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THE PEOPLE, Plaintiff and Respondent,
MARION WALD, Defendant and Appellant.

No. D071429.

Court of Appeals of California, Fourth District, Division One.

Filed November 27, 2017.

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCS283900, Francis M. Devaney and Garry G. Haehnle, Judges. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

HALLER, Acting P. J.

Defendant Marion Wald admitted to police that she was drinking beer 30 minutes before the truck she was driving collided with and seriously injured a motorcyclist. After the trial court denied her motion to suppress test results that showed she had a blood alcohol level of 0.13 percent, Wald pleaded guilty to one count of driving with a blood alcohol level of 0.08 percent or more (Veh. Code, § 23153, subd. (b)), with a great-bodily-injury enhancement (Pen. Code, § 12022.7, subd. (a)). Wald contends the trial court erred by denying her motion to suppress. We affirm.



After midnight on December 16, 2015, Wald was driving a truck on H Street in Chula Vista. As she prepared to turn left into the parking lot of a taco shop, she collided with an oncoming motorcycle. The motorcyclist sustained serious injuries and was transported to the hospital, where one of his legs had to be amputated.

When police responded to the scene, Wald admitted that she was driving the truck, that she drank beer about 30 minutes before driving, and that she did not see the motorcycle. A police officer observed that Wald's eyes were red and that she was emitting a "moderate odor of an alcoholic beverage." Wald declined to submit to field sobriety tests (FST's). She was arrested for driving under the influence (DUI), and consented to a blood test, which indicated she had a blood alcohol level of 0.13 percent.

Wald was charged with felony DUI causing injury (Veh. Code, § 23153, subd. (a); count one), and felony driving with a blood alcohol level of 0.08 or more causing injury (Veh. Code, § 23153, subd. (b); count two). The information alleged Wald personally inflicted great bodily injury in the commission of each charged offense. (Pen. Code, § 12022.7). Wald pleaded not guilty to the charges and denied the special allegations.

Suppression Motion and Hearing

Wald moved to suppress evidence of the blood alcohol test on the ground the police lacked probable cause to arrest her in the first instance and, thus, the results of the blood test were fruit of the poisonous tree. The trial court held an evidentiary hearing on Wald's motion, during which Agent Rosio Gardea and Officer David Rivers of the Chula Vista Police Department testified. The court also admitted in evidence and viewed footage from Officer Rivers's body-worn camera (body cam).

Agent Gardea's Testimony

Agent Gardea arrived at the collision site about 1:00 a.m. and observed the victim's motorcycle in the westbound roadway next to "a lot of blood." She secured the scene and prepared the "traffic report," which involved documenting the scene, collecting evidence, following up with the victim, interviewing witnesses, and determining the cause of the collision. Wald told Agent Gardea she (Wald) was driving the truck, made a slow left turn into a driveway, did not see the motorcycle, and struck the motorcyclist. Agent Gardea concluded the cause of the collision was Wald's "[u]nsafe turn into a driveway" in violation of the Vehicle Code. Agent Gardea opined that unsafe turns are a "primary factor" in DUI cases.

Officer Rivers's Testimony

Officer Rivers arrived on the scene shortly after 1:00 a.m., whereupon he was briefed on the incident and assigned to handle the DUI investigation. He testified about his extensive training in investigating DUI's.

Officer Rivers spoke to Wald beside her truck in a gas station parking lot next to the taco shop. Wald explained she was driving the truck, that it was a little taller than what she was used to driving, and that the truck collided with the motorcyclist. Officer Rivers observed that Wald's eyes were red, but not "the red watery bloodshot eyes that you normally see [in] a DUI investigation." Wald was not staggering or slurring her words, nor did Officer Rivers initially detect any odor of alcohol.

Officer Rivers's "pre-investigation questions" eliminated common non-DUI-related causes of the collision, like medical conditions, sleep deprivation, or mechanical problems with the vehicle. When the officer asked Wald whether she had consumed any alcohol, she told him she had consumed one "normal size beer" at her house about 30 minutes before driving. She also told the officer she had been drinking at a sports bar in Lemon Grove and stopped by her house before heading out to get something to eat. As Officer Rivers continued speaking with Wald, he smelled "a moderate odor of alcohol."

