Opinion
A130170
08-23-2011
MATTHEW KAMELAMELA, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County
Super. Ct. No. CPF-09-509934)
Matthew Kamelamela (appellant) appeals the denial of his petition for writ of mandate (Code Civ. Proc., § 1094.5) seeking to set aside the one-year suspension of his driving privilege by the Department of Motor Vehicles (DMV) for refusing to submit to a blood test to determine if he was driving under the influence of alcohol. He contends substantial evidence does not support the trial court's findings that he was under arrest when he refused the blood test and that his refusal to take a blood test was not caused by any head trauma or injury. We reject the contentions and affirm.
BACKGROUND
At 2:37 a.m. on April 9, 2009, San Francisco police officers were dispatched to the location of a single car rollover accident. When Officers Carrasco and Mourgos arrived at the scene they saw appellant, Amanda Euan and Ali Euan walking away from the car. Officer Rueca arrived at the scene and, after learning that appellant was the driver of the vehicle, immediately detained him and then maintained constant supervision of him pending further investigation. Rueca observed that appellant's face was sweaty, his eyes were bloodshot and watery, and his eyelids were drooping. After noting these "possible objective signs of intoxication," Rueca asked him some preliminary interview questions. Appellant did not answer some questions, answered "No" when asked "Have you been drinking since the accident?"; "Are you sick or injured?"; and "Do you have any physical impairment?"; and answered "Hell no!" when asked "Are you taking any prescription medicine?" When asked if he was a diabetic or epileptic appellant answered, "Yes I am," and when asked when he last ate, he answered, "What?" Rueca smelled a strong odor of alcohol on appellant's breath and described appellant's voice as "slurred, thick, slow and mumbled."
Appellant and his two passengers were transported to San Francisco General Hospital. Due to appellant's injuries and medical transport, he was unable to perform any field sobriety tests. Rueca accompanied appellant in the ambulance and remained with him while he was being treated at the hospital.
Rueca's sworn DS 367 (Rev. 12/2006) ["Chemical Test Refusal" form] (hereafter DS 367) states the following: At 3:15 a.m., he read appellant the chemical test admonition (Veh. Code, § 23612) and explained to appellant that because of his need for medical treatment his choice was limited to blood testing at the hospital. Paragraph 4 of the admonition expressly advised appellant, "Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence." When Rueca asked appellant if he would take a blood test, appellant replied, "Yeah." At 3:55 a.m. Mourgos administered a preliminary alcohol screening (PAS) test and observed appellant as having horizontal nystagmus, bloodshot/watery eyes, the odor of alcoholic beverage, an unsteady gait, and slurred speech. At 4:20 a.m., Rueca arrested appellant for driving under the influence. Rueca's police department "Driving Under the Influence" report form states that at or about 4:20 a.m. he read appellant the Miranda admonitions. At 4:30 a.m. appellant answered "Yeah" when asked if he understood the rights explained to him, and answered, "Get my lawyer" when asked if he wanted to talk. Rueca's "Blood Test Request By Peace Officer" form, executed by him at 4:30 a.m., states the phlebotomist was requested to obtain a blood sample from appellant; appellant was lawfully arrested for a violation of section 23152 or 23153; and appellant refused to sign the written consent for the blood draw. Next to phlebotomist Nazari's signature, the form states the time of the blood draw was 4:15 a.m. Rueca issued to appellant an administrative per se suspension/revocation order and temporary driver's license.
In pertinent part, the DS 367 admonition read to appellant stated:
"1. You are required by state law to submit to a chemical test to determine the alcohol and/or drug content of your blood.
"2. [] a. . . .
" [] b. . . .
" [] c. . . .
" [x] d. WHEN APPLICABLE: Since you need medical treatment, your choice is limited to blood test(s), the only test available at [San Francisco General Hospital, Mission Emergency Hospital].
"3. If you refuse to submit to, or fail to complete a test, your driving privilege will be suspended for one year or revoked for two or three years. . . .
"4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence.
"5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test.
"6. If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test."
All undesignated section references are to the Vehicle Code.
Miranda v. Arizona (1966) 384 U.S. 436.)
