Filed 12/17/18 P. v. Tippins CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted defendant Scedrick Tippins of two felonies and a misdemeanor based on an October 2016 incident of drunk driving. In a separate case, he pleaded no contest to the same three crimes based on a January 2017 incident of drunk driving. He was sentenced to ten years and four months in prison.

On appeal, Tippins contends only that the trial court erred by denying his motion to suppress the results of two preliminary alcohol screening (PAS) tests—which demonstrate a person’s “approximate blood alcohol content based upon [his or her] breath”—administered during the October 2016 incident. We conclude that substantial evidence supports the court’s finding that Tippins voluntarily consented to take the tests, and we therefore affirm his convictions in both cases. We remand, however, for the trial court to address minor sentencing issues and errors in the abstracts of judgment.

I.
Factual and Procedural Background

A. The October 2016 Incident and the Motion to Suppress.

Unless otherwise indicated, the following facts about the October 2016 incident are taken from the suppression hearing and are consistent with those established at trial. We do not discuss the underlying facts of the January 2017 incident because Tippins does not raise any claims involving it.

On the night of October 12, 2016, Officer Robert Weigand of the East Palo Alto Police Department was responding to an unrelated call when he saw Tippins’s car and initiated a traffic stop. At trial, evidence was presented that Tippins was pulled over for suddenly stopping in the middle of the street and reversing toward Officer Weigand’s vehicle. When the officer approached the car, he “could smell the odor of alcohol coming from [Tippins’s] breath and person,” and he noticed that Tippins’s “eyes were bloodshot and watery red” and that Tippins “slurred his words.” The officer asked Tippins for identification, and Tippins “fumbled with several cards” in his wallet before finding his driver’s license.

Tippins, who was “compliant” throughout the process, exited the car so that Officer Weigand could perform field sobriety tests on him. First, Officer Weigand administered a horizontal nystagmus test, which required Tippins to follow a pen with his eyes. Tippins was unable to follow the officer’s instructions and appeared “confused.”

Second, Officer Weigand asked Tippins to perform the leg-lift test. Tippins responded that “he could not because of an injury,” so the officer had him perform a step-and-turn test. Tippins attempted to start the test “before [the officer] even explained [that he should] do so” and was also unable to follow the officer’s directions about that test.

Finally, Officer Weigand administered two PAS tests. Before administering the first one, Officer Weigand showed Tippins the PAS device and explained how it worked. In brief, the subject blows into the device for several seconds until “an audible click” is heard, at which point the officer “give[s] the machine time to refresh itself” before conducting the test again. Officer Weigand also admonished Tippins as follows: “ ‘I am requesting that you take a preliminary alcohol screening test to further assist me in determining if you are under the influence of alcohol. This is not an implied consent test. If arrested, you will be required to give a sample of your blood, breath or urine for the purpose of determining the actual alcoholic and/or drug content of your blood. Do you consent to the test?’ ” Tippins responded by saying “something to the effect of, ‘Yeah, I’ll take the test.’ ” After the tests were complete, the officer arrested Tippins and transported him to jail, where he refused to submit to chemical testing of his blood or breath.[1]

Tippins argued that the results of the PAS tests should be suppressed because if he was “unable to understand, [was] confused, [and could not] follow simple instructions,” then “it only follows that he [was] unable to understand” the admonition given. Although he conceded that he was given the choice whether to take a PAS test, he claimed that he was unable to understand that choice. The trial court denied the motion, explaining as follows:

It appears that the defendant had difficulty responding to questions and the cognition is [in] question. And . . . cognitively he may not have understood what was going on. But on the other hand, the court finds that the admonitions were raised. The choice of whether or not he could take the test or refuse the test was given. And those circumstances and his refusal to submit to the other exams shows that he was cognizant of his physical abilities. That he knew he couldn’t do certain things or I’m hurt. I can’t do this.

And he chose which exam . . . he would submit to. And he had the minimal at best level of sophistication and cognition to be able to refuse to take certain field sobriety tests. And the officer did establish that there was a choice as to whether or not to take the PAS.

