Opinion
KAUFMAN, Acting P. J.
Defendant John David Garinger was charged with driving a vehicle under the influence of alcohol (DUI) on May 17, 1984, in violation of Vehicle Code section 23152, subdivision (b).
When defen
dant was arrested the police failed to deliver the advisements required under sections 23157 and 23 1 57.5
that he could choose among blood, breath and urine tests, that any breath sample was not preservable for later analysis, and that if he chose a breath test he could provide a blood or urine sample that would be retained for later analysis. Defendant’s blood alcohol level was tested by a breath test only.
Defendant entered a plea of not guilty and made a motion to suppress the evidence of his breath test because the statutory advisements had not been given by the arresting officers. The municipal court denied defendant’s motion to suppress. By agreement with the District Attorney of the County of Riverside and the municipal court, defendant was permitted to enter a guilty plea without prejudice to his appealing his conviction to the appellate department of the superior court to obtain review of the denial of his suppression motion. The appellate department affirmed the judgment without opinion and defendant petitioned this court for habeas corpus. We issued an order to show cause and on our own motion ordered up the municipal court and appellate department files, of which we have taken judicial notice.
We issued an order to show cause primarily on the basis of an allegation in the petition to the effect that the failure of the police to inform petitioner of his rights in accordance with sections 23157 and 23157.5 was attributable to a deliberate, systematic and persistent policy of the Riverside Police Department not to give the advisements mandated by those statutes. The writ petition states in part: “ 14. That counsel for the Defendant was informed
at the time of appeal by the District Attorney opposing defense counsel’s appeal, that at the time [defendant] was arrested, that they had previously informed the police department since the ruling on
Trombetta [California
v.
Trombetta
(1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528]], that they did not have to give the [statutory] warnings as the U.S. Supreme Court prevented this from resulting from [sz'c] any unconstitutional application by the police authorities. [11] 15. That the District Attorney revealed to defense counsel that this policy was not withstanding [szc] the fact that [§ 23157.5] is and continues to be even to date, the law in the State of California.”
The assertions of defendant in this regard were given added credibility by the absence of any denial in the papers filed by the district attorney in opposition to the petition for habeas corpus. Indeed, the district attorney’s only contention was that the failure of the police to give the advisements mandated by sections 23157 and 23157.5 did not violate any constitutional right and therefore could not give rise to an order for the suppression of evidence.
Needless to say, it is the fundamental duty of every police department and officer and every district attorney and deputy district attorney, indeed, of every governmental officer in this state, to obey and carry out the laws of this state irrespective of their source, be it a constitution, statute, or duly promulgated regulation, order or judgment.
States are free to set higher standards for police practices under state law than are required by the federal Constitution.
(Oregon
v.
Hass
(1975) 420 U.S. 714, 719 [43 L.Ed.2d 570, 575, 95 S.Ct. 1215];
Cooperv. California
(1967) 386 U.S. 58, 62 [17 L.Ed.2d 730, 734, 87 S.Ct. 788]; see also
Michigan
v.
Mosley
(1975) 423 U.S. 96, 120 [46 L.Ed.2d 313, 331, 96 S.Ct. 321] (Brennan, J., dis.);
Lego
v.
Twomey
(1972) 404 U.S. 477, 489 [30 L.Ed.2d 618, 627, 92 S.Ct. 619];
People
v.
Hannon
(1977) 19 Cal.3d 588, 606 [138 Cal.Rptr. 885, 564 P.2d 1203].) Although as discussed
infra,
section 23157.5 was no doubt originally enacted in response to the decision in
People
v.
Trombetta
(1983) 142 Cal.App.3d 138 [190 Cal.Rptr. 319], which was later reversed by the United States Supreme Court in
California
v.
Trombetta, supra,
467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528], the California Legislature is undoubtedly aware of the reversal but nevertheless has not repealed section 23157.5. Accordingly section 23157.5 is the law of this state.
However, the question of whether otherwise competent evidence should be excluded because of a police officer’s failure to give the prescribed advisements is quite a different question. Existing case law would indicate that suppression of the test results is not a necessary or appropriate response to
the failure to give the statutory advisements. (See
People
v.
Bloom
(1983) 142 Cal.App.3d 310, 317-318 [190 Cal.Rptr. 857], and cases there discussed.) Moreover, though it is in all likelihood not applicable to this case, we observe that effective January 1,1987, Vehicle Code section 23157.5 was amended to add subdivision (d) which reads: “No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcoholic content of the blood of the person arrested."
Section 23157 (formerly § 13353) was amended in 1969 to require the advisement of DUI suspects that they may choose among breath, blood and urine tests to determine their blood alcohol content. Section 23157.5, on the other hand, was passed as emergency legislation in 1983 to provide a constitutional procedure for administering breath tests in light of the decision in
People
v.
