Filed 3/24/17 (opinion on rehearing)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
BERNICE ESPINOZA,
Plaintiff and Appellant, E064252
v. (Super.Ct.No. CIVDS1412956)
JEAN SHIOMOTO, as Director, etc., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,
Judge. Affirmed.
Bartell & Hensel, Donald J. Bartell and Lara J. Gressley for Plaintiff and
Appellant.
Burglin Law Offices and Paul R. Burglin as Amicus Curiae on behalf of Plaintiff
and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Chris A. Knudsen,
Assistant Attorney General, Gary S. Balekjian, Jennie M. Kelly, Bruce Reynolds and
Brad Parr, Deputy Attorneys General, for Defendant and Respondent.
1
I.
INTRODUCTION
Bernice Espinoza appeals from the denial of her petition for writ of administrative
mandate challenging the one-year suspension of her driver’s license by the Department of
Motor Vehicles (Department). We conclude the record supports the trial court’s implied
findings that (1) Espinoza was lawfully arrested on reasonable cause to believe she had
been driving under the influence of alcohol (DUI), (2) Espinoza refused to submit to and
failed to complete a chemical test as required under the implied consent law, and
(3) Espinoza was afforded a fair hearing before the Department. Therefore, we conclude
the superior court correctly denied Espinoza’s petition, and we affirm the judgment.
II.
FACTS
A. Investigation and Arrest.
At 1:40 a.m., on May 15, 2013, Sergeant Temple of the California Highway Patrol
(CHP) was on routine patrol in the City of Riverside when he observed Espinoza driving
a grey Hyundai and holding a cellular phone to the left side of her face. Espinoza
appeared to be in the middle of a conversation, but when Espinoza saw Temple she
lowered the phone from her ear. Temple activated his emergency lights, and Espinoza
pulled over and stopped approximately two feet from the curb.
Temple approached and contacted Espinoza through her open driver’s side
window. Temple informed Espinoza that he had stopped her for talking on her phone
2
while driving and asked for her driver’s license. Espinoza handed Temple her driver’s
license and apologized for using her cellular phone while driving. While speaking to
Espinoza, Temple smelled a strong odor of an alcoholic beverage emitting from the
interior of Espinoza’s vehicle. Temple asked Espinoza where she was coming from, and
Espinoza responded she had been at a local bar. When Temple asked Espinoza if she had
been drinking, Espinoza said she drank one cocktail but had not had anything else to
drink for two hours. Espinoza’s speech appeared to be normal.
Temple asked Espinoza to step out of her vehicle, but Espinoza declined to
cooperate. Espinoza informed Temple that she was a public defender; that she did not
wish to perform any field sobriety tests or to step out of her vehicle; and citing McNeely,1
a recently decided United States Supreme Court case, Espinoza said she would not
submit to a blood test. When Temple again asked Espinoza to step out of her vehicle,
Espinoza once again declined. Espinoza asked Temple to issue her a citation for the
cellular phone violation (see Veh. Code,2 § 23123, subd. (a)), and said she would call a
friend to come pick her up and take her home.
As Temple requested an additional officer to respond and conduct a DUI
investigation,3 Espinoza stepped out of her vehicle. Espinoza again informed Temple
1 Missouri v. McNeely (2013) 569 U.S. ___ [133 S.Ct. 1552] (McNeely).
2 All additional undesignated statutory references are to the Vehicle Code.
3 Temple testified he was a patrol supervisor in the Riverside area. If Temple was
to stop a motorist who exhibits signs of intoxication, he would routinely call for a deputy
[footnote continued on next page]
3
that she would not perform any field sobriety tests. While standing on the sidewalk,
Espinoza crossed her legs, lost her balance, and stumbled a bit. As Espinoza spoke,
Temple smelled a strong odor of an alcoholic beverage on Espinoza’s breath. Temple
also saw that Espinoza’s eyes were red.
Officer Gonzalez of the CHP then arrived on the scene. Temple told Gonzalez
what he had observed, identified Espinoza, and directed Gonzalez to conduct a DUI
investigation. When Gonzalez walked up to Espinoza, he immediately smelled a strong
odor of an alcoholic beverage on Espinoza’s person and on her breath. Gonzalez also
saw that Espinoza had red, bloodshot, and watery eyes. Espinoza was standing normally,
and she was not swaying or moving about. Gonzalez asked Espinoza if she had been
drinking, and Espinoza replied she had a drink two hours earlier. Espinoza then told
Gonzalez that she was a Riverside County public defender and knew her rights; that she
did not want to have any problems with her work; that Gonzalez should not ask her any
field sobriety questions because she would not answer them and would not perform any
field sobriety tests; and again cited McNeely.
As she did with Temple, Espinoza asked that Gonzalez issue her a citation for the
cellular phone violation and said she would have a friend come and pick her up.
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
to come to the scene and conduct a DUI investigation so he would be free to respond to
calls from other deputies that require a supervisor.
4
Espinoza began to look at her cellular phone, and she fumbled and dropped her keys. As
she spoke, Espinoza repeated herself several times within a short period of time that she
would rather be issued a citation and have a friend come pick her up. Espinoza did not
slur her speech and she was coherent, but she was crying and very emotional the whole
time Gonzalez spoke to her. Gonzalez did not detect any mental impairment while
talking to Espinoza. Gonzalez asked Espinoza to cooperate or he would arrest her for
DUI based on his and Temple’s observations. Espinoza refused to cooperate and said she
could call a supervisor from her office to come pick her up.
Based on his own observations of Espinoza and based on Temple’s observations,
Gonzalez concluded Espinoza had been driving while under the influence of alcohol and
placed her under arrest. Espinoza became emotional and upset. Gonzalez admonished
Espinoza pursuant to the implied consent law that she had to submit to a blood or breath
test. Espinoza told Gonzalez she would take a blood test “pursuant to McNeely.”
Gonzalez told Espinoza that her refusal to submit to a chemical test would result in her
license being suspended for one year. Gonzalez then transported Espinoza to the county
jail.
At the jail, Espinoza refused to submit to a chemical test. Using a DS 367 form
(“AGE 21 AND OLDER OFFICER’S STATEMENT”), Gonzalez advised Espinoza that:
(1) she was suspected of driving under the influence of alcohol and, therefore, had the
right to choose a blood or breath test; (2) refusal to submit to or failure to complete a
blood or breath test would result in her license being suspended for one year or revoked
for two or three years; (3) refusal to submit to or failure to complete a blood or breath test
5
could be used against her in court and would result in a fine and imprisonment if she was
convicted of DUI; (4) she did not have the right to have an attorney present when
deciding whether to submit to a chemical test and when choosing which test; and (5) if
she was incapable of completing one of the two test options, she had to submit to the
other.
Espinoza told Gonzalez she would submit to a blood test, but only if the officer
obtained a “subpoena,” “pursuant to McNeely” from the on-duty judge, compelling her to
submit to a blood test. Gonzalez understood Espinoza to mean she would submit to a
blood test if he first got a warrant. Gonzalez told Espinoza that her willingness to submit
to a blood test with a warrant would be treated as a refusal. Gonzalez also told Espinoza
that, after the decision in McNeely, the policy of the CHP was to obtain warrants for
forced blood draws only in felony DUI cases,4 and that no warrant would be requested in
Espinoza’s case. No warrant was obtained, so no blood test was taken. In addition,
Espinoza did not submit to a breath test. Espinoza was then booked into jail on suspicion
of DUI. Gonzalez personally served Espinoza with notice that her driver’s license was
suspended or revoked, and forwarded the DS 367 form and his DUI investigation report
to the Department.
B. Administrative Per Se Hearing.
4
Gonzalez did not specify whether the policy of only obtaining warrants for
forced blood draws in felony DUI cases was adopted by the CHP statewide or was
merely a decision made by CHP officials locally to govern the geographic area including
Riverside.
6
Espinoza requested an administrative hearing to review the order suspending her
driver’s license, during which Temple and Gonzalez testified to the facts just stated.
Espinoza introduced the expert testimony of Felix D’Amico, a retired sheriff’s sergeant
and drug recognition expert. D’Amico testified he reviewed the reports prepared by the
arresting officer and the mobile video audio recording (MVAR) taken from Gonzalez’s
police vehicle.
