Opinion
HUFFMAN, Acting P. J. Nicholas J. Esayian was arrested for driving under the influence of alcohol and, in accordance with the implied consent law (Veh. Code,1 §§ 23612, subd. (a) & 13384), he submitted to a blood test to determine his blood-alcohol content (BAC). Esayian was charged with driving under the influence of alcohol (DUI) as a misdemeanor. In the trial court Esayian moved to suppress the evidence of the blood test on the ground that the phlebotomist who drew his blood was not authorized under the appropriate statute to draw blood for that purpose. Accordingly, Esayian argued that the use of the blood and the results of any test of the blood would violate his constitutional rights under the Fourth and Fourteenth Amendments to the federal Constitution. The trial court denied the motion to suppress. Thereafter Esayian was convicted by a jury of one of the charges then pending against him.
Esayian appealed his conviction to the appellate division of the superior court (Appellate Division). That court affirmed his conviction, finding no error in the denial of Esayian’s motion to suppress evidence or in the jury trial. The Appellate Division thereafter granted Esayian’s request to certify the following questions for determination by this court: (1) whether the trial court erred in denying the suppression motion because the phlebotomist who drew the blood did not meet the requirements of section 23158; and (2) whether it violated Esayian’s Fourteenth. Amendment right to a fair trial for the prosecution to use the evidence obtained in violation of the statutory scheme to prove an essential element of the charged offense.
We transferred the matter to this court and requested the parties brief a third issue of whether the evidence in this case establishes that County of San Diego (County) law enforcement agencies have a deliberate, systematic and persistent policy to have blood drawn in violation of the statutory scheme. We have also permitted the filing of various amicus curiae briefs and have heard oral argument in the matter. After a review of the record and consideration of the briefing, we are convinced the record before us does not establish a systematic and persistent policy by the County to violate the statutory scheme for drawing blood in this type of case. We are also satisfied that Esayian’s blood was not drawn in violation of the Fourth Amendment and that Esayian’s right [1035]to a fair trial was not violated by the introduction of blood test results where the blood draw did not comply with California’s regulatory scheme. Accordingly we will affirm the judgment of the superior court.
FACTUAL BACKGROUND
Deputy Sheriff Charles Morreale stopped Esayian for speeding and subsequently arrested him for DUI. Esayian was given the choice of a blood, breath or urine test to determine his BAC. He elected to submit to a blood test. Deputy Morreale took Esayian to the Vista Detention Facility where, pursuant to a contract between the County and American Forensic Nurses, phlebotomist Sally Garcia drew Esayian’s blood. The blood test results showed that Esayian’s BAC was 0.12 percent. Esayian was charged with misdemeanor counts of driving under the influence of alcohol (count 1) and driving with a BAC of 0.08 percent or greater (count 2).
Prior to trial, Esayian moved to suppress the blood test results on the grounds that Garcia was not authorized to draw blood in DUI cases pursuant to section 23158.
At the pretrial hearing Deputy Morreale testified he arrested Esayian for DUI. Esayian elected to take a blood test. Deputy Morreale was aware that a phlebotomist would be on duty at the Vista Detention Facility and that there was also a breath testing machine at that location in the event Esayian changed his mind as to which chemical test he would choose. Morreale took Esayian to the Vista facility where he observed phlebotomist Sally Garcia draw blood from Esayian. Morreale had observed blood draws for DUI cases on a number of occasions. He did not observe anything unusual about this particular blood draw.
Morreale testified he observed Garcia cleanse the area from which the blood was drawn with a nonalcoholic swab. Deputy Morreale did not know the requirements of California Code of Regulations, title 17, section 1219.1 (Title 17).
Esayian testified that upon his arrest he elected to take a blood test. He did not discuss the qualifications of the phlebotomist with either Deputy Morreale or Ms. Garcia. Esayian believed Ms. Garcia swabbed his arm before drawing the blood. After the test she put cotton gauze and a Band-aid over the puncture. After the process was completed Esayian noted a small trickle of blood. Ms. Garcia gave Esayian a piece of cotton, which he used to clean off the blood. The blood draw procedure took 12 to 15 seconds. Esayian testified that the procedure used by Ms. Garcia did not differ from other times he had given blood samples.
[1036]Sally Garcia testified she was employed at the Vista Detention Facility on the date of Esayian’s blood draw. She did not remember the details of the specific draw on that date. Ms. Garcia was working for American Forensic Nurses at the Vista facility. A registered nurse was on duty at the time. The nurse would check the suspect’s vital signs, but would not necessarily be present when the blood draw took place.
