Martin v. Department of Motor Vehicles

Opinion

STEPHENS, J. The “Statement of the Case and the Facts” as set forth in appellant’s brief is adopted for the purposes of this opinion.

This is an appeal from a judgment denying a peremptory writ of mandate to compel respondent, Department of Motor Vehicles, to annul its order suspending appellant Richard Keathing Martin’s driver’s license.

Appellant was arrested for alleged drunk driving. On or about May 7, 1974, an accusation was filed with respondent charging appellant with willful refusal, in violation of California Vehicle Code section 13353, to submit to one of three chemical tests to determine his blood alcohol content and seeking the suspension and revocation of appellant’s driver’s license. Appellant requested and received a formal hearing on said charges. Following the hearing, respondent’s hearing officer made findings, inter alia, that appellant was arrested lawfully and that the police had reasonable cause to believe that he was driving under the influence of alcohol. On November 1, 1974, an order of suspension was issued.

Appellant filed a petition for writ of mandamus and the cause was set for hearing. After hearing, the court adopted respondent’s findings, and additionally, found that at the time of appellant’s arrest and alleged violation of Vehicle Code section 13353, he “was accompanied by a [906]person whose name and address he did not know [who] was a percipient witness to the facts relevant to reasonable cause to arrest, . . . [appellant] at the time of his arrest requested the arresting officers to obtain the name and address of the witness . . . [appellant] himself was under restraint and could not himself at that time obtain the name and address of said witness, ... the arresting officers refused and declined to obtain or attempt to obtain the name and address of said witness, although such could have been done with nominal effort and insignificant expenditure of time, . . . instead the arresting officer called a taxi for the witness and allowed her to leave without obtaining her name and address, . . . [appellant] does not have available to him said name and address.”

The court discharged the alternative writ and denied the peremptory writ of mandate and entered judgment in favor of respondent. Appellant duly and timely filed a notice of appeal. By stipulation and order of this court, the administrative decision and suspension of appellant’s driver’s license have been stayed during the pendency of this appeal.