D’Amico testified he observed no “bad driving” on Espinoza’s part, although she
was talking on a cellular phone, and that Espinoza had no problem getting out of her
vehicle and walking to the curb. Contrary to Temple’s account, D’Amico testified that
after viewing the MVAR, he concluded Espinoza parked no more than 12 inches from the
curb when she was stopped, and there was nothing wrong with the way she parked.
D’Amico testified Espinoza did not slur her speech, she had no problem answering the
officers’ questions, and she was coherent. With regard to Gonzalez’s testimony that he
observed no mental impairment, D’Amico testified a person cannot be under the
influence of alcohol if he or she is not mentally impaired. D’Amico testified he observed
no mental impairment because Espinoza had no problem answering the officers’
questions and, although she refused to submit to any tests, she did not argue with or show
animosity toward the officers. D’Amico also testified that Espinoza was standing
straight, she was not swaying, she did not have an unsteady gait, and she did not fall
down.
D’Amico testified bloodshot eyes do not necessarily indicate a person is under the
influence of alcohol because there are many reasons why a person’s eyes may become
7
bloodshot. D’Amico testified odor of an alcoholic beverage on a person’s breath merely
indicates the person had alcohol in his or her mouth at some point and does not indicate
the person actually swallowed the alcohol. D’Amico opined that Espinoza was not under
the influence of alcohol and, therefore, Officer Gonzalez did not have probable cause to
lawfully place Espinoza under arrest.
The hearing officer examined D’Amico. D’Amico testified that if a person merely
puts alcohol in his or her mouth but does not swallow it, the alcohol will dissipate
entirely in about 20 minutes. If Espinoza had merely placed alcohol in her mouth but had
not swallowed it, the alcohol would have dissipated during the stop and investigation.
In her notification of findings and decision, the hearing officer sustained the one-
year suspension of Espinoza’s driver’s license. The hearing officer found: (1) Gonzalez
had reasonable cause to believe Espinoza drove under the influence of alcohol;
(2) Espinoza was lawfully arrested; (3) Espinoza was told her driver’s license would be
suspended or revoked if she refused to submit to or failed to complete a chemical test;
and (4) Espinoza refused to submit to or failed to complete a chemical test.
In her findings of fact, the hearing officer concluded Officer Gonzalez had
probable cause to lawfully arrest Espinoza for DUI based on the objective symptoms of
bloodshot and watery eyes and the odor of an alcoholic beverage, and based on the
additional facts that Espinoza refused to perform field sobriety tests and admitted to
consuming alcohol. The hearing officer also concluded Gonzalez correctly admonished
Espinoza under the implied consent law that her license would be suspended or revoked
if she refused to submit to or failed to complete a chemical test. With respect to
8
Espinoza’s refusal to submit to a chemical test, the hearing officer concluded Espinoza’s
conditional submission under McNeely was a refusal. The hearing officer concluded
McNeely only applies to forced blood draws, and Gonzalez did not request a forced blood
draw. In addition, the hearing officer concluded Espinoza “adamantly refused all other
test[s].” The hearing officer found that Temple and Gonzalez were credible witnesses,
and found D’Amico’s testimony to be biased and entitled to little weight.
III.
PROCEEDINGS IN THE SUPERIOR COURT
After being served with the Department’s administrative per se findings and
decision, Espinoza filed a petition for writ of review and administrative mandamus in the
superior court challenging the hearing officer’s decision. In her points and authorities in
support of the petition, Espinoza argued: (1) she was not lawfully arrested because
Gonzalez lacked reasonable cause to believe she was under the influence of alcohol;
(2) she had a right under McNeely to force the police to obtain a warrant before they drew
her blood and, therefore, her conditional consent to a blood test did not amount to a
refusal; and (3) the hearing officer’s complete disregard of D’Amico’s expert testimony
and a number of errors on the face of the hearing officer’s decision showed the decision
was not made in accordance with due process. The Department filed an answer and
opposition to the petition.
At the hearing on Espinoza’s petition, the superior court stated its tentative
decision was to deny the petition. Espinoza’s counsel argued that Espinoza had met her
burden of showing the administrative decision was contrary to the weight of the evidence
9
because it contained numerous factual errors. Counsel also argued the administrative
hearing was a “farce” because the hearing officer completely disregarded Espinoza’s
expert witness for no good reason. The court took the matter under submission after
hearing argument from the Department.
The court subsequently entered an order denying the petition. Neither party
requested a statement of decision (Code Civ. Proc., § 632), so the trial court did not issue
written findings. Thereafter, the trial court entered a judgment in favor of the Department
and against Espinoza. The judgment dissolved the stay on Espinoza’s license suspension
and awarded the Department its costs. The Attorney General served Espinoza with a
notice of entry of the judgment, and Espinoza timely appealed.
IV.
DISCUSSION
A. Applicable Law.
As pertinent here, the implied consent law provides that drivers who are arrested
on suspicion of DUI are deemed to have consented to chemical testing to determine their
blood-alcohol concentration (BAC). (§ 23612, subd. (a)(1)(A); Troppman v. Valverde
(2007) 40 Cal.4th 1121, 1129-1130.)5 Testing for BAC is incidental to a lawful arrest for
DUI and at the direction of the peace officer having reasonable cause to believe the
motorist drove under the influence of alcohol in violation of section 23152 or 23153.
5 Section 13384, subdivisions (a) and (b), requires a motorist to consent in writing
to submit to chemical testing or to a preliminary alcohol screening test, when requested
by a peace officer, as a condition of obtaining or renewing a California driver’s license.
10
(§ 23612, subd. (a)(1)(C).) The motorist must be admonished that failure to submit to or
failure to complete a chemical test will result in a fine, mandatory imprisonment if the
motorist is subsequently convicted of DUI under sections 23152 or 23153, and
suspension of his or her driver’s license. (§ 23612, subd. (a)(1)(D).) A motorist arrested
for driving under the influence of alcohol “has the choice of whether the test shall be of
his or her blood or breath and the officer shall advise the person that he or she has that
choice. If the person arrested either is incapable, or states that he or she is incapable, of
completing the chosen test, the person shall submit to the remaining test.” (Id. subd.
(a)(2)(A).) If both blood and breath tests are unavailable, the motorist must submit to a
urine test. (Id. subds. (a)(1)(A), (a)(2)(A), & (d)(2).)
The administrative per se procedure is the means by which the Department
suspends or revokes a motorist’s driver’s license for driving under the influence or for
refusing to submit to a chemical test under the implied consent law. “The procedure is
called ‘administrative per se’ because it does not impose criminal penalties, but simply
suspends a person’s driver’s license as an administrative matter upon a showing the
person was arrested for driving with a certain blood-alcohol concentration, without
additional evidence of impairment. [Citation.] The express legislative purposes of the
administrative suspension procedure are: (1) to provide safety to persons using the
highways by quickly suspending the driving privilege of persons who drive with
excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a
prompt administrative review of the suspension; and (3) to place no restriction on the
11
ability of a prosecutor to pursue related criminal actions. [Citations.]” (MacDonald v.
Gutierrez (2004) 32 Cal.4th 150, 155.)
“The administrative per se laws were deemed necessary due to the time lag that
often occurs between an arrest and a conviction for driving while intoxicated or with a
prohibited blood-alcohol concentration. During this interim period, arrestees who would
eventually be convicted of an intoxication-related driving offense were permitted to
continue driving and, possibly, endangering the public. Moreover, without administrative
per se laws, persons with extremely high blood-alcohol concentration levels at the time of
arrest could escape license suspension or revocation by plea bargaining to lesser crimes
or entering pretrial diversion. Thus, by providing for an administrative license
suspension prior to the criminal proceeding, the law affords the public added protection.
[Citation.]” (MacDonald v. Gutierrez, supra, 32 Cal.4th at p. 155.)
