Goodman v. Orr

• Decision Date: 03 September 1971
• Citation: 97 Cal.Rptr. 226,19 Cal.App.3d 845
• Court: California Court of Appeals Court of Appeals
• Parties: Mervyn Julius GOODMAN, Plaintiff and Respondent, v. Verne ORR, Director of the Department of Motor Vehicles of the State of California, Department of Motor Vehicles of the State of California, Respondents and Appellants. Civ. 28188.

Page 226

97 Cal.Rptr. 226

19 Cal.App.3d 845

Mervyn Julius GOODMAN, Plaintiff and Respondent, v. Verne ORR, Director of the Department of Motor Vehicles of the State of California, Department of Motor Vehicles of the State of California, Respondents and Appellants.

Civ. 28188.

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

Sept. 3, 1971.

Thomas C. Lynch, Atty. Gen., Wiley Manuel, Asst. Atty. Gen., Jefferson Frazier, Deputy Atty. Gen., San Francisco, for appellants.

Herbert K. Walton, Jr., San Rafael, for respondent.

SIMS, Associate Justice.

The Department of Motor Vehicles and its director have appealed from a judgment which granted the petitioner below a peremptory writ of mandate commanding the setting aside of an order of suspension of his driver's license which had been promulgated pursuant to the provisions of section 13353 of the Vehicle Code following a formal hearing. The department and the director contend that the trial court erred in finding that the petitioner attempted to comply with conflicting directions of the law enforcement officer and did not refuse to submit to any chemical test. An examination of the findings and the evidence on which they were predicated ¹ reveals that the petitioner did in fact refuse to submit to a chemical test, that the instructions, if deemed confliction, were explained, and that any confusion in the mind of the petitioner was engendered not by the instructions given by the officers, but by his self-impaired ability to understand, whether induced by his partial intoxication or otherwise. The judgment must be reversed.

I

The function of the trial court in matters of this nature has been defined in James v. Dept. of Motor Vehicles (1968) 267 Cal.App.2d 750, 73 Cal.Rptr. 452, as follows: 'Since the deprivation of an existing license interferes with an existing vested right (citations), and since Department is a statewide agency of legislative rather than constitutional origin, the independent judgment of the trial court should be used to ascertain if the evidence was sufficient to support the findings of the administrative board in the instant case.' (267 Cal.App.2d at p. 752, 73 Cal.Rptr. at p. 454. See also Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 914, 80 Cal.Rptr. 89, 458 P.2d 33; Walker v. Department of Motor Vehicles (1969) 274 Cal.App.2d 793, 795, 79 Cal.Rptr. 433; and Finley v. Orr. (1968) 262 Cal.App.2d 656, 666, 69 Cal.Rptr. 137.) Here the court expressly recited in the findings, 'Regardless of the construction placed upon the testimony by the Department, it is now independently construed by the Court to show that and the Court finds that petitioner attempted to comply with the conflicting directions of the law enforcement officer and did not refuse to submit to any chemical test.'

In Merrill v. Department of Motor Vehicles, supra, the court restated the rule to guide this court on review as follows: 'In a case wherein the trial court is authorized to conduct a limited trial de novo * * * the province of the appellate court is analogous to that assumed by it in an ordinary civil appeal: only errors of law are subject to its cognizance, and a factual finding can be overturned only if the evidence received by the trial court, including the record of the administrative proceeding, is insufficient as a matter of law to sustain the finding. (Citations.)' (71 Cal.2d at p. 915, 80 Cal.Rptr. at p. 94, 458 P.2d at p. 38. See also James v. Department of Motor Vehicles, supra, 267 Cal.App.2d 750, 753, 73 Cal.Rptr. 452.) The question, therefore, is whether there was substantial evidence to sustain the trial court's finding of fact that the defendant did not refuse to submit to any chemical test. With exceptions noted below, there is little conflict in the evidence. The findings, however, are inconsistent, and, as reconciled and supported by the evidence, demonstrate that there was a refusal within applicable principles of law.

II

At the hearing before the department it was stipulated that the arresting officer had reasonable cause to believe that the petitioner was driving a motor vehicle upon a highway while under the influence of intoxicating liquor, and that the petitioner was lawfully arrested at 10:05 p.m. on March 28, 1969, for an alleged violation of section 23102, subdivision (a) of the Vehicle Code. The trial court made findings in accordance with the stipulation.

The following facts appear from the findings: At the time of the arrest an officer read the Miranda admonition to the petitioner from the standard printed card used by the California Highway Patrol. ² To each statement petitioner replied, 'I understand it', but when the statement had been read in its entirety, petitioner was asked if he understood and replied 'No.' The rights card was again read to petitioner, and after each statement petitioner was asked if he understood that statement, and each time replied 'Yes.'

