Opinion
Rehearing Denied May 5, 1969. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Herbert Davis, Deputy Atty. Gen., for respondent and appellant.
Hyman Gold, Encino, for petitioner and respondent.
THOMPSON, Associate Justice.
The Department of Motor Vehicles appeals from a judgment granting a peremptory writ of mandate to vacate its order suspending respondent's driver's license.
Respondent, having been lawfully arrested for driving while under the influence of intoxicating liquor, was informed by the arresting officers of his rights and obligations under Vehicle Code section 13353. He was told: 'You are requested 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. A refusal will result in the suspension of your driving privilege for a period of six months.' The request and advice were repeated several times. Respondent's consistent response was that he would submit to all three tests but not to only one of them. He was advised that the law provides a choice of three tests but not all three as a choice, and that his continued insistence upon all three tests would be treated as a refusal. Respondent remained adamant, and the arresting officer prepared an affidavit of refusal per Vehicle Code section 13353.
Thereafter appellant, Department of Motor Vehicles, acting upon the affidavit, gave notice of suspension of respondent's driver's license. At respondent's request, a Respondent duly filed his petition for writ of mandate with the superior court as provided in Code of Civil Procedure section 1094.5. That court found that respondent had not refused to submit himself to a chemical test as required by Vehicle Code section 13353 and issued its peremptory writ ordering the restoration of respondent's driver's license. The Department of Motor Vehicles then brought this appeal contending in effect that the pertinent finding of lack of refusal is not supported by substantial evidence.
Vehicle Code section 13353(b): 'If any such person refuses the officer's request to submit 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 his privilege to operate a motor vehicle for a period of six months. No such suspension shall become effective until 10 days after the giving of written notice thereof, as provided for in subdivision (c).'
We face the issue of the extent to which a licensed driver may qualify his consent to a required chemical test without in effect refusing to take it. In several cases it has been held that a conditional consent to a test is the equivalent of a refusal within the meaning of Vehicle Code section 13353. (Finley v. Orr, 262 Cal.App.2d 656, 667, 69 Cal.Rptr. 137; FALLIS V. DEPARTMENT OF MOTOR VEHICLES, 264 Cal.App.2d ----, 70 CAL.RPTR. 595, consent conditioned on presence of own physician while test administered; WESTMORELAND V. CHAPMAN, 268 Cal.App.2d ----, 74 CAL.RPTR. 363, consent conditioned on test being administered by licensee's physician; ENT V. STATE OF CALIFORNIA, DEPARMENT OF MOTOR VEHICLES, 265 Cal.App.2d ----, 71 CAL.RPTR. 726, consent conditioned on presence of attorney during test.) It is significant, however, that in each case in which it has been determined that a qualified consent was the equivalent of a refusal, the qualification imposed claimed a right not granted to the licensee by the statute.
Here the trial court determined that respondent, in conditioning his assent as he did, was in substance asserting a right so granted. That determination is adequately supported by the record before us.
Respondent stated that he would take all three tests provided by the statute but would not take only one of them. The inherent declination to indicate a choice from among the tests was not of itself a refusal. (JAMES V. STATE OF CALIFORNIA EX REL. DEPT. OF MOTOR VEHICLES, 267 Cal.App.2d ----, 73 CAL.RPTR. 452.) Under the facts here, neither was the insistence upon the additional two tests. Subparagraph (b) of Vehicle Code section 13354 provides: 'The person tested may, at his own expense, have a * * * person of his own choosing administer a test, in addition to any administered at the direction of a peace officer, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by a chemical analysis of his blood, breath or urine. The failure or inability to obtain an additional test by a person shall not preclude the admissibility in evidence of the test taken at the direction of a peace officer.'
Advance Report Citation: 267 A.C.A. 837.
Here respondent did not precisely assert his right under section 13354(b); in insisting upon the three tests he failed to add 'two of them to be performed by Dr. X at my expense.' The omission, however, was not of such a character as to con vert
A request for two additional of the tests to be performed by a physician of the licensee's choice at his expense is not of itself a departure from Vehicle Code section 13354(b). That subsection does not preclude a testing procedure which utilizes an analysis of more than one of the stated body substances.
The construction placed here upon Vehicle Code sections 13353 and 13354 comports with their legislative purpose. The raison d'etre for the statutory scheme is neither punitive nor the imposition of driver license suspension for the sake of suspension. Rather the legislation exists as a part of a fair, efficient, and accurate system of detection and prevention of drunken driving; to obtain the best evidence of blood-alcohol content at the time of the arrest of a person reasonably believed to be driving while intoxicated (ZIDELL V. BRIGHT, 264 Cal.App.2d ----, 71 CAL.RPTR. 111); and to avoid violence which may attend tests upon reluctant inebriates (BUSH V. BRIGHT, 264 Cal.App.2d ----, 71 CAL.RPTR. 123.) The result we reach here detracts not at all from the operation of a system to detect drunk drivers, to obtain the best evidence of blood alcohol content, and to avoid violence. A contrary result would apply the statute punitively.
Appellant argues that In re Koehne, 54 Cal.2d 757, 8 Cal.Rptr. 435, 356 P.2d 179 and In re Howard, 208 Cal.App.2d 709, 25 Cal.Rptr. 590, support the conclusion that respondent imposed an extra legal condition to his consent and did not merely assert a statutory right with respect to the test. Neither case does so. In Koehne, which is the more closely analogous of the two decisions to the instant case, there was present the factor missing from the case at bar--advice concerning the method to be employed by the suspect in arranging a chemical test. In holding that the defendant in Koehne had not been denied his right to a blood test pursuant to the 'Newbern rule' (In re Newbern, 175 Cal.App.2d 862, 1 Cal.Rptr. 80), the Supreme Court said (54 Cal.2d 757, 759, 8 Cal.Rptr. 435, 437, 356 P.2d 179, 181): '* * * It further appears that at the time of his arrests, at least on the two occasions where there is no dispute as to whether he requested blood tests, he was advised that he could make arrangements at his own expense. In these circumstances it cannot be successfully contended that petitioner was denied the rights here involved. Rather, it appears, petitioner failed to avail himself of rights which the arresting officers advised him were his.' In re Howard, supra, holds only that the right of an accused to arrange for a blood test must be exercised reasonably Cf. In re Martin,
Appellant argues, also, that the last sentence of section 13354(b) to the effect that the failure to provide an additional test does not preclude admissibility of any test actually given impels the conclusion that there was in the instant case a refusal to perform the obligation to take a test imposed by Vehicle Code section 13353 by the insistence upon the right to additional tests granted by section 13354. Both legislative history and logic work against this argument. Historically, sections 13353 and 13354 of the Vehicle Code were enacted contemporaneously as part of one legislative scheme. They are to be read together, the first as imposing obligations upon licensee and the latter as granting procedural rights correlative to those obligations. Logically, admissibility in a criminal trial of a test that may have been administered has no pertinency to a determination of whether a failure to give any test was the result of a refusal by the licensee. (See PEOPLE V. HANGGI, 265 Cal.App.2d ----, 70 CAL.RPTR. 540 where, in discussing the effect on a criminal prosecution of a failure to advise the defendant of his options under Vehicle Code section 13353, the court states: 'We see no connecting link between the provisions of § 13353 and § 23102.')
We conclude that the findings and conclusions of the trial court that respondent was here asserting a right granted him by the statute rather than refusing to perform an obligation imposed upon him are supported by the evidence and the law.
The judgment is affirmed.
WOOD, P. J., and LILLIE, J., concur.