Plumb v. Department of Motor Vehicles

• Decision Date: 28 October 1969
• Citation: 81 Cal.Rptr. 639,1 Cal.App.3d 256
• Parties: William E. PLUMB, Petitioner and Appellant, v. DEPARTMENT OF MOTOR VEHICLES of the State of California; Verne Orr, Director, Respondent. Civ. 11934.
• Court: California Court of Appeals Court of Appeals

Page 639

81 Cal.Rptr. 639

1 Cal.App.3d 256

William E. PLUMB, Petitioner and Appellant, v. DEPARTMENT OF MOTOR VEHICLES of the State of California; Verne Orr, Director, Respondent.

Civ. 11934.

Court of Appeal, Third District, California.

Oct. 28, 1969.

Vance J. Vantassell, Laurence C. Blunt, Sacramento, for petitioner-appellant.

Thomas C. Lynch, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

Petitioner Plumb appeals from a judgment denying his petition for a writ of mandate compelling the respondent Department of Motor Vehicles to set aside its decision suspending his driver's license for six months under Vehicle Code section 13353. ¹

Plumb's contention is that the arresting officer, who had given Plumb an augmented 'Miranda warning' (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) which emphatically stated that Plumb 'had an absolute right to counsel * * * present at all stages of the proceedings against him * * *,' must have realized that Plumb, when he asked permission to make a phone call, had misinterpreted the officer's statement just quoted and was seeking to exercise the proffered right, thus nullifying his subsequent refusal to submit to one of the three tests provided for in the code section. We have concluded that the matter must be reheard to permit the department to determine whether the officer's statement was, in fact, so misinterpreted.

On the evening of April 18, 1967, highway patrol officer George saw Plumb driving erratically. He caused him to stop and alight from his vehicle. When Plumb performed a roadside sobriety test poorly and showed other indications of intoxication the officer arrested him and gave him a warning more extensive than that required by Miranda, stating Plumb's 'absolute right to counsel and that he could have counsel present at all stages of the proceedings against him * * *.' Plumb said he would 'stay quiet.' Plumb also testified that after he had been warned (as we have quoted the warning above) he asked if he 'could make a telephone call.' The officer told him that he might do so 'after (he) had been booked.' On cross-examination, the officer would neither affirm nor deny that request and reply. He did not recall. He stated, however, that if such a request had been made 'I would advise him that he would be allowed two telephone calls after booking.' Plumb testified: 'My primary reason for asking when I could make a phone call when I was in the highway patrol car, was to call an attorney and I even had the attorney in mind.' Plumb did not testify that he had told officer George his purpose in wanting to make a phone call.

At the hospital officer George, according to his testimony, 'read (to Plumb) the required statement under the Implied Consent Law Verbatim.' (Italics ours.) According to Plumb, '(h)e did not go through the entire content of the Implied Consent law as such. In fact, it was you might say, Hit and miss.' (Italics ours.) Plumb's reply was 'No, you've got my license. I refuse.' Separately he was asked to submit either to a blood test, a breath test, or a urine test. He refused each request. He refused similar requests made by the doctor. He stated his reason for refusal: 'And, quite frankly, I didn't know what to say--I mean I wasn't aware of all the ramifications of this particular law.' ² (Italics ours.)

'It is now settled that in a civil proceeding for suspension of a person's driving privilege under the California Implied Consent Law, a driver does not enjoy the right to consult with counsel, or to have counsel present, before deciding to submit to the chemical tests prescribed by the statute inasmuch as such tests do not violate one's right against self-incrimination (Schmerber v. California, 384 U.S. 757, 760--765, 86 S.Ct. 1826, 1830--1833, 16 L.Ed.2d 908, 913--916; People v. Sudduth, 65 Cal.2d 543, 546--547, 55 Cal.Rptr. 393, 421 P.2d 401; United States v. Wade, 388 U.S. 218, 221, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149, 1153), nor one's right to be free from illegal searchers and seizures (Schmerber v. California, supra, 384 U.S. pp. 766--772, 86 S.Ct. pp. 1833--1836, 16 L.Ed.2d pp. 917--920), nor one's right to counsel. (Citation.)' (Westmoreland v. Chapman (1968) 268 A.C.A. 855, 858--859, 74 Cal.Rptr. 363, 365 (hear. den.); see also Reirdon v. Director of Dept. of Motor Vehicles (1968) 266 Cal.App.2d 808, 810--811, 72 Cal.Rptr. 614; Ent v. Dept. of Motor Vehicles (1968) 265 Cal.App.2d 936, 938--943, 71 Cal.Rptr. 726; Fallis v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 373, 383, 70 Cal.Rptr. 595; Finley v. Orr (1968) 262 Cal.App.2d 656, 663--665, 69 Cal.Rptr. 137 (hear. den.).)

