Sommerfield v. DMV

Filed 3/24/06 Sommerfield v. DMV CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Plaintiff Dianne Loretta Sommerfeld was arrested for violating Vehicle Code section 23152,[1] misdemeanor driving while under the influence of alcohol. The arresting officer reported that Ms. Sommerfeld had refused or failed to complete a chemical test to determine the alcoholic content of her blood. This report, if found true, would cause Ms. Sommerfeld to lose her driving privilege. (§ 23612.) Ms. Sommerfeld was entitled to, and received, an administrative hearing for the purposes of determining if she had in fact refused or failed to complete a test. The hearing officer, a commissioner with the Department of Motor Vehicles (DMV), ruled that Ms. Sommerfeld had indeed violated section 23612. As this was Ms. Sommerfeld's second violation within a ten-year period, the commissioner also ruled that her license would be suspended for two years. (§ 13353, subd. (a)(2).) Ms. Sommerfeld petitioned the superior court for an alternative writ of mandamus, asking the court to overturn the commissioner's ruling. The court granted Ms. Sommerfeld's petition, commanded the DMV to set aside its decision, and awarded Ms. Sommerfeld filing fees and costs. The DMV appeals.

We reverse.

Evidence

Late on the night of January 23, 2004, Ms. Sommerfeld became lost as she attempted to drive from a restaurant in downtown Santa Rosa to Highway 12. Ms. Sommerfeld ultimately ended up on a private road in the country. In attempting to turn around, Ms. Sommerfeld drove her car partially off the road and was unable to proceed any further. She called 911 to report that she was in the city of Santa Rosa and her car was stuck in the mud. The Santa Rosa police were unable to find her because she was not where she thought she was. Sonoma County Deputy Sheriff Van Bebber located her at approximately 12:01 a.m., after a resident in that area called 911 to report a lady screaming and honking her horn. The front wheels of Ms. Sommerfeld's car, which were off the roadway, were spinning when Deputy Van Bebber arrived. Highway Patrol Officers Andrews and Ramsey also responded to the call. The officers reported that Ms. Sommerfeld's eyes appeared to be red and watery. Her speech was slurred and there was a strong odor of alcoholic beverage on her breath. Ms. Sommerfeld had no identification. She stated that she had not consumed any alcoholic beverages, saying that she had been at a winery and that the smell must have absorbed into her clothing. She was agitated and argumentative. Officer Andrews had Ms. Sommerfeld take several field sobriety tests, reporting that her performance on the tests was poor or incomplete.[2]

Officer Andrews arrested Ms. Sommerfeld. He reported that at that time, he advised her â€