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Court of Appeal, Third District, California.

Elliot MONTER, Plaintiff and Respondent, v. DIRECTOR OF MOTOR VEHICLES, Defendant and Appellant.

No. C006752.

Decided: March 20, 1990

John K. Van de Kamp, Atty. Gen., Richard M. Frank, Supervising Deputy Atty. Gen., Cathy Christian, Deputy Atty. Gen., for defendant and appellant. Gregory T. Shanley, Tahoe City, for plaintiff and respondent.

Following an administrative hearing, the Department of Motor Vehicles (DMV) issued a decision suspending the driving privilege of plaintiff Elliot Monter based upon his failure or refusal to submit to a chemical test to determine his blood alcohol level after his arrest for driving while under the influence of alcohol.  (Veh.Code, §§ 13353, 23152, 23157.)   Plaintiff petitioned for a writ of administrative mandate asserting that his arrest triggered an extreme emotional reaction which resulted in a psychotic episode rendering him unable to understand the arresting officer's admonishment or to refuse to submit to a chemical test.   The trial court agreed and issued a writ of mandate directing the DMV to set aside its order suspending plaintiff's driving privilege.   The DMV appeals contending that plaintiff's claimed inability to understand the officer's admonishment does not excuse his failure or refusal to submit to a chemical test.   We conclude that the judgment is not supported by substantial evidence and accordingly must be reversed.


In the early morning hours of September 25, 1988, plaintiff was arrested for driving while under the influence of alcohol in violation of Vehicle Code section 23152.   At his administrative hearing plaintiff stipulated that the arresting officer had reasonable cause to believe he had been driving while under the influence of alcohol and that he was lawfully arrested.

The arresting officer, James Metcalfe of the California Highway Patrol, testified at plaintiff's administrative hearing.   Officer Metcalfe stated that while in the patrol car on the way to the sheriff's substation he explained to plaintiff that he would have to submit to a blood, breath or urine test.   Plaintiff said he would take a breath test.   At the substation plaintiff was placed before a breathalyzer and instructed to blow into it.   He just stood there and would not blow.   The officer read the admonishment from a DMV implied consent form.   He asked plaintiff whether he would submit to a blood, breath or urine test but plaintiff simply stood silent.   He then asked whether plaintiff understood the admonishment but plaintiff once again remained silent.   The officer believed plaintiff was coherent but obviously intoxicated.

Officer Metcalfe remained at the substation for 20 to 30 minutes.   He observed plaintiff become combative with his jailers.   He became “really out of it,” and was then completely out of control.   Due to plaintiff's violence, the sheriff's department put him in a holding cell and put a suicide watch on him.   After that no further attempt to get a chemical test was made.   Upon further questioning the officer clarified his testimony by explaining that plaintiff seemed to go berserk after he had refused to submit to a chemical test and had been placed back inside a cell.

Plaintiff testified that all he could remember from the time of his arrest was something plastic in front of him and thinking they were trying to kill him.   He just “flipped out” and lost contact with reality.   He testified that he had consumed alcohol with dinner that night and “[t]he only thing I remember is when he first stopped me, and I think he asked me if I'd been drinking, and I told him I had.   I think after that I was pleading with him not to arrest me and ․ police car ․ just started ․ after that ․ what was going on after that.”

In support of his claim, plaintiff submitted a letter from Dr. Robert Hirsch of the North Shore University Hospital in the state of New York.   The letter, dated October 25, 1988, is addressed to a New York attorney.   It reads:  “Elliot Monter has been under my psychiatric care for a good many years;  he is currently being seen once a week and is on Desyrel, which is an anti-depressant medication.   The patient was seen by me on September 28, 1988 [,] after his arrest in California for a D.U.I.   The traumatic experience of his arrest and incarceration along with his treatment by the arresting officers precipitated a clinically psychotic episode which the patient is capable of with this type of stressor.   Mr. Monter diagnostically is a borderline personality disorder and this illness is characterized by episodic transient psychotic decompensations.   Although Mr. Monter has stabilized somewhat in therapy and with his medication, he still is at risk if there is any further incarceration.   He is realistic enough to be aware that there will be a penalty but on a clinical psychiatric basis I feel that any imprisonment could destabilize him with psychotic symptomatology which was quite evident when he was seen on September 28, 1988.”

