Barrie v. Alexis

• Citation: 151 Cal.App.3d 1157,199 Cal.Rptr. 258
• Court: California Court of Appeals
• Decision Date: 17 February 1984
• Parties: Carolina Winston BARRIE, Respondent, v. Doris ALEXIS, Director and The Department of Motor Vehicles, Division of Driver Licenses, State of California, Appellants. Civ. 67354.

Page 258

199 Cal.Rptr. 258

151 Cal.App.3d 1157

Carolina Winston BARRIE, Respondent, v. Doris ALEXIS, Director and The Department of Motor Vehicles, Division of Driver Licenses, State of California, Appellants.

Civ. 67354.

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

Feb. 17, 1984.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Henry G. Ullerich and Christopher C. Foley, Deputy Attys. Gen., for appellants.

Steven M. Sindell, Santa Monica, for respondent.

LILLIE, Associate Justice.

The Department of Motor Vehicles appeals from judgment granting peremptory writ of mandate directing it to vacate its order suspending the driving privileges of Carolina Winston Barrie for six months for her refusal to submit to a chemical test pursuant to the implied consent law. (§ 13353, Veh.Code.)

The facts presented by the officers at the administrative hearing concerning Barrie's conduct are undisputed; Barrie neither testified nor offered evidence on her behalf. An accident between a motorcycle and motor vehicle occurred on Pacific Coast Highway at 10:40 p.m.; the motorcyclist was removed to the hospital; Barrie, driver of the motor vehicle, was slouched on a sofa drinking coffee in a nearby residence. Asked by Officers Brucker and Donnelly to go outside to perform a balance and coordination test, Barrie walked out staggering and the odor of alcohol emitted from her breath and person; after administering three field sobriety tests, the officers concluded she was under the influence of alcohol and arrested her.

En route to the jail Officer Brucker admonished Barrie "You are required by state law to take a chemical test to determine the alcohol content of your blood. You have the choice of taking a breath test, a urine test, or a blood test. Which test would you prefer to take?" Barrie told Officer Brucker she would let her know when they got to the station.

At the jail Officer Brucker again admonished Barrie, and Barrie responded she would not take any test. Then Officer Donnelly on two separate occasions according to law read the following statement verbatim from a card: "You are required by state law to submit to a chemical test to determine the alcoholic content of your blood. You have a 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. If you are incapable, or state you are incapable, of completing the test you choose, you must submit to and complete any of the remaining tests or test." Each time, Barrie responded "No," she was not going to take any test.

At this point the officers conferred with the Watch Commander who said, "you will take her to the hospital and you will get blood drawn from her because it's a felony driving under the influence." Thereupon she was handcuffed to a gurney and transported to the hospital where a blood sample was taken resulting in a blood alcohol reading of .25 percent. Barrie said she wanted it noted she was taking the test under protest, and that she did not want to take it.

On the foregoing undisputed evidence, the Department of Motor Vehicles suspended Barrie's driving privilege for six months under the implied consent law. Barrie petitioned for writ of mandate alleging, among other things, that there was no refusal to submit to the blood test. The trial court granted the petition and expressly found that Barrie was lawfully arrested for driving a motor vehicle while intoxicated and caused bodily harm; the arresting officer read to her the statement according to law; she did not refuse to submit to and complete a chemical test of her blood; and she voluntarily submitted to and completed a chemical test of her blood administered at the hospital. It concluded: "The administrative record evidences Ms. Barrie's submission to and completion of a chemical test in compliance with Vehicle Code section 13353," and that her driving privilege was improperly suspended.

No additional evidence was taken at the hearing on the petition; the court's findings and conclusions are based solely upon the transcript of the testimony taken at the departmental hearing. The facts are not in dispute. Thus although the trial court did not indicate which test it used in its review of the departmental proceedings, it is immaterial whether or not the administrative record received an " 'independent judgment review.' " (Berlinghieri v. Department of Motor Vehicles, 33 Cal.3d 392, 398, 188 Cal.Rptr. 891, 657 P.2d 383.) The standard for this court is whether the record contains substantial evidence to support the trial court's findings. (Brush v. City of Los Angeles, 45 Cal.App.3d 120, 123, 119 Cal.Rptr. 366; see also Buchanan v. Department of Motor Vehicles, 100 Cal.App.3d 293, 298-299, 160 Cal.Rptr. 557.) Our review of the record leads us to the conclusion that the Department was correct in ordering suspension of Barrie's license and that the administrative record does not support the judgment granting writ of mandate to set aside that determination.

First, the arresting officer complied with the specific requirements of section 13353, Vehicle Code. While it is true that the first admonitions by Officer Brucker were of an informal nature, the evidence is undisputed that within minutes thereafter Officer Donnelly on two occasions read the admonition verbatim from a card. There is no doubt Barrie was informed and aware that refusal to submit to a chemical test would result in a suspension of her driver's license. (Morgan v. Department of Motor Vehicles, 148 Cal.App.3d 165, 169, 195 Cal.Rptr. 707.) The trial court found, and properly so, that the arresting officer read to the driver the statement according to law. This answers Barrie's argument that she was not properly advised.

Second, to each of the statements read to her by Officer Donnelly, Barrie responded "No," she was not going to take any test. This is an outright refusal as a matter of law under section 13353 with no room for construction. Barrie's response was clear and unequivocal. Such refusal constitutes a valid basis for suspension of her driver's license. (Morgan v. Department of Motor Vehicles, 148 Cal.App.3d 165, 170, 195 Cal.Rptr. 707.)

Third, Barrie continued her refusal and to object to the blood test although she offered no physical resistance thereto. Immediately upon her last refusal Barrie was transported to the hospital handcuffed to a gurney and a blood sample was taken. At no time did Barrie in any manner manifest a retraction of her previous refusals to submit to any test in fact, at the time the blood sample was taken she told Officer Donnelly that she wanted it noted that she was taking the test under protest and that she did not want to take it. It is readily apparent from the foregoing that again she made her refusal clear at the time the test was being administered. Although the determining factor is not the state of mind of the arrested driver but the fair meaning to be given his response to the demand he submit to a chemical test (Cole v. Department of Motor Vehicles, 139 Cal.App.3d 870, 874-875, 189 Cal.Rptr. 249; Buchanan v. Department of Motor Vehicles, 100 Cal.App.3d 293, 299, 160 Cal.Rptr. 557; Cahall v. Department of Motor Vehicles, 16 Cal.App.3d 491, 497, 94 Cal.Rptr. 182; Maxsted v. Department of Motor Vehicles, 14 Cal.App.3d 982, 986, 92 Cal.Rptr. 579), Barrie's statements to Officer Donnelly can only be interpreted as constituting a direct refusal to submit to any chemical test under the statute. There is no room for construction of the word "No"; it can only mean refusal. (Maxsted v. Department of Motor Vehicles, 14 Cal.App.3d 982, 986, 92 Cal.Rptr. 579.)

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