Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 509079
McGuiness, P.J.
The Department of Motor Vehicles (DMV) suspended appellant Philip Louis Bruno’s driver’s license following a hearing at which it was determined that Bruno had refused a chemical test after he was lawfully arrested for driving under the influence (DUI). On appeal from a trial court order denying his challenge to the DMV’s suspension order, Bruno contends the evidence is insufficient to support findings that he refused a blood test and that a breath test was unavailable. He also argues that his due process rights were violated because the DMV failed to provide prior notice of the basis for the license suspension. We affirm.
Factual and Procedural Background
Shortly after 1:00 p.m. on June 29, 2008, California Highway Patrol officer Preston Bingham was dispatched to the scene of a traffic collision in San Mateo County. Upon arriving at the accident scene at approximately 2:00 p.m., Bingham met Bruno, who admitted he had been driving the single vehicle involved in the accident. Because Bruno had said he was “fine” and declined medical treatment, Bingham did not call an ambulance.
Bingham observed that Bruno smelled strongly of alcohol, had red and watery eyes, was uncooperative, and spoke in a loud and slurred voice. Bingham asked Bruno to perform a series of field sobriety tests, which Bruno either failed or was unable to attempt as a result of his injuries. Bruno exercised his right to refuse to submit to a preliminary alcohol screening test.
Bingham arrested Bruno at approximately 2:30 p.m. for driving under the influence and placed him in the patrol car. Shortly after Bingham started driving toward the San Mateo County jail, Bruno complained that he was experiencing pain in his back and legs. Bingham stopped and called for an ambulance, which arrived at around 2:45 p.m. Bruno was transported by ambulance to San Mateo County General Hospital, where he arrived at 3:43 p.m.
At around 4:00 p.m., Bingham advised Bruno that he had a choice of taking either a breath or blood test to measure his blood alcohol level. At the time, Bingham was under the impression that Bruno would be medically cleared shortly. Medical staff then told Bingham it would be “some time” before Bruno was cleared for release. Bingham also learned the hospital did not have a breath alcohol machine and that only a blood draw was available there. With time “ticking away” and evidence “disappearing, ” a blood draw was the only option to assess Bruno’s blood alcohol level.
At approximately 5:00 p.m., Bingham approached Bruno and said that, due to the extended period of time since the accident, and the absence of a breath machine at the hospital, Bruno would be required to give a blood sample. Bruno refused but said that he would not actively resist a blood draw. Bingham testified: “He refused. He eventually allowed the technician to take blood, but he wanted it on the record that he refuses. Instead of being forced against his will, he allowed it.” Bruno stated he would take the breath test but was informed it was unavailable. After Bingham read Bruno the admonishment about the penalty for refusing to consent to a chemical test, he still refused: “[H]e just stated he was refusing the blood test, but instead of being held down and us forcibly taking the test, he would allow... the technician to draw the blood. But he wanted to put on the record that he refused.”
At 5:13 p.m., a technician drew blood from Bruno, who did not offer any physical resistance to the test. Bruno was not medically cleared for release until after the blood draw was finished. After his release from the hospital, he was booked at the San Mateo County jail.
The DMV issued an order of suspension on July 21, 2008, stating that Bruno’s driving privilege would be suspended for a four-month period beginning on August 24 because he had been arrested for DUI and had a blood alcohol concentration by weight (BAC) of 0.08 percent or more. (Veh. Code, § 13353.2.) The suspension order did not cite Bruno’s refusal to submit to a chemical test as the basis for a license suspension. (§ 13353.)
All further statutory references are to the Vehicle Code unless otherwise specified.
