Walker v. Department of Motor Vehicles

• Decision Date: 14 July 1969
• Citation: 274 Cal.App.2d 793,79 Cal.Rptr. 433
• Court: California Court of Appeals Court of Appeals
• Parties: Robert Phil WALKER, Petitioner and Appellant, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Defendant and Respondent. Civ. 32646.

Page 433

79 Cal.Rptr. 433

274 Cal.App.2d 793

Robert Phil WALKER, Petitioner and Appellant, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Defendant and Respondent.

Civ. 32646.

Court of Appeal, Second District, Division 4, California.

July 14, 1969.

Murchison, Stebbins & Davis and Robert P. Stebbins, Beverly Hills, for petitioner and appellant.

Thomas C. Lynch, Atty. Gen., Warren H. Deering and Henry G. Ullerich, Deputy Attys. Gen., for defendant and respondent.

FILES, Presiding Justice.

Following an administrative hearing, appellant's license to operate a motor vehicle was suspended under Vehicle Code section 13353 upon the ground that he had refused to submit to a chemical test of the alcoholic content of his blood, breath or urine following his arrest for driving under the influence of intoxicating liquor. By a proceeding in mandate in the superior court he sought review of that administrative decision. The superior court made findings adverse to appellant and denied him any relief. This appeal is from that judgment.

The facts pertinent to this opinion may be stated simply. Appellant was arrested by Highway Patrol officers while driving his automobile at 2:40 a.m. on May 11, 1967. An officer advised appellant of his 'Miranda rights' ¹ in this language (according to the officer's testimony at the administrative hearing):

'Mr. Walker, I'd like to advise you of your rights. You have a right to remain silent. That anything you say can and may be used against you in a court of law. In the event that you cannot afford an attorney, the State will provide one for you, and you are entitled to an attorney throughout the entire interview.'

Later, while appellant was being transported to the sheriff's station, the officer explained Vehicle Code section 13353 to appellant 'in great detail', including the statement that he was required to submit to one of three tests, that is, of his blood, breath or urine, and that if he refused his driver's license would be suspended for a period of six months. ² Appellant said he would take the breath test. On arrival at the station appellant said he would not take the test until he talked to his attorney. The officers allowed him to place two telephone calls for that purpose, but appellant was unable to reach the party he was calling. ³ Following the telephone calls the officers 'again re-advised him of the Implied Consent Law' ⁴ and asked him if he would take a chemical test. Appellant again stated "I won't do anything 'till I see my attorney."

The officers took this as a final refusal, and subsequently instituted the statutory procedure which resulted in a formal hearing before a two-man board, where appellant appeared with counsel and evidence was taken. From the evidence the board found that appellant had been arrested, that the officer had reasonable cause to believe he had been driving under the influence of intoxicating liquor, that he had been told that his driving privilege would be suspended for six months if he refused to submit to a chemical test, and that he had refused. Upon these findings the Department of Motor Vehicles suspended appellant's driving privilege for six months.

The superior court heard the case upon the record of the administrative hearing, but exercised an independent judgment on the facts and made its own findings of fact as it was required to do. (See Hohreiter v. Garrison (1947) 81 Cal.App.2d 384, 401--402, 184 P.2d 323, applied to this type of proceeding in Finley v. Orr (1968) 262 Cal.App.2d 656, 666, 69 Cal.Rptr. 137.)

The superior court's findings included all of the facts found by the hearing board, together with a number of more detailed findings which wre requested by appellant as a foundation for some contentions which his counsel desired to urge on appeal.

Appellant's brief challenges on a variety of grounds the constitutionality of Vehicle Code section 13353 and the legality of the procedures employed by the Department of Motor Vehicles, but cases decided subsequently have established the law against him on these points.

The procedure required by section 13353 is consistent with due process; and the requirement that a driver submit to a chemical test does not violate his constitutional privilege against self-crimination. (Finley v. Orr, Supra, 262 Cal.App.2d 656, 660, 69 Cal.Rptr. 137.)

It is not necessary that the hearing officer be an attorney, and the provisions of the Administrative Procedure Act (Gov.Code, § 11500 et seq.) are inapplicable. (Serenko v. Bright (1968) 263 Cal.App.2d 682, 689, 70 Cal.Rptr. 1.)

