The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
STATEMENT OF DECISION AND ORDER
At approximately 11:00 PM on August 23, 2010, Defendant Brian Hamblin was arrested by Yosemite National Park Law Enforcement Ranger Jarad Mitrea for violation of 36 CFR 4.23 (a)(1), being under the influence of alcohol or drugs, or a combination thereof, to an extent that rendered him incapable of safe operation of his vehicle, and for violating 36 CFR 4.23 (c)(2) by refusing to submit to testing to determine blood alcohol or drug content.
On August 24, 2010, a Criminal Complaint was filed against Mr. Hamblin charging him with four misdemeanor counts, the two referred to above, another for failure to comply with the directions of a traffic control device (in violation of 36 CFR 4.12) and another for possession of a controlled substance (Vicodin, a prescription medication) in violation of 36 CFR 235 (b)(2)). Defendant Hamblin pled not guilty to all counts. The Government ultimately dismissed the "driving under the influence" and the "possession of a controlled substance" counts.
On July 27, 2011, the criminal complaint came to trial before the undersigned Magistrate Judge in the United States District Court for the Eastern District of California, Yosemite Division. Defendant Hamblin appeared personally and through his counsel Michael Mitchell. The government was represented by Thomas Kunder, certified law student. See Local Rule 181. Trial proceeded on Count 2 of the First Amended Criminal Complaint alleging a violation of 36 CFR 4.23 (c)(2), refusal to submit to testing, as aforesaid, and on Count 3, failure to comply with the direction of a traffic control device (a "STOP" sign) in violation of 36 CFR 4.12. Testimony was heard and documentary evidence admitted, the case was argued, post-trial briefs were considered, and the case has been submitted for decision.
At trial, the Defendant through his attorney and in his testimony acknowledged that he had failed to stop at the stop sign and that he had refused to submit to a proposed test to determine alcohol or drug concentration in his blood. However, he argued, in effect, that at the time of the arrest there was no probable cause to believe that he was under the influence of drugs or alcohol or a combination thereof to a degree that rendered him incapable of safe operation of his vehicle and thus that there was no probable cause to arrest him. Defendant argued that since there was no probable cause for the arrest, there was no probable cause to subject him to the seizure of his blood. Finally, defendant argued that he had had legitimate medical reasons for refusing the blood test and that he advised Ranger Mitrea of same but was given no option to submit to alternative testing.
The first issue then for the Court to determine is whether probable cause existed to arrest the Defendant and require him to submit to a blood test. The following facts, most derived from a video recording of the investigation and arrest at the scene, were most enlightening on that issue.
None of the evidence is considered for purposes of determining whether Defendant was in fact under the influence of drugs or alcohol to the extent he was a danger to himself or others since that charge was dismissed. The issue of whether the refusal to submit to blood testing was legally justified arises and will be analyzed herein only if probable cause justifying the "search and seizure" of Defendant's blood is found to have existed. Thus, we examine the evidence presented to the arresting officer and evaluate whether it provided probable cause to arrest and test Defendant.
II. FACTS RELATING TO ARREST
Just prior to 10:35 PM on August 23, 2010, Defendant Brian Hamblin was driving his Ford Explorer automobile northwardly along Yosemite Lodge Drive ("Lodge") in Yosemite Valley, Yosemite National Park, as Lodge approaches its intersection with Northside Drive. (Defense Exs. B-E and H depict the intersection from the view of someone approaching it in the same manner as Defendant approached it on August 23.*fn1
Defendant was traveling at a low rate of speed which Ranger Jared Mitrea, who later stopped and then arrested Defendant, estimated at between five and ten miles per hour.
Defendant acknowledges that on the night of August 23 he saw the stop sign which appears in the referenced exhibits; however, he noted that it stands some considerable distance back from the intersection and from the "limit line" which is now there (and shown on government Exhibits 2, 3 and 5). From the photos, it appears there is approximately fifty feet of space between the stop sign and where the limit line currently sits. Only a short segment of the limit line appears in Defendant's photos. Apparently that is all that was there on the night of the arrest.
Defendant also testified that Lodge Drive is abutted by several parking lots and that the stop sign stands just north of where one parking lot entrance meets Lodge. At one point Defendant indicated a belief that Lodge itself was part of a parking lot rather than a public road. All of these factors caused him to question why the stop sign was present, but he felt it was set so far away from Northside Drive that it did not direct him him to stop at the Northside Drive intersection. He saw no discernable limit line or other marking at the intersection to indicate that he was required to stop there. Nevertheless, he slowed as he approached the intersection, looked both ways and, seeing no traffic approaching, proceeded to turn right and travel east on Northside Drive.
Ranger Mitrea was at the time sitting in a patrol car parked in the parking lot on the west side of Lodge, south of the intersection and facing Lodge. He observed Defendant approach the intersection at, as noted, between five and ten miles per hour, apply his brakes, slow and then proceed through the intersection. He perceived nothing unusual or inappropriate about Defendant's driving then or thereafter other than his failure to stop at the intersection.
