McGue

Thomas E. McGue appeals from a judgment denying petition for writ of mandamus. If issued, the writ would have directed respondent Director of the Department of Motor Vehicles (hereinafter DMV) to set aside its decision suspending appellant’s driver’s license for a period of six months pursuant to Vehicle Code section 13353. That section creates an implied consent to a chemical test—blood, breath or urine—on the part of a driver suspected of driving under the influence of intoxicating liquor.

Officer Philip Koyl of the Novato Police Department saw appellant driving southbound on Highway 101 at approximately 40 miles per hour. Appellant was weaving between lanes, having crossed between lanes four times in approximately one-half mile. He was also weaving within his own lane. When the officer stopped appellant, he noticed a moderate odor of alcoholic beverage emanating from his person. Appellant’s eyes were bloodshot, his speech was slurred, and his balance unsteady. The officer administered some roadside sobriety tests, which appellant failed. The officer then placed appellant under arrest for violation of Vehicle Code section 23102, subdivision (a) (driving a vehicle while…