Filed 3/24/17 (opinion on rehearing)



                                 CERTIFIED FOR PUBLICATION


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FOURTH APPELLATE DISTRICT

                                       DIVISION TWO


BERNICE ESPINOZA,

        Plaintiff and Appellant,                     E064252

v.                                                   (Super.Ct.No. CIVDS1412956)

JEAN SHIOMOTO, as Director, etc.,                    OPINION

        Defendant and Respondent.



        APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,

Judge. Affirmed.

        Bartell & Hensel, Donald J. Bartell and Lara J. Gressley for Plaintiff and

Appellant.

        Burglin Law Offices and Paul R. Burglin as Amicus Curiae on behalf of Plaintiff

and Appellant.

        Kamala D. Harris and Xavier Becerra, Attorneys General, Chris A. Knudsen,

Assistant Attorney General, Gary S. Balekjian, Jennie M. Kelly, Bruce Reynolds and

Brad Parr, Deputy Attorneys General, for Defendant and Respondent.



                                              1
                                            I.

                                   INTRODUCTION

      Bernice Espinoza appeals from the denial of her petition for writ of administrative

mandate challenging the one-year suspension of her driver’s license by the Department of

Motor Vehicles (Department). We conclude the record supports the trial court’s implied

findings that (1) Espinoza was lawfully arrested on reasonable cause to believe she had

been driving under the influence of alcohol (DUI), (2) Espinoza refused to submit to and

failed to complete a chemical test as required under the implied consent law, and

(3) Espinoza was afforded a fair hearing before the Department. Therefore, we conclude

the superior court correctly denied Espinoza’s petition, and we affirm the judgment.

                                            II.

                                         FACTS

      A.     Investigation and Arrest.

      At 1:40 a.m., on May 15, 2013, Sergeant Temple of the California Highway Patrol

(CHP) was on routine patrol in the City of Riverside when he observed Espinoza driving

a grey Hyundai and holding a cellular phone to the left side of her face. Espinoza

appeared to be in the middle of a conversation, but when Espinoza saw Temple she

lowered the phone from her ear. Temple activated his emergency lights, and Espinoza

pulled over and stopped approximately two feet from the curb.

      Temple approached and contacted Espinoza through her open driver’s side

window. Temple informed Espinoza that he had stopped her for talking on her phone


                                            2
while driving and asked for her driver’s license. Espinoza handed Temple her driver’s

license and apologized for using her cellular phone while driving. While speaking to

Espinoza, Temple smelled a strong odor of an alcoholic beverage emitting from the

interior of Espinoza’s vehicle. Temple asked Espinoza where she was coming from, and

Espinoza responded she had been at a local bar. When Temple asked Espinoza if she had

been drinking, Espinoza said she drank one cocktail but had not had anything else to

drink for two hours. Espinoza’s speech appeared to be normal.

       Temple asked Espinoza to step out of her vehicle, but Espinoza declined to

cooperate. Espinoza informed Temple that she was a public defender; that she did not

wish to perform any field sobriety tests or to step out of her vehicle; and citing McNeely,1

a recently decided United States Supreme Court case, Espinoza said she would not

submit to a blood test. When Temple again asked Espinoza to step out of her vehicle,

Espinoza once again declined. Espinoza asked Temple to issue her a citation for the

cellular phone violation (see Veh. Code,2 § 23123, subd. (a)), and said she would call a

friend to come pick her up and take her home.

       As Temple requested an additional officer to respond and conduct a DUI

investigation,3 Espinoza stepped out of her vehicle. Espinoza again informed Temple



       1   Missouri v. McNeely (2013) 569 U.S. ___ [133 S.Ct. 1552] (McNeely).

       2   All additional undesignated statutory references are to the Vehicle Code.

       3  Temple testified he was a patrol supervisor in the Riverside area. If Temple was
to stop a motorist who exhibits signs of intoxication, he would routinely call for a deputy
                                                                 [footnote continued on next page]


                                              3
that she would not perform any field sobriety tests. While standing on the sidewalk,

Espinoza crossed her legs, lost her balance, and stumbled a bit. As Espinoza spoke,

Temple smelled a strong odor of an alcoholic beverage on Espinoza’s breath. Temple

also saw that Espinoza’s eyes were red.

        Officer Gonzalez of the CHP then arrived on the scene. Temple told Gonzalez

what he had observed, identified Espinoza, and directed Gonzalez to conduct a DUI

investigation. When Gonzalez walked up to Espinoza, he immediately smelled a strong

odor of an alcoholic beverage on Espinoza’s person and on her breath. Gonzalez also

saw that Espinoza had red, bloodshot, and watery eyes. Espinoza was standing normally,

and she was not swaying or moving about. Gonzalez asked Espinoza if she had been

drinking, and Espinoza replied she had a drink two hours earlier. Espinoza then told

Gonzalez that she was a Riverside County public defender and knew her rights; that she

did not want to have any problems with her work; that Gonzalez should not ask her any

field sobriety questions because she would not answer them and would not perform any

field sobriety tests; and again cited McNeely.

        As she did with Temple, Espinoza asked that Gonzalez issue her a citation for the

cellular phone violation and said she would have a friend come and pick her up.

[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
to come to the scene and conduct a DUI investigation so he would be free to respond to
calls from other deputies that require a supervisor.


                                             4
Espinoza began to look at her cellular phone, and she fumbled and dropped her keys. As

she spoke, Espinoza repeated herself several times within a short period of time that she

would rather be issued a citation and have a friend come pick her up. Espinoza did not

slur her speech and she was coherent, but she was crying and very emotional the whole

time Gonzalez spoke to her. Gonzalez did not detect any mental impairment while

talking to Espinoza. Gonzalez asked Espinoza to cooperate or he would arrest her for

DUI based on his and Temple’s observations. Espinoza refused to cooperate and said she

could call a supervisor from her office to come pick her up.

        Based on his own observations of Espinoza and based on Temple’s observations,

Gonzalez concluded Espinoza had been driving while under the influence of alcohol and

placed her under arrest. Espinoza became emotional and upset. Gonzalez admonished

Espinoza pursuant to the implied consent law that she had to submit to a blood or breath

test. Espinoza told Gonzalez she would take a blood test “pursuant to McNeely.”

Gonzalez told Espinoza that her refusal to submit to a chemical test would result in her

license being suspended for one year. Gonzalez then transported Espinoza to the county

jail.

        At the jail, Espinoza refused to submit to a chemical test. Using a DS 367 form

(“AGE 21 AND OLDER OFFICER’S STATEMENT”), Gonzalez advised Espinoza that:

(1) she was suspected of driving under the influence of alcohol and, therefore, had the

right to choose a blood or breath test; (2) refusal to submit to or failure to complete a

blood or breath test would result in her license being suspended for one year or revoked

for two or three years; (3) refusal to submit to or failure to complete a blood or breath test


                                              5
could be used against her in court and would result in a fine and imprisonment if she was

convicted of DUI; (4) she did not have the right to have an attorney present when

deciding whether to submit to a chemical test and when choosing which test; and (5) if

she was incapable of completing one of the two test options, she had to submit to the

other.

         Espinoza told Gonzalez she would submit to a blood test, but only if the officer

obtained a “subpoena,” “pursuant to McNeely” from the on-duty judge, compelling her to

submit to a blood test. Gonzalez understood Espinoza to mean she would submit to a

blood test if he first got a warrant. Gonzalez told Espinoza that her willingness to submit

to a blood test with a warrant would be treated as a refusal. Gonzalez also told Espinoza

that, after the decision in McNeely, the policy of the CHP was to obtain warrants for

forced blood draws only in felony DUI cases,4 and that no warrant would be requested in

Espinoza’s case. No warrant was obtained, so no blood test was taken. In addition,

Espinoza did not submit to a breath test. Espinoza was then booked into jail on suspicion

of DUI. Gonzalez personally served Espinoza with notice that her driver’s license was

suspended or revoked, and forwarded the DS 367 form and his DUI investigation report

to the Department.

         B.    Administrative Per Se Hearing.



         4
         Gonzalez did not specify whether the policy of only obtaining warrants for
forced blood draws in felony DUI cases was adopted by the CHP statewide or was
merely a decision made by CHP officials locally to govern the geographic area including
Riverside.


                                              6
        Espinoza requested an administrative hearing to review the order suspending her

driver’s license, during which Temple and Gonzalez testified to the facts just stated.

