consequences of failure to submit to or complete a chemical test.
Petitioner refers to the transcript of the formal hearing wherein the
arresting officer testified at one point in conclusionary terms that
he told petitioner his driver's license "could" be suspended if he
refused to submit to a chemical test. Petitioner citesDecker v.
Department of Motor Vehicles (1972) 6 Cal.3d 903 [101 Cal.Rptr. 387,
495 P.2d 1307], for the proposition that an [148 Cal.App.3d 169]
arresting officer's use of the words "could be suspended" in a license
suspension admonition does not give sufficient warning of the legal
consequences of refusal to submit to or complete a chemical test and
therefore cannot be used as a basis for suspension. (Id, at pp.
905-907.)
We agree with Decker that section 13353 explicitly requires one
arrested for driving under the influence of alcohol be told his
failure to submit to a chemical test will result in suspension of his
driver's license. At the same time it is the duty of this court to
review all of the evidence presented at the administrative hearing,
and not just the evidence petitioner elects to quote out of context.
Our review of the entire transcript manifests petitioner was told by
the arresting officer that failure to submit to or complete a chemical
test would result in a suspension of his driver's license. Thus, the
arresting officer twice informed petitioner at the scene of the
arrest: "If you refuse to submit to a test or fail to complete a test,
your driving privilege will be suspended for a period of six months."
(Italics added.) fn. 2 If the foregoing were not enough, petitioner
testified he was told by the arresting officer he would lose his
driver's license if he did not submit to a chemical test. fn. 3
Our review of the record manifests beyond any doubt petitioner was
informed and aware of the fact that refusal to submit to a chemical
examination would result in a suspension of his driver's license.
Petitioner's assertion to the contrary must be rejected.
II
[2] Petitioner next argues he never refused to take a chemical test. A
brief explanation is required.
Following petitioner's arrest, the arresting officer informed
petitioner that he was required to submit to a chemical test, either
blood, urine or breath, [148 Cal.App.3d 170] and then asked petitioner
which test he wanted to take. Petitioner's response was that he did
not "want to take any fucking test." Petitioner now argues his
response was a reply only to whether he wanted to take a test, but not
whether he would have been willing to take a test if he had been so
asked. Petitioner argues that had he been asked by the arresting
officer "will you" or "which test will you take" and then answered as
he did, his answer would constitute a refusal. He asserts, however,
there cannot be a refusal until there is an unambiguous request that
the accused take a test, and that an officer's question "would you
like to take a test" or "which test do you want to take" to which a
negative answer is supplied does not constitute a refusal. We
disagree.
The law enforcement officers of this state have more important things
to do than to engage in semantic gamesmanship with those arrested for
driving under the influence of alcohol. Petitioner was clearly and
unequivocally informed that he was required by law to submit to a
chemical test or lose his driver's license, and was asked which test
he wanted to take. Plaintiff's response was equally clear and
unequivocal; he did not want to take any test. "The determining factor
is not the state of the suspect driver'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 (1971) 14 Cal.App.3d
982 , 986 [92 Cal.Rptr. 579].) Petitioner was informed of the law and
provided an opportunity to comply; he refused, and such refusal
constitutes a valid basis for suspension of his driver's license.
III
[3] Finally, plaintiff asserts that because a blood test was taken at
the hospital, there is no basis for the finding that he refused to
submit to a chemical examination. Petitioner contends that the officer
told him he could consent to a test at any time and that he did so at
the hospital when he allowed blood to be taken. This argument is
unavailing. A defendant may not verbally refuse to take a test
required by section 13353 and avoid the license suspension mandated by
the statute by later agreeing to take a specified test. (Covington v.
Department of Motor Vehicles (1980) 102 Cal.App.3d 54 , 59 [162
Cal.Rptr. 150]; Skinner v. Sillas (1976) 58 Cal.App.3d 591 , 598-599
[130 Cal.Rptr. 91]; Zidell v. Bright (1968) 264 Cal.App.2d 867 , 870
[71 Cal.Rptr. 111]; see Buchanan v. Department of Motor Vehicles
(1979) 100 Cal.App.3d 293 , 298 [160 Cal.Rptr. 557].) "[O]nce the
suspect refuses to take one of the three tests, blood, urine, or
breath, there is no requirement that the officers thereafter give him
a test when he decides he is ready. [Citation.]" (Skinner v. Sillas,
supra, 58 Cal.App.3d at p. 598.) In the instant case, the arresting
officer gave petitioner incorrect advice when the officer told
petitioner he could consent to [148 Cal.App.3d 171] the taking of a
test after having initially refused a test. However, we need not
consider the effect of the officer's incorrect advice on the instant
case, because it is clear petitioner never consented to a test.
Petitioner's own testimony indicates he never voluntarily submitted to
a blood test but rather allowed blood to be taken because "it would be
sheer stupidity to fight anybody. If they're going to take a test,
they're going to take a test."
Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870 [189
Cal.Rptr. 249], controls here. There, the respondent informed the
arresting officer he would not submit to a chemical test without first
consulting an attorney, notwithstanding the officer's advisement that
such an option was not available. Thereafter, respondent was
transported to a local hospital where a blood sample was taken from
respondent to be used as evidence in a subsequent criminal
prosecution. On appeal, respondent argued that while he may have been
reluctant to comply with the officer's request to submit to chemical
examination, there was no refusal because he did in fact "complete"
the test administered. The Cole court disagreed, holding there was no
evidence in the record of any voluntary submission on respondent's
part to any of the blood alcohol tests offered by the arresting
officer. "To require a showing of physical force perpetrated by the
arresting officer against the arrestee or vice versa before
characterizing the conduct in the instant case as a refusal would be
not only foolhardy but inconsistent with the purposes of Vehicle Code
section 13353 as well." (Id, at p. 874, fn. 4.) "The fact that a blood
sample ultimately was obtained and the test completed is of no
significance." (Id, at p. 875.) We agree with this appraisal. Here, as
in Cole, the only fair meaning that can be drawn from petitioner's
conduct is that he refused to submit to a chemical test.
The judgment is affirmed.
Puglia, P. J., and Sparks, J., concurred.
FN 1. All statutory references are to the Vehicle Code.
FN 2. In giving this admonition, the arresting officer twice read
the following warning to petitioner: "You are required by state law to
submit to a chemical test to determine the alcoholic content of your
blood. You have a choice of whether the test is to be of your blood,
breath or urine. If you refuse to submit to a test or fail to complete
a test, your driving privilege will be suspended for a period of six
months. You do not have the right to talk to an attorney or to have an
attorney present before stating whether you will submit to a test,
before deciding which test to take, or during the administration of
the test chosen. If you are incapable, or state you are incapable, of
completing the test you choose, you must submit to and complete any of
the remaining tests or test. If you refuse to submit to a test, the
refusal may be used against you in a court of law."
FN 3. "Mr. Ewing [counsel for petitioner]: Did he [Officer Elliot]
tell you that if you did not submit to a chemical test you'd lose your
drivers [sic] license?
"Mr. Morgan [petitioner]: Yeah, I think he did, but I said that I
didn't want a blood test."
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