People v. Superior Court (Maria), C014087

• Decision Date: 30 October 1992
• Docket Number: No. C014087,C014087
• Citation: 11 Cal.App.4th 134,13 Cal.Rptr.2d 741
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. SUPERIOR COURT of Lassen County, Respondent. David Joseph MARIA, Real Party in Interest.

Page 741

13 Cal.Rptr.2d 741

11 Cal.App.4th 134

The PEOPLE, Petitioner, v. SUPERIOR COURT of Lassen County, Respondent David Joseph MARIA, Real Party in Interest.

No. C014087.

Court of Appeal, Third District, California.

Oct. 30, 1992.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., J. Robert Jibson and Janine R. Busch, Deputy Attys. Gen., for petitioner.

No appearance for respondent.

David J. Jaquint, Hayward, for real party in interest.

PUGLIA, Presiding Justice.

The People petition for an extraordinary writ seeking relief from a judgment of respondent Lassen County Superior Court granting the petition of real party in interest David Joseph Maria for a writ of mandate. The writ ordered the Lassen County Justice Court to dismiss a count of a criminal complaint alleging a violation of Vehicle Code section 23152, subdivision (a) (driving under the influence of alcohol, drugs, or both). The superior court ordered the charge dismissed because it found the police had not afforded Maria the opportunity to take the chemical test of his choice, pursuant to Vehicle Code section 23157, and thus deprived him of the right to obtain exculpatory evidence.

In this proceeding, the People contend the superior court erroneously interpreted Vehicle Code section 23157 to require dismissal of criminal charges if law enforcement officials fail to offer a suspected drunk driver the chemical test of his choice. The People also contend that Maria was unable to demonstrate constitutional error warranting dismissal of the charge. We shall conclude these contentions have merit and shall order a writ of mandate to issue directing the superior court to vacate its judgment granting Maria's writ petition and to enter judgment denying the petition.

Maria was charged in Lassen County Justice Court in a three-count complaint. Count I alleged that on September 28, 1991, Maria drove a motor vehicle under the influence of alcohol, a drug, or both. (Veh.Code, § 23152, subd. (a).) Count I also alleged a violation of Vehicle Code section 23159 in that Maria refused a peace officer's request to submit to, or willfully failed to complete, a chemical test. Count I further averred that within seven years of September 28, 1991, Maria had suffered a prior conviction for a violation of Vehicle Code section 23152, subdivision (a), as well as a prior conviction for a violation of Vehicle Code section 23103.

Count II of the complaint alleged that on the date set forth above Maria drove a motor vehicle with a blood-alcohol level equal to or greater than .08 percent. (Veh.Code, § 23152, subd. (b).) Count II also alleged the same prior convictions alleged in count I.

Count III alleged that on the date set forth above Maria drove a motor vehicle at a time when he knew his driver's license was suspended and revoked for a violation of Vehicle Code section 23152. (Veh.Code, § 14601.2, subd. (a).)

Undisputed evidence supporting these charges revealed that police stopped Maria for driving under the influence shortly after midnight on September 28, 1991. After field sobriety tests were administered Maria was arrested for driving under the influence and transported to the county jail in Susanville. Maria was informed that he had the choice of taking a blood, breath, or urine test. Maria requested the urine test. Maria was informed that the jail's supply of specimen bottles was exhausted and that he could take one of the remaining two tests. Maria refused and again requested a urine test without success. Maria did not submit to either a blood or breath test. Thereafter the criminal complaint was filed containing the charges set forth above.

Maria moved to dismiss counts I and II of the complaint. He argued that the police failed to perform the chemical test he requested pursuant to Vehicle Code section 23157, subdivision (d). He also contended that the police unilaterally restricted his chemical test choices.

The justice court granted the motion in part. As to count I, the court ordered that all allegations based on Maria's refusal to submit to a chemical test be stricken. The court also dismissed, in its entirety, count II, which charged excessive blood-alcohol level. The court denied without prejudice the motion to dismiss the remaining allegations of count I charging a violation of Vehicle Code section 23152, subdivision (a), driving under the influence. No action was taken with respect to count III charging driving with a suspended license.

