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People v. Sugarman1/24/2002
Released for publication February 14, 2002.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GARY ALLEN SUGARMAN, DEFENDANT AND APPELLANT.
Charles W. Campbell, Judge (Super. Ct. No. CR48344) (Ventura County)
Norma Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle S. Brodie, and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
Gary Allen Sugarman appeals a judgment after pleading guilty to driving under the influence with a prior (Veh. Code, §§ 23152, subd. (a), 23550.5), a felony, and admitting two prior felony convictions (§ 23152). We conclude that the highway patrol officer did not violate the Fourth Amendment by requiring Sugarman to take a blood test at a hospital after Sugarman frustrated the officer's attempts to conduct a breath analyzer test. The trial court properly denied Sugarman's motion to suppress the results of the blood test. We affirm.
FACTS
California Highway Patrol Officer Anthony Pedeferri stopped Sugarman's car because he was driving 79 miles per hour in a 55 miles per hour zone. When he approached Sugarman, Pedeferri smelled the odor of alcohol on Sugarman and in his car. He gave Sugarman five field sobriety tests but Sugarman did not properly complete them. Pedeferri arrested Sugarman and advised him of his options under the implied consent law to select one of three tests to determine the blood-alcohol concentration (BAC) of his blood. Sugarman initially said he did not want to take any tests, but he eventually agreed to take a breath test.
Pedeferri instructed Sugarman to seal his mouth around the tube to blow into the machine. But Sugarman did not follow these instructions. He blew air out the side of his mouth and not into the tube. The air he blew into the machine was not of sufficient volume for it to properly register a result. Pedeferri reinstructed him, to no avail. Sugarman did not follow the instructions and, after 10 unsuccessful attempts, the device did not record a valid BAC reading. Pedeferri testified, "I gave him ample time, ample opportunity to complete the test . . . ."
Pedeferri decided that a blood test was necessary. He took Sugarman to a hospital. Sugarman said he did not want to take a blood test but did not physically resist it. He extended his arm with his palm up so it could be tested. Pedeferri placed one hand on Sugarman's arm and with the other rolled up Sugarman's sleeve. Pedeferri testified, "I didn't even have to apply any pressure. He didn't move or flinch . . . ." A nurse took the blood sample.
Joshua Mateo, a forensic chemist, testified that the test results showed a BAC of .25 percent. He stated that the sealed envelope containing Sugarman's blood sample had notations regarding the chain of custody. But there was no name in the box marked "the sample was witnessed by." Mateo testified that they prefer that information to be supplied, but its omission was not a serious deficiency. Filling in the witness name box is not a requirement.
The court denied Sugarman's motion to suppress the results of the blood test. He pled guilty and filed this appeal.
DISCUSSION
I. The Compulsory Blood Test
Sugarman contends that the compulsory blood test without a warrant violated hi
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