Filed 3/3/20 Bodenmann v. Gordon CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

—-

CORRINA KATHLEEN BODENMANN,

Plaintiff and Appellant,

v.

STEVE GORDON, as Director, etc.,

Defendant and Respondent.

C072975

(Super. Ct. No. CVPT121069)

Defendant Department of Motor Vehicles (DMV) suspended plaintiff Corrina Kathleen Bodenmann’s driver’s license for one year after she refused to submit to a chemical test to determine her blood alcohol content. Bodenmann filed a petition for writ of mandate challenging the suspension, which the trial court denied. Bodenmann appeals, contending the officer involved lacked reasonable cause to believe she was driving under the influence when he initially detained her, her arrest was unlawful, and she did not refuse to submit to the chemical test. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2012 Yolo County Sherriff’s Department deputy John Campos responded to a 911 call from a residence. The dispatcher told Campos that after the initial call the 911 caller “reported that there was a verbal argument between [the caller] and his wife but that it had been resolved and law enforcement should cancel.” Campos responded that he would go to the residence for a welfare check.

When Campos arrived at the residence, he saw Bodenmann leaving. She got into a vehicle, drove down the street to a dead end, and made a U-turn. Campos, with his spotlight on, drove toward the vehicle. Bodenmann stopped and Campos approached her vehicle.

Campos asked Bodenmann to move her car off the road. Bodenmann responded she was “fine where she was at” and was not going to move her car. Campos renewed his request and Bodenmann complied, but stated she did not know why she needed to move.

Bodenmann’s husband came out of the residence and told Campos that the 911 call had been canceled and he could leave. Campos told Bodenmann’s husband that he was conducting a welfare check and that the husband should return to the residence.

As Campos spoke with Bodenmann about the 911 call, he smelled alcohol on her breath. He asked her to submit to a preliminary alcohol screening test. Bodenmann refused. Campos “advised her that was okay, she had the right to not to submit to it.” He also told her that “she was obligated to submit to a chemical test at the request of a peace officer if they suspect DUI, otherwise she could go to jail, and have her license suspended.” Bodenmann became upset and continued to refuse to take any chemical test.

Bodenmann then agreed to complete a “sobriety test” for Campos. However, when Campos told her a highway patrol officer would have to conduct the test, she declined to be tested. Bodenmann stated she wanted to complain about how Campos was treating her and Campos called his supervisor. Campos testified he had not formed an opinion regarding her sobriety at that point.

Bodenmann got out of the car and told Campos she was going back inside. Campos told her to walk to his vehicle. Bodenmann began to get back into her car. Campos, afraid she would drive away, arrested Bodenmann.

After her arrest, Campos read Bodenmann the administrative admonishment. Bodenmann refused to respond to Campos’s questions regarding which test she would consent to. As part of the admonishment, Campos advised Bodenmann of the consequences of a failure to respond. At the jail, Bodenmann submitted to a blood test.

The DMV suspended Bodenmann’s license for one year for refusing to submit to a chemical test to determine her blood alcohol content. Bodenmann appealed her license suspension to the DMV. Following a hearing and submission of evidence the DMV upheld the license suspension. The DMV considered the arrest report, a supplemental report, and Campos’s sworn statement and found substantial evidence that Bodenmann refused to take a chemical test. Bodenmann filed a petition for a writ of mandate challenging the license suspension. She argued substantial evidence did not support the DMV’s findings. After written and oral argument, the trial court denied the petition.

The court found the weight of evidence supported the DMV’s finding that Campos had reasonable cause to believe Bodenmann was in violation of Vehicle Code section 23152. The court noted that while Campos was speaking with Bodenmann, he detected “ ‘a real strong odor of alcohol coming from the vehicle.’ ” After she refused to take the sobriety test, Bodenmann’s behavior became erratic; she tried to leave and was arrested by Campos. Campos read the entire “Chemical Test Admonishment” to Bodenmann. When Campos asked her which test she would submit to, Bodenmann failed to respond.

In addition, the court found Bodenmann failed to demonstrate Campos unlawfully detained her. According to the court: “There is no evidence that a prolonged detention occurred from the time Deputy Campos illuminated [Bodenmann’s] vehicle with his spotlight, to the time Deputy Campos detected a strong odor of alcohol coming from [Bodenmann’s] vehicle. The record does not definitively demonstrate that [Bodenmann] was unlawfully detained at the time Deputy Campos smelled the alcoholic beverage.”

As for Bodenmann’s refusal to submit to a test, the court found that after reading her the complete admonishment, Campos believed she appeared to understand it but failed to respond when asked which test she would submit to: “Although Deputy Campos also testified that [Bodenmann] ‘didn’t refuse at that point,’ he specifically testified that [Bodenmann] ‘didn’t say anything.’ However, after she had been given the formal admonishment that she was obliged to state whether or not she would submit to a test, it should have been clear to [Bodenmann] that a response was required. [Citation.] This is especially true in light of [Bodenmann’s] previous statements to Deputy Campos, prior to her arrest, that she would not submit to any test for alcohol since she had not been drinking. Once [Bodenmann] was read the formal admonishment and explicitly made aware that a refusal would result in the suspension of her driving privileges, the record supports a finding that her silence constituted a refusal in violation of . . . section 13353.” Finally, the court found the record did not contain sufficient evidence that Bodenmann’s refusal was a product of an emotional or mental state that would excuse such a refusal.

