Cal.6th: Implied consent from merely driving has to come from state supreme court, not this court; driver unconscious and blood drawn

Defendant was knocked unconscious in a car wreck, and the court finds the warrantless blood draw based on the consent mandated by statute since 1999 by merely getting a driver’s license was invalid. There was no manifestation of actual consent because he was unconscious. Implied consent is going to have to come from the state supreme court, not this court. People v. Arredondo, 2016 Cal. App. LEXIS 153 (6th Dist. Feb. 26, 2016)*:

If imputed consent is to be held sufficient to sustain a warrantless search, the holding will have to come from a court other than this one. We fear the Fourth Amendment could be left in tatters by a rule empowering the state to predicate a search on conduct that does not in fact constitute a manifestation of consent but is merely “deemed” to do so by legislative fiat. It is far from implausible, for example, that a legislative body—state or federal—might decree, in the name of public safety or national security, that the use of the mails, or the phone lines, or the internet—all of which rely to a greater or lesser extent on publicly owned property or facilities or publicly provided services—constitutes consent to search the contents of all communications thus conducted. Consent to search homes might be “deemed” to be given by anyone taking advantage of various publicly provided or subsidized privileges—like use of public utilities, libraries, or schools. Consent to search the person might be “deemed” to be given by use of a public sidewalk or occupancy of a public place.

Any journey down that path should be preceded by considerably more reflection and circumspection than we find in Harris I. Lest we lose sight of the competing considerations actually at stake, it bears emphasis that we are not holding that defendant could not be searched—only that he could not be searched without a warrant, unless he were shown to have actually consented to the search by word or deed, or the state established some other exception to the warrant requirement. The state is never powerless to secure a blood sample from a nonconsenting drunk driving suspect whose blood is reasonably believed to constitute evidence of driving under the influence. (See Pen. Code, § 1524, subd. (a)(13) [authorizing warrant “[w]hen a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code”].) All our holding means is that in the absence of facts sufficient to establish actual consent, or some other exception to the rule, the seizure must be supported by a duly issued warrant.