# People v. Thompson

> California Supreme Court · June 1, 2006 · 43 Cal. Rptr. 3d 750

URL: https://www.frixlaw.com/law-library/cases/9797883

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DANIEL LYON THOMPSON, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** June 1, 2006
- **Citations:** 43 Cal. Rptr. 3d 750; 38 Cal. 4th 811; 2006 Daily Journal DAR 6776; 135 P.3d 3; 2006 Cal. Daily Op. Serv. 4587; 2006 Cal. LEXIS 6515
- **Precedential status:** Published
- **Opinion:** Dissent by Werdegar
- **Judges:** Baxter, Werdegar
- **Cited by:** 89 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9797883

## How later opinions describe it (automated extraction)

- holding that officers’ lack of certainty that the defendant was the driver did not .preclude a finding of probable cause where an eyewitness gave a vague description of the suspect but the car was traced to a particular address where a man matching the description attempted to…

## Opinion text

WERDEGAR, J., Dissenting.
“[A] man’s house is his castle.” (Miller v. United States (1958) 357 U.S. 301, 307 [ 2 L.Ed.2d 1332 , 78 S.Ct. 1190 ].) This phrase expresses the view that one’s home is a place of personal privacy and its inhabitants are entitled to freedom from governmental intrusion absent a very good reason. “At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.” (United States v. Karo (1984) 468 U.S. 705, 714 [ 82 L.Ed.2d 530 , 104 S.Ct. 3296 ], quoted with approval in People v. Camacho (2000) 23 Cal.4th 824, 831 [ 98 Cal.Rptr.2d 232 , 3 P.3d 878 ].) “We have, after all, lived our whole national history with an understanding of ‘the ancient adage that a man’s home is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown.’ ” (Georgia v. Randolph (2006) 547 U.S. 103, 115 [ 164 L.Ed.2d 208 , 126 S.Ct. 1515, 1524 ].)
Not just some forgotten vestige of 15th century English law that allowed English peasants to assert their rights against a powerful monarchy, the view that one’s home is a place of privacy was also shared by the framers of the United States Constitution. We need not interpret or gloss the constitutional text for hidden or obscure meaning, for the drafters of the Fourth Amendment made this point plain on the face of the document: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” (U.S. Const., 4th Amend., italics added.)
The United States Supreme Court has emphasized repeatedly the primacy of the constitutional protection for persons in their homes. “ ‘[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” (Payton v. New York (1980) 445 U.S. 573, 585 [ 63 L.Ed.2d 639 , 100 S.Ct. 1371 ].) “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (Silverman v. United States (1961) 365 U.S. 505, 511 [ 5 L.Ed.2d 734 , 81 S.Ct. 679 ].) The high court has been vigilant in extending this concept in the face of new technological threats to the sanctity of the home. (See Kyllo v. United States (2001) 533 U.S. 27, 28 [ 150 L.Ed.2d 94 , 121 S.Ct. 2038 ] [warrantless use of *830 a thermal imaging device to explore details inside home violated 4th Amend.]; United States v. Karo, supra, 468 U.S. 705 [warrantless placement of a beeper into a home violated 4th Amend.].)
This court has also on numerous occasions recognized this special constitutional protection for persons in their homes. For example, we held a warrantless search of a suspect’s home could not be justified by a parole search condition of which police were unaware (People v. Sanders (2003) 31 Cal.4th 318, 324 [ 2 Cal.Rptr.3d 630 , 73 P.3d 496 ]); that, absent more, the warrantless entry into a suspect’s home was not justified solely by the arrest of the suspect outside the home (People v. Celis (2004) 33 Cal.4th 667, 676 [ 16 Cal.Rptr.3d 85 , 93 P.3d 1027 ]); that a person’s expectation of privacy in the home was not compromised by his exposure of the home’s interior to a private side yard (People v. Camacho, supra, 23 Cal.4th 824 ); and that the presumptive constitutional protection of the home extended to an attached garage (People v. Robles (2000) 23 Cal.4th 789, 795 [ 97 Cal.Rptr.2d 914 , 3 P.3d 311 ]; see Cal. Const., art. I, § 13). Perhaps our seminal case in this area is People v. Ramey (1976) 16 Cal.3d 263 [ 127 Cal.Rptr. 629 , 545 P.2d 1333 ], where we held the warrantless entry into a suspect’s home to make an arrest, even though supported by probable cause to believe he was guilty of a felony, was unreasonable per se under the Fourth Amendment to the United States Constitution and the state Constitution, at least in the absence of exigent circumstances. Four years later, the United States Supreme Court came to this view itself, holding in Payton v. New York that, in the absence of exigent circumstances, police entry into a suspect’s home to arrest him for a felony was “presumptively unreasonable” in the absence of a warrant. (Payton v. New York, supra, 445 U.S. at p. 586 .)