Espinoza introduced the expert testimony of Felix D’Amico, a retired sheriff’s sergeant

and drug recognition expert. D’Amico testified he reviewed the reports prepared by the

arresting officer and the mobile video audio recording (MVAR) taken from Gonzalez’s

police vehicle.

        D’Amico testified he observed no “bad driving” on Espinoza’s part, although she

was talking on a cellular phone, and that Espinoza had no problem getting out of her

vehicle and walking to the curb. Contrary to Temple’s account, D’Amico testified that

after viewing the MVAR, he concluded Espinoza parked no more than 12 inches from the

curb when she was stopped, and there was nothing wrong with the way she parked.

D’Amico testified Espinoza did not slur her speech, she had no problem answering the

officers’ questions, and she was coherent. With regard to Gonzalez’s testimony that he

observed no mental impairment, D’Amico testified a person cannot be under the

influence of alcohol if he or she is not mentally impaired. D’Amico testified he observed

no mental impairment because Espinoza had no problem answering the officers’

questions and, although she refused to submit to any tests, she did not argue with or show

animosity toward the officers. D’Amico also testified that Espinoza was standing

straight, she was not swaying, she did not have an unsteady gait, and she did not fall

down.

        D’Amico testified bloodshot eyes do not necessarily indicate a person is under the

influence of alcohol because there are many reasons why a person’s eyes may become


                                             7
bloodshot. D’Amico testified odor of an alcoholic beverage on a person’s breath merely

indicates the person had alcohol in his or her mouth at some point and does not indicate

the person actually swallowed the alcohol. D’Amico opined that Espinoza was not under

the influence of alcohol and, therefore, Officer Gonzalez did not have probable cause to

lawfully place Espinoza under arrest.

       The hearing officer examined D’Amico. D’Amico testified that if a person merely

puts alcohol in his or her mouth but does not swallow it, the alcohol will dissipate

entirely in about 20 minutes. If Espinoza had merely placed alcohol in her mouth but had

not swallowed it, the alcohol would have dissipated during the stop and investigation.

       In her notification of findings and decision, the hearing officer sustained the one-

year suspension of Espinoza’s driver’s license. The hearing officer found: (1) Gonzalez

had reasonable cause to believe Espinoza drove under the influence of alcohol;

(2) Espinoza was lawfully arrested; (3) Espinoza was told her driver’s license would be

suspended or revoked if she refused to submit to or failed to complete a chemical test;

and (4) Espinoza refused to submit to or failed to complete a chemical test.

       In her findings of fact, the hearing officer concluded Officer Gonzalez had

probable cause to lawfully arrest Espinoza for DUI based on the objective symptoms of

bloodshot and watery eyes and the odor of an alcoholic beverage, and based on the

additional facts that Espinoza refused to perform field sobriety tests and admitted to

consuming alcohol. The hearing officer also concluded Gonzalez correctly admonished

Espinoza under the implied consent law that her license would be suspended or revoked

if she refused to submit to or failed to complete a chemical test. With respect to


                                             8
Espinoza’s refusal to submit to a chemical test, the hearing officer concluded Espinoza’s

conditional submission under McNeely was a refusal. The hearing officer concluded

McNeely only applies to forced blood draws, and Gonzalez did not request a forced blood

draw. In addition, the hearing officer concluded Espinoza “adamantly refused all other

test[s].” The hearing officer found that Temple and Gonzalez were credible witnesses,

and found D’Amico’s testimony to be biased and entitled to little weight.

                                             III.

                      PROCEEDINGS IN THE SUPERIOR COURT

       After being served with the Department’s administrative per se findings and

decision, Espinoza filed a petition for writ of review and administrative mandamus in the

superior court challenging the hearing officer’s decision. In her points and authorities in

support of the petition, Espinoza argued: (1) she was not lawfully arrested because

Gonzalez lacked reasonable cause to believe she was under the influence of alcohol;

(2) she had a right under McNeely to force the police to obtain a warrant before they drew

her blood and, therefore, her conditional consent to a blood test did not amount to a

refusal; and (3) the hearing officer’s complete disregard of D’Amico’s expert testimony

and a number of errors on the face of the hearing officer’s decision showed the decision

was not made in accordance with due process. The Department filed an answer and

opposition to the petition.

       At the hearing on Espinoza’s petition, the superior court stated its tentative

decision was to deny the petition. Espinoza’s counsel argued that Espinoza had met her

burden of showing the administrative decision was contrary to the weight of the evidence


                                              9
because it contained numerous factual errors. Counsel also argued the administrative

hearing was a “farce” because the hearing officer completely disregarded Espinoza’s

expert witness for no good reason. The court took the matter under submission after

hearing argument from the Department.

       The court subsequently entered an order denying the petition. Neither party

requested a statement of decision (Code Civ. Proc., § 632), so the trial court did not issue

written findings. Thereafter, the trial court entered a judgment in favor of the Department

and against Espinoza. The judgment dissolved the stay on Espinoza’s license suspension

and awarded the Department its costs. The Attorney General served Espinoza with a

notice of entry of the judgment, and Espinoza timely appealed.

                                            IV.

                                      DISCUSSION

       A.     Applicable Law.

       As pertinent here, the implied consent law provides that drivers who are arrested

on suspicion of DUI are deemed to have consented to chemical testing to determine their

blood-alcohol concentration (BAC). (§ 23612, subd. (a)(1)(A); Troppman v. Valverde

(2007) 40 Cal.4th 1121, 1129-1130.)5 Testing for BAC is incidental to a lawful arrest for

DUI and at the direction of the peace officer having reasonable cause to believe the

motorist drove under the influence of alcohol in violation of section 23152 or 23153.


       5 Section 13384, subdivisions (a) and (b), requires a motorist to consent in writing
to submit to chemical testing or to a preliminary alcohol screening test, when requested
by a peace officer, as a condition of obtaining or renewing a California driver’s license.


                                             10
(§ 23612, subd. (a)(1)(C).) The motorist must be admonished that failure to submit to or

failure to complete a chemical test will result in a fine, mandatory imprisonment if the

motorist is subsequently convicted of DUI under sections 23152 or 23153, and

suspension of his or her driver’s license. (§ 23612, subd. (a)(1)(D).) A motorist arrested

for driving under the influence of alcohol “has the choice of whether the test shall be of

his or her blood or breath and the officer shall advise the person that he or she has that

choice. If the person arrested either is incapable, or states that he or she is incapable, of

completing the chosen test, the person shall submit to the remaining test.” (Id. subd.

(a)(2)(A).) If both blood and breath tests are unavailable, the motorist must submit to a

urine test. (Id. subds. (a)(1)(A), (a)(2)(A), & (d)(2).)

       The administrative per se procedure is the means by which the Department

suspends or revokes a motorist’s driver’s license for driving under the influence or for

refusing to submit to a chemical test under the implied consent law. “The procedure is

called ‘administrative per se’ because it does not impose criminal penalties, but simply

suspends a person’s driver’s license as an administrative matter upon a showing the

person was arrested for driving with a certain blood-alcohol concentration, without

additional evidence of impairment. [Citation.] The express legislative purposes of the

administrative suspension procedure are: (1) to provide safety to persons using the

highways by quickly suspending the driving privilege of persons who drive with

excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a

prompt administrative review of the suspension; and (3) to place no restriction on the




                                              11
ability of a prosecutor to pursue related criminal actions. [Citations.]” (MacDonald v.

Gutierrez (2004) 32 Cal.4th 150, 155.)

       “The administrative per se laws were deemed necessary due to the time lag that

often occurs between an arrest and a conviction for driving while intoxicated or with a

prohibited blood-alcohol concentration. During this interim period, arrestees who would

eventually be convicted of an intoxication-related driving offense were permitted to

continue driving and, possibly, endangering the public. Moreover, without administrative

per se laws, persons with extremely high blood-alcohol concentration levels at the time of

arrest could escape license suspension or revocation by plea bargaining to lesser crimes

or entering pretrial diversion. Thus, by providing for an administrative license

suspension prior to the criminal proceeding, the law affords the public added protection.

[Citation.]” (MacDonald v. Gutierrez, supra, 32 Cal.4th at p. 155.)

