People v. GutierrezAnnotate this Case
Concord police officer Wilson was dispatched to a parking lot where a truck was seen “doing a burn-out.” Wilson found the parked truck with Gutierrez asleep in the driver’s seat. Gutierrez produced a Mexican consular identification card. Gutierrez had no valid California driver’s license. Wilson smelled alcohol on Gutierrez’s breath and noticed watery eyes and a slight slur to his speech. Gutierrez admitted to drinking several beers. With the aid of a Spanish-speaking police officer to translate, Wilson administered field sobriety tests. Concluding that Gutierrez had been driving under the influence of alcohol, Wilson placed him under arrest. The officers informed Gutierrez that the law required him to submit to a blood or breath test. Gutierrez chose the blood test. A phlebotomist arrived to draw Gutierrez’s blood. Gutierrez did not resist. Neither officer informed Gutierrez that if he refused both tests, he could face penalties under California’s implied consent laws. Gutierrez was charged with misdemeanor driving under the influence of an alcoholic beverage and driving a motor vehicle without a valid license. Gutierrez successfully moved under Penal Code 1538.5 to suppress all evidence obtained from a blood draw. The court of appeal reversed, citing the exception to the warrant requirement for a search incident to arrest. The element of choice is dispositive; if a DUI suspect freely and voluntarily chooses a blood test over a breath test then the arresting officer does not need a warrant to have the suspect’s blood drawn.