Bloom v. DMV

Filed 3/16/06 Bloom v. DMV CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Russell Bloom (hereafter petitioner) appeals an order denying his petition for writ of mandate to set aside a decision of the Department of Motor Vehicles (hereafter DMV) to suspend his driving privilege for one year. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner lost his driver's license when he refused chemical blood-alcohol tests in connection with an arrest for driving under the influence of alcohol. After being served with a notice of suspension of driving privileges, he challenged the suspension in an administrative hearing before a DMV officer on May 2, 2005. The DMV upheld the suspension and suspended his driving privileges for one year from June 12, 2005 to June 11, 2006. Petitioner filed a petition for writ of mandate to set aside the DMV decision. The trial court denied the petition in an order filed August 29, 2005, which made extensive findings on a disputed fact – the sequence of his arrest and refusal to take a preliminary alcohol screening (PAS) test. He filed a timely notice of appeal.[1]

The evidence at the DMV hearing discloses at approximately 2:00 a.m. on January 27, 2005, Officer Belman of the Albany Police Department was driving north on San Pablo Avenue in a marked patrol car when he saw in his rear view mirror a van approaching in the same lane. He changed lanes and allowed the van to pass him. He estimated that it was traveling about 40 m.p.h. in a 30 m.p.h. zone. The van stopped at a traffic light and then accelerated and made a left turn across two double yellow lines and white raised curbs into the parking lot of a fast food restaurant. Officer Belman followed the van into the parking lot and detained petitioner as he left the van.

In his written report of the incident, Officer Belman recorded that petitioner's speech was â€