After being given the Miranda warning in full petitioner was handcuffed and transported by the patrol officer's car to the Marin County Jail in the courthouse in San Rafael. There they were met by a laboratory technician who had been called to administer a chemical test. At approximately 10:45 p.m. (40 minutes after his arrest) petitioner was asked to submit to a blood test. Petitioner then stated he refused to submit to such test until he could call his lawyer.

One of the officers then read petitioner the standard implied consent admonition under section 13353 of the Vehicle Code. Petitioner was requested to submit to a chemical test, offered a choice of a blood, breath or urine test, and informed that a refusal would result in the suspension of his driving privileges for six months. Petitioner initially replied to the officer's request under section 13353 by saying, 'I'm not going to take a test until I call my lawyer.' Petitioner's request to see his lawyer and his apparent refusal to take a test at that time was the direct result of confusion produced by the Miranda warning and admonition given to him at the time of his arrest, and the apparently conflicting admonition and warning in the statement read to him from section 13353 of the Vehicle Code. ³ The statement under section 13353 was read to the petitioner two or three times.

After it was read to petitioner a second time, and petitioner again stated that he wanted to talk to his lawyer, the arresting officers advised him that his right to consult an attorney did not apply to the chemical test request, and that he would be permitted to contact his lawyer after he was booked. ⁴ Petitioner stated once again that he would not take a test until he could talk with his lawyer. He was then booked for a violation of section 23102, subdivision (a) of the Vehicle Code and no chemical test was administered.

The court found, in addition to the general finding referred to above (see fn. 3 above), that after receiving the specific advice from the officers the petitioner 'remained confused because of both of the conflicting warnings and his partial intoxication,' and more specifically, 'When he declined to submit to a chemical test until he could speak with his attorney, petitioner had been doing a substantial amount of drinking, and his ability to understand the difference between a Miranda warning and the admonition under Vehicle Code Section 13353 was impaired. He at no time intended to refuse compliance with legal requirements, as he understood them, and at no time intended to or did refuse to consent to tests within the conditions he understood the officer to have specified.'

The last findings are supported by petitioner's testimony (see fn. 3 above), but the question remains, did the confusion referred to relieve the petitioner of his refusal to take the test, after the officers, as found by the court on sufficient evidence, had advised him that his right to consult an attorney did not apply to the chemical test? ⁵

III

In Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 81 Cal.Rptr. 348, 459 P.2d 900, cert. den. 397 U.S. 989, 90 S.Ct. 1121, 25 L.Ed.2d 396, the court stated: 'A court should interpret legislation reasonably and should attempt to give effect to the apparent purpose of the statute. Our implied consent statute, including section 13353, was enacted to fulfill the need for a fair, efficient and accurate system of detection and prevention of drunken driving. (People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 421 P.2d 401; Zidell v. Bright, 264 Cal.App.2d 867, 71 Cal.Rptr. 111.) The immediate purpose of section 13353 is to obtain the best evidence of blood alcohol content at the time of the arrest of a person reasonably believed to be driving while intoxicated. The long range purpose is, of course, to inhibit intoxicated persons from driving on the highways. (Citation.)' (1 Cal.3d at p. 77, 81 Cal.Rptr. at p. 351, 459 P.2d at p. 903. See, in addition to the cases cited, Quesada v. Orr (1971) 14 Cal.App.3d 866, 869, 92 Cal.Rptr. 640; Hulshizer v. Department of Motor Vehicles (1969) 1 Cal.App.3d 807, 810--811, 82 Cal.Rptr. 330, Chantry, J. pro tem. concurring; Funke v. Department of Motor Vehicles (1969) 1 Cal.App.3d 449, 454, 81 Cal.Rptr. 662; and Bush v. Bright (1968) 264 Cal.App.2d 788, 790, 71 Cal.Rptr. 123.)

'It is well settled that a person arrested for driving a motor vehicle while under the influence of intoxicating liquor has no constitutional right to consult an attorney before deciding whether he will submit to one of the three chemical tests specified in Vehicle Code, section 13353. (Ent v. (State) Department of Motor Vehicles, 265 Cal.App.2d 936, 938, 71 Cal.Rptr. 726; Fallis v. Department of Motor Vehicles, 264 Cal.App.2d 373, 70 Cal.Rptr. 595; Finley v. Orr, 262 Cal.App.2d 656, 663, 69 Cal.Rptr. 137.)' (Smith v. Department of Motor Vehicles (1969) 1 Cal.App.3d 499, 504, 81 Cal.Rptr. 800, 803. See, in addition to cases cited, Funke v. Department of...