Carroll v. Gordon CA3 ( 2024 )

Filed 4/2/24 Carroll v. Gordon CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
DONALD CARROLL, C098182
Plaintiff and Appellant, (Super. Ct. No. SCV0048874)
v.
STEVE GORDON, as Director, etc.,
Defendant and Respondent.
Following his arrest for driving under the influence of alcohol (DUI), plaintiff
Donald Carroll was advised that refusing to submit to a chemical test would result in the
Department of Motor Vehicles (DMV) suspending his driver’s license under California’s
implied consent law. (Veh. Code, § 23612.)1 Nevertheless, plaintiff refused to consent to
a chemical test, and the DMV suspended his license. Plaintiff requested a hearing, and he
1 Further undesignated statutory references are to the Vehicle Code.
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argued in part that his refusal to consent to a chemical test was caused by the arresting
officer’s incomplete or contradictory admonishments. The hearing officer rejected that
argument and found that plaintiff was adequately admonished of the consequences of his
refusal. Plaintiff filed a petition for writ of mandate in the superior court, which the court
denied. He appeals from the superior court’s decision. We will affirm.
FACTS AND PROCEEDINGS
Plaintiff’s Accident and Arrest
On January 25, 2022, at approximately 6:24 p.m., plaintiff crashed his truck into
an irrigation ditch on a remote road. A California Highway Patrol (CHP) officer arrived
at the scene and began helping plaintiff out of the truck; Officer Moser arrived as plaintiff
was getting out of the truck. Upon getting out of the truck, plaintiff nearly fell on his face
and had to be held up by the officers. Plaintiff leaned on the fender of Moser’s patrol car
to keep from falling and had difficulty finding his driver’s license. Plaintiff stated that he
answered a phone call while driving and “ended up in the ditch.”
Moser smelled the strong odor of alcohol coming from plaintiff’s breath and
person and noticed that plaintiff had red and watery eyes and that his speech was slurred.
Plaintiff acknowledged that he had consumed three mixed drinks “over the entire day.”
Moser thought plaintiff may “have some alcohol on board” and asked whether plaintiff
wished to perform field sobriety tests. Plaintiff asked for clarification as to what Moser
meant by “on board,” and Moser responded, “Yeah, on you, in your system.” Plaintiff
said, “No, I, I don’t.” Moser replied, “Okay. You don’t have to do any test. That’s
perfectly your, your right.” Moser arrested plaintiff based on his opinion that plaintiff
had been driving his truck while under the influence of alcohol.
Admonition Related to Chemical Test
After being placed in the back of Moser’s patrol car, plaintiff asked, “Where am I
headed?” Moser responded that he would “explain your options here in just a second.”
Moser then explained: “Okay. So you’ve been arrested for driving under the influence.
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You’re required by state law to submit to a chemical test. You can take a blood test, you
can take a . . . breath test, or you can refuse to take a test. If you refuse, I will get a
search warrant and we will get your blood.” Moser asked plaintiff, “So, of those three,
which do you want to do?” Plaintiff asked Moser to repeat his options, which Moser did.
Moser again asked plaintiff which option he would choose, and plaintiff responded, “I’ll
refuse.” Moser indicated that he intended to obtain a search warrant and would “get [his]
blood anyway.”
On the way to the CHP station, Moser informed plaintiff that once they arrived at
the station, he was going to “read [plaintiff] . . . something that, uh, basically explains the
consequences of refusing to complete a chemical test.” Moser again explained that if
plaintiff refused to complete the test, he would get a warrant to draw plaintiff’s blood.
Plaintiff asked what would happen next, and Moser responded: “I’ll read you some
information on the consequences of refusing a chemical test and then you’ll make a
decision on whether or not you want to complete a test.” He added, “And if you say yes,
we’ll do that test. If you say no, I’ll write a search warrant for your blood, and then uh,
after that, we’ll go to the hospital.”
After arriving at the CHP station, Moser again asked plaintiff if he wanted to take
a blood or a breath test; plaintiff responded, “I can’t believe this,” and “They got fucking
people making shit up . . . and everything else, and here I am.”
Moser then read plaintiff the “Chemical Test Admonition,” which was written on
the back of DMV form DS367: “Don, let . . . me read this to you ‘cause it’s kind of
important. Today is January 25, 2022. It is 7:02 PM. You are required by state law to
submit to and complete a . . . chemical test to determine the alcohol content of your
blood. Because I believe you are under the influence of alcohol, you have the choice of
taking a breath or blood test. If you refuse to submit to- [¶] . . . [¶] . . . or fail to complete
a chemical test, your driving privilege will be administratively suspended for one year or
revoked for two or three years by the Department of Motor Vehicles.”
