People v. Pickard

Filed 6/30/17

CERTIFIED FOR PUBLICATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO APPELLATE DIVISION

THE PEOPLE, Appellate Division No.: CA269335 Trial Court Case No.: CN358552 Plaintiff(s) and Appellant(s), Trial Court Location: North County Division

v. DECISION/STATEMENT OF REASONS AUBREE PICKARD, (CCP § 77(d)) BY THE COURT

Defendant(s) and Respondent(s).

APPEAL from the Order granting defendant’s Penal Code section 1538.5 motion to suppress the drug screening results entered by the Superior Court, San Diego County, Frank L. Birchak, Judge. Following argument on June 22, 2017, this matter was taken under submission. AFFIRMED. PROCEDURAL AND FACTUAL BACKGROUND On February 19, 2016, the defendant was arrested for driving under the influence of alcohol. When the officer gave the Implied Consent Law admonishment, he told defendant that she’d have to submit to a breath or blood test. He further explained that the breath machine is unable to retain any kind of a sample for retesting. On the other hand, with the blood test, the nurse would draw two small vials of blood -- “[o]ne of those vials goes to the crime lab and gets tested for

alcohol….The second vial is held at no cost to you.” (Emphasis added.)1 Consistent with his field admonishment, the officer testified he told the defendant “that two small vials of blood will be drawn. One goes to the San Diego Country Crime Lab. It gets tested for alcohol and … that report gets added to my report at a later date.” (Emphasis added.) The defendant elected to submit to a blood test. It was stipulated by the parties that the defendant’s blood was analyzed for alcohol on February 29, 2016, and was later sent to Bio-Tox for a drug analysis. Bio-Tox received the second vial of defendant’s blood on March 30th, and the Bio-Tox report dated April 1, 2016 reflected the positive results of the drug screen. On April 25, 2016, the People filed a complaint charging defendant with driving under the combined influence of alcohol and drugs in violation of Vehicle Code section 23152, subdivision (f). After hearing the evidence during the suppression motion, the trial court found that the defendant had consented to the blood test after her arrest for driving under the influence. The trial court denied the motion to suppress the blood alcohol test dated February 29, 2016, but granted the motion to suppress the drug test results dated April 1, 2017 as beyond the scope of the defendant’s consent, which was limited to testing the blood sample for alcohol. The People appeal from the order suppressing the drug test results. DISCUSSION The law on the scope of a suspect’s consent has been set forth in People v. Crenshaw (1992) 9 Cal.App.4th 1403: