Plumb v. Department of Motor Vehicles

1 Cal.App.3d 256 (1969) 81 Cal. Rptr. 639 WILLIAM E. PLUMB, Plaintiff and Appellant,

v.

DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents.

Docket No. 11934. Court of Appeals of California, Third District.

October 28, 1969. [257] COUNSEL

Vance J. Vantassell and Laurence C. Blunt for Plaintiff and Appellant.

[258] Thomas C. Lynch, Attorney General, and G.A. Strader, Deputy Attorney General, for Defendants and Respondents.

OPINION

PIERCE, P.J.

Petitioner Plumb appeals from a judgment denying his petition for a writ of mandate compelling the respondent Department of Motor Vehicles to set aside its decision suspending his driver's license for six months under Vehicle Code section 13353.[1]

Plumb's contention is that the arresting officer, who had given Plumb an augmented "Miranda warning" (Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) which emphatically stated that Plumb "had an absolute right to counsel ... present at all stages of the proceedings against him ..." must have realized that Plumb, when he asked permission to make a phone call, had misinterpreted the officer's statement just quoted and was seeking to exercise the proffered right, thus nullifying his subsequent refusal to submit to one of the three tests provided for in the code section. We have concluded that the matter must be reheard to permit the department to determine whether the officer's statement was, in fact, so misinterpreted.

On the evening of April 18, 1967, Highway Patrol Officer George saw Plumb driving erratically. He caused him to stop and alight from his vehicle. When Plumb performed a roadside sobriety test poorly and showed other indications of intoxication the officer arrested him and gave him a warning more extensive than that required by Miranda, stating Plumb's "absolute right to counsel and that he could have counsel present at all stages of the proceedings against him...." Plumb said he would "stay quiet." Plumb also testified that after he had been warned (as we have quoted the warning above) he asked if he "could make a telephone call." The officer told him that he might do so "after [he] had been booked." On cross-examination, the officer would neither affirm nor deny that request and reply. He did not recall. He stated, however, that if such a request had been made "I would advise him that he would be allowed two telephone calls after booking." Plumb testified: "My primary reason for asking when