E.D.Cal.: “probable cause does not require the best conceivable evidence”

“In defendant’s case, he was arrested for a violation of § 4.23(a)(1), permitting a BAC test as a search incident to arrest under Birchfield. Although there is a distinction between the concentration of alcohol in the blood and the degree of driving impairment caused by alcohol, the distinction does not justify the rule that defendant seeks. Defendant may be correct that field sobriety tests would have been better evidence of BAC than the evidence that the rangers were able to collect. But probable cause does not require the best conceivable evidence. I decline defendant’s invitation to return us to a pre-Birchfield state of affairs, in which refusal to submit to testing (this time around, field sobriety tests) could allow evasion of drunk-driving controls. Since there was probable cause for defendant to be arrested for impaired driving under § 4.23(a)(1), a breath test search incident to that arrest is proper under Birchfield without a separate probable cause finding tied more closely to BAC, and defendant’s motion must be denied.” United States v. Dysthe, 2020 U.S. Dist. LEXIS 182384 (E.D. Cal. Sept. 30, 2020).