If a motorist who is arrested for DUI refuses to submit to a chemical test or fails to
complete one, the arresting officer must personally serve the motorist with notice of an
order of suspension or revocation of the motorist’s privilege to operate a motor vehicle
and issue the motorist a 30-day temporary driver’s license. (§§ 13353, subd. (c), 23612,
subds. (e), (f).) The officer must take possession of the motorist’s California driver’s
license and immediately forward to the Department a copy of the completed notice of
suspension or revocation and the driver’s license taken from the motorist. (§ 23612,
subds. (f), (g)(1).) Upon receipt of the notice of suspension or revocation and the
officer’s sworn statement that the officer had reasonable cause to believe the motorist
drove under the influence of alcohol in violation of sections 23152 or 23153, the
12
Department shall suspend the motorist’s driver’s license for one year or revoke the
motorist’s driver’s license for two or three years if the motorist falls within certain DUI
recidivist statutes. (§ 13353, subd. (a)(1)-(3).)
The Department must also conduct a review of the record, including the officer’s
sworn statement, to determine whether the following facts are true: (1) the officer had
reasonable cause to believe the motorist drove under the influence of alcohol in violation
of sections 23152 or 23153; (2) the motorist was lawfully detained; (3) the motorist
refused to submit to or failed to complete a chemical test after being requested by a peace
officer; and (4) the motorist was admonished that his or her driving privilege would be
suspended or revoked if he or she refused to submit to or failed to complete a chemical
test. (§§ 13353, subd. (d), 13557, subds. (a), (b)(1).) If the Department concludes those
facts to be true by a preponderance of the evidence, it shall sustain the license suspension
or revocation. (§ 13557, subd. (b)(1).)
Before or after receiving the results of the administrative review, the motorist may
request an administrative hearing. (Veh. Code, §§ 13557, subd. (e), 13558, subd. (a).)
The only issues to be determined at the administrative hearing are the same four facts at
issue in the Department’s internal review. (Veh. Code, §§ 13557, subd. (b)(1)(A)-(D),
13558, subd. (c)(1).) If the Department again sustains the license suspension or
revocation, the motorist’s 30-day temporary driver’s license shall be revoked and the
suspension or revocation shall become effective five days after the Department gives
notice to the motorist. (Veh. Code, § 13558, subd. (f).) Finally, the Department must
inform the motorist of his or her right to petition the superior court to review the
13
administrative decision. (Veh. Code, §§ 13558, subd. (f), 13559; see Code Civ. Proc.,
§ 1094.5.)
“When a person petitions for a writ of mandate following an order suspending his
or her driver’s license, the court is required to determine, based on the exercise of its
independent judgment, whether the weight of the evidence supports the administrative
decision. [Citations.] In making that determination, the court acts as a trier of fact; it has
the power and responsibility to weigh the evidence and make its own determination about
the credibility of witnesses. [Citation.] The administrative findings, however, are
entitled to ‘a strong presumption of correctness,’ 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.]” (Arthur v. Department
of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1204-1205 (Arthur).)
“On appeal, we review the record to determine whether the court’s findings are
supported by substantial evidence. ‘“‘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. [Citations.]’”’” (Arthur, supra, 184 Cal.App.4th at p. 1205.)
“An appealed judgment is presumed to be correct. We will indulge all
intendments and presumptions to support the judgment on matters as to which the record
is silent and prejudicial error must be affirmatively shown. [Citations.]” (Shaw v.
14
County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) In this case, neither party
requested a statement of decision under Code of Civil Procedure section 632, and the trial
court issued no written findings. The doctrine of implied findings “requires . . . an
appellate court [to] presume that the trial court made all factual findings necessary to
support the judgment for which substantial evidence exists in the record. In other words,
the necessary findings of ultimate facts will be implied and the only issue on appeal is
whether the implied findings are supported by substantial evidence. [Citations.]” (Shaw
v. County of Santa Cruz, at pp. 267-268, fn. omitted; accord, Lee v. Department of Motor
Vehicles (1983) 142 Cal.App.3d 275, 284; 2 Cal. Administrative Mandamus
(Cont.Ed.Bar 3d ed. 2016) Procedures After Trial, § 15.3, pp. 15-3 to 15-4.)
Finally, “we will affirm a judgment correct on any legal basis, even if that basis
was not invoked by the trial court. [Citation.] There can be no prejudicial error from
erroneous logic or reasoning if the decision itself is correct. [Citation.]” (Shaw v. County
of Santa Cruz, supra, 170 Cal.App.4th at p. 269.)
B. The Administrative Record Supports the Superior Court’s Implied
Findings.
As noted, ante, a motorist’s driver’s license may be suspended or revoked only if:
(1) the officer had reasonable cause to believe the motorist drove under the influence of
alcohol in violation of sections 23152 or 23153; (2) the motorist was lawfully detained;
(3) the motorist refused to submit to or failed to complete a chemical test after being
requested by a peace officer, and (4) the motorist was admonished that his or her driving
privilege would be suspended or revoked if he or she refused to submit to or failed to
15
complete a chemical test. (§§ 13557, subd. (b)(1), 13558, subd. (c)(1).) By denying
Espinoza’s petition, the trial court impliedly found those facts to be true. Espinoza only
challenges the trial court’s implied findings that the arresting officer had reasonable cause
to believe she drove under the influence of alcohol, and that Espinoza refused to submit
to a chemical test. We conclude the record contains substantial evidence to support both
findings.
1. Espinoza Was Lawfully Arrested.
Espinoza argues she was not lawfully arrested for purposes of the administrative
per se scheme because the arresting officer lacked reasonable cause to believe Espinoza
drove while under the influence of alcohol. We conclude otherwise.
“‘Probable cause exists when the facts known to the arresting officer would
persuade someone of “reasonable caution” that the person to be arrested has committed a
crime. (Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9 . . . .) “[P]robable cause is
a fluid concept—turning on the assessment of probabilities in particular factual contexts
. . . .” (Illinois v. Gates (1983) 462 U.S. 213, 232 . . . .) It is incapable of precise
definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371 . . . .) “‘The substance of all
the definitions of probable cause is a reasonable ground for belief of guilt,’” and that
belief must be “particularized with respect to the person to be . . . seized.” (Ibid.)’”
(People v. Scott (2011) 52 Cal.4th 452, 474, quoting People v. Celis (2004) 33 Cal.4th
667, 673.)
Similarly, reasonable cause is “‘“defined as that state of facts as would lead a man
of ordinary care and prudence to believe and conscientiously entertain an honest and
16
strong suspicion that the person is guilty of a crime.”’ [Citations.]” (People v. Adair
(2003) 29 Cal.4th 895, 904; accord, Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 133.)
Espinoza was arrested on suspicion of driving under the influence of alcohol in
violation of section 23152. “‘To be “under the influence” within the meaning of the
Vehicle Code, the liquor or liquor and drug(s) must have so far affected the nervous
system, the brain, or muscles as to impair to an appreciable degree the ability to operate a
vehicle in a manner like that of an ordinarily prudent and cautious person in full
possession of his faculties. [Citations.]’” (People v. McNeal (2009) 46 Cal.4th 1183,
1192-1193.) “[E]vidence of actual impairment may include the driver’s appearance, an
odor of alcohol, slurred speech, impaired motor skills, slowed or erratic mental
processing, and impaired memory or judgment. Conversely, absence of these
manifestations may indicate that the driver was not impaired.” (Id. at p. 1198.)
In addition to erratic driving and objective symptoms of intoxication, an
investigating officer may also properly consider the motorist’s refusal to step out of their
vehicle and refusal to submit to field sobriety tests when determining whether there is
probable cause to arrest for DUI. (See Kinlin v. Kline (6th Cir. 2014) 749 F.3d 573, 580-
581; Wilder v. Turner (10th Cir. 2007) 490 F.3d 810, 814-815; Miller v. Harget
(11th Cir. 2006) 458 F.3d 1251, 1260; Byrnes v. City of Manchester (D.N.H. 2012)
17
848 F.Supp.2d 146, 162-163; Marvin v. Department of Motor Vehicles (1984) 161
Cal.App.3d 717, 719-720 (Marvin).)6
We conclude the record contains substantial evidence to support the superior
court’s implied finding that a reasonable officer would conclude there was probable or
reasonable cause to arrest Espinoza for DUI. Espinoza exhibited some of the classic,
objective symptoms of intoxication, including having red, bloodshot, and watery eyes,
and having a strong odor of an alcoholic beverage on her breath. Based on a strong odor
of alcohol on Espinoza’s breath (detectable in the open air during the entire investigation
and not just inside the passenger compartment to Espinoza’s vehicle), the officers were
not required to believe Espinoza when she said she had not had a drink for two hours.
