Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2009-97306-CU- WM-CTL, Ronald F. Frazier, Judge.
NARES, J.
This appeal arises out of the suspension for one year of Paul Shaughnessy's driving privileges based upon the fact that he refused to submit to either a breath or blood test after he was stopped for suspicion of driving under the influence. On appeal, Shaughnessy asserts the suspension should be set aside because there is no substantial evidence (1) there was a lawful arrest; (2) he was driving with a blood alcohol level of 0.08 percent or more; and (3) he willfully refused to provide a blood alcohol sample. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Stop
On June 7, 2009, at approximately 10:20 p.m., while stopped at a red light with his partner, Ronald Lovelace, San Diego Police Department Officer Justin Mattly observed a vehicle turn from B Street to 16th Street. The vehicle was traveling at an unsafe speed that Officer Mattly estimated was in excess of 40 miles per hour when it made the turn. The vehicle continued south on 16th Street at this speed even as it approached a dip at the intersection of C Street. The car did not slow as it approached the dip, and, according to Officer Mattly's report, it "went over the dip at such a high rate of speed [that] the vehicle appeared to lift off the ground in the front." The driver appeared to briefly lose control of the vehicle which turned left into oncoming traffic before the driver regained control.
The officers stopped the car for driving at an unsafe speed. Officer Mattly contacted the driver who was identified, through a military identification card, as Paul Shaughnessy. As Shaughnessy spoke, Officer Mattly could smell a strong odor of alcohol on his breath. Officer Mattly asked if he had been drinking and Shaughnessy replied that he had consumed "two beers." Officer Mattly observed that it appeared that he had had more than two. Shaughnessy responded that he "maybe had three or four." Officer Robert Wells then arrived on the scene and took over the investigation.
B. The Arrest
Officer Wells observed that Shaughnessy exhibited signs of intoxication. He smelled alcohol on his breath. His eyes were bloodshot, watery, and exhibited horizontal nystagmus (involuntary eye movement). He swayed and had an unsteady gait. Shaughnessy was talkative and his speech was slurred. Shaughnessy admitted he had been drinking and told Officer Wells he had consumed "[p]robably 4 beers" and, earlier, "[g]in and [t]onic."
Officer Wells explained, demonstrated, and then administered a series of field sobriety tests. During the "One Leg Stand Test, " Shaughnessy started before Officer Wells finished the instructions, swayed while attempting to balance, and put his foot down. He swayed from front to rear throughout the "Standing Alphabet Count Test" and forgot the alphabet contains the letter "U." During the "Walk & Turn" test, he swayed from side to side and lost his balance twice. He used his arms to balance, stepped off the line and did not take the instructed number of steps.
Concluding that Shaughnessy had been driving under the influence, Officer Wells placed him under arrest.
C. Shaughnessy's Refusal To Take a Breath or Blood Test
Shortly after his arrest, and while still at the scene of the stop, Officer Wells explained to Shaughnessy that he was required by state law to provide a blood or breath sample. Shaughnessy responded that he did not want to provide either a breath or blood sample. Officer Wells again told him state law required him to give either a blood or breath sample. Shaughnessy again responded that he did not want to provide either a blood or a breath sample.
Officer Wells transported Shaughnessy to police headquarters. Once there, Officer Wells read a chemical test admonition to him. That admonition told Shaughnessy, among other things (1) "You are required by state law to submit to a chemical test to determine the alcohol and/or drug content of your blood;" (2) "Because I believe your are under the influence of alcohol, you have a choice of taking a breath or blood test;" (3) "If you refuse to submit to, or fail to complete a test, your driving privilege with be suspended for one year or revoked for two or three years;" and (4) "You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test."
Immediately after reading the admonition, Officer Wells asked Shaughnessy, "Will you take a breath test?" He responded, "No." Officer Wells asked him, "Will you take a blood test?" He responded, "No."
Officer Wells explained again that he was required to provide a test. Shaughnessy again refused, stating "that he wasn't going to provide evidence against himself, which would be basically under the Fifth Amendment to the Constitution."
Officer Wells escorted Shaughnessy to a room with a restraint chair. He informed the watch commander they were going to perform a forced blood draw. The seat belt on the restraint chair was fastened around Shaughnessy, and his handcuffed arms were placed over the back of the chair so the laboratory technician could easily obtain a sample. A forced blood draw was taken with no physical resistance by Shaughnessy.
The police department lab concluded Shaughnessy's blood alcohol content was 0.08 percent at the time the blood was drawn.
D. Department of Motor Vehicles (DMV) Hearing
Thereafter, a DMV administrative hearing was held concerning suspension of Shaughnessy's license. At the hearing, documentary evidence was submitted, consisting of Officer Wells's sworn statement and his arrest report, Officer Mattly's supplemental report, and a printout of Shaughnessy's driving record. Officer Wells was called as a witness and testified, as detailed ante, about his observations of Shaughnessy and ultimate arrest. He also opined that a reasonable speed to be driving at the location Shaughnessy was stopped would be between 25 to 30 miles per hour.
