HART v. DEPARTMENT OF MOTOR VEHICLES (1987)

OPINION

The Department of Motor Vehicles suspended William Layton Hart's drivers license for refusing to consent to a chemical test after he was arrested for driving under the influence of alcohol.   Hart unsuccessfully petitioned the superior court in mandate and now appeals.   He claims the evidence is insufficient to support the finding that he refused to consent and the California Vehicle Code section 13353 advisement does not comply with procedural due process.   We agree with the first contention and reverse.

I

The only evidence considered by the superior court was the DMV hearing transcript.   There, the parties agreed Hart was lawfully detained and arrested for driving under the influence on May 2, 1985.   A blood sample was admittedly obtained from Hart;  the contested issue was whether he refused to consent to its taking.

At the scene of the arrest, the officer advised Hart of his obligation to submit to a chemical test of his blood, breath, or urine pursuant to Vehicle code section 13353.¹  Hart opted for a breath test and was taken to the Orange County jail.   Once there, however, he refused that test, explaining he was afraid he would aggravate a recent severe back injury if he blew forcefully into the breathalyzer, as he was admonished to do.   The officer readvised Hart of the obligation to submit to a test, again reading from a card provided for that purpose.

The evidence as to the events which followed was in conflict.   According to the officer, Hart then refused to take any test. The officer announced a blood test would be administered anyway.   Although Hart never recanted his refusal, the officer conceded he fully cooperated in the administration of the blood test and in no way delayed the procedure.

By contrast, Hart denied the refusal at the jail and claimed to have chosen the blood test.   Echoing the officer's testimony, he testified to his full cooperation with the technician to accomplish withdrawal of the blood sample.

The hearing officer determined Hart was not a credible witness and found he had refused.   Because he had previously been convicted of drunk driving, Hart's driving privileges were suspended for one year.  (Veh.Code, § 13353, subd. (b).)  The superior court denied his petition for writ of mandate.

II

We are required to affirm the judgment if, considering the evidence in a light most favorable to the DMV, it is supported by any substantial evidence.  (Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 199 Cal.Rptr. 258.)   In our view, however, the evidence does not reach that level.

The purpose of the statute, the obtaining of a blood alcohol test, was served and with Hart's cooperation.   Taking the officer's testimony as the correct version of events, the conclusion drawn from it by DMV, i.e., that Hart violated the statute, is so manifestly unjust that we could only embrace it under the clearest statutory or decisional mandate.   We find neither.

The Attorney General cites numerous cases, but all are readily distinguishable.   For example, in Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 177 Cal.Rptr. 566, 634 P.2d 917 and Lampman v. Department of Motor Vehicles (1972) 28 Cal.App.3d 922, 105 Cal.Rptr. 101, the arrested drivers steadfastly refused to take any test or remained silent;  and no tests were even attempted.   After an initial refusal, the arrested driver in Dunlap v. Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 202 Cal.Rptr. 729 gave his consent, but was then unable to complete the urine test.  Westmoreland v. Chapman (1968) 268 Cal.App.2d 1, 74 Cal.Rptr. 363 involved an initial refusal, followed by consent, another refusal, another consent, and finally the officers' abandonment of all efforts to perform a chemical test.   In Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 81 Cal.Rptr. 348, 459 P.2d 900, the arrestee would not agree to any single test and instead insisted that all three be given;  none was.

In Walker v. Department of Motor Vehicles (1969) 274 Cal.App.2d 793, 79 Cal.Rptr. 433, the driver initially agreed to take a test, but then changed his mind and insisted on consulting an attorney;  no test was attempted.   The motorist in Hasiwar v. Sillas (1981) 118 Cal.App.3d 295, 173 Cal.Rptr. 358, on the other hand, consented to the breath test, but refused to give the required three breath samples.   The test was held not to have been completed within the meaning of Vehicle Code section 13353.

In only one case cited by the Attorney General, Barrie v. Alexis, supra, 151 Cal.App.3d 1157, 199 Cal.Rptr. 258, was a chemical test actually completed after a motorist's refusal, the situation we address.   There, the driver declined to choose a test at the scene of her arrest.   At the police station she refused all options, “[w]hereupon she was handcuffed to a gurney and transported to the hospital where a blood sample was taken, [the driver noting] she was taking the test under protest․”  (Id., at p. 1160, 199 Cal.Rptr. 258.)   The trial court granted a peremptory writ of mandate directing the DMV to vacate its order suspending the driver's license.   The appellate court reversed, observing, “At no time did Barrie in any manner manifest a retraction of her previous refusals to submit to any test [and] in fact ․ made her refusal clear at the time the test was being administered.”  (Id., at p. 1161, 199 Cal.Rptr. 258;  emphasis added.)   In other words, the test had to be taken by force.

