Lead Opinion
Opinion
Nicholas J. Esayian was arrested for driving under the influence of alcohol and, in accordance with the implied consent law (Veh. Code,
Esayian appealed his conviction to the appellate division of the superior court (Appellate Division). That court affirmed
We transferred the matter to this court and requested the parties brief a third issue of whether the evidence in this case establishes that County of San Diego (County) law enforcement agencies have a deliberate, systematic and persistent policy to have blood drawn in violation of the statutory scheme. We have also permitted the filing of various amicus curiae briefs and have heard oral argument in the matter. After a review of the record and consideration of the briefing, we are convinced the record before us does not establish a systematic and persistent policy by the County to violate the statutory scheme for drawing blood in this type of case. We are also satisfied that Esayian’s blood was not drawn in violation of the Fourth Amendment and that Esayian’s right to a fair trial was not violated by the introduction of blood test results where the blood draw did not comply with California’s regulatory scheme. Accordingly we will affirm the judgment of the superior court.
FACTUAL BACKGROUND
Deputy Sheriff Charles Morreale stopped Esayian for speeding and subsequently arrested him for DUI. Esayian was given the choice of a blood, breath or urine test to determine his BAC. He elected to submit to a blood test. Deputy Morreale took Esayian to the Vista Detention Facility where, pursuant to a contract between the County and American Forensic Nurses, phlebotomist Sally Garcia drew Esayian’s blood. The blood test results showed that Esayian’s BAC was 0.12 percent. Esayian was charged with misdemeanor counts of driving under the influence of alcohol (count 1) and driving with a BAC of 0.08 percent or greater (count 2).
Prior to trial, Esayian moved to suppress the blood test results on the grounds that Garcia was not authorized to draw blood in DUI cases pursuant to section 23158.
At the pretrial hearing Deputy Morreale testified he arrested Esayian for DUI. Esayian elected to take a blood test. Deputy Morreale was aware that a phlebotomist would be on duty at the Vista Detention Facility and that there was also a breath testing machine at that location in the event Esayian changed his mind as to which chemical test he would choose. Morreale took Esayian to the Vista facility where he observed phlebotomist Sally Garcia draw blood from Esayian. Morreale had observed blood draws for DUI cases on a number of occasions. He did not observe anything unusual about this particular blood draw.
Morreale testified he observed Garcia cleanse the area from which the blood was drawn with a nonalcoholic swab. Deputy Morreale did not know the requirements of California Code of Regulations, title 17, section 1219.1 (Title 17).
Esayian testified that upon his arrest he elected to take a blood test. He did not discuss the qualifications of the phlebotomist with either Deputy Morreale or Ms. Garcia. Esayian believed Ms. Garcia
Sally Garcia testified she was employed at the Vista Detention Facility on the date of Esayian’s blood draw. She did not remember the details of the specific draw on that date. Ms. Garcia was working for American Forensic Nurses at the Vista facility. A registered nurse was on duty at the time. The nurse would check the suspect’s vital signs, but would not necessarily be present when the blood draw took place.
At the time of her testimony at the suppression hearing, Ms. Garcia was employed as a medical assistant for Cassidy Medical Group. Most of her duties at the Cassidy Group generally involved back office responsibilities. She had received six months’ training at the Simi Valley Adult School in conducting venipuncture blood draws, although the course was designed for training medical assistants. She is not certified by the State of California. In her medical career she had performed over 200 blood draws. She did not know the requirements of Title 17.
Ms. Garcia worked for American Forensic Nurses for two years and had performed about 100 blood draws relating to driving under the influence cases.
In her usual procedure to draw blood she would wait for the nurse to check the suspect’s vital signs. Then Ms. Garcia would use a tourniquet. She did not recall using a swab on the occasion of Esayian’s blood draw. If she had she would not have used alcohol or betadine. She would use a handiwipe supplied by American Forensic Nurses. She conducts blood draws at the Vista facility in the same manner as she does while working as a medical technician. She only draws venous blood from the suspect.
Garcia recalled no complications from the procedure. She then testified about the process of collecting and storing the sample.
DISCUSSION
I
DELIBERATE AND SYSTEMATIC VIOLATION OF STATUTE
As we have indicated, we requested that the parties and the amici curiae brief the question of whether the record demonstrated a systematic, deliberate and persistent violation of the statutory scheme regarding blood draws in DUI cases. After careful review of the record, including those matters judicially noticed by the court, we conclude this record does not support a finding of systematic, deliberate and persistent violation of the statutes by the County.
