NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

McCONNELL, P. J.

INTRODUCTION

Ruslan Grub appeals a judgment denying his petition for writ of mandate challenging the revocation of his driver's license by the Department for refusing to provide a chemical test pursuant to Vehicle Code section 13353.2 Grub contends he invoked a condition imposed by law when he refused to submit to a blood test without assurances his blood would be drawn by a licensed, qualified technician in a medically approved manner. He also contends he had a right under the Fourth Amendment to refuse to submit to a coerced blood test without a warrant. We conclude the court did not err in denying the writ petition because there was substantial evidence supporting the license revocation based upon Grub's refusal to take either a breath or blood test. We affirm the judgment.

BACKGROUND

A

Shortly before midnight on May 29, 2016, a deputy sheriff met Grub driving a vehicle in the opposite direction. Grub did not lower his high beam headlights even after the deputy flashed his headlights to alert Grub. The deputy made a U-turn and initiated a traffic stop.

When the deputy contacted Grub, he had bloodshot and watery eyes and droopy eyelids. The deputy could smell the odor of an alcoholic beverage within the vehicle even though Grub denied drinking alcohol. Grub performed poorly on a series of field sobriety tests. Grub declined to take a preliminary alcohol screening test in the field.

The deputy arrested Grub for driving under the influence (§ 23152, subd. (a)) and driving under the influence of alcohol with a blood-alcohol content of 0.08 percent or above (§ 23152, subd. (b)). The deputy provided Grub with the implied consent advisement and explained the blood and breath tests. Grub stated he would take a breath test. Back at the sheriff's station, Grub attempted to provide a breath sample, but Grub would not create a seal with his lips around the test tube or blew inconsistently. After three insufficient breath samples, the machine voided the test and printed a slip showing an insufficient sample. The deputy believed Grub was unwilling or unable to provide a breath sample.

The deputy told Grub they would do a blood test since he was unable to provide a breath sample. When the phlebotomist arrived at the station and prepared to draw Grub's blood, Grub said, "You are not taking my blood." He continued to refuse after the deputy explained the consequences of refusing a chemical test.

The deputy read to Grub the chemical test refusal admonishment pursuant to section 13353. When he asked if Grub would take a breath test, Grub responded, "I'm not going to take another breath test." When the deputy asked if Grub would take a blood test, Grub stated, "I'm not going to take a blood test." The deputy said he would obtain a search warrant.

After a search warrant was obtained, another officer filmed as the deputy read the warrant to Grub. After the admonition, the deputy asked Grub if he would provide an arm for the blood draw. Grub responded, "If that's what you want, I will provide it." He then said while shrugging his shoulders and chuckling slightly, "I mean, I don't really have a choice. Four of you are obviously going to overcome me."

The same phlebotomist who had attempted to draw blood earlier proceeded with the blood draw. The phlebotomist showed Grub the needle saying, "Still in the case. Brand new." Grub said, "Okay" as he tilted his head from side to side and looked away.

The deputy served Grub with an Administrative Per Se order of suspension based upon 0.08 percent blood-alcohol content on his chemical test results, refusal of a chemical test, and forced blood test. The order advised Grub his driver's license would be suspended in 30 days.

B

At Grub's request, the Department conducted a hearing regarding Grub's driving privilege. Grub stipulated he was driving under the influence of alcohol and there was probable cause to detain him. He contested, however, he was offered and refused the chemical test.

Grub testified he agreed to take a breath test. He said he blew as hard as he could and tried to be cooperative, but the machine would not register.

Grub testified he did not feel comfortable giving blood at a police station. He said he hoped they would offer him another test or allow him to do a breath test again.

Grub stated the lab technician walked in "like a plumbing technician" with a suitcase to draw his blood. Grub testified he felt uncomfortable. Grub did not tell the deputy or the lab technician he was uncomfortable. He thought the technician seemed to understand his concerns because, as shown on the DVD, the lab technician showed Grub the needle was still encased and sterile. Once the lab technician showed him the needle was sterile, Grub gave blood. Grub said he did not refuse a chemical test. He was just uncomfortable taking a blood test in that setting. He stated he gave the blood sample after his concerns were satisfied.

The Department found that Grub was told his driving privilege would be suspended or revoked if he refused to complete chemical testing and he did refuse to complete the chemical test after being requested to submit to such testing by a peace officer. Specifically, the Department determined Grub clearly and unequivocally refused to provide a blood sample according to the deputy's documentation. Since Grub was unable or unwilling to complete the breath test, he was obliged to complete a blood test. The Department determined Grub failed to clearly state an objection based on cleanliness of the blood draw and there was no evidence this was a reason for refusal of the blood test. The Department noted the phlebotomist pointed out the cleanliness of the instruments, but it was unclear how the topic came up. The Department reimposed revocation of Grub's driving privilege for three years, through October 12, 2019.

