Ellis v. Valverde
Filed 8/26/13 Ellis v. Valverde CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
CANDACE ELLIS,
Plaintiff and Appellant,
v.
GEORGE VALVERDE, as Director,
etc.,
Defendant and Respondent.
B242156
(Los Angeles
County
Super. Ct.
No. BS134486)
APPEAL from
a judgment of the Superior Court
of
County, James C. Chalfant, 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,
Michael E. Whitaker and Bruce Reynolds, Deputy Attorneys General, for Defendant
and Respondent.
_________________________
Appellant Candace Ellis appeals from the trial court’s order denying her
petition for writ of administrative
mandate pursuant to Code of Civil Procedure section 1094.5. In her petition, Ellis sought an order
directing the Department of Motor Vehicles (DMV) to set aside the suspension of
her driver’s license for refusing to submit to, or failing to complete, a
chemical test for her blood alcohol content in violation of Vehicle Code
in denying her writ petition because she never refused to submit to a chemical
test, and even if she did refuse, she was not properly admonished about the
consequences of doing so. She also
asserts the trial court erred in denying her
record with a document which she contends could not have been produced at the
administrative hearing in the exercise of reasonable diligence, and if
admitted, would have proven that she in fact completed a chemical breath test. We affirm.
I.
Events Surrounding Ellis’s Arrest
On April 23, 2011, at 10:30
a.m., Ellis was pulling her vehicle out of her driveway in Bellflower,
California when she hit a car that was
parked in front of her house. The car
that Ellis struck in turn hit a child who was standing nearby, causing the
child to suffer minor injuries. Los
Angeles County Deputy Sheriff J. Norville responded to the scene of the
collision where he observed objective symptoms of intoxication in Ellis,
including bloodshot and watery eyes, an odor of alcohol on her breath, an
unsteady gait, and slurred speech. After
administering a series of field sobriety tests, Deputy Norville arrested Ellis
for driving under the influence of alcohol (DUI) and transported her to the
Lakewood Sheriff’s Station.
According to a sworn DS 367 form
completed by Deputy Norville, he admonished Ellis at 11:45 a.m. in Lakewood, California
about the consequences of failing to submit to, or complete, a chemical test to
determine her blood alcohol content.
Deputy Norville also advised Ellis that, because he believed she was
under the influence of alcohol, she had the choice of taking either a breath or
blood test. Ellis agreed that she would
take a breath test. At the Lakewood
station, Deputy Norville attempted to administer a chemical breath test to
Ellis three times using the Datamaster breathalyzer machine, Instrument No.
130071. According to Deputy Norville’s
arrest report, Ellis failed to provide adequate breath samples by blowing past
the mouthpiece each time, and the breathalyzer machine rejected all three
sample attempts. The arrest report
included a copy of the Sheriff’s Department Datamaster.cdm Precautionary
Checklist with three receipts indicating the results of Ellis’s chemical breath
test. Two receipts recorded an
“insufficient sample†and one receipt recorded an “invalid sample.â€
Deputy
Norville asked Ellis if she would consent to a chemical blood test, but she
refused. Later, he again asked Ellis if
she would submit to a blood test. She
said, “No, my veins are bad.†According
to Ellis, she told the deputy that she was afraid of needles when he asked her
to take a blood test. Ellis then asked
Deputy Norville if she could take a urine test, but he refused. Deputy Norville thereafter served Ellis with
administrative per se suspension/revocation order which stated that her
driver’s license was subject to suspension based on a “chemical test
refusal.â€
II.
The Administrative Per Se Hearing
On August 23, 2011, an Administrative
Per Se (APS) hearing was held before the DMV.
Ellis appeared at the hearing with her attorney, Frank Duncan. Without objection, the hearing officer
admitted into evidence the following three exhibits from the DMV: (1) the documents completed by Deputy
Norville consisting of the sworn DS 367 form, the unsworn arrest report with
the Datamaster.cdm Precautionary Checklist, an unsworn collision report, and a
sworn traffic citation issued to Ellis for driving under the influence; (2) the
APS Suspension/Revocation Order and Temporary License served on Ellis; and (3)
a DMV print out of Ellis’s driving record.
Ellis offered only one document into evidence -- her signed handwritten
statement describing how the collision occurred.