Officer Rivers explained to Wald that the standard FST's are "completely voluntary," and asked if she would submit to them to determine whether she was safe to drive. Wald responded that she would like to call a friend first, and would then take the FST's. Officer Rivers allowed her to make the call from her mobile phone. At a certain point, a police sergeant identified in the record only as "Winslow" intervened and directed Wald to end her phone call so they could complete the investigation. Wald then stated she would not submit to the FST's, and ended her call. Officer Rivers gave Wald an admonition regarding a preliminary alcohol screening test, which Wald also declined.

As Officer Rivers conferred with other officers at the scene, Sergeant Winslow mentioned that Wald had said she and a friend "split a pitcher of beer," which appeared to conflict with the one-beer admission Wald made to Officer Rivers. When Officer Rivers confronted Wald about this apparent discrepancy, she explained that "her version of splitting the pitcher" was that she had only one glass of beer from it.

Based on Wald's admission that she had been drinking, her red eyes, the odor of alcohol, and her involvement in the collision, Officer Rivers arrested Wald for DUI. He explained California's implied consent law to her, and she elected to submit to a blood test. Test results indicated Wald had a blood alcohol level of 0.13 percent.

Court's Ruling

After hearing testimony, viewing Officer Rivers's body cam footage, and hearing argument from counsel, the trial court denied Wald's motion. Citing "the totality of the circumstances"—as opposed to "isolat[ing] every single thing"—the court found the following factors established probable cause: (1) Wald's red eyes; (2) the odor of alcohol emanating from her; (3) her admission she had been drinking alcohol shortly before the collision; (4) the fact of the collision and the time of day it occurred;[1] (5) Wald's failure to see or hear the motorcycle "in a well[-]lit busy place"; and (6) Wald's refusal to submit to FST's, which the court found "clearly" showed "a lack of cooperation" indicating "some consciousness of guilt."

Change of Plea and Sentence

After the trial court denied her suppression motion, Wald and the prosecutor entered into a plea bargain. In exchange for Wald pleading guilty to driving with a blood alcohol level above 0.08 percent and admitting to the great-bodily-injury enhancement attendant to that count, the prosecutor agreed to dismiss the remaining count and enhancement, with an agreed sentence of six years in prison, stayed, with one year served in local custody and five years' probation. The court accepted Wald's guilty plea and sentenced her according to the terms of the plea bargain.


I. Relevant Legal Principles

"A defendant may move to suppress evidence on the ground that `[t]he search or seizure without a warrant was unreasonable.'" (People v. Redd (2010) 48 Cal.4th 691, 719, citing Pen. Code, § 1538.5, subd. (a)(1)(A).) "`The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence'" (Redd, at p. 719), "with all presumptions favoring the trial court's exercise of its power to judge the credibility of the witnesses, resolve conflicts in the testimony, weigh the evidence and draw factual inferences" (People v. McHugh (2004) 119 Cal.App.4th 202, 209). "`In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.'" (Redd, at p. 719.)

"`"Probable cause exists when the facts known to the arresting officer would persuade someone of `reasonable caution' that the person to be arrested has committed a crime. (Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9. . . .) `[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts. . . .' (Illinois v. Gates (1983) 462 U.S. 213, 232. . . .) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371. . . .) `"The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,"' and that belief must be `particularized with respect to the person to be . . . seized.'"'" (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 101 (Espinoza).)

Wald was arrested for DUI. "`"To be `under the influence' within the meaning of the Vehicle Code, the liquor or liquor and drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties."'" (Espinoza, supra, 10 Cal.App.5th at pp. 101-102, quoting People v. McNeal (2009) 46 Cal.4th 1183, 1192-1193.) "`[E]vidence of actual impairment may include the driver's appearance, an odor of alcohol, slurred speech, impaired motor skills, slowed or erratic mental processing, and impaired memory or judgment. Conversely, absence of these manifestations may indicate that the driver was not impaired.'" (Espinoza, at p. 102, quoting McNeal, at p. 1198.)

