Collins v. Shiomoto























Filed 3/11/13 Collins v. Shiomoto CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

GARY DONALD COLLINS, Plaintiff and Appellant, v. JEAN SHIOMOTO, as Chief Deputy Director, etc., Defendant and Respondent.

G047195 (Super. Ct. No. 30-2011-00524051) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Derek W. Hunt, Judge.
Affirmed.

Law Offices of Chad
R. Maddox and Chad
R. Maddox for Plaintiff and Appellant.

Kamala D. Harris,
Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Celine M.
Cooper and Darren Shaffer, Deputy Attorneys General, for Defendant and
Respondent.

The Department of Motor
Vehicles (DMV) suspended Gary Donald Collins’ driving privileges for his
refusal to submit to, or failure to complete, a chemical test for blood alcohol
content (Veh. Code, § 13353, subd. (a)(1)).
Collins sought an order from the trial court, via a petition for peremptory writ of mandate, directing the DMV to set
aside the suspension. Collins appeals
from the trial court’s judgment denying his petition. Collins argues he did not refuse a chemical
test of his blood alcohol content and law enforcement officers used unlawful
force against him in obtaining the chemical test. None of his contentions have merit, and we
affirm the judgment.

FACTS

The statement of facts
is taken from the administrative record. There is no dispute as to the facts of the
case.

One summer evening, a
citizen witness reported to the Huntington Beach Police Department an
intoxicated person with a red stain on his shirt at a grocery store. Officer Placentiahref="#_ftn1" name="_ftnref1" title="">[1]
responded to the store. Placentia
saw a man, who was later determined to be Collins, pushing a shopping cart in a
crooked manner. After he pushed the cart
into a cement planter, Collins eventually made it to his vehicle and fumbled
with his keys.

When Officer David
Dereszynski arrived, he saw Collins sitting in his vehicle with the driver’s
side door open. Collins closed the door,
started the vehicle, backed up the vehicle, drove for a short distance, made a
U-turn, and stopped near a shopping cart corral. Collins began driving again, and Placentia
activated his emergency lights and initiated a vehicle stop. Collins pulled into a marked parking stall,
slightly askew, and the vehicle kept moving forward. The vehicle hit a cement bumper and Collins’
head bounced forward from the impact.

Dereszynski approached
the driver and saw he matched the description given by the citizen
witness. Dereszynski saw a closed
12-pack of beer in the front of the car and a cooler with eight beers
inside. Dereszynski turned his attention
to Collins and saw objective symptoms of alcohol intoxication; Collins failed
to complete the nystagmus test three times.
Dereszynski asked Collins to get out of his vehicle. Collins did so but with difficulty, and he
had to lean on his vehicle to maintain his balance.

Dereszynski asked
Collins pre-field sobriety test questions.
Collins spoke in a confused manner and refused to answer many of the
questions, stating they were not pertinent to their conversation. The questions he did answer, he answered by
asking a question. He was generally a
wisenheimer. Collins’ speech was slurred
and he reeked of alcohol. Although
Collins was cooperative, Dereszynski believed Collins’ non-responsiveness and
rambling responses indicated he was trying to delay the investigation.

Dereszynski attempted to
explain and administer the field sobriety tests to Collins but he did not
follow directions and continued to ramble largely in a nonsensical manner. Collins was unable to complete the field
sobriety tests. When Dereszynski told
Collins to sit down on a curb, Collins said, “‘I can do that,’” but when he sat
down, he fell backwards and his feet flew in the air. Dereszynski arrested Collins. During the encounter, Dereszynski repeatedly
told Collins he would have to submit to a blood or breath chemical test but
Collins was silent.

Based on Collins’
conduct at the scene, Dereszynski determined it would be prudent as a
preventative measure to place Collins in the restraint chair while the chemical
test was administered. Dereszynski
provided his reasoning for doing so:
“Since [Collins] was evasive and passively uncooperative at the scene,
[Dereszynski] felt it would be best to place [Collins] into the restraint chair
as a preventative measure while the chemical test was administered. Normally an arrestee is searched,
unhandcuffed, and released to a booking cell.
With subjects who are uncooperative or other behaviors are observed, it
is safer for them to be placed into the restraint chair prior to being
handcuffed. This mitigates any issues
with trying to move or place a free moving unrestrained subject into the
restraint chair.”

