THE PEOPLE, Plaintiff and Respondent, v. RICARDO MATTHEW KRAFT, Defendant and Appellant.
Crim. No. 5344
Third Dist.
Jan. 9, 1970.
A petition for a rehearing was denied February 6, 1970.
2 Cal. App. 3d 890
David A. Wilson for Defendant and Appellant.
Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, Edsel W. Haws and Nelson P. Kempsky, Deputy Attorneys General, John Price, District Attorney, and Peter Franchi, Deputy District Attorney, for Plaintiff and Respondent.
OPINION
PIERCE, P. J.—Defendant was convicted, after a nonjury trial in the municipal court of misdemeanor drunk driving (violation of
After defendant had been arrested a blood sample was taken. The analysis was introduced into evidence. It showed a blood alcohol content of .24 of 1 percent. Defendant had refused to submit voluntarily to that or any other of the tests specified in
The reasons for our conclusions will, we think, be clearer if we reverse the traditional opinion writing method by discussing the rules of law involved before outlining the facts.
In cases not involving the California “Implied Consent Law” (
The court in Schmerber analyzed Breithaupt v. Abram, 352 U.S. 432 [1 L.Ed.2d 448, 77 S.Ct. 408]. It pointed out that there the defendant driver was unconscious and that the blood had been withdrawn in a “simple medically acceptable manner.” (Id. 384 U.S. at pp. 759-760 [16 L.Ed.2d at p. 913].) Thus there was no act offensive to that “sense of justice” condemned in Rochin v. California, 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396]. Breithaupt, said the Schmerber court, required denial of the argument that involuntary blood withdrawal was per se a denial of due process. (Id. 384 U.S. at p. 760 [16 L.Ed.2d at p. 914].) The court also held that since the privilege against self-incrimination applied only to evidence testimonial or communicative in nature the Fifth Amendment had not been violated. (Id. at p. 761 [16 L.Ed.2d at p. 913].) The court also held that Sixth Amendment rights had not been violated. Defendant had been represented by counsel. The contention was that because defendant‘s objection to the taking of the test had been made on the advice of counsel his Sixth Amendment right to counsel had been infringed. The court said (at p. 766 at 384 U.S. [16 L.Ed.2d at p. 917]): “... Since petitioner was not entitled to assert the privilege, he has no greater right because counsel erroneously advised him that he could assert it. . . . No
The court next considered the search and seizure claim. The contention that a search warrant should have been obtained was answered by the court‘s recognition of the fact that alcohol in the blood stream is rapidly absorbed by the body and that the delay involved in obtaining a search warrant might destroy the value of a blood analysis. (Id. 384 U.S. at pp. 767-768 [16 L.Ed.2d at pp. 917-918].)
The court did not hold—indeed respondent did not argue—that the administration of a blood test is entirely free of Fourth Amendment constraints. The majority opinion is liberally sprinkled with phrases abjuring “intrusions into the body . . . not justified in the circumstances, or which are made in an improper manner,” and the court demands that “means and procedures employed . . . [must respect] relevant Fourth Amendment standards of reasonableness.” (Id. 384 U.S. at p. 768 [16 L.Ed.2d at p. 918].) But the opinion also contains “on-the-other-hands,” saying that the “quantity of blood extracted [in a blood analysis] is minimal” and “involves virtually no risk” when withdrawn “by a physician in a hospital environment according to accepted medical practices.” (Id. 384 U.S. at p. 771 [16 L.Ed.2d at p. 920].) The opinion concludes with the warning (on p. 772 [16 L.Ed.2d at p. 920]): “It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual‘s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusion into an individual‘s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.”
Schmerber was first referred to and applied by our Supreme Court in People v. Sudduth (1966) 65 Cal.2d 543 [55 Cal.Rptr. 393, 421 P.2d 401]. That case did not involve the taking of one of the chemical tests specified in our implied consent law. It involved the right (which was upheld) of the prosecutor to comment on the refusal of a defendant to submit to a breathalizer test.
