Eberle v. DMV

Filed 2/23/07 Eberle v. DMV CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed.

The Department of Motor Vehicles (the Department) appeals a judgment granting a petition for writ of mandate brought by petitioner Michael Louis Eberle, setting aside an administrative suspension of his driving privileges. (Veh. Code,  13353; all further statutory references are to this code unless noted.) Using its independent judgment, and taking into account the policies behind the implied consent law, the superior court analyzed the record and concluded that under the circumstances of this particular case, Eberle had not refused to comply with chemical test procedures and therefore the suspension should be set aside. (Code Civ. Proc.,  1094.5.)

We conclude the trial court's decision to grant the petition was based on substantial evidence, and the judgment must be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

A

Arrest

Eberle was driving his red sports car in downtown San Diego at approximately 11:45 p.m. on May 14, 2005. As his car stopped at a red light at the intersection of Broadway and Broadway Circle, San Diego Police Officer R.L. Rice observed that its driver appeared to be having difficulty keeping the engine running, since the engine RPM's were going up and down. As the light turned green and the car accelerated, the engine was revving and the tires were spinning and sliding.

Officer Rice turned on his cruiser's overhead emergency lights and siren. Eberle slowed and stopped along the curbline on 4th Avenue. Rice spoke to the driver through the driver's side door, saw that Eberle was the driver and requested his license, registration, and proof of insurance. Eberle stated he had recently purchased the vehicle and was having trouble getting it registered. Rice observed that Eberle's eyes were glassy and bloodshot/watery, and he smelled of alcoholic beverages. Eberle told the officer that he had had a couple of drinks with dinner. Eberle performed poorly on field sobriety tests and was placed under arrest for driving under the influence of alcohol (DUI). ( 23152.) He was not offered a preliminary alcohol screening test.

When Eberle was told by Officer Rice that he was required to submit to either a blood test or a breath test, he said he did not want to take either one. The officer then read him the chemical test refusal admonition on the back side of the DS-367 form, and received the same answer. Rice's report shows that he then transported Eberle to police headquarters. Officer Cavanaugh obtained a blood sample from Eberle at 12:35 a.m. on May 15, 2005. In the course of the arrest, Eberle was served with an administrative per se suspension/revocation order.

B

Administrative Hearing

On June 15, 2005, an administrative per se hearing was held on the elements of an implied consent violation. At the hearing, Eberle testified that on May 14, 2005, beginning around 6:45 p.m., he was eating and drinking at a restaurant for approximately two hours and had four to six glasses of wine. After dinner, he went to another restaurant and had another two glasses of wine, leaving at approximately 10:30 p.m. He was suffering from an ear infection at that time. That evening he was pulled over by the police.

Eberle did not dispute that Officer Rice advised him during the traffic stop that he was required by law to submit to a chemical test (blood or breath) to determine his blood alcohol concentration. He admitted that he told Rice that he did not want to take either a blood test or a breath test. Although he was told by Rice that he would more than likely lose his license for one year if he did not submit to chemical testing, he still refused a test.

Eberle also testified that when the police car driven by Officer Rice pulled away to transport him to the police station, it was cut off by another driver, causing Rice to stop and conduct a separate DUI investigation of this other driver. In the meantime, a female officer (whose name was unknown to Eberle) came and took Eberle to the police station at 14th and Broadway. These other events were not shown in the police report. There was some delay in getting his sports car towed, as it was so unusual.

When Eberle was waiting at the station, the unidentified female officer asked him whether he would be willing to take a chemical test, and he voluntarily submitted to one. (It should also be noted that Eberle's request at the hearing to submit expert testimony from a forensic alcohol analyst was refused, but those issues are not disputed on this appeal.)

In her findings, the hearing officer determined Eberle had clearly and unequivocally refused Officer Rice's requests that he submit to chemical testing. The hearing officer also found no persuasive evidence to support Eberle's version that while Rice was busy with other activity, a female officer had taken Eberle to the police station, where he agreed to be tested. The hearing officer explained:

"The testimony of [Eberle] is deemed not credible in that the alcohol affects [sic] of 4-6 glasses of wine along with a 'severe' inner ear infection would affect his capacity to perceive events clearly or rationally. He also testified to being unfamiliar with the area and not looking at his watch to establish any time frames. The Officer specifically states in his report that he himself transported [Eberle] to headquarters for a blood test. More weight is given to the reports completed at or near the time of the event than to [Eberle's] testimony of events from a month ago while he was intoxicated."

The administrative notice of findings and decision was issued on June 20, 2005, upholding the suspension. The basis for the suspension was the hearing officer's finding that Eberle unlawfully refused to submit to chemical testing after being requested to do so by the arresting officer and after being advised that his driving privileges would be suspended or revoked if he refused.

C

Mandamus Proceedings and Ruling

Eberle filed this petition for writ of administrative mandamus challenging the decision to suspend his license. He claimed the suspension had been imposed arbitrarily, without support in the record.

