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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. James Denton CAVES, Defendant and Appellant.*

Cr. 9754.

Decided: April 25, 1978

Edwards, Edwards, Ashton & Flanagan and Perry D. Mocciaro, Glendale, for defendant and appellant. Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., Oretta D. Sears and Cliff Harris, Deputy Dist. Attys., for plaintiff and respondent.


Defendant James Denton Caves was convicted in municipal court of driving a vehicle while under the influence of intoxicating liquor (Veh.Code, § 23102, subd. (a)). His conviction followed a denial of his motion to suppress evidence of a blood sample taken by threat of physical force, over his protest, and following his offer to submit to either a breath or urine test. Defendant appealed his conviction to the appellate department of the superior court. That court reversed and this court accepted certification to settle important questions of law and to secure uniformity of decision. (Cal. Rules of Court, rule 63(a).)

The facts are undisputed and are set forth in a settled statement as follows:

“(1) Fullerton Police Department has a policy that for determining the blood alcohol level in a person arrested for driving under the influence of alcohol, only a blood test will be performed.

(2) Defendant advised the arresting officer that he was aware that he had a choice of three tests, and that he would submit to either a breath or urine test.

(3) Defendant was advised that he could only have a blood test.

(4) Defendant refused to take a blood test until being advised that, if he didn't submit voluntarily, force would be used to take said blood sample.

(5) Orange County Jail, which is accessible by Fullerton Police Department, has facilities for giving a breath test.

(6) Fullerton Police Department has the facilities for giving a urine test.

(7) Fullerton Police Department is aware of the provisions of sec. 13353 of the California Vehicle; nevertheless, it is the policy of the Fullerton Police Department that a person arrested for sec. 23102(a) CVC should not have a choice of tests, and shall not have a right to take a breath or urine test.

(8) A blood test was given to the defendant in a medically approved manner.”

The issues to be determined are:

1. Is it a denial of equal protection of the laws for the Fullerton Police Department, pursuant to established policy, to extract blood from a person arrested for driving a vehicle in violation of Vehicle Code section 23102, subdivision (a), over the objection of the person and without offering the choices set out in Vehicle Code section 13353, subdivision (a)?

2. Is evidence of the alcoholic content of the blood thus obtained admissible in the trial of such person charged with a violation of Vehicle Code section 23102, subdivision (a)?

For the reasons hereinafter stated this court holds that the extraction of the defendant's blood under the factual circumstances described in the settled statement deprived the defendant of the equal protection of the laws in violation of the United States and California Constitutions. (U.S. Const., 14th Amend.; Cal.Const. art. I, § 7, art. IV, § 16.) We further hold that the evidence obtained in violation of the constitutional guarantees is inadmissible.


Equal Protection

Prior to the enactment of Vehicle Code section 13353, the law respecting the compulsory seizure of blood from persons arrested for drunk driving was well settled. The California Supreme Court had held that the compulsory seizure of blood incident to a lawful arrest does not violate the arrestee's constitutional right against unreasonable search and seizure provided the taking of the sample is performed in a medically approved manner and is conducted under non-brutal circumstances. (People v. Duroncelay (1957) 48 Cal.2d 766, 771-772, 312 P.2d 690; see also Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.)

The appellate department of the superior court held that by enacting Vehicle Code section 133531 the state has preempted the field covered by the section, that therefore the “one test” policy adopted by the Fullerton Police Department is void, and further that the effect of the “one test” policy is to deny to the arrestee the equal protection of the law.

Section 13353 provides in pertinent part as follows:

“(a) Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor. The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe such person was driving a motor vehicle upon a highway while under the influence of intoxicating liquor. Such person shall be told that his failure to submit to or complete such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of six months.

The person arrested shall have the choice of whether the test shall be of his blood, breath or urine, and he shall be advised by the officer that he has such choice. If the person arrested either is incapable, or states that he is incapable, of completing any chosen test, he shall then have the choice of submitting to and completing any of the remaining tests or test, and he shall be advised by the officer that he has such choice.”

Plaintiff contends that the preemption argument has been repeatedly rejected by the Court of Appeal of this state (citing People v. Fite (1968) 267 Cal.App.2d 685, 73 Cal.Rptr. 666), that in any event, the police, in refusing to give defendant a choice, simply violated a statute, and since the statute does not expressly provide that evidence obtained as a result of such violation is inadmissible, and since the compulsory withdrawal of blood has been upheld as constitutional, therefore the statutory non-compliance merely goes to the weight of the evidence, not to its admissibility (citing People v. Brannon (1973) 32 Cal.App.3d 971, 108 Cal.Rptr. 620).

The court's use of preemption language was unfortunate. However, since we decide this case on equal protection grounds it is unnecessary for us to consider the various arguments directed at the preemption question.

