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Ormonde v. Department of Motor Vehicles3/17/1981
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
Civ. No. 19324
1981.CA.40881 ; 117 Cal. App. 3d 889; 173 Cal. Rptr. 79
March 17, 1981
STEVEN KENNETH ORMONDE, PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF MOTOR VEHICLES, DEFENDANT AND RESPONDENT
Superior Court of San Joaquin County, No. 142623, Bill L. Dozier, Judge.
Drivon & Bakerink, Stewart M. Tabak and Laurence E. Drivon for Plaintiff and Appellant.
George Deukmejian, Attorney General, and Jeffrey L. Gunther, Deputy Attorney General, for Defendant and Respondent.
Opinion by Paras, Acting P. J., with Evans and Carr, JJ., concurring.
Paras
Plaintiff appeals from denial of his petition for a writ of mandamus (Code Civ. Proc., § 1094.5) to compel the Department
of Motor Vehicles (DMV) to vacate its suspension of his driver's license (Veh. Code, § 13353).
The facts are not in dispute. Patrolman Wolf of the Tracy Police Department stopped the vehicle plaintiff was driving after observing it cross the double yellow line several times within a short distance. After administering a set of field sobriety tests, which plaintiff "failed," Wolf told plaintiff he was being detained for possible drunk driving , placed him in the back seat of his patrol car, and transported him to the police station for chemical testing. On the way to the station, Wolf told plaintiff about the chemical tests and advised him he "could" lose his driver's license if he refused to take one of the tests. He also said if plaintiff "passed" a chemical test he would be released and returned to his vehicle.
When they arrived at the station, Wolf again explained that defendant "could" lose his license if he refused a test. Plaintiff's response was that he wanted to talk to his attorney. Wolf told plaintiff he did not have the right to see an attorney first and repeated the advice before reading the standard admonition, word for word, to plaintiff. The standard admonition states that refusal or failure to take a test "will" result in license suspension. Plaintiff again refused to submit to testing before seeing his attorney, and he was booked.
In his writ application, plaintiff alleged that the word "could," used thrice in the process of advising him of the consequences of refusal to take a test, excused his refusal and made the suspension unlawful. At the superior court hearing, the question of the effect of use of the word "detain" as opposed to "arrest" during the vehicle stop was also pursued, and the parties submitted additional briefs on the subject of the timing of the arrest. The court found Wolf arrested plaintiff at the stop site, and plaintiff's repeated requests to speak to his attorney demonstrated his understanding of his status at that point. It also found that plaintiff's contention of excuse via an inappropriate warning failed under Smith v. Department of Motor Vehicles (1969) 1 Cal. App. 3d 499 [81 Cal. Rptr. 800].
Plaintiff apparently concedes that California courts determine whether or not there has been an arrest by looking to the essential elements of taking into custody, and actual restraint or submission to custody. (See Pen. Code, §§ 834, 835; People v. Parker (197
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