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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul J. DURONCELAY, Defendant and Appellant.*

Cr. 2672.

Decided: November 16, 1956

Donald R. Fretz, Public Defender, Merced County, Merced, for appellant. Edmund G. Brown, Atty. Gen., by Doris H. Maier and J. M. Sanderson, Deputy Attys. Gen., for respondent.

The appellant, Paul J. Duroncelay, was convicted of a violation of section 501 of the Vehicle Code which consists of causing personal injury while driving under the influence of intoxicating liquor. At the trial, over timely objection, the results of a blood alcohol test were admitted into evidence. Appellant here contends that this was prejudicial error, because the taking of the blood sample from him constituted an unlawful search and seizure and a violation of due process of law under United States and California constitutional guarantees. He also contends that, excluding the evidence of that test, the evidence was insufficient to support the verdict. Between 10 and 10:30 p. m. on August 24, 1955, the defendant failed to make a required turn at a deadend street which was conspicuously posted. The car in which he was riding with two passengers continued on into a ditch, injuring one of the passengers and rendering the defendant unconscious. The defendant was taken in an ambulance to a hospital. The ambulance driver testified that at the time he came upon the scene of the accident the defendant and two other men were in the front seat of the defendant's vehicle; that each had alcohol on his breath; and that the man sitting on the right side of the car had a beer can in one hand and a wine bottle in the other and there were beer cans on the floor of the car; that the defendant was sitting under the wheel; and that all three men had blood on their faces. The defendant was carried into the hospital on a gurney, and shortly after his arrival he vomited matter which had a very strong alcoholic odor. The ambulance driver, who was also the coroner but did not act in that capacity during any of the matters here enumerated, requested the nurse to take a sample of the defendant's blood for the purpose of having a blood alcohol test performed. There is no evidence that the appellant consented to the taking of this test, nor is there any evidence that he made verbal protest against its being performed. There is evidence, however, that he drew his arm away when the nurse first attempted to insert the needle, and that the ambulance driver then held his arm while the nurse extracted the blood. The ambulance driver stated that in his opinion the defendant was intoxicated, but upon cross-examination it became apparent that this conclusion was reached only after the ambulance driver heard from an attending doctor that the defendant did not suffer a fractured skull, and it further appeared that the ambulance driver did not see the defendant while he was conscious but had merely seen him in his unconscious condition in the car, on the stretcher and while being violently nauseated at the hospital. It, therefore, is readily apparent that the appellant's conviction must rely upon the results of the blood alcohol test which showed a .22 percent blood alcohol content. The question presented here was considered in People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8, where the Supreme Court held that the taking of blood from an unconscious woman without her consent did not violate the due process guarantees of the California or the Federal Constitution. In that case the court distinguished the case of Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, on the ground that the basis there relied upon for determining whether or not due process of law was shown was whether or not the facts showed that brutal or shocking force was used to acquire evidence. In the opinion in People v. Haeussler, it is said, 41 Cal.2d at page 258, 260 P.2d at page 11:

‘More pertinent to the present inquiry is the prohibition against unlawful searches and seizures stated in the Fourth Amendment to the federal Constitution and in the California Constitution. Article I, section 19. In Wolf v. People of [State of] Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, the applicability of the due process clause of the Fourteenth Amendment to that prohibition was considered. Freedom from unlawful intrusion was held to be basic to a free society and, being implicit in the concept of ordered liberty, enforceable against the states through the due process clause.’

By this language it would appear that the learned author of that opinion considered that in the Haeussler case the real question involved in taking a blood sample was directed toward a search and seizure rather than toward a testimonial compulsion. It is also true that immediately following the quoted portion of the Haeussler case the court continued with a discussion of the admissibility of evidence improperly obtained.

Since the Haeussler decision was rendered prior to that in the case of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, we are confronted with a question as to whether or not such conduct as is here revealed renders the evidence obtained inadmissible as being an unreasonable search and seizure. From the record it appears that the ambulance driver requested the nurse to take the blood sample since he had been requested by a highway patrolman to obtain the same. This is not an ideal method of arranging for or conducting the extraction of blood for such tests. However, in view of the testimony here that there was a strong odor of alcohol in the car which had been wrecked by the operator's failure to notice proper warning signs; that there were beer cans on the floor of the car; and that when defendant vomited at some time after 10 p. m. there was a strong alcoholic odor to the volmitus, it is not necessary to say that this is an unreasonable search and seizure. The appellant's own story that he had had two beers at some time prior to 6:30 in the evening would not explain the strong alcoholic odor which seems to have been noted by everyone who came in contact with the appellant the night of the incident here involved. The force used here was not so shocking or brutal as to bring the case within the doctrine of the Rochin case and was indeed somewhat less severe than the force which was used in the case of People v. Woods, 139 Cal.App.2d 515, 293 P.2d 901. A reasonable search may be made incident to a lawful arrest, and the product of that search is admissible in evidence. People v. Simon, 45 Cal.2d 645, 290 P.2d 531; People v. Boyles, 45 Cal.2d 652, 290 P.2d 535; People v. Martin, 46 Cal.2d 106, 293 P.2d 52. It is also clear that the search may be made before or after the arrest so long as reasonable grounds for making an arrest existed at the time of the search. People v. Simon and People v. Boyles, supra. Here it does not appear when the arrest was made, but as appellant was unconscious for most of a 48-hour period, it may be assumed that the arrest took place after that period of time.

Having held as we did that the evidence here was admissible, it is not necessary to consider the second point raised by the appellant on this appeal.

The judgment appealed from is affirmed.

I concur with the conclusion of the majority but solely because of the holding of the Supreme Court in the Haeussler case. Although that case was decided prior to the Cahan decision, it was decided after the U. S. Supreme Court decision in the Rochin case.

While it is true that the majority in the Haeussler case appeared to place the question presented within the field of search and seizure, it is also true that the court further held that ‘[w]ithout deviation, this court has held that competent evidence, although improperly obtained, is admissible in a criminal prosecution against the person from whom the evidence is taken.’ 41 Cal.2d 252, 258, 260 P.2d 8, 12. There can be little question but that the Cahan case disposed of that concept. Also there can be little question but that the Supreme Court in the Rochin case rejected, under the circumstances therein set forth, any difference between ‘real’ evidence as distinguished from that obtained by ‘testimonial compulsion.’ If my understanding of the cases mentioned be correct, then since the question in the present case does not appear to have been considered at the time of the Cahan decision, such question could well be considered and re-evaluated now in light of the rules enunciated in the Cahan and Rochin cases.

McMURRAY, Justice pro tem.

VAN DYKE, P. J., concurs.

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