Petition for Writ of Certiorari — Peter Balov, Petitioner v. California

Supreme Court briefNov 26, 2019

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No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------PETER BALOV,

Petitioner,

THE STATE OF CALIFORNIA,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari To The

Fourth Appellate District Court Of Appeal

For The State Of California

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------DAVID S. WILSON

Counsel of Record

THE LAW OFFICE OF DAVID S. WILSON

105 West “F” Street, 3rd Floor

San Diego, CA 92101

Telephone: (719) 522-3378

dwilson@dswilsonlegal.com

GRETCHEN C. VON HELMS

THE LAW OFFICES OF GRETCHEN C. VON HELMS

105 West “F” Street, 3rd Floor

San Diego, CA 92101

Telephone: (619) 239-1199

gvh@ronisandronis.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED FOR REVIEW

The question presented: Is a motorist’s consent

to a blood draw, for purposes of determining bloodalcohol content, voluntary within the meaning of the

Fourth Amendment where the motorist selects blood

after unlawfully being instructed by the arresting officer that he was “required to submit” to either breath

or blood testing?

PARTIES TO THE PROCEEDING

The State of California was the plaintiff-respondent

below. Peter Balov was the defendant-appellant below.

STATEMENT OF RELATED CASES

The People v. Peter Balov, No. S249708, The Supreme

Court of California. Review accepted September 12,

2018. Order dismissing and remanding to the Fourth

Appellate District Court of Appeal entered on August

28, 2019.

The People of the State of California v. Peter Balov, No.

CA270404, The Appellate Division of the Superior

Court for the County of San Diego, California. Judgment entered October 13, 2017.

The People of the State of California v. Peter Balov, No.

M199722, The Superior Court for the County of San

Diego, California. Judgment entered December 6,

2016.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ..........

PARTIES TO THE PROCEEDING ......................

RELATED CASES ...............................................

TABLE OF AUTHORITIES .................................

OPINIONS BELOW.............................................

JURISDICTION ...................................................

CONSTITUTIONAL PROVISION INVOLVED ....

STATUTORY PROVISIONS INVOLVED ...........

STATEMENT OF THE CASE..............................

Introduction and Summary of the Argument ...........................................................

Factual Background ..................................

Procedural Background .............................

REASONS FOR GRANTING REVIEW ............... 13

TO FACILITATE UNIFORMITY AMONG

STATE COURT APPLICATIONS OF IMPLIED CONSENT ..................................... 13

A. State courts remain divided over whether

implied consent must be tested for voluntariness ............................................ 14

B. The decisions in Petitioner’s case contribute to the divide ............................. 20

II.

THE DECISIONS ARE WRONG ............... 23

TABLE OF CONTENTS – Continued

Page

A. An officer’s statement requiring submission constitutes an assertion of authority affecting the voluntariness of

consent ................................................. 24

1. The falsity of an assertion of authority is immaterial to its coercive effect .................................................. 26

2. The Court of Appeal’s holding is based

on a faulty statement of law .............. 29

B. The statutory DUI admonishment functions as a curative measure necessary

to establish voluntary consent following an officer’s command to submit..... 32

1. Coerced consent must be purged of the

taint of coercion to be voluntary ........ 34

2. Information pertaining to refusal of

consent following an officer’s command to submit is a necessary curative measure ..................................... 35

3. The Court of Appeal and Appellate

Division erred by rejecting the officer’s failure to comply with California law as a coercive factor

influencing consent ......................... 37

III.

THE QUESTION PRESENTED IS ONE OF

SUBSTANTIAL AND RECURRING IMPORTANCE ............................................... 39

CONCLUSION..................................................... 41

TABLE OF CONTENTS – Continued

Page

APPENDIX

The Court of Appeal Fourth Appellate District,

Division 1, for the State of California, Published Decision Affirming Denial of Petitioner’s

Motion to Suppress (May 23, 2018) ............ App. 1-12

The Court of Appeal Fourth Appellate District,

Division 1, for the State of California, Accepting Certification by the Appellate Division

of the Superior Court for the County of San

Diego (October 30, 2017) ................................ App. 13

The Appellate Division of the Superior Court for

the County of San Diego Affirming Denial of

Petitioner’s Motion to Suppress (October 13,

2017) .......................................................... App. 14-21

The California Supreme Court’s Decision Granting Review (September 12, 2018) ............. App. 22-23

The California Supreme Court’s Decision Dismissing Petition for Review And Remanding

(August 28, 2019) ...................................... App. 24-25

CAL. VEH. CODE § 23152 ........................... App. 26-27

CAL. VEH. CODE § 23612 ........................... App. 28-35

TABLE OF AUTHORITIES

Page

FEDERAL COURTS

Amos v. United States, 255 U.S. 313 (1921) ...............26

Bailey v. Alabama, 219 U.S. 244 (1911)......................25

Birchfield v. North Dakota, 136 S.Ct. 2160

(2016) ............................................... 21, 25, 34, 39, 40

Brooks v. Minnesota, 134 S.Ct. 1799 (2014) ...............18

Bumper v. North Carolina, 391 U.S. 543

(1968) ............................................................... passim

Cox Broadcasting Corp. v. Cohn, 429 U.S. 469

(1975) ..................................................................... 3, 4

Florida v. Bostick, 501 U.S. 429 (1991) ...... 7, 15, 24, 31

Florida v. Jimeno, 500 U.S. 248 (1991) ......................15

Florida v. Royer, 460 U.S. 491 (1983) ................... 15, 36

Florida v. Thomas, 532 U.S. 774 (2001) ................... 3, 4

Gompers v. Buck’s Stove & Range Co., 221 U.S.

418 (1911) ................................................................25

Hoffa v. United States, 385 U.S. 293 (1966) ...............25

Johnson v. United States, 333 U.S. 10 (1948).............26

Kaupp v. Texas, 538 U.S. 626 (2003) ..................... 26, 27

Lo-Ji Sales, Inc. v. State of New York, 442 U.S.

319 (1979) .......................................................... 26, 27

Mills v. Alabama, 384 U.S. 214 (1966) .........................3

Mitchell v. Wisconsin, 139 S.Ct. 2525

(2019) ........................................................... 12, 14, 41

New York v. Quarles, 467 U.S. 649 (1984) ....................4

vii

TABLE OF AUTHORITIES – Continued

Page

Ohio v. Robinette, 519 U.S. 33 (1996) .........................35

Schneckloth v. Bustamonte, 412 U.S. 218

(1973) ............................................................... passim

Stone v. Powell, 428 U.S. 465 (1976) .............................4

United States v. Drayton, 536 U.S. 194 (2002) .... passim

United States v. Dyer, 784 F.2d 812 (7th Cir.

1986) ........................................................................15

United States v. Harrison, 639 F.3d 1273 (10th

Cir. 2011) .................................................................25

United States v. McWeeney, 454 F.3d 1030

(2006) ................................................................... 15, 27

United States v. Most, 876 F.2d 191 (D.C. Cir.

1989) ........................................................................32

United States v. Ocheltree, 622 F.2d 992 (9th Cir.

1980) ........................................................................25

United States v. Watson, 423 U.S. 411 (1976) ...... passim

STATE COURTS

Anderson v. State, 246 P.3d 930 (Alaska Ct. App.

2011) .................................................................. 16, 18

Byars v. State, 130 Nev. 848 (2014) ............................17

City of Great Falls v. Allderdice, 387 Mont. 47

(2017) ................................................................. 17, 19

Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d

914 (Ky. 2002) ..........................................................16

viii

TABLE OF AUTHORITIES – Continued

Page

Commonwealth v. Myers, 164 A.3d 1162 (Pa.

2017) .................................................................. 16, 18

Dortch v. State, 544 S.W.3d 518 (Ark. 2018) ..............17

Flonnory v. State, 109 A.3d 1060 (Del. 2015) .............17

John v. State, 189 So.3d 683 (Miss. Ct. App.

2016) .................................................................. 17, 19

Olevik v. State, 302 Ga. 228 (2017)................. 17, 19, 36

People v. Agnew, 242 Cal. App. 4th Supp. 1 (Cal.

Super. App. Div. 2015) .............................................23

People v. Arredondo, 199 Cal. Rptr. 3d 563 (Cal.

Ct. App. 2016) .................................................... 12, 20

People v. Arredondo, 447 P.3d 668 (Cal. 2019) ...........12

People v. Gutierrez, 27 Cal. App. 5th 1155 (Cal.