Collins was cooperative
as officers directed him to sit in the restraint chair. Officers secured Collins in the restraint
chair without incident; straps were secured in an “X” fashion across his chest
and his arms were strapped to the floor.
Collins agreed to submit to a breath test.

Dereszynski told Collins
he could not “burp, belch, vomit, or regurgitate[]” and the test would be
administered after a 15 minute observation period. Collins asked for water but Dereszynski told
him he could not have anything in his mouth for

15
minutes and he could give Collins water after the test. After Collins asked about the restraint
chair, a conversation about whether Collins was uncooperative ensued. Dereszynski agreed Collins had not resisted
arrest, but he explained to Collins that he had not followed directions or
answered questions in a responsive manner.

After the observation
period had nearly passed, the following colloquy occurred:

“Dereszynski: Okay.
Are you willing to do this breath test in about a minute?

“Collins: No.

“Dereszynski: Do you want to attempt to do this breath
test?

“Collins: No.

“Dereszynski: Will you do a blood test?

“Collins: No.

“Dereszynski: All right, [Collins], since you are refusing
to do the breath test and the blood test, I am going to go over -- read all
this stuff to you; okay?

“Collins: I believe that the charges are shopping while
intoxicated, and that’s -- that’s what -- I see what you’re doing, and --”

Dereszynski read the
entire chemical test admonition to Collins and again asked Collins whether he
would submit to a breath test. The
following colloquy occurred:

“Collins: Sir, I have been asking for a drink of water
since you have taken me into your custody, at whatever hour that was. That was possibly [eight]-something in your
book, and you refused to give me water; and my situation was I was shopping for
some groceries, and --

“Dereszynski: Will you take a breath test?

“Collins: -- you stopped me.

“Dereszynski: Yes or no?


“Collins: Within my legal rights, within the
Constitution, I will comply with whatever appropriate.

“Dereszynski: Will you take a breath test?

“Collins: Within my legal rights within the
Constitution, I would --

“Dereszynski: I don’t know if that means ‘yes’ or
‘no.’ Will you take a breath test?

“Collins: Sir, you are the legal --

“Dereszynski: Will you take a blood test?

“Collins: Sir, are you the legal expert in this
case?

“Dereszynski: Yes.
Will you take a blood test?

“Collins: Sir, I asked you within a legal right to the
Constitution of the United States whether it is appropriate. Are you able to consult me, or is that
something I need to -- further in this conversation?”

“Dereszynski: I take that refusal to answer the questions
as a ‘no.’”

Dereszynski advised
Collins that his partner was going to take Collins’ blood. Collins repeatedly asked whether “this [was]
the only legal recourse” he had.
Dereszynski advised Collins he had two choices and Collins chose
neither, Collins disputed he said, “No.”
After Dereszynski explained he interpreted Collins’

non-responsiveness
as a refusal to take either test, Collins stated: -- within the Constitution of the United
States, does this -- what are my options?”
Dereszynski replied he knew his options.
A nurse obtained a blood sample from Collins without incident.

Three months later, a
DMV Administrative Per Se hearing was held.
The hearing officer considered the police and DMV records, and a DVD of what
transpired at the jail. About two weeks
later, the DMV suspended Collins’ license based on the following: (1) there was reasonable cause to conclude
Collins was driving under the influence; (2) Dereszynski lawfully arrested him;
(3) Dereszynski advised Collins the DMV would suspend or revoke his driving
privilege is he refused to complete the required testing; and (4) Collins
refused to complete the required testing.

Two days later, Collins
filed a “petition for peremptory writ of mandamus,” and the Attorney General
answered.

Collins filed an href="http://www.mcmillanlaw.com/">opening brief in support of his
petition. Collins argued the
following: (1) a writ of mandate was the
proper remedy; (2) relying on Berlinghieri
v. Department of Motor Vehicles (1983) 33 Cal.3d 392 (Berlinghieri), the trial court must review the DMV’s suspension of
his driver’s license de novo; (3) Collins did not refuse to submit to any
constitutionally administered chemical test; (4) officers used excessive force against
him when they secured him in the restraint chair; (5) the Vehicle Code’s
administrative license suspension procedures purpose was carried out because
officers obtained a blood sample without incident from Collins; and (6) Collins
was entitled to attorney fees and costs.
The Attorney General filed her opposition, and Collins filed his reply.