Rueca, the sole witness at the September 22, 2009 administrative hearing, confirmed that he read appellant the chemical test admonition at 3:15 a.m. After admonishing appellant that he was required to submit to a blood test, appellant responded, "Yeah" to taking the blood test but then changed his mind and refused. Rueca was present when Mourgos conducted the PAS test; and, based on the test results, Rueca determined he had probable cause to believe appellant was under the influence of alcohol. Thereafter, appellant physically refused to consent to a blood test. Rueca then read him the admonition again, informing him that if he refused to take or failed to complete a chemical test his driving privilege would be suspended. Appellant then made no statements but refused to physically cooperate or sign the consent form for the blood test. He was then restrained and the forced blood draw was completed at 4:15 a.m. Rueca confirmed that he formally placed appellant under arrest at 4:20 a.m.
Rueca testified that an hour elapsed between the time of appellant's admonition and the forced blood draw because it took that much time for the phlebotomist to arrive. During that time appellant was sweating, had slurred, thick speech, nystagmus and complained of pain "all over." While lying on the gurney prior to the blood draw, appellant moved in and out of consciousness. Appellant was treated for head and spinal injuries. Hospital personnel immobilized appellant's neck because they were concerned of the possibility of spinal injuries due to the violent nature of the vehicle crash. Appellant was "very agitated" and removed the neck brace against the advice of medical staff. Rueca said appellant was not "in possession of all his faculties after the accident," and it was possible he was in shock. However, appellant was conscious at 3:15 a.m. when Rueca read him the section 23612 admonition and he initially agreed to take the blood test. Sometimes appellant would "pass out" while talking to Rueca, and Rueca would wait for him to regain consciousness. Sometimes, while appellant's eyes were closed, he would nod in reply to Rueca's statements. While reading appellant the admonition, Rueca made sure appellant was conscious. Reuca explained that the entire time he was with appellant in the hospital appellant was under medical care. Appellant continued to receive medical treatment at the hospital for head and spinal injuries and was subsequently released and booked.
Rueca explained that when he described appellant as "passing out" he did not know if appellant was unconscious; appellant may have fallen asleep.
Officer Dilag's unsworn traffic collision report provides a slightly different version of the events. It states: "Based on the gathered facts which supports that [appellant] was the driver of [the vehicle involved in the accident], his objective symptoms of intoxication, his answer's to . . . Rueca's interview questions and the unsatisfactory result from the PAS, I placed [appellant] under arrest for driving under the influence . . . . [¶] Appellant refused to consent to a blood test implied by his silence. . . .
. . . Rueca advised [appellant] that because of his refusal to consent to a blood test, he was now subject to a non-consensual blood draw by a trained and qualified phlebotomist. Although [appellant] refused to consent to a blood test, . . . Rueca asked [appellant] if he would cooperate and not resist the phlebotomist when he or she collects his blood. . . . Rueca advised [appellant that] without his cooperation, he would be restrained by hand to the hospital gurney on which he was laid . . . due to his medical and physical state while the non-consensual blood draw was completed. . . . [¶] . . . [Appellant's] blood was drawn at 0415 hrs by phlebotomist Nazari . . . ."
The DMV hearing officer made the following findings: First, the responding officers had reasonable cause to believe that appellant was driving a motor vehicle under the influence. Second, Rueca lawfully arrested appellant at 4:20 a.m. Third, appellant was told that his driving privilege would be suspended or revoked if he refused to complete the required chemical test. Fourth, appellant refused to consent to a blood test. Finding Rueca's testimony credible and citing a lack of supporting evidence by appellant, the hearing officer rejected appellant's assertion that due to his unconsciousness, he was unable to consent to or refuse consent to the blood test. Appellant's driver's license was suspended for one year for failing to submit to the blood test. (§ 13353.)
On October 30, 2009, appellant filed his petition for writ of mandate arguing substantial evidence did not support the findings that appellant: (1) drove while under the influence; (2) was lawfully arrested before submitting to the blood test; and (3) refused the request to complete a chemical test.
At the conclusion of the writ of mandate hearing the trial court stated, "as we all know, custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is [led] to believe as a reasonable person that he is so deprived. And here you have a police officer that has been with [appellant] and is now commanding him to submit to a blood test. [¶] The form that he read to him clearly indicates that he is under arrest and a reasonable person under the circumstances would believe that he is so, or is under arrest."
The trial court's order denying the petition for writ of mandate states, "The record reflects that . . . Rueca had reasonable cause to believe that [appellant] was driving under the influence. [Appellant] was under arrest at 3:15 a.m. when . . . Rueca read [paragraph 4 of] the DS 367 admonition to [appellant]. . . . After hearing the admonition, a reasonable person would believe he was in custody. [R]ueca described how [appellant] agreed to the blood test, but afterward became obstreperous and moved away from the phlebotomist, refusing the test. No compelling evidence supports head trauma as a reason for [appellant's] actions."
