Cole v. Department of Motor Vehicles

• Decision Date: 14 February 1983
• Citation: 139 Cal.App.3d 870,189 Cal.Rptr. 249
• Court: California Court of Appeals Court of Appeals
• Parties: Lester COLE, Petitioner and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. Civ. 65099.

Page 249

189 Cal.Rptr. 249

139 Cal.App.3d 870

Lester COLE, Petitioner and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Civ. 65099.

Court of Appeal, Second District, Division 2, California.

Feb. 14, 1983.

George Deukmejian, Former Atty. Gen., John K. Van de Kamp, Atty. Gen., Martin H. Milas, Deputy Atty. Gen., for respondent and appellant.

Lester Cole, in pro. per.

COMPTON, Associate Justice.

This is an appeal from a judgment granting a peremptory writ of mandate directing appellant, the Department of Motor Vehicles, to vacate its action suspending respondent Lester Cole's driving privilege for failure to submit to a blood, breath, or urine test as required by Vehicle Code section 13353, ¹ the implied consent law. We reverse the judgment.

The undisputed facts presented at the departmental hearing concerning respondent's conduct were provided by the testimony of the arresting officer, a member of the California Highway Patrol.

Respondent was lawfully arrested for felony drunk driving at the scene of an injury accident. While at the scene he was given all of the proper admonitions concerning the submission to a chemical test of his blood alcohol level.

Respondent's reply was that he would submit to no test without first consulting an attorney, whereupon the officer advised respondent that such an option was not available and again repeated the law to respondent by reading from a prepared form. ² Respondent again insisted on talking to an attorney before submitting to any test.

Once in the patrol car, the officer carefully advised respondent that because he had been arrested for felony drunk driving, a blood sample could be extracted even without his consent. The appropriate Miranda warnings were given at approximately the same time. In light of respondent's continuing refusal to submit to any test voluntarily, the officer elected to proceed to a hospital.

After arriving at the hospital's emergency room, the officer directed a medical technician to draw the blood sample. Respondent, refusing to roll up his sleeve, warned that he wanted the record to reflect that the test was being administered under duress. The officer and technician then rolled up the sleeve on respondent's shirt and the sample was withdrawn. Throughout these proceedings respondent remained essentially passive and offered no resistance.

At the hearing respondent testified that he had no recollection of telling the officer that he wanted him to know that the blood sample was being taken by force or of refusing to roll up his own sleeve. He claimed, however, that at or about the time his arm was being prepared by the medical technician for the extraction he "thought about it and thought that I better take the test." When asked by his counsel why he changed his mind, respondent replied, "because I need my driver's license to work." The record next reflects the following colloquy between the administrative referee and respondent: "REF. HARRISON: Did you ever tell the officer I've changed my mind, its okey. I'll take the test? Or words to that effect? MR. COLE: I did not say that I wouldn't take a test. REF. HARRISON: Now did you ever tell the officer I will take the test? MR. COLE: That I don't recall sir."

Following the hearing, the department determined that respondent had failed to comply with the requirements of Vehicle Code section 13353 and suspended his driver's license for a period of six months. Thereafter respondent sought relief in the superior court by the filing of a petition for writ of administrative mandamus. Without taking any additional evidence, and based solely upon the transcript of the testimony given before the department, the court concluded as a matter of law that respondent had submitted to and completed a chemical test as required by statute. ³

Since the issue presented is purely one of law, the facts not being in dispute, the test applied by the superior court, i.e., "substantial evidence" or "independent judgment" is immaterial.

Our review of the record leads us to conclude that the department was correct in ordering the suspension of respondent's license and that the trial court erred in entering its judgment granting a writ of mandate to set aside that determination.

Vehicle Code section 13353 requires an arresting officer to advise an arrested driver that his failure to submit to a chemical test will result in a six-months suspension of his driving privilege; that he has the choice of a blood, breath, or urine test; that he does not have the right to have an attorney present before stating whether he will submit to a test before deciding which test to take or during administration of the test chosen. The arresting officer more than adequately complied with each of these specific requirements. (Cf. Lampman v. Department of Motor Vehicles (1972) 28 Cal.App.3d 922, 105 Cal.Rptr. 101.) Despite his admitted understanding of the admonition given, respondent stubbornly refused to submit to any test unless he could communicate first with his attorney. This "conditional acceptance" is tantamount to a refusal as a matter of law. (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 119 Cal.Rptr. 804; Maxsted v. Department of Motor Vehicles (1971) 14 Cal.App.3d 982, 92 Cal.Rptr. 579.)

To respondent's credit, he did not have to be subdued and offered no physical resistance to the drawing of blood at the hospital. His refusal, however, to even so much as roll up his own sleeve, requiring that the arresting officer and the attendant medical technician do so, indicates that up until the time the hypodermic needle was inserted into his arm, he in no way manifested any retraction of his previous refusal to submit to any test. Respondent's statements, as well as his actions, can only be interpreted as constituting a refusal under the statute. (Cf. Maxsted v. Department of Motor Vehicles, supra; McGue v. Sillas, 82 Cal.App.3d 799, 147 Cal.Rptr. 354; Buchanan v. Department of Motor Vehicles, 100 Cal.App.3d 293, 160 Cal.Rptr. 557.) ⁴

Respondent contends, ⁵ however, that immediately before the blood was drawn he changed his mind and consented to the test. This argument has been unanimously rejected by the appellate courts of this state. "The determining factor is not the state of the suspect driver's mind, it is the fair meaning to be given his response to the demand that he submit to the chemical test." (Maxsted v. Department of Motor Vehicles, supra, 14 Cal.App.3d at 986, 92 Cal.Rptr. 579; Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 94 Cal.Rptr. 182; Buchanan v. Department of Motor Vehicles, supra, 100 Cal.App.3d at 299, 160 Cal.Rptr. 557.) Under the circumstances the only fair meaning that can be drawn from respondent's conduct is that he refused to submit to any chemical test.

Respondent goes on to argue that even though he may have been reluctant to comply with the officer's request, there was no refusal because he did in fact "complete" the test administered. He reasons that section 13353 is written in the disjunctive and requires an arrestee either to "submit to" or "complete" any one of three tests. Since a reviewing court must interpret legislation reasonably and give effect to the apparent legislative purpose of a statute, we must...