Shackelton v. Department of Motor Vehicles

Opinion

JEFFERSON, Acting P. J.

The Department of Motor Vehicles of the State of California appeals from a judgment of the Superior Court of Los Angeles County commanding the Department of Motor Vehicles to permanently vacate, annul and set aside an order of suspension of respondent’s (petitioner below) driver’s license.

[329]

The facts are as follows: The Department of Motor Vehicles of the State of California issued an order of suspension dated July 26, 1973, advising Jesse E. Shackelton (respondent) that it had received a peace officer’s sworn statement that he had been arrested on July 10, 1973, and that he had failed to submit to a chemical test after being requested by the peace officer to submit to said test pursuant to Vehicle Code section 13353, subdivision (b).

On August 3, 1973, respondent requested a formal hearing with regard to the suspension of his operator’s license.

On August 9, 1973, the Department of Motor Vehicles notified respondent that its order of suspension dated July 26, 1973, had been stayed until further notice.

On August 21, 1973, a formal hearing was held. The referee made the following findings: (a) respondent was lawfully arrested; (b) the peace officer had reasonable cause to believe that respondent had been driving a motor vehicle upon the highway while under the influence of intoxicating liquor; (c) respondent was told that his driving privilege would be suspended for a period of six months if he refused to submit to a chemical test; and (d) respondent refused to submit to any chemical test of his blood, breath or urine after requested to do so by the officer.

On November 19, 1973, by its order of suspension, appellant notified respondent that the stay of the order of suspension dated August 9 had been vacated and that its order of suspension dated July 26, 1973, became effective on November 28, 1973.

On November 27, 1973, respondent petitioned the Superior Court of" Los Angeles County for an alternative writ of mandate.

A hearing on the writ was held on December 27, and judgment was entered for respondent (petitioner below), decreeing the issuance of a peremptory writ of mandate commanding appellant (respondent below) to permanently vacate, annul and set aside its order of suspension of November 19, 1973.