The rule is equally well settled, based upon the pilot opinion of the appellate court for the Fourth District in Rust v. Dept. of Motor Vehicles (1968) 267 A.C.A. 602, 604, 73 Cal.Rptr. 366 (hear. den.) that when the driver asks to talk to his attorney before deciding whether or not to submit to one of the section 13353 tests and the request comes after he has been told by the officer (as a part of a Miranda warning) that he has a right to consult an attorney, he cannot be deemed actually to have refused to submit to a test--IF he, as a matter of fact, honestly misconstrued the officer's statement as the right to make such a call before reaching a decision. The court in Rust likened the case to People v. Ellis (1966) 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393, where officers had first advised defendant of his right to remain silent and thereafter, when he refused to speak for voice identification, had failed to explain to him that such type of 'silence' was not encompassed within the Fifth Amendment guarantee against enforced testimonial communication and thereafter offered his refusal in evidence. That circumstance was a basis for the Supreme Court reversal. (Id. p. 539, 55 Cal.Rptr. 385, 421 P.2d 393.)

Rust has been followed in Kingston v. Dept. of Motor Vehicles (1969) 271 A.C.A. 622, 626--627, 76 Cal.Rptr. 614; Wethern v. Orr, (1969) 271 A.C.A. 925, 926--928, 76 Cal.Rptr. 807 (hear. den.); Farrington v. Dept. of Motor Vehicles (1969) 272 A.C.A. 384, 388--389, 77 Cal.Rptr. 388 (hear. den.); Weber v. Orr (1969) 274 A.C.A. 319, 322--323, 79 Cal.Rptr. 297 (hear. den.); West v. Dept. of Motor Vehicles (1969) 275 A.C.A. 1023, 80 Cal.Rptr. 385. It has been distinguished in Walker v. Dept. of Motor Vehicles (1969) 274 A.C.A. 867, 870--874, 79 Cal.Rptr. 433, and Pepin v. Dept. of Motor Vehicles (1969) 275 A.C.A. 1, 2--3, 79 Cal.Rptr. 657. ³ In the latter case it was stated simply that substantial evidence supported the court's implied finding that Pepin was not misled. That, too, was the basis for distinguishing Rust in the Walker case, supra, but with more explication. The court first pointed out that, as we have seen, the right to consult an attorney before deciding whether to refuse to submit to a test is not a constitutional right. It then states: '(T)he probative value of a chemical test for intoxication diminishes with the passage of time, so that a delay for the time necessary to locate a lawyer could operate to prevent any meaningful testing.' (Id. pp. 871--872, 79 Cal.Rptr., at p. 436.) Under the facts in Walker the driver had first consented to and then refused to submit to a breath test. He had been permitted to make a phone call. The opinion stresses that the question under discussion was a matter of fact and not of law; that the trial court had made a finding that Walker had not been misled and that finding was detailed and explicit. Walker held that substantial evidence supported the trial court's finding. (Id. pp. 871--872, 79 Cal.Rptr. 433.)

The same conclusion cannot be reached in the case at bench. Neither the department nor the trial court made any finding on the question whether Plumb had been confused or misled. As noted above, the officer had overstated the Miranda warning which does not require that an accused be informed that he has an 'absolute' right to have an attorney 'present' at all times. Unlike the facts in the Walker case, Plumb was not allowed to make a telephone call, at least (apparently) until after he was compelled to make a decision as to whether he would submit to a test. The hearing began on June 8, 1967. The trial court proceedings were heard October 20, 1967. The judgment was entered January 24,...