People v. Nieto

California Court of Appeal Apr 27, 1990 No. G007761Published

Before: Sonenshine

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Holding. The court held that a warrantless blood draw is lawful as a search incident to arrest even if the blood is drawn before the formal arrest, provided the arrest and seizure are substantially contemporaneous and probable cause existed at the time of the seizure.

Issues

Whether a warrantless blood draw is unlawful if not preceded by a formal arrest.
Whether a blood draw and a subsequent arrest are substantially contemporaneous when they occur within two hours of each other.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The seizure of Nieto’s blood was proper as incident to the lawful arrest that ensued.”

“the seizure was not unlawful simply because the arrest followed, rather than preceded it, as long as the one was substantially contemporaneous with the other.”

“We find as a matter of law the events were substantially contemporaneous.”

Opinion

SONENSHINE, J.

Gilbert Ochoa Nieto appeals after he pleaded guilty to vehicular manslaughter, felony drunk driving, and driving with a blood-alcohol level of .10 percent or above. His motion to suppress the results of tests conducted on a sample of his blood, grounded in the rule of

People

Superior Court (Hawkins)

(1972) 6 Cal.3d 757 [100 Cal.Rptr. 281, 493 P.2d 1145], was denied. Under

Hawkins,

Nieto contends the blood was illegally seized because the seizure was not preceded by a formal arrest. We find the susbsequent, contemporaneous arrest here distinguishes this case from

Hawkins

and affirm.

On February 15, 1987, at approximately 3 a.m., Nieto was involved in an automobile accident resulting in a fatality. He was pinned behind the wheel of his car and, after being extricated by firemen, was taken to a hospital. Officer William Letizio, Jr., who had been called to the scene, followed him there.

While Nieto was being treated in the emergency room, Letizio waited outside. Letizio was told Nieto’s injuries were serious, requiring placement in intensive care. The officer was not permitted into Nieto’s room while he

[1277]

was being treated. However, a police technician was allowed to enter to take a blood sample while the officer stood watching in the open doorway, about 12 feet away. Letizio arrested Nieto at 5 a.m.

Nieto does not argue lack of probable cause for his arrest. Rather, he contends, in the absence of a prior arrest, it was unlawful to take the blood sample.

(People

People v. Nieto

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SONENSHINE, J.

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