Ellis testified on her own behalf
at the hearing. In addition to
describing events at the accident scene, Ellis stated that, following her
arrest, she was given a breathalyzer test that “came back insufficient.†She recounted that she tried to follow
instructions during the test and kept “blowing real hard†as directed by Deputy
Norville, but the test “came back again insufficient.†When asked by her attorney if she suffered
from asthma or a similar condition, Ellis answered that she had “just stopped
smoking in October.†She testified that,
30 minutes after the breath test, Deputy Norville asked her to take a blood
test and she told him that she “had a fear of needles.†She also stated that she specifically asked
Deputy Norville if she could take a urine test, but he said no. Ellis explained at the hearing that she had
difficulty with blood tests in the past and that it was very painful for her
when “they can’t find my vein . . . for my blood work.â€
Ellis further testified that, after
she was released and returned home, she reviewed the paperwork that Deputy
Norville had given to her at the station.
She noticed then that the paperwork indicated a “chemical refusal,â€
which she found confusing because she “blew in the machine and it came back
insufficient.†Ellis stated that she
never knew that a chemical refusal could result in the suspension of her
license and that she did not know what a chemical refusal was until a friend
later explained it to her. In response
to this testimony, the hearing officer read aloud the chemical test admonition
in the DS 367 form that Officer Norville had completed. Ellis did not deny that the admonition had
been read to her by Officer Norville, nor did she provide any further testimony
to support her position. No other
witnesses were called to testify at the administrative hearing.
On September
20, 2011, the DMV issued a Notification of Findings and Decision. The hearing officer specifically found that
(1) the arresting officer had reasonable cause to believe Ellis was driving a
motor vehicle while under the influence of alcohol, (2) Ellis was lawfully
arrested, (3) Ellis was told that her driving privilege would be suspended or
revoked if she refused to submit to, or failed to complete, a chemical test for
her blood alcohol content, and (4) Ellis refused to submit to a chemical test
after being asked to do so by the arresting officer. Based on these findings, the DMV ordered the
suspension of Ellis’s driver’s license for one year commencing on September 29,
2011.
III.
The Petition for Writ of Administrative Mandate
and Motion to Augment
On October 21, 2011, Ellis filed a
petition for writ of administrative mandate in the Los Angeles County Superior
Court. She was represented by new
counsel, Chad Maddox, in the trial court proceedings. In her petition, Ellis sought an order
directing the DMV to set aside the suspension of her driver’s license on the
grounds that she never refused to submit to a chemical test and she was not
advised of the consequences of a refusal to submit. Prior to the hearing on the petition, the
trial court granted Ellis’s ex parte application to continue the hearing date
to allow her additional time to file a motion to augment the administrative
record. The hearing was continued to
June 14, 2012.
On May 16, 2012, Ellis filed a
motion to augment the administrative record and a supplemental memorandum of
points and authorities in support of the writ petition. Ellis sought to augment the record with a
one-page document entitled “Los Angeles County Sheriff’s Department Blood Alcohol
Testing Section Instrument Usage Logâ€
(Usage Log). The Usage Log purported to show test results recorded on
Instrument No. 130071 at the Lakewood station from April 22 to April 24, 2011. According to the Usage Log, Deputy Norville
administered a total of three testing sequences on April 23, 2011. The first sequence, at 12:09:50, recorded a
“Value 1†of 0.236 and no “Value 2.†The
second sequence, at 12:13:42, recorded a “Value 1†of 0.238 and no “Value
2.†The third sequence, at 12:17:20,
returned a “V†code with no recorded “Value 1†or “Value 2.â€
In her supplemental papers, Ellis
argued that, contrary to the evidence admitted at the administrative hearing,
the Usage Log showed that she had in fact completed a chemical breath
test. She also asserted that an attorney
exercising reasonable diligence would not have presented the Usage Log at the
administrative hearing, and that the trial court should consider this
additional evidence as a matter of equity.
Ellis’s motion to augment was supported by declarations from her former
attorney in the administrative proceedings, two attorneys who specialized in
DUI defense including her current counsel, and the law clerk for her current
counsel who had discovered the Usage Log.
In his declaration, Frank Duncan,
Ellis’s former attorney, stated that he reviewed the discovery provided by the
DMV prior to the administrative hearing, including the DS 367 form, the arrest
report, and the three Datamaster receipts, and that such material “led [him] to
believe that no evidence existed which would have proved [Ellis] had in fact
completed two breath tests.†In their
declarations, Chad Maddox, Ellis’s current attorney, and Vincent John Tucci,
the past president of the California DUI Lawyer’s Association, similarly stated
that they had extensive training and education on the operation and
administration of breath testing equipment including the Datamaster, and had
represented over 1,000 clients in APS hearings before the DMV. Both Maddox and Tucci opined that, when
provided with the discovery material produced in this matter, “an attorney
exercising reasonable diligence would not suspect that any evidence existed
which would have proved [Ellis] had in fact provided two breath samples which
resulted in measured results. . . .â€
They also opined that an attorney with expertise in the DUI and APS
field “would likely exercise greater diligence, seeking out additional evidence
of a successful test despite the officer’s sworn statements and Datamaster
printouts purporting that none existed.â€
Maddox further explained that, after reviewing the discovery in this
case, he directed his law clerk to search for available breath testing
records. In his declaration, Maddox’s
law clerk stated that, on March 9, 2012, he accessed the online database
maintained by the Los Angeles County Sheriff’s Department for breath testing
instruments, searched the instrument usage log for Instrument No. 130071 during
the relevant time period, and downloaded the Usage Log from the Sheriff’s Department
website.
