Filed 8/22/22 Lunsford v. Dept. of Motor Vehicles CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge. (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Middlebrook & Associates, Richard O. Middlebrook, Gabrielle LaCarre and Misty Franklin, for Plaintiff and Appellant.

Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gabrielle H. Brumbach and Ernesto J. Fong, Deputy Attorneys General, for Defendant and Respondent.

-ooOoo-

INTRODUCTION

The Vehicle Code authorizes the Department of Motor Vehicles (DMV) to suspend a motorist’s driving privilege for one year if he or she refuses to submit to a chemical test (blood or breath) during the course of an investigation for driving under the influence (DUI). (Veh. Code, § 13353, subd. (a)(1).)[1]

A motorist may challenge the license suspension through what is known as an administrative per se (APS) hearing. (§§ 13353, subd. (e), 13558, subd. (a).) The Vehicle Code limits the scope of that hearing to four issues: (1) whether the law enforcement officer had reasonable cause to believe that the person had been driving a motor vehicle while under the influence; (2) whether the motorist was placed under arrest; (3) whether the motorist refused to submit to or did not complete chemical testing; and (4) whether the motorist was provided the “refusal admonition” that his or her driving privilege would be suspended if he or she refused to submit to, or did not complete, the chemical test. (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1130–1131 (Troppman); see §§ 13353, subd. (d), 13557, subd. (b).)

In January 2020, California Highway Patrol Officer L. Valdovinos arrested appellant John Lunsford for a suspected DUI. Valdovinos offered appellant a blood or breath test, and appellant chose a blood test. However, when he arrived at the hospital, he refused to sign the consent form needed to obtain his blood sample.[2] There is no dispute that appellant said something to the effect of “I[‘]m going to refuse” or “I refuse” during this incident.

Unsurprisingly, the DMV suspended appellant’s license for one year.

Appellant’s subsequent administrative challenge failed. He then petitioned Kern County Superior Court for a writ of mandate setting aside his license suspension and again did not prevail. He appeals the superior court’s denial of his writ.

The arguments raised on appeal essentially concern three of the four findings needed to sustain appellant’s license suspension. His contentions lack merit. Appellant’s actions clearly constituted a refusal to submit to chemical testing and substantial evidence supports that conclusion. Appellant received the necessary advisement his license would be suspended if he did not comply. Finally, appellant waived his challenge to the legality of his arrest and his substantive challenge on this issue fails notwithstanding the waiver.

We affirm the trial court’s judgment. The DMV is awarded costs on appeal.

FACTUAL BACKGROUND

The Underlying Incident

On January 4, 2020, Valdovinos observed a vehicle (later identified as appellant’s) struggling to maintain its lane near Coffee Road, south of Rosedale Highway in Bakersfield. Specifically, the officer observed appellant’s vehicle drift to the right and into another lane and then later veer to the left and again into another lane. Valdovinos initiated an enforcement stop because of appellant’s unsafe lane changing and straddling (§ 21658, subd. (a)).

Appellant exhibited signs of intoxication during his initial contact with Valdovinos. He was unsteady on his feet, had red, watery eyes, and he smelled like alcohol. Valdovinos asked appellant if he consumed any alcohol and appellant replied he drank a margarita. Appellant underwent a series of field sobriety tests, but he refused to complete a preliminary alcohol screening (PAS) test.

Valdovinos arrested appellant for misdemeanor DUI. He gave appellant a choice between taking a blood or breath test and appellant chose a blood test. The officer transported appellant to Kern Medical Center (Kern Medical) to administer the blood draw.[3]

At Kern Medical, a nurse presented appellant with a consent form for his signature in order to draw his blood. Appellant initially refused to sign the form. Valdovinos then left appellant’s side to obtain a search warrant. When the officer left, appellant signed the consent form. Thereafter, a nurse obtained a sample of appellant’s blood.

