Opinion
A120238
7-30-2008
STEPHEN EYRE BALDOCCHI, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.
Not to be Published
The Department of Motor Vehicles (the DMV) suspended Stephen Eyre Baldocchis (Baldocchi) drivers license for his refusal to complete a breath or blood test after he was arrested on suspicion of driving under the influence of alcohol. Baldocchi filed a petition for a writ of administrative mandate asking the trial court to compel the DMV to vacate its order. The trial court denied the petition. Baldocchi appeals from that denial and contends his license should not have been suspended because: (1) he satisfied his legal obligation to submit to a chemical test by completing a Preliminary Alcohol Screening (PAS) test; and (2) the police failed to properly admonish him about the legal effect of refusing to submit to a field PAS test. We reject his contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are based on the transcript of the administrative hearing and documents in the administrative record.
On April 17, 2007, at about 11:30 p.m., San Rafael police officer Eric Huot was on patrol when he saw a white Chevrolet pickup truck on the road without tail lights on, in violation of Vehicle Code section 24600, subdivision (b). Huot stopped the truck and spoke to the driver, Baldocchi, who smelled of alcohol, had bloodshot eyes and "thick and slurred" speech, and admitted he had been drinking. Baldocchi failed a series of field sobriety tests, including a field PAS test that detected blood alcohol levels of .155 and .148. Huot arrested Baldocchi on suspicion of driving under the influence of alcohol and "explained implied consent" to him. Baldocchi selected the breath test.
All further statutory references are to the Vehicle Code unless otherwise stated.
A PAS test is a field sobriety test that officers may use as an investigative tool to help them detect the presence or concentration of alcohol based on a breath sample and to determine whether there is reasonable cause to believe that a person was driving a vehicle under the influence of alcohol. (§ 23612, subd. (h).)
At the jail, Baldocchi blew into a breathing test device four times, but without enough volume or force to complete the test. Baldocchi refused to make a fifth attempt, stating, "I blew four times and thats enough." Huot admonished Baldocchi regarding the consequences of refusing the test by reading "the chemical test refusal form verbatim," and asked if he would take a breath or blood test. Baldocchi responded "no" to both questions. Huot seized Baldocchis drivers license and served him with a license suspension order.
At an administrative hearing on June 21, 2007, Baldocchi did not present any evidence but his attorney argued he should not have been required to complete a breath test because he submitted to a field PAS test before his arrest, and because the officer improperly admonished him regarding the consequences of taking a field PAS test. The DMV affirmed the order and suspended Baldocchis drivers license for one year. Baldocchi filed a petition for writ of mandate in the trial court, which the court denied.
DISCUSSION
Californias implied consent law provides that "[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" on suspicion of driving under the influence of alcohol. (§ 23612, subd. (a)(1)(A).) Thus, the DMV may suspend a persons drivers license if it finds: (1) an officer had reasonable cause to believe the person was driving under the influence; (2) the driver was arrested; (3) the driver refused to submit to or complete a chemical test; and (4) the driver was notified that his driving privileges would be suspended if he refused to submit. (§ 13353, subd. (a); Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757-758.)
"In ruling on an application for a writ of mandate following an order of suspension . . ., a trial court is required to determine, based on its independent judgment, ` "whether the weight of the evidence supported the administrative decision." " (Lake v. Reed (1997) 16 Cal.4th 448, 456-457, quoting Gananian v. Zolin (1995) 33 Cal.App.4th 634, 638.) "On appeal, we `need only review the record to determine whether the trial courts findings are supported by substantial evidence. " (Id. at p. 457, quoting Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10.) In a case in which the pertinent facts are not in conflict and the only issues presented are an interpretation of a statute or regulation, we are not bound by the trial courts legal conclusions. (Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1925-1926.)
Baldocchis completion of a field PAS test did not satisfy his obligation to
submit to a chemical test under the implied consent law.
As noted, a PAS test is a field sobriety test that officers may use to assist them in determining whether a person was driving under the influence of alcohol. (§ 23612, subd. (h); see also People v. Bury (1996) 41 Cal.App.4th 1194, 1198 (Bury).) "A PAS test is differentiated from mandated chemical testing of a suspects blood-alcohol level . . . after a lawful arrest under the implied consent law," (Bury, supra, 41 Cal.App.4th at p. 1198); thus, a persons obligation to submit to a test under the implied consent law "is not satisfied by the person submitting to a preliminary alcohol screening test" (§ 23612, subd. (i), emphasis added). People v. Wilson (2003) 114 Cal.App.4th 953, 959 (Wilson) explained the need for a post-chemical test even where a PAS test result was available and admissible, noting that the legislature, in enacting section 23612, 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." (Wilson, supra, 114 Cal.App.4th at p. 960.) In rejecting the defendants argument that evidence of a blood test result forcibly obtained from him should have been suppressed because his field PAS test result was admissible at trial, Wilson held: "In the absence of any evidence to the contrary, we must accept the Legislatures implicit finding that the [PAS and chemical] 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." (Ibid.)