This court held in People v. Fite (1968) 267 Cal.App.2d 685 [73 Cal.Rptr. 666], that
The phrase “in the absence of force and violence” is troublesome. How much force is force? Under the portion of the opinion in Schmerber, supra, which we have quoted above, it is obvious that that amount of force which exceeds “relevant Fourth Amendment standards of reasonableness” may not lawfully be employed. It is also certain that the bounds of reasonableness are exceeded unless blood is withdrawn “according to accepted medical practices.” In the case now before us the majority opinions in the superior court did not construe the evidence as showing a violation of Fourth Amendment standards of reasonableness. The minority opinion disagreed. We now examine the facts.
In the early morning hours defendant was observed by two patrolling police officers, Curtright and Spieth, driving an automobile northward along Watt Avenue. Watt Avenue is a well traveled thoroughfare in Sacramento County. Defendant was driving on the wrong side of the street. Defendant‘s car made a right turn onto a side street and “with some difficulty” it proceeded into, and was parked in, a driveway. One of the officers approached defendant as he alighted from the car. He noted a strong odor of liquor about defendant. Defendant was standing in front of the door by the driver‘s compartment. There was a pile of gravel at that point on which defendant was standing. Curtright took hold of defendant by the arm and shoved him back into the street. He did not shove very hard but it caused defendant to fall down. When he got up he was unsteady. The officer asked for his driver‘s license. At first he refused to surrender it but did later. A series of roadside tests were given, as the result of which the officers determined defendant was very intoxicated. He was placed under arrest for violation of
Dr. Hockinberry, the physician on duty, entered the examination room where defendant was seated. Requests of defendant to submit to one of the three tests were repeated. Defendant still refused. He did respond to several routine questions by the doctor.
A withdrawal of blood was made. Before that was done defendant started to submit, then resisted. Both officers grabbed his arms. There is evidence that they tried to carry or lead him to a bed located in the examination room. In the process defendant fell or was pushed from a chair and he and the officers fell to the floor. Defendant fell on top of Officer Spieth. On the floor defendant was immobilized. The officers applied force sufficient to hold his left arm still. The doctor was able to and did apply a tourniquet to the upper arm, cleanse the area, inject a syringe needle and withdraw blood. We describe the material evidence on these happenings in the margin.1
Ordinarily that fact would be entitled to great weight. In this case, however, the municipal court judge‘s position was equivocal. He limited interrogation of the doctor (who was present) to questions relating to the technical medical aspects of the blood taking, indicating that if the blood taking itself had been aseptic and by a qualified medical doctor the law would have been complied with. On the other hand, on request he permitted written argument at the close of the trial on the issue of excessive force, although the record indicates nothing either pro or con to establish whether he considered the excessive force argument. We believe, however, that the testimony of the officers which we have quoted in the margin (see fn. 1) is unequivocal. Although the testimony of Officer Spieth is somewhat less emphatic than that of Officer Curtright, neither officer contradicts the other and both make it clear to us that excessive force was used.
From the cases reviewed above there has emerged no more definitive rule than that restraints exercised by police officers must be reasonable. In Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74 [81 Cal.Rptr. 348, 459 P.2d 900], our Supreme Court has said in interpreting
We test reasonable police behavior here by giving further consideration to the sequence of events. Up to the point when defendant with the two officers reached the portals of the police station the only thing they had done which could be challenged in the handling of this quite apparently intoxicated defendant was to push him (or cause him to fall) onto a gravel pile. The officers had more than probable cause to arrest him; also to handcuff him to take him to jail, using all force reasonably appropriate to accomplish that. To that point no constitutional right was violated; no right of privacy; no illegal search or seizure; no violation of due process—there was no lack of fair play. It is when we step over the threshold of the hospital anteroom that constitutionally forbidden practices emerge. We need not paraphrase the testimony which we have quoted in the margin (see fn. 1). But a sentence added from Officer Spieth‘s testimony is significant. It graphically illustrates the restraints under which defendant was being held when the blood sample was taken. The officer said: “My position [on the floor] was holding on to his left arm, trying to get it in an immobile position. Also, I believe I had a scissor lock on his legs.” (Italics ours.)
Schmerber v. California, supra, 384 U.S. 757, was written with Breithaupt v. Abram, supra, 352 U.S. 432, as its background and its warning given (as quoted above) with the following quotation from the latter case in mind (on p. 438 [1 L.Ed.2d at p. 452]): “This is not to say that the taking of blood under different conditions . . . may not amount to such ‘brutality’ as would come under the Rochin rule.”
