Esayian

Nicholas J. Esayian was arrested for driving under the influence of alcohol and, in accordance with the implied consent law (Veh. Code, 1 §§ 23612, subd. (a) & 13384), he submitted to a blood test to determine his blood-alcohol content (BAC). Esayian was charged with driving under the influence of alcohol (DUI) as a misdemeanor. In the trial court Esayian moved to suppress the evidence of the blood test on the ground that the phlebotomist who drew his blood was not authorized under the appropriate statute to draw blood for that purpose. Accordingly, Esayian argued that the use of the blood and the results of any test of the blood would violate his constitutional rights under the Fourth and Fourteenth Amendments to the federal Constitution. The trial court denied the motion to suppress. Thereafter Esayian was convicted by a jury of one of the charges then pending against him.

Esayian appealed his conviction to the appellate division of the superior court (Appellate Division). That court affirmed his conviction, finding no error in the denial of Esayian’s motion to suppress evidence or in the jury trial. The Appellate Division thereafter granted Esayian’s request to…

I concur in the majority opinion to the extent it holds that the record properly before us does not demonstrate that the County of San Diego (County) has a deliberate, systematic and pervasive policy of having blood draws conducted in violation of statutory requirements. I dissent, however, from the majority’s conclusion that the blood draw in this case does not violate the Fourth Amendment. Because I find that the prosecution did not meet its burden to show that the blood draw was constitutionally reasonable in this case, I do not reach the issue of whether the introduction of the blood test results at trial violated Esayian’s due process rights.

Pursuant to state law, only specified persons may draw blood for the purpose of determining its alcohol content (BAC). (Veh. Code, § 23158, *1043 subd. (a) (all further statutory references are to the Vehicle Code unless otherwise specified); Cal. Code Regs., tit. 17, § 1219.1, subd. (a) [referring to former § 13354, now § 23158].) Persons authorized to conduct the procedure include licensed physicians or surgeons, registered nurses, licensed vocational nurses, certain licensed clinical personnel or certified paramedics acting at the…

HUFFMAN, Acting P.J.

Nicholas J. Esayian was arrested for driving under the influence of alcohol and, in accordance with the implied consent law (Veh.Code, [1] §§ 23612, subd. (a) & 13384), he submitted to a blood test to determine his blood-alcohol content (BAC). Esayian was charged with driving under the influence of alcohol (DUI) as a misdemeanor. In the trial court Esayian moved to suppress the evidence of the blood test on the ground that the phlebotomist who drew his blood was not authorized under the appropriate statute to draw blood for that purpose. Accordingly, Esayian argued that the use of the blood and the results of any test of the blood would violate his constitutional rights under the Fourth and Fourteenth Amendments to the federal Constitution. The trial court denied the motion to suppress. Thereafter Esayian was convicted by a jury of one of the charges then pending against him.

Esayian appealed his conviction to the appellate division of the superior court (Appellate Division). That court affirmed his conviction finding no error in the denial of Esayian's motion to suppress evidence or in the jury trial. The Appellate Division thereafter granted Esayian's…