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People v. Mitchell3/29/2004
Cornell Mitchell appeals a judgment after his conviction of driving with a blood alcohol content in excess of 0.08 (Veh.Code, [FN1] § 23152, subd. (b)), with findings that he had two prior convictions of that offense and a conviction of misdemeanor reckless driving (§§ 23103, 23103.5). We conclude the trial court properly denied Mitchell's motion to suppress the results of a second breath test. The officer did not have to honor Mitchell's belated request for a blood test because 1) Mitchell selected a breath test, 2) blocked the attempt to administer it, and 3) the officer could reasonably believe Mitchell's blood test request was made in bad faith. The court was not required to dismiss the jury panel and it did not violate Mitchell's right to a jury trial on his prior convictions. It did not commit reversible error by denying Mitchell's request for a special jury instruction on section 23614. We affirm.
FN1. All statutory references are to the Vehicle Code unless otherwise stated.
FACTS
Motion to Suppress
Mitchell filed a motion to suppress the results of a breath test.
Sheriff's Deputy Christian Meadows testified he stopped a car driven by Bridgett Hamilton, Mitchell's girlfriend, because she committed a traffic infraction. Mitchell, who was following her, drove his car to the scene, got out and walked towards Meadows. Meadows smelled an odor of alcohol on Mitchell's breath. His eyes were "watery" and he was "belligerent." Meadows requested the presence of an additional sheriff's unit because he was concerned for his own safety.
Meadows could not give Mitchell a field sobriety test because Mitchell was too "belligerent" and "irrational" and he felt Mitchell might escape. Another deputy tried to administer the preliminary alcohol screening (PAS) test. Mitchell "puckered his lips as if to seal them," but then he turned his head away. He prevented the completion of that test.
Meadows advised Mitchell that he had a choice of a blood or breath test to determine his blood alcohol level. Mitchell selected a breath test. Meadows transported him to the station and attempted to administer a breath test, but Mitchell did not cooperate. He would not breathe into the machine.
Mitchell requested to take a blood test. Meadows decided not to take him to the hospital for that test. He said Meadows had not completed the test he selected and he did not want to be "driving all around town for him[.]"
Meadows took Mitchell to a jail cell. Mitchell slept there for two hours. Mitchell eventually agreed to take another breath test and he completed that test.
The court denied Mitchell's motion to suppress the results of that test. It found Mitchell was "blocking" the attempts to test his blood alcohol content. Meadows could reasonably believe that it would be futile to take a blood test because of Mitchell's recalcitrant conduct.
Voir Dire
During the questioning of prospective jurors, the court asked, "Have you or anyone close to you ever been stopped or arrested for driving under the influence of alcohol or drugs?" Several prospective jurors said that they or members of their family had been stopped or arrested for that offense. Juror No. 10 said her brother is an alcoholic. She did not know if she could be impartial because his alcoholism had "caused such pain" to her family. Juror No. 3 said his uncle died of alcoholism. He also said he believed a drunk driver damaged his car and he "never got compensated." He admitted feeling "a little bitter." Jurors 3 and 10 were excused.
*2 Mitchell's counsel moved to dismiss "the entire jury panel because ... they are now tainted." They heard the prospective jurors' "sob stories" about the "impact of not just drunk driving on their lives, but alcoholism[.]" The court denied the motion an
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