suspended the appellant's driver's license for a period of six months
for refusal to take a chemical test in compliance with the provisions
[16 Cal.App.3d 494] of the Implied Consent Law (Veh. Code, § 13353).
Appellant then sought mandamus relief in the superior court. The
petition was denied and a judgment (order) entered accordingly. This
appeal followed.
Inasmuch as the appellant stipulated at the time of the administrative
hearing that probable cause for arrest existed and that a lawful
arrest for driving under the influence of intoxicating liquor was
effected, the only significant issue requiring resolution by the
hearing officer and the superior court was whether the appellant had
refused to submit to a chemical test. Similarly, the only issue on
review is whether there is sufficient evidence to sustain the
administrative finding fn. 1 that appellant refused to comply with the
statutory requirements of the Implied Consent Law.
Following the appellant's arrest for drunk driving (Veh. Code, §
23102), the arresting officer informed him that he would have to
submit to a chemical test, that he had a choice as to whether the test
would be of his blood, breath or urine, and that a refusal would
result in suspension of his driving privilege for six months.
Appellant consented to a urinalysis test. The officer told appellant
that two samples of his urine would be required to constitute a
complete test. Appellant was then taken to the county jail and at 8:10
p.m. gave the officer a specimen. At 8:45 p.m. he was requested to
give a second sample. However, he said he was unable to furnish the
second specimen because he was a diabetic and, as such, did not drink
many fluids. The officer again informed him that two samples were
required to complete the test, and appellant stated he might be able
to give another sample later on. The officer waited until 9:30 p.m.
and again requested a sample, but appellant's attempt to comply with
the request proved unsuccessful. The officer admonished him that he
would lose his license if he did not complete the test. Appellant
replied, "We'll see about that." The officer then gave the following
specific advisement: "Since you have not been able to give a second
urine sample and have not fulfilled the requirements of the implied
consent law in giving us a test, I am at this time going to ask you to
give us either a blood test or a breath test. ..." Appellant said he
was not going to give an answer. He was then booked.
Appellant gave the following testimony at the administrative hearing:
He agreed to take the urine test; he was not told he would be required
to give a second sample; 30 to 40 minutes after giving the first
sample, the arresting officer told him another urine specimen was
required; he tried to comply but could not; the officer then told him
he either had to give another urine sample or take a blood test; the
officer demanded an answer; he replied he had given the officer what
he requested; the officer did not mention anything [16 Cal.App.3d 495]
regarding a breath test; he did not recall being told his license
would be suspended if he did not take the chemical test; he did not
recall the officer reading a statement defining the provisions of the
Implied Consent Law; he had no objection to taking a blood test but he
thought he had complied with the officer's request by giving the urine
specimen.
On appeal, the appellant claims he did not refuse to submit to a
chemical test and that the officer's statement concerning the test
confused him to the extent that he should be excused from the
consequences of any refusal.
[1] While there is some conflict in the evidence, the law is clear
that all conflicts must be resolved in favor of the prevailing party.
(McNeil v. Young, 201 Cal.App.2d 488 , 490 [20 Cal.Rptr. 34].) The
function of the reviewing court is to determine whether there is any
substantial evidence supporting the judgment. (McNeil v. Young,
supra.) [2] Inasmuch as findings of fact and conclusions of law were
waived in the superior court, every intendment is in favor of the
judgment, and it is presumed that every fact or inference essential to
the support of the judgment and warranted by the evidence was found by
the trial court. (Reid v. Valley Restaurants, Inc., 48 Cal.2d 606 ,
609 [311 P.2d 473].)
[3a] Appellant first contends that he did not refuse to submit to a
chemical test. Prior to the administration of the first urinalysis,
appellant was advised that he would be required to give two urine
samples in order to complete the test. He gave one sample, but was
unable to give another. He was explicitly told that because of his
inability to complete the second test a blood or breath test would
have to be taken in order to comply with the requirements of the
Implied Consent Law. He refused to consent to another test.
[4] Section 13353 requires that one lawfully arrested for driving
while intoxicated shall submit to one of the three designated types of
chemical tests or suffer the prescribed penalty. While he may choose
the type of test, the driver's obligation does not end when he has
expressed such a choice. He must go further and submit to the test.
"So strong is the legislative purpose that a test be submitted to,
that the statute (Veh. Code, § 13353, subd. (a), 3d par.) [fn.
omitted] permits it even though the subject driver, because of
unconsciousness, or other reasons, is unable to choose the type of, or
even to refuse the test. Certainly, by agreeing to one type of test,
and then, voluntarily or involuntarily, failing to submit to it, a
driver may not thereby deny to the state its right to any test. Such a
construction would do violence to the clear purpose of the statute and
to the public policy expressed thereby. [5] 'Statutes are to be
interpreted to give a reasonable result consistent with legislative
purpose and not evasive thereof. [Citations.]' [16 Cal.App.3d 496]
(Cal. Pacific Collections, Inc. v. Powers, 70 Cal.2d 135 , 140 [74
Cal.Rptr. 289, 449 P.2d 225].)" (Quesada v. Orr, 14 Cal.App.3d 866 ,
870-871 [92 Cal.Rptr. 640].)