(See People v. Ortiz (1969) 276 Cal.App.2d 1, 6 [“If the police officers were required to
believe every exculpatory story made by a suspect at the time of his [or her] arrest there
would be very few arrests.”].) Although Espinoza appeared to be standing straight and
did not slur her words, she stumbled when standing on the sidewalk and she fumbled and
dropped her keys. Espinoza was emotional and cried the entire time she spoke to
Gonzalez, and she repeated herself numerous times. In addition, when Espinoza pulled
over, she parked approximately two feet away from the curb.
6 The lower federal court opinions cited in the text arose from civil rights lawsuits
under title 42 United States Code section 1983, in which motorists alleged they were
falsely arrested without probable cause to believe they were guilty of DUI, in violation of
their rights under the Fourth Amendment to be free from unreasonable searches and
seizures. (E.g., Kinlin v. Kline, supra, 749 F.3d at p. 575.) The same Fourth Amendment
probable cause standard applies in civil cases arising from an arrest or seizure. (See
Luchtel v. Hagemann (9th Cir. 2010) 623 F.3d 975, 979.)
18
Espinoza’s initial refusal to get out of her vehicle, her complete refusal to answer
field sobriety questions or to perform field sobriety tests, and her repeated requests to be
let off with a citation, were additional factors a reasonable officer could properly consider
when determining whether there was probable cause to believe Espinoza drove while
under the influence of alcohol. Viewing these facts in their totality, we conclude
substantial evidence supports the superior court’s implied finding that Espinoza was
lawfully arrested based on probable cause of DUI.
In arguing Gonzalez did not have probable cause to arrest her, Espinoza places
much weight on Gonzalez’s testimony that, when he spoke to Espinoza, he observed no
mental impairment. That Espinoza appeared coherent and had no problems
communicating with Gonzalez was certainly some evidence that Espinoza was not under
the influence. But because we find substantial evidence to support probable cause to
arrest Espinoza for DUI, we must affirm the trial court’s implied finding. (Arthur, supra,
184 Cal.App.4th at p. 1205.)
Finally, Espinoza points to Gonzalez’s testimony that he treated Espinoza’s refusal
to answer field sobriety questions or to submit to field sobriety tests as consciousness of
guilt, and she argues that was the real reason Gonzalez arrested her. Gonzalez’s
subjective reasons for arresting Espinoza are irrelevant. When determining whether there
was probable cause for an arrest and, therefore, that the arrest was lawful, the sole
question is whether a reasonable officer in the same position would objectively conclude
there was probable cause to arrest. (Maryland v. Pringle (2003) 540 U.S. 366, 371;
Whren v. United States (1996) 517 U.S. 806, 813.) In any event, the courts have held that
19
refusal to submit to field sobriety tests is properly treated as evidence of consciousness of
guilt. (Marvin, supra, 161 Cal.App.3d at p. 720 [investigating officer reasonably
interpreted a strong odor of alcohol and refusal to submit to a field sobriety tests as a
consciousness of guilt]; see People v. Jackson (2010) 189 Cal.App.4th 1461, 1466-1469
[refusal to take standard field sobriety tests, as opposed to a refusal to submit to
preliminary alcohol screening breath test, is admissible evidence of consciousness of
guilt].) Viewing the same facts as Gonzalez, a reasonable officer would conclude there
was probable cause to arrest Espinoza for DUI.
2. Espinoza’s Purported Consent to Submit to a Chemical Test
Constituted a Refusal to Submit.
Espinoza argues she did not refuse to submit to a chemical test. Instead, she
argues she had a right under McNeely to force the police to obtain a warrant before they
could seize her blood for testing and, therefore, her standing on her rights did not
constitute a refusal to submit to a chemical test under sections 13353, subdivision (c), and
23612, subdivisions (e) and (f). Although Espinoza had a constitutional right to be free
from a warrantless, coerced search of her blood incident to her lawful arrest, she had no
such right with respect to a breath test. When Espinoza was told the policy of the CHP
was to obtain warrants for forced blood draws only in felony DUI cases, and that a
warrant would not be obtained in her case, Espinoza was required to choose a breath test.
Espinoza’s purported consent to a blood draw, to the exclusion of a breath test,
constituted refusal to submit to a chemical test.
20
a. Purported consent to a chemical test is normally treated
as a refusal.
“‘The question whether a driver “refused” a test within the meaning of [section
23612] is a question of fact. [Citation.]’ [Citation.] 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.] ‘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 [or she] submit to a chemical test.”
[Citations.]’” (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 82-
83 (Garcia).)
It is well settled that “[a] conditional consent to a chemical test constitutes a
refusal to submit within the meaning of section 13353.” (Payne v. Department of Motor
Vehicles (1991) 235 Cal.App.3d 1514, 1518, citing Webb v. Miller (1986) 187
Cal.App.3d 619, 626, Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870,
873, & Fallis v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 373, 382; accord, Kesler
v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 77 [“respondent’s insistence upon
taking all three [chemical] tests rather than only one constituted, at best, a conditional
consent to a test which, under the authorities, must be deemed to be a refusal to submit to
a test within the meaning of section 13353”]; Carrey v. Department of Motor Vehicles
(1986) 183 Cal.App.3d 1265, 1270-1271 [“A qualified or conditional consent is a
21
refusal.”].)7 Furthermore, a motorist who refuses a chemical test but nonetheless submits
to a test “under protest” but without offering physical resistance will be deemed to have
refused to submit. (Payne v. Department of Motor Vehicles, at p. 1518, citing Barrie v.
Alexis (1984) 151 Cal.App.3d 1157, 1161-1162.)
Espinoza relies on Ross v. Department of Motor Vehicles (1990) 219 Cal.App.3d
398 (Ross) for the proposition “that where a condition is imposed by law, and invoked by
an arrestee, such an invocation does not amount to a refusal to take a chemical test.” In
Ross, the motorist chose a blood test but the technician who arrived to draw his blood
was disheveled. The motorist asked to see the technician’s identification. When the
arresting officer responded the technician was not required to comply with the motorist’s
request, the motorist refused to take the blood test unless the technician first showed his
identification. (Id. at p. 400.) The motorist’s request to see the technician’s identification
was deemed to be a refusal to submit to a chemical test, and his license was suspended
under section 13353. (Ibid.)
7 We note that in the context of chemical testing under an implied consent law,
the concept of “conditional consent” is a misnomer. If consent to submit to a chemical
test must be clear and unambiguous, and failure to clearly and unambiguously manifest
consent constitutes a refusal to submit to a chemical test (Garcia, supra, 185 Cal.App.4th
at p. 82), it follows that placing conditions on submission to a chemical test demonstrates
a lack of consent. (See, e.g., Cash v. Commonwealth (Va. 1996) 466 S.E.2d 736, 738
[“The consent to submit to a blood or breath test, granted when a person operates a motor
vehicle upon the highways, ‘is not a qualified consent and it is not a conditional consent,
and therefore there can be no qualified refusal or conditional refusal to take the test.’
[Citation.]”].) Therefore, although “conditional consent” has become somewhat of a term
of art in these types of cases, we will use the more precise phrase “purported consent” in
this opinion.
22
The Court of Appeal in Ross distinguished cases finding conditional consent to be
a refusal. “[O]ur facts do not involve a condition imposed by the arrestee, unrelated to a
statutory right. The Legislature has specifically provided an arrestee is entitled to have
blood drawn by only licensed, qualified individuals in a medically approved manner.
[Citations.] Therefore, the condition is one imposed by statute and merely invoked by the
arrestee.” (Ross, supra, 219 Cal.App.3d at p. 402.) Because the motorist’s concern was
related to enforcing his right to have his blood drawn by a licensed, qualified technician,
and was not merely a “procedural deficiency,” the Court of Appeal concluded the
motorist’s request was not a refusal and reversed the license suspension. (Id. at pp. 402-
403.)
