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Exclude P.A.S. Test Results

MOTIONS IN LIMINE

I. STATEMENT OF THE CASE AND FACTS

The defense has no objection to the preliminary alcohol screening test used for its intended purpose, i.e., to determine the presence of alcohol as opposed to B.A.C. The prosecution has blood test results in this case.

The PAS test results are the poisonous fruit of a warrantless search of the defendant’s body for the amount of alcohol in the defendant’s blood. The warrantless search cannot be justified by an exception, e.g., “implied consent,” “under arrest,” “emergency,” etc. The warrantless search for the amount of alcohol in defendant’s blood was without a knowing and voluntary consent, and violates the Fourth and Fourteenth Amendments to the United States Constitution. Further, the warrantless search violates defendant’s RIGHT TO PRIVACY, right to COUNSEL, and RIGHT TO A FAIR TRIAL.

On August 31, 2007 at approximately 1:41 a.m., the arresting officer contends he observed the driver make an illegal u-turn in the 16900 Normandy block southbound. He followed the driver and claims that she almost hit the right curb. Thereafter, he followed her for approximately one mile without any further alleged violations and without attempting to stop the driver. The driver lawfully made a right turn onto Redondo Beach Blvd. and thereafteturned left onto Budlong and turned into a parking lot located at 1250 Redondo Beach Blvd. She parked her car. She exited her car and walked to Kragen Auto Parts. The officer then detained her (the Gardena officer characterizes it as he “conducted a traffic stop of the vehicle and contacted Choi” (Arrest Report, p. 2). Since the driver was Korean, he asked for backup officers that spoke Korean. At approximately 2:02 a.m., 21 minutes after the detention, an interview was conducted of the driver. A PAS test was administered by M. Sargent at approximately 2:31 and 2:32 (50 minutes post-driving) with results of .14%, .14%. A PAS test can be used “in order to establish reasonable cause to believe . . .” the person was d.u.i. (reasonable cause is not a jury issue). The driver was arrested; she cooperated with the officer’s request and submitted to a blood test at approximately 2:55. The prosecution has blood test results of .13%. 1

Regarding advising a subject of a PAS test, many cops say: “Blow into this or you’re going to jail” or similar words of coercion. Sometimes officers actually advise the driver about the “preliminary alcohol screen information” as per V.C. 23612(i):

“P.A.S. Admonition: I am requesting that you take a preliminary alcohol screening test to further assist me in determining whether you are under the influence of alcohol. You may refuse to take this test; however, this is not an implied consent test and if arrested, you will be required to give a sample of your blood, breath or urine for the purpose of determining the actual alcoholic and drug content of your blood.”

In either event this citizen was never informed that the PAS test result would be used by the police to determine his B.A.C. The warrantless search of the Defendant’s body and the seizure of his breath by way of a PAS test to determine the amount of alcohol in his blood was secured without a “knowing and voluntary consent” that the police would use the P.A.S. results to determine B.A.C. Consent to a search by way of a P.A.S. test is not “implied.” Consent, if any, to the PAS test was EXPRESSLY LIMITED to “assist” the officer “in determining” if there was sufficient probable cause to arrest for d.u.i., a non-jury issue.

The United States Supreme Court has held that “the general rule that a Non-Consentual Search Is Unconstitutional If Not Authorized by a Valid Warrant” (see point III, p. 5 below), holding that a person cannot legally give consent unless he is fully informed about his/her Constitutional Rights as standards of ‘knowing waiver’ require (see point IV, p. 6). “Full information” was not provided to this citizen, i.e., that the P.A.S. test results could be used as a measurement of her B.A.C. In fact, the police advised about implied consent at the time of the search which reasonably led the 1) to believe the PAS test would not be used to determine her BAC, stating “your obligation to submit to . . . ‘a chemical test (implied consent) to determine’ the alcohol . . . content of your blood is not satisfied by submitting to a preliminary alcohol screening test.”

II. THE UNCONTROVERTED LEGAL PRINCIPLES TO BE APPLIED

The Fourth Amendment to the United States Constitution states that “The 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This is the cornerstone of any inquiry regarding governmental acquisition of evidence from the accused. To determine this matter, certain immutable principles apply.

