Judge James C. Chalfant, Case 22STCP04103 2023-04-25 Tentative Ruling

Petitioner David Rosas (“Rosas”) seeks a writ of mandate to set aside the decision of Respondent Steve Gordon, in his capacity as Director of the Department of Motor Vehicles (“DMV”), to suspend his driver’s license.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Rosas commenced this proceeding on November 14, 2022, alleging claims for traditional and administrative writ of mandamus. The verified Petition alleges in pertinent part as follows.

On July 10, 2021, Rosas was involved in a minor traffic collision when he ran into the back of another vehicle. Deputy Sheriff Valdez of the Los Angeles County Sheriff’s Department (“LASD”) was the initial investigating officer who arrived on the scene. He questioned Rosas to determine if Rosas was driving under the influence (“DUI”) or suffering from a diabetic episode at the time of the collision. Valdez eventually cuffed Rosas in the back of his patrol car and waited for Deputy Sheriff Mastanuono to arrive and conduct a DUI investigation.

When Mastanuono first talked to Rosas, he read him a Miranda warning which included the rights to remain silent and to consult with an attorney prior to answering any questions. Mastanuono then read the implied consent admonishment for a chemical test. Mobile video audio recording systems (“MVARS”) footage shows that, while Mastanuono did so, Rosas kept asking why he was doing this and asserting his right to an attorney. Mastanuono made no attempt to explain that the right to counsel does not apply to implied consent. When Rosas refused to take a breath or blood test, Mastanuono slammed the patrol car door.

Based on Rosas’ refusal, Mastanuono served him with an Administrative Per Se (“APS”) Suspension/Revocation Order and Temporary Driver License and cited on his DS-367^{^[1]} that the reason for suspension was a chemical test refusal.

Rosas requested an APS hearing, which occurred on July 11, 2022. The hearing focused on officer-induced confusion, the officer’s duty to cure any confusion, and the inadequacy of a mechanical reading of the chemical admonition to cure the confusion. The hearing officer ruled that Rosas was not confused and upheld the suspension. Rosas’ request for a departmental review of the decision was denied on August 15, 2022. Rosas’ suspension is effective until July 28, 2023.

Rosas contends that his license suspension was based on erroneous interpretations of the law and was against the weight of the evidence because the hearing officer failed to give proper consideration to officer-induced confusion. Rosas seeks an alternative writ of mandate compelling the DMV to set aside and revoke its August 15, 2022 order to suspend his license from July 29, 2022 through July 28, 2023, or to show cause why it should not. Rosas also seeks an order to stay his license suspension and attorney’s fees and costs.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). Revocation or suspension of a license warrants application of the independent judgment test. Berlinghieri v. Department of Motor Vehicles,¿(1983) 33 Cal.3d 392, 396.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Id. at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 101316.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, 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.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by the petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the court should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 51415. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

It is unlawful for a person who has 0.08 percent or more of alcohol in his blood to drive a vehicle. Vehicle Code^{^[2]} §23152(b). Any driver is deemed to have given his implied consent to chemical testing of his blood or breath for the purposes of determining his blood alcohol content (“BAC”) if lawfully arrested for a DUI pursuant to section 23152. §23612(a)(1)(A). This statute is known as the “implied consent law”. Espinoza v. Shiomoto, (2017) 10 Cal.App.5th 85, 97. The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of section 23152. §23612(a)(1)(C).

A person lawfully arrested for a DUI shall be advised that they have a choice of blood or breath test. §23612(a)(2)(A). The driver also shall be told that his or her failure to submit to or complete a chemical test will result in certain penalties, including license suspension. §23162(a)(1)(D). The officer shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law. §23612(a)(4). If one of the tests is unavailable, the person shall submit to the remaining test in order to determine his/her BAC. §23612(d)(2).

If a person refuses an officer’s request to submit to a chemical test, the DMV shall suspend the person’s privilege to operate a motor vehicle for a period of one year if it is the person’s first DUI violation. §13353(a)(1). The arresting officer, acting on behalf of the DMV, shall personally serve the notice of the order of suspension of the person’s driving privilege on the arrested person. §23612(e). The arresting officer shall also immediately forward to the DMV a sworn report of all information relevant to the enforcement action, including a statement of the officer’s grounds for belief that the person committed a DUI, a report of the chemical test results, and the circumstances constituting a refusal to submit to chemical testing. §13380.

Upon receipt of the officer’s sworn statement, the DMV shall review the record to determine the following issues: (1) whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of section 23152; (2) whether the person was placed under arrest; (3) whether the person refused to submit to the test after being requested by a peace officer; and (4) whether the person had been told that his driving privilege would be suspended if he refused to submit to the test. §§ 13353(d), 13557(b)(1). If the DMV finds all issues satisfied, it shall sustain the order of suspension. §13557(b)(1).