It is clear that the statute provides that every person who is arrested for driving upon a highway in the State of California while under the influence of intoxicating liquor shall have the choice of the three tests and shall be advised that he has such choice. The language is mandatory.

In support of the contention that the statute may be disobeyed with impunity, the plaintiff relies on two appellate court cases decided since the enactment of the implied consent law (as section 13353 is commonly called). The cases are inapposite.

In People v. Fite, supra, 267 Cal.App.2d 685, 73 Cal.Rptr. 666, the suspect was given a choice; he refused to submit to any test. The blood sample was then taken without his consent. It was administered in a medically approved manner, was incident to an arrest, and was in no way brutal or shocking to the conscience. In holding the evidence admissible the court stated: “We hold that Vehicle Code section 13353 complements rather than supersedes section 23101 [[[[felony drunk driving], and that the enactment of the implied consent law in no way affected the admissibility of blood alcohol tests under established law.” (Id., at p. 690, 73 Cal.Rptr. at p. 670.) The Fite case is clearly distinguishable from the instant matter. The defendant had refused all tests, thereby waiving the statutory choice. Under such circumstances the court correctly held that the police were entitled to proceed under their presection 13353 rules. This result was dictated by both the language of section 13353, subdivision (b), which provides for the six month suspension but does not suggest that it is to be the exclusive remedy for refusal, and the legislative purpose of the section, which is to reduce the number of highway hazards called drunk drivers by providing an effective means of securing reliable scientific evidence of either guilt or innocence. Furthermore, no equal protection issue was involved. The defendant was offered the choice provided by statute to all persons arrested for drunk driving in California.

In People v. Brannon, supra, 32 Cal.App.3d 971, 108 Cal.Rptr. 620, the defendant was offered only a breath test because the police officers had been advised by an assistant district attorney that a choice of tests advisement was not necessary. The defendant did not request that another test be used. The court held that the statutory violation by the officers did not involve the violation of any constitutionally protected interest and therefore did not require the exclusion of the evidence thus obtained. It is apparent from a careful reading of the Brannon opinion that the court considered only asserted constitutional rights related to the drawing of the blood, i. e., due process and the right to be free from unlawful searches and seizures. This is clear from the court's reliance on presection 13353 decisions holding that the government may use the results of chemical analysis performed upon a blood sample forcibly removed without consent, provided it is done in a reasonable, medically approved manner as an incident to the defendant's arrest. (Id., at p. 975, 108 Cal.Rptr. 620.) Presumably no equal protection issue was presented to the Brannon court. In any event it was not considered. People v. Puccinelli (1976) 63 Cal.App.3d 742, 135 Cal.Rptr. 534, which held evidence taken in violation of section 13353 to be admissible is distinguishable for the same reasons as Brannon. The equal protection issue was not presented or considered by the court.

On the facts presented in the settled statement we must determine whether the defendant was denied equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution and Article I, section 7, and Article IV, section 16, of the California Constitution.2

The right to equal protection of the laws requires not only that the law be fair on its face, but also that it be enforced without illegal discrimination between persons in similar circumstances. In Yick Wo v. Hopkins (1886) 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, the United States Supreme Court held: “Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” (Id., at pp. 373-374, 6 S.Ct. at p. 1073.)

In Yick Wo the defendant had been denied a license to operate a laundry in the City of San Francisco. He was thereafter arrested for operating a laundry without a license. On a petition for writ of habeas corpus, it was shown that the law was being discriminatorily enforced in that a license was invariably denied to persons who were Chinese. The defendant, who was Chinese, obtained his writ.

In Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44, the California Supreme Court held that the rationale of Yick Wo applies to the enforcement of the state's penal laws. Recognizing that the enforcement by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present an element of intentional or purposeful discrimination, the Supreme Court stated: “[T]he equal protection guarantee simply prohibits prosecuting officials from purposefully and intentionally singling out individuals for disparate treatment on an invidiously discriminatory basis.” (Id., at p. 297, 124 Cal.Rptr. at p. 211, 540 P.2d at p. 51.)

Section 13353 is a state law applicable to all persons who drive upon the highways within the state and are arrested for driving while under the influence of alcohol. It is quite clear that a state law providing that all persons within the state, arrested under such circumstances except persons arrested in Fullerton, shall have the choice of whether the test shall be of blood, breath, or urine, would be constitutionally impermissible.

