Marvin v. Department of Motor Vehicles

Opinion

ELKINGTON, J.

—The Department of Motor Vehicles (Department) appeals from a judgment of the superior court, mandating the Department

not

to suspend the driver’s license of plaintiff Marvin, because of her refusal to submit to a chemical test for alcohol blood content, as required in a proper case by Vehicle Code section 13353.

The appeal’s single issue is whether the superior court, exercising its independent judgment on the Department’s administrative record (see

Berlinghieri

v.

Department of Motor Vehicles

(1983) 33 Cal.3d 392 [188 Cal.Rptr. 891, 657 P.2d 383],

passim),

erred in concluding that a police officer lacked probable cause to arrest plaintiff for drunken driving in violation of Vehicle Code section 23102 (now § 23152).

[719]

The facts are uncontroverted.

A police officer, about 2:40 o’clock one morning, observed a motor vehicle driven by plaintiff in a shopping market’s uncrowded parking area. About

six times

it was driven around the parking lot, through some gas pump lanes, out onto the public street, and then back into the parking lot where it was driven in circles. The car then came to a stop in the exit driveway of the parking lot. Approaching the vehicle, the officer inquired of plaintiff why she had been so driving. As he did so, he detected a “strong odor of an alcoholic beverage on her breath and person,” and also observed “that her eyes were bloodshot.” He requested “that she exit from her vehicle” in order that he might perform “a field sobriety test.” She refused to do so. Perplexed, the officer called his sergeant who, upon his arrival, “also requested the driver to perform a field sobriety test and she refused.”