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Cole v. Department of Motor Vehicles2/14/1983
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
Civ. No. 65099
1983.CA.41083 ; 139 Cal. App. 3d 870; 189 Cal. Rptr. 249
February 14, 1983
LESTER COLE, PLAINTIFF AND RESPONDENT,
v.
DEPARTMENT OF MOTOR VEHICLES, DEFENDANT AND APPELLANT
Superior Court of Los Angeles County, No. EAC36896, Arthur Baldonado, Judge.
George Deukmejian, John K. Van de Kamp, Attorneys General, and Martin H. Milas, Deputy Attorney General, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Opinion by Compton, J., with Roth, P. J., and Beach, J., concurring.
Compton
This is an appeal from a judgment granting a peremptory writ of mandate directing appellant, the Department of Motor Vehicles, to vacate its action suspending respondent Lester Cole's driving privilege for failure to submit to a blood, breath, or urine test as required by Vehicle Code section 13353, the implied consent law. We reverse the judgment.
The undisputed facts presented at the departmental hearing concerning respondent's conduct were provided by the testimony of the arresting officer, a member of the California Highway Patrol.
Respondent was lawfully arrested for felony drunk driving at the scene of an injury accident. While at the scene he was given all of the proper admonitions concerning the submission to a chemical test of his blood alcohol level.
Respondent's reply was that he would submit to no test without first consulting an attorney, whereupon the officer advised respondent that such an option was not available and again repeated the law to respondent by reading from a prepared form. Respondent again insisted on talking to an attorney before submitting to any test.
Once in the patrol car, the officer carefully advised respondent that because he had been arrested for felony drunk driving , a blood sample could be extracted even without his consent. The appropriate Miranda warnings were given at approximately the same time. In light of respondent's continuing refusal to submit to any test voluntarily, the officer elected to proceed to a hospital.
After arriving at the hospital's emergency room, the officer directed a medical technician to draw the blood sample. Respondent, refusing to roll up his sleeve, warned that he wanted the record to reflect that the test was being administered under duress. The officer and technician then rolled up the sleeve on respondent's shirt and the sample was withdrawn. Throughout these proceedings respondent remained essentially passive and offered no resistance.
At the hearing respondent testified that he had no recollection of telling the officer that he wanted him to know that the blood sample was being taken by force or of refusing to roll up his own sleeve. He claimed, however, that at or
about the time his arm was being prepared by the medical technician for the extraction he "thought about it and thought that I better take the test." When asked by his counsel why he changed his mind, respondent replied, "because I need my driver's license to work." The record next reflects the following colloquy between the administrative referee and respondent: "Ref. Harrison: Did you ever tell the officer I've changed my mind, its okey. I'll take the test? Or words to that effect? Mr. Cole: I did not s
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