Ct. App. 2019) .................................................. passim

People v. Gutierrez, 447 P.3d 669 (Cal. 2019) ...............7

People v. Harris, 234 Cal. App. 4th 671 (Cal. Ct.

App. 2015) .................................................... 17, 20, 31

People v. Hayes, 121 N.E.3d 103 (Ill. App. Ct.

2018) ........................................................................16

People v. Ling, 15 Cal. App. 5th Supp. 1 (Cal.

Super. A.D. 2017) ....................................................23

People v. Mason, 8 Cal. App. 5th Supp. 11 (Cal.

Super. A.D. 2016) ............................................... 23, 24

People v. Simpson, 392 P.3d 1207 (Colo. 2017)...........16

People v. Stricklin, LC No. 2016-0004986-AR,

2019 WL 1745975 (Mich. Ct. App. 2019) ................17

TABLE OF AUTHORITIES – Continued

Page

State v. Baird, 187 Wash. 2d 210 (2016) ....................18

State v. Blackman, 898 N.W.2d 774 (Wis. 2017) ........18

State v. Brooks, 838 N.W.2d 563 (Minn.

2013) ............................................................ 17, 18, 19

State v. Charlson, 160 Idaho 610 (2016) .............. 17, 19

State v. Doyle, 139 Conn. App. 367 (Conn. Ct.

App. 2012) ................................................................17

State v. Hawkins, 898 N.W.2d 446 (N.D. 2017) ..... 18, 25

State v. Henry, 539 S.W.3d 223 (Tenn. Ct. App.

2017) ............................................................ 18, 19, 21

State v. Hoover, 123 Ohio St.3d 418 (2009) ................16

State v. LeMeunier-Fitzgerald, 188 A.3d 183 (Me.

2018) .................................................................. 17, 19

State v. McClead, 211 W.Va 515 (2002) ......................18

State v. Medicine, 865 N.W.2d 492 (S.D.

2015) ................................................ 18, 19, 21, 29, 35

State v. Modlin, 867 N.W.2d 609 (Neb. 2015)....... 17, 19

State v. Moore, 354 Or. 493 (2013) ........................ 18, 19

State v. Newsom, 250 So.3d 894 (La. Ct. App.

2017) .................................................................. 17, 19

State v. Reeter, 582 S.W.3d 913 (Mo. Ct. App.

2019) ........................................................................16

State v. Romano, 369 N.C. 678 (2017) ........................18

State v. Ryce, 303 Kan. 899 (2016) ....................... 17, 25

State v. Stone, 229 W.Va. 271 (W.Va. 2012) ................18

TABLE OF AUTHORITIES – Continued

Page

State v. Valenzuela, 239 Ariz. 299 (2016) ........... passim

State v. Vargas, 404 P.3d 416 (N.M. 2017)..................17

State v. Vetter, 923 N.W.2d 491 (N.D. 2019) ...............18

State v. Villarreal, 475 S.W.3d 784 (Tex. Crim.

App. 2014) ................................................................18

State v. Wulff, 157 Idaho 416 (2014)..................... 16, 17

State v. Yong Shik Won, 372 P.3d 1065 (Haw.

2015) ........................................................................17

Williams v. State, 296 Ga. 817 (2015) ........................17

Wolfe v. Commonwealth, 793 S.E.2d 811 (Va. Ct.

App. 2016) ................................................................16

CONSTITUTIONS

U.S. CONST. AMEND. IV ........................................ passim

CAL. CONST. ART. VI ......................................................2

FEDERAL STATUTES

28 U.S.C. § 1257(a) ........................................................5

28 U.S.C. § 2254 ............................................................4

STATE STATUTES

CAL. RULES OF COURT rule 8.528 ...........................3

CAL. VEH. CODE § 23152 ....................................... 6, 9

CAL. VEH. CODE § 23612 ................................. passim

TABLE OF AUTHORITIES – Continued

Page

SECONDARY SOURCES

4 W. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment § 8.2(a) (5th ed.

2019) .................................................. 27, 29, 30, 32

FBI, Table 18: Estimated Number of Arrests,

United States, 2016, (Nov. 19, 2019, 8:00 a.m.),

https://ucr.fbi.gov/crime-in-the-u.s/2016/crimein-the-u.s.-2016/topic-pages/tables/table-18 ..........13

FBI, Table 29: Estimated Number of Arrests,

United States, 2017, (No. 19, 2019, 8:00 a.m.),

https://ucr.fbi.gov/crime-in-the-u.s/2017/crimein-the-u.s.-2017/topic-pages/tables/table-29 ..........13

FBI, Table 29: Estimated Number of Arrests,

United States, 2018, (Nov. 19, 2019, 8:00 a.m.),

https://ucr.fbi.gov/crime-in-the-u.s/2018/crimein-the-u.s.-2018/topic-pages/tables/table-29 ..........13

Paul Sutton, The Fourth Amendment in Action:

An Empirical View of the Search Warrant Process, 22 CRIM. L. BULL. 405, 415 (1986) ...............14

U.S. Dep’t of Justice, Contacts Between Police

and the Public, 2008, NCJ 234599 (2011) ..............14

Xavier Becerra, Crime in California, (Nov. 19,

2019, 8:00 a.m.), https://data-openjustice.doj.

ca.gov/sites/default/files/2019-07/Crime%20In

%20CA%202018%2020190701.pdf .........................22

PETITION FOR WRIT OF CERTIORARI

Petitioner Peter Balov petitions for a writ of certiorari to review the judgments of the Fourth Appellate

District Court of Appeal for the State of California, Division 1, Case No. D073018 and the Appellate Division

of the Superior Court for the County of San Diego, California, Case No. M199722.

------------------------------------------------------------------

OPINIONS BELOW

A. California Supreme Court

The opinion of the Supreme Court of California

dismissing Petitioner’s petition for review and remanding it to the Court of Appeal for the Fourth Appellate District, Division 1, is reported at 447 P.3d 669;

see also App. at 24. The decision of the Supreme Court

of California granting Petitioner’s petition for review

is reported at 425 P.3d 1006; see also App. at 22.

B. Court of Appeal of the State of California,

Fourth Appellate District, Division 1

The decision of the Court of Appeal for the Fourth

Appellate District, Division 1 is reported at 23 Cal.

App. 5th 696; see also App. at 1. The order accepting

certification for transfer from the Appellate Division of

the Superior Court for the County of San Diego is unreported. App. 13.

C. Superior Court and Appellate Division

of the Superior Court for the County of

San Diego, California

The decision of the Superior Court and the Appellate Division of the Superior Court1 for the County of

San Diego, California is unreported. App. at 14.

------------------------------------------------------------------

JURISDICTION

The Appellate Division of the Superior Court for

the County of San Diego affirmed the trial court’s denial of Petitioner’s motion to suppress on Oct. 13, 2017.

App. at 15. The Appellate Division certified for transfer

to the Court of Appeal, Fourth Appellate District of the

State of California, Division One, on October 30, 2017.

App. at 13.

The Fourth District Court of Appeal affirmed the

rulings of the lower courts on May 23, 2018. App. at 1.

Rehearing was denied on June 13, 2018. Petitioner

timely filed Petition for Review with the California

Supreme Court.

The California Supreme Court granted review on

Sept. 12, 2018. App. at 22. After granting review, the

California Supreme Court dismissed Petitioner’s Petition for Review on August 28, 2019, and remanded to

the Court of Appeal for the Fourth Appellate District,

CAL. CONST, ARTICLE VI §§ 4, 11 provide the Appellate Division of the Superior Court with appellate jurisdiction.

Division 1, for a remittitur2 to issue. App. at 24. Remittitur was issued and the Court of Appeal’s decision is

final.

Petitioner’s case is pre-conviction, but presents all

four recognized circumstances (the four Cox categories) allowing the Court to treat the judgment of the

California reviewing courts as final for jurisdictional

purposes. Florida v. Thomas, 532 U.S. 774, 777 (2001)

(discussing Cox Broadcasting Corp. v. Cohn, 429 U.S.

469 (1975)). First, the issue of Petitioner’s Fourth

Amendment claim within state courts is final. The California Supreme Court accepted, then dismissed review and remanded to the Fourth District Court of

Appeal with no instructions for further factfinding or

argument. Any trial “would be no more than a few formal gestures leading inexorably towards a conviction,”

after which the same issue would need to be raised

with this Court, resulting in an unnecessary waste of

time and energy. Id. at 778 (quoting Mills v. Alabama,

384 U.S. 214, 217-18 (1966)).

Second, the issue in this case will survive and ultimately warrant Supreme Court review regardless of

the outcome of future state-court proceedings. Cox

Broadcasting Corp., 420 U.S. at 480. Central to the issue in this case is an officer’s conduct when attempting

to obtain consent to blood testing from a DUI arrestee.

