Bettio v. DMV

Filed 9/28/06 Bettio v. DMV CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

After an administrative hearing, the Department of Motor Vehicles (DMV) suspended appellant Jordan Bettio’s driver’s license for one year on the grounds that he had refused to submit to a blood test after he was arrested for driving under the influence. The trial court denied Bettio’s petition for writ of mandate. On appeal, Bettio, an Air Force pilot, argues that the DMV should not have suspended his license because he was required to refuse the blood test by an Air Force regulation that prohibited him from donating blood within 72 hours of flying. We find no error and affirm.

Facts[1]

I. Initial Encounter and Field Sobriety Testing

Shortly after midnight on May 31, 2003, Bettio was involved in a minor motor vehicle accident. While investigating the accident, California Highway Patrol (CHP) Officer Gregg Cleaver noted the odor of alcohol on Bettio’s breath and observed that Bettio had bloodshot, watery eyes and slurred speech. Bettio admitted drinking two beers earlier that night. The officer administered a series of field sobriety tests,[2] concluded that Bettio was under the influence of alcohol, and arrested him.

Bettio is an Air Force pilot. He does search and rescue work. He was arrested on a Saturday. He was scheduled to fly the following Monday morning, but was “on alert” and expected to be available on eight hours notice.

II. Breath Tests

A. Police Report

The officer transported Bettio to the Santa Clara County Alcohol Intoxication Bureau for chemical blood alcohol testing. Officer Cleaver told Bettio he could take either a blood test or a breath test and Bettio chose the breath test. According to the police report, “Bettio was unable to provide a sufficient amount of breath on his first attempt at completing the breath test.” Officer Cleaver explained the procedure for completing the test to Bettio. “Bettio tried to provide a second sample, but was unsuccessful, and the breathalyzer did not register that he was blowing through the mouthpiece.” Two other officers explained the test to Bettio numerous times. On his third attempt, Bettio placed the entire mouthpiece in his mouth. Officer Cleaver determined that Bettio was unable to complete the breath test and told him his only other option was a blood test.

B. Bettio’s Testimony

Three officers were present when Bettio took the breath tests. Bettio was more than willing to do everything the officers asked. He made an honest attempt to blow into the device and it “felt like [he] was trying to blow [his] brains out.” According to Bettio, the officers gave him different techniques and a “number of different confusing instructions.” Bettio was scared and nervous and was experiencing shortness of breath. He had never been in trouble with the law before and realized this was a “very serious thing.”

After the third try, the officers said he was not doing it right and they were not able to get a proper result. One of the officers said “we don’t really have time to fool around with this test anymore” and told Bettio he would have to do a blood test.

C. Officer Cleaver’s Testimony

According to Officer Cleaver, Bettio’s attempts did not register because Bettio was not blowing into the mouthpiece “hard.”

III. Blood Test

A. Bettio’s Testimony

When the CHP officer told Bettio he would have to do a blood test, he agreed. However, he informed the officers that because he was flying within 72 hours, Air Force regulations restricted him from giving blood. Bettio cited Air Force Instruction 11-202, volume 3 (2003) (the regulation)[3] and said he would comply but needed the approval of his commanding officer (CO) before giving a sample. Bettio offered to call his CO or have one of the officers call his CO. He told the CHP officers it was just a matter of obtaining permission and that it would not take more than a few minutes. Bettio testified that he is bound by the regulation and that he could lose his job if he violated the regulation.

One of the CHP officers said he was in the Army National Guard and they do not have regulations like that. Bettio responded that the Army and the Air Force are different and that he is subject to strict regulations because he flies aircraft. One of the officers said he did not have time to call Bettio’s CO, said they were going to call it a “refusal,” and wrote him a ticket.

The officer told Bettio that normally his driver’s license would be suspended, but since Bettio had an out-of-state (Texas) license and was in the military, it would not apply to him. The officer added, “You may need further clarification in the future as to that because I’m not completely certain.” The officer handed him an “order of suspension.”

B. Officer Cleaver’s Testimony

According to the police report, Bettio said “No” when the officer asked if he would take a blood test. Officer Cleaver did not have a copy of the police report when he testified at the license suspension hearing and did not have any independent recollection of whether Bettio said “no” when asked to take a blood test.

Officer Cleaver did not recall Bettio saying that he could not take the blood test or that he wanted clarification from his superiors. However, he recalled that Bettio wanted to know the consequences for his military status if he took the blood test and did not want the tests to affect his military status. The officer could not recall one way or the other whether Bettio asked to call his CO or if he asked the CHP officers to call his CO.

Officer Cleaver could not recall whether he talked to Bettio about whether a suspension applied to Bettio since he had an out-of-state license and worked for the military.

