Filed 3/7/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
EDWARD MUNRO, H043006
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 1-15-CV-282548)
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Respondent.
Before the Department of Motor Vehicles may suspend a driver’s license for a
driver’s refusal to submit to a chemical test to determine the alcohol content of his or her
blood, the driver “shall be told [by the arresting officer] that his or her failure to submit
to ... the required chemical testing will result in ... the suspension of the person’s
privilege to operate a motor vehicle for a period of one year.” (Veh. Code, § 23612,
subd. (a)(1)(D).) The question presented here is whether an arresting officer is relieved
of the statutory duty to provide that admonition when the suspected drunk driver engages
in disruptive behavior during his or her arrest. We in no way intend to condone
disruptive behavior by those arrested on suspicion of driving under the influence of
alcohol. We conclude, however, that the Vehicle Code requires an arresting officer to at
least attempt to provide the required admonition. Because it is undisputed that the officer
who arrested appellant Edward Munro never admonished him about the consequences of
refusing chemical testing, we must reverse the judgment.
I. TRIAL COURT PROCEEDINGS
A. MUNRO’S ARREST
According to police reports in the administrative record, an officer responded to a
report of a midnight single-vehicle collision. The officer saw a Porsche SUV on the edge
of the road moving forward and back a few feet in each direction; one front tire was
missing and the wheel’s rim and brake system were extensively damaged. Munro got out
of the SUV’s driver’s seat and the officer noticed he was “extremely unsteady on his
feet.” When talking to Munro, the officer observed that his breath smelled like alcohol,
his eyes were red, his speech was slurred, and he seemed disoriented. Munro told the
officer he had consumed “ ‘[t]wo drinks, probably.’ ” (A few minutes later Munro
denied having had any alcohol that night.) The officer asked Munro to lean against the
patrol car because it looked like Munro might fall over. Munro refused. The officer
decided to place Munro in handcuffs, and rested him against the hood of his patrol car.
The officer interviewed Munro, who denied being the driver and denied
consuming any alcohol. The officer attempted to conduct a field sobriety test by asking
Munro to follow the tip of his pen with his eyes. Munro responded by closing his eyes.
The officer read Munro the Preliminary Alcohol Screening admonition, and Munro
refused to take the test. About 20 minutes after arriving, the officer arrested Munro on
suspicion that he was driving under the influence of alcohol. (Veh. Code, § 23152,
subd. (a).) Munro told the officer “several times that he would be refusing post-arrest
chemical testing.” The officer told him that he would “sit him in the rear of [the patrol
car] and then read him something about his refusal.” The officer noted in his report, “it
was my intention to read Munro the Chemical Test Refusal Admonition from the APS
form at that time.”
When the officer seated Munro in the back seat of the patrol car, Munro “quickly
pulled his knees toward his chest” and “simultaneously pulled his handcuffed wrists to
the back of his knees in an attempt to bring his hands to the front of his body.” The
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officer pulled Munro out of the car and placed him back in the car with his hands in the
proper position, which the officer accomplished despite Munro “flex[ing] and stiffen[ing]
his entire body” to prevent being returned to the car.
As the officer started to drive Munro to jail, he “saw Munro slide onto his back
and slip the handcuffs from behind his back, under his legs, and to the front of his body.”
Munro then started kicking the rear window of the patrol car while trying to slip his
hands out of the handcuffs. The officer removed Munro from the car again and, with the
help of two other officers, placed Munro into a “WRAP” restraint device. Munro
“violently resisted officers by kicking his legs and attempting to ‘buck’ officers off of
him” as they restrained him. No one was injured during that process.
About 30 to 35 minutes elapsed between the officer responding to the scene and
Munro being restrained. It is undisputed that the officer never read the chemical test
refusal admonition. On the DMV chemical test refusal admonition form, the officer
wrote “unable to read due to combative state of subject.” (Capitalization omitted.)
B. DMV PROCEEDINGS AND PETITION FOR WRIT OF MANDATE
Munro requested an administrative hearing to challenge the DMV’s suspension of
his driver’s license for refusing chemical tests. Munro testified that his behavior that lead
the officer to believe he was drunk stemmed from having hit his head during the accident.
As for his disruptive behavior after being arrested, Munro claimed he felt claustrophobic
in the police car and that the handcuffs were hurting his wrists.
The hearing officer issued a written Notification of Findings and Decision
following the hearing. The hearing officer determined that Munro’s “testimony as to
events is not credible.” Regarding the chemical testing admonition, the hearing officer
reasoned that Munro’s “unruly conduct during the admonition” prevented the officer
from “completing the warning that a refusal would result in a license withdrawal action.”
The hearing officer found that the police officer’s notation on the admonition form
“clearly indicates that the officer intended to give or read the Chemical Test Refusal
3
admonition,” and that Munro’s “behavior prevented the officer from performing his
duties.” The hearing officer concluded that Munro “was uncooperative and combative
toward the officer [such] that the officer decided it was futile to even attempt to give the
admonition.”
Munro challenged the hearing officer’s decision in the trial court by petition for
writ of mandate. The trial court denied the petition by written order after a hearing. The
court found that Munro “knew [the officer] was going to give him information related to
his stated refusal to submit” to chemical testing, and that it was “not incumbent upon [the
officer] to wait until [Munro] calmed down at some other point on the way to county jail
to successfully execute his intended plan to read the admonishment.”