Bruno requested an administrative hearing to challenge the license suspension. Before the date of the hearing, Bruno’s attorney sent a letter to the DMV hearing officer assigned to hear the matter informing the officer that criminal charges against Bruno arising out of the June 29 incident had been dismissed on the prosecutor’s motion. Although the criminal court minutes attached to the letter did not indicate why the prosecutor had moved to dismiss the charges, Bruno’s attorney opined that the prosecutor recognized the burden of proof could not be met to establish that Bruno’s BAC was 0.08 percent or more at the time of driving in view of the delay of more than three hours in administering the blood test. Bruno’s attorney argued that no administrative hearing was required in view of the unreliability of the blood test, which showed that Bruno had a BAC of 0.11 percent more than four hours after the accident.
Under California law, there is a rebuttable presumption that a person had a BAC of 0.08 or more at the time of driving a vehicle if a chemical test taken within three hours after the driving shows the person had a BAC of 0.08 or more. (§ 23152, subd. (b).) The presumption applies in administrative hearings before the DMV. (Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 310-311.) This presumption or inference does not create a rule of substantive law but instead merely allows the finder of fact to infer one fact by reference to another, i.e., to assume that a BAC of 0.08 or more measured within three hours of driving shows that the driver’s BAC was 0.08 or more at the time of the driving. (See People v. Warlick (2008) 162 Cal.App.4th Supp. 1, 7.) The statute does not preclude a prosecution when the rebuttable presumption is inapplicable (ibid.), although as a practical matter a prosecutor’s burden may be difficult to meet without the benefit of the presumption.
The hearing before the DMV commenced on October 6, 2008. The hearing officer began by specifying that the only issues to be determined related to whether Bruno refused to submit to a chemical test following his arrest. The hearing did not proceed on the ground that Bruno was driving with a BAC of 0.08 percent or more, but rather as if the matter was a “refusal hearing.” Officer Bingham testified to Bruno’s arrest and the events that transpired at the hospital, including Bruno’s stated refusal to consent to a blood test. At the conclusion of Bingham’s testimony, Bruno’s attorney sought to call an expert to testify regarding Bruno’s BAC. The hearing officer stated that Bruno’s BAC was irrelevant to the issue of whether he had refused a chemical test. Bruno’s counsel objected and argued he should be afforded the opportunity to present expert evidence on the issue of the reliability of the blood test given to Bruno. When Bruno’s counsel was unable to reach the expert by phone, the hearing officer granted a request to continue the hearing to a later date.
At the outset of the hearing, the hearing officer indicated that the issues would be limited to the following: (1) whether the officer had reasonable cause to believe Bruno had been driving under the influence, (2) whether Bruno was lawfully arrested, (3) whether Bruno was properly admonished that his license would be suspended for one year if he failed to complete a chemical test, and (4) whether Bruno refused to take or failed to complete a chemical test.
The hearing reconvened 45 days later, on November 20, 2008. Bruno’s counsel offered the expert testimony of a forensic toxicologist, who opined that the blood sample acquired from Bruno was unreliable as evidence of Bruno’s BAC level because of the delay in drawing the blood. At various points throughout the reconvened hearing, Bruno’s counsel objected that his client had not received proper notice that the DMV intended to pursue a one-year license suspension based upon Bruno’s refusal to submit to chemical testing. Instead, according to Bruno’s counsel, Bruno had only received notice of a four-month suspension resulting from driving with a BAC of 0.08 percent or more. The hearing officer offered to continue the refusal hearing and send a new notice to Bruno specifying that his refusal to submit to testing was the basis for his license suspension. Alternatively, the officer offered Bruno the option of waiving notice and proceeding with the refusal hearing.
Although Bruno’s counsel stated he was “not waiving notice, ” he nevertheless proceeded with the hearing, addressed “refusal” issues in his questioning, and called Bruno to testify. Bruno testified he was told at the time he was arrested that he had a choice between a blood and breath test. Shortly after he arrived at the hospital, he was again informed he had a choice of tests. According to Bruno, he picked the breath test. Bruno testified that, after another hour or so passed, he was told the breath test was unavailable and that he would have to take a blood test. He claimed the officer raised his voice after he expressed confusion. Bruno further testified that he never refused to take a blood test but instead asked the officer to note in his report that the officer was refusing to allow him to take a breath test. He claimed he allowed his blood to be drawn voluntarily.
