Packer v. Sillas

• Decision Date: 09 April 1976
• Citation: 128 Cal.Rptr. 907,57 Cal.App.3d 206
• Court: California Court of Appeals Court of Appeals
• Parties: Farrel Otto PACKER, Plaintiff and Respondent, v. Herman SILLAS, as Director, etc., Defendant and Appellant. Civ. 2688.

Page 907

128 Cal.Rptr. 907

57 Cal.App.3d 206

Farrel Otto PACKER, Plaintiff and Respondent, v. Herman SILLAS, as Director, etc., Defendant and Appellant.

Civ. 2688.

Court of Appeal, Fifth District, California.

April 9, 1976.

Hearing Denied June 2, 1976.

Evelle J. Younger, Atty. Gen., and Stephen J. Egan, Deputy Atty. Gen., Sacramento, for defendant and appellant.

William T. Ivey, Jr., Allen, Van Winkle & Ivey, Merced, for plaintiff and respondent.

CARKEET, Associate Justice. ^*

This case comes before this court on appeal from a judgment of the reviewing court granting a peremptory writ of mandamus commanding defendant (hereinafter referred to as 'appellant') to set aside and vacate its order suspending the driving privilege of plaintiff, who is respondent on this appeal.

The suspension order previously made by appellant was based on a finding by appellant that after a lawful arrest for alleged violation of section 23102(a) of the Vehicle Code (driving under the influence of intoxicating liquor,) the respondent refused to submit or failed to complete any chemical test of his blood, breath or urine (as required under section 13353 of the Vehicle Code,) after being requested to do so by the arresting officer.

The facts in this case are somewhat unusual but are not basically in dispute as to the incident of the arrest. On December 25, 1973, Officer Wagner of the California Highway Patrol (hereinafte rreferred to as Wagner) received a radio call from two highway patrol academy cadets that they had stopped a possible '23102(a) driver.' Approximately one minute later Wagner received another call that the cadets were now pursuing the vehicle they had stopped. Wagner turned toward the vicinity and observed a vehicle traveling at a high rate of speed. Shortly thereafter he observed the highway patrol training unit pursuing the vehicle. The vehicle turned into a cross street, and Wagner and the cadets lost sight of it. At no time during the pursuit did Wagner get close enough to identify th vehicle, get its license number, determine its color, identify the driver, or even to observe if the driver was male or female.

Officer Wagner and the two cadets then proceeded immediately to search the area into which the vehicle had disappeared. The cadets had noted the color and the license number of the vehicle when they had first stopped it, and a vehicle of the same color and bearing the same license number was found parked in a driveway. Wagner proceeded to the doorway of the house and knocked. A Mr. Borba, the owner of the house, came out, and the academy cadets identified him to Wagner as the driver of the vehicle. However, respondent then came out of the house and identified himself as the driver of the vehicle. Respondent bears no physical resemblance to Mr. Borba.

Officer Wagner approached respondent and requested his driver's license. He smelled alcohol on respondent's breath, and he observed that respondent's eyes were bloodshot and that his balance was very poor so that he swayed from side to side and staggered when he walked.

Officer Wagner then requested respondent to stand to the front of his vehicle along with two police officers who had apparently arrived in the interim. Wagner then returned to the door of the house, but a scuffle ensued between respondent and the two officers, When Wagner reapproached respondent, he was handcuffed. Apparently, during the scuffle, respondent suffered minor injuries to his ear and knee. Wagner advised respondent he was under arrest for misdemeanor drunk driving in violation of section 23102(a) of the Vehicle Code.

Respondent was transported to the Merced County Hospital, and before entering the hospital respondent was read a statement of implied consent which stated he was required to take a chemical test to determine the alcohol content of his blood, that he could choose between a blood, breath or urine test, and that if he refused any test his driving privilege would be suspended for six months.