The cases of Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165, 195 Cal.Rptr. 707 and Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 189 Cal.Rptr. 249, which the Barrie court relied on, are similar.   Although neither motorist resisted the taking of a blood sample by force, it was clear both continued to refuse and merely submitted to authority.   Cole would not roll up his sleeve;  and Morgan's own testimony acknowledged his acquiescence did not constitute consent:  “[I]t would be sheer stupidity to fight anybody.   If they're going to take a test, they're going to take a test.”  (Morgan v. Department of Motor Vehicles, supra, 148 Cal.App.3d at p. 171, 195 Cal.Rptr. 707.) ²

 There is no question Hart initially consented to the breath test.   When he realized the extent of physical exertion required, however, he balked;  and the evidence is conflicting as to whether he then orally refused to take any test.   Although Hart may not have verbalized his agreement to submit to a blood test, we do not believe any particular incantations are necessary to find sufficient compliance with the statute on these facts.

Assuming he did refuse orally, Hart indisputably cooperated without cavil in the taking of the blood sample;  and no time was lost.   In short, he bowed to the officer's decision and thereby fulfilled the statutory purpose, which is to obtain blood alcohol samples, not to further punish the tipsy motorist.   No more was required, except in DMV's literal, to-the-letter interpretation, which we reject.   Most any sound principle may to pushed to the point where it becomes ludicrous;  that point was reached here.

 We hold that an oral refusal will support a suspension where the officer elects to honor it, but not where he chooses to proceed with a test notwithstanding, the arrestee is entirely cooperative, and no appreciable time is lost as a result of the initial lack of a positive verbal response.³  Unsworn words, peacefully uttered and without larcenous design and which result in no damage to the government or anyone else, should very rarely, if ever, be punished in a free society.   The implied consent law is a fiction indulged by the law for overwhelming public policy considerations, but there is no concomitant basis for applying it in a fanciful or arbitrary manner.

The judgment is reversed, and the matter is remanded to the trial court with directions to issue a peremptory writ of mandate ordering the Department of Motor Vehicles to vacate its decision to suspend Hart's driving privileges.⁴

I dissent.

I cannot agree with the majority opinion.   It has cavalierly rewritten the facts.   It disregarded the language of Vehicle Code section 13353, and refused to follow well-settled rules of appellate review.   My colleagues have placed themselves in the position of the trial court and have exercised their independent judgment of the facts presented to the Department of Motor Vehicles.   This is in direct violation of the rule established almost 40 years ago by the Supreme Court in Moran v. Board of Med. Examiners (1948) 32 Cal.2d 301, 196 P.2d 20.   The court there declared, “the question before us is whether the evidence, viewed in the light most favorable to petitioner, sustains the findings of the trial court to the effect that the charges against petitioner were not supported by the weight of the evidence.”  (Id., at p. 309, 196 P.2d 20.)

Before setting forth this rule, the Moran court stated the previously established rules of appellate review.  “ ‘Thus, the ultimate power of decision rests with the trial court.’  ․ on appeal from the judgment of the trial court, ‘The rule as to our province is:  In reviewing the evidence ․ all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible.   It is an elementary ․ principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.   When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’  [Citation.]” (Id., at p. 308, 196 P.2d 20.)

As recognized by the majority, Officer Shaw's testimony was in direct conflict with Hart's as to whether Hart verbally refused to take the blood test.   That conflict was resolved against Hart and he was found to be lacking credibility.   Seeking to skirt the appellate review restrictions placed upon it by the trial court's resolution of this conflict, the majority makes its own interpretation of Hart's physical movements after he was told a blood sample was going to be taken despite his refusal.¹  My colleagues ignore the fact Hart testified he verbally told Shaw he would take the blood test.   His entire case was built upon the foundation of no refusal.   This foundation crumbled like the walls of Jericho due to Hart's total lack of credibility.   Had the trial court found Hart credible, it would be reasonable to conclude his cooperative movements during the obtaining of the blood sample were indicative of his intent to comply with section 13353's mandate, requiring the ultimate conclusion Hart never refused to take the blood test.²  However, in view of the trial court's finding on this fact, we must begin any analysis with the inference Hart verbally refused to take any test.

There are only two reasonable inferences which may be drawn from his cooperative actions which followed his verbal refusal. The majority infers “he acquiesced.”  (See maj. opn., p. 376.)   However, it is just as reasonable to infer Hart concluded, as did the driver in Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165, 195 Cal.Rptr. 707, “[I]t would be sheer stupidity to fight anybody.   If they're going to take a test, they're going to take a test.”  (Id., at p. 171, 195 Cal.Rptr. 707.) The only distinction between Hart and Morgan is the latter's testimony his cooperative actions did not constitute consent.   Hart, on the other hand, contended his cooperative actions corroborated his claim he verbally agreed to take the blood test.

The trial court concluded Hart's cooperation came not from a change of mind but from being advised by Shaw a blood sample would be withdrawn in any event. “Even if this court were of the opinion that that determination was wrong, it would not have the power to substitute its deductions for those of the trial court.   For, as has so often been said, when opposing inferences may reasonably be drawn from the facts in a case, the findings of the trial court will not be set aside.”  (McIntyre v. Doe & Roe (1954) 125 Cal.App.2d 285, 287, 270 P.2d 21.) ³

Contrary to the conclusion reached by the majority, Hart's conduct does not, as a matter of law, evidence a retraction of his earlier refusal to submit to one of the three tests and we are not free to reweigh the evidence or redetermine credibility.  (People v. Thornton (1974) 11 Cal.3d 738, 754, 114 Cal.Rptr. 467, 523 P.2d 267;  People v. French (1978) 77 Cal.App.3d 511, 523, 143 Cal.Rptr. 782;  People v. Cicero (1984) 157 Cal.App.3d 465, 471–472, 204 Cal.Rptr. 582.)   As noted above, this court is bound by the interpretation which is supportive of the trial court's ruling.   This the majority blatantly refuses to do.