Maria then filed in respondent superior court a petition for a writ of mandate to compel dismissal of count I. In addition to the facts set forth above, evidence was adduced regarding the unavailability of specimen bottles needed to complete the urine test. The evidence showed that the local hospital had a supply of specimen bottles but that the bottles did not contain a preservative meeting Department of Justice requirements. The California Highway Patrol (CHP) may have had a supply of specimen bottles with the required preservative, but the local CHP office was closed at the time of Maria's arrest. The CHP dispatcher, though, would have answered a telephone call from local police. The dispatcher, in response to a request for a specimen bottle, would have telephoned the on-call CHP officer at home. The on-call officer would have driven to the CHP office to obtain a bottle and then driven to the jail, unless the officer happened to have had a bottle in his patrol vehicle, in which case the officer would have proceeded directly to the jail. The evidence also disclosed that the Susanville police did not attempt to contact either the hospital or CHP after Maria's arrest.

The superior court found that law enforcement officials had deprived Maria of an opportunity to obtain exculpatory evidence by failing to maintain an adequate supply of specimen bottles at the jail and also by failing to inquire whether the bottles were available from the hospital or CHP. Consequently, the court issued a writ ordering that count I be dismissed.

The People filed a notice of appeal from this judgment, but the appeal was dismissed after the People neglected to designate the record on time. Thereafter the People filed the instant petition.

I

Maria raises two procedural objections to the People's petition. The first is that the People have failed to establish that the remedy at law is inadequate. The second is that the petition is untimely.

Maria argues the People had an adequate remedy at law by appeal from the superior court judgment granting his petition. Since appeal is generally considered an adequate remedy, and the People noticed but voluntarily abandoned an appeal, Maria argues extraordinary writ relief will not lie. We reject this argument. The People's petition is authorized by Code of Civil Procedure section 904.1, subdivision (a), which provides that a superior court judgment granting or denying a petition for a writ of mandamus or prohibition directed to a justice court is not appealable, but may be reviewed by a petition for extraordinary writ. (Heldt v. Municipal Court (1985) 163 Cal.App.3d 532, 534, fn. 1, 209 Cal.Rptr. 579.) Since the superior court judgment is nonappealable, the People do not have any remedy, much less an adequate remedy, by way of appeal and the dismissal of the People's "appeal" is irrelevant.

Maria's second procedural objection is that the People's petition is untimely under California Rules of Court, rules 66 and 107. These rules relate to the appellate department of the superior court and specify that judgments of that department become final upon the expiration of 15 days from the date of filing unless a petition for rehearing is filed. The cited rules are inapposite as the appellate department of the superior court was not involved in this matter. The People's petition was filed on August 13, 1992, which is less than 30 days after July 16, 1992, when the superior court judgment in Maria's favor was filed. Therefore the People's petition is timely filed in this court. (Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 500, 165 Cal.Rptr. 748 [writ petition in court of appeal generally considered timely if filed within 60 days of challenged order].)

We now proceed to the merits.

II

The People argue that the court erroneously interpreted the implied consent law to require a police officer to offer a suspect a choice of all three chemical tests and to administer the one requested on pain of dismissal of the charges for failure to do so. The People also argue that even if Maria established a case of suppression of evidence or failure to obtain evidence by law enforcement officials, he failed to demonstrate constitutional error requiring dismissal of the charges under the tests set forth in California v. Trombetta (1984) 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413, and Arizona v. Youngblood (1988) 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281.

We consider the constitutional claim first. The superior court, in its written order on the petition, relied on the case of In re Newbern (1961) 55 Cal.2d 508, 11 Cal.Rptr. 551, 360 P.2d 47 to support the remedy of dismissal. In Newbern, the Supreme Court stated that it would be a denial of due process for law enforcement authorities to frustrate the reasonable efforts of a person accused of intoxication to obtain a timely sample of his blood, and that the remedy therefor would be discharge. (55 Cal.2d at p. 513, 11 Cal.Rptr. 551, 360 P.2d 47, citing In re Newbern (1959) 175 Cal.App.2d 862, 864, 866, 1 Cal.Rptr. 80; accord In re Martin (1962) 58 Cal.2d 509, 512, 24 Cal.Rptr. 833, 374 P.2d 801.)

In relying on the rule stated in Newbern, the superior court distinguished a case cited by the People, Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 363, 150 Cal.Rptr. 216. In Brown, the police gave a suspected drunken driver a breath test but refused his...