II. DISCUSSION
This appeal is about a single issue: whether Munro’s disruptive behavior relieved
the police officer of his statutory duty to admonish him about the consequences for
refusing to submit to chemical testing. (See Veh. Code, §§ 23612, subd. (a)(1)(D);
13353, subd. (d)(4); all statutory references are to this Code.)
A. STANDARD OF REVIEW
Section 13559, subdivision (a) states that a trial court reviewing a license
suspension may order the DMV to rescind the suspension order if the court “finds that the
department exceeded its constitutional or statutory authority, made an erroneous
interpretation of the law, acted in an arbitrary and capricious manner, or made a
determination which is not supported by the evidence in the record.” “A driver’s license
is a fundamental right for the purpose of selecting the standard of judicial review of an
administrative decision to suspend or revoke such license.” (Berlinghieri v. Department
of Motor Vehicles (1983) 33 Cal.3d 392, 398.) A trial court must exercise its independent
judgment when reviewing the DMV’s decision to suspend a driver’s license. (Bussard v.
Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 863.) On appeal, our review
is generally limited to determining whether substantial evidence supported the trial
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court’s findings. (Ibid.) But when, as here, the appeal turns on a question of statutory
interpretation, we exercise our independent judgment. (Ibid.)
B. IMPLIED CONSENT AND THE REQUIRED ADMONITION
Drivers of vehicles in California are deemed to have consented to chemical testing
to determine the alcohol content of their blood if they are lawfully arrested on suspicion
of driving under the influence of alcohol. (§ 23612, subd. (a)(1)(A).) When a suspected
drunk driver is arrested, the person “shall be told that his or her failure to submit to, or the
failure to complete, the required chemical testing will result in a fine,” possible
imprisonment, and “the suspension of the person’s privilege to operate a motor vehicle
for a period of one year.” (§ 23612, subd. (a)(1)(D).) The implied consent system “was
designed to secure the civil cooperation of all persons privileged to drive in providing
objective scientific evidence of intoxication (or sobriety) when the privilege is being
exercised.” (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653,
662.) The system was “intended to obviate incidents of violence that may be expected
when a recalcitrant inebriate is tested by force as under proper circumstances the police
have a right to do.” (Ibid.)
Section 13353 provides that if “a person refuses the officer’s request to submit to,
or fails to complete, a chemical test,” the DMV shall suspend the person’s “privilege to
operate a motor vehicle for a period of one year.” (§ 13353, subd. (a)(1).) (The
suspension period increases if the person has certain prior convictions or administrative
violations not at issue here (§ 13353, subd. (a)(2), (a)(3)).) The DMV is required to
conduct an administrative review of the record when a license will be suspended, which
encompasses the following issues: “(1) Whether the peace officer had reasonable cause
to believe the person had been driving a motor vehicle [under the influence of alcohol; ¶]
(2) Whether the person was placed under arrest[; ¶] (3) Whether the person refused to
submit to, or did not complete, the test or tests after being requested by a peace
officer[; ¶ and] (4) Whether, except for a person ... who is incapable of refusing, the
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person had been told that his or her driving privilege would be suspended or revoked if he
or she refused to submit to, or did not complete, the test or tests.” (§ 13353, subd. (d)(1)–
(d)(4).) A driver faced with a license suspension may request a hearing to contest the
DMV’s decision (§§ 13353, subd. (e); 13358), and may challenge the results of that
hearing in the trial court by petition for writ of mandate. (§ 13559.)
Courts have consistently required relatively strict compliance with the duty to
admonish suspected drunk drivers about the consequences of refusing chemical testing.
The Supreme Court reversed a license suspension in Decker v. Department of Motor
Vehicles (1972) 6 Cal.3d 903, where a police officer admonished Decker about the
consequences of refusing a chemical test but said merely that Decker’s license “ ‘could
be suspended.’ ” (Id. at p. 905.) The court concluded that the officer’s admonition
“misrepresented the legal significance of a refusal to take a chemical test by implying that
the Department might decide not to suspend Decker’s license in spite of his refusal.”
(Id. at p. 906.) A Court of Appeal reversed a license suspension where there was
evidence the suspected drunk driver could not hear the admonition because it was
drowned out by sound from a police radio. (Thompson v. Department of Motor Vehicles
(1980) 107 Cal.App.3d 354, 358–361.) And another court reduced a one-year license
suspension to a six-month suspension where the officer incorrectly informed the suspect
that his license would be suspended for six months instead of one year. (Daly v.
Department of Motor Vehicles (1986) 187 Cal.App.3d 257, 262 (Daly).)
Courts have upheld license suspensions based on officers’ substantial compliance
with the duty to admonish suspected drunk drivers. In Ormonde v. Department of Motor
Vehicles (1981) 117 Cal.App.3d 889, 892–893, a license suspension was upheld where
the officer initially incorrectly stated that “defendant ‘could’ lose his license if he refused
a test” but then later gave the correct admonition. (Accord Smith v. Department of Motor
Vehicles (1969) 1 Cal.App.3d 499, 502–503 [suspension upheld where proper admonition
was followed later by the statement, “ ‘chances are that you will lose your license’ ”].)
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And in Janusch v. Department of Motor Vehicles (1969) 276 Cal.App.2d 193, 194, 197,
the court affirmed Janusch’s license suspension where he was initially informed his
license “would probably be revoked,” and later was provided the proper admonition.
