James v. Department of Motor Vehicles

WHELAN, J.

The Department of Motor Vehicles (Department) appeals from a judgment ordering the issuance of a peremptory writ of mandate that Department set aside its order revoking respondent’s driving privilege.

Respondent’s license was suspended following a formal administrative hearing in which it was found by Department that the respondent had refused to take any of three chemical tests provided by section 13353, Vehicle Code, under the conditions specified in that section. Respondent then petitioned for a writ of mandate.

In the superior court on the trial of respondent’s petition for writ of mandate, the sole issue was whether respondent, after his arrest, refused to submit to any of the chemical tests provided for by section 13353, Vehicle Code.

The sole issue here is whether the trial court’s finding that respondent did not refuse to take any such test is supported by substantial evidence. The only evidence before the court was that contained in a transcript of the departmental hearing.

The Evidence

On February 23, 1967, California Highway Patrol Officer Nelander (Nelander) placed Weldon James, respondent, under arrest for driving while intoxicated. After placing respondent in the patrol car, but prior to driving to the county jail, Nelander requested that respondent submit to a blood, breath or urine test to determine the alcoholic content of his blood and stated that a refusal to do so would result in a suspension of his driving privilege for a period of six months. Nelander stated, “It’s your choice. ... I don’t care which one you take. ...” Nelander asserts that he stated this at least three times. Nelander stated that in response to one of the requests to submit to a chemical test, respondent “made the remark ‘I’ll beat you in anything’ or ‘I’ll beat you in all three’ or something to this effect. ...” Nelander stated that before he and respondent left to go to jail Nelander repeated to respondent several times that “. . . he had to choose—it was up to him, . . . and I did not want to force him.” Respondent’s reply was, in Nelander’s words, “. . . the defendant kept chattering, being upset, kept interrupt

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ing.” At no time did respondent specifically refuse to take any tests to determine his intoxication.