Finley v. Orr

• Decision Date: 03 June 1968
• Citation: 69 Cal.Rptr. 137,262 Cal.App.2d 656
• Court: California Court of Appeals Court of Appeals
• Parties: Charles Austin FINLEY, Petitioner and Appellant, v. Verne ORR, Director, Department of Motor Vehicles for the State of California, Respondent. Civ. 32109.

Page 137

69 Cal.Rptr. 137

262 Cal.App.2d 656

Charles Austin FINLEY, Petitioner and Appellant, v. Verne ORR, Director, Department of Motor Vehicles for the State of California, Respondent.

Civ. 32109.

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

June 3, 1968.

Hearing Denied July 31, 1968.

Day, Atkinson, Adden & Gibson, and William B. Gibson, Whittier, for petitioner and appellant.

Thomas C. Lynch, Atty. Gen., and David Gould, Deputy Atty. Gen., for respondent.

WOOD, Presiding Justice.

Petitioner Finley appeals from a judgment denying his petition for a writ of mandate compelling the respondent Director of the Department of Motor Vehicles to set aside the department's decision suspending petitioner's driving privilege for six months.

Appellant contends that (1) his privilege against self-incrimination was violated, at the department hearing, by receiving evidence of his refusal to submit to a chemical test of his blood, breath, or urine (Veh.Code, § 13353); (2) he was denied his right to have counsel present when he was called upon, while in custody of the police, to decide whether he would submit, or refuse to submit, to one of the tests; (3) he was denied due process of law in that the judicial function of determining reasonable cause for his arrest was delegated (by provisions of Veh.Code, § 13353) to the department; (4) the procedure followed by the department denied him due process of law in that he did not have a fair hearing before an impartial tribunal; and (5) the findings (by department and by superior court) are not supported by substantial evidence.

On February 4, 1967, about 10:25 p.m., Officer Ewen saw petitioner driving an automobile near an intersection in Lakewood. The automobile stopped at a red traffic light, started into the intersection while the lgith was red, and then stopped at a place which was about five feet within the intersection. When the light changed to green, the automobile remained stationary for approximately 10 seconds, and then 'took off suddenly' and weaved back and forth from lane to lane. The officer, after causing the driver to stop the automobile, noticed that the driver (petitioner) had a strong odor of alcohol on his breath. Petitioner failed a 'simple balance test' and was arrested for violating section 23102, subdivision (a), of the Vehicle Code (driving vehicle while under influence of intoxicating liquor).

At the police station, petitioner was advised that he had a right to remain silent and a right to have an attorney present during the questioning; that if he could not afford an attorney, he public defender would be appointed to represent him; and that anything he said could be used against him in court. He said that he understood those rights, and that he wanted to remain silent and wanted an attorney.

The officer read the following statement to petitioner: 'You are requested to submit to a chemical test to determine the alcoholic content of your blood. You have a choice of whether the test is to be of your blood, breath or urine. A refusal will result in the suspension of your driving privilege for a period of six (6) months.' He replied: 'Sure I refuse. If I lose my license, I don't care. I can afford a driver. I have plenty of money.'

The officer again asked him to take the test and told him that the Department of Motor Vehicles required that he submit to one of the three types of test, and that the test could be used in evidence for him or against him. He replied that he 'would do it,' and the officer explained the procedure for giving a breathalyzer test. Petitioner placed the mouthpiece in his mouth, 'but refused to blow.' He was given 'four or five opportunities to blow, and he refused to do so each time.' The officer told him that they were not going to waste any more time, and asked him to sign a 'refusal statement'--a statement that he had refused to take any test. He replied that he would not sign the statement unless his lawyer was present. He did not take a test or sign the statement.

