Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS106986, Dzintra Janavs, Judge.
A. William Bartz, Jr., and Carl A. Capozzola for Plaintiff and Appellant Eugene Aurel Muntean.
Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Silvia M. Diaz, Michael E. Whitaker, Martin H. Milas and Bruce Reynolds, Deputy Attorneys General, for Defendant and Respondent.
BIGELOW, J.
Eugene Aurel Muntean appeals from the denial of his petition for administrative mandate challenging the Department of Motor Vehicles’ (DMV) suspension of his driver’s license. After police arrested Muntean for driving under the influence, his driver’s license was suspended because of his reported refusal to submit to a blood alcohol test. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 29, 2006, Palos Verde Estates Police Department Officer Dave Blitz received an advisory from the Redondo Beach Police Department that a reckless driver was approaching Palos Verde Estates. Blitz was near the city limits and saw a car that matched the advisory’s description. The car was travelling over the speed limit and repeatedly struck the center divider curb. Blitz pulled the car over, identified the driver as Muntean, and noticed the smell of alcohol. Blitz asked Muntean to step out of the car. Muntean swayed and held on to the car door as he stood. As Muntean spoke, Blitz again smelled alcohol on him. Blitz asked Muntean a series of investigative questions, but Muntean declined to answer them. He also refused to take any field sobriety tests. Blitz arrested Muntean for driving while under the influence (Veh. Code, § 23152, subd. (a)).
All further statutory references are to the Vehicle Code unless otherwise noted.
Blitz then gave Muntean a chemical test admonition. Blitz explained to Muntean that he had been arrested for drunk driving, and the law and the DMV required that he take a blood-alcohol chemical test. Muntean said nothing. When Blitz asked Muntean if he would take a blood test, Muntean said he “might” take one. Blitz interpreted this response to mean that Muntean might or might not voluntarily submit to a blood test, so he took Muntean to Torrence Memorial Hospital, where he knew hospital personnel would administer a blood test even if he did not consent.
Blitz testified that he pulled the “chemical admonition test out of [his] pocket” and read it to Muntean. Blitz also completed a form indicating that he so admonished Muntean, including in the admonishment the following information: “You are required by state law to submit to a chemical test to determine the alcohol and/or drug content of your blood. Because I believe you are under the influence of alcohol, you have a choice of taking a breath or blood test. If you refuse to submit to, or fail to complete a test, your driving privilege will be suspended for one year or revoked for two or three years.”
At the hospital, a nurse brought out a hospital consent form. Blitz allowed Muntean to read the form for several minutes. Blitz also read the form aloud to Muntean. The portion of the form requiring Muntean’s signature read: “I hereby consent to the withdrawal of a blood sample from my body. I certify that I am not a person who is afflicted with hemophilia or a person who is afflicted with a heart condition and using an anticoagulant.” Blitz told Muntean it would be better if he signed the form so it was not considered a forced blood draw at a Department of Motor Vehicles hearing. Muntean said that he understood the consent form but would not sign it. He offered no explanation for his refusal. The nurse also asked Muntean if he would sign the consent form and waited over five minutes for a response. Muntean did not sign the form. Finally, Blitz told the nurse to proceed. Muntean did not resist, but sat passively while the nurse drew his blood.
At an August 2006 administrative hearing, Muntean testified that he thought he had agreed to take a blood test when he was arrested, and he recalled signing one form at the hospital, which he took to be a consent form.
On August 23, 2006, the DMV issued its determination that cause existed to suspend Muntean’s driving privilege. The hearing officer found that Blitz had reasonable cause to believe that Muntean was driving under the influence; Muntean was lawfully arrested; he was told that his driving privilege would be suspended or revoked if he refused to submit to or complete a chemical test; and he refused to submit to or failed to complete a chemical test after a peace officer requested that he do so. Muntean sought a departmental review of the decision. On September 15, 2006, the DMV again found that the suspension was proper and required, and suspended Muntean’s license until September 1, 2008.
