Vann v. Meese

[1072]Opinion

SIMS, J. Ann Vann appeals from an order denying her petition for a writ of mandate which sought to compel the director of the Department of Motor Vehicles to set aside an administrative order suspending her driving privilege for six months. The suspension order was based on appellant’s refusal to submit to chemical testing for blood alcohol level following her arrest for driving under the influence (Veh. Code, § 13353; all further statutory references are to the Vehicle Code).

In an unpublished portion of the opinion, we reject appellant’s contention the evidence is insufficient to support the finding that she was capable of refusing to submit to chemical testing. Here, we reject appellant’s argument that the license suspension must be set aside because the arresting officer told her she could take a breath test even though the test was not available at the hospital to which she had been taken. We shall therefore affirm the judgment.

Facts Relevant to Appellant’s Contention Her License Suspension Must Be Set Aside Because the Implied Consent Admonition Was Unlawful

Appellant was found by a citizen after the car she was driving left the roadway and came to rest in an orchard.

A police officer arrived on the scene, noticed physical signs of appellant’s alcohol intoxication, and placed her under arrest. Appellant was taken to a hospital that had no equipment to test the alcohol level of appellant’s breath. Even though the officer knew the hospital could not administer a breath test, he read appellant the standard admonition that she could take a blood, urine, or breath test. She refused to take each test.

Discussion

Appellant contends her license suspension must be set aside because the officer’s admonition about tests was unlawful.

At the time of appellant’s arrest, section 13353, subdivision (a)(2)(A), provided in relevant part that one arrested for driving under the influence of alcohol “shall have the choice of whether the test shall be of his or her blood, breath, or urine, and the person shall be advised by the officer that he or she has such a choice.”1 However, section 13353, subdivision (a)(3) [1073]