Hasiwar v. Sillas

[297]

Opinion

COBEY, J.

Appellant, Herman Sillas, Director of the State Department of Motor Vehicles, appeals from a judgment in administrative mandamus for petitioner, Eugene Henry Hasiwar, granting him a peremptory writ of mandate commanding respondent to vacate and set aside the departmental order suspending petitioner’s driver’s license.

The trial court found that plaintiff (hereafter petitioner) was arrested for driving a motor vehicle under the influence of intoxicating liquor on April 6, 1977, and that he completed two tests of his breath but refused to submit to a third such test. From these findings the trial court concluded as a matter of law that petitioner voluntarily submitted to and satisfactorily completed one more test of his breath than required by Vehicle Code section 13353 and, therefore, complied fully with its provisions. The trial court further concluded as a matter of law that the departmental order suspending petitioner’s driver’s license was invalid since the evidence received at the departmental hearing did not support the findings of the departmental referee.

We note that the foregoing findings of fact of the trial court do not reveal whether in making them the trial court exercised its independent judgment as to the weight of the evidence at the administrative hearing or whether it merely concluded that the departmental findings contrary to its own findings were not supported by substantial evidence in light of the whole record of the administrative hearing. (See Code Civ. Proc., § 1094.5, subd. (c);

McConville

v.

Alexis

(1979) 97 Cal.App.3d 593, 599-601 [159 Cal.Rptr. 49];

Buchanan

v.

Department of Motor Vehicles

(1979) 100 Cal.App.3d 293, 298, fn. 3 [160 Cal.Rptr. 557].) But this omission is without legal consequence on this appeal as here there is no significant factual dispute between the parties regarding what happened with respect to the administration of the chemical breath test to petitioner. The parties’ dispute is solely one of law. It is whether petitioner’s conduct as a matter of law constituted compliance with the appropriate subdivision of the aforementioned governing statute, the implied consent law (Veh. Code, § 13353, subd. (b)), requiring a person in petitioner’s position, at the request of the arresting officer, to submit to and