       If a motorist who is arrested for DUI refuses to submit to a chemical test or fails to

complete one, the arresting officer must personally serve the motorist with notice of an

order of suspension or revocation of the motorist’s privilege to operate a motor vehicle

and issue the motorist a 30-day temporary driver’s license. (§§ 13353, subd. (c), 23612,

subds. (e), (f).) The officer must take possession of the motorist’s California driver’s

license and immediately forward to the Department a copy of the completed notice of

suspension or revocation and the driver’s license taken from the motorist. (§ 23612,

subds. (f), (g)(1).) Upon receipt of the notice of suspension or revocation and the

officer’s sworn statement that the officer had reasonable cause to believe the motorist

drove under the influence of alcohol in violation of sections 23152 or 23153, the


                                             12
Department shall suspend the motorist’s driver’s license for one year or revoke the

motorist’s driver’s license for two or three years if the motorist falls within certain DUI

recidivist statutes. (§ 13353, subd. (a)(1)-(3).)

       The Department must also conduct a review of the record, including the officer’s

sworn statement, to determine whether the following facts are true: (1) the officer had

reasonable cause to believe the motorist drove under the influence of alcohol in violation

of sections 23152 or 23153; (2) the motorist was lawfully detained; (3) the motorist

refused to submit to or failed to complete a chemical test after being requested by a peace

officer; and (4) the motorist was admonished that his or her driving privilege would be

suspended or revoked if he or she refused to submit to or failed to complete a chemical

test. (§§ 13353, subd. (d), 13557, subds. (a), (b)(1).) If the Department concludes those

facts to be true by a preponderance of the evidence, it shall sustain the license suspension

or revocation. (§ 13557, subd. (b)(1).)

       Before or after receiving the results of the administrative review, the motorist may

request an administrative hearing. (Veh. Code, §§ 13557, subd. (e), 13558, subd. (a).)

The only issues to be determined at the administrative hearing are the same four facts at

issue in the Department’s internal review. (Veh. Code, §§ 13557, subd. (b)(1)(A)-(D),

13558, subd. (c)(1).) If the Department again sustains the license suspension or

revocation, the motorist’s 30-day temporary driver’s license shall be revoked and the

suspension or revocation shall become effective five days after the Department gives

notice to the motorist. (Veh. Code, § 13558, subd. (f).) Finally, the Department must

inform the motorist of his or her right to petition the superior court to review the


                                              13
administrative decision. (Veh. Code, §§ 13558, subd. (f), 13559; see Code Civ. Proc.,

§ 1094.5.)

       “When a person petitions for a writ of mandate following an order suspending his

or her driver’s license, the court is required to determine, based on the exercise of its

independent judgment, whether the weight of the evidence supports the administrative

decision. [Citations.] In making that determination, the court acts as a trier of fact; it has

the power and responsibility to weigh the evidence and make its own determination about

the credibility of witnesses. [Citation.] The administrative findings, however, are

entitled to ‘a strong presumption of correctness,’ 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.’ [Citation.]” (Arthur v. Department

of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1204-1205 (Arthur).)

       “On appeal, we review the record to determine whether the court’s findings are

supported by substantial evidence. ‘“‘We must resolve all evidentiary conflicts and draw

all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.]

Where the evidence supports more than one inference, we may not substitute our

deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual

findings only if the evidence before the trial court is insufficient as a matter of law to

sustain those findings. [Citations.]’”’” (Arthur, supra, 184 Cal.App.4th at p. 1205.)

       “An appealed judgment is presumed to be correct. We will indulge all

intendments and presumptions to support the judgment on matters as to which the record

is silent and prejudicial error must be affirmatively shown. [Citations.]” (Shaw v.


                                              14
County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) In this case, neither party

requested a statement of decision under Code of Civil Procedure section 632, and the trial

court issued no written findings. The doctrine of implied findings “requires . . . an

appellate court [to] presume that the trial court made all factual findings necessary to

support the judgment for which substantial evidence exists in the record. In other words,

the necessary findings of ultimate facts will be implied and the only issue on appeal is

whether the implied findings are supported by substantial evidence. [Citations.]” (Shaw

v. County of Santa Cruz, at pp. 267-268, fn. omitted; accord, Lee v. Department of Motor

Vehicles (1983) 142 Cal.App.3d 275, 284; 2 Cal. Administrative Mandamus

(Cont.Ed.Bar 3d ed. 2016) Procedures After Trial, § 15.3, pp. 15-3 to 15-4.)

       Finally, “we will affirm a judgment correct on any legal basis, even if that basis

was not invoked by the trial court. [Citation.] There can be no prejudicial error from

erroneous logic or reasoning if the decision itself is correct. [Citation.]” (Shaw v. County

of Santa Cruz, supra, 170 Cal.App.4th at p. 269.)

       B.     The Administrative Record Supports the Superior Court’s Implied

Findings.

       As noted, ante, a motorist’s driver’s license may be suspended or revoked only if:

(1) the officer had reasonable cause to believe the motorist drove under the influence of

alcohol in violation of sections 23152 or 23153; (2) the motorist was lawfully detained;

(3) the motorist refused to submit to or failed to complete a chemical test after being

requested by a peace officer, and (4) the motorist was admonished that his or her driving

privilege would be suspended or revoked if he or she refused to submit to or failed to


                                             15
complete a chemical test. (§§ 13557, subd. (b)(1), 13558, subd. (c)(1).) By denying

Espinoza’s petition, the trial court impliedly found those facts to be true. Espinoza only

challenges the trial court’s implied findings that the arresting officer had reasonable cause

to believe she drove under the influence of alcohol, and that Espinoza refused to submit

to a chemical test. We conclude the record contains substantial evidence to support both

findings.

               1.     Espinoza Was Lawfully Arrested.

       Espinoza argues she was not lawfully arrested for purposes of the administrative

per se scheme because the arresting officer lacked reasonable cause to believe Espinoza

drove while under the influence of alcohol. We conclude otherwise.

       “‘Probable cause exists when the facts known to the arresting officer would

persuade someone of “reasonable caution” that the person to be arrested has committed a

crime. (Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9 . . . .) “[P]robable cause is

a fluid concept—turning on the assessment of probabilities in particular factual contexts

. . . .” (Illinois v. Gates (1983) 462 U.S. 213, 232 . . . .) It is incapable of precise

definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371 . . . .) “‘The substance of all

the definitions of probable cause is a reasonable ground for belief of guilt,’” and that

belief must be “particularized with respect to the person to be . . . seized.” (Ibid.)’”

(People v. Scott (2011) 52 Cal.4th 452, 474, quoting People v. Celis (2004) 33 Cal.4th

667, 673.)

       Similarly, reasonable cause is “‘“defined as that state of facts as would lead a man

of ordinary care and prudence to believe and conscientiously entertain an honest and


                                               16
strong suspicion that the person is guilty of a crime.”’ [Citations.]” (People v. Adair

(2003) 29 Cal.4th 895, 904; accord, Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 133.)

       Espinoza was arrested on suspicion of driving under the influence of alcohol in

violation of section 23152. “‘To be “under the influence” within the meaning of the

Vehicle Code, the liquor or liquor and drug(s) must have so far affected the nervous

system, the brain, or muscles as to impair to an appreciable degree the ability to operate a

vehicle in a manner like that of an ordinarily prudent and cautious person in full

possession of his faculties. [Citations.]’” (People v. McNeal (2009) 46 Cal.4th 1183,

1192-1193.) “[E]vidence of actual impairment may include the driver’s appearance, an

odor of alcohol, slurred speech, impaired motor skills, slowed or erratic mental

processing, and impaired memory or judgment. Conversely, absence of these

manifestations may indicate that the driver was not impaired.” (Id. at p. 1198.)

       In addition to erratic driving and objective symptoms of intoxication, an

investigating officer may also properly consider the motorist’s refusal to step out of their

vehicle and refusal to submit to field sobriety tests when determining whether there is

probable cause to arrest for DUI. (See Kinlin v. Kline (6th Cir. 2014) 749 F.3d 573, 580-

581; Wilder v. Turner (10th Cir. 2007) 490 F.3d 810, 814-815; Miller v. Harget

(11th Cir. 2006) 458 F.3d 1251, 1260; Byrnes v. City of Manchester (D.N.H. 2012)




                                             17
848 F.Supp.2d 146, 162-163; Marvin v. Department of Motor Vehicles (1984) 161

Cal.App.3d 717, 719-720 (Marvin).)6

       We conclude the record contains substantial evidence to support the superior

court’s implied finding that a reasonable officer would conclude there was probable or

reasonable cause to arrest Espinoza for DUI. Espinoza exhibited some of the classic,

objective symptoms of intoxication, including having red, bloodshot, and watery eyes,

and having a strong odor of an alcoholic beverage on her breath. Based on a strong odor

of alcohol on Espinoza’s breath (detectable in the open air during the entire investigation

and not just inside the passenger compartment to Espinoza’s vehicle), the officers were

not required to believe Espinoza when she said she had not had a drink for two hours.