The DMV opposed both the motion to
augment and the writ petition. With
respect to the motion to augment, the DMV countered that Ellis did not satisfy
the requirements for submitting new evidence under Code of Civil Procedure
section 1094.5 because an attorney exercising reasonable diligence could have
discovered the Usage Log prior to the administrative hearing. With respect to the writ petition, the DMV
contended that the evidence presented at the administrative hearing
demonstrated that Ellis had refused to submit to a chemical test of her blood
alcohol content within the meaning of the Vehicle Code because she deliberately
had failed to complete a breath test and unequivocally had refused to take a
blood test. The DMV also claimed there was sufficient evidence to establish
that Ellis had been properly admonished about the consequences of refusing to
submit to a chemical test and that Ellis’s testimony at the administrative
hearing did not support a contrary finding.
On June 14,
2012, the trial court denied both the motion to augment and the writ
petition. In denying the motion to
augment, the trial court concluded that Ellis had failed to demonstrate that
the Usage Log could not have been presented at the administrative hearing in
the exercise of reasonable diligence, particularly given how easily the
evidence had been discovered by her current counsel. The court also noted that equity did not
favor Ellis because the Usage Log could not exonerate her without expert
testimony explaining the various entries, and standing alone, the log appeared
to show that she was guilty of driving under the influence of alcohol. In denying the writ petition, the trial court
found that, whether deliberately or not, Ellis had failed to complete a
chemical breath test. The court further
found that Ellis had refused to submit to a chemical blood test and that her
stated concern about her veins being bad or fearing needles did not establish
that she was incapable of completing the test.
In addition, the court found that the reports completed by Deputy
Norville were sufficient to show that Ellis had been read the chemical test
admonition, and that Ellis had failed to rebut those reports with any credible
evidence. Based on such findings, the
trial court upheld the one-year suspension of Ellis’s driver’s license. Ellis thereafter filed a timely
DISCUSSION
I.
Standard of Review
Code of Civil Procedure section
1094.5 governs judicial review by administrative mandate of any final decision
or order rendered by an administrative agency.
If the administrative decision substantially affects a fundamental
vested right, the trial court must exercise its independent judgment on the
evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11
Cal.3d 28, 32; Bixby v. Pierno (1971)
4 Cal.3d 130, 143.) The trial court must
not only examine the administrative record for errors of law, but must
also conduct an independent review of
the entire record to determine whether the weight of the evidence supports the
administrative findings. (
administrative decision to suspend a driver’s license affects a fundamental
vested right, and thus, an order of suspension may be upheld by the trial court
“only after the administrative record receives that ‘independent judgment
review.’†(Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392,
398; see also Elizabeth D. v. Zolin
(1993) 21 Cal.App.4th 347, 353 [trial court is “required to exercise its
‘independent judgment in reviewing the administrative decision of the DMV’â€].)
In the appellate court, the
appropriate standard of review on a petition for writ of administrative mandate
is the substantial evidence test. (
Cal.4th 805, 824.) In cases where the
trial court exercised its independent judgment on the evidence, the appellate
court reviews the record to determine whether the trial court’s findings are
supported by substantial evidence. (
Cal.App.4th 204, 218; Mann v. Department
of Motor Vehicles (1999) 76 Cal.App.4th 312, 321.) In making that determination, “[w]e must
‘“‘resolve all evidentiary conflicts and draw all legitimate and reasonable
inferences in favor of the trial court’s decision.’â€â€™ [Citation.]†(Valiyee
v. Department of Motor Vehicles (1999) 74 Cal.App.4th 1026, 1031.) “Where the evidence supports more than one
inference, we may not substitute our view of the evidence for the trial court’s, and may overturn the
trial court’s findings of fact only if the evidence is insufficient to support
those findings as a matter of law.
[Citation.]†(
We review the
trial court’s ruling on a motion to augment the administrative record for abuse
of discretion. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1143;
15 Cal.App.4th 1174, 1180.)
II.
