Wethern v. Orr

AULT, J. pro tem.

*

Petitioner Robert Wethern appeals from a judgment of the superior court denying his petition for writ of mandate. He sought the writ to compel respondent Orr, as Director of the Department of Motor Vehicles, to set aside that department’s decision revoking his driving privilege for a period of six months under the Implied Consent Law (Veh. Code, § 13353).

No testimony was offered at the trial and the court’s finding and judgment are based upon the transcript of the testimony at the hearing before the department and the documents which were made part of that record. Prom that record the following undisputed facts appear: On May 12, 1967, appellant Wethern was arrested by Officer Bierer for violation of Vehicle Code section 23102 (driving a motor vehicle while under the influence of intoxicating liquor). At the scene of the arrest, appellant was advised by the officer of his constitutional rights under the

Miranda

decision. Among other things, he was told he had the right to remain silent and to refuse to answer questions, and that he had the right to consult an attorney before answering further questions. Appellant indicated he wanted to consult an attorney, and he was told he would be permitted to do so after he had been booked in the jail.

Appellant was transported by police vehicle to the sheriff’s substation at Norwalk, California, where prior to booking appellant, Officer Bierer read the following statement to him: “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.’’

The officer then asked these questions of appellant and received these answers:

“Q. Do you refuse to take a blood test?

[815]

“A.

Yes, I feel I don't have legal council

[sic]

to represent me.