The filing of a petition for judicial review of a DMV order suspending a person’s privilege to operate a motor vehicle shall not stay the order of suspension. §13559(a). The judicial review shall be on the record of the hearing, and the court shall not consider other evidence. Id. If the court finds error, the court may order the DMV to rescind the order of suspension and order the DMV to return or reissue a new license to the person. Id.

Mastanuono’s DUI Complaint Report (“Arrest Report”) explains that, on July 9, 2021, Deputy Valdez received a call from dispatch that there had been a minor traffic collision in Lakewood and that one of the drivers was possibly under the influence. AR 18. When Valdez arrived on scene, Rosas was behind the wheel of a Toyota Camry with the engine running. AR 18. Rosas got out of the car and Valdez saw him stagger and smelled alcohol on his breath. AR 18. The driver of the other vehicle said that Valdez rear-ended her and that she suspected that he was drunk. AR 18.

By the time Mastanuono arrived on the scene, Valdez had detained Rosas in the back of his patrol vehicle. AR 18. Mastanuono opened the back door of the patrol vehicle, smelled a strong odor of alcohol, saw that Rosas’s eyes were bloodshot and watery, and heard Rosas slur his speech. AR 18. He read Rosas his Miranda rights, which Rosas said he understood. AR 18.

Mastanuono had Rosas get out of the patrol car. AR 18. Rosas staggered to the curb, where Mastanuono asked some pre-standardized field sobriety questions. AR 18. He observed that Rosas’s pupils were dilated. AR 18. During the questioning, a Los Angeles County Fire Department (“LAFD”) truck medically evaluated Rosas and determined that his blood pressure was high. AR 18.

Mastuanuono had Rosas perform Standardized Field Sobriety Tests (“FSTs”). AR 18. Of these tests, Rosas was only able to complete the Finger to Nose Test. AR 19. Mastanuono concluded that Rosas was under the influence and arrested him. AR 19.

At 12:03 a.m., Mastanuono read to Rosas the chemical admonition verbatim from the DS-367. AR 13, 19. He asked Rosas if he would submit to a breath test, and Rosas said: “No”. AR 13, 19. He asked Rosas if he would submit to a blood test, and Rosas said: “No”. AR 13, 19.

Mastanuono drove Rosas to LASD’s Lakewood Station. AR 19. Enroute, Rosas explained that he had been coming from a friend’s house and admitted that he had a couple of beers there. AR 19. At the station, Mastanuono took him to a chemical test machine and explained that the machine could show his BAC level via breath test. AR 19. When Rosas refused to provide a sample, he was booked with the Watch Commander’s approval. AR 19. Mastanuono also issued an APS Suspension/Revocation Order and Temporary Driver License for refusal to submit to a chemical test. AR 15.

Mastanuono’s MVARS footage shows that, beginning at 1:09, he read Rosas his Miranda rights, which included the right to remain silent and the right to an attorney before any questioning. AR 132. Mastanuono advised Rosas that, if he could not afford an attorney, one would be appointed for him before any questioning. AR 132. He asked Rosas if he understood both statements, and Rosas responded affirmatively. AR 132.

Mastanuono asked Rosas a series of pre-FST questions and Rosas answered. AR 133-50. When Rosas asked if he had to answer all the questions, Mastanuono replied that they are standard, and baseline, questions. AR 141. Mastanuono then attempted to conduct FSTs which Rosas failed. AR 151-66.

Mastanuono arrested Rosas (27:38 (AR 166)) and then began to read the chemical test admonition. AR 167. He explained that state law required Rosas to submit to and complete a chemical test to determine the alcohol or drug content of his blood. AR 167. Rosas had a choice of breath or blood test. AR 167. He was required to submit to a preliminary alcohol screening test. AR 167. Rosas responded: “You know this is your first time”. AR 167. If Rosas refused to submit to or failed to complete a chemical test, the DMV would suspend his license for one year, or two or three years. AR 167.

While Mastanuono read the rest of the admonition, Rosas effectively asked “Why are you doing this?” three times. AR 167. When Mastanuono read about prior convictions based on various levels of BAC, Rosas asserted twice that “I didn’t admit to” (apparently drinking (see AR 145), “Where did I blow?”, “Did I blow or anything?”, and “Did I refuse a test?” AR 168. Mastanuono ignored Rosas’ questions and continued to read the chemical admonition. AR 167-69.