At a hearing in June
2012, the trial court heard and considered written and verbal arguments and
took the matter under submission. The
trial court began by stating “This is not a writ of administrative
mandamus. This is a request for a writ
of mandate, as I see from the papers.”
The court then described the facts of the case. In response to a question from the court
about the nature of the case, Collins’ counsel explained the case was about two
things, use of the restraint chair and whether Collins refused to submit to a
chemical test. When the court inquired
whether the appropriateness of the chair was raised at the Administrative Per
Se hearing, Collins stated at least “indirect[ly] because we were looking at
the fair meaning to be given the words and conduct of [Collins] . . . in
context.” The court asked the Attorney
General whether the issue was one of a due process violation or administrative
mandamus, and the Attorney General responded, “it’s a red herring[]” as the
officer demonstrated great patience in dealing with Collins. When the issue of the DVD of the encounter
came up, Collins’ counsel asked the court to review the DVD.

The trial court returned
to the distinction between administrative mandamus and a writ of mandate. After the court quoted language from >Berlinghieri, supra,

33
Cal.3d 392, indicating it reviews an administrative agency’s decision affecting
a fundamental vested right de novo, the court inquired of Collins’ counsel
whether that is what he was asking the court to do. He replied, “Absolutely.” The court stated it was to consider “a due
process question,” and Collins’ attorney answered, “Yes, at least one.” As the court discussed whether it was the DMV
that should be concerned with the issue of whether there was a due process
violation, Collins’ counsel asked for permission to speak. He stated, “Now, I’ve heard the court’s
thoughts on this, I understand why the court is struggling with this idea. I want to be clear about what the petitioner
is seeking in this case. He’s not
seeking any sort of redress for his due process violations.” The court said, “[Collins] wants his license
back.” Collins’ counsel stated, “Correct
. . . .” The court stated administrative
mandamus review was proper, and Collins counsel agreed. Collins’ counsel added, “I think that it
still requires the court to use its independent judgment when it reviews the
administrative hearing.” The court
responded, “Well, that’s not exactly the way that it was phrased on the hearing
case, but it says I have to do both.”
The trial court took the matter under submission. A few days later, the trial court denied the
petition.

The Attorney General
submitted a proposed order finding Collins refused to submit to a chemical
test. Collins did not object.

On July 11, 2012, the
trial court filed an order denying Collins’ petition for writ of mandate and
entered judgment in favor of the DMV.
The court explained it had read the moving papers and the administrative
record, which contained a transcript of the encounter and a copy of the DVD.href="#_ftn2" name="_ftnref2" title="">[2] The court ruled: “The court finds that [Collins] refused to
submit to a chemical test for blood or breath following his arrest for driving
under the influence despite being asked to do so by a peace officer and after
being advised of the consequences for his refusal.”

DISCUSSION

>I.
Standard of Review

Relying on various
comments the trial court made at the hearing, Collins argues the court applied
the incorrect standard of review. We
disagree.

“If the decision of an
administrative agency will substantially affect a ‘fundamental vested right,’
then the trial court must not only examine the administrative record for errors
of law, but also must exercise its independent judgment upon the evidence. [Citation.]”
(Berlinghieri, supra, 33
Cal.3d at p. 395.) A driver’s license is
a fundamental vested right. (>Id. at p. 398.)

“On appeal, we ‘need
only review the record to determine whether the trial court’s findings are
supported by substantial evidence.’
[Citation.] ‘“We must resolve all
evidentiary conflicts and draw all legitimate and reasonable inferences in
favor of the trial court’s decision.
[Citations.] Where the evidence
supports more than one inference, we may not substitute our deductions for the
trial court’s. [Citation.] We may overturn the trial court’s factual
findings only if the evidence before the trial court is insufficient as a
matter of law to sustain those findings.
[Citation.]”’ [Citations.]” (Lake
v. Reed (1997) 16 Cal.4th 448, 457.)


Here, at the hearing,
the trial court discussed Berlinghieri,
supra, 33 Cal.3d 392, concerning the proper standard of review. In trying to ascertain the nature of Collins’
complaint, the court explored at length the distinction between administrative
mandamus and a writ of mandate. We note
Collins’ counsel initially had difficulty articulating the relief he sought for
his client. In the beginning of the
hearing when the trial court stated “we’re not worrying really at all about the
procedures adopted by the DMV” but “whether or not this is superseded by a
fundamental violation of the rights, the due process rights of your client[]”
counsel answered, “I think the writ says due process, yes, your honor.” Later, counsel said Collins was “not seeking
any sort of redress for his due process violations[,]” Collins simply wants his
driver’s license back.