Trombetta, supra,
142 Cal.App.3d 138. (See Stats. 1983, ch. 841, § 4, p. 3018.)
In
People
v.
Trombetta, supra,
142 Cal.App.3d 138, the court held that the police’s failure to preserve breath samples which provided the sole evidence of blood alcohol levels deprived drunk driving defendants of due process under
People
v.
Hitch
(1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361].
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Opinion
KAUFMAN, Acting P. J.
Defendant John David Garinger was charged with driving a vehicle under the influence of alcohol (DUI) on May 17, 1984, in violation of Vehicle Code section 23152, subdivision (b).
When defen
dant was arrested the police failed to deliver the advisements required under sections 23157 and 23 1 57.5
that he could choose among blood, breath and urine tests, that any breath sample was not preservable for later analysis, and that if he chose a breath test he could provide a blood or urine sample that would be retained for later analysis. Defendant’s blood alcohol level was tested by a breath test only.
Defendant entered a plea of not guilty and made a motion to suppress the evidence of his breath test because the statutory advisements had not been given by the arresting officers. The municipal court denied defendant’s motion to suppress. By agreement with the District Attorney of the County of Riverside and the municipal court, defendant was permitted to enter a guilty plea without prejudice to his appealing his conviction to the appellate department of the superior court to obtain review of the denial of his suppression motion. The appellate department affirmed the judgment without opinion and defendant petitioned this court for habeas corpus. We issued an order to show cause and on our own motion ordered up the municipal court and appellate department files, of which we have taken judicial notice.
We issued an order to show cause primarily on the basis of an allegation in the petition to the effect that the failure of the police to inform petitioner of his rights in accordance with sections 23157 and 23157.5 was attributable to a deliberate, systematic and persistent policy of the Riverside Police Department not to give the advisements mandated by those statutes. The writ petition states in part: “ 14. That counsel for the Defendant was informed
at the time of appeal by the District Attorney opposing defense counsel’s appeal, that at the time [defendant] was arrested, that they had previously informed the police department since the ruling on
Trombetta [California
v.
Trombetta
(1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528]], that they did not have to give the [statutory] warnings as the U.S. Supreme Court prevented this from resulting from [sz'c] any unconstitutional application by the police authorities. [11] 15. That the District Attorney revealed to defense counsel that this policy was not withstanding [szc] the fact that [§ 23157.5] is and continues to be even to date, the law in the State of California.”
The assertions of defendant in this regard were given added credibility by the absence of any denial in the papers filed by the district attorney in opposition to the petition for habeas corpus. Indeed, the district attorney’s only contention was that the failure of the police to give the advisements mandated by sections 23157 and 23157.5 did not violate any constitutional right and therefore could not give rise to an order for the suppression of evidence.
Needless to say, it is the fundamental duty of every police department and officer and every district attorney and deputy district attorney, indeed, of every governmental officer in this state, to obey and carry out the laws of this state irrespective of their source, be it a constitution, statute, or duly promulgated regulation, order or judgment.
States are free to set higher standards for police practices under state law than are required by the federal Constitution.
(Oregon
v.
Hass
(1975) 420 U.S. 714, 719 [43 L.Ed.2d 570, 575, 95 S.Ct. 1215];
Cooperv. California
(1967) 386 U.S. 58, 62 [17 L.Ed.2d 730, 734, 87 S.Ct. 788]; see also
Michigan
v.
Mosley
(1975) 423 U.S. 96, 120 [46 L.Ed.2d 313, 331, 96 S.Ct. 321] (Brennan, J., dis.);
Lego
v.
Twomey
(1972) 404 U.S. 477, 489 [30 L.Ed.2d 618, 627, 92 S.Ct. 619];
People
v.
Hannon
(1977) 19 Cal.3d 588, 606 [138 Cal.Rptr. 885, 564 P.2d 1203].) Although as discussed
infra,
section 23157.5 was no doubt originally enacted in response to the decision in
People
v.
Trombetta
(1983) 142 Cal.App.3d 138 [190 Cal.Rptr. 319], which was later reversed by the United States Supreme Court in
California
v.
Trombetta, supra,
467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528], the California Legislature is undoubtedly aware of the reversal but nevertheless has not repealed section 23157.5. Accordingly section 23157.5 is the law of this state.
However, the question of whether otherwise competent evidence should be excluded because of a police officer’s failure to give the prescribed advisements is quite a different question. Existing case law would indicate that suppression of the test results is not a necessary or appropriate response to
the failure to give the statutory advisements. (See
People
v.
