Noli v. Department of Motor Vehicles

• Court: California Court of Appeals
• Citation: Noli v. Department of Motor Vehicles, 178 Cal.Rptr. 5, 125 Cal.App.3d 446 (Cal. App. 1981)
• Decision Date: 15 October 1981
• Docket Number: No. 6438,6438
• Parties: Robert Pete NOLI, Jr., Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

Page 5

178 Cal.Rptr. 5

125 Cal.App.3d 446

Robert Pete NOLI, Jr., Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

No. 6438.

Court of Appeal, Fifth District, California.

Oct. 15, 1981.

Linneman, Burgess, Telles, Van Atta & Vierra, and James E. Linneman, Merced, for plaintiff and appellant.

George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen. and Mary C. Michel, Deputy Atty. Gen., Sacramento, for defendant and respondent.

THE COURT ^*.

Following an administrative hearing, respondent Department of Motor Vehicles ordered appellant's driver's license suspended for six months pursuant to Vehicle Code section 13353, which provides for such suspension when a motorist lawfully arrested for driving under the influence of intoxicating liquor refuses to submit to one of three chemical tests for determining the alcoholic content of his blood. The present appeal is from a judgment of the superior court denying appellant's petition for administrative mandamus to compel respondent to vacate the license suspension order.

Appellant was arrested in Merced County by CHP officers in the evening of June 30, 1980, on suspicion of drunk driving (Veh.Code, § 23102, subd. (a)). The two officers took him to the Merced Community Medical Center. In the parking lot there, before they entered the building, one officer read the following statement to appellant from a DMV form:

"You are required by state law to submit to a chemical test to determine the alcoholic content of your blood. You have a choice of whether the test is to be your blood, breath or urine. If you refuse to submit to a test or fail to complete a test, your driving privilege will be suspended for a period of six months. You do not have the right to talk to an attorney or to have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the administration of the test chosen. If you are incapable or state you are incapable of completing the test you choose, you must submit to and complete any of the remaining tests or test."

The officer then asked appellant successively whether he would submit to a blood test, a breath test, or a urine test. Appellant answered no to the first two but yes to the urine test. The two officers then took appellant into the Medical Center and asked him again whether he would submit to a blood test or a breath test, which would be given at the Medical Center, but appellant refused both.

Appellant was "combative" with the officers and was in handcuffs while at the Medical Center. The officers were unwilling to remove the handcuffs at the Medical Center to allow the urine test to be taken there. They told appellant that the urine test would have to be given at the jail, but that the blood test and breath test could only be given at the Medical Center, and if appellant was transported to the jail for the urine test and failed to complete that test, he would not have another opportunity to take the blood test or the breath test. Appellant was insistent he would take only the urine test.

The officers then took appellant back to the patrol car (putting him in the car "forcibly") and proceeded with him to the county jail. At the jail the handcuffs were removed and appellant was placed in the drunk tank and given directions to proceed with his part of the urine test. After a brief interval appellant reported back to the officers he was unable to urinate. He was told that if he could not complete the test his license would be suspended for six months. The officers waited approximately 20 minutes but without further result.

The evidence on the point was conflicting, but the trial court found that appellant did not request to be given another opportunity to take the breath test or the blood test.

Respondent's decision after the administrative hearing was that the automatic suspension of appellant's driver's license under section 13353 should remain in effect. The trial court in the administrative mandamus proceeding reviewed the evidence presented at the administrative hearing and, exercising its independent judgment, determined in effect that appellant had failed and refused to...