The last portion of the chemical admonition warned Rosas that he did not have the right to consult with an attorney or have one present before deciding whether to submit to a test or what test to take. AR 169. Mastanuono emphasized this point as he said it. AR 169. Rosas said “no” and then twice stated effectively that “I will take my attorney rights.” AR 169. Mastanuono continued to read the admonition and Rosas said “Sir, sir, sir, stop talking to me.” AR 169-70. Mastanuono asked if Rosas would take a blood test and Rosas said: “No”. AR 170. He asked Rosas if he would take a breath test and Roas said: “No”. AR 170.

Rosas timely requested a hearing to appeal the suspension of his license. The hearing began on August 24, 2021, and continued on various dates through July 11, 2022. AR 29-86.

At the July 11 hearing, DMV Advocate Leffas-Lopez introduced into evidence the DS-367, the DUI Complaint Report, a traffic collision report, and Rosas’ driving record. AR 91. Rosas introduced into evidence Mastanuono’s MVARS footage. AR 90.

Rosas’s counsel made an opening statement that the MVARS footage showed how Rosas kept saying “Why are you doing this? I’ll take my civil rights. I’ll take my attorney rights” even as Mastanuono read the chemical admonition. AR 93. Mastanuono read the admonition verbatim while the two competed to yell over each other to be heard. AR 93.

Rosa’s counsel stated that when Mastanuono gave Rosas the Miranda advisement a little bit earlier, it included the right to consult with an attorney before answering questions. AR 94. Rosas took those words to heart. AR 94. The MVARS footage shows that the confusion stemmed from Mastanuono giving the chemical test admonition after he gave the Miranda advisement with right to counsel. AR 95. Mastanuono did nothing to alleviate the confusion or explain that the right to counsel did not apply before Rosas chose between a blood or breath test. AR 95. He just robotically read the chemical admonition as he and Rosas competed to talk over each other. Mastanuono then slammed the car door when he was done. AR 95.

The DMV hearing advocate’s only comment was that Rosas continually spoke over Mastanuono as he gave the warning. AR 96. If Rosas had listened, he may have understood that he had no right to counsel. AR 96.

In his closing statement, Rosas’ counsel reiterated that the MVARS footage and police report both show that Mastanuono gave the Miranda advisement. AR 97. Approximately 75 seconds into the video, Rosas started asking “why are you doing this?” AR 97. At the three-minute mark, Rosas said he will take his civil rights and his attorney rights while Mastanuono continued to read the admonition verbatim. AR 97-98. At the 3:25 minute mark, instead of explaining anything, Mastanuono slammed the car door shut. AR 98.

Rosas’ counsel argued that the facts are similar to Hoberman-Kelly v. Valverde, (“Hoberman-Kelly”) (2013) 213 Cal.App.4th 626, 633, in which a DUI suspect and the officer talked over each other and the court point out that this was a strong indication of officer-induced confusion because neither party fully heard what the other was saying. AR 98. The court also concluded that an officer cannot just robotically read the chemical admonition verbatim, as here, without a subsequent explanation. AR 99.

The DMV’s handbook also states that, if an officer has a reason to believe the driver is confused because of a Miranda warning, rereading the admonition is insufficient and the officer must give an explanation. AR 99. The handbook cites Kingston v. DMV (1969), 27 Cal. App. 2d 549, to that effect. AR 99.

Rosas’ counsel concluded that the evidence shows that his situation matches the circumstances described in the caselaw and DMV handbook. AR 100. When Rosas was handcuffed in the car, he was read a Miranda advisement. AR 100. He then asserted the right to consult with an attorney while the officer read the implied consent admonition. AR 100. There was officer-induced confusion even though Rosas was given the implied consent admonition. AR 100. There also was the possibility that Rosas did not fully hear or comprehend the chemical admonition because they were talking over each other. AR 100.

On July 20, 2022, the hearing officer issued the decision reimposing the one-year suspension on Rosas’ license, effective July 29, 2022. AR 7, 9. The DMV served Rodgers with the decision by mail on July 20, 2022. AR 10.

Rosas was involved in a motor accident. AR 8. After he admitted to Deputy Valdez that he had been driving, Mastanuono determined that Rosas was intoxicated based on objective symptoms of intoxication of bloodshot and watery eyes, odor of alcoholic beverage, unsteady gait, and slurred speech. AR 8. Rosas also failed the FSTs. AR 8. Mastanuono had reasonable cause to believe that Rosas was DUI. AR 8.

DMV’s documentary evidence showed that Rosas was arrested for DUI. AR 8. When combined with the reasonable cause determination, the arrest was lawful. AR 8.

