This is the depub letter I penned for the California DUI Lawyers Association regarding the odious People v. Cuevas case, a post-McNeely opinion that did not dare mention McNeely because the Court of Appeal had a guilty conscience about the long-standing disregard of the U.S. Supreme Court's standards for drawing blood in DUI arrest settings. There is no greater, or more significant, lawlessness in our society than that practiced regularly and arrogantly by the Courts of this State.
THE HONORABLE CHIEF JUSTICE
To the Honorable Court:
MICHAEL J. KENNEDY
Attorney at Law
For California DUI Lawyers Association
THE HONORABLE CHIEF JUSTICE
AND THE HONORABLE ASSOCIATE JUSTICES
The Supreme Court of the State of California
350 McAllister Street
San Francisco, CA 94102
RE: Letter Brief Requesting Depublication, of People v. Cuevas (2013) 218 Cal.App.4th 1278 [A138062], from the Court of Appeal, First District, Division One.
The California DUI Lawyers Association [CDLA] respectfully prays that this Honorable Court depublish the above-referenced case on the grounds delineated below. CDLA is a professional association [non-profit corporation] of over 400 California lawyers whose practice is largely or exclusively devoted to the constitutional defense of people accused of driving under the influence of alcohol. The organization puts on MCLE program devoted to that subject matter and sponsors seminars and other training opportunities for attorneys practicing in the field. We have an internet list server whereby we communicate among ourselves about various subjects and developments in DUI law and practice, and we are devoted to educating the public, the judiciary, the legislature, and each other about various matters associated with the often misunderstood area of DUI law, the political pressures about which from various lobbying and propaganda organizations tends to result in those accused of DUI being treated rather differently and more harshly in and by the criminal justice system than those accused of other crimes. It is to help remedy that disparate treatment that we implore this Honorable Court to depublish the subject case. (Rule 8.1125, California Rules of Court [CRC].)
We have attached the official version of the case issued by the Court of Appeal, which first issued it July 31, 2013, but which then published it on August 15, 2013. (Citations herein shall be to that attached official opinion, denoted as “Opinion.”) We are thereby timely in this pleading.
Before we troop too far into the issues, it is to be recalled that even though the touchstone for Fourth Amendment analysis is “reasonableness” judged by the totality of the circumstances [the latter having been given birth only in the 1970’s] (Ohio v. Robinette (1996) 519 U.S. 33, 39), the critical definer of the meaning of that reasonableness is sometimes less attended to: “Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ ‘The burden is on those seeking the exemption to show the need for it.’ In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won -- by legal and constitutional means in England, and by revolution on this continent -- a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.” (Coolidge v. New Hampshire (1971) 403 U.S. 443, 454-455 [internal cites and quotes omitted].)
The High Court did not hold that the per se unreasonableness of warrantless liberty invasions does not apply to drunk driving arrests and evidence collections, nor, as some would propose, is disassociated from the quality of a blood draw for drunk driving evidence collections. You see, when one comes at you with a needle to stab you to draw your blood, without established constitutional propriety, that is an assault, a battery, and even an ADW. (People v. Lema (1987) 188 Cal.App.3d 1541, 1545, In re Jose R. (1982) 137 Cal.App.3d 269, 275-276.)
So, the party who seeks to warrantlessly stab a person to collect evidence must justify the action.
In Cuevas, the Court of Appeal ordered the transfer of seven appellate division cases from the Superior Court of Alameda County to itself. The appellate division cases had all ruled in favor of drunk driving defendants that their respective warrantless blood draws were unreasonable under Schmerber v. California (1966) 384 U.S. 757 [Schmerber]. More correctly, however, those cases had found that the government did not carry their burden that the blood draws were reasonable – the presumption is that they are not. (See supra.)
There were seven drunk driving cases proceeding through the system, and the defendants brought Penal Code section 1538.5 motions against the warrantless blood draws, incident to their arrest for drunk driving. (Opinion, page 2.)
At the hearings, the people who drew the blood did not testify; the only testimony on the issue of the nature of the blood draws were the officers who were present for the events; none of the officers were themselves qualified to draw blood [apparently]. (Opinion, page 3.) On 2-1 decisions on all seven cases, the appellate division panels found that the government did not satisfy their burden that the blood was drawn in a constitutionally reasonable manner. (Opinion, page 3.)
The Court of Appeal affirmatively reached down and brought those pro-defendant cases up to itself and reversed all seven holdings, siding with the dissent in all opinions. (Opinion, pages 3, 8-9.)
Cuevas was issued in the wake of Missouri v. McNeely (2013) 569 U.S. --- [133 S.Ct. 1552], a case which is causing juristic dyspepsia in some quarters, because it puts drunk driving defendants back where they should always have been regarding the collection of evidence to be used against them in criminal trials. McNeely reminds all that the Fourth Amendment is as applicable to drunk driving defendants as to any other – the United States Supreme Court refuses to embrace the locally growing drunk driving exception to the Constitution.