In connection with this incident, Valdovinos completed a “Age 21 AND Older Officer’s Statement” (DMV form DS 367 (DS 367)) under penalty of perjury. He filled in the “Chemical Test Admonition” portion, which indicates he provided appellant a series of admonitions on “1/4/19,”[4] including that “f you refuse to submit to, or fail to complete a chemical test, your driving privilege will be administratively suspended for one year .…” Under the “Driver Response” section, Valdovinos wrote “I[’]m going to refuse.”

[i]The Administrative Per Se Hearing

Appellant testified Valdovinos placed him under arrest and then offered him a blood or breath test. Appellant recalled choosing a blood test. However, appellant testified Valdovinos became “hostile” and “aggressive” at Kern Medical and it overwhelmed him. He acknowledged he stated “I[’]m going to refuse” or “I refuse,” but he claimed it was because Valdovinos was “threatening” him.

According to appellant, he eventually signed the consent form after Valdovinos left to obtain a warrant. Thereafter, he provided a blood sample.

Appellant denied receiving the “refusal” admonition. He claimed Valdovinos never read him “verbatim information from a piece of paper or an index card.” He further testified Valdovinos never informed him that refusal or failure to submit to a chemical test could be used against him in court, would result in a fine or mandatory imprisonment, or that he did not have the right to talk to an attorney.

Valdovinos testified appellant refused to sign the consent form at Kern Medical. He then provided appellant the refusal admonition that his conduct would result in a license suspension. He testified he would normally provide the admonition by reading the back of the DS 367, but did not recall whether he did so in this case. Valdovinos did not recall whether he reoffered appellant a breath test after he refused to sign the consent form. Moreover, he acknowledged he “probably did not” read the chemical test admonition on the DS 367 verbatim.

On June 16, 2020, the DMV reimposed appellant’s license suspension. It determined the following:

“1) [Valdovinos] had reasonable cause to believe [appellant was] driving a motor vehicle in violation of … Section 23140, 23152, or 23153.

“2) [Appellant was] placed under lawful arrest.

“3) [Appellant was] told that [his] driving privilege would be suspended or revoked if [he] refused to complete the required testing.

“4) [Appellant] did refuse or fail to complete the chemical test or tests after being requested to do so by [Valdovinos].”

Appellant’s Petition for Writ of Mandate

Appellant petitioned Kern County Superior Court for a writ of mandate setting aside his license suspension. He claimed the DMV “exceeded its lawful authority” by suspending his license because he never refused a chemical test and he was inadequately admonished. He also argued for the first time that Valdovinos unlawfully stopped him.

The court denied appellant’s petition, stating the following:

“The Court believes that the standard of review is ‘Independent Judgment’, this Court is to review the evidence and law to determine whether it agrees that the finding of the hearing officer was correct. Based upon the review of the entire record this court finds that the suspension of [appellant’s] license is proper and required. [Appellant] was admonished by [Valdovinos], at the scene of the stop, that refusal to test would result in DMV action re suspension. (AR 87–90) [Valdovinos] did not recall whether or not further admonitions as set forth in [section] 23612 were given. [Appellant] did initially refuse the blood test upon arriving at the hospital. The draw occurred after a warrant was obtained. Applying the ruling in Garcia v. [Department of Motor Vehicles (2010)] 185 Cal.App.4th 73 it is clear that California law does not encourage delay. The facts in the Garcia case are certainly similar to the instant facts. [Appellant] would have the Court apply a very technical application of [section] 23612. Such would clearly thwart the legislative intent of removing impaired drivers from our roadways. Our Supreme Court has so directed in Troppman v. Valverde [(2007)] 40 Cal.4th 1121. The Carrey case and the Molenda case; both are factually and legally distinguished, however both make it clear that implied consent rules are to be liberally applied and construed to meet the purpose of the statute, to deter drinking and driving. Additionally, as the Molenda Court points out, the effort to avoid ‘forced’ testing, is significant.” (Italics added.)

Appellant noticed his appeal on February 26, 2021.

DISCUSSION

1. The Trial Court Correctly Denied Appellant’s Petition for Writ of Mandate

We affirm the trial court’s judgment.[5] Case law establishes appellant’s actions constitute a refusal to submit to chemical testing under the license suspension statute. Additionally, substantial evidence supports the finding that appellant received the necessary refusal admonition and we reject his statutory interpretation argument. Finally, appellant’s challenge to the legality of his arrest lacks merit.

