Reirdon v. Director of Dept. of Motor Vehicles

KERRIGAN, J.

Petitioner was arrested on June 22, 1967, in Orange County while driving under the influence of intoxi

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eating liquor when he went through a stop sign, crossed over a double yellow line and nearly struck a police ear. When his vehicle was stopped, a strong odor of alcohol was detected on his breath and he failed a field sobriety test.

After he had been placed under arrest, and while en route to a local jail, the arresting officer advised petitioner that he would be required to take one of the three chemical tests prescribed by the California Implied Consent Law (Veh. Code, § 13353) for the purpose of determining his sobriety. Petitioner replied that he wanted to talk to an attorney. Upon arrival at the jail, he was again informed that he would have to take a test—breath, urine, or blood—and petitioner stated he would not take a chemical test unless he could first talk to his lawyer. The arresting officer permitted petitioner to make a telephone call. After placing the call, petitioner stated to the officer that he had called a friend and requested the latter to contact an attorney for him. Petitioner insisted again that he would not take a test until an attorney was present at the jail with him at the time the test was administered. The officer then repeated his request that petitioner submit to a test, informed petitioner that he had a choice of the test to be given, and admonished him that a refusal would result in the suspension of his driving privilege for six months. The officer further advised petitioner that he was not entitled to have an attorney present with him in the jail at the time the test was rendered. Petitioner declined to take any chemical test until his attorney was present. He was then informed again that he would lose his driving privilege for a period of six months because of his refusal.

The arresting officer then prepared an officer’s statement in conformity with the provisions of section 13353 of the Vehicle Code, and transmitted the same for filing with the Department of Motor Vehicles. The preparation and execution of the form consumed approximately 30 minutes. The officer then remained at the jail for another 15 minutes. Petitioner did not consent to take the test at any time before the arresting officer left the jail, nor did he withdraw his statement that he would take a chemical test only on condition that his attorney was present before the officer’s departure.