Based upon this record the DMV determined that plaintiff had failed or refused to submit to a chemical test to determine his blood alcohol level after his arrest for driving while under the influence of alcohol and suspended his driving privilege.   However, on petition for a writ of administrative mandate the trial court ordered the DMV to set aside its decision.   The court found:  “[Plaintiff's] pre-existing and involuntary mental condition combined with the stress of the arrest was the precipitating cause of a psychotic episode which made [him] unable to understand the admonitions given to him pursuant to Vehicle Code Section 13353, or rationally decide to take or refuse the chemical test required by Vehicle Code Section 23157.   This does not constitute a refusal under Vehicle Code Section 13353.”   The court also found:  “The weight of the evidence did not support the [DMV's] conclusion that the ingestion of alcohol, either alone or in combination with [plaintiff's] pre-existing and involuntary psychiatric condition, induced or caused [his] inability to understand or take the test.”   Based upon these findings, the lower court granted plaintiff's requested relief.   This appeal by DMV followed.



Pursuant to Vehicle Code section 23157, any person who drives a motor vehicle in this state is deemed to have given his or her consent to chemical testing of his or her blood, breath or urine to determine the alcoholic content of his or her blood upon a lawful arrest for driving while under the influence of alcohol or drugs.   If the arrested person fails or refuses to submit to a chemical test upon request then Vehicle Code section 13353 directs the DMV must suspend or revoke that person's driving privilege for a period which is dependent upon the person's prior record.1  “Our implied consent statute, ․ was enacted to fulfill the need for a fair, efficient and accurate system of detection and prevention of drunken driving.   The immediate purpose of section 13353 is 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.   The long range purpose is, of course, to inhibit intoxicated persons from driving on the highways.”  (Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 77, 81 Cal.Rptr. 348, 459 P.2d 900, citations omitted.)   This legislation must be interpreted reasonably to give effect to its purposes.  (Ibid.)

 Throughout the history of our implied consent law, drivers facing suspension of their driving privilege have attempted to evade that result by tendering a variety of excuses for the failure or refusal to submit to testing.   Such excuses often involve claimed confusion or some other asserted state of mind.   These excuses have been repeatedly rejected.   Where an officer informs the suspected drunken driver of the requirements of the law and the consequences of refusal and the suspect refuses or fails to submit to testing, then suspension is mandatory.   There is no requirement of a specific intent or other mental element in the implied consent law.  (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 662–663, 119 Cal.Rptr. 804.)   The refusal to submit to testing need not be intelligent, and subjective confusion is not an excuse.  (Ibid.  See Gobin v. Alexis (1984) 153 Cal.App.3d 641, 650, 200 Cal.Rptr. 397.)   Appellate courts have consistently held that only officer-induced confusion can serve to excuse a refusal to submit to testing.  (Jones v. Department of Motor Vehicles (1977) 71 Cal.App.3d 615, 620, 139 Cal.Rptr. 734.)   This principle may be illustrated by a précis of the reported cases:

In Maxsted v. Department of Motor Vehicles (1971) 14 Cal.App.3d 982, at pages 986 and 987, 92 Cal.Rptr. 579, a driver claimed that he believed an attorney was coming to see him and that his refusal to submit to testing should be viewed as a request for counsel in view of the Miranda warnings which had been read to him.   The trial court granted relief, reasoning that the driver's state of mind was determinative.   The Court of Appeal reversed the trial court's decision.   A driver's state of mind, the court ruled, is irrelevant and his uncommunicated confusion neither imposes an obligation on the arresting officer to further explain the requirements of the law, nor saves the driver from suspension for his refusal to submit to testing.

In Goodman v. Orr (1971) 19 Cal.App.3d 845, at page 857, 97 Cal.Rptr. 226, it appeared that despite being advised that he had no right to a lawyer for purposes of testing, a driver refused to submit without an attorney.   The trial court granted relief from suspension on the ground that the driver remained confused due in part to his intoxication, and that he did not intend to refuse to comply with legal requirements as he understood them.   The Court of Appeal reversed the judgment granting relief.   The driver was advised of the requirements of the law and whether he remained confused due to lack of intelligence or intoxication was immaterial.   To permit a driver's subjective state of mind to control his refusal after proper admonishment would nullify the statutory procedure and its sanctions.