People v. Williams (2002) 28 Cal.4th 408, 418, held that a field PAS test result is admissible in court to prove a criminal defendants guilt if a proper foundation is laid.
Baldocchi argues that Wilson "is no longer good law" and does not apply to his case because recent technological advances in devices used to conduct PAS tests have rendered results obtained from those tests "scientifically equivalent" to those obtained from post-arrest chemical tests. Specifically, he states that a new device known as the Evidentiary Portable Alcohol System (EPAS), which is now being used by "many law enforcement agencies in California" to test for and detect accurate blood alcohol levels at the time of the traffic stop as well as after the arrest, "may have been" used in his case, and that if it was, his test results obtained from the EPAS device were just as reliable as results from the post-arrest chemical test he failed to complete would have been.
The argument fails because it is based on speculation that an EPAS device "may have been" used in this case. As the trial court found, "[n]othing in the record suggests that Officer Huot used an evidentiary portable alcohol system (EPAS), rather than a preliminary alcohol screening (PAS) test, before petitioners arrest." In fact, the field test conducted at the scene of the investigation was referred to in the police report as a "PAS test," in contrast to the device used to conduct the post-arrest chemical test at the jail, which was referred to in the report as "E.P.A.S." Because there is no evidence that an EPAS device was used to conduct the preliminary test in this case, Baldocchis comments regarding technological advances and the reliability of an EPAS device provide no support for his position that he should not have been required to submit to a post-arrest chemical test.
Huot adequately admonished Baldocchi regarding the field PAS test.
Baldocchi argues that even if his failure to complete a post-arrest chemical test constitutes a refusal, "it was still improper for the DMV to uphold the suspension action in this matter" because "a proper PAS admonition" was not given.
Section 23612, subdivision (i), requires an officer who decides to administer a field PAS test to advise the motorist of three things: (1) that the officer "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"; (2) that "the persons obligation to submit to a blood, breath, or urine test, as required by [the implied consent law], for the purpose of determining the alcohol . . . content of that persons blood, is not satisfied by the person submitting to a preliminary alcohol screening test"; and (3) that the person has a "right to refuse to take the preliminary alcohol screening test." "If [a field PAS] 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." (Bury, supra, 41 Cal.App.4th at p. 1206.)
According to Baldocchi, the PAS admonition that Huot read to him stated: "I am requesting that you take a preliminary alcohol screening test to further assist me in determining whether you are under the influence of alcohol. You may refuse to take this test; however, this is not an implied consent test and if arrested, you will be required to give a sample of your blood, breath, or urine for the purpose of determining the actual alcoholic and drug content of your blood." All three advisements required by section 23612 are included in the above admonition.
Baldocchi asserts the admonition is nevertheless "confusing" because it can lead a reasonable person to believe that his or her obligation to submit to chemical testing is satisfied by submitting to a field PAS test. The plain language of the admonition is clear, however, that "if arrested," as Baldocchi was, "you will be required to give a sample of your blood, breath, or urine for the purpose of determining the actual alcoholic and drug content of your blood." Baldocchi has provided no authority for his position that an advisement is "confusing" or fails to comply with section 23612 if it does not state explicitly that this unqualified obligation applies whether or not the person submitted to a field PAS test.
Further, as the trial court found, there is no evidence suggesting that Baldocchi was confused by the admonition. In fact, the record reveals the opposite. The police report does not show that Baldocchi asked any questions or expressed any confusion regarding the field PAS test. He initially agreed to take a breath test at the jail and never expressed a mistaken belief that he did not have to take the test because he had already completed a field PAS test. After Huot explained to him the consequences of refusing to take a chemical test and asked him to take a blood test, Baldocchi refused that test as well. Finally, at the time he was arrested by Huot, Baldocchi had previously been convicted of driving under the influence of alcohol three times, suggesting he was familiar with his rights and obligations regarding field PAS and chemical tests. Baldocchi has not shown that the field PAS admonition he was given improperly misled him into believing he was not required to take a post-arrest chemical test. Thus, his failure to complete the chemical test constituted a refusal for which suspension of his drivers license was proper.
Baldocchis driving record was admitted into evidence at the DMV hearing, over his attorneys objection. Baldocchi does not argue on appeal that the record was improperly admitted.
DISPOSITION
The judgment denying the writ of mandate is affirmed.
We concur:
Pollak, J.
Jenkins, J.