No. G053273.

THE PEOPLE, Plaintiff and Respondent, v. ALAN NAVASCA SERINO, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.

Attorney(s) appearing for the Case

Trenton C. Packer , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Theodore M. Cropley and Stephanie H. Chow , Deputy Attorneys General, for Plaintiff and Respondent.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



A jury found defendant guilty of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1)1 and of driving with a blood alcohol level of 0.08 percent or more (§ 23152, subd. (b); count 2). In connection with count 2, the jury found it to be true that defendant's blood alcohol level was 0.15 percent or more. Count 3 — driving without a valid license (§ 12500, subd. (a)), and count 4 — failure to maintain insurance (§ 16028, subd. (a)), were dismissed. The court sentenced defendant to two years in state prison on count 1, and two years in state prison on count 2, to run concurrently, with count 2 stayed pursuant to Penal Code section 654. The court suspended sentence as to count 3 (notwithstanding that it had previously been dismissed).

On appeal, defendant contends the evidence against him was acquired as the result of a detention without reasonable suspicion, and that the court erred in denying his suppression motion. He also contends the blood test demonstrating his blood-alcohol level was a result of a warrantless, involuntary seizure in violation of the Fourth Amendment. The parties agree the court erred by suspending sentence on count 3. We will strike the entry in the minutes suspending sentence as to count 3, and otherwise affirm the judgment.


Because appellant's arguments on appeal are limited to his suppression motion, we confine our statement of facts to the evidence adduced at the hearing on the motion.

On October 3, 2011, Officer Robert Warren was dispatched to a residence in Anaheim. A woman had reported a disturbance. When Warren arrived the reporting party explained that defendant had been knocking on her door asking for his keys, wallet, and cell phone. She did not have those items and wanted Warren to explain that to defendant and ask him to leave her alone. She pointed defendant out, who was in a car that was backing up on the street. The car stopped in the middle of the street.

As Warren approached the car, defendant was getting out of the driver's side door with the car still in the middle of the street. Warren instructed defendant to get back into the car so he could tell him what the reporting party had requested and have defendant be on his way. Defendant reentered the car. Warren asked for defendant's identification, which defendant did not have. Defendant then attempted to again get out of his car. Warren, who was standing next to the driver's side door, told him to relax and stay in the car. Defendant kept pushing the door open, thereby pushing Warren away from the car.2 Warren backed away, allowing defendant to get out of the car. Warren then asked defendant to put his hands behind his back and handcuffed him. At the hearing he explained the reason for the detention: "As I was talking to him, I could see objective symptoms of being under the influence of alcohol, and he was parked in the middle of the street, and so it felt like he was trying to leave the scene." Regarding signs of the influence of alcohol, Warren noted, "The smell of alcohol, red, bloodshot, watery eyes, and he fumbled through identification while he was going through his glove box, mumbling, slurred speech."

Warren then took the handcuffs off defendant and conducted field sobriety tests. As a result of defendant's performance on these tests, Warren concluded defendant was under the influence of alcohol.3 Warren took defendant to the station and offered him a choice of taking either a breath or a blood test. Defendant chose a breath test. The first breath test registered a blood-alcohol content of 0.17 percent. The second breath test registered a blood alcohol content of 0.04 percent. A third test apparently produced no printout. As a result of the inconsistent results, Warren initiated a blood test. Defendant "submitted" to the test, but Warren did not have him fill out or sign any paperwork consenting to the blood test. The result of the blood test was 0.182 percent.


The Detention Was Proper

Defendant first contends he was unlawfully detained, and that all evidence against him was the product of the detention. Our review of the court's denial of the suppression motion has two aspects: we review the court's factual findings for substantial evidence, but we independently review whether, on the supported facts, the detention was lawful. (People v. Woods (1999) 21 Cal.4th 668, 673.) We conclude the detention was lawful.

We begin by observing that Warren did not initially approach defendant with the intent to detain him. There was nothing to suggest a detention until defendant got out of his vehicle in the middle of the street. At that point, Warren instructed defendant to get back in his car. That is the earliest point a detention could have occurred, so we focus our analysis on that point forward.

"The Fourth Amendment protects against unreasonable searches and seizures. [Citations.] `A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.'" (People v. Casares (2016) 62 Cal.4th 808, 837-38.) "A traffic stop constitutes a detention under the Fourth Amendment." (People v. Torres (2010) 188 Cal.App.4th 775, 785.)

