Wednesday, October 8, 2008

San Diego California Attorney shows driver consents to second officer's blood test

Filed 2/23/07 Eberle v. DMV CA4/1
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 This opinion has not been certified for publication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.
Plaintiff and Respondent,
Defendant and Appellant.
(Super. Ct. No. GIC849642)
APPEAL from a judgment of the Superior Court of San Diego County, Francis M.
Devaney, Judge. Affirmed.
The Department of Motor Vehicles (the Department) appeals a judgment granting
a petition for writ of mandate brought by petitioner Michael Louis Eberle, setting aside
an administrative suspension of his driving privileges. (Veh. Code, § 13353; all further
statutory references are to this code unless noted.) Using its independent judgment, and
taking into account the policies behind the implied consent law, the superior court
analyzed the record and concluded that under the circumstances of this particular case,
Eberle had not refused to comply with chemical test procedures and therefore the
suspension should be set aside. (Code Civ. Proc., § 1094.5.)
We conclude the trial court's decision to grant the petition was based on
substantial evidence, and the judgment must be affirmed.
Eberle was driving his red sports car in downtown San Diego at approximately
11:45 p.m. on May 14, 2005. As his car stopped at a red light at the intersection of
Broadway and Broadway Circle, San Diego Police Officer R.L. Rice observed that its
driver appeared to be having difficulty keeping the engine running, since the engine
RPM's were going up and down. As the light turned green and the car accelerated, the
engine was revving and the tires were spinning and sliding.
Officer Rice turned on his cruiser's overhead emergency lights and siren. Eberle
slowed and stopped along the curbline on 4th Avenue. Rice spoke to the driver through
the driver's side door, saw that Eberle was the driver and requested his license,
registration, and proof of insurance. Eberle stated he had recently purchased the vehicle
and was having trouble getting it registered. Rice observed that Eberle's eyes were glassy
and bloodshot/watery, and he smelled of alcoholic beverages. Eberle told the officer that
he had had a couple of drinks with dinner. Eberle performed poorly on field sobriety
tests and was placed under arrest for driving under the influence of alcohol (DUI).
(§ 23152.) He was not offered a preliminary alcohol screening test.
When Eberle was told by Officer Rice that he was required to submit to either a
blood test or a breath test, he said he did not want to take either one. The officer then
read him the chemical test refusal admonition on the back side of the DS-367 form, and
received the same answer. Rice's report shows that he then transported Eberle to police
headquarters. Officer Cavanaugh obtained a blood sample from Eberle at 12:35 a.m. on
May 15, 2005. In the course of the arrest, Eberle was served with an administrative per
se suspension/revocation order.
Administrative Hearing
On June 15, 2005, an administrative per se hearing was held on the elements of an
implied consent violation. At the hearing, Eberle testified that on May 14, 2005,
beginning around 6:45 p.m., he was eating and drinking at a restaurant for approximately
two hours and had four to six glasses of wine. After dinner, he went to another restaurant
and had another two glasses of wine, leaving at approximately 10:30 p.m. He was
suffering from an ear infection at that time. That evening he was pulled over by the
Eberle did not dispute that Officer Rice advised him during the traffic stop that he
was required by law to submit to a chemical test (blood or breath) to determine his blood
alcohol concentration. He admitted that he told Rice that he did not want to take either a
blood test or a breath test. Although he was told by Rice that he would more than likely
lose his license for one year if he did not submit to chemical testing, he still refused a test.
Eberle also testified that when the police car driven by Officer Rice pulled away to
transport him to the police station, it was cut off by another driver, causing Rice to stop
and conduct a separate DUI investigation of this other driver. In the meantime, a female
officer (whose name was unknown to Eberle) came and took Eberle to the police station
at 14th and Broadway. These other events were not shown in the police report. There
was some delay in getting his sports car towed, as it was so unusual.
When Eberle was waiting at the station, the unidentified female officer asked him
whether he would be willing to take a chemical test, and he voluntarily submitted to one.
