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Miles v. Alexis3/30/1981
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
Civ. No. 59482
1981.CA.40829 ; 118 Cal. App. 3d 555; 173 Cal. Rptr. 473
March 30, 1981
MICHAEL D. MILES, PLAINTIFF AND APPELLANT,
v.
DORIS V. ALEXIS, AS DIRECTOR, ETC., ET AL., DEFENDANTS AND RESPONDENTS
Superior Court of Ventura County, No. SP 49086, Steven J. Stone, Judge.
James R. Christiansen for Plaintiff and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General and John J. Crimmins, Deputy Attorney General, for Defendants and Respondents.
Opinion by Spencer, P. J., with Lillie, J., and Dalsimer, J., concurring.
Spencer
Introduction
Petitioner Michael D. Miles appeals from a judgment denying his petition for a writ of mandate in which he sought to compel respondent Department of Motor Vehicles to vacate its order suspending his driving privilege for six months under Vehicle Code section 13353 on the ground that petitioner refused to submit to a blood alcohol test upon his arrest for driving under the influence of alcohol.
Statement of Facts
On January 10, 1978, petitioner was arrested for driving under the influence of an intoxicating beverage. (Veh. Code, § 23102, subd. (a).) The arresting officer advised him that he was required to submit to a blood alcohol analysis (Veh. Code, § 13353), and that he had a choice of a blood, breath or urine test. Petitioner elected a urine test, and the arresting officer told him that he would be required to first void his bladder and then to produce a urine sample 20 minutes later.
Petitioner voided his bladder and the officer retained the voided urine. Twenty minutes later, the arresting officer told petitioner to produce the urine sample, and that if he was incapable of doing so he would have to elect another test. Petitioner was unable to produce the sample. The officer offered him a choice of blood or breath tests. Petitioner refused both.
On February 7, 1978, petitioner's driver's license was suspended due to his failure to submit to or complete a blood alcohol test upon arrest. The suspension was upheld after a Department of Motor Vehicles administrative review of the case.
Contention
Petitioner contends that as a matter of law his act in providing the voiding specimen to the arresting officer constitutes valid compliance with the dictates of Vehicle Code section 13353 which requires that upon arrest for driving under the influence a driver is required to submit to either a blood, urine or breath analysis to determine blood alcohol content.
Discussion
Petitioner contends that he complied with the requirements of Vehicle Code section 13353 by providing a specimen of preliminarily voided urine, and, therefore, his driving privilege should not be suspended for six months as provided by the statute for failure to comply. We find no merit in this contention.
Compliance with the implied consent law (Veh. Code, § 13353) consists of completing, not merely attempting, one of the three bloo
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