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A state-maintained Prescription Monitoring Program does not require a search warrant to access. Wiretaps are lawful so long as supported by probable cause and a showing of necessity. 

• Nevada’s Prescription Monitoring Program (“PMP”) 
• GPS tracking warrants 
• Wiretap warrants 
• California’s Controlled Substance Utilization and Review System (“CURES”) 

Providing opioid prescription information from Nevada’s Prescription Monitoring Program (PMP) to law enforcement without the necessity of a search warrant is constitutional. PMP information — which doesn’t enjoy the same expectation of privacy as personal medical records — may be used to support probable cause needed to obtain a GPS tracking warrant. Wiretaps are lawful as long as they are supported by probable cause and a showing of necessity. 

In July 2018, a reliable confidential informant (“C.I.”) told law enforcement that defendant Myron Motley was traveling between California, where Motley lived, and Reno, Nev., for the purpose of illegally obtaining and selling prescription opioids, i.e., oxycodone and tramadol. In investigating this information, law enforcement requested and obtained a report (without the benefit of a warrant) from Nevada’s “Prescription Monitoring Program” (“PMP”) database that showed that one Reno physician had prescribed Motley “279 morphine milligram equivalent” (“MME”) units per day over a period of several years. The amount prescribed to Motley suggested “opioid abuse or diversion” (i.e., distribution to unauthorized recipients). The CDC (Centers for Disease Control and Prevention) guidance at the time recommended avoiding or carefully justifying an increase in dosage equal to or greater than 90 MME per day, about a third of what defendant was receiving.  

It appeared to law enforcement that Motley must be illegally trafficking in opioids, as alleged by the C.I. As a result, law enforcement sought in September 2018, a global positioning system (“GPS”) tracking warrant from a Nevada state judge, proposing to attach a tracker to Motley’s vehicle. The affidavit in support of the warrant included the information from both the C.I. and the PMP database about Motley’s opioid prescription history. The court issued a tracking warrant, allowing law enforcement to place a tracking device on Motley’s vehicle for 90 days.  

In December 2018, after the first warrant had expired, law enforcement sought a second tracking warrant — this time from a federal magistrate — which was also granted. The affidavit in this second warrant repeated the information that supported the first warrant, including Motley’s opioid prescription history obtained from the PMP database. The affidavit explained that the PMP database records showed that a physician named Eric Math, based in Reno, wrote the prescriptions. It also included new information that law enforcement had obtained from the first tracking warrant. The federal magistrate judge issued the second warrant — later renewing it — allowing law enforcement to install a tracking device on Motley’s vehicle for a total of another 90 days.  

With information gleaned from the above plus one or more additional C.I.s, officers sought and obtained a federal wiretap warrant (with a 93-page affidavit) for Motley’s cellphone, as authorized per 18 U.S.C. § 2516. The wiretap resulted in the collection of more information related to Motley’s (and others’) illegal opioid distribution. Charged in federal court with multiple counts related to the illegal distribution and conspiracy to distribute oxycodone and hydrocodone, Motley’s motion to suppress was denied. Convicted on all counts following a jury trial and sentenced to 14 years and 11 months in prison, Motley appealed. 

The Ninth Circuit Court of Appeal affirmed.  

Two issues were litigated on appeal:  

(1) the legality of the warrantless collection and subsequent use of information from Nevada’s PMP, and  

(2) the legal sufficiency of the information used to support the issuance of a wiretap on Motley’s cellphone. 

Warrantless Collection and Use of Information from Nevada’s PMP 

The GPS tracking warrants were obtained from the two magistrates using as part of their probable cause the information law enforcement had obtained from Nevada’s PMP. The challenged information was obtained without a search warrant. Motley argued that this violated the Fourth Amendment’s warrant requirement. Noting that this was an issue of “first impression,” previously undecided by the Ninth Circuit, the majority of the court found that no warrant was necessary. A “concurring opinion” argued that this issue should not have been decided at all, noting that “good faith” and “harmless error” were instead sufficient to decide against the defendant.  