Procedural History

I. Administrative Hearing

The DMV held an administrative hearing by telephone on the suspension of Bettio’s driving privilege. The hearing officer concluded that Bettio had refused a chemical test of his blood alcohol content and ordered a one-year suspension effective August 19, 2004.

The hearing officer’s findings of fact included the following: “When questioned the officer regarding the blood test, he states all he remember [sic] is [Bettio] saying he was involved with the military. Does not recall [Bettio] saying blood test would affect his military status. The officer’s testimony was credible in that he was direct, straightforward, and had no obvious breaks in testimony. While it is appreciated and respected that [Bettio] wants to honor and be in compliance with the Air Force General Flight Rules, it does not negate that he is legally bound by California Law to consent to take a test of his breath, blood or urine as a driver in California. The military flight rules does [sic] not exempt the Implied Consent Law as it relates to the choice of taking a blood test. Therefore, [Bettio’s] Exhibit A[, which included the regulation,] given little weight. [Bettio’s] presentation failed to rebut the evidence presented by the Department that establishes a prima facie case and supports a positive finding on all issues.”

Bettio requested departmental review of the hearing officer’s decision. On September 9, 2004, Bettio filed a petition for administrative mandamus in the superior court and requested a stay of the suspension order. The DMV subsequently concluded that the suspension was proper, but noted that the suspension had been stayed by the superior court.

II. Petition for Administrative Mandamus

In his writ petition, Bettio argued that the hearing officer had abused her discretion because she failed to consider the regulation and ignored the fact that Officer Cleaver had not offered Bettio the option of taking a urine test after the breath and blood tests proved unavailable. Bettio also argued that the evidence did not support the hearing officer’s findings, since Officer Cleaver’s testimony was not credible and Bettio was not properly admonished regarding the effects of a refusal, since the officer told Bettio a suspension would not apply to him.

In response, the DMV argued that Bettio’s conditional consent to the blood test was a refusal as a matter of law, that the regulation prohibits “donating blood,” not giving a small blood sample, and that Bettio had not rebutted the presumption that the officer had properly administered the tests.

The trial court denied the writ petition. The court observed that Vehicle Code section 23612 authorizes a urine test only when the breath and blood tests are unavailable. The court found that the breath test was unavailable and stated that the issue was whether the blood test was also unavailable. The court interpreted the regulation as prohibiting “donating blood,” not giving a blood sample. The court concluded that Bettio had refused to take the blood test by conditioning it on permission from his CO and found sufficient evidence to support the hearing officer’s conclusions. Bettio appeals.

Discussion

I. Standard of Review

A superior court reviews a DMV order suspending or revoking a driver’s license under the independent judgment standard. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457.) Although the superior court’s factual findings must be upheld on appeal if supported by substantial evidence, an appellate court is not bound by the lower court’s determination if the facts are not disputed and the issue involves the proper application of a statute or administrative regulation. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517 (Payne).)

II. Implied Consent Law

California’s implied consent law provides that anyone “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 blood alcohol content if the driver is lawfully arrested for driving under the influence. (Veh. Code, § 23612, subd. (a)(1)(A).)[4] If a blood or breath test is “unavailable” or the person is “incapable” of performing the blood or the breath test, the person shall submit to the remaining test. (§ 23612, subds. (a)(2)(A), (d)(2).) If both the blood and breath tests are unavailable, or the person is incapable of doing both tests, the person shall be “deemed” to have given his or her consent to a chemical test of his or her urine. (§ 23612, subds. (a)(2)(A), (d)(2).) The purpose of the implied consent law is to provide an incentive for voluntary submission to testing of blood alcohol content and to eliminate the potential for violence inherent in forcible testing. The law’s ultimate purpose is to deter motorists from drinking and driving. (Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757.)

Section 13353 provides that any person who is arrested for driving under the influence of alcohol who refuses to submit to a chemical test will have his or her driving privilege suspended.[5] In determining whether an arrested driver’s conduct amounts to a refusal to submit to a test, the court looks not to the state of mind of the arrested driver, but to “ ‘the fair meaning to be given [the driver’s] response to the demand he [or she] submit to a chemical test.’ “ (Payne, supra, 235 Cal.App.3d 1514, 1518.)

Generally, a conditional consent to a chemical test constitutes a refusal to submit within the meaning of section 13353. (Payne, supra, 235 Cal.App.3d at p. 1518 citing Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 873 (Cole) & Fallis v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 373, 382.) For example, in Fallis, a lawfully arrested driver refused to submit to a chemical test unless he could consult with his own doctor. (Fallis v. Dept. of Motor Vehicles, at p. 377.) The court held the driver’s conduct constituted a refusal, stating: “A licensee may not qualify his consent to submit to a test by a condition that the test be administered by or in the presence of his own physician.

