Reyes v. Department of Motor Vehicles

Opinion

ROTH, P. J. Appellant was arrested on January 27, 1983, for driving while under the influence of an alcoholic beverage, in violation of Vehicle Code section 23152, subdivision (a). After the arresting officer executed a statement that appellant had failed to complete a chemical test agreeably with Vehicle Code section 13353, the Department of Motor Vehicles (Department) issued an order suspending appellant’s driver’s license for a period of six months. Following a hearing wherein appellant contested this determination, the suspension order was upheld. Appellant then petitioned the superior court for a writ of mandate, alleging that the Department’s decision was without evidentiary support. Denial of that petition occasioned this appeal. We affirm.

At the time of his arrest, having been transported to the police station and advised he could submit to chemical testing procedures involving breath, blood, or urine, appellant chose the urine test, the mechanics of which required him to first void his bladder and, after 20 minutes, to provide a urine sample. While appellant was voiding, the arresting officer noticed that only one bottle of the kind used in the test remained in the station’s inventory, and he remarked upon the fact to the jailor. About 25 minutes after [68]appellant had voided, the arresting officer handed him the last bottle and requested a sample. According to the officer’s testimony given at the Department hearing previously referred to, the following transpired:

“[Officer] Shelton: Yes sir, I—I escorted him to the restroom, handed him the bottle, and told him to give us the sample in this. And at this time he took the bottle and dropped it into the urinal.

“[Referee] Nakama: Uh huh. Did you actually see it falling, or did you know how it—or did you see it—him do it, throw—Did you see him dropping it?

“Off. Shelton: I saw him drop it.

“Ref. Nakama: Uh huh. Uh, how did he drop it?

“Off. Shelton: Just held it over the uh—commode and opened his hand.

“Ref. Nakama: Was it in front of his penis, up, down or high up?

“Off. Shelton: It was approximately even with his belt buckle.

“Ref. Nakama: Uh huh.