(See People v. Ortiz (1969) 276 Cal.App.2d 1, 6 [“If the police officers were required to

believe every exculpatory story made by a suspect at the time of his [or her] arrest there

would be very few arrests.”].) Although Espinoza appeared to be standing straight and

did not slur her words, she stumbled when standing on the sidewalk and she fumbled and

dropped her keys. Espinoza was emotional and cried the entire time she spoke to

Gonzalez, and she repeated herself numerous times. In addition, when Espinoza pulled

over, she parked approximately two feet away from the curb.


       6  The lower federal court opinions cited in the text arose from civil rights lawsuits
under title 42 United States Code section 1983, in which motorists alleged they were
falsely arrested without probable cause to believe they were guilty of DUI, in violation of
their rights under the Fourth Amendment to be free from unreasonable searches and
seizures. (E.g., Kinlin v. Kline, supra, 749 F.3d at p. 575.) The same Fourth Amendment
probable cause standard applies in civil cases arising from an arrest or seizure. (See
Luchtel v. Hagemann (9th Cir. 2010) 623 F.3d 975, 979.)


                                             18
       Espinoza’s initial refusal to get out of her vehicle, her complete refusal to answer

field sobriety questions or to perform field sobriety tests, and her repeated requests to be

let off with a citation, were additional factors a reasonable officer could properly consider

when determining whether there was probable cause to believe Espinoza drove while

under the influence of alcohol. Viewing these facts in their totality, we conclude

substantial evidence supports the superior court’s implied finding that Espinoza was

lawfully arrested based on probable cause of DUI.

       In arguing Gonzalez did not have probable cause to arrest her, Espinoza places

much weight on Gonzalez’s testimony that, when he spoke to Espinoza, he observed no

mental impairment. That Espinoza appeared coherent and had no problems

communicating with Gonzalez was certainly some evidence that Espinoza was not under

the influence. But because we find substantial evidence to support probable cause to

arrest Espinoza for DUI, we must affirm the trial court’s implied finding. (Arthur, supra,

184 Cal.App.4th at p. 1205.)

       Finally, Espinoza points to Gonzalez’s testimony that he treated Espinoza’s refusal

to answer field sobriety questions or to submit to field sobriety tests as consciousness of

guilt, and she argues that was the real reason Gonzalez arrested her. Gonzalez’s

subjective reasons for arresting Espinoza are irrelevant. When determining whether there

was probable cause for an arrest and, therefore, that the arrest was lawful, the sole

question is whether a reasonable officer in the same position would objectively conclude

there was probable cause to arrest. (Maryland v. Pringle (2003) 540 U.S. 366, 371;

Whren v. United States (1996) 517 U.S. 806, 813.) In any event, the courts have held that


                                             19
refusal to submit to field sobriety tests is properly treated as evidence of consciousness of

guilt. (Marvin, supra, 161 Cal.App.3d at p. 720 [investigating officer reasonably

interpreted a strong odor of alcohol and refusal to submit to a field sobriety tests as a

consciousness of guilt]; see People v. Jackson (2010) 189 Cal.App.4th 1461, 1466-1469

[refusal to take standard field sobriety tests, as opposed to a refusal to submit to

preliminary alcohol screening breath test, is admissible evidence of consciousness of

guilt].) Viewing the same facts as Gonzalez, a reasonable officer would conclude there

was probable cause to arrest Espinoza for DUI.

              2.     Espinoza’s Purported Consent to Submit to a Chemical Test

Constituted a Refusal to Submit.

       Espinoza argues she did not refuse to submit to a chemical test. Instead, she

argues she had a right under McNeely to force the police to obtain a warrant before they

could seize her blood for testing and, therefore, her standing on her rights did not

constitute a refusal to submit to a chemical test under sections 13353, subdivision (c), and

23612, subdivisions (e) and (f). Although Espinoza had a constitutional right to be free

from a warrantless, coerced search of her blood incident to her lawful arrest, she had no

such right with respect to a breath test. When Espinoza was told the policy of the CHP

was to obtain warrants for forced blood draws only in felony DUI cases, and that a

warrant would not be obtained in her case, Espinoza was required to choose a breath test.

Espinoza’s purported consent to a blood draw, to the exclusion of a breath test,

constituted refusal to submit to a chemical test.




                                              20
                a.   Purported consent to a chemical test is normally treated

as a refusal.

       “‘The question whether a driver “refused” a test within the meaning of [section

23612] is a question of fact. [Citation.]’ [Citation.] To comply with the law, a ‘driver

should clearly and unambiguously manifest the consent required by the law. Consent

which is not clear and unambiguous may be deemed a refusal.’ [Citation.] ‘In

determining whether an arrested driver’s conduct amounts to a refusal to submit to a test,

the court looks not to the state of mind of the arrested driver, but to “the fair meaning to

be given [the driver’s] response to the demand he [or she] submit to a chemical test.”

[Citations.]’” (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 82-

83 (Garcia).)

       It is well settled that “[a] conditional consent to a chemical test constitutes a

refusal to submit within the meaning of section 13353.” (Payne v. Department of Motor

Vehicles (1991) 235 Cal.App.3d 1514, 1518, citing Webb v. Miller (1986) 187

Cal.App.3d 619, 626, Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870,

873, & Fallis v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 373, 382; accord, Kesler

v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 77 [“respondent’s insistence upon

taking all three [chemical] tests rather than only one constituted, at best, a conditional

consent to a test which, under the authorities, must be deemed to be a refusal to submit to

a test within the meaning of section 13353”]; Carrey v. Department of Motor Vehicles

(1986) 183 Cal.App.3d 1265, 1270-1271 [“A qualified or conditional consent is a




                                              21
refusal.”].)7 Furthermore, a motorist who refuses a chemical test but nonetheless submits

to a test “under protest” but without offering physical resistance will be deemed to have

refused to submit. (Payne v. Department of Motor Vehicles, at p. 1518, citing Barrie v.

Alexis (1984) 151 Cal.App.3d 1157, 1161-1162.)

       Espinoza relies on Ross v. Department of Motor Vehicles (1990) 219 Cal.App.3d

398 (Ross) for the proposition “that where a condition is imposed by law, and invoked by

an arrestee, such an invocation does not amount to a refusal to take a chemical test.” In

Ross, the motorist chose a blood test but the technician who arrived to draw his blood

was disheveled. The motorist asked to see the technician’s identification. When the

arresting officer responded the technician was not required to comply with the motorist’s

request, the motorist refused to take the blood test unless the technician first showed his

identification. (Id. at p. 400.) The motorist’s request to see the technician’s identification

was deemed to be a refusal to submit to a chemical test, and his license was suspended

under section 13353. (Ibid.)



       7   We note that in the context of chemical testing under an implied consent law,
the concept of “conditional consent” is a misnomer. If consent to submit to a chemical
test must be clear and unambiguous, and failure to clearly and unambiguously manifest
consent constitutes a refusal to submit to a chemical test (Garcia, supra, 185 Cal.App.4th
at p. 82), it follows that placing conditions on submission to a chemical test demonstrates
a lack of consent. (See, e.g., Cash v. Commonwealth (Va. 1996) 466 S.E.2d 736, 738
[“The consent to submit to a blood or breath test, granted when a person operates a motor
vehicle upon the highways, ‘is not a qualified consent and it is not a conditional consent,
and therefore there can be no qualified refusal or conditional refusal to take the test.’
[Citation.]”].) Therefore, although “conditional consent” has become somewhat of a term
of art in these types of cases, we will use the more precise phrase “purported consent” in
this opinion.


                                             22
        The Court of Appeal in Ross distinguished cases finding conditional consent to be

a refusal. “[O]ur facts do not involve a condition imposed by the arrestee, unrelated to a

statutory right. The Legislature has specifically provided an arrestee is entitled to have

blood drawn by only licensed, qualified individuals in a medically approved manner.

