forcible Cozens, (Anderson v. made inebriate’ upon belligerant recalcitrant 131, 143), supra, 60 while at the same time preserving of the defendant’s strong state’s interest in best evidence obtaining at the devised an Legislature alcohol content time of the arrest.” Thus “the drunk for additional or alternative method of arrested person compelling intoxication, person to submit that such driving by providing a test if he will months lose automobile driver’s license for a six period is legislation to submit to a The refuses test for intoxication. effect involvingphys with an instrument not equip peace officers of enforcement (Hawkins), ical 6 Cal.3d supra, v. Court compulsion.” (People Superior 757, 765, added.) italics 404, Bracamonte, 394, Court Cal.3d supra, Supreme
has are in Schmerber said: “We mindful of the Court’s Supreme warning of our a cherished value of an individual’s integrity ‘[t]he not the State’s That we that the does society. today hold Constitution forbid condi- limited stringently minor intrusions into an individual’s under body intrusions, or substantial way tions no indicates that more permits 757, U.S. (Schmerber California, under other intrusions conditions.’ search, .)” that a 772 . . Court concluded: “We reiterate Supreme . its virtue even if be unconstitutional justified its inception, Furthermore, the use excessive intensity intolerable and scope. force (Id., at 404- law.” pp. which shocks the conscience violates due process of added.) italics
V v. Cali- writ. In Schmerber for the issuance of the grounds Further exist correctly Court States fornia, Supreme U.S. United *17 stream) with perceived dealing (alcohol the blood that was evanescent in nature. In view of that of the nature evidence the proce- dures to secure it and employed maintain its the intrusion viability justified without first resort to the search warrant The evidence procedure. case indicated a warrant be obtained in an could telephonic expeditious manner—in Furthermore, fact in a matter of the the art minutes. state of blood, scientific concerning of blood con- preservation analysis alcohol content, tent and the current abilities to “back track” a blood alcohol make the antiquated Schmerber the character of the evidence premise evanescent justifies warrant avoiding search Nowhere this evidence procedure. there can be found an to warrant re- emergency the forcible exigency (Hawk- moval the fluids from body. People Superior Carleton’s Court ins), supra, Cal.3d out over- points must show an prosecution warrant, need whelming justified the that exigency intrusion without situation made the immediate and forcible removal imperative. at p. Finally, as Court said: burden Supreme “[T]he show an need that a search overwhelming justify would without warrant extraction ‘The exceptions require- [enforcible situations]. [to ment of a drawn,’ are there ‘jealously carefully warrant] [citation] must be ‘a of those who seek . . showing exigencies . that the exemption ’ situation made that course burden is imperative. [Citation.] ‘[T]he on those seeking (Ibid.) to show the need for it.’ exemption [Citation.]”
For each of these the writ reasons should issue. Petitioner’s for review denied application by the Court was Supreme Bird, J., J., Mosk, December 1985. C. were of the opinion the application should be granted.