(It should also be noted that Eberle's request at the hearing to submit expert testimony
from a forensic alcohol analyst was refused, but those issues are not disputed on this
In her findings, the hearing officer determined Eberle had clearly and
unequivocally refused Officer Rice's requests that he submit to chemical testing. The
hearing officer also found no persuasive evidence to support Eberle's version that while
Rice was busy with other activity, a female officer had taken Eberle to the police station,
where he agreed to be tested. The hearing officer explained:
"The testimony of [Eberle] is deemed not credible in that the alcohol
affects [sic] of 4-6 glasses of wine along with a 'severe' inner ear
infection would affect his capacity to perceive events clearly or
rationally. He also testified to being unfamiliar with the area and not
looking at his watch to establish any time frames. The Officer
specifically states in his report that he himself transported [Eberle] to
headquarters for a blood test. More weight is given to the reports
completed at or near the time of the event than to [Eberle's]
testimony of events from a month ago while he was intoxicated."
The administrative notice of findings and decision was issued on June 20, 2005,
upholding the suspension. The basis for the suspension was the hearing officer's finding
that Eberle unlawfully refused to submit to chemical testing after being requested to do so
by the arresting officer and after being advised that his driving privileges would be
suspended or revoked if he refused.
Mandamus Proceedings and Ruling
Eberle filed this petition for writ of administrative mandamus challenging the
decision to suspend his license. He claimed the suspension had been imposed arbitrarily,
without support in the record.
Opposition was filed and the administrative record was lodged. Following
argument, the court issued its ruling. After disposing of the expert testimony dispute (not
challenged on appeal), the court addressed the refusal of testing issues, noting these were
difficult cases with many factual variations of intentional delay tactics on the part of
drivers. The court observed that "the law is pretty clear on refusals, it's that the officers
don't have to play the game over and over again." However, the court noted that in this
particular case, "there's an interesting twist because of all the delay tactics I just described
were not really done by Mr. Eberle. The tactic he employed was to refuse a test upon
being initially detained on the corner of Fourth and Broadway. I think the record is pretty
clear that he was properly admonished, that he had a choice of breath or a blood test. He
said I'm not going to give you either of them. He admitted that in his own testimony. But
the problem I have with it is there was no test being administered or likely to be
administered then. Perhaps if the officer had pulled out the . . . device and he said no I'm
not going to blow into that, it might be a little stronger case for a refusal. But there was
no ability, there was no intent at that time to give a test. And that's why I'm
concerned[, counsel,] is the time of this and the location. Saying out on the street corner,
no, I don't want to take any of your tests versus being in a lab room saying you have to
choose between that breath machine or a blood draw and saying no way, I'm not going to
give you anything. To me those are two different situations. The timing and location
[are] significantly different." (Italics added.)
After making those observations, the court found that from his reading of Eberle's
testimony, Eberle's account was credible, even in light of his admitted consumption of
alcohol (i.e., that there was a transfer when he was transported to the police station, as
part of the course of events). The court noted that such circumstances were not unusual,
and they supported a conclusion that the police report's statement by Officer Rice, that he
had transported Eberle to the station, was actually form language. From those facts, the
court continued the analysis by saying that once the other officer (the transporting
officer) took him down to the station and offered him a test, Eberle said okay. The court
made a finding that at that point, "A police officer, a different one who did not know
what happened on 4th and Broadway asked him will you take breath or a blood test?
And he said I'll take a blood test."
Under all the circumstances, the court found that the policies supported by the
statute (the need for timely results for blood alcohol levels) were satisfied here, "because
there was no delay caused by Mr. Eberle in playing the game I just described earlier and
delaying the breath test." Similarly, Eberle's conduct was not the type of conduct that
causes significant delay for the arresting officers in going back to work (such as drivers
who play with the machine, refuse tests, change their mind, ask if they can have a urine
test, then switch, and so forth): "None of that occurred here. What occurred here is that
when they got to the point where it was time to take the test Mr. Eberle said here is my
arm, give me a blood test."
