CLOVERY v. DEPARTMENT OF MOTOR VEHICLES (1991)

OPINION

Vehicle Code section 13353 requires the Department of Motor of Vehicles (DMV) to suspend or revoke a motorist's license for refusing to submit to or failing to complete a blood alcohol test after he or she has been arrested for drunk driving.   The triggering event is a sworn statement from “the officer” that the motorist has refused to submit to or did not complete the test.

This case forces us to interpret section 13353.   Who is “the officer?”   The DMV urges us to interpret “the officer” to mean the arresting officer even if that officer had no personal knowledge of the motorist's refusal to submit to or failure to complete the test.   We reject this interpretation.   We do not think police officers should be put in a position of swearing to facts they may know nothing about.   Nor do we think the Legislature intended motorists' licenses to be taken away on mere hearsay.   Accordingly, for reasons explained below, we affirm the judgment of the trial court that the revocation of John Clovery's driver's license was improper.

I

Clovery was arrested for drunk driving and elected to take a urine test.   Clovery could not provide enough urine for a second sample.   There are two versions of what happened next.   Clovery claims the police officer administering the test became angry, called him a “son of a bitch,” and refused to allow him to take an alternative test.   The DMV claims Clovery was offered another test.

After the events surrounding his urine test, the female arresting officer (as distinct from the male administering officer) filled out a sworn statement on a DMV form alleging Clovery had refused to submit to a breath or blood test, and sent it to the DMV.   The form stated:  “The person arrested refused to submit to or failed to complete any such [chemical] test.   The refusal or failure was indicated by the following statements or actions:  ‘I want the urine test.’   He was unable to complete second sample and refused a blood or breath test.   Subject Clovery continued to insist on a urine test.   The refusal was a result of the subject's inability to complete the urine test properly and his refusal to submit to a blood or breath test.”

After receipt of the arresting officer's statement, the DMV informed Clovery it intended to revoke his driver's license and Clovery requested an informal hearing.   At the hearing Clovery was told by the hearing officer that, while he had the right to an attorney, it had “no bearing on the outcome of the hearing.”   Clovery then proceeded to represent himself.

The arresting officer attended the hearing.   She testified her sworn statement was true and correct “to the best of [her] knowledge.”   She described the events leading up to Clovery's election to take a urine exam, including her telling Clovery he was required to take a chemical test to determine the alcohol content of his blood.

The hearing officer asked what happened then.   The arresting officer said:  “He decided that he was going to take a urine test and he went ahead and did the first void and at 3:15 he was given his first sample and twenty five minutes later at 3:40 a.m. he went in and he was unable to provide a second test.”

The next question was, “And then what happened?”   The arresting officer replied:  “I again advised him that he was required to submit to a test and if he failed to complete that test that he needed to submit to one of the other remaining tests.”

The arresting officer then testified that Clovery “continued saying he wanted the urine test, he wanted a urine test․”  According to her story, she advised Clovery again of the need to submit to another test, to which his response was, “[h]e just wanted a urine test, and that was the only test he was going to take.”

Clovery, representing himself, became flustered when it was his turn to question the arresting officer.   Nevertheless, he managed to communicate that the arresting officer did not administer the urine test.   This was news to the DMV hearing officer, who recalled the arresting officer to ask further questions.¹  The hearing officer then established that, indeed, the arresting officer did not administer the urine test to Clovery.   In fact, the arresting officer had delegated the task to a male officer.   The arresting officer also admitted she was separated from Clovery and the male administering officer by “big solid doors” during the urine test.

Clovery testified he would have taken either a breath or a blood test had he been given the chance.   He further testified that after the urine test, no officer asked him about a blood or breath test.   The hearing officer did not, however, specifically inquire of the arresting officer whether, after Clovery and the administering officer had returned from behind the “big doors,” Clovery was given the chance to take a blood or breath test.

