People v. Superior Court (Scott)

This matter is before us upon a writ of review which we issued at the direction of the Supreme Court. The background of the matter is as follows: The real party in interest, Bill Scott, Jr., was arrested on May 28, 1979, for violation of Vehicle Code section 23102, subdivision (a) (misdemeanor drunk driving). Scott asked for a chemical blood test at the scene of his arrest and again at the police station after he had been advised, pursuant to Vehicle Code section 13353, subdivision (a), of his right to choose between chemical tests of his blood, breath or urine. The police instead administered to him only a breath test, although facilities were immediately available at the police station for the administration of a blood test, and Scott’s third request for a blood test occurred after he saw the results of the breath test.

On August 31, 1979, Scott moved to suppress the results of the breath test purportedly pursuant to Penal Code section 1538.5. On September 19, 1979, the municipal court denied the motion on the ground that it did not lie under section 1538.5. Prior to any trial of Scott for the misdemeanor charged, he appealed this denial to the appellate department of…