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2010-03-26T18:50:00.000-07:00

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California Legal Team is a law firm dedicated to do everything they can to help their clients obtain the best possible outcomes in their DUI or Driving Under the Influence cases and specialize in representing clients in the Pasadena Courthouse.

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Attorney Profiles

2009-03-26T19:08:00.000-07:00

Attorney Profiles

Okorie Okorocha
Counsel
B.A., California State University Northridge
Juris Doctor, Whittier College, School of Law

Nick Okorocha
Of Counsel
B.A., University of California, Berkeley
Juris Doctor, Pepperdine University, School of Law

Angela Rooney
Of Counsel
B.A., University of Southern California
Juris Doctor, Thomas M Cooley Law School

Kimberly Frasca
Of Counsel
B.A., Providence College
Juris Doctor, Southwestern School of Law

Jan Beltran
Law Clerk

Morphew v. Department of Motor Vehicles (1982) 137 Cal.App.3d 738 , 188 Cal.Rptr. 126

2008-05-17T15:30:00.003-07:00

The department of Motor Vehicles (hereafter DMV) appeals from a
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."

Cahall v. Department of Motor Vehicles , 16 Cal.App.3d 491

2008-05-17T15:30:00.001-07:00

Following an administrative hearing, the Department of Motor Vehicles
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.

People v. Wilson (2003) 114 Cal.App.4th 953 , -- Cal.Rptr.3d --

2008-05-17T15:29:00.001-07:00

On August 16, 2000, defendant was involved in an automobile accident
after his car crossed over a double yellow line and collided head-on
with [114 Cal.App.4th 956] another vehicle. Both the driver of the
other car and her passenger suffered severe injuries as a result of
the accident. Defendant was charged by information with driving under
the influence causing bodily injury (Veh. Code, § 23153, subd. (a) fn.
1 ; count 1), and driving with a 0.08 percent blood-alcohol level
causing injury (§ 23153, subd. (b); count 2). The information also
alleged that defendant caused bodily injury to more that one victim (§
23558), and that defendant personally inflicted great bodily injury on
both victims (Pen. Code, § 12022.7, subd. (a)). Finally, the
information alleged that defendant had suffered two prior strike
convictions (Pen. Code, § 667, subd. (a)(1)), and two prior serious
felony convictions (Pen. Code, § 667.5, subd. (b)).

Prior to trial, defendant made a motion to suppress the results of a
blood test taken after his arrest. The testimony given at the
suppression hearing provides the following factual history. Officer
Jerry Chu arrived on the scene of the accident shortly after it
occurred. Based on his initial observations that defendant's eyes were
quite red, watery and bloodshot, Chu believed that defendant was
intoxicated. Because of defendant's injuries, however, he was
transported to the hospital before Chu could conduct a field sobriety
test.

At the hospital, Chu conducted a nystagmus test whereby defendant was
asked to follow Chu's finger as it was moved back and forth in front
of his face. Defendant's inability to track Chu's finger indicated
that he was intoxicated. Chu also requested that defendant submit to a
PAS test and advised defendant that the test was voluntary and would
not satisfy his obligation to submit to a subsequent BAL test if he
were arrested. The PAS test showed a BAL of 0.09 percent. Based on his
observations and the test results, Chu determined that defendant was
under the influence of alcohol and arrested defendant.

After placing defendant under arrest, Chu advised defendant that he
was required to provide a blood sample. Although defendant maintained
that he was not consenting to the test, he permitted hospital staff to
draw the blood sample. The blood was tested and the toxicologist
determined that it contained a 0.12 percent BAL.

Based on this testimony, defendant argued that the results of the
blood test should be suppressed on the ground that they were the
product of an illegal warrantless search because any exigency that
might have justified the administration of the blood test was
eliminated by the prior administration of the PAS test. The trial
court denied defendant's motion, finding that the officer acted
reasonably in requiring the postarrest blood test. [114 Cal.App.4th
957]

After a three-day trial, the jury convicted defendant on both counts
contained in the information and found true the great bodily injury
and multiple-victim allegations. Thereafter, the trial court found
true the prior conviction allegations. Defendant was sentenced to 22
years in state prison. Defendant filed a timely notice of appeal.

