Giomi v. Department of Motor Vehicles

Opinion

DRAPER, P. J.

The department ordered suspension of Giomi’s driver’s license because of his refusal to take one of the three tests required by law (Veh. Code, § 13353) when he was arrested for drunk driving. After hearing, the superior court issued peremptory writ of mandate requiring the department to vacate its order. The department appeals.

The arresting officer advised respondent only that his driver’s license

could

be suspended if he failed to take one of the tests. But the code section requires warning that the license

will

be, or

would

be suspended in the event of refusal.

Proper warning of the consequence of refusal is one of the elements essential to suspension of license under the code

(Janusch

v.

Department of Motor Vehicles,

276 Cal.App.2d 193, 196 [80 Cal.Rptr. 726]). We have held that an admonition is adequate if it states that refusal “would probably” cause suspension

(Janusch

v.

Department of Motor Vehicles, supra)

or that “chances are that you will lose your license” if you refuse

(Smith

v.

Department of Motor Vehicles, 1

Cal.App.3d 499 [81 Cal.Rptr. 800]). But in each case we emphasized that the language used adequately conveyed to

[907]

the driver the strong likelihood that the adverse result would follow upon refusal. The word “could,” however, carries but a meaning of possibility and in common usage often refers to a result more remote than likely.