Court of Appeal:
DUI Arrestee Wrongfully Ordered to Submit to Blood Draw
Opinion Says Breathalyzer Device Cannot Be Viewed As ‘Unavailable’ Without Contacting Stations in Vicinity
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has held that a judge erred in denying a petition for a writ of mandate brought by a motorist seeking a command to the Department of Vehicles not to yank his driver’s license for a year based on a refusal to submit to a chemical test of his blood alcohol content when, in fact, he did consent to a breath test but, when told that such a test was unavailable, declined to submit to a blood test.
The opinion, filed Thursday and not certified for publication, declares that a breathalyzer test is not “unavailable” for purposes of Vehicle Code §23612, the state’s “implied consent law,” based on a testing device not being at hand and there being no immediate response to a police-band broadcast querying if anybody had one available.
Justice Thomas A. Delaney pointed out that appellant James Tarzia was arrested by sheriff’s deputies in the Orange County city of San Clemente and that there were three law enforcement stations “about a five-to-ten-minute drive from the scene,” yet none was contacted to ascertain if it had a breathalyzer.
“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….Based on the specific, undisputed facts of this case, we agree.”
Sec. 23612 provides, in subd. (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….”
It adds in subd. (d)(2):
“If a blood or breath test is not available…, the person shall submit to the remaining test in order to determine the percent, by weight, of alcohol in the person’s blood.”
Delaney wrote that “[t]he term ‘unavailable’ is not defined in the statute, but,” he said, quoting a dictionary, “it is commonly understood to mean ‘not able to be used or obtained; not at someone’s disposal’ as it relates to an object.” He continued: “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.”
Reciting that the sheriff’s deputy who made the arrest “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,” Delaney declared:
“[U]nder 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 Department of Motor Vehicles relied on the 2017 decision by Div. Two of the Fourth District Court of Appeal in Espinoza v. Shiomoto. There, a woman, Bernice Espinoza, who was arrested on suspicion of misdemeanor driving under the influence, repeatedly proclaimed that she was a Riverside County deputy public defender and told members of the California Highway Patrol that she would consent to a blood test but conditioned her assent on officers obtaining a search warrant, in conformity with a recent U.S. Supreme Court decision.
The opinion in Espinoza says that once Espinosa (now an immigration attorney) was told that warrants for forced blood tests are only obtained, by office policy, in felony cases, “Espinoza had an affirmative obligation to submit to and complete a breath test.” It sets forth:
“Under 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….”
‘For Whatever Reason’
Delaney said in Thursday’s opinion:
“We read the Espinoza court’s reference of unavailability ‘for whatever reason’…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 case is Tarzia v. Gordon, G060610.
It reverses a judgment by Orange Superior Court Judge David A. Hoffer denying Tarzia’s petition.
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