San Diego DUI - DMV writ re refusal, prior (Carlton)
California DUI attorneys
Filed 3/27/08 Carlton v. DMV CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RICHMOND CARLTON,
Plaintiff and Appellant,
v.
STATE OF CALIFORNIA DEPARTMENT OF MOTOR VEHICLES,
Defendant and Respondent.
D050893
(Super. Ct. No. GIC876078)
APPEAL from a judgment of the Superior Court of San Diego County, Rafael Arreola, Judge. Affirmed.
Richmond Carlton was stopped for suspected driving under the influence (DUI) and, after allegedly refusing to take a breath, urine or blood test (in violation of Veh. Code, § 23612),1 he was served with a notice that his driving privileges would be suspended pursuant to section 13353, but that he could request an administrative hearing (the per se hearing) before a hearing officer of the Department of Motor Vehicles (DMV) to challenge certain factual issues. Carlton timely requested a per se hearing, and the DMV hearing officer found he had violated section 23612, which subjected Carlton to mandatory suspension of his driving privileges. (§ 13353, subd. (a).) Carlton petitioned for a writ of mandate under Code of Civil Procedure section 1094.5 to challenge that determination, and the trial court denied the petition as to that determination.
However, at the final session of the per se hearing, Carlton also purported to challenge the accuracy of the DMV's record that he had suffered a prior DUI conviction in Florida. Although this issue is not one of the issues statutorily enumerated for evaluation at a per se hearing (see §§ 13557, subd. (b)(1), 13558, subd. (c)(1)), the hearing officer nevertheless found Carlton's DMV driving record correctly reflected the prior Florida conviction was a qualifying offense under section 13353, subdivision (a)(2). Carlton's petition for a writ of mandate in the trial court, filed pursuant to Code of Civil Procedure section 1094.5, also purported to challenge the determination concerning Carlton's Florida conviction. The trial court ordered that the prior conviction issue be remanded to the DMV for further evidentiary proceedings on the Florida conviction.
Carlton appeals the trial court's order, and we affirm both aspects of the trial court's order.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Arrest and Blood Draw
Shortly after 2:00 a.m. on June 24, 2006, Officer Newbury saw Carlton's car in the slow lane of southbound I-5. Carlton drifted to the right and drove with his right wheels on the shoulder for several seconds before jerking back to the left. When Newbury saw Carlton again weave onto the shoulder, Newbury activated his emergency lights and pulled Carlton off the freeway before stopping him. When Newbury first spoke to Carlton, he immediately smelled alcohol. Carlton initially denied he had been drinking, but Newbury directed Carlton to get out of the car to conduct field sobriety tests. Carlton smelled of alcohol when he got out of the car, and Newbury noticed slurred speech and red, watery eyes. When Newbury again asked Carlton if he had been drinking, Carlton stated he had consumed two beers. Carlton performed poorly on the field sobriety tests. He also declined to take an initial preliminary alcohol screening breath test. Based on Newbury's observations, he arrested Carlton on suspicion of DUI.
Newbury transported Carlton to the Vista Detention facility, where Newbury explained the implied consent laws, and read verbatim from a form that warned Carlton about the consequences of refusing to take either a breath or a blood test. Carlton was agitated and repeatedly refused to agree to take any chemical test. Newbury warned Carlton that Newbury would hold him down if necessary, because the blood would be drawn with or without Carlton's permission, and Carlton continued to delay the blood draw, stating repeatedly, "I don't want to take this test" and "you can't do this." After the phlebotomist came to draw Carlton's blood and Newbury again warned he would if necessary hold Carlton down to allow the blood draw, Carlton (after a brief discussion with the phlebotomist) held out his arm to allow the blood draw but continued to state, "I'm not giving my consent" and "I don't want to give any blood." The blood draw was completed over Carlton's continued verbal protests. Carlton's blood alcohol level was .15 percent, nearly twice the legal limit.
B. The Proceedings
DMV Proceedings
Newbury served Carlton with a notice that his driving privileges would be suspended pursuant to section 13353 and that he could request a per se hearing to challenge limited factual issues. Carlton requested a per se hearing. At the initial hearing, the DMV hearing officer explained the limited issues presented for resolution, pursuant to section 13558, and admitted a copy of the police report as an exhibit.2 The hearing officer also heard the testimony of Carlton, who denied the accuracy of the police report insofar as it reported that Carlton had refused to take a blood test or that the test was a forced blood test. Because of the discrepancy between Carlton's testimony and the police report, the hearing officer continued the hearing to permit Newbury to appear and testify.
