P. v. Clemens
Filed 5/30/06 P. v. Clemens CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Siskiyou)
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THE PEOPLE, Plaintiff and Respondent, v. STEVEN ANTHONY CLEMENS, Defendant and Appellant. | C048431 (Super. Ct. No. 041453) |
Defendant Steven Anthony Clemens was convicted by a jury of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)‑ ‑ count 1)[1] with three prior convictions of the same offense (§§ 23550, 23550.5), driving with a blood alcohol level (BAL) of 0.08 percent or more (§ 23152, subd. (b)‑ ‑ count 2) with three prior convictions of section 23152 (§§ 23550, 23550.5), and driving while his driver's license was suspended based on a conviction of section 23152 or 23153 (§ 14601.2, subds. (a), (g)‑ ‑ count 3). Defendant was sentenced to the midterm of two years in state prison on counts 1 and 2 (with count 2 being stayed) and a one-year concurrent county jail term with credit for time served on count 3.
Defendant appeals, arguing the trial court erred by instructing the jury that it could consider his refusal to submit to a chemical test as evidence of his consciousness of guilt, since the refusal was uttered prior to receipt of the warnings required by Miranda v. Arizona (1966) 384 U.S. 436, 444-445 [16 L.Ed.2d 694, 706-707]. The contention lacks merit because Miranda does not apply to an arrestee's responses to the routine police questioning that occurs in connection with administration of a chemical test to determine the BAL of an arrestee. (South Dakota v. Neville (1983) 459 U.S. 553, 560-562 [74 L.Ed.2d 748, 757-758] (Neville).) Consequently, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At 1:50 a.m. on July 24, 2004, Siskiyou County Deputy Sheriff Christopher McGrew came upon defendant's motor vehicle parked in the middle of the road at a railroad crossing even though the crossing was clear and no train was nearby. The lights were on and the engine was running, but defendant was passed out in the driver's seat, which he had reclined. Defendant smelled of alcohol, had difficulty performing field sobriety tests, and refused to submit to a breath test using a Preliminary Alcohol Screening device, stating he did not feel he would pass it. McGrew arrested defendant and told him he had to take either a blood test or breath test to determine his BAL. Defendant said he did not wish to take either test. McGrew informed defendant that the chemical test was required, and his blood would be extracted forcibly if necessary. McGrew transported defendant to a hospital, where for safety reasons his blood was drawn while still in handcuffs because defendant â€
