Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 30-2008-00118293 of Orange County, Gregory H. Lewis, Judge.
Fred Douglas Parker, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Jerald L. Mosley and Kenneth C. Jones, Deputy Attorneys General, for Defendant and Respondent.
OPINION
FYBEL, J.
Introduction
Fred Douglas Parker filed a timely petition for writ of mandate to challenge the two year revocation of his driving privilege by the Department of Motor Vehicles. The trial court denied Parker’s petition, and this appeal followed. We affirm. The trial court’s finding that Parker refused to consent to a chemical test for the presence of alcohol on his breath or in his bloodstream is supported by substantial evidence. Neither the legal presumption that anyone driving a motor vehicle has consented to chemical testing for the presence of alcohol, nor the constitutional right to remain silent permitted Parker to refuse to consent to chemical testing. Parker’s failure to consent to the testing was not vitiated by a forced blood draw, as both consent to and completion of the test are necessary to comply with California law.
Statement of Facts and Procedural History
On May 10, 2008, about 11:30 p.m., City of Orange Police Officer Osborn observed a car driving northbound on Lewis Street, weaving within its lane and straddling the center dividing line. Officer Osborn effected a traffic stop. Parker was the driver of the car, and Officer Osborn detected the odor of alcohol on Parker’s breath. Officer Osborn asked Parker if he had been drinking; Parker replied he had had “two beers.”
At the time of oral argument, we were informed by Parker’s daughter, Shamona Parker Bokelman, that Parker suffered a stroke in January 2010. Because he was unable to effectively communicate with the court, we permitted Parker Bokelman to appear at oral argument to speak for him, essentially as his interpreter. In this capacity, Parker Bokelman referred to statements Parker told her he had made to Officer Osborn indicating Parker’s willingness to undergo a blood test. Those new statements do not appear in the administrative record or in the appellate record, and we cannot consider them in this opinion.
City of Orange Police Officer McGowan responded to the scene and asked Parker if he had been drinking; in response, Parker stated he wanted to speak with his attorney. Parker refused to answer Officer McGowan’s questions or participate in the field sobriety test. Officer McGowan asked Parker to submit to a preliminary alcohol screening test, but Parker shook his head “no.”
Officer McGowan placed Parker under arrest for violation of Vehicle Code section 23152, subdivision (a). Officer McGowan then explained the implied consent laws and the chemical blood alcohol content (BAC) test options, and asked Parker if he would take a breath test to determine his BAC; Parker refused to answer. Parker also refused to answer when Officer McGowan asked if he would take a blood test.
Officer McGowan read aloud the chemical test refusal admonitions verbatim from the Department of Motor Vehicles’ DS 367 form, and asked Parker if he would take a BAC test; Parker again refused to answer. On the DS 367 form, Officer McGowan noted Parker’s refusal to answer. Officer McGowan explained to Parker that his silence would result in a refusal and cause a forced blood draw to be taken, and again asked Parker if he would submit to testing; Parker again refused to verbally respond and shook his head “no.”
Blood technician Rosio Campbell arrived on the scene and performed a blood draw on Parker. Parker’s BAC was determined to be 0.07 percent. Campbell testified Parker did not physically resist the blood draw, but he was uncooperative, shook his head “no, ” and said nothing the entire time she was there. Officer McGowan issued an administrative per se suspension order to Parker.
Parker was on probation on May 10, 2008, for a previous conviction for driving while under the influence; the terms of his probation required that he not drive with alcohol in his blood, and that he not refuse to submit to testing of his BAC.
An administrative hearing regarding Parker’s license suspension was held in July 2008. Parker waived his right to be present at the hearing and therefore did not testify. After the hearing, the Department of Motor Vehicles issued a notification of findings and decision, determining the following: “1) The peace officer had reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153, or Section 191.5 of the Penal Code. [¶] 2) You were placed under lawful arrest. [¶] 3) You were told that your driving privilege would be suspended or revoked if you refused to complete the required testing. [¶] 4) You did refuse or fail to complete the chemical test or tests after being requested to do so by a peace officer.” (The specific factual findings by the hearing officer will be discussed, post, as necessary to the discussion.) Because of his previous conviction for driving under the influence, Parker’s driver’s license was revoked for two years, pursuant to Vehicle Code section 13353, subdivision (a)(2). At Parker’s request, a departmental review was conducted; the review sustained the hearing officer’s decision.
Parker filed a petition for a writ of mandate in the Orange County Superior Court. After briefing and a hearing, the court denied Parker’s petition, and judgment was entered on July 1, 2009. Parker timely appealed.
On our own motion, we augment the record on appeal with the following documents, all of which were filed in Parker v. Director of the Department of Motor Vehicles (Super. Ct. Orange County, 2009, No. 30 2008 00118293): (1) petition for alternative writ of mandate, filed December 2, 2008; (2) petition for writ of mandamus, filed March 20, 2009; (3) answer to petition for writ of mandamus, filed April 9, 2009; (4) first amended answer to petition for writ of mandamus, filed April 13, 2009; (5) opposition to petition for writ of mandamus, filed May 5, 2009; and (6) order and judgment denying petition for writ of mandamus, filed July 1, 2009. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
Discussion
I.
Standard of Review
“In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, ‘“whether the weight of the evidence supported the administrative decision.”’ [Citation.] Here, as noted above, the trial court denied the writ. On appeal, we ‘need only review the record to determine whether the trial court’s findings are supported by substantial evidence.’ [Citation.] ‘“We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] 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.]” (Lake v. Reed (1997) 16 Cal.4th 448, 456-457.)
II.