In McDonnell v. Department of Motor Vehicles, supra, 45 Cal.App.3d, at pages 659 to 663, 119 Cal.Rptr. 804, a driver had successfully sought relief from suspension from a trial court.   The driver claimed that he had taken medication for allergies and then eaten a carbohydrate-rich dinner with a few drinks.   He claimed that this brought on an involuntary and severe attack of reactive hypoglycemia, which rendered him incapable of understanding the nature, purpose or effects of his acts or of forming a rational response to the request he submit to testing.   The Court of Appeal reversed the judgment granting relief, reiterating that only objective, officer-induced confusion can support relief.

In Holland v. Department of Motor Vehicles (1979) 92 Cal.App.3d 25, at page 28, 154 Cal.Rptr. 492, a driver who had refused to submit to a test claimed that she had fought all weekend with her husband and that this impaired her judgment and caused her to refuse to submit to a test.   Although the trial court found that her refusal was caused by her emotional condition which impaired her judgment, it nevertheless denied relief.   On appeal the driver claimed that since her disabling condition did not result from intoxication her refusal should be excused.   The contention was rejected.

In Eilinger v. Department of Motor Vehicles (1983) 143 Cal.App.3d 748, at page 752, 192 Cal.Rptr. 187, the trial court granted relief from suspension after finding that the driver's earlier fear of police from her life in Argentina had caused her to become almost paralyzed when arrested and had rendered her unable to respond to a request that she submit to testing.   The Court of Appeal reversed the judgment, holding that the driver's irrational and undisclosed fear could not excuse her from the requirements of the law.

As these cases demonstrate, only objective, officer-induced confusion can support relief from suspension for refusing or failing to submit to chemical testing after a valid arrest.   A driver's subjective state of mind, from whatever cause, is not an excuse.   Plaintiff, however, seeks to distinguish these authorities and he asserts that this is a case of first impression in this state.   As plaintiff sees it, this case involves a situation in which a driver was completely incapable of understanding the implied consent admonitions, and this inability was not caused by voluntary intoxication or other voluntary conduct of the driver.   The trial court seemed to accept this characterization of the case in its quoted findings.   We have grave reservations about the legal efficacy of the general claim that a person with enough presence of mind to drive an automobile may nonetheless somehow be incapable of understanding a simple request to take a test.   Presumably such a driver had enough grasp of reality to pull over when signaled to do so by a flashing red light and siren.   But we find it unnecessary to determine whether such a scenario would support relief from suspension of a driving privilege, because we find insufficient evidence to support that characterization of the case.   Accordingly, we will reverse the judgment granting relief.


 We first reject the court's conclusion that plaintiff is entitled to relief because the weight of the evidence did not establish that plaintiff's ingestion of alcohol induced or caused his inability to understand the admonishment or to take the test.   This finding is erroneous in two respects.   First, it erroneously assigns the burden of proof to the DMV.   At an implied consent hearing there are four issues:  (1) whether the arresting officer had reasonable cause to believe the person had been driving while under the influence of alcohol;  (2) whether the person was lawfully arrested;  (3) whether the person refused to submit or failed to complete a test or tests after being requested to do so;  and (4) whether the person was advised that his driving privilege would be suspended or revoked if he refused or failed to submit to testing.  (Veh.Code, § 13353, subd. (b).)  An officer's sworn statement and/or testimony on these four issues constitutes prima facie cause for mandatory suspension of a license.  (Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1375–1376, 240 Cal.Rptr. 281;  Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 79–80, 179 Cal.Rptr. 379.)

 Assuming for purposes of argument that a mental condition unrelated to a person's drinking or other voluntary act can serve as an excuse for the failure to submit to testing, at a very minimum it is incumbent upon that person to establish his nonalcohol-related excuse by competent evidence.   We reject the suggestion that the DMV is required to negate such a claim regardless whether the accused driver has produced evidence supporting it.   In this case, other than the arresting officer's belief that plaintiff's behavior was due to his intoxication, there was a complete lacuna in the evidence concerning the effect of plaintiff's intoxication in causing or contributing to his alleged inability to understand the admonitions.   Although Dr. Hirsch, in his letter, cited the trauma of plaintiff's arrest and incarceration as a precipitating factor in his psychotic episode, he said nothing at all with respect to the effect plaintiff's excessive drinking may have had.   The DMV, relying upon the well-known effects of excessive drinking, found plaintiff's condition to be self-induced.2  The trial court rejected the DMV's finding by, in effect, imposing upon it the burden of negating plaintiff's unsupported claim of an involuntarily induced mental condition.   We reject this approach.   Plaintiff's failure to produce evidence that his mental condition was unrelated to his voluntary intoxication requires that his claim of excuse be rejected even in the absence of evidence to rebut the unsupported claim.

