Tarzia v. Gordon CA4/3 ( 2023 )

Filed 6/15/23 Tarzia v. Gordon CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JAMES TARZIA,
Plaintiff and Appellant, G060610
v. (Super. Ct. No. 30-2021-01186394)
STEVEN GORDON, as Director, etc., OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Reversed with directions.
Law Offices of Jonathan Reza and Jonathan Reza for Plaintiff and
Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney
General, Kenneth C. Jones and Bradley Parr, Deputy Attorneys General, for Defendant
and Respondent.
James Tarzia appeals from a judgment denying his petition for writ of
mandate to set aside the Department of Motor Vehicles’ (DMV) suspension of his driver
license. He argues the trial court erred in finding he refused to submit to an alternative
chemical test of his blood alcohol content, after the arresting officer deemed his chosen
chemical test “unavailable.” We agree the court erred and reverse the judgment.
FACTS
The facts are undisputed. On a Friday morning around 2:39 a.m., Orange
County (OC) Sheriff’s Deputy Robert Derifield responded to a dispatch call about a
vehicle parked at the drive-through entrance of a fast-food restaurant in San Clemente.
Once at the scene, the deputy found Tarzia in the driver’s seat of the car, slumped
forward over the steering wheel, with his seatbelt fastened. The car’s engine was
running. The deputy noted that Tarzia smelled of alcohol, had an unsteady gait, and
slurred his speech. Tarzia performed poorly on field sobriety tests, including a one-leg-
stand test, a walk-and-turn test, and a horizontal gaze nystagmus test. He refused to take
a preliminary alcohol screening test. The deputy lawfully arrested Tarzia for driving
under the influence (DUI) of alcohol. (Veh. Code, § 23152.)1
Deputy Derifield recited the chemical test admonishment, pursuant to the
implied consent law (§ 23612), which included telling Tarzia he was required to take a
chemical test but had the choice of a breath or blood test. Tarzia agreed to a breath test,
but the deputy did not have a device to administer it. Deputy Derifield asked other
1 All further statutory references are to the Vehicle Code unless otherwise
indicated.
2
officers2 at the scene for an “EPAS”3 or a “yellow box,” a portable evidentiary alcohol
breath test machine. They didn’t have one either.
OC Sheriff’s deputies receive training from the Orange County Crime Lab
(the crime lab) on breath and blood testing. Deputy Derifield took such a course.
Officers are informed that it is the driver’s option to choose whether to submit to a breath
or blood test, and that if they do not have a yellow box or it is not working properly, they
“can call a different agency and ask to borrow an instrument or [call] somebody from
their own agency and ask to borrow an instrument, because . . . they’re meant to be able
to be transported to a location as needed.” Officers “are trained and instructed to make
reasonable efforts to accommodate that choice of breath test,” including “reach[ing] out
to a neighboring agency or California Highway Patrol [(CHP)] . . . to ask to borrow the
instrument to use[.]”
According to Deputy Derifield, there was a nearby branch or division in
Dana Point, another in San Juan Capistrano, and a CHP field office also in San Juan
Capistrano. All three locations were about a five-to-ten-minute drive from the scene.
Deputy Derifield did not specifically contact any of them to check for a yellow box. He
did not contact his supervisor or check with the Aliso Viejo substation, where he picked
up his vehicle and equipment at the start of his shift.
Deputy Derifield did, however, “put a general broadcast over our specific
radio channel to see if anybody had a yellow box[.]” Nobody responded.
Deputy Derifield determined he could not administer a breath test because
he was “unable to locate” an evidentiary breath-test machine, and so informed Tarzia. He
asked if Tarzia would take a blood test instead. Tarzia refused. The deputy advised, “If
2 Video from the patrol vehicle was admitted as an exhibit in the underlying
proceedings. It shows three officers, including Deputy Derifield, at the scene.
3 An “EPAS” is used for an “evidentiary breath test.” (People v. Profitt
(2017) 8 Cal.App.5th 1255, 1260.)