The hearing officer upheld the suspension of Bruno’s license for one year in a written decision dated December 4, 2008. The sole basis for the decision was Bruno’s refusal to submit to chemical testing. The decision did not address Bruno’s BAC level. On the issue of whether Bruno refused to submit to a chemical test, the hearing officer wrote: “[Bruno] contends: He had agreed to take a breath test, but only the blood test was available. [Bruno] stated he did not refuse to take the blood test. [¶] Determination: Officer Bingham’s testimony is more credible and contradicts the contention. Officer Bingham testified only the blood test was available and that [Bruno] refused the blood test. Although [Bruno] allowed the blood technician to draw blood, he verbally refused to the arresting officer.” On the issue of whether Bruno had notice of the basis for the license suspension, the hearing officer found that Bruno had waived notice by electing to proceed with the hearing.
Bruno filed a petition for a writ of administrative mandate in the trial court seeking to set aside the DMV’s order suspending his driving privileges for one year. He claimed that he had inadequate notice a refusal hearing would be held, that the arresting officer should have given him a breath test, and that the evidence showed he did not refuse to give blood. The trial court rejected his contentions and denied the writ petition. The trial court held that the evidence supported the hearing officer’s conclusion that Bruno refused the blood draw. The court also rejected Bruno’s objection to the lack of notice, stating that “[Bruno] chose to proceed on the basis of the notice given.”
Although Bruno sued the director of the DMV, and the director is nominally the respondent in this appeal, we shall refer to the respondent herein as the DMV.
There is no indication in the record that Bruno sought a statement of decision from the trial court. After judgment was entered for the DMV, Bruno filed this appeal. After filing his notice of appeal, he sought a writ of supersedeas staying the suspension of his license during the pendency of his appeal. The DMV filed a notice indicating it did not oppose the issuance of a stay. This court granted the unopposed supersedeas petition and stayed enforcement of the DMV order suspending Bruno’s driver’s license pending consideration of this appeal.
Discussion
On appeal, Bruno raises three distinct challenges to the decision upholding the suspension of his license for refusing to submit to a chemical test. First, he contends the finding that he refused to submit to a chemical test is not supported by substantial evidence. Second, he argues the evidence is insufficient to support a finding that his choice was limited to a blood test. Third, he claims that his due process rights were violated because he received no prior notice that the DMV sought to suspend his license for one year based on his refusal to submit to chemical testing. We address these contentions in turn after first discussing the standard that guides our review of the trial court’s decision.
A. Standard of review
“In ruling on a petition for writ of mandate following a DMV suspension order, the ‘trial court is required to determine, based on its independent judgment, “ ‘whether the weight of the evidence supported the administrative decision.’ ” [Citation.]’ [Citations.] ‘In making that determination, the trial court had to “weigh the evidence and make its own determination as to whether the administrative findings [were] sustained.” [Citation.]’ [Citation.] ‘In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.’ [Citation.]” (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 81-82, fn. omitted (Garcia).)
Because Bruno waived his right to request a statement of decision pursuant to Code of Civil Procedure section 632, we will assume the trial court found every fact essential to support its judgment. (Noguchi v. Civil Service Com. (1986) 187 Cal.App.3d 1521, 1538; Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 495.) “On appeal, we ‘need only review the record to determine whether the trial court’s findings are supported by substantial evidence.’ [Citation.] ‘ “We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]” ’ [Citation.]” (Lake v. Reed (1997) 16 Cal.4th 448, 457.) We review issues of law de novo. (Garcia, supra, 185 Cal.App.4th at p. 82.)
