People v. Superior Court (Scott)

California Court of Appeal Nov 25, 1980 No. Civ. 60395Published

Before: Cobey

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Holding. The court held that a motion to suppress evidence based on a denial of a requested blood test is a common law motion rather than a Penal Code section 1538.5 motion, and therefore is not subject to pretrial appellate review. Consequently, the appellate department's order was vacated and the case remanded to the municipal court.

Issues

Whether a motion to suppress evidence based on a denial of a requested blood test constitutes a Penal Code section 1538.5 motion.
Whether a denial of a common law suppression motion is reviewable pretrial.

Disposition. Remanded with directions to vacate the appellate department's judgment.

Quotations verified verbatim against the opinion

“a section 1538.5 motion may be grounded only upon claimed unconstitutional search and seizure.”

“A denial of a common law suppression motion is not reviewable pretrial.”

“The appellate department is directed to vacate its opinion and judgment herein, and to remand the underlying criminal prosecution to the municipal court”

Opinion

COBEY, Acting P. J.

This matter is before us upon a writ of review which we issued at the direction of the Supreme Court. The background of the matter is as follows: The real party in interest, Bill Scott, Jr., was arrested on May 28, 1979, for violation of Vehicle Code section 23102, subdivision (a) (misdemeanor drunk driving). Scott asked for a chemical blood test at the scene of his arrest and again at the police station after he had been advised, pursuant to Vehicle Code section 13353, subdivision (a), of his right to choose between chemical tests of his blood, breath or urine. The police instead administered to him only a breath test, although facilities were immediately available at the police station for the administration of a blood test, and Scott’s third request for a blood test occurred after he saw the results of the breath test.

On August 31, 1979, Scott moved to suppress the results of the breath test purportedly pursuant to Penal Code section 1538.5. On September 19, 1979, the municipal court denied the motion on the ground that it did not lie under section 1538.5. Prior to any trial of Scott for the misdemeanor charged, he appealed this denial to the appellate department of the superior court which, in a two-to-one opinion and judgment, reversed the municipal court and directed suppression of the results of the breath test. On July 2, 1980, the People separately applied to the appellate department for rehearing and for certification of the case for transfer to this court. On July 18, 1980, the appellate department denied rehearing but certified the case for transfer to this

[605]

court. On August 6, 1980, this court declined to accept transfer, whereupon the People petitioned the Supreme Court for, among other things, a writ of mandate directing the appellate department to dismiss Scott’s appeal from the denial of his suppression motion. In response to this petition the Supreme Court directed us to issue a writ of review of the matter, which we have done.

The municipal court and the dissenter in the appellate department of the superior court are correct in their view that Scott’s suppression motion, although called a section 1538.5 motion, was instead actually a common law suppression motion. Under

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People v. Superior Court (Scott)

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