At least one other circuit court (the First Circuit) has considered this issue, however, where New Hampshire’s equivalent to Nevada’s PMP was the source of the probable cause for a warrant. (See United States Department of Justice v. Ricco Jonas (1st Cir. 2022) 24 F.4th 718.) The Ricco Jonas Court held that no warrant was necessary. The basic rule is that no warrant is necessary absent a defendant’s reasonable expectation of privacy in the information being sought. “[A] criminal defendant may invoke the protections of the?Fourth Amendment?only if he can show that he had a?legitimate?expectation of privacy in the place searched or the item seized.”?(Italics in the original; United States v. Ziegler (9th Cir. 2007) 474 F.3rd 1184, 1189.) The First Circuit ruled in Ricco Jonas, and the Ninth Circuit agreed, that “in light of the intense government scrutiny to which prescription drug records are subject and the availability of those records for inspection without the need of court intervention under both state and federal law, a person does not have a reasonable expectation that the information contained in prescription drug records will be kept private and free of government intrusion.” (Ricco Jonas, supra,?at 736-737.)  

As noted, the federal government has a similar set of statutes, having regulated opioids under what’s known federally as the Controlled Substances Act (“CSA”). Under the CSA, registered dispensers of controlled substances must maintain records of each substance dispensed and make those records available for inspection and copying by the attorney general for at least two years.?(21 U.S.C. § 827(a)(3),?(b)) Since the CSA’s inception, the attorney general has had the statutory authority to obtain these records without a warrant when investigating crimes related to the misuse of controlled substance prescriptions. Per 21 U.S.C. § 876(a): “[T]he attorney general may...require the production of any records...which the attorney general finds relevant or material to [an] investigation [related to controlled substances].”  

The court noted here that Nevada’s PMP requirements “track the CSA’s close, extensive regulation of opioid prescriptions.” It was also noted that, “(t)he (Nevada) state entities in control of the database have always had the (statutory) obligation to report suspected illegal activity to law enforcement and to give law enforcement relevant information from the PMP database.”?(Nev. Rev. Stat. § 453.164(3)(a)) Also per statute, Nevada law enforcement agency employees can also access the PMP database without a warrant to “[i]nvestigate a crime related to prescription drugs.”?(Nev. Rev. Stat. § 453.165(4)(a))  

The bottom line is that opioid use and prescriptions have been subject to well-established and extensive regulation for more than 50 years. This includes the disclosure of opioid records to law enforcement?without?a warrant. On this undisputed historical record, society’s expectation has been that law enforcement would closely monitor and have access to opioid prescription records, thus negating any expectation of privacy a defendant otherwise might have had in such records.  

In this case, Motley argued, however, that despite the above, his subjective expectation of privacy was objectively reasonable because society has recognized as reasonable patients’ expectations of privacy in their personal medical records. Following the thinking of the First Circuit as expressed in Ricco Jonas, the court here declined to equate prescription drug records with all other medical records. Opioid prescription records, the court held, are only a “subset of medical records...[that] do not generally or necessarily contain the more personal and intimate information that other medical records do.” (See Ricco Jonas, at p. 736; noting that “general medical records contain ‘sensitive medical history and other information, including about mental illnesses, learning disabilities, birth defects, illicit drug use, pregnancy terminations, domestic violence history,’ patients’ complaints and symptoms, and ‘the patients’ family members,’ among others.” (Quoting?Eil v. U.S. DEA (1st Cir. 2017) 878 F.3rd 392, 396.) Additionally, “unlike prescription [opioid] records, (one’s personal) medical records are not subject to pervasive regulatory disclosures under both federal and state law.”? 

The court noted that “(t)hese crucial differences justify treating opioid prescription records differently from general medical records for?Fourth Amendment?purposes.” As such, Motley did not have a reasonable expectation of privacy in the records obtained and used in this case to support the issuance of the two GPS tracking warrants. Motley’s motion on this issue, the court ruled, was properly denied by the trial court.  

The Wiretap Warrant 

Federal law allows for the use of wiretaps in limited circumstances. In this case, after tracking Motley with GPS that had been approved by warrants, law enforcement sought a wiretap warrant on Motley’s cellphone under?authority of Title 18 U.S.C. § 2516. 

