Stanford Law School - Robert Crown Law Library

Filed 4/26/07
IN THE SUPREME COURT OF CALIFORNIA

TERRY TROPPMAN,
Plaintiff and Respondent,
S132496
v.
Ct. App. 1/3 A105287
GEORGE VALVERDE, as Director, etc., )
)
San
Mateo
County
Defendant and Appellant.
Super. Ct. No. CIV434258

When a law enforcement officer finds an apparently intoxicated person in a
vehicle parked on the side of a road under circumstances that provide the officer
reasonable cause to believe that the person had been driving while under the influence of
alcohol or a drug, and the person fails to submit to chemical sobriety testing as requested
by the officer, may the Department of Motor Vehicles (DMV) suspend the person’s
driver’s license based upon the circumstance that the officer had reasonable cause to
believe the person had been driving while under the influence, or is suspension of a
driver’s license permissible in this setting only if the DMV finds that the person actually
had been driving the vehicle immediately prior to the officer’s request?
This question requires us to consider two statutes in the Vehicle Code ⎯ section
23612, the “implied consent” law (deeming motorists who have been lawfully arrested
for driving while under the influence to have consented to chemical testing) and section
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13353, setting forth the consequences (including suspension or revocation of a driver’s
license) of a motorist’s refusal to submit to chemical testing.1
The issue presented by this case has divided our Courts of Appeal for several
years. Three decisions have concluded that proof of actual driving immediately prior to
the suspect’s arrest for a driving-while-under-the-influence offense is required before a
driver’s license may be suspended or revoked for refusing to submit to chemical testing.
(Weber v. Orr (1969) 274 Cal.App.2d 288 (Weber); Medina v. Department of Motor
Vehicles (1987) 188 Cal.App.3d 744 (Medina); Jackson v. Pierce (1990) 224 Cal.App.3d
964 (Jackson).) Two decisions have disagreed, concluding that proof of actual driving
immediately prior to a suspect’s arrest is not required for license suspension or revocation
under these circumstances. (Rice v. Pierce (1988) 203 Cal.App.3d 1460 (Rice); Machado
v. Department of Motor Vehicles (1992) 10 Cal.App.4th 1687 (Machado); see also 2
Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and
Welfare, § 228, pp. 774-775 [discussing the split in the case law].)2
We conclude, consistent with the latter two decisions, Rice, supra, 203 Cal.App.3d
1460, and Machado, supra, 10 Cal.App.4th 1687, and with the Court of Appeal’s opinion
in the present case, that consent to testing pursuant to section 23612 applies broadly and
generally to “those who drive” — that is, to those who take advantage of the public
streets, roads, and highways to operate motor vehicles in this state — but that this statute
does not require proof of actual driving immediately prior to lawful arrest for driving
while under the influence of alcohol or a drug. We further conclude that revocation or

1
All further statutory references are to the Vehicle Code unless otherwise indicated.
2
Sixteen years ago, in addressing a related question, we highlighted the issue
presented here and invited the Legislature to “consider resolving [this] problem . . . that
has divided the Courts of Appeal. . . .” (Mercer v. Department of Motor Vehicles (1991)
53 Cal.3d 753, 769, fn. 24 (Mercer), citing Medina, Jackson, and Rice; see also post,
fn. 11.) The Legislature, however, has not addressed this issue in the interim.
2

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suspension of a license under section 13353 and related statutes for refusal to submit to
chemical testing under the implied consent law — a consequence conditioned upon only
four requirements, including that the arresting officer had reasonable cause to believe the
person had been driving a motor vehicle while under the influence, but not including a
finding of actual driving — similarly does not require proof that the person actually was
driving immediately prior to the arrest.
I
The relevant evidence, derived from the administrative hearing conducted by the
DMV, is summarized as follows.
In early January 2003, at approximately 10:45 p.m., Belmont Police Officer
Richard Wheaton observed plaintiff Terry Troppman “parked on the side of the road
passed out behind the wheel.” Wheaton approached the vehicle and attempted to contact
Troppman. After knocking upon the driver’s side window and receiving no response,
Wheaton pounded the window with his fist. Troppman raised her head and peered out
the front windshield, mumbling incoherently.
Wheaton opened the driver’s door and encountered a strong odor of alcohol.
When he inquired as to Troppman’s condition, she repeatedly replied, “Yeah, ok.”
Asked to produce her driver’s license and relate her date of birth, she was unable to do
so. In response to the officer’s inquiry concerning how much she had had to drink,
Troppman replied, “A little bit.” Asked how much was a little bit, Troppman reiterated,
“A little bit.”
Wheaton thereafter asked Troppman to exit from the vehicle and move toward the
sidewalk. As Troppman complied, she used the vehicle door to maintain her balance. At
the curb, Wheaton continued to detect a strong alcoholic aroma emanating from
Troppman. He observed that her eyes were bloodshot, red, and watery; her speech was
slurred; and her physical movements were extremely slow. Wheaton thereafter
administered a series of field sobriety tests, which Troppman failed.
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Belmont Police Officer Lewis arrived at the scene to assist Officer Wheaton.
After obtaining Troppman’s permission to search for her driver’s license inside the
vehicle, Lewis found a half-empty 1.5 liter bottle of wine tucked inside a plastic bag on
the floor next to the driver’s seat. Lewis asked Troppman whether she had consumed the
wine, and she replied, “Yes,” adding that she was an alcoholic. Wheaton then asked
Troppman whether “she was driving the vehicle,” and Troppman “told me she was.”
Wheaton thereafter placed Troppman under arrest for violating section 23152,
subdivision (a) (driving while under the influence of alcohol or a drug), and section
23222, subdivision (a) (possessing an open container of an alcoholic beverage while
driving). Wheaton explained the required chemical testing alternatives, to which
Troppman replied that she preferred to take a breath test. Wheaton thereafter transported
her to a facility for chemical testing.
At the facility, Troppman failed to complete a breath test and refused to continue.
Wheaton thereafter read to her the “Chemical Test Refusal Admonition,” but she again
refused to submit to testing. After briefly resisting, she was handcuffed and transported
to the San Mateo County Jail, where she was booked on the Vehicle Code charges
described above, and for resisting arrest (Pen. Code, § 148).3
The DMV conducted a telephonic administrative hearing in mid-February 2003, at
which Troppman was represented by counsel. In accord with the requirements set forth
in section 13558, subdivision (c)(1), the scope of the hearing was confined to
“only . . . those facts listed in . . . [s]ection 13557[, subdivision (b)(1)],” as follows: (1)

