P v. Arredondo (6th Dist.) Blood Drawn from Unconscious DUI Arrestee Under VC Sections 23612 Violated the Fourth Amendment

Mr. Arredondo flipped the Jeep he was driving, injuring himself and a couple of his passengers.  An unconscious Arredonndo was in the hospital when a police officer asked a phlebotomist to draw a tube of blood from Arredondo for a blood alcohol test.  The test came back at the legal limit and Arredondo was charged with felony DUI.

Arredondo moved to suppress the blood evidence claiming it was the fruit of an illegal seizure under the Fourth Amendment to the U.S. Constitution.  The trial court denied Arredondo's motion on the grounds that, while there was no warrant authorizing the blood draw, under California's implied consent statutes Arredondo gave his consent for the blood draw.  The relevant statute, VC 23612, states in pertinent part,

Anyone who drives a vehicle in this state is deemed to have given his consent [to a chemical test]. . . [an] unconscious person is deemed not to have withdrawn his or her consent.  

The Sixth District reverses the trial court's ruling on the issue of consent, but affirms the denial of the motion on the basis the police officer relied in good faith upon the statute.

This is a very complete opinion, utilizing textualism, pragmatism, and an astute reading of precedent.  This issue is whether the language quoted above passes constitutional muster to function as the "consent" exception to the Fourth Amendment's warrant requirement..  It doesn't, says the panel, for a number of reasons.

First, true consent has elements of notice and choice.  A probationer may consent in advance to warrantless searches as a condition of her probation, but her consent is actual (she must agree, verbally in court) and she has a choice (she can refuse probation and go to prison).  Likewise the panel points out that what is commonly described as "implied consent" in the context of the Fourth Amendment is actual consent, such as responding to an officer's request to come into house by opening the door wide and waiving your arm in a welcoming motion.

What we have here is really "imputed consent", which is no more than government fiat.  The panel points out the word "deem" means to treat something as if it were really something else.  You don't "deem" something to be what it is.  The opinion worries of what could follow should it uphold the Constitutionality of this statute.  For instance, what would keep the government from passing a law that states, "Anyone using a public walkway is deemed to have given his consent for a warrantless search of his person and belongings"?

So while the panel finds the statute does not constitute Constitutionally valid consent and thus Arredondo's blood was taken in violation of the Fourth Amendment, they acknowledge there was no way for the police officer to know (by following the statute) he was violating the Constitution.  And since an  violation in objective unawares cannot be dissuaded, the exclusionary rule need not apply.