Carrey v. Department of Motor Vehicles
Decision Date | 31 July 1986 |
Citation | 183 Cal.App.3d 1265,228 Cal.Rptr. 705 |
Court | California Court of Appeals Court of Appeals |
Parties | Jean Edward CARREY, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. B 016833. |
John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Henry G. Ullerich, Supervising Deputy Atty. Gen., and Marilyn K. Mayer, Deputy Atty. Gen., for respondent and appellant.
Robert E. Courtney, Redondo Beach, A. William Bartz, Manhattan Beach, for petitioner and respondent.
The Department of Motor Vehicles (DMV) appeals from a Superior Court judgment granting a peremptory writ of mandate, setting aside the Department's six-month suspension of Jean Carrey's driving privilege pursuant to Vehicle Code section 13353. The principle issue on appeal is whether Carrey's statement that he would not sign the hospital "consent to blood test" form constitutes a refusal to submit to a chemical test for intoxication. Finding that it does, we reverse the trial court's judgment.
In the afternoon of October 21, 1984, Torrance Police Officers Hill and Kerber arrested Carrey for the felony offenses of drunk driving and hit and run. Carrey is a doctor. Carrey was handcuffed and placed in Officer Hill's police unit. Officer Hill advised Carrey of the "implied consent" law, Vehicle Code section 13353 (now section 23157), as follows:
(Emphasis added.)
After a brief period of confused indecision, Carrey requested the blood test, but stated he would take it only at Torrance Memorial Hospital.
Carrey was transported to that hospital and was asked to sign the hospital's "CONSENT TO BLOOD TEST" form. It states:
After reading this form, Carrey said "I'm not going to sign that form because I'm taking some medicines that can affect my bleeding."
Officer Kerber circled the portion of the consent form concerning the use of anticoagulant. He told Carrey that because he was taking anticoagulants he could not take a blood test, and would have to choose a breath test or a urine test. 1 Carrey continued to insist on a blood test, refused to take either a breath or urine test, said that the police were wasting everybody's time and that they should "just ... take his [driver's] license." Shortly thereafter, the officers took Carrey to jail for booking.
Officer Kerber submitted a statement to the DMV that Carrey had refused to submit to or failed to complete a chemical test of his blood, breath or urine after being requested to do so.
On November 9, 1984, the DMV issued an Order of Suspension to Carrey. This order was stayed when Carrey requested a hearing, which was held on February 11, 1984, before a referee appointed by the Department. The referee found: "(1) The officer had reasonable cause to believe [Carrey] had been driving a motor vehicle in violation of section 23152 or 23153 V.C., (2) [Carrey was] lawfully arrested, (3) [Carrey was] told [his] driving privilege would be suspended for six or twelve months if [he] refused to submit to, or failed to complete, a chemical test, (4) [Carrey] refused to submit to, or failed to complete, a chemical test of your blood, breath, or urine after being requested to do so by the officer." The referee concluded, (Italics added.) The DMV suspended Carrey's driving privilege.
On April 2, 1985, Carrey filed a petition for administrative mandamus in the superior court to to which the DMV responded. Ultimately the court issued its Statement of Decision, which stated in part:
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