Zidell v. Bright

California Court of Appeal Aug 12, 1968 No. Civ. 24809Published

Before: Christian

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Holding. The court held that a driver's initial refusal to submit to a chemical test under Vehicle Code section 13353 constitutes a refusal that justifies license suspension, and the driver does not have a right to later demand the test.

Issues

Whether a driver's subsequent offer to take a chemical test after an initial refusal negates the refusal for purposes of Vehicle Code section 13353.
Whether police officers are required to arrange for a chemical test after a suspect has initially refused and then changed their mind.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The immediate purpose of Vehicle Code section 13353, the implied consent statute, is to obtain the best evidence of blood alcohol content at the time of the arrest”

“The Legislature did not add subdivision (f) to give an accused drunk driver the right to refuse the officer’s request to submit, and thereafter to demand the test.”

[869]

CHRISTIAN, J.

This appeal is from a judgment denying a writ of mandate to prevent the Director of Motor Vehicles from suspending appellant’s driver’s license for refusal to submit to a blood alcohol test as required by Vehicle Code, section 13353.

On November 6, 1966 at approximately 2:30 a.m., Officer Ruddick of the Milpitas Police Department observed a car being driven erratically. He turned on his red light and siren but the driver continued for another half mile before yielding. Ruddick observed that the driver, appellant, was unsteady on his feet and that his breath smelled of alcohol. Appellant was arrested for driving while under the influence of an intoxicating liquor. At the police station Ruddick read the following statement to appellant: “You are requested to submit to a chemical test to determine the alcoholic content of your blood. You have a choice of whether the test is to be of your blood, breath or urine. A refusal will result in the suspension of your driving privilege for a period of six (6) months.” Appellant telephoned his attorney; thereafer he refused to submit to any of the tests. Ruddick then left the station to resume other police duties.

Thirty to forty-five minutes later, and still during the booking process, appellant stated that he had changed his mind and would submit to one of the tests. The booking officer called the arresting officer, who refused to return; no test was given.

Appellant contends that if Officer Ruddick had returned and administered a test it would have been possible, through a mathematical calculation, to determine from the delayed test result the blood alcohol level at the time of the arrest. But the scientific validity of this proposition is not established, and the statute makes no provision for such an inquiry.

A court should interpret legislation reasonably and should attempt to give effect to the apparent purpose of the statute.

(Ivens

Simon

(1963) 212 Cal.App.2d 177, 181-182 [27 Cal.Rptr. 801].) California courts have consistently recognized that a large proportion of traffic injuries and fatalities are due to inebriated drivers.

Zidell v. Bright

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CHRISTIAN, J.

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