[Citations.] Therefore, the condition is one imposed by statute and merely invoked by the

arrestee.” (Ross, supra, 219 Cal.App.3d at p. 402.) Because the motorist’s concern was

related to enforcing his right to have his blood drawn by a licensed, qualified technician,

and was not merely a “procedural deficiency,” the Court of Appeal concluded the

motorist’s request was not a refusal and reversed the license suspension. (Id. at pp. 402-

403.)

        Ross is distinguishable from our case. There, after being advised of his duties

under the implied consent law, Ross chose to submit to a blood test. (Ross, supra, 219

Cal.App.3d at p. 400.) In other words, Ross actually consented to a blood test. It was

only after the blood technician arrived in a disheveled state that Ross demanded the

technician produce his identification. (Ibid.) Here, Espinoza purported to consent to a

blood test, but she conditioned that consent on the officer obtaining a warrant. That did

not constitute clear and unequivocal consent to a chemical test and, therefore, was not

actual consent. (Garcia, supra, 185 Cal.App.4th at p. 82.) Moreover, Ross has been

limited to its facts. “Ross held only that an arrestee must be given assurance of the

qualifications of the individual drawing blood if hesitation is expressed.” (Payne v.

Department of Motor Vehicles, supra, 235 Cal.App.3d at p. 1519.) We have found no

published decision applying Ross to a motorist’s purported consent to a chemical test on


                                             23
the condition that the officer first obtain a search warrant. As explained, infra, we

conclude Espinoza refused to submit to a chemical test.

              b.     A motorist who is lawfully arrested for DUI has the right under the

Fourth Amendment to refuse to submit to a warrantless, coerced blood test, but has no

right to refuse to submit to a warrantless breath test.

       “In Schmerber [v. California (1966) 384 U.S. 757 (Schmerber)], the defendant

was taken to the hospital following an automobile accident and, against his express

refusal on the advice of counsel, the police directed a physician to draw defendant’s

blood to be tested for the presence of alcohol. (Schmerber, supra, 384 U.S. at pp. 758-

759.) Among other things, the United States Supreme Court in Schmerber addressed

whether the warrantless blood test violated the Fourth Amendment. The high court

concluded that ‘compulsory administration of a blood test’ was a search under the Fourth

Amendment. (384 U.S. at p. 767.) Although ‘there was plainly probable cause . . .’ to

arrest the defendant on suspicion of DUI, the court found that the search could not be

justified as a search incident to arrest because the cases articulating that exception to the

warrant requirement ‘have little applicability with respect to searches involving intrusions

beyond the body’s surface.’ (Id. at pp. 768–769.)

       “The court in Schmerber noted that ‘[s]earch warrants are ordinarily required for

searches of dwellings, and, absent an emergency, no less could be required where

intrusions into the human body are concerned.’ (Schmerber, supra, 384 U.S. at p. 770.)

However, the court concluded that the arresting officer ‘might reasonably have believed

that he was confronted with an emergency, in which the delay necessary to obtain a


                                              24
warrant, under the circumstances, threatened “the destruction of evidence,” [citation].’

(Ibid.) The high court acknowledged ‘that the percentage of alcohol in the blood begins

to diminish shortly after drinking stops, as the body functions to eliminate it from the

system,’ and because the defendant had to be rushed to the hospital and the officers had

to investigate the accident scene, it concluded ‘there was no time to seek out a magistrate

and secure a warrant.’ (Id. at pp. 770, 771.) Under those ‘special facts,’ the court held

that the warrantless search was justified. (Id. at p. 771.)” (People v. Harris (2015) 234

Cal.App.4th 671, 683 (Harris).)

       As this court noted in Harris, for just over 40 years, California courts have

interpreted Schmerber v. California (1966) 384 U.S. 757 to permit forced, warrantless

blood draws of motorists arrested on suspicion of DUI without any additional showing of

exigent circumstances. (Harris, supra, 234 Cal.App.4th at pp. 702-704.) Without

question, McNeely repudiated that long-standing interpretation.8 (Harris, at p. 703.)

       “[I]n McNeely, the defendant refused to take a Breathalyzer test during a DUI

investigation and again when being transported to the police station, in order to measure

his blood-alcohol concentration (BAC), so the arresting officer transported the defendant

to a nearby hospital. (McNeely, supra, 569 U.S. at pp. ___ [133 S.Ct. at pp. 1556-1557].)

At the hospital, the arresting officer read an admonition to the defendant under the

       8 The question before this court in Harris was whether a motorist’s freely and
voluntarily given consent to a blood draw, after being admonished pursuant to the
implied consent law, constituted actual consent under the Fourth Amendment. (Harris,
supra, 234 Cal.App.4th at p. 686.) We concluded freely and voluntarily given consent to
a warrantless blood draw satisfies the Fourth Amendment, and that Harris actually
consented to have his blood drawn. (Harris, at pp. 686-692.)


                                             25
Missouri implied consent law, and ‘explained to [the defendant] that under state law

refusal to submit voluntarily to the test would lead to the immediate revocation of his

driver’s license . . . and [his refusal] could be used against him in a future prosecution.

[Citation.]’ (569 U.S. at p. ___ [133 S.Ct. at p. 1557].) The defendant refused to submit

to [a] blood test so the arresting officer directed a laboratory technician to draw a blood

sample. (Id. at p. ___ [133 S.Ct. at p. 1557].) The United States Supreme Court granted

certiorari in McNeely to resolve a split in authority on the question of ‘whether the natural

metabolization of alcohol in the bloodstream presents a per se exigency that justifies an

exception to the Fourth Amendment’s warrant requirement for nonconsensual blood

testing in all drunk-driving cases.’ (Id. at pp. ___, ___ [133 S.Ct. at pp. 1556, 1558].)

       “The majority in McNeely held that the natural dissipation of alcohol in the

bloodstream does not create exigent circumstances in every DUI case. (McNeely, supra,

569 U.S. at pp. ___, ___ [133 S.Ct. at pp. 1563, 1568] (maj. opn. of Sotomayor, J.).)

‘In those drunk-driving investigations where police officers can reasonably obtain a

warrant before a blood sample can be drawn without significantly undermining the

efficacy of the search, the Fourth Amendment mandates that they do so. [Citation.]’

(Id. at p. ___ [133 S.Ct. at p. 1561].) Although the court had no ‘doubt that some

circumstances will make obtaining a warrant impractical such that the dissipation of

alcohol from the bloodstream will support an exigency justifying a properly conducted

warrantless blood test,’ the high court held that the state was required to make such a

showing under the totality of the circumstances and on a case-by-case basis. (Id. at




                                              26
pp. ___, ___ [133 S.Ct. at pp. 1561, 1563].)” (Harris, supra, 234 Cal.App.4th at pp. 683-

684.)

        After briefing was completed in this case, the United States Supreme Court issued

its decision in Birchfield v. North Dakota (2016) 579 U.S. ___ [136 S.Ct. 2160]

(Birchfield).9 Birchfield involved three consolidated cases. (Id. at p. ___ [136 S.Ct. at

p. 2172].) In the first case, Birchfield accidentally drove his vehicle off the road and was

seen by a state trooper trying unsuccessfully to drive out of a ditch. When the state

trooper approached, he smelled a “strong whiff of alcohol” on Birchfield, saw that

Birchfield had bloodshot and watery eyes, and observed that Birchfield spoke with a slur

and struggled to remain steady on his feet. (Id. at p. ___ [136 S.Ct. at p. 2170].)

Birchfield agreed to take field sobriety tests, but performed poorly on each. Concluding

Birchfield was intoxicated, the state trooper informed Birchfield of his obligation under

North Dakota law to agree to a BAC test. Birchfield consented to a roadside breath test

(a preliminary alcohol screening test), which showed Birchfield had a BAC of 0.254

percent. (Ibid.)

        After placing Birchfield under arrest for DUI, the state trooper advised Birchfield

of his obligation under the North Dakota implied consent law to submit to further BAC

testing, and that refusal to submit to a test would result in criminal penalties. (Birchfield,

supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2170].) Birchfield refused to submit to a blood


        9We directed the parties to submit supplemental letter briefs addressing
Birchfield. In addition, we granted a request from Paul R. Burglin of Burglin Law
Offices to submit an amicus curiae brief addressing Birchfield.


                                              27
test, and subsequently pleaded guilty to a misdemeanor charge of refusing to submit to a

BAC test. (Id. at pp. ___ [136 S.Ct. at pp. 2170-2171].) Birchfield appealed his

conviction, arguing the Fourth Amendment prohibited the state from criminalizing his

refusal to submit to a blood test. Citing McNeely’s favorable discussion of implied

consent laws, the North Dakota Supreme Court rejected Birchfield’s challenge.