Such a qualified consent is in fact a refusal to take the test provided by the statute.” (Id. at p. 382.)

In Cole, the driver advised the officer that he would not submit to a test without first consulting his attorney. The court held “[t]his ‘conditional acceptance’ is tantamount to a refusal as a matter of law.” (Cole, supra, 139 Cal.App.3d at p. 873; accord Goodman v. Orr (1971) 19 Cal.App.3d 845, 853 [“a refusal to take the test because of the absence of counsel or a consent to the test qualified by requirement” that counsel be present deemed an absolute refusal].) It is settled “that compliance with the implied consent law consists of completing, not merely attempting one of the three blood alcohol tests offered.” (Cole, supra, at p. 875.) “ ‘Public policy dictates that the suspected drunken driver not be allowed to evade giving the best evidence of his [or her] offense by the pretext of partial compliance.’ “ (Ibid.) “Inherent in the objective of obtaining the ‘best’ evidence of an individual’s blood alcohol level is the need that the test be completed in a timely fashion.” (Ibid.)

The driver in Barrie v. Alexis (1984) 151 Cal.App.3d 1157 was arrested for driving while intoxicated and refused to take any chemical test. (Id. at p. 1160.) She was transported to a hospital where a blood sample was nonetheless taken. (Id. at p. 1161.) Although she offered no physical resistance, the driver proclaimed she was taking the test under protest. (Ibid.) The court concluded that her response was an unequivocal refusal to submit to a test that left no room for construction and constituted a valid basis for suspending her driving privilege. (Ibid.)

Likewise, in Payne, supra, 235 Cal.App.3d at page 1518, the driver initially refused to submit to any test. He later agreed to submit to a blood test only if administered by his personal physician. The driver eventually submitted to a test without physical resistance, but under protest. The court held that Payne’s “conduct amounted to a refusal to submit to a chemical test within the meaning of section 13353.” (Id. at p. 1520.) “The fact that Payne eventually submitted without physically resisting [was] of no significance. [Citations.] ‘It is the initial refusal which forms the basis for suspension of the driver’s license under section 13353.’ “ (Id. at p. 1519.)

“In denying the right of an arrested driver to impose conditions on consent to a chemical test, the Second District of the Court of Appeal has said: ‘Upholding “reasonable conditions” imposed by licensees would create an unworkable standard and force the officer in the field to determine on a case-by-case basis whether a licensee’s request is a reasonable one. Such a reading could easily “swallow the rule” [citation] of implied consent, thereby frustrating the strong public policy against drunk driving.’ “ (Payne, supra, 235 Cal.App.3d at pp. 1519-1520, citing Webb v. Miller (1986) 187 Cal.App.3d 619, 627.)

In Ross v. Department of Motor Vehicles (1990) 219 Cal.App.3d 398, the court concluded that an arrestee’s request to see the identification of the person administering a blood test was not a conditional consent or a refusal. The arrestee in Ross chose a blood test, but became alarmed at the disheveled appearance of the technician who was to take his blood. (Id. at p. 400.) The arrestee asked to see the technician’s identification before he would allow the technician to draw his blood. (Ibid.) The arresting officer refused to allow Ross to see the technician’s identification. (Ibid.) Ross’s request was deemed a refusal to submit to a chemical test and his driving privilege was suspended. (Ibid.) The Court of Appeal reversed the suspension. (Id. at p. 404.) The court reasoned that because an arrestee is entitled by statute (§ 23158) to have blood drawn by only licensed, qualified individuals, the condition was not imposed by Ross, but was imposed by statute and only invoked by Ross. (Ross v. Department of Motor Vehicles, at p. 402.) The court concluded that since the driver’s request to see identification was reasonably related to the enforcement of his statutory right, it did not amount to a refusal. (Ibid.)

On appeal, the parties do not contest the trial court’s finding that the breath test was unavailable. Bettio contends the blood test was also unavailable because the regulation made him incapable of taking the test without obtaining his CO’s permission. He argues further that since both the blood and breath tests were unavailable, the CHP officers erred in failing to offer him the urine test pursuant to section 23612, subdivision (d)(2). He asserts the trial court erred by finding that the Air Force regulation did not make the blood test unavailable.

Bettio contends this is not a conditional consent case because he was not relying on a condition which he had no right to insist upon. Instead, he was trying to obey Air Force orders. In addition, he asserts the trial court’s interpretation of the regulation was invalid, because Bettio’s duty was not to interpret the regulation, but to obey it. He argues that the trial court substituted its judgment for that of his CO or the Air Force and that he should not be punished for acting reasonably under the circumstances.