C. ADMONISHING UNCOOPERATIVE ARRESTEES
Courts have allowed less exacting compliance with the statutory duty to admonish
in cases involving disruptive suspects. In Noli v. Department of Motor Vehicles (1981)
125 Cal.App.3d 446 (Noli), Noli was arrested on suspicion of drunk driving and taken to
a medical center where an officer properly admonished him about the consequences of
refusing chemical testing. (Id. at p. 448.) Noli refused a blood or breath test, but agreed
to a urine test. Noli could not complete the urine test at the medical center because he
was too combative to be let out of handcuffs. He was warned “that the urine test would
have to be given at the jail, but that the blood test and breath test could only be given at
the Medical Center, and if appellant was transported to the jail for the urine test and
failed to complete that test, he would not have another opportunity to take the blood test
or the breath test.” (Id. at pp. 448–449.) Once they arrived at the jail, Noli reported that
he was unable to urinate and no urine sample was ever produced. (Id. at p. 449.) The
Court of Appeal affirmed Noli’s license suspension, reasoning that “section 13353 did
not require the officers to offer appellant another opportunity to choose one of the two
tests he had categorically refused, when it would mean transporting him back to the
Medical Center to do so, particularly when there was little reason to believe he would
submit to either of those tests if the opportunity were renewed.” (Id. at p. 450.) The
court explained that “one who is lawfully under arrest for drunk driving should not be
able to frustrate the procedure contemplated by section 13353 and defeat its purpose by
being combative and uncooperative with the arresting officers.” (Ibid.)
Another case involving a disruptive suspect is Morphew v. Department of Motor
Vehicles (1982) 137 Cal.App.3d 738 (Morphew). Morphew was arrested on suspicion of
drunk driving. En route to the police station, an officer told Morphew he had the choice
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between a blood, breath, or urine test. Once at the station, “the officer attempted three
times” to read the chemical testing admonition. (Id. at p. 740.) The first two times, the
officer read some of the admonition and then Morphew “interrupted the officer by
approaching him and stating that he had passed the sobriety test.” During the third
attempt, Morphew “approached the officer and attempted to strike him with his fist.”
(Ibid.) The officer never reached the portion of the admonition about license suspension.
On appeal from the trial court’s decision that Morphew’s license should be reinstated
based on the officer’s failure to complete the admonition, the Court of Appeal determined
that “it would be inconsistent with the purpose of section 13353 to hold that the arresting
officer should have persisted in his attempt to admonish respondent, regardless of his
interruptions and obstreperous behavior, until respondent was ready to listen.” (Id. at
pp. 741, 743.) The Morphew court reasoned that the trial court’s decision would “allow
the arrestee to control the timing of the blood alcohol test, and thus make the arresting
officer ‘subservient to the caprice of an inebriated and uncooperative arrestee.’ ” (Id. at
p. 743.) The court concluded that Morphew’s license was properly suspended even
though the arresting officer did not complete the admonition “where it was respondent’s
own obstreperous conduct which prevented the officer from completing the admonition.”
(Id. at p. 744.)
D. MUNRO WAS ENTITLED TO AN ADMONITION
Undisputed facts in the record show that the arresting officer here never read
Munro the required admonition. The arresting officer noted in his report that he told
Munro he was going to “read him something about his refusal,” and that it was the
officer’s intention to read the chemical testing admonition. But what was going to be
read was not made known to Munro. The DMV’s argument that Munro somehow “knew
that [the officer] was going to read him his rights about chemical testing” is not supported
by the record. The officer expressly acknowledged on the DMV admonition form that he
did not read the chemical testing admonition, noting: “unable to read due to combative
8
state of subject.” (Capitalization omitted.) And nothing in the record suggests that
Munro continued to be disruptive after he was physically restrained in the WRAP device.
The DMV cites no case, and we have found none, where a court has excused the
absence of an attempt to satisfy the statutory duty to admonish a suspected drunk driver
about the consequences of refusing a chemical test. The DMV relies heavily on
Morphew and Noli, and we agree with the proposition that drunk driving suspects should
not be able to use disruptive conduct to frustrate the chemical testing procedure. The
DMV also correctly notes the Morphew court’s observation that an arresting officer does
not have to wait to admonish a suspect until he or she is ready to listen. (See Morphew,
supra, 137 Cal.App.3d at p. 744.)
We are mindful of Noli’s caveat that we not “exalt form over substance in the
interpretation of the statute and make the arresting officers subservient to the caprice of
an inebriated and uncooperative arrestee. The officers [have] more important things to do
than play games ... .” (Noli, supra, 125 Cal.App.3d at p. 450.) The critical distinction for
our analysis here is that in Noli and Morphew the arresting officers either admonished or
at least attempted to admonish the suspects. In Noli, after a proper admonition the only
issue was whether the officers were required to “offer appellant another opportunity to
choose one of the two tests he had categorically refused.” (Noli, supra,
125 Cal.App.3d at p. 450.) And in Morphew, after the officer attempted to admonish the
suspect three times, the only issue was whether Morphew could evade a license
suspension because his obstreperous conduct prevented the officer from completing the
admonition. (Morphew, at p. 744.) We do not quarrel with those decisions; but there is a
material difference between attempting to admonish an uncooperative suspect and the
invited conclusion here that compliance with a statutorily mandated admonition was
altogether unnecessary because of Munro’s disruptive and combative behavior.
