Taylor v. Department of Motor Vehicles

Toyota pickup truck. He was not exceeding the speed limit. Scotts Valley Police Officer Hohmann was driving northbound on Scotts Valley Drive, and Taylor’s truck was southbound on the same street. As Hohmann’s car passed by Taylor’s truck, “someone inside [Taylor’s] vehicle yelled loudly, and [Taylor’s] vehicle cut sharply behind [Hohmann]” as Taylor made a left turn onto a cross street. Taylor was in the left-turn lane using his left-turn signal when he initiated this turn. Hohmann detained Taylor, administered a preliminary alcohol screening (PAS) test and discovered that plaintiff’s blood-alcohol concentration was greater than .01.

The Department of Motor Vehicles (hereafter the DMV) suspended Taylor’s privilege to drive a motor vehicle pursuant to Vehicle Code section 23137.^[1] Taylor sought a writ of mandate in the superior court alleging that this suspension was invalid because the PAS testing had not been incidental to a lawful detention. The DMV denied this allegation and claimed that “there were specific, articulable facts sufficient to support the stop.” The superior court granted the writ of mandate after it concluded that the detention was unlawful. The DMV appeals claiming that Vehicle Code section 23136’s requirement that “[t]he testing shall be incidental to a lawful detention" does not mean that the detention must be supported by reasonable suspicion. We conclude otherwise and affirm the superior court’s judgment granting the writ of mandate.

Analysis

The DMV argues that, because minors “have a low privacy interest,” the type of “cause” necessary to detain them should be “a more flexible ‘reasonableness’ standard ... [so that] police personnel can enforce [Vehicle Code section 23136] without being constrained by the strict criminal detention requirements.” What the DMV fails to recognize is that the Legislature is the appropriate body to which it should address its policy arguments. “[W]hether [a statute] is desirable or wise is not our duty to decide; our role is to construe the statute as enacted by our Legislature.” (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 , 761 [ 280 Cal.Rptr. 745 , 809 P.2d 404 ].) In this case, no reasonable construction of Vehicle Code section 23136 can support the DMV’s assertion.

Vehicle Code section 23136 specifically requires that the PAS testing “be incidental to a lawful detention.”^[2] (Veh. Code, § 23136.) The legislative history of Vehicle Code section 23136 does not reflect that the Legislature’s use of the words “lawful detention” meant anything other than a detention supported by reasonable suspicion. We find strong support for this construction of the statute in judicial construction of an analogous statute in which the Legislature required that chemical testing “be incidental to a lawful arrest.” Vehicle Code section 23157, like Vehicle Code section 23136, provides for the suspension or revocation of a person’s driving privilege under certain circumstances. A person’s driving privilege may be suspended or revoked if, after being “lawfully arrested” for driving under the influence, the person is found to have a blood-alcohol concentration of .08 or greater or refuses or fails to complete chemical testing. (Veh. Code, §§ 13353, 13353.2,23157; Mercer v. Department of Motor Vehicles, supra, 53 Cal.3d at p. 760; Gikas v. Zolin (1993) 6 Cal.4th 841 , 847 [ 25 Cal.Rptr.2d 500 , 863 P.2d 745 ].) Vehicle Code section 23157 specifically provides, in language extremely similar to that contained in Vehicle Code section 23136, that “[t]he testing shall be incidental to a lawful arrest ....’’ (Veh. Code, § 23157, subd. (a)(1).)

In Mercer v. Department of Motor Vehicles, supra, 53 Cal.3d 753 the California Supreme Court held that Mercer’s driving privilege could not be suspended as a result of his failure to submit to chemical testing because Mercer had not been “lawfully arrested” for driving under the influence under Penal Code requirements for warrantless arrests. (Mercer at p. 769.) Hence, the Legislature’s reference in Vehicle Code section 23157 to “lawful arrest” was intended to refer to the requirements for a lawful arrest under the criminal law of this state. Vehicle Code section 23136 was enacted two years after the California Supreme Court issued Mercer. The fact that the Legislature, in its construction of Vehicle Code section 23136, chose to use