Judge Rules Disabled Man’s Blood Test Taken Consensually – Case Goes to Trial

By Michael Wheeler

SACRAMENTO, CA — Both the defense and prosecution agreed here in Sacramento County Superior Court this week that the defendant had driven his car into someone’s garage.

But, whether or not a blood test taken to measure his blood alcohol content at UC Davis Medical Center was taken legally was in sharp dispute.

Ultimately, Judge Kara Ueda agreed with Deputy District Attorney Emilee Divinagracia, overruling the defense’s motion to have the blood test dismissed from the record. She also concluded that the larger DUI case had sufficient evidence to proceed to trial.

The defendant suffers from a condition called neurodegeneration with brain ion accumulation. This causes his muscles to tighten and makes speech very difficult, forcing him to rely upon an iPad for extended communication.

On the evening of June 5, 2019, the defendant was driving in Sacramento when, at the corner of U and 10th Streets, he did not stop at a stop sign before crashing into the garage of a nearby house.

According to an account recorded in the police report of Sacramento Police Dept. Officer Jeffrey Bosnich, a witness observed the van “come flying around the corner from eastbound U Street to northbound 10th Street and drive into the side of the house.”

The vehicle had been traveling at 40 miles per hour, above the speed limit of 25 or 30 miles per hour as stated by Officer Mark Williams. The van suffered “moderate damage,” while damage to the house came out to $38,053.

Williams stated that there was a “big enough hole of the garage, pretty sure that was the garage on the west side, to pretty much park a minivan in there.”

The young child of the homeowners happened to be in the garage at the time of the wreck, with the van “striking her, knocking her down to the ground.” According to Williams, the child suffered nerve damage in her ankle.

Following the crash, the ensuing events were a matter for fierce debate.

The defendant was retrieved from the vehicle by firefighting personnel, who placed him upon a gurney under supervision of EMTs. Under questioning from DDA Divinagracia, Williams stated that as “soon as [he] approached him on the gurney [he] got an immediate odor of alcohol emitting from his breath or body.” Furthermore, the defendant had told him that he had had “a little bit” of alcohol that evening.

Because of the defendant’s disability, the only field sobriety test Williams ran was a horizontal gaze nystagmus test. He stated that “all cues were present” that the defendant had a blood alcohol content higher than .08.

Assistant Public Defender Courtney Zane sharply challenged why Williams had only performed the one test during his initial investigation, asking, “Without knowing any details about [the defendant’s] disability or the medication he takes, you made the assumption that he could perform the HGN test, is that right?”

The officer replied that he had performed the test and that the defendant had been able to follow his instructions.

But the PD asked, “But you didn’t ask him questions like, ‘Do you have a lack of smooth pursuit in your eyes on a regular basis?’”

Williams again did not directly answer the question, and Zane tried again.

“Sir, if he’s taking his medication and not driving, all my question is, ‘are you aware that [the defendant] suffers from HGN, either from medication or otherwise?’” Williams denied that he was aware of anything which the defendant might suffer from.

This exchange set the tone for the rest of the hearing.

Upon arriving at UC Davis Medical Center, a blood sample was taken from the defendant to test his blood alcohol content, because a breathalyzer was not available—the blood sample indicated that the defendant had a 0.14 blood alcohol content level.

Williams stated twice that he explained the concept of implied consent to the defendant, and that he had obtained affirmative consent for a phlebotomist to perform a blood test.

“The first time when it was explained to him, you could tell he looked very upset and distraught, and he just nodded his head up and down yes. When the phlebotomist got there I explained it again and at that time he just surrendered, put his arm out for the phlebotomist,” the officer explained.

The defense strongly contested this narrative of events.

Testifying in defense of himself, the defendant stated that he had not been able to legitimately answer Williams as to whether he had had anything to drink that evening. He also told the court Williams had said nothing to him at the hospital and Williams had been down the hall at the admissions desk while he was there.

The defendant’s testimony was crucial to the defense’s argument.

The defendant said that he had been under the impression that taking blood was standard hospital procedure. Furthermore, he said that the phlebotomist told him, “You know we have to do this.” He also contested Williams’ account that he had nodded his head to consent to the blood draw, as he had been lying on a hospital bed and was physically unable to nod his head when positioned that way.

Assistant Public Defender Shakira Jones argued that “consent needs to be freely and voluntarily given,” and that based on the defendant’s testimony this standard had clearly not been reached.

Furthermore, she argued that Williams had not recorded the defendant’s consent in his police report, but instead only filled in the details in an email exchange with an attorney which took place in October 2020.

Jones cited People v. Laney (1981) as an important precedent, noting, “The court stated that the absence of evidence to the contrary cannot be presumed that individuals under arrest can reasonably construe a direction from an arresting officer that they must take some action as to whether or not they will voluntarily do it. And here, [the defendant] thought that it was just something he had to do, that it was hospital policy… Just assenting to a blood test does not mean he consented to a blood test.”

Divinagracia strongly disagreed, saying, “I would just say, judge, that this case is wholly factually different from the case cited by defense.”

She argued that consent was freely and voluntarily given, and that the defendant “has every motive to lie,” adding that “it’s just quite convenient, that, oh no, it’s not that I forgot, it’s that it just never happened, as that would paint the officer in a less credible light.”

Following a short recess, Judge Ueda ruled that the blood test had occurred in a consensual manner, denying the defense’s request to omit it from the record.

She also found it likely that the defendant was guilty of both counts against him, driving under the combined influence of alcohol and a drug and driving with a blood alcohol content of .08, during both of which he made an illegal turning movement.

And as a result of the injury to the child during the crash, a felony great bodily injury sentencing enhancement also was added.

The defendant plans on fighting these charges. He will return to court on July 8 for a trial readiness conference and his trial is scheduled to begin on March 17, 2022.

Michael Wheeler is a junior at UC Davis, where he studies History and Economics. He is from Walnut Creek, California.

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