B. Refusal to submit to chemical testing
Bruno’s driver’s license was required to be suspended by the DMV if a preponderance of the evidence showed (1) the arresting officer had reasonable cause to believe Bruno was driving under the influence of alcohol in violation of section 23152, (2) Bruno was lawfully placed under arrest, (3) Bruno was told his driving privilege would be suspended or revoked if he refused to take or complete a chemical test, and (4) Bruno refused or failed to complete a chemical test after being requested to do so by the arresting officer. (See § 13353, subd. (d).) Bruno challenges the finding that he refused to take a chemical test, arguing that officer Bingham’s testimony was not credible. Alternatively, he contends that even if Bingham’s testimony was credible, any perceived refusal should be excused as the product of confusion induced by the officer. As explained below, we reject Bruno’s assertions and conclude that substantial evidence supports the trial court’s implied findings.
Under California’s implied consent law, a person who is lawfully arrested for DUI is deemed to have consented to undergo a chemical test to determine blood alcohol content. (§ 23612, subd. (a)(1)(A).) An arresting officer must inform the driver that he or she has a choice of a blood or breath test and must also inform the driver that the failure to submit to or complete the test will result in a suspension of driving privileges, among other sanctions. (Ibid.) If one of the two choices of test is unavailable, the person must submit to the remaining test. (§ 23612, subd. (d)(2).) If both tests are unavailable, the person must submit to a urine test. (Ibid.) Further, if the person arrested for DUI is first transported to a medical facility for treatment and it is not feasible to administer a particular test at the facility, the person has the choice of those tests that are available. (§ 23612, subd. (a)(3).) In such a circumstance, the arresting officer must advise the person that his or her choice is limited to those tests that are available. (Ibid.)
“The question whether a driver ‘refused’ a test within the meaning of the [implied consent] statute is a question of fact. [Citation.]” (Cahall v. Department of Motor Vehicles, supra, 16 Cal.App.3d at p. 497.) “To comply with the law, a ‘driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.’ [Citation.]” (Garcia, supra, 185 Cal.App.4th at p. 82.) “In determining whether an arrested driver’s conduct amounts to a refusal to submit a test, the court looks not to the state of mind of the arrested driver, but to the “fair meaning to be given [the driver’s] response to the demand he submit to a chemical test.” [Citations.]’ [Citation.]” (Id. at pp. 82-83.)
It is well settled that “[a] conditional consent to a chemical test constitutes a refusal to submit within the meaning of section 13353. [Citations.]” (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1518.) Further, a person who refuses a chemical test but nonetheless submits to a test “under protest” and without offering physical resistance will nonetheless be deemed to have refused to submit. (See Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1161-1162.)
In Payne v. Department of Motor Vehicles, supra, 235 Cal.App.3d at p. 1518, the driver initially refused to submit to any test. He later agreed to submit to a blood test only if administered by his personal physician. The driver eventually submitted to a test without physical resistance, but under protest. The court held that Payne’s “conduct amounted to a refusal to submit to a chemical test within the meaning of section 13353.” (Id. at p. 1520.) “The fact that Payne eventually submitted without physically resisting [was] of no significance. [Citations.] ‘It is the initial refusal which forms the basis for suspension of the driver’s license under section 13353.’ [Citation.]” (Id. at p. 1519.)
The driver in Barrie v. Alexis, supra, 151 Cal.App.3d at p. 1160, was arrested for driving while intoxicated and refused to take any chemical test. She was transported to a hospital where a blood sample was nonetheless taken. (Id. at p. 1161.) Although she offered no physical resistance, the driver proclaimed she was taking the test under protest. The court concluded that her response was an unequivocal refusal to submit to a test that left no room for construction and constituted a valid basis for suspending her driving privilege. (Ibid.)
Here, Bruno gave an unequivocally negative response to officer Bingham’s offer of a blood draw, which was the only test then available. He insisted on taking a breath test, which was unavailable, and wanted the record to reflect that he refused the blood test. Such a refusal is a valid basis for suspending Bruno’s driver’s license. (Barrie v. Alexis, supra, 151 Cal.App.3d at p. 1161.) It is immaterial that Bruno ultimately allowed the blood sample to be drawn and that he offered no physical resistance to the test. (Payne v. Department of Motor Vehicles, supra, 235 Cal.App.3d at p. 1520.) As one appellate court has stated, “one offer plus one rejection equals one refusal; and, one suspension.” (Dunlap v. Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 283.)
