HEUVEL v. DEPARTMENT OF MOTOR VEHICLES (1984)

Petitioner was arrested for drunk driving.   He was taken to a police station and given the breath test, which he took three or four times.   Each time the testing device registered a digital reading, but each time failed to make a “print out” of the results.   Thereafter he refused to take a blood test;  he took the urine test but, although giving a satisfactory sample one time, was physically unable to give the required second sample.   The Department, claiming that he had “refused” to complete any of the tests, suspended his license.   On his petition for a writ of mandate, the trial court ruled in his favor and ordered the suspension cancelled and petitioner's driving rights restored.¹  We affirm.

Since, under the statute, a driver is given an option among the three tests, petitioner's refusal to take the blood test is immaterial.   The failure to complete the urine test is also immaterial because we agree with the trial judge that he had “completed ” the breath test.   The trial judge said, in his “Statement of Decision”:

“The Petitioner did in fact take and complete the breath test that was available to him and received a digital reading at the time the test was taken.   The law enforcement authorities did not offer any other breath testing machine to the Petitioner for his use at the time he was taking the chemical test and the Court will take judicial notice that the Police Departments of Redondo Beach and Hermosa Beach are within only a few minutes driving time from the Police Department of the Torrance law enforcement authorities.

“The breath testing machine used apparently was defective in that it failed to give a printout at the time it gave a digital reading, but it is not the responsibility of the Petitioner to provide the chemical breath testing machine and no other breath testing machine was offered him.”

Thus the case at bench differs widely from that considered in our recent decision in Gobin v. Alexis (1984) 153 Cal.App.3d 641, 200 Cal.Rptr. 397.   In Gobin:  (1) The driver was offered, and refused, a properly functioning device at a nearby police station;  and (2) in Gobin no satisfactory test result had been obtained, whereas, in the case before us, the device did give (so far as the record before us shows) at least two proper readings, although for unknown reasons the device did not record those results on tape.   As we have pointed out in footnote # 1, supra, the officers had results to which they could testify.

The judgment is affirmed.

FOOTNOTES

1.   The Department also objects to the language of the judgment, which reads as follows:  “IT IS ORDERED THAT:  [¶] 1. A peremptory writ of mandate shall issue from this Court remanding the proceedings to Respondent and commanding Respondent to set aside its decision dated February 16, 1983 suspending Petitioner's driver's license in connection with the proceedings referred to herein.  [¶] 2. Petitioner shall recover its costs in this action in the amount of $92.00.”   The Department objects to the portion of the judgment directing it “to take no further action in regard to such driver's license in connection with the proceedings referred to herein.”   We can see no error.   The police officers involved can testify to the digital readings, even though no “print out” is available, and, on that evidence seek a conviction for drunk driving.   If he is convicted at such trial, any license action would not be “in connection with” the suspension proceeding herein involved.

KINGSLEY, Associate Justice.

WOODS, P.J., and McCLOSKY, J., concur.