Denial of Motion to Augment the Administrative
Record
Ellis first
challenges the trial court’s denial of her motion to augment the administrative
record with the Usage Log. She contends
that the Usage Log should have been admitted under Code of Civil Procedure
section 1094.5, subdivision (e) because such evidence could not, in the
exercise of reasonable diligence, have been presented by her attorney at the
administrative hearing. She also claims
that the Usage Log should have been admitted under general principles of equity
because it would exonerate her of the charged offense by demonstrating that she
in fact complied with the requirements for chemical testing. We conclude that neither contention has
merit.
A.
Relevant Law
“The general rule is that a hearing
on a writ of administrative mandamus is conducted solely on the record of the
proceeding before the administrative agency. [Citation.]†(Toyota
of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881;
(1994) 21 Cal.App.4th 958, 977 [“[i]n an administrative mandamus action,
judicial review is limited to matters in the administrative recordâ€].) Augmentation of the administrative record is
permitted only within the strict limits set forth in Code of Civil Procedure
section 1094.5, subdivision (e), which provides as follows: “Where the court finds that there is relevant
evidence which, in the exercise of reasonable diligence, could not have been
produced or which was improperly excluded at the hearing before respondent, it
may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the
light of that evidence; or, in cases in which the court is authorized by law to
exercise its independent judgment on the evidence, the court may admit the
evidence at the hearing on the writ without remanding the case.†(Code Civ. Proc., § 1094.5, subd. (e);
Superior Court (1997) 55 Cal.App.4th 93, 101; Armondo v. Department of Motor Vehicles, supra, 15 Cal.App.4th at p. 1180.)
Accordingly,
in an administrative mandamus action, a trial court “may receive additional
evidence only if that evidence ‘in the exercise of reasonable diligence, could
not have been produced or … was improperly excluded at the hearing before’ the
administrative agency.†(
(2005) 35 Cal.4th 839, 863; see also Armondo
v. Department of Motor Vehicles, supra,
15 Cal.App.4th at p. 1180 [“[b]efore the court may properly consider
evidence that was not presented at the administrative hearing, the petitioner
must show the evidence could not have been produced below had reasonable
diligence been exercisedâ€].) “In the
absence of a proper preliminary foundation showing that one of the exceptions
noted in [Code of Civil Procedure] section 1094.5, subdivision (e) applies, it
is error for the court to permit the record to be augmented. [Citation.] Determination of the question of whether one
of the exceptions applies is within the discretion of the trial court, and the
exercise of that discretion will not be disturbed unless it is manifestly
abused. [Citation.]†(
Superior Court, supra, 55
Cal.App.4th at p. 101.)
B.
Ellis Did Not Satisfy the Requirements of Code
of Civil Procedure Section 1094.5, Subdivision (e)
In this case, the trial court acted
within its discretion in denying the motion to augment the administrative
record because Ellis failed to demonstrate that the proffered evidence could
not, in the exercise of reasonable diligence, have been presented at the
administrative hearing. On appeal, Ellis
does not dispute that the Usage Log was in existence at the time of the
administrative proceeding and was available to either party through the
Sheriff’s Department’s website. She
nevertheless argues that, because the attorney who represented her at the APS
hearing did not know the Usage Log existed, he acted reasonably when he relied
on the documents provided by the DMV as evidence establishing that Ellis did
not complete a breath test. As support
for this argument, Ellis points to the declarations provided by two experienced
DUI defense lawyers, including her current counsel, who opined that an attorney
exercising reasonable diligence would not have looked for additional evidence
concerning Ellis’s breath test, but an attorney with expertise in the DUI and
APS field likely would have sought out such evidence.
Yet, as the trial court observed in
denying augmentation of the record, the declarations submitted by Ellis actually
demonstrated that the Usage Log could have been presented at the administrative
hearing through the exercise of reasonable diligence. Ellis’s current counsel explained that, after
reviewing the documents provided by the DMV to her former counsel, he directed
his law clerk to search for additional breath test records. The law clerk was able to easily obtain the
Usage Log from the Sherriff’s Department’s online database by searching by
serial number and date range for the breathalyzer device that was used for
Ellis’s breath test. There is nothing in
the record to suggest that Ellis’s counsel in the administrative proceeding
made any similar attempt to search for additional evidence; he simply
concluded, based on the documents provided by the DMV, that no such evidence
existed. However, the attorney’s
purported lack of expertise in the DUI field cannot excuse his lack of due
diligence in presenting relevant evidence under Code of Civil Procedure section
1094.5, subdivision (e). For purposes of
determining whether the requirements of the statute have been satisfied, the
question is not whether the party seeking to introduce new evidence in a
judicial proceeding had prior knowledge of its existence, but whether the party
could have discovered and produced such evidence in the administrative
proceeding by exercising reasonable diligence.
