Modification: People v. Nzolameso

THE PEOPLE

Plaintiff and Respondent,

v.

JULIO NZOLAMESO

Defendant and Appellant.

No. B292164

(Los Angeles County Super. Ct. No. SA096190)

California Courts of Appeal

Second Appellate District

Division Eight

Filed Oct. 1, 2019

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on September 17, 2019, be modified as follows:

On page 7, replace the last paragraph beginning with "Birchfield therefore prohibits," with the following paragraph:

Birchfield therefore prohibits a court from finding implied consent where an arrestee's only choice is to consent to a warrantless blood test or be prosecuted for refusing to do so. Any consent obtained by law enforcement cannot be deemed valid where the only choice is consent to the blood test or be punished criminally. Here, however, that was not Nzolameso's only choice. Under California's former implied consent law, Nzolameso was given a choice of tests to choose from. He was subject to criminal penalties only if he refused both the blood and breath test. Under Birchfield, the state of California was not insisting on only the more intrusive alternative of a blood test. Instead, it offered motorists suspected of drunk driving a less intrusive alternative: a breath test. And, even though the implied consent statute required Nzolameso to submit to only blood or breath testing on penalty of criminal penalty, the officers here also gave Nzolameso the option of a urine test, which he subsequently requested.¹ Nzolameso was not required to take the blood test or face criminal prosecution; he was required only to choose between alternative tests. Only refusing all tests would have exposed him to criminal penalties under the law. As the First District stated in People v. Gutierrez (2018) 27 Cal.App.5th 1155, review granted January 2, 2019, S252532 (Gutierrez), just because "the state cannot compel a warrantless blood test does not mean that it cannot offer one as an alternative to the breath test that it clearly can compel." (Id. at p. 1161.)² Hence, Birchfield does not prohibit a finding of implied consent under California's former law under these circumstances.

There is no change in the judgment.

Appellant's petition for rehearing is denied.

BIGELOW, P. J.

GRIMES, J.

STRATTON, J.

¹ The former implied consent law stated that a motorist is deemed to have consented to a urine test on suspicion of driving under the influence of alcohol only if blood or breath testing is unavailable. (Veh. Code, § 23612, former subds. (a)(1)(A) & (d)(2).)) Thus, under the law, Nzolameso would have faced criminal penalties for refusing a urine test only if blood and breath testing were unavailable. Whether Nzolameso would have faced criminal penalties under the facts of this case if he had refused blood and breath, but submitted to urine testing, is immaterial because he gave actual consent to the blood and urine tests.

² Review was granted in Gutierrez on whether law enforcement violates the Fourth Amendment by taking a warrantless blood sample from an unconscious defendant, or can the defendant be deemed to have given implied consent under California's implied consent law?