3
Pursuant to the applicable statutory mandates, Wheaton took possession of
Troppman’s driver’s license and served her with a “suspension/revocation order and
temporary driver license” that informed Troppman her privilege to operate a motor
vehicle would be suspended or revoked, effective in 30 days, unless Troppman requested
a hearing within 10 days. (§§ 13353, subds. (a)-(b), 13353.2, subds. (a)-(c), 23612,
subds. (e)-(f).) Troppman requested a hearing.
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whether the law enforcement officer “had reasonable cause to believe that the person
had been driving a motor vehicle [while under the influence of alcohol or drugs]”; (2)
whether “the person was placed under arrest”; (3) whether “the person refused or failed to
complete the chemical test . . . after being requested by a peace officer”; and (4) whether
“the person had been told that . . . her privilege to operate a motor vehicle would be
suspended or revoked if . . . she refused to submit to, and complete, the required testing.”
(Italics added; see also § 13353, subd. (d) [setting forth the same four factors].)
At the hearing, Troppman testified that she is an alcoholic and had been one for
several years. She asserted she had abstained from drinking during the holiday season,
but that while driving on the night of her arrest she had an “uncontrollable urge” to drink.
In response to that urge, she stopped at a supermarket, purchased a 1.5 liter bottle of wine
and a corkscrew, and then drove to search for a place where she could drink “safely.”
After driving a few blocks, she observed a wide dirt area off the side of the road. She
drove onto that area, turned off the vehicle’s ignition, and placed her car keys in the bag
with the wine bottle. She thereafter consumed much of the wine, and next recalled an
officer knocking on the window of her vehicle.
Troppman denied consuming any of the alcoholic beverage prior to driving her
vehicle, but admitted consuming approximately one-half of the contents of the bottle
while seated in the vehicle. She did not recall the details of her purchase of the wine, of
parking her vehicle, or of the time that elapsed prior to noticing the officer knocking on
her window.
In early April 2003 the hearing officer issued findings and a decision suspending
Troppman’s driver’s license, finding: (1) the peace officer had reasonable cause to
believe Troppman had been driving a motor vehicle while under the influence of alcohol
or drugs (that is, in violation of sections 23140, 23152, or 23153); (2) Troppman lawfully
was arrested; (3) Troppman was informed that if she refused to submit to or complete a
chemical test, her driver’s license would be suspended for one year, or revoked for two or
5

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three years; and (4) Troppman refused to submit to, or failed to complete, a chemical test
after being requested to do so by a peace officer.
Following the administrative proceeding and decision, the DMV suspended
Troppman’s driver’s license for one year pursuant to section 13353 for failure to submit
to a chemical test.
Troppman thereafter filed a petition for a writ of mandate, challenging the
suspension order on the basis that there was no finding that she had been driving
immediately prior to the time she was arrested. The superior court granted the petition
and ordered the suspension of Troppman’s license set aside, based upon the absence of
proof that Troppman actually had been driving a vehicle immediately prior to the arrest
while under the influence. In so ruling, the superior court simply stated: “The court finds
the Jackson[, supra, 224 Cal.App.3d 964] logic to be more compelling. So, the Court is
going to grant the writ.”
The DMV appealed, and the Court of Appeal set aside the lower court’s order.
The appellate court held that pursuant to section 13353, the license of a motorist
suspected of driving while under the influence of alcohol or a drug may be suspended or
revoked for refusal to submit to a chemical test, notwithstanding the absence of a finding
that the person actually had been driving a motor vehicle immediately prior to his or her
arrest for the alleged offense. Both the Court of Appeal’s majority opinion and the
concurring opinion reasoned that if the Legislature had intended to condition the
suspension of a license under section 13353 upon a finding that the licensee actually had
been driving immediately prior to the arrest for the alleged offense, it would have added
such an express requirement to the findings enumerated in sections 13353 and 13557.4

4
The Court of Appeal majority adopted an analysis consistent with Rice, supra, 203
Cal.App.3d 1460, and Machado, supra, 10 Cal.App.4th 1687. The concurring opinion,
authored by Justice Pollak, advanced two theories: First, that “consent [under section
(footnote continued on next page)
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As noted, we granted Troppman’s petition for review in order to resolve the
conflict among appellate court decisions.
II
A
Resolution of the issue presented in this case requires us to consider two
statutes ⎯ section 23612, the implied consent law, and section 13353, the license
suspension/ revocation statute.
Section 23612, quoted in the margin,5 provides that “[a] person who drives a
motor vehicle is deemed to have given his or her consent to chemical testing of his or her