At the time of her testimony at the suppression hearing, Ms. Garcia was employed as a medical assistant for Cassidy Medical Group. Most of her duties at the Cassidy Group generally involved back office responsibilities. She had received six months’ training at the Simi Valley Adult School in conducting venipuncture blood draws, although the course was designed for training medical assistants. She is not certified by the State of California. In her medical career she had performed over 200 blood draws. She did not know the requirements of Title 17.
Ms. Garcia worked for American Forensic Nurses for two years and had performed about 100 blood draws relating to driving under the influence cases.
In her usual procedure to draw blood she would wait for the nurse to check the suspect’s vital signs. Then Ms. Garcia would use a tourniquet. She did not recall using a swab on the occasion of Esayian’s blood draw. If she had she would not have used alcohol or betadine. She would use a handiwipe supplied by American Forensic Nurses. She conducts blood draws at the Vista facility in the same manner as she does while working as a medical technician. She only draws venous blood from the suspect.
Garcia recalled no complications from the procedure. She then testified about the process of collecting and storing the sample.2
DISCUSSION
I
DELIBERATE AND SYSTEMATIC VIOLATION OF STATUTE
As we have indicated, we requested that the parties and the amici curiae brief the question of whether the record demonstrated a systematic, deliberate and persistent violation of the statutory scheme regarding blood draws in [1037]DUI cases. After careful review of the record, including those matters judicially noticed by the court, we conclude this record does not support a finding of systematic, deliberate and persistent violation of the statutes by the County.
We have reviewed the amicus curiae briefs presented in this case. Amicus curiae on behalf of Esayian cites to the record in another appellate proceeding (Ridener v. Superior Court (May 15, 2003, D041984)), which includes evidence that although the contract between the County and American Forensic Nurses requires blood draws be conducted by qualified personnel, few if any of American Forensic Nurses’ phlebotomists are so qualified and that the County is and has been well aware of this fact. The evidence in that record also suggests that American Forensic Nurses’ phlebotomists do not maintain their equipment in a medically accepted manner. However, although the file and briefs in that case are proper subjects for judicial notice, the truth of the content of those materials is not. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1062 [31 Cal.Rptr.2d 358, 875 P.2d 73]; see also People v. Woodell (1998) 17 Cal.4th 448, 455 [71 Cal.Rptr.2d 241, 950 P.2d 85].) Thus Esayian and amicus curiae on his behalf cannot rely on such evidence to establish that County law enforcement agencies have a deliberate, systematic and persistent policy of having blood drawn in violation of the statutory scheme.
n
THE BLOOD DRAW IN THIS CASE DID NOT VIOLATE THE FOURTH AMENDMENT
Esayian contends the trial court erred in denying his motion to suppress evidence under Penal Code section 1538.5. His principal argument is that the blood draw in this case did not comply with the statutory rules governing the drawing of blood in DUI cases and therefore the blood was taken in violation of the Fourth Amendment. During oral argument a separate issue was raised regarding the blood draw in this case. It was argued that under Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct. 1826] (Schmerber), the prosecution must affirmatively show that the blood was drawn in a medically approved manner. Given that burden of proof, the argument continued that there was no evidence in this case to meet that burden of proof since Garcia was not an approved phlebotomist under the statute and no other medical person testified. We will reject both arguments.
As we will explain in the discussion that follows, the drawing of blood in a DUI case by a phlebotomist who does not qualify under section 23158, subdivision (a) does not amount to a violation of the Fourth Amendment, nor does such violation support exclusion of the blood test evidence [1038]under either the California or federal Constitutions. As to the proof of the manner of drawing the blood, the record in this case is sufficient to show that the draw was made by a person trained in venipuncture and done in the same manner as blood is regularly drawn in ordinary blood tests. Thus we are satisfied the blood was drawn in compliance with the directives of Schmerber.
A. Statutory Violation
Although the trial judge at the Penal Code section 1538.5 motion found Garcia’s training and experience almost satisfied Business and Professions Code section 1246, subdivisions (a) through (b), the District Attorney and the amicus Attorney General concede the taking of blood in this case violated the literal requirements of section 23158, subdivision (a). We accept those concessions on this record and proceed to analyze Esayian’s contentions based on the assumption Garcia’s actions did not comply with statutory requirements.
Before we examine the merits of this contention we set forth the appropriate standard of review. On appeal from a denial of a motion to suppress evidence on Fourth Amendment grounds we review the historical facts as determined by the trial court under the familiar substantial evidence standard of review. Once the historical facts underlying the motion have been determined, we review those facts and apply the de novo standard of review in determining their consequences. Although we give deference to the trial court’s factual determinations we independently decide the legal effect of such determinations. (People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].)
