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Burkhart v. Department of Motor Vehicles9/30/1981
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
Civ. No. 5968
1981.CA.40305 ; 177 Cal. Rptr. 175; 124 Cal. App. 3d 99
September 30, 1981
JOHN EARL BURKHART, PLAINTIFF AND RESPONDENT,
v.
DEPARTMENT OF MOTOR VEHICLES, DEFENDANT AND APPELLANT
Superior Court of Tulare County, No. 95912, David L. Allen, Judge.
George Deukmejian, Attorney General, Richard D. Martland, Assistant Attorney General, and Jeffrey J. Fuller, Deputy Attorney General, for Defendant and Appellant.
Jerry Sanders for Plaintiff and Respondent.
Opinion by Andreen, J., with Zenovich, Acting P. J., and MacIntosh, J., concurring.
Andreen
The Department of Motor Vehicles (DMV or Department) appeals from a judgment granting a peremptory writ of mandate which ordered it to reissue the suspended driver's license of respondent John Earl Burkhart (Burkhart).
Facts
Burkhart was arrested for driving under the influence of alcohol (Veh. Code, § 23102, subd. (a)) on June 8, 1979.
On the same date, the arresting officer executed a statement under penalty of perjury as required by section 13353. In pertinent part, the statement reads: "At the time of arrest, I had reasonable cause to believe the person arrested had been driving a motor vehicle upon a highway while under the influence of intoxicating liquor. Among those actions which led me to that belief were:
"Driving Observations: Exceeding the speed limit i.e. 22348 CVC and unsafe turn i.e. 22107 VC
". . . .
"Objective symptoms of alcoholic intoxication: Odor of an alcoholic beverage and unable to satisfactorily pass the field sobriety tests
"I read the following statement to the arrested person: John Earl Burkhart
"You are required by state law to submit to a chemical test to determine the alcoholic content of your blood. You have a choice of whether the test is to be of your blood, breath or urine. If you refuse to submit to a test or fail to complete a test your driving privilege will be suspended for a period of six months. You do not have the right to talk to an attorney or to have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the administration of the test chosen. If you are incapable, or state you are incapable, of completing the test you choose, you must submit to and complete any of the remaining tests or test.
"The person arrested refused to submit to or failed to complete any such test. His refusal or failure was indicated by the following statements or actions:
"Will you take a blood test? Ans. 'No'
"Will you take a breath test? Ans. 'No'
"Will you take a urine test? Ans. 'No'
"'I don't need a license to drive!'"
On July 13, 1979, an accusation was filed with DMV seeking the suspension of Burkhart's driver's license for noncompliance with the implied consent law. (§ 13353.) The driver filed a timely notice of defense and requested a hearing pursuant to section 14107.
After having been rescheduled twice because of the failure of the arresting officer to appear, an informal hearing was held -- again without
the presence of the officer because this time he was on vacation. The minutes of the referee at the informal hea
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