1. 1. Applicable Law and Standard of Review

Pursuant to California’s implied consent statute in section 23612, a motorist who is lawfully arrested for driving under the influence is deemed to have consented to chemical testing for purposes of determining his or her blood-alcohol content. (See Troppman, supra, 40 Cal.4th at pp. 1129–1130, citing § 23612.)

The license suspension statute in section 13353 “works in tandem” with section 23612 (Troppman, supra, 40 Cal.4th at p. 1130) and addresses the “consequences (including suspension or revocation of a driver’s license) of a motorist’s refusal to submit to chemical testing” (id. at p. 1125, fn. omitted). Relevant for purposes of this appeal, the statute states:

“(a) If a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following:

“(1) Suspend the person’s privilege to operate a motor vehicle for a period of one year.” (§ 13353, subd. (a)(1).)[6]

A motorist subject to a DMV license suspension may request a hearing on the matter. (Lake v. Reed (1997) 16 Cal.4th 448, 456 (Lake); see § 13353, subd. (e).) The California Supreme Court explains the only issues for resolution at an APS hearing are:

“(1) [Whether] the law enforcement officer had ‘reasonable cause to believe that the person had been driving a motor vehicle in violation of [one or more specified Vehicle Code sections]’; (2) [whether] the person ‘was placed under arrest’; (3) [whether] the ‘person refused to submit to or did not complete the test or tests after being requested by a peace officer’; and (4) [whether] the ‘person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the tests or tests.’ (§ 13353, subd. (d); see also § 13557, subd. (b)(1).)” (Troppman, supra, 40 Cal.4th at p. 1131, fn. omitted.)

From there, a motorist may petition for a writ of mandate in superior court. (Espinoza, supra, 10 Cal.App.5th at p. 99.) Here, the trial court employs its independent judgment to determine “‘“whether the weight of the evidence supported the administrative decision.”’” (Lake, supra, 16 Cal.4th at p. 456.) “The administrative findings, however, are entitled to ‘a strong presumption of correctness,’ and ‘the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.’” (Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1205, quoting Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

The scope of our review of a trial court’s denial of the writ is “limited.” (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1217.) “‘[W]e “need only review the record to determine whether the trial court’s findings are supported by substantial evidence.” [Citation.] “‘We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation] 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.’”’” (Ibid.)

However, questions of law such as the interpretation of statutes and regulations receive de novo review. (Freitas v. Shiomoto (2016) 3 Cal.App.5th 294, 300.)

1. 2. Analysis

We discuss appellant’s arguments in connection with the license suspension finding they pertain to.

1. 1. 1. Whether Appellant Refused or Failed to Complete Chemical Testing (§§ 13353, subd. (d)(3), 13557, subd. (b)(1)(C))

Appellant dedicates the majority of his brief arguing his conduct did not constitute a chemical test refusal within the meaning of the license suspension statute. We disagree.

This issue involves a question of fact. (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 82 (Garcia) [“‘The question whether a driver “refused” a test within the meaning of the statute is a question of fact.’”].) The inquiry focuses on the “‘fair meaning’” of the motorist’s conduct and response to a request to submit to chemical testing. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1518 (Payne).) A motorist’s initial refusal to submit to a chemical test “‘forms the basis for suspension of the driver’s license under … section 13353.’” (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1573 (Hildebrand).) “‘Simply stated, one offer plus one rejection equals one refusal; and one suspension.’” (Ibid.)

Accordingly, the Court of Appeal generally holds a motorist’s failure to complete the selected test constitutes a refusal to submit to chemical testing. (See e.g., Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 495 [driver refused chemical test where he initially agreed to provide urine sample, but was unable to provide sufficient specimen]; Quesada v. Orr (1971) 14 Cal.App.3d 866, 869 [driver refused chemical test where he selected urine test, but was unable to provide a sample]; Skinner v. Sillas (1976) 58 Cal.App.3d 591, 594, 598 [same]; Noli v. Department of Motor Vehicles (1981) 125 Cal.App.3d 446, 449 [same]; Hildebrand, supra, 152 Cal.App.4th at pp. 1573–1574 [driver refused chemical test where he agreed to breath test, but failed to complete it].)