Ranger Mitrea testified Defendant violated the law by failing to come to a complete stop at the intersection.*fn2 He accordingly pulled out and, after traveling about two or three hundred yards, came upon Defendant, activated flashing lights, and pulled him over at the first location where the road was wide enough to accommodate the two cars outside of traffic lanes.
B. Questioning of Defendant; Possible Signs of Impairment
There was an apparently brief initial exchange during which Mitrea requested license, registration and insurance information from Defendant and, in addition, Mitrea detected an odor of alcohol emanating from Defendant's vehicle. At that point Mitrea activated the "ViewVu" video recorder attached to his uniform. A copy of what he recorded appears as Joint Exhibit I. A transcript of that recording is at Joint Exhibit II.
The recording runs for approximately 54 minutes; the transcript thereof is 59 pages long. No useful purpose would be served by chronicling all that is reflected in the recording. Instead, the Court will endeavor to summarize, not necessarily in chronological order, those specific exchanges and other events recorded on the video which Ranger Mitrea reportedly considered in deciding that there was probable cause to arrest Defendant.
As noted, other than the fact that Defendant failed to come to a stop at the intersection of Lodge and Northside, Ranger Mitrea observed nothing about Defendant's driving to suggest impairment.
Before he activated his video recorder, Ranger Mitrea asked Defendant for his driver's license, proof of insurance and vehicle registration. Ranger Mitrea testified Defendant seemed flustered as he searched for same and that he twice passed over his license while looking for it in his wallet.
3. Nervousness; Stuttering.
Ranger Mitrea testified in effect that Defendant spoke with stuttering speech and in choppy half-sentences and that this suggested nervousness on the part of Defendant. Behavior consistent with such a description is observable in the video recording. Indeed, during the course of Ranger Mitrea's interrogation of him, the defendant stated on more that one occasion that he was, indeed, nervous.
Mitrea reported and testified that he smelled the odor of alcohol emanating from Defendant's vehicle.
5. Alcohol Consumption Admitted but Initially Understated.
As the video recording begins, Mitrea asks the Defendant: "Sir, how much have you had to drink tonight?" Defendant responds that he had "had a beer" earlier in the day. Minutes later, on further questioning, he added that he had also had a cocktail (vodka and soda) in the hour just preceding the stop by Ranger Mitrea. Ranger Mitrea then asked Defendant why he was "lying". When Mitrea asked if Defendant felt the effects of his cocktail, the latter responded "Mm-hmm". When asked if that was "Yes", he responded Mm-hmm". Mitrea interpreted this as a "Yes"; he told fellow Ranger Lober, "...and he feels the effects of the alcohol."
6. Medical Impairment: Medications.
The Defendant indicated to Ranger Mitrea that he had medical problems relevant to Ranger Mitrea's inquiry.
As he exited his vehicle at the direction of Ranger Mitrea, Defendant stated in response to a succession of questions: " I have a, a fake knee." "I am sick. I have, I had a, an infection in my spine." "A staph infection, so I am on medications." "I'm on Oxycontin." He indicated that he had taken a twelve hour Oxycontin dosage at about 10:30 that morning and that it possibly "stipulated" "no drinking".
When asked if he felt the effects of his medication, Defendant responded "Yeah. Yeah. I'm, I'm not a drinker you know?" When asked later how the medications made him feel, he said (interrupted at times by another ranger's (Ranger Lober who came to assist Ranger Mitrea) "Okay", etc): "Well, I'm, I've got a dry mouth...and, and you know, like, kind of, well, I don't , dizzy-like, but, but...it...Yeah, I, I'm not used to...this...dry mouth." Then Lober asked, "So you, dry mouth and dizziness right now?", defendant responded: "Not really dizzy."
He indicated he had knee and back impairments. "I have a numb foot from an operation. I, I can't move my ankle or foot. Look...." Ranger Mitrea observed that Defendant did move his ankle. Defendant stated that there was "...range, but it's numb. It doesn't have feeling...They cut the sciatic nerve...and so I'm impaired." He reaffirmed the numbness again later. When asked whether his impairments gave him trouble walking, Defendant responded "Oh, yeah." He indicated that walking in response to Ranger Mitrea's instructions (as part of a field sobriety test, discussed below) was "really hard for me". He asked Mitrea whether he could first demonstrate that difficulty by walking normally. His offer was declined.
He indicated he had had surgery on his back a year earlier and that his doctors told him it would take him about a year to recover. As he began the walking field sobriety test prescribed by Ranger Mitrea, Defendant stated: "This foot just--..."
After describing the above medical history and impairments to Ranger Mitrea and undertaking the walking test directed by Ranger Mitrea, Defendant was asked by Ranger Lober, "Sir, do you have a problem with your foot or ankle?", he responded to this and ensuing questions: "I do. I, I, I had a, a surgery on my back...and they nicked the sciatic nerve...and I don't have any feeling in my foot....Not only that , it's numb, so when I step, it, it's, it's not straight, you know?... So, so it, it , it bends over to the side. When, when they did my knee operation, they straightened this, this..." [As discussed below, Defendant displayed a similar staccato speech pattern at trial.] It is to be noted that the Defendant's treating neurologist, ...