Ross is distinguishable from our case. There, after being advised of his duties
under the implied consent law, Ross chose to submit to a blood test. (Ross, supra, 219
Cal.App.3d at p. 400.) In other words, Ross actually consented to a blood test. It was
only after the blood technician arrived in a disheveled state that Ross demanded the
technician produce his identification. (Ibid.) Here, Espinoza purported to consent to a
blood test, but she conditioned that consent on the officer obtaining a warrant. That did
not constitute clear and unequivocal consent to a chemical test and, therefore, was not
actual consent. (Garcia, supra, 185 Cal.App.4th at p. 82.) Moreover, Ross has been
limited to its facts. “Ross held only that an arrestee must be given assurance of the
qualifications of the individual drawing blood if hesitation is expressed.” (Payne v.
Department of Motor Vehicles, supra, 235 Cal.App.3d at p. 1519.) We have found no
published decision applying Ross to a motorist’s purported consent to a chemical test on
23
the condition that the officer first obtain a search warrant. As explained, infra, we
conclude Espinoza refused to submit to a chemical test.
b. A motorist who is lawfully arrested for DUI has the right under the
Fourth Amendment to refuse to submit to a warrantless, coerced blood test, but has no
right to refuse to submit to a warrantless breath test.
“In Schmerber [v. California (1966) 384 U.S. 757 (Schmerber)], the defendant
was taken to the hospital following an automobile accident and, against his express
refusal on the advice of counsel, the police directed a physician to draw defendant’s
blood to be tested for the presence of alcohol. (Schmerber, supra, 384 U.S. at pp. 758-
759.) Among other things, the United States Supreme Court in Schmerber addressed
whether the warrantless blood test violated the Fourth Amendment. The high court
concluded that ‘compulsory administration of a blood test’ was a search under the Fourth
Amendment. (384 U.S. at p. 767.) Although ‘there was plainly probable cause . . .’ to
arrest the defendant on suspicion of DUI, the court found that the search could not be
justified as a search incident to arrest because the cases articulating that exception to the
warrant requirement ‘have little applicability with respect to searches involving intrusions
beyond the body’s surface.’ (Id. at pp. 768–769.)
“The court in Schmerber noted that ‘[s]earch warrants are ordinarily required for
searches of dwellings, and, absent an emergency, no less could be required where
intrusions into the human body are concerned.’ (Schmerber, supra, 384 U.S. at p. 770.)
However, the court concluded that the arresting officer ‘might reasonably have believed
that he was confronted with an emergency, in which the delay necessary to obtain a
24
warrant, under the circumstances, threatened “the destruction of evidence,” [citation].’
(Ibid.) The high court acknowledged ‘that the percentage of alcohol in the blood begins
to diminish shortly after drinking stops, as the body functions to eliminate it from the
system,’ and because the defendant had to be rushed to the hospital and the officers had
to investigate the accident scene, it concluded ‘there was no time to seek out a magistrate
and secure a warrant.’ (Id. at pp. 770, 771.) Under those ‘special facts,’ the court held
that the warrantless search was justified. (Id. at p. 771.)” (People v. Harris (2015) 234
Cal.App.4th 671, 683 (Harris).)
As this court noted in Harris, for just over 40 years, California courts have
interpreted Schmerber v. California (1966) 384 U.S. 757 to permit forced, warrantless
blood draws of motorists arrested on suspicion of DUI without any additional showing of
exigent circumstances. (Harris, supra, 234 Cal.App.4th at pp. 702-704.) Without
question, McNeely repudiated that long-standing interpretation.8 (Harris, at p. 703.)
“[I]n McNeely, the defendant refused to take a Breathalyzer test during a DUI
investigation and again when being transported to the police station, in order to measure
his blood-alcohol concentration (BAC), so the arresting officer transported the defendant
to a nearby hospital. (McNeely, supra, 569 U.S. at pp. ___ [133 S.Ct. at pp. 1556-1557].)
At the hospital, the arresting officer read an admonition to the defendant under the
8 The question before this court in Harris was whether a motorist’s freely and
voluntarily given consent to a blood draw, after being admonished pursuant to the
implied consent law, constituted actual consent under the Fourth Amendment. (Harris,
supra, 234 Cal.App.4th at p. 686.) We concluded freely and voluntarily given consent to
a warrantless blood draw satisfies the Fourth Amendment, and that Harris actually
consented to have his blood drawn. (Harris, at pp. 686-692.)
25
Missouri implied consent law, and ‘explained to [the defendant] that under state law
refusal to submit voluntarily to the test would lead to the immediate revocation of his
driver’s license . . . and [his refusal] could be used against him in a future prosecution.
[Citation.]’ (569 U.S. at p. ___ [133 S.Ct. at p. 1557].) The defendant refused to submit
to [a] blood test so the arresting officer directed a laboratory technician to draw a blood
sample. (Id. at p. ___ [133 S.Ct. at p. 1557].) The United States Supreme Court granted
certiorari in McNeely to resolve a split in authority on the question of ‘whether the natural
metabolization of alcohol in the bloodstream presents a per se exigency that justifies an
exception to the Fourth Amendment’s warrant requirement for nonconsensual blood
testing in all drunk-driving cases.’ (Id. at pp. ___, ___ [133 S.Ct. at pp. 1556, 1558].)
“The majority in McNeely held that the natural dissipation of alcohol in the
bloodstream does not create exigent circumstances in every DUI case. (McNeely, supra,
569 U.S. at pp. ___, ___ [133 S.Ct. at pp. 1563, 1568] (maj. opn. of Sotomayor, J.).)
‘In those drunk-driving investigations where police officers can reasonably obtain a
warrant before a blood sample can be drawn without significantly undermining the
efficacy of the search, the Fourth Amendment mandates that they do so. [Citation.]’
(Id. at p. ___ [133 S.Ct. at p. 1561].) Although the court had no ‘doubt that some
circumstances will make obtaining a warrant impractical such that the dissipation of
alcohol from the bloodstream will support an exigency justifying a properly conducted
warrantless blood test,’ the high court held that the state was required to make such a
showing under the totality of the circumstances and on a case-by-case basis. (Id. at
26
pp. ___, ___ [133 S.Ct. at pp. 1561, 1563].)” (Harris, supra, 234 Cal.App.4th at pp. 683-
684.)
After briefing was completed in this case, the United States Supreme Court issued
its decision in Birchfield v. North Dakota (2016) 579 U.S. ___ [136 S.Ct. 2160]
(Birchfield).9 Birchfield involved three consolidated cases. (Id. at p. ___ [136 S.Ct. at
p. 2172].) In the first case, Birchfield accidentally drove his vehicle off the road and was
seen by a state trooper trying unsuccessfully to drive out of a ditch. When the state
trooper approached, he smelled a “strong whiff of alcohol” on Birchfield, saw that
Birchfield had bloodshot and watery eyes, and observed that Birchfield spoke with a slur
and struggled to remain steady on his feet. (Id. at p. ___ [136 S.Ct. at p. 2170].)
Birchfield agreed to take field sobriety tests, but performed poorly on each. Concluding
Birchfield was intoxicated, the state trooper informed Birchfield of his obligation under
North Dakota law to agree to a BAC test. Birchfield consented to a roadside breath test
(a preliminary alcohol screening test), which showed Birchfield had a BAC of 0.254
percent. (Ibid.)
After placing Birchfield under arrest for DUI, the state trooper advised Birchfield
of his obligation under the North Dakota implied consent law to submit to further BAC
testing, and that refusal to submit to a test would result in criminal penalties. (Birchfield,
supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2170].) Birchfield refused to submit to a blood
9We directed the parties to submit supplemental letter briefs addressing
Birchfield. In addition, we granted a request from Paul R. Burglin of Burglin Law
Offices to submit an amicus curiae brief addressing Birchfield.
27
test, and subsequently pleaded guilty to a misdemeanor charge of refusing to submit to a
BAC test. (Id. at pp. ___ [136 S.Ct. at pp. 2170-2171].) Birchfield appealed his
conviction, arguing the Fourth Amendment prohibited the state from criminalizing his
refusal to submit to a blood test. Citing McNeely’s favorable discussion of implied
consent laws, the North Dakota Supreme Court rejected Birchfield’s challenge.
(Birchfield, at p. ___ [136 S.Ct. at p. 2171].)
