Smith v. Cozens

[302]

Opinion

ELKINGTON, J.

An appeal is properly taken from an order and judgment denying an application for mandate sought by appellant Smith to annul a Motor Vehicle Department suspension of his driver’s, license under the “Implied Consent” law, found in Vehicle Code sections 13353-13354. The appeal additionally purports to be taken from certain nonappealable orders; as to those orders it will be dismissed.

Smith’s overall contention is that the “evidence was not sufficient to support the judgment of the trial court.”

The facts appear to be undisputed. Smith was- arrested on probable cause to believe that he was driving a motor vehicle under the influence of intoxicating liquor. Upon being advised of his duty to participate in a test of his blood, breath or urine, he chose a urine test. However, for at least a half hour thereafter he was unable to produce a urine specimen. He was then asked to submit to a test of his blood or breath. He responded, “I tried to urinate,” and would not agree to either of the other tests. He accordingly submitted to none of the chemical tests required by section 13353.

Smith’s first contention, that the Vehicle Code at the time of his arrest did not require that he

complete

a test but only that he

not refuse

one, has been resolved adversely to him in

Cahall

v.

Department of Motor Vehicles,

16 Cal.App.3d 491, 496 [94 Cal.Rptr. 182], and

Quesada

v.

Orr,

14 Cal.App.3d 866, 871 [92 Cal.Rptr. 640]. In those cases it is expressly held that upon the suspected drunken driver’s inability to produce a urine sample the statute requires him, upon request, to submit to, and