Thursday, February 7, 2013

In this California DUI attorney's refusal hearing at DMV, the California DUI lawyer convinced the court to NOT find that a mechanical reading of the admonition by the police officer after a drunk driving arrest is sufficient as a matter of law to eliminate confusion where a citizen has asked why the Miranda rights do not apply to the chemical tests



In this California DUI attorney's refusal hearing at DMV, the California DUI lawyer
convinced the court to NOT find that a mechanical reading of the admonition by the police
officer after a drunk driving arrest is sufficient as a matter of law to eliminate confusion
where a citizen has asked why the Miranda rights do not apply to the chemical tests.

The driver was Mirandized, saw a sign for a phone call, asked to speak to a lawyer and
never was explained by the police why the Miranda rights do not apply to the Implied
Consent obligations.

Sure the officer read from the California DUI refusal admonition form:



"You do not have the right to talk to an attorney or have an attorney present before stating
whether you will submit to a test, before deciding which test to take, or during the test."

But the video showed the driver did not hear that statement as the driver was speaking
at the time.

California law:


“California courts have excused refusals to take a chemical test on the ground of
officer-induced confusion resulting from the juxtaposition of the [implied consent
warning and the Miranda warning] and the officer’s failure to clarify and explain the
difference.” (McGue v. Silas, supra, 82 Cal.App.3d at p. 806.) “It is recognized that
juxtaposition of the implied consent warnings (no right to refuse a test and no right to
consult with or to have an attorney present during its administration) with the Miranda
admonition (right to refuse interrogation and to have an attorney present at all stages of a
police interrogation, etc.), is apt to induce confusion. If a driver who has been given
Miranda insists on the presence of an attorney before choosing a test the courts have
recognized that he may have been confused by the two warnings and the officer’s failure
to clarify and explain the difference. In such a case the refusal to take a test has been held
not to be a refusal within the meaning of said section 13353. [Citation.] The question of
officer-induced confusion is one of fact. [Citations.] When a driver who has been given
Miranda manifests confusion by asserting his alleged right to an attorney, it is incumbent
upon the officer to explain that the right does not apply to these tests.” (McDonnell v.
Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658.)

It is questionable whether officer-induced confusion would provide a defense here
if Hoberman-Kelly had refused to take a blood test. On one hand, if the person manifests
confusion, “ ‘it is incumbent upon the arresting officer to elaborate upon the warning.
The arrested person should be explicitly informed that the constitutional rights previously
explained to him are not applicable to the decision he must make concerning the three
chemical tests, and that he has no right to consult an attorney before making the decision
that he will, or will not, submit to one of them.’ ” (Goodman v. Orr (1971) 19 Cal.App.3d

845, 885.) On the other hand, “ ‘The rule only requires that the officer erase possible
confusion caused the allegedly drunken laymen by the officer’s own statements.’ ” (Ibid.)
Here there is no evidence that Perry made any statements to Hoberman-Kelly that were
incorrect or misleading. Nonetheless, it was unmistakably apparent that she was confused
by the Miranda warning she had received coupled with the sign on the wall advising that
she had a right to make a telephone call. While Perry did read the sentence in the form
admonition that she had no right to an attorney before deciding whether to take the test or
during the test, he did so in what the trial court aptly described as a “mechanical” reading,
and what might also be described as purely perfunctory. It is clear from the video that
Perry made no genuine effort to communicate to Hoberman-Kelly “that the constitutional
rights previously explained to [her] are not applicable to the decision [she] must make.”
Although Hoberman-Kelly repeatedly asked Perry why she could not make a phone call
as the sign indicated she could, Perry made no effort to answer her or to explain that she
was not entitled to make the call until after she took the blood test.


Despite the officer’s indifference to Hoberman-Kelly’s pleas for an explanation,
Hoberman-Kelly repeatedly told the officer she would take the blood test, both before
and after Perry stated he would take her responses as a refusal. When he made that
pronouncement she immediately responded again with the colorful but explicit statement
that she would give him the blood test. There unquestionably is substantial evidence that
Hoberman-Kelly never refused to submit to a blood test, and certainly never did so after
receiving the statutory admonition. Without causing any delay, she in fact cooperatively
submitted to the drawing of her blood as she said she would.

