A

Thesaurus

						iLawDictionary.Com			USAConstitution Law
						California			Law Students-USL
						Law Dictionary			BankruptcyCode.US
						Criminal Law-Arrest			United States Law.US

US Codes

State Codes

Evidence

Law Students-USL

Federal Rules of Evidence

Medical Dictionaries

A Legal and Business Portal
A Legal and Business Portal

iLaw Dictionary
California
Law Dictionary
Criminal Law-Arrest
(Troppman v. Gourley)

A - Aa - Ab - Ac - B- C- D - E- F - G - H -I- J - L - M- N - K to Z

Criminal Law Drunk Driving implied consent Vehicle Code sec 13353
(Troppman v. Gourle}

A. Applicable Statutes and Case Law

Section 13353, subdivision (a)(1), authorizes the DMV to suspend a person’s driving privilege if the person “refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer. . . .” Subdivision (c) of this statute expressly requires the administrative hearing officer to review four specific issues before affirming any license suspension on this ground: (1) whether the officer had reasonable cause to believe the person had been driving a vehicle while under the influence of drugs or alcohol; (2) whether the person was placed under arrest; (3) whether the person refused to submit to, or failed to complete, a chemical test; and (4) whether the person was told that his or her license would be suspended or revoked if he or she refused to submit to, or failed to complete, such a test.

The authority for section 13353 rests on the “implied consent” statute, section 23612 (formerly section 23157). (See Jackson v. Pierce, supra, 224 Cal.App.3d at p. 970.) Section 23612 provides, in relevant part: “(a)(1)(A) 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 an offense allegedly committed in violation of Section 23140, 23152, or 23153. . . . [¶] . . . [¶] (C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153. [¶] (D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a motor vehicle for a period of one year. . . .”

A panel of the Fifth Appellate District first considered whether a finding of actual driving is necessary to support a license suspension in Medina, supra, 188 Cal.App.3d 744. In addition to the four factual findings required by section 13353, the administrative hearing officer in Medina found that the person arrested was in fact driving a motor vehicle. (Medina, supra, 188 Cal.App.3d at p. 748.) Upon review in mandate proceedings, the superior court concluded this fifth finding was not supported by a preponderance of the evidence; nevertheless, the superior court upheld the suspension because the evidence supported a finding that the officer had reasonable cause to believe the person had been driving—i.e., because the four findings required by section 13353 were sufficiently supported. (Medina, supra, 188 Cal.App.3d at p. 749.) The appellate court reversed. (Id. at p. 746.) Relying on Weber v. Orr (1969) 274 Cal.App.2d 288, which construed an older version of the implied consent statute, the appellate court in Medina reasoned a person’s consent to chemical testing can only be inferred from the person’s act of driving, and not from a police officer’s reasonable belief that such driving has occurred. (Medina, supra, 188 Cal.App.3d at pp. 750-751.) Because implied consent “is in essence a jurisdictional prerequisite to the license suspension proceedings under section 13353,” the court held that proof of actual driving is required to sustain a license suspension for a driver’s refusal to submit to chemical testing. (Id. at p. 751.)

The following year, Division Five of the First Appellate District reached the opposite conclusion. In Rice, supra, 203 Cal.App.3d at p. 1464, the court rejected Medina’s construction of the statutes “as paying inadequate deference to the state’s broad police power to legislate for the common health and welfare—i.e., ‘ “to fulfill the need for a fair, efficient and accurate system of detection and prevention of drunken driving.” [Citation.]’ [Citation.]” Instead, the Court of Appeal in Rice held the four findings enumerated in section 13353 are sufficient to support a license suspension, and no additional finding of “actual driving” is required. (Rice, supra, 203 Cal.App.3d at p. 1466.)

Rice disagreed with Medina based on the language of the implied consent statute (§ 23162, formerly § 23157) and its view of legislative intent. With regard to statutory language, the Rice court noted that the implied consent statute “refers to any ‘person’ lawfully arrested” for driving under the influence, and “does not speak in terms of the lawful arrest of a ‘driver.’ [Citation.]” (Rice, supra, 203 Cal.App.3d at p. 1465.) A lawful arrest requires only reasonable cause to believe a person was driving, not proof the arrestee was actually driving. (Id. at pp. 1465-1466; see also § 40300.5.) The court reasoned: “The statute is unambiguous and states that upon a lawful arrest for driving under the influence, a person must submit to one of the chemical tests administered at the direction of a peace officer. Upon failure to submit, the person shall suffer loss of his driving privileges. This interpretation is consistent with the very important purpose of the statute to keep persons who are reasonably suspected of operating a vehicle while intoxicated off the road and to secure the civil cooperation of all persons privileged to drive by providing objective proof of their sobriety when suspected of driving under the influence. [Citations.]” (Rice, supra, 203 Cal.App.3d at p. 1466.)

Furthermore, with regard to the legislative goals of deterring drunk driving and encouraging cooperation in chemical testing, the Rice court observed: “It would serve no useful policy to permit an intoxicated person suspected of driving a vehicle to refuse to take a chemical test for alcoholic content. To require an additional finding that the arrestee was actually driving, would undermine the important goals of cooperation and deterrence. Rather than carve out an exception, the legislative policy tries to get these people off the road and out of harm’s way. In light of the severity of the problem and the difficulty of detection, the law encourages compliance with the implied consent law in situations where the officer reasonably suspects the arrestee to have been driving while under the influence of alcohol or drugs. To bar license suspension of persons who are lawfully arrested but are subsequently found not to be the actual driver would render enforcement more difficult at a time when society deserves increased protection in eradicating a problem which unfortunately has become all too common in our modern, mobile culture.” (Rice, supra, 203 Cal.App.3d at p. 1465.)

