Opinion
B316567
08-29-2023
NANCY CATLIN BRYANT, Plaintiff and Appellant, v. STEVE GORDON, as Director, etc., Defendant and Respondent.
Law Offices of Myles L. Berman and Matthew Cargal for Plaintiff and Appellant. Rob Bonta, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Gabrielle H. Brumbach, Supervising Deputy Attorney General, and Victoria Jalili and Samuel Richman, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STCP02969, Mitchell Beckloff, Judge. Affirmed.
Law Offices of Myles L. Berman and Matthew Cargal for Plaintiff and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Gabrielle H. Brumbach, Supervising Deputy Attorney General, and Victoria Jalili and Samuel Richman, Deputy Attorneys General, for Defendant and Respondent.
WILEY, J.
The Department of Motor Vehicles suspended Nancy Catlin Bryant's driver's license for one year after she refused to take a chemical test of her breath or blood. Substantial evidence supports the challenged findings underlying this suspension, so we affirm. Statutory citations are to the Vehicle Code.
Bryant challenges her license suspension on two grounds. She claims no substantial evidence shows (1) that her arrest was lawful or (2) that she refused chemical testing.
On her first claim, Bryant argues there was insufficient evidence she was under the influence of alcohol specifically because the police investigation focused on alcohol, yet no one smelled alcohol at the time of her arrest, her breath was normal, and she did not admit drinking alcohol.
This argument stumbles over the considerable evidence that Bryant had been driving while intoxicated.
Police went to the scene of a traffic collision around 7:30 in the morning. Bryant had rear-ended a stopped car. The man whose car was hit called police because he thought Bryant was under the influence of alcohol or drugs. The first responding officer had the same reaction.
At the scene, Officer Hernandez saw Bryant's eyes were bloodshot and watery and her eyelids were droopy. At times, it looked like she was falling asleep. She swayed as she got out of her car and went to the sidewalk. Her gait was unsteady and her coordination poor. Her lower lip was "completely dried out" and had a thin white line on it, suggesting she was dehydrated after drinking alcohol. Her speech was slow and slurred. She had no idea what time it was and had difficulty recounting from where she came. She had trouble with field sobriety tests. Video shows much of this. Hernandez's reports and sworn statement disclosed the rest.
Bryant showed classic signs of alcohol intoxication. (See Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 102 (Espinoza); People v. McNeal (2009) 46 Cal.4th 1183, 1198.)
Bryant maintains she did not smell of alcohol. This argument misunderstands a review for substantial evidence. (See Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581 [we accept evidence supporting the trial court's order and disregard contrary evidence].)
In sum, substantial evidence supports the finding that police lawfully arrested Bryant. They had reasonable cause to believe she had been driving under the influence of alcohol. (See Espinoza, supra, 10 Cal.App.5th at pp. 92, 100-103; see also § 40300.5, subd. (a) [permitting warrantless arrests of persons involved in a car crash who are suspected of driving under the influence].)
On her second claim, Bryant attacks the finding that she refused to participate in alcohol testing. Her second claim has two prongs. Bryant argues the police officer's admonition was ineffective, incomplete, confusing, and contradictory. Next, she implies she did not refuse because no one directly asked her to take a breath or blood test. Both prongs of this argument are incorrect.
Substantial evidence shows Bryant, after receiving a proper admonition, refused to consent to alcohol testing.
As Bryant concedes and as the police video shows, Hernandez read Bryant the chemical test admonition from the relevant form-the Department's DS 367 form. He identified the name of the admonition for her. This admonition included a warning Bryant was required by law to submit to a chemical test, she could choose either a blood or breath test, and her driving privilege would be suspended for one year or revoked for two to three years if she refused or failed to complete one of the tests. This warning was proper. (See §§ 23612, subd. (a), 13353, subd. (d); Espinoza, supra, 10 Cal.App.5th at pp. 94 &114.) At the administrative hearing, Bryant's counsel conceded the officer gave the proper admonition.
As the trial court recognized, Bryant showed she understood the consequences of refusing by saying "uh huh" as Hernandez spoke about these consequences.
Bryant did not display confusion. When she had questions about things Hernandez said, she asked them.
Bryant later testified at the administrative hearing that she remembered the officer saying the test was required and she would lose her license if she did not take it. Bryant's appellate briefs do not acknowledge this concession, which implies a further concession: when a diligent advocate omits a pertinent point, it implies the advocate cannot answer it.
Goodman v. Orr (1971) 19 Cal.App.3d 845, 855-857 does not help Bryant, as it addresses an officer's duty when a driver manifests confusion induced by the officer. That did not happen here. Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354 similarly is unhelpful. There, noisy radio transmissions obscured part of the officer's admonition and the driver's response, making it unclear whether the communication was effective and whether the driver understood the admonition. (Id. at pp. 358-361.)
The video of Hernandez's exchange with Bryant underscores Bryant's lack of confusion. It also provides substantial evidence she refused to consent to alcohol testing. Bryant asked a question about the breath test. Hernandez confirmed "they cancel your license" if she refused this test. He noted she could refuse to take any tests. Bryant signaled this is what she wanted to do. Hernandez asked, "So you don't want that test?" Bryant said, "I know my lawyer would have a better answer"-after having been told correctly she had no right to talk to a lawyer before deciding on the tests. (See § 23612, subd. (a)(4).)
Bryant then directly refused, saying "I don't want to" and explaining, "I just don't want to self-incriminate myself."
Later at the police station, Hernandez tried to confirm, "You don't want to do any testing, right?" Bryant responded, "I would, but I'd like to talk to my lawyer first." This amounted to another refusal to test. (See Espinoza, supra, 10 Cal.App.5th at p. 104 [conditional consent to a chemical test constitutes a refusal].)
Bryant emphasizes Hernandez told her multiple times she did not have to take a test if she did not want to do so. This was after he had read the admonition and had reinforced the consequences of refusing to test. Hernandez's statements were factual, not confusing. A chemical test was required, but the officer could not force her to undergo it, although her refusal carried grave consequences. (See, e.g., People v. Valencia (2015) 240 Cal.App.4th Supp. 11, 21, 27.) Hernandez made clear Bryant could choose to refuse and suffer the repercussions-including suspension of her license.
DISPOSITION
We affirm the order and judgment denying Bryant's writ petition and award costs to the respondent.
We concur: GRIMES, Acting P.J., VIRAMONTES, J.