Smith v. Cozens
| Decision Date | 03 May 1972 |
| Citation | 25 Cal.App.3d 300,101 Cal.Rptr. 787 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Thomas Richard SMITH, Plaintiff and Appellant, v. Robert C. COZENS, Director of California Department of Motor Vehicles, and California Department of Motor Vehicles, Defendants and Respondents. Civ. 29711. |
Watson, Hoffe & Fannin, Richmond, for plaintiff-appellant.
Evelle J. Younger, Atty. Gen., of the State of Cal., Victor D. Sonenberg, Deputy Atty. Gen., San Francisco, for defendants-respondents.
An appeal is properly taken from an order and judgment denying an application for mandate sought by appellant Smith to annul a Motor Vehicle Department suspension of his driver's license under the 'Implied Consent' law, found in Vehicle Code sections 13353--13354. The appeal additionally purports to be taken from certain nonappealable orders; as to those orders it will be dismissed.
Smith's overall contention is that the 'evidence was not sufficient to support the judgment of the trial court.'
The facts appear to be undisputed. Smith was arrested on probable cause to believe that he was driving a motor vehicle under the influence of intoxicating liquor. Upon being advised of his duty to participate in a test of his blood, breath or urine, he chose a urine test. However, for at least a half hour thereafter he was unable to produce a urine specimen. He was then asked to submit to a test of his blood or breath. He responded, 'I tried to urinate,' and would not agree to either of the other tests. He accordingly submitted to none of the chemical tests required by section 13353.
Smith's first contention, that the Vehicle Code at the time of his arrest did not require that he Complete a test but only that he Not refuse one, has been resolved adversely to him in Cahall v. Department of Motor Vehicles, 16 Cal.App.3d 491, 496, 94 Cal.Rptr. 182, and Quesada v. Orr, 14 Cal.App.3d 866, 871, 92 Cal.Rptr. 640. In those cases it is expressly held that upon the suspected drunken driver's inability to produce a urine sample the statute requires him, upon request, to submit to, and Complete, one of the other tests. 1
Smith next argues that 'only the arbitrary time limit imposed by the arresting officer prevented completion of the chosen test.' Clearly implied in the statute is the requirement that one of its described tests be submitted to and completed expeditiously; otherwise the purpose of the law would be frustrated.
People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 421 P.2d 401, speaks of blood alcohol tests as being 'a fair, efficient, and accurate system of detection' of inebriated drivers, and points out that such evidence of intoxication 'disappears repidly with the passage of time . . ..' (See also In re Martin, 58 Cal.2d 509, 512, 24 Cal.Rptr. 833, 374 P.2d 801; Ent v. State Department of Motor Vehicles, 265 Cal.App.2d 936, 940, 71 Cal.Rptr. 726; People v. Huber, 232 Cal.App.2d 663, 672, 43 Cal.Rptr. 65.) And since lapse of time between the arrest and the test 'affects the accuracy of its result' the court in Funke v. Department of Motor Vehicles, 1 Cal.App.3d 449, 453, 81 Cal.Rptr. 662, interpreted section 13353 as requiring that one of the three tests 'be taken on arrest' of the drunken driver suspect. (Emphasis added.) We encounter no difficulty in concluding that failure, as here, to promptly complete the selected test, requires submission to, and completion of, one of the other tests.
The next contention that having selected one test, Smith was not obliged to 'select more than one test' is disposed of by the cases of Cahall v. Department of Motor Vehicles, supra, 16 Cal.App.3d 491, 94 Cal.Rptr. 182, and Quesada v. Orr, 14 Cal.App.3d 866, 92 Cal.Rptr. 640, and our earlier discussion of those authorities.
Nor is merit seen in Smith's...
To continue reading
Request your trial
-
Peterson v. State
...tests be submitted to and completed expeditiously; otherwise the purpose of the law would be frustrated." Smith v. Cozens, 25 Cal.App.3d 300, 302, 101 Cal.Rptr. 787, 788 (1972). "There is no sound reason to give the driver the opportunity to delay the test to his benefit contrary to the pur......
-
McConville v. Alexis
...the test he has chosen must select one of the other two in order to avert the loss of his driver's license. (Smith v. Cozens (1972) 25 Cal.App.3d 300, 303, 101 Cal.Rptr. 787; Cahall, supra, 16 Cal.App.3d at p. 496, 94 Cal.Rptr. Given this well established case law, it would seem that the on......
-
Lund v. Hjelle
...tests be submitted to and completed expeditiously; otherwise the purpose of the law would be frustrated.' Smith v. Cozens, 25 Cal.App.3d 300, 302, 101 Cal.Rptr. 787, 788 (1972). '(T)he testing officers should not be required 'to await the driver's convenience of a different time or place' t......
-
Harlan v. State, 6589
...tests be submitted to and completed expeditiously; otherwise the purpose of the law would be frustrated.' Smith v. Cozens, 25 Cal.App.3d 300, 302, 101 Cal.Rptr. 787, 788 (1972). '(T)he testing officers should not be required 'to await the driver's convenience of a different time or place' t......