Tuesday, January 29, 2008

Is a refusal really a Refusal (California DUI lawyer q.)

Filed 1/28/08 Nawabi v. DMV CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

ZIA NAWABI,
Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Appellant.
A117774
(San Francisco County

Super. Ct. No. CPF-06-506576)


INTRODUCTION

The California Department of Motor Vehicles (DMV) appeals from a judgment of the San Francisco Superior Court granting a writ of mandate. The trial court directed DMV to set aside its order suspending respondent Zia Nawabi (Nawabi’s) driving privilege for failure to submit to a chemical test as required by Vehicle Code section 13353,1 the implied consent law. In response to the officer’s question, “will you take a blood test?” Nawabi stated, “I don’t like to do blood test” and “I don’t like to see blood, but if you have to, do whatever you have to do, that’s fine with me.” DMV contends this response constituted a refusal to submit to the required chemical test as a matter of law. The trial court concluded that Nawabi did not refuse a chemical test. Exercising our independent judgment, we agree that Nawabi did not refuse to take a blood test, and so affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The essential facts are undisputed. On February 12, 2006, at approximately 12:45 a.m., California Highway Patrol Officer V. Farley, Jr. and his partner observed a car driven by Nawabi passing traffic at approximately 78 miles per hour in a 50-mile-per-hour zone. The officers initiated a stop of the vehicle. Upon making contact with Nawabi through the open driver’s window, Farley could smell the odor of alcohol coming from within the vehicle. Nawabi’s eyes were red and watery and he admitted he had consumed two alcoholic beverages earlier in the evening. Farley could smell the odor of alcohol on both Nawabi’s breath and person. Nawabi failed a series of field sobriety tests. Based upon these failures, Farley’s observations of Nawabi’s symptoms of intoxication and Nawabi’s admission to having consumed alcoholic beverages, Farley placed Nawabi under arrest for driving under the influence. Farley advised Nawabi of the implied consent law and asked whether he would consent to a chemical test. Nawabi chose to take a breath test, but after three tries was unable to provide adequate breath samples. Farley offered Nawabi the choice of a blood test. Nawabi responded: “I don’t like to do blood test” and “I don’t like to see blood, but if you have to, do whatever you have to do, that’s fine with me.” Nawabi explained that he disliked the sight of blood because of a family incident in his native country where he witnessed a relative being assassinated. Farley concluded Nawabi’s response was a refusal to test and transported appellant to the police station for an involuntary blood draw. The blood test was completed. There was no evidence that Nawabi physically or verbally resisted the blood test.

DISCUSSION

A. The trial court reviews the DMV’s suspension or revocation of a driver’s license under section 13353 using its independent judgment to determine whether the weight of the evidence supports the administrative action. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457; Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517 (Payne).) Although we uphold the superior court’s factual findings if supported by substantial evidence (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270 (Carrey), we are not bound by the superior court’s determination if the facts are undisputed and the issue involves the proper application of the statute or administrative regulation. (Payne, at p. 1517.) Here, there is no dispute as to what Nawabi said to the arresting officer. In response to the question, “will you take a blood test,” Nawabi responded, “I don’t like to see blood, but if you have to, do whatever you have to do, that’s fine with me.” Nawabi did submit to the blood test. There was no evidence that he resisted in any physical manner or that he refused to cooperate, although he explained to the officer why he did not like to see blood. In the absence of a disputed question of fact, we apply our independent judgment to the question of whether appellant refused to consent to a blood test as a matter of law.

Whether the arrestee has refused a test is evaluated under the following principles: “[T]he driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal. The 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 conduct. (Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1161 [(Barrie)].) A qualified or conditional consent is a refusal. (Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 873.)” (Carrey, supra, 183 Cal.App.3d at pp. 1270-1271.) “ ‘The determining factor is not the state of the suspect driver’s mind, it is the fair meaning to be given his response to the demand that he submit to the chemical test.’ (Maxsted v. Department of Motor Vehicles (1971) 14 Cal.App.3d 982, 986.)” (Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165, 170 (Morgan).)

The DMV contends that as a matter of law appellant refused because his statement did not “clearly and unambiguously manifest the consent required by the law.” (Carrey, supra, 183 Cal.App.3d at p. 1270.) The DMV argues that Nawabi’s statement was “obscure,” and that it was “subject to several different reasonable interpretations” and so could not be found clear and unambiguous. The DMV posits that among these interpretations are: “(1) he consents to, and will submit to, a blood test; (2) he does not consent to a blood test, but will submit to one, if forced; (3) he does not consent to testing, nor will he submit to testing, even if forced; or (4) he will submit to a blood test, but remains silent on the issue of consent.” DMV asserts that Nawabi was “engaging in semantic gamesmanship in order to avoid a direct response to Farley’s inquiry” and that it was reasonable for Farley to interpret his response as a refusal.