The final two questions were (1) whether Rosas was admonished that his driving privilege would be suspended or revoked if he refused or failed to complete a required chemical test, and (2) whether he did in fact refuse or fail to complete the test after the request. AR 8-9. As to both, Rosas contended that Mastanuono induced confusion when he read the Miranda rights before he read the chemical test admonition. AR 8-9.

For the admonition, the hearing officer found that Rosas exhibited uncooperative behavior by talking as Mastanuono read the admonition. AR 8. He was still listening, however, because Rosas responded “no” when Mastanuono asked for consent to either the breath or blood test. AR 8. Courts have found that one who was lawfully arrested for drunk driving cannot defeat the purpose of implied consent statue by being combative or uncooperative with the arresting officers. AR 8. A person cannot complain of the license suspension when his own actions frustrate the admonishment. AR 8. Section 13353(c) does not require the officer to repeatedly attempt to admonish the person over their interruptions and other uncooperative conduct until the person is ready to listen. AR 8. The hearing officer concluded that Rosas was admonished that his driving privilege would be suspended or revoked if he refused to complete the required testing. AR 8.

Rosas clearly refused both tests and did not convey apparent confusion to Mastanuono. AR 9.

The facts do not suggest confusion. AR 9. Where apparent confusion is not demonstrated or apparent to the arresting officer, the officer does not need to provide further clarification. AR 9. The contention of officer-induced confusion is without merit. AR 9.

The hearing officer found that Mastanuono had reasonable cause to believe Rosas was in violation of sections 23140, 23152, or 23153. AR 9. Rosas was placed under lawful arrest, he was told his driving privilege would be suspended or revoked if he refused to complete the required testing, and he refused or failed to complete a chemical test upon request. AR 9. The hearing officer lifted the stay on Rosas’ suspension, which will be effective from July 29, 2022 through July 28, 2023. AR 7, 9.

Petitioner Rosas seeks a writ of administrative mandamus^{^[4]} to set aside the hearing officer’s decision and the suspension of his license.

At the APS hearing, the DMV was required to establish the following elements: (1) Mastanuono had reasonable cause to believe that Rosas had been DUI in violation of section 23136, 23140, 23152 or 23153; (2) Rosas was lawfully arrested; (3) after being asked by Mastanuono to do so, Rosas refused or failed to complete the chemical test required by the implied consent law; and (4) Rosas was told that refusal or failure to complete the required testing would result in the suspension or revocation of his or her driving privilege. Troppman v. Valverde, (2007) 40 Cal.4th 1121, 1130, 1138.

Rosas relies solely on a claim of officer-induced confusion that he had the right to consult with counsel before agreeing to a chemical test and that Mastanuono failed to correct that confusion.

1. Whether Mastanuono Had Reasonable Cause to Believe Rosas Had Been Driving a Motor Vehicle in Violation of the Vehicle Code

Rosas does not dispute that Mastanuono had reasonable cause to believe that Rosas was DUI.

3. Whether Rosas Refused to Submit to, or did Not Complete, the Test After Being Requested by Mastanuono

When asked after the chemical admonition whether he would consent to a blood or breath test, Rosas said “no” to both. AR 170. Although he disputes its effectiveness, Rosas does not dispute that he refused a chemical test.

4. Whether Rosas Had Been Told That His Driving Privilege Would Be Suspended if He Refused to Submit to the Test

The arrested driver shall be advised that they have a choice of blood or breath test. §23612(a)(2)(A). The driver also shall be told that his or her failure to submit to or complete a chemical test will result in certain penalties, including license suspension. §23162(a)(1)(D). The officer shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law. §23612(a)(4).

If the driver fails to complete or refuses to submit to a chemical test upon request, the DMV must suspend or revoke the driver’s driving privilege for a period which is dependent upon the person’s prior driving record. §13353(a).

Section 13353 requires that the driver be advised that he does not have the right to an attorney before stating whether he will submit to a chemical test or before deciding which test to take. Cole v. Department of Motor Vehicles, (1983) 139 Cal.App.3d 870, 873. Only a lack of understanding due to no fault of the driver excuses a refusal to take a test and a self-induced condition, like drunkenness, does not qualify as a permissible ground. Eilinger v. Department of Motor Vehicles, (1983) 143 Cal.App.3d 748, 751. Being too drunk to understand the information provided by an officer “does not affect the finality and effectiveness of a refusal.” McDonnell v. Dept. of Motor Vehicles, (1975) 45 Cal.App.3d 653, 658-59. The chemical admonition in the DS-367 provided verbatim to an arrestee contains no inconsistencies or ambiguities and an arrestee cannot claim confusion from the admonition itself. Blitzstein v. Department of Motor Vehicles, (1988) 199 Cal.App.3d 138, 142 (where arrestee received a Miranda warning and declined to waive his rights, but then agreed to a urine test after the chemical admonition, officer had no reason to suspect confusion or duty to explain).

