Cal.App.–Santa Clara: Even with implied consent, statute requires state carry burden of proof and they failed here

“After a thorough review of the record, which consists of undisputed facts pertaining to the motion, we hold that notwithstanding California’s implied consent law, which we recognize is a factor to be considered in the totality of the circumstances, the People failed to establish that Mason freely and voluntarily consented to the blood draw, as was their burden. While Mason was driving and using the state’s roads, whatever ‘deemed consent’ she had given to a blood draw in advance by virtue of the implied consent law and her use of the public roads did not amount on these facts to actual free and voluntary consent for purposes of the Fourth Amendment. And even if the scope of any advance express consent given under the implied consent law extended to a waiver of Fourth Amendment rights in a criminal prosecution, a conclusion we find doubtful, there was also a total absence of proof in the suppression hearing that Mason was licensed to drive in California or of the advance express consent she, in particular, is urged to have provided through obtaining a license. This absence of proof precludes the position posited by the People: that she had, in fact, provided advance express consent, subject to her showing that consent was withdrawn. Moreover, under Penal Code section 1538.5, the burden of proof remained with the People to affirmatively show actual free and voluntary consent as an exception to the warrant requirement. While the implied consent law ‘deems’ consent by drivers to a chemical test to have been given, it does not shift the burden in a suppression motion to require a defendant to show that advance ‘deemed’ consent, falling short of actual free and voluntary consent under the Fourth Amendment, has been withdrawn. Accordingly, we reverse and remand with directions to the trial court to grant Mason’s motion to suppress the results of the warrantless blood draw.” People v. Mason, 2016 Cal. App. LEXIS 1171 (App. Div. – Santa Clara Dec. 29, 2016) (released Feb. 21, 2017).