We find no basis for appellant's contention that he is denied 'equal protection of the laws' in that the license suspension is automatic for the driver who refuses the test but discretionary for the driver who takes the test and is found to be under the influence of alcohol (Veh.Code, § 13210).

The Legislature had a sufficient reason for requiring a chemical test, and for providing a simple administrative sanction to enforce that requirement. The combination of criminal punishment and administrative sanctions which are imposed upon a person convicted of drunk driving (see Veh.Code, §§ 23102, 13210, 13352) serve a different purpose and, in a particular case, may be more or less onerous than the sanction imposed under section 13353.

The classes are different. All who refuse the chemical test are subject to the sanction of section 13353, and all who drive under the influence are subject to the penalties provided for that offense. A driver may fall into either class, or neither or both, and will receive the treatment which the law provides for the class or classes in which he places himself. (See August v. Department of Motor Vehicles (1968) 264 A.C.A. 62, 79, 70 Cal.Rptr. 172.)

More detailed discussion is required for appellant's contention that he did not actually refuse to take the test when he said he would do nothing until he talked to an attorney. Put differently, appellant's point is that the 'Miranda warning', which advised him of his right to counsel during police interrogation, led him to believe he was entitled to counsel before or during the test, and that belief cancelled the effect of the statutory admonition (see fn. 2, Ante p. 434) that a refusal to submit to the test would result in suspension of the license. For this, he relies on the reasoning of Rust v. Department of Motor Vehicles (1968) 267 A.C.A. 602, 73 Cal.Rptr. 366, decided November 21, 1968, after this appeal was taken.

A number of cases have held that the arrested person is not entitled to consult counsel before submitting to one of the tests, and his statement that he will consent only after such consultation is a refusal under the statute. (See Finley v. Orr, Supra, 262 Cal.App.2d 656, 660, 663, 69 Cal.Rptr. 137; Ent v. Department of Motor Vehicles (1968) 265 A.C.A. 1073, 1075, 71 Cal.Rptr. 726.) The latter opinion points out (at p. 1077) that the 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.

In Rust v. Department of Motor Vehicles, Supra, 267 A.C.A. 602, 73 Cal.Rptr. 366, the officers had advised the driver of his right to an attorney, then requested that he submit to a chemical test and warned that if he refused his driving privilege would be suspended. The driver replied that he refused until he called his attorney. The trial court found that the driver's statement, under the circumstances, did not constitute a refusal. In affirming, the Court of Appeal pointed out that the driver may have been confused by the two admonitions, and suggested that the officer ought to qualify his advice by explaining that the right to counsel is inapplicable to the chemical test.

In Kingston v. Department of Motor Vehicles (1969) 271 A.C.A. 622, 76 Cal.Rptr. 614, the record showed the Miranda warning and the officer's demand for a chemical test followed by the driver's statement 'I want to see my attorney,' which the officer construed as a refusal. The trial court dismissed the driver's petition for a writ of mandate without a hearing. The Court of Appeal reversed upon the ground that the driver was entitled to a hearing in court on the question whether he had misinterpreted the Miranda warning.

In Wethern v. Orr (1969) 271 A.C.A. 925, 76 Cal.Rptr. 807, the driver was given the Miranda warning at the scene of the arrest. He said he wanted to consult an attorney and was told he could do so after he was booked. At the sheriff's station, prior to booking, the officers requested that he take a test. He replied that he refused and he wanted a lawyer. The trial court reviewed the administrative record and upheld the decision of the Department of Motor Vehicles suspending the license. The Court of Appeal reversed upon the ground that the refusal 'may well have resulted' from the officer's explanation, and hence was 'not the refusal contemplated by the code section.'

In Farrington v. Department of Motor Vehicles (1969) 272 A.C.A. 384, 77 Cal.Rptr. 388, the superior court found that the driver had not refused the test and ordered the department to vacate its order suspending the license. The Court of Appeal held the evidence did not support that finding. The opinion points out that the trial had occurred prior to the Rust decision, and it was possible that had the more recent opinions been available, the hearing officer would have allowed evidence that 'there was a misconception, a...