In Re Martin

WHITE, J.

Clarence Arthur Martin petitions for a writ of habeas corpus after a jury conviction of driving while under the influence of intoxicating liquor in violation of section

[510]

23102 of the Vehicle Code. Petitioner contends that he was denied an opportunity to obtain a timely sample of his blood by the improper conduct of police officers, and that such conduct constituted a denial of due process of law.

It appears that petitioner was arrested at about 5 p. m. on May 22, 1961, and charged with a violation of the aforementioned statute. Bail was posted and petitioner was released shortly after his arrest. Following his conviction petitioner was sentenced to 15 days in the Los Angeles City Jail and ordered to pay a fine of $250. He filed a notice of appeal and was released on bail. Thereafter the judgment of conviction was affirmed by the appellate department of the superior court and a petition for rehearing denied by that court. A motion for stay of remittitur was granted so that petitioner could exhaust his remedy by habeas corpus. Pursuant to our order to show cause petitioner has continued to remain at large on posted bail.

On the afternoon in question Officer Douglas F. Shaw, a motorcycle policeman, noticed a sudden acceleration by a motorist traveling in front of him on a busy street. The officer turned on his siren, pursued the car, and waved the driver over to the curb. The driver, petitioner here, stopped at the curb and walked back to where Officer Shaw had parked. The officer observed that petitioner’s “gait was unsteady” and therefore put him through several tests for sobriety. The petitioner failed to negotiate these tests to the satisfaction of the officer and the latter, after conferring with some other officers who had arrived at the scene, resolved to make an arrest. As the officer was about to take petitioner to the police station to be booked, the latter asked Officer Shaw to take him to the Los Angeles City Ambulance Center, a distance of two and one half blocks from the point of arrest, to allow him to be medically examined for blood alcohol. Officer Shaw refused to do so and, according to the petition, “said he would not take the defendant anywhere but jail.”

According to petitioner, when he arrived at the University Police Station he made a request to the booking officer for a blood test, the expense of which petitioner would himself bear. His request was denied. Bail was posted and petitioner was released; he was in the station for a total of about 30 minutes.