In the second case, police responded to a report of three apparently intoxicated
men who tried unsuccessfully to pull a boat out of a boat launch but got their truck stuck
in a river. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2171].) When police
officers arrived, a witness identified a man (Bernard) in his underwear as the driver.
Bernard admitted to drinking, but denied that he was the driver and refused to submit to
field sobriety tests. The officers smelled alcohol on Bernard’s breath and saw that his
eyes were bloodshot and watery, so they arrested Bernard for DUI. (Ibid.) At the police
station, the police informed Bernard that his refusal to submit to BAC testing, as required
under the Minnesota implied consent law, was a criminal offense. When asked to submit
to a breath test, Bernard refused. He was charged with refusing to submit to a BAC test,
but the state trial court dismissed the charges, concluding the warrantless breath test
Bernard refused to take was not permitted under the Fourth Amendment. (Birchfield,
at p. ___ [136 S.Ct. at p. 2171].) The Minnesota Supreme Court reversed, concluding a
warrantless breath test is permissible under the Fourth Amendment as a search-incident-
to-arrest. (Birchfield, at p. ___ [136 S.Ct. at p. 2171].)
28
In the third and final case, a police officer saw petitioner Beylund unsuccessfully
turn into a driveway, almost hit a stop sign, and come to a stop while still partly in the
roadway. (Birchfield, supra, 579 U.S. at pp. ___ [136 S.Ct. at pp. 2171-2172].) When
the police officer walked up to Beylund’s vehicle, the officer saw an empty wine glass in
the center console and smelled alcohol. The officer asked Beylund to step out of his
vehicle, and as he did so, Beylund struggled to keep his balance. (Id. at p. ___ [136 S.Ct.
at p. 2172].) The officer arrested Beylund for DUI and transported him to a nearby
hospital. The officer then read Beylund the North Dakota implied consent advisory, and
told Beylund that his refusal to submit to a BAC test was a crime. Beylund submitted to
a blood test, which showed he had a BAC of 0.250 percent. (Ibid.) Beylund’s driver’s
license was suspended for two years after an administrative hearing. (Ibid.) He
challenged that decision, arguing his consent to the blood test was coerced by the
officer’s warning under the implied consent law that refusal to submit to the test was a
crime. The North Dakota Supreme Court rejected the challenge, concluding the penalty
of license suspension for refusing to submit to a blood test was constitutional and that
Beylund’s consent was voluntarily given because the implied consent advisory was not
misleading. (Ibid.)
The United States Supreme Court granted writs of certiorari in those three cases
and consolidated them “in order to decide whether motorists lawfully arrested for drunk
driving may be convicted of a crime or otherwise penalized for refusing to take a
warrantless test measuring the alcohol in their bloodstream.” (Birchfield, supra, 579 U.S.
at p. ___ [136 S.Ct. at p. 2172].) The high court noted that success for the three
29
petitioners depended “on the proposition that the criminal law ordinarily may not compel
a motorist to submit to the taking of a blood sample or to a breath test unless a warrant
authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless
searches comport with the Fourth Amendment, it follows that a State may criminalize the
refusal to comply with a demand to submit to the required testing, just as a State may
make it a crime for a person to obstruct the execution of a valid search warrant.
[Citations.] And by the same token, if such warrantless searches are constitutional, there
is no obstacle under federal law to the admission of the results that they yield in either a
criminal prosecution or a civil or administrative proceeding.” (Id. at pp. ___ [136 S.Ct. at
pp. 2172-2173].)
The Supreme Court in Birchfield noted that McNeely had acknowledged the
existence of exceptions to the warrant requirement such as a search-incident-to-arrest that
apply categorically rather than on a case-by-case basis, but the McNeely court limited its
analysis to the exception that was squarely before it—the exigent circumstances doctrine.
(Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2174], citing McNeely, supra,
569 U.S. at p. ___ [133 S.Ct. at pp. 1558-1559 & fn. 3].) The three petitioners in
Birchfield were searched or informed they had to submit to a search after being placed
under arrest, so the court considered the issue left unaddressed in McNeely, to wit, “how
the search-incident-to-arrest doctrine applies to breath and blood tests incident to such
arrests.” (Birchfield, at p. ___ [136 S.Ct. at p. 2174].) Because the founding era
provided no guidance in determining whether warrantless breath or blood tests incident to
arrest comported with the Fourth Amendment, the court examined “‘“the degree to which
30
[they] intrude[] upon an individuals’ privacy and . . . the degree to which [they are]
needed for the promotion of legitimate governmental interests.”’” (Birchfield, at p. ___
[136 S.Ct. at p. 2176], quoting Riley v. California (2014) 573 U.S. ___, ___ [134 S.Ct.
2473, 2484].)
The Supreme Court found three reasons to reaffirm its conclusion 30 years prior
that “breath tests do not ‘implicat[e] significant privacy concerns.’” (Birchfield, supra,
579 U.S. at pp. ___, ___ [136 S.Ct at pp. 2176, 2178], quoting Skinner v. Railway Labor
Executives’ Assn. (1989) 489 U.S. 602, 626.) First, the physical intrusion of a breath test
is almost negligible because it does not require piercing of the skin and entails minimal
inconvenience. (Birchfield, at p. ___ [136 S.Ct. at p. 2176].) Second, breath tests are
only capable of revealing a person’s BAC, and no sample remains for the police to
possess. A blood sample, in contrast, can be stored and potentially reveal highly personal
information about the person. (Id. at p. ___ [136 S.Ct. at p. 2177].) Finally, the court
concluded participation in a breath test is unlikely to enhance the embarrassment inherent
in an arrest, and the act of blowing into a breathalyzer is not inherently embarrassing and
normally takes place in private. (Ibid.)
In contrast, the court concluded a blood test does implicate significant privacy
concerns. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2178].) Unlike a breath
test, a blood test requires piercing the skin and extracting a part of the body. (Ibid.)
“And while humans exhale air from their lungs many times per minute, humans do not
continually shed blood. It is true, of course, that people voluntarily submit to the taking
of blood samples as part of a physical examination, and the process involves little pain or
31
risk. [Citation.] Nevertheless, for many, the process is not one they relish. It is
significantly more intrusive than blowing into a tube.” (Ibid.) Finally, unlike a breath
test, a blood test provides the police with a sample they may store and potentially test for
many things other than BAC, which may result in anxiety for the person forced to submit
to the blood test. (Ibid.)
As for the governmental need at issue, the court reaffirmed that “[t]he States and
the Federal Government have a ‘paramount interest . . . in preserving the safety of . . .
public highways.’” (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2178], quoting
Mackey v. Montrym (1979) 443 U.S. 1, 17.) Although the number of fatalities and
injuries caused by drunk driving has declined, it remains the leading cause of traffic
fatalities and injuries. (Birchfield, at p. ___ [136 S.Ct. at p. 2178].) The court noted the
states and the federal government had enacted drunk driving and implied consent laws to
reduce those fatalities and injuries. (Id. at p. ___ [136 S.Ct. at p. 2179]; see id. at pp. ___
[136 S.Ct. at pp. 2168-2170].) “The laws at issue in the present cases—which make it a
crime to refuse to submit to a BAC test—are designed to provide an incentive to
cooperate in such cases, and we conclude that they serve a very important function.”
(Id. at p. ___ [136 S.Ct. at p. 2179].)
Because the intrusion of a breath test on a motorist’s privacy is slight, and the
governmental need to test for BAC is great, the Supreme Court concluded a motorist may
be forced to submit to a warrantless breath test incident to being placed under arrest for
DUI. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2184].) The Supreme Court
reached a different conclusion about blood tests. “Blood tests are significantly more
32
intrusive, and their reasonableness must be judged in light of the availability of the less
invasive alternative of a breath test.” (Ibid.) “Because breath tests are significantly less
intrusive than blood tests and in most cases amply serve law enforcement interests, we
conclude that a breath test, but not a blood test, may be administered as a search incident
to a lawful arrest for drunk driving. As in all cases involving reasonable searches
incident to arrest, a warrant is not needed in this situation.” (Id. at p. ___ [136 S.Ct. at
p. 2185].)