For example, in Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265 (Carrey), the driver agreed to a blood test, but refused to sign the consent form at the hospital and said “‘I’m not going to sign that form because I’m taking some medicines that can affect my bleeding.’” (Id. at pp. 1267–1268.) The Second District characterized the motorist’s actions as “the pragmatic equivalent of a refusal to consent to the [blood test].” (Id. at p. 1271.) Accordingly, it concluded the DMV properly revoked the motorist’s license. (Ibid.)

In Payne, the motorist initially declined to take any chemical test, but at jail, indicated assent to the blood test if his personal doctor administered it. (Payne, supra, 235 Cal.App.3d at pp. 1516–1517.) The officer declined the motorist’s demand and the motorist submitted to the test, but also stated “his blood was being drawn under protest.” (Id. at p. 1517.) The First District stated, “n insisting on his own physician, [motorist] was not invoking a statutory right, but was imposing a condition to which he was not entitled. His conduct amounted to a refusal to submit to a chemical test within the meaning of section 13353.” ([i]Id. at p. 520.) Thus, the court concluded the DMV correctly suspended the motorist’s license. (Id. at p. 1516.)

By contrast, in Ross v. Department of Motor Vehicles (1990) 219 Cal.App.3d 398 (Ross), the Fourth District held the motorist’s invocation of a statutory right as a condition of submitting to a blood test was not a refusal. (Id. at p. 402.) There, the motorist agreed to a blood test, but demanded to see the technician’s identification. (Id. at p. 400.) The Fourth District characterized the demand as a reasonable condition pursuant to a separate statute entitling an arrestee “to have blood drawn by only licensed, qualified individuals in a medically approved manner.” (Ibid., citing § 23158.) Therefore, it directed the superior court to grant the motorist’s writ and set aside his license suspension. (Ross, supra, at p. 404.)

Most recently, in Espinoza, the motorist—a public defender—informed the officer she would submit to a blood test “‘pursuant to McNeely.’”[7] (Espinoza, supra, 10 Cal.App.5th at p. 94.) The arresting officer understood her demand to mean she would not submit to a warrantless blood test. (Ibid.) The officer did not obtain a warrant and the motorist refused a breath test as well. (Ibid.) Notably, the Court of Appeal determined the motorist’s failure to submit to a breath test—and not the blood test—justified the suspension of her license. (Id. at p. 113 [“[W]e err on the side of caution and affirm the suspension based on [the motorist’s] refusal to submit to a breath test.”].) Citing to McNeely and the United States Supreme Court’s opinion in Birchfield v. North Dakota (2016) 579 U.S. 438 (Birchfield), the Court of Appeal “assume[d] without deciding, that [the motorist] could refuse to submit to a warrantless blood test unless the police obtained a warrant, and that, without more, her refusal to do so could not result in her license being suspended.” (Espinoza, supra, at p. 113.)

Here, we reach the same conclusion as Carrey because it is virtually identical to this case. As in Carrey, appellant chose to submit to a blood test after Valdovinos placed him under arrest. And as in Carrey, appellant declined to sign the necessary consent form to obtain his blood. The distinction between Carrey and this case is that the appellant in Carrey cited a medical condition, whereas appellant merely stated something to the effect of “I[’]m going to refuse” or “I refuse” at Kern Medical. Moreover, appellant did not condition his assent to a blood test by invoking a statutory right (like in Ross) or a constitutional right (as discussed—but not decided—in Espinoza). Instead, appellant testified he declined to sign the consent form because of Valdovinos’s “threatening nature” and his own confusion. Accordingly, we have no trouble concluding appellant’s conduct—particularly his refusal to sign the consent form—constituted a refusal to submit to chemical testing.[8]

Appellant raises several arguments to contest this. For example, appellant states his license could not be suspended for “[r]efusing a PAS [t]est.” He asserts choosing a blood test at the scene of his arrest cannot be deemed a refusal to submit to a breath test. Next, appellant contends his refusal to sign the consent form at the hospital is not equivalent to refusing a blood test because it only rendered the test “unavailable.” As a corollary to this, appellant claims Valdovinos never reoffered him a breath test after the blood test became “unavailable.”