The DMV argues that requiring officers to at least attempt to comply with their
duty to admonish suspected drunk drivers would undermine the purpose of the implied
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consent laws in “ ‘ “obtain[ing] the best evidence of blood alcohol content while ensuring
cooperation of the person arrested.” ’ ” (Quoting Troppman v. Valverde (2007)
40 Cal.4th 1121, 1136.) To the contrary, ensuring that officers properly admonish
suspected drunk drivers serves the purpose of the implied consent laws because a
reminder of the consequences of refusing chemical testing may result in greater
cooperation with an arresting officer.
Several of the DMV’s arguments conflate the separate requirements of
admonishing a suspect in the first instance and determining whether a properly
admonished suspect has refused chemical testing. The DMV contends that our decision
will “reward [Munro’s] combative behavior,” and that Munro is merely attempting to
“take advantage of his own disruptive behavior.” We agree with the DMV that there
appears to be ample evidence in the record to support a finding that Munro refused
chemical testing. But that is a separate issue from the arresting officer’s duty to
admonish Munro about the consequences of his refusal. As another court has observed,
“[p]roper warning of the consequence of refusal is an element essential to the suspension
of a driver’s license.” (Daly, supra, 187 Cal.App.3d at p. 261.)
The DMV appears to contend that we should relieve the officer of his duty to
admonish Munro because blood alcohol levels “dissipate over time, so it is imperative for
arresting officers to take a chemical test of an arrestee’s blood alcohol content as soon as
possible after the arrest.” While certainly true, the DMV offers no persuasive
justification for excusing the requirement that the officer read an admonition that would
take at most a few minutes. The record shows that Munro was incapacitated through the
use of the WRAP device within 30 to 35 minutes after the first officer arrived at the
scene. There was ample time for one of the four responding officers to admonish Munro
about the consequences of refusing chemical testing once he was restrained and no longer
posed any realistic danger to the officers.
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We emphasize that Munro’s conduct was totally unacceptable and created
unnecessary risks for his own safety and that of the officers involved. But the Vehicle
Code is clear that an arresting officer must instruct a suspected drunk driver of the
consequences of refusing chemical testing (§§ 23612, subd. (a)(1)(D); 13353,
subd. (d)(4)), and case law has consistently required arresting officers to at least attempt
to provide that mandatory admonition even to uncooperative suspects. Because it is
undisputed that the officer here made no attempt to admonish Munro, we are compelled
to conclude that the license suspension must be reversed.
III. DISPOSITION
The judgment is reversed. The trial court is directed to enter a new order granting
Munro’s petition. Each party to bear its own costs on appeal.
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____________________________________
Grover, J.
I CONCUR:
____________________________
Premo, Acting P. J.
H043006 - Munro v. Department of Motor Vehicles
BAMATTRE-MANOUKIAN, J., Dissenting
I. INTRODUCTION
After a person is arrested for driving under the influence, the arrestee “shall be
told” pursuant to Vehicle Code section 23612, subdivision (a)(1)(D)1 that the failure to
submit to, or the failure to complete, chemical testing will result in a fine, imprisonment
if the arrest results in a conviction of driving under the influence, and the suspension of
the arrestee’s driving privilege for one year or a revocation for two or three years.
Because the statute provides that the arrestee “shall be” given this advisement (ibid.),
I strongly encourage law enforcement officers to always give the statutory advisement
at the earliest practicable opportunity after ensuring the safety of the arrestee, the officer,
and the public. In this case, the question is whether plaintiff Edward Munro’s driving
privilege may be suspended even though he was not given the statutory advisement due
to his obstreperous physical conduct following his arrest. Because substantial evidence
supports the trial court’s finding that Munro engaged in obstreperous physical conduct
that prevented the officer from giving the advisement at the time and place Munro knew
the advisement would be given, I would conclude that the officer’s failure to give the
advisement did not preclude the suspension of Munro’s license.
I agree with the majority that the advisement set forth in section 23612,
subdivision (a)(1)(D) generally must be given in order to suspend or revoke a person’s
driving privilege. (Ibid. [arrestee “shall be told” about the legal consequences of refusing
to take a chemical test]; Decker v. Department of Motor Vehicles (1972) 6 Cal.3d 903,
904, fn. 1, 905-906 (Decker) [analyzing former § 13353 (currently § 23612)]; Giomi v.
Department of Motor Vehicles (1971) 15 Cal.App.3d 905, 906 [“[p]roper warning of the
consequence of refusal is one of the elements essential to suspension of license under the
1
All further statutory references are to the Vehicle Code.
1
code”]); see § 13353, subd. (d)(4); Troppman v. Valverde (2007) 40 Cal.4th 1121, 1130-
1131, 1139 (Troppman).) I also agree with the majority that an arresting officer must
attempt to provide the advisement, and that, if an officer is prevented from completing
the advisement due to the arrestee’s behavior, then license suspension may still be proper.
