Eilinger

Department of Motor Vehicles (DMV) appeals from a judgment granting a peremptory writ of mandate reversing the suspension of respondent’s (Eilinger) driving privilege for failing to submit to a blood, breath, or urine test.

The administrative referee found (1) the officer had probable cause to stop Eilinger for driving under the influence of liquor; (2) she was lawfully arrested; (3) she had been informed her driving privilege would be suspended for refusal to submit to a chemical test; and (4) she did refuse to submit to a chemical test of her blood, breath or urine. DMV ordered Eilinger’s license suspended for a period of six months.

The trial court disagreed, finding “that earlier fear of police from her life in Argentina caused her to become almost paralyzed because of this fear” and rendered her unable to respond “to a request to select a chemical test from among the three offered.” It further found the officer failed to advise Eilinger of the requirements and consequences of Vehicle Code section 13353 “in a manner in which she could reasonably be expected to respond.” The court stated the officer could have ordered a blood test on the grounds Eilinger was unable…