After the hearing, the DMV revoked Clovery's license ² for two years because he “refused to submit to or failed to complete a chemical test after being requested to do so by a peace officer.”   Clovery then filed a petition in superior court, requesting a writ of mandate requiring the DMV to give him another hearing.   The trial court granted Clovery's request, ordering the DMV to hold a rehearing, but “limited to evidence solely as contained in the record,” and specifically stated there was to be “no additional presentation of evidence.”   The subsequent judgment additionally required the DMV to address the issue of the arresting officer's credibility and why there was no sworn statement from the administering officer.

The DMV then requested a “new trial,” arguing the trial court should decide the case on the merits rather than remand it.³  Further argument was held and the DMV got its wish, at least as far as obtaining a “new trial.” ⁴

The parties stipulated the court could proceed on the record previously submitted.   The trial court then decided that a sworn statement from the administering officer was necessary, as a matter of law, to revoke Clovery's license under Vehicle Code section 13353.   There being no sworn statement from that officer in the record, the court determined the revocation of Clovery's license was improper.   The DMV now appeals.

II

 Our focus is on Vehicle Code section 13353.   At the time of Clovery's arrest section 13353, subdivision (a) provided:  “If any person refuses the officer's request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23157, upon receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 or 23153 and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall” suspend or revoke the person's driver's license for a certain period of time depending on his or her prior convictions.⁵

In challenging the trial court's decision, the DMV combines two ideas.   First, it fixes on the words, “the officer.”   The DMV argues that the statute requires only the statement of one officer (“the” officer).   Second, it relies on cases which indicate it is proper for an arresting officer to delegate the administration of the chemical test to another officer (Webb v. Miller (1986) 187 Cal.App.3d 619, 628, 232 Cal.Rptr. 50;  Lee v. Department of Motor Vehicles (1983) 142 Cal.App.3d 275, 281–283, 191 Cal.Rptr. 23).   Putting the two ideas together, the DMV reasons the trial court erred in requiring a second sworn statement from the administering officer.

Answering the question of whether only one sworn statement is required by section 13353 is more complex, however, than merely noting the presence of the definite article in front of the word “officer.”   Who is “the officer” whose sworn statement mandates suspension or revocation of an arrestee's driver's license?   Reading the statute literally, as we are urged to do by the DMV, it must be someone who:

—Could swear he or she “had reasonable cause to believe” the arrestee was guilty of drunk driving.

—Could swear he or she had “requested” the arrestee submit to and complete certain chemical tests.

—Could swear the arrestee “had refused to submit to, or did not complete, the chemical test or tests.”

To swear means a declarant must “state on oath that the fact alleged is true, to his knowledge, not that he believes it to be true because someone else has told him that it is.”  (State v. Upton (Fla.App.1981) 392 So.2d 1013, 1016;  see also Black's Law Dict. (5th ed. 1979) p. 1298;  accord, Code Civ.Proc., § 2094.)   How then should the statute be interpreted when the arresting officer (who could “only” have been someone who saw the arrestee driving) ⁶ cannot swear the arrestee refused to submit to or complete the test because the arresting officer has no personal knowledge of the refusal?

Logically, there are only two ways the issue can be resolved.   The DMV's solution is to allow the arresting officer to sign the statement, even though he or she may have no personal knowledge whatsoever of the arrestee's refusal.   The other solution is to require a sworn statement from “the officer” who does have personal knowledge of the arrestee's refusal, even if it means that two sworn statements must ultimately be submitted.

Two reasons favor the latter interpretation.   First, it prevents the Legislature's requirement of a sworn statement from becoming surplusage.  (See, e.g., United Public Employees v. Public Employment Relations Bd. (1989) 213 Cal.App.3d 1119, 1127, 262 Cal.Rptr. 158;  Department of Justice v. Workers' Comp. Appeals Bd. (1989) 213 Cal.App.3d 194, 200, 261 Cal.Rptr. 130.)   The purpose of an oath is to hold an affiant responsible for any false statements.  (People v. Egan (1983) 141 Cal.App.3d 798, 804, 190 Cal.Rptr. 546.)   If a “sworn” statement could be based on mere information and belief, it would gut the protection afforded an arrestee against false statements.   Ominously, it would make the issue of whether an arrestee had refused a chemical test depend on the officer's state of mind rather than what actually happened.

