driving under the influence of intoxicating [266 Cal.App.2d 809]
liquor when he went through a stop sign, crossed over a double yellow
line and nearly struck a police car. When his vehicle was stopped, a
strong odor of alcohol was detected on his breath and he failed a
field sobriety test.
After he had been placed under arrest, and while en route to a local
jail, the arresting officer advised petitioner that he would be
required to take one of the three chemical tests prescribed by the
California Implied Consent Law (Veh. Code, § 13353) for the purpose of
determining his sobriety.petitioner replied that he wanted to talk to
an attorney. Upon arrival at the jail, he was again informed that he
would have to take a test--breath, urine, or blood--and petitioner
stated he would not take a chemical test unless he could first talk to
his lawyer. The arresting officer permitted petitioner to make a
telephone call. After placing the call, petitioner stated to the
officer that he had called a friend and requested the latter to
contact an attorney for him.petitioner insisted again that he would
not take a test until an attorney was present at the jail with him at
the time the test was administered. The officer then repeated his
request that petitioner submit to a test, informed petitioner that he
had a choice of the test to be given, and admonished him that a
refusal would result in the suspension of his driving privilege for
six months. The officer further advised petitioner that he was not
entitled to have an attorney present with him in the jail at the time
the test was rendered. Petitioner declined to take any chemical test
until his attorney was present. He was then informed again that he
would lose his driving privilege for a period of six months because of
his refusal.
The arresting officer then prepared an officer's statement in
conformity with the provisions of section 13353 of the Vehicle Code,
and transmitted the same for filing with the Department of Motor
Vehicles. The preparation and execution of the form consumed
approximately 30 minutes. The officer then remained at the jail for
another 15 minutes.petitioner did not consent to take the test at any
time before the arresting officer left the jail, nor did he withdraw
his statement that he would take a chemical test only on condition
that his attorney was present before the officer's departure.
Following notification from the Department that his license was to be
suspended for six months for failure to comply with the provisions of
the California Implied Consent Law (Veh. Code, § 13353), petitioner
and his attorney requested a formal [266 Cal.App.2d 810] hearing.
Petitioner and his counsel were present at the hearing as was one of
the arresting officers. Following the hearing, the Department issued
its decision determining that appellant had violated the aforesaid
section of the Vehicle Code, and ordered a suspension of his license.
The Department decision contained the following findings of fact: (1)
Petitioner was arrested; (2) the arresting officer had reasonable
cause to believe he was driving a motor vehicle upon a highway while
under the influence of intoxicating liquor; (3) he was informed his
driving privilege would be suspended for a period of six months if he
refused to submit to a chemical test; and (4) he refused to submit to
any test of his blood, breath or urine.
After rendition of the Department's decision, petitioner sought
mandate in the superior court. In January 1968 a hearing was held with
petitioner and respondent both being represented by counsel. Following
the hearing, the trial court entered findings of fact, conclusions of
law, and judgment denying a peremptory writ of mandate, dismissing the
petition for writ of mandate, and discharging the alternative writ.
In his assault on the judgment, petitioner presents the following
issues: (1) He had a constitutional right to consult with an attorney
before deciding to submit to or refuse the chemical test prescribed by
section 13353 of the Vehicle Code; (2) he did not effectively refuse
the administration of a chemical test inasmuch as he was confused by
the Miranda advice given by the arresting officers; (3) the
departmental referee was not a lawyer as required by section 11502 of
the Government Code and, therefore, was not qualified to act in the
capacity of a hearing officer.
[1] In a civil proceeding for suspension of a person's driving
privilege under the California Implied Consent Law (Veh. Code, §
13353), a driver is not entitled to have counsel present when he is
requested, while in custody, to decide whether to submit, or refuse to
submit, to one of the tests required by the statute. (Finley v. Orr,
262 Cal.App.2d 656 , 663-664 [69 Cal.Rptr. 137].) Therefore,
petitioner's conditional consent amounted to a refusal. (Fallis v.
Department of Motor Vehicles, 264 Cal.App.2d 373 , 384 [70 Cal.Rptr.
595].)
However, petitioner maintains that his refusal was ineffective
inasmuch as he was confused by the Miranda advice [266 Cal.App.2d 811]
given him by the arresting officers. Nevertheless, the record
indicates the arresting officer fully explained to petitioner that he
only had the right to counsel in connection with the criminal charge
of driving a motor vehicle under the influence of intoxicating liquor.
In doing so, the officer used the following language: "... [you have]
the right to remain silent ... anything that [you] say will be held
against [you] in a court of law, the right to an attorney, the right
to have one appointed ... by the court prior [to] questioning, if [you
cannot] afford one." Following the foregoing admonition, petitioner
was again informed that although he had a right to counsel and had a
right to have counsel come to the jail, "... that it was not his right
to have an attorney present with him in the jail at the time the test
was being taken." Consequently, petitioner was not justified in
refusing to take the test until an attorney was present inasmuch as he
was clearly and unequivocally told that he had no right to the
presence of counsel at the time the test was being administered.
Therefore, his contention of bewilderment is not persuasive in view of
the fact that he refused the test after receiving an explicit
advisement. (See Finley v. Orr, supra, 262 Cal.App.2d 656 , 666-667.)
[2] Finally, petitioner maintains that the hearing officer appointed
by the director lacked the qualifications required by section 11502 of
the Government Code and, therefore, the decision of the Department of
Motor Vehicles suspending his driving privilege for six months was
invalid. However, the provisions of the Administrative Procedure Act
(Gov. Code, § 11500 et seq.) are not applicable to hearings conducted
under the provisions of the Vehicle Code (Veh. Code, § 14107), and
hearing officers of the Department of Motor Vehicles are not required
to be attorneys. (Serenko v. Bright, 263 Cal.App.2d 682 , 689-691 [70
Cal.Rptr. 1].)
Judgment affirmed.
McCabe, P. J., and Tamura, J., concurred.
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