(footnote continued from previous page)
23612] may be implied by the act of driving at any time, not only during the time period
immediately preceding the individual’s arrest” — and that such a reading “would uphold
the application of section 13353 in this case even if implied consent is considered
necessary to do so.” Alternatively, Justice Pollak further reasoned, implied consent is not
required under section 13353, and that section “authorized [the DMV] to suspend
Troppman’s license for refusing to submit to a chemical test, whether or not she was
driving immediately before she was requested to submit to the test, and whether or not
she impliedly consented to such testing.” As explained below, we agree with, and adopt,
the former construction, which also is consistent with the analysis of the majority opinion
below.
5
Section 23612, subdivision (a)(1) provides in relevant part: “(A) A person who
drives a motor vehicle is deemed to have given his or her consent to chemical testing of
his or her blood or breath for the purpose of determining the alcoholic content of his or
her blood, if lawfully arrested for an offense allegedly committed in violation of Section
23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then
paragraph (2) of subdivision (d) applies. [¶] (B) A person who drives a motor vehicle is
deemed to have given his or her consent to chemical testing of his or her blood or urine
for the purpose of determining the drug content of his or her blood, if lawfully arrested
for an offense allegedly committed in violation of Section 23140, 23152, or 23153. [¶]
(C) The testing shall be incidental to a lawful arrest and administered at the direction of a
peace officer having reasonable cause to believe the person was driving a motor vehicle
in violation of Section 23140, 23152, or 23153. [¶] (D) The person shall be told that his
or her failure to submit to, or the failure to complete, the required chemical testing will
result in a fine, mandatory imprisonment if the person is convicted of a violation of
(footnote continued on next page)
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blood or breath for the purpose of determining the alcoholic content of his or her blood, if
lawfully arrested for” a driving-under-the influence offense (§ 23612, subd. (a)(1)(A)),
and that such testing “shall be administered at the direction of a peace officer having
reasonable cause to believe” the person was driving while under the influence of alcohol
or a drug. (§ 23612, subd. (a)(1)(C).) In subsequent subsections, the statute sets forth in
detail the circumstances under which, pursuant to this implied consent, the arresting
officer may require a chemical test, the various test choices available to the arrestee, and
the procedure to be followed by the officer with respect to the arrestee’s license in the
event the arrestee refuses to take or complete a required test. (Id., subds. (a)(2), (b)-(g).)
Section 13353 is a related statute that works in tandem with section 23612.
Section 13353 specifies actions to be taken by the DMV in the event a person refuses an
officer’s request to submit to a chemical test. Subdivision (a) of section 13353 authorizes
the DMV to suspend or revoke the driver’s license of “a person [who] refuses [a law
enforcement] officer’s request to submit to, or fails to complete, a chemical test or tests

(footnote continued from previous page)
Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a
motor vehicle for a period of one year, (ii) the revocation of the person’s privilege to
operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a
separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140,
23152, or 23153, or of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of
the Penal Code that resulted in a conviction, or if the person's privilege to operate a motor
vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2
for an offense that occurred on a separate occasion, or (iii) the revocation of the person’s
privilege to operate a motor vehicle for a period of three years if the refusal occurs within
10 years of two or more separate violations of Section 23103 as specified in Section
23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or paragraph (3) of
subdivision (c) of Section 192 of the Penal Code, or any combination thereof, that
resulted in convictions, or if the person’s privilege to operate a motor vehicle has been
suspended or revoked two or more times pursuant to Section 13353, 13353.1, or 13353.2
for offenses that occurred on separate occasions, or if there is any combination of those
convictions or administrative suspensions or revocations.”
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pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer
had reasonable cause to believe the person had been driving a motor vehicle” while
under the influence of alcohol or a drug. (Italics added.)6 Section 13353 also confirms
the process by which the arresting officer is personally to serve upon a recalcitrant
arrestee a notice of suspension or revocation “pursuant to Section 23612.” (§ 13353,
subd. (c).) Finally, section 13353, together with related statutes governing the scope of
the administrative hearing, specifies four factual findings to be made by the DMV when a
suspension or revocation action is subjected to administrative review or hearing. In order
to confirm such action, the DMV must find that: (1) the law enforcement officer had
“reasonable cause to believe that the person had been driving a motor vehicle in violation
of [one or more specified vehicle code sections]”; (2) the person “was placed under
arrest”; (3) the “person refused to submit to or did not complete the test or tests after
being requested by a peace officer”; and (4) the “person had been told that his or her

6
That subdivision provides in full: “If a person refuses the officer’s request to
submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon
receipt of the officer’s sworn statement that the officer had reasonable cause to believe
the person had been driving a motor vehicle in violation of Section 23140 [unlawful for a
person under 21 years of age to drive with a blood-alcohol content of 0.05 percent or
more], 23152 [unlawful for any person to drive under the influence of alcohol or a drug,
or to drive with a blood-alcohol content of 0.08 percent or more], or 23153 [unlawful for
any person to drive under the influence of alcohol or a drug and cause bodily injury to
another], and that the person had refused to submit to, or did not complete, the test or
tests after being requested by the officer, the department shall do one of the following:
[¶] (1) Suspend the person’s privilege to operate a motor vehicle for a period of one
year. [¶] (2) Revoke the person’s privilege to operate a motor vehicle for a period of
two years . . . . [¶] (3) Revoke the person’s privilege to operate a motor vehicle for a
period of three years . . . .” (§ 13353, subd. (a).)