Following entry of judgment, Bodenmann filed a timely notice of appeal.

DISCUSSION

I

A trial court, in considering a petition for writ of mandate following an order suspending a driver’s license, determines, based on its independent judgment, whether the weight of evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) Our review of the DMV’s action is identical with that of the trial court. The same substantial evidence standard applies, and the issue is whether the findings of the DMV were based on substantial evidence in light of the entire administrative record. We examine the findings made by the agency itself to determine whether they were supported by substantial evidence, rather than limiting ourselves to a review of the trial court’s findings. (Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1212.)

Four factors must be established for the DMV to suspend a driver’s license based on a refusal to take a chemical test to determine blood alcohol content: (1) the officer had reasonable cause to believe the driver was violating section 23152 or 23153; (2) the driver was arrested; (3) the driver refused to submit to or complete the test; and (4) the driver had been notified of the consequences of a refusal to submit. If any one of the required findings is deficient, the suspension must be overturned. (Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757-758.) Section 13353 provides for an increased license suspension for the refusal or failure to complete a chemical test to determine blood alcohol content.

II

Bodenmann argues Campos lacked reasonable cause to believe she was driving in violation of section 23152 or 23153 when he initially detained her. We disagree.

Campos, responding to a 911 call, saw Bodenmann leave the residence, get into a car, and drive down the dead-end road and make a U-turn. Campos turned on his spotlight and stopped Bodenmann. While speaking with her, Campos detected the smell of alcohol and Bodenmann refused to take a field sobriety test. Given these facts, Campos had reasonable cause to believe Bodenmann had been driving under the influence.

III

Bodenmann contends her arrest was not lawful because it was a direct result of her unlawful prolonged detention. According to Bodenmann, her detention for the welfare check was prolonged and therefore she was unlawfully detained before Campos smelled the alcohol and arrested her.

We disagree. When Campos arrived at the residence he saw Bodenmann leave, get into a car, and drive down a dead-end street. At that point, Campos detained her as part of his welfare check. An officer may stop a driver for questioning under circumstances short of probable cause for arrest. A temporary stop is justified if the circumstances would have indicated to a reasonable person in like position that an investigation was necessary to the proper discharge of the officer’s duties. (Cornforth v. Department of Motor Vehicles (1970) 3 Cal.App.3d 550, 552.) Campos’s questioning of Bodenmann falls well within this rubric.

Bodenmann also argues the welfare check was prolonged. However, nothing in the record supports this assertion. Campos asked Bodenmann to move her vehicle; she refused. Campos testified, “Because of my investigation of doing a welfare check, I had to make sure all parties were okay, so I spoke with Ms. Bodenmann for a while to determine exactly what had happened in the residence and assure that she was okay . . . You could tell that she was hesitant, kind of fearful.” Campos asked if she had any injuries, and as Bodenmann showed him her arm, he smelled alcohol. Given the evidence, substantial evidence supports the finding that Bodenmann’s subsequent arrest was lawful.

IV

Bodenmann claims she did not refuse to submit to a chemical test and was not advised of the consequences of a refusal to submit. She argues she did not refuse the test before or after her arrest.

The question of whether a driver refuses a test within the meaning of section 13353 is a question of fact. (Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 497.) In determining whether a driver’s conduct amounts to a refusal to take a test, we look not to the state of mind of the arrested driver, but to the fair meaning to be given to the driver’s response to the demand that he or she submit to the test. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1518.)

“[T]he driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.” (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270.) A subsequent agreement to take the test does not allow an arrestee to avoid the consequence of an initial refusal. (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 84.) As one court succinctly put it, “Simply stated, one offer plus one rejection equals one refusal; and, one suspension.” (Dunlap v. Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 283.) Silence in the face of a request constitutes a refusal. (Garcia, supra, at p. 83.)

Here, Campos filled out the DMV “Age 21 and Older Officer’s Statement,” which states he read Bodenmann the admonition on the second page of the form. The admonition states, “If you refuse to submit to, or fail to complete a test, your driving privilege will be suspended for one year or revoked for two or three years.” During the DMV hearing Campos testified he read her the admonishment exactly as it appears on the form at the jail following Bodenmann’s arrest. Bodenmann made no response. When initially he asked her to take the test outside her residence, Bodenmann refused.

Campos informed Bodenmann of the consequences of refusing to take the test, both at the residence and at the jail. Bodenmann refused to take the test on site and refused to respond at the jail. Substantial evidence supports the final required finding that Bodenmann was advised of the consequences of refusal and refused to submit to a chemical test.

V

Finally, Bodenmann requests reasonable attorney fees under Government Code section 800 and costs. She argues her license suspension was the result of arbitrary or capricious conduct by the DMV.

Government Code section 800 states: “In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law . . . if it is shown that the award, finding, or other determination of such proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney’s fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), where he or she is personally obligated to pay the fees, in addition to any other relief granted or other costs awarded.”

According to Bodenmann, the DMV’s finding Campos’s testimony credible and reliable was in and of itself arbitrary and capricious. She accuses the DMV of ignoring Campos’s statement that he had not formed an opinion about her sobriety at one point during the encounter. Our review of the evidence supports the DMV’s determination and we find nothing arbitrary or capricious in the agency’s actions. Similarly, since Bodenmann has not prevailed on appeal, costs are not appropriate.

DISPOSITION

The judgment is affirmed. DMV shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

RAYE, P. J.

We concur:

/s/

HULL, J.

/s/

MAURO, J.