A 93-page affidavit reiterated the information contained in the two tracking warrant applications, as well as defendant’s opioid prescription history obtained from the PMP database. The affidavit also described information from other C.I.s and surveillance indicating that Motley was a part of an extensive drug trafficking organization involving several people. The affidavit culminated in detailed reasons why a wiretap was necessary to achieve the ultimate goals of the investigation, “including to identify the (other) members (of the trafficking organization) and the scope of the conspiracy.”  

Motley challenged the legality of the wiretap warrant, arguing that  

(a) the affiant failed to establish probable cause and  

(b) that the wiretap was unnecessary.  

The trial court denied the defendant’s motion to suppress the results of the wiretap warrant. The Ninth Circuit agreed.  

Probable Cause 

As a prerequisite to the issuance of a wiretap warrant, the magistrate must first be satisfied that “there is probable cause for belief that an individual is committing, has committed,?or is about to commit” certain offenses.?(18 U.S.C. § 2518(3)(a)). (Note: This same requirement can be found in California’s wiretap statutes under Pen. Code § 629.52(a)(1).)  

Despite raising this as a potential issue, Motley did not argue on appeal that the government failed to establish probable cause. But the court noted that even if he had argued this issue, his argument would have failed. The wiretap affidavit established that defendant, and several others who were in frequent contact with defendant, were all obtaining large amounts of prescription opioids from the same Reno physician; that defendant was buying the prescriptions for himself and others; and that he and at least one other coconspirator were selling the prescribed pills in Nevada.  

This evidence thus provided a “substantial basis” for the district court’s finding that?there was probable cause to believe that Motley was engaging in a conspiracy to illegally distribute prescription opioids.  

The Inadequacy of Normal Investigative Procedures 

Wiretaps are considered to be a last-ditch option in any criminal investigation. As such, federal statutory law requires that before a magistrate can approve a wiretap warrant, it must be shown that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” (18 U.S.C § 2518(3)(c)). (Note: See Pen. Code § 629.52(d), for California’s reiteration of this same requirement.)  

The trial court determined that the government had met its burden on this issue, and the Ninth Circuit again agreed. In determining whether the government has shown the required necessity, a court is required to employ a “common sense approach,” using “a standard of reasonableness to evaluate the government’s good faith effort to use alternative investigative means or its failure to do so because of danger or low probability of success.” (Citing United States v. Blackmon (9th Cir. 2001) 273 F.3rd 1204, 1207.)  

In this case, the court found that the government’s affidavit explained, in specific detail, law enforcement’s investigative methods, why those methods had been exhausted, and why other methods would likely be ineffective in identifying the members and the scope of the conspiracy.  

Specifically, the affidavit explained how it would not be feasible to introduce an undercover law enforcement agent into the already established drug trafficking organization at a level high enough to accomplish the goals of the investigation, and how in any attempt to do so would raise suspicions sufficient to render such an undercover operation unsuccessful. As such, the court ruled that the trial court did not abuse its discretion in finding that a wiretap was necessary.  

The court also rejected Motley’s argument that the government had all the evidence they needed without using a wiretap. The court rejected this argument, noting that it has “consistently upheld findings of necessity where traditional investigative techniques lead only to apprehension and prosecution of the main conspirators, but not to apprehension and prosecution of...other satellite conspirators.” (See?United States v. Torres (9th Cir. 1990) 908 F.2nd 1417, 1422.) (Note: I have myself consistently objected to this argument, submitting to a trial court that it is not up to the defendant to dictate how much evidence is necessary for the prosecution to obtain a conviction when it is undisputed that the defense intends to consistently attempt to negate whatever evidence the prosecution has. The court here came close to recognizing the truth of this argument, ruling that “(t)he government’s need for a wiretap is not negated simply because it managed to obtain some evidence of a conspiracy without a wiretap.”) Having shown “necessity,” the court held that the issuance of a wiretap warrant was justified. 

We don’t get many wiretap appellate court decisions, what with actual wiretaps being few and far between. My office sent me to a wiretap class some years ago for the purpose of qualifying me as a wiretap expert, only to leave me mumbling to myself that that stuff was far too complicated and time consuming to ever actually do one. But it’s good to have a little law on wiretap issues occasionally, illustrating the very restrictive legal requirements for obtaining such a warrant. Note that California’s wiretap statutes (not at issue in this case, but which are very similar to, if maybe a bit more restrictive than, the federal rules) can be found at Pen. Code §§ 629.50 through 629.98, with other very restrictive “eavesdropping” rules at Pen. Code §§ 632 through 633.5.  