Given that the Usage Log was readily obtainable through an online
search, Ellis has failed to establish that she could not, with reasonable
diligence, have presented the document at the administrative hearing.
Ellis also asserts that the Usage
Log should have been admitted under Code of Civil Procedure section 1094.5,
subdivision (e) as impeachment evidence to contradict the breath test results
offered into evidence by the DMV at the administrative hearing. Ellis principally relies on the 1943 decision
in Dare v. Board of Medical Examiners
(1943) 21 Cal.2d 790, 799-800 (Dare)
where the California Supreme Court concluded that a party in an administrative
mandamus action would not be bound by the administrative record in the
following four circumstances:
(1) the party could object to evidence improperly admitted at the
administrative hearing; (2) the party could reoffer evidence improperly
excluded at the administrative hearing; (3) the party could introduce new
evidence that could not, in the exercise of reasonable diligence, have been
presented at the administrative hearing; and (4) the party could contradict or
impeach the testimony of witnesses presented at the
credibility was called into question in the mandamus proceeding.
However, the Dare decision predated the legislative enactment of Code of Civil
Procedure section 1094.5 (Stats. 1945, ch. 868, § 1) which, as discussed,
expressly limits the admissibility of extra-record evidence to relevant
evidence that either was improperly excluded or could not, in the exercise of
reasonable diligence, have been introduced at the administrative hearing. (Code Civ. Proc., § 1094.5, subd. (e); see
also Schoenen v. Board of Medical
Examiners (1966) 245 Cal.App.2d 909,
914 [“[p]assage of section 1094.5, Code of Civil Procedure . . .
subsequent to the Dare decision,
largely codified the rules on admissibility of that decision except that it did
not include the rule that impeaching evidence could be introduced in the trial
courtâ€].) Therefore, while newly
discovered impeachment evidence may be admissible in a mandamus proceeding, the
party seeking to introduce it first must establish that such evidence could not
have been presented in the prior administrative proceeding through reasonable
diligence. (See, e.g.,
Cal.App.3d 605, 616 [trial court did not abuse its discretion in admitting
extra-record impeachment evidence where petitioner made “a sufficient showing
that [he] could not in the exercise of due diligence have anticipated the
testimony of [his co-defendant] and therefore was unable to present impeaching
evidence at the administrative hearingâ€]; Mast
v. State Board of Optometry (1956) 139 Cal.App.2d 78, 88 [“mere attack on
the credibility of a witness does not entitle a party, in the mandamus action,
to call that witness for further examination and impeachment unless a showing
is made . . . that he has available new impeaching evidence which he could not
with reasonable diligence have produced before the boardâ€].)
Here, Ellis
clearly could have anticipated the DMV would present the documents prepared by
Deputy Norville as evidence that she had failed to complete a chemical breath
test. Those records were provided to
Ellis by the DMV prior to the administrative hearing and her attorney reviewed
them in preparation for the hearing. To
the extent the DMV’s records did not accurately reflect Ellis’s complete breath
test results, as she now claims, Ellis was afforded a full opportunity during
the administrative hearing to impeach the credibility of the records with
competent contrary evidence. Ellis’s
mere assertion that she did not know that such impeachment evidence existed is
insufficient to meet the requirements of Code of Civil Procedure section
1094.5, subdivision (e).
C.
Ellis Was Not Entitled To Equitable Relief
Alternatively, Ellis contends that,
even if the statutory requirements for augmenting the administrative record
were not satisfied, the trial court should have exercised its inherent
equitable powers to admit the Usage Log into evidence. Citing Curtin
v. Department of Motor Vehicles (1981) 123 Cal.App.3d 481 (
demands that she should not suffer a suspension of her driver’s license based
on an erroneous act of the state. In
administrative mandamus action upheld the suspension of the plaintiff’s
driver’s license for refusing to submit to a chemical test, but directed the
DMV to give the plaintiff a five-month credit based on a prior erroneous
suspension of his license. The DMV first
notified the plaintiff of the error in the prior suspension while the mandamus
proceeding for the current suspension was pending. (Id.
at pp. 483-484.) The Court of Appeal
concluded that, under Code of Civil Procedure section 1094.5, subdivision
(e), evidence of the prior erroneous suspension “‘could not have been produced
. . . at [the] hearing’ on the instant suspension†(id. at p. 485), and “was relevant to the equitable issues before
the superior court†(id. at p.
