Fisette v. Snyder

Opinion

STRANKMAN, P. J. The superior court granted respondent William J.

Fisette’s petition for a writ of mandate ordering Sally Reed, then Director of the Department of Motor Vehicles (DMV), to set aside DMV’s decision suspending Fisette’s driver’s license for driving drunk with a blood-alcohol level in excess of .08 percent.1 (Veh. Code, § 13353.2, subd. (a)(1).) DMV claims the court erred in finding that the arresting officer did not properly administer a urine test that found Fisette’s blood-alcohol level to be .16 percent, twice the legal limit. DMV’s claim is valid. We reverse the order granting a writ of mandate.

[229]Discussion

Fisette concedes, for the purpose of judicial review, that the arresting officer had probable cause to arrest him for driving drunk, and that his blood-alcohol level tested at .16 percent. Fisette also seems to concede that DMV’s license suspension decision should be upheld if the arresting officer complied with the regulation governing administration of urine tests of blood-alcohol levels. The sole issue on appeal is whether the arresting officer complied with the governing regulation.

The regulation provides: “The only approved urine sample shall be a sample collected no sooner than twenty minutes after first voiding the bladder.” (Cal. Code Regs., tit. 17, § 1219.2, subd. (a) (hereafter, section 1219.2).) The dispute here centers on the fact that Fisette voided his. bladder not once, but twice, before the sample was collected.

The police stopped Fisette on suspicion of drunk driving on June 2, 1997, at 10:15 p.m., and arrested Fisette at 10:50 p.m. The police jailed Fisette. In preparation for a urine test, Fisette voided his bladder at 11:38 p.m. The police told Fisette he would be tested in 20 minutes. Before the police could conduct the test, Fisette again voided his bladder, about midnight. The sample was taken at 12:10 a.m.

DMV and Fisette urge competing interpretations of section 1219.2. DMV maintains that a sample “collected no sooner than twenty minutes after first voiding the bladder” means 20 minutes after the first voiding of the bladder —an interim voiding of the bladder is irrelevant. Fisette maintains that a sample “collected no sooner than 20 minutes after first voiding the bladder” means 20 minutes after the latest voiding of the bladder — any voiding of the bladder after the first voiding delays the time before a sample may be collected.