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People v. Marquez8/5/2004
Defendant, Carlos Marquez, appeals from his convictions for phencyclidine possession (Health & Saf.Code, § 11377, subd. (a)) and misdemeanor driving under the influence of drugs. (Veh.Code, [FN1] § 23152, subd. (a).) Defendant argues the trial court improperly denied his Penal Code section 995 motion to set aside count 2 of the information, which was deemed a common law motion to suppress evidence. We affirm.
FN1. All further statutory references are to the Vehicle Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) At approximately 9:30 p.m. on May 2, 2003, Los Angeles County Sheriff's Deputy Daniel Holguin was driving in a black and white patrol car. Deputy Holguin saw defendant driving a purple Dodge Neon very slowly. The Neon was moving from side to side within the lane. Deputy Holguin turned on his emergency lights. Defendant drove into the parking lot of a mini-market and stopped the Neon. Deputy Holguin walked up to defendant's car. Defendant was asked if he had been drinking. Defendant stared blankly. Deputy Holguin repeatedly asked the same questions before defendant gave any answer. Defendant said he had a "40 ounce." Deputy Holguin believed defendant was referring to a 40-ounce beer. Defendant's speech was slurred. Deputy Holguin saw a glass vial in plain view in the center console of the car. Deputy Holguin ordered defendant out of the Neon. Defendant got out slowly, almost fell, and had to hold on to the door to keep his balance. It was raining outside. Therefore, Deputy Holguin put defendant in the back of the patrol car to ask further questions. Defendant continued to stare blankly. Defendant answered the questions only after they were repeated several times.
Deputy Holguin went back to the Neon to look at the vial in the console. The vial contained a liquid which had a slight chemical odor. The contents smelled like phencyclidine. Thereafter, Deputy Holguin conducted various field sobriety tests. Defendant swayed from side to side as he stood with his eyes closed. Deputy Holguin measured defendant's pulse as 145 beats per minute. Defendant's eyes flickered when Deputy Holguin conducted a nystagmus test. Deputy Holguin believed that defendant was under the influence of phencyclidine. Defendant was arrested. Deputy Holguin attempted to handcuff defendant. But Deputy Holguin could not move defendant's hands because they were too rigid. Deputy Holguin recognized this rigidity as a common symptom of individuals under the influence of phencyclidine.
Deputy Holguin parked and locked defendant's car in a nearby parking place. Defendant was driven to a sheriff's station and booked into the jail. Deputy Holguin asked defendant to sign the booking slip. Defendant did not respond to the direction to sign the booking slip. Deputy Holguin marked the slip, "Refused." Deputy Holguin asked defendant to submit to a urine test. Defendant stated that he wanted a blood test. Deputy Holguin told defendant that a blood test was unavailable. Deputy Holguin again asked defendant to submit to a urine test. Defendant refused to take the test. Defendant also refused to sign the admonishment form regarding the urine test. Deputy Holguin wrote "Refused" on the form.
*2 After defendant was booked into custody, Deputy Holguin returned to the parked and locked Neon. Deputy Holguin collected the amber vial and secured it in a "K-pack" because it contained a hazardous material. Deputy Holguin had not taken the vial previously because there had been an unidentified person riding along in the patrol car at the time of defendant's arrest. As a result
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