3
you don’t submit to a blood test, we’re gonna get a warrant.”4 Tarzia asked why a
breathalyzer wasn’t available, and the deputy responded, “Cuz it’s not available right
now. They don’t have a -- they don’t have a breath machine.”
Three minutes and twenty seconds had passed between the time Tarzia
agreed to a breath test and the deputy’s mention of a warrant for a blood test. For two of
those three minutes and twenty seconds, the sound to Deputy Derifield’s microphone was
cut off. His radio call for a yellow box was not captured in the audio recording. The
microphone and patrol vehicle are synced, and sometimes they “go in and out of sync.”
The deputy can also turn the microphone on and off; he didn’t recall doing so but
acknowledged it was possible that he did.
Deputy Derifield issued a sworn officer’s statement indicating the “breath
test [was] unavailable in area” and Tarzia had refused a blood test. The statement
notified Tarzia that his license would be suspended or revoked 30 days from the issuance
of the order and that he had 10 days to request a hearing.
At the requested hearing, known as an administrative per se hearing, Tarzia
submitted a copy of Policy 514 of the OC Sheriff’s Department, which provides in part:
“Any person who is unable to submit to a chemical test due to any of the following
conditions shall not be considered refusing to comply with the provisions of [ ] § 23612:
[¶] 1. The Department is unable to furnish a selected test.” Deputy Derifield testified
that he had no reason to believe Tarzia would have refused to provide a breath sample,
had a yellow box been available: “[Tarzia] elected to consensually provide one [a breath
sample] and then once it [the yellow box] was unavailable, he became uncooperative.”
And a forensic scientist with the crime lab’s forensic alcohol section testified that her
organization tracks the number of yellow boxes assigned to the OC Sheriff’s Department,
which “as a whole[ ] has many instruments.” She estimated that within the department, a
4 Deputy Derifield did eventually obtain a warrant to draw Tarzia’s blood.
4
subagency would receive between one and five or six, depending on the size of the
subagency and the average number of tests it performs. In her opinion, “if there is some
effort put into it, you could get an instrument within the South County area . . . [¶] . . .
fairly easily by just calling a neighboring agency.”
The DMV hearing officer sustained the one-year order of suspension,
finding all required facts had been established by a preponderance of the evidence,
including the fact that Tarzia refused the blood test. The hearing officer added, “The
reasonableness of attempts to accommodate [Tarzia’s] request, the arresting agency’s
policies, and the procedures of the [crime lab] are not at issue in this hearing.”
Tarzia petitioned for a writ of mandate from the superior court. In denying
the writ, the court found “the deputy’s modest efforts were legally sufficient to establish
unavailability without the further efforts [Tarzia] claims were required.” The court
“concede[d] that requiring a search of nearby substations might have the salutary effect
of encouraging officers to carry with them breath testing devices, [but] the court [did] not
read the law as demanding this.”
DISCUSSION
Tarzia argues he did not refuse to submit to a chemical test. He agreed—
without qualification or conditions—to take a breath test. He contends that the evidence
was insufficient to show his chosen test was “unavailable,” so he had no obligation to
submit to a blood test under the implied consent law. (§ 23612.) Based on the specific,
undisputed facts of this case, we agree.
The implied consent law (section 23612) and the license suspension/
revocation statute (section 13353) “work[ ] in tandem.” (Troppman v. Valverde (2007)
40 Cal.4th 1121, 1129–1130 (Troppman).) Under the implied consent law, “[a] person
who drives a motor vehicle is deemed to have given his or her consent to chemical testing
of his or her blood or breath for the purpose of determining the alcoholic content of his or
her blood, if lawfully arrested for” a DUI offense. (§ 23612, subd. (a)(1)(A).) Under the
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license suspension/revocation statute, the DMV can suspend or revoke the driver license
of a motorist who “refuses the officer’s request to submit to, or fails to complete, a
chemical test or tests pursuant to [s]ection 23612.” (§ 13353, subd. (a).) To do so, the
DMV must conclude four facts to be true by a preponderance of the evidence. (§§ 13353,
subd. (d), 13557, subd. (b)(1).) “When an administrative agency initiates an action to
suspend or revoke a license, the burden of proving the facts necessary to support the
action rests with the agency making the allegation.” (Daniels v. Department of Motor
Vehicles (1983) 33 Cal.3d 532, 536.) Only one of these factual findings is at issue in this
appeal: The motorist “refused or failed to complete the chemical test or tests after being
requested by a peace officer.”5 (§§ 13353, subd. (d), 13557, subd. (b)(1).)
