Kesler v. Department of Motor Vehicles

• Decision Date: 31 October 1969
• Citation: 1 Cal.3d 74,81 Cal.Rptr. 348,459 P.2d 900
• Court: California Supreme Court
• Parties: , 459 P.2d 900 Earl Larsen KESLER, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. L.A. 29655.

Page 348

81 Cal.Rptr. 348

1 Cal.3d 74, 459 P.2d 900

Earl Larsen KESLER, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

L.A. 29655.

Supreme Court of California In Bank.

Oct. 31, 1969.

Thomas C. Lynch, Atty. Gen., and Herbert Davis, Deputy Atty. Gen., for defendant and appellant.

Hyman Gold, Encino, for plaintiff and respondent.

BURKE, Justice.

The Department of Motor Vehicles (Department) appeals from a judgment of the Superior Court of Los Angeles County granting a peremptory writ of mandate to vacate an order suspending respondent's driver's license. We have concluded that the order of the Department was correct and the judgment of the superior court should be reversed.

Respondent was lawfully arrested for driving while under the influence of intoxicating liquor. Pursuant to Vehicle Code section 13353, ¹ respondent was informed by the arresting officer 'that he had a choice of three chemical tests and that he should submit to one or the other, and that a denial or negative reply constituted a refusal to take a test.' Respondent was further advised that if he refused to take a test, his driver's license would be suspended. However, respondent refused to submit to only a single test, stating that he wanted to take all three tests in order to obtain an 'average' of these tests. Respondent told the arresting officer that a single test would not be 'scientifically conclusive.'

The arresting officer then informed respondent that under the law he had a choice of one of three tests, but not all three as a choice, and that his continued insistence upon all three tests would be treated as a refusal to submit to a test. Respondent remained adamant, and the arresting officer prepared an affidavit of refusal pursuant to section 13353.

Acting upon the affidavit, the Department of Motor Vehicles suspended respondent's license for a period of six months. The superior court granted respondent's petition for writ of mandate on the grounds that respondent's request to take all three tests did not constitute a refusal to submit to a test under section 13353, and that respondent should have been advised by the arresting officer that respondent had the right, under Vehicle Code section 13354, subdivision (b), ² to obtain an additional test at his own expense.

In order to resolve this matter, we must decide two separate issues: first, whether respondent's insistence upon all three tests constituted, in legal effect, a refusal to submit to a test within the meaning of section 13353 and second, if it did constitute such a refusal, whether or not that refusal may be excused by reason of the failure to advise respondent of his right to obtain an additional test at his own expense.

We have concluded that section 13353 neither expressly nor by necessary implication permits one to insist that all three tests be administered to him at the state's expense. Section 13353 refers to the administration of 'a chemical test,' and states quite clearly 'The person arrested shall have the choice of whether the test shall be of his blood, breath Or urine.' (Italics added.) Had the Legislature intended to permit a choice of more than one test, we believe that it would have expressly so provided.

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. (Zidell v. Bright, Supra, at pp. 869--870, 71 Cal.Rptr. 111.)

Whether the purposes of the implied consent statute would be more fairly, efficiently or accurately attained by the revision of section 13353 to permit a choice of all three tests instead of only one is a matter for the Legislature. As the section now reads provision is made only for a choice of one of three tests. Consequently, we hold that respondent's insistence upon taking all three rather than only one constituted, at best, a conditional consent to a test which, under the authorities, must be deemed to be a refusal to submit to a test within the meaning of section 13353 and similar to the conditions held to nullify the consent in Finley v. Orr, 262 Cal.App.2d 656, 667, 69 Cal.Rptr. 137 (that licensee's physician or attorney be present during the test); Fallis v. Depart. of Motor Vehicles, 264 Cal.App.2d 373, 382, 70 Cal.Rptr. 595 (that licensee's physician administer the test); Ent v. Department of Motor Vehicles, 265 Cal.App.2d 936, 71 Cal.Rptr. 726 (that licensee's attorney be present during test); Westmoreland v. Chapman, 268 A.C.A. 855, 74 Cal.Rptr. 363 (that licensee's physician be present during, or administer the test).

The instant case is to be distinguished from James v. State of California, 267 A.C.A. 837, 73 Cal.Rptr. 452, wherein the arrested driver indicated his willingness to take any test administered to him, but simply refused to select a particular test to take. In James, the Court of Appeal held that given a willingness to submit to a test, a mere refusal to indicate a choice did not constitute a refusal to take a test under section 13353. This result seems proper, as section 13353 does not by its terms require the arrested person to select a particular test himself. In the instant case, respondent refused to take only a single test and instead insisted upon taking all three, a right not conferred upon him under section 13353.

Nor does Rust v. Department of Motor Vehicles, 267 A.C.A. 602, 73 Cal.Rptr. 366, improve respondent's position. In Rust, the arresting officer gave the driver an overly broad Miranda warning concerning his right to counsel, without explaining its inapplicability to the blood alcohol test. Since the driver may have been misled by the officer, the Court of Appeal held that the driver's insistence upon calling his attorney before the test was given did not constitute a refusal to submit to a test under section 13353. There is no indication in the record before us that respondent herein was similarly misled regarding his rights.

Turning to the second question of whether or not respondent's refusal may be excused by reason of the failure of the arresting officer to advise respondent that he could obtain an additional test at his own expense, pursuant to section 13354, subdivision (b), we note that neither section 13353 nor section 13354 purports to require the arresting officer to advise the driver that an additional test is available at his expense. Other than the Miranda warning prior to police interrogation, section 13353, subdivision (a), specifies the only warning required to be given, namely, that the driver '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.' Therefore, we may reasonably conclude that the Legislature did not intend to impose the further requirement that the arresting officer advise the driver of the availability of an additional test at his own expense. (Accord, Westmoreland v. Chapman, Supra, 268 A.C.A. 855, 74 Cal.Rptr. 363.)

Nor do we believe that principles of...