C

Grub filed a petition for writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5 asking the court to issue a writ directing the Department to set aside its order suspending his driver's license. Grub contended he did not refuse the chemical test, but invoked his lawful right (1) to obtain assurances about the qualifications of the phlebotomist and (2) to refuse to submit to a blood test without a warrant.

The court considered the petition and the return papers along with the administrative record and the video of the blood draw.3 In its preliminary remarks, the court noted there was ambiguity in Grub's testimony before the Department as to whether he actually voiced hesitation about the hygiene of the facility. The court stated Grub had not provided compelling evidence to offset the hearing officer's decision so there was no basis to overturn the Department's findings and suspension of Grub's driver's license. After argument, the court took the matter under submission to review the video. The court denied the writ petition.

DISCUSSION

I

"`Where, as here, the driver petitions for a writ of administrative mandate following an order of suspension, the superior court is required to determine, based on the exercise of its independent judgment, whether the weight of the evidence supports the administrative decision. [Citation.] In reviewing the administrative record, the court makes its own determination about the credibility of the witnesses. [Citation.] [¶] `On appeal, we review the record to determine whether the trial court's findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the trial court's decision.'" (Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052, 1068-1069.) We independently review issues of law. (Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372.)

II

A

"Drivers of vehicles in California are deemed to have consented to chemical testing to determine the alcohol content of their blood if they are lawfully arrested on suspicion of driving under the influence of alcohol. [Citation.] When a suspected drunk driver is arrested, 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,' possible imprisonment [if convicted for violating statutes for driving under the influence], and `the suspension of the person's privilege to operate a motor vehicle. . . .' (§ 23612, subd. (a)(1)(D).) The implied consent system `was designed to secure the civil cooperation of all persons privileged to drive in providing objective scientific evidence of intoxication (or sobriety) when the privilege is being exercised.' [Citation.] The system was `intended to obviate incidents of violence that may be expected when a recalcitrant inebriate is tested by force as under proper circumstances the police have a right to do.'" (Munro v. Department of Motor Vehicles (2018) 21 Cal.App.5th 41, 46 (Munro).)

Pursuant to section 13353, subdivision (a), if a person "refuses the officer's request to submit to, or fails to complete, a chemical test or tests" the department may suspend a person's privilege to operate a motor vehicle for a period of one to three years, depending on whether the person had prior convictions or administrative violations for driving under the influence (§ 13353, subd. (a)(1)-(3)).4 (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 98-99 (Espinoza).)

"`The question whether a driver "refused" a test within the meaning of the statute is a question of fact. [Citation.]' [Citation.] To comply with the law, a `driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.' [Citation.] `In determining whether an arrested driver's conduct amounts to a refusal to submit to a test, the court looks not to the state of mind of the arrested driver, but to "the fair meaning to be given [the driver's] response to the demand he submit to a chemical test."'" (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 82-83 (Garcia).)

B

Grub first contends his refusal of a blood test should be excused because he invoked a statutory condition based upon his concern "about the manner in which the test would be conducted and the qualifications of the phlebotomist." We disagree.

Purported or "`conditional consent to a chemical test constitutes a refusal to submit within the meaning of section 13353.'" (Espinoza, supra, 10 Cal.App.5th at p. 104.) However, Grub cites Ross v. Department of Motor Vehicles (1990) 219 Cal.App.3d 398 (Ross) for the proposition that consent may be conditioned on invoking a statutory right, such as the right to have blood drawn by only "licensed, qualified individuals in a medically approved manner." (Id. at p. 402, citing § 23158; Cal. Code Regs., tit. 17, § 1219.1.) In Ross, the technician who was to draw the motorist's blood appeared tired and disheveled. He wore jeans, a wrinkled shirt, and a plaid coat. He had a beard and appeared to have just gotten out of bed. The motorist refused to give blood saying he wanted to see the technician's identification. (Ross, supra, at p. 400.) The Ross court concluded the motorist invoked a condition imposed by statute, which did not amount to a refusal. (Id. at p. 402.)