Appellant timely appealed the judgment denying the petition for writ of mandate and awarding the DMV its filing fees.
DISCUSSION
I. Standard of Review
Where a driver petitions for a writ of administrative mandate following an order of suspension of his driver's license, the superior court is required to determine, based on the exercise of its independent judgment, whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456 (Lake);Code Civ. Proc., § 1094.5, subd. (c).) " 'In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.' [Citation.]" (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 82 (Garcia).)The trial court's review is confined to the record of the administrative hearing. (§ 13559, subd. (a), Garcia, at p. 82.)
On appeal, we independently review the record to determine whether substantial evidence supports the trial court's findings. (Garcia, supra, 185 Cal.App.4th at p. 82.) In doing so we resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision. (Lake, supra, 16 Cal.4th at p. 457.) " ' "We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]" ' [Citation.]" (Ibid.)We review de novo the trial court's legal determinations. (Ibid.)
II. Substantial Evidence Supports the Finding That Appellant Was Arrested Prior to Refusing to Submit to a Chemical Test
Under the implied consent law, "If a person is lawfully arrested for driving under the influence of alcohol, he or she is deemed to have given his or her consent to chemical testing of his or her blood or breath to determine blood-alcohol content. (§ 23612, subd. (a)(1)(A).) A driver lawfully arrested for driving under the influence of alcohol has the choice of a breath or a blood test, and the arresting officer shall inform the driver of that choice. (§ 23612, subd. (a)(2)(A).) 'If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test.' (Ibid.)A person who refuses to submit to, or fails to complete, a chemical test under section 23612 is subject to suspension of his or her driving privileges, among other sanctions. (§ 13353, subd. (a)(1).) The officer shall tell the arrestee that his or her failure to submit to, or failure to complete, the required chemical testing will result in a fine and suspension or revocation of driving privileges. (§ 23612, subd. (a)(1)(D).)" (Garcia, supra, 185 Cal.App.4th at p. 81.)
Before the DMV may suspend a person's driver's license for failing to submit to a chemical test, it must make four findings: (1) the officer had reasonable cause to believe the driver was driving under the influence; (2) the driver was arrested; (3) the driver refused to submit to or complete the test; and (4) the driver was notified that his or her driver's license would be suspended if he or she failed to submit. (§ 13353, subd. (d); Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757-758 (Hughey).)If any one of these requirements is not met, the DMV's driver's license suspension must be reversed. (Janusch v. Department of Motor Vehicles (1969) 276 Cal.App.2d 193, 196.)
Appellant contends it is undisputed that he was not formally arrested until after his blood was drawn and, under the totality of the circumstances, he was not constructively arrested prior to the blood draw. Thus, he argues he had no obligation to submit to a blood test under the implied consent law.
Appellant notes that Rueca's testimony and reports reveal that appellant's blood was drawn at 4:15 a.m. and he was arrested at 4:20 a.m. He asserts that he could not have been constructively arrested at 3:15 a.m. when he was read the chemical test admonition by Rueca, because at 3:55 a.m. Mourgos administered the PAS test to determine whether appellant should be arrested. He also asserts that based on the language of the chemical test admonition read to him by Rueca, a reasonable person in his condition, slipping in and out of consciousness, would not have known he was under arrest.
Appellant notes the PAS admonition contained on Rueca's printed police department driving under the influence report states, "I am requesting that you take a [PAS] test to further assist me in determining whether you are under the influence of alcohol or drugs, or a combination of alcohol or drugs. This is not an implied consent test. If arrested, you will be required to give a sample of your blood, breath or urine for the purpose of determining the actual alcohol/drug content of your blood." The record does not establish whether Mourgos read this admonition to appellant before administering the PAS test.
California courts determine whether there has been an arrest "by looking to the essential elements of taking into custody, and actual restraint or submission to custody." (Ormonde v. Department of Motor Vehicles (1981) 117 Cal.App.3d 889, 892 (Ormonde);see also Pen. Code, §§ 834, 835.) " '[C]ustody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.' [Citation.]" (People v. Parker (1978) 85 Cal.App.3d 439, 443.) "Lawful custody is the imposition of such restraint or confinement under color or authority of law. [Citation.]" (People v. Nicholson (2004) 123 Cal.App.4th 823, 832.) "Custody is an objective condition, and is not solely dependent upon the subjective intent of the interrogator to arrest the suspect. [Citation.]" (People v. Parker, at p. 443.)
