Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Mariposa County No. 9098. Wayne R. Parrish, Judge.
Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Scott H. Wyckoff and Mary Horst, Deputy Attorneys General, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Cornell, Acting P.J.
Appellant George Valverde, Director, Department of Motor Vehicles (DMV), found that Leland Bruce Lescher refused to take or complete a chemical test and suspended his driver’s license. Lescher petitioned the trial court for a stay of the suspension and a writ of mandamus. The trial court issued a stay and, after a hearing, granted the writ of mandamus. DMV appeals. We will affirm.
FACTUAL AND PROCEDURAL SUMMARY
On February 1, 2007, Lescher was stopped by California Highway Patrol Officer Brent Adams. Adams observed objective signs of intoxication and asked Lescher if he wanted to perform some field sobriety tests. Lescher replied, “No just take me to jail.” Adams arrested Lescher for violation of Vehicle Code section 23152, subdivision (a).
All further statutory references are to the Vehicle Code unless otherwise noted.
While waiting for a tow truck, Adams told Lescher he would have to submit to a chemical test. Lescher refused. On the way to the jail, Adams told Lescher that Mariposa County had a nonconsensual blood withdrawal policy. Once they arrived at the jail, Adams again asked Lescher to take a chemical test and Lescher refused. At that point, Adams “read verbatim” from the back of form DS 367, which sets forth the requirement of submitting to a chemical test and advises of the consequences of refusing to submit to a chemical test. This time Lescher agreed to take the breath test.
Adams administered a breath test and it registered a blood-alcohol content reading of .22 percent. Adams showed Lescher the result of the breath test and “basically right in [Lescher’s] face [said] I told you.” Adams admitted he “probably made a mistake” when he showed Lescher the result of the breath test. After this, Lescher became very agitated.
Adams filled out the DS 367 form, indicating that Lescher had agreed to submit to a breath test and the test result was .22 percent. Adams then signed the form under penalty of perjury, indicating that the sample was “obtained in compliance with Title 17 of the California Code of Regulations” (hereafter title 17).
Adams asked Lescher to take another breath test and Lescher refused. Adams did not read the DS 367 form to Lescher a second time or state that refusal to submit to a second breath test would result in a suspension of his license. Adams told Lescher, “I’ve already admonished you as to your requirements, will you take a blood test?” (Italics omitted.) Lescher indicated he wanted a lawyer and that he did not want to take a blood test but that he would not, however, resist the blood draw. Lescher did not resist when blood was drawn.
After Lescher refused the second test, Adams made a notation on the DS 367 form indicating “refused after first test” and “forced blood test.”
The DS 367 form does not state that a person must submit to two breath tests for there to be a valid and complete test. Adams testified at the administrative hearing that when giving an admonishment regarding chemical testing, “I read the form. I don’t have the form memorized.” Adams also testified, however, that it was a requirement that a person give “two samples that have to be within .02 [percent] of each other to be a valid performance of the test.” Adams said the requirement of two breath tests was “something that we tell them.”
The hearing officer found that Lescher had been admonished regarding the consequences of his refusing to submit to a chemical test and had refused to submit. Lescher’s license was suspended for one year.
Lescher petitioned the trial court for a writ of mandate compelling DMV to vacate the suspension and reinstate his driving privileges, and requested a stay of the suspension pending the decision of the trial court. A stay of the suspension was issued.
In his petition, Lescher maintained that he did not refuse to test after being admonished and he provided a breath test that was admissible against him, as demonstrated by Adams’s signature under penalty of perjury on the form. Lescher claimed that his refusal to take a second breath test was not an informed refusal and, in any event, he had cooperated in the blood draw.
In the trial court, the parties stipulated that the proper standard of review was an independent judicial review. Lescher contended there was no direct testimony from Adams that Adams informed Lescher that he had to submit to two breath tests or else be deemed to have refused to chemical test. Lescher argued (1) he could not be deemed to have refused to test when he submitted to the breath test after being admonished; (2) Adams signed the DS 367 form under penalty of perjury, indicating Lescher had submitted to chemical testing; and (3) Adams did not clearly inform him that he had to take two breath tests in order to satisfy the testing requirement. Lescher claimed that instead of informing him that he had to take a second breath test or risk having his license suspended, Adams requested that he submit to a blood test.
Lescher contended that section 23612, subdivision (a) does not require that two breath tests be taken. The code section does not specify that a second test need be taken. Lescher also argued that the one breath test satisfied the admissibility requirements. Additionally, Lescher pointed out that the criminal charge of refusing to submit to a chemical test had been dismissed.
DMV argued that the record showed that Lescher had twice refused to submit to chemical testing. First, when he refused a second breath test and, second, when he refused to submit to a blood test. Lescher replied that if Adams had said, “I need one more blow” instead of asking for a blood test, “we wouldn’t be here today.”