At the time of the incident that gave rise to these proceedings, the relevant
language of sections 13353 and 23612 was virtually identical to the current language
quoted above. Although we quote the current language of the statutes, our analysis also
applies to the former statutory language in effect in 2003 when the incident in question
occurred.
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driving privilege would be suspended or revoked if he or she refused to submit to, or did
not complete, the tests or tests.” (§ 13353, subd. (d); see also § 13557, subd. (b)(1).)7
Pursuant to section 13558, subdivision (c)(1), those four factors are the “only” issues to
be resolved at the administrative hearing concerning license suspension or revocation.
(Italics added.)8
B
1
Troppman contends that because the implied consent law, section 23612,
subdivision (a)(1)(A), states that it applies to “[a] person who drives a motor vehicle,” the
statute must be understood to require actual driving immediately prior to the arrest for a
driving-while-under-the-influence offense, and that absent such evidence, license

7
Section 13557, subdivision (b)(1) provides in relevant part: “If the department
determines in the review of a determination made under Section 13353 or 13353.1, by a
preponderance of the evidence, all of the following facts, the department shall sustain the
order of suspension or revocation: [¶] (A) That the peace officer had reasonable cause
to believe that the person had been driving a motor vehicle in violation of Section 23136,
23140, 23152, or 23153. [¶] (B) That the person was placed under arrest . . . . [¶] (C)
That the person refused or failed to complete the chemical test or tests after being
requested by a peace officer. [¶] (D) That . . . the person had been told that his or her
privilege to operate a motor vehicle would be suspended or revoked if he or she refused
to submit to, and complete, the required testing. [¶] If the department determines, by a
preponderance of the evidence, that any of those facts were not proven, the department
shall rescind the order of suspension or revocation and, provided the person is otherwise
eligible, return or reissue the person’s driver’s license pursuant to Section 13551. The
determination of the department upon administrative review is final unless a hearing is
requested pursuant to Section 13558.”

The four findings noted above that must be made pursuant to section 13557,
subdivision (b)(1), in order to support a suspension or revocation of one’s license to
operate a motor vehicle, mirror the four issues that define the scope of the DMV’s
administrative review. (See § 13353, subd. (d), quoted ante, at the close of part II.A.)
8
Section 13558, subdivision (c)(1), provides in relevant part: “The only issues at
the hearing on an order of suspension or revocation pursuant to Section 13353 or 13353.1
shall be those facts listed in paragraph (1) of subdivision (b) of Section 13557.”
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suspension or revocation is not triggered under section 13353 even if the other four
factors listed in subdivision (d) of that section and in related provisions (§ 13557, subd.
(b)(1), quoted ante, fn. 7; see also § 13558, subd. (c)(1), quoted ante, fn. 8) are met.
In support, Troppman relies upon three decisions, Weber, supra, 274 Cal.App.2d
288, Jackson, supra, 224 Cal.App.3d 964, and Medina, supra, 188 Cal.App.3d 744. In
Weber, officers observed the licensee’s car parked partially upon an access road. The
licensee admitted he was intoxicated, and after being arrested for driving under the
influence of alcohol, he repeatedly refused to submit to a chemical test. At the hearing
before the DMV, the licensee’s privilege to operate a motor vehicle was suspended based
upon his refusal to submit to a chemical test as prescribed by former section 13353, the
implied consent statute in force at the time (currently, section 23612). The trial court
upheld the suspension. Applying section 13353, the Court of Appeal set aside the
suspension, holding: “The fact that the officer has reasonable cause to believe that a
person was driving upon a highway is not sufficient if actually he was not so driving,”
and absent such driving, there is no “implied[] consent to the test, no matter what the
appearances to the officer may have been.” (Weber, supra, 274 Cal.App.2d at p. 291.)
The court in Medina, addressing similar circumstances, agreed with the court’s analysis
in Weber, concluding that Weber’s “construction of the implied consent law seems
mandatory. Consent must be implied from some act of the arrestee, not from a peace
officer’s ‘reasonable belief’ that the arrestee has so acted.” (Medina, supra, 188
Cal.App.3d at p. 750.)
Thereafter, the court in Jackson determined that under the plain language of the
implied consent law, “it is the act of driving a motor vehicle . . . which activates the
admonition and testing procedures.” (Jackson, supra, 224 Cal.App.3d at p. 970.) The
court reasoned as follows: “The Legislature has . . . made the officer’s reasonable
suspicion enough to warrant giving the tests to every individual who may have been
driving while intoxicated. By doing so, the immediate goal of the law, to preserve the
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best evidence of a suspect’s blood-alcohol content, is achieved. [Citation.] [¶] However,
the suspension of an individual’s license is another matter. Suspension is the result of the
person’s failure to do what he or she has consented to do ― submit to a test. The first 19
words of [the implied consent statute, now section 23612 ― “A person who drives a
motor vehicle is deemed to have given his or her consent to chemical testing . . . .”]
clearly proclaim that the consent is implied by law from the act of driving. If the person
was not driving, he or she did not impliedly agree to submit to the test and, under the
statute, has every right to refuse to take it. A person who has no obligation to comply
with a law should not be punished for failing to comply with it.” (Jackson, supra, 224
Cal.App.3d at p. 971.)
2
By contrast, the People assert that although the implied consent law, section
23612, refers to “[a] person who drives a motor vehicle” as deemed to have consented to
chemical testing if lawfully arrested for a driving-while-under-the-influence offense, that
language does not require evidence of actual driving immediately prior to the lawful
arrest for driving under the influence, and hence license suspension or revocation under
section 13353 is not limited to situations in which the individual who refuses chemical
testing was observed actually driving immediately prior to being lawfully arrested. The
People argue instead that (a) section 23612 provides general notice to “those who drive”
(that is, to “the motoring public”) that any person lawfully arrested for driving while
under the influence of alcohol or a drug is obligated to submit to chemical testing upon
threat of license suspension, and (b) section 13353 is a corresponding “enforcement
provision that authorizes the DMV to suspend a person’s driving privileges upon proof of
the [four] elements specified in the statute” (see §§13353, subd. (d), 13557, subd. (b)(1),
and 13558, subd. (c)(1)) — and that nothing more need be proved. In support, the People
rely upon Rice, supra, 203 Cal.App.3d 1460, and Machado, supra, 10 Cal.App.4th 1687.
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In Rice, supra, 203 Cal.App.3d 1460, the Court of Appeal departed from the
analysis set forth in the cases relied upon by Troppman. After the licensee in Rice was
arrested for driving while under the influence, he refused to submit to chemical testing as
required by the implied consent law. At a subsequent DMV hearing, the licensee argued
he was not required to submit to testing, because he had not been driving the vehicle.
The DMV rejected this position and revoked his license. (Id., at pp. 1461-1462.) The
licensee thereafter petitioned the superior court for a writ of mandate to compel the DMV
to lift the revocation. Relying upon Medina, supra, 188 Cal.App.3d 744, the licensee
again asserted the revocation order was invalid because the referee had not made a
finding that the licensee actually had driven the car immediately prior to the arrest. (Rice,
at p. 1462.) The trial court granted the petition, and the DMV appealed. (Ibid.)
In reversing the trial court’s order, the court in Rice observed that the legislative
purpose underlying the implied consent law (section 23612) “is two-fold: (1) to obtain
the best evidence of blood alcohol content while ensuring cooperation of the person
arrested, and (2) to inhibit driving under the influence.” (Rice, supra, 203 Cal.App.3d at
p. 1465.) The court reasoned: “It would serve no useful policy to permit an intoxicated
person suspected of driving a vehicle to refuse to take a chemical test for alcoholic
content. To require an additional finding [beyond the four required by the statute] that
the arrestee was actually driving, would undermine the important goals of cooperation
and deterrence.” (Ibid.)9 The court concluded that Medina’s interpretation of the implied