We have reviewed the amicus curiae briefs presented in this case. Amicus curiae on behalf of Esayian cites to the record in another appellate proceeding (Ridener v. Superior Court (May 15, 2003, D041984)), which includes evidence that although the contract between the County
n
THE BLOOD DRAW IN THIS CASE DID NOT VIOLATE THE FOURTH AMENDMENT
Esayian contends the trial court erred in denying his motion to suppress evidence under Penal Code section 1538.5. His principal argument is that the blood draw in this case did not comply with the statutory rules governing the drawing of blood in DUI cases and therefore the blood was taken in violation of the Fourth Amendment. During oral argument a separate issue was raised regarding the blood draw in this case. It was argued that under Schmerber v. California (1966)
As we will explain in the discussion that follows, the drawing of blood in a DUI case by a phlebotomist who does not qualify under section 23158, subdivision (a) does not amount to a violation of the Fourth Amendment, nor does such violation support exclusion of the blood test evidence under either the California or federal Constitutions. As to the proof of the manner of drawing the blood, the record in this case is sufficient to show that the draw was made by a person trained in venipuncture and done in the same manner as blood is regularly drawn in ordinary blood tests. Thus we are satisfied the blood was drawn in compliance with the directives of Schmerber.
A. Statutory Violation
Although the trial judge at the Penal Code section 1538.5 motion found Garcia’s training and experience almost satisfied Business and Professions Code section 1246, subdivisions (a) through (b), the District Attorney and the amicus Attorney General concede the taking of blood in this case violated the literal requirements of section 23158, subdivision (a). We accept those concessions on this record and proceed to analyze Esayian’s contentions based on the assumption Garcia’s actions did not comply with statutory requirements.
Before we examine the merits of this contention we set forth the appropriate standard of review. On appeal from a denial of a motion to suppress evidence on Fourth Amendment grounds we review the historical facts as determined by the trial court under the familiar substantial evidence standard of review. Once the historical
Esayian’s contention that a violation of the statutory requirements for the manner of drawing blood in DUI cases does not raise any factual questions in this case. The effect of such violations is a question of law for this court to independently decide. In making that determination we are guided by recent case law from the Supreme Court.
In People v. McKay (2002)
In People v. Ford (1998)
We believe that the reasoning of McKay, supra,
B. The Manner of Drawing the Blood
As we have noted, the discussions at oral argument raised the questions of whether Schmerber, supra,
In Schmerber, supra,
In Winston v. Lee (1985)
Applying the above principles to the facts of this case, we find the prosecution carried its burden to show the blood was drawn in a constitutionally permissible fashion. Clearly a blood draw is a medical procedure and must be conducted in keeping with medical requirements for such procedure. The Vehicle Code creates a statutory scheme for such draws, but noncompliance with the statute does not, by itself, demonstrate the methods used were improper.
The trial court in this case could reasonably find that Garcia had undergone appropriate training in venipuncture. She was employed at a medical clinic and had done about 200 blood draws in her “medical career.”
The only negative fact discussed at oral argument was the fact that Garcia did not know the requirements of Title 17. There is nothing in that fact, however, that detracts from the evidence that this draw was like the others she did in her medical career, as distinguished from her work for American Forensic Nurses. Title 17 does not address Garcia’s work at the clinic or her training in venipuncture. It was not necessary in this case for the prosecution to produce (without request or objection from the defense) a separate “medical expert” in order to meet its burden of proving compliance with the Fourth Amendment.
The trial court properly denied the motion to suppress evidence.
m
DUE PROCESS
Finally, Esayian contends that the introduction of the blood test results at trial violated his right to due process. He argues that admitting evidence of a blood test where the blood was taken in violation of the statutory scheme is fundamentally unfair. We do not find a violation of Esayian’s due process rights.
Esayian was represented by counsel at trial. He had full access to the prosecution’s evidence and had the opportunity to fully challenge the government’s case. Esayian not only moved to suppress the blood test evidence before trial, he mounted a vigorous attack on the credibility of that evidence at trial. Esayian presented expert witness testimony to criticize the manner in which his blood sample was stored, preserved and processed. His expert sharply challenged the test results.