I also agree with the majority that, on appeal, we review the trial court’s findings
for substantial evidence. (Lake v. Reed (1997) 16 Cal.4th 448, 457 (Lake).) I disagree,
however, with the majority’s conclusion that there is no substantial evidence that the
officer attempted to give the statutory advisement to Munro. This is not a case where the
officer simply claimed that he was going to advise the arrestee. Rather, after Munro
repeatedly refused post-arrest chemical testing, the officer expressly told Munro that the
officer “would sit [Munro] in the rear of [the] patrol vehicle and then read him something
about his refusal.” Based on this record, I believe there is substantial evidence to support
the trial court’s findings that “[Munro] knew [the officer] was going to give [Munro]
information related to his stated refusal to submit to post arrest chemical testing once [he]
was seated in the back of the patrol car,” and that Munro “engaged in a course of
aggressive and obstructionist conduct that frustrated [the officer’s] ability to read
[Munro] the admonishment at the point in time [the officer] intended to.” The fact that
Munro prevented the officer from reading the statutory advisement at that point by
engaging in obstreperous physical conduct does not negate the attempt by the officer to
give the advisement.
I further agree with the trial court that the officer was not required to “wait until
[Munro] calmed down at some other point on the way to county jail to successfully
execute his intended plan to read the admonishment.” As the appellate court in
Morphew v. Department of Motor Vehicles (1982) 137 Cal.App.3d 738 (Morphew) held,
an officer is not required to persist in attempting to admonish the arrestee, regardless of
the arrestee’s interruptions and obstreperous behavior, until the arrestee is ready to listen.
(Id. at p. 743.) I would affirm the judgment.
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II. FACTUAL AND PROCEDURAL BACKGROUND
The administrative record reflects the following. On April 4, 2014, about
12:40 a.m., a police officer responded to the scene of Munro’s vehicle collision. Based
on the officer’s observation of Munro and conversation with him, the officer believed
Munro was highly intoxicated with alcohol. The officer instructed Munro to walk to the
patrol vehicle and lean against it because Munro was swaying back and forth and unable
to stand in one spot. Munro repeatedly refused to comply.
Munro told the officer that he could not confirm that he was the one who was
driving. He admitted to the officer that he was going to pretend he was not driving even
though they both knew he was driving. Although Munro initially stated that he had
“ ‘[t]wo drinks, probably,’ ” he later stated that he had not consumed any alcohol.
When the officer attempted to conduct a field sobriety test by having Munro
follow the tip of a pen with his eyes, Munro closed his eyes and would not submit to the
test. The officer asked Munro if he was going to cooperate with any of the officer’s tests,
and Munro responded, “ ‘No.’ ” The officer read an admonishment regarding a
preliminary alcohol screening test, and Munro refused to take the test.
The officer placed defendant under arrest for driving while under the influence of
alcohol at 12:59 a.m. During a search incident to arrest, the officer found the vehicle’s
keys in Munro’s jacket pocket.
Munro stated several times to the officer that he would be refusing post-arrest
chemical testing. Significantly, the officer told Munro that the officer “would sit [Munro]
in the rear of [the] patrol vehicle and then read him something about his refusal.”
(Italics added.) It was the officer’s “intention to read Munro the Chemical Test Refusal
Admonition from the . . . form at that time.”
As the officer “was in the process of seating Munro in the rear of [the] patrol
vehicle,” the officer “noticed that Munro quickly pulled his knees toward his chest as he
was in the process of sitting down; he simultaneously pulled his handcuffed wrists to the
3
back of his knees in an attempt to bring his hands to the front of his body.” The officer
ordered Munro to stop what he was doing. Munro did not comply and continued to
attempt to force his hands around his legs and to the front of his body.
The officer pulled Munro out of the vehicle and into a standing position. The
officer ordered Munro to comply with instructions and ordered him back into the vehicle.
Munro “flexed and stiffened his entire body and would not sit in [the] vehicle.” The
officer again ordered Munro to sit down, but Munro refused. The officer “grasped Munro
by the shoulder and chest and pushed him in a downward motion in an attempt to get him
into a seated position. [Munro] continued to resist by flexing and not following [the
officer’s] commands.” After Munro finally agreed to sit in the vehicle, he was told that
“if he were to display any further resistive behavior he would be placed in a restraint
device.”
As the officer pulled away from the curb to transport Munro to jail, the officer
looked over his shoulder and saw Munro “slide onto his back and slip the handcuffs from
behind his back, under his legs, and to the front of his body.” The officer stopped the
vehicle, and Munro began to kick the rear window. The officer also saw Munro “pulling
at the handcuffs in an attempt to slip them off of his wrists.”
The officer pulled Munro out of the vehicle before he could cause any damage.
Two additional officers came to assist. The arresting officer decided to place Munro in a
“Wrap restraint device” for safety purposes. Munro was ordered to kneel on the device,
but he refused. When he was ordered a second time, he responded, “ ‘Nope.’ ” The
arresting officer used a “leg-whip takedown technique” to bring Munro to the ground.
On the ground “Munro violently resisted officers by kicking his legs and attempting to
‘buck’ officers off of him.” A fourth officer arrived. Munro was ultimately placed in the
Wrap restraint device by three or four officers. Munro was transported to jail.
In a written report, the arresting officer stated that, “[d]ue to the circumstances and
the violent resistance of Munro, I was unable to read him the Chemical Test Refusal
4
Admonition.” On a DMV form, the arresting officer similarly stated that he was “unable
to read” the chemical test admonition to Munro due to his “combative state.”