Discussion

Defendant contends that his Fourth Amendment rights were violated by
the taking of his blood after he voluntarily submitted to a PAS breath
test. He acknowledges that prior case law and Vehicle Code section
23612, subdivisions (h) and (i), permit an officer to administer both
a PAS test to help determine whether defendant is intoxicated and a
postarrest blood, breath, or urine test to confirm the defendant's
BAL. Nonetheless, he argues that the recent decision in People v.
Williams (2002) 28 Cal.4th 408 [121 Cal. Rptr. 2d 854, 49 P.3d 203],
taken together with People v. Fiscalini (1991) 228 Cal. App. 3d 1639
[279 Cal. Rptr. 682], eliminated any justification for the
nonconsensual taking of a blood sample following the administration of
a PAS test.

[1] We review the trial court's denial of defendant's motion to
suppress by deferring to factual findings by the trial court that are
supported by substantial evidence. [2] We independently review,
however, whether the search and seizure was reasonable under the
United States Constitution. ( People v. Leyba (1981) 29 Cal.3d 591 ,
596-597 [174 Cal. Rptr. 867, 629 P.2d 961]; People v. Stanley (1999)
72 Cal.App.4th 1547 , 1551 [86 Cal. Rptr. 2d 89].)

Section 23612, subdivision (a)(1)(A), provides, "A person who drives a
motor vehicle is deemed to have given his or her consent to chemical
testing of his or her blood or breath for the purpose of determining
the alcoholic content of his or her blood, if lawfully arrested for an
offense allegedly committed in violation of Section 23140, 23152, or
23153. If a blood or breath test, or both, are unavailable, then
paragraph (2) of subdivision (d) [urine test] applies." Section 23612
provides further, "(h) A preliminary alcohol screening test that
indicates the presence or concentration of alcohol based on a breath
sample in order to establish reasonable cause to believe the person
was driving a vehicle in violation of Section 23140, 23152, or 23153
is a field sobriety test and may be used by an officer as a further
investigative tool. [¶] (i) If the officer decides to use a
preliminary alcohol screening test, the officer shall advise the
person that he or she is requesting that person to take a preliminary
alcohol screening test to assist the officer in determining if that
person is under the influence of alcohol or drugs, or a combination of
alcohol and drugs. The person's obligation to submit to a blood,
breath, or [114 Cal.App.4th 958] urine test, as required by this
section, for the purpose of determining the alcohol or drug content of
that person's blood, is not satisfied by the person submitting to a
preliminary alcohol screening test. The officer shall advise the
person of that fact and of the person's right to refuse to take the
preliminary alcohol screening test." Section 23612 has been upheld
against constitutional challenge on the ground that the warrantless
taking of blood (or breath or urine) to prevent the destruction of
evidence is reasonable under the Fourth Amendment. ( Schmerber v.
California (1966) 384 U.S. 757 [16 L. Ed. 2d 908, 86 S. Ct. 1826].)

In People v. Bury (1996) 41 Cal.App.4th 1194 [49 Cal. Rptr. 2d 107],
the court held that PAS test results are admissible to prove a
defendant's guilt if the proper foundation is laid. The court also
rejected the argument that a defendant who submits to a PAS test has
satisfied his obligations under section 23612, subdivision (a)(1)(A).
The court explained that former section 23157, subdivision (h), was
enacted in part "to require police to advise a suspected drunk driver
that the PAS test does not satisfy the chemical testing requirement
under the implied consent law. [Citation] ... The express exemption of
PAS devices from the implied consent law was necessary to correct the
problem ' "that occurs when a DUI suspect submits to a pre-arrest
Alco-Sensor test but subsequently refuses to submit to a post-arrest
blood, breath or urine test as required under section 23157 of the
Vehicle Code. At trial, these defendants typically argue that they
satisfied the implied consent law by submitting to the Alco-Sensor
test. [¶] Apparently, most judges have agreed with this argument and
hence do not allow the jury to be instructed that the defendant
refused to give a chemical test as required by the implied consent
law. If the Alco-Sensor results are not admissible at trial, which
seems to be occurring in most counties due to the lack of foundation
... the district attorney is left to prosecute the case without an
admissible chemical test and without a refusal instruction. Needless
to say, a case without a post-arrest alcohol screening result or a
refusal instruction is almost impossible to win." ' " ( People v.
Bury, supra, at p. 1205.) The court also stated, "The statute requires
police to obtain a driver's consent to PAS testing, along with
advising the driver that a PAS test is not a substitute for chemical
testing under the implied consent law. If this advisement is properly
given, a suspect who voluntarily submits to a PAS test cannot
reasonably believe that his submission to further chemical testing is
optional. Where, as here, the driver voluntarily takes a PAS test but
later wrongfully refuses to take a chemical test under the implied
consent law, he should not be able to profit therefrom by successfully
challenging the admission of the PAS evidence." ( Id. at p. 1206.)
Thus, the PAS test results are admissible to prove a defendant's guilt
if the proper foundation is laid, but the test does not satisfy
defendant's obligation under the section 23612 to submit to a
subsequent blood, urine or breath test after being arrested for drunk
driving. [114 Cal.App.4th 959]