Second, it is more reasonable and practical.  (See Webster v. Superior Court (1988) 46 Cal.3d 338, 343, 250 Cal.Rptr. 268, 758 P.2d 596;  In re Eric J. (1979) 25 Cal.3d 522, 537, 159 Cal.Rptr. 317, 601 P.2d 549.)   The arresting officer should be able to delegate the administration of a test to another officer without having to swear to the truth of an event about which he or she may have no personal knowledge.⁷  For example, if as in this case, the arresting officer and the arrestee are persons of the opposite sex, respect for the dignity of the arrestee may require that another officer supervise a urine test.  (See Veh.Code, § 23158, subd. (e).)  What happens, however, if the administering officer accuses the arrestee of somehow trying to sabotage the test? ⁸  Must the arresting officer be put in the position of swearing to the arrestee's refusal to complete the test based on the supervising officer's statement?   Or, looked at another way, should the arrestee's license depend on whether the arresting officer believes the arrestee or a fellow officer?   We think not.

Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 240 Cal.Rptr. 281, relied on by the DMV, is inapposite here.  Snelgrove upheld a license suspension based on an officer's sworn statement even though the officer did not appear at a formal hearing.   The court did not address the issue of how many statements might be necessary under section 13353.   It also specifically noted the statement was based on “firsthand observations by the officer.”  (See 194 Cal.App.3d at p. 1375, 240 Cal.Rptr. 281.)

We therefore agree with Clovery and the trial court as to the proper interpretation of section 13353.   If two sworn statements are necessary to demonstrate that there was (1) reasonable cause for arrest and (2) the arrestee refused to submit to, or failed to complete, a blood alcohol test, so be it.

III

The only sworn statement in this case, however, was from the arresting officer.   Did this officer have personal knowledge that Clovery was offered an alternative test and then refused it?   There is a conflict in the testimony on this point.

 No request for a statement of decision appears in the record.   In such a situation, “all intendments and presumptions are indulged in favor” of the correctness of the trial court's judgment.  (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133, 275 Cal.Rptr. 797, 800 P.2d 1227.)

 In reviewing a decision of the DMV to suspend or revoke a motorist's license, trial courts must employ the independent judgment standard.  (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 394, 188 Cal.Rptr. 891, 657 P.2d 383.)   Under this standard, there is an abuse of administrative discretion “if the court determines that the findings [of the administrative agency] are not supported by the weight of the evidence.”  (Code Civ.Proc., § 1094.5, subd. (c).)  Appellate review of the trial court's decision, on the other hand, is governed by the substantial evidence test.  (Hosford v. Board of Administration (1978) 77 Cal.App.3d 854, 859, 143 Cal.Rptr. 760 [appellate review of trial court's independent judgment limited to whether there was substantial evidence to support it].)

 Applying these rules, we must presume the trial court impliedly found the weight of the evidence favored Clovery's version.⁹  We must now ask whether there is substantial evidence to support that implied decision.

Clovery's testimony was consistent.   At no time after his kidneys failed to generate enough urine for a second sample was he offered an alternative test.

The testimony of the arresting officer, on the other hand, contained an internal flaw.   The arresting officer testified to the events surrounding Clovery's urine test in such a way as to imply she was personally present.   (“He ․ did the first void and at 3:15 he was given his first sample and twenty five minutes later at 3:40 a.m. he went in and he was unable to provide a second sample.”)   Yet it was revealed later she could not have possibly been present at those events.   This would necessarily create at least some doubt as to the officer's credibility.

This doubt plus Clovery's own unequivocal, consistent and directly contradictory testimony furnishes ample support for the trial court's judgment.   Employing the independent judgment standard, the trial judge was entitled to disbelieve the arresting officer.