Opposition was filed and the administrative record was lodged. Following argument, the court issued its ruling. After disposing of the expert testimony dispute (not challenged on appeal), the court addressed the refusal of testing issues, noting these were difficult cases with many factual variations of intentional delay tactics on the part of drivers. The court observed that "the law is pretty clear on refusals, it's that the officers don't have to play the game over and over again." However, the court noted that in this particular case, "there's an interesting twist because of all the delay tactics I just described were not really done by Mr. Eberle. The tactic he employed was to refuse a test upon being initially detained on the corner of Fourth and Broadway. I think the record is pretty clear that he was properly admonished, that he had a choice of breath or a blood test. He said I'm not going to give you either of them. He admitted that in his own testimony. But the problem I have with it is there was no test being administered or likely to be administered then. Perhaps if the officer had pulled out the . . . device and he said no I'm not going to blow into that, it might be a little stronger case for a refusal. But there was no ability, there was no intent at that time to give a test. And that's why I'm concerned[, counsel,] is the time of this and the location. Saying out on the street corner, no, I don't want to take any of your tests versus being in a lab room saying you have to choose between that breath machine or a blood draw and saying no way, I'm not going to give you anything. To me those are two different situations. The timing and location [are] significantly different." (Italics added.)

After making those observations, the court found that from his reading of Eberle's testimony, Eberle's account was credible, even in light of his admitted consumption of alcohol (i.e., that there was a transfer when he was transported to the police station, as part of the course of events). The court noted that such circumstances were not unusual, and they supported a conclusion that the police report's statement by Officer Rice, that he had transported Eberle to the station, was actually form language. From those facts, the court continued the analysis by saying that once the other officer (the transporting officer) took him down to the station and offered him a test, Eberle said okay. The court made a finding that at that point, "A police officer, a different one who did not know what happened on 4th and Broadway asked him will you take breath or a blood test? And he said I'll take a blood test."

Under all the circumstances, the court found that the policies supported by the statute (the need for timely results for blood alcohol levels) were satisfied here, "because there was no delay caused by Mr. Eberle in playing the game I just described earlier and delaying the breath test." Similarly, Eberle's conduct was not the type of conduct that causes significant delay for the arresting officers in going back to work (such as drivers who play with the machine, refuse tests, change their mind, ask if they can have a urine test, then switch, and so forth): "None of that occurred here. What occurred here is that when they got to the point where it was time to take the test Mr. Eberle said here is my arm, give me a blood test."

In light of the policies of the refusal laws and the cases interpreting them, the court disagreed with the hearing officer's analysis, and ruled that no actionable refusal to test had taken place, such that there was voluntary compliance with the implied consent law. The court granted the petition and set aside the suspension order. Judgment was entered accordingly and the Department appeals the decision.

ANALYSIS

I

STANDARDS OF REVIEW; ISSUES PRESENTED

The parties do not dispute that the superior court appropriately utilized the independent judgment test in deciding the application for writ of mandate following the order of suspension. (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, 824 (Fukuda).) Under the independent judgment test, the court determines whether the administrative hearing officer abused his or her discretion because the findings are not supported by the weight of the evidence. (Id. at pp. 816-817.) The administrative findings come before the superior court with a " ' "strong presumption of correctness," ' " and the burden rests on the petitioner to establish administrative error. (Id. at p. 817.)

On appellate review of the superior court's exercise of its independent judgment, this court will sustain the court's findings if they are supported by substantial evidence. (Fukuda,supra, 20 Cal.4th at p. 824.) We resolve all conflicts in favor of Eberle, as the party prevailing in the superior court, and give him the benefit of all reasonable inferences in support of the judgment. (Pasadena Unified School Dist.v.Commission on Professional Competence (1977) 20 Cal.3d 309, 314.) We do not substitute our deductions regarding the record for those of the superior court. (Ibid.) " 'We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]' [Citations.]" (Lake v. Reed (1997) 16 Cal.4th 448, 457 (Lake).)

In a case in which the pertinent facts are not in conflict and the only issues presented are an interpretation of a statute or regulation, an appellate court is not bound by the trial court's legal conclusions. (Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1925-1926.) Here, however, the superior court analyzed the record, made credibility determinations, and applied the law to the facts as established in that manner. Accordingly, we should give the trial court appropriate deference with respect to its views on whether the administrative findings were supported by the weight of the evidence. (Fukuda, supra, 20 Cal.4th 805, 816-817.)

The Department challenges the judgment granting the petition on the basis that "the facts as found by the superior court established Mr. Eberle refused to submit to a chemical test within the meaning of the implied consent law. The court should decline Mr. Eberle's invitation to make an exception to the initial refusal rule because the rule advances the policy supporting the implied consent law and making an exception would encourage game playing by drunk drivers."