 The trial court's finding suffers from a lack of support in yet another manner.   In his letter Dr. Hirsch said that plaintiff's arrest, incarceration, and treatment by the arresting officers precipitated a psychotic episode.   He did not rule out the likelihood that plaintiff's drinking may also have been a precipitating factor.   However, even had he offered such an opinion that alcohol was not a contributing cause, a finding based thereon, under the facts of this case, would have been legally erroneous.   In both civil and criminal law there are well-established standards for determining causation.   In essence, where a person's voluntary conduct is the stimulus for some other predictable act or force which then causes an effect, there is no break in the chain of causation and the person's initial conduct will be considered a legal cause of the resulting effect.  (See 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 974, p. 365;  1 Witkin, Cal.Criminal Law (2d ed. 1988) § 130, p. 148.)   In this case plaintiff's arrest was due entirely to his voluntary acts of becoming intoxicated and then driving a motor vehicle while intoxicated.   Even if his arrest was the immediate precipitating cause of his psychotic episode, that effect is, in the contemplation of the law, considered a result of plaintiff's voluntary acts.   Accordingly, we are here concerned with a situation which is virtually identical to that which was involved in McDonnell v. Department of Motor Vehicles, supra, 45 Cal.App.3d at page 663, 119 Cal.Rptr. 804.   Here, as there, we find it unnecessary to determine whether an unexpected seizure unrelated to alcohol would excuse plaintiff's refusal to submit to testing, since plaintiff's medical condition in this case must be deemed, in the absence of evidence breaking the link to the ingestion of alcohol, to be a legal result of his voluntary acts of drinking and driving.

 We also reject plaintiff's assertion and the trial court's finding that plaintiff was completely unable to understand the implied consent admonishment.   Plaintiff recognizes that the only evidence to address specifically his mental state was the letter from Dr. Hirsch.3  Even disregarding the hearsay nature of the letter (see Snelgrove v. Department of Motor Vehicles, supra, 194 Cal.App.3d at pp. 1375–1376, 240 Cal.Rptr. 281), we find it wholly insufficient to support the trial court's finding.

As we explained in Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 234 Cal.Rptr. 630, “[t]he value of [expert] opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed.   Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon other factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value.   In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence.   When a trial court has accepted an expert's ultimate conclusion without critical consideration of his reasoning, and it appears the conclusion was based upon improper or unwarranted matters, then the judgment must be reversed for lack of substantial evidence.”  (Id. at pp. 1135–1136, 234 Cal.Rptr. 630, citations omitted.)

With that admonition in mind, we turn to the review standard.   The appropriate standard for evidentiary review of claimed mental deficiencies has been explained as follows:  “Mental illnesses are of many sorts and have many characteristics.   They, like physical illnesses, are the subject matter of medical science.   They differ widely in origin, in characteristics, and in their effects on a person's mental processes, his abilities, and his behavior.   To make a reasonable inference concerning the relationship between a disease and a certain act, the trier of the facts must be informed with some particularity.   This must be done by testimony.   Unexplained medical labels—schizophrenia, paranoia, psychosis, neurosis, psychopathy—are not enough.   Description and explanation of the origin, development and manifestations of the alleged disease are the chief functions of the expert witness.   The chief value of an expert's testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion;  in the explanation of the disease and its dynamics, that is, how it occurred, developed, and affected the mental and emotional processes of the defendant;  it does not lie in his mere expression of conclusion.”  (Carter v. United States (D.C.Cir.1957) 252 F.2d 608, 617, quoted with approval in People v. Bassett (1968) 69 Cal.2d 122, 141, 70 Cal.Rptr. 193, 443 P.2d 777.)