486). Recognizing that “[o]ne’s
entitlement to a writ of mandate is largely controlled by equitable principles,†the Court of Appeal reasoned that equity
“‘“will assert itself in those situations where right and justice would be
defeated but for its intervention,â€â€â€™ and based on the unique facts of the
case, “right and justice would be defeated by the erroneous suspension of [the
plaintiff’s] driver’s license.†(
In this case,
however, equitable principles do not support Ellis’s position. First, unlike the extra-record evidence at
issue in Curtin, the Usage Log could
have been presented at the administrative hearing through the exercise of
reasonable diligence. Second, evidence
of the Usage Log, standing alone, does not exonerate Ellis of the charged
offense nor does it establish that the device used in her chemical breath test
was flawed. As the trial court noted,
Ellis would need to present expert testimony to explain the meaning of the
log’s entries, the discrepancy between the log and the Datamaster printout
receipts, and whether the two “Value 1†results that were recorded in the log
could constitute a sufficient breath sample under the law. Third, even assuming the two recorded values
(0.236 and 0.238) were sufficient to meet the legal standard for a measurable
breath sample, they would appear to support a finding that Ellis was driving
under the influence of alcohol well over the legal limit when she struck
another vehicle and a young pedestrian.
While Ellis reasons that the length of a suspension is shorter for a
first-time DUI offense (§ 13353.3) than for a first-time refusal to submit to
chemical testing offense (§ 13353), she has not demonstrated how “right and
justice would be defeated†by a lawful suspension of her driver’s license. (Curtin,
supra, 123 Cal.App.3d at p.
485.) Considering the totality of the
facts in this case, the trial court did not abuse its discretion in denying the
motion to augment the administrative record.
III.
Denial of Petition for Writ of Administrative
Mandate
Ellis also
challenges the trial court’s denial of her writ petition. She argues that, even if the Usage Log is not
considered, the evidence presented at the administrative hearing proved that
she did not refuse to submit to chemical testing, but rather was legally
entitled to submit to a urine test based on the unavailability of both the breath
test and blood test. She also asserts
that the evidence was insufficient to establish that she was advised of the
consequences of refusing to submit to a chemical test because the reports
completed by Deputy Norville were inconsistent and thus unreliable. We conclude that the court properly denied
Ellis’s writ petition.
A.
Relevant Law
Under California’s implied consent
law, if a person is lawfully arrested for driving under the influence of
alcohol or drugs, he or she is deemed to have given consent to the chemical
testing of his or her blood or breath to determine blood alcohol content. (§ 23612, subd. (a)(1)(A).) A person lawfully arrested for driving under
the influence of alcohol “has the choice of whether the test shall be of his or
her blood or breath,†and must be informed of that choice by the arresting
officer. (§ 23612, subd.
(a)(2)(A).) The officer also must inform
the person arrested that the failure to submit to, or failure to complete, the
required chemical testing will result in a fine and suspension or revocation of
his or her driving privilege. (§ 23612,
subd. (a)(1)(D).) “If the person
arrested either is incapable, or states that he or she is incapable, of
completing the chosen test, the person shall submit to the remaining test.†(§ 23612, subd. (a)(2)(A).) “If both the blood and breath tests are
unavailable, the person shall be deemed to have given his or her consent to
chemical testing of his or her urine and shall submit to a urine test.†(§ 23612, subd. (d)(2).) A person who refuses to submit to, or fails
to complete, a chemical test under section 23612 is subject to the suspension
of his or her driving privilege, among other sanctions. (§ 13353, subd. (a)(1).)
In an administrative hearing before
the DMV based on a suspension for refusing to submit to or complete a chemical
test, the DMV shall sustain the order of suspension if it determines by a
preponderance of evidence that (1) a “peace officer had reasonable cause to
believe that the person had been driving a motor vehicle†under the influence
of alcohol or drugs, (2) “the person was placed under arrest,†(3) “the person
refused or failed to complete a chemical test or tests,†and (4) subject to
certain exceptions, “the person was told that his or her privilege to operate a
motor vehicle would be suspended or revoked if he or she refused to submit to,
and complete, the required testing.†(§§
13557, subd. (b)(1), 13558, subd. (c)(1).)
“If any one of the required findings is deficient, the DMV’s action
suspending the license must be overturned. [Citation.]†(Hughey
v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 758.)
“The question whether a driver
‘refused’ a test within the meaning of the [implied consent] statute is a
question of fact. [Citation.]†(Cahall
v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 497.) To comply with the statute, the “‘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.]†(
(2010) 185 Cal.App.4th 73, 82.)
