California Court of Appeals, Fourth District, First Division
from an order of the Superior Court of San Diego County Nos.
CA270404 & M199722, Timothy R. Walsh, Judge. Affirmed.
Office of David Wilson and David Wilson; Law Offices of
Gretchen von Helms and Gretchen C. von Helms for Defendant
W. Elliot, City Attorney, John C. Hemmerling, Assistant City
Attorney, and Shelley A. Webb, Deputy City Attorney, for
Plaintiff and Respondent.
Acting P. J.
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)). 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.
AND PROCEDURAL BACKGROUND
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
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.
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.
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,
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
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