. . . I think the . . . situation with regard to what he was advised was very clear. The cognition is somewhat questionable. But if he was cognizant enough to refuse taking certain tests and was advised that he could refuse the test and he understood that, then I believe that the cognition was there even though it was somewhat slight.

B. The Convictions and Sentencing.

After the trial court denied the motion to suppress, Tippins was tried on the charges stemming from the October 2016 incident. At the outset, he admitted two enhancement allegations, one that he had three other DUI convictions within the previous 10 years and another that he had a felony DUI conviction within the previous 10 years, and he also stipulated that his license was suspended at the time of the incident. The jury convicted him of a felony count of driving under the influence of alcohol and a felony count of driving with a blood-alcohol content of .08 percent or higher, although it found not true an allegation that he willfully refused to submit to a chemical test.[2] He was also convicted of a misdemeanor count of driving with a suspended license.[3]

After the verdicts were returned, Tippins pleaded no contest to the same three offenses—driving under the influence of alcohol, driving with a blood-alcohol content of .08 percent or more, and driving with a suspended license—in connection with the January 2017 incident. The trial court also found that he had a prior conviction for a violent or serious felony, or strike, and had served five prior prison terms.[4]

The trial court sentenced Tippins to a total term of 10 years and four months in prison. The sentence for the October 2016 incident consisted of a term of four years for the DUI, a concurrent term of six months in jail for driving with a suspended license, and a consecutive term of five years for the prior prison terms. The sentence for the January 2017 convictions consisted of a consecutive term of 16 months for the DUI and a concurrent term of six months in jail for driving with a suspended license.[5]

II.
Discussion

Tippins claims that the trial court erred by denying his motion to suppress the results of the PAS tests. We are not persuaded.

We begin with a discussion of general Fourth Amendment principles. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (U.S. Const., 4th Amend.), and “the administration of a breath test is a search.” (Birchfield v. North Dakota (2016) 579 U.S. __ [136 S.Ct. 2160, 2173].) “ ‘A warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search.’ ” (People v. Suff (2014) 58 Cal.4th 1013, 1053.) If the prosecution fails to meet this burden, the exclusionary rule generally requires the suppression of any evidence obtained from the search. (People v. Sanders (2003) 31 Cal.4th 318, 324.)

In reviewing the denial of a suppression motion, we consider the record in the light most favorable to the disposition and defer to the trial court’s factual findings if supported by substantial evidence. (People v. Tully (2012) 54 Cal.4th 952, 979.) Any conflicts in the evidence are resolved in favor of the court’s order. (Ibid.) The court’s ruling on whether a search was lawful is a mixed question of law and fact subject to de novo review. (Ibid.; People v. Alvarez (1996) 14 Cal.4th 155, 182.)

Consent is one of the exceptions to the warrant requirement. (People v. Zamudio (2008) 43 Cal.4th 327, 341.) “Where, as here, the prosecution relies on consent to justify a warrantless search or seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the product of his [or her] free will and not a mere submission to an express or implied assertion of authority.’ ” (Ibid.) The prosecution is not required to show, however, that a defendant’s consent was akin to “a ‘knowing’ and ‘intelligent’ waiver” in the trial context. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 241; see also People v. Bravo (1987) 43 Cal.3d 600, 606.) “The voluntariness of consent is a question of fact to be determined from the totality of circumstances.” (People v. Boyer (2006) 38 Cal.4th 412, 445.) Accordingly, we review the trial court’s ruling that Tippins voluntarily consented to the PAS tests for substantial evidence.

Law enforcement may use a PAS test to make a preliminary, pre-arrest determination of a driver’s sobriety. (People v. Bury (1996) 41 Cal.App.4th 1194, 1198.) The state’s implied-consent law, which “mandate[s] chemical testing of a suspect’s blood-alcohol level . . . after a lawful arrest,” does not apply to such a test. (Ibid.) As a result, statutory law requires suspects to be advised of their right to refuse to take a requested PAS test. (§ 23612, subd. (i).) It also requires suspects to be advised that their agreement to take a pre-arrest PAS test does not satisfy their obligation to submit to post-arrest chemical testing under the state’s implied-consent law. (Ibid.)