But the majority has done more than rewrite the facts.   It, by judicial fiat, has legislated an amendment to section 13353. The section now includes the following language:  “If the arresting officer chooses to proceed with a test notwithstanding the arrestee's oral refusal and the arrestee is cooperative and no appreciable time is lost as a result of the initial lack of consent, the arrestee shall be deemed to have complied with this section and his license shall not be suspended.”  (See maj. opn., p. 376.)   This court has no right to legislate this proviso into the statute.   If it is advisable to amend the statute, the solution lies with the Legislature, not by a Court of Appeal.  (Orpustan v. State Farm Mut. Auto. Ins. Co. (1972) 7 Cal.3d 988, 994, 103 Cal.Rptr. 919, 500 P.2d 1119.)

There is substantial evidence to support the trial court's findings and we are bound to accept them even though the circumstances might reasonably be reconciled with contrary conclusions.  (People v. Salas (1978) 77 Cal.App.3d 600, 606, 143 Cal.Rptr. 755.)

FOOTNOTES

1.   When Hart was arrested on May 2, 1985, section 13353, subdivision (a) provided, “Any person who drives a motor vehicle shall be deemed to have given his [] consent to chemical testing of his [] blood, breath, or urine for the purpose of determining the alcoholic content of his [] blood ․.   The 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.   The person shall be told that his [] failure to submit to, or the noncompletion of, the required chemical testing will result in ․ the suspension of the person's privilege to operate a motor vehicle for a period of one year if the person has previously been convicted of a violation of Section 23152 [or] 23153 ․ within five years of the date or the refusal. ․  [¶] [T]he person shall have the choice of whether the test shall be of his [] blood, breath, or urine, and the person shall be advised by the officer that he [] has that choice.   If the person arrested either is incapable, or states that he [] is incapable, of completing any chosen test, the person shall then have the choice of submitting to and completing any of the remaining tests or test, and the person shall be advised by the officer that the person has that choice. ․“․[] The person shall also be advised by the officer ․ that, in the event of refusal to submit to a test or tests, the refusal may be used against him [] in a court of law. ․”

2.   Nor does this case resemble Covington v. Department of Motor Vehicles (1980) 102 Cal.App.3d 54, 162 Cal.Rptr. 150 and Skinner v. Sillas (1976) 58 Cal.App.3d 591, 130 Cal.Rptr. 91, in which arrestees relented long after the arresting officer had departed and were administered tests by others.   The consent must be given to the arresting officer, who is not required to loiter for hours in the stationhouse in hopes that the suspect will eventually agree to a blood alcohol test of ever decreasing usefulness with the passage of time.   Unlike the present matter, the motorists in Covington and Sillas did frustrate the statutory purpose.

3.   Even as children are taught “sticks and stones may break my bones, but words will never hurt me,” DMV could well heed the saw that actions speak louder than words.

4.   Our resolution of this question renders unnecessary any consideration of Hart's second appellate issue.

1.   The majority has seen fit to rewrite the facts in an effort to support its position.   Contrary to their representation at page 3, Hart did not testify “he was afraid he would aggravate a recent severe back injury if he blew forcefully into the breathalyzer.”   The transcript reveals the following testimony by Hart:  “About three days prior to my arrest, I injured my back and the pain in my back was beginning to bother me and for me to—to do the breath test I felt like by the blowing it would—it would cause undue pain, so at that point I said that I would not take the breath test.”Nor is there any reference in the record to his being admonished he was to forcefully blow into the breathalyzer as asserted by the majority.   Indeed, there is no evidence Officer Shaw ever informed Hart how the breath examination would be performed.   There is evidence, however, to conclude, because of Hart's previous conviction for driving under the influence, he was well aware of the procedures involved and the consequences of another conviction.

2.   The majority begins its discussion with, “Assuming he did refuse orally,” however, no assumption is required where the trial court made a specific finding which is binding upon a reviewing court.   There certainly is no question there can be no finding as a matter of law the evidence does not support the trial court's finding Hart verbally refused to submit to a blood test.

3.   I do not intend to indicate that once a refusal has been manifested, it may never be retracted. Had Hart indicated a change of mind in the same fashion he had manifested his refusal, I have no doubt a different conclusion would obtain.   Here, however, the trial court found Hart verbally refused to take the breath test after agreeing to take it and that he verbally refused to take either the urine or blood test. When told the officer was going to take blood anyway, Hart remained silent.   At no time did he advise anyone he had changed his mind.

CROSBY, Associate Justice.

WALLIN, Acting P.J., concurs.