Filed 10/2/17 In re T.L. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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The minor T. L. appeals from the juvenile court’s order sustaining a Welfare and Institutions Code section 602 petition alleging he had committed driving under the influence of a drug (a misdemeanor), driving without a license, and driving without evidence of financial responsibility. The court placed the minor on six months’ probation. The minor claims the trial court erred in denying his motion to suppress the results of a blood draw taken without a warrant. Finding any error in the denial of the suppression motion to be harmless, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Suppression Hearing

On July 24, 2015, around 12:03 a.m., California Highway Patrol (CHP) Officers Michael Courtnier and Billy Aston were on duty in South Sacramento when they made a traffic stop on a vehicle playing music so loud it could be heard from about 100 feet away. The vehicle pulled over to the right shoulder and Officer Courtnier contacted the driver, the minor. Four other teenagers were passengers.

The minor could not produce a driver’s license or proof of insurance. Officer Courtnier asked the minor his date of birth and learned that he was 17. The minor’s speech was slurred, he had red, watery eyes, and he behaved “[in]appropriately.” Based on his education, training, and experience, Officer Courtnier thought the minor was under the influence. After smelling burnt marijuana in the vehicle, Officer Courtnier asked the minor whether he had used drugs or alcohol. The minor denied drinking alcohol but admitted having smoked marijuana. Asked if he felt the effects of marijuana, the minor admitted he did.

Officer Courtnier next had the minor perform several field sobriety tests. The minor could not perform a one-leg stand test; he told Officer Courtnier, “I fucked up, I’m fucked up, I can’t do this.” The minor also failed the convergence test; his eyes did not converge when Officer Courtnier moved his finger from four to six inches from the minor’s eyes to his nose. Officer Courtnier also conducted a modified Romberg test, where the subject is asked to stand with his feet together and hands by his side, and told to tilt his head back, close his eyes, count for 30 seconds, and then open his eyes and say that he is finished. The minor could not perform the test, opening his eyes, losing count, and, after swaying, separating his feet in order to maintain balance. The minor was also unable to count in order while touching his thumb to the tips of his fingers; he counted randomly and could not touch his thumb to his fingertips. Following the failed tests, Officer Courtnier arrested the minor for driving under the influence of drugs.

Officer Courtnier told the minor that, because he believed the minor had used drugs, “the only test that you’re able to do is blood, okay.” Asked if he was okay with taking a blood test, the minor replied, “I don’t know,” and he wanted to talk to his mother. Officer Courtnier told the minor it was not up to his mother, and that if the minor did not consent to a blood test, then “because you were driving, we’re gonna call a judge, if you don’t want to do it, we’re gonna have to issue a search warrant. And then we’re gonna hold you down and we’re gonna get your blood, okay. All right, have a seat.”

Following the minor’s arrest, the officers looked inside the vehicle and found several Mason jars with marijuana residue and one Mason jar with marijuana. A frisk of the minor found no contraband. He was then transported to the CHP station for a drug recognition evaluation.

Officer Aston, a trained drug recognition expert, smelled marijuana as he approached the minor’s car and saw Mason jars containing marijuana inside the vehicle. At the CHP station, he explained the implied consent law to the minor and that the blood test was the only option in the case of suspected driving under the influence of drugs. Officer Aston conducted the drug recognition evaluation of the minor and formed the opinion that the minor was under the influence of marijuana. He told the minor that, since he was driving under the influence, he was required by California law to submit to a blood test. The minor then agreed to submit to a blood test.

The drug recognition evaluation took 30 to 45 minutes. The minor’s blood was drawn at 2:22 a.m. Officer Aston’s drug evaluation was completed about an hour before the minor’s blood was drawn. No parent or guardian was present at the CHP station. The minor was taken home following the blood draw.

