Plumb

Petitioner Plumb appeals from a judgment denying his petition for a writ of mandate compelling the respondent Department of Motor Vehicles to set aside its decision suspending his driver’s license for six months under Vehicle Code section 13353.

Plumb’s contention is that the arresting officer, who had given Plumb an augmented “Miranda warning” (Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]) which emphatically stated that Plumb “had an absolute right to counsel . . . present at all stages of the proceedings against him . . .” must have realized that Plumb, when he asked permission to make a phone call, had misinterpreted the officer’s statement just quoted and was seeking to exercise the proffered right, thus nullifying his subsequent refusal to submit to one of the three tests provided for in the code section. We have concluded that the matter must be reheard to permit the department to determine whether the officer’s statement was, in fact, so misinterpreted.

On the evening of April 18, 1967, Highway Patrol Officer George saw Plumb driving erratically. He caused him to; stop and alight from his vehicle. When Plumb performed a…