Mercer v. Department of Motor Vehicles

• Decision Date: 06 May 1991
• Docket Number: No. S017249,S017249
• Court: California Supreme Court
• Parties: , 809 P.2d 404 Barrie Gray MERCER, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Page 745

280 Cal.Rptr. 745

53 Cal.3d 753, 809 P.2d 404

Barrie Gray MERCER, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

No. S017249.

Supreme Court of California In Bank.

May 6, 1991.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., N. Eugene Hill, Asst. Atty. Gen., Henry G. Ullerich and Martin H. Milas, Deputy Attys. Gen., Long Beach, for defendant and appellant.

John W. Witt, City Atty., San Diego, Stuart H. Swett and Mary T. Nuesca, Deputy City Attys., as amici curiae on behalf of defendant and appellant.

Philip A. Rafferty and Owen P. Rafferty, Long Beach, for plaintiff and respondent.

LUCAS, Chief Justice.

The superior court issued a writ of mandate directing the Department of Motor Vehicles (DMV) to set aside its order revoking Barrie Gray Mercer's driving privileges after Mercer refused to submit to chemical testing following his arrest for driving under the influence of alcohol. (See Veh.Code, § 23157, subd. (a)(1) ¹ [driver's implied consent to chemical testing following "lawful arrest" for violation of § 23152]; § 23152, subd. (a) [hereafter section 23152(a) ] [unlawful for any person who is "under the influence" of alcohol or drugs to "drive a vehicle"]; § 13352, subd. (a)(3) [suspension or revocation of driving privilege for refusal to submit to testing pursuant to § 23157].) The Court of Appeal reversed and directed the superior court to reinstate the revocation order.

We granted review to resolve a conflict in the Court of Appeal concerning interpretation of the implied consent (§ 23157) and related license revocation (§ 13353) statutes. Several courts have held that observed volitional movement of a vehicle is required before a person's driving privilege may be suspended or revoked for refusal to submit to chemical testing. (E.g., Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841, 270 Cal.Rptr. 692 [Music].) By contrast, the present Court of Appeal, claiming support for its view in Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445, 214 Cal.Rptr. 249 [Henslee], holds that observed movement of a vehicle is not required as a condition of suspension or revocation of driving privileges for failure to submit to testing. We conclude the Music approach correctly interprets the statutes, and accordingly we reverse the decision of the Court of Appeal.

We emphasize at the outset the narrow scope of our inquiry and holding. We do not hold that observed movement of a vehicle is necessary to support a conviction for "drunk driving" under section 23152. The lower courts have routinely upheld such convictions in the absence of evidence of observed movement of a vehicle. (See, e.g., People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 8-9, 222 Cal.Rptr. 540, and cases cited.) Nothing in this opinion calls in question the holdings of these cases.

Nor do we hold that observed volitional movement of a vehicle is a necessary condition of compelled chemical testing. Although the DMV and its amicus curiae seem to have ignored the fact, case law predating adoption of the implied consent statute continues to allow for such testing without a warrant, and without the consent of the person tested, so long as (i) the testing is incident to a lawful arrest, (ii) the circumstances require prompt testing, (iii) the arresting officer has reasonable cause to believe the arrestee is intoxicated, and (iv) the test is conducted in a medically approved manner. (Schmerber v. California (1966) 384 U.S. 757, 766-772, 86 S.Ct. 1826, 1833-1836, 16 L.Ed.2d 908 [Schmerber ]; People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 761-765, 100 Cal.Rptr. 281, 493 P.2d 1145 [Hawkins].)

We address today only the narrow question of whether, under sections 23157 and 13353 as presently written, the state may suspend or revoke a driver's license for failure to submit to chemical testing in the absence of evidence of observed volitional movement of a vehicle.

I. Facts and Procedure

At a revocation hearing held at Mercer's request pursuant to section 14100 et seq., the following facts were adduced: In response to calls from neighbors, a police officer found Mercer slumped over the steering wheel of his car. His seat belt was fastened, the car lights were on, and the engine was running. The car was legally parked against the curb of a residential street. Mercer awoke after the officer rocked the car and banged on it with a flashlight. According to the officer, when Mercer "finally [came] around, he started pulling gears [on the manual transmission] as if ... in his mind, he was already driving or about ready to drive." Eventually Mercer ceased attempting to put the car in gear and rolled down the window, at which point the officer detected a heavy odor of alcohol on Mercer's breath and ordered him out of the car.