Respondent refused to take any test, and Wagner thereupon drove away from the hospital to transport respondent to the sheriff's office for booking. On the way respondent indicated he would take a test, and they returned to the hospital, arriving at approximately 9:15 p.m. At the hospital respondent was treated in the emergency room for the injury to his ear and knee. Respondent was asked to and did empty his bladder. ¹ After a waiting period, respondent was requested by Wagner to give a urine sample but was unable to do so. According to Wagner, respondent was then asked by Wagner whether he would take a breath or blood test, but respondent refused to take either. Wagner testified he then informed respondent this was the same as a refusal to take any test since he was unable to give a urine sample.

Respondent was then taken to the Merced sheriff's office for booking. Respondent testified he arrived at the sheriff's office at approximately 9:45 to 9:50 p.m., and the booking slip indicates the booking procedure was begun at 9:56 p.m. The booking officer testified that the normal booking procedure takes from seven to ten minutes. During the booking procedure respondent was again asked to give a urine sample and attempted to do so but was unable to produce a sample of urine.

After completing the booking procedures, at 10:15 p.m., respondent again tried to produce a specimen of urine but was unable to do so. Wagner testified he then again informed respondent that his inability to do so constituted a refusal under the law and that he would have to take one of the other two tests. Wagner questioned him about each of the other two tests and, according to Wagner, respondent refused to take either of them and Wagner left the sheriff's office.

I. WAS THE ARREST A LAWFUL ONE?

The first and most crucial issue to be resolved on this appeal is whether the arrest of respondent was unlawful. If so, then the request for him to submit to a chemical test for alcohol was not warranted, and a refusal to submit to such a test would not authorize a license suspension under Vehicle Code section 13353.

In this case respondent was arrested for violation of Vehicle Code section 23102(a) which makes it a misdemeanor to drive a vehicle while under the influence of intoxicating liquor.

Under Vehicle Code section 13353 a person is deemed to consent to one of three tests (blood, breath or urine) for determining the alcoholic content of his blood if he is Lawfully arrested for any offense allegedly committed while driving under the influence of intoxicating liquor. Failure to submit or complete such a test results in the suspension of driving privileges for six months. Section 13353 reads in 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 for the purpose of determining the alcoholic content of his blood 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 and administered at the direction of a peace officer having reasonable cause to believe such person was driving a motor vehicle upon a highway while under the influence of intoxicating liquor. 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 advised by the officer that he has such choice. If the person arrested either is incapable, or states that he 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, and he shall be advised by the officer that he has such choice.'

Prior to the 1957 amendment, Penal Code section 836 provided in misdemeanor cases that an officer could make an arrest without a warrant under certain circumstances, viz:

'A peace-officer may . . . without a warrant, arrest a person:

'1. For a public offense committed or attempted in his presence.'

Our courts, however, read an element of 'reasonable belief' into the statute. In Coverstone v. Davies (1952) 38 Cal.2d 315, 239 P.2d 876, a group of college students had gathered near an intersection in Los Angeles to view a 'hot-rod' race (an illegal activity). Plaintiffs were in the group but disclaimed knowledge that a race had been proposed or was in progress. Defendants (deputy sheriffs) arrived at the scene and ordered the group to stay together. Other officers arrived and plaintiffs (and others) were taken into custody, booked and subsequently released on their own recognizance. They were later arraigned on a complaint signed by defendant Davies charging a violation of section 407 of the Penal Code (unlawful assembly), pleaded not builty and were subsequently tried and acquitted. Plaintiffs sued for false arrest.

The court said:

'Since it is settled that a peace officer may lawfully make an arrest for a public offense committed or attempted in his presence (Pen.Code, § 836), the critical question presented in this case is whether the acts done in the presence of the arresting officer justified the arrests being made without a warrant.

'It is not disputed that the group was assembled to view a 'hot-rod' race. Such illegal purpose renders the action of the group knowingly participating therein an unlawful assembly within the meaning of section 407 of the Penal Code. When the officers arrived upon the scene, they had the authority to arrest all those engaged in the commission of the unlawful act, and in our view they were entitled to act on reasonable appearances in determining who were parties to the offense. It is patent that the officers acted upon probable cause in arresting (Plaintiffs)...