Opinion
Opinions on pages 817 to 856 omitted.
Rehearing granted in case that appeared on pages 817 to 849.
Hearing granted in case that appeared on pages 850 to 856. The subsequent opinion not certified for publication.
Hearing Granted.
Opinion on retransfer not for publicationl.
Evelle J. Younger, Atty. Gen. of California, Victor D. Sonenberg, Deputy Atty. Gen., San Francisco, for defendant and appellant.
Carlson, Collins, Shelton, Calhoun & Dreibelbis, by Rene Auguste Chouteau, Richmond, for plaintiff and respondent.
ELKINGTON, Justice.
Respondent Consuelo Jeanne Nidever was arrested on probable cause to believe she had been driving a motor vehicle on a highway while under the influence of alcohol. Although requested to do so by the arresting officers she refused to submit to any chemical test of her blood, breath, or urine. Her driver's license was thereafter suspended for six months by the appellant Department of Motor Vehicles, under the claimed authority of California's 'Implied Consent Law,' Vehicle Code section 13353. On her petition for writ of mandate the superior court found that although [98 Cal.Rptr. 666] the statute required that respondent be told that her refusal 'will' result in suspension of her driving privilege for six months, the officers' advice to her was that it 'might possibly' and 'may' be so suspended. Concluding that there was substantial noncompliance with the statute, by its judgment the court ordered the suspension set aside. The Department's appeal is from the judgment.
As relevant to the issue before us Vehicle Code section 13353, subdivision (a), provides:
It is noted that respondent has made no contention that she was misled in any way by the officers into believing that she had a right to refuse such a chemical test, or, as in Rust v. Department of Motor Vehicles, 267 Cal.App.2d 545, 73 Cal.Rptr. 366, a right to refuse unless her attorney was present. Her claim is no more than that she was misled in her understanding as to the result of her failure to take a test, to which she was legally bound to submit having impliedly given her consent thereto.
The sole question before us appears to be whether the officers' admonitions that respondent's license 'might possibly' and 'may' be revoked was in substantial compliance with section 13353.
In Bush v. Bright, 264 Cal.App.2d 788, 790, 71 Cal.Rptr. 123, 124, it was said: 'The purpose of section 13353 is to reduce the toll of death and injury resulting from the operation of motor vehicles on California highways by intoxicated persons. As said in People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 421 P.2d 401, 'In a day when excessive loss of life and property is caused by inebriated drivers, an imperative need exists for a fair, efficient, and accurate system of detection, enforcement and, hence, prevention.'
'The obvious reason for acquiescence in the refusal of such a test by a person who as a matter of law is 'deemed to have given his consent' is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates. With this exception, the chemical tests may be given to any person covered by the statute, even if he be 'dead, unconscious, or otherwise in a condition rendering him incapable of refusal.'
'Such tests do not violate one's right against self-incrimination (Schmerber v. California, 384 U.S. 757, 760--765, 86 S.Ct. 1826, 16 L.Ed.2d 908, 913--916; People v. Sudduth, supra, 65 Cal.2d 543, 546--547, 55 Cal.Rptr. 393, 421 P.2d 401; United States v. Wade, 388 U.S. 218, 221, 87 S.Ct. 1926, 18 L.Ed.2d 1149, 1153), nor one's right to be free from unreasonable searches and seizures (Schmerber v. California, supra, 384 U.S. pp. 766--772, 86 S.Ct. 1826, 16 L.Ed.2d pp. 917--920), nor one's right to counsel (United States v. Wade, supra; People v. Sudduth, supra, 65 Cal.2d p. 546, 55 Cal.Rptr. 393, 421 P.2d 401; see also Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178).'
We observe that although section 13353 directs the arresting officer to state that refusal to take the test Will result in suspension of the driving privilege, nevertheless there are circumstances under which the suspension Will not occur. Whether or not a suspension occurs depends upon later findings of the Department, and where as here mandate is sought, upon decision of the superior court, and perhaps this or a higher court.
It is a fact, certainly known to every police officer, that despite the statute's language, a suspension of the driving privilege does Not inevitably result following an arrest and police admonition under section 13353. In a substantial percentage of such cases the Department itself does not suspend. (See Janusch v. Department of Motor Vehicles, 276 Cal.App.2d 193, 197, fn. 2, 80 Cal.Rptr. 726.) To this percentage must be added the cases where the courts find cause for setting aside such suspensions. As said in Janusch v. Department of Motor Vehicles, supra, page 196, 80 Cal.Rptr., page 728, 'The revocation by the Motor Vehicle Department results only after a formal hearing and (a) a showing of probable cause that respondent was arrested while driving under the influence of alcohol, (b) a warning after [98 Cal.Rptr. 667] the making of the arrest, and (c) the refusal to take the test. * * * The failure to prove all requirements will result in the license not being revoked despite the failure to take the test.'
From this state of affairs there has developed an understandable tendency of police officers to admonish a suspected drunken driver candidly as to his chances of license suspension, rather than in the deceptive and unrealistic language of the statute. Illustrations: Giomi v. Department of Motor Vehicles, 15 Cal.App.3d 905, 906, 93 Cal.Rptr. 613--'license Could be suspended'; Smith v. Department of Motor Vehicles, 1 Cal.App.3d 499, 502, 81 Cal.Rptr. 800, 802--refusal "could lead to the suspension" and "if you don't submit to the test, chances are that you will lose your license"; Janusch v. Department of Motor Vehicles, supra, 276 Cal.App.2d 193, 196, 80 Cal.Rptr. 726--license would 'probably' be revoked.
