Lagomarsino v. Department of Motor Vehicles

by officers with reasonable cause to believe he was driving an automobile under the 'influence of alcohol. Immediately upon arrest; he was advised of his

“Miranda

rights.”

1

After appellant had failed the field sobriety tests he was requested to submit to a chemical test of blood alcohol, and warned that his failure to do so would result in a six months’ suspension of his driver’s license. This request and warning complied with Vehicle Code section 13353. Appellant stated he did not want to take any tests until he had had an opportunity to talk to his attorney. This statement was made in the police station as the officer was preparing to administer the breathalyzer test.

Appellant’s refusal to submit to a chemical test was reported to the Department of Motor Vehicles, which eventually conducted a hearing (where appellant appeared with counsel and testified), and made an administrative order suspending the license.

Appellant then petitioned the superior court for a writ of mandate to review the administrative decision. The case was submitted there on the record of the administrative hearing, after which the superior court made findings which sup-ported the administrative order, and denied relief. This appeal is from that judgment.

The sole issue argued on appeal is that his request for counsel was not a refusal to take the test, citing

Rust

v.

Department of Motor Vehicles

(1968) 267 Cal.App.2d 545 [73 Cal. Rptr. 366].

The

Rust

case does not support appellant’s contention. In

Bust

the superior court made a finding of fact that, under

[519]

the circumstances there, the driver’s demand for counsel did not constitute a refusal. Here there is no such finding.