Here, the officer commanded submission to a search

CAL. RULES OF COURT rule 8.528, sub’d (b)(2) provides:

“When the Court of Appeal receives an order dismissing review,

the decision of that court is final and its clerk/executive must

promptly issue a remittitur or take other appropriate action.”

and the arrestee submitted. The voluntariness of that

submission is at issue. California courts have seen this

factual scenario repeated frequently. See infra 22-23.

Thus, the outcome on the Fourth Amendment issue

will not change in state court. The issue here will need

to be addressed.

Third, Petitioner’s case is one in which “the federal

claim has been finally decided, with further proceedings on the merits in the state court to come, but in

which later review of the federal issue cannot be had,

whatever the ultimate outcome of the case.” Thomas,

532 U.S. at 779 (quoting Cox Broadcasting Corp., 429

U.S. at 481). Following a conviction, Petitioner cannot

revisit the federal claim on appeal, as the California

court of last resort has granted and dismissed review

of the issue. Should the Petitioner be convicted at trial,

Petitioner will be precluded from pressing its federal

claim on appeal. Id. at 779 (discussing New York v.

Quarles, 467 U.S. 649 (1984)). Governing state law will

not permit Petitioner to again present his federal claim

for review. Cox Broadcasting Corp., 429 U.S. at 481.

Further, review of the issue in federal habeas corpus

(28 U.S.C. § 2254) is precluded. Stone v. Powell, 428 U.S.

465 (1976).

Finally, where “a refusal immediately to review

the state-court decision might seriously erode federal

policy, the Court has entertained and decided the federal issue, which itself has been finally determined by

the state courts.” Id. at 780 (citing Cox Broadcasting

Corp., 429 U.S. at 482-83). A denial of Petitioner’s case

would erode federal policy pertaining to the obtaining

of consent. Thereafter, Petitioner’s case would serve as

authority for an officer to command submission to a

warrantless search, and for the government to rely on

that submission as proof of voluntary consent. Petitioner’s case erodes the long-standing rule that mere

acquiescence to a claim of authority is not voluntary

consent. The paramount justification for this Court to

exercise jurisdiction is to protect federal Fourth

Amendment policy and uphold the rule of law.

The judgment of the Fourth District Court of Appeal and Appellate Division may be considered final.

This Court’s jurisdiction is therefore invoked, pursuant to 28 U.S.C. § 1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment provides, in relevant part:

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 be issue, but

upon probable cause.

------------------------------------------------------------------

STATUTORY PROVISIONS INVOLVED

CALIFORNIA VEHICLE CODE § 23612(a)(1)(A)

is included in App. at 28

CAL. VEH. CODE § 23612(a)(1)(D) is included in

App. at 28.

CAL. VEH. CODE § 23612(a)(4) is included in App.

at 31.

CAL. VEH. CODE § 23152 is included in App. at

26.

------------------------------------------------------------------

STATEMENT OF THE CASE

A. Introduction and Summary of the Argument

After unsatisfactorily performing field sobriety

tests, Petitioner was arrested for driving under the influence. There was no property damage or injury involved in Petitioner’s arrest. The arresting officer

instructed Petitioner that “that per California Law he

was required to submit to a chemical test, either a

breath or a blood test.” App. at 2. The officer then

failed to inform Petitioner of the mandated DUI admonishment, required pursuant to CAL. VEH. CODE

§§ 23612(a)(1)(D) & (a)(4). Id. This admonishment informs the arrestee of the consequences of refusing testing; and is an indirect reference to an option to refuse.

App. at 28. The officer never mentioned refusal or implied consent. Without resistance or objection, Petitioner elected to submit a blood sample.

The state relied on a theory of voluntary consent

to admit the results of Petitioner’s blood-alcohol test.

The trial court agreed, finding Petitioner’s consent voluntary. Two reviewing courts, the Appellate Division of

the Superior Court and the Court of Appeal, Fourth

Appellate District, Division 1, affirmed.

Consent searches have an established role in

Fourth Amendment jurisprudence. They serve the interests of law enforcement and the general public.

Schneckloth v. Bustamonte, 412 U.S. 218, 227-28

(1973). Consensual encounters implicate no Fourth

Amendment interest “so long as the police do not convey a message that compliance with their requests is

required.” Florida v. Bostick, 501 U.S. 429, 435 (1991);

see also United States v. Drayton, 536 U.S. 194, 201

(2002). Yet, that is exactly what the arresting officer

told Petitioner: submission was required.

The reviewing courts’ holdings that Petitioner gave

voluntary consent stand in clear contradiction of this

Court’s precedent. The state holdings build upon flawed

legal analyses and a misstatement of law. The Court of

Appeal and Appellate Division have rewritten the doctrine of Fourth Amendment consent. As a result, California DUI arrestees are subject to unconstitutional

DUI arrest practices.

The decisions in Petitioner’s case, and in People v.

Gutierrez, 27 Cal. App. 5th 1155 (Cal. Ct. App. 2018),

reh’g denied (Oct. 29, 2018), review dismissed, cause remanded, People v. Gutierrez, 447 P.3d 669 (Cal. 2019),

discussed infra at 20, exacerbate a division among the

states.3 This division turns upon disagreement over

the role implied consent plays in traditional Fourth

Mr. Gutierrez also filed a Petition for Writ of Certiorari

with this Court, dated November 26, 2019.

Amendment jurisprudence. California courts adhere to

the majority view that implied consent must be tested

for voluntariness. Yet, the holdings in Petitioner’s case

have found voluntary consent where the majority of

state courts, and this Court’s precedent, would not.

The departure from the majority by the Court of

Appeal is especially problematic where California DUI

arrests make up a large portion of the annual DUI arrest totals in the United States. California implied consent case law directly impacts more than 100,000

people arrested on suspicion of driving under the influence each year.

Certiorari is warranted to address the discord between the states over implied consent, to correct the

holdings of the reviewing courts, and to prevent significant future harm to the Fourth Amendment rights of

DUI arrestees.

B. Factual Background

At approximately 3:00 a.m. on March 22, 2015,

Petitioner Peter Balov was arrested for suspicion of

driving under the influence of alcohol. App. at 2. After

failing field sobriety tests, Petitioner was placed under

arrest for suspicion of driving under the influence. Id.

Petitioner’s arrest involved neither damage to property nor injury to any persons. The event was a standard, unremarkable and commonplace example of a

DUI arrest.

Following Petitioner’s arrest, the officer, San Diego

Police Officer Luis Martinez, stated to Petitioner that,

“per California law, [you] are required to submit to a

chemical test, either a breath or blood test.” Id. at 2-3.

Officer Martinez did not follow this statement with the

statutory implied consent admonishment, mandated

by CAL. VEH. CODE §§ 23612(a)(1)(D) or (a)(4). Id.;

see also App. at 28, 31. The officer made no reference to

an option to refuse. The officer did not reference California’s implied consent law.

After the officer’s command, Petitioner chose blood

from the only options afforded to him: breath or blood.

Id. at 3. At no time did Petitioner resist, protest, or object. Testing performed on the blood sample provided

by Petitioner indicated his blood alcohol content exceeded the legal limit.

Petitioner was charged with misdemeanor driving

under the influence, in violation of CAL. VEH. CODE

§§ 23152, sub’ds (a), (b). Id. at 14; see also App. at 26.

Petitioner moved to suppress the results of his blood

alcohol testing.

C. Procedural Background

At the suppression hearing, the Hon. Timothy

Walsh determined that Petitioner’s consent was voluntary. The court then denied Petitioner’s motion to suppress. App. at 14. Petitioner timely appealed to the

Appellate Division of the Superior Court of the County

of San Diego (“Appellate Division”).

Before the Appellate Division, Petitioner argued

his consent was involuntary and merely the result of a

claim of authority, similar to that discussed in Bumper

v. North Carolina, 391 U.S. 543 (1968).

Following completion of briefing and oral argument, the Appellate Division affirmed the Trial Court’s

ruling. App. at 15. Citing to Drayton, 536 U.S. 194,

United States v. Watson, 423 U.S. 411, (1976), and

Schneckloth, 412 U.S. 218, the court determined, “[in

these cases] the Supreme Court was addressing the

purported failure to inform persons of the right to refuse voluntary consent, where there was no advance

consent, and where the consequences of refusing consent were not codified.” App. at 17-18. The court reasoned that under the cited precedent, “the statutory

admonishment of the consequences of refusing to submit to testing under CAL. VEH. CODE § 23612 is not

a constitutional requirement under the Fourth Amendment. App. at 19.