At the continued hearing, Newbury appeared and testified to Carlton's refusals to voluntarily submit to chemical tests.3 After the hearing, the hearing officer found Carlton had refused or failed to complete a drug test, in violation of section 23612 , and therefore Carlton was subject to mandatory suspension of his driving privileges.4 (§ 13353, subd. (a).)
Superior Court Proceedings
Carlton's writ petition under Code of Civil Procedure section 1094.5 asserted the finding of refusal was not supported by the evidence. His writ petition additionally asserted his prior Florida conviction was "inadmissible, as a matter of law" and should have been removed from his driving record.
The trial court, applying its independent judgment, denied the petition insofar as Carlton argued the weight of the evidence did not support the determination that he refused to take a chemical test. However, the court also concluded the DMV could not impose more than the one-year suspension triggered by Carlton's refusal without satisfactory evidence showing his prior conviction in Florida was properly entered into the DMV's records as a prior DUI offense within the meaning of the California statutory scheme. Accordingly, the court ordered the DMV to hold an administrative hearing to determine whether Carlton's prior Florida conviction was appropriately treated as a qualifying prior DUI offense for purposes of section 13353, subdivision (a)(2).
Carlton purports to appeal from both aspects of the order.
II
THE REFUSAL ISSUE
A. Legal Framework
When a driver requests an administrative per se hearing to challenge whether his or her driver's license may be suspended under section 13353 for allegedly refusing to consent to a chemical test, the scope of that hearing is confined to the facts listed in section 13557, subdivision (b)(1). The per se hearing examines only (1) whether the law enforcement officer had reasonable cause to believe the person had been driving a motor vehicle while under the influence; (2) whether the person was placed under arrest; (3) whether the person "refused or failed to complete the chemical test . . . after being requested by a peace officer"; and (4) whether the person had been told his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to and complete the required testing. (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1127; §§ 13557, subd. (b)(1), 13558, subd. (c)(1).)
If the hearing officer makes these findings at the per se hearing, the driver may challenge the adverse determination by petitioning the trial court for a writ of mandamus under Code of Civil Procedure section 1094.5. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) The trial court exercises its independent judgment to decide whether the weight of the evidence supports the administrative decision. (Ibid.)
When the trial court denies the writ, and the driver appeals from that denial, our review is limited to deciding whether the record contains substantial evidence that, if credited, would support the trial court's decision on the issues presented. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) We resolve all factual conflicts, and draw all legitimate inferences, in favor of the trial court's decision, and we may not overturn the factual findings unless the evidence is insufficient as a matter of law to sustain those findings. (Ibid.)
B. Evaluation
At both the per se hearing and in the trial court, the only disputed section 13557, subdivision (b)(1), fact was whether Carlton refused to take a chemical test. The DMV and the trial court were provided with Officer Newbury's sworn report, which described the admonition Newbury gave to Carlton concerning the necessity for agreeing to a chemical test and reported that Carlton answered, "No" when asked whether he would take a blood or breath test. This evidence alone would support the finding of refusal. (Cf. Lake v Reed, supra, 16 Cal.4th at pp. 457-458.) Additionally, the hearing officer (as well as the trial court) was provided the testimony of Officer Newbury. Newbury explained that, after reading verbatim from a form warning Carlton of the consequences of refusal and explaining the consequences of refusal, Carlton remained agitated and repeatedly refused to agree to take any chemical test. Even after Newbury warned Carlton that Newbury would hold him down if necessary, because the blood would be drawn with or without Carlton's permission, Carlton delayed by stating repeatedly, "I don't want to take this test" and "you can't do this."
The evidence also supports the conclusion that it was only after the phlebotomist came to draw Carlton's blood, and Newbury warned he would if necessary hold Carlton down to allow the blood draw, that Carlton held out his arm to allow the blood draw, although he continued to state, "I'm not giving my consent" and "I don't want to give any blood." A driver who verbally refuses to take the test, even though he or she does not physically resist the actual blood draw, has refused to take the test within the meaning of the statute. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517-1519 [initial refusal to take test, followed by submission to test under verbal protest, is refusal within statutory scheme]; Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1162 [same].) Indeed, the courts have concluded a driver has refused to take a test when the driver remains mute when asked whether he or she would submit to a test. (Lampman v. Department of Motor Vehicles (1972) 28 Cal.App.3d 922, 927; Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299.)