When we consider Dr. Hirsch's letter in light of this standard we conclude that it does not constitute substantial evidence in support of plaintiff's claims or the trial court's findings.   Dr. Hirsch was not asked and did not venture an opinion on the effect plaintiff's mental condition would have on his ability to comprehend the implied consent admonishment, let alone provide reasoning to support such an opinion.   As a result Dr. Hirsch's letter provides neither conclusion nor analysis on the effect plaintiff's mental disease would have on his capacity, and instead leaves the trier of fact to speculate upon that question.   But speculation, as we have noted, cannot serve as a substitute for evidence and a judgment based upon speculation cannot stand.

 Dr. Hirsch's letter fails as evidence in another respect.   He expressed the opinion that the entire incident precipitated a psychotic episode.   He did not attempt to relate that episode to the events as they occurred.   The arresting officer testified that plaintiff refused to blow into the breathalyzer when he was asked to do so and was then read the implied consent admonishment but he refused to respond.   At that time he appeared coherent, although intoxicated.   It was subsequent to that refusal that plaintiff became combative and degenerated into a state described as “out of control.”   If plaintiff had the capacity to understand the admonishment at the time of his initial refusal, then a subsequent lack of capacity will not excuse that refusal.  (See Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 874–875, 189 Cal.Rptr. 249 [refusal not vitiated by subsequent submission to testing].)   Even if we assume that a psychotic episode would deprive plaintiff of the capacity to comprehend the implied consent admonishment, Dr. Hirsch's letter provides no evidence from which we could conclude that plaintiff suffered from such incapacity at the time of his refusal to submit to testing.

In summary we find the evidence insufficient to support the judgment in two respects.   First, the evidence does not support the claim that plaintiff's mental condition was unrelated to his voluntary intoxication;  rather the evidence compels the conclusion that his condition was the legal result of his voluntary acts of drinking and driving while intoxicated.   Second, the evidence does not support the claim that plaintiff was incapable of understanding the implied consent admonishment at the time he refused to submit to testing.   When this case is shorn of plaintiff's unsupported claims, it appears that this is simply another in a long line of cases in which a recalcitrant drunken driving suspect has tendered a legally insufficient excuse for his or her failure or refusal to submit to chemical testing to determine his or her blood alcohol level.   In view of these conclusions, the judgment granting plaintiff relief from the suspension of his driving privilege cannot stand.


The judgment is reversed and the matter is remanded to the trial court with directions to vacate its decision granting plaintiff's petition for a peremptory writ of administrative mandate and to issue a new order denying the petition.   DMV shall recover its costs on appeal.


1.   Under current law, the DMV is required to take suspension action upon receipt of the arresting officer's sworn statement.  (Veh.Code, § 13353, subd. (a).)  Effective July 1, 1990, the arresting officer will serve notice of the suspension immediately upon the refusal or failure to submit to testing, and will take possession of the arrestee's license.   The arrestee will be given a temporary permit, valid for 45 days, during which time he or she may request an administrative hearing.  (Veh.Code, §§ 13353, 23157, operative July 1, 1990, Stats.1989, ch. 1460, §§ 3, 19.)

2.   It is well established that alcohol acts as a depressant on the brain or central nervous system, causing mental deterioration by blunting perception, judgment and control.  (2 Wharton's Criminal Law (14th ed. 1979) § 107, p. 47;  Lawrence v. City of Los Angeles (1942) 53 Cal.App.2d 6, 9, 127 P.2d 931.)   To assert, without more, that plaintiff's state of intoxication played no part in his alleged inability to comprehend the officer's admonishment would be speculative and illogical.

3.   Plaintiff's testimony with respect to the events can best be described as a claim of amnesia;  he asserts that he does not remember what happened.   In criminal cases it is a general, if not universal, rule that amnesia is not a defense and in fact does not constitute proof of a person's mental condition at the time the questioned act was performed.   (People v. Danielly (1949) 33 Cal.2d 362, 379–380, 202 P.2d 18;  see Annot., Amnesia as Affecting Capacity to Commit Crime or Stand Trial (1972) 46 A.L.R.3d 544.)   Obviously a claim of amnesia cannot serve as an excuse in an implied consent hearing.

SPARKS, Associate Justice.

PUGLIA, P.J., and SCOTLAND, J., concur.