I agree with the majority that Welsh v. Wisconsin (1984) 466 U.S. 740 [ 80 L.Ed.2d 732 , 104 S.Ct. 2091 ], wherein the high court concluded the warrant-less arrest of a suspected drunk driver in his home was invalid, may plausibly be distinguished from the instant case on the ground the crime at issue in that case was not a jailable offense. (Maj. opn., ante, at pp. 820-821; Welsh v. Wisconsin , at pp. 742 [emphasizing crime was “a nonjailable traffic offense”], 753 [“important factor” was “the gravity of the underlying offense” and that crime was “a noncriminal, traffic offense”].) But even assuming Welsh is distinguishable from the instant case on the ground that incarceration is a possible punishment for drunk driving in California, I am not persuaded police were legally entitled, on the facts of this case, to enter defendant’s home against his wishes without a warrant. The majority concedes, as it must, the Fourth Amendment’s presumptive protection of persons in their homes, but reasons the warrantless entry into this defendant’s home was justified by exigent circumstances. Because I disagree such circumstances existed here, and because I also find the majority’s attempt to circumscribe the sweep of its holding unpersuasive, I dissent.
*831 I
The ultimate standard established by the Fourth Amendment to the United States Constitution is one of reasonableness. (Cady v. Dombrowski (1973) 413 U.S. 433, 439 [ 37 L.Ed.2d 706 , 93 S.Ct. 2523 ].) Beginning with the unassailable proposition that the warrantless entry by government agents into a person’s home is “presumptively unreasonable” (Payton v. New York, supra, 445 U.S. at p. 586 , italics added), courts have nevertheless recognized some “ ‘specifically established and well-delineated exceptions’ to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357 [ 19 L.Ed.2d 576 , 88 S.Ct. 507 ]), such as ‘ “hot pursuit of a fleeing felon, or imminent destruction of evidence, ... or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling” ’ (Minnesota v. Olson (1990) 495 U.S. 91, 100 [ 109 L.Ed.2d 85 , 110 S.Ct. 1684 ]).” (People v. Celis, supra, 33 Cal.4th at p. 676 .) “A warrantless search by the police is invalid unless it falls within one of the narrow and well-delineated exceptions to the warrant requirement.” (Flippo v. West Virginia (1999) 528 U.S. 11, 13 [ 145 L.Ed.2d 16 , 120 S.Ct. 7 ]; People v. Wharton (1991) 53 Cal.3d 522, 576-577 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ] [same].)
Once defendant demonstrated that police entered his home without a warrant, the burden shifted to the prosecution “to prove that the entry was nevertheless reasonable.” (People v. Williams (1988) 45 Cal.3d 1268, 1300 [ 248 Cal.Rptr. 834 , 756 P.2d 221 ].) Police admittedly did not have an arrest warrant permitting them to enter defendant’s home and had been expressly denied consent to enter by defendant’s housemate. (Georgia v. Randolph, supra, 547 U.S. 103 [ 164 L.Ed.2d 208 , 126 S.Ct. 1515 ].) Although the majority hints otherwise (maj. opn., ante, at pp. 827-828), the forced entry cannot be justified under the hot pursuit doctrine, as “there was no immediate or continuous pursuit . . . from the scene of a crime.” (Welsh v. Wisconsin, supra, 466 U.S. at p. 753 .) Defendant had already arrived home, he was apparently sleeping in his bedroom, and police were on the scene; hence, “there was little remaining threat to the public safety.” (Ibid.)
The majority concludes the failure by police to obtain a warrant before entering defendant’s home is excused by the exigent-circumstances exception to the warrant requirement. “ ‘ “ ‘[E]xigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.” ’ [Citations.] The exception is applicable to the federal Constitution (see Mincey v. Arizona *832 (1978) 437 U.S. 385 [ 57 L.Ed.2d 290 , 98 S.Ct. 2408 ]) and ‘California courts are in full accord with the . . . emergency exception to the warrant requirement.’ ” (People v. Wharton, supra, 53 Cal.3d at p. 577 .)
“In evaluating exigency, relevant factors include ‘ “ ... (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge ‘that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.’ ” ’ ” (People v. Gentry (1992) 7 Cal.App.4th 1255, 1261-1262 [ 9 Cal.Rptr.2d 742 ].)