The Appellate Division thereafter held Petitioner’s

consent voluntary, as “[t]his case did not involve the

type of coercion or deception claimed in [Drayton, Watson, and Schneckloth].” App. at 19. In the court’s view,

“the officer simply informed [Petitioner] that he was

required by California law to submit to a blood or

breath test, which is an accurate statement of the implied consent law, and he verbally chose the blood test.”

App. at 19. The Appellate Division declined to address

Petitioner’s argument that his consent was acquiescence to an assertion of authority.

The Appellate Division, on its own authority, certified the decision for transfer to the Court of Appeal of

the State of California, Fourth Appellate District, Division 1. App. at 13. The Appellate Division concluded

transfer to the Court of Appeal was necessary to secure

uniformity of law. Id.

On appeal to the Fourth Appellate District, Division 1 (“the Court of Appeal”), Petitioner again argued

his consent was mere submission to an assertion of authority under Bumper. Respondent countered, “there

was acquiescence to a proper claim of lawful authority

and [Petitioner’s] consent was therefore voluntary.”4

The Court of Appeal adopted Respondent’s view

of Bumper, reasoning the claim asserted in Bumper

was a false claim of authority. App. at 8. The court

noted, “Bumper considered whether a false claim by

law enforcement that it had a warrant to search the

defendant’s home vitiated the defendant cohabitant’s

subsequent consent to the search.” Id. Further,

“[u]nlike law enforcement’s claim in Bumper, [the officer’s] statement to [Petitioner] was not false.” Id.

Additionally, the court relied upon Drayton, stating that the “United States Supreme Court has repeated that the totality of circumstances must control,

without giving extra weight to the absence of [an advisal of the right to refuse].” App. at 9-10.

The Court of Appeal concluded that Petitioner

freely consented, noting, after driving on the public

Respondent’s Opening Brief at 17.

road and being lawfully arrested for driving under the

influence, Petitioner was correctly told he was required

to submit to a breath or blood test. “Although the statement was incomplete under SECTION 23612, subdivision (a)(1)(D), there was no evidence [the officer]

intended to deceive [Petitioner] about his right to refuse

a test altogether.” App. at 10. “Nor was [the officer’s]

statement about the implied consent demonstrably

false.” Id. Failure to communicate the consequences of

refusing a chemical test did not make the initial statement requiring consent any more or less coercive than

if the information had been provided. Id. In neither

case is the driver advised of his or her right to refuse

test altogether. These findings, Petitioner’s lack of objection to testing, and the existence of the implied consent law supported a finding of voluntariness.

The Court of Appeal thereafter denied Petitioner’s

appeal and affirmed the findings of the lower court. Id.

at 12.

Following denial of Petitioner’s request for rehearing, Petitioner timely filed a petition for review with

the California Supreme Court. App. at 22. The court

held action in Petitioner’s case pending its decision in

People v. Arredondo, 199 Cal. Rptr. 3d 563 (Cal. Ct. App.

2016), review dismissed, caused remanded, People v.

Arredondo, 447 P.3d 668 (Cal. 2019). Id. The facts of

Arredondo involved a blood draw performed on an unconscious suspect, not dissimilar to those considered

by this Court in Mitchell v. Wisconsin, 139 S.Ct. 2525

(2019).

On August 28, 2019, the California Supreme Court

dismissed Petitioner’s case, and remanded to the Court

of Appeal for remittitur. App. at 24.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

TO FACILITATE UNIFORMITY AMONG

STATE COURT APPLICATIONS OF IMPLIED

CONSENT.

Arrests for driving under the influence are commonplace, contributing significantly to national annual arrest figures. In 2016, of 10,662,252 arrests,

1,017,808 were for driving under the influence.5 In

2017, of 10,554,985 total arrests, 990,678 were for

DUI.6 In 2018, of 10,310,960 total arrests, 1,001,329

were for DUI.7

To combat this threat, all 50 states have enacted

implied consent laws. These laws generally deem a motorist’s consent to chemical testing to determine bloodalcohol content when the motorist is arrested or detained on suspicion of driving under the influence.

Per 2016 FBI Uniform Crime Report, available at

https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topicpages/tables/table-18.

Per 2017 FBI Uniform Crime Report, available at

https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topicpages/tables/table-29.

Per 2018 FBI Uniform Crime Report, available at

https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/topicpages/tables/table-29.

A. State courts remain divided over whether

implied consent must be tested for voluntariness.

This Court has, to date, declined to affirmatively

reject statutory implied consent as an independent exception to the warrant requirement. Instead, traditional Fourth Amendment jurisprudence has been

applied to assess the constitutional compliance of implied consent-related searches. Mitchell, 139 S.Ct. at

2532-33. In the absence of a bright-line rule as to the

significance of implied consent, state courts question

the role implied consent plays in the established legal

framework of voluntary consent. The states have not

reached a uniform answer.

Consent is an established exception to the warrant

requirement of the Fourth Amendment. Schneckloth,

412 U.S. at 219. Consent to search must be given voluntarily. Id. at 248-49. Voluntary consensual searches

remain vital to law enforcement. Id. at 227-28. Over 90

percent of warrantless searches are conducted by consent. Paul Sutton, The Fourth Amendment in Action:

An Empirical View of the Search Warrant Process, 22

CRIM. L. BULL. 405, 415 (1986). In 2008, 57.7 percent

of traffic related searches were conducted pursuant to

driver consent. U.S. Dep’t of Justice, Contacts Between

Police and the Public, 2008, NCJ 234599 (2011).

The voluntariness of consent must be tested and

proven. A voluntariness inquiry asks whether “a defendant’s will was overborne in a particular case” by

the will of the government. Schneckloth, 412 U.S. at

226. All of the circumstances surrounding consent

must be considered for voluntariness under an objective-innocent-reasonable person standard. Drayton,

536 U.S. at 202 (citing Florida v. Bostick, 501 U.S. 429,

437-38 (1991)). It is the government’s burden to prove

the voluntariness of consent and not merely consent

yielded in submission to authority. Florida v. Royer,

460 U.S. 491, 500 (1983).

Voluntary consent has certain recognized attributes. It is accompanied by a right to refuse a search

request; at least to the extent no warrant exists or

other warrant exception is applicable. Schneckloth, 412

U.S. at 223 (discussing knowledge of “right to refuse”

in Fourth Amendment context). And voluntary consent, once given, may be refused or withdrawn. Florida

v. Jimeno, 500 U.S. 248, 252 (1991) (“A suspect may . . .

delimit as he chooses the scope of the search to which

he consents”); see also United States v. Dyer, 784 F.2d

812, 816 (7th Cir. 1986) (“Clearly a person may limit or

withdraw . . . consent to a search, and the police must

honor such limitations”); United States v. McWeeney,

454 F.3d 1030, 1034 (2006) (“A suspect is free . . . to delimit or withdraw . . . consent at anytime”).

The minority view of implied consent adopts

deemed consent as independent proof of voluntariness.

Under this view, implied consent serves either as a

per se exception or as coercion-proof consent, neither

requiring review of the totality of circumstances. The

minority applies this view to DUI-blood sampling.

State jurisdictions belonging to the minority include

Colorado,8 Kentucky,9 Illinois,10 Missouri,11 Ohio,12 and

Virginia.13

Properly considering the attributes of voluntary

consent, “irrevocable implied consent operating as a

per se rule cannot fit under the consent exception because it does not always analyze the voluntariness of

that consent.” Commonwealth v. Myers, 164 A.3d 1162,

1174 (Pa. 2017) (quoting State v. Wulff, 157 Idaho 416,

422 (2014)). Thus, a majority of state courts, including

California, have rejected implied consent as a per se

exception to the Fourth Amendment’s warrant requirement. Courts from twenty-nine states continue to

analyze the voluntariness of consent to DUI blood

testing under the totality of circumstances. Jurisdictions included in this group are: Alaska,14 Arizona,15

People v. Simpson, 392 P.3d 1207, 1209 (Colo. 2017) (terms

of Express Consent Statute requires submission to a blood draw).

Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914, 918

(Ky. 2002) (“consent is implied by law”).

People v. Hayes, 121 N.E.3d 103 (Ill. 2018).

State v. Reeter, 582 S.W.3d 913 (Mo. Ct. App. 2019).

