Plunkett v. Alexis

Opinion

EVANS, J.

Plaintiff appeals the denial of his petition for a writ of mandamus (Code Civ. Proc., § 1094.5) to compel the Department of Motor Vehicles (DMV) to vacate its suspension of his driver’s license. (Veh. Code, § 13353.)

1

Section 13353, subdivision (b), mandates such suspension when a motorist lawfully arrested for driving under the influence of intoxicating liquor refuses to submit to one of three chemical tests for the purpose of determining the level of intoxication.

Plaintiff contends (1) the officer failed to insure plaintiff understood the section 13353 admonition; and (2) the officer should have determined plaintiff was incapable of refusing any test and administered a test to him. We disagree with both contentions and affirm the judgment.

I

In the early morning hours of July 18, 1981, California Highway Patrol Officer Albert Courtright responded to a vehicle accident on Highway 4. When the officer arrived on the scene, plaintiff was sitting on the curb and his vehicle was upside down against a tree.

Plaintiff smelled of alcohol, his eyes were bloodshot and watery, his speech was slurred, and he was in great pain. Plaintiff had a deep gash on his nose and severe abdominal pain. Courtright transported plaintiff to the hospital and arrested him for driving under the influence. (Former § 23102, subd. (a).)

Five to ten minutes after their arrival at the hospital, Officer Courtright twice read plaintiff the admonition or warning required by

[373]

section 13353.

2

According to the officer, plaintiff stated, “I will not take any of those tests.” Courtright told plaintiff if the latter failed to take a test, he would lose his driver’s license for six months, which the officer knew would harm plaintiff’s business. Plaintiff allegedly stated he understood.

Plaintiff, who suffered a broken nose and fractured sternum, testified he was in great pain and could not remember anything the officer said. Plaintiff remembered the officer had asked some questions, but plaintiff did not remember saying he would not take any test. Plaintiff admitted he “had a few beers.”