In light of the policies of the refusal laws and the cases interpreting them, the court
disagreed with the hearing officer's analysis, and ruled that no actionable refusal to test
had taken place, such that there was voluntary compliance with the implied consent law.
The court granted the petition and set aside the suspension order. Judgment was entered
accordingly and the Department appeals the decision.
The parties do not dispute that the superior court appropriately utilized the
independent judgment test in deciding the application for writ of mandate following the
order of suspension. (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233; Fukuda
v. City of Angels (1999) 20 Cal.4th 805, 817, 824 (Fukuda).) Under the independent
judgment test, the court determines whether the administrative hearing officer abused his
or her discretion because the findings are not supported by the weight of the evidence.
(Id. at pp. 816-817.) The administrative findings come before the superior court with a
" ' "strong presumption of correctness," ' " and the burden rests on the petitioner to
establish administrative error. (Id. at p. 817.)
On appellate review of the superior court's exercise of its independent judgment,
this court will sustain the court's findings if they are supported by substantial evidence.
(Fukuda, supra, 20 Cal.4th at p. 824.) We resolve all conflicts in favor of Eberle, as the
party prevailing in the superior court, and give him the benefit of all reasonable
inferences in support of the judgment. (Pasadena Unified School Dist. v. Commission on
Professional Competence (1977) 20 Cal.3d 309, 314.) We do not substitute our
deductions regarding the record for those of the superior court. (Ibid.) " '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 (Lake).)
In a case in which the pertinent facts are not in conflict and the only issues
presented are an interpretation of a statute or regulation, an appellate court is not bound
by the trial court's legal conclusions. (Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1925-
1926.) Here, however, the superior court analyzed the record, made credibility
determinations, and applied the law to the facts as established in that manner.
Accordingly, we should give the trial court appropriate deference with respect to its
views on whether the administrative findings were supported by the weight of the
evidence. (Fukuda, supra, 20 Cal.4th 805, 816-817.)
The Department challenges the judgment granting the petition on the basis that
"the facts as found by the superior court established Mr. Eberle refused to submit to a
chemical test within the meaning of the implied consent law. The court should decline
Mr. Eberle's invitation to make an exception to the initial refusal rule because the rule
advances the policy supporting the implied consent law and making an exception would
encourage game playing by drunk drivers."
In response, Eberle's brief explains his logic that "the absence of any linkage
between his initial refusal and any dissipation of evidence of his blood alcohol content by
the time he was ultimately tested justified the trial court's ruling below." Eberle does not
contest the validity of the arrest procedure itself, instead contending that the valid public
policies promoted by the refusal rules are not adversely implicated here, in light of the
facts as found by the lower court.
To address these issues, we first outline the policies implemented by the
administrative suspension law, as interpreted by case law. We then apply those rules to
this record.
The long-range purposes of the administrative license suspension procedures,
section 13353, have been summarized as follows: " '(1) to provide safety to persons
using the highways by quickly suspending the driving privilege of persons who drive
with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by
providing a prompt administrative review of the suspension; and (3) to place no
restriction on the ability of a prosecutor to pursue related criminal actions. [Citations.]'
[Citation.]" (Lake, supra, 16 Cal.4th 448, 454.)
In addition, the immediate purpose of this statutory scheme is to obtain the best
evidence available of blood-alcohol content. (Ellis v. Pierce (1991) 230 Cal.App.3d
1557, 1561.) Neither this purpose nor the long-range goal of the statute, to remove
impaired drivers from the road, is punitive in nature, and each is intended to facilitate the
gathering of evidence and to protect public safety. (Ibid.; see also Barrie v. Alexis (1984)