State v. Hoover, 123 Ohio St.3d 418 (2009).

Wolfe v. Commonwealth, 793 S.E.2d 811 (Va. Ct. App.

2016).

Anderson v. State, 246 P.3d 930, 933 (Alaska Ct. App.

2011).

State v. Valenzuela, 371 P.3d 627, 632-34 (Ariz. 2016).

Arkansas,16 California,17 Connecticut,18 Delaware,19

Georgia,20 Hawaii,21 Idaho,22 Kansas,23 Louisiana,24

Maine,25 Michigan,26 Minnesota,27 Mississippi,28 Montana,29 Nebraska,30 New Mexico,31 Nevada,32 North

Dortch v. State, 544 S.W.3d 518, 529 (Ark. 2018).

People v. Harris, 234 Cal. App. 4th 671, 685-89 (Cal. Ct.

App. 2015).

State v. Doyle, 139 Conn. App. 367, 275 (Conn. Ct. App.

2012).

Flonnory v. State, 109 A.3d 1060, 1064 (Del. 2015).

Williams v. State, 296 Ga. 817, 817-18 (2015); see also

Olevik v. State, 806 S.E.2d 505 (2017) (on state law grounds).

State v. Yong Shik Won, 372 P.3d 1065, 1075 (Haw. 2015).

State v. Charlson, 160 Idaho 610, 617 (2016); see also State

v. Wulff, 157 Idaho 416, 422 (2014).

State v. Ryce, 303 Kan. 899, 944 (2016).

State v. Newsom, 250 So.3d 894 (La. Ct. App. 2017).

State v. LeMeunier-Fitzgerald, 188 A.3d 183, 190 (Me.

2018).

People v. Stricklin, LC No. 2016-0004986-AR, 2019 WL

1745975 *2 (Mich. Ct. App. 2019).

State v. Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied,

Brooks v. Minn., 134 S.Ct. 1799 (2014).

John v. State, 189 So.3d 683, 684 (Miss. Ct. App. 2016).

City of Great Falls v. Allderdice, 387 Mont. 47, 50 (2017).

State v. Modlin, 867 N.W.2d 609, 618 (Neb. 2015).

State v. Vargas, 404 P.3d 416, 422 (N.M. 2017) (“Implied

consent laws can no longer provide that a driver impliedly consents to a blood draw.”).

Byars v. State, 130 Nev. 848, 857-58 (2014).

Carolina,33 North Dakota,34 Oregon,35 Pennsylvania,36

South Dakota,37 Tennessee,38 Texas,39 Washington,40

West Virginia,41 and Wisconsin.42

The variety of factual scenarios arising from implied-consent DUI arrests has resulted in findings of

both voluntary and involuntary consent to DUI blood

draws. Yet, despite the differences in conclusions and

fact patterns, certain commonalities in rationale

among the majority courts are discernable. For example, where individuals are afforded consultation with

an attorney prior to a blood draw, courts have found

consent voluntary. See, e.g., State v. Brooks, 838 N.W.2d

563, 572 (Minn. 2013), cert. denied, Brooks v. Minnesota, 134 S.Ct. 1799 (2014); see also Anderson v. State,

246 P.3d 930, 932-33 (Alaska Ct. App. 2011).

Additionally, where the individual was given information, either verbally or on consent forms, reasonably

State v. Romano, 369 N.C. 678 (2017).

State v. Hawkins, 898 N.W.2d 446 (N.D. 2017); see also

State v. Vetter, 923 N.W.2d 491, 497 (N.D. 2019).

State v. Moore, 354 Or. 493 (2013).

Commonwealth v. Myers, 164 A.3d 1162, 1180-81 (Pa.

2017).

State v. Medicine, 865 N.W.2d 492 (S.D. 2015).

State v. Henry, 539 S.W.3d 223, 244 (Tenn. Ct. App. 2017).

State v. Villarreal, 475 S.W.3d 784, 799-800 (Tex. Crim.

App. 2014).

State v. Baird, 187 Wash. 2d 210 (2016).

State v. McClead, 211 W.Va 515 (2002), overruled on other

grounds, State v. Stone, 229 W.Va. 271 (2012).

State v. Blackman, 898 N.W.2d 774 (Wis. 2017).

indicating refusal to submit was an option, courts have

generally found voluntary consent. See, e.g., Brooks,

838 N.W.2d at 572; see also Olevik, 806 S.E.2d at 249;

LeMeunier-Fitzgerald, 188 A.3d at 192; Newsom, 250

So.3d at 900; John, 189 So.3d at 684; Allderdice, 387

Mont. at 51; Modlin, 867 N.W.2d at 621; Moore, 354 Or.

at 500-01. These decisions suggest even an implied reference to refusal, though coupled with permissible

penalties, can preserve the voluntariness of consent.

The use of command language, or its absence, is a

significant factor in the majority’s voluntariness determinations. Law enforcement’s use of verbiage, such as

“required” and “submit,” has been held coercive by the

Supreme Courts of Arizona and South Dakota. State v.

Valenzuela, 239 Ariz. 299, 307-08 (2016) (repeated use

of word required held coercive); State v. Medicine, 865

N.W.2d 492, 496-97 (S.D. 2015) (use of the word submit

conveys inability to refuse even when coupled with request language). Similarly, where an arrestee was told

a blood draw was mandatory and no implied consent

admonishment was provided, a Tennessee Court of

Criminal Appeals held submission to testing involuntary. State v. Henry, 539 S.W.3d 223, 244 (Tenn. Ct. App.

2017). Under opposite circumstances, the Supreme

Court of Idaho, in State v. Charlson, 160 Idaho 610, 618

(2016), found voluntary consent, despite no conveyance

of information refusal as an option, where no facts indicated the officer told the individual they were “required to submit to the blood test.” Id. at 618.

These common threads taken from among the

twenty-nine majority states have been cut by two

recent California appellate court holdings, one of

which is Petitioner’s case. These holdings present a

new standard for officer conduct when requesting arrestee consent to blood testing that is a clear departure

from the majority reasoning, and from precedent.

B. The decisions in Petitioner’s case contribute to the divide.

CAL. VEH. CODE § 23612(a)(1)(A) deems a motorist’s consent to chemical testing of blood or breath upon

arrest for suspicion of DUI. App. at 28. California

courts, like the other majority states, have held that

officers must obtain voluntary consent, or affirmance

of prior implied consent, to DUI-arrest blood draws.

See, e.g., People v. Harris, 234 Cal. App. 4th at 685-89;

see also Arredondo, 199 Cal. Rptr. 3d at 568-70.

Applying the majority rule in most states’ reasoning, an officer’s statement requiring submission to testing, without some reference to refusal, would result in

involuntary consent. The decisions of the Court of Appeal and Appellate Division in Petitioner’s case conflict

with the majority rationale.

Factually similar to the Balov holding, the Gutierrez

Court held that an officer’s statement requiring submission, followed by silence as to the option to refuse,

constituted consent allowing the search-incident-toarrest exception to apply to the resulting warrantless

DUI blood draw. Gutierrez, 27 Cal. App. 5th at 1158,

1165.

The Balov and Gutierrez holdings differ where

Balov relied solely on voluntary consent, and Gutierrez

first addressed consent to the intrusion, and then used

that finding to apply the search-incident-to-arrest exception to California DUI blood draws. Id. This Court’s

holding in Birchfield v. North Dakota, 136 S.Ct. 2160

(2016) expressly prohibited application of the searchincident-to-arrest exception to DUI blood testing. Id. at

2185 (“a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for

drunk driving”).

The Supreme Courts of Arizona and South Dakota, ruled in direct contrast to the voluntariness determination by the Balov Court of Appeal and

Appellate Division. In Valenzuela, 239 Ariz. 299, the

defendant was advised three times he was required to

submit to chemical testing. Id. at 301. Applying

Bumper, the Valenzuela Court determined that the

motorist’s consent could not be considered voluntary

because the officer invoked lawful authority and “effectively proclaimed that Valenzuela had no right to resist

the search.” Id. at 306.

Similarly, in Medicine, 865 N.W.2d at 496-97, the

South Dakota Supreme Court found an arrestee’s

consent to blood sampling involuntary where he

was requested to submit to testing. Use of the word

“submit” conveyed a message that the individual had

no right to refuse. Id. The arrestee’s subsequent

agreement to testing was held involuntary. Id.; see

also Henry, 539 S.W.3d at 244 (consent following

statement to arrestee blood draw was mandatory without admonishment and held involuntary.)