As for Nevada’s PMP, the court notes in a footnote (fn. 2) that all 50 states, the District of Columbia, and two territories (Guam and Puerto Rico), have similar prescription drug monitoring programs. (See Lisa N. Sacco et al., Cong. Rsch. Serv., R42593,?Prescription Drug Monitoring Programs?4 (2018).) 

California’s prescription drug monitoring program is known as “CURES,” for “Controlled Substance Utilization and Review System.” (Health & Safety Code §§ 11165 to 11166) Similar to Nevada’s statutes, CURES provides a database and regulates Schedule II, III, IV, and V controlled substance prescriptions dispensed in California, while serving the public health and regulatory oversight agencies, along with law enforcement in general. CURES, as noted by the legislature, is committed to the reduction of prescription drug abuse and diversion without affecting legitimate medical practice or patient care.  

Note that there are currently no case decisions discussing the “expectation of privacy” issues as it might relate to CURES. But it would seem that the rules of United States v. Motley, as described above, would apply here as well. 

• Implied vs. express consent to a DUI blood draw 
• Veh. Code § 23612(a)(5), DUI blood draws, and exigent circumstances 
• Good faith 

• Blood draws from a DUI suspect may be performed only after obtaining either a search warrant, a valid express consent, or under exigent circumstances with probable cause.
• The Vehicle Code’s implied consent provisions under V.C. § 23612(a)(5) do not constitute an express consent.
• A DUI suspect being unconscious, by itself, does not necessarily provide an exigent circumstance allowing for a warrantless blood draw.