Munro testified at the administrative hearing that he had a glass of wine that night,
and that the unsteadiness observed by the officer was due to Munro hitting his head in the
vehicle accident. He admitted that after he was released from jail and rested for a while,
he “went immediately to [his] attorney’s office” and not to a medical facility. Regarding
his behavior after being placed in the patrol vehicle, Munro testified that the handcuffs
were causing him pain, he was dizzy and disoriented, and he felt claustrophobic. Munro
testified that it was “more comfortable” for him “to wear the wrap.”
Regarding the preliminary alcohol screening test, Munro knew it was “completely
within your rights to refuse to take that test and you normally should” refuse it.
Regarding chemical testing, he testified that he knew “you need to take the test,” and that
“they can force a test if there’s accidents and things involved.” Munro further testified
that his “preference was a blood alcohol test,” and that he “was just bewildered that [he]
wasn’t given the opportunity to take it.”
In a written decision, the hearing officer concluded that Munro’s driving privilege
should be suspended. The hearing officer found that Munro’s “testimony as to events is
not credible.” The hearing officer determined that Munro’s “unruly conduct during the
admonition by [the arresting officer] prevented [the arresting officer] from completing
the warning that a refusal would result in a license withdrawal action.” The hearing
officer specifically found that the arresting officer “intended to give or read the Chemical
Test Refusal admonition to [Munro]” but Munro’s “behavior prevented the officer from
performing his duties and providing the admonition.”
Munro thereafter filed a petition for writ of mandate in the trial court. After a
hearing, the trial court denied the petition, finding that Munro “engaged in a pattern of
intentional uncooperative behavior from the moment [the first officer] contacted him.”
In particular, the court determined that Munro “knew [the officer] was going to give him
5
information related to his stated refusal to submit to post arrest chemical testing once
[Munro] was seated in the back of the patrol car.” At that point, however, Munro
“engaged in a course of aggressive and obstructionist conduct that frustrated [the
officer’s] ability to read [Munro] the admonishment at the point in time [the officer]
intended to.” The court further determined that “[i]t was not incumbent upon [the
officer] to wait until [Munro] calmed down at some other point on the way to county
jail to successfully execute his intended plan to read the admonishment . . . . To hold
otherwise would allow [Munro] to control the timing of the blood alcohol test and
possibly orchestrate delays that would frustrate the timely administration of said test
and the results thereon.”
III. DISCUSSION
Section 23612, the “implied consent” law, deems “motorists who have been
lawfully arrested for driving while under the influence to have consented to chemical
testing.” (Troppman, supra, 40 Cal.4th at p. 1125.) Relevant here, the implied consent
law provides in section 23612, subdivision (a)(1)(D), that a person arrested for driving
while under the influence “shall be told” about the legal consequence of refusing to take
a chemical test. Section 13353 “set[s] forth the consequences[, ]including suspension or
revocation of a driver’s license[,] of a motorist’s refusal to submit to chemical testing.”
(Troppman, supra, at p. 1125, fn. omitted.)
“ ‘In a day when excessive loss of life and property is caused by inebriated
drivers, an imperative need exists for a fair, efficient, and accurate system of detection,
enforcement and, hence, prevention.’ [Citation.]” (Decker, supra, 6 Cal.3d at p. 906.)
The underlying dual legislative purpose of the implied consent law (§ 23612) is
cooperation and deterrence, that is, “ ‘(1) to obtain the best evidence of blood alcohol
content while ensuring cooperation of the person arrested, and (2) to inhibit driving under
the influence.’ [Citation.]” (Troppman, supra, 40 Cal.4th at p. 1136; see id. at pp. 1133-
1134.) In enacting the implied consent law, “the Legislature sought to . . . ‘avoid the
6
possible violence which could erupt if forcible tests were made upon a recalcitrant and
belligerent inebriate’ [citation], while at the same time preserving the state’s strong
interest in obtaining the best evidence of the defendant’s blood alcohol content at the
time of the arrest. Thus, ‘the Legislature devised an additional or alternative method
of compelling a person arrested for drunk driving to submit to a test for intoxication, by
providing that such person will lose his automobile driver’s license for a [specified time]
if he [or she] refuses to submit to a test for intoxication. The effect of this legislation is
to equip peace officers with an instrument of enforcement not involving physical
compulsion.’ [Citation.]” (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d
70, 77 [analyzing former § 13353 (currently § 23612)]; accord, Hughey v. Department of
Motor Vehicles (1991) 235 Cal.App.3d 752, 757 [analyzing former § 23157 (currently
§ 23612) and stating that the purpose of the statutory penalty for refusing chemical
testing “is to provide an incentive for voluntary submission to the chemical test and to
eliminate the potential for violence inherent in forcible testing”].)
“In ruling on an application for a writ of mandate following an order of suspension
or revocation, a trial court is required to determine, based on its independent judgment,
‘ “whether the weight of the evidence supported the administrative decision.” ’
[Citations.] Here, as noted above, the trial court denied the writ. 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.]” ’ [Citations.]” (Lake, supra, 16 Cal.4th at pp. 456-
457; accord, Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 100.) To the extent an
7
appeal involves a question of statutory interpretation, we review the question de novo.
(Freitas v. Shiomoto (2016) 3 Cal.App.5th 294, 300.)