Bettio relies on section 41401, which provides: “No person shall be prosecuted for a violation of any provision of this code if the violation was required by a law of the federal government, by any rule, regulation, directive or order of any agency of the federal government, the violation of which is subject to penalty under an act of Congress, or by any valid order of military authority.” Bettio contends he should not have been found to have violated the implied consent law because he relied on a lawful military order when he declined to submit to the blood test without first contacting his CO. Bettio did not cite section 41401 in his petition for writ of mandate in the trial court. Applying section 41401, the issue becomes: was Bettio’s refusal to submit to the blood test required by the regulation? This requires us to interpret the regulation.

As noted previously, the interpretation of statutes and regulations is a question of law subject to our independent judicial review. (Yamaha Corp. of America v. State Board of Equalization (1998) 19 Cal.4th 1, 7.) In interpreting the regulation, we are free to consider agency interpretations, but such agency interpretations “are not binding or necessarily even authoritative.” (Id. at pp. 7-8.) Our fundamental goal when interpreting statutes is to ascertain and carry out the intent of the Legislature. (People v. Cruz (1996) 13 Cal.4th 764, 782.) “ ‘To determine legislative intent, a court begins with the words of the statute, because they generally provide the most reliable indicator of legislative intent.’ . . . ‘If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.’ “ (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047.) However, the court will not follow the plain meaning of the statute if to do so “would inevitably frustrate the manifest purposes of the legislation as a whole or lead to absurd results.” (In re Ge M. (1991) 226 Cal.App.3d 1519, 1523.) We shall apply the same rules to interpretation of the regulation at issue here.

As noted previously, the regulation provides in pertinent part: “Aircrew members will not fly: . . .

. . .

Within 72 hours after donating blood. The flying unit commander must approve the donation of blood by crewmembers . . . who are subject to flying duties within this 72-hour period. Restrict all other active fliers who donate blood from flying until cleared by a flight surgeon.” (§ 9.8.3.3, italics added.) The regulation prohibits Bettio from flying within 72 hours of donating blood and requires that he obtain the approval of the flying unit commander before donating blood within 72 hours of flying. It is undisputed that he was scheduled to fly within 72 hours of his arrest.

The regulation does not define the terms “donating blood” or “donation of blood.” Bettio did not introduce any evidence at the administrative hearing relating to the Air Force’s interpretation of the phrases. He did not cite any legal authority that interprets the phrase in his writ petition in the trial court or in his brief on appeal. Bettio does not address the question of the interpretation of the phrase, other than to argue that it was not his role to interpret the regulation; he was just required to obey it.

We agree with the trial court that donating blood is different from giving a blood sample to determine blood alcohol content. While the parties did not introduce any evidence of the amount of blood needed for a blood sample to determine blood alcohol content as opposed to the amount of blood involved in a typical “donation of blood” at the administrative hearing, it is common knowledge of which we may take judicial notice that giving a blood sample involves a much smaller amount of blood than donating blood. (Evid. Code, §§ 452, subd. (g), 459, subd. (a).) The regulation mentions “donating blood” or a variation of the phrase three times. It does not mention blood samples. Since the regulation prohibits “donating blood” and not “giving a blood sample,” we conclude that the regulation did not require Bettio to refuse to give the blood sample under the circumstances presented in this case. Unlike the driver in Ross, Bettio was not entitled to refuse the blood test under section 41401 and the regulation. We therefore conclude the trial court did not err when it denied Bettio’s petition for writ of mandamus.

Disposition

The judgment is affirmed.

____________________________________________

McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

________________________________

Duffy, J.

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[1] The facts are based on the transcript of the administrative hearing and documents in the administrative record.

[2] The field sobriety tests included a preliminary alcohol screening (PAS) that indicated Bettio’s blood alcohol level was .126.

[3] The regulation provides at section 9.8.3.3: “Aircrew members will not fly: . . .

. . .

Within 72 hours after donating blood. The flying unit commander must approve the donation of blood by crewmembers . . . who are subject to flying duties within this 72-hour period. Restrict all other active fliers who donate blood from flying until cleared by a flight surgeon.” A copy of the regulation was in evidence.

[4] All further statutory references are to the Vehicle Code.

[5] At the time of Bettio’s arrest in 2003, section 13353 provided in relevant part: “If any 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.” The statute provided that the license would be revoked for two or three years where the offender has certain specified prior convictions or administrative suspensions or revocations that do not apply in this case. (Former § 13353, subd. (a)(2), (3).)