In response, Eberle's brief explains his logic that "the absence of any linkage between his initial refusal and any dissipation of evidence of his blood alcohol content by the time he was ultimately tested justified the trial court's ruling below." Eberle does not contest the validity of the arrest procedure itself, instead contending that the valid public policies promoted by the refusal rules are not adversely implicated here, in light of the facts as found by the lower court.

To address these issues, we first outline the policies implemented by the administrative suspension law, as interpreted by case law. We then apply those rules to this record.

II

ADMINISTRATIVE SUSPENSION PROCEDURES; APPLICATION

The long-range purposes of the administrative license suspension procedures, section 13353, have been summarized as follows: " '(1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions. [Citations.]'  [Citation.]" (Lake, supra, 16 Cal.4th 448, 454.)

In addition, the immediate purpose of this statutory scheme is to obtain the best evidence available of blood-alcohol content. (Ellis v. Pierce (1991) 230 Cal.App.3d 1557, 1561.) Neither this purpose nor the long-range goal of the statute, to remove impaired drivers from the road, is punitive in nature, and each is intended to facilitate the gathering of evidence and to protect public safety. (Ibid.; see also Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1162-1163 (Barrie).)

Case law has sought to implement the purposes of section 13353 by emphasizing the need for ready compliance with the implied consent law, section 23612. For example, in Barrie,supra, 151 Cal.App.3d 1157, 1162-1163, the court stated that a driver's initial refusal forms the basis for suspension of the driver's license under section 13353. There the court rejected a driver's argument that an order of suspension based on a 10-minute delay in obtaining a blood test, caused by her refusal, was unjustified, even if the delay was minimal and did not jeopardize the efficacy of the blood test. The court said, "This begs the question because in the instant case it is the refusal not the delay that is the significant factor." (Id. at p. 1163, citing Covington v. Department of Motor Vehicles (1980) 102 Cal.App.3d 54 (Covington) and Skinner v. Sillas (1976) 58 Cal.App.3d 591.) "Further, after the arrested driver refuses to take one of the three tests, it is no longer required that he be given one even though he may decide he is ready to take it. [Citation.]" (Barrie, supra, at p. 1163.)

The Department would analyze this record as showing Eberle made a belated agreement to submit to a chemical test, which did not cure his previous refusal, and he therefore should not be able to avoid a suspension. We disagree with this characterization of the record. Rather, we believe the trial court correctly found that Eberle's compliance with the test at the time it was made available was the significant factor in this case. This is consistent with the principles set forth in the refusal case law, with which the trial court was very familiar. The trial court noted for the record that it had extensive experience in analyzing fact situations arising from the implied consent law and administrative suspensions, and it believed that this situation was unusual, because the decision to take the test was roughly contemporaneous with the earliest time the test could be taken, and there was no causation of any delay through Eberle's actions. In such a case, the policies promoted by the administrative suspension procedure were not violated.

Several factors lead us to conclude that the trial court's view was correct. First, the record shows that the time period involved ran from the traffic stop at 11:45 p.m. until the blood draw occurred at 12:35 a.m., about 50 minutes later. No preliminary alcohol screening test was offered any earlier than this blood draw at the police station, nor was it shown that this 50-minute time period was lengthened by any actions of Eberle in contesting the test, or in attempting to place conditions upon it. For example, Eberle did not demand that any particular person be present to request or administer the test. (See Covington, supra, 102 Cal.App.3d at pp. 54, 57 [motorist cannot demand that attorney be present].) There was no available test pending at the time of the initial refusal, and thus even the admitted delay in consenting to the test did not make any difference under all the circumstances, with respect to the main purposes of the statute (obtaining an effective test and keeping impaired drivers off the road). Since the purposes of the statute are not mainly punitive in nature, the Department's interpretation of these facts is unduly strict. (See Ellis v. Pierce,supra, 230 Cal.App.3d 1557, 1561.)

Moreover, the superior court could legitimately analyze the record and then disagree with the hearing officer's conclusions that (1) Eberle's account of being transported to the station by a different officer must have been less credible than the police reports, which said that Officer Rice was the only one involved and (2) therefore the initial refusal was fatal to Eberle's case. Rather, the court could appropriately analyze the facts as demonstrating that no refusal took place that made any difference to the progress of how Eberle's case was processed. The record supports a conclusion that under these particular circumstances, the crucial moment for analyzing consent here was when the test was actually available, regardless of the identity of the custodial police officer at that time.

" 'We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]' [Citations.]" (Lake, supra, 16 Cal.4th 448, 457.) Here, that would require us to conclude that the initial refusal was dispositive, even though there was also evidence that by the time the test offered, a chemical test, could be administered, Eberle was consenting to one. We are unwilling to overturn the judgment on that theory, and instead believe that the trial court correctly took into account all applicable policy considerations when it concluded that Eberle's actions did not adversely affect the relevant events as they occurred. This conclusion was consistent with the reasoning of the applicable case law and did not controvert these important statutory purposes. We affirm the judgment granting the petition.

DISPOSITION

The judgment is affirmed. Costs of appeal are awarded to Eberle.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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