Contrary to the defendant's assertion, nothing in People v. Williams,
supra , 28 Cal.4th 408 , or People v. Fiscalini , supra , 228 Cal.
App. 3d 1639, conflicts with or alters this rule of law. In Williams ,
the court reiterated, and perhaps clarified, the foundational
requirements for admitting PAS test results into evidence that were
applied in Bury . The court held that the results of a PAS test are
admissible even if the tests were not performed in compliance with
Department of Health Services regulations. The court held that the
foundational requirements for the admission of PAS test results may be
demonstrated either by showing compliance with the regulations or by
showing that (1) the equipment was properly functioning, (2) the test
was properly administered, and (3) the test was administered by a
qualified operator. (28 Cal.4th at p. 417.) Williams did not address
section 23612, subdivision (h) or (i).

[3] In Fiscalini , the court held that the implied consent law permits
the arresting officer to conduct only one of the alternate tests
provided by the statute based upon the suspect's choice. ( Fiscalini,
supra , 228 Cal. App. 3d at pp. 1644-1645.) The court reasoned that
once a defendant takes a urine test, the officer may not forcibly draw
blood without providing some additional justification for the
warrantless search, and that having successfully completed a urine
test, there is no longer an exigency to justify a second test. ( Id .
at p. 1645.) Fiscalini is distinguishable from the present case,
however, because the PAS test and the postarrest BAL blood test are
not mutually exclusive alternatives under the statute. To the
contrary, section 23612 specifically provides for the use of both
tests.

Defendant raises a novel question about the continued validity of
section 23612, subdivisions (h) and (i), which is not answered
directly by the authority cited above. Defendant suggests that since
the results of his PAS test were admissible under Williams and Bury ,
the provisions of section 23612 which permit the arresting officer to
take a subsequent BAL test are unconstitutional, because an additional
test is not necessary to preserve the blood-alcohol evidence.

[4] This argument is premised, however, on the assumption that the PAS
test is the scientific equivalent of a postarrest blood, breath or
urine test. Nothing in Williams compels the conclusion that the PAS
test is the functional equivalent of the mandatory BAL test under
section 23612, subdivision (a). Williams merely establishes the
requirements for receiving the PAS test in evidence. The Legislature,
however, has concluded that significant differences exist between the
two types of tests, as demonstrated by their separate treatment in the
statute. (§ 23612, subds. (h) & (i); see also Legis. Counsel's Dig.,
Sen. Bill No. 602 (1991-1992 Reg. Sess.), Stats. 1992, ch. 1242, pp.
3-4 [amending former section 23517 to permit use of consensual PAS
test, "which indicates the presence or concentration of alcohol based
[114 Cal.App.4th 960] on a breath sample in order to establish
reasonable cause, prior to arrest"]; Coniglio v. Department of Motor
Vehicles (1995) 39 Cal.App.4th 666 , 676 [46 Cal. Rptr. 2d 123],
citing Assem. Com. on Public Safety, Analysis of Sen. Bill No. 689
(1993-1994 Reg. Sess.) July 13, 1993 [legislative history of
amendments to "zero tolerance law" (§ 23137) demonstrates that
"Legislature considered arguments regarding the reliability of the PAS
test" and "reveals a recognition of possible foundational problems
associated with the PAS test"]; 59 Fed.Reg. 39382-02 (Aug. 2, 1994)
[differentiating between "evidential breath testing devices," which
"measure the alcohol content of deep lung breath samples with
sufficient accuracy for evidential purposes," and "alcohol-screening
devices," which are primarily used to detect the presence of alcohol
in a person's breath or bodily fluids]; 72 Ops.Cal.Atty.Gen 226
(1989).) [5] The Legislature may well have found that the results of
the PAS breath test, normally administered by a police officer in the
field, are less accurate and reliable than the chemical tests
administered under more controlled circumstances and likely with more
precise equipment. The immediate purpose of the implied consent law
"is to obtain the best evidence of blood alcohol content at the time
of the arrest of a person who is reasonably believed to be driving
while intoxicated." ( People v. Ryan (1981) 116 Cal. App. 3d 168, 182
[171 Cal. Rptr. 854], italics added.) In the absence of any evidence
to the contrary, we must accept the Legislature's implicit finding
that the tests are not equivalent, and therefore that despite the
taking of the PAS test, it remains important to obtain the more
reliable results of the chemical test before the evidence becomes
unavailable with the passage of time. ( People v. Ireland (1995) 33
Cal.App.4th 680 , 693 [39 Cal. Rptr. 2d 870] [" 'where scientific
opinions conflict on a particular point, the Legislature is free to
adopt the opinion it chooses, and the court will not substitute its
judgment for that of the Legislature' "].) "[T]he exigency created by
the evanescent nature of blood alcohol and the danger that important
evidence would disappear" is sufficient to satisfy Fourth Amendment
standards. ( People v. Trotman (1989) 214 Cal. App. 3d 430, 436 [262
Cal. Rptr. 640].) fn. 2

