Zidell v. Bright

In Zidell v. Bright (1968) 264 Cal.App.2d 867, the arrestee initially refused to submit to any chemical test. Thereafter, the arresting officer left the police station to resume other duties. Thirty to 45 minutes after his initial refusal, the arrestee stated that he had changed his mind and would submit to a test. The arresting officer was called, but refused to return to the station. No test was given. (Id. at p. 869.) The reviewing court upheld suspension of the driver's license for refusal to submit to a chemical test. (Id. at pp. 869-870.) The court reasoned: "It would be inconsistent with the purpose of the statute to hold that either the arresting officer, or the officers on duty at the police station, were required to turn aside from their other responsibilities and arrange for administration of a belated test when once appellant had refused to submit after fair warning of the consequences." (Id. at p. 870.) In Zidell v. Bright, the driver of the vehicle was booked and was permitted to call his attorney. After talking to his attorney he refused to submit to any of the tests. The arresting officer then left the station to resume other police duties. Thirty to forty-five minutes later, still during the booking process, the driver stated that he had changed his mind and would submit to one of the tests. The booking officer called the arresting officer who refused to return and no test was given. The decision of DMV to suspend the driver's license was affirmed, with the court observing: "It is provided that 'The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe such person was driving . . . while under the influence of intoxicating liquor.' (Veh. Code, 13353, subd. (a).) This language implies that the decision of the arresting officer whether to request a test, and the suspect's response thereto, should not be delayed. This conclusion is also supported by the language of section 13353, subdivision (f): the accused 'may request the arresting officer to have a chemical test made . . . if so requested, the arresting officer shall have the test performed.' It would be inconsistent with the purpose of the statute to hold that either Officer Ruddick, or the officers on duty at the police station, were required to turn aside from their other responsibilities and arrange for administration of a belated test when once appellant had refused to submit after fair warning of the consequences. " ( Zidell, supra, 264 Cal.App.2d at p. 870.)