It has been said that the law's highest purpose is the ascertainment and expression of the truth. We believe it doubtful that the Legislature intended that police officers Mislead a suspected drunken driver by indicating that refusal of a chemical test must inevitably result in license suspension. Instead we presume a purpose that the statute be administered in an open and straightforward manner. "'All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice or oppression or an absurd consequence. It will always be presumed that the legislature intended exceptions to its language which would avoid results of this character."' (Cotton v. Superior Court, 56 Cal.2d 459, 465, 15 Cal.Rptr. 65, 68, 364 P.2d 241, 244.)
In the enforcement of the 'Implied Consent Law' appropriate police candor need do no violence to the Legislature's language. The word 'will,' the usage of which is here at issue, has even a lesser connotation of the 'imperative' or 'mandatory' than its close relative 'shall.' Yet, even "shall' does not in every instance require that the language be construed as mandatory.' (People v. Superior Court, 3 Cal.App.3d 476, 485--486, 83 Cal.Rptr. 771, 778.) " (W) hile the language ('shall') upon its face seems to be mandatory, the cardinal canon of interpretation requires, of course, that we give effect to the intention of the lawmakers, though it may seem opposed to the letter of the statute. " (Estate of Mitchell, 20 Cal.2d 48, 51, 123 P.2d 503, 504; In re Chadbourne, 15 Cal.App. 363, 368, 114 P. 1012.)
Nor does such a construction of section 13353, in our view, frustrate the policy inherent in the statute (see Bush v. Bright, supra, 264 Cal.App.2d 788, 790, 71 Cal.Rptr. 123), or deny to the drunken driver suspect any rights. One who establishes probable cause that he is such a driver has no right to refuse the statutory test. (Schmerber v. California, 384 U.S. 757, 760--765, 86 S.Ct. 1826, 16 L.Ed.2d 908; Bush v. Bright, supra, 264 Cal.App.2d p. 792, 71 Cal.Rptr. 123.) As said in People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 395, 421 P.2d 401, 403, such a refusal is a 'wrongful refusal to cooperate with law enforcement officers * * *.' By his choice the arrested person may deny to the People evidence of his offense, but he thereby brings upon himself the probable sanction of license suspension. It seems unlikely that the less credible and unrealistic police admonition argued for by respondent would serve to enhance the efficacy of the statute.
Respondent Nidever places much reliance on the case of Harrington v. Tofany (1969) 59 Misc.2d 197, 298 N.Y.S.2d 283, which dealt with New York's counterpart of section 13353. Discussing the statute's required warning of the consequences of failure of an inebriated driver's refusal to submit to a chemical test, the court said (p. 286): 'Manifestly this amendment (the warning) is for the benefit and protection of the driver. The language is clear and unambiguous; the warning contemplated mandatory and explicit. Anything [98 Cal.Rptr. 668] less is fatal. This section must be strictly construed and applied. * * *' But we note that the required warning of that case is in no way misleading. Indeed, the arresting officer is required truthfully to tell the driver 'that a refusal to submit to such chamical test May result in the revocation of his license,' precisely what was done by the officer in the case at bench. (Emphasis added.)
The statute, New York Vehicle and Traffic Law, McKinney's Consol. Laws, c. 71, section 1194(1), provides:
We hold that the purpose and intent of section 13353 are met when a police officer advises the suspect, in effect, that his driving privilege 'may' or 'might possibly' be suspended if he shall refuse the requested blood, breath, or urine test.
Our conclusion is consistent with the holdings of Smith v. Department of Motor Vehicles, supra, 1 Cal.App.3d 499, 502, 81 Cal.Rptr. 800, and Janusch v. Department of Motor Vehicles, supra, 276 Cal.App.2d 193, 194, 80 Cal.Rptr. 726. It is contrary to that reached in Giomi v. Department of Motor Vehicles, 15 Cal.App.3d 905, 907, 93 Cal.Rptr. 613, where the court, disapproving a license suspension said, 'The word 'could,' however, carries but a meaning of possibility and in common usage often refers to a result more remote than likely.' But in Giomi the point that a literal compliance with the statute is itself misleading seems not to have been raised or considered. The case need not be considered as authority for propositions not considered. (Fricker v. Uddo & Taormina Co., 48 Cal.2d 696, 701, 312 P92d 1085.) Co., 48 Cal.2d 696, 701, 312 P.2d 1085.) of the statute should rest upon a police officer's ability to correctly assess and state the probabilities or possibilities of a license suspension.
We have taken note of respondent's insistent argument that she was led to believe that her license suspension would depend upon some future proceeding, which she thought would be a criminal action. To the extent that she was led to believe that the suspension depended on a future proceeding, she was correctly informed, or at least her assumption was correct. But the officers said and did nothing to indicate that a criminal conviction was necessary to bring about the suspension. Such an apprehension being the product of her 'own thinking' and not police induced, it could in no event excuse her refusal of the test. (See Beales v. Dept. of Motor Vehicles, 271 Cal.App.2d 594, 596, 76 Cal.Rptr. 662.) And her belief and hope as to the future had no reasonable relation to her present statutory duty to submit to a chemical test.
Reversed.
MOLINARI, P.J., and SIMS, J., concur.
'(a) Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor. The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe such person was driving a motor vehicle upon a highway while under the influence of intoxicating liquor. Such person shall be told that his failure to submit to or complete such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of six months.
'The person arrested shall have the choice of whether the test shall be of his blood, breath or urine, * * *
'Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent and such tests may be administered whether or not such person is told that his failure to submit to the test will result in the suspension of his privilege to operate a motor vehicle.'
'No license, permit or non-resident operating privilege shall be revoked because of a refusal to submit to such chemical test if the hearing officer is satisfied that the person requested to submit to such chemical test had not been warned prior to such refusal to the effect that a refusal to submit to such chemical test may result in the revocation of his license or operating privilege whether or not he is found guilty of the charge for which he is arrested.'