The Supreme Court next rejected the state’s argument that warrantless blood tests
incident to arrest are justified based on a motorist’s implied consent. (Birchfield, supra,
579 U.S. at p. ___ [136 S.Ct. at p. 2185].) “It is well established that a search is
reasonable when the subject consents [citation], and that sometimes consent to a search
need not be express but may be fairly inferred from context [citations]. Our prior
opinions have referred approvingly to the general concept of implied-consent laws that
impose civil penalties and evidentiary consequences on motorists who refuse to comply.
[Citations.] Petitioners do not question the constitutionality of those laws, and nothing
we say here should be read to cast doubt on them. [¶] It is another matter, however, for a
State not only to insist upon an intrusive blood test, but also to impose criminal penalties
on the refusal to submit to such a test. There must be a limit to the consequences to
which motorists may be deemed to have consented by virtue of a decision to drive on
public roads.” (Ibid.) Therefore, the court concluded a motorist may not be deemed to
consent to a blood test on pain of criminal prosecution. (Id. at p. ___ [136 S.Ct. at
p. 2186].)
33
Finally, the Supreme Court applied its legal conclusions to the three cases before
it. (Birchfield, supra, 579 U.S. at pp. ___ [136 S.Ct. at pp. 2186-2187].) The court held
Birchfield could not be forced to submit to a warrantless blood test incident to his arrest.
Because the record did not indicate that a breath test would not have satisfied the state’s
interest in testing Birchfield’s BAC, and there were no exigent circumstances to support a
warrantless blood test, the court held Birchfield was threatened with an unlawful search
and reversed his conviction for refusing to submit to a blood test. (Ibid.) In contrast, the
Supreme Court held a warrantless breath test was a permissible search incident to
Bernard’s arrest. “[T]he Fourth Amendment did not require officers to obtain a warrant
prior to demanding the [breath] test, and Bernard had no right to refuse it.” (Ibid., italics
added) Lastly, the court vacated Beylund’s license suspension because the North Dakota
Supreme Court had erroneously concluded the state could compel both blood tests and
breath tests incident to arrest. (Ibid.) The Supreme Court remanded the case for a
determination of whether Beylund’s consent to the blood test was freely and voluntarily
given in light of the inaccuracy of the officer’s advisement. (Ibid. & fn. 9.)
c. Espinoza’s purported consent to a blood test, and her failure to
submit to and complete a breath test, constituted refusal to submit to a chemical test.
The Department argues Espinoza’s failure to submit to a breath test was a
secondary basis for suspending her driver’s license and insists we need not address breath
tests because Espinoza’s refusal to submit to a blood test was a primary and sufficient
basis for the suspension. True, a motorist who refuses to submit to or fails to complete
one form of chemical testing need not be offered an alternative test before the motorist is
34
deemed to have refused chemical testing for purposes of the implied consent law.
(Garcia, supra, 185 Cal.App.4th at pp. 87-89; Hildebrand v. Department of Motor
Vehicles (2007) 152 Cal.App.4th 1562, 1573-1574.) “‘[T]he law of implied consent
mandates that an arrestee is required to submit to and complete one of the three tests upon
their first having been offered to him by an arresting officer. [¶] . . . [¶] . . . It is the
initial refusal which forms the basis for suspension of the driver’s license under Vehicle
Code section 13353. [Citation.] Once the driver refuses to take any one of the three
chemical tests, the law does not require that he later be given one when he decides, for
whatever reason, that he is ready to submit. [Citations.] [¶] . . . Simply 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 . . .; see People v. McHugh (2004) 119
Cal.App.4th 202, 212 . . . .)” (Hildebrand, at p. 1573.)
Prior to issuance of the decision in Birchfield, we would have agreed with the
Department that Espinoza’s refusal to submit to a blood test would have been a sufficient
basis for her license suspension, and we would have had no need to address breath tests.
But for the reasons stated infra, it is unclear whether the high court would approve of a
civil license suspension based solely on a motorist’s refusal to submit to a warrantless
blood test. Therefore, we err on the side of caution and affirm the suspension based on
Espinoza’s refusal to submit to a breath test.
The police could not force Espinoza to submit to a blood test against her will
unless they obtained a warrant or showed there were exigent circumstances that justified
a warrantless search. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2174];
35
McNeely, supra, 569 U.S. at pp. ___, ___, ___ [133 S.Ct. at pp. 1561, 1563, 1568].)
Consequently, we assume without deciding, that Espinoza could refuse to submit to a
warrantless blood test unless the police obtained a warrant, and that, without more, her
refusal to do so could not result in her license being suspended. (See Birchfield,
at pp. ___ [136 S.Ct. at pp. 2185-2186].)
However, as the Supreme Court clearly held in Birchfield, the Fourth Amendment
does not prohibit the police from forcing a motorist to submit to a warrantless breath test
incident to his or her arrest, the motorist has no right to refuse to submit to a breath test or
to condition his or her submission on the police obtaining a warrant, and the motorist’s
refusal to submit to the breath test may be the basis of criminal penalties. (Birchfield,
supra, 579 U.S. at pp. ___, ___ [136 S.Ct. at pp. 2184, 2186].) In light of that clear
holding, we conclude refusal to submit to a breath test incident to arrest may also be the
basis of imposing civil penalties under the implied consent law, including suspension or
revocation of the motorist’s driver’s license.
The Department nonetheless contends Birchfield has no application to this case.
According to the Department, Birchfield only addressed criminal liability for refusing to
submit to a chemical test, something the California implied consent law does not provide
for.10 In addition, the Department contends the high court in Birchfield expressly stated
10 More precisely, test refusal is not a separate criminal offense in California.
(People v. Valencia (2015) 240 Cal.App.4th Supp. 11, 19 [“the Legislature has never
expressly made it a stand-alone criminal offense for a DUI arrestee to refuse to submit to
a chemical test”].) Instead, a motorist’s refusal to submit to or failure to complete a
[footnote continued on next page]
36
it was not holding that civil penalties could not be imposed if a motorist refuses to submit
to a chemical test.
True, the court in Birchfield stated its “prior opinions have referred approvingly to
the general concept of implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply,” and that “nothing we say here should
be read to cast doubt on them.” (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at
p. 2185], italics added; see Hall v. Superior Court (2016) 3 Cal.App.5th 792, 802, fn. 8.)
But the legality of civil penalties for refusing to submit to a warrantless blood test was not
squarely presented in Birchfield. (See Harris, supra, 234 Cal.App.4th at p. 684 [“‘“‘It is
axiomatic that language in a judicial opinion is to be understood in accordance with the
facts and issues before the court. An opinion is not authority for propositions not
considered.’”’”].) We remain somewhat doubtful whether the high court would approve
of a civil license suspension predicated solely on a motorist’s refusal to submit to a
warrantless blood test. Rather than decide whether Espinoza’s license could be lawfully
suspended based solely on her refusal to submit to a warrantless blood test, we conclude
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
chemical test, if pleaded and proven by the prosecutor, results in increased criminal
penalties if the motorist is convicted of DUI in violation of sections 23152 or 23153.
(§§ 23577, 23578.)
37
her license was lawfully suspended because she did not submit to a warrantless breath
test.
Gonzalez properly informed Espinoza that she had the obligation under
section 23612 to submit to a blood or a breath test; that if she was incapable of
completing one of those tests, she had to choose the other; and that failure to submit to or
to complete a chemical test would result in her driver’s license being suspended or
revoked. When Espinoza said she would submit to a blood test if Gonzalez first obtained
a warrant, Gonzalez told Espinoza that the policy of the CHP was only to obtain warrants
for forced blood draws in felony DUI cases and that a warrant would not be obtained in
Espinoza’s case. Under the facts of this case, a blood test was functionally unavailable.
(Cf. White v. Department of Motor Vehicles (2011) 196 Cal.App.4th 794, 798-800
[motorist’s refusal to submit to a breath test, after she agreed to submit to a blood test but
the attempt to take her blood proved unsuccessful, constituted refusal to submit to a
chemical test]; Quesada v. Orr (1971) 14 Cal.App.3d 866, 870-871 [when a motorist
chose to submit to a urine test under § 13353 but was unable to produce a sample, he was
required to complete either a blood or breath test and his failure to do so constituted a
refusal].)