The officer is not required to determine the psychological state of the arrested driver’s mind. Elinger v. Director of Cal. Department of Motor Vehicles, (1983) 143 Cal.App.3d 748, 752.) There also is no requirement that a refusal to take a chemical test be intelligently made to trigger the sanction of suspension of the driver’s license. Maxsted v. Department of Motor Vehicles, (1971) 14 Cal.App.3d 982, 987; Goodman v. Orr, (1971) 19 Cal.App.3d 845, 857. However, where an arrestee receiving Miranda warning mistakenly believes that he had the right to consult with an attorney and expresses that confusion with respect to the chemical test, the officer may have duty to explain. Blitzstein, supra, 199 Cal.App.3d 138, 142.

In Decker v. Department of Motor Vehicles, (“Decker”) (1972) 6 Cal.3d 903, 905, the California Supreme Court held that substantial compliance with section 13353’s chemical admonition requiring by using the words “could be suspended” is insufficient. The court agreed with the rationale and conclusion set forth in Giomi v. Department of Motor Vehicles, (1971) 15 Cal.App.3d 905, which stated the following:

“Proper warning of the consequence of refusal is one of the elements essential to suspension of license under the code [citation omitted]. We have held that an admonition is adequate if it states that refusal “would probably” cause suspension [citation omitted] or that “chances are that you will lose your license” if you refuse [citation omitted]. But in each case we emphasized that the language used adequately conveyed to the driver the strong likelihood that the adverse result would follow upon refusal. The word “could,” however, carries but a meaning of possibility and in common usage often refers to a result more remote than likely.” 15 Cal.App.3d at 905-07.

The Decker court stated that an officer’s qualification of the chemical admonition, without explanation, could mislead the driver concerning the legal realities of the situation and thereby defeat the purpose behind the statute. Id. at 907. The court cautioned that a trial court is obligated to determine whether the driver was in fact misled by inaccurate advice and whether his refusal to submit to a test was a result thereof. Id. at 907.

Rosas relies heavily on Hoberman-Kelly, supra, 213 Cal.App.4^th at 626. There, the arrested driver was read her Miranda rights in the patrol car. Id. at 629. She was taken to the CHP station where the chemical admonition was read to her verbatim from the DS-367. Id. The arrestee saw a sign on the wall at the station advising her of her right to make a phone call, and she said she wanted to call her attorney and make the phone call to which the sign said she was entitled. Id. She became belligerent, and at one point freed herself from her handcuff, but also made plain that she did not understand why she could not make the phone call. Id. During the chemical admonition reading, she stated several times that she had no problem with taking a blood test but wanted to first make a phone call. Id. The officer did not respond to her request and made no effort to explain that she had no right to an attorney before submitting to the chemical test. Id. Instead, he continued to disjointedly read the admonition interspersed with her demands. Id. The admonition included the fact that the arrestee was not entitled to an attorney before deciding to take the test, but the officer must have been aware that she did not hear it. Id. After the chemical admonition, the arrestee agreed to take the blood test, but the officer responded “that’s a no.” Id. The arrestee became angry and repeatedly said that she would give a blood test and the phlebotomist administered the blood test without incident. Id. at 630. The hearing officer found a refusal because the arrestee initially refused and insisted she wanted to talk to an attorney and her opportunity to change her mind had expired. Id.

The court noted that California courts have excused refusals on the ground of officer-induced confusion resulting from the juxtaposition of the chemical admonition and a Miranda warning, and the officer’s failure to clarify and explain the difference. Id. at 632 (citation omitted). The issue of officer-induced confusion is one of fact. Id. In this case, it is questionable whether officer-induced confusion would provide a defense if the arrestee had refused to take a blood test. Id. On the one hand, it is incumbent upon the arresting officer to elaborate on the warning if the person expresses confusion about the Miranda warning in conjunction with the chemical admonition. Id. at 632-33. On the other hand, the officer need only erase confusion caused by the officer’s own statements. Id. at 634. While there was no evidence that the officer made any incorrect or misleading statements, it was unmistakably apparent that the Miranda warning combined with the sign on the wall led the arrestee to believe she had the right to make a telephone call to her attorney before deciding whether to take the tests. Id. When a driver who receives a Miranda warning manifests confusion by asserting her right to an attorney, the officer needed to make a genuine effort to communicate that the constitutional rights previously explained to the plaintiff did not apply to the implied consent to a chemical test. Id. A mechanical reading of the admonition is insufficient to remove officer-induced confusion. Id.

