McConville v. Alexis

• Decision Date: 11 October 1979
• Citation: 96 Cal.App.3d 705,159 Cal.Rptr. 49
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal.App.3d 593 Donald R. McCONVILLE, Petitioner and Respondent, v. Doris V. ALEXIS, as Director, etc., Defendant and Appellant. Civ. 55309.

Page 49

159 Cal.Rptr. 49

96 Cal.App.3d 705, 97 Cal.App.3d 593

Donald R. McCONVILLE, Petitioner and Respondent, v. Doris V. ALEXIS, as Director, etc., Defendant and Appellant.

Civ. 55309.

Court of Appeal, Second District, Division 3, California.

Oct. 11, 1979.

George Deukmejian, Atty. Gen., Marilyn K. Mayer and John J. Crimmins, Deputy Attys. Gen., for respondent and appellant.

John E. Chemeleski, Los Angeles, for petitioner and respondent.

KLEIN, Presiding Justice.

STATEMENT OF THE CASE

This is an appeal by the Director of the Department of Motor Vehicles (hereinafter DMV) from a judgment of the superior court in administrative mandamus setting aside a decision of DMV to revoke, for a period of six months, the driver's license of Donald McConville (McConville). The license revocation was based on McConville's asserted failure to comply with the provisions of Vehicle Code section 13353, which creates, on the part of drivers suspected of being intoxicated, an implied consent to a chemical test of either their blood, breath, or urine. ¹

At the administrative hearing held to determine McConville's compliance with the implied consent statute, the arresting officer, Charles Smith of the Highway Patrol, testified as follows:

On March 18, 1977, at approximately 12:30 a. m., Officer Smith observed McConville driving westbound on the Ventura Freeway at an excessive rate of speed; McConville was also weaving from lane to lane. Officer Smith turned on his red stop light, causing McConville to pull over. When McConville exited his vehicle, Officer Smith observed that his face was flushed, that he used slurred speech, that he emitted a strong odor of alcohol, and that he was unsteady on his feet. Officer Smith formed an opinion that McConville was intoxicated, which opinion was confirmed when McConville flunked several field sobriety tests.

McConville thereupon was placed under arrest for driving under the influence of alcohol (Veh.Code, § 23102, subd. (a)). While McConville was being transported to the Van Nuys Police Station, Officer Smith informed him of the chemical test requirement and explained each of the three possible tests. McConville, however, refused to select one of the tests until after his arrival at the police station, at which time he chose the urine test. Officer Smith had warned McConville beforehand that the urine test was the most difficult of the three in that he would be expected to first void his bladder and then provide, 20 minutes later, a sample large enough to be analyzed. McConville was also told that if he was unable to do this, he would have to take one of the two remaining tests.

McConville completed the first part of the test by voiding his bladder. But when it came time for him to provide the test sample 20 minutes later, he was in an uncooperative mood. Officer Smith thereupon read to McConville from a form which summarized the applicable provisions of Vehicle Code section 13353. ²

After some quarrelsome discussion, McConville indicated that he was prepared to complete the urine test. But when he was taken to the urinal and handed the sample bottle, he stated, "Well, I can't go now." Officer Smith then informed McConville that he would have to take one of the other two tests. When McConville replied, "No. I don't want to take a test," Smith deemed McConville's attempt at completion of the test over.

McConville's testimony at the administrative hearing was inharmonious with Officer Smith's in several respects. For example, McConville claimed that he had not, at the time of the first voiding, been told how soon after he would be expected to provide the test sample or whether, in fact, another sample would be required. He also asserted that he was never warned that his refusal to complete a test would result in a six-month suspension of his driver's license.

McConville further testified that there was only about a 10 minute interval between when he was first asked to void and when Officer Smith asked him to produce the test sample. He claimed that when he was not immediately able to produce the specimen, he asked for a few more minutes to complete the test. According to McConville, Officer Smith replied, "No. You'll have to complete it right now." Smith then told McConville that he had refused the test and escorted him from the restroom. McConville averred that had he been afforded a reasonable period of time within which to provide the sample he would have done so. McConville admitted, however, that Officer Smith had offered him either of the other two tests when he experienced difficulty completing the urine test. He also admitted having drunk about three 12-ounce beers between 6:00 and 11:00 p. m. on the evening in question.

