Rust v. Department of Motor Vehicles

BROWN (Gerald), P. J.

The Department of Motor Vehicles, the Division of Driver’s Licenses and Verne Orr, Director, appeal from a judgment entered August 8, 1967 granting Charles William Rust’s petition for a peremptory writ of mandamus setting aside the department’s suspension of Rust’s driver’s license for his failure to submit to one of the three tests required by Vehicle Code, section 13353.

On March 31,1967, having probable cause to believe Charles William Rust was driving an automobile on a highway while drunk, California Highway Patrol Officer Johnson stopped him and gave him a field sobriety test, which he flunked. In the course of telling Rust his

Miranda

rights Johnson said he had a right, beginning at that moment, to an attorney. Rust said he understood. Johnson arrested him and placed him in the patrol car. While traveling to the station Johnson requested Rust to submit to a blood alcohol test of his blood, breath or urine, stating if he refused his driving privilege would be suspended six months. Rust replied he refused until he called his attorney, he had taken a field test and would not take another. Rust was then taken to the jail and booked.

The trial court in the mandamus proceeding found Rust’s response refusing to take a test until he called his attorney “did not constitute an unequivocal rejection of said test sufficient to excuse said peace officer from supplying further information to petitioner. ’ ’

A suspected drunk driver has refused to take the blood alcohol test when he conditions his consent on having counsel present; he is not entitled to the advice of counsel in connection with the test

(Ent

v.

Department of Motor Vehicles,

265 Cal.App.2d 936 [71 Cal.Rptr. 726] ;

Finley

v.

Orr,

262 Cal.App.2d 656 [69 Cal.Rptr. 137] ; see also

United States

v.

Wade,

388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926];

Gilbert