Carlton asserts the evidence showed he never refused but instead merely asked the phlebotomist about her qualifications and, upon being satisfied, voluntarily held out his arm to permit the blood draw. Although a driver may refuse to permit a blood draw until he is satisfied the technician is qualified to perform the procedure (Ross v. Department of Motor Vehicles (1990) 219 Cal.App.3d 398, 402-403), the evidence viewed most favorably to the determination below showed Carlton had verbally stated he would not take any test before the phlebotomist had even arrived. A driver cannot "refuse to take a test required by section 13353 and avoid the license suspension mandated by the statute by later agreeing to . . . allow[] blood to be taken" (Barrie v. Alexis, supra, 151 Cal.App.3d at p. 1163) because " '[t]he fact that a blood sample ultimately was obtained and the test completed is of no significance.' [Quoting Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 875.] . . . It is the initial refusal which forms the basis for suspension of the driver's license" under section 13353. (Barrie v. Alexis, at p. 1162.) More importantly, Newbury explained Carlton proffered his arm under threat of physical force, while nevertheless maintaining that he protested the blood draw, and did not voluntarily agree to the test once he was satisfied about the technician's qualifications. (Cf. Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165, 170-171 [refusal found where blood was drawn without physical resistance but threat of physical compulsion was required to force compliance].) The evidence, viewed most favorably to the judgment, provides substantial evidence to support the finding Carlton refused to take a test within the meaning of the statutory scheme.
III
THE PRIOR CONVICTION ISSUE
A. Procedural Posture
Carlton's petition purported to attack the effect of his prior conviction from Florida, asserting (1) it was "inadmissible" under Draeger v. Reed (1999) 69 Cal.App.4th 1511, and (2) it should have been removed from his driving record at the per se hearing. Carlton's petition sought an order directing the DMV to remove the prior conviction from his driving record. In the trial court proceedings, the DMV opposed the relief sought by Carlton, arguing (1) a challenge to a driver's DMV driving record cannot be raised at a per se hearing but instead must be pursued by requesting a distinct administrative hearing to challenge the accuracy of the DMV's driving record; and (2) even if it were permissible to contest the accuracy of the DMV's records at the per se hearing, the supplemental evidence submitted by the DMV at the trial court level in opposition to Carlton's writ petition demonstrated the Florida conviction qualified as a DUI offense under section 13353, subdivision (a)(2).
The trial court ordered the prior conviction issue remanded to the DMV to hold an administrative hearing to consider whether Carlton's Florida conviction was properly entered on his driving record as a prior DUI, and that such remand was without prejudice to Carlton's ability to seek writ relief from the subsequent administrative determination.
B. Legal Framework
A per se hearing is legislatively confined to deciding the four discrete facts listed in section 13557, subdivision (b)(1). (Troppman v. Valverde, supra, 40 Cal.4th at p. 1127; §§ 13557, subd. (b)(1), 13558, subd. (c)(1).) Because "revocation or suspension of a license under section 13353 does not require proof beyond the four factors listed in sections 13353, subdivision (d), and section 13557, subdivision (b)(1), and made exclusive by section 13558, subdivision (c)(1)" (Troppman, at p. 1137, italics added), and there is no reference to a driver's prior convictions in either section 13353, subdivision (d), or section 13557, subdivision (b)(1), the appropriate period of a suspension or revocation appears outside of "the 'only' issues to be resolved at the administrative hearing concerning license suspension or revocation." (Troppman, at p. 1131 [italics added by Troppman].)
However, because the DMV must impose a two-year revocation of the driver's privileges if the violation of the implied consent law (as found under the provisions of sections 13557, subdivision (b)(1), and 13558, subdivision (c)(1)) occurred within 10 years of a specified prior offense (§ 13353, subd. (a)(2)), the courts have recognized the driver must have a mechanism for challenging whether he or she was convicted of one of the specified prior offenses. (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 380, fn. 8 (Pollack); Draeger v. Reed, supra, 69 Cal.App.4th at pp. 1523-1524; cf. Isaac v. Department of Motor Vehicles (2007) 155 Cal.App.4th 851.) Accordingly, when a driver disputes the accuracy of the DMV records of his prior convictions, he or she may request an administrative hearing to demonstrate the inaccuracy of the DMV record (Pollack, at p. 380, fn. 8) or may petition for a writ of mandate under Code of Civil Procedure section 10855 to contest whether the DMV accurately recorded the prior conviction. (Draeger v. Reed, supra, 69 Cal.App.4th at 1523-1524; Isaac v. Department of Motor Vehicles, supra, 155 Cal.App.4th at p., 855.)
C. Analysis
We conclude that because the administrative per se hearing requested by Carlton is legislatively limited to specified issues, and the accuracy of the DMV's records of prior convictions is not included within those issues, Carlton's attempt to challenge whether his prior Florida conviction qualified as a specified prior offense interjected issues beyond the jurisdiction conferred on the hearing officer at a per se hearing. Accordingly, the hearing officer's purported "decision" on that challenge was without force or effect. (Cf Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691 ["A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction 'relates to the inherent authority of the court involved to deal with the case or matter before it.' [Citation.] Lack of jurisdiction in this 'fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' [Citation.] [¶] In a broader sense, lack of jurisdiction also exists when a court grants 'relief which [it] has no power to grant.' [Citations.]")