9
The court further observed in Rice: “Rather than carve out an exception, the
legislative policy tries to get these people off the road and out of harm’s way. In light of
the severity of the problem and difficulty of detection, the law encourages compliance
with the implied consent law in situations where the officer reasonably suspects the
arrestee to have been driving while under the influence of alcohol or drugs. To bar
license suspension of persons who are lawfully arrested but are subsequently found not to
be the actual driver would render enforcement more difficult at a time when society
deserves increased protection in eradicating a problem which unfortunately has become
(footnote continued on next page)
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consent statute gave “inadequate deference to the state’s broad police power to legislate
for the common health and welfare ― i.e., ‘ “to fulfill the need for a fair, efficient and
accurate system of detection and prevention of drunken driving.” [Citation.]’
[Citation.]” (Id., at p. 1464.) In support of that view, the court in Rice observed that the
implied consent law “refers to any ‘person’ lawfully arrested” for having violated section
23152 or 23153, and that the statute “does not speak in terms of the lawful arrest of a
‘driver.’ (Cf. definitions of ‘person’ in § 470 and ‘driver’ in § 305.) A lawful arrest for
driving under the influence requires that there be reasonable cause to believe the person
was driving (Nona v. Cozens (1973) 34 Cal.App.3d 691, 694), not proof beyond a
reasonable doubt the arrestee was in fact driving. [¶] . . . [¶] The statute . . . [provides]
that upon a lawful arrest for driving under the influence, a person must submit to one of
the chemical tests administered at the direction of a peace officer. Upon failure to
submit, the person shall suffer loss of his driving privileges. This interpretation is
consistent with the very important purpose of the statute to keep persons who are
reasonably suspected of operating a vehicle while intoxicated off the road and to secure
the civil cooperation of all persons privileged to drive by providing objective proof of
their sobriety when suspected of driving under the influence. [Citations.] Other than to
cite to Medina, plaintiff makes no showing why we should disregard the plain language
and engraft an additional requirement onto the statute. In light of our interpretation of the
statute, we decline to follow Medina.” (Rice, supra, 203 Cal.App.3d at pp. 1465-1466.)
Finally — and most recently (in 1992) — in Machado, supra, 10 Cal.App.4th
1687, the DMV suspended a licensee’s privilege to operate a motor vehicle because he
failed to submit to chemical testing following his arrest for driving while under the

(footnote continued from previous page)
all too common in our modern, mobile culture.” (Rice, supra, 203 Cal.App.3d at
p. 1465.)
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influence of alcohol. (Id., at p. 1689.) At the administrative hearing held to determine
the propriety of the suspension, the licensee claimed he was not the driver and therefore
was not required to submit to such testing. (Ibid.) The hearing officer found that the
licensee was the driver and affirmed the suspension. (Id., at p. 1691.) The licensee
thereafter sought a writ of mandate in the superior court, which concluded that the
hearing officer’s finding that the licensee was the driver was not supported by substantial
evidence. The court, however, upheld the suspension on the ground that the implied
consent law requires only that, in order to trigger the chemical testing requirement, an
officer have probable cause to arrest the licensee for committing the offense of driving
while under the influence. (Id., at pp. 1691-1692.)
In affirming the trial court’s order, the appellate court in Machado examined the
conflicting interpretations of the implied consent law, as set forth in Medina and Jackson
on the one hand, and Rice on the other, and concluded that “the Rice case correctly
interprets the statute and legislative intent.” (Machado, supra, 10 Cal.App.4th at p.
1696.) The court in Machado concluded that, when “[c]onsidered in its entirety,” the
language of both the implied consent statute (currently section 23612) and section 13353
“plainly applies to persons who are lawfully arrested for drunk driving when the arresting
officer has probable cause to believe the person was driving. The introductory language
of [the implied consent statute] (‘Any person who drives a motor vehicle’) operates to
describe the general class of persons to whom the law applies ― those who drive. The
language does not limit application of the laws to those who are proved to be actually
driving at the time of the lawful arrest. Rather, the language of the sections specifically
conditions their application on whether a peace officer has probable cause to believe a
person was driving.” (Machado, at p. 1698, italics added.)
As explained below, we agree with the People and with Rice, supra, 203
Cal.App.3d 1460, and Machado, supra, 10 Cal.App.4th 1687.
15