It is most telling that Cuevas is the one McNeely case that does not mention McNeely. Why do you think that is? Because the renegade “medically approved manner” language manufactured by the California Courts (Cuevas, supra at page 1285) is not the standard of the United States Supreme Court. And as we have noted many times in many quarters, what the U.S. Supreme Court construes to be required by the U.S. Constitution is the supreme law of the land, regardless of what other authorities propose [as the contrary “Jim Crow” authorities of the old South found out]. (Cooper v. Aaron (1958) 358 U.S. 1, 18, citing and construing Art. VI, para 2, The United States Constitution.)
The standard required by the U.S. Supreme Court is clear [although purposely muddied by some]. That is, writing on the clean slate in 1966 about what must be done to detour the Warrant Clause to warrantlessly seize one’s blood, the U.S. Supreme Court clearly announced, inter alia:
…[T]he record shows that the test was performed in a reasonable manner. Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment -- for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. Schmerber v. California (1966) 384 U.S. 757, 771-772 [emphases added].
In McNeely, the Supreme Court somewhat naively presumed the States were heeding its rule about having these things done at a hospital according to “accepted medical practices” by real medical personnel. (McNeely supra @ Id.,133 S.Ct., 1559, 1560, 1561, 1563, 1565; then 1572, 1574 [Roberts, CJ, concurring and dissenting]; then 1577, 1578 [Thomas, J, dissenting].)
No one in the Supreme Court ever suggested, nor even hinted, that jailhouse blood draws by police contractors complies with Schmerber, nor that other than “accepted medical practices” is the standard, and there is much that suggests quite otherwise. (See, e.g., Schmerber, supra @771-772.) Indeed, I think the High Court would be outraged to learn that standards other than what they have decreed to be required under the Fourth Amendment have been practiced across the Fruited Plain, or that the sovereign’s representative is suggesting that the California Courts, which sit under the United States Constitution [Article VI, para. 2, The United States Constitution], should embrace a constitutional standard different from, and less than, what the Supreme Court has decreed.
The U.S. Supreme Court recently holds that “[i]n finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.” (McNeely, 133 S.Ct., 1560.) Those specific facts were a blood draw by a physician in a hospital.
What evidence exists that the blood draws here were according to any “accepted medical practices”? Accepted by whom? There was no evidence whatsoever on the subject at any of the hearings in the appellate division cases, other than policemen recounting what they inexpertly saw happen. Maybe a policeman can do a lookie-loo about how something is being drawn and testify that he has seen it be done that way before, but that does not satisfy the expert opinion needed for “accepted medical practices.” It is not all that clear that even a “certified” phlebotomist who has not been given a license to “practice” medicine is an expert on what “medical practices” are. Can a non-lawyer but licensed legal process server render an opinion of what “accepted legal practices” are, if he cannot “practice” law? Can you ever be an expert on what is a “practice” if you are not authorized to do that practice? Do mere and glorified lookie-loos become the testimonial conduits of professional expertise merely because they see what they think is the same thing they saw before?
Recall that the real question here is whether what occurred in drawing blood is according to “accepted medical practices.” (Schmerber, supra.) That is, by its own language, an area of professional expertise, which would axiomatically be governed by Evidence Code section 720. What evidence is there in any of the cases that someone with “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on [accepted medical practices]….” (Evidence Code section 720(a)) testified or otherwise supplied the requisite information? A conduit is no better than the quality of what it is conducting, and there was no input about how accepted medical practices had transmogrified from the days of Schmerber to allow blood collections by people and in places that the High Court itself strongly suggested were constitutionally problematic.
The Cuevas Court finds surcease in People v. Sugarman (2002) 96 Cal.App.4th 210, where the Court held that an officer saying he saw a nurse [sic!] draw the blood in a hospital [sic!] sufficed regarding the “medically approved manner” issue. (Cuevas, Opinion, page 7, citing Sugarman, supra at page 214.) “Nurse” and “hospital” veers close to the Schmerber standard (although “medically approved manner” does not), but that is a far and dispositive cry from police contractor in jail settings!
As this Honorable Court held in another setting, that of whether MDMA is a controlled substance as a matter of expert fact, the Court makes it clear that an officer testifying to what he believes is the evidentiary standard, or a juristic analysis of what has been found to be true and sufficient in other cases, is not sufficient to carry the expert burden about chemical composition. (People v. Davis (2013) 54 Cal.4th 353, 361.) So, we care not what cases suggest about cops watching things and thinking a certain “manner” has been satisfied – we follow the U.S. Supreme Court [as we all are supposed to do] and question whether the “practice” of medicine has been expertly satisfied. And the answer to that question is clearly “no.” The fact that something was “held” to be such and so in one case does not mean that it is established to be such absent evidence in another case. In these seven cases, there was no evidence whatsoever of accepted medical practices. All that is in evidence in all of those cases are policemen effectively saying “Well, it looked okay to me.” [If the officers were “expert” enough to assess and review others’ blood draws, why didn’t they draw it themselves? They are not qualified to do so. Therefore, how do they become qualified to judge performance that they cannot perform?]