The words “force” and “violence” have different meanings in different contexts. E.g., in the law of battery “the slightest touching of another if it is unlawful” is battery and “violence and force are synonymous.” (Perkins, Criminal Law, p. 80.) On the other hand, People v. Fite, supra, 267 Cal.App.2d 685, although it uses the words “force or violence” (on p. 691) relates the use of those words to “brutal or shocking” force (on p. 687). And this court in People v. Barton (1968) 261 Cal.App.2d 561 [68 Cal.Rptr. 157], hear. den. (a case not involving the Implied Consent
The warning in Schmerber and the statement in Kesler v. Department of Motor Vehicles, supra, 1 Cal.3d 74, quoted above, as we have suggested, make it clear that each case must be decided on its own merits. . . . Within the precepts of due process “strong arm” behavior by police officers cannot be tolerated even while we recognize the principle epitomized in People v. Sudduth, supra, 65 Cal.2d 543, where the court says (on p. 546): “In a day when excessive loss of life and property is caused by inebriated drivers, an imperative need exists for a fair, efficient, and accurate system of detection, enforcement and, hence, prevention.” That we recognized to be a principle purpose in the enactment of the Implied Consent Law when we said in Fite, supra (on p. 688 of 267 Cal.App.2d, quoting): “The purpose of section 13353 is to reduce the toll of death and injury resulting from the operation of motor vehicles on California highways by intoxicated persons . . .” This court reasons that in crimes which have no direct victims such as the crime involved in Rochin, supra, (where force to compel a defendant to disgorge a swallowed narcotic was involved) police officers may properly be held to somewhat stricter standards in testing whether their behavior comports with constitutional requirements than in the enforcement of criminal laws, such as drunken driving, where “one for the road” and “there but for the grace of God go” many of us—may, and more frequently than not does, victimize innocent people and not infrequently wipes out whole families. The driver accused of drunkenness is, if guilty, typically recalcitrant, obstreporous and—not infrequently—belligerent. Greater restraints are necessary and, we think, to be condoned.
Nevertheless, the defendant here, as the officers freely admitted, was not “aggressive“; he was “defensive.” The officers on the other hand, as a careful study of the record demonstrates, were aggressive beyond all need. Tolerance of the quantity of force used here will destroy rather than implement the salutary purpose of
Judgment is reversed.
Regan, J., concurred.
DAVID, J. pro tem.*, Concurring and Dissenting.—
This cause comes before us, upon certification from the appellate department of the superior court, solely because the dicta of People v. Fite (1968) 267 Cal.App.2d 685 [73 Cal.Rptr. 666], repeated in People v. Wren (1969) 271 Cal.App.2d 788, 791-792 [76 Cal.Rptr. 673], was that the taking of blood samples was not inhibited by the Fourth Amendment, “in the absence of force and violence.” This was confusing logically because every such sampling requires a minimal force, and when resisted, requires even more. This was an inaccurate paraphrase of the constitutional requirement, which is, that the “seizure” must be reasonable, under the circumstances. In Schmerber v. California, 384 U.S. 757, 760, footnote 4 [16 L.Ed.2d 908, 913, 86 S.Ct. 1826], the court said: “We ‘cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest.’ Breithaupt v. Abram, 352 U.S. at 441 [1 L.Ed.2d at 454] (Warren, C. J., dissenting). It would be a different case if the police initiated the violence, refused to respect a reasonable request to undergo a different form of testing or responded to resistance with inappropriate force.” (Italics added.) In the same case the United States Supreme Court further stated (at pp. 766-767 [16 L.Ed.2d at p. 917]): “. . . The question is squarely presented, therefore, whether the chemical analysis introduced in evidence in this case should have been excluded as the product of an unconstitutional search and seizure.” And again, at page 768 [16 L.Ed.2d at p. 918], “the Fourth Amendment‘s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” In that connection, it is indicated that the sample should be taken under such medical conditions as would negative “an unjustified element of personal risk of infection and pain.” (P. 772 [16 L.Ed.2d at p. 920].) Applying the further language of that court (at p. 772 [16 L.Ed.2d at p. 920]) to the present case: “We thus conclude that the present record shows no violation of petitioner‘s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures.”
