Sanchez v. Alexis

• Decision Date: 14 May 1982
• Citation: 131 Cal.App.3d 709,182 Cal.Rptr. 593
• Court: California Court of Appeals Court of Appeals
• Parties: Candido Oreseo SANCHEZ, Petitioner and Appellant, v. Doris ALEXIS, Director of the Department of Motor Vehicles, Respondent. Civ. 27261.

Page 593

182 Cal.Rptr. 593

131 Cal.App.3d 709

Candido Oreseo SANCHEZ, Petitioner and Appellant, v. Doris ALEXIS, Director of the Department of Motor Vehicles, Respondent.

Civ. 27261.

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

May 14, 1982.

Hearing Denied July 14, 1982.

[131 Cal.App.3d 711] Ronald R. Talmo, Santa Ana, for petitioner and appellant.

George Deukmejian, Atty. Gen., and Melvin R. Segal, Deputy Atty. Gen., for respondent.

OPINION

MORRIS, Presiding Justice.

Appellant Candido Sanchez was lawfully arrested for driving under the influence of alcohol. He refused to submit to a chemical test under the implied consent law and his license was suspended. He filed a petition for a writ of mandate in the superior court challenging the suspension of his driving privilege. His petition was denied and this appeal followed. The California Supreme Court stayed the effect of the license revocation pending final determination of this appeal.

Sanchez contends that suspension of his license violated settled state law as well as procedural due process. The basis of this appeal is the failure of the arresting officer to advise Sanchez that if he refused to submit to a test that refusal "may be used against him in a court of law." No other issues are raised.

In 1980 Vehicle Code section 13353 was amended to add that the arrestee "shall also be advised by the officer that, in the event of refusal to submit to a test, such refusal may be used against him in a court of law." ¹ A 1981 amendment did not change the substance of this provision. ²

It is agreed that the arresting officer did not advise Sanchez that failure to submit could be used against him in a court of law. Sanchez argues that the legal effect of this omission is to preclude the revocation of his driving privilege. The Director of the Department of Motor Vehicles (hereafter Department) argues that this advisement has no relationship to administrative license suspension proceedings under the implied consent law.

Our conclusion is that the advisement which was omitted was not intended by the Legislature to apply to the Department's administrative license suspension procedure. The most obvious reason for this conclusion is supplied by the face of the statute. The warning required is that refusal "may be used against him in a court of law." The Department's revocation procedure is administrative and does not require the involvement of a "court of law." The only reasonable interpretation is that the reference is to the criminal trial which may result due to the driving under the influence. It is the rule that the refusal to submit to a chemical test may be used against the driver in a criminal trial. (People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 421 P.2d 401; People v. Roach, 108 Cal.App.3d 891, 894, 166 Cal.Rptr. 801.)

Refusal to submit to a chemical test is the cornerstone of the administrative procedure. Subdivision (c) of section 13353 specifies the issues which are to be covered in the administrative proceeding. They are: (1) whether there was reasonable cause for the officer to believe the person was driving under the influence; (2) whether there was an arrest; (3) whether there was a refusal to submit to a chemical test after being requested to do so by the officer; and (4) whether the person had been advised that the driving privilege would be suspended if he refused to submit to or complete a test. Upon amending section 13353 to require an advisement that the refusal could be used against the driver in a court of law, the Legislature did not amend subdivision (c) to add an issue in the administrative proceeding concerning this advisement. This supports the conclusion that the Legislature did not intend the advisement to relate to the administrative proceeding.

AB 2488 effected the amendment under review. A report on the bill in the Senate Committee on Judiciary stated that "[t]he purpose of the bill is to inform DUI suspects of the consequences of refusing to submit to a sobriety test, and thereby encouraging their compliance." This language is directed to already existing consequences, i.e., use of refusal against the driver in a criminal prosecution. The report in the Assembly Committee on Criminal Justice is similar. It recites, in part: "Proponents indicate that this legislation would afford the arrested person further incentive for submitting to these tests by making him/her aware of the potential use of such a refusal in trial." Both reports observed that case authority already provided that refusal to submit to a test could be used in evidence at trial, the prosecutor could comment on the refusal and the court could instruct on the refusal.

Both reports indicate that AB 2488 was unclear as to the legal effect of a failure to give the requisite admonishment. The Legislature took no action to clear up that matter.

Sanchez reasons that the advisement cannot relate to criminal proceedings and thus, by the process of elimination, must refer to administrative proceedings. This argument contradicts the plain meaning of the statute as derived from its face. We are directed to People v. Brannon, 32 Cal.App.3d 971, 108 Cal.Rptr. 620.

In Brannon the defendant was arrested for drunk driving. The police did not advise the defendant of his choice of three chemical tests under the implied consent law. Instead, they simply had him complete the breathalyzer test. At the criminal trial the prosecution was allowed to introduce evidence of the test results over defendant's objection. The Brannon court determined that the failure to give the defendant the test choices did not require suppression of the test results. The court found no constitutional prohibition to admission of the test results in the criminal trial and determined there was a legislative intent to allow such admission even though there had been no compliance with the relevant portion of the implied consent law. Sanchez relies on that portion of Brannon which states: "Evidence obtained in violation of a statute is not inadmissible per se unless the statutory violation also has a constitutional dimension." (At page 975, 108 Cal.Rptr. 620.)

Brannon is one of many cases recognizing the dual objectives of section 13353, to wit: (1) securing evidence of intoxication for use in court; and (2) providing an administrative penalty for those refusing to comply. Brannon recognized that a basis independent of the implied consent law existed for admission of the test results in the criminal trial. Brannon also held that failure to provide the driver with the required choices went to the administrative side of the problem precluding license suspension by the Department.

When the arresting officer fails to advise the arrestee that failure to submit to a chemical test will result in loss of the driving privilege, this precludes the administrative suspension of the driving privilege. However, the refusal may still be used against the arrestee in criminal proceedings based upon the driving under the influence. In other words, the sanction imposed must be related to the error. A prerequisite to administrative license revocation is a warning that failure to submit to a chemical test will result in loss of the driving privilege. Failure to give the warning has no effect on introduction of the refusal in a criminal trial because the failure to give the advisement relates only to the administrative proceeding. (People v. Brannon, supra.)

The same division between the administrative and criminal processes for drunk driving is apparent in the terms of the advisement under review. Here the advisement that refusal can be used against the person "in a court of law" clearly relates only to the criminal proceeding. The sanction, if any, to be imposed in a criminal trial for failure to give the advisement is beyond the scope of this appeal. What is clear is that no logical reason exists to impose a sanction in the administrative proceeding for omission of an advisement that relates solely to the criminal prosecution for driving under the influence.

"Vehicle Code section 13353 was passed to eliminate the carnage on our highways caused by those who drive after drinking excessively. Cases interpreting this code section repeatedly state '[t]he purpose of the...