California Court of Appeals, Second District, Eighth Division
from a judgment of the Superior Court of Los Angeles County,
No. SA096190 Mark A. Young, Judge. Affirmed.
J. Schechter, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney
General, Stephanie C. Brenan and Jonathan M. Krauss, Deputy
Attorneys General, for Plaintiff and Respondent.
arrested appellant Julio Nzolameso for alleged drunk driving
after he drove his car into a crowd of people and seriously
injured four pedestrians. The arresting officers admonished
Nzolameso that he was required to submit to either blood,
urine, or breath testing and that refusal to submit to any
testing at all would result in civil and criminal penalties.
Nzolameso chose the blood test, which revealed a blood
alcohol level above the legal limit.
moved to suppress the results of the blood test on the
grounds that the blood testing was a warrantless search in
violation of the Fourth Amendment. He also argued that his
consent to the blood test was invalid because it was given
under threat of criminal prosecution. The court denied the
appeal, Nzolameso relies on Birchfield v. North
Dakota (2016) 579 U.S. ___, [136 S.Ct. 2160]
(Birchfield) in support of his argument that his
consent was illegal per se because it was given under threat
of criminal prosecution. Because we disagree with
Nzolameso's broad interpretation of Birchfield
and agree Nzolameso's consent was freely and voluntarily
given, we affirm.
AND PROCEDURAL BACKGROUND
night in June 2017, Nzolameso drove his car into a crowd of
pedestrians who were socializing in the parking lot of a
club. After hitting several pedestrians, Nzolameso exited the
parking lot, made a right-hand turn into heavy traffic, and
crashed into a parked car. Nzolameso was immediately detained
by Los Angeles Police Department Officers Ernest Fields and
Samuel Kim, who transported Nzolameso to a hospital to ensure
he was not injured. At the hospital, Officer Fields conducted
field sobriety tests, which Nzolameso failed.
Fields then placed Nzolameso under arrest and advised him of
California's implied consent law as follows:
must submit to a blood test, urine test, breath test, or
urine and breath test, per California Vehicle Code 23612.
Failure to submit to or failure to complete required chemical
testing will result in a fine, mandatory imprisonment if
convicted of 23152 or 23153, and the suspension of your
privilege to operate a motor vehicle for one year.
test violation 23614 C.V.C. If you choose the breath test,
the breath testing equipment does not retain any sample of
the breath and no breath sample will be available after the
first test, ...