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C
“The fundamental principle of statutory interpretation is ‘the ascertainment of
legislative intent so that the purpose of the law may be effectuated . . . .’ ” (Pollack v.
Department of Motor Vehicles (1985) 38 Cal.3d 367, 372.)10
As observed above, the court in Rice identified a dual legislative purpose
underlying the implied consent law, section 23612: “(1) to obtain the best evidence of
blood alcohol content while ensuring cooperation of the person arrested, and (2) to inhibit
driving under the influence.” (Rice, supra, 203 Cal.App.3d at p. 1465.)
Similarly, this court has outlined in Mercer, supra, 53 Cal.3d 753, the purpose of
both the implied consent law, section 23612, and the related license suspension/
revocation law, section 13353. We explained in Mercer that the Legislature adopted the
implied consent law in 1966 in response to the United States Supreme Court’s decision in
Schmerber v. California (1966) 384 U.S. 757). Schmerber approved forcible chemical
testing of persons arrested, so long as (i) the test is incident to a lawful arrest for driving
under the influence of alcohol or a drug, (ii) the circumstances require prompt testing,
(iii) the arresting officer has reasonable cause to believe the arrestee is intoxicated, and
(iv) the test is conducted in a medically approved manner. (Id., at pp. 766-772.) We

10
In attempting to discern the intent of the Legislature, we rely upon well-settled
rules. “ ‘The meaning of a statute may not be determined from a single word or sentence;
the words must be construed in context, and provisions relating to the same subject
matter must be harmonized to the extent possible. [Citation.] Literal construction should
not prevail if it is contrary to the legislative intent apparent in the statute. . . . An
interpretation that renders related provisions nugatory must be avoided [citation]; each
sentence must be read not in isolation but in light of the statutory scheme [citation]; and if
a statute is amenable to two alternative interpretations, the one that leads to the more
reasonable result will be followed [Citation].’ [Citation.]” (People v. Shabazz (2006) 38
Cal.4th 55, 67-68.) Courts are “not to insert what has been omitted, or to omit what has
been inserted . . . .” (Code Civ. Proc., § 1858; California Teachers Assn. v. Governing
Bd. of Rialto Unified School District (1997) 14 Cal.4th 627, 633.)
16

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observed in Mercer (quoting People v. Superior Court (1972) 6 Cal.3d 757 (Hawkins)):
“ ‘Although it is clear under Schmerber that a person who has been lawfully arrested may
have a blood sample forcibly removed without his consent, provided [conditions
described above are met], nevertheless such an episode remains an unpleasant,
undignified and undesirable one. [¶] However, the shocking number of injuries and
deaths on the highways caused by drunk drivers has compelled society to adopt extreme
measures in response.’ ” (Mercer, supra, 53 Cal.3d at pp. 759-760.) We observed in
Mercer and Hawkins that by enacting the implied consent law, thereby providing an
alternative method of compelling a person arrested for driving while under the influence
to submit to chemical testing, the Legislature afforded officers a means of enforcement
that does not involve physical compulsion. We stated: “ ‘It is noteworthy that in so
doing, the Legislature took pains to condition’ ” use of this alternative method of
compelling chemical testing “ ‘upon the reasonable belief of the peace officer’ ” that the
arrestee had been driving while under the influence of alcohol or drugs. (Mercer, supra,
53 Cal.3d at p. 760, italics added, quoting Hawkins, supra, 6 Cal.3d 757, 765.11)

11
In Mercer, which involved a factual setting similar to that of the present case, the
issue was whether the “lawful arrest” requirement of the implied consent statute
(currently § 23612) and the related license revocation statute (§ 13353) had been met
where, under the law then in effect, the officer lacked statutory authority to effect a
warrantless misdemeanor arrest for a driving-while-under-the-influence offense that was
not committed in the officer’s direct presence. (Mercer did not present the issue
confronting us here — the arrestee in that case did not claim that the revocation of his
license was void because there was no proof or finding that he impliedly consented to
testing by being a person who “drives a motor vehicle.”) We held in Mercer that the
lawful arrest requirement had not been met, because under the statutes then in effect a
warrantless misdemeanor arrest for driving while under the influence was permissible
only if the officer observed some volitional movement of the vehicle caused by the
suspected driver, but we also noted that the Legislature was free to revise the statutes to
yield a different result. (Mercer, supra, 53 Cal.3d at p. 769.) Thereafter, the Legislature
took such action, allowing warrantless arrest for a misdemeanor driving-while-under-the-
influence violation not committed in the arresting officer’s presence, in circumstances in
(footnote continued on next page)
17

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Harmonizing the two statutes here at issue — section 23612, the implied consent
law, and section 13353, the license suspension/revocation law — we agree with the
People, first that section 23612 reasonably should be construed to apply broadly and
generally to the motoring public (that is, to those who take advantage of the public
streets, roads, and highways to operate a motor vehicle), and that the statute does not
require evidence that actual driving occurred immediately prior to the arrest for driving
while under the influence. As Justice Pollak observed in his concurring opinion below,
such a construction — under which “consent may be implied by the act of driving at any
time, not only during the time period immediately preceding the individual’s arrest” — is
“consistent with a literal reading of section 23612.”12 Indeed, as the court observed in
Rice, supra, 203 Cal.App.3d 1460, 1465, a contrary interpretation of the implied consent
law would disserve the public-safety policy that apparently underlies the legislative intent
reflected in the statute.
We further agree with the People, and with Rice, supra, 203 Cal.App.3d 1460, and
Machado, supra, 10 Cal.App.4th 1687, that the primary focus of both statutes (section
23612, the implied consent law, and section 13353, the license suspension/ revocation

