JEAN EDWARD CARREY, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant
Court of Appeal of California, Second Appellate District, Division Two
July 31, 1986
On October 21, 1984 Carrey, the respondent was arrested for the felony offenses of drunk driving and hit and run. He was advised of the “implied consent” law, Vehicle Code section 13353 (now section 23157). The respondent had requested the blood test and was asked to sign the hospital’s “Consent to Blood Test” form. After reading this form, Carrey refused to sign that form because he was taking some medicines that could affect his bleeding. He was asked to take a breath test or urine test but he continued to insist on a blood test. Subsequently the DMV issued an order of suspension to Carrey. Later the respondent had filed a petition for administrative mandamus in the superior court to which the DMV responded. The superior court issued the writ of mandate forbidding the DMV from suspending Carrey’s driving privilege. This appeal by DMV followed.
Whether respondent’s refusal to sign the medical consent form was the pragmatic equivalent of a refusal to consent to the procedure involved?
Whether the lower court had erred in issuing the writ of mandate forbidding the DMV from suspending the respondent’s driving privilege?
This court held that if the driver refuses to complete one of the three tests, his driving privilege is subject to suspension. There is a strong public policy against the nightmare of drunk driving. Thus, the implied consent law should be liberally construed to effect its purpose, which is to swiftly and accurately identify drunk drivers. Consequently, 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. The determinative factor as to whether there is a refusal is not the arrestee’s subjective state of mind, but rather the objective, fair meaning to be distilled from his words and conduct. In the case at bench, The respondent reviewed the form entitled “Consent to Blood Test” and stated he would not sign it 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. This court held that Section 13353 (e) c.v.c. grants the driver an exemption from the blood test because he is using an anticoagulant, however does not make the driver ineligible if he wishes to take a blood test. Hence, Carrey’s refusal to sign the medical consent form was the pragmatic equivalent of a refusal to consent to the procedure involved.
This court held that at that juncture, it was incumbent upon Carrey to select and submit to one of the remaining chemical tests as had been requested by the arresting officer. The respondent refused to submit to, or …