However, the trial court's order in effect directed the DMV to afford Carlton a distinct administrative hearing, within the meaning of Pollack, to determine whether Carlton's Florida conviction was properly entered as a DUI on his driving record. Carlton's underlying writ petition, when liberally construed, can be interpreted as pleading an independent claim for mandamus under section 1085 insofar as he contested the propriety of the DMV's entry of his Florida conviction as a qualifying offense onto his driving record. Because we will consider Carlton's "prior conviction" claim as a separate mandamus claim in effect consolidated with his distinct section 1094.5 administrative mandamus claim on the refusal issue, we examine the trial court's order on his prior conviction claim as a separate disposition of a separate claim under Code of Civil Procedure section 1085.
The trial court granted Carlton's petition for a writ by ordering the "prior conviction" issue remanded for an administrative hearing to determine whether the prior conviction "involved driving and can otherwise appropriately be treated as a qualifying prior D.U.I. offense." Although Carlton purports to appeal from this order, a trial court's order on a petition for writ of mandate that grants the petitioner relief by remanding the issue for additional administrative proceedings is not appealable.6 (Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424, 1430; Village Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101 Cal.App.4th 1133, 1139-1140.) Carlton argues this court should, in the exercise of our discretion, treat his improper appeal from this nonappealable remand order as a petition for writ of mandate. (Board of Dental Examiners, at pp. 1430-1431; Village Trailer Park, at p. 1140.) However, we decline Carlton's invitation because the record is inadequately developed on whether his Florida conviction was a "driving"-type offense (which would qualify as a California DUI) or instead was based on being in "control" of the vehicle (which would not qualify as a California DUI). (Compare Draeger v. Reed, supra, 69 Cal.App.4th at pp. 1521-1523 with Isaac v. Department of Motor Vehicles, Inc. 155 Cal.App.4th at pp. 862-864.) Because Carlton has been afforded a hearing at which the relevant factual issues may be addressed, and the trial court's order specifically preserved Carlton's ability to file a subsequent writ petition if he wishes to challenge any adverse determination on the prior conviction issue, we decline Carlton's invitation to treat his appeal as a writ of mandate because it would require this court to speculate on whether the DMV properly treated his Florida conviction as a DUI offense.
DISPOSITION
The orders are affirmed.
McDONALD, J.
I CONCUR:
HALLER, J.
I CONCUR IN THE RESULT:
HUFFMAN, Acting P. J.
1 All further statutory references are to the Vehicle Code unless otherwise specified.
2 The hearing officer also admitted, without objection, the DMV driving record for Carlton.
3 At the continued hearing, Carlton purported to object to the DMV record, asserting the Florida conviction was not for DUI and therefore should be stricken from his driving record.
4 The hearing officer also concluded Carlton's DMV driving record was correct.
5 The proper method of obtaining judicial review of most public agency decisions is by instituting a proceeding for a writ of mandate, and the statutory scheme provides for two types of review by mandate: ordinary mandate and administrative mandate. (Code Civ. Proc., §§ 1085, 1094.5.) The applicable type of mandate depends on the nature of the administrative action or decision to be reviewed. (Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 570, 574.) Although the general rule is that quasi-legislative acts are reviewed by ordinary mandate and quasi-judicial acts are reviewed by administrative mandate (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567), "judicial review via administrative mandate is available 'only if the decision[] resulted from a "proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency. [Citations.]" [Citation.]' [Quoting Weary v. Civil Service Com. (1983) 140 Cal.App.3d 189, 195.] Thus, ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing." (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) Under the relevant provisions of the Vehicle Code, foreign convictions must be recorded into a driver's record and given the same effect as if they had occurred in California (§§ 15023, subd. (a), 1806, subd. (a)) and, because such entry is mandatory, no hearing is required prior to entry of a conviction onto a driver's record. (§ 14101, subd. (a).) We therefore construe the statutory scheme to require that, if the DMV declines a driver's request for an administrative hearing under Pollack, supra, 38 Cal.3d at p. 380 seeking to remove a conviction from the records because of the inaccuracy of the DMV record, any judicial challenge to the propriety of the DMV's action must proceed by writ of mandate under Code of Civil Procedure section 1085.
6 We recognize that Draeger v. Reed, supra, 69 Cal.App.4th 1511 suggests the trial court's order, insofar as it compelled the DMV to hold an administrative hearing on whether Carlton's Florida conviction was properly entered as a DUI on Carlton's driving record, may have been erroneous as to the DMV. (Id. at pp. 1523-1524.) However, the DMV has not sought review of that order.