Defendant was involved in a fatal car crash on March 25, 2018, at around 11:30 p.m.  Responding officers found a Dodge Charger upside down in the roadway just north of the intersection of Ash Street and El Norte Parkway in Escondido.  (Irrelevant fact #1:  This is about two miles from where I lived for some 20 years of my 28-year tenure as a San Diego Deputy D.A.)  Defendant—apparently “uninjured but shaken”—admitted to officers that he had been the driver of the Charger.  A damaged second vehicle—a Ford Mustang—was in the front yard of a residence immediately adjacent to the intersection.  In the Mustang were two individuals; one deceased and the other—a 15-year-old boy—seriously injured.  The investigating officer contacted defendant at the scene and although not detecting any overt signs or symptoms that he might be under the influence of alcohol or drugs, he administered a so-called “horizontal gaze nystagmus field sobriety test.”  The officer noted a “just a faint jerking in (the defendant’s) eyes, at the extremes.” (Per footnote 4: “Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotary. . . . An inability of the eyes to maintain visual fixation as they are turned from side to side [in other words, jerking or bouncing] is known as . . . HGN. . . . Some investigators believe alcohol intoxication increases the frequency and amplitude of HGN and causes HGN to occur at a smaller angle of deviation from the forward direction.”  See People v. Leahy (1994) 8 Cal.4th 587, 592.)  There was some ambiguous evidence from witnesses at the scene indicating that defendant, driving too fast and recklessly, may have blown the red light at that intersection, T-boning the Mustang as a result.  Defendant was transported to the hospital to get checked out while the officer completed his investigation at the scene.  The officer—at least at that time—“drew no conclusion regarding fault for this incident, and did not form an opinion whether the traffic light for (the defendant) was red, yellow, or green . . . .”  After completing his on-scene investigation (at about 12:14 a.m.), the officer went to the hospital to further interview defendant.  The officer arrived at the hospital at about 12:45 a.m.; 75 minutes after the collision.  Contacting defendant while nurses “periodically attended to” him, the officer could smell an odor of alcohol emanating from him.  When asked, defendant admitted to drinking “a beer” earlier in the day.  At 1:00 a.m. (now an hour and a half after the collision), the officer had the defendant blow into a “preliminary alcohol screening (‘PAS’) device.”  (This, if you don’t already know it, is [per fn. 7] “a portable mini breathalyzer.” It is recognized, however, that this test does not yield “evidence-grade alcohol concentration results.”  See Birchfield v. North Dakota (2016) 579 U.S. 438, 487.  Its results, therefore, are not admissible in court.) Defendant, however, could not—or would not—provide a breath sample sufficient for the PAS device to operate automatically and give a blood alcohol readout.  So the investigator was forced to revert to a technique called a “manual trap.”  This involves the officer pressing a button on the device making it capture and test a subject’s breath sample even when that sample itself is insufficient to trigger the device’s automated features.  Per the investigator in his later testimony, using a manual trap typically yields a lower blood alcohol result than the normal, automatic method.  Defendant’s PAS results came out at 0.037 and 0.039 blood alcohol concentration (“BAC”); insufficient to show by itself that defendant was under the influence of alcohol for purposes of driving a motor vehicle.  Recognizing how useless this test would later be in court, the officer told defendant that he wanted to get a blood sample.  Defendant, however, conveniently stopped responding verbally to the officer, closed his eyes, and seemed to be oblivious to anything that was said to him.  The officer later testified that he could not tell whether defendant was asleep, unconscious, or just ignoring him.  Concerned that defendant might be moved to another part of the hospital for treatment, the officer arranged for a phlebotomist (who was 30 minutes away) to take a sample of defendant’s blood.  This was finally accomplished at 1:57 a.m., it being noted that defendant did not physically react to the insertion of the needle.  The time was almost two and a half hours after the collision.  This blood test revealed a 0.05 BAC with the presence of cocaine and THC (i.e., “tetrahydrocannabinol;” the psychoactive chemical in marijuana “that causes the ‘high’ associated with its use.”) being noted. The officer, of course, was not aware of the results of this test result while conducting his investigation at the hospital.  Defendant, therefore, was never formally arrested.  He was later charged by complaint in state court with two alcohol related vehicular manslaughter counts (the second victim having apparently died from his injuries) under P.C. § 191.5(a); i.e., Gross Vehicular Manslaughter.  Defendant filed a motion to suppress the BAC results.  This motion was granted when the People conceded that the officer should have obtained a search warrant before taking a blood sample.  The People then amended the complaint to two non-alcohol related vehicular manslaughter violations pursuant to P.C. § 192(c)(1)(11), and a reckless driving charge.  While pending trial, the United States Supreme Court decided the case of Mitchell v. Wisconsin (June 27, 2019) 588 U.S.__, __ [139 S.Ct. 2525].  Mitchell held (at pg. 2539) that “when police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment.” (Italics added.)  With this apparent change in the law, the People moved for a reconsideration of the previously-granted suppression motion.  The officer testified at two subsequent hearings that with the PAS test results, and the other information he had, he felt like he had probable cause to obtain a search warrant for defendant’s blood but that exigent circumstances prevented him from doing so.  The officer’s reasoning was that getting the warrant would have created substantial delays primarily because he was the only officer at the hospital with the other officers still investigating the scene, he did not have the proper paperwork with which to get a warrant, and he was concerned that defendant might be made unavailable to him by the hospital staff.  The trial court denied defendant’s suppression motion this time, finding that Mitchell applied and that exigent circumstances allowed for the warrantless blood draw. Defendant subsequently pled guilty and appealed.

The Fourth District Court of Appeal (Div. 1; San Diego County) reversed.  On appeal, defendant argued that (1) there was no exigency allowing for a warrantless extraction of his blood, and (2) the People failed to show that he had consented—impliedly or expressly—to the warrantless blood draw.