Like the trial court, we are mindful of the difficulties an officer confronts in
performing his duties while dealing with an apparently intoxicated individual who is
being loud and unruly. Nonetheless, the officer is obligated to attempt to clarify an
arrested person’s confusion over when the right to counsel arises and Perry made no
meaningful attempt to do so. We agree with the trial court that Perry both “failed to make
any reasonable effort” to dispel Hoberman-Kelly’s confusion and ignored her repeated
statements that she would submit to a blood test. The writ of mandate was properly
issued.





Facts:


Hoberman-Kelly was arrested in the early morning hours on July 30, 2010.
California Highway Patrol Officer M. Perry and his partner responded to a call of a
vehicle traveling westbound in the eastbound lanes on Sir Francis Drake Boulevard in
Marin County. The officers found the car stopped facing westbound in the eastbound
lanes, detected an odor of alcohol on Hoberman-Kelly’s breath, noticed her bloodshot
watery eyes, slurred speech and unsteady gait, and observed her poor performance on a
series of field sobriety tests. After Perry read the preliminary alcohol screen admonition
to Hoberman-Kelly, she refused to take a breath test at the scene and was arrested for
driving under the influence of alcohol. While in the patrol car she was read her Miranda
rights and advised of the consequences under Vehicle Code section 13353 of failing to
submit to a chemical test of her blood alcohol content. She was taken to the Marin Area
California Highway Patrol office, where a certified phlebotomist was waiting to
administer a blood test and where Perry read her the chemical test admonition verbatim
as it is printed on Department of Motor Vehicles form DS 367.


The exchange between Officer Perry and Hoberman-Kelly is difficult to describe
accurately but fortunately is captured in full on a video that is included in the
administrative record. Hoberman-Kelly, who was read her Miranda rights in the officer’s
vehicle, observed a sign on the wall next to which she was handcuffed advising her of the
right to make a telephone call and she stated that she wanted to call her attorney and to
make the telephone call to which the sign said she was entitled. Hoberman-Kelly was
belligerent and at one point managed to free herself from the handcuff, but she was
coherent and made plain that she did not understand why she could not make the phone
call to which the sign referred. Perry at no point acknowledged her request to make a call,
responded to her question why she could not do so as the sign indicated, or made any
effort to explain that despite her right to speak to an attorney she was not entitled to do so
or to make her call before submitting to the test. Instead the officer, ignoring Hoberman-
Kelly’s requests, continued disjointedly to read the printed admonition. The admonition
does include the statement that “You do not have the right to talk to an attorney or have
an attorney present before stating whether you will submit to a test, before deciding
which test to take, or during the test.” However, from the video it is apparent that
Hoberman-Kelly, who was voicing her demands while Perry was reading the statement,
did not hear the admonition and that Perry must have been aware that she did not hear it.
Hoberman-Kelly repeatedly stated that she wanted to read the admonition and at one
point attempted to grab the document, but the officer refused to permit her to see it.

While Perry was reading, Hoberman-Kelly, although repeating her demand to speak with
an attorney, stated several times that she had no problem with taking a blood test, but
Perry appears to be paying no attention to her. When Perry finished reading the
admonition, he asked Hoberman-Kelly whether she would submit to a blood test, to
which she responded “all right,” but Perry stated “that’s a no” and that he would take it as
a refusal. Hoberman-Kelly immediately shouted in response that she would “give you a
free fucking blood test” and repeated that she would do so several times. The
phlebotomist then promptly administered the blood test without incident.

