(San Francisco City and County Super. Ct. No. CPF09-509437). Peter J. Busch, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
The Department of Motor Vehicles (DMV) suspended Benito Garcia's (Garcia) driving privileges for refusal to submit to, or failure to complete, a chemical test for blood alcohol content (Veh. Code, § 13353, subd. (a)(1)).*fn1 Garcia sought an order from the trial court, via petition for writ of administrative mandamus (§ 13559, subd. (a); Code Civ. Proc., § 1094.5), directing the DMV to set aside the suspension. He appeals the trial court's denial of his petition. Garcia argues that he did not refuse a chemical test of his blood alcohol content. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 6, 2008, at approximately 12:24 a.m., San Francisco Police Department (SFPD) officers McNamara and Khan were on duty and driving their patrol car southbound on Mission Street. McNamara observed a black Ford Explorer driving ahead of him that, without any warning or signal, swerved over the center, double yellow line. After the Ford returned to its lane, it slowed from about 20 miles per hour to about seven miles per hour. The Ford then sped back up to about 25 miles per hour. McNamara pulled the vehicle over.
McNamara contacted the driver, later identified as Garcia, and asked him why he was driving as he was. Garcia said that he did not understand. McNamara smelled the strong odor of an alcoholic beverage coming from Garcia's breath and observed that Garcia was chewing something. McNamara told Garcia to remove what he had in his mouth. After asking why and again being ordered to remove it, Garcia eventually removed a piece of gum from his mouth. McNamara asked Garcia if he had been drinking before driving. Garcia said that he had not. However, McNamara observed that Garcia's eyes were bloodshot and that Garcia was sweating, even though it was cold outside. McNamara recognized these as objective signs of alcohol intoxication.
McNamara had Garcia exit his vehicle to perform field sobriety tests. Before beginning the tests, Garcia stated that he was in good health and did not have any physical ailments. Garcia also again stated that he had not consumed any alcohol or other drugs that night. McNamara advised Garcia that each test would be explained and demonstrated and he should let the officer know if he did not understand any instructions. McNamara noticed that Garcia was still chewing gum and again told him to spit it out. Garcia asked "why?" He was told that it was necessary for his mouth to be empty for the tests. When Garcia began to argue, McNamara demanded that he remove the gum. Garcia paused, but then removed the gum from his mouth. After each test was explained and demonstrated, Garcia indicated that he did not understand. After repeated explanations, he eventually attempted to perform each test. Garcia was evasive and repeatedly mentioned that he knew SFPD officers and started listing their names. Garcia also asked if he could just be driven home. Based on observations of Garcia's driving, his symptoms of alcohol intoxication and his performance on the field sobriety tests, McNamara determined that Garcia was driving while under the influence of alcohol and was unable to safely operate a motor vehicle. Garcia was arrested at 12:43 a.m.
While in the patrol car and still at the scene, Garcia was advised that he was required by law to submit to either a blood test or a breath test and that he needed to choose one. Garcia became very evasive and asked McNamara to look in his wallet for a list of SFPD officers he knew. Garcia was asked several more times which test he wanted to take. Garcia asked what the officer recommended. McNamara told Garcia that he could not recommend a test and that Garcia needed to choose. After several minutes passed, Garcia was told that if he did not decide, McNamara would decide for him. Garcia stated that was okay with him. McNamara told Garcia he would be taking a breath test. McNamara also advised Garcia that if he did not cooperate and perform the breath test as ordered, it would be considered a refusal and he would lose his driving privileges for a year. Garcia stated that he understood and would comply with the breath test.
Garcia was transported to county jail where he was first observed for 15 minutes, as required for the breathalyzer test. During those 15 minutes, Garcia did not place anything in his mouth, belch, or vomit. When Garcia was told to sit in the chair in front of the breathalyzer machine, he stated that he wanted to take a blood test. McNamara told Garcia that he believed Garcia was trying to stall the test to reduce his blood alcohol content and that Garcia needed to comply or his conduct would be considered a refusal and he would lose his driving privileges for a year. Garcia sat down and began the test at 1:15 a.m. McNamara explained that Garcia needed to place his lips on the mouthpiece and blow strongly and steadily until the machine beeped. Garcia said that he did not understand. McNamara again explained that he needed to place his lips on the mouthpiece and blow steadily until the machine beeped. After receiving this explanation at least three more times, Garcia put his lips on the mouthpiece and blew for about one and a half seconds before stopping, without the machine beeping. He was told that he needed to try again and received yet another explanation of what was required. Garcia argued with McNamara for a few minutes and then was again advised that if he did not comply, it would be considered a refusal and he would lose his driving privileges for one year. Garcia said he would comply, but just stared at the mouthpiece. At 1:20 a.m., McNamara deemed Garcia's lack of cooperation a refusal to take a chemical test. McNamara ordered a phlebotomist, who arrived at 1:40 a.m. and obtained blood samples from Garcia at 1:50 a.m. The blood test revealed that Garcia's blood alcohol content at the time of the test was 0.28.
B. Administrative Hearing
Garcia was served with a copy of the order suspending his driver's license for refusing to submit to, or failing to complete, a chemical test. Pursuant to section 13558, Garcia requested an administrative hearing before the DMV. The only contested issue at the hearing was whether Garcia refused to take, or failed to complete, a chemical test,*fn3 His testimony at the hearing was consistent, in most respects, with McNamara's report. For example, Garcia testified that McNamara informed him, at the time and scene of his arrest, that he had a choice of chemical tests and that if he did not take a chemical test he could lose his license for one year. However, Garcia also testified that when he was seated before the breath machine he felt "[v]ery nauseous" and that he requested a blood test at that time because he "thought [he] was going to throw up a little bit on the machine and [he] didn't think [he] could perform the test." When asked whether he told the officer that he felt nauseous, Garcia stated: "I believe I did." He further testified that he tried to blow three times and that "[he] couldn't make something trigger off, but [he] blew as hard as [he] could as far as the way [he] was feeling." Garcia testified that he signed the blood test request form to indicate his consent to take a blood test.*fn4 Garcia later testified that he never resisted or intended to refuse the blood test. He also admitted that he had consumed "maybe two or three" beers on the night in question but had not told the officer as much. Garcia later testified that he could not recall what he had told the officer regarding his consumption of alcoholic beverages.
The DMV hearing officer found that Garcia "did refuse or fail to complete the chemical test or tests after being requested to do so by a peace officer." The hearing officer stated: "Officer McNamara did not have a duty to provide a subsequent opportunity for a chemical test. [Garcia] was warned by Officer McNamara, before arriving at jail that if he did not cooperate and perform the breath test as ordered that Officer McNamara would consider it a refusal. [Garcia] had agreed to comply with the breath test. After attempting [the] test and being warned by Officer McNamara again that his noncompliance would be considered a refusal [Garcia] did not complete the chemical breath test. Signing the Blood Test Request by Peace Officer form at phlebotomist's request, for a forced ...