(Birchfield, at p. ___ [136 S.Ct. at p. 2171].)

       In the second case, police responded to a report of three apparently intoxicated

men who tried unsuccessfully to pull a boat out of a boat launch but got their truck stuck

in a river. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2171].) When police

officers arrived, a witness identified a man (Bernard) in his underwear as the driver.

Bernard admitted to drinking, but denied that he was the driver and refused to submit to

field sobriety tests. The officers smelled alcohol on Bernard’s breath and saw that his

eyes were bloodshot and watery, so they arrested Bernard for DUI. (Ibid.) At the police

station, the police informed Bernard that his refusal to submit to BAC testing, as required

under the Minnesota implied consent law, was a criminal offense. When asked to submit

to a breath test, Bernard refused. He was charged with refusing to submit to a BAC test,

but the state trial court dismissed the charges, concluding the warrantless breath test

Bernard refused to take was not permitted under the Fourth Amendment. (Birchfield,

at p. ___ [136 S.Ct. at p. 2171].) The Minnesota Supreme Court reversed, concluding a

warrantless breath test is permissible under the Fourth Amendment as a search-incident-

to-arrest. (Birchfield, at p. ___ [136 S.Ct. at p. 2171].)




                                              28
       In the third and final case, a police officer saw petitioner Beylund unsuccessfully

turn into a driveway, almost hit a stop sign, and come to a stop while still partly in the

roadway. (Birchfield, supra, 579 U.S. at pp. ___ [136 S.Ct. at pp. 2171-2172].) When

the police officer walked up to Beylund’s vehicle, the officer saw an empty wine glass in

the center console and smelled alcohol. The officer asked Beylund to step out of his

vehicle, and as he did so, Beylund struggled to keep his balance. (Id. at p. ___ [136 S.Ct.

at p. 2172].) The officer arrested Beylund for DUI and transported him to a nearby

hospital. The officer then read Beylund the North Dakota implied consent advisory, and

told Beylund that his refusal to submit to a BAC test was a crime. Beylund submitted to

a blood test, which showed he had a BAC of 0.250 percent. (Ibid.) Beylund’s driver’s

license was suspended for two years after an administrative hearing. (Ibid.) He

challenged that decision, arguing his consent to the blood test was coerced by the

officer’s warning under the implied consent law that refusal to submit to the test was a

crime. The North Dakota Supreme Court rejected the challenge, concluding the penalty

of license suspension for refusing to submit to a blood test was constitutional and that

Beylund’s consent was voluntarily given because the implied consent advisory was not

misleading. (Ibid.)

       The United States Supreme Court granted writs of certiorari in those three cases

and consolidated them “in order to decide whether motorists lawfully arrested for drunk

driving may be convicted of a crime or otherwise penalized for refusing to take a

warrantless test measuring the alcohol in their bloodstream.” (Birchfield, supra, 579 U.S.

at p. ___ [136 S.Ct. at p. 2172].) The high court noted that success for the three


                                             29
petitioners depended “on the proposition that the criminal law ordinarily may not compel

a motorist to submit to the taking of a blood sample or to a breath test unless a warrant

authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless

searches comport with the Fourth Amendment, it follows that a State may criminalize the

refusal to comply with a demand to submit to the required testing, just as a State may

make it a crime for a person to obstruct the execution of a valid search warrant.

[Citations.] And by the same token, if such warrantless searches are constitutional, there

is no obstacle under federal law to the admission of the results that they yield in either a

criminal prosecution or a civil or administrative proceeding.” (Id. at pp. ___ [136 S.Ct. at

pp. 2172-2173].)

       The Supreme Court in Birchfield noted that McNeely had acknowledged the

existence of exceptions to the warrant requirement such as a search-incident-to-arrest that

apply categorically rather than on a case-by-case basis, but the McNeely court limited its

analysis to the exception that was squarely before it—the exigent circumstances doctrine.

(Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2174], citing McNeely, supra,

569 U.S. at p. ___ [133 S.Ct. at pp. 1558-1559 & fn. 3].) The three petitioners in

Birchfield were searched or informed they had to submit to a search after being placed

under arrest, so the court considered the issue left unaddressed in McNeely, to wit, “how

the search-incident-to-arrest doctrine applies to breath and blood tests incident to such

arrests.” (Birchfield, at p. ___ [136 S.Ct. at p. 2174].) Because the founding era

provided no guidance in determining whether warrantless breath or blood tests incident to

arrest comported with the Fourth Amendment, the court examined “‘“the degree to which


                                             30
[they] intrude[] upon an individuals’ privacy and . . . the degree to which [they are]

needed for the promotion of legitimate governmental interests.”’” (Birchfield, at p. ___

[136 S.Ct. at p. 2176], quoting Riley v. California (2014) 573 U.S. ___, ___ [134 S.Ct.

2473, 2484].)

       The Supreme Court found three reasons to reaffirm its conclusion 30 years prior

that “breath tests do not ‘implicat[e] significant privacy concerns.’” (Birchfield, supra,

579 U.S. at pp. ___, ___ [136 S.Ct at pp. 2176, 2178], quoting Skinner v. Railway Labor

Executives’ Assn. (1989) 489 U.S. 602, 626.) First, the physical intrusion of a breath test

is almost negligible because it does not require piercing of the skin and entails minimal

inconvenience. (Birchfield, at p. ___ [136 S.Ct. at p. 2176].) Second, breath tests are

only capable of revealing a person’s BAC, and no sample remains for the police to

possess. A blood sample, in contrast, can be stored and potentially reveal highly personal

information about the person. (Id. at p. ___ [136 S.Ct. at p. 2177].) Finally, the court

concluded participation in a breath test is unlikely to enhance the embarrassment inherent

in an arrest, and the act of blowing into a breathalyzer is not inherently embarrassing and

normally takes place in private. (Ibid.)

       In contrast, the court concluded a blood test does implicate significant privacy

concerns. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2178].) Unlike a breath

test, a blood test requires piercing the skin and extracting a part of the body. (Ibid.)

“And while humans exhale air from their lungs many times per minute, humans do not

continually shed blood. It is true, of course, that people voluntarily submit to the taking

of blood samples as part of a physical examination, and the process involves little pain or


                                              31
risk. [Citation.] Nevertheless, for many, the process is not one they relish. It is

significantly more intrusive than blowing into a tube.” (Ibid.) Finally, unlike a breath

test, a blood test provides the police with a sample they may store and potentially test for

many things other than BAC, which may result in anxiety for the person forced to submit

to the blood test. (Ibid.)

       As for the governmental need at issue, the court reaffirmed that “[t]he States and

the Federal Government have a ‘paramount interest . . . in preserving the safety of . . .

public highways.’” (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2178], quoting

Mackey v. Montrym (1979) 443 U.S. 1, 17.) Although the number of fatalities and

injuries caused by drunk driving has declined, it remains the leading cause of traffic

fatalities and injuries. (Birchfield, at p. ___ [136 S.Ct. at p. 2178].) The court noted the

states and the federal government had enacted drunk driving and implied consent laws to

reduce those fatalities and injuries. (Id. at p. ___ [136 S.Ct. at p. 2179]; see id. at pp. ___

[136 S.Ct. at pp. 2168-2170].) “The laws at issue in the present cases—which make it a

crime to refuse to submit to a BAC test—are designed to provide an incentive to

cooperate in such cases, and we conclude that they serve a very important function.”

(Id. at p. ___ [136 S.Ct. at p. 2179].)

       Because the intrusion of a breath test on a motorist’s privacy is slight, and the

governmental need to test for BAC is great, the Supreme Court concluded a motorist may

be forced to submit to a warrantless breath test incident to being placed under arrest for

DUI. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2184].) The Supreme Court

reached a different conclusion about blood tests. “Blood tests are significantly more


                                              32
intrusive, and their reasonableness must be judged in light of the availability of the less

invasive alternative of a breath test.” (Ibid.) “Because breath tests are significantly less

intrusive than blood tests and in most cases amply serve law enforcement interests, we

conclude that a breath test, but not a blood test, may be administered as a search incident

to a lawful arrest for drunk driving. As in all cases involving reasonable searches

incident to arrest, a warrant is not needed in this situation.” (Id. at p. ___ [136 S.Ct. at

p. 2185].)