Additionally, “‘[i]n 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.]†(Id. at pp. 82-83; see also Carrey
v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270
[“determinative factor as to whether there is a refusal is not the arrestee’s
subjective state of mind, but rather the objective, fair meaning to be
distilled from his words and conductâ€].)
A qualified or conditional consent constitutes a refusal. (Carrey
v. Department of Motor Vehicles, supra,
at pp. 1270-1271.)
Moreover,
“[c]ompliance with the implied consent law [citation] consists of completing,
not merely attempting, one of the . . . blood alcohol content tests
offered.†(Miles v. Alexis (1981) 118 Cal.App.3d 555, 559.) While an arrested driver “may choose the type
of test, the driver’s obligation does not end when he [or she] has expressed
such a choice. [The driver] must go
further and submit to the test. (Quesada
v. Orr (1971) 14 Cal.App.3d 866, 870.)
“It has also been held, consistent with the purpose of the implied
consent law, that a driver who has some specific and potentially valid
objection to all or any part of the procedure involved in a particular chemical
test must articulate that objection.
[Citation.]†(
(1981) 115 Cal.App.3d 913, 917.) The
driver must state his or her reasons for refusing to complete the selected test
with “clearness sufficient to permit the officer or officers to decide upon the
validity of [the] protest and if it is reasonable to do so, to take steps to
meet the objection.†(
(1969) 271 Cal.App.2d 838, 841.)
B.
Ellis Refused to Submit to the Required Chemical
Testing
Because Ellis was arrested for
driving under the influence of alcohol, her choice of tests was statutorily
limited to either a breath test or a blood test unless both tests were
unavailable. (§ 23612, subd.
(a)(2)(A).) Ellis contends that a breath
test was unavailable because she was incapable of completing it. She notes that she submitted to the breath
test each time it was administered to her and blew forcefully into the
mouthpiece as directed, but the device nevertheless recorded an insufficient or
invalid sample after each testing sequence.
Ellis claims that a blood test was unavailable because she stated that
she was incapable of completing it. She
reasons that she told Deputy Norville that her veins were bad when he asked her
to submit to a blood test and that such statement was not a refusal to take the
test, but rather an explanation as to why she was incapable of doing so. According to Ellis, once both a breath test
and a blood test were determined to be unavailable, the requirement for a urine
test was triggered and she unambiguously agreed to submit to that remaining
test.
However, as the Court of Appeal
observed in Butler v. Department of Motor
Vehicles, supra, 115 Cal.App.3d
913, “[t]he provision permitting an individual ‘incapable’ of completing a
chosen test an opportunity to make another choice contains neither a definition
of ‘incapable’ nor any indication that the word has anything other than its
common or ordinary meaning.
[Citation.] In common parlance
‘incapable’ means simply ‘lacking capacity, ability, or qualification’
[citation]: The word normally connotes a
physical or intellectual limitation such as, for relevant example, hemophilia
in one asked to give a blood sample. The
word does not connote a voluntarily
self-imposed limitation.†(
intended ‘to obtain the best evidence of blood alcohol content at the time of
the arrest’ [citation] by means of securing ‘the civil cooperation of all persons privileged to drive’ [citation],â€
construing the word ‘incapable’ as used in the implied consent law “in its
general and commonly understood sense is consistent with the general policy
underlying the statute.†(
The evidence presented in this case
was sufficient to support a finding that Ellis was not incapable of completing
a chemical breath test, but rather intentionally frustrated the administration
of the test by “blowing past the mouthpiece†during each testing sequence. It is settled law that a driver cannot, by
his or her own actions, frustrate the administration of a chemical test, and a
deliberate failure to complete the selected test constitutes a refusal under
section 13353. (See Garcia v. Department of Motor Vehicles, supra, 185 Cal.App.4th at pp. 83-84 [driver’s failure to complete
breath test by ineffectually blowing into mouthpiece and then refusing to try
any further was sufficient to support finding that he refused to submit to
test]; Hildebrand v. Department of Motor
Vehicles (2007) 152 Cal.App.4th 1562, 1573-1574 [driver’s failure to
complete breath test by not blowing forcefully enough into mouthpiece in each
of six attempts was sufficient to support finding that he refused to submit to
test].) Yet even assuming that Ellis was
incapable of completing the breath test, she was required by law to submit to
the remaining available test, which in this case was a blood test. (§ 23612, subd. (a)(2)(A).) Deputy Norville twice asked Ellis if she
would submit to a blood test, and each time, Ellis refused. (See White
v. Department of Motor Vehicles (2011) 196 Cal.App.4th 794, 800 [where
driver was incapable of completing breath test and refused to submit to blood
test, “she placed herself within the ambit of the sanction required under the
implied consent lawâ€]; Quesada v. Orr,
supra, 14 Cal.App.3d at p. 871 [where
driver was incapable of completing urine test and refused to submit to
remaining available tests, he “brought upon himself the penalty of the
statuteâ€].)