We conclude the court
applied the proper standard of review.
In discussing the standard of review, the only case the trial court
mentioned was Berlinghieri, supra,

33
Cal.3d 392, the case Collins relies on in providing the applicable standard of
review. Near the end of the hearing,
Collins’ counsel stated the court must “use its independent judgment when it
reviews the administrative hearing.” The
court responded, “Well, that’s not exactly the way that it was phrased on the
hearing case, but it says I have to do
both.” (Italics added.)

The court in >Berlinghieri, supra, 33 Cal.3d at page
395, stated that if an administrative agency’s decision substantially affects a
fundamental vested right, the court must do two
things: (1) the trial court must examine
the administrative record for errors of law; and (2) the trial court must exercise
its independent judgment upon the evidence.
We decline Collins’ invitation to conclude the court utilized the
incorrect standard of review after the effort it took to understand the legal
basis of Collins’ claim. (>A Local & Regional Monitor v. City of
Los Angeles (1993)

12
Cal.App.4th 1773, 1792 [appellate court assumes trial court applied correct
standard of review unless contrary indication in record].) There is nothing in the record that
undermines our confidence the trial court applied the correct standard of
review. Additionally, Collins did not
timely object to the proposed order on the ground the trial court applied the
incorrect standard of review. (Cal.
Rules of Court, rule 3.1312(a).) Thus,
we are confident the trial court applied the correct standard of review. We now turn to the merits of Collins’
contentions. But before we do, we
briefly discuss the doctrine of implied findings.

The doctrine of implied
findings requires the appellate court to infer the trial court made all factual
findings necessary to support the judgment.
(Fladeboe v. American Isuzu
Motors, Inc. (2007) 150 Cal.App.4th 42, 58.) Collins had the right to request a statement
of decision (Code Civ. Proc., § 632), and it was then his obligation to bring
any ambiguities or omissions in the court’s decision to its attention. (Code Civ. Proc., § 634.) Having failed to do so, we properly infer the
trial court made any implied factual findings necessary to support the
judgment. (Gately v. Cloverdale Unified School Dist. (2007) 156 Cal.App.4th
487, 496 [although trial court did not address issue raised in petition for
writ of mandate, because petitioner failed to object to this omission,
appellate court presumes on appeal all factual findings necessary to support
the judgment and defers to these implied factual determinations if supported by
substantial evidence].)

>II.
Refusal to Submit to Chemical Test

Collins argues he did
not refuse to submit to a chemical test.
Not so.

“Before the DMV may
suspend a driver’s license for failure to submit to a chemical test, the DMV
must make four findings: (1) the officer
had reasonable cause to believe the person was driving a vehicle while under
the influence of drugs or alcohol; (2) the person was arrested; (3) the person
was told that if he or she refused to submit to, or did not complete, a
chemical test his or her license would be suspended; and (4) the person refused
to submit to, or did not complete, such a test.
[Citations.]” (>Garcia v. Department of Motor Vehicles
(2010) 185 Cal.App.4th 73, 79, fn. 3 (Garcia).) Collins disputes only the last factor, that
he refused to submit to a chemical test.

“‘The question whether a
driver “refused” a test within the meaning of the statute is a question of
fact. [Citation.]’ [Citation.]
To comply with the law, a ‘driver should clearly and unambiguously
manifest the consent required by the law.
Consent which is not clear and unambiguous may be deemed a
refusal.’ [Citation.] ‘In determining whether an arrested driver’s
conduct amounts to a refusal to submit to a test, the court looks not to the
state of mind of the arrested driver, but to “the fair meaning to be given [the
driver’s] response to the demand he submit to a chemical test.” [Citations.]’
[Citation.]” (>Garcia, supra, 185 Cal.App.4th at pp.
82-83.)

Here, after Collins had
been in the restraint chair for nearly 15 minutes, he twice refused to submit
to a chemical breath test and once refused to submit to a chemical blood
test. Dereszynski read the entire chemical
test admonition to Collins, advising him that if he refused to submit to a
chemical test the DMV would suspend his driver’s license.

Dereszynski again asked
Collins whether he would submit to a breath test. The following colloquy occurred:

“Collins: Sir, I have been asking for a drink of water
since you have taken me into your custody, at whatever hour that was. That was possibly [eight]-something in your
book, and you refused to give me water; and my situation was I was shopping for
some groceries, and --

“Dereszynski: Will you take a breath test?