Moreover, let us not put too much credence in what the constabulary says in such settings. The court of appeal has reminded us that police officers are not to be given presumptive reliability in their utterances about Fourth Amendment matters, because they have a stake in the outcomes of these cases. People v. Dickerson (1969) 273 Cal.App.2d 645, 650, and fn. 4.
This was a group of other than a hospital blood draws, and was by police contractors, and hence we have the very opposite of the clear rule: “We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment -- for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.” (Schmerber, supra at pages 771-772 [emphasis added].) A police contractor is police personnel, by agency standards presumably understood by all! We have here the talismanic “serious questions”! And they were not answered by the evidence in the cases below.
The Court tried to make much of the lack of apparent pain or discomfort by the victims of this warrantless evidence collection (Opinion, page 3), but that is not a standard that defines Fourth Amendment protections [there might not be any of the such in warrantless residential invasions either], and the High Court was concerned, inter multa alia, with the risk of infection from such procedures in non-medical facilities by non-medical personnel. (Schmerber, supra at page 772.) The eventual depredations from germs do not appear instantly, nor necessarily painfully.
The Court then tries to downplay the significance of stabbing people to obtain their blood by selectively excerpting from Schmerber that “‘Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. [Citation.] Such tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.’” (Opinion, page 5, quoting Schmerber, supra at page 771.) The Court fails to note that the context of that “commonplace” and “no risk,” etc., was a blood draw by a physician in a hospital! The preface to that discussion is “Given these special facts, we conclude….” (Schmerber, supra at page 771.) “[T]hese special facts” are a blood draw in a hospital by a physician!!!! (Id.)
The People must justify their liberty infringements, because it has long been understood that “[p]ower is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a[n] [independent!] magistrate to pass on the desires of the police before they violate [one’s] privacy....” (McDonald v. United States (1948) 335 U.S. 451, 456.) And to justify their warrantless liberty infringements, the People’s burden has to be carried, of course, with “evidence” (Penal Code section 1538.5(c)), which has the same meaning for suppression motions as for trials. Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927, cited app. in People v. Johnson (2006) 38 Cal.4th 717, 732-733.)
So, the phraseology of the issue here by the Court below has placed the burden on the wrong side. The question is not whether the defendant proved that the warrantless blood draw in places and by people that the U.S. Supreme Court clearly decreed were insufficient for Fourth Amendment standards was unreasonable (Opinion, page 4), but instead whether the government proved that it was reasonable, and it did not.
We care not what various California cases have held in watering down the blood draw quality issue, because “binding precedent” on United States Constitution questions is that which has been held by the United States Supreme Court. (Cooper, supra at page.) The U.S. Supreme Court’s construction of the United States Constitution could not be nullified either “openly and directly by state legislators or state executive or judicial officers [or] indirectly by them through evasive schemes….” (Cooper, supra at page 17.) There is no hidden parenthetical that reads “except for drunk driving evidence,” nor “unless the State Courts thumb their noses at us long enough.”
And that binding precedent regarding accepted medical practices, to wit hospital draws by real medical personnel, is the 47 year old Schmerber (supra) case.
Yes, yes, people are free personally to disagree with the United States Supreme Court’s construction of the Constitution: “The duty to abstain from resistance to ‘the supreme Law of the Land,’ U.S.Const., Art. VI, ¶ 2, as declared by the organ of our Government for ascertaining it, does not require immediate approval of it, nor does it deny the right of dissent. Criticism need not be stilled. [But] Active obstruction or defiance is barred. Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is ‘the supreme Law of the Land.’” (Cooper, supra at page 24 [Frankfurter, J. concurring] [emphasis added].)
It is ironic that some cite Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450 to support their anti-defendant points herein, but they overlook the real holding of that case: courts of inferior jurisdiction exceed their jurisdiction when they purport to disagree with Courts of superior jurisdiction. (Id., at page 455.) The United States Supreme Court is of superior jurisdiction to California appeals and Supreme Courts [and all other Courts] on questions of U.S. Constitutional law, so our State Courts exceeded their jurisdiction in disagreeing with the U.S. Supreme Court and were thereby always without power to disagree with the U.S. Supreme Court on the Schmerber rules.
And government actions that are without jurisdiction do not eventually acquire jurisdiction by their repeated illegal actions.
