Payne v. Department of Motor Vehicles

• Decision Date: 15 November 1991
• Docket Number: No. A052577,A052577
• Citation: 235 Cal.App.3d 1514,1 Cal.Rptr.2d 528
• Court: California Court of Appeals Court of Appeals
• Parties: Mark Anthony PAYNE, Plaintiff and Respondent, v. DIRECTOR OF MOTOR VEHICLES, Defendant and Appellant.

Page 528

1 Cal.Rptr.2d 528

235 Cal.App.3d 1514

Mark Anthony PAYNE, Plaintiff and Respondent, v. DIRECTOR OF MOTOR VEHICLES, Defendant and Appellant.

No. A052577.

Court of Appeal, First District, Division 2, California.

Nov. 15, 1991.

Daniel E. Lungren, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Jose R. Guerrero, Supervising Deputy Atty. Gen., Kim M. Settles, Deputy Atty. Gen., Oakland, for defendant and appellant.

Monte L. Hansen, Santa Rosa, for plaintiff and respondent.

BENSON, Associate Justice.

The California Department of Motor Vehicles ("DMV"), appeals from judgment

granting a writ of mandate. The trial court directed DMV to set aside its order suspending respondent Mark Anthony Payne's ("Payne") driving privilege for failure to submit to a blood, breath, or urine test as required by Vehicle Code section 13353, ¹ the implied consent law. DMV contends Payne's conduct constituted a refusal to submit to the required chemical test as a matter of law. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The essential facts are undisputed. After he was involved in an injury accident on September 30, 1989, Payne was lawfully arrested by California Highway Patrol Officer Jerry Schumaker for driving under the influence of alcohol. Officer Schumaker advised Payne at the scene that he was required by state law to submit to one of three chemical blood alcohol tests. Payne replied he would not take any tests.

Officer Schumaker then transported Payne to the Sacramento County Jail where he again advised Payne that failure to submit to one of the tests would result in suspension of his driving privilege. ² Payne responded he would not take a breath or urine test. He said he would only take a blood test administered by his own physician, because he was concerned about the cleanliness of the jail and the safety of having blood drawn there. Officer Schumaker informed Payne he was not entitled to have the test administered by his personal physician and explained that the nurse at the jail was qualified and registered by the County of Sacramento. The officer then advised Payne he was in violation of section 13353 and that his blood would be taken by the nurse. Thereafter, Payne submitted to the blood test without physical resistance, but insisted that his blood was being drawn under protest.

The DMV revoked Payne's driving privilege for two years on the ground that he had refused to submit to a chemical test. After an administrative hearing before a referee, the DMV upheld the revocation. Payne petitioned the superior court for a writ of mandate to set aside the DMV's order revoking his driving privilege. The superior court granted the writ. This appeal followed.

DISCUSSION

When the facts are undisputed, as here, a question involving the proper application of a statute or administrative regulation is one of law, and a reviewing court is not bound by the trial court's determination. (Ross v. Department of Motor Vehicles (1990) 219 Cal.App.3d 398, 401, 268 Cal.Rptr. 102; Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270, 228 Cal.Rptr. 705.) We therefore apply our independent judgment to the single legal issue presented here; whether Payne's conduct constituted a refusal to submit to a chemical test. We conclude the DMV was correct in ordering the suspension of Payne's license and that the superior court erred in granting the writ of mandate.

Section 13353 provides that any person, arrested for driving under the influence of alcohol, who refuses to submit to a chemical test will have his driving privilege suspended. ³ In determining whether an We find Barrie v. Alexis, supra, 151 Cal.App.3d 1157, 199 Cal.Rptr. 258 instructive. Barrie was arrested for driving while intoxicated, but refused to take any chemical test. (Id. at p. 1160, 199 Cal.Rptr. 258.) She was transported to a hospital where a blood sample was nonetheless taken. (Id. at p. 1161, 199 Cal.Rptr. 258.) Although she offered no physical resistance to the test, Barrie proclaimed she was taking the test under protest. (Ibid.) The court held that her response was an unequivocal refusal to submit to a test, leaving no room for construction and constituting a valid basis for suspension of her driving privilege. (Ibid.) The court also stressed that submitting under protest made her refusal clear, even though she offered no physical resistance. (Ibid.)

arrested driver's conduct amounts to a refusal to submit to a test, the court looks not to the state of mind of the arrested driver, but to "the fair meaning to be given [the driver's] response to the demand he submit to a chemical test." (Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1161, 199 Cal.Rptr. 258; Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 874, 189 Cal.Rptr. 249.)

In the present case, Payne initially refused to submit to any test and later agreed to submit to a blood test only if administered by his personal physician. Like Barrie, Payne finally submitted to a test without physical resistance, but under protest. Unlike Barrie, Payne did not refuse outright to submit, but conditioned his consent on his doctor administering the test. However, this distinction is of no help to Payne.

A conditional consent to a chemical test constitutes a refusal to submit within the meaning of section 13353. (Webb v. Miller (1986) 187 Cal.App.3d 619, 626, 232 Cal.Rptr. 50; Cole v. Department of Motor Vehicles, supra, 139 Cal.App.3d at p. 873, 189 Cal.Rptr. 249; Fallis v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 373, 382, 70 Cal.Rptr. 595.) In Fallis, a lawfully arrested driver refused to submit to a chemical test unless he could consult with his own doctor. (Id. at p. 377, 70 Cal.Rptr. 595.) The court held the arrestee's conduct constituted a refusal, stating: "A licensee may not qualify his consent to submit to a test by a condition that the test be administered by or in the presence of his own physician. [p ] Such a qualified consent is in fact a refusal to take the test provided by the statute." (Id. at p. 382, 70 Cal.Rptr. 595.) Payne's conditional consent here, as in Fallis, constituted a refusal to submit to the test.

The fact that Payne eventually submitted without physically resisting is of no significance. (See Barrie v. Alexis, supra, 151 Cal.App.3d at p. 1162, 199 Cal.Rptr. 258; Cole v. Department of Motor Vehicles, supra, 139 Cal.App.3d 870, 875, 189 Cal.Rptr. 249.) "It is the initial refusal which forms the basis for suspension of the driver's license under section 13353." (Barrie, supra, 151 Cal.App.3d at p. 1162, 199 Cal.Rptr. 258.) That a blood sample was eventually obtained does not meet the requirements of section 13353. (Ibid.) Consequently, the taking of Payne's blood sample has no bearing on his refusal to submit to a test.

Payne nonetheless contends that because the condition he placed on submitting to a blood test was based on a health concern, it should not constitute a refusal to submit to a test. Payne relies on Ross v. Department of Motor Vehicles, supra, 219 Cal.App.3d 398, 268 Cal.Rptr. 102. Ross, who was arrested for drunk driving, chose a blood test, but became alarmed at the disheveled appearance of the technician who was to take his blood. (Id. at p. 400, 268 Cal.Rptr. 102.) Ross asked to see the technician's identification before he would allow the technician to draw blood. (Ibid.) The arresting officer refused to allow Ross Payne contends Ross v. Department of Motor Vehicles, supra, 219 Cal.App.3d 398, 268 Cal.Rptr. 102 stands for the proposition that if an arrestee has a health concern, that concern is a reasonable condition which he or she may place on consent to submit to a chemical test. We disagree. Ross held only that an arrestee must be given assurance of the qualifications of the individual drawing blood if hesitation is expressed. Insisting on one's own physician, as Payne did, goes far beyond questioning the qualifications of the person administering a blood test. The present case does not...