Although the arrestee repeatedly asked why she could not make a phone call as the sign indicated, he made no effort to respond. Id. The arrestee repeatedly told the officer that she would take a blood test both before and after the officer marked her as a refusal. Id. She never refused to submit to a blood test and certainly never did so after receiving the chemical admonition. Id. Because the officer both failed to make any effort to dispel her confusion and ignored her repeated statements that she would submit to a blood test, the court affirmed the trial court’s writ of mandate setting aside the suspension. Id.

Rosas argues that, shortly after reading his Miranda rights, and prior to booking and arresting him for DUI,^{^[5]} Mastanuono read the chemical test admonition to Rosas line-by-line from the DS-367. He did so speaking over Rosas, despite Rosas’ obvious confusion and repeated requests for clarification – Rosas asked “why are you doing this?” three times. AR 167. Yet, Mastanuono never stopped reading the form to answer Rosas’ questions. AR 167-70. Pet. Op. Br. at 2.

When Mastanuono read “you do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test,” Rosas responded: “No, I will take my attorney rights, I will take my attorney rights, sir.” AR 169. Mastanuono made no effort to clarify that Miranda rights do not apply to the chemical test admonition, and instead continued to read from the admonition form. Id. Finally, Mastanuono asked Rosas if he would submit to a blood and/or breath test, to which Rosas answered: “No.” AR 170. Pet. Op. Br. at 2.

Rosas argues that, once a suspect manifests confusion, it is the duty of the officer to explicitly inform the suspect that the constitutional rights previously explained to him are not applicable to the chemical tests, and that he has no right to consult an attorney before submitting a decision to take one of the tests. Rust v. Department of Motor Vehicles, (1968) 267 Cal.App.2d 545, 547.

Mastanuono properly Mirandized Rosas and received affirmation that Rosas understood his rights. AR 18, 132. Once Mastanuono started reading the chemical test admonition -- specifically the portion regarding not having a right to an attorney in relation to the tests – Rosas responded: “Why are you doing this, I will take my attorney rights, sir.” AR 167, 169. Although the hearing officer found that Rosas “did not convey any apparent confusion” to Mastanuono, Rosas’ verbiage inherently manifested that he was confused regarding the right to an attorney and the extent to which it applies. AR 9. The question “Why are you doing this?” is nothing if not a request for clarification that Mastanuono ignored. Under Hoberman-Kelly, a request for an attorney in direct response to the officer’s advisement that the arrestee has no right to an attorney for the chemical test expresses confusion about the two warnings. The hearing officer clearly erred when she stated that Rosas “did not convey any apparent confusion.” AR 9. Pet. Op. Br. at 6.

The crucial factor in determining whether a refusal is the result of confusion is not the state of the arrestee’s mind, but the fair meaning to be given his response to the demand that he submit to a chemical test. McGue v. Sillas, (“McGue”) (1978) 82 Cal.App.3d 799, 804 (arrestee’s mere insistence on consulting with an attorney did not establish officer-induced confusion).^{^[6]} Confusion can be caused only by the officer’s statements. McDonnell v. Dept. of Motor Vehicles, supra, 45 Cal.App.3d at 659.

The DMV argues that Mastantuono did nothing that could have objectively caused confusion. Rosas’ response to his arrest and the chemical admonition was to become uncooperative. His uncooperative behavior neither created an atmosphere of confusion nor excused his refusal. See Morphew v. Department of Motor Vehicles, supra, 137 Cal.App.3d at 744 (suspension upheld where driver’s obstreperous conduct which prevented officer from completing admonition). The DMV concludes that the weight of the evidence is that Rosas’ refusal was not the result of officer-induced confusion. Opp. at 20-21.

California courts have excused refusals on the ground of officer-induced confusion resulting from the juxtaposition of the chemical admonition and a Miranda warning, and the officer’s failure to clarify and explain the difference. Hoberman-Kelly, supra, 213 Cal.App.4th at 632 (citation omitted). Although Rosas cites no case so holding, the court agrees that the juxtaposition of a Miranda warning and the chemical admonition by itself can result in officer-induced confusion, even though everything the officer said is accurate. As he argues, the language of the two advisements is contradictory. Reply at 3. It is worth noting, however, that the Miranda warning and the chemical admonition occurred at least 28 minutes apart, with Rosas cooperating in investigatory, medical, and pre-FST questions in between. This gap makes it less likely that Mastantuono’s Miranda warning induced any confusion when Rosas was given the chemical admonition.