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Plaintiff asked Moser to “say that again.” Moser repeated: “If you refuse to
submit to or fail to complete a chemical test, your driving privilege will be
administratively suspended for one year or administratively revoked for two or three
years by the Department of Motor Vehicles. That is just from the DMV. That has
nothing to do with the courts. That’s just the DMV can do that on their own.” Plaintiff
replied, “Oh.”
Moser then informed plaintiff that his refusal or failure to complete a chemical test
may be used against him in court, refusal or failure to complete the blood or breath test
would result in a fine and mandatory imprisonment if he were convicted of driving under
the influence of alcohol (§ 23152), and plaintiff did not have the right to consult an
attorney before deciding whether he would submit to a test or which test he would take,
or during the test. Moser added that if plaintiff could not complete the test he chose, he
was required to submit to and complete the other test.
Plaintiff indicated that he did not understand “everything you stated.” Moser
clarified: “Right. It basically said . . . if you don’t complete a test, the DMV will
suspend your license for between one to three years.” Plaintiff responded: “Oh yeah, I
mean, I can’t live with that.”
Moser then asked whether plaintiff “would . . . like a blood test?” Plaintiff
responded, “A blood test?” Moser again explained: “If you don’t complete the test or
you say you’re not going to, which is right there where we’re at now, I’m going to write a
search warrant.” He then asked again “will you complete a breath . . . a blood test?”
Plaintiff responded, “I don’t know if I should. My god, I got to stuff [sic] in my head so
fast. Live and learn.” Moser replied, “Okay, I’m gonna write the warrant and you can
just . . . .” Plaintiff stated, “Yep. One more warrant, right.” Plaintiff did not consent to a
test.
After further discussion, plaintiff stated, “I’ve never been through this thing . . . .”
An unidentified speaker responded: “Okay, well, we gave you the opportunity to
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complete the breath test or blood test and you decline[d]. And so I’ve written a search
warrant, the judge will sign it and then the phlebotomist here will take your blood.”
Plaintiff responded, “Okay.” Approximately two minutes later, an unidentified speaker
said: “Right now you can still say you want to complete a breath test or just have them
take your blood without a search warrant.” Plaintiff responded, “Okay.” He was then
told, “[t]he search warrant will be here in a couple of minutes.” The search warrant was
issued, and plaintiff’s blood was drawn.
Administrative Hearing
The DMV suspended plaintiff’s driver’s license for DUI. Plaintiff requested a
hearing, which was held on July 20, 2022. At the hearing, plaintiff argued in part that he
was confused because Moser told him that he could refuse to consent to a chemical test of
his blood alcohol content, and that Moser would simply obtain a search warrant if
plaintiff refused.
The hearing officer rejected plaintiff’s argument regarding officer-induced
confusion. He recognized that Moser initially failed to inform plaintiff of the
consequences of refusing to consent to a chemical test. However, on the way to the CHP
station, Moser told plaintiff he would read something to plaintiff at the station that would
explain the consequences for refusing to complete the test, and only then would plaintiff
decide whether to consent. At the station, Moser informed plaintiff that he was going to
be telling plaintiff something important, and read verbatim the admonishment on the back
of the DS367 form. Moser repeated the admonition when asked to do so by plaintiff, and
he then summarized the admonition when plaintiff indicated he did not understand.
Although plaintiff responded, “oh, I mean, I can’t live with that,” he still did not choose a
test, and a warrant was obtained.
The hearing officer determined that while Moser initially failed to inform plaintiff
of the consequences of refusing to consent to a breath or blood test, he advised plaintiff
on the way to the CHP station that he would inform plaintiff of the consequences of
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refusal once they arrived at the station, at which time plaintiff could decide whether to
consent, and plaintiff was properly admonished at the station. Finally, when plaintiff
indicated that he was still confused, “[Moser] told him in simple words that his license
would be suspended for one to three years.” The hearing officer re-imposed the
suspension of plaintiff’s driver’s license.
Plaintiff’s Petition for Writ of Mandate
Plaintiff filed a petition for writ of mandate in the superior court. (Code Civ.
Proc., § 1094.5.) After briefing and a hearing, the trial court rejected plaintiff’s argument
regarding officer-induced confusion and adopted its tentative ruling denying the petition.
The court found: “[Plaintiff] seeks to set aside and revoke the DMV’s order suspending
his driving privileges, asserting CHP Officer Moser failed to effectively communicate to
[plaintiff] the consequences of failing to submit to chemical testing. The DMV had the
burden of proving the facts necessary at hearing to support [plaintiff’s] suspension.
(Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536.) The
administrative record here demonstrates substantial competent evidence to support that
[plaintiff] failed to submit to a chemical test, subjecting him to suspension of his driving
privileges. (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 98; [Veh.] Code[, §§]
13353[, subd.] (c), 23612[, subds.] (e), (f).) The administrative record here supports the
suspension of [plaintiff’s] driving privileges. Thusly, the petition is denied.”
Plaintiff timely appealed. The case was fully briefed on January 26, 2024, and
was assigned to this panel at the end of that month.
DISCUSSION
Plaintiff contends insufficient evidence supports the trial court’s ruling because the
evidence showed his failure to consent to a chemical test was due to officer-induced
confusion. We disagree.
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A. Standard of Review
“In ruling on a petition for writ of mandate following a DMV suspension order,
the ‘trial court is required to determine, based on its independent judgment, “ ‘whether
the weight of the evidence supported the administrative decision.’ ” [Citation.]’
[Citations.] ‘In making that determination, the trial court had to “weigh the evidence and
make its own determination as to whether the administrative findings [were] sustained.”
[Citation.]’ [Citation.] ‘In exercising its independent judgment, a 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.’ [Citation.] ‘The
review shall be on the record of the [administrative] hearing and the court shall not
consider other evidence.’ [Citation.] [¶] On appellate review, this court reviews ‘ “the
record to determine whether the trial court’s findings are supported by substantial
evidence.” ’ [Citations.] Issues of law are reviewed de novo.” (Garcia v. Department of
Motor Vehicles (2010) 185 Cal.App.4th 73, 81-82 (Garcia).)
Under the substantial evidence standard, we will “resolve all conflicts in favor of
the DMV, as the party prevailing in the superior court, and give it the benefit of all
reasonable inferences in support of the judgment.” (Hildebrand v. Department of Motor
Vehicles (2007) 152 Cal.App.4th 1562, 1568.) “ ‘ “ ‘We may overturn the trial court’s
factual findings only if the evidence before the trial court is insufficient as a matter of law
to sustain those findings.’ ” ’ ” (Ibid.)
B. Legal Background
Under California’s 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” DUI. (§ 23612, subd. (a)(1)(A).) Such testing is incidental to a lawful
arrest for DUI and is done at the direction of a law enforcement officer having reasonable
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cause to believe the person drove under the influence of alcohol in violation of section
23152. (§ 23612, subd. (a)(1)(C).) Refusing an officer’s request to submit to, or failure
to complete, a chemical test pursuant to section 23612 requires the DMV to either (1)
suspend the person’s driver’s license for one year, or (2) revoke the person’s driver’s
license for two or three years, depending on the circumstances. (§ 13353.)
A driver must be informed that their failure to submit to, or the failure to complete,
the required chemical testing will result in a mandatory suspension or revocation of their
driving privilege if they are convicted of driving under the influence. (§ 23612, subd.
(a)(1)(D); Hoberman-Kelly v. Valverde (2013) 213 Cal.App.4th 626, 632.)
A driver’s refusal to consent to a chemical test is excused when there is officer-
induced confusion, a question of fact. (McDonnell v. Department of Motor Vehicles
(1975) 45 Cal.App.3d 653, 658.) “ ‘[I]f the evidence shows the officer made ambiguous
or conflicting statements, that evidence has a bearing on whether . . . the response of the
driver indicated his confusion rather than his refusal to perform a statutory duty.’ ”
(Goodman v. Orr (1971) 19 Cal.App.3d 845, 853.) A sufficient advisement “must convey
to the driver the ‘strong likelihood’ that the adverse result would follow upon refusal.”
(Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354, 360.) It is the
officer’s burden to adequately advise the driver in a manner comprehensible to the driver.
(Id. at p. 363.) But an officer is not required to “persist[ed] in his attempt to admonish”
the driver until the driver is ready to listen. (Morphew v. Department of Motor Vehicles
(1982) 137 Cal.App.3d 738, 743.) Additionally, being too intoxicated to understand the
admonishments does not constitute officer-induced confusion. (Smith v. Department of
Motor Vehicles (1969) 1 Cal.App.3d 499, 505.) Ultimately, “[i]n determining whether an
arrestee’s refusal is the result of confusion, the crucial factor is not the state of the
arrestee’s mind; it is the fair meaning to be given his response to the demand that he
submit to the chemical test.” (Cahall v. Department of Motor Vehicles (1971) 16
Cal.App.3d 491, 497.)
