Covington v. Department of Motor Vehicles
Decision Date | 11 February 1980 |
Citation | 102 Cal.App.3d 54,162 Cal.Rptr. 150 |
Court | California Court of Appeals Court of Appeals |
Parties | James Milton COVINGTON, Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Appellant. Civ. 56353. |
George Deukmejian, Atty. Gen., and Thomas M. Scheerer, Deputy Atty. Gen., for appellant.
Atkinson & Gibson, A Professional Corp., and William B. Gibson, Whittier, for respondent.
This is an appeal from a judgment which granted a peremptory writ of mandate compelling the Department of Motor Vehicles (DMV) to set aside its decision to suspend James Milton Covington's (respondent) driving privilege for six months pursuant to the implied consent law (Veh.Code, § 13353).
Vehicle Code section 13353, subdivision (b) 1 provides that if a person refuses an officer's request or fails to complete a chemical test, on receipt of the officer's sworn statement that he had reasonable cause to believe such person had been driving a motor vehicle under the influence of intoxicating liquor, DMV shall suspend his privilege to operate a motor vehicle for a period of six months. Pursuant to the section Officer Devine sent to DMV a statement concerning respondent and his refusal to take a test as required when arrested. Based on this sworn statement DMV suspended respondent's license. He appealed and a hearing was held. After the hearing the DMV ruled that the suspension was reasonable and proper. Respondent filed a petition for writ of mandate and after a hearing the superior court granted the petition. This appeal followed.
At the administrative hearing, Officer Devine testified as follows: (Question)
Officer Devine testified that this testimony took place approximately at midnight and Mr. Covington was then taken to the Whittier Police Department and booked for a violation of Vehicle Code section 23102, subdivision (a). The booking occurred at about 12:30 a. m. At about this time Officer Devine left. Approximately an hour and a half or an hour and forty minutes later, respondent stated that he wished to be released. Lieutenant Johnson then suggested that he take a breathalyzer test. Respondent consented and two chemical tests of his breath were taken. These were used in his prosecution for violation of Vehicle Code section 23102, subdivision (a) (drunk driving), and he was found guilty.
Respondent denied that Officer Devine read him the provisions of section 13353. He did concede that he refused to take the tests without his attorney being present and that Officer Devine told him he did not have such a right.
On appeal DMV claims it is clear that respondent refused to submit to a test at Officer Devine's request. His response was that he would only submit if his attorney could be present and Vehicle Code section 13353, subdivision (a) allows no such condition or qualification to be placed on the submission to a test. 2 DMV claims that respondent violated the section even though he did agree to take the test approximately an hour and a half later. It relies on Skinner v. Sillas, 58 Cal.App.3d 591, 130 Cal.Rptr. 91 and Zidell v. Bright, 264 Cal.App.2d 867, 71 Cal.Rptr. 111.
In Skinner the driver of a vehicle was booked for violation of section 23102 and was told he would have to take one of the three tests under section 13353. He elected the urine test but at the last minute he refused to take it. He was locked up and the arresting officer left. Approximately four and one-half hours later he agreed to give the urine sample and the test was administered. He pleaded guilty to the 23102 violation. After the DMV received the sworn statement of the arresting officer, it suspended his license. As in this case the superior court issued a writ of mandate ordering DMV to reinstate his driver's license. On Appeal from said writ the Court of Appeal reversed stating 58 Cal.App.3d at pages 598-599, 130 Cal.Rptr. at p. 95:
In Zidell the driver of the vehicle was booked and was permitted to call his attorney. After talking to his attorney he refused to submit to any of the tests. The arresting officer then left the station to resume other police duties. Thirty to forty-five minutes later, still during the booking process, the driver stated that he had changed his mind...
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People v. Thompson
...under section 23612, and punishing the driver for the criminal act of driving under the influence. (Covington v. Department of Motor Vehicles (1980) 102 Cal. App.3d 54, 60, 162 Cal.Rptr. 150; People v. Fite (1968) 267 Cal.App.2d 685, 690-691, 73 Cal.Rptr. 3. To the extent dictum in People v......
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...233 (1978) (acquittal of DUI charge had no effect on revocation of license for refusal to take chemical test); Covington v. MVD, 102 Cal.App.3d 54, 162 Cal.Rptr. 150 (1980) (conviction of DUI did not bar subsequent revocation of license for refusal to submit to test); Walker v. State, 229 M......
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Lee v. Department of Motor Vehicles
...that the arresting officer does not necessarily have to be the one to administer the test.In Covington v. Department of Motor Vehicles (1980) 102 Cal.App.3d 54, at page 59, 162 Cal.Rptr. 150, the court did suggest that a breath test "could only have been [administered by] the officer or off......
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Standish v. Department of Revenue, Motor Vehicle Div., 56147
...considered the arguments of the parties and cases from other jurisdictions. See, for example, Covington v. Department of Motor Vehicles, 102 Cal.App.3d 54, 162 Cal.Rptr. 150 (1980); Asbridge v. North Dakota State Highway Com'r, 291 N.W.2d 739 (N.D.1980); Peterson v. State, 261 N.W.2d 405, 4......
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