(footnote continued from previous page)
which the person otherwise might destroy or conceal evidence. (§ 40300.5, subd. (e), as
added by Stats. 1996, ch. 1078, § 6, p. 7366; see People v. Schofield (2001)
90 Cal.App.4th 968, 974-975 [authority extends to cases in which metabolic evidence
would be dissipated over time].)
12
We also observe that there is no danger that such a construction would require a
person, simply because he or she occasionally drives, to submit (on pain of loss of
driving privileges) to any and all law enforcement demands, however arbitrary in time,
place, and circumstance, to a chemical sobriety test. Sections 13353 and 23612 both
condition the loss-of-license sanction upon the DMV’s finding of a lawful arrest for
driving while under the influence of alcohol or a drug — a finding that is dependent upon
an officer’s possessing probable cause to believe the person was driving in that
condition.
18

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law) is upon whether the officer had probable cause to believe the person had been
driving while under the influence, and therefore whether the person lawfully was
arrested — and that revocation or suspension of a license under section 13353 does not
require proof beyond the four factors listed in sections 13353, subdivision (d), and
section 13557, subdivision (b)(1), and made exclusive by section 13558, subdivision
(c)(1). In other words, no requirement exists, under either the implied consent law,
section 23612, or under the license suspension/ revocation statute, section 13353, of
proof that the person actually was driving immediately prior to his or her arrest for
driving while under the influence.
The legislative history of section 13353 and related statutes confirms our
construction of the legislative scheme. Within one year after the Court of Appeal’s 1988
decision in Rice, supra, 203 Cal.App.3d 1460, created a conflict by disagreeing with
Medina, supra, 188 Cal.App.3d 744, and declining to add an “actual driving”
requirement to the four factors listed in section 13353, the Legislature in 1989 enacted
sections 13557, subdivision (b)(1), and 13558, subdivision (c)(1). (See Stats. 1989, ch.
1460, §§ 13 & 14, pp. 6512-6514.) As noted above, section 13557, subdivision (b)(1),
reiterated the four factors set forth in section 13353, subdivision (d) and its predecessor
provisions — including, as the first factor, that the law enforcement officer had
“reasonable cause to believe that the person had been driving a motor vehicle” while
under the influence — and made clear that those four factors are to be considered by the
DMV in its administrative review of orders suspending or revoking a person’s license to
drive. Section 13558, subdivision (c)(1), specified that those same four factors “shall be”
“[t]he only issues at the hearing. . . .” (Italics added.) When viewed in the context of the
then-recent Rice decision, these 1989 amendments to these closely related statutes —
particularly the amendment to section 13558, subdivision (c)(1) — constitute an implicit
confirmation of Rice’s holding that the four factors, none of which includes actual
19

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driving, are the sole factors necessary to trigger suspension or revocation penalties under
section 13353.13
In light of the foregoing, we conclude that the Legislature’s omission of actual
driving immediately prior to a suspect’s arrest for a driving-while-under-the-influence
offense as a requirement with respect to license suspension or revocation under section
13353 was a considered and deliberate decision, and one that we are obliged to honor.
Finally, we reject Troppman’s suggestion that the inclusion of the statutory
language “pursuant to section 23612” in section 13353 — a phrase added to that statute
in 1985 (see Stats. 1985, ch. 735, § 2, p. 2386 [incorporating the words “pursuant to
section 23157” — the predecessor to section 23612]) — implicitly might reflect an intent
on the part of the Legislature to incorporate into section 13353 an actual-driving
requirement. Troppman’s premise is that the implied consent law, section 23612, itself

13
Additional support for this conclusion is reflected in the history of former section
13558, subdivision (c)(2), governing license suspension pursuant to section 13353.2,
which proscribed “driving” or being “in actual physical control of a motor vehicle”
“when” having a specified blood-alcohol content. When enacted in 1989, section 13558,
subdivision (c)(2), provided that “the only issues” at a license-suspension hearing
conducted under that section included “whether the person was driving or in actual
physical control of a motor vehicle when the person had” a specified blood-alcohol
content. (Stats. 1989, ch. 1460, § 14, p. 6514.) By so providing, the Legislature drew a
clear distinction between the language used in subdivision (c)(1) and that used in
subdivision (c)(2) of section 13558: The Legislature (1) required under the former
subdivision only that a peace officer have reasonable cause to believe that the person had
been driving a motor vehicle while under the influence, but (2) required under the latter
subdivision evidence that the licensee “was driving” (or was in actual physical control of)
a motor vehicle “when” the person had a certain blood-alcohol content. This distinction
demonstrates that when the Legislature mandated in the former subdivision that the issues
to be resolved at a section 13353 suspension or revocation hearing would be limited to
“only” four factors, not including actual driving immediately prior to the arrest for
driving under the influence, the Legislature obviously understood how to clearly provide
otherwise had it intended to make such actual driving a requirement for license
suspension or revocation.
20

