Barrie v. Alexis

California Court of Appeal Feb 17, 1984 No. 67354Published

Before: Lillie

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Holding. A driver's clear and unequivocal refusal to submit to a chemical test under the implied consent law constitutes a valid basis for license suspension, regardless of whether the driver later submits to a test under protest or whether the test is ultimately completed.

Issues

Whether a driver's verbal refusal to submit to a chemical test constitutes a refusal under Vehicle Code section 13353 even if the driver later submits to a test under protest.
Whether the completion of a chemical test negates a prior refusal for purposes of license suspension.

Disposition. reversed

Quotations verified verbatim against the opinion

“To each of the statements read to her by Officer Donnelly, Barrie responded "No," she was not going to take any test. This is an outright refusal as a matter of law under section 13353 with no room for construction.”

151 Cal.App.3d 1157 (1984) 199 Cal. Rptr. 258 CAROLINA WINSTON BARRIE, Plaintiff and Respondent,

DORIS ALEXIS, as Director, etc., et al., Defendants and Appellants.

Docket No. 67354. Court of Appeals of California, Second District, Division One.

February 17, 1984. [1159] COUNSEL

John K. Van de Kamp, Attorney General, N. Eugene Hill, Assistant Attorney General, Henry G. Ullerich and Christopher C. Foley, Deputy Attorneys General, for Defendants and Appellants.

Steven M. Sindell for Plaintiff and Respondent.

OPINION

LILLIE, J.

The Department of Motor Vehicles appeals from judgment granting peremptory writ of mandate directing it to vacate its order suspending the driving privileges of Carolina Winston Barrie for six months for her refusal to submit to a chemical test pursuant to the implied consent law. (§ 13353, Veh. Code.)

The facts presented by the officers at the administrative hearing concerning Barrie's conduct are undisputed; Barrie neither testified nor offered evidence on her behalf. An accident between a motorcycle and motor vehicle occurred on Pacific Coast Highway at 10:40 p.m.; the motorcyclist was removed to the hospital; Barrie, driver of the motor vehicle, was slouched on a sofa drinking coffee in a nearby residence. Asked by Officers Brucker and Donnelly to go outside to perform a balance and coordination test, Barrie walked out staggering and the odor of alcohol emitted from her breath and person; after administering three field sobriety tests, the officers concluded she was under the influence of alcohol and arrested her.

En route to the jail Officer Brucker admonished Barrie "You are required by state law to take a chemical test to determine the alcohol content of your blood. You have the choice of taking a breath test, a urine test, or a blood test. Which test would you prefer to take?" Barrie told Officer Brucker she would let her know when they got to the station.

Barrie v. Alexis

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OPINION

LILLIE, J.

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