These arguments lack merit. First, there is no indication appellant’s refusal to submit to a PAS test or his initial selection of a blood test formed the basis for his license suspension. Rather, the trial court found appellant “refuse[d] the blood test upon arriving at the hospital.” Substantial evidence supports this finding for the reasons discussed above.

Next, Carrey refutes appellant’s claim his actions only rendered the blood test “unavailable,” but was not a chemical test refusal. To the contrary, Carrey held a motorist’s refusal to sign a hospital consent form to have blood drawn constitutes a refusal to submit to chemical testing as a matter of law.[9] (Carrey, supra, 183 Cal.App.3d at p. 1267 [“The principal issue on appeal is whether [the motorist’s] statement that he would not sign the hospital ‘consent to blood test’ form constitutes a refusal to submit to a chemical test for intoxication.”) Carrey does not stand for the proposition that a motorist’s decision to impede chemical testing only renders the test “unavailable.” We share the Second District’s sentiment in Carrey that “[t]o accept [the appellant’s] argument would permit him to play fast and loose with the implied consent law.” (Id. at p. 1271.) We decline to do so.

Even if appellant’s actions made the blood test “unavailable,” it would not alter our conclusion.[10] Notably, in Espinoza, the Court of Appeal observed the motorist’s conditional assent to a blood test rendered it “functionally unavailable.” (Espinoza, supra, 10 Cal.App.5th at p. 115.) However, this placed an “affirmative obligation” on the motorist to submit to and complete a breath test. (Ibid.) The motorist’s failure to complete the remaining test constituted a chemical test refusal. (Ibid.)

Along this line, we reject appellant’s suggestion his conduct placed an affirmative obligation on Valdovinos to offer appellant a breath (or urine) test. The statute does not afford a motorist a “second bite at the apple” after he or she impedes administration of the chemical test originally selected as appellant did here. (Garcia, supra, 185 Cal.App.4th at p. 89; see Espinoza, supra, 10 Cal.App.5th at p. 112 [“A motorist who refuses to submit to or fails to complete one form of chemical testing need not be offered an alternative test before the motorist is deemed to have refused chemical testing for purposes of the implied consent law.”].)[11] Thus, whether or not Valdovinos reoffered appellant a breath test is irrelevant.

The bottom line is that appellant elected to take a blood test after Valdovinos arrested him. Yet, according to appellant’s own testimony, he said something to the effect of “I refuse” or “I[’]m going to refuse” before his sample was obtained. If these facts are not a refusal to submit to chemical testing, it is difficult to imagine what is. Thus, we conclude substantial evidence supports the finding that appellant refused a chemical test within the meaning of the statute.

1. 1. 2. Whether Valdovinos Told Appellant His Driving Privilege Would Be Suspended If He Refused to Submit to or Did Not Complete Chemical Testing (§§ 13353, subd. (d)(4), 13557, subd. (b)(1)(D))

Appellant’s next argument concerns the sufficiency of the admonition Valdovinos provided him. He frames this issue as one of statutory interpretation. He notes section 13353, subdivision (a), authorizes a license suspension if the motorist refuses chemical testing “‘pursuant to Section 23612.’” Section 23612, in turn, references several additional advisements the law enforcement officer “shall” tell the motorist.[12] Essentially, appellant contends the language “‘pursuant to Section 23612’” means the DMV could not suspend his license unless he received every advisement in that statute.