Bruno argues that “it defies all rational logic” that he would refuse a chemical test after agreeing to take one and being admonished that his license would be suspended if he refused. However, in assessing whether a driver refused a test, there is no requirement “that a refusal of the test be ‘intelligent’ in order to trigger the sanction of suspension of the driver’s license.” (Maxsted v. Department of Motor Vehicles (1971) 14 Cal.App.3d 982, 987.) We may not disregard Bruno’s refusal simply because it was unwise or not in his best interest.
Bruno argues that this court should discount the CHP officer’s testimony as not credible. He misperceives our role as a reviewing court. Determining the credibility of the witnesses is the province of the trial court. (Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176, 1183-1184.) On appeal, we will not disturb the trial court’s credibility determinations unless the court’s findings are not supported by substantial evidence. (Id. at p. 1184.)
The CHP officer’s testimony constitutes substantial evidence that Bruno refused to offer his unequivocal and unconditional consent to undergo a chemical test. The officer’s testimony is supported by documentation prepared at or around the time of Bruno’s arrest, such as the DMV form suspending Bruno’s license (DMV form DS 367), the arrest report, the traffic collision report, and the blood test consent form, which Bruno refused to sign. The officer consistently reported in each of these documents that Bruno refused to offer his consent to having his blood drawn.
Bruno nonetheless contends that the credibility determinations of both the DMV hearing officer and the trial court should be disregarded because the determinations fail to cite specific evidence of the witnesses’ demeanor or attitude that supports the credibility determination. Bruno relies on Government Code section 11425.50, subdivision (b), which provides in relevant part that if the factual basis for an administrative decision rests “substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.”
Bruno’s reliance on Government Code section 11425.50 is mistaken and belated. The weight to be given the administrative hearing officer’s credibility determinations is an issue for the trial court, which must afford “great weight” to credibility determinations of the administrative agency even though it ultimately conducts an independent review of the record. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 819.) The trial court is free to disregard the administrative agency’s credibility determinations and make its own determinations about a witness’s credibility. (Roze v. Department of Motor Vehicles, supra, 141 Cal.App.4th at p. 1184.) We review the trial court’s decision, not the decision of the administrative hearing officer, and Government Code section 11425.50 by its plain terms does not apply to credibility determinations made by a trial court exercising independent review of the administrative record. Indeed, the trial court is in no position to rest its credibility determinations upon observed witness demeanor or attitude. Bruno’s argument about compliance with Government Code section 11425.50 should have been raised, if at all, in the trial court. There is no indication in the record on appeal that he did so. Accordingly, any argument that the trial court should have disregarded the administrative hearing officer’s credibility determinations in exercising its independent review is waived on appeal. (See In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 912 [issues raised for first time on appeal generally waived].)
Bruno further argues that, even if officer Bingham’s testimony were credible, the only fair and objective interpretation of Bruno’s statements and actions was that any perceived refusal was the result of confusion induced by the officer. We disagree.
As a general matter, officer-induced confusion may excuse a driver’s refusal to take a chemical test. (Webb v. Miller (1986) 187 Cal.App.3d 619, 626.) “It has been recognized that such ground may arise due to the ‘juxtaposition of the implied consent warnings (no right to refuse a test and no right to consult with or to have an attorney present during its administration) with the Miranda admonition” advising the driver of the right to remain silent and have an attorney present during questioning. (Ibid.) If a driver who has been given Miranda warnings expresses confusion by asserting his right to an attorney, it is incumbent upon the arresting officer to explain that the right to an attorney does not apply to the chemical tests required under the implied consent law. (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658.) “The question of officer-induced confusion is one of fact. [Citations.]” (Ibid.) The mere insistence on an attorney does not establish officer-induced confusion. (McGue v. Sillas (1978) 82 Cal.App.3d 799, 807.) “In determining whether an arrestee’s refusal is the result of confusion, the crucial factor is not the state of the arrestee’s mind; it is the fair meaning to be given his response to the demand that he submit to the chemical test. [Citation.]” (Ibid.)
