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Morphew v. Department of Motor Vehicles11/24/1982
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE
Civ. No. 53890
1982.CA.40133 ; 137 Cal. App. 3d 738; 188 Cal. Rptr. 126
November 24, 1982
ROY EDWARD MORPHEW, PLAINTIFF AND RESPONDENT,
v.
DEPARTMENT OF MOTOR VEHICLES, DEFENDANT AND APPELLANT
Superior Court of Monterey County, No. M10669, Harkjoon Paik, Judge.
George Deukmejian, Attorney General, and Harold W. Teasdale, Deputy Attorney General, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Opinion by Scott, J., with White, P. J., and Barry-Deal, J., concurring.
Scott
The department of Motor Vehicles (hereafter DMV) appeals from a judgment of the Superior Court of Monterey County granting a peremptory writ of mandate to vacate an order suspending respondent's driver's license. Respondent has not filed a brief. We have concluded that the order of
the DMV was correct and that the judgment of the superior court should be reversed.
At the administrative hearing before the DMV, Monterey Police Officer Tognotti testified that at approximately 2 a.m. on January 25, 1980, he noticed respondent Roy Morphew driving with excessive speed, rapid acceleration, and without maintaining control of his vehicle. Respondent displayed the typical symptoms of intoxication when he exited his vehicle, that is, lack of balance, odor of alcohol, slurred speech, and bloodshot eyes. Owing to uneven terrain at the location of the stop, the arresting officer transported respondent to the police station to perform the field sobriety test.
En route to the station, the officer advised respondent that he had a choice between a blood, breath, or urine test, and that the officer would read him something pertaining to the test when they arrived at the station so that respondent could make up his mind.
Respondent failed the field sobriety test administered at the police station. Thereupon, the officer attempted three times to read respondent a statement explaining the provisions of Vehicle Code section 13353. Respondent listened as the officer read. The officer succeeded each time in reading one-quarter to one-half of the statement, at which point respondent interrupted the officer by approaching him and stating that he had passed the sobriety test. Each time, the officer instructed respondent to return to the place where he had been standing, and recommenced the admonishment. As respondent interrupted the officer the third time, he approached the officer and attempted to strike him with his fist. Officer Tognotti and another officer restrained respondent and placed him in a cell. Before they placed him in the cell, respondent, whose language was becoming very abusive, said, "I am not going to take the fucking test." Officer Tognotti considered respondent's behavior a refusal of the chemical test. The officer never reached that portion of the statement that explained that failure to submit to or to complete a chemical test would result in a six-month suspension of the respondent's driver's license.
Respondent denied that he was told he had a choice among three tests, and denied that the officer ever attempted to read anything to him. He claimed that after being placed in the holding cell, he asked about an "alcohol content" test, but the officer ignored the question. He also acknowledged
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