Substantial Evidence Supports the Trial Court’s Finding That Parker Failed to Submit to a BAC Test.
In denying Parker’s petition, the trial court found, “[t]he administrative ruling was based upon substantial evidence. By shaking his head ‘No, ’ [Parker] failed to voluntarily take a blood alcohol test as requested.”
Parker argues that by applying for a driver’s license, he was deemed to have given consent to chemical testing of his BAC. “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 for an offense allegedly committed in violation of Section 23140, 23152, or 23153.... ” (Veh. Code, § 23612, subd. (a)(1)(A).)
The Vehicle Code has as its premise that a person lawfully arrested for driving under the influence of alcohol will consent to the testing procedures, in two ways. First, the individual must express a choice as to which type of test he or she will take. “If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice.... ” (Veh. Code, § 23612, subd. (a)(2)(A).) Second, the statute sets forth the consequence if an individual refuses to consent to the test. “If the person, who has been arrested for a violation of Section 23140, 23152, or 23153, refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the peace officer, acting on behalf of the department, shall serve the notice of the order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person. The notice shall be on a form provided by the department.” (Id., § 23612, subd. (e).)
If it was impossible to refuse to take a chemical test because the statute deems all individuals driving motor vehicles to have already given consent, the language of Vehicle Code section 23612, subdivision (e) would be superfluous. “‘Statutes must be interpreted, if possible, to give each word some operative effect.’ [Citation.] ‘We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous.’ [Citation.]” (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390.) Finally, Vehicle Code section 13353, subdivision (a) provides detailed information on the procedures to be followed “[i]f a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612.”
Uniform case law supports the trial court’s finding. “The principal issue on appeal is whether Miss Lampman’s silence in the face of Officer Patterson’s request to submit to a chemical test constituted a failure to submit to a test under Vehicle Code section 13353. We have concluded that Miss Lampman’s silence in the face of repeated requests that she submit to a chemical test and repeated requests that she choose a test to determine the alcoholic content of her blood constituted a failure to submit to a chemical test within the meaning of Vehicle Code section 13353.” (Lampman v. Department of Motor Vehicles (1972) 28 Cal.App.3d 922, 926.)
“The determining factor on the issue whether a motorist actually ‘refused’ to submit to a test of intoxication, within the meaning of Vehicle Code section 13353, is the fair meaning to be given to his response to the request that he submit to such test, and not his state of mind. [Citation.] A motorist’s silence in the face of a police officer’s repeated requests that he submit to a chemical test and that he choose a test to determine the alcohol content of his blood, constitutes a refusal to submit to a chemical test under section 13353. [Citation.]” (Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299.)
“[Eilinger’s] silence constituted a failure to submit to a test within the meaning of Vehicle Code section 13353. [Citation.] Too great a burden would be placed on officers if they had to determine the psychological state of each suspect driver’s mind.” (Eilinger v. Department of Motor Vehicles (1983) 143 Cal.App.3d 748, 752.)
Parker also argues he had a constitutional right to remain silent. In Schmerber v. California (1966) 384 U.S. 757, 765, and People v. Sudduth (1966) 65 Cal.2d 543, 546 547, the United States and California Supreme Courts determined that blood test and breath test evidence does not violate an individual’s right to remain silent, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. In each of the California appellate court cases cited ante, the driver’s silence when asked to submit to a chemical test was held to constitute a refusal to take the test. (Eilinger v. Department of Motor Vehicles, supra, 143 Cal.App.3d at p. 752; Buchanan v. Department of Motor Vehicles, supra, 100 Cal.App.3d at p. 299; Lampman v. Department of Motor Vehicles, supra, 28 Cal.App.3d at p. 926.) Parker did not have a constitutional right to remain silent when asked by Officer McGowan to submit to a chemical test.
Parker contends he did not refuse or fail to complete a chemical test of his BAC. Presumably, Parker is referring to the fact his blood was actually drawn and tested. This issue, too, has been determined against Parker as a matter of law. “In the case under review, there was no voluntary submission on the part of respondent to any of the blood alcohol tests offered by the arresting officer. The fact that a blood sample ultimately was obtained and the test completed is of no significance. Accordingly, there was no compliance with the provisions of [Vehicle Code] section 13353. The evidence unequivocally supports the department’s finding that respondent refused to submit to a test of his blood, breath or urine when requested to do so by the officer.” (Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 875; see also Eilinger v. Department of Motor Vehicles, supra, 143 Cal.App.3d at p. 752 [“Nor would Eilinger fare better if the officer had persisted in taking a test without her consent. The fact a blood sample may ultimately be obtained and the test completed is of no significance absent the consent of the defendant. The implied consent law requires consent and completion of the test”].)
Parker also argues the trial court was unable to review the certified administrative record because it was not in the trial court’s file. This argument is not supported by the record. The trial court’s docket shows the certified administrative record was lodged with the trial court on May 5, 2009. Because the record was lodged, not filed, it is not surprising that it could not be located in the court’s file when the court clerk prepared the record on appeal. Moreover, the stipulation to augment the appellate record with the administrative record, which was signed by Parker himself, includes the following language: “[T]he parties hereto Stipulate and Agree as Follows: [¶] That the Record on Appeal in this matter be augmented to include the May 5, 200[9], ‘Notice of Lodging of Certified Administrative Record’ and the documents attached thereto which are designated AR 0001 through AR 0122, that was not included in the Clerk’s Transcript. Copies of the documents to be added to the record are attached hereto.”
Disposition
The judgment is affirmed. Respondent to recover costs on appeal.
WE CONCUR: MOORE, ACTING P. J., ARONSON, J.