judgment of the Superior Court of Monterey County granting a
peremptory writ of mandate to vacate an order suspending respondent's
driver's license. fn. 1 Respondent has not filed a brief. We have
concluded that the order of [137 Cal.App.3d 740] the DMV was correct
and that the judgment of the superior court should be reversed.
At the administrative hearing before the DMV, Monterey Police Officer
Tognotti testified that at approximately 2 a.m. on January 25, 1980,
he noticed respondent Roy Morphew driving with excessive speed, rapid
acceleration, and without maintaining control of his vehicle.
Respondent displayed the typical symptoms of intoxication when he
exited his vehicle, that is, lack of balance, odor of alcohol, slurred
speech, and bloodshot eyes. Owing to uneven terrain at the location of
the stop, the arresting officer transported respondent to the police
station to perform the field sobriety test.
En route to the station, the officer advised respondent that he had a
choice between a blood, breath, or urine test, and that the officer
would read him something pertaining to the test when they arrived at
the station so that respondent could make up his mind.
Respondent failed the field sobriety test administered at the police
station. Thereupon, the officer attempted three times to read
respondent a statement explaining the provisions of Vehicle Code
section 13353. fn. 2 Respondent listened as the officer read. The
officer succeeded each time in reading one-quarter to one-half of the
statement, at which point respondent interrupted the officer by
approaching him and stating that he had passed the sobriety test. Each
time, the officer instructed respondent to return to the place where
he had been standing, and recommenced the admonishment. As respondent
interrupted the officer the third time, he approached the officer and
attempted to strike him with his fist. Officer Tognotti and another
officer restrained respondent and placed him in a cell. Before they
placed him in the cell, respondent, whose language was becoming very
abusive, said, "I am not going to take the fucking test." Officer
Tognotti considered respondent's behavior a refusal of the chemical
test. The officer never reached that portion of the statement that
explained that failure to submit to or to complete a chemical test
would result in a six-month suspension of the respondent's driver's
license. [137 Cal.App.3d 741]
Respondent denied that he was told he had a choice among three tests,
and denied that the officer ever attempted to read anything to him. He
claimed that after being placed in the holding cell, he asked about an
"alcohol content" test, but the officer ignored the question. He also
acknowledged that when he was put in the holding cell, he was very mad
and hostile, and took his boots off and beat on the plexiglass window.
Among its findings of fact, the trial court found: "(2) The arresting
officer never completed giving petitioner the instruction that his
failure to submit to or complete such a chemical test will result in
the suspension of his privilege to operate a motor vehicle for a
period of 6 months.
"(3) The arresting officer had sufficient opportunity to advise
petitioner that he would lose his license for 6 months if he failed or
refused to complete a chemical test; opportunity existed to advise
petitioner in the police car on the way to substation; and such
opportunity existed once at the substation.
"(4) Petitioner's own actions during a portion of his time at the
substation did not preclude the arresting officer from telling
petitioner that his failure to submit to or complete such a chemical
test will result in the suspension of his privilege to operate a motor
vehicle for a period of 6 months during a substantial period of time
while petitioner was in custody at the substation."
The court made the following conclusions of law: "(1) Pursuant to
California Vehicle Code § 13353, petitioner should have been told that
his failure to submit to or complete such a chemical test will result
in the suspension of his privilege to operate a motor vehicle for a
period of 6 months. [¶] (2) Suspension of petitioner's driving
privileges for his refusal to submit to a chemical test without such
an admonition is thus improper."
We recognize that the Courts of Appeal have disagreed as to whether
the "independent judgment" test is the applicable standard of review
for the superior court in administrative mandate proceedings following
suspension of a driver's license (cf. McConville v. Alexis (1979) 97
Cal.App.3d 593 , 601 [159 Cal.Rptr. 49], and McGue v. Sillas (1978) 82
Cal.App.3d 799 , 806 [147 Cal.Rptr. 354]), and that the question is
currently pending before the Supreme Court. (Berlinghieri v.