Disposition

The judgment is affirmed.

McGuiness, P. J., and Parrilli, J., concurred.

Appellant's petition for review by the Supreme Court was denied March 17, 2004.

FN 1. All statutory references are to the Vehicle Code unless otherwise noted.

FN 2. In light of this conclusion, we do not reach the Attorney
General's alternative argument that the blood test was justified here
by defendant's attempt to obstruct the breath test. (See People v.
Sugarman (2002) 96 Cal.App.4th 210 , 214-216 [116 Cal. Rptr. 2d 689].)
Although there was evidence that Officer Chu tried on three occasions
to obtain a proper breath sample, and that defendant interfered with
the results by failing to seal his lips around the tube, this evidence
was presented at trial and was not before the trial court when it
denied defendant's motion to suppress.

People v. Morgan (1990) 221 Cal.App.3d Supp. 1 , 270 Cal.Rptr. 597

2008-05-17T15:27:00.001-07:00

Defendant and respondent Dennis Morgan (hereinafter defendant) was
arrested on September 4, 1988, at a sobriety checkpoint organized by
the California Highway Patrol (CHP). Defendant was charged with a
violation of California Vehicle Code section 23152, subdivisions (a)
and (b), and with an allegation of a prior conviction of section
23152, subdivision (a). Prior to trial, defendant brought a motion to
suppress all evidence seized by the CHP, including the results of a
chemical test administered on the defendant, under Penal Code section
1538.5. The trial court granted the motion, and the People appeal from
that ruling.

The facts of the case are not in dispute. While driving west on Bryant
Street in San Francisco, defendant turned right onto Sixth Street,
where a CHP officer immediately guided him into the CHP sobriety
checkpoint. There were no signs on Bryant Street (a one-way street) to
advise drivers that there was a checkpoint on Sixth Street. After
detecting alcohol on the defendant's breath, a CHP officer led the
defendant through a variety of field sobriety tests. When defendant
failed the tests, he was arrested on suspicion of driving under the
influence of alcohol, and taken to San Francisco County jail where he
was given an intoxilizer test which revealed that his blood contained
more than 0.10 percent alcohol.

At the hearing on the motion to suppress, the trial judge granted the
motion on two grounds: first, the prosecution had failed to carry its
burden in showing there was adequate advance publicity as required by
the Supreme Court in Ingersoll v. Palmer (1987) 43 Cal.3d 1321 [241
Cal.Rptr. 42, 743 P.2d 1299]; second, due to the lack of signs on
Bryant Street, defendant was not afforded an opportunity to turn away
from the checkpoint. The People limit their appeal to the former
rationale.

The issue raised by this appeal is similar if not identical to the
issue raised in the case of People v. Mathis ((Nov. 13, 1989) App.
Dept. Super. Ct., City and County of San Francisco, Crim. A No. 4124),
which we decided in an unpublished written opinion. Because this
appeal involves a legal issue of continuing public interest, we have
ordered this opinion published so it may be referred to as precedent
in subsequent proceedings. (Cal. Rules of Court, rule 976.)