In recommending suspension of McConville's license, the referee who presided over the administrative hearing found: (1) that Officer Smith "had reasonable cause to believe that Mr. McConville had been driving a motor vehicle upon the highway while under the influence of intoxicating liquor" ; (2) that "McConville was lawfully arrested" ; (3) that McConville was adequately warned concerning the consequences of either refusing or not completing a chemical test; and (4) that "McConville refused to submit to or failed to complete a test of his blood, breath or urine to determine the alcoholic content of his blood after being requested to do so . . . ."

The mandamus proceedings in the superior court were limited to a review of the administrative record and the verified pleadings of the parties. The court's decision to overturn DMV's revocation decision was based on a finding of fact that the "portion of . . . (DMV's) findings which state that . . . (McConville) refused to submit to or failed to complete any chemical test of his blood, breath, or urine after being requested to do so by an officer, Is not supported by the weight of the evidence." (Italics added.)

DISCUSSION

It would appear from the italicized portion of the superior court finding set out above that the court took it upon itself to reweigh the evidence from the administrative hearing and make independent findings. The initial question to be addressed here is whether this was proper.

The procedure for obtaining judicial relief from the decision of an administrative agency is set forth in Code of Civil Procedure section 1094.5. Subdivision (c) of that section establishes two possible standards of review by providing as follows: "Where it is claimed that the findings are not supported by the evidence, in cases in which the court is Authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence; and in all other cases, abuse of discretion is established if the court determines that the findings are not supported by Substantial evidence in the light of the whole record." (Italics added.)

In Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, our Supreme Court held that if the decision of a statewide agency which is not constitutionally authorized to exercise judicial functions ³ will substantially affect a vested, fundamental right, then the reviewing trial court should, pursuant to subdivision (c) of Code of Civil Procedure section 1094.5, exercise its independent judgment on the evidence in a limited trial de novo. (Id., at p. 143, 93 Cal.Rptr. 234, 481 P.2d 242.) If, however, the agency's decision will not affect a fundamental vested right, then the court's review is limited to a consideration of whether the agency's findings are supported by substantial evidence and whether the agency committed any errors of law. (Id., at p. 144, 93 Cal.Rptr. 234, 481 P.2d 242.)

The court in Bixby went on to note that the determination of whether a particular administrative decision or class of decisions substantially affects fundamental vested rights would have to be made on a case by case basis. (Bixby v. Pierno, supra, 4 Cal.3d at p. 144, 93 Cal.Rptr. 234, 481 P.2d 242.) The Supreme Court has made it clear, however, that "(w)hen an administrative decision affects a right which has been legitimately acquired or is otherwise 'vested,' and when that right is of a fundamental nature from the standpoint of its economic aspect or its 'effect . . . in human terms and the importance . . . to the individual in the life situation,' then a full and independent Judicial review of that decision is indicated because '(t)he abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.' " (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, 112 Cal.Rptr. 805, 809, 520 P.2d 29, 33 (italics in original), quoting Bixby v. Pierno, supra, 4 Cal.3d at p. 144, 93 Cal.Rptr. 234, 481 P.2d 242.)

In deciding whether a six-month suspension of a driver's license constitutes a substantial interference with a vested fundamental right, we begin by noting that we do not write upon a clean slate. In the recent case of McGue v. Sillas (1978) 82 Cal.App.3d 799, 147 Cal.Rptr. 354, the First District Court of Appeal expressly rejected a contention that possession of a driver's license is a fundamental right under the Bixby formulation ⁴ and consequently held that administrative mandamus review of DMV license revocations is to be governed by the substantial evidence test rather than the independent judgment test. (Id., at pp. 803-806, 147 Cal.Rptr. 354.) ⁵ The court explained that it had reached this result because: "In weighing the relative importance to individuals in the life situation, we are of the opinion that the public's interest in strict enforcement of traffic laws designed to eliminate drunken driving far outweighs the right of an individual to drive. (Cf. Mobil Oil Corp. v. Superior Court (1976) 59 Cal.App.3d 293, 305, 130 Cal.Rptr. 814.) Enforcement of this rule does not effectively deny an...