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People v. Balov

California Court of Appeals, Fourth District, First Division

May 23, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
PETER BALOV, Defendant and Appellant.

          APPEAL from an order of the Superior Court of San Diego County Nos. CA270404 & M199722, Timothy R. Walsh, Judge. Affirmed.

          Law Office of David Wilson and David Wilson; Law Offices of Gretchen von Helms and Gretchen C. von Helms for Defendant and Appellant.

          Mara W. Elliot, City Attorney, John C. Hemmerling, Assistant City Attorney, and Shelley A. Webb, Deputy City Attorney, for Plaintiff and Respondent.

          BENKE, Acting P. J.

         After Peter Balov was arrested for suspected drunk driving, the arresting officer advised Balov "that per California law he was required to submit to a chemical test, either a breath or a blood test." Balov did not object and chose a blood test, which showed his blood alcohol level was above the legal limit. Balov was charged with misdemeanor driving under the influence (Veh. Code, § 23152, subds. (a) & (b)).[1] Before trial, Balov moved to suppress the results of the blood test, arguing, inter alia, that his consent to the test was coerced. The court denied the motion, the appellate division affirmed, and Balov now challenges the ruling here, arguing as he did below that his consent to the blood test was not voluntary. We reject Balov's argument and affirm the order.

         FACTUAL AND PROCEDURAL BACKGROUND

         At the hearing on Balov's motion to suppress, San Diego Police Officer Luis Martinez testified that just before 3:00 a.m. on March 22, 2015, he saw Balov abruptly stop his black Range Rover in an intersection when the traffic signal turned yellow. In response, Martinez turned on his police vehicle's emergency lights and instructed Balov to pull over. Martinez reported that he noticed the smell of alcohol on Balov's breath and that Balov's speech was slurred. Balov admitted he had been drinking and agreed to submit to field sobriety exercises and a preliminary breath sample, which showed his blood alcohol level was over the legal limit.

         As a result, Martinez placed Balov under arrest for driving under the influence of alcohol. Martinez testified that after the arrest, he informed Balov of the implied consent law, telling Balov "that per California Law he was required to submit to a chemical test, either a breath or a blood test." Martinez did not inform Balov of the statutory consequences of refusing a test. Balov stated he wanted a blood test and Martinez drove Balov to the police headquarters. During the routine blood draw that followed, Balov was calm and gave no indication of wanting to refuse the test.

         Before trial, Balov moved to suppress the results of the warrantless blood test under Penal Code section 1538.5, arguing that his consent was invalid because Martinez had not explained the consequences of refusing chemical testing under section 23612. The city attorney opposed the motion. After the evidentiary hearing, the trial court denied Balov's motion. The court concluded that under the totality of the circumstances, Balov voluntarily consented to the blood test and the test was not taken in violation of his Fourth Amendment right to be free from unreasonable searches.

         Balov challenged the order in the San Diego County Superior Court's Appellate Division, which unanimously affirmed the trial court's order. After the city attorney filed a request for publication of the appellate division's order, on its own motion, the division certified the matter for transfer to this court. The certification order notes a split of authority on the issue of implied consent contained in two decisions of the Santa Clara County Superior Court Appellate Division, People v. Mason (2016) 8 Cal.App.5th Supp. 11 (Mason), and People v. Agnew (2015) 242 Cal.App.4th Supp. 1 (Agnew). We accepted the transfer under California Rules of Court, rule 8.1008.

         DISCUSSION

         I

         "The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)

         A blood draw is a search subject to the Fourth Amendment. (Schmerber v. Cal. (1966) 384 U.S. 757, 767.) Under the Fourth Amendment "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." While the Fourth Amendment does not specify when a search warrant must be obtained, the United States Supreme Court "has inferred that a warrant must generally be secured." (Kentucky v. King (2011) 563 U.S. 452, 459.) However, "the ultimate touchstone of the Fourth Amendment is 'reasonableness.' " (Brigham City v. Stuart (2006) 547 U.S. 398, 403.) "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." (Florida v. Jimeno (1991) 500 U.S. 248, 250.) It is well established ...


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