Departure of Balov and Gutierrez from majority

norms becomes particularly significant when considering their applicability to national DUI arrest totals.

In 2018, California experienced a total of 128,192 DUI

arrests.43 In 2017, 122,284 motorists were arrested for

DUI.44 In 2016, 125,963 individuals were arrested for

misdemeanor DUI.45 In 2015, 137,677 individuals were

arrested for misdemeanor DUI; in 2014, 151,416.46 Annually, California DUI arrests comprise roughly 10 to

15 percent of all DUI arrests in the United States.

Thus, a significant percentage of annual DUI arrests in the United States are governed by California

implied consent jurisprudence. This percentage increases when placed in context of those arrests occurring in the twenty-nine majority states. Policies

adopted by California courts pertaining to consent to

DUI blood draws directly affect more than 100,000

people each year.

The standardness of the arrests in Balov and

Gutierrez maximize their influence on DUI arrests, nationally. Both cases involve very commonplace arrests.

The Gutierrez Court noted its factual scenario “arises

Statistic available at https://data-openjustice.doj.ca.gov/

sites/default/files/2019-07/Crime%20In%20CA%202018%2020190701.

pdf.

Id.

every day in California. A law enforcement officer arresting someone for driving under the influence (DUI)

informs the suspect that he or she must submit to a

breath test or blood test to measure blood alcohol content[.]” Gutierrez, 27 Cal. App. 5th at 1157. Prior to the

Balov and Gutierrez decisions, similar scenarios were

reviewed by other California courts with conflicting

holdings. See, e.g., People v. Agnew, 242 Cal. App. 4th

Supp. 1 (Cal. Super. A.D. 2015); People v. Mason, 8 Cal.

App. 5th Supp. 11 (Cal. Super. A.D. 2016), disagreed

with by Balov, 23 Cal. App. 5th at n.5; People v. Ling,

15 Cal. App. 5th Supp. 1 (Cal. Super. A.D. 2017).

Thus, the Balov and Gutierrez holdings have established coerced consent as a new standard within

the state-majority. Certiorari is warranted to address

this contribution to the conflict in the lower courts on

the interpretation of implied consent’s significance in

Fourth Amendment Jurisprudence.

II.

THE DECISIONS ARE WRONG.

The Fourth Amendment violation in Petitioner’s

case arises from the union of two actions by the arresting officer. First, the officer arresting Petitioner required submission, rather than asked for consent.

Second, the officer remained silent as to the statutory

implied consent admonishment or reference to refusal

as an option.

The potential for coercion arises from “not just the

omission of the right to refuse or even the statutory

consequences of a refusal, the absence of neither of

which would generally amount to a constitutional violation . . . [b]ut it is this lacuna coming after the assertion that submission is ‘required’ . . . that can taint the

actual voluntariness of the ensuing consent to a blood

draw.” Mason, 8 Cal. App. 5th Supp. at 22-23. Together,

these actions result in involuntary consent.

The Court of Appeal erred in its analysis of the effect of both actions; an error mirrored by the Appellate

Division. The Court of Appeal first erred in rejecting

the officer’s statement as an assertion of authority coercive to consent.

Second, in order to excuse the officer’s unlawful

conduct as a coercive factor, the Appellate Division and

Court of Appeal rely upon precedent poorly adapted to

DUI arrests. The result of these errors was a finding of

voluntary consent that contradicts this Court’s jurisprudence.

A. An officer’s statement requiring submission constitutes an assertion of authority affecting the voluntariness of

consent.

Voluntariness is vulnerable to coercion. “Where

there is coercion there cannot be consent.” Bumper, 391

U.S. at 550. Coercion is an effect upon an individual’s

will produced by external sources. Bostick, 501 U.S. at

435 (considering the “accurate measure of the coercive

effect” of a law enforcement encounter on a bus). This

effect results in consent that comes, not from an “essentially free and unconstrained choice,” but because

the individual’s “will had been overborne and their

capacity for self-determination critically impaired.”

Watson, 423 U.S. at 424 (quoting Schneckloth, 412 U.S.

at 225).

A variety of pressures may produce a coercive effect vitiating consent. Force, threat and guile are coercive to consent. Hoffa v. United States, 385 U.S. 293,

301 (1966). Threat of imprisonment likewise produces

a coercive effect, as it is intended to coerce an individual to do the thing required. Gompers v. Buck’s Stove &

Range Co., 221 U.S. 418, 442, 31 S.Ct. 492 (1911); see

also Bailey v. Alabama, 219 U.S. 244-45, 31 S.Ct. 145

(1911); United States v. Ocheltree, 622 F.2d 992, 994

(9th Cir. 1980) (consent involuntary when given subject to agent’s assertion that if refused agent would

seek a warrant while individual was retained in custody). In the context of implied consent, this Court has

noted that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing

a criminal offense.” Birchfield, 136 S.Ct. at 2186; see

also State v. Hawkins, 898 N.W.2d 446 (N.D. 2017)

(finding arrest after initial refusal to be coercive).

“Criminally punishing a driver’s withdrawal of [implied] consent . . . infringes on fundamental rights arising under the Fourth Amendment.” State v. Ryce, 303

Kan. 899, 902 (2016). “The same principle applies when

deceit or trickery is used to imply an individual has no

ability to refuse consent.” United States v. Harrison,

639 F.3d 1273, 1280 (10th Cir. 2011).

The pressure at issue in Petitioner’s case is a claim

or assertion of authority by law enforcement to conduct

the search of Petitioner’s blood; a claim which effectively conveyed he had no right to refuse.

1. The falsity of an assertion of authority

is immaterial to its coercive effect.

Consent yielded as mere acquiescence to an assertion of authority has been held insufficient to establish

voluntariness. See, e.g., Amos v. United States, 255 U.S.

313 (1921); Johnson v. United States, 333 U.S. 10

(1948); Bumper, 391 U.S. 543; Lo-Ji Sales, Inc. v. State

of New York, 442 U.S. 319 (1979); Kaupp v. Texas, 538

U.S. 626 (2003). Assertion of authority, in effect, announces to the individual they have no right to refuse

or to leave. Such situations are instinct with coercion.

Bumper, 391 U.S. at 550.

Involuntary consent resulting from an assertion

of authority has been addressed by this Court. For example, in Amos v. United States, government agents

stated they were officers seeking to search private

property for violations of law. Amos, 255 U.S. at 314.

The agents neither asked nor requested permission to

search. The Amos Court found the owner’s agreement

to allow the search to be involuntary consent, due to

assertion of governmental authority. Id. at 317.

Similarly, in Johnson v. United States, officers

dressed in uniform approached an individual’s hotel

room door, knocked, and said nothing more than “I

want to talk to you a little bit.” Johnson, 333 U.S. at 12.

The Johnson Court found the inhabitant’s grant of entry the result of assertion of authority. Id. at 17.

In Lo-Ji Sales, Inc. v. State of New York, the searching officers had a warrant at the time they asserted

authority; the warrant was later shown invalid. Where

officers truthfully assert possession of a search warrant, and that warrant is later held to be invalid, acquiescence to the initial assertion is mere acquiescence

to asserted authority. Lo-Ji Sales, Inc., 422 U.S. at 329.

The voluntariness inquiries for seizures and

searches are essentially identical. McWeeney, 454 F.3d

at 1036; see also Drayton, 536 U.S. at 202. Assertions of

authority overcoming an individual’s will have resulted in unlawful seizures. In Kaupp v. Texas, 538 U.S.

626, 628, officers sought to interview a suspect. The officers arrived at the suspect’s home and obtained consent to enter from the suspect’s parent. Id. They then

surrounded a suspect in his bedroom, in the middle of

the night, and told the suspect “we need to go and talk.”

Id. The suspect’s statement “okay” and agreement to go

with the officers was held to be mere submission to a

claim of authority. Id. at 631-32.

The leading case on assertion of authority remains

Bumper v. North Carolina. 4 W. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 8.2(a)

(5th ed. 2019). There, the co-habitant was told by officers arriving at her home that they possessed a

search warrant. Bumper, 391 U.S. at 546-47. Her subsequent consent was determined to be no more than

acquiescence to authority as the officers had effectively

announced she had no right to resist the search. The

Bumper Court reasoned mere acquiescence to a claim

of lawful authority fails to establish voluntary consent.

Id. at 550.

“The Bumper Court’s ruling turned on the [cohabitant’s] acquiescence to the officer’s assertion of

lawful authority to search regardless of the truthfulness of the officer’s claims to possess a warrant.” Valenzuela, 239 Ariz. at 306-07. Whether the officers lied

about possessing authority, had an invalid warrant or

valid warrant was never determined.