151 Cal.App.3d 1157, 1162-1163 (Barrie).)
Case law has sought to implement the purposes of section 13353 by emphasizing
the need for ready compliance with the implied consent law, section 23612. For
example, in Barrie, supra, 151 Cal.App.3d 1157, 1162-1163, the court stated that a
driver's initial refusal forms the basis for suspension of the driver's license under section
13353. There the court rejected a driver's argument that an order of suspension based on
a 10-minute delay in obtaining a blood test, caused by her refusal, was unjustified, even if
the delay was minimal and did not jeopardize the efficacy of the blood test. The court
said, "This begs the question because in the instant case it is the refusal not the delay that
is the significant factor." (Id. at p. 1163, citing Covington v. Department of Motor
Vehicles (1980) 102 Cal.App.3d 54 (Covington) and Skinner v. Sillas (1976) 58
Cal.App.3d 591.) "Further, after the arrested driver refuses to take one of the three tests,
it is no longer required that he be given one even though he may decide he is ready to
take it. [Citation.]" (Barrie, supra, at p. 1163.)
The Department would analyze this record as showing Eberle made a belated
agreement to submit to a chemical test, which did not cure his previous refusal, and he
therefore should not be able to avoid a suspension. We disagree with this
characterization of the record. Rather, we believe the trial court correctly found that
Eberle's compliance with the test at the time it was made available was the significant
factor in this case. This is consistent with the principles set forth in the refusal case law,
with which the trial court was very familiar. The trial court noted for the record that it
had extensive experience in analyzing fact situations arising from the implied consent law
and administrative suspensions, and it believed that this situation was unusual, because
the decision to take the test was roughly contemporaneous with the earliest time the test
could be taken, and there was no causation of any delay through Eberle's actions. In such
a case, the policies promoted by the administrative suspension procedure were not
Several factors lead us to conclude that the trial court's view was correct. First, the
record shows that the time period involved ran from the traffic stop at 11:45 p.m. until the
blood draw occurred at 12:35 a.m., about 50 minutes later. No preliminary alcohol
screening test was offered any earlier than this blood draw at the police station, nor was it
shown that this 50-minute time period was lengthened by any actions of Eberle in
contesting the test, or in attempting to place conditions upon it. For example, Eberle did
not demand that any particular person be present to request or administer the test. (See
Covington, supra, 102 Cal.App.3d at pp. 54, 57 [motorist cannot demand that attorney be
present].) There was no available test pending at the time of the initial refusal, and thus
even the admitted delay in consenting to the test did not make any difference under all the
circumstances, with respect to the main purposes of the statute (obtaining an effective test
and keeping impaired drivers off the road). Since the purposes of the statute are not
mainly punitive in nature, the Department's interpretation of these facts is unduly strict.
(See Ellis v. Pierce, supra, 230 Cal.App.3d 1557, 1561.)
Moreover, the superior court could legitimately analyze the record and then
disagree with the hearing officer's conclusions that (1) Eberle's account of being
transported to the station by a different officer must have been less credible than the
police reports, which said that Officer Rice was the only one involved and (2) therefore
the initial refusal was fatal to Eberle's case. Rather, the court could appropriately analyze
the facts as demonstrating that no refusal took place that made any difference to the
progress of how Eberle's case was processed. The record supports a conclusion that
under these particular circumstances, the crucial moment for analyzing consent here was
when the test was actually available, regardless of the identity of the custodial police
officer at that time.
" '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, supra, 16 Cal.4th 448, 457.) Here, that would require us to conclude
that the initial refusal was dispositive, even though there was also evidence that by the
time the test offered, a chemical test, could be administered, Eberle was consenting to
one. We are unwilling to overturn the judgment on that theory, and instead believe that
the trial court correctly took into account all applicable policy considerations when it
concluded that Eberle's actions did not adversely affect the relevant events as they
occurred. This conclusion was consistent with the reasoning of the applicable case law
and did not controvert these important statutory purposes. We affirm the judgment
granting the petition.
The judgment is affirmed. Costs of appeal are awarded to Eberle.
BENKE, Acting P. J.

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