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People v. Guerra4/8/2003
David Marino Guerra was convicted of driving with a blood-alcohol level of .08 percent or greater. (Veh. Code § 23152, subd. (b).) The appellate division of the Superior Court affirmed the conviction. The appellate division denied Guerra's petition for rehearing but granted his request that the case be certified to this court pursuant to California Rules of Court, rule 63(a). Guerra maintains the trial court should have granted his motion to suppress the blood test results because the blood was forcibly drawn in violation of his Fourth Amendment rights and there is no evidence the test was administered in a medically approved manner. He also criticizes the trial court's decision to allow rebuttal testimony at trial. Finding his first contention to have merit, we reverse.
I.
The following factual summary is comprised of information contained in the trial court exhibits and the settled statement of facts. Judge Warren H. Siegel ruled on Guerra's motion to suppress. At the suppression hearing, the parties stipulated that there was no warrant for the arrest. According to the settled statement of facts, "There was no issue in connection with the arrest, as [Guerra] did not contest the validity of the original stop and arrest."
The parties agreed Martin Breen's declaration would be used as if he had testified as to its contents. Breen, a senior forensic scientist, is employed by the Orange County Sheriff's Department, Forensic Science Services. He is the supervisor of the Forensic Alcohol Programs. He attested the operator of the breath-testing device [Sherry] Harmon, was trained and certified by the sheriff's department. He noted, "In their training they provide an operator guide to all certified datamaster operators. Contained within that operator guide is a description of the breath alcohol analysis procedure utilizing the BAC datamaster." It provides that a subject must provide at least two breath samples. The operator must ask the subject "have you belched, burped, regurgitated or vomited during the past fifteen minutes?" If the subject replies "yes," the operator is to discontinue the test. "If the subject does not want to continue with the breath test then they are to have the subject choose another chemical test."
Officer C. Egan testified she arrested Guerra and that he requested a breath test. Egan said the breath test was aborted because Guerra stated he had burped within the last 15 minutes. Egan "told [Guerra] that he would have to take a blood test. [Guerra] requested that he take a breath test." Egan then advised Guerra, by reading from a pre-prepared form, that he must either take a breath or blood test and refusal to do so would result in the loss of his license. The subsequent conversation between Egan, her partner Officer Ostrow, and Guerra was recorded:
"[Egan]: . . . And I explained to him before that if he couldn't pass it he's going to have to take the blood test, and he's refusing. So, you're still refusing?
"[Guerra]: Well, I want to take this test. The breath test.
"[Ostrow]: "Can't take that one, man. . . . ou already failed it because you burped or belched.
"[Guerra]: [Response was unintellible on the recording.]
"[Ostrow]: That only . . . leaves one more option, and that's -
"[Guerra]: Within 15 minutes?
"[Ostrow]: [Unintellible word] or blood. Are you willing to give a blood test?
"[Guerra]: So if I wait 15 more minutes without burping I can take this test?
"[Ostrow]: Did you hear my question?
"[Guerra]: Um, no.
"[Ostrow]: Are you willing to take a blood test?
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