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C. Analysis
Plaintiff argues that his failure to submit to the required testing was induced by
Moser’s incomplete or inconsistent admonishments. Specifically, he argues that Moser
initially informed him that the only consequence of refusing a chemical test would be that
Moser would secure a search warrant, and Moser did not communicate the statutory
warning until after he was already under the mistaken belief that he had the right to refuse
all chemical tests without consequence (other than a search warrant being obtained). He
claims that a “fair reading” of the communication between him and Moser reveals that his
refusal was based on Moser’s initial admonishment that refusal was a legitimate option.
Resolving all conflicts in favor of the DMV, as we must, and giving the DMV the
benefit of all reasonable inferences in support of the judgment (Hildebrand v. Department
of Motor Vehicles, supra, 152 Cal.App.4th at p. 1568), we conclude substantial evidence
supports the trial court’s decision. We recognize that Moser initially failed to inform
plaintiff of the consequences of his refusal to submit to a chemical test and instead
suggested that the only consequence for plaintiff’s refusal would be that Moser would
obtain a search warrant. However, while in the patrol car on the way to the CHP station,
Moser clarified that he would be reading plaintiff some important information about the
consequences of his refusal, and only then would plaintiff “make a decision on whether
you want to complete a test.” At that time, plaintiff was clearly informed that there
would be other consequences should he refuse to submit to a chemical test, and that he
would learn about those consequences when they arrived at the station. At the station,
Moser reiterated that he was going to read plaintiff some information that was “kind of
important.” Moser then advised plaintiff of the consequences of refusal from the DS367
form. Moser repeated the information when plaintiff requested that he do so. When
plaintiff again indicated that he did not understand Moser’s advisement, Moser
summarized the advisement in plain, simple terms: “It basically said . . . if you don’t
complete a test, the DMV will suspend your license for between one to three years.”
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Plaintiff did not indicate that was still confused. Instead, he demonstrated that he
understood the consequences of his refusal when he stated: “Oh yeah, I mean, I can’t live
with that.” Although suggesting that he did not want to incur the undesirable
consequence of a suspended license, plaintiff did not “ ‘clearly and unambiguously
manifest the consent required by the law.’ ” Garcia, supra, 185 Cal.App.4th at p. 82.)
Moser was not required to continue admonishing plaintiff in the absence of any
indication that plaintiff was still confused. (See Morphew v. Department of Motor
Vehicles, supra, 137 Cal.App.3d at p. 743.)
Disagreeing, plaintiff contends that “substantial evidence demonstrates that [he]
continued to express confusion” after Moser read the advisement on the DS367 form.
But the issue before us is not whether substantial evidence supports reversal, but rather
whether the trial court’s findings are supported by substantial evidence. (Garcia, supra,
185 Cal.App.4th at pp. 81-82.) The court’s findings are supported by substantial
evidence.
Plaintiff further argues that this case is similar to Thompson v. Department of
Motor Vehicles, supra, 107 Cal.App.3d 354 and Hoberman-Kelly v. Valverde, supra, 213
Cal.App.4th 626, but those cases are distinguishable. In Thompson, the officer provided
the appropriate admonition, but the driver did not hear the admonition due to loud radio
transmissions. (Thompson, at pp. 358-359.) The appellate court concluded that the
warning was inadequate because the driver could not hear them. (Id. at pp. 362-363.)
Unlike Thompson, here substantial evidence supports the finding that plaintiff heard and
understood the admonition.
In Hoberman-Kelly v. Valverde, the driver was advised of her Miranda rights while
in the patrol car, including her right to counsel. But at the station, the officer read the
advisement on the DS367 form, which advised the driver that she did not have the right
to call an attorney before deciding whether to consent to a chemical test. There was also
a sign on the wall stating that she had the right to call an attorney. The driver expressed
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confusion and frustration about the apparent conflict between her right to counsel, as
expressed in the Miranda warnings, and the information on the DS367 form. The officer
did nothing to explain the discrepancy and merely read the standardized form again.
(Hoberman-Kelly, supra, 213 Cal.App.4th at p. 630.) The superior court granted the
driver’s petition for writ of mandate seeking to vacate the suspension order, concluding
that the driver was confused, and the officer failed to make a reasonable effort to clarify
the law for the driver. (Id. at pp. 630-631.) The appellate court agreed that the driver was
confused by the advisements, and that the officer could have done more. (Id. at p. 633.)
This case is distinguishable from Hoberman-Kelly. Here, Moser read the statutory
advisement, reread the advisement when asked to do so, and then summarized the
advisement in simple terms.
Because substantial evidence supports the trial court’s decision, we affirm the
judgment.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a).)
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Mauro, J.
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