       The Supreme Court next rejected the state’s argument that warrantless blood tests

incident to arrest are justified based on a motorist’s implied consent. (Birchfield, supra,

579 U.S. at p. ___ [136 S.Ct. at p. 2185].) “It is well established that a search is

reasonable when the subject consents [citation], and that sometimes consent to a search

need not be express but may be fairly inferred from context [citations]. Our prior

opinions have referred approvingly to the general concept of implied-consent laws that

impose civil penalties and evidentiary consequences on motorists who refuse to comply.

[Citations.] Petitioners do not question the constitutionality of those laws, and nothing

we say here should be read to cast doubt on them. [¶] It is another matter, however, for a

State not only to insist upon an intrusive blood test, but also to impose criminal penalties

on the refusal to submit to such a test. There must be a limit to the consequences to

which motorists may be deemed to have consented by virtue of a decision to drive on

public roads.” (Ibid.) Therefore, the court concluded a motorist may not be deemed to

consent to a blood test on pain of criminal prosecution. (Id. at p. ___ [136 S.Ct. at

p. 2186].)


                                              33
       Finally, the Supreme Court applied its legal conclusions to the three cases before

it. (Birchfield, supra, 579 U.S. at pp. ___ [136 S.Ct. at pp. 2186-2187].) The court held

Birchfield could not be forced to submit to a warrantless blood test incident to his arrest.

Because the record did not indicate that a breath test would not have satisfied the state’s

interest in testing Birchfield’s BAC, and there were no exigent circumstances to support a

warrantless blood test, the court held Birchfield was threatened with an unlawful search

and reversed his conviction for refusing to submit to a blood test. (Ibid.) In contrast, the

Supreme Court held a warrantless breath test was a permissible search incident to

Bernard’s arrest. “[T]he Fourth Amendment did not require officers to obtain a warrant

prior to demanding the [breath] test, and Bernard had no right to refuse it.” (Ibid., italics

added) Lastly, the court vacated Beylund’s license suspension because the North Dakota

Supreme Court had erroneously concluded the state could compel both blood tests and

breath tests incident to arrest. (Ibid.) The Supreme Court remanded the case for a

determination of whether Beylund’s consent to the blood test was freely and voluntarily

given in light of the inaccuracy of the officer’s advisement. (Ibid. & fn. 9.)

              c.     Espinoza’s purported consent to a blood test, and her failure to

submit to and complete a breath test, constituted refusal to submit to a chemical test.

       The Department argues Espinoza’s failure to submit to a breath test was a

secondary basis for suspending her driver’s license and insists we need not address breath

tests because Espinoza’s refusal to submit to a blood test was a primary and sufficient

basis for the suspension. True, a motorist who refuses to submit to or fails to complete

one form of chemical testing need not be offered an alternative test before the motorist is


                                             34
deemed to have refused chemical testing for purposes of the implied consent law.

(Garcia, supra, 185 Cal.App.4th at pp. 87-89; Hildebrand v. Department of Motor

Vehicles (2007) 152 Cal.App.4th 1562, 1573-1574.) “‘[T]he law of implied consent

mandates that an arrestee is required to submit to and complete one of the three tests upon

their first having been offered to him by an arresting officer. [¶] . . . [¶] . . . It is the

initial refusal which forms the basis for suspension of the driver’s license under Vehicle

Code section 13353. [Citation.] Once the driver refuses to take any one of the three

chemical tests, the law does not require that he later be given one when he decides, for

whatever reason, that he is ready to submit. [Citations.] [¶] . . . 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 . . .; see People v. McHugh (2004) 119

Cal.App.4th 202, 212 . . . .)” (Hildebrand, at p. 1573.)

       Prior to issuance of the decision in Birchfield, we would have agreed with the

Department that Espinoza’s refusal to submit to a blood test would have been a sufficient

basis for her license suspension, and we would have had no need to address breath tests.

But for the reasons stated infra, it is unclear whether the high court would approve of a

civil license suspension based solely on a motorist’s refusal to submit to a warrantless

blood test. Therefore, we err on the side of caution and affirm the suspension based on

Espinoza’s refusal to submit to a breath test.

       The police could not force Espinoza to submit to a blood test against her will

unless they obtained a warrant or showed there were exigent circumstances that justified

a warrantless search. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2174];


                                               35
McNeely, supra, 569 U.S. at pp. ___, ___, ___ [133 S.Ct. at pp. 1561, 1563, 1568].)

Consequently, we assume without deciding, that Espinoza could refuse to submit to a

warrantless blood test unless the police obtained a warrant, and that, without more, her

refusal to do so could not result in her license being suspended. (See Birchfield,

at pp. ___ [136 S.Ct. at pp. 2185-2186].)

       However, as the Supreme Court clearly held in Birchfield, the Fourth Amendment

does not prohibit the police from forcing a motorist to submit to a warrantless breath test

incident to his or her arrest, the motorist has no right to refuse to submit to a breath test or

to condition his or her submission on the police obtaining a warrant, and the motorist’s

refusal to submit to the breath test may be the basis of criminal penalties. (Birchfield,

supra, 579 U.S. at pp. ___, ___ [136 S.Ct. at pp. 2184, 2186].) In light of that clear

holding, we conclude refusal to submit to a breath test incident to arrest may also be the

basis of imposing civil penalties under the implied consent law, including suspension or

revocation of the motorist’s driver’s license.

       The Department nonetheless contends Birchfield has no application to this case.

According to the Department, Birchfield only addressed criminal liability for refusing to

submit to a chemical test, something the California implied consent law does not provide

for.10 In addition, the Department contends the high court in Birchfield expressly stated



       10 More precisely, test refusal is not a separate criminal offense in California.
(People v. Valencia (2015) 240 Cal.App.4th Supp. 11, 19 [“the Legislature has never
expressly made it a stand-alone criminal offense for a DUI arrestee to refuse to submit to
a chemical test”].) Instead, a motorist’s refusal to submit to or failure to complete a
                                                                    [footnote continued on next page]


                                              36
it was not holding that civil penalties could not be imposed if a motorist refuses to submit

to a chemical test.

        True, the court in Birchfield stated its “prior opinions have referred approvingly to

the general concept of implied-consent laws that impose civil penalties and evidentiary

consequences on motorists who refuse to comply,” and that “nothing we say here should

be read to cast doubt on them.” (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at

p. 2185], italics added; see Hall v. Superior Court (2016) 3 Cal.App.5th 792, 802, fn. 8.)

But the legality of civil penalties for refusing to submit to a warrantless blood test was not

squarely presented in Birchfield. (See Harris, supra, 234 Cal.App.4th at p. 684 [“‘“‘It is

axiomatic that language in a judicial opinion is to be understood in accordance with the

facts and issues before the court. An opinion is not authority for propositions not

considered.’”’”].) We remain somewhat doubtful whether the high court would approve

of a civil license suspension predicated solely on a motorist’s refusal to submit to a

warrantless blood test. Rather than decide whether Espinoza’s license could be lawfully

suspended based solely on her refusal to submit to a warrantless blood test, we conclude




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chemical test, if pleaded and proven by the prosecutor, results in increased criminal
penalties if the motorist is convicted of DUI in violation of sections 23152 or 23153.
(§§ 23577, 23578.)


                                              37
her license was lawfully suspended because she did not submit to a warrantless breath

test.

        Gonzalez properly informed Espinoza that she had the obligation under

section 23612 to submit to a blood or a breath test; that if she was incapable of

completing one of those tests, she had to choose the other; and that failure to submit to or

to complete a chemical test would result in her driver’s license being suspended or

revoked. When Espinoza said she would submit to a blood test if Gonzalez first obtained

a warrant, Gonzalez told Espinoza that the policy of the CHP was only to obtain warrants

for forced blood draws in felony DUI cases and that a warrant would not be obtained in

Espinoza’s case. Under the facts of this case, a blood test was functionally unavailable.

(Cf. White v. Department of Motor Vehicles (2011) 196 Cal.App.4th 794, 798-800

[motorist’s refusal to submit to a breath test, after she agreed to submit to a blood test but

the attempt to take her blood proved unsuccessful, constituted refusal to submit to a

chemical test]; Quesada v. Orr (1971) 14 Cal.App.3d 866, 870-871 [when a motorist

chose to submit to a urine test under § 13353 but was unable to produce a sample, he was

required to complete either a blood or breath test and his failure to do so constituted a

refusal].)