Petitioner's request for a formal hearing was granted by the department (Veh.Code, § 14107 et seq.) A hearing was had before a referee, and petitioner was represented by counsel. Officer Ewen and petitioner testified, and the officer's affidavit (Veh.Code, § 13353, subd. (b)) and other exhibits were received in evidence. Some of the evidence was in substance as hereinabove set forth. Petitioner did not object to any of the evidence relating as his refusal to take the test. The substance of petitioner's testimony is in a footnote. ¹ The referee found that the officer had reasonable cause to believe that petitioner had been driving a motor vehicle upon a highway while under the influence of intoxicating liquor; petitioner was arrested; petitioner refused to submit to a test of his blood, breath, or urine to determine the alcoholic content of his blood; and petitioner had been told that his driving privilege would be suspended if he refused to submit to the test. The referee recommended that the provisions of section 13353 of the Vehicle Code 'be applied.' (Said section provides in part that if a person refuses an officer's request to submit to a chemical test of his blood, breath, or urine, the department shall suspend his driving privilege for six months.) The deputy director of the department reviewed the findings and decided that 'the suspension is proper.'

Petitioner then filed a petition in the superior court for a writ of mandamus compelling the director of the department to set aside the decision suspending his driving privilege. The court found that all of the findings of the department are supported by the weight of the evidence, and denied the petition.

Appellant contends, as above stated, that his privilege against self-incrimination was violated, at the department hearing, by receiving evidence of his refusal to submit to a chemical test of his blood, breath, or urine (Veh.Code, § 13353).

Section 13353 of the California Vehicle Code, which is similar to 'implied consent' laws enacted in several other states, ² provides in part as follows: '(a) Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor. The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe such person was driving a motor vehicle upon a highway while under the influence of intoxicating liquor. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of six months. The person arrested shall have the choice of whether the test shall be of his blood, breath or urine. * * * (b) If any such person refuses the officer's request to submit to a chemical test, the department, upon receipt of the officer's sworn statement that he had reasonable cause to believe such person had been driving a motor vehicle upon a highway while under the influence of intoxicating liquor and that the person had refused to submit to the test after being requested by the officer, shall suspend his privilege to operate a motor vehicle for a period of six months.' Other provisions of section 13353, and provisions of other sections of the Vehicle Code (§ 13952 et seq.) relate to notice and hearing by the department relating to suspension of driving privileges under section 13353.

In Schmerber b. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, a report of the chemical analysis of a blood sample taken from the petitioner (driver) even though he refused to submit to the blood test was received in evidence in a criminal prosecution of petitioner for driving a vehicle while under the influence of intoxicating liquor (Cal.Veh.Code, § 23102, subd. (a)). It was held therein that the admission of the report in evidence did not violate petitioner's privilege against self-incrimination.

In Gilbert v. State of California, 388 U.S. 263, 266--267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178, it was held that the taking of exemplars of petitioner's handwriting did not violate his privilege against self-incrimination, and it was said: 'The privilege reaches only compulsion of an accused's communications * * *, and not compulsion which makes a suspect or accused the source of 'real or physical evidence' * * *. (citing Schmerber v. State of California, supra). * * * A mere handwriting exemplar * * *, like the voice or body itself, is an identifying physical characteristic outside its protection.' It has also been held that the privilege against self-incrimination offers no protection against compulsion to submit to fingerprints, photography, or measurements, or to speak or write for identification. (United States v. Wade, 388 U.S. 218, 223, 87 S.Ct. 1926, 18 L.Ed.2d 1149.)

In People v. Sudduth, 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401, the defendant was found guilty of driving a vehicle while under the influence of intoxicating liquor (Veh.Code, § 23102), and he contended on appeal that his privilege against self-incrimination was violated by the admission of evidence of his refusal to take a breathalyzer test to determine the percentage of alcohol in his blood. The court rejected the contention and held (p. 546, 55 Cal.Rptr. 383, 421 P.2d 401) that suspects have no constitutional right to refuse a test designed to produce physical evidence in the form of a breath sample. The court noted (p. 547, 55 Cal.Rptr. 393, 421 P.2d 401) that other states, which recognize a right to refuse to take such tests, exclude evidence of a refusal. (See note 87 A.L.R.2d 370; cf. State v. Bock, 80 Idaho 296, 328 P.2d 1065,...