Following a DMV order of suspension or revocation, the motorist may
petition for a writ of mandate in superior court. (Espinoza, supra, 10 Cal.App.5th at
p. 99.) Here, “a trial court is required to determine, based on its independent judgment,
‘“whether the weight of the evidence supported the administrative decision.”’
[Citations.]” (Lake v. Reed (1997) 16 Cal.4th 448, 456 (Lake).) In exercising its
independent judgment, the trial court “must afford a strong presumption of correctness
concerning the administrative findings, and the party challenging the administrative
decision bears the burden of convincing the court that the administrative findings are
contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805,
817.)
Generally, on appeal we must uphold the trial court’s findings if supported
by substantial evidence. (Lake, supra, 16 Cal.4th at p. 456.) But “[w]hen the facts are
5 The other three findings are: “(1) the officer had reasonable cause to
believe the motorist drove under the influence of alcohol in violation of section 23152 or
23153; (2) the motorist was lawfully detained; . . . and (4) the motorist was admonished
that his or her driving privilege would be suspended or revoked if he or she refused to
submit to or failed to complete a chemical test. (§§ 13353, subd. (d), 13557, subds. (a),
(b)(1).)” (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 99 (Espinoza).)
6
undisputed, as here, a question involving the proper application of a statute or
administrative regulation is one of law, and a reviewing court is not bound by the trial
court’s determination.” (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d
1514, 1517.) We therefore apply a de novo review to the issue presented here. (Ibid.)
A motorist lawfully arrested for allegedly driving under the influence of
alcohol “has the choice of whether the test shall be of his or her blood or breath and the
officer shall advise the person that he or she has that choice.” (§ 23612, subd. (a)(2)(A),
italics added.) Because the tests are “administered at the direction of a peace officer”
(§ 23612, subd. (a)(1)(C)), the responsibility to provide the chosen test falls squarely on
law enforcement. If the chosen test is “unavailable,” the motorist “shall submit to the
remaining test[.]” (§ 23612, subds. (a)(1)(A), (a)(2)(A), (d)(2).) The term “unavailable”
is not defined in the statute, but it is commonly understood to mean “not able to be used
or obtained; not at someone’s disposal,” as it relates to an object. (Oxford American
Dict. (3d ed. 2010) p. 1878.)
In their briefing, the parties invite us to set a standard for an officer’s duties
in providing a motorist with his chosen chemical test. We decline to do so because it is
unnecessary to resolve this appeal. We instead conclude that the undisputed facts of this
case are insufficient as a matter of law to support a finding that an evidentiary breath-test
machine was “unavailable” in the area, as that term is used in the implied consent law.
(§ 23612, subds. (a)(1)(A), (a)(2)(A), (d)(2).) The OC Sheriff’s Department has “many”
machines, but not enough for every on-duty deputy, so the machines are distributed to
subagencies based on their size and average frequency of use. Deputies are trained that
when they need a machine they do not have, they are to ask to borrow one from nearby
agencies, which could be accomplished “fairly easily.”6 Here, after realizing no yellow
6 The trial court found the forensic scientist “credibly testified, without
contest . . . to her opinion that a breath test would have been available at another
substation.”
7
box was at the scene, Deputy Derifield made one general radio broadcast for one; waited
fewer than four minutes for a response; and after receiving none, determined a yellow
box could not be located. He did not call any of the three nearby locations, which he
acknowledged were minutes away from the scene, nor did he consult his supervisor for
guidance. Simply put, under these circumstances, the lack of a response to one general
radio broadcast does not show that evidentiary breath-test machines were unavailable in
the deputy’s area.
