Cal.App.Div. discusses McNeely and the warrant requirement in DUI cases at length, but concludes defendant consented. People v. Harris, 225 Cal. App. 4th Supp. 1 (April 11, 2014):
No California court has expressly considered the question of whether chemical tests taken pursuant to the implied consent law are justifiable under the Fourth Amendment as consent searches; before McNeely, none has had to. While in decades past it was declared that “[t]he California ‘implied consent’ statute [citation][footnote] has repeatedly withstood assault on constitutional grounds” (Anderson v, Cozens (1976) 60 CaLApp.3d 130, 139), and in particular that the statute does not violate one’s right “to be free from illegal searches and seizures” (id at pp, 140-41; Westmoreland v. Chapman (1968) 268 CaLApp.2d I, 4; Bush v. Bright (1968) 264 CaLApp.2d 788, 790), these cases simply cite Schmerber as authority, and it is easy to see why they did. The Legislature first enacted California’s original implied consent law shortly after the decision in Schmerber, with the goal of limiting the number of ‘””unpleasant, undignified and undesirable””‘ forced blood draws. (Ritschel v. City of Fountain Valley (2006) 137 Cai.AppAth 107, 117-18 (Ritschel) [quoting Hernandez v. Department of Motor Vehicles (1981) 30 Ca1.3d 70, 77].) And so even though the implied consent law has never been considered a simple codification of Schmerber, and compliance with the more strict provisions of the implied consent law has never been a necessary prerequisite for constitutionality (id. at pp. 118-20), the two strands ran in parallel under the longstanding California interpretation of Schmerber (see Mercer, supra, 53 Cal.3d at p. 760 [noting that the implied consent law “is an adjunct to” Schmerber]), such that any chemical test taken cooperatively pursuant to the implied consent law would have also been constitutionally permissible as a forced test had the person refused to cooperate (see Sugarman, supra, 96 CaLAppAth at p. 214 [observing that by statute drivers impliedly consent to chemical testing if they are arrested for DUI, and also that under Schmerber drivers arrested for DUI may be forced to undergo a blood test]). Implied consent tests were simply a subset of all Schmerber tests, in other words. But McNeely forces a reexamination of the constitutional basis for the implied consent regime by narrowing the circumstances under which a forced chemical test is justified, such that a warrantless test in the absence of case-specific exigent circumstances can comply with the statute if done cooperatively, but now violates the Fourth Amendment if done forcibly. For the reasons discussed below, we hold that chemical tests performed in compliance with the implied consent law satisfy the Fourth Amendment as consent searches, independently of Schmerber-McNeely.
To divorce the constitutionality of the California implied consent law from the Schmerber rule is consistent with the pronouncements of the United States Supreme Court and federal law. Since at least the early 1980’s, the high court has recognized that the sort of forced blood draw authorized under Schmerber is categorically different from a blood draw that an arrestee consented to under the persuasion of an implied consent law. (See McNeely, supra, 133 S.Ct. at p. 1566 (plur. opn. of Sotomayor, J.); South Dakota v. Neville (1983) 459 U.S. 553, 559-60 (Neville).) Similarly, the Ninth Circuit has recognized that chemical tests done in accordance with the implied consent law for federal lands are legally distinct from forcible tests under Schmerber — the two categories result from the two alternative avenues available to law enforcement for obtaining the evidence. (United States v. Chapel (9th Cir. 1995) 55 FJd 1416, 1419-20.) Furthermore, an evolving understanding of the constitutional basis for California’s implied consent statute is right at home in the history and development of the law regarding chemical tests in DUI cases. The California Supreme Court first approved warrantless, forced blood draws in DUI cases on the ground that they were searches incident to arrest. (People v. Duroncelay (1957) 48 Cal.2d 766, 771-72.) The following decade, the United States Supreme Court followed suit and in Schmerber found that the warrantless, forced blood draw in that case complied with the Fourth Amendment as “an appropriate incident to petitioner’s arrest.” (Schmerber, supra, 384 U.S. at pp. 770-71; accord Hawkins, supra, 6 Cal.3d at p. 761.) But despite the Schmerber court’s own characterization of its holding, its conclusion “did not turn on the existence of a valid prior arrest. To the contrary, the court relied almost exclusively on the exigency created by the evanescent nature of blood alcohol and the danger that important evidence would disappear without an immediate search.” (People v. Trotman (1989) 214 Cal.App.3d 430, 436.) Today, the Schmerber rule is fully understood to be an application of the exigent circumstances exception to the warrant requirement. (McNeely, supra, 133 S.Ct. at pp. 1558-60.) Likewise, in light of the entire body of law as it has developed over the decades, it is no great innovation to say that implied consent is legally effective consent, at least so long as the arrestee has not purported to withdraw that consent. Indeed, other California courts have impliedly held this understanding. In Fiscalini, supra, 228 Cal.App.3d at pp. 1641, 1645, Division One of the Fourth District Court of Appeal construed the defendant’s choice of a urine test under the version of the implied consent law then in effect as resulting in a urine sample “obtained … with his consent.” More recently, in People v. Cuevas (2013) 218 Cal.App.4th 1278, 1286 & fu. 3 (Cuevas), Division One of the First District Court of Appeal spoke of defendants who chose blood tests has having given “consent under California’s implied consent law.” This view also comports with the Legislature’s apparent view as to the nature of the statute, as expressed in the clause that a person who is dead, unconscious, or otherwise incapable of refusal “is deemed not to have withdrawn his or her consent and a test or tests may be administered ….” (§ 23612, subd. (a)(5).)
. . .
This is not to say that a driver arrested for DUI can be said to have consented to a forcible blood draw in contravention of his then-expressed wishes in the event he purports to withdraw his consent. Setting aside the question of constitutionality (see McNeely, supra, 133 S.Ct. at p. 1566 (plur. opn. of Sotomayor, J.) [suggesting that a driver’s refusal to submit to a chemical test under an implied consent law operates as a withdrawal of consent and renders any subsequent test nonconsensual]), there is nothing in the implied consent law to indicate that such measures are within the scope of the consent, and so in these cases the implied consent law gives way to the constitutional rules of Schmerber and its progeny (see Ritschel, supra, 137 Cal.App.4th at pp. 118-20). But it does mean that such a person who cooperates with a chemical test pursuant to the implied consent law has given real and voluntary consent, excusing police from obtaining a warrant. This is exactly what happened in this case. After the officer informed him that he was required to submit to a blood draw, defendant responded “okay.” Later, at the police station, all indications are that defendant went along with the blood draw through to its completion. He never, at any point, gave either the slightest resistance or suggestion that he wished to revoke his consent. Under the legal principles discussed above, defendant’s positive cooperation with the blood draw therefore constituted valid Fourth Amendment consent.