I believe substantial evidence supports the trial court’s findings in this case. The
record reflects that Munro told the arresting officer several times that he would be
refusing post-arrest chemical testing. The officer told Munro that the officer “would sit
[Munro] in the rear of [the] patrol vehicle and then read him something about his
refusal.” It was the officer’s “intention to read Munro the Chemical Test Refusal
Admonition from the . . . form at that time.” Based on this record, substantial evidence
supports the trial court’s finding that Munro “knew [the officer] was going to give him
information related to his stated refusal to submit to post arrest chemical testing once
[Munro] was seated in the back of the patrol car.”
The record further reflects that, as the officer was trying to seat Munro in the
patrol vehicle, Munro attempted to maneuver his arms and legs to bring his handcuffed
hands to the front of his body. The officer ordered Munro to stop what he was doing,
but Munro did not comply. The officer pulled Munro out of the vehicle, ordered him to
comply with instructions, and ordered him back into the vehicle. Munro did not comply
and instead “flexed and stiffened his entire body.” The officer again ordered Munro to
sit down, but Munro again did not comply. The officer grasped Munro and physically
attempted to get him into a seated position. Munro continued to resist physically and did
not follow the officer’s commands. Only after this display of conduct did Munro finally
agree to sit in the vehicle. Based on this record, substantial evidence supports the trial
court’s finding that Munro “engaged in a course of aggressive and obstructionist conduct
that frustrated [the officer’s] ability to read [Munro] the admonishment at the point in
time [the officer] intended to.”
I believe the trial court also properly determined that the officer was not required
to “wait until [Munro] calmed down at some other point on the way to county jail to
successfully execute his intended plan to read the admonishment.” Munro was aware of
8
the officer’s intended plan upon being placed in the patrol vehicle the first time, yet
Munro immediately engaged in conduct that necessitated an immediate response by
the officer, including multiple verbal commands and the repeated application of
physical force, thereby preventing the officer from executing his stated plan to read the
admonishment. In this regard, I find Morphew, supra, 137 Cal.App.3d 738 instructive.
In Morphew, the police officer advised the arrestee on the way to the police
substation that the arrestee had a choice of a blood, breath, or urine test, and that “the
officer would read him something pertaining to the test when they arrived at the station
so that [the arrestee] could make up his mind.” (Morphew, supra, 137 Cal.App.3d at
p. 740.) At the station, the officer attempted three times to read the advisement to the
arrestee. (Id. at p. 740 & fn. 2.) The officer succeeded in reading only one-quarter to
one-half way through each time before being approached and interrupted by the arrestee.
(Id. at p. 740.) The officer instructed the arrestee on each occasion to return to the place
where he had been standing. With the third interruption, the arrestee approached the
officer and attempted to hit the officer. (Ibid.) The arrestee was restrained by two
officers. (Ibid.) The arrestee’s language became “very abusive,” and he said, “ ‘I am
not going to take the fucking test.’ ” (Ibid.) The officer did not reach the portion of the
advisement that explained that the failure to submit to a chemical test would result in a
driver’s license suspension, but the arrestee’s driver’s license was nevertheless
suspended. (Id. at pp. 740, 739.)
The trial court in Morphew determined that the arresting officer had other
opportunities to advise the arrestee, including in the police car on the way to the
substation and at the substation, and that the arrestee’s “ ‘own actions during a portion
of his time at the substation did not preclude the arresting officer’ ” from giving the
advisement “ ‘during a substantial period of time while [the arrestee] was in custody at
the substation.’ ” (Morphew, supra, 137 Cal.App.3d at p. 741.) The trial court concluded
that the suspension of driving privileges was therefore improper. (Ibid.)
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The appellate court disagreed. The appellate court concluded that an officer is not
required “to attempt repeatedly to admonish the person arrested, despite his interruptions
and other uncooperative conduct, until the arrestee is willing to listen.” (Morphew,
supra, 137 Cal.App.3d at p. 742 [analyzing former § 13353, currently § 23612].) The
court explained that the implied consent statute “was enacted to fulfill the need for a fair,
efficient, and accurate system of detection and prevention of drunken driving. [Citation.]
One purpose of [the statute] is to administer one of the prescribed chemical tests as soon
as possible after arrest in order to discover the suspect’s blood alcohol content at the time
he was arrested, since alcohol in the blood system dissipates quickly. ‘ “. . . To be of any
probative value the test must be ‘near’ to the offense in point of time. If it is not taken
promptly after the arrest, it proves nothing.” [Citations.]’ [Citation.]” (Morphew, supra,
at p. 742.)
The appellate court determined it would be “inconsistent” with the purpose of the
statute “to hold that the arresting officer should have persisted in his attempt to admonish
[the arrestee], regardless of his interruptions and obstreperous behavior, until [he] was
ready to listen. To so hold would be to allow the arrestee to control the timing of the
blood alcohol test, and thus make the arresting officer ‘subservient to the caprice of an
inebriated and uncooperative arrestee.’ [Citation.] Nor does the fact that the officer did
not immediately admonish respondent in the police car on the way to the substation alter
our conclusion. The officer was not required to anticipate that [the arrestee] would
become unruly at the substation.” (Morphew, supra, 137 Cal.App.3d at p. 743.)