Contrary to Ellis’s contention on
appeal, there was also substantial evidence to support the trial court’s
finding that Ellis was not incapable, and did not state that she was incapable,
of completing a chemical blood test.
None of the evidence presented by Ellis at the administrative hearing
showed that she had any type of medical condition that precluded her from
submitting to a blood test. She merely
testified that it was difficult at times for medical personnel to find her
veins during a routine blood draw which would make the process painful. The record also reflects that, in response to
Deputy Norville’s requests that she submit to a blood test, Ellis either stated
that her veins were bad or that she was afraid of needles. While such statements certainly demonstrate
that Ellis was unwilling to submit to a blood test, they do not, on their face,
establish that she was incapable of doing so.
Moreover, as the officer responsible for administering the chemical test
to Ellis, Deputy Norville had discretion to determine whether a particular test
was feasible and available. (
(1986) 179 Cal.App.3d 368, 375.) Given
the vagueness of Ellis’s stated reasons for objecting to a blood test, Deputy
Norville reasonably could have determined that a blood test was available and
that Ellis simply was refusing to submit to it.
In sum,
Ellis’s unwillingness to submit to a blood test did not render the test
unavailable within the meaning of section 23612. Ellis therefore was not entitled to request a
urine test and her willingness to submit to that particular test is not
relevant to the determination of whether she complied with the statutory
requirements for chemical testing. Under
these circumstances, the trial court’s finding that Ellis refused to submit to,
or failed to complete, a chemical test was supported by substantial
evidence.
C.
Ellis Was Properly Admonished About a Chemical
Test Refusal
Ellis also argues that she was not
properly admonished about the consequences of refusing to submit to a chemical
test as required by section 23612.
However, the record reflects that Deputy Norville completed and signed
under penalty of perjury the DS 367 form which included, in pertinent part, the
following admonition: “You are required
by state law to submit to a PAS (DUI Probation) or other chemical test to
determine the alcohol and/or drug content of your blood. [¶] . . . Because I
believe you are under the influence of alcohol, you have a choice of taking a
breath or blood test. [¶] . . . If you refuse to submit to, or fail to
complete a test, your driving privilege will be suspended for one year or
revoked for two or three years. . . .â€
Deputy Norville specifically noted
in the DS 367 form that he admonished Ellis on April 23, 2011 at 11:45 a.m. in
Lakewood, California. He also stated in
his arrest report that, after placing Ellis under arrest and transporting her
to the Lakewood station, he “advised Ellis regarding submitting to a chemical
test.†Although Ellis testified at the
administrative hearing that she not know what a chemical test refusal was until
a friend explained it to her, she did not deny that she was given the
admonition by Deputy Norville, nor did she present any evidence that her
purported confusion about the consequences of a refusal once she returned home
was caused by the deputy.
In support of
her argument that she was not properly admonished, Ellis asserts that the DS
367 form is unreliable when examined in the entire context of the documents
that Deputy Norville prepared. In particular,
Ellis points to alleged inconsistencies in the documents about the exact timing
of events. For instance, Ellis notes
that the DS 367 form indicates that Deputy Norville read the admonition at the
same time he arrested her, while his arrest report states that he arrested
Ellis, transported her to the Lakewood station, and then advised her about
submitting to a chemical test. However,
none of the minor time discrepancies identified by Ellis rebuts Deputy Norville’s
sworn statement that he read the admonition to Ellis prior to administering a
chemical test, that Ellis selected but failed to complete a breath test, and
that Ellis refused to submit to a blood test.
Based on this record, the trial court’s finding that Ellis was advised
of the consequences of refusing to submit to chemical testing was supported by
substantial evidence. The trial court
accordingly did not err in denying Ellis’s writ petition.
The trial court’s order denying Ellis’s petition for
writ of administrative mandate and motion to augment the administrative record
is affirmed. The DMV shall recover its
ZELON,
J.
We concur:
WOODS,
Acting P. J.
SEGAL, J.
name="_ftn1" title="">[1] Unless
otherwise stated, all further statutory references are to the Vehicle Code.
name="_ftn2" title="">* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