 We also reject the DMV's argument that the revocation of Clovery's license was proper in any event because he “failed to complete” the urine test.   There are times, of course, when a person arrested for drunk driving gives an initial urine sample but, after the twenty minutes have passed, decides not to cooperate and refuses to provide a second sample.  (See, e.g., McConville v. Alexis (1979) 97 Cal.App.3d 593, 596–597, 159 Cal.Rptr. 49;  see also Skinner v. Sillas (1976) 58 Cal.App.3d 591, 594, 130 Cal.Rptr. 91.)   In such a case, if he or she refuses to expeditiously take a blood test or breath test, the person's license is subject to suspension or revocation by the DMV.  (McConville v. Alexis, supra, 97 Cal.App.3d at pp. 596–597, 159 Cal.Rptr. 49.)

But there are times when nature does not cooperate.   In such circumstances, basic fairness requires the arrestee be given the opportunity to select and complete one of the other two tests.  (See McConville v. Alexis, supra, 97 Cal.App.3d at pp. 603–604, 159 Cal.Rptr. 49 [dicta].¹⁰ )  Under such circumstances, an unsuccessful but good faith effort to provide a second sample of urine is not a “failure to complete” a urine test.¹¹  In this case there was no evidence before the DMV hearing officer that Clovery's inability to provide enough urine for a second sample was his fault.

Our decision obviates any need to consider whether the DMV hearing officer violated Clovery's right to due process of law by dissuading him from retaining an attorney.   The judgment is affirmed.

FOOTNOTES

1.   An “officer's record of urine test” showing “samples obtained by” a different officer than the arresting officer had been earlier introduced at the hearing.   There is no indication, however, that this particular fact had been brought to the DMV hearing officer's attention.

2.   Through a combination of stays, ex parte orders, and prevailing with the trial court, Clovery has been able to maintain his status as a licensed driver after the DMV made its determination.

3.   The DMV asserted the judgment limited discretion otherwise legally vested in it, contrary to Code of Civil Procedure section 1094.5, subdivision (f).

4.   This appears to be a misnomer.   The hearing is described in the minutes as a “motion,” and no additional evidence was taken.

5.   While section 13353 has since been amended, the quoted language has not.  (Cf. Stats.1986, ch. 527, p. 1880, with current text of Veh.Code, § 13353.)

6.   Covington v. Department of Motor Vehicles (1980) 102 Cal.App.3d 54, 59, 162 Cal.Rptr. 150.

7.   Vehicle Code section 23157, subdivision (a)(1) provides (and provided at the time of Clovery's arrest) that the chemical testing “shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23152 or 23153.”  (Italics added.)   As Webb v. Miller, supra, 187 Cal.App.3d at p. 628, 232 Cal.Rptr. 50, however, points out, the statute does not say the arresting officer must personally administer the test or even that the test be administered in his or her presence.  (Citing Lee v. Department of Motor Vehicles, supra, 142 Cal.App.3d at p. 281, 191 Cal.Rptr. 23.)

8.   For example, by trying to dilute the urine sample with water from a nearby urinal or toilet.

9.   Given its argument that the trial court should decide the matter “on the merits” and its stipulation the trial court could proceed on the submitted record, the DMV would be estopped to claim otherwise.

10.   Vehicle Code section 13353 uses the phrase “refuses ․ to submit to, or fails to complete, a chemical test․”  The word “fails” is ambiguous.   It encompasses both deliberate and nondeliberate conduct.   In light of the McConville dicta and our own common sense, we decline to interpret the word to encompass a good faith effort to complete a urine test even if an arrestee's kidneys “fail” to provide enough urine to “complete” the test.  (Cf. Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 365, 150 Cal.Rptr. 216.)

11.   Given alcohol's well-known diuretic properties, this would more likely be the case if one had not been drinking.   We recognize the arresting officer in McConville v. Alexis, supra, 97 Cal.App.3d 593, 159 Cal.Rptr. 49 would probably disagree.   He testified that “ ‘[M]ost people could give within twenty minutes if they really want to.’ ”  (97 Cal.App.3d at p. 602, 159 Cal.Rptr. 49.)

SILLS, Presiding Justice.

CROSBY and WALLIN, JJ., concur.