Anderson v. Cozens

• Decision Date: 15 July 1976
• Citation: 131 Cal.Rptr. 256,60 Cal.App.3d 130
• Court: California Court of Appeals Court of Appeals
• Parties: Donald James ANDERSON, Petitioner and Respondent, v. Rebert C. COZENS, and Department of Motor Vehicles, State of California, Appellants. Civ. 47441.

Page 256

131 Cal.Rptr. 256

60 Cal.App.3d 130

Donald James ANDERSON, Petitioner and Respondent, v. Rebert C. COZENS, and Department of Motor Vehicles, State of California, Appellants.

Civ. 47441.

Court of Appeal, Second District, Division 1, California.

July 15, 1976.

Hearing Denied Oct. 6, 1976.

Evelle J. Younger, Atty. Gen., and Melvin R. Segal, Deputy Atty. Gen., for appellants.

Edwards, Edwards & Ashton, and Perry D. Mocciaro, Glendale, for petitioner and respondent.

HANSON, Associate Justice.

INTRODUCTION

This is an appeal by Robert C. Cozens, Director of the Department of Motor Vehicles and the Department of Motor Vehicles, State of California (hereinafter collectively referred to as DMV), from a judgment granting the issuance of a peremptory writ of mandate by the superior court. The court set aside a decision by DMV suspending the driving privilege of petitioner-respondent Donald James Anderson (hereinafter petitioner) for six months for his refusal to submit to one of the sobriety tests (blood, breach or urine) required by the implied consent law. (Veh.Code, § 13353 (hereinafter Section 13353).) ¹

THE CASE

The record on appeal reflects the following chronology of events:

On January 20, 1974, at approximately 8:50 p.m., California Highway Patrol Officer Billy L. Bradshaw, responding to a radio call, arrived at the scene of an accident. Two witnesses at the scene, according to the officer's report, identified petitioner as the driver of a vehicle that spun out of control and struck a power pole. Officer Bradshaw noticed petitioner had a strong odor of alcohol on his breath, was unsteady on his feet, had dialated pupils with slow reaction to light, that his speech was thick and slurred, and that he performed balance tests very poorly. Officer Bradshaw asked petitioner if he was sick or injured, to which petitioner replied in the negative.

Since petitioner did not satisfactorily perform several field sobriety tests, he was arrested for driving under the influence of alcohol in violation of Vehicle Code section 23102, subdivision (a). He was then advised of the necessity that he submit to a chemical test which he refused. Thereafter, Officer Bradshaw advised him of the 'implied consent' law obligation by reading from a Highway Patrol form entitled 'Officer's Statement, Section 13353 Vehicle Code,' as follows:

'You are required by state law to submit to a chemical test to determine the alcoholic content of your blood. You have the choice of whether the test is to be of your blood, breath or urine. If you refuse to submit to a test or fail to complete a test your driving privilege will be suspended for a period of six months. You do not have the right to talk to an attorney or to have an attorney present before stating whether you will submit to a test, before deciding which test to take or during the administration of the test chosen.'

After Officer Bradshaw read the above to petitioner, he asked the following questions of petitioner and petitioner's answers were recorded on the form (Exhibit A to DMV'S Answer to Petition for Writ of Mandamus):

'Q Do you understand what I just read to you?

'A Yes.

'Q Will you take a breath test?

'A No.

'Q Will you take a blood test?

'A No.

'Q Will you take a urine test?

'A I ain't takin' no fucking test.

'Q Do you understand that DMV is going to suspend your driver's license if you do not take a test?

'A Fuck 'em.'

The above form, duly dated and signed by Officer Bradshaw, was submitted to the DMV who, on February 11, 1974, under authority of Vehicle Code section 13353, subdivision (b), ordered petitioner's driver's license suspended for a six-month period effective February 25, 1974.

Petitioner, having been served with the order of suspension and notice of his right to a formal or informal hearing, requested a 'formal' hearing pursuant to Vehicle Code section 14107. DMV stayed suspension of petitioner's driver's license until further notice and on March 22, 1974, conducted a 'formal' hearing at the DMV office in Pomona before Hearing Officer Referee Shappi; persons present were petitioner, his counsel and the arresting officer, Bradshaw. ²

Arresting Officer Bradshaw testified at the hearing substantially as described above.

