Hoberman-Kelly v. Valverde

Opinion

POLLAK, Acting P. J. George Valverde, the Director of the Department of Motor Vehicles (the department), appeals from the issuance of a writ of mandate setting aside the suspension of the driver’s license of Zoe Hei Rim Hoberman-Kelly for allegedly refusing to submit to a blood test to determine her blood-alcohol content. The interaction between Hoberman-Kelly and the officer who advised her of the obligation to submit to the test is recorded on a video that is part of the administrative record. After reviewing the video we have no doubt that substantial evidence supports the trial court’s finding that the officer’s reading of the necessary admonitions to Hoberman-Kelly was mechanical, with no attempt having been made to dispel her confusion as to the right to contact counsel, and that, in all events, Hoberman-Kelly “state[d] repeatedly that she would submit to a blood test.” We shall affirm the trial court’s order.

Background

Hoberman-Kelly was arrested in the early morning hours on July 30, 2010. California Highway Patrol Officer M. Perry and his partner responded to a call of a vehicle traveling westbound in the eastbound lanes on Sir Francis Drake Boulevard in Marin County. The officers found the car stopped facing [629]westbound in the eastbound lanes, detected an odor of alcohol on HobermanKelly’s breath, noticed her bloodshot watery eyes, slurred speech and unsteady gait, and observed her poor performance on a series of field sobriety tests. After Perry read the preliminary alcohol screen admonition to Hoberman-Kelly, she refused to take a breath test at the scene and was arrested for driving under the influence of alcohol. While in the patrol car she was read her Miranda1 rights and advised of the consequences under Vehicle Code section 13353 of failing to submit to a chemical test of her blood-alcohol content. She was taken to the Marin Area California Highway Patrol office, where a certified phlebotomist was waiting to administer a blood test and where Perry read her the chemical test admonition verbatim as it is printed on Department of Motor Vehicles form DS 367.

The exchange between Officer Perry and Hoberman-Kelly is difficult to describe accurately but fortunately is captured in full on a video that is included in the administrative record. Hoberman-Kelly, who was read her Miranda rights in the officer’s vehicle, observed a sign on the wall next to which she was handcuffed advising her of the right to make a telephone call and she stated that she wanted to call her attorney and to make the telephone call to which the sign said she was entitled. Hoberman-Kelly was belligerent and at one point managed to free herself from the handcuff, but she was coherent and made plain that she did not understand why she could not make the phone call to which the sign referred. Perry at no point acknowledged her request to make a call, responded to her question why she could not do so as the sign indicated, or made any effort to explain that despite her right to speak to an attorney she was not entitled to do so or to make her call before submitting to the test. Instead the officer, ignoring Hoberman-Kelly’s requests, continued disjointedly to read the printed admonition. The admonition does include the statement that “You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test.” However, from the video it is apparent that Hoberman-Kelly, who was voicing her demands while Perry was reading the statement, did not hear the admonition and that Perry must have been aware that she did not hear it. Hoberman-Kelly repeatedly stated that she wanted to read the admonition and at one point attempted to grab the document, but the officer refused to permit her to see it. While Perry was reading, Hoberman-Kelly, although repeating her demand to speak with an attorney, stated several times that she had no problem with taking a blood test, but Perry appeared to be paying no attention to her. When Perry finished reading the admonition, he asked Hoberman-Kelly whether she would submit to a blood test, to which she responded “all right,” but Perry stated “that’s a no” and that he would take it as a refusal. Hoberman-Kelly immediately shouted in response that she would “give you a free fucking