Hixon v. Shiomoto CA2/8

Filed 9/6/16 Hixon v. Shiomoto CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

HARVEY REGINALD HIXON, B265509

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BS150499) v.

JEAN SHIOMOTO, as Director, etc.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County. Luis A. Lavin, Judge. Affirmed.

Michael S. Evans for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Chris A Knudsen, Assistant Attorney General, Celine M. Cooper and Venessa F. Martinez, Deputy Attorneys General, for Defendant and Respondent.

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Plaintiff Harvey Reginald Hixon appeals from the judgment denying his petition for writ of mandate which challenged the decision of defendant Jean Shiomoto, as Director of the Department of Motor Vehicles (DMV) to revoke his driver’s license based on his refusal to submit to a chemical test following his arrest for driving under the influence (DUI). Plaintiff contends the arresting officer did not have reasonable cause to believe that plaintiff violated any provision of the Vehicle Code, and therefore did not lawfully stop plaintiff. Plaintiff also contends that he did not refuse to submit to a chemical test. Finding no merit in either of these contentions, we affirm the judgment denying his petition. BACKGROUND I. DUI Arrest On April 16, 2014, at approximately 3:50 a.m., CHP Officer J. Gonzalez was patrolling West Los Angeles in a marked patrol car. Officer Gonzalez noticed plaintiff’s car driving northbound on Overland Avenue, in the right turn lane toward Interstate 10. Plaintiff “straddle[d]” the number three lane for approximately 10 seconds. Plaintiff then entered the number three lane and stopped at a red light. When the light turned green, plaintiff continued northbound on Overland Avenue. Plaintiff was driving “in a serpentine manner within” his lane. As plaintiff approached Pico Boulevard, he again changed lanes, and then “straddled the solid yellow lines delineating the southbound lanes from the northbound lanes.” Officer Gonzalez initiated “an enforcement stop for the observed violations” and plaintiff pulled over at the corner of Overland and Tennessee Avenues. When Officer Gonzalez contacted plaintiff, he noticed a strong odor of alcohol coming from plaintiff’s car. Plaintiff’s eyes were red and watery, and his speech was slurred. Officer Gonzalez asked plaintiff to exit his vehicle, and smelled a strong odor of alcohol coming from plaintiff’s person. Officer Gonzalez informed plaintiff that he would conduct a DUI investigation. As Officer Gonzalez was asking his standard questions, plaintiff said he wanted to speak