The fact that the anti-constitutional rule has had a long pedigree in this State proves only that the California Courts have insufficient respect for the U.S. Supreme Court. But perverse pedigree certainly does not validate contra-constitutional doctrines, nor generate a reasonable expectation that the constabulary can ignore the United States Supreme Court. State police used to, and State Judges still have to, swear to uphold and defend the United States Constitution. Upholding it does not mean merely carrying a pocket copy of it around to pull out at cocktail parties and Rotary lectures!
We respectfully pray that this Honorable Court depublish the Cuevas opinion. Not only was the propriety of the appellate division’s seven opinions clearly supportable and consistent with established constitutional law (Opinion, page 4, citing People v. Meyer (2010) 186 Cal.App.4th 1279, 1282), hence making the affirmative step of transferring he cases to it inappropriate, but also the standards for publication cannot be deemed to carry the sole day when the ruling to be published is itself doctrinally unsound. That is, for instance, if a Court of Appeal issued an opinion that reversed appellate division cases that had properly held that “separate but equal in public schooling” is illegal and unconstitutional, apart from the question of granting review, a litigant could properly demand that the Court of Appeal opinion not be published, notwithstanding its facial compliance with, say, Rules 8.1105(c)(1), (3), (4), (6), (7), and (8). The patent unconstitutionality of the holding should be able to be argued to overcome publication. Same thing here. This opinion should be depublished because it is erroneous constitutional law, an issue which will be taken up otherwise by others in various review petitions, and litigants throughout the State should not be confused about the state of clear constitutional law on things involving liberty interests.
It should be recalled [although it is too often not understood at all] that law is simply a prediction of what those in power ultimately will do with a specific set of facts. (K.N. Llewellyn, The Bramble Bush 13-14 [Oceana, 4th printing 1973].) We should not be confusing people that the watered down proof for Fourth Amendment standards invited by Cuevas is what is to be the prediction for this area of endeavor in this State.
With all due respect, please depublish People v. Cuevas (2013) 218 Cal.App.4th 1278 [A138062].
MICHAEL J. KENNEDY
Attorney at Law
For California DUI Lawyers Association
 Assault with a deadly weapon. Indeed, the difference between mere surgery gone awry and criminal mayhem is defined largely by whether the person piercing the skin is licensed to do what he or she is doing. (People v. Pirnia (2003) 113 Cal.App.4th 120, 127.) Some of our judges are persnickety about labeling this sort of conduct “stabbing,” but it is. (See, e.g., Webster’s Ninth New Collegiate Dictionary 1145 [Merriam-Webster, 1989] [“stab…. 1: to…pierce by the thrust of a pointed weapon….”].)
 A “manner” connotes how something is done by whomever; a “practice” connotes licensed professionalism in one’s overall activity.
 “Hospital” or “medical facility” or the are exclusively used throughout, many, many times, regarding where blood draws were thought by all of the Justices to be administered in these cases. We suspect they never guessed that States were ignoring their clear command on that in Schmerber, but that is why drunk driving is a political crime – politics rather than law drives the conclusions and policies.
Thoughtful analysts well-understand that there are drunk driving exceptions to most constitutional and customary law standards. (See http://capmotion.blogspot.com/2011/02/drunk-driving-exceptions-to.html)
We hope McNeely marks a reversal of that odious policy. This is the reason that the post-McNeely opinion in Cuevas did not mention McNeely: they are trying to pull a fast one regarding and around what the 47 year old law is.
 “Medically approved manner,” the purposeful watering down of the standard by our Courts, appears nowhere in Schmerber nor in McNeely.
 As that Court cogently noted: “The court appears to have ignored: 1. that the natural desire of a police officer to see a criminal brought to justice may cause him to be less than candid in connection with a collateral inquiry which does not go to what appears to him to be the only relevant question: was the defendant a thief? 2. That law enforcement is often a ‘competitive enterprise.’ and 3. that a police officer who has conducted an illegal search and seizure may be subject to criminal, civil and disciplinary sanctions.” Id., @650, fn. 4 [internal cites omitted]. I hope this Court does not ignore that.
 Except in one of the cases, where the draw was by some unidentified person in a hospital. (Opinion, pages 2-3 and fn. 2.)
 “[T]he highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution. And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution….” (Ableman v. Booth (1858) 62 U.S. 506, 525.)
“We are sensible that we have extended the examination of these decisions beyond the limits required by any intrinsic difficulty in the questions. But the decisions in question were made by the supreme judicial tribunal of the State; and when a court so elevated in its position has pronounced a judgment which, if it could be maintained, would subvert the very foundations of this Government, it seemed to be the duty of this court, when exercising its appellate power, to show plainly the grave errors into which the State court has fallen, and the consequences to which they would inevitably lead.” (Id.)
 Rule 8.1105(c), CRC.
 Brown v. Board of Education (1954) 347 U.S. 483, 495.