Butler v. Department of Motor Vehicles

Opinion

THE COURT.

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Franklin Butler appeals from a judgment denying his petition for a writ of mandate (Code Civ. Proc., § 1094.5) by which he had sought review of a Department of Motor Vehicles order suspending his driving privilege for refusal to submit to, or failure to complete, a chemical test for blood-alcohol content under California’s implied consent law (Veh. Code, § 13353). Appellant contends that the arresting officer did not afford him his statutory right to choose among alternative chemical tests. We conclude that the record refutes appellant’s position as a matter of law. Therefore we affirm.

The arresting officer (Tonelli) and another officer found appellant in his automobile, injured and apparently under the influence of intoxicat

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ing liquor. The officers decided not to administer field sobriety tests; instead they arrested appellant and transported him to a hospital. En route Tonelli advised appellant of his rights and obligations under the implied consent law, giving him his choice of a chemical test of his blood, his breath, or his urine. Appellant said that he understood: He stated that he could not urinate, that he did not trust the breath-analysis instrument, and that therefore he wanted a blood test. At the hospital appellant was asked to sign a “consent to blood test,” prepared by the hospital staff, which read as follows: “I, the undersigned, do hereby consent to the withdrawal of a blood sample from my body and do hereby further acknowledge that I have been advised that I have my choice of submitting to a test of either my blood, breath or urine and that I have selected the blood test. I further certify that I am not a person who is afflicted with hemophilia or a person who is afflicted with a heart condition using an anticoagulant under the direction of a physician.”

Appellant refused to sign this form, although he apparently did sign consent forms for medical treatment. Consistent with the hospital’s procedures at that time, hospital personnel would not take a blood sample from appellant without first obtaining his signature on the consent form. Appellant never specifically said that he would not take a blood test.