Bloom
(1983) 142 Cal.App.3d 310, 317-318 [190 Cal.Rptr. 857], and cases there discussed.) Moreover, though it is in all likelihood not applicable to this case, we observe that effective January 1,1987, Vehicle Code section 23157.5 was amended to add subdivision (d) which reads: “No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcoholic content of the blood of the person arrested."
Section 23157 (formerly § 13353) was amended in 1969 to require the advisement of DUI suspects that they may choose among breath, blood and urine tests to determine their blood alcohol content. Section 23157.5, on the other hand, was passed as emergency legislation in 1983 to provide a constitutional procedure for administering breath tests in light of the decision in
People
v.
Trombetta, supra,
142 Cal.App.3d 138. (See Stats. 1983, ch. 841, § 4, p. 3018.)
In
People
v.
Trombetta, supra,
142 Cal.App.3d 138, the court held that the police’s failure to preserve breath samples which provided the sole evidence of blood alcohol levels deprived drunk driving defendants of due process under
People
v.
Hitch
(1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361]. The California Supreme Court denied a petition for hearing and the Legislature subsequently enacted section 23157.5 in an attempt to mandate police procedures which would satisfy constitutional due process concerns.
Subsequently, the United States Supreme Court granted certiorari in
Trombetta
and held the due process clause of the Fourteenth Amendment to the United States Constitution does not compel law enforcement agencies to preserve breath samples as a prerequisite to introduction of the breath test results at trial.
(California
v.
Trombetta, supra,
467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528].)
In light of
California
v.
Trombetta, supra,
467 U.S. 479, in the
absence of a showing of deliberate, systematic nonadvisement, the California Constitution precludes the relief defendant seeks. California Constitution, article I, section 28, subdivision (d), enacted as part of Proposition 8, provides in pertinent part: “[RJelevant evidence shall not be excluded in any criminal proceeding, including pretrial... motions.”
Decisions in other areas of criminal procedure have noted the extent to which Proposition 8 makes state exclusionary rules unavailable. “Article I, section 28, subdivision (d), eliminated ‘a judicially created
remedy
for violations of the search and seizure provisions of the federal or state Constitutions, ...
except to the extent that exclusion remains federally compelled.’’ (In re Lance W.
(1985) 37 Cal.3d 873 at pp. 886-887 . . ., latter italics added.)”
(People
v.
Lyon
(1985) 171 Cal.App.3d Supp. 20, 22-23 [218 Cal.Rptr. 290].)
Being concerned with the uncontroverted assertion of defendant that the failure of the police to give him the statutory advisements resulted from a deliberate, systematic policy of the Riverside Police Department and the federal equal protection of laws question that assertion would raise if true, this court appointed Honorable Robert J. Timlin, Judge of the Riverside Superior Court, as a referee of this court to conduct an evidentiary hearing on the question and to report to this court his findings and conclusions.
Pursuant to our order the referee conducted a full evidentiary hearing on December 8 and 9, 1986, in which petitioner, represented by counsel, and the People participated. The referee has filed with this court his findings and conclusions, a true copy of which is attached to this opinion as an appendix. Among the pertinent findings are two numbered 5 and 6 which read in part: “5. At no time, either prior to May 17, 1984 or thereafter, did the Department have a general, deliberate and systematic policy not to give the advisements required by sections 23157 and 23157.5 of the Code to persons arrested on suspicion of drunk driving.”
“6. The failure of Officer Avila and Sergeant Carroll to advise Petitioner in accordance with either section 23157 or section 23157.5 was not the result of a general, deliberate and systematic policy of the Department not to give such advisements to persons arrested on suspicion of drunk driving.”
Exercising its independent judgment (see
In re Wright
(1978) 78 Cal.App.3d 788, 801 [144 Cal.Rptr. 535], and cases there cited) this court has reviewed and evaluated the evidence, which is virtually uncontroverted, and finds it not only fully supports but, indeed, compels the above-quoted findings as well as the other findings and conclusions of the referee. Accordingly, this court adopts the referee’s findings and conclusions as its own.
Because the United States Supreme Court’s decision in
Trombetta
held the failure to preserve breath samples does not violate constitutional due process rights, it follows that the failure to render statutory advisements concerning the breath test likewise does not impinge on constitutional due process rights (cf.
People
v.
Bloom, supra,
142 Cal.App.3d 310, 317, and cases there cited) and thus cannot give rise to an exclusionary remedy under Proposition 8. Because the evidence establishes the failure of the police to advise defendant as statutorily required was not the result of any policy of the Riverside Police Department, exclusion of the blood alcohol test in aid of equal protection of laws would not be warranted.
We conclude defendant’s conviction was lawful and no valid ground for habeas corpus has been demonstrated.
Disposition
The petition for habeas corpus is denied. The order to show cause heretofore issued is discharged.
McDaniel, J., and Rickies, J.,
concurred.
Appendix
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