The appellate court concluded that “a person may not complain of the suspension
of his driver’s license if, by his own actions, he frustrates the admonishment or the
administration of the chemical test.” (Morphew, supra, 137 Cal.App.3d at p. 743.) The
court stated that in the case before it, the arrestee’s license was properly suspended,
“where it was [the arrestee’s] own obstreperous conduct which prevented the officer from
completing the admonition and which led the officer to conclude that the [arrestee] had
10
refused to submit to the test. The officer directs the proceedings under [the statute], and
the inebriated driver, by obstreperous behavior, may subjugate neither the arresting
officer nor the statute to his whims.” (Id. at p. 744.)
Here, the conduct of Munro was equally, if not more, obstreperous than the
arrestee in Morphew. Both arrestees knew in advance that the arresting officer was going
to read them something about chemical testing, and Munro in particular knew that the
reading pertained to his refusal of chemical testing. However, while the arrestee in
Morphew allowed the arresting officer to read a portion of the advisement at the specified
location (the police station), in this case Munro became obstreperous immediately at the
specified time and location that the officer informed Munro he intended to read the
advisement, that is, when Munro was initially placed in the patrol vehicle. Further,
Munro’s obstreperous conduct did not cease in response to a verbal command as in
Morphew, nor did he otherwise cooperate so that the officer could immediately resume
his intended plan as in Morphew. Rather, Munro’s obstreperous conduct continued,
necessitating multiple verbal commands by the officer and the repeated application of
physical force by the officer to gain Munro’s compliance in properly sitting handcuffed
in the patrol vehicle. Although the arresting officer in Morphew was able to give a partial
advisement despite the arrestee’s obstreperous behavior, the result in Morphew and in the
instant case was the same in a significant respect. In both cases, the arrestee’s
obstreperous behavior prevented the officer from giving that portion of the advisement
that explained that the failure to submit to a chemical test would result in a driver’s
license suspension. (Morphew, supra, 137 Cal.App.3d at p. 740.) The facts of the instant
case therefore require the same outcome as in Morphew – the license suspension should
be upheld.
Munro cites Hoberman-Kelly v. Valverde (2013) 213 Cal.App.4th 626 to support
his contention that “belligerence is not enough to excuse an understandable reading of the
required admonition.” In that case, however, the arrestee’s unruly behavior was limited
11
to verbal conduct only, the officer was able to complete the statutory admonition, the
arrestee never refused to submit to a blood test, and “[w]ithout causing any delay, [the
arrestee] in fact cooperatively submitted to the drawing of her blood as she said she
would.” (Id. at p. 633.) None of these facts is present in Munro’s case.
IV. CONCLUSION
I agree with the thoughtful, well-reasoned, and lengthy written decision by the trial
court. The trial court determined that Munro should not be allowed to control the timing
of the admonishment or the chemical testing through the use of “aggressive and
obstructionist conduct.” Based on Munro’s obstreperous physical conduct that
commenced at the exact time and location that he had previously been told by the officer
“something about his refusal” of chemical testing would be read to him, and based on
Munro’s continued obstreperous conduct thereafter, which necessitated multiple verbal
commands by the arresting officer as well as ongoing physical intervention to get Munro
to sit properly in the patrol vehicle while handcuffed, I believe substantial evidence
supports the trial court’s finding that Munro “set out on a course of conduct that
frustrated [the arresting officer’s] ability to admonish [Munro] at a time when [the
officer] intended to do so.” Based on this record, I also believe the trial court properly
determined that the officer was not required to “wait until [Munro] calmed down at some
other point on the way to county jail to successfully execute his plan to read the
admonishment.” The arresting officer was not required to persist with the admonition,
“regardless of [Munro’s physical] interruptions and obstreperous behavior, until [he] was
ready to listen. To so hold would be to allow the arrestee to control the timing of the
blood alcohol test, and thus make the arresting officer ‘subservient to the caprice of an
inebriated and uncooperative arrestee.’ [Citation.]” (Morphew, supra, 137 Cal.App.3d
at p. 743.) The arresting officer “had more important things to do than play games with
[Munro] in his condition.” (Noli v. Department of Motor Vehicles (1981) 125
Cal.App.3d 446, 450.)
12
The statute provides that a person arrested for driving under the influence “shall
be told” about the legal consequences of refusing to take a chemical test. (§ 23612,
subd. (a)(1)(D).) Whether the failure to give the required advisement may nevertheless
result in the suspension of the person’s driving privilege will depend on the particular
facts of the case. Based on my review of the facts of this case, because substantial
evidence supports the trial court’s finding that Munro engaged in obstreperous physical
conduct that prevented the officer from giving the advisement at the time and place
Munro knew the advisement would be given, the officer’s failure to give the advisement
did not preclude the suspension of Munro’s license. I conclude that substantial evidence
supports the judgment.
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___________________________________________
BAMATTRE-MANOUKIAN, J.
Munro v. Department of Motor Vehicles
H043006
Trial Court: Santa Clara County Superior Court
Superior Court No. 1-15-CV-282548
Trial Judge: Hon. Maureen A. Folan
Counsel for Plaintiff/Appellant Thomas E. Deremigio
Edward F. Munro
Counsel for Defendant/Respondent Xavier Becerra
Director of the Department of Motor Attorney General of California
Vehicles Chris A. Knudsen
Senior Assistant Attorney General
Fiel D. Tigno
Supervising Deputy Attorney General
William J. McMahon
Deputy Attorney General
H043006 - Munro v. Department of Motor Vehicles
15