Wegner v. Department of Motor Vehicles

California Court of Appeal Apr 16, 1969 No. Civ. 25504Published

Before: Devine

AI Brief

AI-generated · verify before citing

Holding. A licensee's conditional consent to a blood test, contingent upon the use of a physician of their choice, constitutes a refusal under Vehicle Code section 13353. Furthermore, a licensee refusing a test due to alleged unsanitary conditions must clearly articulate the specific deficiency to the officers to allow for a potential remedy.

Issues

Whether a licensee may comply with Vehicle Code section 13353 by conditioning consent to a blood test upon the use of a physician of their choice.
Whether a licensee's refusal to submit to a test based on alleged unsanitary conditions is valid without clearly communicating the specific objection to the officers.

Disposition. reversed

Quotations verified verbatim against the opinion

“We hold, therefore, that respondent’s conduct constituted a refusal.”

“it is reasonable to require, and we hold that it is required, that the licensee upon whom demand is properly made must point out the deficiency which has caused him to refuse his preferred test with clearness sufficient to permit the officer”

DEVINE, P. J.

—The Department of Motor Vehicles appeals from a judgment granting a writ of mandate which commands the department to set aside its order suspending respondent’s driving license for six months.

Respondent does not dispute the fact that the officers had reasonable cause to believe that he had been driving a motor vehicle on a highway while he was under the influence of intoxicating liquor. He refused to take the required tests unless an attorney or a doctor were present.

Shortly after the refusal, respondent announced that he would take a blood test. The technologist put the constricting band on his arm. Respondent then balked, saying, “I don’t want to be railroaded,” and refused to continue. According to respondent’s testimony, when the technologist started to take the blood respondent noticed that the man’s hands were grimy and there was dirt under his fingernails. Respondent stated that he was more apprehensive of an abscess from a dirty needle than he was of a criminal charge, and he reiterated that he wanted a doctor at Ms own expense to be summoned to take the blood sample. Respondent was told again that he had a choice of one of three tests, but he refused all three.

Respondent was allowed to call his personal physician, a Dr. Brown. The doctor arrived about an hour and a half after respondent’s refusal. Respondent asked that Dr. Brown be allowed to take a blood test at the sheriff’s office and his request was refused. Dr. Brown drove respondent directly to a hospital and took a blood sample there. The test showed a result of 0.16 percent. This was around 5 a.m., about two hours after the formal request for taking of the test had been made by the officer.

[840]

The first issue in the appeal, as presented by the briefs, is whether the holder of an operator’s license, when lawfully required as a condition to holding his license against suspension to take one of the three tests (blood, urine or breath) prescribed by Vehicle Code section 13353, having chosen to take the blood test, may comply with the statute by a consent which is made conditional upon the withdrawing of the blood by a physician of his choice. The trial judge held that such a consent was valid provided that an unreasonable delay in withdrawing the blood had not occurred. The decision, made on January 2, 1968, antedated that of

Wegner v. Department of Motor Vehicles

AI Brief

DEVINE, P. J.

More from California Court of Appeal

Related research

AI Brief