After an administrative hearing, the department suspended Hoberman-Kelly’s
privilege to drive for one year for refusing the request to submit to the blood-alcohol test.
The hearing officer found that Hoberman-Kelly “refused to take a chemical test and kept
insisting she wanted her attorney present. Officer Perry advised her he considered it a
refusal and she then stated she would take a blood test. [Hoberman-Kelly’s] opportunity
to change her mind to retract her refusal to complete a chemical test had expired because
the officer already notified her he considered her responses and actions as a refusal.”
Hoberman-Kelly filed a petition for a writ of mandate in the superior court seeking
to vacate the suspension order. Following a hearing at which the court reviewed the entire
administrative record, including the video, the court granted the writ and entered an
extensive order reading in part as follows: “The ‘fair meaning’ given to Ms. Hoberman-
Kelly’s statements is that she is genuinely exasperated and confused by the conflict
between her right to counsel as indicated on the wall of the police station and Officer
Perry’s implicit and explicit refusal to permit her to call for an attorney. Officer Perry

responds by reading the admonition mechanically and makes no effort to explain that the
Miranda right does not apply to the chemical tests. Officer Perry also refuse[d]
Ms. Hoberman-Kelly’s requests that she be permitted to read the admonition herself. The
court notes the contrast with McGue v. Silas (1978) 82 Cal.App.3d 799, 808, where ‘two
officers explained the implied consent admonition in their own words, and allowed
appellant to read it for himself.’ [¶] The video with Officer Perry also shows that
Ms. Hoberman-Kelly states repeatedly that she would submit to a blood test. Officer
Perry does not acknowledge or accept these offers and instead read the admonition to its
conclusion and then states that he will record her as a refusal. Although delivered in an
agitated voice, Ms. Hoberman-Kelly does state ‘I have no problem with a blood test’
while Officer Perry reads the admonition and ‘I will give you a free fucking blood test’
seconds after he says that he deems [the] request for an attorney as a refusal. [¶] The
video takes 2:59 minutes, and there is no indication in the record that Ms. Hoberman-
Kelly’s insistence on an attorney delayed the drawing of her blood. The video of the
blood draw shows that Ms. Hoberman-Kelly submitted to a blood draw. [¶] The court
condemns Ms. Hoberman-Kelly’s belligerence and is sympathetic to the challenges of

law enforcement in dealing with agitated members of the public. The court nevertheless
finds that Ms. Hoberman-Kelly was confused by [the] discrepancy between the
information on the wall and the information provided to her by Officer Perry, and that
Officer Perry failed to make any reasonable effort [to] clarify and explain the difference.

The court will not find that a mechanical reading of the admonition is sufficient as a
matter of law to eliminate confusion where a citizen has asked why the Miranda rights do
not apply to the chemical tests.”

The department has timely appealed from the superior court’s order.







Filed 2/5/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
ZOE HEI RIM HOBERMAN-KELLY,
Plaintiff and Respondent,
v.
GEORGE VALVERDE, as Director, etc.,
Defendant and Appellant.
A135763
(Alameda County
Super. Ct. No. RG11581988)
George Valverde, the Director of the Department of Motor Vehicles (the
department), appeals from the issuance of a writ of mandate setting aside the suspension
of the driver’s license of Zoe Hei Rim Hoberman-Kelly for allegedly refusing to submit
to a blood test to determine her blood-alcohol content. The interaction between
Hoberman-Kelly and the officer who advised her of the obligation to submit to the test is
recorded on a video that is part of the administrative record. After reviewing the video we
have no doubt that substantial evidence supports the trial court’s finding that the officer’s
reading of the necessary admonitions to Hoberman-Kelly was mechanical, with no
attempt having been made to dispel her confusion as to the right to contact counsel, and
that, in all events, Hoberman-Kelly “state[d] repeatedly that she would submit to a blood
test.” We shall affirm the trial court’s order.


This appeal turns on whether there is substantial evidence to support the trial court’s factual finding that
Hoberman-Kelly did not refuse to submit to a blood test. Were we to answer this question
in the negative—which we do not—the outcome would then depend on whether there
was substantial evidence to support the trial court’s implicit finding that any refusal
resulted from Hoberman-Kelly’s confusion induced by Perry as to her right to counsel
before submitting to the test. (See McGue v. Silas (1978) 82 Cal.App.3d 799, 807.