Miranda v. Arizona (1966) 384 U.S. 436.
In this case, the trial court impliedly found that Bruno’s refusal was not the result of officer-induced confusion. That finding is supported by substantial evidence in the record. After Bruno refused to consent to a blood test and claimed to have requested an attorney, the CHP officer read verbatim from DMV form DS 367, which provides in relevant part, “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.” Bruno admitted that he was told he was not entitled to have an attorney present during the testing. No more was required of the officer. (See McGue v. Sillas, supra, 82 Cal.App.3d at p. 804.) Bruno’s mere request for an attorney does not support a finding of officer-induced confusion.
As an additional ground for claiming officer-induced confusion, Bruno asserts that his actions were consistent with being confused about conflicting statements the officer made about the available tests. This claim, too, lacks merit. The CHP officer correctly explained that the circumstances compelled seeking a blood sample and requested that Bruno provide one. When Bruno refused, the officer read him the admonishment verbatim from the DMV DS 367 form as completed by the officer, which states: “Since you need medical treatment, your choice is limited to blood test(s), the only test(s) available at San Mateo County General.” After hearing the admonishment, Bruno again refused. There was simply no objective reason for Bruno to be confused after being told twice that only a blood draw was available.
Nonetheless, Bruno argues that “the only fair meaning” to be given to his actions is that he was confused about having his choice of tests taken away from him. While this might be one reasonable inference to be drawn from the facts, it is not the only reasonable inference the evidence supports. The evidence also supports an inference that Bruno received a clear admonition that he had no choice but to take a blood test and that he chose to be obtuse and uncooperative in the hope of delaying the test or frustrating the timely assessment of his blood alcohol level. Because we must accept all reasonable inferences that support the trial court’s implied findings (see Lake v. Reed, supra, 16 Cal.4th at p. 457), we conclude that substantial evidence supports the implied finding that Bruno’s refusal was not the result of officer-induced confusion.
C. Blood test as the only option
Bruno next argues the evidence is insufficient to demonstrate that officer Bingham could not have complied with Bruno’s asserted right to choose between a blood or breath test. He claims the trial court neglected to make an express finding regarding this key issue.
Bruno’s argument that the trial court failed to make an express finding lacks merit. Because he waived his right to request a statement of decision, we assume the trial court found every fact essential to support its judgment. (Cahall v. Department of Motor Vehicles, supra, 16 Cal.App.3d at p. 495.)
The evidence amply supports the court’s implied finding that Bruno’s choice was limited to a blood test. The officer was informed that the only test available at the hospital was a blood test. There is no evidence to the contrary to suggest a breath test could be performed at the hospital. The officer had no obligation to provide an unavailable test. (See Smith v. Department of Motor Vehicles (1986) 179 Cal.App.3d 368, 374 [arrestee may not demand a test not feasible or available].)
Further, to the extent Bruno argues that the officer should have waited to administer the test until after Bruno was medically cleared, or should have inquired about whether nearby police stations had breath test machines, the contention is not well taken. A driver may not place conditions on his chemical test consent; conditional consent constitutes a refusal. (Webb v. Miller, supra, 187 Cal.App.3d at p. 626.) Demanding to take a test that is not feasible or available constitutes a conditional consent and amounts to a refusal. Moreover, “ ‘[t]he purpose of the statute is to take the test as soon as possible after arrest and discover the suspect’s blood-alcohol content at the time he was arrested....’ ” (Garcia, supra, 185 Cal.App.4th at p. 85, italics added.) When a driver gives conditional consent to take a test that is not presently available, the driver frustrates the purpose of the statute. (See Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 298 [officer had implied authority to limit arrestee’s testing choices even though otherwise unavailable blood test could have been performed at nearby hospital].)
