Payne

—The California Department of Motor Vehicles (DMV), appeals from judgment granting a writ of mandate. The trial court directed DMV to set aside its order suspending respondent Mark Anthony Payne’s (Payne) driving privilege for failure to submit to a blood, breath, or urine test as required by Vehicle Code section 13353, the implied consent law. DMV contends Payne’s conduct constituted a refusal to submit to the required chemical test as a matter of law. We agree and reverse.

Factual and Procedural Background

The essential facts are undisputed. After he was involved in an injury accident on September 30, 1989, Payne was lawfully arrested by California Highway Patrol Officer Jerry Schumaker for driving under the influence of alcohol. Officer Schumaker advised Payne at the scene that he was required by state law to submit to one of three chemical blood-alcohol tests. Payne replied he would not take any tests.

Officer Schumaker then transported Payne to the Sacramento County jail where he again advised Payne that failure to submit to one of the tests would result in suspension of his driving privilege. Payne responded he would not take a breath or urine test. He said he…