License Suspension Refusal Goes Before CA Supreme Court

The California Supreme Court will use a San Mateo County case to decide whether a suspected drunken driver can have her license suspended for refusing to be tested for alcohol even if police never saw her driving.

All seven justices voted Wednesday to review Terry Troppman's appeal of her one-year license suspension. The court will hold a hearing at a future date Troppman was spotted by a Belmont police officer slumped in the driver's seat of a parked van in January 2003. She failed field sobriety tests and admitted she had been drinking from a wine bottle found in the van, but testified later that she had pulled over and parked before starting to drink. She was unable to complete a breath test and refused to take a blood test, according to court records.

Under California law, anyone who drives a car implicitly agrees to submit to a test for alcohol or face a license suspension. In upholding Troppman's suspension by the Department of Motor Vehicles, a state Court of Appeal panel in San Francisco ruled in February that the requirement covers any case in which police reasonably suspect the person had been driving while drunk.

To go further and require proof that the person had actually been driving "would undermine the policy goals of encouraging cooperation in testing and deterring of drunk driving,'' said Justice William McGuiness.

But Troppman's lawyer, John Halley, said in a Supreme Court appeal that implicit in the law is a requirement that authorities show proof of actual driving, because "it is the act of driving from which consent (to be tested) is implied.'' The case is Troppman vs. Gourley, S13249.

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DRUNK DRIVING - LICENSE SUSPENSION - NO EVIDENCE OF DRIVING REQUIRED

Troppman v. Gourley (2005) Cal.App.4th , 05 C.D.O.S. 1190 First Dist., 2/8/05, A105287

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT - DIVISION THREE (PDF Download)

License of suspected drunk driver may be suspended or revoked for refusal to submit to chemical test even in absence of finding that person was actually driving a car at the time of the offense. Follows its prior decision in Rice v. Pierce (1988) 203 Cal.App.3d 1460, and declines to follow Jackson v. Pierce (1990) 224 Cal.App.3d 964 (from the Fifth).

Use Note: the driver in this case was slumped over the wheel of a stopped car, and was the only occupant. I think the result would be different if a drunken licensee was being driven home by a designated driver. Here the arresting officer had reasonable cause to believe licensee had been driving.

By Bob Egelko, Chronicle Staff Writer

Friday, May 20, 2005

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