Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 2645753
Siggins, J.
Kory Lawrence Erland Patterson timely appeals from the superior court’s denial of his petition for writ of mandate that sought an order requiring the Department of Motor Vehicles (DMV) to vacate its suspension of Patterson’s driver’s license. Patterson argues that he did not refuse to take a chemical test under the implied consent law when he was arrested for driving under the influence of alcohol. We conclude that Patterson’s silent refusal to state whether he would submit to a breath or blood test constitutes a refusal to submit to a chemical test that may be punished under Vehicle Code section 13353. Thus, we affirm.
All further statutory references are to the Vehicle Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 21, 2008, at approximately 9:05 a.m., California Highway Patrol Officer Randall Wayne stopped Patterson for driving his truck with an expired registration tab. Officer Wayne advised Patterson of the reason for the stop, and obtained his license, registration and proof of insurance. The officer observed that Patterson’s eyes were red and watery and that he appeared to be “groggy and moved slow.” Officer Wayne asked Patterson if he had had anything to drink, and Patterson said he had five or six beers the night before. Officer Wayne told Patterson to step out of his car and administered various field sobriety tests, including a roadside preliminary alcohol screening (PAS) breath test, which showed Patterson’s blood alcohol concentration to be more than the legal limit of 0.08 percent. Prior to administering the PAS breath test, Officer Wayne explained to Patterson that the PAS breath test was a field sobriety test, and if arrested Patterson would be required to submit to a chemical test.
Based on the results of the field tests, Officer Wayne arrested Patterson for driving under the influence. He gave Patterson the required implied consent admonition and asked him to choose a chemical test. Patterson was silent. Officer Wayne repeated his request, and was again met with silence. He then advised Patterson that his silence would be considered a refusal to submit to a chemical test. Patterson remained silent and was transported to the Napa County Department of Corrections, where his blood was drawn. The chemical analysis of the sample showed Patterson had a blood alcohol level of 0.08 percent.
The DMV suspended Patterson’s driver’s license for two years, pursuant to sections 23152, subdivision (a) and 13353.3, subdivision (b)(2), for driving under the influence and refusal to submit to a chemical test.
Patterson only challenges the suspension for his refusal to submit to a chemical test. If the suspension was solely for driving under the influence, it would have been for one year, not two.
Patterson requested an administrative hearing to determine if his suspension was proper. (§ 13557, subd. (b)(1).) At the hearing, Patterson contended his silence could not constitute a refusal because he had later permitted the phlebotomist to draw his blood. The DMV upheld the suspension. It found that: Officer Wayne had reasonable cause to believe Patterson was driving under the influence; Patterson was placed under arrest; and he was properly admonished and refused a chemical test.
On November 10, 2008, Patterson filed a petition for writ of administrative mandate in the superior court. On March 2, 2009, the trial court entered a judgment denying the petition. This appeal timely follows. Patterson argues he neither refused nor failed to complete a chemical test, and that he had a constitutional right to remain silent when Officer Wayne asked him to choose a method of testing.
DISCUSSION
I. Standard of Review
The trial court used its independent judgment to review the DMV’s suspension of Patterson’s license, and determined that the weight of the evidence supported the administrative suspension. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457.)
On appeal, we draw all legitimate and reasonable inferences in favor of the trial court’s decision, and will not overturn the trial court’s factual findings unless the evidence was insufficient as a matter of law to sustain those findings. (Lake v. Reed, supra, 16 Cal.4th at p. 456-457; Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1568.) Where the facts are undisputed and the issue involves the proper application of a statute or administrative regulation, we consider it de novo. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517.)
II. Patterson’s Silence Was Properly Deemed a Refusal
Any person who drives a motor vehicle in California is deemed to consent to a chemical test to determine his or her blood alcohol level whenever he or she is lawfully arrested for driving under the influence. (§ 23612, subd. (a).) Under the implied consent law, a person who refuses to submit to, or fails to complete, a chemical blood-alcohol test in response to a peace officer’s request is deemed to have withdrawn his implied consent, and faces the suspension of his driver’s license. (§ 13353, subd. (a); Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757.)