DMV further contends that the trial court failed to use the proper test in determining whether Nawabi was submitting to a blood test based upon the court’s opining during the mandamus hearing “that a fair meaning . . . of his response is that he was submitting to a blood test.”

B. The DMV would read out of the law that part of the test that emphasizes that “the determinative factor as to whether there is a refusal is . . . the objective, fair meaning to be distilled from [the driver’s] words and conduct.” (Carrey, supra, 183 Cal.App.3d at pp. 1270-1271, italics added.) In the DMV’s formulation of the appropriate test, if it is at all possible to interpret the arrested driver’s words and conduct as other than providing absolute and unequivocal consent, the driver has refused, no matter how tortured or far the interpretation has strayed from the objective and fair meaning of the driver’s words and conduct. In this case, it appears the DMV is the party engaging in semantic gamesmanship. Under the DMV’s formulation of the standard, it appears even a statement such as, “OK. Do what you have to do,” unaccompanied by any conduct that could be described as evidencing anything other than consent, could arguably be interpreted as refusing, as it conceivably could be interpreted as stating, “I understand. I am not consenting, but will submit [or not] if forced.” The principal cases applying the standard are clearly distinguishable from the present one. In those cases, the refusal to test, the ambiguity of response or the semantic gamesmanship of the driver were patent.

In Carrey, supra, 183 Cal.App.3d 1265, the court upheld the DMV’s revocation of the driving license of a medical doctor (Carrey) arrested for felony drunk driving and hit and run. Carrey chose to take the blood test under the implied consent law, but refused to sign the hospital’s consent to blood test form. The hospital consent form required the signatory to certify that he was not a person afflicted with a heart condition using an anticoagulant under the direction of a physician. Carrey stated he would not sign the form because “ ‘I am taking some medicines that can affect my bleeding.’ ” He refused to select and submit to one of the remaining tests, insisting he wanted a blood test. (Id. at p. 1268.) The DMV revoked his license. The trial court issued a writ of mandamus, finding that the doctor did not refuse the blood test and that it was the officer who made the decision that Carrey could not take it because he was taking an anticoagulant. (Id. at p. 1269.) The Court of Appeal reversed the trial court. The only disputed legal issue was whether Carrey’s refusal to sign the blood test consent form was a refusal to take a test. (Id. at p. 1270.) The appellate court relied upon the “strong public policy against the nightmare of drunk driving. Thus, the implied consent law should be liberally construed to effect its purpose, which is to swiftly and accurately identify drunk drivers. [Citation.]” (Ibid.) It determined that the hospital’s consent form was completely reasonable, representing a “ ‘sensible precaution from the hospital’s standpoint and impos[ing] no significant additional onus on the driver.’ [Citation.] Hence, Carrey’s refusal to sign the medical consent form was the pragmatic equivalent of a refusal to consent to the procedure involved. Carrey’s purported willingness to take the blood test was meaningless in [the] absence of his signature on the form. To accept Carrey’s argument would permit him to play fast and loose with the implied consent law. Surely from his own experience as a doctor, he knew the hospital would not draw blood from an arrestee who not only refuses to sign the consent form but affirmatively discloses he is taking anticoagulants. At that juncture, it was incumbent upon Carrey to select and submit to one of the remaining chemical tests as had been requested by the arresting officer. This Carrey failed to do.” (Id. at p. 1271.)

In Morgan, supra, 148 Cal.App.3d 165, the appellate court affirmed the superior court’s holding that Morgan had refused to take a chemical test. Morgan, who throughout the episode after his arrest was very angry and verbally abusive, initially replied to the officer’s advisement that he would have to take a chemical test by stating: “I don’t want to take any f[]ing test.” (Id. at p. 167.) When the officer escorted him to a local hospital where a blood sample could be extracted for use in a subsequent criminal prosecution, Morgan stated he would take a breath test or a urine test, but that he did not want to take a blood test. He mentioned to nurses at the hospital that he would take a urine or breath test, but was refusing the blood test. (Ibid.) The blood test was taken and he did not fight the nurses. The arresting officer testified that Morgan never offered to take any test—blood, breath, or urine and the nurses alluded to in Morgan’s testimony were not called. (Id. at pp. 167-168.)