1.  Exigency:  Defendant, on appeal, first argued that even if the officer had probable cause to believe that he drove while under the influence that evening, no exigency existed sufficient to overcome the requirement that officers get a search warrant to obtain the blood sample.  Specifically, upon pointing out that two and a half hours had elapsed between when the collision occurred and the arrival of the phlebotomist at the hospital, defendant argued that the officer had ample opportunity to obtain a warrant.  In so arguing, the defendant noted that the officer was aware of San Diego County’s “electronic search warrant program” (i.e., a search warrant being obtained telephonically) that existed, and that it worked “quickly.” (i.e., 30 to 45 minutes).  The officer, however, never even made an attempt to obtain a warrant via this expedited procedure.  (The officer later testified that he just didn’t think of it.)  The People, in response, argued that the recently decided Mitchell v. Wisconsin applied, contending that exigent circumstances justified the warrantless blood test in that the officer reasonably feared that defendant may be taken away for medical treatment elsewhere in the hospital, rendering him unavailable for a blood test. The Court agreed with defendant, ruling that the People had failed to prove that “exigent circumstances” existed excusing the lack of a warrant.  It must first be acknowledged that drawing blood from a motorist during the investigation of a driving-under-the-influence case is in fact a search.  (Birchfield v. North Dakota, supra, at p. 455.)  As such, to be lawful, the People have the burden of proving that either a search warrant was obtained, defendant freely and voluntarily consented, or exigent circumstances existed excusing the lack of a warrant.   The People argued here that the third (i.e., exigent circumstances) exception applied.  The Court ruled, however, that the People failed to prove that exigent circumstances excused the lack of a warrant.  The People relied upon the Supreme Court’s holding in Mitchell v. Wisconsin, supra, at p. 2531, where it held that when a “driver is unconscious and therefore cannot be given a breath test . . . the exigent-circumstances rule almost always permits a blood test without a warrant.”  But there are two elements that must be met for this rule to apply: (1) BAC evidence is dissipating, and (2) “some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.”  In other words, an “exigency” existed.  In this case, factor number (1) was obviously occurring, as it always does; the BAC evidence was slowly dissipating.  As for factor number (2), the People submitted that the officer’s concern about defendant—upon becoming unconscious—being taken away by the hospital staff while awaiting the arrival of a phlebotomist would prevent him from obtaining a blood sample.  However, defendant here did not become became unresponsive until roughly 90 minutes after the accident, and almost 45 minutes after the officer began interacting with him at the hospital. Also, there was nothing in the record supporting the officer’s alleged concern that defendant was to be moved from the emergency room any time soon.  There was plenty of time, therefore, for the officer to have either obtained defendant’s consent or to seek a telephonic search warrant.  No exigency having been established, the rule of Birchfield did not apply. 