The majority locates such an emergency situation inside defendant’s body, which was slowly but inexorably metabolizing and thus destroying the alcohol police believed he had consumed. The emergency, in other words, involved the potential destruction of the evidence of defendant’s crime of drunk driving. That such “bum off” occurs is undisputed. (People v. Schofield (2001) 90 Cal.App.4th 968, 975 [ 109 Cal.Rptr.2d 429 ]; see In re Martin (1962) 58 Cal.2d 509, 512 [ 24 Cal.Rptr. 833 , 374 P.2d 801 ] [“It is a matter of common knowledge that the intoxicating effect of alcohol diminishes with the passage of time”].) What is disputed is whether this natural metabolic process, standing alone, constitutes an emergency such that police may dispense with obtaining a warrant and immediately enter a person’s home against his will.
None of the cases on which the majority relies supports its broad conclusion that the natural metabolization of blood alcohol alone constitutes an exigent circumstance sufficient to permit police to enter a person’s home against his or her wishes and without a warrant. For example, in Schmerber v. California (1966) 384 U.S. 757 [ 16 L.Ed.2d 908 , 86 S.Ct. 1826 ], the United States Supreme Court cited the natural metabolization of a body’s blood alcohol to justify the police taking a nonconsensual blood sample from a suspect notwithstanding the lack of a search warrant. But the defendant in Schmerber had already been arrested and was in police custody, not in his home. Moreover, the fact of the alcohol bum off was just one factor the high court considered: “We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure *833 evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” (Id. at pp. 770-771, italics added.) No such time pressures or “special facts” were shown in the instant case; indeed, police were on the scene just minutes after defendant apparently had taken his last drink. (See Vale v. Louisiana (1970) 399 U.S. 30, 35 [ 26 L.Ed.2d 409 , 90 S.Ct. 1969 ] [in finding no exigent circumstances, court emphasized absence of evidence showing that obtaining a warrant was “impracticable”].)
Similarly, in Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602 [ 103 L.Ed.2d 639 , 109 S.Ct. 1402 ], the high court merely recognized that “alcohol and other drugs are eliminated from the bloodstream” (id. at p. 623), a point no one disputes; it did not hold such elimination constituted an exigent circumstance entitling police to enter one’s home without a warrant. Instead, the court held the warrant requirement was excused because the government’s interest in regulating railway workers presented a special need beyond normal law enforcement. (Id. at p. 620.)
The majority opines that “most courts have concluded that the dissipation of blood-alcohol evidence ‘may constitute an exigent circumstance under the facts of a particular case.’ ” (Maj. opn., ante, at p. 825, italics added.) The qualifiers are important. The cases the majority cites in support are all distinguishable. In City of Orem v. Henrie (Utah Ct.App. 1994) 868 P.2d 1384 , the defendant was suspected not only of driving while intoxicated, but also of leaving the scene of an accident. In State v. Komoto (1985) 40 Wn.App. 200 [ 697 P.2d 1025 ], the defendant struck and killed a pedestrian. In both cases, the blood-alcohol evidence was needed to prosecute crimes far more serious than mere driving under the influence (DUI). The warrantless entry into a home may therefore have been justified. Here, by contrast, defendant was suspected only of driving while intoxicated, and at the time police entered his home any threat to public safety had ceased.
The majority also cites State v. Bohling (1993) 173 Wis.2d 529 [ 494 N.W.2d 399 ], and U.S. v. Reid (4th Cir. 1991) 929 F.2d 990 , in support (maj. opn., ante, at p. 825), but in both cases the defendants were lawfully arrested outside the home, at the scene of a traffic accident (Bohling) or at a traffic stop on the highway (Reid); their challenges were to the warrantless drawing of a blood sample. The cases thus presented a straightforward application of Schmerber v. California, supra, 384 U.S. 757 , and do not support the notion that the mere dissipation of blood-alcohol evidence, standing alone, creates such an emergency that police may enter a suspect’s home without a warrant or consent.
*834 Finally, the majority cites Threatt v. State (1999) 240 Ga.App. 592, 596 [ 524 S.E.2d 276 ], but that case held, on facts similar to those here, that exigent circumstances did not, in fact, exist to authorize the warrantless entry to arrest for the crime of reckless driving. The Georgia appellate court then stated in dictum that—had officers possessed probable cause to arrest for driving under the influence—the dissipation of evidence “may constitute an exigent circumstance.” (Id. at p. 596, fn. 1, italics added.) In support, the Threatt court cited State v. Tosar (1986) 180 Ga.App. 885, 888 [ 350 S.E.2d 811 ], a case that did not involve entry into a home.