In Ingersoll v. Palmer, supra, the California Supreme Court upheld the
detention of motorists at a sobriety checkpoint in Burlingame, despite
the absence of any reasonable individualized suspicion of wrongdoing,
on the theory that such detentions were permissible administrative
inspections primarily intended to enhance public safety by deterring
potential lawbreakers [221 Cal.App.3d Supp. 4] from driving while
intoxicated. Applying the balancing test articulated in People v. Hyde
(1974) 12 Cal.3d 158 , 166-169 [115 Cal.Rptr. 358, 524 P.2d 830], the
Ingersoll court concluded that the intrusiveness on an individual's
liberty interest caused by a checkpoint detention is outweighed by the
substantial governmental and public concern about drunk driving and
the demonstrated or potential deterrent effect of sobriety checkpoints
in keeping drunk drivers off the road. (Ingersoll v. Palmer, supra, 43
Cal.3d at pp. 1338-1339.)

Taking note of a number of decisions of courts of other states and an
opinion of the California Attorney General, the court identified eight
factors to "provide functional guidelines for minimizing the
intrusiveness of the sobriety checkpoint stop." (Ingersoll v. Palmer,
supra, 43 Cal.3d at p. 1341.) However, in its discussion of one of the
eight factors, the Ingersoll court pronounced: "Advance publicity is
important to the maintenance of a constitutionally permissible
sobriety checkpoint. Publicity both reduces the intrusiveness of the
stop and increases the deterrent effect of the roadblock." (Id., at p.
1346.) Applying this factor to the Burlingame checkpoints, the court
found "substantial advance publicity accompanied each sobriety
checkpoint instituted." (Id., at p. 1347.)

[1a] The People contend that advance publicity is not a requirement of
a permissible sobriety checkpoint, but merely one of several
guidelines offered by the Ingersoll court to help ensure a balance
between the governmental and individual interests involved. Indeed,
Ingersoll does not expressly state that police departments must
strictly apply each of the eight factors. On this appeal, however, we
need not determine whether all eight guidelines, singly or in more
limited combinations, must be observed to constitute "substantial
compliance" with the holding of Ingersoll.

[2] Nevertheless, from the standpoint of the ultimate purpose and
legal theory supporting administrative motorist detentions, we hold
that advance warning and publicity of sobriety checkpoints is
essential if such checkpoints are to serve as an effective deterrent,
because it may be impossible to deter an uninformed public.
Ingersoll's requirement of "substantial advance publicity" means that
checkpoint authorities must do more than simply inform the press about
their plan to operate a checkpoint. To be constitutionally
permissible, the press relations strategy implemented by the
authorities must actually generate "substantial advance publicity."

Although the requirement of advance publicity has been given
inadequate attention in some cases and, apparently, held unimportant
in others (People v. Bartley (1985) 109 Ill.2d 273 [486 N.E.2d 880];
State v. Deskins (1983) 234 Kan. 529 [673 P.2d 1174]; Kinslow v.
Commonwealth (Ky.Ct.App. [221 Cal.App.3d Supp. 5] 1983) 660 S.W.2d
677; State v. Coccomo (1980) 177 N.J. Super. 575 [427 A.2d 131]),
other sister state decisions invalidated checkpoints on state grounds
where no advance publicity was proven (State v. Koppel (1985) 127 N.H.
286 [499 A.2d 977]; State ex rel. Ekstrom v. Justice Ct. of State
(1983) 136 Ariz. 1 [683 P.2d 992] (Feldman, J., conc.) ["the efficacy
of a deterrent roadblock is heightened by advance publicity in the
media and on the highways"].) We also note, however, that several
state courts have upheld sobriety checkpoints when evidence of
substantial advance publicity was established. (State v. Superior
Court (1984) 143 Ariz. 45 [691 P.2d 1073] [press releases, purchase of
radio, television and newspaper advertisements]; Commonwealth v.
Trumble (1985) 396 Mass. 81 [483 N.E.2d 1102] [press releases sent to
400 media outlets; individual police officers personally spoke to
media representatives; several newspapers and broadcast stations
disseminated information prior to roadblock]; Little v. State (1984)
300 Md. 485 [479 A.2d 903] [extensive statewide publicity campaign
announcing pilot checkpoint program; widespread media coverage after
series of press conferences].)

[1b] In this case, the People offered insufficient evidence of advance
publicity at the hearing on the motion to suppress to satisfy the
Ingersoll requirement. A CHP sergeant testified that another officer
followed CHP procedures and sent a notice to the Bay City News
"somewhere between 48 and 24 hours prior to our set up," and then
called Bay City News on the evening of the checkpoint to advise where
the checkpoint would be set up. There was no evidence of advance
information given by the media to an uninformed public. Although
Evidence Code section 664 allows a presumption that official duty has
been regularly performed, this presumption does not apply on an issue
as to lawfulness of an arrest if it is found or otherwise established
that the arrest was made without a warrant. (People v. Carson (1970) 4
Cal.App.3d 782 [84 Cal.Rptr. 699].)