On January 19, 2007, Muntean filed a petition for a writ of administrative mandamus in the superior court, arguing that the implied consent law did not require that he sign a hospital consent form, and that he did not refuse to submit to a chemical test. On August 1, 2007, the trial court entered a judgment denying Muntean’s petition. This timely appeal followed.
DISCUSSION
I. The Trial Court Properly Denied Muntean’s Petition
Muntean argues that his conduct manifested his consent to a chemical test--specifically that he never said he would not take a blood test and he did not physically resist having his blood drawn. Accordingly, he claims, the trial court improperly upheld the suspension of his driver’s license and denied his petition.
We reject this argument.
A. Applicable Legal Principles and Standard of Review
Any person who drives a motor vehicle in California is deemed to consent to a chemical test to determine his or her blood alcohol level, if lawfully arrested for driving under the influence. (§ 23612, subd. (a)(1).) Under section 13353 (hereafter implied consent law), a person who refuses to submit to, or fails to complete, a chemical blood-alcohol test in response to a peace officer’s request is deemed to have withdrawn his implied consent, and faces the summary suspension of his driver’s license. (§ 13353, subd. (a); Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757.) To comply with the implied consent law, “the driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.” (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270 (Carrey).)
The trial court used its independent judgment to review the DMV’s suspension of Muntean’s license, and determined the weight of the evidence supported the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457 (Lake).) On appeal, we draw all legitimate and reasonable inferences in favor of the trial court’s decision and will not overturn the trial court’s factual findings unless the evidence before the trial court was insufficient as a matter of law to sustain those findings. (Ibid; Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1568.) However, we are not bound by the trial court’s determination if the facts are undisputed and the issue involves the proper application of a statute or administrative regulation. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517 (Payne).)
B. Muntean’s Conduct Was Properly Deemed a Refusal to Submit to a Test
At no point did Muntean manifest the consent required by law. Instead, Muntean refused to speak at all when asked if he would take a breath test, and said only that he “might” take a blood test.
The trial court impliedly found not credible Muntean’s testimony that he said “okay” to a blood test, and that he believed that he had in fact signed the hospital consent form. We are bound by the trial court’s factual findings. (Lake, supra, 16 Cal.4th at pp. 456-457.)
At the hospital, Muntean did not respond to several requests that he consent to a blood test. This alone -- Muntean’s silence in the face of a request to take a blood test --can be considered a refusal. (See Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299 [silence in the face of repeated officer requests that driver submit to chemical test may be deemed refusal].)
At most, Muntean’s conduct was equivocal. And although Muntean contends that his physical compliance demonstrated his consent to the blood test, California courts have repeatedly rejected the argument that a driver who refuses to agree to a chemical test may show the consent required by law by not physically resisting the test. The idea that unless a driver physically resists a test he has not withdrawn his implied consent is inconsistent with the purpose of section 13353, which “specifically seeks to obviate incidents of violence that might be expected when a recalcitrant inebriate is subjected to a chemical test by force[.] [Citations.]” (Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1162 (Barrie); Payne, supra, 235 Cal.App.3d at p. 1519.)
For example, in Barrie, the arrested driver would not agree to take a chemical test, but she allowed blood to be drawn while stating that she was taking the test under protest. (Barrie, supra, 151 Cal.App.3d at p. 1160.) The court held that the driver’s actions were properly deemed a refusal to submit to a test under the implied consent law. (Id. at pp. 1161-1162.) Similarly, in Payne, the driver agreed to take blood test, but only if it was administered by his personal physician. (Payne, supra, 235 Cal.App.3d at p. 1517.) Eventually the driver complied while his blood was drawn, but he insisted that he was doing so under protest. (Ibid.) The court determined that his conduct constituted a refusal to submit to a chemical test. (Id. at pp. 1518-1519.) Thus, a driver may “refuse” to submit to a chemical test under the implied consent law, even if he or she offers no physical resistance to the test. Further, eventually completing a test does not erase a driver’s earlier refusal. A driver “may not refuse to take a test required by section 13353 and avoid the license suspension mandated by the statute by later agreeing to take a specified test or allowing blood to be taken.” (Barrie, supra,151 Cal.App.3d at p. 1163.)
