Joyce v. Department of Motor Vehicles , 153 Cal. Rptr. 404 ( 1979 )

Opinion

KINGSLEY, Acting P. J.

The Department of Motor Vehicles (hereinafter referred to as the department) appeals from a superior court judgment granting a writ of mandate, which writ reversed the department’s suspension of James Joyce’s driver’s license pursuant to Vehicle Code section 13353.¹

Joyce was arrested for driving under the influence of alcohol. The arresting officer (hereinafter referred to as the officer) informed Joyce of the requirements of section 13353. Joyce decided to take a breath test. The officer turned on the breathalyzer. The green light came on, indicating that the machine was ready to receive a sample. Joyce breathed into the machine; however, no reading was produced. This failure occurred because the breathalyzer malfunctioned. The officer told Joyce that two samples were needed. Joyce then breathed into the machine a second time. This time, a reading was produced. The officer then asked Joyce to breathe into the machine a third time. Joyce refused.

The department ordered the suspension of Joyce’s driver’s license on the ground that Joyce refused to submit to or failed to complete the chemical test required by section 13353. The superior court held that Joyce did submit to and complete the required test and mandated that the department reinstate Joyce’s license.

The Department of Public Health has propounded regulations regarding blood alcohol analysis. In pertinent part, these regulations state: “For each person tested, breath alcohol analysis shall include analysis of 2 separate breath samples which result in determination of blood alcohol concentrations which do not differ from each other by more than 0.02 grams per 100 milliliters.” (Cal. Admin. Code, tit. 17, § 1221.4, subd. (a)(1).)

This provision may be interpreted in at least three ways. First, it may be read to mean that the person undergoing breath analysis must provide 2 samples of his breath which result in acceptable measures of his blood alcohol level if analysis of the samples yields blood alcohol readings which differ from one another by no more than 0.02 grams per 100 milliliters. Second, the above stated provision may be read to mean that the person undergoing breath analysis must provide 2 breath samples which are analyzed by the machine and that these analyzed samples result in reliable measures of blood alcohol if the blood alcohol concentration readings differ by no more than 0.02 grams per 100 milliliters. Third, the regulation may be read to require that the person undergoing the breath test keep providing samples until the analyses of two samples produce blood alcohol concentration readings which differ by no more than 0.02 grams per 100 milliliters. Joyce urges that the first interpretation is correct. The department contends that the second interpretation is correct. Indeed, the Legislature or the Department of Public Health may be well advised to clarify the meaning of this regulation. This court, however, need not provide such clarification in order to receive this appeal.

After Joyce breathed into the breathalyzer the first time, and before he breathed into it the second time, the officer told Joyce that two breath samples were required. Joyce stated at a hearing conducted by the department that on the basis of what the officer said, he (Joyce) believed that he had completed the test when he breathed into the machine the second time. The officer, moreover, stated at the hearing that he believed that when Joyce breathed into the breathalyzer the second time, Joyce believed that the test was completed. The trial court also found that Joyce believed that by breathing into the machine twice, he had done all that was required of him. Indeed, one may reasonably conclude that Joyce was confused or misled by the officer.

California courts have stated that if a driver’s refusal to take a test required by section 13353 is engendered by confusing or misleading statements by the arresting officer and not engendered by the driver’s self-impaired ability to understand, then the driver’s refusal is vitiated so that his driver’s license may not be suspended. (Goodman v. Orr (1971) 19 Cal.App.3d 845, 853 [97 Cal.Rptr. 226]; see also, Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 497 [94 Cal.Rptr. 182].) Therefore, the superior court in the instant case did not err in mandating the reinstatement of Joyce’s driver’s license.

The judgment is affirmed.

Alarcon, J., concurred.

1 “(a) Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor. The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe such person was driving a motor vehicle upon a highway while under the influence of intoxicating liquor. Such person shall be told that his failure to submit to or complete such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of six months. “The person arrested shall have the choice of whether the test shall be of his blood, breath or urine, and he shall be advised by the officer that he has such choice. If the person arrested either is incapable, or states that he is incapable, of completing any chosen test, he shall then have the choice of submitting to and completing any of the remaining tests or test, and he shall be advised by the officer that he has such choice. “Such person shall also be advised by the officer that he does not have the right to have an attorney present before stating whether he will submit to a test, before deciding which test to take, or during administration of the test chosen. “Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent and such tests may be administered whether or not such person is told that his failure to submit to or complete the test will result in the suspension of his privilege to operate a motor vehicle. “(b) If any such person refuses the officer’s request to submit to, or fails to complete, a chemical test, the department, upon receipt of the officer’s sworn statement that he had reasonable cause to believe such person had been driving a motor vehicle upon a highway while under the influence of intoxicating liquor and that the person had refused to submit to, or failed to complete, the test after being requested by the officer, shall suspend his privilege to operate a motor vehicle for a period of six months. No such suspension shall become effective until 10 days after the giving of written notice thereof, as provided for in subdivision (c). “(c) The department shall immediately notify such person in writing of the action taken and upon his request in writing and within 15 days from the date of receipt of such request shall afford him an opportunity for a hearing in the same manner and under the same conditions as provided in Article 3 (commencing with Section 14100) of Chapter 3 of this division. For the purposes of this section the scope of the hearing shall cover the issues of whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle upon a highway while under the influence of intoxicating liquor, whether the person was placed under arrest, whether he refused to submit to, or failed to complete, the test after being requested by a peace officer, and whether, except for the persons described in paragraph (a) above who are incapable of refusing, he had been told that his driving privilege would be suspended if he refused to submit to, or failed to complete, the test. “An application for a hearing made by the affected person within 10 days of receiving notice of the department’s action shall operate to stay the suspension by the department for a period of 15 days during which time the department must afford a hearing. If the department fails to afford a hearing within 15 days, the suspension shall not take place until such time as the person is granted a hearing and is notified of the department’s action as hereinafter provided. However, if the affected person requests that the hearing be continued to a date beyond the 15-day period, the suspension shall become effective immediately upon receipt of the department’s notice that said request for continuance has been granted. “If the department determines upon a hearing of the matter to suspend the affected person’s privilege to operate a motor vehicle, the suspension herein provided shall not become effective until five days after receipt by said person of the department’s notification of such suspension. “(d) Any person who is afflicted with hemophilia shall be exempt from the blood test required by this section. “(e) Any person who is afflicted with a heart condition and is using an anticoagulant under the direction of a physician and surgeon shall be exempt from the blood test required by this section. “(f) A person lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor may request the arresting officer to have a chemical test made of the arrested person’s blood, breath or urine for the purpose of determining the alcoholic content of such person’s blood, and, if so requested, the arresting officer shall have the test performed.”