Unlike in Ross, supra, 219 Cal.App.3d 398 and contrary to Grub's assertion, there is no evidence the phlebotomist arrived in a "disheveled" condition. The record shows the same phlebotomist responded to the deputy's request both times. The first time, as the phlebotomist prepared to draw Grub's blood, Grub said, "You are not taking my blood." After obtaining the warrant, the same phlebotomist responded to draw the blood samples. Although Grub said the phlebotomist looked like a "plumbing technician" with a little suitcase, the video shows the phlebotomist was neatly attired wearing what appeared to be a scrub uniform and gloves and he carried a kit with necessary items for drawing blood. The phlebotomist was clean-shaven and his hair was cut short against his head.

There is no evidence Grub asked for identification of the phlebotomist as was requested in Ross or for assurances about the procedure. Grub did not express a concern about hygiene or ask for the phlebotomist for reassurance. Grub asked the Department to infer that the phlebotomist understood his health concerns because the phlebotomist showed Grub the needle packaging when the blood draw occurred. The phlebotomist made a point of showing Grub the needle package was unopened. However, there is no evidence this was anything more than the phlebotomist's routine, such as when the phlebotomist asked the deputy to record the time when the blood started to flow into the vial. Grub's reaction of tilting his head from side to side and looking away when shown the needle packaging did not look like a person overly concerned with the process. Grub also watched the blood draw and did not appear squeamish, as he suggested in his administrative hearing testimony.5 Under these circumstances, there was substantial evidence to support the court's finding Grub did not invoke a statutory condition in refusing the chemical test.

C

Grub next contends he had a right under the Fourth Amendment to refuse to submit to a warrantless blood draw and such a refusal should not result in revocation of his license. We need not decide the issue because, even if he had a Fourth Amendment right to refuse a warrantless blood test, his failure to cooperate with an alternative breath test supported the revocation of his driver's license.

The United States Supreme Court concluded "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." (Birchfield v. North Dakota (2016) ___ U.S. ___, ___ [136 S.Ct. 2160, 2186, 195 L.Ed.2d 560, 589].) However, the Supreme Court noted the difference between suspension or revocation of a license for noncompliance with implied consent laws regarding blood tests and laws that criminalize noncompliance. (Id. at pp. ___, ___ [136 S.Ct. at pp. 2166, 2185, 195 L.Ed.2d at pp. 568, 589].) The Supreme Court stated it has "referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply" and nothing "we say here should be read to cast doubt on them." (Id. at p. ___ [136 S.Ct. at p. 2185, 195 L.Ed.2d at pp. 588-589].)

In dicta in the case of Espinoza, supra, 10 Cal.App.5th at page 114, our colleagues in Division Two of the Court of Appeal, Fourth Appellate District expressed doubt "whether the high court would approve of a civil license suspension predicated solely on a motorist's refusal to submit to a warrantless blood test." Without deciding the issue, the Espinoza court concluded the motorist's license in the case before them was lawfully suspended because she refused to submit to a breath test. (Ibid.)

Similarly, here, Grub not only refused a blood test, he also refused to comply with a breath test. Although, Grub initially stated he would take a breath test, Grub would not create a seal with his lips around the testing tube or blew inconsistently, causing insufficient samples. The United States Supreme Court noted a breath test may be "ineffective if an arrestee deliberately attempts to prevent an accurate reading by failing to blow into the tube for the requisite length of time or with the necessary force. But courts have held that such conduct qualifies as a refusal to undergo testing." (Birchfield v. North Dakota, supra, ___U.S. at p. ___ [136 S.Ct. at p. 2185, 195 L.Ed.2d at p. 588]; Garcia, supra, 185 Cal.App.4th at pp. 82-83 [failure to complete effective breath test after several attempts and refusal to make further attempts qualifies as refusal].)

After Grub initially refused a blood test, the deputy read to Grub the chemical test refusal form pursuant to section 13353 and asked if he would take a breath test, Grub responded, "I'm not going to take another breath test." Whether he later hoped he would be offered another opportunity to take a breath test or an alternative test is of no moment. "`[T]he law of implied consent mandates that an arrestee is required to submit to and complete one of the three tests upon their first having been offered to him by an arresting officer. [¶]. . . [¶]. . . It is the initial refusal which forms the basis for suspension of the driver's license under. . . section 13353. [Citation.] Once the driver refuses to take any one of the three chemical tests, the law does not require that he later be given one when he decides, for whatever reason, that he is ready to submit. [Citations.] [¶]. . . Simply stated, one offer plus one rejection equals one refusal; and, one suspension.'" (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1573.) Grub's repeated refusal to comply with requests to submit to a chemical test supported the Department's revocation of his driver's license.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

BENKE, J. and O'ROURKE, J., concurs.