Hughey

—Following an administrative hearing, the Department of Motor Vehicles (DMV) notified respondent Mark J. Hughey (Hughey) that his driver’s license was suspended for six months for his refusal to submit to a chemical test as required by law. (Veh. Code, § 13353.)

Hughey then sought review of the order by petition to the superior court for a writ of administrative mandate (Code Civ. Proc., § 1094.5). The trial court ruled: “The court in exercising its independent judgment finds the preponderance of evidence does not support respondent’s [DMV’s] findings. The weight of the evidence does not support the finding that the arresting officer had reasonable cause to believe the petitioner was driving under the influence. The court finds that the petitioner was rendered incapable of refusing any chemical test by reason of the head trauma he sustained in the accident of July 30, 1988.” The court ordered a writ of mandate to issue directing DMV to set aside its decision suspending Hughey’s driver’s license. DMV timely appeals.

On appeal, DMV challenges both findings of the trial court, asserting the evidence demonstrates reasonable cause to arrest Hughey and that the trial court…

—I concur. As I read the statute, it plainly contemplates that there may be occasions when “no” does not mean “no,” i.e., when an express refusal to submit to a chemical test is not a withdrawal of the consent to such testing implied in the act of driving a motor vehicle. That is the effect of Vehicle Code section 23157, subdivision (a)(5) (hereafter section 23157) which reads in relevant part: “Any person who is unconscious or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the noncompletion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle. . . .” (Italics added.)

Serious injury to the head, even though not causing sustained unconsciousness, may nevertheless render the injured person incapable of refusal within the meaning of section 23157. In that circumstance, the determination whether an articulated refusal of a chemical test is volitional or not involves a medical judgment beyond the ken of the arresting officer. In most if…

Following an administrative hearing, the Department of Motor Vehicles (DMV) notified respondent Mark J. Hughey (Hughey) that his driver's license was suspended for six months for his refusal to submit to a chemical test as required by law. (Veh. Code, § 13353.) [1]

Hughey then sought review of the order by petition to the superior court for a writ of administrative mandate (Code Civ. Proc., § 1094.5). The trial court ruled: "The court in exercising its independent judgment finds the preponderance of evidence does not support respondent's [DMV's] findings. The weight of the evidence does not support the finding that the arresting officer had reasonable cause to believe the petitioner was driving under the influence. The court finds that the petitioner was rendered incapable of refusing any chemical test by reason of the head trauma he sustained in the accident of July 30, 1988." The court ordered a writ of mandate to issue directing DMV to set aside its decision suspending Hughey's driver's license. DMV timely appeals.

On appeal, DMV challenges both findings of the trial court, asserting the evidence demonstrates reasonable cause to arrest Hughey and that the…