In a footnote, the Court explained that during argument the Justices were made aware the officers did

have a warrant. Bumper, 391 U.S. at n.15. This warrant was not returned, and “there is no way of knowing

the conditions under which it was issued, or determining whether it was based on probable cause.” Id. In his

concurrence, Justice Harlan noted, “[t]here was a

search warrant in this case, and it remains possible

that this warrant was issued under circumstances

meeting all the requirements of the Federal Constitution.” Id. at 553. Justice White’s dissent argued for vacating the decision, rather than reversal, “since the

existence and validity of the warrant have not been determined in the state courts.” Id. at 1799.

“Although Bumper appears to be a case in which

the police actually had a search warrant but the prosecution thereafter declined to rely upon the warrant as

a basis for the search, the Court made it unmistakably

clear that the same result would be reached if the warrant was thereafter relied upon and held invalid or insufficient, or if the police falsely claimed to have a

warrant[.]” LaFave, supra. What mattered in Bumper

was the assertion’s effect on the listener’s will.

In an implied consent context, the Valenzuela and

Medicine Courts found involuntary consent specifically

resulting from an assertion of authority; both courts

cited the Bumper holding. The Medicine Court noted,

“Whether fabricated or an honest recitation of purported statutory authority, ‘[w]hen a law enforcement

officer claims authority to search an individual, he announces in effect that the individual has no right to resist the search. The situation is instinct with coercion

– albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Medicine, 865 N.W.2d at

498 (quoting Bumper, 391 U.S. at 550). “The Bumper

line of cases survives to invalidate any consent given

only in acquiescence to an assertion of lawful authority

to search.” Valenzuela, 239 Ariz. at 304.

Each of the discussed decisions indicates consent

following an assertion of authority is not truly voluntary, regardless of any underlying deception or falsity

of the claimed authority.

2. The Court of Appeal’s holding is based

on a faulty statement of law.

The Balov Court rejected Petitioner’s argument

that, under Bumper, the officer’s statement requiring

submission amounted to a coercive assertion of authority. App. at 8, 10. The Court of Appeal adopted Respondent’s argument that submission to a proper claim

of authority is voluntary consent. The Court reasoned

that Bumper involved a false claim, where, in Petitioner’s case, the statement given was an accurate representation of California’s implied consent law. App. at

8. Thus, because the officer’s statement was not demonstrably false, did not involve deception, and Petitioner

did not object, as well as the existence of the implied

consent law, the court found Petitioner’s consent voluntary. App. at 10, 12. The Court of Appeal’s analysis

contains four flaws, not the least of which is its faulty

statement of the Bumper holding.

First, neither the Bumper holding, nor other cases

on assertion of authority, require the assertion to be

demonstrably false or involve deception. The falsity of

the assertion of authority is immaterial to the consenting individual. It was also immaterial to Bumper;

likely because the Court could not be sure the assertion made was false.

It is a faulty statement of law to maintain that an

assertion of authority must be demonstrably false or

stem from deception for the statement to produce a coercive effect. Limiting the scope of Bumper only to false

claims of authority would run contrary to the holding

of the Court. The Court made it unmistakably clear

that its conclusion would be the same regardless of the

veracity of the assertion of authority. LaFave, supra;

see also Bumper, 391 U.S. at 549-50. Thus, the Court of

Appeal’s distinction between Petitioner’s consent and

the involuntary submission in Bumper is premised on

a misstatement of law.

Second, a focus on the falsity of the claim dodges

the real issue: was the individual’s will to refuse overborne? Distinguishing between a false claim and a veracious claim of authority does little to address the

effect upon the individual’s will; the primary concern

in a voluntariness analysis. A proper voluntariness inquiry considers “whether a reasonable person would

feel free to decline the officers’ requests[.]” Drayton,

536 U.S. at 202 (quoting Bostick, 501 U.S. at 434-36).

Whether a reasonable person is faced with false authority or true authority, they will submit to the assertion.

Third, the distinction the Court of Appeal makes

from Bumper implies the officer here acted with true

authority. App. at 8 (“Unlike law enforcement’s claim

in Bumper, [the officer]’s statement to Balov was not

false.”). This implication is not an accurate summary

of California case law on implied consent. California

implied consent is not an independent exception to the

Fourth Amendment’s warrant requirement. Harris,

234 Cal. App. 4th at 685-89. These laws do not convey

authority to search. Petitioner’s voluntary consent

would not be necessary otherwise. Because California

implied consent does not impute authority to conduct

a blood draw, voluntary consent must be obtained. It

cannot be said that the officer’s statement requiring

submission to testing could alone lawfully compel or

justify the subsequent blood draw.

Fourth, the Balov Court’s reliance on the existence

of the implied consent law is misplaced, given the facts

of Petitioner’s arrest. The officer did not assert he was

acting under implied consent, nor mention it in any

way. All the officer said was “per California law.” App.

at 8. The officer also did not act in compliance with the

implied consent statute. App. at 10. None of the statements or actions made by the officer reflect Petitioner

was given an implied-consent choice.

Properly applying precedent on consent-by-assertion, including Bumper, the officer’s statement to Petitioner requiring submission, in effect, announced

Petitioner had no right to refuse. Petitioner’s submission was not voluntary. No objectively reasonable innocent person would conclude refusing the officer’s

command was an option. Petitioner’s lack of objection

does not remove the taint of the officer’s coercion. “[F]or

constitutional purposes nonresistance may not be

equated with consent.” LaFave, supra (quoting United

States v. Most, 876 F.2d 191, 199 (D.C. Cir. 1989)).

The Court of Appeal’s determination that the officer’s statement was not an assertion of authority requiring Petitioner’s submission is contrary to nearly

100 years of this Court’s precedent, and clearly wrong.

B. The statutory DUI admonishment functions as a curative measure necessary

to establish voluntary consent following

an officer’s command to submit.

Both the Court of Appeal and Appellate Division

rejected the officer’s failure to properly admonish Petitioner of the consequences of refusal as a coercive factor. App. at 9-10; App. at 17-18. That conclusion was

additional error, stemming from citation to inapplicable precedent; specifically, Schneckloth, Watson, and

Drayton.

Officers are required to admonish a DUI arrestee

of the consequences of refusal, pursuant to CAL. VEH.

CODE § 23612(a)(1)(D) and (a)(4). App. at 28, 31. Subdivision (a)(1)(D) states, “The person shall be told that

[his] failure to submit to, or failure to complete the required breath, blood or urine tests will result in [listed

statutory penalties].”47 Id.

These statutory provisions inform the arrestee refusal is penalized and may be used against them in

court. More importantly, information is conveyed to the

arrestee, albeit indirectly, that refusal to submit to

chemical testing is an option. As discussed previously,

the role of DUI admonishments as an informative, rather than coercive, device has been recognized by a

number of other state courts. See infra at 18-19.

After his command to submit to testing, it is undisputed the officer did not give Petitioner the admonishment. Failure to properly admonish a DUI arrestee

is unlawful under SECTION 23612.

Considering the officer’s initially coercive statement and lawful duty to admonish, the cited precedent

does not address the need for the admonishment: to

cure the taint of coercion.

At the time of Petitioner’s arrest the admonishment read

“required chemical testing,” but was amended, effective January

2019. The amendment is irrelevant to this case.

1. Coerced consent must be purged of

the taint of coercion to be voluntary.

Bumper is not a per se rule rendering all consent

subsequent to coercion necessarily involuntary. In

adopting the totality of circumstances test for voluntariness, the Schneckloth Court considered the Bumper

holding. Schneckloth, 412 U.S. at 234. The Schneckloth

Court’s inclusion and discussion of Bumper rationally

implies a voluntariness analysis does not end when coercion presents. Consent must continue to be tested

within the entirety of the totality of circumstances,

even following a coercive statement by law enforcement.

This principal was applied in an implied consent

context by the Birchfield Court, where Petitioner

Beylund’s case was remanded for further determination of the voluntariness of consent after he was coercively told refusal itself was a crime. Birchfield, 136

S.Ct. at 2186.

Schneckloth and Bumper should be read harmoniously, “requiring a court to examine the circumstances

surrounding an assertion of lawful authority to search

to determine whether the consent was sufficiently independent of the assertion to remove its taint.” Valenzuela, 239 Ariz. at 304.

2. Information pertaining to refusal of

consent following an officer’s command to submit is a necessary curative measure.