In Troppman, the California Supreme Court rejected a similar argument that the language “‘pursuant to section 23612’” incorporated an “actual-driving” requirement into section 13353. (Troppman, supra, 40 Cal.4th at pp. 1138–1139.) The court acknowledged the inclusion of this language in a 1985 amendment to the statute, but did not conclude it altered the findings necessary to suspend a motorist’s driver’s license. (Id. at p. 1139.) Instead, it reiterated that:

“[R]evocation or suspension of a license under section 13353 does not require proof beyond the four factors listed in sections 13353, subdivision (d), and section 13557, subdivision (b)(1), and made exclusive by section 13558, subdivision (c)(1).” (Troppman, supra, 40 Cal.4th at p. 1137.)

Two Court of Appeal decisions are even more on point. In Elmore v. Gordon (2021) 73 Cal.App.5th 520 (Elmore), the motorist claimed the DMV could not suspend his license because the officer failed to read him the section 23612, subdivision (a)(1)(D) admonition that “‘[r]efusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence.’” (Elmore, supra, pp. 522–523.) The Second District summarily rejected this argument as “insubstantial” and elaborated:

“Police warned [the motorist] his driver’s license would be suspended if he refused chemical testing. He refused. His license was suspended. [The motorist] does not contest these facts. He has no valid complaint.” (Elmore, supra, 73 Cal.App.5th at p. 523.)

Similarly, in Sanchez v. Alexis (1982) 131 Cal.App.3d 709 (Sanchez), the motorist argued his license could not be suspended because he was not admonished that refusal to submit to chemical testing could be used against him in a court of law. (Id. at p. 712.) Rejecting this argument, the Fourth District wrote:

“t is clear that the advisement relates to the criminal proceeding, not the administrative proceeding, and that the Legislature did not intend that error in giving the particular advisement would result in precluding the administrative suspension of the driver’s license. We are satisfied that the advisement has no direct relationship to the administrative proceeding. A refusal to submit without knowing the criminal consequences of such a refusal is not related to the administrative purposes of the law. It relates solely to evidentiary questions in the criminal prosecution.” ([i]Sanchez, supra, 131 Cal.App.3d at p. 716.)

Appellant cites Munro v. Department of Motor Vehicles (2018) 21 Cal.App.5th 41 for the proposition that a motorist must receive all the advisements in section 23612 to sustain a license suspension. Yet the opening paragraph of that opinion refers to the refusal admonition as the “required admonition.” (Munro, supra, at p. 43.) In that case, the officer never read the refusal admonition and marked on the admonition form that he was “‘unable to read due to combative state of subject.’” (Id. at pp. 44–45.) Nothing in Munro suggests a motorist’s license cannot be suspended if he or she did not receive the section 23612 advisements.

Thus, we conclude Troppman, Elmore, and Sanchez dispose of appellant’s statutory interpretation argument.[13] Furthermore, we find sufficient evidence supports the finding appellant received the required admonition. Valdovinos filled in the “chemical test admonition” portion of the DS 367 under penalty of perjury, which indicates he provided the refusal admonition (part of the boilerplate language on the form) to appellant. Valdovinos testified he provided the refusal admonition at Kern Medical after appellant refused to sign the consent form.[14] Even appellant acknowledges on page 45 of his opening brief that it is “relatively certain” Valdovinos advised him “his license would be suspended if he refused to [take] a blood or breath chemical test.” The case law above establishes this is sufficient to warrant a license suspension under sections 13353 and 13557.

1. 1. 3. Whether Valdovinos Placed Appellant Under Arrest or Lawfully Detained Him (§§ 13353, subd. (d)(2), 13557, subd. (b)(1)(B))

Finally, appellant argues Valdovinos unlawfully arrested him because he lacked a reasonable suspicion to stop appellant in the first instance. Consequently, appellant claims a “required prong” (capitalization omitted) needed to sustain his license suspension is missing.

“[F]or the DMV to suspend [a] driver’s license, the underlying arrest must have been lawful.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 847.) Furthermore, “‘[a] law enforcement officer may legally stop a motorist if the facts and circumstances known to the officer support a reasonable suspicion that the driver has violated the Vehicle Code or some other law.’” (Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 168.) This presents a mixed question of law and fact. (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510 [officer had reasonable suspicion to stop motorist where officer observed motorist accelerate and lose traction of vehicle].)

