[544]JEFFERSON (Bernard), J. I dissent.
I would reverse the judgment of the superior court which set aside the action of the Department of Motor Vehicles in suspending the driver’s license of James Joyce pursuant to Vehicle Code section 13353.
I disagree with the majority’s interpretation of Vehicle Code section 13353 and the pertinent portion of the regulations of the Department of Public Health instituted to implement the requirements of section 13353. The pertinent portion of the regulation involved is set forth in California Administrative Code, title 17, section 1221.4, subdivision (a)(1).
In affirming the action of the superior court, the majority interprets Vehicle Code section 13353 and section 1221.4, subdivision (a)(1), of title 17 of the California Administrative Code—the administrative regulation —so as to affirm the trial court’s view that Joyce, the motorist arrestee, had submitted to and completed the required test for determining the alcoholic content of his breath. I disagree. In my view, the majority’s interpretations lack logic and are contrary to acceptable standards of statutory and administrative regulation interpretation.
Vehicle Code section 13353, subdivision (a), gives the individual motorist arrested a choice of whether the chemical test for determining the alcoholic content of his blood shall be a chemical test of his blood, breath or urine. The issue involved in the case before us revolves around the meaning of Vehicle Code section 13353, subdivision (b). Subdivision (b) provides, in relevant part for the issue before us, that “[i]f any such person refuses the officer’s request to submit to, or fails to complete, a chemical test,” the Department of Motor Vehicles shall suspend such person’s privilege to operate a motor vehicle for a period of six months.
The pertinent portion of the regulation of the Department of Health which is designed to carry out the requirements of Vehicle Code section 13353 provides as follows: “(a) Procedures for breath alcohol analysis shall meet the following standards: [H] (1) For each person tested, breath alcohol analysis shall include analysis of 2 separate breath samples which result in determinations of blood alcohol concentrations which do not differ from each other by more than 0.02 grams per 100 milliliters.” (Cal. Admin. Code, tit. 17, § 1221.4, subd. (a)(1).)
The facts are not in dispute. Joyce initially refused to take either of the three tests. After refusing twice to take any test at all, Joyce told the [545]officer he would submit to the breath test. Joyce then blew into the machine, but the machine did not produce an analysis of his breath. At this time the officer explained to Joyce that, in order to complete a breath test, two analyzed samples were required. Joyce then blew into the machine a second time and the machine produced an analysis of Joyce’s alcoholic breath content. The officer then requested of Joyce that he blow again into the machine in order to obtain a second analyzed sample. Joyce refused to blow into the machine as requested on the ground that he had provided two separate breath samples which was all that he was required to do.
The majority interprets the pertinent regulation as requiring the motorist to give two samples for breath alcohol analysis, and that the statute and regulation are then satisfied, even though only one sample becomes analyzed. It is of no moment to the majority that a second breath sample does not become analyzed either because of malfunctioning of the machine or some mistake or error made by the testing officer. In my view, this is a completely erroneous interpretation of title 17, section 1221.4, subdivision (a)(1), of the California Administrative Code.
The majority takes the view that section 1221.4, subdivision (a)(1), is ambiguous. I find no ambiguity in this regulation. It is abundantly clear that the regulation requires the motorist, who has agreed to a breath alcoholic analysis, to provide several breath samples if such are needed to produce two alcoholic analyzed samples that result in “determinations of blood alcohol concentrations which do not differ from each other by more than 0.02 grams per 100 milliliters.”
I consider it apparent and obvious that the requirement for two analyzed samples that reach the same blood alcohol concentration result is clearly justified in order to produce integrity in the chemical testing process. If a motorist gives two breath samples and they analyze at different blood alcohol concentrations in excess of 0.02 grams per 100 milliliters, it is obvious that the analysis is faulty due to such factors as malfunctioning of the analysis machine or a mistake of some kind by the operator. I interpret section 1221.4, subdivision (a)(1), of title 17 of the California Administrative Code as requiring a motorist to give at least in the area of three or four samples if such are needed to produce two analyzed samples within the limited range provided in the regulation.
If, after giving three or four samples, there are still not two analyzed samples coming within the restricted range of results, the motorist has [546]then satisfied the requirements of Vehicle Code section 13353 and section 1221.4, subdivision (a)(1) of title 17 of the California Administrative Code. I do not see that there is any necessity at this time of determining what is the maximum number of breath samples a motorist could be required to give in an effort to produce two analyzed samples that fall within the limited ranges set forth in the regulation.