Esayian’s contention that a violation of the statutory requirements for the manner of drawing blood in DUI cases does not raise any factual questions in this case. The effect of such violations is a question of law for this court to independently decide. In making that determination we are guided by recent case law from the Supreme Court.
In People v. McKay (2002) 27 Cal.4th 601 [117 Cal.Rptr.2d 236, 41 P.3d 59] (McKay), the court addressed the question of whether an arrest made in violation of a Vehicle Code section would require suppression of the evidence obtained during that arrest. Relying on the case of Atwater v. City of Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2d 549, 121 S.Ct. 1536], our Supreme Court held that violation of a statute does not render an arrest unreasonable within the Fourth Amendment and that such statutory violations cannot serve as the basis for the application of the exclusionary rule. (McKay, supra, 27 Cal.4th at pp. 622-624.)
[1039]In People v. Ford (1998) 4 Cal.App.4th 32 [5 Cal.Rptr.2d 189] (Ford), the court dealt with a challenge to the drawing of blood in violation of the same statutory scheme as before us in which the defendant argued the taking of the blood without informed consent violated the statute and such violation compelled exclusion of the evidence taken. The court in Ford examined the requirements of Schmerber, supra, 384 U.S. 757, in the context of a claimed statutory violation. The court declined to decide whether the lack of informed consent violated the statute. Rather the court in Ford held the question under Schmerber was whether “the manner in which the sample was obtained” rendered the procedure constitutionally impermissible. (Ford, supra, 4 Cal.App.4th at p. 37; see also Ove v. Gwinn (9th Cir. 2001) 264 F.3d 817, 824.) (Ford has been cited with approval in People v. Sugarman (2002) 96 Cal.App.4th 210, 216 [116 Cal.Rptr.2d 689].)
We believe that the reasoning of McKay, supra, 27 Cal.4th 601, and Ford, supra, 4 Cal.App.4th 32, require rejection of Esayian’s contention in this case. The mere fact that the phlebotomist may not have fully complied with the statutory requirements of section 23158, subdivision (a) does not create a Fourth Amendment violation. There may be other remedies available to challenge governmental activity in violation of statutes and regulations. However, such violations, without more, do not render a search or seizure unreasonable within the meaning of the Fourth Amendment.
B. The Manner of Drawing the Blood
As we have noted, the discussions at oral argument raised the questions of whether Schmerber, supra, 384 U.S. 757, required proof that the blood was drawn in a “medically approved manner” and if so, whether the prosecution met its burden in this case. Specifically, it is argued that the burden cannot be met because Garcia was not “approved” under the statute and did not know the requirements of Title 17. Thus, the argument continues there needs to be some expert testimony that the blood was properly drawn. We believe this record has sufficient evidence to show the blood was drawn in a constitutionally permissible manner.
In Schmerber, supra, 384 U.S. 757, the court addressed a number of constitutional issues regarding the drawing of blood from an arrested person without the person’s consent. The court noted that the “overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” (Id. at p. 767.) The court there found that drawing blood for a blood test was reasonable when supported by probable cause and exigent circumstances, which made it unnecessary for police to obtain a warrant. The court noted that a physician in a hospital setting drew Schmerber’s blood, with appropriate precautions taken. It found that for most [1040]people blood tests involve “virtually no risk, trauma or pain.” (Id. at p. 771.) While the court went on to express some doubts about blood being drawn in the private setting of the police station, it did not attempt to set any specific rules for blood tests conducted outside the hospital setting.
In Winston v. Lee (1985) 470 U.S. 753 [84 L.Ed.2d 662, 105 S.Ct. 1611], the court revisited the issue of taking evidence from the body of a suspect by means of surgical intrusions beneath the skin. It found that the reasonableness of such intrusions depended upon a weighing of the societal interest in obtaining the evidence as against the individual’s privacy rights and the risks of pain or harm posed by such procedures. By way of example, the court cited the blood test in Schmerber, supra, 384 U.S. 757, as a type of test which is highly effective, produces valuable probative evidence and poses little risk of harm, pain or indignity to the suspect. (Winston, supra, 470 U.S. at p. 762.) Certainly society has a great interest in the effective enforcement of the prohibitions against driving under the influence of drugs and alcohol. Blood tests are an accepted, safe method of reliably obtaining evidence in such cases. (Ford, supra, 4 Cal.App.4th at pp. 38-39.)
Applying the above principles to the facts of this case, we find the prosecution carried its burden to show the blood was drawn in a constitutionally permissible fashion. Clearly a blood draw is a medical procedure and must be conducted in keeping with medical requirements for such procedure. The Vehicle Code creates a statutory scheme for such draws, but noncompliance with the statute does not, by itself, demonstrate the methods used were improper.