Here, Tippins was given a proper advisement before he took the PAS tests, and he does not contend otherwise. But he argues that his consent was not voluntary under People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757 (Hawkins). In that case, the defendant crashed his truck into a station wagon, killing his passenger and seriously injuring one of the station wagon’s occupants. (Id. at p. 759.) About 10 minutes later, law enforcement officers “found [him] standing near the station wagon in a dazed condition, eyes bloodshot, shirt off, back and head bloody from injuries” with his “breath smell[ing] of alcoholic beverages.” (Ibid.) No field sobriety test was administered because he was immediately taken to the hospital. (Ibid.) While he “was lying in the emergency room awaiting treatment,” an officer asked him to consent to a blood-alcohol test. (Id. at pp. 759-760.) The defendant then “apparently agreed and signed a written consent,” and his blood was drawn. (Id. at p. 760.)

The trial court granted the defendant’s motion to suppress the results of the blood-alcohol test based on a finding that the written consent was not voluntary. (Hawkins, supra, 6 Cal.3d at p. 760.) In explaining the ruling, “[t]he judge stated: ‘The defendant was in the emergency room being administered first aid from a severe accident which caused the death of his sister . . . . He was lying on his stomach with blood all over and had just regained consciousness. He couldn’t even read the paper because he had blood in his eyes and thought it was an authorization for treatment; the paper, of course, being the signed consent. Suffering from shock and injury, he does not remember even signing the paper or who talked to him, although he does admit seeing an officer leave the room.’ ” (Id. at p. 760, fn. 4.)

The People sought review through a writ of mandate, arguing that even though the defendant did not give voluntary consent, “the taking of a blood sample in a medically approved manner but without the consent of the subject” does not violate the subject’s Fourth Amendment rights so long as “probable cause to arrest [exists] at the time the sample is taken.” (Hawkins, supra, 6 Cal.3d at pp. 759, 761.) In the course of rejecting this position, the Supreme Court observed, “The People concede, as indeed they must, that there is substantial evidence in the record to support the trial court’s findings that [the] defendant’s written consent to the blood-alcohol test was not freely and voluntarily given.” (Id. at p. 761.)

Tippins argues that “the factors which made the defendant’s consent involuntary” in Hawkins “were present in the instant case.” We disagree. Even putting aside that the Supreme Court’s evaluation of the consent evidence was dicta, Tippins ignores Hawkins’s procedural posture. There, the Supreme Court addressed whether there was substantial evidence to support the determination that consent was not voluntarily given, whereas here, we must address whether there was substantial evidence to support the determination that consent was voluntarily given. Hawkins provides us with limited guidance in performing our task.

In any case, even if Hawkins stood for the principle that consent cannot be voluntarily given under the circumstances it addressed, the decision is clearly distinguishable. The Hawkins defendant had just been injured during a traumatic accident, had not been treated, and, perhaps most importantly, literally could not read the piece of paper he was asked to sign and thought it was an authorization for treatment. In contrast, even though Tippins was undoubtedly impaired due to his alcohol consumption, he was able to hold a conversation with Officer Weigand and respond to at least some of the officer’s directions. Moreover, the officer explained what a PAS test was and read an admonishment before he administered the first test, and Tippins agreed to take it. This constituted substantial evidence of voluntary consent, and the trial court therefore properly denied the motion to suppress.

III.
Disposition

Tippins’s convictions in both cases are affirmed. The matter is remanded to the trial court with directions to specify in both cases which DUI conviction carries the principal term and to impose and stay the sentence for the other DUI conviction, as well as to address the imposition of fines, fees, and penalty assessments as directed in footnote 5 above. The court shall also ensure that the new abstracts of judgment do not repeat the clerical errors that footnote 5 identifies.

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Humes, P.J.

We concur:

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Margulies, J.

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Kelly, J.,*

*Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

People v. Tippins A153538