Filed 3/27/08 Carlton v. DMV CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RICHMOND CARLTON,
Plaintiff and Appellant,
v.
STATE OF CALIFORNIA DEPARTMENT OF MOTOR VEHICLES,
Defendant and Respondent.
D050893
(Super. Ct. No. GIC876078)
APPEAL from a judgment of the Superior Court of San Diego County, Rafael Arreola, Judge. Affirmed.
Richmond Carlton was stopped for suspected driving under the influence (DUI) and, after allegedly refusing to take a breath, urine or blood test (in violation of Veh. Code, § 23612),1 he was served with a notice that his driving privileges would be suspended pursuant to section 13353, but that he could request an administrative hearing (the per se hearing) before a hearing officer of the Department of Motor Vehicles (DMV) to challenge certain factual issues. Carlton timely requested a per se hearing, and the DMV hearing officer found he had violated section 23612, which subjected Carlton to mandatory suspension of his driving privileges. (§ 13353, subd. (a).) Carlton petitioned for a writ of mandate under Code of Civil Procedure section 1094.5 to challenge that determination, and the trial court denied the petition as to that determination.
However, at the final session of the per se hearing, Carlton also purported to challenge the accuracy of the DMV's record that he had suffered a prior DUI conviction in Florida. Although this issue is not one of the issues statutorily enumerated for evaluation at a per se hearing (see §§ 13557, subd. (b)(1), 13558, subd. (c)(1)), the hearing officer nevertheless found Carlton's DMV driving record correctly reflected the prior Florida conviction was a qualifying offense under section 13353, subdivision (a)(2). Carlton's petition for a writ of mandate in the trial court, filed pursuant to Code of Civil Procedure section 1094.5, also purported to challenge the determination concerning Carlton's Florida conviction. The trial court ordered that the prior conviction issue be remanded to the DMV for further evidentiary proceedings on the Florida conviction.
Carlton appeals the trial court's order, and we affirm both aspects of the trial court's order.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Arrest and Blood Draw
Shortly after 2:00 a.m. on June 24, 2006, Officer Newbury saw Carlton's car in the slow lane of southbound I-5. Carlton drifted to the right and drove with his right wheels on the shoulder for several seconds before jerking back to the left. When Newbury saw Carlton again weave onto the shoulder, Newbury activated his emergency lights and pulled Carlton off the freeway before stopping him. When Newbury first spoke to Carlton, he immediately smelled alcohol. Carlton initially denied he had been drinking, but Newbury directed Carlton to get out of the car to conduct field sobriety tests. Carlton smelled of alcohol when he got out of the car, and Newbury noticed slurred speech and red, watery eyes. When Newbury again asked Carlton if he had been drinking, Carlton stated he had consumed two beers. Carlton performed poorly on the field sobriety tests. He also declined to take an initial preliminary alcohol screening breath test. Based on Newbury's observations, he arrested Carlton on suspicion of DUI.
Newbury transported Carlton to the Vista Detention facility, where Newbury explained the implied consent laws, and read verbatim from a form that warned Carlton about the consequences of refusing to take either a breath or a blood test. Carlton was agitated and repeatedly refused to agree to take any chemical test. Newbury warned Carlton that Newbury would hold him down if necessary, because the blood would be drawn with or without Carlton's permission, and Carlton continued to delay the blood draw, stating repeatedly, "I don't want to take this test" and "you can't do this." After the phlebotomist came to draw Carlton's blood and Newbury again warned he would if necessary hold Carlton down to allow the blood draw, Carlton (after a brief discussion with the phlebotomist) held out his arm to allow the blood draw but continued to state, "I'm not giving my consent" and "I don't want to give any blood." The blood draw was completed over Carlton's continued verbal protests. Carlton's blood alcohol level was .15 percent, nearly twice the legal limit.
B. The Proceedings
DMV Proceedings
Newbury served Carlton with a notice that his driving privileges would be suspended pursuant to section 13353 and that he could request a per se hearing to challenge limited factual issues. Carlton requested a per se hearing. At the initial hearing, the DMV hearing officer explained the limited issues presented for resolution, pursuant to section 13558, and admitted a copy of the police report as an exhibit.2 The hearing officer also heard the testimony of Carlton, who denied the accuracy of the police report insofar as it reported that Carlton had refused to take a blood test or that the test was a forced blood test. Because of the discrepancy between Carlton's testimony and the police report, the hearing officer continued the hearing to permit Newbury to appear and testify.
At the continued hearing, Newbury appeared and testified to Carlton's refusals to voluntarily submit to chemical tests.3 After the hearing, the hearing officer found Carlton had refused or failed to complete a drug test, in violation of section 23612 , and therefore Carlton was subject to mandatory suspension of his driving privileges.4 (§ 13353, subd. (a).)
