Elmore v. Gordon ( 2021 )

Filed 12/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
STEVE LOUIS ELMORE, B308328
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 19STCP03929
v.
STEVE GORDON, as Director,
etc.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Markelz Law Group and Christopher Markelz for Plaintiff
and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Senior
Assistant Attorney General, Gabrielle H. Brumbach, Supervising
Deputy Attorney General, and Victoria Jalili, Deputy Attorney
General, for Defendant and Respondent.
____________________
A little past midnight and about 15 yards north of the
Mexican border, Miguel Ponce of the Border Patrol sat in his
parked cruiser. He was on the lookout for people cutting through
the border fence and running to large vehicles, like minivans,
that would take them away. After 17 years on the job, Ponce
anticipated this tactic.
A black minivan drove into this restricted area, which was
off limits to the general public; this commercial lot was limited to
daytime tractor-trailers bound for Mexico and waiting to pass
through the nearby port of passage between the nations. Cars
entering this area by mistake and seeing a patrol car typically
asked for directions. “They don’t normally just go in, do a U-turn
and then take off.”
There was “a lot of ambient lighting” that made Ponce’s
marked car “pretty visible.” The setting meant the minivan
driver saw Ponce’s car. The minivan got about 20 yards from
Ponce and then U-turned abruptly; its tires made a “squelch”
sound. Ponce heard the driver rev his engine as the minivan
“fled off” at a “high rate of speed” that was “definitely faster than
what cars drive in that area normally.” Ponce decided to follow
and to stop the minivan.
Driving the minivan was Steve Louis Elmore, who avoided
eye contact and spoke with slurred speech. He smelled of alcohol.
Elmore’s eyes were bloodshot and watery. It appeared he had
urinated on himself.
Police warned Elmore his license would be suspended or
revoked if he refused to take a chemical test for alcohol. Elmore
refused.
Officials obtained a warrant for a blood draw showing
Elmore’s alcohol level was more than twice the limit.
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The Department of Motor Vehicles suspended Elmore’s
driver’s license for one year because he refused to submit to a
blood or breath test. (See Veh. Code, § 13353.) Elmore
challenges this suspension with two arguments.
Elmore’s first argument is Ponce’s temporary investigative
stop of him was illegal. This is incorrect. Ponce reasonably
suspected the minivan was involved with illegal smuggling.
Objective circumstances justified his decision to stop it and to
investigate. Sighting and then fleeing police in a high crime area
creates a reasonable suspicion that warrants a Terry stop.
(Illinois v. Wardlow (2000) 528 U.S. 119, 124–125; see also
Kansas v. Glover (2020) __ U.S. __, __ [140 S.Ct. 1183, 1188];
People v. Silveria (2020) 10 Cal.5th 195, 236.)
The federal law on this topic governs us. We are not
permitted a state law departure. (People v. Souza (1994) 9
Cal.4th 224, 232–233.)
Judges must be alert for implicit bias in such situations,
but Elmore does not argue this factor was in play. Nothing
suggests Ponce could see Elmore before deciding to stop the
minivan.
Elmore’s second argument is police failed to read a
particular sentence when admonishing him that his refusal to
submit to chemical testing would result in a license suspension.
We italicize the key words in the omitted sentence: “Refusal or
failure to complete a test will also result in a fine and
imprisonment if this arrest results in a conviction of driving
under the influence.”
This second argument is insubstantial. Police warned
Elmore his driver’s license would be suspended if he refused
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chemical testing. He refused. His license was suspended.
Elmore does not contest these facts. He has no valid complaint.
The Department is not seeking a fine or imprisonment.
When police give an incomplete admonition about the
consequences of refusing chemical testing, the law limits the
permissible sanction to the extent of actual notice. (See Daly v.
Department of Motor Vehicles (1986) 187 Cal.App.3d 257, 262.)
This counts as “common sense.” (Id. at p. 259.)
Elmore cites cases with holdings that are not on point. (See
Troppman v. Valverde (2007) 40 Cal.4th 1121, 1126, 1135–1139
& fn. 11 [when officer found driver passed out in a parked car,
license could be suspended without proof of driving immediately
before arrest]; Mercer v. Department of Motor Vehicles (1991) 53
Cal.3d 753, 768 [Veh. Code, § 23152 requires proof of volitional
vehicle movement]; People v. Balov (2018) 23 Cal.App.5th 696,
702–704 [defendant’s consent to a blood test was voluntary];
Munro v. Department of Motor Vehicles (2018) 21 Cal.App.5th 41,
49–51 [license may not be suspended when officer failed to
admonish driver that refusal to submit to test would result in
suspended license]; People v. Mason (2016) 8 Cal.App.5th Supp.
11, 18–34 [court suppressed unconsented blood test]; Molenda v.
Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 989–
1005 [blood and breath tests were inadmissible]; Hughey v.
Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757–
768 [skull fracture from crash negated mental capacity to refuse
chemical tests]; Thompson v. Department of Motor Vehicles (1980)
107 Cal.App.3d 354, 357–360 [noisy radio interference made
admonition ineffective]; McDonnell v. Department of Motor
Vehicles (1975) 45 Cal.App.3d 653, 662–663 [illness triggered by
alcohol consumption that produces the symptoms of intoxication
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is not a defense to suspension where the arresting officer has
reasonable cause to believe driver was intoxicated]; Giomi v.
Department of Motor Vehicles (1971) 15 Cal.App.3d 905, 906–907
[sufficient advisements must convey the strong likelihood adverse
results “would” follow upon refusal; the verb “could” is too weak].)
Elmore also cites the holding from People v. Superior Court
(Hawkins) (1972) 6 Cal.3d 757, which a constitutional
amendment abrogated. (People v. Deltoro (1989) 214 Cal.App.3d
1417, 1422–1426.)
DISPOSITION
We affirm the order and award costs to the respondent.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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