Appellant’s arguments suffer from several defects. Most importantly, appellant waived this issue. His counsel stated at the APS hearing:

“We’re not contesting the nature of the stop. We have submitted on the nature of the stop. The only thing we’re contesting is the refusal issue, just to save time.”

Issues not raised in an administrative proceeding cannot be raised for the first time on appeal. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 416–417 [litigants’ challenge to reasonableness of administrative filing fee waived]; see Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 738 [motorist waived objection to admissibility of arrest report on appeal because motorist’s counsel “stated he had no objection” to the report at APS hearing].) Therefore, appellant cannot raise this challenge on appeal.

Notwithstanding the waiver, appellant’s challenge to this finding is substantively meritless. Valdovinos’s arrest report and hearing testimony establish he had an adequate justification for stopping appellant. The arrest report states Valdovinos observed appellant’s vehicle struggling to maintain its lane. Appellant’s vehicle “drifted to the right” and breached a lane. At another point, appellant’s vehicle “veered to the left” and again spilled into another lane. Valdovinos confirmed in his testimony he initiated the enforcement stop because of appellant’s difficulty maintaining the lane. These facts justify Valdovinos’s decision—as stated in the arrest report—to stop appellant for a violation of section 21658, subdivision (a) (unsafe lane change/straddling).

Beyond that, appellant exhibited visible signs of intoxication. Valdovinos observed appellant was unsteady on his feet, had red and watery eyes, and smelled like alcohol. He did not complete a series of standardized field sobriety tests in a satisfactory manner. He refused the PAS test. All of these facts support the finding that Valdovinos lawfully stopped and arrested appellant.

In conclusion, we find no error in the trial court’s decision to deny appellant’s petition for writ of mandate. His conduct clearly fell within the scope of a chemical test refusal. He was admonished that failing to submit to chemical testing would result in suspension of his driving privilege. Moreover, he waived his challenge to the lawfulness of the stop in the first instance, and his argument lacks merit in any event.

DISPOSITION

The order denying appellant’s petition for writ of mandate is affirmed. The DMV shall recover its costs on appeal.

MEEHAN, J.

WE CONCUR:

DETJEN, Acting P. J.

DeSANTOS, J.

[1] Unless otherwise indicated, all further statutory references are to the Vehicle Code.

[2] A sample was later obtained, as explained post.

[3] Both parties discuss Valdovinos’s Mobile Video Audio Recording System (MVARS) of appellant’s arrest. Both parties agree it shows Valdovinos placing appellant in the back of his CHP vehicle and telling him:

“‘[O]nce we get there you will have to sign a document saying that you consent to me drawing your blood. If you refuse, your license will be suspended for one to three years no matter what the blood result is, just because you refused to consent to the test. Okay. That’s from the DMV. I’m just givin’ you a heads up.’”

The parties cite to page 47 of the administrative record in connection with the MVAR’s. Page 47 is a printout of a CD labeled “Discovery CDL F5128045, Lunsford, J.”

Appellant states the MVARS was part of the administrative record submitted to the trial court. This court contacted Kern County Superior Court regarding an “arrest CD” and the Kern County Superior Court clerk responded by letter that it had no record of this exhibit.

[4] We presume this is a typo and should read “1/4/20” because the arrest occurred on January 4, 2020.

[5] At oral argument, appellant raised—for the first time—the Second District’s opinion in California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (CDLA). In CDLA, the Second District concluded in part, APS procedures authorizing a hearing officer to assume a “dual role” as an “advocate and trier of fact violate[s] drivers’ due process rights.” (CDLA, supra, at p. 530.)

Here, appellant never raised a due process challenge to the APS procedures during the administrative hearing or in the trial court and so he forfeited this argument. (Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549 [“An issue not raised at an administrative hearing … may not be raised in later judicial proceedings.”].)

Moreover, the opinion in CDLA was issued roughly four months before oral argument in this matter and appellant never filed a supplemental letter informing us of this authority in compliance with California Rules of Court, rule 8.254. Instead, appellant’s counsel raised CDLA for the first time at oral argument and so it is forfeited on that ground as well. (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554, fn. 9 [“We do not consider arguments that are raised for the first time at oral argument.”].)

