Blitzstein v. Department of Motor Vehicles

Opinion

LOW, P.J. In this case, we hold that the advisements required by the Implied Consent Law (Veh. Code, §§ 23157, 23157.5) to be given to a [140]motorist suspected of driving under the influence of alcohol or drugs are neither inherently confusing nor ambiguous, and plaintiff’s refusal to chemical testing was not excused.

Plaintiff Lou Blitzstein had his driver’s license suspended for six months following an administrative hearing wherein the referee found that he failed to take a blood test for drugs after being requested to do so by the arresting officer. (Veh. Code, § 13353, subds. (a), (b).) He petitioned for a writ of mandate in the superior court, claiming that he was confused and misled by the officer and did not know his driving privileges would be suspended if he refused to take the test. The trial court found in favor of plaintiff and issued the writ. In its statement of decision, the court found that the admonitions required to be given by the Vehicle Code were inherently confusing and contradictory, and that the arresting officer added to the confusion by not determining if plaintiff understood the admonitions. We disagree and reverse.1

California Highway Patrolman Robert Jimenez stopped plaintiff’s car after observing him swerve in and out of lanes. Officer Jimenez detected a strong odor of alcohol on plaintiff’s breath and also noted a strong odor of marijuana about him. The plaintiff had a slow speech pattern and bloodshot, watery eyes. Although plaintiff denied it, a subsequent search of the car revealed a quantity of marijuana. Officer Jimenez administered a field sobriety test, which plaintiff failed. The officer advised plaintiff he was under arrest and read to him the admonitions required by Vehicle Code sections 23157 and 23157.5, in which he was instructed that he must submit to a blood, breath or urine test, or his license would be suspended. He was told that he did not have a right to an attorney before making his decision or during the administration of the test. Plaintiff elected to take a breath test. Following the dictates of Vehicle Code section 23157.5, Officer Jimenez advised plaintiff that no breath sample would be retained, but that plaintiff could provide a blood or urine sample which would be preserved for subsequent analysis. Plaintiff declined. At that point, Officer Jimenez instructed him in his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1620, 10 A.L.R.3d 974]), which plaintiff declined to waive.