Weber v. Orr

DEVINE, P. J.

This appeal is from a judgment denying a writ of mandate to set aside suspension of appellant’s driving-license for refusal to submit to a chemical sobriety test.

Police officers found appellant’s ear parked half on an access road and half on the Marina Green in San Francisco. Its lights were on, the motor was running, the gear selector was in “drive,” and appellant was slumped over the wheel. When one of the officers attempted to open the driver’s door, the ear lunged forward, and the officer had to jump into the ear and put the gear into “park” in order to stop it. Appellant was unsteady, his speech was slurred and his breath was strongly alcoholic. (He admits that he was intoxicated.) He was arrested for violation of Vehicle Code section 23102 (driving while under the influence of intoxicating liquor) and was advised of his rights. Appellant was requested at least three times to submit to a chemical test to determine the alcoholic content of his blood, but he refused to do so until he could call his attorney.

The drunk driving charge was dismissed, but following a hearing before the Department of Motor Vehicles, appellant’s license was suspended for refusal to submit to a sobriety test under section 13353 of the Vehicle Code. At this hearing, appellant testified that he had been working on a boat docked

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at the Marina and had then spent some time consuming intoxicating beverages with friends on a nearby boat. At about 8 o’clock he entered his vehicle to sleep. Because of the coolness of the evening he started his motor, rolled down the rear window, and turned on the heater. Appellant had not told the officer about the visit to the boat or about his desire to use the vehicle merely for the purpose of sleeping.

One of the major points made by plaintiff before the hearing officer was that there was no proof that the area “whereupon the vehicle was evidenced” (to use the hearing officer’s words) was a highway within the meaning of section 360 of Vehicle Code. The hearing officer made no finding that appellant had been driving on a highway, but only that the officer had reasonable cause to believe that he had been driving a motor vehicle upon a highway while under the influence of intoxicating liquor. Thus, we do not know that the hearing officer disbelieved appellant’s narration of his activities. The hearing officer, in order to support the finding which he did make, need only have found that the officer, who was not supplied with appellant’s account, had reasonable cause to believe the facts recited.