To comply with the law, a “driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.” (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270.) The determining factor as to whether a motorist actually refused to submit to a chemical test is the fair meaning to be given to his conduct, not his state of mind. (Maxsted v. Department of Motor Vehicles (1971) 14 Cal.App.3d 982, 986.) “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.” (Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299.) A driver “may not refuse to take a test required by section 13353 and avoid the license suspension mandated by the statute by later agreeing to take a specified test or allowing blood to be taken.” (Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1163.)
In Lampman v. Department of Motor Vehicles (1972) 28 Cal.App.3d 922, 926-928, the arrested driver remained silent after being advised of her rights to counsel and to remain silent as well as her obligation to submit to a chemical test. The appellate court held that the driver’s silence “in the face of repeated requests that she submit to a chemical test and repeated requests that she choose a test... constituted a failure to submit to a chemical test within the meaning of Vehicle Code section 13353.” (Id. at p. 926.)
Similarly, in Buchanan, the officer gave the arrested driver the choice of all three chemical tests. The officer told the driver that they would soon be passing by the hospital and that if the driver opted for the blood test, he was required to indicate his choice before they got there. The driver waited until they arrived at the police station to indicate he wanted the blood test. The officer told the driver that a blood test was no longer an option and asked whether he would submit to breath or urine testing. The driver said nothing. (Buchanan v. Department of Motor Vehicles, supra, 100 Cal.App.3d at p. 296.) The court held that the fair meaning of the driver’s response indicated his refusal to submit to a chemical test. (Id. at p. 299.) His state of mind was not relevant.
Here, Patterson did not manifest legally required consent. When he was asked if he would submit to a chemical test and choose the means of testing, he twice remained silent. Moreover, he was told by the officer that his failure to choose a means of testing would be considered a refusal, and Patterson still said nothing. Silence in the face of a request to submit to a chemical test is considered refusal. Without manifesting clear and unambiguous consent, Patterson’s persistent silence could properly be considered a refusal even though he later completed a blood test.
III. The Fifth Amendment Right to Remain Silent Does Not Protect Patterson in Refusing to State Whether He Will Submit to a Test
Patterson next contends he had a right to remain silent when Officer Wayne asked him to choose a chemical test, and that punishing him for remaining silent is a violation of his Fifth Amendment rights. There are two reasons there is no Fifth Amendment violation: the right to remain silent does not encompass a right to refuse a test under the implied consent law, and the privilege against self-incrimination does not apply in an administrative setting.
First, the Fifth Amendment privilege against self-incrimination does not bar authorities from obtaining physical evidence of intoxication even without a person’s consent. (Schmerber v. California (1966) 384 U.S. 757, 760-765.) Patterson concedes this much, but argues the statutory requirement that he manifest consent to a chemical test violates his right to remain silent because his consent “could be later used against him to show that he waived any legal rights he might have in that regard, and further, that he agreed there was probable cause to arrest him....” Not so. Patterson had already given his implied consent to chemical testing of his blood for its alcohol content by driving a motor vehicle in California. We are at a loss to identify how his verbal (or nonverbal) acknowledgement of that consent could have been used against him or construed as a concession of probable cause for the arrest—and Patterson fails to elucidate either point. In any case, it has long since been established that “[t]he Fifth Amendment right to remain silent does not protect a licensee in refusing to state whether he will submit to a test under section 13353.” (Fallis v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 373, 377, 380.)
Moreover, the privilege against self-incrimination does not apply in an administrative setting. The right against self-incrimination protects an individual from being forced to testify against himself in a criminal proceeding. (Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 714; Lefkowitz v. Turley (1973) 414 U.S. 70, 77.) It does not, however, protect against a nonpenal use of such testimony. (Segretti v. State Bar (1976) 15 Cal.3d 878, 886-887; Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 426.) Administrative hearings involving the subject of intoxication tests are civil in nature and not related to any criminal action against the licensee, or the result of such action if any be commenced. (Westmoreland v. Chapman (1968) 268 Cal.App.2d 1, 5.)
Here, Patterson remained silent in the face of Officer Wayne’s request that he submit to a chemical test and that he choose the means of testing to determine the alcohol content of his blood. His silence constituted a refusal under section 13353. This refusal to take a chemical test after Officer Wayne had lawfully requested it was not protected by Patterson’s Fifth Amendment right to remain silent.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Pollak, J.