Esayian’s evidence was countered at trial by an expert presented by the prosecution. At the end of the process, the jury believed the prosecution’s case and convicted Esayian. He does not challenge the sufficiency of the evidence. He simply argues that tests taken in violation of statute violate due process.
A person seeking to overturn a conviction on due process grounds bears a heavy burden to show the procedures used at trial were not simply violations of some rule, but are fundamentally unfair. (Montana v. Egelhoff (1996)
DISPOSITION
The judgment is affirmed.
O’Rourke, J., concurred.
Notes
All further statutory references are to the Vehicle Code unless otherwise specified.
The sample preservation and testing process was vigorously contested at the motion hearing and at trial. The issues before us in this proceeding however, do not require our consideration of such evidence. Accordingly, we have omitted discussion of the details of such testimony.
She also testified she had performed about 100 blood draws in DUI cases.
Concurrence Opinion
I concur in the majority opinion to the extent it holds that the record properly before us does not demonstrate that the County of San Diego (County) has a deliberate, systematic and pervasive policy of having blood draws conducted in violation of statutory requirements. I dissent, however, from the majority’s conclusion that the blood draw in this case does not violate the Fourth Amendment. Because I find that the prosecution did not meet its burden to show that the blood draw was constitutionally reasonable in this case, I do not reach the issue of whether the introduction of the blood test results at trial violated Esayian’s due process rights.
Pursuant to state law, only specified persons may draw blood for the purpose of determining its alcohol content (BAC). (Veh. Code, § 23158, subd. (a) (all further statutory references are to the Vehicle Code unless otherwise specified); Cal. Code Regs., tit. 17, § 1219.1, subd. (a) [referring to former § 13354, now § 23158].) Persons authorized to conduct the procedure include licensed physicians or surgeons, registered nurses, licensed vocational nurses, certain licensed clinical personnel or certified paramedics acting at the request of a peace officer. (§ 23158, subd. (a).) In addition, certain unlicensed laboratory personnel are authorized to conduct such blood draws, provided certain statutory requirements are met. (Ibid.) As relevant here, an unlicensed person is qualified to perform such a procedure (1) at the direction of a peace officer, if (2) he or she (a) is properly trained, (b) is employed by a licensed clinical laboratory, and (c) works under the supervision of a physician or other licensed person who is “physically available to be summoned to the scene of the venipuncture within five minutes during the performance of those procedures.” (Bus. & Prof. Code, § 1246, subds. (a)-(b); § 23158, subd. (a).)
A person authorized by statute to draw blood samples for purposes of blood-alcohol testing is required to comply with regulatory standards applicable to such blood draws, as set forth in California Code of Regulations, title 17, sections 1219 and 1219.1. Those regulations set forth certain minimum standards for blood draws, including the use of nonalcohol or other volatile organic disinfectants for the draw site and of sterile, dry hypodermic needles and syringes or clean, dry vacuum-type containers with sterile needles. (Cal. Code Regs., tit. 17, § 1219.1, subds. (c), (d).)
It is undisputed here that Garcia did not meet the requirements of section 23158
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures” by police officers and other government officials. (U.S. Const., 4th Amend.) By virtue of the due process clause of the Fourteenth Amendment to the federal Constitution, this guarantee is applicable to the states. (See Mapp v. Ohio (1961)
A person may consent to a warrantless search of his person or property, and in accordance with the state implied consent law, all drivers of motor vehicles are deemed to have consented to a blood, breath or urine blood-alcohol test when lawfully arrested for driving under the influence. (§ 23612; Zink v. Gourley (2000)
Of course, the absence of consent does not establish a federal constitutional violation. In Schmerber v. California (1966)
What is reasonable “ ‘depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself,’ ” and the permissibility of the search is “ ‘judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’ ” (Skinner v. Railway Executives’ Assn. (1989)
It is well established that the government has a significant interest in obtaining blood test evidence to determine whether a driver was under the influence of alcohol. (Schmerber, supra,
Where the search involves a surgical intrusion beneath the skin, its reasonableness depends in part on “the extent to which the procedure may threaten the safety or health of the individual.” (Winston v. Lee (1985)
In Schmerber, the U.S. Supreme Court concluded that the taking of a blood sample “by a physician in a hospital environment according to accepted medical practices” was constitutionally reasonable. In finding reasonableness, the high court noted “[w]e are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified
