P. v. Brown CA3

Filed 6/17/13 P. v. Brown CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, C071109

Plaintiff and Respondent, (Super. Ct. No. 05F07166)

v.

DONALD RAY BROWN,

Defendant and Appellant.

Following an unsuccessful Penal Code section 1538.5 motion to suppress evidence essential to his conviction, defendant Donald Ray Brown pled no contest to driving with a blood-alcohol concentration of 0.08 percent or higher (Veh. Code, § 23152, subd. (b))1 and admitted he had five prior convictions for driving under the influence. On appeal, he claims the trial court erred in denying his motion to suppress. Under the totality of the circumstances in this case, we find the officer reasonably suspected defendant had violated the Vehicle Code.

1 Undesignated statutory references are to the Vehicle Code.

1

BACKGROUND Because the sole issue on appeal is the denial of the motion to suppress, we summarize the facts as adduced at that hearing. On May 1, 2005, at 2:12 a.m. Officer Gary Hirdler was driving east on La Riviera Boulevard. Officer Hirdler was driving approximately one to two car lengths behind a Dodge Neon, close enough to be able to read the license plate and see all the occupants of the Neon. As they approached the intersection, the Neon was traveling in the left-most portion of the lane when the driver of the Neon made an abrupt right-hand turn without signaling. Officer Hirdler considered the turn unsafe and a violation of the Vehicle Code, so he initiated a traffic stop for making an unsafe turn in violation of sections 22107 and 22108. The Neon accelerated before pulling over to the right side of the road and stopped with the right front tire partially on the sidewalk. Officer Hirdler illuminated the vehicle and saw the driver jump into the backseat and the passenger move to the driver‟s seat. Officer Hirdler spoke to the woman sitting in the driver‟s seat, Christine Bufford, who told him her boyfriend (defendant) had been driving. She informed Officer Hirdler they had switched seats because defendant did not have a driver‟s license. Officer Hirdler spoke with defendant and “smelled the fruits of an alcoholic beverage emanating from his person.” In addition, defendant‟s eyes were bloodshot and watery, his speech was slurred and he was unsteady on his feet. Defendant denied driving and refused to answer questions. In general, he was agitated and uncooperative. Officer Hirdler administered a breath test, which showed a 0.16 percent blood-alcohol level. Because seven years had passed between the traffic stop and the suppression hearing, Officer Hirdler did not independently recall any additional details of the stop. Defendant was charged with driving under the influence of alcohol with three or more prior drunk driving convictions within 10 years (§ 23152, subd. (a); count 1), driving while having a 0.08 percent or more blood-alcohol level with three or more prior drunk driving convictions within 10 years (§ 23152, subd. (b); count 2), and driving on a