Under the implied consent law, when either a blood test or a breath test is
unavailable for whatever reason, the motorist must submit to and complete the available
test (and if both blood and breath tests are unavailable, the motorist must submit to and
complete a urine test). (§ 23612, subds. (a)(1)(A), (a)(2)(A), & (d)(2).) Once Espinoza
stated unequivocally that she would not submit to a blood test unless Gonzalez obtained a
38
warrant, and Gonzalez made it clear a warrant would not be forthcoming and, therefore,
that a blood test would not be performed, Espinoza had an affirmative obligation to
submit to and complete a breath test. Espinoza did not choose to submit to a breath test,
which constituted a refusal to submit to a chemical test within the meaning of section
23612.
Espinoza argues a blood test was actually available, and it was only the CHP’s
policy that rendered it unavailable. Not so. A blood test was functionally unavailable in
this case because Espinoza did not give actual consent to a blood test and, instead,
conditioned her purported consent on Gonzalez obtaining a warrant. Had Espinoza
actually consented to a blood test, the CHP’s policy would have been irrelevant.
Citing Nelson v. City of Irvine (9th Cir. 1998) 143 F.3d 1196, Espinoza contends
she could not have been forced to submit to a breath test (or deemed to have refused to
submit to a breath test by not voluntarily submitting to one) when the blood test was
actually available but withheld from her for no valid reason. Even on questions of federal
law, we are not bound by decisions of the lower federal courts. (People v. Johnson
(2015) 61 Cal.4th 734, 782; People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.)
Moreover, Nelson misconstrued California’s implied consent law and is therefore
unpersuasive. (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 119-
121.) In any event, Nelson is distinguishable. “There the police either prevented or
coerced the defendants from selecting breath or urine tests. They acted in bad faith by
interfering with the defendant’s choice of tests and compelling them to take blood tests.”
(People v. Sugarman (2002) 96 Cal.App.4th 210, 216.) There is no evidence here that
39
Gonzalez acted in bad faith or that he attempted to coerce Espinoza to take a chemical
test. Instead, the record indicates Gonzalez merely informed Espinoza that, because of
the CHP’s post-McNeely policy regarding warrants for blood draws, he would not obtain
one and, therefore, a blood test would not be performed. Likewise, we reject the
suggestion that a blood test was unavailable for no good reason. The CHP could
reasonably conclude that obtaining warrants for blood draws in every DUI case where
exigent circumstances do not exist would not be a wise use of limited resources and time
and, instead, reserve warrant requests for felony DUI cases.
Espinoza also argues the Department suspended her license because she invoked
her right under McNeely to be free from warrantless, coerced blood tests, and that in
doing so the Department imposed an unconstitutional condition on her maintaining the
privilege to operate a motor vehicle. We disagree. “As a general matter, the
unconstitutional conditions doctrine imposes special restrictions upon the government’s
otherwise broad authority to condition the grant of a privilege or benefit when a proposed
condition requires the individual to give up or refrain from exercising a constitutional
right. (See, e.g., Perry v. Sindermann (1972) 408 U.S. 593, 597-598 . . .; Pickering v.
Board of Education (1968) 391 U.S. 563, 568 . . . .” (California Building Industry Assn.
v. City of San Jose (2015) 61 Cal.4th 435, 457.) Espinoza’s license was not suspended
merely because she invoked her right under McNeely to be free from a warrantless blood
test, but because she refused to submit to and complete a chemical test. Had Espinoza
voluntarily submitted to and completed a breath test, we would agree that her refusal to
submit to a warrantless blood test, by itself, would not be a lawful basis for her license
40
suspension. Instead, Espinoza purported to consent to a blood test if Gonzalez obtained a
warrant and then failed to consent to a breath test when she learned a warrant would not
be forthcoming. We hold it was Espinoza’s failure to submit to and to complete a breath
test, and not merely her refusal to submit to a warrantless blood test, which supports her
license suspension.11
Finally, Espinoza argues she had an affirmative right under McNeely to demand a
blood test and to force Gonzalez to obtain a warrant, Gonzalez failed to honor her
demand for a blood test with a warrant, and Espinoza had no further obligation to submit
to a breath test. According to counsel, suspending Espinoza’s license under these
circumstances renders her rights under McNeely to be illusory. We cannot agree.
McNeely did not confer an affirmative or positive right on motorists to demand a
blood test with a warrant. Instead, McNeely conferred a passive or negative right on
motorists to be free from warrantless, coerced blood tests unless the police can establish
the existence of exigent circumstances. When Gonzalez informed Espinoza that, under
the CHP’s policy, he would not obtain a warrant and that a forced blood test would not be
administered, Gonzalez in fact honored Espinoza’s rights under McNeely. Under
Birchfield, however, Espinoza had no negative right to be free from a warrantless breath
test incident to her lawful arrest for DUI. Therefore, suspending Espinoza’s driver’s
11 The superior court (and the hearing officer) did not rely on refusal to submit to
or failure to complete a breath test as the basis for suspending Espinoza’s driver’s license.
But as noted, ante, we must affirm the judgment if it is correct on any ground. (Shaw v.
County of Santa Cruz, supra, 170 Cal.App.4th at p. 269.)
41
license for her failure to submit to and complete a breath test in no way renders illusory
Espinoza’s rights under McNeely.
C. Espinoza Was Afforded a Fair Hearing.
Lastly, Espinoza contends the hearing officer’s complete rejection of D’Amico’s
expert testimony and errors in the hearing officer’s findings show the decision did not
comport with due process. We conclude the superior court’s implied finding that
Espinoza obtained a fair hearing is supported by the record.
With respect to D’Amico’s testimony, the parties use a considerable amount of
space in their briefs discussing whether the hearing officer correctly found that D’Amico
was biased and what if any weight the hearing officer should have given to D’Amico’s
expert testimony. Regardless of whatever deference the superior court was required to
accord the hearing officer’s credibility findings (see Gov. Code, § 11425.50, subd. (b)),
on appeal we are only concerned with the superior court’s findings. (JKH Enterprises,
Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058 [“If a
fundamental vested right was involved and the trial court therefore exercised independent
judgment, it is the trial court’s judgment that is the subject of appellate court review.”]; 2
Cal. Administrative Mandamus, supra, Appeal From Superior Court Judgment, § 16.51,
pp. 16-36 to 16-37 [“When reviewing cases in which a trial court used the independent
judgment test, the appellate court focuses on the findings made by the superior court.”].)
We are not free to reweigh the evidence, and we must resolve all conflicts in the evidence
in favor of the superior court’s judgment. (Arthur, supra, 184 Cal.App.4th at p. 1205.)
Appellate courts must generally defer to the superior court’s resolution of questions of
42
witness credibility. (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1285.) By
denying Espinoza’s petition, the superior court impliedly rejected the contention that she
did not receive a fair hearing and impliedly found D’Amico’s testimony—that Gonzalez
did not have probable cause to arrest Espinoza—lacked credibility and/or was entitled to
little or no weight. We may not revisit or reweigh that implied resolution of credibility.
With respect to the errors in the hearing officer’s ruling, we must reject Espinoza’s
argument. Although the decision addressed an argument Espinoza did not actually make
at the administrative hearing regarding reasonable suspicion to perform a traffic stop, and
it contained some minor errors (e.g., the hearing officer referred to Espinoza as the
“Respondent” instead of the appellant in the hearing and as a “District Attorney” instead
of a public defender, and the hearing officer referred to the decision in Missouri v.
McNeely as “DMV v. McNealy”), they hardly demonstrate a lack of due process.
Finally, we do not agree with Espinoza’s assertion that the decision shows the
hearing officer applied the wrong legal standard when it found Gonzalez had probable
cause to arrest Espinoza for DUI. The hearing officer clearly articulated her conclusion
that, based on Gonzalez and Temple’s observations of Espinoza, “Officer Gonzalez had
reasonable cause to believe that Respondent was driving a motor vehicle while under the
influence of alcohol.” This was the correct standard and, as we conclude ante, the record
supports the superior court’s implied finding that Gonzalez had reasonable cause to arrest
Espinoza for DUI.
V.
DISPOSITION
43
The judgment is affirmed. Respondent shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
44