Invocation of the exigent-circumstances exception to the warrant requirement, moreover, must be supported by a showing of the “ ‘imminent destruction of evidence.’ ” (Minnesota v. Olson, supra, 495 U.S. at p. 100 , italics added; see also Brigham City v. Stuart (2006) 547 U.S._,_[ 164 L.Ed.2d 650, 657 , 126 S.Ct. 1943 ] [destruction of evidence must be “imminent”].) The prosecution made no showing in this case that the delay in obtaining a warrant would have resulted in the imminent destruction, as opposed to the gradual and incremental degradation, of the alcohol in defendant’s body. Indeed, a delay of an hour or two to obtain a warrant would have made little difference, for “[i]t is common ... for experts to take into account the metabolization rate of a substance and extrapolate from the amount of a substance in a blood sample to arrive at an opinion regarding the amount of the substance in the blood at a critical point in time.” (People v. Clark (1993) 5 Cal.4th 950, 993 [ 22 Cal.Rptr.2d 689 , 857 P.2d 1099 ].) The majority disparages the efficacy of so-called retrograde extrapolation evidence, asserting such evidence “ ‘can be speculative’ ” (maj. opn., ante, at p. 826), but surely it does not mean to suggest the admissibility of this type of evidence is suspect. In any event, the rule in this state (People v. Clark, supra, 5 Cal.4th 950 ) 1 and, indeed, in the majority of jurisdictions, is that retrograde extrapolation evidence is admissible, though of course its weight is subject to challenge, as are the qualifications of the expert witness presenting the evidence. (See generally Annot., Admissibility and Sufficiency of Extrapolation Evidence in DUI Prosecutions (2004) 119 A.L.R.5th 379 .)
To further support its contention the exigent-circumstances doctrine applies here, the majority relies on the possibility defendant could have corrupted the evidence of his alcohol consumption by consuming more alcohol. (Maj. opn., ante, at p. 826.) But this argument proves too much, for the possibility exists in every case that a criminal suspect in his home will try to destroy evidence *835 of his crime. The drug dealer may flush his stash away, the bookie may bum his betting slips, the killer may take a metal file to the barrel of his gun or clean his hands of gunshot residue. The mere possibility a defendant may drink additional quantities of liquor is insufficient to overcome the constitutionally protected privacy interests of a person in his home. Instead, police must have articulable facts that would lead a reasonable officer to believe such destruction is about to occur. “ ‘ “[F]ear or apprehension alone that evidence will be destroyed will not justify a warrantless entry of a private home.” [Citation.] Instead, “[t]here must exist ‘specific and articulable facts which, taken together with rational inferences . . . ,’ support the warrantless intrusion.” ’ ” (People v. Gentry, supra, 7 Cal.App.4th at p. 1262 .)
Vale v. Louisiana, supra, 399 U.S. 30 , illustrates this basic point of law. In that case, after police arrested the defendant outside a home, they entered the home without a warrant to search for drugs. The Louisiana Supreme Court upheld the search, in part, because the crime “involved narcotics, which are easily removed, hidden, or destroyed. It would be unreasonable, the Louisiana court concluded, ‘to require the officers under the facts of the case to first secure a search warrant before searching the premises, as time is of the essence inasmuch as the officers never know whether there is anyone on the premises to be searched who could very easily destroy the evidence.’ ” (Id. at p. 34.) The United States Supreme Court flatly rejected the state court’s reasoning, explaining: “Such a rationale could not apply to the present case, since by their own account the arresting officers satisfied themselves that no one else was in the house when they first entered the premises. But entirely apart from that point, our past decisions make clear that only in ‘a few specifically established and well-delineated’ situations [citation] may a warrantless search of a dwelling withstand constitutional scrutiny.” (Ibid.) Because there was no evidence someone was about to remove or destroy evidence, the high court held the exigent-circumstances exception did not apply.