Department of Motor Vehicles (Cal.App.) hg. granted July 22, 1982.) We
need not address that issue, however, as the question here is not the
sufficiency of the evidence to support either the findings of the DMV
or the trial court. It is apparent from the transcript of the
proceeding before the trial court and from its findings that the court
believed that respondent did interrupt the reading of the admonition,
but concluded that despite those interruptions, the officer should
have persisted until he was able to inform respondent that his license
would be suspended if he refused a test. [137 Cal.App.3d 742] (1) The
question, then, is one of law: does section 13353 require an officer
to attempt repeatedly to admonish the person arrested, despite his
interruptions and other uncooperative conduct, until the arrestee is
willing to listen? We think not.
The implied consent statute, including section 13353, was enacted to
fulfill the need for a fair, efficient, and accurate system of
detection and prevention of drunken driving. (Hernandez v. Department
of Motor Vehicles (1981) 30 Cal.3d 70 , 77 [177 Cal.Rptr. 566, 634
P.2d 917].) One purpose of section 13353 is to administer one of the
prescribed chemical tests as soon as possible after arrest in order to
discover the suspect's blood alcohol content at the time he was
arrested, since alcohol in the blood system dissipates quickly. "'...
To be of any probative value the test must be "near" to the offense in
point of time. If it is not taken promptly after the arrest, it proves
nothing.' [Citations.]" (Skinner v. Sillas (1976) 58 Cal.App.3d 591 ,
599 [130 Cal.Rptr. 91].)
In Zidell v. Bright (1968) 264 Cal.App.2d 867 [71 Cal.Rptr. 111] the
inebriate refused to take the chemical test. The arresting officer
then left the station to resume other duties. Thirty to forty-five
minutes later, the inebriate stated that he had changed his mind and
would submit to a test. The arresting officer was called but refused
to return. (Id, at p. 869.) The court upheld the driver's license
suspension pursuant to section 13353, finding that "[i]t would be
inconsistent with the purpose of the statute to hold that either [the
arresting officer], or the officers on duty at the police station,
were required to turn aside from their other responsibilities and
arrange for administration of a belated test when once appellant had
refused to submit ...." (Id, at p. 870.)
The facts in Skinner v. Sillas, supra, 58 Cal.App.3d 591 are similar,
except that when respondent requested the test approximately four and
one-half hours after his initial refusal, a police officer other than
the arresting officer did administer the test. (Id, at p. 598.)
Nevertheless, the court upheld the driver's license suspension based
upon respondent's refusal, stating that "it would be inconsistent with
the purposes of the statute to require the officer to sit around and
wait until the suspect believes he is ready to take the test. (See
Zidell v. Bright, supra.)" (Id, at p. 599.)
Noli v. Department of Motor Vehicles (1981) 125 Cal.App.3d 446 [178
Cal.Rptr. 5] represents a situation where the arresting officer took a
"combative" inebriated driver to the community medical center. The
officer admonished the driver in the parking lot. The driver replied
that he would submit to a urine test. Due to the driver's behavior,
the officers were unwilling to remove his handcuffs at the medical
center to allow him to take the urine test. Accordingly, they told him
that the urine test would have to be taken at the jail, but that the
blood and breath test were available at the medical center only, and
that if he were transported to the jail and failed to complete the
urine test, he [137 Cal.App.3d 743] would not have another opportunity
to take the blood or breath tests. The driver insisted that he would
take only the urine test. At the jail, he was unable to complete the
urine test. (Id, at pp. 448-449.) The court upheld the suspension of
the driver's license. "We hold that in the circumstances here
presented, section 13353 did not require the officers to offer
appellant another opportunity to choose one of the two tests he had
categorically refused, when it would mean transporting him back to the
Medical Center to do so, particularly when there was little reason to
believe he would submit to either of those tests if the opportunity
were renewed. To hold otherwise would be to exalt form over substance
in the interpretation of the statute and make the arresting officers
subservient to the caprice of an inebriated and uncooperative
arrestee. The officers had more important things to do than play games
with appellant in his condition. What it boils down to is that one who
is lawfully under arrest for drunk driving should not be able to
frustrate the procedure contemplated by section 13353 and defeat its
purpose by being combative and uncooperative with the arresting
officers." (Id, at p. 450.)
Here too it would be inconsistent with the purpose of section 13353 to
hold that the arresting officer should have persisted in his attempt
to admonish respondent, regardless of his interruptions and
obstreperous behavior, until respondent was ready to listen. To so
hold would be to allow the arrestee to control the timing of the blood
alcohol test, and thus make the arresting officer "subservient to the
caprice of an inebriated and uncooperative arrestee." (Noli, supra,
125 Cal.App.3d at p. 450.) Nor does the fact that the officer did not
immediately admonish respondent in the police car on the way to the
substation alter our conclusion. The officer was not required to
anticipate that respondent would become unruly at the substation.