The trial court in this case could reasonably find that Garcia had undergone appropriate training in venipuncture. She was employed at a medical clinic and had done about 200 blood draws in her “medical career.”3 She testified that the blood draw in this case was done in the same manner as all the other blood draws she had performed. Moreover, the record, viewed in the light most favorable to the trial court’s decision, supports her statement. Garcia used a tourniquet, swabbed the area from which blood would be drawn with a nonalcoholic swab (the testimony of Morreale and Esayian) and withdrew the blood with a sterile needle. After the draw she covered the puncture with cotton gauze and a Band-aid. Esayian testified the blood draw was done in the same fashion as other blood tests he had experienced in the past. Morreale gave similar testimony.
The manner in which the blood was drawn in this case matches the manner in which the blood was drawn by a licensed technician in Ford, supra, 4 [1041]Cal.App.4th 32. There is nothing in this record to justify an inference that the manner of drawing the blood was unsanitary, or subjected the suspect to any unusual pain or indignity. It is undisputed the draw was supported by probable cause and done under exigent circumstances, i.e., that the alcohol in the blood would metabolize and thus could be drawn without a prior judicial authorization. (Schmerber, supra, 384 U.S. 757.) The trial court found the blood was properly drawn and nothing in the record compels a different conclusion. As curiae counsel for Esayian conceded at oral argument, the defense expert testimony in the trial court did not challenge the conduct of the blood draw, but rather challenged the manner of its collection and preservation, none of which raises a question as to the constitutional validity of the draw itself.
The only negative fact discussed at oral argument was the fact that Garcia did not know the requirements of Title 17. There is nothing in that fact, however, that detracts from the evidence that this draw was like the others she did in her medical career, as distinguished from her work for American Forensic Nurses. Title 17 does not address Garcia’s work at the clinic or her training in venipuncture. It was not necessary in this case for the prosecution to produce (without request or objection from the defense) a separate “medical expert” in order to meet its burden of proving compliance with the Fourth Amendment.
The trial court properly denied the motion to suppress evidence.
m
DUE PROCESS
Finally, Esayian contends that the introduction of the blood test results at trial violated his right to due process. He argues that admitting evidence of a blood test where the blood was taken in violation of the statutory scheme is fundamentally unfair. We do not find a violation of Esayian’s due process rights.
Esayian was represented by counsel at trial. He had full access to the prosecution’s evidence and had the opportunity to fully challenge the government’s case. Esayian not only moved to suppress the blood test evidence before trial, he mounted a vigorous attack on the credibility of that evidence at trial. Esayian presented expert witness testimony to criticize the manner in which his blood sample was stored, preserved and processed. His expert sharply challenged the test results.
Esayian’s evidence was countered at trial by an expert presented by the prosecution. At the end of the process, the jury believed the prosecution’s [1042]case and convicted Esayian. He does not challenge the sufficiency of the evidence. He simply argues that tests taken in violation of statute violate due process.
A person seeking to overturn a conviction on due process grounds bears a heavy burden to show the procedures used at trial were not simply violations of some rule, but are fundamentally unfair. (Montana v. Egelhoff (1996) 518 U.S. 37, 43-44 [135 L.Ed.2d 361, 116 S.Ct. 2013].) Ordinarily, even erroneous admission of evidence does not offend due process unless it is so prejudicial as to render the proceeding fundamentally unfair. (People v. Falsetta (1999) 21 Cal.4th 903, 913 [89 Cal.Rptr.2d 847, 986 P.2d 182]; Estelle v. McGuire (1991) 502 U.S. 62, 70 [116 L.Ed.2d 385, 112 S.Ct. 475].)
It appears from a review of the settled statement and the discussions at oral argument that Esayian did not challenge the manner of the blood draw at trial. His expert focused on other issues, and was not successful in raising a reasonable doubt regarding the prosecution’s case. Esayian did not raise a due process claim in the trial court. Neither the prosecution nor the court had the opportunity to address the constitutional issue presented here. Failure to raise a constitutional issue at trial constitutes a waiver of the issue on appeal. (People v. Koontz (2002) 27 Cal.4th 1041, 1082 [119 Cal.Rptr.2d 859, 46 P.3d 335].) Given the nature of this record, however, even if we did not treat this issue as waived, there is nothing in the case before us to demonstrate that admission of evidence taken in violation of a statute violates the principles of due process.
DISPOSITION
The judgment is affirmed.
O’Rourke, J., concurred.
All further statutory references are to the Vehicle Code unless otherwise specified.
The sample preservation and testing process was vigorously contested at the motion hearing and at trial. The issues before us in this proceeding however, do not require our consideration of such evidence. Accordingly, we have omitted discussion of the details of such testimony.
She also testified she had performed about 100 blood draws in DUI cases.