Daly v. Department of Motor Vehicles

• Decision Date: 10 November 1986
• Citation: 187 Cal.App.3d 257,232 Cal.Rptr. 7
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph Charles DALY, Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Appellant. D003249.

Page 7

232 Cal.Rptr. 7

187 Cal.App.3d 257

Joseph Charles DALY, Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Appellant.

D003249.

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

Nov. 10, 1986.

As Modified Nov. 21, 1986.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., and Melvin R. Segal, Supervising Deputy Atty. Gen., San Diego, for appellant.

Espinosa & Espinosa and Robert A. Espinosa, El Centro, for respondent.

BUTLER, Associate Justice.

Deputy Sheriff Kathleen Coffey arrested Joseph Charles Daly for drunk driving. At the jail, she admonished Daly his refusal to submit to a chemical test to determine blood alcohol content would result in suspension of his driving license for six months. Daly had a prior drunk driving conviction authorizing a one-year suspension for failure to submit to testing. Coffey did not admonish Daly as to that consequence. Daley did not submit to testing.

The Department of Motor Vehicles (Department) suspended Daly's driver's license. He requested a hearing. The hearing officer found Daly was lawfully arrested and that he refused to take any of the tests. Because Coffey failed to admonish Daly the prior would result in a one-year suspension, the hearing officer recommended Daly's license "be suspended for six months only under the provisions of Section 13353 of the California Vehicle Code." ¹ The Department suspended Daly's license for six months.

The court granted Daly's petition for a writ of mandate and lifted the suspension, finding (1) Coffey admonished Daly his failure to take any of the tests would result in a six-month suspension, (2) Coffey failed to warn Daly such failure would result in a one-year suspension as he had a prior conviction within the past five years, and (3) Coffey's failure to admonish as to the one-year suspension required vacating the six-month suspension.

Appealing, the Department argues the judge erred when he precluded sanctions altogether because the admonition spoke only to a six-month suspension, contending common sense and public policy authorize that suspension as Daly was warned the license would be suspended for six months. We shall conclude the six-month admonishment did not divest the Department of its duty to suspend Daly's license and the six-month suspension was a valid order. We shall reverse and remand with instructions to cause the Department to suspend Daly's license for six months.

I

Section 13353, subdivision (a)(1), ² as effective at times relevant, provided in pertinent part:

"Any person who drives a motor vehicle shall be deemed to have given his or her consent to chemical testing of his or her blood, breath, or urine for the purpose of determining the alcoholic content of his or her blood, and to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for any offense allegedly committed in violation of Section 23152 or 23153. The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23152 or 23153. The person shall be told that his or her failure to submit to, or the noncompletion of, the required chemical testing will result in the suspension of the person's privilege to operate a motor vehicle for a period of six months, or for a period of one year if the person has previously been convicted of a violation of Section 23152, 23153, or 23103 as specified in Section 23103.5 within five years of the date of the refusal."

Section 13353, subdivision (b), goes on to provide upon a prescribed notice of refusal to submit to a chemical test:

"the department shall suspend the person's privilege to operate a motor vehicle for a period of six months, or for a period of one year if the person has previously been convicted of a violation of Section 23152, 23153, or 23103 as specified in Section 23103.5 within five years of the date of the refusal...."

After a requested hearing, if the Department determines to suspend the affected person's privilege to operate a motor vehicle, the suspension does not become effective until five days after receipt of suspension notice (§ 13353, subd. (c)(3)).

II

After a police officer lawfully arrests a person for driving under the influence of alcohol, the officer must warn the person he or she has to submit to chemical testing, and refusal to do so results in a suspension of the driver's license. The warning must not be speculative and must be couched in mandatory language. If a court finds the warning to be inadequate, it will vacate the order to suspend the license. (Decker v. Department of Motor Vehicles (1972) 6 Cal.3d 903, 101 Cal.Rptr. 387, 495 P.2d 1307; Giomi v. Department of Motor Vehicles (1971) 15 Cal.App.3d 905, 93 Cal.Rptr. 613.) In Decker and Giomi, the courts vacated suspensions of license because the warnings given there reduced " 'the admonition to one of bare possibility, which thus amounts to no warning at all.' " (Decker, supra, 6 Cal.3d at p. 906, 101 Cal.Rptr. 387, 495 P.2d 1307, quoting Giomi, supra, 15 Cal.App.3d at p. 907, 93 Cal.Rptr. 613; see also Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354, 360, 165 Cal.Rptr. 626.)

The implied consent statute "is perhaps a paradigm example of a classic 'health and safety' police power measure, clearly enacted by the Legislature to foster the safety of the public in the use of the state's highways." (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 76, 177 Cal.Rptr. 566, 634 P.2d 917.) It was passed "to eliminate the carnage on our highways caused by those who drive after drinking excessively" (Behan v. Alexis (1981) 116 Cal.App.3d 403, 407, 172 Cal.Rptr. 132) and "was enacted to fulfill the need for a fair, efficient and accurate system of detection and prevention of [such] drunken driving." (Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 77, 81 Cal.Rptr. 348, 459 P.2d 900; Hernandez v. Department of Motor Vehicles, supra, 30 Cal.3d 70 at p. 77, 177 Cal.Rptr. 566, 634 P.2d 917.) The state has a strong interest in obtaining evidence of a person's blood alcohol content at the time of an arrest. The alternative presented to a person stopped because the police officer has reasonable cause to believe the person is driving under the influence of drugs or alcohol (§§ 23152, 23153), i.e., either take a test or have your driver's license suspended, avoids the violence which may occur if a recalcitrant and belligerent person refuses testing; it gives peace officers a tool of enforcement not involving physical compulsion. (Hernandez v. Department of Motor Vehicles, supra, at p. 77, 177 Cal.Rptr. 566, 634 P.2d 917; ...