This Court has rejected requiring officers to inform individuals of their right to refuse consent, in all

cases, to obtain voluntary consent. Schneckloth, 412

U.S. at 227 (“the government need not establish

knowledge of the right to refuse as the sine qua non of

an effective consent”); see also Drayton, 536 U.S. at 20607; Watson, 423 U.S. at 424-25. DUI arrests in implied

consent jurisdictions requiring an officer to inform the

arrestee of refusal present a scenario outside the reasoning of these holdings.

“Although the State is not normally required to

prove a defendant knew he had the right to refuse consent, [Supreme Court] cases from which this rule derives are materially distinguishable from [implied

consent arrest cases]: each involved officer conduct

that did not disclose the subject’s right to withhold consent, but also did nothing to actively suggest the subject had no such right.” Medicine, 865 N.W.2d at 498

(citing Drayton, 536 U.S. at 197-99); Ohio v. Robinette,

519 U.S. 33, 35-36; Schneckloth, 412 U.S. at 220.

In Schneckloth, Drayton, and Watson, the officers

all initiated contact with a commonplace request. See,

e.g., Schneckloth, 412 U.S. at 220 (Officer asks if he

could search vehicle); Drayton, 536 U.S. at 206 (Officer

asks “Mind if I check you?”); Watson, 423 U.S. at 82223 (inspector asks to look inside car). Officers do not

violate the Fourth Amendment merely by approaching

an individual and asking questions. Id. at 201 (citing

Florida v. Royer, 460 U.S. 491, 497 (1983)). None of the

officers initiated contact with a command to submit.

Additionally, Schneckloth, Drayton, and Watson

considered encounters where requiring information

about the right to refuse consent would be an artificial

restriction. Schneckloth, 412 U.S. at 229. In California,

there is a natural statutory requirement for officers to

discuss refusal. Additionally, officers are provided by

the California Department of Motor Vehicles with

forms containing this admonishment to give to DUI arrestees.48

Where officers request consent to chemical testing,

admonishment might not be necessary for voluntariness; and the Schneckloth line of cases remain clearly

applicable. But where the officer chooses to initiate

contact with a requirement to submit, following arrest,

absent an intervening circumstance, the need to inform the individual of the right to refuse becomes

paramount. Conveying information about the consequences of refusal alerts the arrestee that the state is

asking for cooperation rather than demanding it. See,

e.g., Olevik, 302 Ga. at 249.

Thus, where an officer initiates the encounter with

a requirement to submit following arrest, and the arrestee has a right to refuse blood testing, a DUI

California Department of Motor Vehicles Form DS-367 is

provided as a temporary driver’s license and contains the mandated DUI admonishment.

admonishment referencing refusal serves as a necessary curative measure. However, silence following that

initial command becomes a factor in the coercion of

consent.

3. The Court of Appeal and Appellate

Division erred by rejecting the officer’s failure to comply with California law as a coercive factor

influencing consent.

Given the facts of Petitioner’s arrest, the Appellate

Division and the Court of Appeal’s reliance on Schneckloth, Drayton and Watson is misplaced. The officer required submission and had a natural duty to discuss

refusal. The two courts applied the holding of Schneckloth and/or its progeny without also applying the underlying rationale.

Unlawful failure to admonish must be considered

in context, under the totality of circumstances, with

the officer’s initial statement. When placed in context

with the initial statement, the officer’s subsequent silence was fatal to voluntary consent.

As the Drayton Court noted, “[p]olice officers ask

in full accord with the law when they ask citizens for

consent . . . the citizen [advises] the police of [their]

wishes and for the police to act in reliance on that understanding.” Drayton, 536 U.S. at 2114. This exchange

dispels inferences of coercion. Id. To apply Drayton’s

rationale to dispel inferences of coercion where the

officer both commands consent and acts contrary to the

requirements of law defies reasonableness.

While knowledge of the right to refuse may not be

the sine qua non of effective consent, the harmony

between Bumper and Schneckloth suggests such

knowledge may be a necessary counter to coercion. The

Court of Appeal and the Appellate Division erred in

their reliance on Schneckloth, Drayton and Watson;

and erred in holding the statutory DUI admonishment

was not a requirement for voluntary consent under the

circumstances.

The ruling of the Court of Appeal and Appellate

Division that Petitioner yielded voluntary consent to

blood sampling is wrong. The officer’s statement requiring submission was a clear assertion of authority

that no reasonable person would feel they could refuse.

In fact, under California law, officers do not have authority to require submission to blood testing. Under

the Bumper line of cases, Petitioner’s subsequent consent was not voluntary.

The officer’s unlawful silence after that statement

was a contributor to coercion. The Court of Appeal and

Appellate Division determined that silence was not a

contributing factor based on precedent inapplicable to

the facts.

Certiorari is warranted to address the decisions of

the Court of Appeal and Appellate Division, not only

for their contribution to the conflict between the lower

courts regarding implied consent, but because they run

contrary to this Court’s doctrine.

III. THE QUESTION PRESENTED IS ONE OF

SUBSTANTIAL AND RECURRING IMPORTANCE.

The decisions in Petitioner’s case depart from this

Court’s doctrine and widen state court tension over implied consent, warranting certiorari. The need for review is also imperative to curtail future harm to the

citizenry’s Fourth Amendment rights. Petitioner’s case

presents an ideal vehicle to address these issues.

Petitioner’s Fourth Amendment violation is, rationally, a recurring and likely substantial problem; at

least in numbers warranting certiorari. California reports high annual DUI arrest totals. Other California

courts have reviewed similar DUI arrest scenarios. See

infra at 22-23. The Gutierrez Court acknowledged the

everyday occurrence of arrests similar to Petitioner’s.

See infra at 23.

There are no statistics showing exactly how many

California DUI arrests fail to conform to the requirements of the state’s implied consent law. However,

because of the Balov and Gutierrez holdings, there is

continuing authority for police to use coercive tactics

to obtain motorists’ consent to blood draws.

The degree of intrusion contributes to the problem. Coerced consent blood draws unconstitutionally

subject motorists to a uniquely intrusive search. “Blood

draws are a significant bodily intrusion.” Birchfield,

136 S.Ct. at 2178. Moreover, they “place in the hands

of law enforcement authorities a sample that can be

preserved and from which it is possible to extract

information beyond a simple BAC reading.” Id. Special

judicial scrutiny of consent to DUI blood draws is required given the high degree of intrusion.

The facts of Petitioner’s arrest make interpretation of his consent nationally significant. Petitioner’s

arrest was remarkably unremarkable. Petitioner had

no prior experience with DUIs. The arrest was an everyday factual scenario. Further, California implied consent law is comparable to the nation’s implied consent

laws, generally. Review of Petitioner’s case would have

widespread applicability making it an ideal vehicle to

address the question presented.

Review would further the rule of law. Petitioner’s

motion to suppress was based upon unlawful officer

conduct. If the officer had followed California law, this

Court’s precedent and the general views of the majority would better support a finding Petitioner gave voluntary consent.

There are no facts suggesting necessity drove the

officer to violate California implied consent law. “[T]he

Constitution requires the sacrifice of neither security

nor liberty.” Schneckloth, 412 U.S. at 225. The officer’s

failure to comply with California law offered no benefit

to state security but certainly encroached upon Petitioner’s freedom.

The question presented does not reach what officers must do to obtain voluntary consent. Rather, the

question presented asks if there is a minimum bar set

for officer conduct when attempting to obtain voluntary consent; specifically, for blood testing from DUI

arrestees. In Mitchell, this Court considered what police officers may do in a narrow category of cases.

Mitchell, 139 S.Ct. at 2531. Here, the question presented considers what officers may not do in a broader

category of cases. Identifying a minimum bar applicable to DUI arrests would preserve federal policy and

voluntary consent jurisprudence.

For the aforementioned reasons, Petitioner’s case

presents an ideal vehicle for deciding the question presented. Respectfully, certiorari should be granted.

------------------------------------------------------------------

CONCLUSION

For the aforementioned reasons, Petitioner respectfully requests this Court grant certiorari.

November 26, 2019

Respectfully submitted,

DAVID S. WILSON

Counsel of Record

105 West “F” Street, 3rd Floor

San Diego, CA 92101

Telephone: (719) 522-3378

dwilson@dswilsonlegal.com

Counsel for Petitioner

GRETCHEN C. VON HELMS

105 West “F” Street, 3rd Floor

San Diego, CA 92101

Telephone: (619) 239-1199

gvh@ronisandronis.com

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.