by Esmeralda Figueroa
On Tuesday afternoon, a motion to suppress evidence was denied by Judge Timothy L. Fall.
The defendant, Eric Andrew Nellett, is being charged with drunk driving, driving under the influence, and an enhancement for excessive blood alcohol content or refusal to be tested. On Tuesday afternoon, Defense Attorney Steven Plesser argued that his client did not consent to his blood being drawn, nor was he informed of his legal rights.
The prosecuting attorney called to the witness stand Officer Michelle Mizzi from the West Sacramento Police Department. According to Officer Mizzi, on November 23, 2016, she responded to a traffic accident involving a motorcycle. As Mizzi approached the scene of the accident, she noticed that the defendant was being assessed for injuries by American Medical Response. Mizzi stated that the defendant appeared to be injured. Officer Mizzi also alleged that the defendant seemed disorientated, slurred his words, and admitted he had “a little to drink.” Shortly after speaking with the defendant, Mizzi asked the defendant if he was willing to provide a blood sample. According to Mizzi, the defendant consented by indicating, “Anything to be helpful.”
During cross-examination, Mr. Plesser asked Officer Mizzi if she could recall the conversation she had with two officers at the scene prior to obtaining the defendant’s blood sample. Officer Mizzi replied, “Not specifically.” According to an audio recording, the two officers and Mizzi were reluctant to release the defendant. One of the officers indicated that if the defendant was admitted to the hospital, the hospital would administer pain killers, and the pain killers would ultimately affect the blood test. Plesser then asked Mizzi if she obtained the
defendant’s consent and advised him of his rights prior to obtaining his blood. Officer Mizzi admitted that she did not advise the defendant of his rights.
Audio recordings confirm that Officer Mizzi did not advise the defendant of his rights. The audio recording also confirms that the defendant did not consent to his blood being withdrawn.
Despite the evidence presented to Judge Fall, the motion to suppress was denied.
A trial setting conference is set for November 16, 2017, at 9am in Department 11.
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