"In addition to erratic driving and objective symptoms of intoxication, an investigating officer may also properly consider the motorist's refusal to step out of his or her vehicle and refusal to submit to field sobriety tests when determining whether there is probable cause to arrest for DUI." (Espinoza, supra, 10 Cal.App.5th at p. 102; see Marvin v. Department of Motor Vehicles (1984) 161 Cal.App.3d 717, 720 (Marvin) ["[W]here the suspect . . . refused the field sobriety test, additional evidence of her guilt appeared. Such has been held to be evidence of a consciousness of guilt."].)

II. Analysis

When considering the totality of the circumstances—as opposed to "isolat[ing] every single thing"—we conclude probable cause existed to arrest Wald for DUI. Officer Rivers testified he observed two objective criteria of intoxication (red eyes and a moderate odor of alcohol), and the court expressly found Officer Rivers credible. Although Wald's eyes were not the full-blown bloodshot, watery eyes typically observed in a drunk driver, the fact they were red is nonetheless probative. In addition, the fact Officer Rivers was able to detect a moderate (though not strong) odor of alcohol emanating from Wald during his open-air questioning of her is also probative. Although Wald emphasizes the lack of other typical objective criteria of intoxication, Officer Rivers's probable cause determination was not grounded solely on objective criteria.

Wald admitted to several officers that she consumed alcohol before driving. Indeed, she gave varying accounts of how much she drank (she told Sergeant Winslow she "split a pitcher," but told Officer Rivers she had "one beer") and where she drank it (at a sports bar or at home). Officer Rivers was not required to accept as true Wald's self-serving explanation that she drank only one glass of beer from a pitcher. (See, e.g., People v. Ortiz (1969) 276 Cal.App.2d 1, 6 ["If the police officers were required to believe every exculpatory story made by a suspect at the time of his arrest there would be very few arrests."]; see Espinoza, supra, 10 Cal.App.5th at p. 102.)

The trial court's observations regarding the fact and circumstances of the collision further support the probable cause finding. The fact the collision occurred in a well-lit location (as evidenced by the footage from Officer Rivers's body cam) and in the early morning hours strongly supports the probable cause finding. Indeed, Agent Gardea testified that unsafe turns are a primary factor in DUI cases.

Finally, Officer Rivers and the trial court found Wald's refusal to submit to voluntary FST's indicated a consciousness of guilt that further supported their probable cause findings. This has long been the law in California (see Espinoza, supra, 10 Cal.App.5th at p. 102; Marvin, supra, 161 Cal.App.3d at p. 720), and we decline Wald's invitation to follow nonbinding sister-state authority to the contrary (see People v. Carlson (Colo. 1984) 677 P.2d 310, 317-318). Wald asserts on appeal that Officer Rivers "misled" her by telling her the FST's were voluntary, but she cites no evidence in the record supporting her assertion she was actually misled. And, in any event, Wald's refusal to submit to FST's is just one of the many factors supporting our overall conclusion that probable cause to arrest existed.

In sum, the record shows Wald (1) admitted to drinking just before driving; (2) gave varying accounts of where and how much she drank; (3) had red eyes; (4) emitted a moderate odor of alcohol; (5) collided with a motorcycle she failed to see in a well-lit area, while making an unsafe turn in the early morning hours; and (6) refused to submit to FST's. On this record, Officer Rivers had probable cause to arrest Wald for DUI. Because Wald's arrest was lawful, the court did not err in denying her motion to suppress evidence of her blood alcohol test results.



NARES, J. and IRION, J., concurs.

[1] The court stated: "Plenty of accidents occur where there is no alcohol involved. More accidents happen at 1:00 o'clock in the morning coming home from a bar than in the afternoon." 

Patrick J. Silva - Attorney at Law

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