“Collins: -- you stopped me.

“Dereszynski: Yes or no?


“Collins: Within
my legal rights, within the Constitution, I will comply with whatever
appropriate.

“Dereszynski: Will you take a breath test?

“Collins: Within my legal rights within the
Constitution, I would --

“Dereszynski: I don’t know if that means ‘yes’ or
‘no.’ Will you take a breath test?

“Collins: Sir, you are the legal --

“Dereszynski: Will you take a blood test?

“Collins: Sir, are you the legal expert in this
case?

“Dereszynski: Yes.
Will you take a blood test?

“Collins: Sir, I asked you within a legal right to the
Constitution of the United States whether it is appropriate. Are you able to consult me, or is that
something I need to -- further in this conversation?”

“Dereszynski: I take that refusal to answer the questions
as a ‘no.’”

Collins relies on the
above italicized language to argue he submitted to the chemical breath test
when he states he would comply with whatever was constitutionally
appropriate. Indeed, he feels so
strongly he submitted to the test that in his opening brief he writes, “THIS IS
NOT A REFUSAL BUT AN EXPRESS AGREEMENT TO COMPLY WITH THE LAW.” We disagree as his response was not clear and
unambiguous, and the trial court could properly rely on this response, and his
previous three “No” responses, to conclude Collins was refusing to submit to a
chemical test and he was generally uncooperative. Had Collins truly been willing to submit to
the chemical test, he would have simply answered, “Yes,” when Dereszynski
stated he was unsure whether Collins submitted to the test instead of saying,
“Sir, you are the legal --” and “Sir, are you the legal expert in this case?” Collins’ conduct at the jail was a
continuation of what Dereszynski described as “passively uncooperative” that
began at the supermarket parking lot.
Dereszynski advised Collins numerous times, beginning at the parking lot
and then again at the jail, of the consequences of refusing the test. Collins cannot now complain Dereszynski
failed to recognize his acquiescence to the test. Therefore, we conclude substantial evidence
supports the trial court’s determination Collins refused to submit to a
chemical test when after being advised of the consequences of refusing to
submit to a chemical test, Collins’ responses were unclear and ambiguous.

>III.
Due Process & Fourth Amendment

> Collins
contends his substantive due process and Fourth Amendment rights were violated
when law enforcement officers secured him in a restraint chair for

15
minutes and forcibly drew blood. Again,
we disagree.

> In> Schmerber v. California (1966) 384 U.S.
757, 759 (Schmerber), the Supreme
Court of the United States rejected petitioner’s due process, privilege against
self-incrimination, right to counsel, and right not to be subjected to
unreasonable searches and seizures claims after a police officer directed a
physician to withdraw blood at a hospital.
The Supreme Court approved forcible chemical testing of persons
arrested, so long as (i) the test is incident to a lawful arrest for driving
under the influence of alcohol or a drug, (ii) the circumstances require prompt
testing, (iii) the arresting officer has reasonable cause to believe the arrestee
is intoxicated, and (iv) the test is conducted in a medically approved
manner. (Id. at pp. 769-771.)

In Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753,
758-760 (Mercer), the California
Supreme Court explained that in response to Schmerber,
supra, 384 U.S. 757, the California Legislature enacted our implied consent
law (Former

Veh.
Code, § 13353, now Veh. Code, § 23612.)
After describing a forcible blood removal as “unpleasant, undignified
and undesirable,” the Mercer court
explained, “‘the shocking number of injuries and deaths on the highways caused
by drunk drivers has compelled society to adopt extreme measures in
response.’” (Mercer, supra, 53 Cal.3d at pp. 759-760.)

> In
Park v. Valverde (2007) 152
Cal.App.4th 877, 887 (Park), another
panel of this court stated: “[W]e
conclude that the exclusionary rule is inapplicable to the DMV administrative
proceedings on these facts. On the one
hand, we acknowledge that the application of the exclusionary rule . . . to DMV
administrative proceedings could theoretically provide a supplemental basis for
deterring law enforcement officials from maintaining inaccurate stolen vehicle
records. On the other hand, we must also
consider the responsibility of the DMV to get drunk drivers off the road for
the protection of society at large.
[Citation.] We cannot ignore the
fact that the criminal drunk driving proceedings and the DMV administrative
proceedings serve different primary

purposes—one
to punish drunk drivers and one to get them off the streets. [Citation.]
The suppression of evidence in the context of criminal proceedings, as
was done here, should provide adequate deterrence of wrongful police conduct in
recordkeeping. Although the suppression
of evidence in the DMV administrative proceedings as well could provide some
supplemental deterrent effect, it would only be at the expense of protecting
the public from the drunk driver, and indeed, protecting the drunk driver from
himself. In order to permit the primary
purpose of the DMV administrative proceedings to be served, we conclude that
the suppression of evidence in those proceedings is not required in this case.”


