California Court of Appeals, First District, First Division
PUBLISH AND ORDER 8/15/13
Alameda County Superior Court Hon. Jacob Blea, III (People v. Cuevas, A138062; Super. Court No. 137095; People v. Sakuma, A138110; Super. Court No. 137839), Hon. Richard O. Keller (People v. Lam, A138111; Super. Court No. 244695), Hon. Christine K. Moruza (People v. Patel, A138109; Super. Court No. 137134), Hon. Kevin R. Murphy (People v. Allen, A138112; Super. Court No. 426956), Hon. Yolanda Neill Northridge (People v. Wai, A138114; Super. Court No. 572786), Hon. Philip Sarkisian (People v. Chinchilla, A138113; Super. Court No. 573377).
Nancy E. O’Malley, District Attorney, Donna McIntosh, Deputy District Attorney and Michael O’Connor, Assistant District Attorney for Plaintiff and Respondent.
Eloy I. Trujillo for Defendants and Appellants Anthony Cuevas, Kenneth Allen and Henry Lam.
Marsanne Weese for Defendants and Appellants Felix Chinchilla and Stephen Sakuma.
Ivan O.B. Morse for Defendant and Appellant Chirag Patel.
Donald G. Drewry for Defendant and Appellant Thu Wai
MARGULIES, ACTING P.J.
The Appellate Division of the Superior Court of Alameda County, on its own motion, certified these seven cases for transfer to this court. In each case, defendant was charged with the misdemeanor offenses of driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)) and driving while having a 0.08 percent or higher blood alcohol level (Veh. Code, § 23152, subd. (b)). Each defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5, contending the blood drawn from his or her person subsequent to arrest, and pursuant to California’s implied consent law (see Veh. Code, § 23612), should be suppressed under Schmerber v. California (1966) 384 U.S. 757 (Schmerber) because the blood draw was not performed in a constitutionally reasonable manner. In six of the seven cases, the trial court denied defendant’s motion to suppress; the trial court in the remaining case granted the motion.
Following appeal to the appellate division, the court in all seven cases, splitting two-to-one, sided with defendants on the suppression motions. The majority concluded the evidence presented by the prosecution at the suppression hearing, consisting solely of testimony from a police officer who described the nature and circumstances of the blood draw in question, was insufficient to show the blood draw was performed in a reasonable manner under the Fourth Amendment. The dissent, on the other hand, concluded the prosecution met its burden of showing the searches were reasonable.
We ordered the cases transferred to this court (Cal. Rules of Court, rule 8.1008(a)(1)), consolidated them for purposes of briefing and disposition, and asked the parties to brief the following issue: “Does the record support a finding defendant’s blood was drawn in a manner that was unreasonable within the meaning of the Fourth Amendment?” Having carefully reviewed the record in each case and the briefs submitted, we agree with the dissent in the appellate division and find the blood draw in each case passes muster under the Fourth Amendment.
II. Facts and Procedural Background
Because the sole issue on appeal is whether blood was drawn in an unreasonable manner within the meaning of the Fourth Amendment, we briefly summarize the facts common to all seven cases relating to the underlying circumstances and manner of the blood draw. Each defendant was arrested for driving under the influence,  after which each was advised by the arresting officer that under California’s implied consent law he/she was required to take one of two chemical tests. All defendants opted for a blood test and were transported to either a jail facility or, in one case to a hospital, to have their blood drawn. In all cases, the arresting or transporting officer witnessed blood draws performed by individuals whom the officers identified as either phlebotomists, blood technicians or individuals who routinely draw blood. In general, the officers observed that the individual drawing blood cleaned the area before drawing blood and used a needle from a sealed package. In five of the seven cases, the officers noted defendants did not appear to be in any pain or ...