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Lee v. Department of Motor Vehicles3/16/1983
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION TWO
Civ. No. 54183
1983.CA.40985 ; 142 Cal. App. 3d 275; 191 Cal. Rptr. 23
March 16, 1983
CHARLES EDWIN LEE, PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF MOTOR VEHICLES, DEFENDANT AND RESPONDENT
Superior Court of San Mateo County, No. 255606, V. Gene McDonald, Judge.
Alfred C. Cavagnaro for Plaintiff and Appellant.
George Deukmejian, Attorney General, and Marian M. Johnston, Deputy Attorney General, for Defendant and Respondent.
Opinion by Smith, J., with Rouse, Acting P. J., and Miller, J., concurring.
Smith
Petitioner and appellant Charles Edwin Lee appeals from a denial of a petition for writ of mandamus or prohibition challenging a decision by respondent Department of Motor Vehicles (DMV) to suspend appellant's driver's license.
On the night of March 18, 1981, appellant was arrested for driving under the influence of alcohol. There is no dispute that the arresting officer, Sergeant Canning of the San Bruno Police Department, had reasonable cause to arrest appellant. After Sergeant Canning read appellant the Vehicle Code section 13353 admonition and his Miranda rights, appellant agreed to take a blood test.
A few minutes after appellant was stopped, Officer Sezgen of the San Bruno Police Department arrived at the arrest scene as a "cover" for Sergeant Canning. Officer Sezgen was present while Sergeant Canning questioned appellant, administered roadside sobriety tests and read the section 13353 admonition and
Miranda rights. However, Officer Sezgen testified that he was not really paying attention to what Sergeant Canning was actually saying or doing. Sergeant Canning requested Officer Sezgen to take appellant to the north county jail in Daly City for testing and booking.
According to Officer Sezgen's testimony, upon arrival at the jail, appellant refused to take any tests, even though Officer Sezgen reminded appellant that he would lose his license if he did not take one of the three chemical tests.
Appellant admits that Sergeant Canning read him the section 13353 admonition and his Miranda rights, and that he agreed to a blood test. However, appellant testified that he did not remember discussing his rights with Officer Sezgen or refusing to take the test.
According to appellant, sometime during the booking process he sustained a head injury which caused a two-inch "scar" over his right eye. Appellant claims that the injury left him in a state of shock or unconsciousness and that, as a consequence, he could not have effectively refused to take the test. DMV does not dispute that appellant did sustain such an injury, but maintains that appellant's refusal to submit to a test occurred before the injury. Appellant reasons that because the booking sheet, which mentions the scar, lists "2305" as the time of booking, while the officer's statement lists "2315" as the time of refusal, he must have sustained the injury before his refusal. Officer Sezgen explained the earlier time by offering that he may have written down the hour when he filled out the booking sheet and that the notation as to the scar was not on the booking sheet when he filled it out.
Appellant was released later that night. DMV issued an order of suspension of appellant's driver's license on Ap
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