[6] The purpose of the Implied Consent Law is to obtain the best
evidence of intoxication at the time of arrest and to provide a fair
and accurate system of detection and protection of the public and to
inhibit drunk driving. (Kesler v. Department of Motor Vehicles, 1
Cal.3d 74 , 77 [81 Cal.Rptr. 348, 459 P.2d 900].) The statute should
be interpreted in light of its purpose. (Zidell v. Bright, 264
Cal.App.2d 867 , 868-870 [71 Cal.Rptr. 111].) If appellant's argument
to the effect that the giving of one urine specimen was sufficient to
comply with the provisions of the law, notwithstanding that two
samples are required to complete the test, the purpose of the statute
would be nullified. Drivers arrested for operating a vehicle while
under the influence of intoxicating liquor could merely thwart the law
by giving a partial balloon test, a partial blood sample or, as here,
an inadequate specimen of urine. The giving of a partial urine sample
obviously did not satisfy the requirements of the law. The statute
contemplates that a partial test is not an entire test. fn. 2
[3b] Upon appellant's inability to comply with the requirements of the
statute by providing the second urine sample, he was obliged, upon
request so to do, to select another with which he could comply. Not
having done so, he refused a "request to submit to a chemical test"
(see Veh. Code, § 13353, subd. (b)) and brought upon himself the
penalty of the statute. (Quesada v. Orr, supra, 14 Cal.App.3d 866 ,
871.)
Appellant also suggests that he did not refuse a blood or breathalyzer
test inasmuch as the officer did not present him with the equipment or
facilities necessary to accomplish such tests. However, the officer
testified that he offered to have a blood or breach test administered
but the appellant stated, "I'm not even going to give you an answer."
Consequently, the officer did all he could reasonably have been
expected to do under the circumstances. There would have been no point
in taking the appellant to a hospital or laboratory for the purpose of
having a blood or breath test [16 Cal.App.3d 497] administered when he
had already inferred that he would not take either of the alternative
tests.
Appellant's reliance on Underwood v. Kelly, 5 App.Div. 2d 740 [168
N.Y.2d 752], in support of his position that an individual who
partially completes one test and then refuses to take additional tests
has not legally refused to submit to a chemical test as required by
the Implied Consent Law is not persuasive. In Underwood, the arresting
officer testified that the arrestee consented to a blood test but the
doctor was not satisfied that he had drawn enough blood and wanted to
draw more; however, the officer informed the arrestee that he was not
sure he had to take a second test or the amount thereof. This is not
the situation here, in which the appellant was unequivocally informed
after the initial specimen was given that he had not complied with the
Implied Consent Law, but he nevertheless refused to take another test.
[7a] Finally, appellant maintains that he was so confused concerning
the taking of a chemical test that his refusal should be vitiated.
While there is authority that where a driver refuses to take a test
because he was confused by the Miranda warnings as to his
constitutional rights and the demand for a test under the Implied
Consent Law (see Rust v. Department of Motor Vehicles, 267 Cal.App.2d
545 , 547 [73 Cal.Rptr. 366]), this rule does not apply when the
arresting officer explicitly informs the arrestee that the Miranda
rights do not apply to the taking of a chemical test pursuant to the
Implied Consent Law. (Reirdon v. Director of Dept. of Motor Vehicles,
266 Cal.App.2d 808 , 811 [72 Cal.Rptr. 614].)
[8] The question whether a driver "refused" a test within the meaning
of the statute is a question of fact. (Walker v. Department of Motor
Vehicles, 274 Cal.App.2d 793 , 799 [79 Cal.Rptr. 433].) When there is
no evidence of confusion, and where apparent confusion is not
demonstrated and is not apparent to the arresting officer, no further
clarification on the part of the arresting officer is required. (See
Wethern v. Orr, 271 Cal.App.2d 813 , 815 [76 Cal.Rptr. 807].)
The Rust "confusion doctrine" is inapplicable because the appellant
does not maintain that he suffered any bewilderment as a result of the
constitutional admonition. [9] In determining whether an arrestee's
refusal is the result of confusion, the crucial factor is not the
state of the arrestee's mind; it is the fair meaning to be given his
response to the demand that he submit to the chemical test. (Maxsted
v. Department of Motor Vehicles, 14 Cal.App.3d 982 , 986 [92 Cal.Rptr.
579].) [7b] Unlike Rust, supra, and its progeny (Kingston v. Dept. of
Motor Vehicles, 271 Cal.App.2d 549 , 554 [76 Cal.Rptr. 614]; Walker v.
Department of Motor Vehicles, supra, 274 Cal.App.2d 793 , 799, and
Lagomarsino v. Department of Motor Vehicles, [16 Cal.App.3d 498] 276
Cal.App.2d 517 [81 Cal.Rptr. 193]), after having been warned of his
Miranda rights and having been requested to submit to an alternative
test, appellant did not request an attorney; he answered the request
with "I'm not even going to give you an answer." The officer was
justified in inferring that such a reply was a refusal to take another
test. (See Maxsted v. Department of Motor Vehicles, supra, 14
Cal.App.3d 982 , 986.) Consequently, the superior court properly
determined that the appellant's refusal to submit to a chemical test
was not the result of confusion.
The judgment (order denying petition for writ of mandate) is affirmed.
Tamura, Acting P. J., and Gabbert, J., concurred.
FN 1. Findings were waived in the superior court.
FN 2. The arrest herein was effected on April 12, 1969, and the
proceedings below were terminated in January 1970. The Legislature
amended section 13353 of the Vehicle Code (Stats. 1970, ch. 733, p.
..., §§ 1 & 2, and ch. 1103, p. ..., § 2, effective November 23, 1970)
to provide that an arrestee "... shall be told that his failure to
submit to or complete ... a chemical test will result in the
suspension of his privilege to operate a motor vehicle ..." and that
"If the person arrested either is incapable, or states he is
incapable, of completing any chosen test, he shall then have the
choice of submitting to and completing any of the remaining tests or
test, and he shall be advised by the officer that he has such choice
... If any such person refuses ... to submit to, or fails to complete,
a chemical test, ..." his license shall be suspended.
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