Bush v. Bright
| Decision Date | 08 August 1968 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Arthur Curtis Antrim BUSH, Petitioner and Respondent, v. Tom BRIGHT, Director of the Department of Motor Vehicles of the State of California, Department of Motor Vehicles of the State of California, Respondents and Appellants. Civ. 24819. |
Thomas C. Lynch, Atty. Gen. of California, Victor D. Sonenberg, Deputy Atty. Gen., San Francisco, for appellants.
Berwyn A. Rice, San Rafael, for respondent.
This appeal concerns the interpretation of Vehicle Code section 13353, enacted in 1966 relating to chemical tests of intoxicated automobile drivers.
The section applies to any lawfully arrested person whom a peace officer has reasonable cause to believe was driving a motor vehicle upon a highway while under the influence of intoxicating liquor. It provides that such person shall be deemed to have given his consent to a chemical test of his blood, breath or urine. He may choose the type of test to be given. It also provides that if such a person refuses the officer's request to submit to such a test it need not be given, but his driver's license shall be suspended for six months. Provision is made that the person be told of the penalty which will result from his refusal.
The purpose of section 13353 is to reduce the toll of death and injury resulting from the operation of motor vehicles on California highways by intoxicated persons. As said in People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 395, 421 P.2d 401, 403, 'In a day when excessive loss of life and property is caused by inebriated drivers, an imperative need exists for a fair, efficient, and accurate system of detection, enforcement and, hence, prevention.'
The obvious reason for acquiescence in the refusal of such a test by a person who as a matter of law is 'deemed to have given his consent' is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates. With this exception, the chemical tests may be given to any person covered by the statute, even if he be 'dead, unconscious, or otherwise in a condition rendering him incapable of refusal.'
Such tests do not violate one's right against self-incrimination (Schmerber v. State of California, 384 U.S. 757, 760--765, 86 S.Ct. 1826, 16 L.Ed. 908; People v. Sudduth, supra, 65 Cal.2d 543, 546--547, 55 Cal.Rptr. 393, 421 P.2d 401; United States v. Wade, 388 U.S. 218, 221, 87 S.Ct. 1926, 18 L.Ed.2d 1149), nor one's right to be free from unreasonable searches and seizures (Schmerber v. State of California, supra, 384 U.S. pp. 766--772, 86 S.Ct. 1826), nor one's right to counsel (United States v. Wade, supra; People v. Sudduth, supra, 65 Cal.2d p. 546, 55 Cal.Rptr. 393, 421 P.2d 401; see also Gilbert v. State of California, 388 U.S. 263, 87 S.Ct.1951, 18 L.Ed.2d 1149).
The record before us discloses facts which are essentially uncontradicted. Respondent Arthur Curtis Antrim Bush was seen by a police officer driving an automobile in an erratic manner. He was lawfully arrested for the offense of driving a motor vehicle while under the influence of intoxicating liquor. Bush had been at a party earlier that evening where he admittedly had at least 12 drinks of Scotch over ice. The drinks were larger than one would get in a bar, 'certainly' more than an ounce in each drink. He then went to another party where he was sure he did not decrease the amount of his drinking. It is clear that when he was arrested he was grossly intoxicated. However, on three occasions when requested to submit to a chemical test he responded by answering 'No,' or by shaking his head negatively. Accordingly, a test was not given him. He had been properly advised as to the consequences of such a refusal.
After a Motor Vehicle Department administrative hearing Bush's license was ordered revoked for six months. He then sought a writ of mandate (Code Civ.Proc. § 1094.5) in the superior court for the purpose of annulling the order. The superior court exercised its independent judgment on the administrative record. 1
The court's findings recite that at the time Bush 'was requested to submit to said test (he) was incapable of refusing to so submit because of his extreme intoxication.' It was concluded as a matter of law 'The petitioner did not violate the provisions of Vehicle Code section 13353.' From the ensuing judgment setting aside Bush's license suspension this appeal was taken.
Bush based his argument below, as he does here, on the following language of section 13353: 'Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent.' He contends that this provision 'is intended to provide the person arrested with certain inalienable rights' affording 'a fundamental protection to the person whose reasoning power or intelligence has been so greatly impaired as to prevent him from making an intelligent choice or waiving the right afforded him.' The Legislature, he says, 'intended that a person be aware of his rights and be given an opportunity to make a reasonable choice or a waiver.' Finally, he says, since he was too drunk to make an intelligent waiver of his rights, he was completely unaffected by the portion of the statute under which he could refuse the test, and by the penalty provision for its refusal.
The statute's provision that 'Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent' does not confer any 'rights' upon an intoxicated driver. It simply allows the chemical test of a person who is dead, unconscious or otherwise unable to refuse--making it clear that even in such cases the earlier provision that the person shall be deemed to have given his consent shall nevertheless apply.
Bush otherwise...
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State v. Newton
...those charged with administering it, that it is excused upon an indication of his unwillingness. * * *" Bush v. Bright, 264 Cal.App.2d 788, 790, 792, 71 Cal.Rptr. 123 at 124, 125 (1968) (original Thus refusal as contemplated by the statute is something other than withholding of consent beca......
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Campbell v. Superior Court In and For Maricopa County
...have a constitutional right to refuse to take a breathalyzer test comment upon such refusal is proper. See also Bush v. Bright, 264 Cal.App.2d 788, 71 Cal.Rptr. 123 (1968); Finley v. Orr, 262 Cal.App.2d 656, 69 Cal.Rptr. 137 In Arizona, A.R.S., § 28--691, subsec. D provides that '(I)f a per......
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State v. Wilson
...his consent" is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates. Bush v. Bright, 264 Cal.App.2d 788, 790, 71 Cal.Rptr. 123, 124 (1968). Id. at 181-82, 579 P.2d at 669 (emphasis added). In short, we recognized the implied consent statute's underlyin......
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People v. Agnew
...to test, because that person's implied advance consent would be deemed not to have been withdrawn. (Cf. Bush v. Bright (1968) 264 Cal.App.2d 788, 792–793, 71 Cal.Rptr. 123 (the statute's provision allowing the chemical test of a person unconscious or otherwise unable to refuse makes "it cle......
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Table of cases
...1428, §11:162 Burns v. Municipal Court of Los Angeles Judicial Dist. (1961) 195 Cal.App.2d 596, 598, §6:21.3 Bush v. Bright (1968) 264 Cal.App.2d 788, §11:142.4.7 Bussard v. Dept. of Motor Vehicles (2008) 164 Cal.App.4th 858Cal.App.4th, §11:61 Bussard v. DMV (2007) (Bakersfield Superior Cou......
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DMV proceedings
...chemical test admonition will get you nowhere, unless you can establish that the intoxication was involuntary. Bush v. Bright (1968) 264 Cal.App.2d 788; see also Goodman v. Orr (1971) 19 Cal.App.3d 845, and Fankhauser v. Orr (1968) 268 Cal. App.2d 418. Impairment caused in part by the volun......
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...refused to submit to the test. Carey v. Melton , 64 A.D.2d 983, 408 N.Y.S.2d 817 (N.Y. App. Div. 2d Dep’t 1978); Bush v. Bright , 264 Cal. App. 2d 788, 71 Cal. Rptr. 123 (Cal. App. 1st Dist. 1968). Furthermore, in Walthour v. Commonwealth, Dep’t of Transp , 458 A.2d 1066 (1983), the court r......