On January 18, 2008, the trial court issued findings and an order revoking DMV’s suspension of Lescher’s license. The trial court stated that the testimony at the administrative hearing regarding the sequence of events in the administration of the test did not convince the trial court that Lescher had refused. The trial court found that Lescher did submit to a breath test, the results of which were admitted in both the administrative hearing and the criminal proceeding.
DISCUSSION
DMV appeals the trial court’s revocation of the suspension, contending (1) Lescher refused to submit to chemical testing four times; (2) Adams was not required to advise Lescher again after the first breath test; and (3) nothing Adams did can be construed as officer-induced confusion.
I. Standard of Review
This court reviews the record to determine whether the trial court’s findings were supported by substantial evidence. We resolve all evidentiary conflicts and draw all reasonable inferences in favor of the trial court’s decision. (Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372 (Morgenstern).) The trial court’s legal determinations are reviewed de novo. (Ibid.)
II. Analysis
On appeal, DMV contends that Lescher refused to test no fewer than four times—twice before agreeing to a breath test and then twice after submitting to the first breath test. We disagree.
DMV claims that Lescher refused to test while waiting with Adams for the tow truck and again on the way to the jail. This contention was not before the trial court. It is being made for the first time here. In any event, nowhere in the record does it state that Adams admonished Lescher of the consequences of refusing to test before arriving at the jail and reading from the DS 367 form.
Adams testified he told Lescher he would have to submit to a chemical test, not that he informed him of the consequences of refusing to test. Adams never testified that he warned Lescher at any time prior to reading the DS 367 form that Lescher’s license would be suspended if he refused to submit to a chemical test. Adams further testified that he did not have the admonishments memorized and he did not read the form containing the admonishments to Lescher until arriving at the jail. This evidence would support a finding by the trial court that Lescher was not admonished properly before arriving at the jail. Absent a full and complete admonishment, Lescher cannot be said to have refused to submit to a chemical test. (Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354, 360, 363 (Thompson).)
We next address Lescher’s declining to provide a second breath test, which DMV argues constitutes a refusal to submit to chemical testing because regulations require two breath tests in order assure reliability. Title 17, section 1221.4, subdivision (a)(1) provides that a breath-alcohol analysis shall include analysis of two breath samples.
Neither section 23612 nor form DS 367 states that two breath samples are required for a valid test. Section 23612 specifies a blood or breath test in the singular form. Form DS 367 also states that either a breath or blood test is required, but refers to “TEST 1,” “TEST 2,” and “TEST 3” on the breath analysis.
Furthermore, Adams signed the DS 367 form under penalty of perjury, indicating that the breath test was obtained in compliance with the regulations under title 17.
After Lescher completed one breath test, Adams asked Lescher to provide another breath test. When Lescher declined, instead of informing Lescher that two breath samples were required, Adams informed him that he would have to submit to a blood draw.
Although Adams testified that it was a requirement that a person give “two samples that have to be within .02 [percent] of each other to be a valid performance of the test,” there was no evidence that Adams informed Lescher of this requirement. Adams said the requirement of two breath tests was “something that we tell them,” but never testified that he had told this to Lescher. When Lescher declined to provide a second breath test, Adams testified that he told Lescher, “I’ve already admonished you as to your requirements, will you take a blood test?” (Italics omitted.)
The DMV cites Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562 for the proposition that Adams was not required to admonish Lescher with the language of the DS 367 form a second time before asking Lescher to complete a second breath test. We agree. Adams, however, was under an obligation to avoid confusing Lescher by unequivocally informing Lescher that two breath tests were required to complete the test. Adams never directly testified that he informed Lescher of this requirement. Instead, Adams signed the DS 367 form indicating the test was complete and asked Lescher to submit to a blood test.
Adams’s clear statement that he relies on reading form DS 367 to admonish drivers, combined with Adams’s signature under penalty of perjury on form DS 367 that a breath test was completed pursuant to title 17 regulations, along with the lack of any clear testimony that Adams told Lescher he had to provide two breath samples in order to complete the test, provides substantial evidence to support the trial court’s decision.
Lastly, we address DMV’s claim that Lescher’s statement that he was not agreeing to a blood test, but not fighting it, constitutes a refusal.
The lack of a clear statement from Adams to Lescher that two breath samples were needed to complete a breath test supports a reasonable inference that Lescher was confused. He may well have had the impression that he had completed the required breath test. Once a driver has submitted to one test, he or she is not required to submit to a second test. (People v. Fiscalini (1991) 228 Cal.App.3d 1639, 1644.)
As we said in Thompson, “the burden is properly placed on the officer” to advise and admonish a driver fully “in a manner comprehensible to the driver.” (Thompson, supra, 107 Cal.App.3d at p. 363.) Resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the trial court’s decision, we conclude the decision was supported by substantial evidence. (Morgenstern, supra, 111 Cal.App.4th at p. 372.)
DISPOSITION
The January 18, 2008, order of the trial court is affirmed.
WE CONCUR: Dawson, J., Kane, J.