That is precisely the effect of the policy enforced by the Fullerton Police Department. “‘A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws.”’ (Murgia v. Municipal Court, supra, 15 Cal.3d at p. 294, 124 Cal.Rptr. at p. 209, 540 P.2d at p. 48, quoting Ex parte Virginia (1880) 100 U.S. 339, 347, 25 L.Ed. 676.) The principle emphasized in Murgia is that what the state may not explicitly mandate, the state may not, through law enforcement authorities, enforce as if it was explicitly mandated. (Id., 15 Cal.3d at p. 296, 124 Cal.Rptr. 204, 540 P.2d 44.)


Admissibility of the Evidence

The plaintiff argues that, since the violation of section 13353 by the police involves no violation of defendant's right under the Fourth Amendment to be free from unreasonable searches and seizures, the illegally seized evidence is admissible in the absence of express statutory restriction.

We concede that the exclusionary rule has generally been applied to evidence seized in violation of a defendant's rights to due process or to be free from unreasonable searches and seizures. Nevertheless, the constitutional right to equal protection of the laws is a right of equal constitutional dignity. The California Supreme Court has recognized this most recently in Murgia v. Municipal Court, supra, 15 Cal.3d 286, when it stated, at page 293, 124 Cal.Rptr. 204 at p. 208, 540 P.2d 44 at p. 48: “The equal protection clauses of the federal and state Constitutions safeguard individuals from ‘intentional and purposeful’ invidious discrimination in the enforcement of all laws, including penal statutes, and a defendant may raise such a claim of discrimination as a ground for dismissal of a criminal prosecution.” Logic compels us to conclude that if a criminal prosecution may be dismissed because the enforcement violates equal protection rights, then evidence seized in violation of such rights should be suppressed.

More compelling, however, is the rationale behind the exclusionary rule itself. As stated by the California Supreme Court in People v. Cahan (1955) 44 Cal.2d 434, at page 445, 282 P.2d 905 at page 911: “We have been compelled to reach [the] conclusion [that evidence obtained in violation of the constitutional guarantees against illegal search and seizure must be suppressed] because other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers. [¶] When, as in the present case, the very purpose of an illegal search and seizure is to get evidence to introduce at a trial, the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced. It is no answer to say that a distinction should be drawn between the government acting as a law enforcer and the gatherer of evidence and the government acting as judge. ‘[N]o distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed.’ (Holmes, J., dissenting in Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 72 L.Ed. 944 …) Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such ‘dirty business.’ (See McNabb v. United States, 318 U.S. 332, 345, 63 S.Ct. 608, 87 L.Ed. 819 …) Courts refuse their aid in civil cases to prevent the consummation of illegal schemes of private litigants (Lee On v. Long, 37 Cal.2d 499, 502-503, 234 P.2d 9 …); a fortiori, they should not extend that aid and thereby permit the consummation of illegal schemes of the state itself. (See Roberts, J., concurring in Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 77 L.Ed. 413 …) It is morally incongruous for the state to flout constitutional rights and at the same time demand that its citizens observe the law. The end that the state seeks may be a laudable one, but it no more justifies unlawful acts than a laudable end justifies unlawful action by any member of the public. Moreover, any process of law that sanctions the imposition of penalties upon an individual through the use of the fruits of official lawlessness tends to the destruction of the whole system of restraints on the exercise of the public force that are inherent in the ‘concept of ordered liberty.”’ (Id., at pp. 445-446, 282 P.2d at p. 912.)

We are presented with a clear violation of the law by law enforcement authorities in this case. The law mandates that an arrestee shall have a choice of tests, the defendant invoked his right to a choice, the means were readily at hand to offer the choice, yet, fully aware of the law's provisions, the officers informed the defendant that he must submit to the blood test and threatened the use of force to secure such submission.

Plaintiff contends that had the Legislature intended that evidence taken in violation of the statute be excluded, it would have so provided. We agree that the Legislature did not intend that a simple failure to advise a defendant of his choice should result in exclusion. (See People v. Brannon, supra, 32 Cal.App.3d 971, 977, 108 Cal.Rptr. 620.)

We are not here concerned with legislative intent, but with a statutory violation of constitutional dimensions. The officers did not simply fail to advise the defendant of his choice as they were required to do, rather they refused him the choice given by the statute to every person arrested for drunk driving in the State of California, and the refusal was pursuant to a policy of purposefully and intentionally depriving every person arrested for drunk driving in their city from the right accorded by statute to every other person similarly situated in the State of California.

The order of the municipal court denying defendant's motion to suppress is reversed.


1.  All statutory references are to the Vehicle Code unless otherwise stated.

2.  The Fourteenth Amendment to the United States Constitution reads in part as follows:“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”Article I, section 7, of the California Constitution states:“(a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.”Article IV, section 16, of the California Constitution states in part:“(a) All laws of a general nature have uniform operation.”

MORRIS, Associate Justice.

GARDNER, P. J., and McDANIEL, J., concur.