After Mercer stumbled to the sidewalk the officer observed his slurred speech and red, watery eyes. The officer arrested Mercer without a warrant for driving under the influence of alcohol (§ 23152(a)), and advised him that under the implied consent law he was obligated to submit to chemical testing, or suffer suspension or revocation of his driving privileges. Mercer refused to take any chemical test; he responded, "I wasn't driving." He was not subjected to a chemical test.

Mercer stipulated that he was properly advised of the implied consent law and that he refused the tests. The officer conceded the car never moved in his presence. The hearing officer found: the arresting officer had reasonable cause to believe Mercer had been driving a motor vehicle while under the influence of alcohol; Mercer was lawfully arrested; Mercer was properly advised of the consequences of his failure to submit to testing under the implied consent law; and Mercer refused to take any chemical test. The DMV notified Mercer that his driving privileges would be revoked for three years. (§ 13353, subd. (a)(3).)

After administrative review was resolved against Mercer he filed a petition for a writ of mandate (Code Civ.Proc., § 1094.5) seeking to reverse the revocation order. The superior court granted the writ, reasoning as follows: (i) Sections 23157 and 13353 predicate license suspension or revocation on a "lawful arrest" for violating the "drunk driving" statute, section 23152; (ii) one does not violate section 23152(a) unless one causes a vehicle to move; (iii) section 23152(a) is a misdemeanor; (iv) Penal Code section 836, subdivision 1, permits a warrantless arrest for a misdemeanor only if the arresting officer has reasonable cause to believe a misdemeanor offense was committed in the officer's presence; and (v) because the officer did not observe Mercer's car move, the warrantless arrest was unlawful, and accordingly the revocation was improper because the "lawful arrest" requirement of the implied consent law was not met.

As noted above, the Court of Appeal reversed. It reasoned that Mercer "exercised such a degree of control over the vehicle that he was driving within the meaning of section 23152, subdivision (a)," and that the offense was thus committed in the officer's presence. Accordingly, the court concluded the arrest was "lawful" and ordered that the revocation order be reinstated.

II. Analysis

In Schmerber, supra, 384 U.S. 757, 766-772, 86 S.Ct. 1826, 1833-1836, the high court held permissible the warrantless taking of a person's blood for the purpose of chemical testing to determine intoxication, "provided that the taking of the sample is done in a medically approved manner, is incident to a lawful arrest, and is based upon the reasonable belief that the person is intoxicated." (Hawkins, supra, 6 Cal.3d at p. 761, 100 Cal.Rptr. 281, 493 P.2d 1145, citing Schmerber, supra.) Shortly thereafter our Legislature enacted our implied consent law--former section 13353, the predecessor to section 23157.

In relevant part, the law today--and at the time of the offense--reads as it did when enacted in 1966. Section 23157, subdivision (a)(1) provides: "Any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing ... for the purpose of determining the alcoholic content of his or her blood, ... if lawfully arrested for any offense allegedly committed in violation of Section 23152 or 23153. The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23152 or 23153. The person shall be told that his or her failure to submit to ... the required chemical testing will result in a fine [and various terms of license suspension or revocation, depending on the person's prior 'drunk driving' record]." (Italics added.)

Section 23152--one of the two substantive offenses referred to in section 23157--provides: "It is unlawful for any person who is under the influence of an alcoholic beverage or any drug ... to drive a vehicle." (§ 23152, subd. (a), italics added.) The other substantive offense listed in section 23157 (section 23153) contains identical operative language. ²

Section 13353, subdivision (a), provides, "[i]f any person refuses the officer's request to submit to ... a chemical test ... pursuant to section 23157, upon receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 ... and that the person had refused to submit to ... the test ... after being requested by the officer, the [DMV] shall ... (3) revoke the person's privilege to operate a motor vehicle for a period of three years if the refusal occurred within seven years of two or more separate violations of [other specified 'drunk driving' statutes], which resulted in convictions." Subdivision (b) of section 13353 provides for a hearing, if requested, on four issues, namely: "whether the peace officer had reasonable cause...