Shaughnessy submitted a letter from forensic toxicologist Charles Wilcox. He opined that testing of blood alcohol has a confidence limit of 0.01 grams percent. He further opined that this meant that Shaughnessy's blood alcohol level, which was tested at 0.08 percent, could have actually ranged "somewhere between 0.07 and 0.09 grams %, and it is impossible with any scientific certainty to place exactly where the true value lies."
Shaughnessy did not testify or present any other affirmative evidence. In closing, counsel argued that Shaughnessy's conduct did not constitute a refusal.
The DMV ruled that Shaughnessy's driving privileges should be suspended because of his refusal to submit to a test. The hearing officer found that the evidence established that Officer Mattly properly stopped Shaughnessy for driving at an unsafe speed for the conditions. In finding a refusal, the hearing officer stated: "Counsel argued the respondent did not display any conduct deemed as a refusal. Officer Wells testified that he admonished respondent as to the requirement to submit to a blood or breath test. The [officer's report] indicates the respondent responded 'no' to the questions 'will you take a breath test or blood test.['] Although there was no resistance on the part of the respondent, the respondent did verbally refuse both tests."
E. Petition for Writ of Mandate
In August 2009 Shaughnessy filed a petition for writ of mandate in the Superior Court of San Diego County, challenging the DMV's suspension of his driving privileges. In support of the petition, Shaughnessy argued (1) his arrest was not lawful because the officers did not have reasonable cause to detain him; (2) he was not driving with a blood alcohol content of 0.08 percent or more because of the margin of error inherent in blood testing; and (3) his conduct did not constitute a refusal.
The superior court upheld the DMV's suspension of Shaughnessy's driving privileges, finding the hearing officer's findings and decision were supported by the record. The court thereafter entered judgment in favor of the DMV.
This timely appeal follows.
DISCUSSION
I. STANDARD OF REVIEW
If the DMV hearing officer finds good cause to suspend a driver's driving privileges under Vehicle Code section 13353 for a failure to consent to a breath or blood test, the driver may challenge the adverse determination by petitioning the trial court for a writ of mandamus under Code of Civil Procedure section 1094.5. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) The trial court exercises its independent judgment to decide "'"whether the weight of the evidence support[s] the administrative decision."'" (Ibid.)
All further statutory references are to the Vehicle Code.
When the trial court denies a writ seeking to overturn a suspension of driving privileges, and the driver appeals from that denial, our review is limited to deciding whether the record contains substantial evidence that, if credited, would support the trial court's decision on the issues presented. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) We resolve all factual conflicts, and draw all legitimate inferences, in favor of the trial court's decision, and we may not overturn the factual findings unless the evidence is insufficient as a matter of law to sustain those findings. (Ibid.)
II. ANALYSIS
When a driver requests an administrative hearing to challenge whether his or her driver's license may be suspended under section 13353 for allegedly refusing to consent to a chemical test, the scope of that hearing is confined to the facts listed in section 13557, subdivision (b)(1). The hearing examines only (1) "whether the law enforcement officer 'had reasonable cause to believe that the person had been driving a motor vehicle [while under the influence]'; (2) whether 'the person was placed under arrest'; (3) whether 'the person refused or failed to complete the chemical test... after being requested by a peace officer'; and (4) whether 'the person had been told [his or] her privilege to operate a motor vehicle would be suspended or revoked if [he or] she refused to submit to and complete the required testing.'" (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1127; §§ 13557, subd. (b)(1), 13558, subd. (c)(1).)
A. Lawful Arrest
Shaughnessy asserts that his arrest was unlawful because the officers did not have probable cause to pull him over. We reject this contention.
Officer Mattly had reasonable cause to stop Shaughnessy for speeding. Reasonable suspicion of a Vehicle Code violation justifies a traffic stop. (People v. Watkins (2009) 170 Cal.App.4th 1403, 1407.)
Shaughnessy was driving in a business area of downtown San Diego when stopped. The Vehicle Code provides that unless a sign is posted with a different limit, the prima faciespeed limit in a business district is 25 miles per hour. (§ 22352, subd. (a)(2)(A).) Officer Mattly observed Shaughnessy turn onto 16th Street from B Street and proceed south at a speed he estimated to be in excess of 40 miles per hour. This gave Officer Mattly sufficient grounds to initiate a traffic stop of Shaughnessy. (People v. Tuck (1977) 75 Cal.App.3d 639, 644-645, fn. 5 [officers properly stopped vehicle they estimated to be traveling between 45 and 50 miles per hour in a residential area which had a prima facie speed limit of 25 miles per hour]; People v. Hardacre (2004) 116 Cal.App.4th 1292, 1300 [reasonable cause for stop existed where officer observed vehicle traveling in excess of 40 miles per hour in an area with a posted limit to 25 miles per hour].)