As in Vale v. Louisiana, supra, 399 U.S. 30 , the prosecution in this case presented no evidence suggesting defendant was about to alter evidence of his guilt by drinking again. Neither Officer Gutierrez nor Officer Dejohn observed defendant drinking, or attempting to drink, any intoxicating beverage. Witness Madelene Orvos reported that defendant had discarded an empty bottle of vodka. Defendant’s housemate, Slavka Kovarick, told police defendant was sleeping, which was apparently the case until police instructed her to awaken him. Although the majority opines that “[t]he officers had good reason to believe that defendant. . . would ... act to conceal his intoxication if given the opportunity” (maj. opn., ante, at p. 827), the record confirms police possessed no articulable facts suggesting defendant was actively corrupting, or about to corrupt, the blood-alcohol evidence by resuming his consumption of alcohol. By accepting in support of exigency the argument *836 that defendant could corrupt the evidence, the majority converts the narrow exigent-circumstances exception to the constitutional warrant requirement into a free pass for police: So long as the destruction of evidence is possible, police may dispense with a warrant. But the possibility a suspect will destroy evidence exists in every case', that possibility thus cannot be the predicate for invoking the narrow exigent-circumstances exception to the constitutional requirement for a warrant. (Cf. People v. Gonzalez (1989) 211 Cal.App.3d 1043, 1050 [ 259 Cal.Rptr. 846 ] [“If specific indications of . . . destruction of evidence were not required, the exigent-circumstances exception would entirely consume” the knock-notice requirement].)
Realizing, perhaps, that none of its previous rationales adequately justify the warrantless entry, the majority suggests defendant had attempted to flee. (Maj. opn., ante, at pp. 827-828.) This suggestion finds no support in the record. Officer Dejohn testified defendant, on learning police were on his doorstep, left his house by the back door, walked about 10 feet into the backyard, and then returned to the house. Although this caused Dejohn to be concerned defendant would flee, he admitted defendant was so intoxicated that he was staggering and slurring his words and that he immediately returned to the house. But even assuming defendant might have attempted to flee, that possibility did not create an emergency situation justifying the warrantless entry. Police at the scene could easily have detained him while they sought a warrant. In any event, the prosecution did not argue below that defendant’s asserted attempt to flee created an emergency situation, and the trial court did not mention this circumstance. The court denied defendant’s suppression motion solely on the ground that his body’s metabolization of alcohol in his blood constituted the destruction of evidence. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640-641 [ 108 Cal.Rptr. 585 , 511 P.2d 33 ] [People cannot change theory on appeal of suppression decision].)
Finally, the majority attempts to minimize the scope of its holding, explaining that it does not decide “that the police may enter a home without a warrant to effect an arrest of a DUI suspect in every case. We hold merely that the police conduct here, taking into account all of the circumstances, was reasonable . . . .” (Maj. opn., ante, at p. 827.) I find the majority’s attempt to circumscribe the sweep of its holding both unpersuasive and disingenuous. What are the circumstances in this case that make it unusual? Police had probable cause to believe defendant had recently become intoxicated and had driven home and that he was now inside his house. Police lacked both a warrant and consent to enter. Defendant’s body was naturally metabolizing the alcohol, but that would be true in every crime involving alcohol. Defendant might consume additional alcohol, thereby corrupting the evidence, but that possibility, too, would exist in every case involving an alcohol-related crime. Police, in any event, had no articulable facts to suggest defendant was about to drink anything. Under the majority’s reasoning, *837 therefore, it would appear that any time police have probable cause to arrest someone for an alcohol-related crime (for which the possible penalty involves some jail time) and they reasonably believe the suspect is in his home, they may forcibly enter without a warrant to make an arrest to preserve the blood-alcohol evidence. One can only hope the majority’s reasoning today is akin to “a restricted railroad ticket, good for this day and train only.” (Smith v. Allwright (1944) 321 U.S. 649, 669 [ 88 L.Ed. 987 , 64 S.Ct. 757 ] (dis. opn. of Roberts, J.).)
II
That those enforcing our criminal laws will proceed vigorously is generally to society’s benefit, but the Fourth Amendment to the United States Constitution places reasonable and recognizable limits on such activities. One such limit is that the warrantless entry into an individual’s home is presumptively unreasonable unless justified by one of the narrow exceptions to the warrant requirement. By requiring, in all other situations, the interposition of the considered judgment of a neutral magistrate, the Constitution protects the citizenry’s reasonable expectation of privacy in their homes. As Justice Robert Jackson explained: “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” (Johnson v. United States (1948) 333 U.S. 10, 13-14 [ 92 L.Ed. 436 , 68 S.Ct. 367 ] (fns. omitted).)
*838 The majority endorses a scheme today by which police may too easily evade the warrant requirement. Because I conclude its reasoning and result are contrary to the Fourth Amendment to the United States Constitution, I dissent.
See also Vehicle Code section 23152, subdivision (b) which states in part: “In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9797883. Public record. Not legal advice.