Says Agreeing to a Blood Test, Conditioned on Officers Obtaining a Warrant, Does Not Meet Requirements of Implied Consent Law; No Excuse Seen for Refusing Breath Test
A deputy public defender, who won a rehearing in the Court of Appeal following its Jan. 12 decision upholding a one-year suspension of her driver’s license for failing to submit to a chemical test to determine her blood alcohol content, fared no better on Friday, with the Fourth District’s Div. Two again affirming the trial court’s denial of a writ of administrative mandamus.
The Department of Motor Vehicles properly ordered the license suspension even though motorist Bernice Espinoza agreed to a test of her blood, Justice Art McKinster said in the old and the new opinions in the case, because she conditioned her consent on the California Highway Patrol obtaining a search warrant, and did not give consent to a breath test.
Espinoza—who then worked for the Riverside Public Defender’s Office and now is a deputy public defender in Sonoma County—told officers that she knew the law, and that under the U.S. Supreme Court’s 2013 opinion in Missouri v. McNeely, they were obliged to obtain a search warrant.
That case, McKinister pointed out, dealt with nonconsensual searches.
In Friday’s opinion, he added a footnote spelling out that a Vehicle Code section “requires a motorist to consent in writing to submit to chemical testing or to a preliminary alcohol screening test, when requested by a peace officer, as a condition of obtaining or renewing a California driver’s license.”
Supreme Court Opinion
In both the Jan. 12 opinion and the little-changed one filed Friday, McKinster made note of the U.S. Supreme Court’s decision last year in Birchfield v. North Dakota. He wrote:
“[A]s the Supreme Court clearly held in Birchfield, the Fourth Amendment does not prohibit the police from forcing a motorist to submit to a warrantless breath test incident to his or her arrest, the motorist has no right to refuse to submit to a breath test or to condition his or her submission on the police obtaining a warrant, and the motorist’s refusal to submit to the breath test may be the basis of criminal penalties….In light of that clear holding, we conclude refusal to submit to a breath test incident to arrest may also be the basis of imposing civil penalties under the implied consent law, including suspension or revocation of the motorist’s driver’s license.”
In a new passage, the jurist said:
“Prior to issuance of the decision in Birchfield, we would have agreed with the Department that Espinoza’s refusal to submit to a blood test would have been a sufficient basis for her license suspension, and we would have had no need to address breath tests. But…it is unclear whether the high court would approve of a civil license suspension based solely on a motorist’s refusal to submit to a warrantless blood test. Therefore, we err on the side of caution and affirm the suspension based on Espinoza’s refusal to submit to a breath test.”
References to Crying
The prior opinion said:
“Espinoza’s crying, her initial refusal to get out of her vehicle, her complete refusal to answer field sobriety questions or to perform field sobriety tests, and her repeated requests to be let off with a citation, were additional factors a reasonable officer could properly consider when determining whether there was probable cause to believe Espinoza drove while under the influence of alcohol.”
In the rewritten test, reference to her “crying” was omitted, though the opinion still relates that Espinoza “was crying and very emotional the whole time” an officer spoke with her following the traffic stop. Gonzalez spoke to her.
The case is Espinoza v. Shiomoto, 2017 S.O.S. 1609.
Copyright 2017, Metropolitan News Company
The items cited in the opinion by themselves would not satisfy probable cause for an officer in Colorado to request a test. If you add an odor of alcohol, bloodshot eyes and slurred speech, then there would be.