Superior Court Proceedings
Carlton's writ petition under Code of Civil Procedure section 1094.5 asserted the finding of refusal was not supported by the evidence. His writ petition additionally asserted his prior Florida conviction was "inadmissible, as a matter of law" and should have been removed from his driving record.
The trial court, applying its independent judgment, denied the petition insofar as Carlton argued the weight of the evidence did not support the determination that he refused to take a chemical test. However, the court also concluded the DMV could not impose more than the one-year suspension triggered by Carlton's refusal without satisfactory evidence showing his prior conviction in Florida was properly entered into the DMV's records as a prior DUI offense within the meaning of the California statutory scheme. Accordingly, the court ordered the DMV to hold an administrative hearing to determine whether Carlton's prior Florida conviction was appropriately treated as a qualifying prior DUI offense for purposes of section 13353, subdivision (a)(2).
Carlton purports to appeal from both aspects of the order.
II
THE REFUSAL ISSUE
A. Legal Framework
When a driver requests an administrative per se hearing to challenge whether his or her driver's license may be suspended under section 13353 for allegedly refusing to consent to a chemical test, the scope of that hearing is confined to the facts listed in section 13557, subdivision (b)(1). The per se hearing examines only (1) whether the law enforcement officer had reasonable cause to believe the person had been driving a motor vehicle while under the influence; (2) whether the person was placed under arrest; (3) whether the person "refused or failed to complete the chemical test . . . after being requested by a peace officer"; and (4) whether the person had been told his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to and complete the required testing. (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1127; §§ 13557, subd. (b)(1), 13558, subd. (c)(1).)
If the hearing officer makes these findings at the per se hearing, the driver may challenge the adverse determination by petitioning the trial court for a writ of mandamus under Code of Civil Procedure section 1094.5. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) The trial court exercises its independent judgment to decide whether the weight of the evidence supports the administrative decision. (Ibid.)
When the trial court denies the writ, and the driver appeals from that denial, our review is limited to deciding whether the record contains substantial evidence that, if credited, would support the trial court's decision on the issues presented. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) We resolve all factual conflicts, and draw all legitimate inferences, in favor of the trial court's decision, and we may not overturn the factual findings unless the evidence is insufficient as a matter of law to sustain those findings. (Ibid.)
B. Evaluation
At both the per se hearing and in the trial court, the only disputed section 13557, subdivision (b)(1), fact was whether Carlton refused to take a chemical test. The DMV and the trial court were provided with Officer Newbury's sworn report, which described the admonition Newbury gave to Carlton concerning the necessity for agreeing to a chemical test and reported that Carlton answered, "No" when asked whether he would take a blood or breath test. This evidence alone would support the finding of refusal. (Cf. Lake v Reed, supra, 16 Cal.4th at pp. 457-458.) Additionally, the hearing officer (as well as the trial court) was provided the testimony of Officer Newbury. Newbury explained that, after reading verbatim from a form warning Carlton of the consequences of refusal and explaining the consequences of refusal, Carlton remained agitated and repeatedly refused to agree to take any chemical test. Even after Newbury warned Carlton that Newbury would hold him down if necessary, because the blood would be drawn with or without Carlton's permission, Carlton delayed by stating repeatedly, "I don't want to take this test" and "you can't do this."
The evidence also supports the conclusion that it was only after the phlebotomist came to draw Carlton's blood, and Newbury warned he would if necessary hold Carlton down to allow the blood draw, that Carlton held out his arm to allow the blood draw, although he continued to state, "I'm not giving my consent" and "I don't want to give any blood." A driver who verbally refuses to take the test, even though he or she does not physically resist the actual blood draw, has refused to take the test within the meaning of the statute. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517-1519 [initial refusal to take test, followed by submission to test under verbal protest, is refusal within statutory scheme]; Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1162 [same].) Indeed, the courts have concluded a driver has refused to take a test when the driver remains mute when asked whether he or she would submit to a test. (Lampman v. Department of Motor Vehicles (1972) 28 Cal.App.3d 922, 927; Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299.)
