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People v. Lane3/8/1966
DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE
Crim. No. 11195
1966.CA.40864 ; 49 Cal. Rptr. 712; 240 Cal. App. 2d 634
March 8, 1966
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FRANK ALBERT LANE, DEFENDANT AND APPELLANT
APPEAL from a judgment (order granting probation) of the Superior Court of Los Angeles County. Bernard Lawler, Judge.
Jacques Leslie, Daniel A. Schiffer and Lawrence Teplin for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Norman H. Sokolow and Alan R. Wolen, Deputy Attorneys General, for Plaintiff and Respondent.
Drucker, J. pro tem. Ford, J., and Kaus, J., concurred.
Drucker
In a nonjury trial defendant was convicted of violation of section 23101 Vehicle Code. Upon consideration of the probation report the court suspended proceedings and granted probation for a period of two years. Defendant appeals from the judgment (order granting probation) upon the grounds that the unauthorized extraction of blood while he was unconscious was: (1) An unreasonable search and seizure, (2) a violation of his privilege against self-incrimination, and (3) a violation of his right to counsel, to remain silent, and to be cautioned that any evidence given could be used against him.
It appears from the evidence that on July 6, 1964, about 8 p.m. the defendant entered an off ramp of the Hollywood Freeway, proceeded diagonally across the freeway in the wrong direction and collided with another vehicle. The defendant was rendered unconscious, and two people in the other vehicle were injured. A police officer arrived at the scene almost immediately after the accident happened, saw the defendant lying unconscious on the freeway. The defendant had a strong odor of alcohol on his breath. In the car driven by the defendant the officer found broken glass from three vodka one-half pint bottles, the neck of one of the bottles was still sealed. He detected a strong odor of alcohol within the interior of the car. The defendant was transported to the receiving hospital. At the time the officer arrived at the hospital 20 minutes later, the defendant was still unconscious. While the
defendant was being medically treated, the officer still detected a strong odor of alcohol on defendant's breath. At this point he "mentally" placed defendant under arrest for driving under the influence of alcohol. At the request of the officer the doctor withdrew a blood specimen from the arm of the unconscious defendant, in a medically approved manner. A forensic chemist testified that the specimen contained .19 percent blood alcohol. This is indicative that the defendant was under the influence of intoxicating liquor. The defendant remained unconscious for a period of approximately five days.
Supportive of the decision of the trial court, appropriate to the facts of the instant case, and determinative of the issues before us, is the case of People v. Duroncelay, 48 Cal. 2d 766 [312 P.2d 690], in which the Supreme Court stated at pages 770-772, as follows: "It is settled by our decision in People v. Haeussler, 41 Cal. 2d 252, 257 [260 P.2d 8], that the admission of the evidence did not violate defendant's privilege against self-incrimination because the privilege re
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