P. v. Mino

Filed 5/11/06 P. v. Mino CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the James Patrick Marion, Judge. Affirmed.

Law Office of E. Thomas Dunn, Jr., and E. Thomas Dunn, Jr., for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Michael John Mino was convicted by a jury of (1) vehicular manslaughter by an unlawful act without gross negligence, in violation of Penal Code section 192, subdivision (c)(3); (2) driving under the influence causing bodily injury, in violation of Vehicle Code section 23153, subdivision (a); and (3) driving with a blood alcohol level of .08 percent or more, causing bodily injury, in violation of Vehicle Code section 23153, subdivision (b). Defendant contends the trial court erred by denying his motion to suppress the results of a blood test showing defendant's blood alcohol level at .118 percent on the night of the collision. He argues his motion should have been granted because the test was not conducted incident to a lawful arrest, was not justified by probable cause, and was not the product of a valid consent. Defendant further argues that had the blood test results been suppressed, substantial evidence otherwise presented at trial did not show he was under the influence of alcohol or he failed to yield to pedestrians.

We affirm. It is not unreasonable under the Fourth Amendment to the United States Constitution to obtain a blood sample from a driver who is not under arrest, as long as probable cause exists to arrest that person for driving under the influence of alcohol and the blood sample is obtained in a medically approved manner. Substantial evidence presented at the preliminary hearing and at the hearing on defendant's motion to suppress supported the trial court's conclusion that probable cause existed to arrest defendant for driving under the influence of alcohol. Defendant does not contend the blood sample was obtained in any way other than a medically approved manner. Because we conclude the trial court did not err by denying defendant's motion on the ground there was probable cause to arrest defendant for driving under the influence of alcohol, we do not need to decide whether the record supports the finding that defendant voluntarily consented to the blood test. Because that evidence related to defendant's blood test results was admissible at trial, we do not need to decide whether substantial evidence presented at trial, absent the test results, would have otherwise supported the jury's findings that defendant drove under the influence of alcohol and failed to yield to pedestrians.

FACTS[1]

At 6:50 p.m. on March 4, 2003, defendant drove his truck through the intersection of Red Hill Avenue and Olwyn Drive, and struck two young men who were crossing the street in a crosswalk. One of the young men was pronounced dead at the scene, while the other was transported to the hospital.[2] That night, the road conditions were wet (it had been raining earlier in the day), the lighting conditions were dark, and both victims were wearing dark clothing.

Sergeant David Kreyling, a peace officer for the City of Tustin, responded to the scene. Kreyling had conversations with defendant at the scene--a â€