Carlton asserts the evidence showed he never refused but instead merely asked the phlebotomist about her qualifications and, upon being satisfied, voluntarily held out his arm to permit the blood draw. Although a driver may refuse to permit a blood draw until he is satisfied the technician is qualified to perform the procedure (Ross v. Department of Motor Vehicles (1990) 219 Cal.App.3d 398, 402-403), the evidence viewed most favorably to the determination below showed Carlton had verbally stated he would not take any test before the phlebotomist had even arrived. A driver cannot "refuse to take a test required by section 13353 and avoid the license suspension mandated by the statute by later agreeing to . . . allow[] blood to be taken" (Barrie v. Alexis, supra, 151 Cal.App.3d at p. 1163) because " '[t]he fact that a blood sample ultimately was obtained and the test completed is of no significance.' [Quoting Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 875.] . . . It is the initial refusal which forms the basis for suspension of the driver's license" under section 13353. (Barrie v. Alexis, at p. 1162.) More importantly, Newbury explained Carlton proffered his arm under threat of physical force, while nevertheless maintaining that he protested the blood draw, and did not voluntarily agree to the test once he was satisfied about the technician's qualifications. (Cf. Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165, 170-171 [refusal found where blood was drawn without physical resistance but threat of physical compulsion was required to force compliance].) The evidence, viewed most favorably to the judgment, provides substantial evidence to support the finding Carlton refused to take a test within the meaning of the statutory scheme.
III
THE PRIOR CONVICTION ISSUE
A. Procedural Posture
Carlton's petition purported to attack the effect of his prior conviction from Florida, asserting (1) it was "inadmissible" under Draeger v. Reed (1999) 69 Cal.App.4th 1511, and (2) it should have been removed from his driving record at the per se hearing. Carlton's petition sought an order directing the DMV to remove the prior conviction from his driving record. In the trial court proceedings, the DMV opposed the relief sought by Carlton, arguing (1) a challenge to a driver's DMV driving record cannot be raised at a per se hearing but instead must be pursued by requesting a distinct administrative hearing to challenge the accuracy of the DMV's driving record; and (2) even if it were permissible to contest the accuracy of the DMV's records at the per se hearing, the supplemental evidence submitted by the DMV at the trial court level in opposition to Carlton's writ petition demonstrated the Florida conviction qualified as a DUI offense under section 13353, subdivision (a)(2).
The trial court ordered the prior conviction issue remanded to the DMV to hold an administrative hearing to consider whether Carlton's Florida conviction was properly entered on his driving record as a prior DUI, and that such remand was without prejudice to Carlton's ability to seek writ relief from the subsequent administrative determination.
B. Legal Framework
A per se hearing is legislatively confined to deciding the four discrete facts listed in section 13557, subdivision (b)(1). (Troppman v. Valverde, supra, 40 Cal.4th at p. 1127; §§ 13557, subd. (b)(1), 13558, subd. (c)(1).) Because "revocation or suspension of a license under section 13353 does not require proof beyond the four factors listed in sections 13353, subdivision (d), and section 13557, subdivision (b)(1), and made exclusive by section 13558, subdivision (c)(1)" (Troppman, at p. 1137, italics added), and there is no reference to a driver's prior convictions in either section 13353, subdivision (d), or section 13557, subdivision (b)(1), the appropriate period of a suspension or revocation appears outside of "the 'only' issues to be resolved at the administrative hearing concerning license suspension or revocation." (Troppman, at p. 1131 [italics added by Troppman].)
However, because the DMV must impose a two-year revocation of the driver's privileges if the violation of the implied consent law (as found under the provisions of sections 13557, subdivision (b)(1), and 13558, subdivision (c)(1)) occurred within 10 years of a specified prior offense (§ 13353, subd. (a)(2)), the courts have recognized the driver must have a mechanism for challenging whether he or she was convicted of one of the specified prior offenses. (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 380, fn. 8 (Pollack); Draeger v. Reed, supra, 69 Cal.App.4th at pp. 1523-1524; cf. Isaac v. Department of Motor Vehicles (2007) 155 Cal.App.4th 851.) Accordingly, when a driver disputes the accuracy of the DMV records of his prior convictions, he or she may request an administrative hearing to demonstrate the inaccuracy of the DMV record (Pollack, at p. 380, fn. 8) or may petition for a writ of mandate under Code of Civil Procedure section 10855 to contest whether the DMV accurately recorded the prior conviction. (Draeger v. Reed, supra, 69 Cal.App.4th at 1523-1524; Isaac v. Department of Motor Vehicles, supra, 155 Cal.App.4th at p., 855.)
C. Analysis
We conclude that because the administrative per se hearing requested by Carlton is legislatively limited to specified issues, and the accuracy of the DMV's records of prior convictions is not included within those issues, Carlton's attempt to challenge whether his prior Florida conviction qualified as a specified prior offense interjected issues beyond the jurisdiction conferred on the hearing officer at a per se hearing. Accordingly, the hearing officer's purported "decision" on that challenge was without force or effect. (Cf Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691 ["A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction 'relates to the inherent authority of the court involved to deal with the case or matter before it.' [Citation.] Lack of jurisdiction in this 'fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' [Citation.] [¶] In a broader sense, lack of jurisdiction also exists when a court grants 'relief which [it] has no power to grant.' [Citations.]")