I concur with the majority in the correction of the inappropriate dicta. I
*Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
If it were conceded that the taking of the blood sample was an “unreasonable search and seizure,” the judgment herein still should stand. The other evidence, as the majority concedes, was of itself clear and convincing. There is no occasion to negative the conviction and to let the defendant go free, despite his clear violation of the rights of the public by his drunk driving.
There is not one iota of evidence that the taking of the blood sample by the doctor was not completely in accord with the approved medical practice. When he arose from his chair, the officers started to conduct the drunk to a bed where he could be immobilized sufficiently to enable the doctor to secure the blood sample. He fell on top of one officer, with the other officer partly upon him. The opportunity to hold him there with one officer with a scissors upon his legs, and the other twisting his arm behind him, while the doctor took the blood sample, was perhaps ludicrous, but certainly not clearly excessive nor illegal. (Cf. People v. Dawson, 127 Cal.App.2d 375 [273 P.2d 938].) Had the resistive drunk been placed on the bed, as intended, it seems likely his arms and legs would have to have been pinioned for the purposes of the doctor. There is no contention that the defendant was restrained upon the floor longer than necessary, and we have noted that the application of a tourniquet, the swabbing of the arm with an antiseptic, the insertion of the needle, and the withdrawal of the blood can be accomplished in from 15 to 45 seconds.
The court is not presented in this case with any parallel to Rochin v. California, 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396], where the concatenation of circumstances and the final force used was held to savor of the rack and the screw and to violate due process of law.
Reasonableness of the “search and seizure” is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of each case. (Ker v. California, 374 U.S. 23, 33 [10 L.Ed.2d 726, 737, 83 S.Ct. 1623].) The determination was made upon conflicting evidence. It must be considered in the light most favorable to the People to see whether it supports the determination of the trial court and the appellate department that the evidence was properly admissible over objection and that the judgment of conviction is supported by substantial evidence. (Noto v. United States, 367 U.S. 290, 296 [6 L.Ed.2d 836, 840, 81 S.Ct. 1517], cited in Blefare v. United States, 362 F.2d 870; People v. Hills, 30 Cal.2d 694, 701 [185 P.2d 11]; People v. Hannon, 44 Cal.App.2d 484 [112 P.2d 719].)
It would seem that the majority have disregarded such criteria. Conceding that the former declaration that blood samples could be taken “in the absence of force and violence” inaccurately states the law, the present decision reassesses the factual situation so as to reach essentially the same conclusion. In the language of Schmerber v. California, supra, the court cannot hold that the officers “responded to resistance with inappropriate force.”
It is asserted that the majority opinion will advance the purposes of the testing process. The moral seems to be that if a drunk resists enough, his chances of “beating the rap” increase proportionately with his resistance, followed by his claim of the use of inappropriate force to subdue him.
It is true, of course, that the further a drunk progresses toward alcoholic oblivion, the less able he is to intelligently choose the method of testing to be employed. That he is incapable of rational choice or refusal does not withdraw the consent given as a requirement of the law. (
If the majority had adopted the view that refusal to take the test at all was a fourth option under the statute, and that refusal in fact could negative the consent implied by law, support would be found in Bush v. Bright, 264 Cal.App.2d 788 [71 Cal.Rptr. 123].
The test in this instance revealed that appellant Kraft had .24 percent alcohol by weight in his blood. This was almost double that specified to mark the borderline.1 It would be a miscarriage of justice to void his conviction.
Any claim that he unjustifiably was struck in the face en route to the hospital is not germane to the blood sampling itself. The officers admitted a blow, but the circumstances were not revealed. It is not presumed that it was not justified. If the circumstances were such that it was not, the fact that it was reprehensible does not void either the arrest or the detention. For any unjustified use of excess force, Kraft has his penal (People v. Giles, 70 Cal.App.2d Supp. 872 [161 P.2d 623]) and civil (Stowell v. Evans, 211 Cal. 565 [296 P. 278]) redress.
Therefore, I would affirm the judgment.
A petition for a rehearing was denied February 6, 1970. David, J. pro tem.,* was of the opinion that the petition should be granted. Respondent‘s petition for a hearing by the Supreme Court was denied March 4, 1970. McComb, J., was of the opinion that the petition should be granted.
*Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.