Holland v. Department of Motor Vehicles

• Decision Date: 17 April 1979
• Citation: 92 Cal.App.3d 25,154 Cal.Rptr. 492
• Court: California Court of Appeals Court of Appeals
• Parties: Sara Ann HOLLAND, Petitioner and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, State of California, Respondent. Civ. 18073.

Page 492

154 Cal.Rptr. 492

92 Cal.App.3d 25

Sara Ann HOLLAND, Petitioner and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, State of California, Respondent.

Civ. 18073.

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

April 17, 1979.

Rehearing Denied May 3, 1979.

Hearing Denied June 14, 1979.

Tom C. Adler, San Diego, for petitioner and appellant.

Evelle J. Younger, Atty. Gen., and Melvin R. Segal, Deputy Atty. Gen., for respondent.

GERALD BROWN, Presiding Justice.

Sara Ann Holland appeals the judgment after her petition for peremptory writ of mandate to order the Department of Motor Vehicles (DMV) to set aside the suspension of her driver's license was denied. Enforcement of the order of suspension was stayed by this court pending final determination of the appeal.

Holland was arrested and charged with driving under the influence of intoxicating liquor (Veh.Code, § 23102(a)). She refused to submit to a chemical test to determine the alcoholic contents of her blood which resulted in the suspension of her license for six months. (Veh.Code, § 13353.) Holland claims and the trial court found she was emotionally upset, having fought with her husband all weekend, and this impaired her judgment and caused her to refuse to take any of the three offered tests. Holland argues this finding excused her from the implied consent law and made the suspension of her license erroneous.

Vehicle Code section 13353 states in pertinent part:

"(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 . . . 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 . . .. Such person shall be told that his failure to submit to or complete 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, and he shall be (so) advised . . .. If the person arrested . . . is incapable . . . of completing any chosen test, he shall then have the choice of submitting to and completing any of the remaining tests or test . . ..

" . . .itt

"Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent and such tests may be administered whether or not such person is told that his failure to submit to or complete the test will result in the suspension of his privilege to operate a motor vehicle.

"(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, or failed to complete, the test after being requested by the officer, shall suspend his...