Petitioner testified under direct examination by his counsel that he 'had maybe a couple of beers during the afternoon' but nothing that evening; that he was looking for a gas station and was going to turn into a driveway on the opposite side of the road to turn around, and as he started 'to enter the center of the road a car sped by' causing him to cut back to his right and as he did 'a cat or dog or rabbit or whatever jumped off the curb' and he 'cut the wheel again to the right and slid into the pole'; that he injured his left and right knees and head; and that he may have been unconscious for 'a few seconds.'

Petitioner first testified that the officer instructed him to take a series of field sobriety tests which he 'thought he did considerably well' considering that his 'knees were pretty banged up,' and then testified that he did not recall Officer Bradshaw's instructions as to how to take the test. He recalled being placed in the patrol car and first testified that he did not recall Officer Bradshaw reading any statement regarding his choice of chemical tests, then later testified that the officer did not read a statement from any form. He testified the officer said there were three tests that he could take but didn't recall his answer; that the officer said his driver's license could be suspended for failure to take a test and did not understand that suspension would be mandatory if he refused; that if he knew his license would be automatically suspended for failure to take a test he would not have refused. Petitioner denied ever saying 'I aint' takin' no fucking tests' as they were not typical words used by him but sounded 'like something out of a western movie.'

Referee Shappi questioned petitioner to clarify his testimony since he first testified that he did not 'recall' the officer reading a statement to him and later testified that the officer 'did not' read anything to him. The referee also inquired into the injuries petitioner sustained as a result of striking the pole.

Following the hearing and written argument, Referee Shappi made the following findings, among others:

'a. That Donald James Anderson was lawfully arrested;

'b. That the officer had reasonable cause to believe that Donald James Anderson had been driving a motor vehicle upon a highway while under the influence of intoxicating liquor;

'c. That Donald James Anderson was told his driving privilege would be suspended for six (6) months if he refused to submit to a chemical test;

'd. That Donald James Anderson refused to submit to any chemical test of his blood, breath or urine after being requested to do so by a police officer.'

On June 14, 1974, Robert C. Cozens, Director of DMV, adopted the decision of Referee Shappi as his own and suspended petitioner's driver's license for a six-month period commencing June 24, 1974.

On September 27, 1974, petitioner filed a 'Petition for Writ of Mandamus,' alleging, among other things, (1) that the DMV failed to give him a fair and impartial hearing denying constitutional right of due process, over his objections, in that the hearing officer was neither a lawfully appointed judge nor an attorney at law, conducted examination of witnesses and ruled on objections and objected to questions put by his counsel and acted as an 'advocate' contrary to the interests of petitioner; (2) that the DMV resolved a factual issue contrary to the interest of petitioner without any clean-cut or substantial evidence supporting it; (3) that he was never advised that a failure to submit to a chemical test would 'automatically' cause a suspension of his driver's license, but only that it 'could' be suspended; (4) that the district attorney's office dismissed the charge of violation of Vehicle Code section 23102, subdivision (a), and he pleaded guilty to violation of Vehicle Code section 23103 (reckless driving) with court approval; and (5) that if his driver's license suspension is enforced he will lose his job because he is a truck driver.

No testimony was offered in the superior court and the court's findings and judgment are based on the transcript of the testimony at the hearing before the DMV and the documents that were made part of that record.

On June 17, 1975, the superior court in its findings and conclusions recited the events substantially as hereinbefore described as the contentions of the parties and granted the peremptory writ of mandate, not on factual grounds but on the following 'Conclusions of Law':

'1. The possession by petitioner of a driver's license is a valuable right and a deprivation of said license by the Department of Motor Vehicles is a sanction and a taking of property. . . . (which) requires that it be done with regard to the mandate of the 14th Amendment of the United States Constitution. . . . Such mandate requires both the concept of due process and the concept of equal protection. This Court cannot find that due process in this hearing was violated, when taken within the limited frame of reference of driver license revocations, but does find that said hearings were not conducted in the same manner as in similar proceedings involving state agencies in California, which allow other defendants and other litigants in administrative hearings the right to have the matter heard by an impartial administrative officer with the qualifications and under the rules as set forth in the California Administrative Code, and that thus denies petitioner the equal protection required of the 14th Amendment.

'2. The Court finds that there is no reasonable classification separating driver litigants who are losing their licenses from other litigants losing other state granted licenses and property rights.

'3. The Court...