Defendant’s consent to blood test was freely and voluntarily given where he was given the option to choose from three tests, and was not forced to choose between a blood test or criminal penalties. Police arrested defendant for alleged drunk driving after he drove his car into a crowd of people and seriously injured four pedestrians. The arresting officers admonished defendant that he was required to submit to either blood, urine, or breath testing and that refusal to submit to testing would result in civil and criminal penalties. Defendant chose the blood test, which revealed a blood alcohol level above the legal limit. Charged with several drunk driving offenses, defendant moved to suppress the results of the blood test on the ground that a blood draw requires a warrant under the Fourth Amendment, and his consent to the blood test was illegal because it was under threat of criminal prosecution. The trial court denied the motion. Defendant appealed. Held: Affirmed. In Birchfield v. North Dakota (2016) 136 S.Ct. 2160, the court held that a warrant is not needed for a breath test under the search incident to arrest exception to the warrant requirement. Conversely, a blood test, which is more intrusive and must be judged against the availability of the less invasive alternative of a breath test, requires a warrant. While a warrant is not needed if the subject freely and voluntarily consents to a blood test, a court may not find implied consent where the arrestee’s only choice is to consent to the blood test or face criminal prosecution for refusing to do so. Here, defendant was given a choice of tests. He was subject to criminal penalties only if he refused all of the options. Under these circumstances, Birchfield does not prohibit a finding of implied consent, because defendant was not compelled to take a blood test. In any event, the trial court determined defendant gave actual consent to the blood test, and this finding was supported by substantial evidence under the totality of the circumstances.

The amendment to California’s implied consent law after Birchfield v. North Dakota does not invalidate defendant’s consent to the blood test. At the time of defendant’s arrest, Vehicle Code section 23612 provided that drivers were deemed to have given consent to chemical testing of their blood or breath, and that failure to submit to such chemical testing would result in both civil and criminal penalties upon conviction of drunk driving. Former law also required the person to be advised that he had the choice of submitting to blood or breath testing. After the decision in Birchfield, Assembly Bill No. 2717 (effective January 1, 2019) amended California’s implied consent laws by clarifying that criminal penalties do not attach to a suspected drunk driver’s refusal to submit to a blood test. Current law now provides that drivers are deemed to have given consent to chemical testing of their blood or breath; that failure to submit to the required breath testing will result in civil and criminal penalties; and that failure to submit to both breath or blood testing will result in civil penalties only. Defendant argued that the change in the law shows his consent under the former law was invalid. However, nowhere in the summaries of analysis of AB 2717 does the Legislature express concern that the former implied consent laws were unconstitutional. Even if it did, that would not change the result in this case because defendant gave actual consent to the blood draw. That defendant chose a blood test instead of a breath test does not render the warrantless blood draw unconstitutional.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B292164M.PDF