Here, based on all the
circumstances, we conclude Collins’ federal constitutional rights were not
implicated. Dereszynski explained the
normal procedure was to search an arrestee, remove the handcuffs, and release
the arrestee to a booking cell. He also
explained however that when an arrestee is uncooperative, he places them in a
restraint chair to conduct the test and ensure the safety of the arrestee.

Dereszynski described
Collins as “passively uncooperative.”
Collins would not directly answer his questions. Based on his long, rambling, circular
responses, Dereszynski believed Collins was trying to delay the investigation
in an attempt to obtain a better result on a chemical test. Dereszynski stated Collins could not stand up
straight, had to lean on his car to maintain support, and when he sat on the
curb he fell back and his feet flew in the air.
Based on Dereszynski’s observations, it was certainly reasonable for him
to conclude Collins could not maintain his balance and would have difficulty
submitting to a chemical test, even though Collins walked into the jail under
his own power. Dereszynski’s decision to
secure Collins in the restraint chair for Collins’ own safety and to conduct
the chemical test was not egregious and did not implicate Collins’ federal
constitutional rights.href="#_ftn3"
name="_ftnref3" title="">[3] Thus, like Park, supra, 152 Cal.App.4th 877, there is no indication of
egregious conduct that would support use of the exclusionary rule.

Collins relies on >Carleton v. Superior Court (1985) 170
Cal.App.3d 1182 (Carelton), to argue
Dereszynski used more force than necessary to obtain a blood sample. In Carleton
the court stated: “Law enforcement
must act reasonably and use only that degree of force which is necessary to
overcome a defendant’s resistance in taking a blood sample. Even where necessary to obtain a blood sample
police may not act in a manner which will ‘shock the conscience.’ A defendant’s arbitrary refusal to submit to
a blood test will not excuse unlawful police conduct.” (Id.
at pp. 1187-1188, fn. omitted.) Collins’
reliance on Carleton is
misplaced. In that case, defendant
physically resisted submitting to the test and six law enforcement officers had
to restrain him to obtain blood.
Although Collins did not physically resist, a fact Dereszynski
acknowledged during the encounter, Collins was “passively uncooperative” and physically
unstable. As we explain above,
Dereszynski secured Collins in the restraint chair to prevent any further delay
in obtaining a chemical test from Collins and to ensure Collins’ safety.

Collins’ reliance on >Nelson v. City of Irvine (1998 9th Cir.)
143 F.3d 1196 (Nelson), and >Hammer v. Gross (1991 9th Cir.) 932 F.2d
842 (Hammer), is misplaced as they
involved 42 U.S.C. section 1983 actions based primarily on alleged Fourth
Amendment violations. Both cases relied
on Schmerber, supra, 384 U.S. 757, in
addressing the issue of whether law enforcement officers’ use of force was
excessive. (Nelson, supra, 143 F.3d at pp. 1200-1205; Hammer, supra, 932 F.2d at pp. 845-846.) And in both cases, defendants were ultimately
forced to undergo blood tests without being given the option to submit to a
breath test. (Nelson, supra, 143 F.3d at p. 1199; Hammer, supra, 932 F.2d at p. 844.)
As we explain above, Dereszynski’s use of the restraint chair to ensure
Collins’ safety and obtain the blood sample does not shock the conscience after
Collins’ unclear and ambiguous responses justified Dereszynski in concluding
Collins refused to submit to the chemical test.

>IV.
Implied Consent

Collins claims that
because he “‘did not resist, move, or contest’ the blood draw[]” he complied
with the spirit of Vehicle Code section 23162, subdivision (a)’s implied
consent law. Collins could not resist
because he was in a restraint chair after having refused to submit to a
chemical test. We decline Collins’
invitation to reject the Attorney General’s “literal, to-the-letter
interpretation” of Vehicle Code section 23612, subdivision (e).

DISPOSITION

The judgment is
affirmed.







O’LEARY,
P. J.



WE CONCUR:







RYLAARSDAM,
J.







THOMPSON, J.