The sergeant also testified that a television crew was on the scene on
the night of the checkpoint. In our view, the fact that a television
news crew was present during the operation of the checkpoint does not
have "any tendency in reason" to prove that the public was given
advance knowledge of the existence of a sobriety checkpoint. (Evid.
Code, § 210.) No reasonable inference can be drawn from the evidence
of on-the-spot coverage by the television media that the public was
given advance knowledge of a sobriety checkpoint.

It is therefore ordered that the order granting the motion to suppress
made and entered in the above-entitled cause is affirmed. The clerk of
the court is hereby ordered to forward a copy of this opinion to the
First [221 Cal.App.3d Supp. 6] District Court of Appeal, Division One,
upon the judgment becoming final as to this court. Kay, P. J., and
Alvarado, J., concurred.

Reirdon v. Director of Dept. of Motor Vehicles , 266 Cal.App.2d 808

2008-05-17T15:26:00.001-07:00

Petitioner was arrested on June 22, 1967, in Orange County while
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.

Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293 , 160 Ca.Rptr. 557

2008-05-17T15:25:00.001-07:00

The Department of Motor Vehicles appeals from judgment granting the
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.

Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165 , 195 Cal.Rptr. 707

2008-05-17T15:24:00.001-07:00

[1] Petitioner first asserts he was improperly advised of the legal
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.

[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."

People v. Warlick (2008) , Cal.App.4th Supp.

2008-05-17T15:23:00.001-07:00

Vehicle Code section 23152, subdivision (b) (section 23152(b)) fn. 1
prohibits driving a motor vehicle with a blood-alcohol level of 0.08
percent or greater. In this case, a standard breath test administered
to the defendant shortly after an accident showed a blood-alcohol
level of 0.07 percent. The People offered to introduce expert
testimony to show that defendant's blood-alcohol level was at least
0.08 percent at the time he drove his car. The proposed expert
testimony was based on a methodology known as "retrograde
extrapolation." It considered the breath test results, the defendant's
statements regarding when he last consumed alcohol, and studies
regarding the normal "elimination rate" for alcohol in the blood in
reaching a conclusion regarding the defendant's blood-alcohol content
at the time of driving. {Slip Opn. Page 2}

At defendant's request, the trial court excluded the proposed expert
testimony. Relying primarily on Baker v. Gourley (2002) 98 Cal.App.4th
1263 , the court inferred a legislative intent that a violation of
section 23152(b) cannot be proven without a valid chemical test
showing a blood-alcohol content of 0.08 percent or greater. With the
People's expert testimony excluded, the court granted the defendant's
motion to dismiss the charge pursuant to Penal Code section 1118.1.

We conclude that Baker v. Gourley, supra, 98 Cal.App.4th 1263 , does
not stand for nearly so sweeping a proposition. Nor do we find
anything in the language of section 23152(b) suggesting an inflexible
limitation on the manner in which the People can prove their case. The
fact that the Legislature provided a presumption that favors the
People if they can show a blood-alcohol chemical test result of 0.08
percent or greater within three hours after driving does not mean they
cannot attempt to prove their case without the benefit of the
statutory presumption. Here, because the People were prevented from
trying to make their case, we reverse and remand with directions to
reinstate the section 23152(b) charge and deny defendant's request to
exclude the proposed retrograde extrapolation testimony.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of May 27, 2006, California Highway Patrol
Officer Chris Jensen was dispatched to investigate a collision
involving a vehicle driven by defendant Benjamin F. Warlick. At the
scene of the collision, Warlick admitted to drinking alcohol earlier
in the evening. A preliminary alcohol screening (PAS) test
administered by Jensen showed that Warlick had a blood-alcohol level
of 0.07 percent at approximately 12:17 a.m. Charged with violating
section 23152(b), Warlick made a motion in limine to exclude any
expert testimony based on retrograde extrapolation analysis. The trial
court conducted a hearing pursuant to Evidence Code section 402 at
which the prosecution offered the testimony of Marisa Ochoa, a
criminalist from the San Diego Sheriff's Department. Based on the PAS
test result, Warlick's statements about his consumption of alcohol,
and studies regarding normal alcohol elimination rates, Ochoa
indicated she would opine that Warlick had a blood-alcohol level of at
least 0.08 percent at the time of driving. The trial court ruled
Ochoa's proposed testimony inadmissible. It read Baker v. Gourley,
supra, 98 Cal.App.4th 1263 , as holding that a violation of section
23152(b) cannot be proved without a chemical test showing a
blood-alcohol level of 0.08 percent or greater. {Slip Opn. Page 3} Any
other result, the court reasoned, would permit proof of a violation by
means of circumstantial evidence, an outcome it believed was
specifically precluded by Baker . ( See Baker, supra, 98 Cal.App.4th
at p. 1273.)

