The People v. Superior Court CA1/3

Filed 9/9/13 P. v. Superior Court CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SOLANO A139482 COUNTY, (Solano County Respondent; Super. Ct. No. FCR 298052) DOMINGO MONTAR, Real Party in Interest.

In this case we reverse the trial court's order suppressing the evidence derived from a nonconsensual, warrantless blood draw. The police acted in compliance with binding precedent and with a good faith belief that their actions were consistent with applicable law, despite the fact that the Supreme Court subsequently ruled that the elimination of alcohol from the blood does not constitute a per se emergency excusing the requirement to obtain a search warrant. INTRODUCTION Real Party Domingo Montar is charged by information with violating Vehicle Code section 23152, subdivisions (a) and (b) (driving under the influence and driving with a blood alcohol level of .08 percent or more). He is also charged with three prior driving under the influence convictions and a high blood alcohol enhancement.

1

Montar was stopped on September 9, 2012 for driving on the wrong side of the road, driving erratically, and almost running over a police officer. During the traffic stop the officer concluded that Montar was under the influence of alcohol based, in part, on the observation that Montar's face was relaxed, he was unable or refused to follow commands, he was staggering, and his breath smelled of alcohol. Furthermore, his eyes were bloodshot and watery and his speech was slurred. Montar refused to submit to any field sobriety or chemical tests. A nonconsensual blood draw was completed. The police did not obtain a warrant for the blood draw, relying on their policy permitting the seizure of blood evidence because, otherwise, that evidence would "lessen in the defendant's system over time." Montar moved, pursuant to Penal Code section 1538.5, to suppress the blood sample taken from him, as well as the observations of and statements stemming from the forcible blood draw and any related evidence. On July 16, 2013 the superior court granted Montar's motion to suppress ruling that, in light of Missouri v. McNeely (2013) 133 S.Ct. 1552 (McNeely), there were no exigent circumstances to justify the forcible, warrantless blood draw.1 At that hearing Montar, who is in custody, withdrew his time waiver, making September 16, 2013 his speedy trial deadline. The court set September 4, 2013 as his trial date. On August 15, 2013 the People filed the instant writ petition seeking an order compelling the trial court to vacate its order suppressing the blood draw and to issue a new order denying Montar's motion to suppress. On August 22, 2013 we temporarily stayed the trial, requested informal briefing, and gave notice pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 that, if appropriate, we might issue a peremptory writ in the first instance. We have reviewed Montar's opposition to the petition, which, in part, requests that we deny the People's stay request to avoid violating his right to a speedy trial. Although