petition of Robert Buchanan for peremptory writ of mandate to direct
the department to set aside its order suspending Buchanan's driving
privilege for six months for his refusal to submit to a chemical test
to determine the alcoholic content of his blood following his arrest
for driving a motor vehicle while under the influence of intoxicating
liquor. (Veh. Code, § 13353.)
At the administrative hearing before the department, it was stipulated
that the arresting officer had reasonable cause to believe that
Buchanan [100 Cal.App.3d 296] was driving under the influence of
intoxicating liquor, and that his arrest was lawful. The officer then
testified: at the time of the arrest, reading from a form, he advised
Buchanan that he was required by law to submit to a chemical test to
determine the alcoholic content of his blood, that he had a choice of
whether the test was to be of his blood, breath or urine, and that if
he refused to submit to a test or to complete a test his driving
privilege would be suspended for six months; Buchanan replied that he
would tell the officer which test he wanted when they reached the
police station; the officer stated that they soon would come to the
hospital which administers blood tests for the police department and
that if Buchanan wanted a blood test he would have to indicate that
choice before they reached the hospital so that the test could be
administered there en route to the police station; the officer
explained that if Buchanan did not choose a blood test before the
police car reached the hospital, such a test "would be out" because
once he arrived at the police station he would not be taken back to
the hospital for a blood test; fn. 1 Buchanan again stated that he
would specify his choice of a test at the police station; the officer
replied that Buchanan's choice there would be limited to a breath test
or a urine test; at the station, the officer asked Buchanan which of
those two tests he wanted; he stated that he wanted a blood test and
was told that such a test "was out' because he had refused it en route
to the station; the officer asked Buchanan if he would take a breath
test; Buchanan pointed to his lips and shook his head, saying nothing;
the officer then asked him if he would take a urine test and received
the same response.
Buchanan testified: the officer did not read to him the statement of
his right to choose among the three types of tests, but offered him
only a blood test; he told the officer that he understood he had the
right to a choice of three tests; fn. 2 the officer replied that he
had the right to a blood test and if he wanted one he would have to
say so then and there; Buchanan did not reply, and no mention of a
breath or a urine test was made at that time; at the police station,
the officer asked him if he wanted a breath test or a urine test; he
again replied that he thought he had a choice of three tests; the
officer repeated that he had a choice of a breath or a urine test;
Buchanan said nothing. [100 Cal.App.3d 297]
The hearing officer found: Buchanan was told that his driving
privilege would be suspended for six months if he refused to submit to
a chemical test of the alcoholic content of his blood; he refused to
submit to such a test of his blood, breath or urine after having been
requested to do so by the officer. The department adopted the
foregoing findings and ordered that Buchanan's driving privilege be
suspended for six months.
In the proceeding on Buchanan's petition for writ of mandate to set
aside the department's order, the trial court found as facts: the
evidence at the administrative hearing established that Buchanan was
advised en route to the police station that he would have to elect,
prior to reaching the station, whether or not he would take a blood
test; he stated that he would decide at the station, but was told by
the arresting officer that he could not do so; at the police station
Buchanan was given the choice of a breath or a urine test, but was not
offered the opportunity to take a blood test. As conclusions of law
the court determined: the arresting officer's procedure that required
Buchanan to elect whether or not to take a blood test before arriving
at the police station, and to choose between only a breath or a urine
test at the station, is unauthorized by statute, regulation or case
authority; Buchanan's statement in the police car that he would decide
at the station which test to take did not constitute a refusal to
submit to a chemical test; the department's finding that Buchanan
refused to submit to a chemical test of his blood, breath or urine is
not supported by substantial evidence.
[1a] The trial court erred in its conclusion that there is no
authority for the officer's having required Buchanan to elect whether
or not to take a blood test before reaching the police station, and
having limited his choice there to a breath or a urine test.
Vehicle Code section 13353 provides in part: "(a) Any person who
drives a motor vehicle upon a highway shall be deemed to have given
his consent to a chemical test of his blood, breath or urine for the
purpose of determining the alcoholic content of his blood if lawfully
arrested for any offense allegedly committed while the person was
driving a motor vehicle under the influence of intoxicating liquor.
The test shall be incidental to a lawful arrest and administered at
the direction of a peace officer having reasonable cause to believe
such person was driving a motor vehicle upon a highway while under the
influence of intoxicating liquor.... [¶] The person arrested shall
have the choice of [100 Cal.App.3d 298] whether the test shall be of
his blood, breath or urine, and he shall be advised by the officer
that he has such choice." (Italics added.) Section 13354 provides in
part: "(a) Only a physician, registered nurse, licensed vocational
nurse, duly licensed clinical laboratory technologist or clinical
laboratory bioanalyst, or certified paramedic acting at the request of
a peace officer may withdraw blood for the purpose of determining the
alcoholic content therein."