More important, there is insufficient evidence that Rosas was confused. As stated, Mastantuono gave Rosas a Miranda warning after Officer Valdez detained him. AR 19, 132. After the Miranda warning, Rosas cooperated by answering investigatory, medical, and pre-FST questions. At one point, Rosas asked: “Are you saying I have to answer, uh, all these questions?” AR 141. Mastantuono responded: “Yeah, it’s just Standard.” AR 141. He explained that continued questions were “to establish a baseline”. AR 141-42, 143-49. Mastantuono then conducted the FSTs. Rosas remained cooperative, but he failed the FSTs. AR 149-66.

Mastantuono then arrested Rosas and placed him in the patrol car. AR 166. At least 28 minutes after the Miranda warning, and separated by the intervening investigatory, medical, and pre-FST questions and FST attempts, Mastantuono began reading the chemical admonition. Rosas then began talking over Mastantuono to ask if this was his “first time” (giving the chemical admonition) and repeatedly stating “why are you doing this?” (meaning why are you reading the chemical admonition?). AR 167.^{^[7]} When Mastantuono got to the part about a two-year suspension for a refusal after a previous offense involving a specific BAC, Rosas responded: “I didn’t admit”, “Where did I blow?”, and “Did I blow anything?” (referring to the chemical admonition’s reference to a specific BAC). AR 168.

Mastantuono then emphasized that Rosas did not have a right to talk to an attorney or have an attorney present before stating whether he would submit to the test, and Rosas responded “No” and by twice saying “I’ll take my attorney rights.” AR 169. As the DMV argues, this is not the behavior of an arrestee who is confused. Rather, it is the behavior of an arrestee who heard the chemical admonition but refuses a test by stating that he would like to speak to an attorney before taking the chemical test. Pepin v. Department of Motor Vehicles, (“Pepin”) (1969) 275 Cal.App.2d 9, 10. This is underscored by the fact that, when Mastantuono asked Rosas whether he would submit to a blood test or breath test, Rosas unambiguously answered: “No.” AR 170.

Rosas contends that, once he manifested confusion by asking “why are you doing this” and asking for his “attorney rights” during the admonition, Mastantuono mechanically rushed to finish reading without providing the slightest bit of context or stopping to answer Rosas’ questions. AR 167-70. He concludes that this does not constitute a “genuine effort to communicate” as is required under the law. Pet. Op. Br. at 6-7.

While the court agrees that Mastanuono mechanically read much of the chemical admonition -- in which he was interrupted by Rosas – that fact is irrelevant unless Rosas manifested confusion, and he did not. Moreover, Mastanuono was not mechanical in emphasizing the key portion of the admonition that Rosas did not have the right to an attorney before stating whether he will submit to ta chemical test and which test to take. See AR 169.

Thus, the hearing officer correctly concluded that Rosas was not confused but merely trying to frustrate the admonition. Rosas never asked why he could not talk to an attorney. He then clearly refused both a blood and breath test. Accordingly, there is insufficient evidence that Rosas was confused by the Miranda warning in conjunction with the chemical admonition.

This case is similar to, albeit not as strong as, Pepin, which held that a request to speak to an attorney prior to the chemical test can by itself amount to a refusal. 275 Cal.App.2d at 10. The court concluded from the driver’s testimony that he did not rely on the officer’s Miranda advice in attempting to assert right to counsel and rather independently attempted to assert his non-existent right to counsel for the test. Id. at 11. Similarly, Rosas did not rely on the Miranda warning to assert his right to an attorney in refusing a chemical test.

Hoberman-Kelly is factually distinguishable. Hoberman-Kelly saw a sign at the station stating that she had the right to make a phone call, she made plain that she did not understand why she could not call her attorney, she did not hear the admonition and asked to read it herself, she stated several times that she had no problem with taking a blood test but wanted to first make a phone call, after the officer said it was a refusal she repeated that she would take the blood test, and she in fact did accept a blood draw. 213 Cal.App.4^th at 629. The court stated that it was questionable whether officer-induced confusion would provide a defense if Hoberman-Kelly had refused to take a blood test. Id. at 632. The court held that, when a driver who receives a Miranda warning manifests confusion by asserting her right to an attorney, the officer needs to make a genuine effort to communicate that the constitutional rights previously explained to the plaintiff did not apply to the implied consent to a chemical test. Id. at 634. A mechanical reading of the admonition is insufficient to remove officer-induced confusion. Id.

In contrast, Rosas acquired no separate information – such as a sign on the wall -- besides the Miranda warning and chemical admonition and the warnings were separated in time. Rosas clearly heard the admonition and his questions showed that he understood it and did not demonstrate confusion. He never indicated that he would take a test and instead expressly refused a test in favor of talking to his lawyer. Finally, Mastantuono did not render a mechanical reading of the significant part of the chemical admonition; he emphasized that Rosas had no right to a lawyer in making the chemical test decision.

