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Name: People v. McHugh
Case #: D042148
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/07/2004

Appellant was stopped for speeding and subsequently arrested for driving under the influence. Appellant claimed he was denied the opportunity to submit to a breathalyzer test, and a certified phlebotomist drew appellant’s blood, which tested at .18 for alcohol. The phlebotomist was not authorized to draw blood for this purpose, under Vehicle Code section 23158, and the police department had already been advised that they did not comply. Appellant moved to suppress the results of the blood alcohol test, arguing that the stop of the car was unreasonable, the blood draw was unreasonable because he was denied the opportunity to submit to a breathalyzer test, and because the phlebotomist was not statutorily authorized to draw blood for this purpose. The motion was denied and the denial was affirmed by the appellate court. The stop was reasonable because appellant was driving at an unsafe speed in an unsafe manner. The detention was also reasonable because appellant’s reckless driving and failure to yield created a reasonable fear that he might resume his flight. Regarding appellant’s consent to the blood draw, the trial court found that the officer was credible and appellant was not credible. Finally, the evidence did not have to be suppressed because of the police department’s use of an unauthorized phlebotomist. The blood draw was not conducted in an unreasonable manner nor did it violate medically approved techniques. An otherwise reasonable arrest does not become unreasonable for purposes of the exclusionary rule merely because it was effected in violation of a state statutory requirement.