Bush v. Bright (1968) 264 Cal.App.2d 788 [71 Cal.Rptr. 123] and
Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354
[165 Cal.Rptr. 626] reinforce our conclusion that a person may not
complain of the suspension of his driver's license if, by his own
actions, he frustrates the admonishment or the administration of the
chemical test. In Bush, the court rejected the defense to license
suspension under section 13353 that a person was so intoxicated at the
time of his arrest that he was incapable of refusing to submit to a
chemical test. (Bush, supra, at pp. 791-793.) The court stated that a
defense of this type "would lead to absurd consequences--the greater
the degree of intoxication of an automobile driver, the lesser the
degree of his accountability under the statute. It would invalidate
section 13353 as to grossly intoxicated drivers and frustrate the
purpose of the Legislature." (Id, at p. 792.) A driver should be held
accountable for refusing or otherwise manifesting an unwillingness to
take the chemical test while in a state of voluntary intoxication.
(Id, at p. 793.) In Thompson, supra, 107 Cal.App.3d 354 , the court
held that where a communication over the police radio which was heard
by both the officer and the [137 Cal.App.3d 744] driver drowned out
that portion of the admonishment informing the driver that refusal to
complete a chemical test would result in a suspension of his license,
the admonishment was not effectively communicated, and the driver's
noncomprehension should not have resulted in license suspension. The
court noted, "The Bush case seems readily distinguishable from the
present case because in Bush the driver's inability to comprehend was
his own fault." (Thompson, supra, at p. 362, fn. 5.) Further, "[w]hen
the driver, through no fault of his own, is unable to understand the
warning, he should not suffer the consequence of a license
suspension." (Id, at p. 363.) Thompson clearly suggests that when a
driver's own actions prevent admonishment or administration of the
chemical test, he may not complain that his license was improperly
suspended.
"Remedial statutes such as section 13353 'must be liberally construed
to effect their objects and suppress the mischief at which they are
directed. They should not be given a strained construction that might
impair their remedial effect.'" (Bush v. Bright, supra, 264 Cal.App.2d
at p. 792.) We hold, therefore, as a matter of law that respondent's
license was properly suspended under section 13353 although the
arresting officer did not admonish him that failure to submit to the
chemical test would result in a six-month license suspension, where it
was respondent's own obstreperous conduct which prevented the officer
from completing the admonition and which led the officer to conclude
that the respondent had refused to submit to the test. The officer
directs the proceedings under section 13353, and the inebriated
driver, by obstreperous behavior, may subjugate neither the arresting
officer nor the statute to his whims.
Judgment is reversed with directions to reinstate the order of the DMV
suspending respondent's driver's license.
White, P. J., and Barry-Deal, J., concurred.
FN 1. Respondent's license had been ordered suspended pursuant to
Vehicle Code section 13353, the "implied consent" law. At the time of
the offense, section 13353 provided in pertinent 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. Such person
shall be told that his failure to submit to or complete such a
chemical test will result in the suspension of his privilege to
operate a motor vehicle for a period of six months. [¶] The person
arrested shall have the choice of whether the test shall be of his
blood, breath or urine, and he shall be advised by the officer that he
has such choice. ... [¶] (b) If any such person refuses the officer's
request to submit to, or fails to complete, a chemical test, the
department, upon receipt of the officer's sworn statement that he had
reasonable cause to believe such person had been driving a motor
vehicle upon a highway while under the influence of intoxicating
liquor and that the person had refused to submit to, or failed to
complete, the test after being requested by the officer, shall suspend
his privilege to operate a motor vehicle for a period of six months."
(Stats. 1978, ch. 911, § 4, p. 2872.) Subsequent amendments of section
13353 are immaterial to this appeal. (See Stats. 1980, ch. 67, § 1, p.
176; Stats. 1980, ch. 675, § 1, p. 1870; Stats. 1981, ch. 935, p.
3533; Stats. 1981, ch. 939, p. 3550.)
FN 2. The officer attempted to read the following statement to
respondent: "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."
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