In Ormonde, after stopping the driver's vehicle, the police officer administered a set of field sobriety tests which the driver failed. The officer told the driver he was being detained for possible drunk driving and transported him to the police station for chemical testing. (Ormonde, supra, 117 Cal.App.3d at p. 892.) On the way to the station, the officer told the driver about the chemical tests and that he could lose his driver's license if he refused to take one of the tests. On appeal, the driver asserted he was detained, but not arrested, because the officer told him he was "detain[ed]" for possible drunk driving. (Ibid.)The Court of Appeal stated, "We see no purpose in adding magic words to the apprehension of drunk drivers," and upheld the trial court's finding that the driver was arrested at the stop site and knew then that he was arrested. (Id. at p. 893.)
Here, after arriving at the accident scene and learning that appellant was the driver of the vehicle, Rueca immediately detained him and maintained constant supervision of him pending further investigation. Rueca observed that appellant had bloodshot and watery eyes, smelled of alcohol, and had an unsteady gait and slurred speech. Rueca then asked him some preliminary interview questions, some of which he answered. Due to appellant's medical condition, no field sobriety tests were attempted and appellant, accompanied by Rueca, was transported by ambulance to the hospital. At the hospital, at 3:15 a.m. Rueca advised appellant he was required to submit to a chemical test and due to his need for medical treatment, his choice was limited to a blood test. Appellant agreed to the blood test. At 3:55 a.m. Mourgos conducted the PAS test, and based on the results Rueca determined he had probable cause to believe appellant was under the influence of alcohol. Appellant then physically refused to consent to a blood test and Rueca again read him the chemical test admonition, informing him that if he refused or failed to complete a chemical test, his driving privilege would be suspended. Appellant then made no statement, but physically refused to cooperate with the phlebotomist and refused to sign the consent form. Thereafter, at 4:15 a.m. the forced blood draw took place.
Appellant concedes that he could have been arrested at the scene, but was not.
This sequence of events, from the arrival of Rueca at the accident scene to his second reading of the chemical test admonition, supports an inference that appellant was deprived of his freedom of action in a significant way before he refused the chemical test. Appellant failed to produce any medical evidence establishing his lack of capacity to understand that he was under arrest when Rueca read him the chemical test admonition. Rueca testified that while reading appellant the chemical test admonition, he made sure appellant was conscious and at times appellant nodded in response. This supports the inference that appellant should have known he was under arrest when Rueca read him the chemical test admonition.
We need not address the trial court's finding that appellant was in custody upon first being admonished at 3:15 a.m. because substantial evidence supports the trial court's finding that appellant was under arrest before refusing to submit to the blood test.
Appellant relies on People v. Mosely (1999) 73 Cal.App.4th 1081 (Mosely)and two federal cases cited therein in arguing that his physical custody for purposes of medical treatment was not the equivalent of a custodial arrest. Mosely considered whether the defendant was in custody for purposes of Miranda warnings. The police responded to a shooting scene and entered an ambulance inside which the wounded defendant was still bleeding and being treated. The officer asked the defendant what had happened to him and how he had been shot; the defendant gave a lengthy response and was then transported to the hospital. (Mosely, at pp. 1085-1086.) The issue on appeal was "whether a person who is in the physical custody and care of medical personnel such as paramedics and who is being treated in an ambulance for a gunshot wound at the time of an interview with a police officer should be considered 'in custody' " for purposes of Miranda. (Mosely, at p. 1089.) The Mosely court concluded that any restraint on the defendant's freedom of action was caused by the need to treat his gunshot wound, which was still bleeding, and he was being actively treated during the interview. The court also noted the defendant had not been placed under arrest, the interview was in view of and in the presence of the treating medical personnel, the questioning was neither accusatory nor threatening, the defendant was not handcuffed, no guns were drawn and the defendant was about to be transported to a hospital, not a jail or police station. The court concluded that, under the totality of the circumstances, a reasonable person in the defendant's position would not have believed he was in police custody. (Id. at p. 1091.)