Here, the blood sample was taken in circumstances similar to those that concerned the Schmerber court. Garcia drew Esayian’s blood at the Vista Detention Center rather than in a hospital or other medical facility, and she was not qualified to do so pursuant to statutes and regulations enacted or promulgated after the issuance of the Schmerber decision. (Stats. 1966, 1st Ex. Sess. 1966, ch. 138, §§ 1-2, pp. 634—637.) Further, Garcia was completely unfamiliar with the regulatory standards for conducting such a blood draw. Although the prosecutor introduced evidence as to the steps Garcia followed in taking Esayian’s blood, the evidence adduced at trial did not establish the applicable medical standards for such a procedure. In addition, the prosecutor did not present any evidence as to the safety and sanitation conditions at the detention facility and whether those conditions would comply with the standards applicable to medical facilities. Thus, the prosecutor did not meet his burden of proof to establish the reasonableness of the blood draw for Fourth Amendment purposes. (See People v. Jenkins (2000)
The intrusion into personal privacy of an individual whose blood is being drawn is much greater where the person drawing the blood lacks the qualifications expressly required by law and the knowledge of the applicable standards for conducting such a procedure. Consequently, there is no assurance that the person is familiar, and will comply, with medically accepted standards for the procedure. The fact that the procedure is conducted in a nonmedical facility adds to the risk, and thus the magnitude of the intrusion, absent a showing that the safety and sanitation standards maintained at the detention facility are similar to those that are required for medical facilities. In addition, there is an increased risk from the lack of personnel available to respond in the event of a problem. (Here, although Garcia testified that a nurse was present at the facility at the time she conducted the blood draw, she was uncertain about whether the nurse was a registered nurse and that, in any event, the nurse was not physically present during the blood draw.)
I acknowledge that another California court has reached the opposite conclusion on similar facts. (Ford, supra, 4 Cal.App.4th at pp. 35-40).) In Ford, the appellate court held that the taking of blood by a phlebotomist, in a nonmedical setting, for alcohol testing purposes did not violate the Fourth Amendment and thus the resulting blood test evidence was not subject to exclusion at trial. (Id. at pp. 36-38.) In reaching this conclusion, the court observed that the phlebotomist used “a standard procedure and materials he obtained from a local hospital” and certified that he withdrew the blood sample in a medically approved manner. (Id. at p. 37.) Based on these circumstances, and the fact that the defendant’s medical experts “did not take exception” to the manner in which the sample was collected, the court held that the intrusiveness of the blood draw was not constitutionally unreasonable in light of the community’s
The circumstances of this case are distinguishable from those involved in Ford. Here the evidence establishes that Garcia was not only statutorily unqualified to conduct the blood draw, but was also not trained in conducting blood draws for purposes of determining a driver’s BAG and did not know what the regulatory standards applicable to such a procedure required. Unlike the phlebotomist in Ford, Garcia did not, and in fact could not, opine that she drew Esayian’s blood in a medically acceptable manner. The testimony of Esayian and Morales likewise failed to establish that this Schmerber requirement was met. Thus, although the court concluded that the prosecutor made a sufficient showing of the reasonableness of the search in Ford, it did so based on substantially different evidence than that presented by the prosecution in this case.
The United States Supreme Court has explained that the exclusionary rule is a judicially created remedy designed to deter law enforcement misconduct by prohibiting the admission of evidence obtained in violation of the Fourth Amendment. (Arizona v. Evans (1995)
I believe that the application of the exclusionary rule is appropriate in a situation such as this—where the County’s uses an unqualified and untrained personnel to draw blood from a driver in a nonmedical setting. Although the evidence in the record is not sufficient to establish that the County has a deliberate, persistent and systematic policy of failing to comply with the applicable minimum standards for blood draws, I nonetheless conclude that the exclusion of the evidence in this case will deter the repetition of this situation, which, as discussed above, creates an undue risk to the safety and health of the drivers.
For these reasons, I conclude that the trial court erred in concluding that the prosecution met its burden to show that the blood draw was conducted in a constitutionally reasonable manner and denying Esayian’s motion to suppress the BAC evidence that resulted from the blood draw. Because no other evidence of Esayian’s BAC was introduced at trial, I would reverse the conviction for driving with an excessive BAC.
A petition for a rehearing was denied November 12, 2003.