Two years after Rice was decided, the Fifth Appellate District had occasion to revisit the issue but chose not to abandon its holding in Medina, supra, 188 Cal.App.3d 744. (Jackson, supra, 224 Cal.App.3d at pp. 966, 970.) The court in Jackson disagreed with Rice’s focus on the use of the word “person” instead of “driver” in the implied consent statute’s reference to the individual who may be tested. (Jackson, supra, 224 Cal.App.3d at p. 970.) Instead, Jackson read former section 23157, subdivision (a)(1) as providing that “ ‘any person who drives’ is considered to have consented to chemical testing, if lawfully arrested,” such that “the person” referred to in later subdivisions of section 23157 and in section 13353 (as the “person who refuses”) is one “who drives.” (Jackson, supra, 224 Cal.App.3d at p. 971.)

The Jackson court also distinguished between the showing necessary to authorize a police officer to administer a chemical test and that required to suspend a person’s driver’s license. Because the implied consent law serves the important purpose of “permit[ting] an officer to administer a test if he or she has lawfully arrested one who is suspected of driving under the influence,” the court reasoned, “The Legislature has . . . made the officer’s reasonable suspicion enough to warrant giving the tests to every individual who may have been driving while intoxicated.” (Jackson, supra, 224 Cal.App.3d at p. 971.) “However, the suspension of an individual’s license is another matter. Suspension is the result of the person’s failure to do what he or she has consented to do—submit to a test. The first 19 words of section 23157 clearly proclaim that the consent is implied by law from the act of driving. If the person was not driving, he or she did not impliedly agree to submit to the test and, under the statute, has every right to refuse to take it. A person who has no obligation to comply with a law should not be punished for failing to comply with it.” (Ibid.)

The final published decision weighing in on this issue is Machado, supra, 10 Cal.App.4th 1687, a case from the Sixth Appellate District. After considering the views expressed in Rice, Medina and Jackson, Machado agreed with the analysis in Rice. (Machado, supra, 10 Cal.App.4th at pp. 1694-1696.)

The Machado court based its conclusion in part on insight it gleaned from the Supreme Court’s decision in Mercer, supra, 53 Cal.3d 753 as to the legislative purpose behind the implied consent law. (See Machado, supra, 10 Cal.App.4th at pp. 1696-1697.) Mercer explained that the Legislature enacted section 13353 as an alternative to forcible removal of a blood sample (which is permissible so long as the person has been lawfully arrested, the officer has probable cause to believe the person is intoxicated and the sample can be obtained in a reasonable, medically approved manner). (Mercer, supra, 53 Cal.3d at p. 759-760.) The alternative method of compulsion offered by section 13353 is the provision that a person arrested for drunk driving “ ‘will lose his automobile driver’s license for a period of six months if he refuses to submit to a test for intoxication.’ ” (Mercer, supra, 53 Cal.3d at p. 760, quoting People v. Superior Court (1972) 6 Cal.3d 757.) “ ‘The effect of this legislation is to equip peace officers with an instrument of enforcement not involving physical compulsion. It is noteworthy that in so doing, the Legislature took pains to condition its use upon a lawful arrest for driving under the influence of intoxicating liquor and upon the reasonable belief of the peace officer that the arrestee was in fact so driving.’ [Citation.]” (Ibid.) Viewing the statutes from this perspective, the Machado court observed: “[I]t is apparent that the Legislature intended to draft a law to require all persons lawfully arrested for drunk driving to submit to testing or lose their driver’s license. The focus of this law is on whether the officer had probable cause to believe the person was driving while intoxicated, and therefore was lawfully arrested.” (Machado, supra, 10 Cal.App.4th at p. 1697.)

Machado also responded to the analysis of statutory language set forth in Jackson, asserting the statutory language is in fact consistent with the legislative goal of providing an alternative method of compulsion for chemical testing. (Machado, supra, 10 Cal.App.4th at p. 1697.) The court reasoned: “Considered in its entirety, the language of sections 13353 and 23157 plainly applies to persons who are lawfully arrested for drunk driving when the arresting officer has probable cause to believe the person was driving. The introductory language of section 23157 (‘Any person who drives a motor vehicle’) operates to describe the general class of persons to whom the law applies—those who drive. The language does not limit application of the laws to those who are proved to be actually driving at the time of the lawful arrest. Rather, the language of the sections specifically conditions their application on whether a peace officer has probable cause to believe a person was driving.” (Machado, supra, 10 Cal.App.4th at p. 1698.)

Troppman v. Gourley A105287-2/8/05 CA1/3

Feb 08 2005

A105287
[PDF] [DOC]

Troppman v. Gourley 2/8/05 CA1/3

A - Aa - Ab - Ac - B- C- D - E- F - G - H -I- J - L - M- N - K to Z
Bruton v. United States, supra, 391 U.S. 123 [20 L.Ed.2d 476]
California: Authoritative-Law Dictionary: Table of Contents
Glossaries Directory Table of Contents
Thesaurus Directory
Dictionaries Directory Table of Contents