Finally, even if we were to consider it, appellant never addressed how prejudicial error arose from the APS hearing procedures and we cannot reverse the trial court absent prejudicial error. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.)

For these reasons, we find appellant’s belated resort to CDLA unavailing.

[6] By statute, the suspension does not become effective until “30 days after the giving of written notice thereof.” (§ 13353, subd. (a)(3)(C).) Typically, the arresting officer personally serves the motorist “with notice of an order or suspension or revocation of the motorist’s privilege to operate a motor vehicle and issue the motorist a 30-day temporary driver’s license” (as Valdovinos did here). (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 98 (Espinoza), citing § 13353, subd. (c).)

[7] Missouri v. McNeely (2013) 569 U.S. 141 (McNeely).

[8] To the extent it merits further discussion, our conclusion might seem at odds with the dicta in Espinoza expressing doubt about whether—following Birchfield—a civil license suspension could be “predicated solely on a motorist’s refusal to submit to a warrantless blood test.” (Espinoza, supra, 10 Cal.App.5th at p. 114.)

We do not believe we need to further address the issue our colleagues raised in Espinoza because of the distinguishing facts in this case. Again, appellant never conditioned his willingness to provide a blood sample on a warrant. Appellant also does not argue this issue on appeal. By contrast, the motorist in Espinoza expressly argued “standing on her rights [to be free from warrantless blood testing] did not constitute a refusal to submit to a chemical test” under the statute. (Espinoza, supra, 10 Cal.App.5th at pp. 103–104.)

For good measure, we note Birchfield stated it should not be read to “cast doubt” on the propriety of “implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” (Birchfield, supra, 579 U.S. at pp. 476–477.) Other jurisdictions have interpretated this language to mean that Birchfield does not preclude civil license suspensions for refusing to submit to a warrantless blood test. (See, e.g. Schwindt v. Sorel (2020) 942 N.W.2d 849, 853 [affirming North Dakota Department of Transportation’s revocation of motorist’s driving privilege for refusing to submit to blood test and addressing Birchfield]; Boseman v. Commonwealth Department of Transportation, Bureau of Driver Licensing (2017) 157 A.3d 10, 21 [“By its own language, Birchfield does not apply to implied consent laws that merely impose civil penalties.”].)

[9] This undercuts appellant’s argument that Carrey is distinguishable because the motorist in that case refused to submit to a breath test after refusing to sign the consent form.

[10] It is also immaterial that appellant eventually signed the consent form and a nurse thereafter administered a blood draw. “[T]he authority is clear that delayed submission to a chemical test does not allow an arrestee to avoid the consequences of an initial refusal.” (Garcia, supra, 184 Cal.App.4th at p. 84.)

[11] This case law also disposes of appellant’s argument in part IV.E. of his opening brief that his conduct “cannot be a refusal because [he] was never asked if he would submit to a breath test.” (Some capitalization omitted.)

[12] Specifically, section 23612, states a motorist shall be told (1) failure to submit to, or the failure to complete, the required breath or urine testing will result in a fine and mandatory imprisonment if the person is convicted of a violation of section 23152 or 23153 (§ 23612, subd. (a)(1)(D)); (2) failure to submit to or complete a test will result in the suspension or revocation of his or her license (ibid.); (3) he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law (id., subd. (a)(4)); and (4) if the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice (id., subd. (a)(2)(A)).

[13] Appellant argues the 1985 amendment to section 13353—which added the language “‘pursuant to Section 23612’”—effectively renders Sanchez moot. We disagree because of the language cited in Troppman above.

[14] Appellant cites this testimony and briefly argues his license could not be suspended if Valdovinos only admonished him after he refused to sign the consent form. However, as appellant acknowledges, the MVARS video evidently shows Valdovinos informing appellant—prior to going to Kern Medical—that he would need to sign a consent form to obtain his blood and his license would be suspended if he refused to sign the document. Indeed, in his reply brief, appellant states it is “beyond question” this occurred.