Joyce

KINGSLEY, Acting P.J.

The Department of Motor Vehicles (hereinafter referred to as the department) appeals from a superior court judgment granting a writ of mandate, which writ reversed the department's suspension of James Joyce's driver's license pursuant to Vehicle Code section 13353. [1]

Joyce was arrested for driving under the influence of alcohol. The arresting officer (hereinafter referred to as the officer) informed Joyce of the requirements of section 13353. Joyce decided to take a breath test. The officer turned on the breathalyzer. The green light came on, indicating that the machine was ready to receive a sample. Joyce breathed into the machine; however, no reading was produced. This failure occurred because the breathalyzer malfunctioned. The officer told Joyce that two samples were needed. Joyce then breathed into the machine a second time. This time, a reading was produced. The officer then asked Joyce to breathe into the machine a third time. Joyce refused.

(1) The department ordered the suspension of Joyce's driver's license on the ground that Joyce refused to submit to or failed to complete the chemical test required by section 13353. The superior…

The Department of Motor Vehicles (hereinafter referred to as the department) appeals from a superior court judgment granting a writ of mandate, which writ reversed the depart *541 ment’s suspension of James Joyce’s driver’s license pursuant to Vehicle Code section 13353.

*542 Joyce was arrested for driving under the influence of alcohol. The arresting officer (hereinafter referred to as the officer) informed Joyce of the requirements of section 13353. Joyce decided to take a breath test. The officer turned on the breathalyzer. The green light came on, indicating that the machine was ready to receive a sample. Joyce breathed into the machine; however, no reading was produced. This failure occurred because the breathalyzer malfunctioned. The officer told Joyce that two samples were needed. Joyce then breathed into the machine a second time. This time, a reading was produced. The officer then asked Joyce to breathe into the machine a third time. Joyce refused.

The department ordered the suspension of Joyce’s driver’s license on the ground that Joyce refused to submit to or failed to complete the chemical test required by section 13353. The superior court held that Joyce…

I dissent.

I would reverse the judgment of the superior court which set aside the action of the Department of Motor Vehicles in suspending the driver’s license of James Joyce pursuant to Vehicle Code section 13353.

I disagree with the majority’s interpretation of Vehicle Code section 13353 and the pertinent portion of the regulations of the Department of Public Health instituted to implement the requirements of section 13353. The pertinent portion of the regulation involved is set forth in California Administrative Code, title 17, section 1221.4, subdivision (a)(1).

In affirming the action of the superior court, the majority interprets Vehicle Code section 13353 and section 1221.4, subdivision (a)(1), of title 17 of the California Administrative Code—the administrative regulation —so as to affirm the trial court’s view that Joyce, the motorist arrestee, had submitted to and completed the required test for determining the alcoholic content of his breath. I disagree. In my view, the majority’s interpretations lack logic and are contrary to acceptable standards of statutory and administrative regulation interpretation.

Vehicle Code section 13353, subdivision (a), gives the…