The juvenile court found the stop was supported by reasonable suspicion that the loud music from the vehicle violated Vehicle Code[1] section 27007. The minor displayed signs of driving under the influence. He was advised of the implied consent law, and, while he did not give consent to Officer Courtnier, he told Officer Aston that he consented to a blood test. Neither officer advised the minor of the adverse consequences of refusing to submit to a test, as outlined in section 23612, subd. (a)(1)(D), or that his refusal could be used against him in a court of law. However, since the driver was a minor, much of that statute did not apply, being superseded in this situation by section 13202.5, which states the minor’s refusal would cause a one-year delay of his driver’s license being issued. The minor was informed he could refuse chemical testing, since he was told refusal would lead the officer to obtain a search warrant, followed by a forced blood draw. While the minor asked for his mother, he had no legal right to talk to a parent before deciding about chemical testing. Although the officer did not apprise the minor of the adverse consequences of a refusal, this violation of state law did not rise to a constitutional violation that mandated suppression.

Based on the totality of the circumstances, the court held that the minor’s consent was voluntary, rendering the blood draw lawful under the Fourth Amendment.

Hearing On The Petition

Officer Courtnier gave testimony similar to his suppression hearing testimony about the traffic stop and his interactions with the minor, including the smell of freshly burned marijuana in the vehicle, the minor’s red, watery eyes and slurred speech, his admitting to having smoked and being under the effects of marijuana, and the minor failing the field sobriety tests.

A criminalist for the Sacramento District Attorney’s Office testified as an expert on forensic toxicology and the effects of methamphetamine and marijuana. The minor’s blood tested positive for amphetamine, methamphetamine, and the chemicals associated with marijuana. Based on the levels of drugs found in his blood and the signs and symptoms related in the police report, the expert concluded that the minor was impaired for the purposes of driving.

Officer Aston testified as an expert in drug recognition and drug impairment. He conducted a 12-step drug recognition evaluation of the minor. The minor’s performance of the field sobriety tests were consistent with the minor being impaired while driving. Based on factors from the drug recognition evaluation, the strong odor from the minor’s person, his impairment on the field sobriety tests, his pupils being dilated, an elevated blood pressure, his admitting to being under the effect of marijuana, and the presence of marijuana in the minor’s vehicle led Officer Aston to conclude that the minor was impaired with marijuana.

DISCUSSION

On appeal, the minor contends the juvenile court committed reversible error in denying his suppression motion because there was no substantial evidence he consented to the blood test.

We need not reach the issue of the minor’s consent because any error in denying the suppression motion is harmless beyond a reasonable doubt.[2]

Even without the blood test results and the resulting expert testimony, there was overwhelming evidence--including additional expert testimony--that the minor was driving under the influence of marijuana. Although the minor was stopped for the loudness of his car stereo rather than his driving, his initial encounter with Officer Courtnier provided ample evidence of his marijuana use: the car’s interior smelled of marijuana, and the minor had red, watery eyes, slurred speech, and behaved “[in]appropriately.” The minor then confirmed the suspicion by admitting he had used marijuana and was under its influence, and by failing numerous field sobriety tests. Officer Aston, a drug recognition expert, conducted a drug recognition examination of the minor, and concluded, without relying on the blood test, that the minor was under the influence of marijuana and impaired at the time he was driving.

The proof provided by the blood test was cumulative to this evidence. It confirmed that the minor had consumed marijuana, a fact he admitted to Officer Courtnier. It also provided one of the reasons for the criminalist’s opinion that the minor was under the influence of marijuana, an expert opinion that was cumulative to Officer Aston’s. Since the allegation was for driving under the influence of marijuana rather than alcohol, the People did not have to prove that the minor had a particular concentration of marijuana in his blood.

The erroneous denial of a suppression motion is subject to the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. (People v. Moore (2011) 51 Cal.4th 1104, 1129.) Had the juvenile court granted the suppression motion and heard the case without evidence of the blood draw results, we are convinced beyond a reasonable doubt that the juvenile court would still have sustained the driving-under-the-influence allegation. Any error in denying the motion is therefore harmless.

DISPOSITION

The judgment is affirmed.

/s/

Robie, J.

We concur:

/s/

Nicholson, Acting P. J.

/s/

Duarte, J.