Because the prosecutor conceded he could not establish a violation of
section 23152(b) without retrograde extrapolation evidence, the court
dismissed the charge. The People then filed this appeal. (See Pen.
Code, § 1466, subd. (b).)

DISCUSSION

Section 23152(b) makes it "unlawful for any person who has 0.08
percent or more, by weight, of alcohol in his or her blood to drive a
vehicle." The statute also creates "a rebuttable presumption that the
person had 0.08 percent or more, by weight, of alcohol in his or her
blood at the time of driving the vehicle if the person had 0.08
percent or more, by weight, of alcohol in his or her blood at the time
of the performance of a chemical test within three hours after the
driving." (Ibid. )

In Baker v. Gourley, supra, 98 Cal.App.4th 1263 , the Court of Appeal
reviewed a pretrial administrative license suspension by the
Department of Motor Vehicles (DMV) under section 13353.2 after a
driver was arrested for driving with a blood-alcohol level of 0.08
percent or greater. Because the DMV failed to meet its burden of
showing that a chemical test that was not conducted in accordance with
applicable regulations was nevertheless reliable, the test results
were deemed inadmissible. ( Baker, supra, at p. 1265.) Faced with no
admissible chemical test, the DMV attempted to justify its suspension
of the defendant's license with evidence of symptoms typically
associated with intoxication, such as slurred speech and bloodshot
eyes. ( Ibid .)

The Baker court framed the question before it as follows: "Can a given
amount of blood-alcohol level be established without a valid chemical
test by evidence of behavior or indicia typically associated with
intoxication, such as, like here, slurred speech, bloodshot eyes, or
an unsteady gait?" ( Baker v. Gourley, supra, 98 Cal.App.4th at pp.
1265-1266.) Noting that these factors may be present in a person with
a blood-alcohol level of less than 0.08 percent, the Court of Appeal
found this evidence inadequate to support the summary suspension of
the defendant's driver's license. It was in this context that the
Baker court noted that "circumstantial evidence without a valid
chemical test is insufficient to suspend a license." ( Id. at p.
1273.) {Slip Opn. Page 4}

The Baker decision is limited by its terms to the "so-called'Admin Per
Se' laws where the . . . DMV suspends a driver's license when a
motorist has been arrested for drunk driving before the motorist has
had the benefit of a trial in a court of law." ( Baker v. Gourley,
supra, 98 Cal.App.4th at p. 1264.) The court was careful to emphasize
that the case did " not involve a criminal prosecution for drunk
driving." ( Ibid. ) These limitations alone advise caution in
extending the Baker holding to a criminal action for violation of
section 23152(b).

But even assuming that the per se nature of section 23152(b) would
make Baker 's analysis of section 13353.2 similarly applicable, the
factual context of that case is of crucial importance in understanding
the scope of the holding. Baker 's statement precluding reliance on
circumstantial evidence was based expressly on the lack of a " valid
chemical test." ( Baker v. Gourley, supra , 98 Cal.App. 4th at p.
1273, italics added.) Here in contrast, there was a perfectly valid
chemical test -- that happens to show a blood-alcohol level of only
0.07 percent. By its express terms, then, the statement relied on by
the trial court here simply does not apply.

Moreover, the circumstantial evidence considered in Baker is of an
entirely different nature than that offered here, and the Baker
court's comment must be understood in its factual context. " 'It is
the general rule that the language of an opinion must be construed
with reference to the facts presented by the case, and the positive
authority of a decision is coextensive only with such facts.' " (
Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 , 734-735,
quoting River Farms Co. v. Superior Court (1933) 131 Cal.App. 365,
369.) The circumstantial evidence in Baker was insufficient precisely
because "the usual symptoms of substantive intoxication -- slurred
speech, bloodshot eyes, etcetera -- can manifest themselves at a
blood-alcohol level below .08." ( Baker v. Gourley, supra, 98
Cal.App.4th at p. 1273.) In other words, even a driver who manifests
the "usual symptoms" may not have had a blood-alcohol level of at
least 0.08 percent. Here, the whole point of the proffered retrograde
extrapolation analysis will be to show that if Warlick had a
blood-alcohol level of 0.07 percent at 12:17 a.m., he must have had a
level of at least 0.08 percent when he was driving.

