Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CC11844, Richard Habek, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Office of Chad R. Maddox and Chad R. Maddox for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Elizabeth Hong and Jasmine K. Bath for Defendant and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiff Robert Scott Podraza appeals the trial court’s judgment denying his petition for writ of mandate, upholding the administrative suspension of his driving privileges by defendant George Valverde, director of the Department of Motor Vehicles (DMV). (Code Civ. Proc., § 1094.5; Veh. Code, § 13353; all further statutory references are to this code.) He contends insufficient evidence was introduced at the administrative hearing to show he was incapable of completing his choice of a breath test or that he refused to take a chemical test. He also asserts his due process rights were violated. Finding no error, we affirm.
FACTS
In August 2007, at 10:44 pm., California Highway Patrol Officer H. Somerville saw plaintiff speeding on the freeway at 95 miles per hour and conducted a traffic stop. Somerville smelled alcohol on plaintiff’s person and saw he had red watery eyes. Plaintiff admitted to consuming three beers between 4 and 7 pm. and failed to perform satisfactorily on a field sobriety test. Somerville concluded plaintiff had been driving under the influence of alcohol and arrested him.
Somerville advised plaintiff of the implied consent law and plaintiff elected a breath test. But shortly after choosing that test, plaintiff told Somerville “he was having breathing complications as a result of chronic asthma.” Upon retrieving plaintiff’s inhaler for him, Somerville immediately transported him to a hospital. At the hospital, plaintiff stated he was “having [an] asthma attack” and received a breathing treatment at 11:46 pm.
Because of plaintiff’s medical condition and his location at the hospital, Somerville advised plaintiff the only available test was a blood test. Plaintiff stated he only wanted a breath test, which Somerville told him was unavailable. At 11:55 pm., plaintiff’s blood was forcibly withdrawn. He was issued an Administrative Per Se Order when the test showed he had a blood alcohol content of.19 percent.
At the administrative hearing regarding his driver’s license suspension, plaintiff admitted being advised that “based on [his] medical condition, [his] choice for a breath test [was] null and void.” But he maintained he did not refuse to take a chemical test. The hearing officer found plaintiff not credible, concluded he had refused to submit to a chemical test, and revoked his license for three years because of prior drunk driving violations. Plaintiff petitioned for a writ of mandate, which the trial court denied.
DISCUSSION
1. Violation of Appellate Rules
California Rules of Court, rule 8.204(a)(1)(C) requires an appellate brief to “support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Plaintiff’s opening brief violates this rule because his statement of the case and statement of facts contain virtually no citations to the record. We elect to examine the issues on the merits, but disregard all factual recitations contained in the opening brief that lack appropriate record citations. That we decline to return or strike the brief should not be interpreted as approval of plaintiff’s violation of the appellate rules.
2. Refusal to Submit to Chemical Test
Plaintiff contends the DMV failed to meet its burden of establishing he was incapable of performing a breath test. We disagree.
“In ruling on a petition for writ of mandate following an order of suspension..., a trial court is required to determine, based on its independent judgment, whether the weight of the evidence supported the administrative decision. [Citation.]” (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1567-1568.) Although the court exercises its independent judgment, it must accord “a ‘strong presumption of correctness’” to the administrative findings, and the burden rests upon the complaining party to show that the administrative decision is contrary to the weight of the evidence and therefore an abuse of discretion. (Id. at p. 1568.) We review the trial court’s findings under the substantial evidence test, resolving all evidentiary conflicts and indulging all reasonable inferences in the prevailing party’s favor. (Ibid.)
Section 23612, subdivision (a)(2)(A) provides that a “person... lawfully arrested for driving under the influence of an alcoholic beverage... 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. If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test.”
Plaintiff contends there was no evidence “his asthma rendered him incapable of providing a breath test for an hour following his arrest.” But this ignores the fact that shortly after he chose the breath test and before the test could be administered, he complained of difficulty breathing due to chronic asthma. To a reasonable person, that implies plaintiff was incapable of completing the breath test at that time. We reject plaintiff’s apparent suggestion that Somerville should have nevertheless forced him to attempt the breath test and ignore his breathing problems.
Plaintiff argues there was no “evidence that the breathing treatment rendered him incapable of performing the breath test” because he was not “given an opportunity to try” and “[n]o evidence proved the [breathing] treatment would void the breath test.” The contention lacks merit.
When, as here, a driving under the influence arrestee is taken to a medical facility for medical treatment, “where it is not feasible to administer a particular test of, or to obtain a particular sample of, the person’s blood, breath, or urine, the person has the choice of those tests that are available at the facility to which that person has been transported. In that case, the officer shall advise the person of those tests that are available at the medical facility and that the person’s choice is limited to those tests that are available.” (§ 23612, subd. (a)(3).) Law enforcement officers have broad discretion in determining whether it is “feasible for an arrestee to perform a particular test or if the arrestee was capable of performing a chosen test.” (Smith v. Department of Motor Vehicles (1986) 179 Cal.App.3d368, 375.) An “arrestee’s choice is limited to those tests which are both feasible and available. [Citation.] In common parlance the words ‘not feasible’ mean simply ‘unreasonable’ or ‘unsuitable.’ [Citation.]” (Id. at p. 374.)
The only available option at the hospital was a blood test. Given that fact combined with the plaintiff’s breathing problems, asthma attack, and the breathing treatment, Somerville used his “prudent judgment and common sense” to determine a breath test was not reasonable or suitable. (Smith v. Department of Motor Vehicles, supra, 179 Cal.App.3dat p. 375.) The issue is not whether, as plaintiff claims, the breathing treatment would void the test, but whether Somerville acted within his discretion. We conclude he did. Under the circumstances, whether plaintiff was physically incapable of providing a sample or playing games is irrelevant.
Plaintiff maintains he did not refuse to take a chemical test, although he concedes that when advised a blood test was the only available option at the hospital he said, “I will take a breath test.” “There is a strong public policy against the nightmare of drunk driving. Thus, the implied consent law should be liberally construed to effect its purpose, which is to swiftly and accurately identify drunk drivers. [Citation.] [¶] Consequently, the driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal. The determinative factor as to whether there is a refusal is not the arrestee’s subjective state of mind, but rather the objective, fair meaning to be distilled from his words and conduct. [Citation.] A qualified or conditional consent is a refusal. [Citation.]” (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d1265, 1270-1271.) Here, the objective, fair meaning of defendant’s insistence on taking an unavailable test is that he refused to take a blood test.
3. Due Process and Constitutionality of Blood Draw
Plaintiff argues he was denied due process because probable cause was needed to stop his vehicle and he “was prevented from making any arguments or discussing the alleged speeding at all.” This “misstates the legal standard. Reasonable suspicion of a Vehicle Code violation or other criminal activity justifies a traffic stop; probable cause is not needed. [Citations.]” (People v. Watkins (2009) 170 Cal.App.4th 1403, 1408.)
Moreover, a hearing officer’s ruling at a driver’s license suspension hearing is presumed correct and may not be avoided based on a claim the driver was denied due process “without some showing of unfairness.” (Poland v. Department of Motor Vehicles (1995) 34 Cal.App.4th 1128, 1135.) Plaintiff fails to cite any authority or make any showing of unfairness, allowing us to treat the contention as waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Plaintiff also contends he was prevented from raising the issue of the admissibility of the blood results. But a review of the two pages of the hearing transcript that he cites shows otherwise.
4. Attorney Fees
Given our conclusion, it is unnecessary to address plaintiff’s claim for attorney fees and costs.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
WE CONCUR: MOORE, J., FYBEL, J.