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People v. Rossetti

California Court of Appeals, First District, Fourth Division

October 22, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
GIOVANNI ROMMEL ROSSETTI, Defendant and Appellant.

Contra Costa County Superior Court No. 51309657 Hon. Susanne M. Fenstermacher, Judge.

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[Copyrighted Material Omitted]

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COUNSEL

Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RUVOLO, P. J.

I.

Introduction

Appellant Giovanni Rommel Rossetti appeals after entering a plea of no contest to driving with.08 percent or higher blood-alcohol content. He also admitted he had three prior convictions for driving under the influence (DUI). (Veh. Code, §§ 23152, subd. (a), 23550.) He claims the court erred in denying his motion to suppress (Pen. Code, § 1538.5), contending that the nonconsensual blood draw taken after his DUI arrest without first obtaining a search warrant violated his rights under the Fourth Amendment of the United States Constitution.[1] He also argues that the blood draw was not performed in a

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constitutionally reasonable manner. We reject these arguments and affirm the trial court’s denial of appellant’s motion to suppress.

II.

Facts and Procedural History

The statement of facts is taken from the evidence introduced at the hearing on appellant’s suppression motion which, as appellant concedes, “is essentially undisputed.” At about 1:50 a.m. on November 9, 2011, California Highway Patrol Officer Jason Tyhurst was driving north on Highway 242 in Contra Costa County when he saw a car traveling at an estimated 90 miles per hour in a 65 miles-per-hour-zone. The car was weaving out of its lane and crossing into other lanes. After pacing the car for about one-quarter mile to determine its speed, Officer Tyhurst activated his emergency lights.

After the vehicle was stopped, Officer Tyhurst approached the driver, who was later identified as appellant. The officer observed that appellant’s eyes were bloodshot and watery, and his speech was thick and slurred. The officer could smell alcohol emitting from the passenger compartment. Officer Tyhurst explained the reason for the stop, requested identification, and asked appellant whether he had been drinking that ...


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