The DMV’s reliance on Espinoza v. Shiomoto does not persuade us to the
contrary. There, a motorist, who was a public defender, agreed to submit to a blood test
“‘pursuant to McNeely’”7—meaning she would submit only if the police obtained a
warrant. (Espinoza, supra, 10 Cal.App.5th at p. 94.) The arresting officer did not seek a
warrant, due to departmental policy not to seek them in misdemeanor cases. (Ibid.) She
also refused a breath test. (Ibid.) The appellate court determined the motorist’s refusal to
submit to a breath test—not the blood test—supported her license suspension. (Id. at
p. 113.) It “assume[d] without deciding, that [the motorist] could refuse to submit to a
warrantless blood test unless the police obtained a warrant, and that, without more, her
refusal to do so could not result in her license being suspended.” (Ibid.) The court
announced that “[u]nder the implied consent law, when either a blood test or a breath test
is unavailable for whatever reason, the motorist must submit to and complete the
available test[.]” (Id., at pp. 114–115, italics added.) In concluding the motorist was
obligated to submit to the breath test, the court determined the “blood test was
functionally unavailable . . . because [the motorist] did not give actual consent to a blood
7 In Missouri v. McNeely (2013) 569 U.S. 141, 151–153, 156, the United
States Supreme Court reaffirmed that the natural dissipation of alcohol in the blood may
constitute an exigency justifying a warrantless blood draw but refused to adopt a per se
warrant exception in every DUI case. The Court instead held that whether “a warrantless
blood test of a drunk-driving suspect is reasonable must be determined case by case based
on the totality of the circumstances.” (Ibid.)
8
test and, instead, conditioned her purported consent on [the officer] obtaining a warrant.”
(Id. at p. 115.) We read the Espinoza court’s reference of unavailability “for whatever
reason” (ibid.) as dicta. To the extent the court intended to set a bright-line rule for
unavailability—we think it did not—we do not agree. As argued by Tarzia, such a rule
would effectively permit law enforcement to deprive motorists of their choice of test, for
example, by not equipping any officers or stations with evidentiary breath-test machines.
The remaining cases relied upon by the DMV are factually distinguishable
from this case for the same reason: The appellate courts upheld refusals that were not in
any way based on the officer’s failure to obtain or produce the motorist’s chosen test.
(See McConville v. Alexis (1979) 96 Cal.App.3d 705, 596 [driver failed to perform
second part of chosen urine test]; Buchannan v. Department of Motor Vehicles (1979)
100 Cal.App.3d 293, 298 [driver was offered three tests at time of arrest, was informed
he had to choose blood test before police car passed the hospital, but waited until car
reached the police station to choose blood test]; Butler v. Department of Motor Vehicles
(1981) 115 Cal.App.3d 913, 915 [driver chose blood test but refused to sign hospital
consent form]; Smith v. Department of Motor Vehicles (1986) 179 Cal.App.3d 368, 371
[officer reasonably determined blood test was only feasible option after medical staff
prohibited removing injured driver from gurney for urine test]; Hildebrand v. Department
of Motor Vehicles (2007) 152 Cal.App.4th 1562 [driver would not blow hard enough to
complete chosen breath test]; White v. Department of Motor Vehicles (2011) 196
Cal.App.4th 794, 797 [driver’s chosen blood test attempted, but technician couldn’t find a
vein].)
Finally, we emphasize that our conclusion is limited to the specific facts of
this case. We do not mean to suggest that officers must equip themselves with breath-test
machines before their shifts, or that they must make a minimum number of calls—or any
calls—to nearby agencies asking for one, before there can be a finding of unavailability.
The issue of unavailability is inherently factual and must be determined case by case.
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DISPOSITION
The judgment denying the petition for writ of mandate is reversed with
directions to the superior court to enter judgment granting the writ petition. Appellant
shall recover costs on appeal.
DELANEY, J.
WE CONCUR:
O’LEARY, P. J.
SANCHEZ, J.
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