However, the trial court's order in effect directed the DMV to afford Carlton a distinct administrative hearing, within the meaning of Pollack, to determine whether Carlton's Florida conviction was properly entered as a DUI on his driving record. Carlton's underlying writ petition, when liberally construed, can be interpreted as pleading an independent claim for mandamus under section 1085 insofar as he contested the propriety of the DMV's entry of his Florida conviction as a qualifying offense onto his driving record. Because we will consider Carlton's "prior conviction" claim as a separate mandamus claim in effect consolidated with his distinct section 1094.5 administrative mandamus claim on the refusal issue, we examine the trial court's order on his prior conviction claim as a separate disposition of a separate claim under Code of Civil Procedure section 1085.
The trial court granted Carlton's petition for a writ by ordering the "prior conviction" issue remanded for an administrative hearing to determine whether the prior conviction "involved driving and can otherwise appropriately be treated as a qualifying prior D.U.I. offense." Although Carlton purports to appeal from this order, a trial court's order on a petition for writ of mandate that grants the petitioner relief by remanding the issue for additional administrative proceedings is not appealable.6 (Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424, 1430; Village Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101 Cal.App.4th 1133, 1139-1140.) Carlton argues this court should, in the exercise of our discretion, treat his improper appeal from this nonappealable remand order as a petition for writ of mandate. (Board of Dental Examiners, at pp. 1430-1431; Village Trailer Park, at p. 1140.) However, we decline Carlton's invitation because the record is inadequately developed on whether his Florida conviction was a "driving"-type offense (which would qualify as a California DUI) or instead was based on being in "control" of the vehicle (which would not qualify as a California DUI). (Compare Draeger v. Reed, supra, 69 Cal.App.4th at pp. 1521-1523 with Isaac v. Department of Motor Vehicles, Inc. 155 Cal.App.4th at pp. 862-864.) Because Carlton has been afforded a hearing at which the relevant factual issues may be addressed, and the trial court's order specifically preserved Carlton's ability to file a subsequent writ petition if he wishes to challenge any adverse determination on the prior conviction issue, we decline Carlton's invitation to treat his appeal as a writ of mandate because it would require this court to speculate on whether the DMV properly treated his Florida conviction as a DUI offense.
DISPOSITION
The orders are affirmed.
McDONALD, J.
I CONCUR:
HALLER, J.
I CONCUR IN THE RESULT:
HUFFMAN, Acting P. J.
1 All further statutory references are to the Vehicle Code unless otherwise specified.
2 The hearing officer also admitted, without objection, the DMV driving record for Carlton.
3 At the continued hearing, Carlton purported to object to the DMV record, asserting the Florida conviction was not for DUI and therefore should be stricken from his driving record.
4 The hearing officer also concluded Carlton's DMV driving record was correct.
5 The proper method of obtaining judicial review of most public agency decisions is by instituting a proceeding for a writ of mandate, and the statutory scheme provides for two types of review by mandate: ordinary mandate and administrative mandate. (Code Civ. Proc., §§ 1085, 1094.5.) The applicable type of mandate depends on the nature of the administrative action or decision to be reviewed. (Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 570, 574.) Although the general rule is that quasi-legislative acts are reviewed by ordinary mandate and quasi-judicial acts are reviewed by administrative mandate (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567), "judicial review via administrative mandate is available 'only if the decision[] resulted from a "proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency. [Citations.]" [Citation.]' [Quoting Weary v. Civil Service Com. (1983) 140 Cal.App.3d 189, 195.] Thus, ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing." (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) Under the relevant provisions of the Vehicle Code, foreign convictions must be recorded into a driver's record and given the same effect as if they had occurred in California (§§ 15023, subd. (a), 1806, subd. (a)) and, because such entry is mandatory, no hearing is required prior to entry of a conviction onto a driver's record. (§ 14101, subd. (a).) We therefore construe the statutory scheme to require that, if the DMV declines a driver's request for an administrative hearing under Pollack, supra, 38 Cal.3d at p. 380 seeking to remove a conviction from the records because of the inaccuracy of the DMV record, any judicial challenge to the propriety of the DMV's action must proceed by writ of mandate under Code of Civil Procedure section 1085.
6 We recognize that Draeger v. Reed, supra, 69 Cal.App.4th 1511 suggests the trial court's order, insofar as it compelled the DMV to hold an administrative hearing on whether Carlton's Florida conviction was properly entered as a DUI on Carlton's driving record, may have been erroneous as to the DMV. (Id. at pp. 1523-1524.) However, the DMV has not sought review of that order.
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