Refusal to Take BAC Test In California DUI Case

The Department of Motor Vehicles may suspend a driver’s license based on failure to submit to alcohol testing even in the absence of a finding the driver was operating a vehicle at the time of the refusal, the First District Court of Appeal has ruled.

Taking sides is a dispute it said had split California’s appellate courts for more than a decade, Div. Three on Tuesday took issue with two rulings by the Fifth District Jackson v. Pierce (1990) 224 Cal.App.3d 964 and Medina v. Department of Motor Vehicles (1987) 188 Cal.App.3d 744.

Presiding Justice William R. McGuiness said the better argument was that made by the DMV in support of its suspension of Terry Troppman’s license. Following the Fifth District’s 1988 decision in Rice v. Pierce, 203 Cal.App.3d 1460, and the Sixth District’s ruling in Machado v. Department of Motor Vehicles (1992) 10 Cal.App.4th 1687, McGuiness concluded that proof of actual driving is not required to support a license suspension or revocation in chemical refusal cases under Vehicle Code Sec. 13353.

Slumped in Van

A police officer woke Troppman at 10:45 p.m. on a Thursday evening in January of 2003 after finding her slumped over in the driver’s seat of a parked van. She was the only occupant, and the officer said he smelled alcohol and thought she appeared inebriated.

He arrested her after she failed field sobriety tests. At the police station she twice attempted to take a breath test without success, and then refused further testing.

At the administrative hearing Troppman conceded she was an alcoholic and had been drinking, but testified she had parked before she consumed quite a few glasses of wine and did not drive afterward.

The hearing officer concluded the arresting officer had reasonable cause to believe Troppman was driving drunk, but did not make a finding that she operated the van after drinking. A San Mateo Superior Court judge, relying on the Fifth District cases, ordered the resulting suspension set aside.

McGuiness noted the Troppman never challenged the lawfulness of her arrest. Hence, he reasoned, the case did not present the question of to what extent state high court case law requiring an officer to observe vehicular movement prior to making a drunk driving arrest was abrogated by subsequent legislation permitting arrests without such an observation where there is a risk that evidence may be destroyed by the passage of time.

Vehicle Code Mandates

The presiding justice pointed out that Sec. 13353 specifically requires hearing officers to review whether the officer making the arrest had reasonable cause to believe the arrestee was driving while under the influence, and to determine whether the arrestee was advised of the consequences of refusing to be tested.

McGuiness declared:

We agree with the reasoning of Rice and Machado. It is apparent the Legislature enacted section 13353 to give police officers a tool to obtain chemical testing from drunk driving suspects without having to resort to physical compulsion. Although the Legislature expressly conditioned the use of section 13353 upon a lawful arrest for driving under the influence and upon the officer’s reasonable belief that the arrestee was so driving, nowhere does the statute make suspension of the arrestee’s license conditional upon proof that he or she was actually driving at the time of the alleged offense. While the distinction between proof necessary to administer a chemical test and proof necessary to suspend a person’s driver’s license may hold some rhetorical appeal, we find no support for such a distinction in the language of the statutes. If the Legislature wished to make suspension of a person’s license under section 13353 conditional upon a finding that the person was actually driving at the time of the alleged offense, it could have easily added this subject to the required findings enumerated in the statute.

He continued:

Instead, under the language of section 13353, it is sufficient that the arresting officer has reasonable cause to believe the person had been driving’ while under the influence of drugs or alcohol.

Justices Carol Corrigan and Stuart Pollak concurred, but Pollak wrote separately to argue that it was unnecessary for the court to derive authority for the license suspension from the doctrine of implied consent.

Pollak wrote:

There is no constitutional or other impediment to the Legislature authorizing the forfeiture of a driver’s license if the person, lawfully arrested for suspected drunken driving and properly warned of the consequences…, refuses to submit to a chemical test of intoxication.

Troppman’s license suspension was valid, Pollak explained, not because she impliedly consented to submit to a chemical test under the circumstances, but because the validity and enforceability of section 13353 does not require such consent on her part.

The case is Troppman v. Gourley, 05 S.O.S. 761.

Thursday, February 10, 2005

By DAVID WATSON, Staff Writer

Copyright 2005, Metropolitan News Company

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