        Under the implied consent law, when either a blood test or a breath test is

unavailable for whatever reason, the motorist must submit to and complete the available

test (and if both blood and breath tests are unavailable, the motorist must submit to and

complete a urine test). (§ 23612, subds. (a)(1)(A), (a)(2)(A), & (d)(2).) Once Espinoza

stated unequivocally that she would not submit to a blood test unless Gonzalez obtained a


                                              38
warrant, and Gonzalez made it clear a warrant would not be forthcoming and, therefore,

that a blood test would not be performed, Espinoza had an affirmative obligation to

submit to and complete a breath test. Espinoza did not choose to submit to a breath test,

which constituted a refusal to submit to a chemical test within the meaning of section

23612.

         Espinoza argues a blood test was actually available, and it was only the CHP’s

policy that rendered it unavailable. Not so. A blood test was functionally unavailable in

this case because Espinoza did not give actual consent to a blood test and, instead,

conditioned her purported consent on Gonzalez obtaining a warrant. Had Espinoza

actually consented to a blood test, the CHP’s policy would have been irrelevant.

         Citing Nelson v. City of Irvine (9th Cir. 1998) 143 F.3d 1196, Espinoza contends

she could not have been forced to submit to a breath test (or deemed to have refused to

submit to a breath test by not voluntarily submitting to one) when the blood test was

actually available but withheld from her for no valid reason. Even on questions of federal

law, we are not bound by decisions of the lower federal courts. (People v. Johnson

(2015) 61 Cal.4th 734, 782; People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.)

Moreover, Nelson misconstrued California’s implied consent law and is therefore

unpersuasive. (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 119-

121.) In any event, Nelson is distinguishable. “There the police either prevented or

coerced the defendants from selecting breath or urine tests. They acted in bad faith by

interfering with the defendant’s choice of tests and compelling them to take blood tests.”

(People v. Sugarman (2002) 96 Cal.App.4th 210, 216.) There is no evidence here that


                                             39
Gonzalez acted in bad faith or that he attempted to coerce Espinoza to take a chemical

test. Instead, the record indicates Gonzalez merely informed Espinoza that, because of

the CHP’s post-McNeely policy regarding warrants for blood draws, he would not obtain

one and, therefore, a blood test would not be performed. Likewise, we reject the

suggestion that a blood test was unavailable for no good reason. The CHP could

reasonably conclude that obtaining warrants for blood draws in every DUI case where

exigent circumstances do not exist would not be a wise use of limited resources and time

and, instead, reserve warrant requests for felony DUI cases.

       Espinoza also argues the Department suspended her license because she invoked

her right under McNeely to be free from warrantless, coerced blood tests, and that in

doing so the Department imposed an unconstitutional condition on her maintaining the

privilege to operate a motor vehicle. We disagree. “As a general matter, the

unconstitutional conditions doctrine imposes special restrictions upon the government’s

otherwise broad authority to condition the grant of a privilege or benefit when a proposed

condition requires the individual to give up or refrain from exercising a constitutional

right. (See, e.g., Perry v. Sindermann (1972) 408 U.S. 593, 597-598 . . .; Pickering v.

Board of Education (1968) 391 U.S. 563, 568 . . . .” (California Building Industry Assn.

v. City of San Jose (2015) 61 Cal.4th 435, 457.) Espinoza’s license was not suspended

merely because she invoked her right under McNeely to be free from a warrantless blood

test, but because she refused to submit to and complete a chemical test. Had Espinoza

voluntarily submitted to and completed a breath test, we would agree that her refusal to

submit to a warrantless blood test, by itself, would not be a lawful basis for her license


                                             40
suspension. Instead, Espinoza purported to consent to a blood test if Gonzalez obtained a

warrant and then failed to consent to a breath test when she learned a warrant would not

be forthcoming. We hold it was Espinoza’s failure to submit to and to complete a breath

test, and not merely her refusal to submit to a warrantless blood test, which supports her

license suspension.11

       Finally, Espinoza argues she had an affirmative right under McNeely to demand a

blood test and to force Gonzalez to obtain a warrant, Gonzalez failed to honor her

demand for a blood test with a warrant, and Espinoza had no further obligation to submit

to a breath test. According to counsel, suspending Espinoza’s license under these

circumstances renders her rights under McNeely to be illusory. We cannot agree.

       McNeely did not confer an affirmative or positive right on motorists to demand a

blood test with a warrant. Instead, McNeely conferred a passive or negative right on

motorists to be free from warrantless, coerced blood tests unless the police can establish

the existence of exigent circumstances. When Gonzalez informed Espinoza that, under

the CHP’s policy, he would not obtain a warrant and that a forced blood test would not be

administered, Gonzalez in fact honored Espinoza’s rights under McNeely. Under

Birchfield, however, Espinoza had no negative right to be free from a warrantless breath

test incident to her lawful arrest for DUI. Therefore, suspending Espinoza’s driver’s



       11  The superior court (and the hearing officer) did not rely on refusal to submit to
or failure to complete a breath test as the basis for suspending Espinoza’s driver’s license.
But as noted, ante, we must affirm the judgment if it is correct on any ground. (Shaw v.
County of Santa Cruz, supra, 170 Cal.App.4th at p. 269.)


                                             41
license for her failure to submit to and complete a breath test in no way renders illusory

Espinoza’s rights under McNeely.

       C.     Espinoza Was Afforded a Fair Hearing.

       Lastly, Espinoza contends the hearing officer’s complete rejection of D’Amico’s

expert testimony and errors in the hearing officer’s findings show the decision did not

comport with due process. We conclude the superior court’s implied finding that

Espinoza obtained a fair hearing is supported by the record.

       With respect to D’Amico’s testimony, the parties use a considerable amount of

space in their briefs discussing whether the hearing officer correctly found that D’Amico

was biased and what if any weight the hearing officer should have given to D’Amico’s

expert testimony. Regardless of whatever deference the superior court was required to

accord the hearing officer’s credibility findings (see Gov. Code, § 11425.50, subd. (b)),

on appeal we are only concerned with the superior court’s findings. (JKH Enterprises,

Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058 [“If a

fundamental vested right was involved and the trial court therefore exercised independent

judgment, it is the trial court’s judgment that is the subject of appellate court review.”]; 2

Cal. Administrative Mandamus, supra, Appeal From Superior Court Judgment, § 16.51,

pp. 16-36 to 16-37 [“When reviewing cases in which a trial court used the independent

judgment test, the appellate court focuses on the findings made by the superior court.”].)

We are not free to reweigh the evidence, and we must resolve all conflicts in the evidence

in favor of the superior court’s judgment. (Arthur, supra, 184 Cal.App.4th at p. 1205.)

Appellate courts must generally defer to the superior court’s resolution of questions of


                                              42
witness credibility. (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1285.) By

denying Espinoza’s petition, the superior court impliedly rejected the contention that she

did not receive a fair hearing and impliedly found D’Amico’s testimony—that Gonzalez

did not have probable cause to arrest Espinoza—lacked credibility and/or was entitled to

little or no weight. We may not revisit or reweigh that implied resolution of credibility.

       With respect to the errors in the hearing officer’s ruling, we must reject Espinoza’s

argument. Although the decision addressed an argument Espinoza did not actually make

at the administrative hearing regarding reasonable suspicion to perform a traffic stop, and

it contained some minor errors (e.g., the hearing officer referred to Espinoza as the

“Respondent” instead of the appellant in the hearing and as a “District Attorney” instead

of a public defender, and the hearing officer referred to the decision in Missouri v.

McNeely as “DMV v. McNealy”), they hardly demonstrate a lack of due process.

       Finally, we do not agree with Espinoza’s assertion that the decision shows the

hearing officer applied the wrong legal standard when it found Gonzalez had probable

cause to arrest Espinoza for DUI. The hearing officer clearly articulated her conclusion

that, based on Gonzalez and Temple’s observations of Espinoza, “Officer Gonzalez had

reasonable cause to believe that Respondent was driving a motor vehicle while under the

influence of alcohol.” This was the correct standard and, as we conclude ante, the record

supports the superior court’s implied finding that Gonzalez had reasonable cause to arrest

Espinoza for DUI.

                                             V.

                                      DISPOSITION


                                             43
     The judgment is affirmed. Respondent shall recover its costs on appeal.

     CERTIFIED FOR PUBLICATION



                                                           McKINSTER
                                                                               J.
We concur:



HOLLENHORST
          Acting P. J.



MILLER
                       J.




                                         44
