Beales v. Department of Motor Vehicles

California Court of Appeal Apr 9, 1969 No. Civ. 9190Published

Before: Ault

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Holding. The court held that a driver's conditional consent to a blood alcohol test, based on a self-initiated misconception that they may choose their own physician, constitutes a refusal to submit to the test under Vehicle Code section 13353.

Issues

Whether a driver's insistence on having their own physician perform a blood alcohol test constitutes a refusal under the implied consent law.
Whether the police have an affirmative duty to correct a driver's self-initiated misconception regarding their rights during a chemical test request.

Disposition. affirmed

Quotations verified verbatim against the opinion

“appellant’s thrice-pronounced statement he would take a blood test on the condition his own physician be permitted to draw the blood was a refusal within the contemplation of section 13353 of the Vehicle Code.”

“Appellant’s then held misconception that he was entitled to have the blood drawn for the test by his own physician was in no way police-initiated.”

AULT, J. pro tem.

Petitioner Warren Stanton Beales appeals from a judgment of the superior court denying his application for an extraordinary writ to compel the respondent Department of Motor Vehicles to set aside its order suspending his driving privilege for a period of six months pursuant to Vehicle Code section 13353 (the implied consent law).

On June 3, 1967, appellant was arrested by Officer William T. Clark of the San Diego Police Department for violation of Vehicle Code section 23102 (driving a vehicle while under the influence of intoxicating liquor). He was advised of his constitutional rights as required by the

Miranda

decision. Bn route to the police station and at the station the police officer told appellant he would be requested to take one of three chemical tests to determine the alcoholic content of his blood. Appellant was told his refusal to submit to one of the three tests would result in the suspension of his driver’s license. On three occasions Officer Clark asked appellant to submit to one of the three tests specified in Vehicle Code section 13353, and on each occasion appellant indicated he would submit to a blood test if his own doctor were permitted to draw the blood. After the third such answer, Officer Clark assumed appellant had refused to take a chemical test and booked him in the jail.

Appellant concedes on appeal he “had no right to have his physician withdraw the blood,” but urges his insistence thereon should not be deemed a refusal to submit to a blood alcohol test because the officer did not explain that fact to him. This contention is without merit. The situation presented by this case is different from that which existed in

People

Ellis,

65 Cal.2d 529 [55 Cal.Rptr. 385, 421 P.2d 393], and in

Rust

Department of Motor Vehicles,

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

Ellis,

as a part of the

Miranda

warning, the police advised the defendant he had the right to remain silent, but they failed to advise him that this did not include the right to

Beales v. Department of Motor Vehicles

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