Officer Mattly also had reasonable cause to stop Shaughnessy for reckless driving. Erratic driving justifies a traffic stop even if it does not rise to the level of a Vehicle Code violation. (People v. Russell (2000) 81 Cal.App.4th 96, 99 [car drifting around in lane justified investigatory stop]; Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484-1486 [weaving within lane].)
Officer Mattly observed Shaughnessy make a turn at an intersection in downtown San Diego at an unsafe speed he estimated to be in excess of 40 miles per hour. Shaughnessy did not appear to be aware of a dip in the road and went over it at such a high rate of speed that the front of the car lifted off the ground. He then briefly lost control of the car, veering left towards oncoming traffic before gaining control. These observations provided ample evidence justifying the traffic stop.
Shaughnessy's reliance on Taylor v. Department of Motor Vehicles (1995) 36 Cal.App.4th 812 does not assist him. In Taylor, a police officer observed a passenger in a minor's vehicle yell loudly, the driver then cut sharply behind the officer's vehicle, and then made a left turn from the left turn lane, using his left turn signal. (Id. at p. 814.) The Court of Appeal held the stop was not legal because the driver was not speeding, and his passenger's yell and his sharp but legal turn did not the driver could be under the influence of alcohol. (Id. at p. 816.)
By contrast here, Shaughnessy was speeding and driving in a reckless manner. That evidence did indicate he could be under the influence of alcohol. (Arburn v. Department of Motor Vehicles, supra, 151 Cal.App.4th at p. 1485.)
Shaughnessy also asserts there was no evidence before the DMV hearing officer regarding the manner of his driving because only Officer Wells, who did not witness the incident, testified. However, Officer Mattly's arrest report was received into evidence. Shaughnessy does not, and cannot, contend that this report was inadmissible. (See McNary v. Dep't of Motor Vehicles (1996) 45 Cal.App.4th 688, 695.)
B. Blood Alcohol Content
Shaughnessy next asserts there is no substantial evidence he was driving with a blood alcohol level content of 0.08 percent or greater. He bases this argument upon his expert's opinion his blood alcohol level could have been anywhere between 0.07 percent and 0.09 percent.
However, Shaughnessy's driving privileges were not suspended because he was driving with a prohibited blood alcohol level. Rather, the suspension was the result of his refusal to submit to a breath of blood test. A motorist's blood alcohol level is not an element of a refusal case. (See Fitzpatrick v. Department of Motor Vehicles (1993) 13 Cal.App.4th 1771, 1775.)
C. Refusal To Consent to Test
Shaughnessy asserts there was no refusal in this case because he "politely invoked his 5th Amendment rights" and "willingly gave blood when required to do so." This contention is unavailing.
Officer Wells gave Shaughnessy an admonition concerning the necessity for agreeing to a chemical test and reported that Shaughnessy answered, "[n]o" when asked whether he would take a blood or breath test. He orally refused to consent to the test on several occasions. This evidence alone would support the finding of refusal. (Cf. Lake v Reed, supra, 16 Cal.4th at pp. 457-458.)
A driver who verbally refuses to take the test, even though he or she does not physically resist the actual blood draw, has refused to take the test within the meaning of the statute. (Payne v. Dep't of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517-1519 [initial refusal to take test, followed by submission to test under verbal protest, is refusal within statutory scheme]; Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1162 [same ].) Indeed, courts have concluded a driver has refused to take a test when the driver remains mute when asked whether he or she would submit to a test. (Lampman v. Department of Motor Vehicles (1972) 28 Cal.App.3d 922, 927; Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299.)
A driver cannot "refuse to take a test required by section 13353 and avoid the license suspension mandated by the statute by later agreeing to... allow[] blood to be taken" (Barrie v. Alexis, supra, 151 Cal.App.3d at p. 1163) because " '[the] fact that a blood sample ultimately was obtained and the test completed is of no significance.' [citation.]... It is the initial refusal which forms the basis for suspension of the driver's license under section 13353." (Barrie v. Alexis, at p. 1162.)
Thus it matters not that Shaughnessy "politely" refused the test, nor that he did not physically resist when a forced blood draw was done. His oral refusal, stated several times, is enough to establish a refusal.
We note that in asserting there was no refusal on the part of Shaughnessy, counsel cites an opinion that has been depublished by our Supreme Court, as well as two unpublished opinions. Unpublished and depublished opinions may not be cited or relied upon by parties on appeal. (Cal. Rules of Court, rules 8.1105 & 8.1115.)
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.