Hulshizer v. Department of Motor Vehicles

Opinion

REPPY, J.

This is an appeal from a judgment of the superior court denying Martin DeForest Hulshizer a peremptory writ of mandamus to compel the Department of Motor Vehicles to annul an order revoking his driver’s license.

In the early morning of January 24, 1967, two police officers of the City of Compton in a police car observed appellant driving his car in an erratic manner, and pursued him with red lights and ultimately with siren which appellant ignored. Instead, appellant drove to his home which was nearby. There, he was found by the officers to be very intoxicated, in a “stuporous” condition. His symptoms were strong and obvious.

He was arrested and taken to jail. The record does not disclose how much time intervened. However at the jail, although his speech was slurred, appellant’s responses were clear and he gáve positive answers. After an explanation that there are three types of alcoholic content test, one of which he must select and take, and that if he refused his driving privilege could be suspended, appellant was asked whether he would take any one of the three. Appellant’s answer was, “No, I have read about those things in. the paper.” The record does not disclose what other questions were asked as to which appellant was said to have given clear and positive answers, but presumably they related to the booking procedure. No test was made.

[809]

Subsequently a hearing was held by a referee of the Department of Motor Vehicles and an order was made revoking appellant’s driver’s license. His petition to the superior court for a writ of mandate to compel vacation of the order was denied, and he appeals.

After reviewing the record before the referee, the trial judge found, in the language of section 13353 of the Vehicle Code that [appellant] “was not in a condition rendering him incapable of refusing to submit to a chemical test.” Turning the double negative into the affirmative, the finding was that appellant’s condition was such that he was capable of making the refusal which he did.

Appellant contends there is no substantial evidence supporting the finding. We do not agree. It is appellant’s condition at the jail which is in question. There it was such that he made clear and positive answers to questions put to him including the crucial one under consideration. The details of the other queries and responses were not developed, but appellant’s counsel was at liberty to inquire into them. Absent any weakening from such a line of questioning, the succinct but meaningful description of appellant’s conduct was an adequate gauge of his condition.