Scott v. DMV
Filed 3/27/07 Scott v. DMV CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
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KENNETH WAYNE SCOTT, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. | C053006 (Super. Ct. No. CV028034) |
The Department of Motor Vehicles (department) appeals from a judgment which granted a peremptory writ of mandate compelling it to set aside its decision to suspend Kenneth Wayne Scotts driving privilege for one year following his failure or refusal to submit to a chemical test of his blood alcohol content, pursuant to the implied consent law (Veh. Code, 13353).
Scott concedes the merit of the appeal. We agree and shall reverse the judgment (order).
BACKGROUND
On February 25, 2005, between 10:00 and 11:00 p.m., a Department of Fish and Game officer watched Scott drive into the parking lot of a nightclub, believed him to be intoxicated, and approached him. Scott ignored the officers request to wait in the parking lot and went into the club, where he was served two drinks.
Highway Patrol Officer J. S. ONeil arrived sometime between 20 and 45 minutes later, led Scott out of the nightclub, conducted field sobriety tests, concluded Scott appeared to be too intoxicated to drive, and placed him under arrest for driving under the influence.
Advised that he had impliedly consented to a chemical test for the purpose of determining the alcohol content of his blood,[1]Scott agreed to take a breath test at the scene, utilizing a mobile breath machine.
Officer ONeil prepared a written report of the results of Scotts attempts at the breath test. On the first attempt, the device shut down because of an insufficient sample. Thereafter, the mouth piece was placed in Scotts mouth on five separate occasions and he failed to exchange air on all attempts. No audible sound was heard on each occasion and Scott told ONeil he has lung and liver problems and can not [sic] blow that hard.
Scott was then transported by officers to San Joaquin General Hospital, where he refused to take a blood test, but stated he would take another breath test. Officers responded that because he was unable to complete the breath test, he would need to provide a blood sample. According to Officer ONeil, Scott continued to refuse, and had to be restrained while a sample was taken.
As a result of the officers report indicating Scotts refusal to comply with Vehicle Code section 13353, the department suspended his drivers license. (Veh. Code, 13353, subd. (a)(1).)
Scott requested an administrative hearing, at which he testified -- consistent with Officer ONeils report -- that he submitted to six separate breathalyzer tests at the scene and that he wasnt blowing long enough, satisfactorily to provide a sufficient sample. In fact, Scott testified, he didnt want to cooperate by taking any tests at the scene.
Scotts testimony conflicted with Officer ONeils about what happened at the hospital where, according to Scott, he initially refused to give a blood sample; but after ONeil and two other officers attempted to grab [his] arm, he told them you guys dont have to grab me. Im just going to go ahead and give you the test. Despite his capitulation, Scott testified, the officers grabbed him, roughed [him], and forced [him] to a table and bent [his] arm back and stuck the needle in.
The department hearing officer found that Officer ONeil had reasonable cause to believe that Scott was driving while under the influence; was lawfully placed under arrest; was told his driving privilege would be suspended or revoked if he refused to complete the required chemical testing; and did thereafter refuse or fail to complete the chemical test or tests after having been asked to do so. Scotts driving privilege was suspended for a year.
Scott sought judicial review of the departments decision by petition for writ of mandate under Code of Civil Procedure section 1094.5, arguing that he had not refused to give a blood sample and that the administrative decision finding he had refused to complete a blood draw was made contrary to the law and weight of the evidence presented at the hearing.
At the hearing on Scotts petition, the parties focused their argument on whether Scotts exchange with officers at the hospital constituted a refusal to submit to a blood test, with the court remarking, Im not sure if this is refusal, to tell you the truth. I mean, he volunteered to take the breath test the second time [at the hospital], even though he took it six times [at the scene.] Finally, in response to the departments argument that Scotts ultimate acquiescence to a blood draw after the officers grabbed him must nonetheless constitute a refusal, the court said, I would agree if he didnt attempt to take the breath test to begin with.
The court granted Scotts petition, and the department appeals.
DISCUSSION
I
Standard Of Review
The departments suspension of a drivers license is subject to judicial review. (Veh. Code, 13559.) In ruling on an application for writ of mandate following an order of suspension, the trial court is required to determine, based on its independent judgment, whether the weight of the evidence supported the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456; Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 545.) Although the court exercises its independent judgment, it must accord a strong presumption of correctness to the administrative findings, and the burden rests upon the complaining party to show that the administrative decision is contrary to the weight of the evidence and therefore an abuse of discretion. (Code Civ. Proc., 1094.5; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817.)
We review the trial courts decision for substantial evidence. (Zink v. Gourley (2000) 77 Cal.App.4th 774, 777.) Pure questions of law, however, are reviewed de novo. (Ibid.)
II
Scotts Failure To Complete The Breath Test Was A Refusal
The department contends Scott failed to comply with his statutory obligation to consent to chemical testing of his blood to determine its alcohol content because he: (1) failed to complete a breath test, and then (2) refused to submit to a blood test; it further asserts the trial courts finding to the contrary was error. Scott concedes the merit of the appeal.[2]
We agree. A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood, breath, or urine for the purpose of determining the alcohol or drug content of his or her blood (Veh. Code, 23612, subds. (a)(1)(A) & (B), (d)(2)). It is [thus] firmly established that a drunken driver has no right to resist or refuse such a test. [Citation.] (People v. Thompson (2006) 38 Cal.4th 811, 826, fn. 2.)
It undisputed that Scott failed -- whether intentionally or unintentionally -- to complete a breath test after six tries. Under Vehicle Code section 13353, both the People and the defendant are entitled to a completed chemical test, and the motorist must submit to and complete the same. (Gobin v. Alexis (1984) 153 Cal.App.3d 641, 646; cf. Quesada v. Orr (1971) 14 Cal.App.3d 866, 870-871 [drivers inability to produce urine for test constituted failure to submit to test as required by section 13353].)
This constituted a refusal under Vehicle Code section 13353. It is the initial refusal which forms the basis for suspension of the drivers license under section 13353. (Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1162.)
The court, however, did not focus on the initial refusal but rather on Scotts later refusal to submit to a blood test. The evidence established, and the court appeared to agree during oral argument, that Scott initially refused to submit to a blood test. This fact was irrelevant to the issue before the department -- whether Scott refused to complete a chemical test. [O]nce the suspect refuses to take [a chemical test], there is no requirement that the officers thereafter give him a test when he decides he is ready. (Skinner v. Sillas (1976) 58 Cal.App.3d 591, 598.) This is so even when the person quickly changes his mind and consents to the test. (Barrie v. Alexis, supra, 151 Cal.App.3d at p. 1163 [10-minute delay is immaterial because the refusal not the delay . . . is the significant factor]; see Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 874, 875.)
Scott failed to comply with the requirements of Vehicle Code section 13353, and his license was properly suspended. The courts grant of his petition for writ of mandamus was error.
DISPOSITION
The judgment (order) is reversed. The department shall recover its costs on appeal. (Cal. Rules of Court, rule 8.276(a)(2).)
ROBIE , J.
We concur:
SIMS , Acting P.J.
NICHOLSON , J.
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[1] Vehicle Code section 23612 states in relevant part: (a)(1)(A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies. . . .
[] . . .[]
(C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153.
(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the persons privilege to operate a motor vehicle for a period of one year . . . .
(2)(A) 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. If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test. . . .
Vehicle Code section 13353 states in relevant part: (a) If a person refuses the officers request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officers 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 persons privilege to operate a motor vehicle for a period of one year.
[2] The complete text of Scotts response states: After reading petitioners opening brief and the cases cited therein, Respondent concedes the merit of petitioners appeal.