Applying a fair meaning to Rosas’ responses to the demand that he submit to a chemical test (See McGue, supra, 82 Cal.App.3d at 804), Rosas fails to show that he was confused about inconsistencies between the Miranda warning and the chemical admonition, warranting clarification by Mastantuono.

A motorist will be deemed to have refused testing unless he clearly and unambiguously manifests consent by selecting and completing a chemical test. Garcia v. Department of Motor Vehicles, (2010) 185 Cal.App.4th 73, 82-83. Consent which is not clear or unambiguous may be deemed a refusal as may qualified or conditional consent. Carrey v. Department of Motor Vehicles, (1986) 183 Cal.App.3d 1265, 1270-71.

There is no dispute that Rosas expressly answered “No” in response to Mastanuono’s request that he submit to a breath or blood test. An arrested motorist’s refusal to submit to a chemical test is an outright refusal as a matter of law with no room for construction. Barrie v. Alexis, (1984) 151 Cal.App.3d 1157, 1161.

However, a refusal that is the result of officer-induced confusion will not constitute a refusal. “If a driver who has been given Miranda insists on the presence of an attorney before choosing a test the courts have recognized that he may have been confused by the two warnings and the officer's failure to clarify and explain the difference. In such a case the refusal to take a test has been held not to be a refusal within the meaning of said section 13353.” Hoberman-Kelly, supra, 213 Cal. App. 4th at 632.

Rosas argues that the failure to cure his confusion means that his response to Mastanuono’s questions that he would not take a breath or blood test is not a refusal. Pet. Op. Br. at 7.

As stated ante, Rosas’ evidence of confusion is insufficient. Apart from that fact, Rosas did not say he was refusing because he wanted to talk to an attorney or make any suggestion that tied his refusal to a demand for an attorney. Mastanuono emphasized that Rosas did not have the right to talk to an attorney before deciding what test to take and Rosas merely responded: “oh no”, and twice said: “No, I’ll take my attorney rights”. AR 169. He then refused. AR 170. There is an insufficient link between any purported confusion and the refusal.

The Petition is denied. Rosas has not demonstrated officer-induced confusion with respect to his right to an attorney before making a chemical test decision.

The DMV’s counsel is ordered to prepare a proposed judgment, serve it on Rosas’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for June 13, 2023 at 1:30 p.m.

^{^[1]} The Petition misidentifies this as “DS Form 267.” Pet. at 3.

^{^[2]} All further statutory references are to the Vehicle Code unless otherwise stated.

^{^[3]} The court has reviewed both videos.

^{^[4]} Rosas abandons any claim of traditional mandamus in his opening brief. See Pet. Op. Br. at 4.

^{^[5]} Rosas was arrested before the chemical admonition. Although not in the transcript, it is in the video at 27:38. See AR 166.

^{^[6]} Rosas distinguishes McGue as a case where the arrestee said he understood his Miranda rights but did not understand the chemical admonition. Id. at 803. The officer then explained briefly in his own words that a failure to take any of the three chemical tests would result in an automatic suspension of his driver's license for a period of six months. At that point, the arrestee stated: "Let them take my license." Id. A second officer then explained the admonition, the arrestee read the printed admonition himself, and yet he insisted on seeing an attorney before submitting to any chemical test. Id. The court ruled that, although when a driver who has been Mirandized] manifests confusion by asserting his alleged right to an attorney, and it is incumbent upon the officer to explain that the right does not apply to the chemical test decision, “mere insistence on an attorney because the driver wants to consult one about which test to take does not establish officer-induced confusion.” Id. at 807.

Rosas notes that, unlike the officer in McGue, Mastanuono made no attempt to explain that the right to an attorney does not apply to a chemical test. Reply at 1-2. True, but McGue’s point is that an arrestee’s insistence on consulting with a lawyer may not by itself establish officer-induced confusion. Whether it does, of course, is an issue of fact.

^{^[7]} Rosas correctly notes (Reply at 4) that both Morphew and the other case cited by the DMV, Munro v. Department of Motor Vehicles, (“Munro”) (2018) 21 Cal.App.5th 41, 51, involved more belligerent behavior than his. The driver in Munro physically resisted attempts to restrain him and keep him in the car, and he kicked the rear window as he tried to slip out of the cuffs. 21 Cal.App.5th at 44. While dangerous and unacceptable, the court found that this behavior did not relieve officers of their duty to instruct him of the consequences of refusing chemical testing. Id. at 50-51. The driver in Morphew did not prevail on a defense of officer-induced confusion because he interrupted the officer three times during the admonition and also attempted to hit the officer with his fist. 137 Cal. App. 3d at 740, 743-44. Reply at 4.