“In determining whether an arrested driver’s conduct amounts to a refusal to submit to 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.]” (Payne, supra, 235 Cal.App.3d at p. 1518.) Without manifesting clear and unambiguous consent, Muntean’s physical nonresistance and his completion of the test do not negate his other conduct that indicated he was not voluntarily submitting to the test.
C. Muntean’s Refusal to Sign a Hospital Consent Form was Further Evidence of His Refusal to Submit to a Chemical Test
Muntean argues that because the implied consent law does not mandate that an arrested driver sign a written consent form, his refusal to sign the hospital consent form could not be construed as a refusal to submit to a chemical test. While no statute requires that he sign a waiver, this argument is not persuasive and ignores other cases involving a driver’s refusal to sign a hospital written consent form. In Butler v. Department of Motor Vehicles (1981) 115 Cal.App.3d 913 (Butler), the driver declined to take a breath or urine test, agreed to take a blood test, but would not sign a hospital consent form. As a result, the hospital refused to administer the test. (Id. at p. 915.) The driver argued that he had not refused to take the test, but was instead “incapable” of completing it because of the hospital’s rules, and therefore he should have been offered the opportunity to take a different chemical test. (Id. at p. 916.) The Court of Appeal affirmed the trial court’s finding that the driver was not incapable of taking the blood test under the law, noting, “[t]he hospital’s consent-form condition is wholly reasonable: The crux of the form is an acknowledgement that the driver has been advised of his choice of tests and that he is not physically incapable of taking the test. The form represents a sensible precaution from the hospital’s standpoint and imposes no significant additional onus on the driver.” (Ibid.)
In Carrey, the driver chose to take a blood test, but refused to sign a hospital consent form. The driver stated that he was taking an anti-coagulant and therefore did not wish to sign the form, a portion which required him to certify that he did not have a heart condition necessitating the use of anti-coagulants. (Carrey, supra, 183 Cal.App.3d at p. 1268.) However, the driver also refused to take a breath or urine test, and insisted on taking the blood test. (Ibid.) The Court of Appeal held that the DMV had properly suspended the driver’s license, noting: “Carrey’s refusal to sign the medical consent form was the pragmatic equivalent of a refusal to consent to the procedure involved. Carrey’s purported willingness to take the blood test was meaningless in absence of his signature on the form.” (Id. at p. 1271.)
The case at bar differs from Butler and Carrey because the hospital drew blood, even though Muntean did not complete the consent form. However, as discussed above, “ ‘[i]t is the initial refusal which forms the basis for suspension of the driver’s license under section 13353.’ [Citation.] That a blood sample was eventually obtained does not meet the requirements of section 13353.” (Payne, supra, 235 Cal.App.3d at p. 1519.) We note that Muntean does not discuss or distinguish these cases in his briefing on appeal.
These cases establish that a person arrested for driving under the influence may be asked to sign a hospital consent form as part of the administration of a chemical test. Further, the driver’s refusal to sign a hospital consent form is evidence that will support a finding that the driver has refused to submit to a chemical test. In this case, the issue presented to us is not, as Muntean would frame it, whether his refusal to sign the hospital consent form was a per se refusal to submit to a chemical test. Rather, Muntean’s refusal to sign the hospital consent form compounded his failure to clearly and unambiguously agree to take a blood test, and, taken as a whole, his conduct indicated that he did not voluntarily submit to the test.
Substantial evidence supported the trial court’s ruling. We therefore affirm the trial court’s judgment denying Muntean’s petition and upholding the suspension of his driver’s license.
DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
We concur: RUBIN, Acting P. J., FLIER, J.