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contains an actual driving requirement — but as observed above, we reject that premise,
and instead agree with the People that section 23612 applies broadly and generally to
“those who drive” — that is, to those who avail themselves of the public streets, roads,
and highways to operate motor vehicles in this state. This is a category that clearly
includes Troppman, who drove to the very spot, remote from her home, where she
eventually was arrested. This category also includes anyone else — licensed or
otherwise — who uses public streets or roadways in driving a motor vehicle in this state.
Although nothing in the legislative history we have reviewed concerning the 1985
amendment reveals why the language “pursuant to section 23612” was added to the
statute at that time, there also is no indication that the Legislature in taking this action
intended to impose or incorporate an actual-driving requirement. In view of the
foregoing legislative history, we cannot conclude that the Legislature intended to require
actual driving immediately prior to the person’s lawful arrest under either the implied
consent law, section 23612, or the suspension/ revocation statute, section 13353.
III
When a law enforcement officer observes a person inside a motor vehicle and has
reasonable cause to believe that person has been driving while under the influence of
alcohol or a drug, and the four findings required by section 13353, subdivision (d) are
made, that person’s license to operate a motor vehicle may be suspended or revoked.
Such sanctions under section 13353 are applicable whether or not the individual was
driving immediately prior to his or her arrest.
Accordingly, the DMV was not required to find that Troppman actually was
driving immediately prior to the time of her arrest, and the superior court erred in
concluding otherwise. The circumstances that Troppman, by her own admission, drove
her vehicle shortly before a law enforcement officer observed her slumped over the wheel
(and a bottle of wine partially consumed by her that evening within her reach), that she
acted in a manner that provided the officer with reasonable cause to believe she had been
21

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driving while under the influence of alcohol and thus to lawfully arrest her, and that she
subsequently refused to complete chemical testing, provided the DMV with a sufficient
basis under section 13353 to suspend her driver’s license.
IV
The judgment of the Court of Appeal is affirmed.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
KLEIN, J.*

* Presiding Justice, Court of Appeal, Second Appellate District, Division Three, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
22

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Troppman v. Valverde
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 126 Cal.App.4th 755
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S132496
Date Filed: April 26, 2007
__________________________________________________________________________________

Court:

Superior
County: San Mateo
Judge: Barbara J. Mallach

__________________________________________________________________________________

Attorneys for Appellant:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Andrea Lynn Hoch, Chief Assistant Attorney General,
Taylor S. Carey, Acting Chief Assistant Attorney, General, Jacob A. Applesmith, Assistant Attorney General,
Miguel A. Neri, Fiel D. Tigno and Raymond W. Hamilton III, Deputy Attorneys General, for Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Law Office of John Halley and John A. W. Halley for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Raymond W. Hamilton III
Deputy Attorney General
1515 Clay Street. Suite 2000
Oakland, CA 94612-1413
(510) 622-2223

John A. W. Halley
Law Office of John Halley
620 Jefferson Avenue
Redwood City, CA 94063
(650) 366-6789

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Opinion Information

Date:	Docket Number:
Thu, 04/26/2007	S132496

Disposition
Apr 26 2007	Opinion: Affirmed

Dockets
Mar 22 2005	Petition for review filed   by counsel for respondent (Terry Troppman). (40.1b)
Mar 24 2005	Record requested
Apr 6 2005	Received Court of Appeal record   file jacket/briefs/accordian file
May 18 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
May 24 2005	Certification of interested entities or persons filed   by counsel for appellant (Raymond Wesley Hamilton).
Jun 17 2005	Request for extension of time filed   counsel for respondent {Terry Troppman} requesting to July 16, 2005 to file opening brief on the merits.
Jun 21 2005	Extension of time granted   to and including July 16, 2005 for respondents to file opening brief on the merits.
Jul 18 2005	Request for extension of time filed   Respondent requesting to Aug. 15, 2005 to file opening brief on the merits.
Jul 22 2005	Extension of time granted   to and including August 15, 2005 for respondent to file the opening brief on the merits. No further extensions of time are contemplated.
Aug 16 2005	Opening brief on the merits filed   by counsel for respondent (Terry Troppman). (timely per CRC, rule 40.1)
Aug 30 2005	Request for extension of time filed   Appellant requesting to October 15, 2005 to file answer brief on the merits.
Sep 2 2005	Extension of time granted   to and including Oct. 15, 2005 for appellant to file the answer brief on the merits.
Oct 11 2005	Request for extension of time filed   Attorney General, on behalf of the Department of Motor Vehicles, requesting additional 30 days (to November 14) to file answer brief on the merits (to court for permission)
Oct 14 2005	Extension of time granted   On application of Steven Gourley, as Director of the Department of Motor Vehicles, State of California, and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 14, 2005. No further extensions will be granted.
Nov 14 2005	Answer brief on the merits filed   By counsel for respondent
Dec 5 2005	Request for extension of time filed   Respondent requesting to January 3rd, 2006 to file reply brief on the merits
Dec 9 2005	Extension of time granted   to and including January 3, 2006, for the respondent to file and serve the reply brief on the merits. No further extensions will be granted.
Jan 4 2006	Reply brief filed (case fully briefed)   Terry Troppman, plaintiff and respondent John Halley, counsel CRC 40.1B
Jan 3 2007	Case ordered on calendar   to be argued Tuesday, January 30, 2007, at 9:00 a.m., in Sacramento
Jan 9 2007	Motion filed (non-AA)   "Motion for Order Continuing Oral Argument", filed by John A. W. Halley, counsel for respondent Troppman
Jan 10 2007	Order filed   The motion for an order continuing oral argument, filed January 9, 2007, by respondent Troppman, is denied.
Jan 30 2007	Cause argued and submitted
Mar 1 2007	Order filed   The above entitled matter is retitled as follows: TERRY TROPPMAN, Plaintiff and Respondent, v. GEORGE VALVERDE, as Director, etc., Defendant and Appellant.
Apr 25 2007	Notice of forthcoming opinion posted
Apr 26 2007	Opinion filed: Judgment affirmed in full   Majority Opinion by George, C.J. joined by Kennard, Baxter, Werdegar, Chin, Moreno & Klein, JJ
Jun 19 2007	Remittitur issued (civil case)
Jun 27 2007	Received:   Receipt for Remittitur Court of Appeal, First Appellate District, Division 3

Briefs
Aug 16 2005	Opening brief on the merits filed
Nov 14 2005	Answer brief on the merits filed
Jan 4 2006	Reply brief filed (case fully briefed)

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