At any rate, I can see no justification whatever for the majority’s view that, once a motorist has given two breath samples for analysis, he has satisfied his legal obligation, even though only one of the two samples is capable of chemical analysis because of a malfunction of the test machine or some mistake or error by the testing officer.
In the instant case, it is my view that the refusal of Joyce to give a third sample of his breath—after being told that the first sample was not analyzed by the machine—brings his refusal within the orbit of Vehicle Code section 13353, subdivision (b), as amounting to a refusal to submit to the chemical test for breath analysis and a failure also to complete the requested chemical test. This refusal and failure justified the Department of Motor Vehicles in suspending Joyce’s license to drive.
I conclude that it is immaterial that Joyce may have honestly believed he was not required to give any more than two samples regardless of whether these samples were incapable of becoming analyzed as a result of machine malfunctioning or operator error. Such a subjective belief on the part of a motorist is an unreasonable one. A motorist cannot be permitted to make his own interpretation of the law which lacks logic or reason.
I consider that my interpretation of Vehicle Code section 13353 and section 1221.4, subdivision (a)(1), of title 17 of the California Administrative Code, the regulation which implements section 13353, comports with the principles set forth in Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74 [81 Cal.Rptr. 348, 459 P.2d 900], There the court observed: “A court should interpret legislation reasonably and should attempt to give effect to the apparent purpose of the statute. Our implied consent statute, including section 13353, was enacted to fulfill the need for a fair, efficient and accurate system of detection and prevention of drunken driving. [Citations.] The immediate purpose of section 13353 is to obtain the best evidence of blood alcohol content at the time of the arrest of a person reasonably believed to be driving while intoxicated. The long range [547]purpose is, of course, to inhibit intoxicated persons from driving on the highways. [Citation.]” (Id., at p. 77.) (Italics added.)
In Kesler, the motorist involved had insisted upon taking all three tests of blood, breath and urine analysis. The court interpreted this insistence by the motorist to constitute a refusal to submit to a test within the meaning of Vehicle Code section 13353, subdivision (b).
In the case at bench, the majority holds that the trial court was correct in finding that Joyce’s refusal to give the third breath sample was engendered by confusing or misleading statements by the arresting officer. Hence, it was not a refusal by Joyce to submit to a chemical test or a failure on his part to complete a chemical test within the meaning of Vehicle Code section 13353, subdivision (b).
The decisional law has certainly stated that “ 1 “[i]f the evidence shows the officer made ambiguous or conflicting statements, that evidence has a bearing on whether . . . the response of the driver indicated his confusion rather than his refusal to perform a statutory duty”; . . .’” (Goodman v. Orr (1971) 19 Cal.App.3d 845, 853 [97 Cal.Rptr. 226].) But it has also been held that “[i]n determining whether an arrestee’s refusal is the result of confusion, the crucial factor is not the state of the arrestee’s mind; it is the fair meaning to be given his response to the demand that he submit to the chemical test.” (Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 497 [94 Cal.Rptr. 182].)
It is well settled that “[w]hen there is no evidence of confusion, and where apparent confusion is not demonstrated and is not apparent to the arresting officer, no further clarification on the part of the arresting officer is required.” (Cahall, supra, 16 Cal.App.3d 491, 497.) I can see no basis for the application of the “confusion doctrine” in the case at bench. The arrestee Joyce was told by the police officer in no uncertain terms that, in order to have a breath test, two analyzed samples were required. Joyce was told that the machine had failed to analyze the first breath sample and that is why he was required to supply a third sample in order to obtain two analyzed samples. Joyce could not possibly have been confused by the officer’s statements to him. Instead of being confused, Joyce simply undertook his own interpretation of the requirements of the law, namely, that he was only required to supply two breath samples irrespective of whether one, both or none became analyzed samples.
[548]In view of the plain language of the regulation—section 1221.4, subdivision (a)(1), of title 17 of the California Administrative Code—requiring for each person tested that a breath alcohol analysis “shall include analysis of two separate breath samples,” it follows that Joyce refused the officer’s request to submit to a chemical test and failed to complete the chemical test within the meaning of Vehicle Code section 13353, subdivision (b).
I would thus reverse the judgment of the trial court.
Appellant’s petition for a hearing by the Supreme Court was denied May 17, 1979. Manuel, J., was of the opinion that the petition should be granted.