Our client was arrested for drunk driving on December 4, 2012.  On January 18, 2013, our law firm successfully defended our client in a DMV license suspension hearing, based upon the arresting officer’s failure to properly give the statutory warnings during his DUI investigation.

According to the arrest report, based upon our client’s alleged unsafe and erratic driving, several motorists called 911 and reported our client as being a probable drunk driver.  An officer for the Seal Beach Police Department was dispatched to the area to investigate a 911 call.  The officer located our client at the intersection of PCH and Seal Beach Blvd.  He observed our client speeding and making unsafe lane changes (repeatedly swerving into the bicycle lane).  The officer pulled our client over and immediately smelled the strong odor of alcohol and noticed the client’s eyes were watery and blood shot.

At the conclusion of the field sobriety tests, the officer concluded our client was undoubtedly under the influence of alcohol and possibly narcotics, and arrested him for DUI.  Our client failed the field sobriety tests miserably; during the heel to toe portion of the field sobriety test, our client took 12 steps out and 9 steps back, and missed contact between his heel and toe on every single step.  During the arrest, the officer found 4 Oxycodone pills in our client’s possession.

After the arrest, the officer contacted the DMV requesting the DMV suspend our client’s driver’s license for a year (365 days), because he refused to provide a blood sample during the investigation.  In the arrest report, the officer wrote, “Once back at the Seal Beach Jail, I advised [the suspect] that he must submit to a blood test, per VC 13353, he replied, “Not doing it, No, I want my attorney.  I attempted to explain to [the suspect] that his choice to refuse the blood draw would result in the blood being drawn by force against his will.  [The suspect] stated that he would not comply.”

Our law firm defended our client at the DMV hearing.  We argued that the officer did not comply with statutes governing blood and breath tests, when the officer failed to admonish our client of the consequences of his refusal to take chemical test. Cal. Vehicle Code §§13353, 23612.

Section 13353, subdivision (a)(1) provides: “If any 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, the department shall do one of the following:

(1) Suspend the person’s privilege to operate a motor vehicle for a period of one year.”

We pointed out to the DMV hearing officer that the police officer did not comply with sections 13353 and 23612 of the California Vehicle Code. We explained to the DMV that before a license may be suspended for a refusal to take a blood or breath test, those sections require the officer, among other things, to advise a driver that their driver’s license will be suspended if they fail to take the required tests. (§§ 13353, subd. (a), 23612, subd. (a)(1)(D); see Decker v. Department of Motor Vehicles (1972) 6 Cal.3d 903, 905-906, 101 Cal.Rptr. 387, 495 P.2d 1307 [proper warning of the consequences of a refusal to take a test is one of the essential elements to suspension of a driver’s license].)

During the hearing, we admitted that once a proper admonition has been given, any refusal, including a conditional refusal, is sufficient to constitute a refusal under section 13353. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1518, 1 Cal.Rptr.2d 528.)

However, we successfully pointed out to the DMV hearing officer that the arresting officer inadequately alleged in the police report, “… I attempted to explain to [the suspect] that his choice to refuse the blood draw would result in the blood being drawn by force against his will.  [The suspect] stated that he would not comply.”

The arresting officer’s request to the DMV that our client’s license be suspended was denied and the pending suspension was completely set aside.  The hearing officer agreed that merely stating the threat of a forced blood draw was insufficient to comply with the statute.  The hearing officer ruled that substantial evidence did not support the officer’s conclusion that our client violated the statute when he refused to submit to the test. The undisputed evidence established that the officer failed to administer the proper admonition.  The hearing officer agreed that without a proper warning regarding the risk of the suspension of his license, our client did not violate California’s implied consent statute.

As a result of the hearing officer’s decision, our client will not lose his right to drive a car within the State of California for a single day.