Here, defendant's conduct in getting out of the vehicle in the middle of the street, without any prompting by Officer Warren, justified a detention as a violation of California's minimum speed law: "No person shall bring a vehicle to a complete stop upon a highway so as to impede or block the normal and reasonable movement of traffic unless the stop is necessary for safe operation or in compliance with law." (§ 22400, subd. (a).)4 Plainly, defendant getting out of his vehicle was not necessary for safe operation (except to the extent he was drunk and should not have been operating a vehicle in the first place), nor was there any legal requirement to do so. Accordingly, Warren was justified in minimally detaining defendant by ordering him into his vehicle and requesting identification. After that point, the objective signs of intoxication Warren observed justified a further investigation. There was no Fourth Amendment violation.

At the Time of the Blood Draw, No Warrant Was Required

In 1966, the United States Supreme Court held no warrant was required to draw blood for purposes of a blood-alcohol test on a person lawfully arrested for drunk driving. The Supreme Court reasoned the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence,'" due to the dissipation of alcohol from the blood. (Schmerber v. State of California (1966) 384 U.S. 757, 770 (Schmerber).) As the California Supreme Court recognized in 1972, citing Schmerber," It is clear that the Fourth Amendment does not bar a compulsory seizure, without a warrant, of a person's blood for the purposes of a blood alcohol test to determine intoxication, provided that the taking of the sample is done in a medically approved manner, is incident to a lawful arrest, and is based upon the reasonable belief that the person is intoxicated." (People v. Superior Court (1972) 6 Cal.3d 757, 761 (Hawkins).) "After Hawkins, our Supreme Court and this state's intermediate appellate courts uniformly reiterated that a warrantless blood draw was justified under the Fourth Amendment if `the arresting officer has reasonable cause to believe the arrestee is intoxicated . . .' with alcohol [citation], and those courts did not require any additional showing of exigency to excuse the lack of a warrant." (People v. Harris (2015) 234 Cal.App.4th 671, 702 (Harris).)

In Missouri v. McNeely (2013) 569 U.S. ___ [133 S.Ct. 1552] (McNeely) the United States Supreme Court "`repudiated the long-standing California interpretation of Schmerber.'" (Harris, supra, 234 Cal.App.4th at p. 703.) "After McNeely, it is now clearly established that the natural dissipation of alcohol or drugs in the bloodstream is not a sufficient exigency to justify a warrantless blood draw, and the People must show, on a case-by-case basis, that under the totality of the circumstances exigent circumstances excused the failure to obtain a search warrant." (Ibid.)

The blood draw here occurred in 2011, well before McNeely was published. At the time, Warren was operating within the law by drawing defendant's blood without a warrant. Under these circumstances, exclusion of the evidence would be inappropriate. "Exclusion is `not a personal constitutional right,' nor is it designed to `redress the injury' occasioned by an unconstitutional search. [Citations.] The rule's sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations." (Davis v. U.S. (2011) 564 U.S. 229, 236-237.) "Exclusion exacts a heavy toll on both the judicial system and society at large." (Id. at p. 237.) "[W]hen the police act with an objectively `reasonable good-faith belief' that their conduct is lawful, [citation], or when their conduct involves only simple, `isolated' negligence, [citation], the `"deterrence rationale loses much of its force,"' and exclusion cannot `pay its way.'" (Id. at p. 238.) Accordingly, the court properly denied the motion to exclude evidence of the blood test.


The entry at sequence No. 21, on the August 7, 2015 minute order, which states, "As to count(s) 3, SENTENCE SUSPENDED" is stricken. The abstract of judgment contains no reference to count 3. Thus, the abstract of judgment does not require correction. In all other respects, the judgment is affirmed.

BEDSWORTH, Acting P. J. and MOORE, J., concurs.


1. All statutory references are to the Vehicle Code unless otherwise stated.
2. At trial, Officer Warren testified he attempted several times to close the door and instructed defendant to sit down before relenting.
3. At trial, Warren provided more detail on the field sobriety tests. Defendant's performance on the nystagmus test indicated the presence of alcohol. In the Romberg test, which required defendant to stand with his feet together, arms out to the side, head back, and mentally count 30 seconds, he was swaying and shaking. He was, however, within the margin of error in estimating 30 seconds, and generally maintained his balance. He performed poorly on the walk-and-turn test. However, he satisfactorily performed a finger-to-nose test.
4. "Highway includes street." (§ 360.)


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