On appeal, Morgan argued his statement that he did not want to take a test was not a response that he was unwilling to take a test if asked, and so not a refusal to test. He reasoned that a negative response in answer to the officer’s asking whether he “ ‘would . . . like to take a test’ or ‘which test do you want to take’ . . . [did] not constitute a refusal.” (Morgan, supra, 148 Cal.App.3d at p. 170.) The appellate court rejected this argument, observing: “The law enforcement officers of this state have more important things to do than to engage in semantic gamesmanship with those arrested for driving under the influence of alcohol. [Morgan] was clearly and unequivocally informed that he was required by law to submit to a chemical test or lose his driver’s license, and was asked which test he wanted to take. [His] response was equally clear and unequivocal; he did not want to take any test. ‘The determining factor is not the state of the suspect driver’s mind, it is the fair meaning to be given his response to the demand that he submit to the chemical test.’ (Maxsted v. Department of Motor Vehicles, supra, 14 Cal.App.3d 982, 986.) [Morgan] was informed of the law and provided an opportunity to comply; he refused, and such refusal constitutes a valid basis for suspension of his driver’s license.” (Id. at p. 170.) Nor did the appellate court accept the driver’s argument that he consented to a chemical test at the hospital. “A defendant may not verbally refuse to take a test . . . and avoid the license suspension mandated by the statute by later agreeing to take a specified test. [Citations.] ‘[O]nce the suspect refuses to take one of the three tests, blood, urine, or breath, there is no requirement that the officers thereafter give him a test when he decides he is ready. [Citation.]’ [Citation.]” (Id. at p. 170.) Nor was it significant that he ultimately submitted to a blood test. “[T]he only fair meaning that can be drawn from petitioner’s conduct is that he refused to submit to a chemical test.” (Id. at p. 171.)

In Payne, supra, 235 Cal.App.3d 1514, this court reversed the superior court’s grant of a petition for writ of mandate, holding that the driver’s conditional consent to blood test if his physician administered it was a refusal to submit to a chemical test under the implied consent law. (Id. at pp. 1518, 1520.) We found Barrie, supra, 151 Cal.App.3d 1157 “instructive.” (Payne, at p. 1518.) In Barrie, the driver refused a chemical test, but offered no physical resistance to the test, stating she was taking the test under protest. “The court held that her response was an unequivocal refusal to submit to a test, leaving no room for construction and constituting a valid basis for suspension of her driving privilege. [Citation.] The [Barrie] court also stressed that submitting under protest made her refusal clear, even though she offered no physical resistance. [Citation.]” (Payne, at p. 1518.) We concluded that like Barrie, Payne initially refused to submit to any test and finally submitted to a test without physical resistance, but under protest. (Ibid.) “Unlike Barrie, Payne did not refuse outright to submit, but conditioned his consent on his doctor administering the test. However, this distinction is of no help to Payne. [¶] A conditional consent to a chemical test constitutes a refusal to submit within the meaning of section 13353. [Citations.].)” (Payne at p. 1518.)

C. In the instant case, Nawabi did not initially refuse a chemical test. Nor did he condition his consent to any test. He consented to test and elected the breath test. When he was unable to complete that test, and was asked whether he would consent to a blood test, he stated he did not like to see blood, but told the officer “if you have to, do whatever you have to do, that’s fine with me.” Contrary to the DMV’s assertion, we do not view this statement as either obscure, ambiguous or unclear. By only the most tortured construction of this statement could it be viewed as a refusal to test. Certainly, the “fair meaning” of the statement, whether considered in a vacuum or in the context of his entire conduct, is that appellant did not like the sight of blood, but consented to a blood test.

There is no indication that the trial court used an incorrect standard in its determination. Indeed, at the mandamus hearing, counsel for the DMV confirmed the trial court’s understanding of the law. Counsel for the DMV asserted that defense counsel’s brief did not correctly state the law. The court interjected, “I agree. I think the key is the fair meaning of the response and not whether there was, as argued, an affirmative or negative statement. So what I am focusing on is the fair meaning of the response made by the motorist.” Counsel for the DMV responded, “Thank you, Your Honor. And that’s what the law is.” (Italics added.) Counsel then proceeded to argue that there was no clear and unambiguous manifestation of a consent. In granting the writ of mandate, the court stated that “the focus of the Court was on the fair meaning of the response given by the motorist, and I find that that fair meaning given, my view is that a fair meaning of his response is that he was submitting to a blood test.” We agree. The test is not whether some conceivable ambiguity can be read into the response. Rather, we look to whether the “fair meaning” of the motorist’s response “clearly and unambiguously” manifests the consent required by law. (Carrey, supra, 183 Cal.App.3d at pp. 1270-1271; Barrie, supra, 151 Cal.App.3d 1157, 1161.) We believe that clear and unambiguous consent was given here.

DISPOSITION

The judgment is affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Richman, J.



1 All further statutory references are to the Vehicle Code unless otherwise noted.