Opinion
9-16-1971
Raymond Lee DECKER, Petitioner and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, State of California, Respondent and Appellant. Civ. 38051.
Evelle J. Younger, Atty. Gen., Marilyn Mayer Moffett, Deputy Atty. Gen., for respondent and appellant. Feldman & Golde by Phillip Feldman, Van Nuys, for petitioner and respondent.
Raymond Lee DECKER, Petitioner and Respondent,
v.
DEPARTMENT OF MOTOR VEHICLES, State of California, Respondent and Appellant.
Sept. 16, 1971.
For Opinion on Hearing, see 101 Cal.Rptr. 387, 495 P.2d 1307.
Evelle J. Younger, Atty. Gen., Marilyn Mayer Moffett, Deputy Atty. Gen., for respondent and appellant.
Feldman & Golde by Phillip Feldman, Van Nuys, for petitioner and respondent.
FLEMING, Associate Justice.
The Department of Motor Vehicles suspended Raymond Lee Decker's driver's license for six months pursuant to Vehicle Code, section 13353 on the ground that Decker refused to submit to a chemical test to determine the alcoholic content of his blood after he was lawfully arrested for driving under the influence of intoxicating liquor. The superior court issued a peremptory writ of mandamus ordering the Department to set aside its suspension. The Department appeals.
The Facts
Decker was lawfully arrested for driving under the influence of intoxicating liquor on 8 April 1970. The arresting officer took Decker to the police station and advised him as follows: 'Mr. Decker, you are required by law to take one of three chemical tests of your choice, either of your blood, breath or urine. If you refuse to take one of these chemical tests of your choice your driving privilege--your driving privilege could be suspended for a period of six months.' Decker responded: 'Yah, I understand but they won't take my driver's license. I'm not going to take any of those tests.' No test was administered.
Findings
The Department of Motor Vehicles suspended Decker's license pursuant to section 13353(b). A Department referee found that Decker refused to take a test after he 'was told that his driving privilege would be suspended for six months if he refused to submit to a chemical test of his blood, breath or urine to determine the alcoholic content of his blood.'
The trial court made an independent review of the evidence and made its own findings of fact, as it was required to do. (Walker v. Dept. of Motor Vehicles, 274 Cal.App.2d 793, 795, 79 Cal.Rptr. 433.) It found that Decker was advised 'that failure to submit to such a chemical test could result in suspension of his driver's license for a period of six months,' that Decker was not advised that 'his license would be suspended if he refused to take the required chemical test,' that a reasonable person 'would not have understood the mandatory suspension requirements for such refusal,' and that Decker 'did not, in fact, understand the mandatory suspension requirements for such refusal.' (Emphasis added.)
Issue
Was the admonition given Decker sufficient to comply with the requirements of Vehicle Code, section 13353?
Discussion
There is substantial support in the record for the trial court's finding that Decker was warned he could have his license suspended if he refused to take a chemical test. The question than is one of law: what is the legal significance of that warning? Contrary to the conclusion of the trial court and of one other appellate court, we think the warning given Decker was sufficient to comply with section 13353.
The proceedings under section 13353 are civil, not criminal, in nature. (Funke v. Dept. of Motor Vehicles, 1 Cal.App.3d 449, 454, 81 Cal.Rptr. 662.) Moreover, section 13353 must be given a reasonable and common sense construction with a view to promoting rather than defeating its general purpose and the policy behind it. (Bush v. Bright, 264 Cal.App.2d 788, 792, 71 Cal.Rptr. 123.)
To require letter-perfect, comprehensive and technically complete warnings by policemen to suspected drunk drivers would defeat the general purposes of the statute: to obtain the best evidence of blood alcohol content and to inhibit intoxicated persons from driving on the highway. (Zidell v. Bright, 264 Cal.App.2d 867, 869-870, 71 Cal.Rptr. 111.) Thus in Kesler v. Dept. of Motor Vehicles, 1 Cal.3d 74, 81 Cal.Rptr. 348, 459 P.2d 900, the police officer was not required to advise the drunk driver that additional tests may be taken at his own expense, even though the statute so provides. And in Westmoreland v. Chapman, 268 Cal.App.2d 1, 74 Cal.Rptr. 363, the officer was not required to tell the drunk driver that a licensed technician was authorized to take a blood specimen from him, even though the statute so provides.
Moreover, police officers cannot give accurate legal advice in these circumstances. Section 13353 applies only where there has been a lawful arrest and where the police officer has reasonable cause to believe that the driver is under the influence of intoxicating liquor. These are determinations of law which cannot be authoritatively and conclusively made in the field by the police officer. At the time the warning is given, the police officer's flat assertion that the driver will have his license suspended is no more legally accurate than the statement made in this case, that the driver could have his license suspended.
The operative requirement of section 13353 is that the police officer inform the drunk driver that he is required by law to take one of three chemical tests. In addition, the drunk driver should be put on notice that a sanction for failure to take one of the three tests is a six-month suspension of his license. But the officer need not use the precise words of the statute. We believe that the warning given here was sufficient to convey the import of the statute to a reasonable man in light of the intent of the section and the circumstances in which the warning was given. Pedantic play with words (see Giomi v. Dept. of Motor Vehicles, supra; Janusch v. Dept. of Motor Vehicles, 276 Cal.App.2d 193, 80 Cal.Rptr. 726; Smith v. Dept. of Motor Vehicles, 1 Cal.App.3d 499, 81 Cal.Rptr. 800) has little relevance to the reality of the policeman explaining section 13353 to a drunk driver.
The judgment is reversed and the superior court is directed to make new findings and enter judgment in accordance with the views expressed herein.
ROTH, P. J., and COMPTON, J., concur. --------------- 1 In April 1970, Vehicle Code, 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 which under the influence of intoxicating liquor. Such person shall be told that his failure to submit to 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 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 the test after being requested by the officer, shall suspend the privilege to operate a motor vehicle for a period of six months.' 2 See Giomi v. Director, Depramtent of Motor Vehicles, 15 Cal.App.3d 905, 93 Cal.Rptr. 613 (hearing denied).