Appellant notes that he was not arrested at the accident scene and argues that Rueca's accompanying him in the ambulance constituted a detention, not an arrest. He also notes that medical personnel treated him while Rueca was present with him in the ambulance and at the hospital. He asserts that, as in Mosely, he was not handcuffed, no guns were drawn and he was at the hospital, not a jail or police station.
Mosely is distinguishable. First, Rueca contacted appellant at the accident scene, detained him, and asked him some preliminary interview questions before summoning the ambulance and accompanying him to the hospital. Second, the chemical test admonition refers to the requirement that appellant submit to chemical testing and stated, in part, "Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence." Thus, unlike Mosely, substantial evidence supports an inference that appellant was under arrest before his refusal to submit to the blood test. We affirm the trial court's finding.
III. Substantial Evidence Supports the Finding That Appellant Did Not Lack the Capacity to Refuse the Blood Test
Appellant also contends the evidence establishes that he lacked the capacity to refuse a chemical test because his "unconscious condition rendered him incapable of withdrawing the consent he had impliedly given."
Appellant asserts the trial court's order, which states "[n]o compelling evidence supports head trauma as a reason for [appellant's] actions," is erroneous because proof of head trauma is not required to establish incapacity to consent to a chemical test under section 23612, subdivision (a)(5). Although the trial court specifically found no evidence of head trauma as establishing incapacity to consent, appellant framed the issue at the administrative hearing and in the trial court more generally, that is, due to his unconsciousness and injuries resulting from the accident he lacked the capacity to consent. We, therefore, deem the issue before us to be whether substantial evidence supports a finding that by virtue of unconsciousness or other condition appellant lacked the capacity to refuse a blood test.
Section 23612 provides, in part: "A person who is unconscious or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent . . . ." (§ 23612, subd. (a)(5).) Appellant had the burden of proving he was incapable of refusing consent to a blood test, a fact essential to his defense. (Evid. Code, § 500.)
In support of his argument, appellant relies on Hughey, supra, 235 Cal.App.3d 752. In that case, a motorcyclist involved in an accident was arrested for driving under the influence. He was uncooperative and refused medical care. Although no head injuries were observed by the arresting officer or ambulance or fire personnel, he was " 'in and out,' meaning he went from responsive to the irrational, and 'up and down,' meaning he would go from the calm to the belligerent." (Id. at p. 755.) When read the chemical test admonition, the officer was not sure the motorcyclist understood it and the motorcyclist made a comment that made no sense to the officer. After his release from jail, he was hospitalized and treated for a skull fracture; his hospital records were introduced at the license revocation hearing. (Id. at p. 756.) A neurologist testified the motorcyclist had suffered a serious head injury during the accident, which would account for his bizarre combative behavior and would have made it difficult to have understood the officer's admonition and the significance of his refusal to submit. The neurologist also opined it was unlikely that alcohol caused the behavior. (Ibid.) The Hughey court noted, a "self-induced condition rendering the driver incapable of understanding and refusing to submit to a test, particularly if the condition results from alcohol consumption, does not excuse failure to take a test." (Id. at p. 759, and cases cited therein.) However, it concluded the evidence supported the finding that the motorcyclist was rendered incapable of refusing to submit to a chemical test by reason of his head injury and that alcohol was not a cause his mental state following the accident. (Id. at p. 760.)
Here, appellant presented no evidence regarding his condition. Rueca testified that appellant complained of pain "all over" and his treatment for head and spine injuries included a neck brace. Rueca described appellant as "very agitated" and not "in possession of all his faculties after the accident." Appellant moved in and out of consciousness, and sometimes would "pass out" while appellant was reading him the chemical test admonition. However, Rueca said appellant was conscious at 3:15 a.m. when Rueca read him the chemical test admonition and he agreed to the blood test. Rueca said appellant sometimes nodded in response to Rueca's statements, and after reading him the admonition a second time, appellant made no statements but physically refused to sign the consent form or give the phlebotomist his arm for the blood draw. Rueca said it was "possible" that appellant suffered a concussion and was in shock.
Although appellant likens the instant case to Hughey, that case is distinguishable because, here, no medical evidence was presented establishing that appellant's condition resulted from something other than his alcohol consumption. Moreover, no evidence established that at the time appellant physically refused to submit to the blood test he was incapable of understanding Rueca's admonition and the significance of his refusal to submit. Substantial evidence supports the finding that appellant did not lack the capacity to refuse the blood test.
DISPOSITION
The judgment is affirmed.
SIMONS, J. We concur. JONES, P.J. NEEDHAM, J.