Thus, the arrestee is given the right to choose among the three tests,
but he is not given the further right to specify when the test which
he has chosen is to be administered. Section 13353, by providing that
the test shall be administered at the direction of a peace officer,
impliedly gives the officer that right. However, while the test must
be administered at his direction, the officer is not authorized to
withdraw blood in the event the arrestee chooses a blood test; only
the persons enumerated in section 13354 may withdraw blood, and they
are to be found in a hospital, not at a police station. We note also
that the efficacy of a blood test depends on its being made as soon as
possible after the time of the offense; if not taken promptly after
the arrest, it proves nothing. (Skinner v. Sillas (1976) 58 Cal.App.3d
591 , 598-599 [130 Cal.Rptr. 91].) Accordingly, the arresting officer
had at least implied authority (1) to require that Buchanan, if he
wanted a blood test, make that choice known before reaching the
hospital so that the test could be administered there en route to the
police station, and (2) to limit his choice at the station to a breath
or a urine test.
We turn now to the question whether Buchanan's conduct constituted a
refusal to submit to any of the chemical tests offered him. [2] The
trial court determined that the department's finding of such a refusal
was not supported by substantial evidence. fn. 3 On this appeal, we
occupy [100 Cal.App.3d 299] the same position as the trial court with
respect to the administrative record; accordingly, we must review that
record to determine whether the department's finding is supported by
substantial evidence. (See Lewin v. St. Joseph Hospital of Orange
(1978) 82 Cal.App.3d 368 , 386 [146 Cal.Rptr. 892]; Simons v. City of
Los Angeles (1977) 72 Cal.App.3d 924 , 930 [140 Cal.Rptr. 484];
Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833 ,
842 [130 Cal.Rptr. 169].)
[3] The determining factor on the issue whether a motorist actually
"refused" to submit to a test of intoxication, within the meaning of
Vehicle Code section 13353, is the fair meaning to be given to his
response to the request that he submit to such test, and not his state
of mind. (Maxsted v. Department of Motor Vehicles (1971) 14 Cal.App.3d
982 , 986 [92 Cal.Rptr. 579].) [1b] A motorist's silence in the face
of a police officer's repeated requests that he submit to a chemical
test and that he choose a test to determine the alcohol content of his
blood, constitutes a refusal to submit to a chemical test under
section 13353. (Lampman v. Department of Motor Vehicles (1972) 28
Cal.App.3d 922 , 926 [105 Cal.Rptr. 101].) Buchanan testified that
when the arresting officer asked him first whether he wanted a blood
test, and later whether he wanted a breath or a urine test, he did not
reply; instead, he insisted each time that he was entitled to a choice
of the three tests. Such evidence supports the department's finding
that Buchanan refused to submit to a chemical test of his blood,
breath or urine when requested to do so by the officer.
The judgment is reversed.
Hanson, J., and Kaufmann, J., concurred.
FN 1. When Buchanan was so advised, the police car in which he and
the officer were riding was five to seven miles from the hospital. The
police station is about three miles beyond the hospital.
FN 2. Buchanan testified that because he is an attorney, he was
familiar with the requirement that he be given the right to choose
among three tests to determine the alcoholic content of his blood.
FN 3. Since the right to a driver's license is not a fundamental
right, a trial court properly applies the substantial evidence test,
rather than the independent judgment test, in reviewing by
administrative mandamus an order of the department suspending a
driver's license under Vehicle Code section 13353. (McGue v. Sillas
(1978) 82 Cal.App.3d 799 , 803-806 [147 Cal.Rptr. 354].) For this
reason, we ignore the trial court's independent findings herein. (See
Simons v. City of Los Angeles (1977) 72 Cal.App.3d 924 , 930 [140
Cal.Rptr. 484].) Although we are aware that McConville v. Alexis, 97
Cal.App.3d 593 [159 Cal.Rptr. 49] holds that a six month's suspension
of a driver's license constitutes a substantial interference with a
vested fundamental right, and the trial court properly employed the
independent judgment test in reviewing the department's decision, we
are inclined toward the ruling in McGue. However, in light of our
holding that petitioner's conduct constituted a refusal as a matter of
law and the trial court erred in its conclusion that there is no
authority for the procedure used by the officer, we deem the test
employed by the trial judge in reviewing the department's decision to
be of no significance here.
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