Because the record supports a finding that Bruno was properly afforded the only available chemical test option at the hospital where he was treated, he has failed to demonstrate error justifying reversal.
D. Lack of notice
Lastly, Bruno contends the suspension order must be reversed because he received inadequate notice that the suspension was for one year and was premised on a refusal to submit to chemical testing. It is undisputed that the written notice was limited to a four-month suspension based on a claim that Bruno’s BAC was 0.08 percent or more at the time he was driving. As we discuss, Bruno’s argument fails because he waived any lack of notice by proceeding with the hearing and fully litigating the refusal issue.
A party may waive defective notice and proceed based on the notice given. (See Burke v. Baske (1981) 125 Cal.App.3d 38, 46; In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 779.) The administrative record supports the trial court’s finding that Bruno’s actions constituted a waiver of the defective notice.
At the initial hearing before the DMV hearing officer, Bruno’s counsel objected at the outset when he was informed the DMV intended to prove Bruno had refused a chemical test, but the nature of his objection was unclear. He did not object to the lack of notice or seek a continuance of the hearing. Instead, he proceeded to question officer Bingham extensively about the issue of Bruno’s asserted refusal to consent to a chemical test. At the conclusion of the first day of the hearing, Bruno’s counsel again interposed an objection, but it appeared he was merely objecting to the fact that the hearing would not address the issue of whether Bruno had been driving with a BAC level of 0.08 percent or more-an issue his expert was prepared to address. Again, he did not object to the lack of notice or complain that it was improper to address the issue of Bruno’s refusal to consent to a test. It was at Bruno’s counsel’s request that the hearing was continued in order to allow his expert to testify.
When asked whether he would stipulate to any of the issues the DMV had the burden to prove, Bruno’s counsel responded: “I’m not stipulating to any of the issues and I’m objecting to the restriction of, uh, the third issue which is whether or not he refused. Uh, from my perspective my client did give the blood test. There is a sam-, a blood sample in this test that was not a forced blood sample. He voluntarily submitted to it and so, uh, from my perspective [unintelligible] present evidence and I think the department should, uh, be held to its burden, uh, to prove that Mr. Bruno was driving with.08 or more, uh, at the time, uh, of the, uh, incident.”
When the hearing reconvened 45 days later, Bruno’s counsel objected multiple times to the lack of notice concerning the issues to be addressed at the hearing. Several times, the hearing officer gave Bruno the choice of continuing the hearing or re-noticing the hearing and starting all over again. Each time Bruno’s counsel refused and insisted on proceeding with the hearing. Bruno himself testified at the reconvened hearing and was questioned at length about his asserted refusal to comply with the request to take a blood test.
Under the circumstances, the evidence supports a finding that Bruno waived any objection to the defective notice. Even if he had properly preserved an objection to the lack of notice, Bruno cannot demonstrate any prejudice he suffered that might justify reversing the DMV’s decision. He was advised at the outset that the hearing would focus exclusively on refusal issues. He was given ample opportunity to cross-examine the CHP officer on the refusal issue. Moreover, even though he declined the offer of a re-noticed hearing, he still received a 45-day continuance of the hearing after the DMV rested its case. The delay gave him ample opportunity to prepare for and defend against refusal issues at the reconvened hearing, with full knowledge of the scope of the hearing. Indeed, when the hearing reconvened, Bruno himself testified as to refusal issues. Because Bruno failed to show actual prejudice resulting from the lack of notice, he has failed to demonstrate reversible error, even if he did not waive the notice issue by proceeding with the hearing.
Because we reject Bruno’s claims of error, we need not address his argument that the assertedly “ ‘arbitrary and capricious action’ ” of the DMV justifies an award of attorney fees and costs under Government Code section 800.
Disposition
The judgment is affirmed. The stay previously issued by this court shall be dissolved upon issuance of the remittitur. Respondent DMV shall be entitled to its costs on appeal.
We concur: Pollak, J., Jenkins, J.