  1. “For the Fourth Amendment protects people, not places. …what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” (Katz v. United States 389 U.S. 347, 351-352 (1967) [ internal citations omitted].)
  2. ” . . . searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment –subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States 389 U.S. 347, 357 fns. omitted (1967).)
  3. A Chemical Test Is a Search Under the Fourth Amendment. The Court stated “it is well settled that the taking of a person’s blood, breath or urine is a search and seizure within the meaning of the Fourth Amendment to the U.S. and California Constitutions citing Schmerber v. California (1966) 384 U.S. 757 at 767.” The “implied consent” law of V.C. 23612(a) is an exception to the Fourth Amendment. “It is not disputed that the administration of a breath test is a search within the meaning of the Fourth Amendment and therefore subject to the requirements of that amendment.” (Emphasis added.) (Burnett v. Municipality of Anchorage 806 F.2d 1447, 1449 (9th Cir. 1986). [Citation omitted.].)
  4. “To pass constitutional muster under the Fourth Amendment a search must be reasonable. Generally, a search must also be supported by probable cause, and must be backed up by a warrant, or the circumstances must fit an exception to the warrant requirement.” (Nelson v. City of Irvine 143 F.3d 1196, 1200 (9th Cir. 1998) [internal citations omitted].)
  5. “In considering [warrant requirement exceptions], we must not lose sight of the Fourth Amendment’s fundamental guarantee as stated by Mr. Justice Bradley’s admonition in his opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746:
  6. ‘It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed.
    A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'” (Coolidge v. New Hampshire 403 U.S. 443, 453-454 (1971) reh. den’d [footnote omitted, emphasis added].)
  7. The California legislature has enacted a statutory scheme re driving under the influence and chemical testing for blood alcohol content. The legislature passed “implied consent” (a legal fiction) in order to be able to lawfully secure the best evidence of blood alcohol content. In balancing the rights of individuals to be free of government searches versus society’s right to be protected against drunk driving, the legislature determined that “consent” to a chemical test can be implied only of persons that drive and are arrested for d.u.i. There is no implied consent to take a PAS test. Vehicle Code §23612 (a)(1)(A) provides that “any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood if lawfully arrested . . .” V.C. §23612 (a)(1)(C) provides in essence that “the testing shall be incidental to a lawful arrest” . . . for d.u.i. V.C. §23612(a)(1)(A) and V.C. 23612(a)(1)(C) does not apply to the P.A.S. test because the defendant was not lawfully arrested when the police searched defendant.
  8. No choice was offered by the cop er the P.A.S. test. V.C. §23612(2)(A) provides that “if the person is lawfully arrested for driving under the influence of an alcohol beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice…”
    There was no knowing and voluntary consent by this defendant to the requested search of defendant’s body by the police for the amount of alcohol in the citizen’s blood.
    When there is a lawful arrest for d.u.i., the legislative requirement to submit to a chemical test is triggered, and there are lawful sanctions (e.g. losing a license, jail, etc.). The police are limited by law to the legislative exception to the Fourth Amendment per the Vehicle Code, i.e., if lawfully arrested, consent to the test is implied.

III. THE U.S. SUPREME COURT HAS HELD: “THE GENERAL RULE THAT A NON-CONSENTUAL SEARCH IS UNCONSTITUTIONAL IF NOT AUTHORIZED BY A VALID WARRANT”

In Ferguson v. Charleston (2001) 121 S.Ct. 1281 the court reviewed whether a state hospital’s performance of a diagnostic test to obtain evidence of a patient’s possible criminal conduct for law enforcement purposes constituted an unreasonable search if the patient did not knowingly and voluntarily consent to the procedure. Under the facts of Ferguson, patients provided urine tests to a state hospital which used drug screens on the samples under the procedures implemented by the hospital and the police. Arguably, the patient was on notice that the hospital would be using the urine test to determine drug use and would thereafter submit positive results to the police for prosecution. The ultimate goal of the program was laudable: the “immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal.” (Ferguson v. Charleston, id.) The Court held that Fourth Amendment’s general prohibition against non-consentual, warrantless searches” applied (Ferguson, i.d.).

In Ferguson, the prosecution argued the evidence of drug use was admissible because the search was not done by the police. In our case, the search of defendant’s body for evidence of his blood alcohol content by the PAS device was done directly by the police. Therefore, this is a stronger case for application of the Fourth Amendment’s prohibition against warrantless searches.

IV. THE U.S. SUPREME COURT RULED THAT A PERSON CANNOT LEGALLY GIVE CONSENT UNLESS THEY ARE FULLY INFORMED ABOUT THEIR CONSTITUTIONAL RIGHTS AS STANDARDS OF “KNOWING WAIVER” REQUIRE

When citizens undertake to obtain such evidence for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require, c.f. Miranda v. Arizona, 384 U.S. 436 (1966).” (Emp. added) Ferguson, id. at 2842. All the more does this requirement of a “knowing waiver” apply when the police obtain the evidence.

Given the misleading advice (not the test for B.A.C.), the prosecution cannot argue in this case that there was a “knowing waiver” to the search.

