Barrie v. Alexis

Opinion

LILLIE, J. The Department of Motor Vehicles appeals from judgment granting peremptory writ of mandate directing it to vacate its order suspending the driving privileges of Carolina Winston Barrie for six months for her refusal to submit to a chemical test pursuant to the implied consent law. (§ 13353, Veh. Code.)

The facts presented by the officers at the administrative hearing concerning Barrie’s conduct are undisputed; Barrie neither testified nor offered evidence on her behalf. An accident between a motorcycle and motor vehicle occurred on Pacific Coast Highway at 10:40 p.m.; the motorcyclist was removed to the hospital; Barrie, driver of the motor vehicle, was slouched on a sofa drinking coffee in a nearby residence. Asked by Officers Brucker and Donnelly to go outside to perform a balance and coordination test, Barrie walked out staggering and the odor of alcohol emitted from her breath and person; after administering three field sobriety tests, the officers concluded she was under the influence of alcohol and arrested her.

En route to the jail Officer Brucker admonished Barrie “You are required by state law to take a chemical test to determine the alcohol content of your blood. You have the choice of taking a breath test, a urine test, or a blood test. Which test would you prefer to take?” Barrie told Officer Brucker she would let her know when they got to the station.

[1160]At the jail Officer Brucker again admonished Barrie, and Barrie responded she would not take any test. Then Officer Donnelly on two separate occasions according to law read the following statement verbatim from a card: “You are required by state law to submit to a chemical test to determine the alcoholic content of your blood. You have a choice of whether the test is to be of your blood, breath or urine. If you refuse to submit to a test or fail to complete a test, your driving privilege will be suspended for a period of six months. You do not have the right to talk to an attorney or to have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the administration of the test chosen. If you are incapable, or state you are incapable, of completing the test you choose, you must submit to and complete any of the remaining tests or test.” Each time, Barrie responded “No,” she was not going to take any test.

At this point the officers conferred with the watch commander who said, “you will take her to the hospital and you will get blood drawn from her because it’s a felony driving under the influence. ” Thereupon she was handcuffed to a gurney and transported to the hospital where a blood sample was taken resulting in a blood alcohol reading of .25 percent. Barrie said she wanted it noted she was taking the test under protest, and that she did not want to take it.