This less expansive reading of Baker has the added advantage of making
it consistent with Supreme Court decisions recognizing the validity of
retrograde extrapolation evidence, albeit in contexts different than
the facts of this case. (See People v. Clark (1993) 5 Cal.4th 950 ,
993.) The fact that such {Slip Opn. Page 5} extrapolations " ' "can be
speculative" ' (goes to the weight rather than the admissibility of
such testimony. ( People v. Thompson (2006) 38 Cal.4th 811 , 834 (dis.
opn. of Werdegar, J.).)

In addition to relying on Baker , the trial court here seemed to
interpret section 23152(b) itself as precluding conviction in the
absence of a chemical test showing a blood-alcohol level of 0.08
percent or higher. According to the court, the California statute
differs from statutes in other states in that section 23152(b)
eliminates the need for the prosecution to circumstantially prove the
actual blood-alcohol level at the time of driving. It construed the
statute as having been written to "obviate" the need for all
circumstantial evidence, including retrograde extrapolation evidence.

To the contrary, however, nearly 25 years ago in Burg v. Municipal
Court (1983) 35 Cal.3d 257 , the Supreme Court made clear that proving
a violation of section 23152(b) nearly always requires circumstantial
evidence. As the court noted, the statute "prohibits driving a vehicle
with a blood-alcohol level" above the legal limit; "it does not
prohibit driving a vehicle when a subsequent test shows a level" above
the legal limit. (35 Cal.3d at p. 266, fn. 10.) The crucial issue,
then, is whether the defendant drove a vehicle at a time when his or
her blood-alcohol level was 0.08 percent or higher. Since rarely, if
ever, would a blood-alcohol test be performed while the defendant was
driving, "[c]ircumstantial evidence will generally be necessary to
establish the requisite blood-alcohol level called for by the
statute." ( Ibid .) And a chemical test "will, obviously, be the usual
type of circumstantial evidence ...." ( Ibid. ) Here, the prosecution
proposes to do nothing more than use chemical test results in
conjunction with other evidence to circumstantially prove that Warlick
drove a vehicle with a blood-alcohol level above the legal limit. fn.
2

The trial court's comments also suggest a belief that the rebuttable
presumption created by the last sentence of section 23152(b) somehow
demonstrates a legislative intent to preclude prosecutions without a
chemical test showing a blood-alcohol level of 0.08 percent or
greater. But this presumption or inference (see generally People v.
Beltran, supra, 157 Cal. App. 4th at pp. 241-244) does not define
{Slip Opn. Page 6} the crime or create a rule of substantive law. (See
2 Jefferson, California Evidence Benchbook (3d rev. ed. 2003) § 46.11,
p. 1056.) Rather, it focuses on the prosecution's ability to prove one
fact by reference to another. Where the People introduce evidence of a
valid chemical test administered within three hours of the defendant's
driving showing a blood-alcohol level of at least 0.08 percent, in the
absence of other evidence the trier of fact may infer that the
defendant's blood-alcohol level at the time of driving was in excess
of the legal limit. The statute simply does not address what can be
inferred from a different set of circumstantial evidence, including a
0.07 percent bloold-alcohol chemical test result in combination with
other facts, which together suggest the defendant's blood-alcohol
level was higher at the time of driving.

CONCLUSION

Nothing in either the language of section 23152(b) or the construction
of the statute by California appellate courts prevents the prosecution
from trying to prove a statutory violation using expert testimony that
relies on retrograde extrapolation evidence. Because the People in
this case were precluded from even making the attempt, we reverse the
order of dismissal and remand for further proceedings.

Hernandez, J., and Dato, J., concurred.

FN 1. All statutory references are to the Vehicle Code unless
otherwise indicated.

FN 2. Indeed, "retrograde extrapolation" is nothing more than the
prosecutorial version of the " 'rising blood-alcohol' defense." (
People v. Beltran (2007) 157 Cal. App. 4th 235, 246.) Each starts with
the defendant's blood-alcohol level at the time of chemical test and
relies on circumstantial evidence regarding the direction of change to
convince the trier of fact that the level was different -
significantly higher or lower - at the time of driving.