2.  Veh. Code § 23612(a)(5); Statutorily Imposed Implied Consent:  “One exception to the Fourth Amendment’s warrant requirement is consent.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) However, it is the People’s burden to prove that one’s consent was “freely and voluntarily given.”  The officer in this case testified that it was his understanding that pursuant to the Vehicle Code, a suspect arrested for DUI impliedly gives his consent to a blood test.  In fact, V.C. § 23612(a)(1)(A) does specifically say, in part, that “(a) person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.”   This is followed up by subdivision (a)(5) which provides that “A person who is unconscious or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the noncompletion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle.” Over the years, this has become known as California’s “implied consent” law.  Despite the existence of this statute, the Court here held that “(i)t was not objectively reasonable for (the officer) to believe that the implied consent law even applied here.  That’s because these sections apply only if the driver is “lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.”   Subdivision (a)(1)(C) §  23612  further states that “(t)he testing shall be incidental to a lawful arrest . . . .” “By its plain language, therefore, the implied consent law applies only if the person has been lawfully arrested for one of the listed offenses.”  Defendant here was never arrested, lawfully or otherwise.  Despite this, the Court noted that two California appellate court cases have found that a blood sample may be obtained from a driver even in the absence of an actual arrest; citing People v. Trotman (1989) 214 Cal.App.3rd 430, and People v. Deltoro (1989) 214 Cal.App.3rd 1417.  (See also the federal Ninth Circuit decision of United States v. Chapel (9th Cir. 1995) 55 F.3rd 1416, which is in accord.)  These cases have held that so long as there is probable cause to arrest, a formal arrest is not necessary in order to justify the extraction of a blood sample.  (E.g., see People v. Trotman, supra, at p. 437.)  The problem in the instant case, as the Court noted, is that not only had the officer not yet decided to arrest defendant, but probable cause to support an warrantless arrest did not yet exist.  Per the Court, the record is devoid of any facts that would have established probable cause, noting that neither the nystagmus test (conducted in the field) nor the PAS test (conducted at the hospital) did any more than show the possibility that he might have been under the influence.  As the Court noted: “This record does not support the conclusion that (the officer) had probable cause to arrest (defendant) for driving under the influence of alcohol at the time the blood sample was taken. Accordingly, the implied consent law does not apply.”  But the Court did not stop there, holding also that, “(e)ven if the implied consent statute applied, the People cited no authority that would have given an officer an objectively reasonable basis to believe that mere implied consent under section 23612 was sufficient for a warrantless blood draw under the Fourth Amendment.”  This is because prior case law has reached the conclusion that “implied consent” is not enough to justify a warrantless blood draw.  To the contrary, the People must also be able to prove that the defendant gave his “actual consent.” (People v. Harris (2015) 234 Cal.App.4th 671, 682.)  Per Harris: “(R)ather than determine whether ‘implied consent’ to a chemical test satisfies the Fourth Amendment, we must determine whether submission to a chemical test, after advisement under the implied consent law, is freely and voluntarily given and constitutes actual consent” (Id. at p. 689; italics in the original.)  Subsequent cases have upheld this theory.  “(A)dvance ‘deemed’ consent under the implied consent law cannot be considered actual Fourth Amendment consent.” (People v. Ling (2017) 15 Cal.App.5th Supp. 1, 3–5, 10–11.) As such, this Court held that, (n)o California court after (Missouri v.) McNeely ((2013) 569 U.S. 141) has held that the implied consent statute is sufficient by itself to justify a warrantless blood draw under the Fourth Amendment.”  (McNeely held that a defendant’s “actual consent” is necessary under the Fourth Amendment.)  While there may be other consequences of refusing to provide actual consent to a blood draw (e.g., forfeiture of one’s driving privileges, mandatory jail time if convicted), use of the resulting blood test results in a defendant’s subsequent criminal trial is not one of them.  Defendant in this case at one point lapsed into unconsciousness (or was feinting such unconsciousness).  As such, he could not provide the necessary actual consent to a blood draw.  Per the above, circumstances such as this preclude the constitutionality of obtaining of a blood sample.  The officer should have understood this, preventing him from later claiming a “good faith” misunderstanding of the rules.  The blood test results, therefore, were inadmissible and should have been suppressed. 

I don’t know about you, but I find this a very confusing issue despite the Court’s conclusion that the officer in this case should have been aware of these rules and how they apply.  But what we do know from this case (if not earlier cases) is that a statutorily “implied consent” under V.C. § 23612 is only good for imposing an administrative suspension of his license to drive for one to three years, depending upon his prior record, and mandatory jail time if the culprit gets convicted of a DUI offense. (See V.C. § 23612(a)(1)(D).)  It does not, by itself, allow for the non-consensual extraction of blood from a DUI suspect, whether under arrest or not.  In the absence of exigent circumstances or a warrant, “actual consent” must be obtained.  The U.S. Supreme Court in Mitchell v. Wisconsin, supra, didn’t help alleviate the confusion with its “almost always” language when talking about an unconscious suspect.  However, this case here tells us that the “almost always” comment should not be taken too literally.  It still has to be shown that there is an exigency necessitating a warrantless blood draw, as well as probable cause to effect an arrest if not an arrest itself.  So if I have any problem with this new case at all, it’s with the Court’s determination that the officer did not act in “good faith;” this being a rule of which he should have been aware.  The statutory law, when watered down by the existing case decisions, is just too confusing for many of us to understand until explained by an appellate court.  Expecting an officer in the field to reach the same conclusion here that it took the Court eight pages to explain seems to me to be a little unrealistic.  (Oh, and “irrelevant fact #2:”  This case decision was authored by the Honorable Richard Huffman, Acting Presiding Judge of the Fourth District Court of Appeal, Division 1.  Dick Huffman, as the Assistant District Attorney (#2 man in the office) for San Diego County in September, 1979, saw fit to hire me as a brand new DDA despite me having been previously rejected for the same job a year and a half earlier, and after a file folder’s worth of similar rejections from others.  So he obviously has a history of displaying a wisdom beyond the many others who failed to see my true potential. Just saying.)