V. THE PROSECUTION HAS THE BURDEN OF PROOF ON THE ISSUE OF CONSENT

The United States Supreme Court held in Bumper v. North Carolina (1968) 391 U.S. 543, 88 SC 1788, 20 LE2, 797 (68), that the government has the burden of proving consent “was, in fact, freely and voluntarily given.” If not, the evidence will be suppressed as the result of an illegal search and seizure. In People v. Shandloff (1985) 170 Cal.App.3D 372, 215 CR 916, the court held that the people’s burden is to prove that the consent was the product of free will and not a mere submission to an express or implied assertion of authority.

VI. IF THE LANGUAGE OF THE COP THAT SECURED CONSENT FOR THE SEARCH WAS GIVEN, THE P.A.S. TEST WAS TO ASSIST A DETERMINATION OF WHETHER THERE WAS “PROBABLE CAUSE” TO BELIEVE THE DRIVER WAS UNDER THE INFLUENCE; THERE WAS NO CONSENT TO DETERMINE B.A.C.

The admonition of V.C. 23612 if given by the police officer clearly informed the driver that the purpose of the test was only for establishing reasonable cause to arrest for driving under the influence, i.e., V.C. § 23152(a). The driver was told that, if arrested, he or she would then have to submit to the implied consent test to determine the alcohol content of his or her blood. The cop advised the defendant that the chemical test for blood alcohol is different than the PAS test and you will have to take a test to determine B.A.C. if arrested.

The content of the admonition defines the extent of the consent that was obtained. The defendant consented to the PAS, if at all, only for the purpose of allowing the officer to use the test to assist him in determining whether the driver was under the influence. The driver consented to nothing more; there was only a limited consent to the search of his body; and there was no consent to use the results of the search to determine blood alcohol content.

VII. THE SEARCH IS LIMITED BY THE EXPRESS TERMS OF THE CONSENT AND CANNOT BE EXPANDED

In People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 89 CR 316, the police asked the defendant if they could enter the house to search for a suspect seen to enter with a crowbar. Defendant said that there were persons in the house and that the officers could enter. The consent was implicitly limited to look for a suspect. The police entered and found a crowbar in the closet. The 1538.5 Suppression ruling was affirmed on appeal because the police conduct exceeded the limited expressed consent requested. The same rule applies to the purpose of the PAS test. The consent is limited to the express purpose of helping the officer determine whether the driver is under the influence and expressly is not to determine B.A.C.

In People v. Timms (1986) 179 Cal.App.3d 86, 224 Cal. Rptr. 434, the defendant made a homicide call to the police and told the officers that intruders shot the victim. The police searched for suspects. The premises were secured. At the police station, the defendant said the gun was in the closet. A 38 was found in a jacket in the closet. The court held that the defendant’s non-objection to the search is not consent. Citing Arketa, supra, 10 Cal.App. 3d 122.

Another limited consent case analogous to the PAS test scope of consent issue is People v. Superior Court (Kenner) (1977) 73 Cal.App. 3d 65, 139 CR 343, in which consent was given the police to enter the home to “talk” to Kenner. Even though there was a consent to enter, the limited consent for purposes of having a “talk” did not permit the immediate arrest of Kenner without an arrest warrant. The 1538.5 Suppression was affirmed.

To the same force and effect is In re Johnny V., (1978) 85 Cal.App. 3d 120, 149 CR 180, in which the police made an arrest after consent was given for the limited purpose of entering the
premises to “talk.” The police found blood stained shoes. A 1538.5 Denial was reversed by the Court of Appeal.

VIII. CONCLUSION

The police, armed and in uniform, searched evidence of the crime of d.u.i. Prior to an arrest, and without the benefit of “consent” implied by law, they searched for the amount of alcohol in the defendant’s blood by way of a PAS test. The cops later got a blood test with .09% results. Ordinarily, to justify a search the police must have a warrant. There The prosecution has the burden to justify the warrantless search. is no exception for the warrantless search by way of a P.A.S. test in this case, e.g., no arrest, no emergency, no “implied consent,” etc. The police did not advise the citizen of the scope of the search. In fact, the cops misled the citizen (e.g., this is “not a test to determine your blood alcohol content”). The defendant did not “knowingly” and voluntarily consent to the search of his body by way of a PAS test to determine the amount of alcohol in his blood. The PAS test result must be suppressed. This Court has a duty to enforce the Constitution.

1 This is not a case where the defendant refused a test. Parenthetically, based on the defendant’s drinking pattern, Ms. Choi was in the absorptive phase from 1:30 to 2:30. She reached her peak BAC at around 2:30 (.14%) and metabolized .01% from 2:30 to 2:55.