Opinion
A144336
11-30-2017
MICHAEL JAMES RATLIFF, Plaintiff and Appellant, v. JEAN SHIOMOTO, DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG13707555)
Appellant Michael James Ratliff, representing himself pro se, appeals from a judgment in the trial court denying his petition for a writ of mandate. The trial court denied Ratliff's request that the court issue a writ of mandate directing the Department of Motor Vehicles (DMV) to set aside its decision upholding suspension of his driver's license for driving under the influence of alcohol in violation of Vehicle Code section 23152.
Unless otherwise indicated, all statutory references below are to the Vehicle Code.
Ratliff contends the judgment must be reversed because there was insufficient evidence he was actually arrested, the police waited too long to advise him of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and the equipment used to test his blood was defective, making his blood results unreliable. We affirm the judgment.
I. FACTUAL BACKGROUND
The facts summarized in this section are taken from documents contained in the administrative record, including the sworn statement of the arresting officer and the police report.
On October 9, 2012, at about 8:05 a.m., Ratliff was driving a car that collided with another vehicle. Officer M. Summers of the Antioch Police Department responded to the scene of the accident and spoke with Ratliff, who said he had been driving one of the vehicles. Noting that Ratliff's eyes appeared to be bloodshot and watery and that he smelled of alcohol, Summers asked Ratliff if he had been drinking alcohol. Ratliff said he had consumed two drinks containing vodka, but had stopped drinking more than five hours earlier. He said he did not feel any effects of the alcohol but had been awake for 21 hours.
Because there were numerous people at the scene of the accident by then, including children and media representatives, Officer Summers arrested Ratliff on suspicion of driving under the influence of alcohol, handcuffed him, and drove him to the Antioch Police Department jail to complete field sobriety testing there. After completing that testing, Summers said he thought Ratliff was under the influence of alcohol. He advised Ratliff that Ratliff was required by state law to submit to further testing and could choose to take a breath test or a blood test. Ratliff chose the blood test, and a technician drew Ratliff's blood at 10:37 a.m. Summers then advised Ratliff of his Miranda rights; Ratliff said he understood; and Summers interviewed him.
Officer Summers took physical possession of Ratliff's driver's license, issued Ratliff an "Administrative Per Se Suspension/Revocation Order And Temporary Driver License," and released him. The Forensic Services Division of the Contra Costa County Sheriff's Office later reported it had analyzed Ratliff's blood sample on October 30, 2012, and had concluded Ratliff's blood alcohol content (BAC) was 0.08%, which exceeded the legal limit for driving a vehicle. (§ 23152.)
Ratliff exercised his statutory right and requested an administrative hearing. (§ 13558.) The hearing lasted three days, concluding on August 13, 2013. The hearing officer issued a decision upholding the suspension. At Ratliff's request, the DMV reviewed the hearing officer's decision and concluded it was proper. Ratliff then petitioned for a writ of mandate in the trial court, but the petition was denied. The trial court entered judgement against Ratliff, and this timely appeal followed.
II. DISCUSSION
A. Standard of Review
When reviewing a petition for a writ of mandate following an order of suspension, a trial court must determine, "based on its independent judgment, whether the weight of the evidence supported the administrative decision. [Citation.] On appeal, this court's role is to 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 discretion. [Citation.]" (Lee v. Valverde (2009) 178 Cal.App.4th 1069, 1075.) " 'Where the evidence supports more than one inference, we may not substitute our deductions for the trial court's. [Citations.] We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.' [Citations.] We exercise de novo review, however, of the trial court's legal determinations. [Citations.]" (Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176, 1184.)
B. The Arrest
Under "California's administrative per se law (§ 13353.2 et seq.), ' ". . . a person arrested for driving under the influence of alcohol, . . . who is determined to have a prohibited amount of alcohol in his or her blood, must have driving privileges suspended prior to an actual conviction for a criminal offense." ' [Citations.]" (Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052, 1057.) The DMV " ' " 'automatically reviews the merits of the suspension or revocation. [Citation.] The standard of review is preponderance of the evidence [citation], and the [DMV] bears the burden of proof [citations].' [Citation.] A driver served with such a suspension notice is entitled to a hearing on request [citation], at which the only issues to be decided . . . are whether the arresting officer had reasonable cause to believe [he] was driving, whether [he] was arrested for an enumerated offense, and whether [he] was driving with 0.08 percent [blood alcohol content] or higher [citation]. If the [DMV] hearing officer finds these three statutory prerequisites proved by a preponderance of the evidence, the accused's driver's license will be suspended . . . ." ' [Citation.]" (Id. at pp. 1057-1058, italics omitted; see §§ 13353.3, subd. (b), 13557, subds. (a), (b)(3), 13558, subds. (a), (c)(2).)
"Somewhat different rules apply to those under 21 years of age [citation], those driving commercial vehicles [citation], and those on probation for prior drunk driving convictions [citation]." (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1208, fn. 9.)
Although sections 13353.3 and 13558 have been amended since the time of appellant's arrest (Stats. 2016, ch. 783, § 10; Stats. 2015, ch. 451, § 27), the amendments do not affect this case.
Ratliff's initial challenge to the trial court's order denying a writ of mandate is based on the second of the above statutory prerequisites. Ratliff observes that, when he was released from police custody, he received a "Certificate of Release" stating that the period he spent in custody "was a detention only, not an arrest." The document contradicts the finding that he was placed under arrest, Ratliff contends, demonstrating the trial court did not have substantial evidence on that point. The trial court did not consider this argument because Ratliff did not raise it in seeking reversal of the administrative decision. " 'In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court. [Citation.]' " (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799-800.) The Attorney General does not argue waiver, however, and we will exercise our discretion to consider the merits of Ratliff's arguments, as the facts are undisputed. (Suarez v. City of Corona (2014) 229 Cal.App.4th 325, 333.)
Before the trial court, Ratliff contended that his blood test results were unreliable, and also were obtained through violation of his constitutional rights so should have been excluded, because there was no evidence the technician who drew his blood was qualified to do so.
In Armondo v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174 (Armondo), the First District Court of Appeal, Division Three, addressing the same argument, reasoned as follows: "Pursuant to Penal Code section 849, subdivision (b), under certain circumstances a police officer may release an arrestee from custody without bringing him or her before a magistrate for the issuance of a complaint. In such cases, the arrest record must include a record of release and '[t]hereafter, such arrest shall not be deemed an arrest, but a detention only.' (Pen. Code, §§ 849, subd. (c), 849.5.) Moreover, a person arrested and released under the above provisions must be issued a certificate describing the action as a detention. (Pen. Code, § 851.6, subds. (a), (b).) [¶] . . . . [¶] [T]he primary purpose of Penal Code sections 849.5 and 851.6 was to prevent hiring discrimination against persons who had been arrested, but not charged with any crimes. [Citation.]" (Armondo, supra, 15 Cal.App.4th at pp. 1177-1178, fn. omitted.)
As explained in Armondo, the purpose of the administrative per se scheme was "to create a method for quickly removing drunk drivers from our highways, while providing drivers an administrative review and hearing to guard against the erroneous deprivation of their driving privileges. [Citation.] In so doing, the Legislature specifically provided that administrative suspension, a civil matter, is not dependent upon the prosecution of criminal charges against the driver, except where the driver is criminally prosecuted and acquitted. [Citation.] Were we, however, to accept appellant's interpretation of the interplay between the administrative per se scheme and the penal provisions, the result would be that no license suspension would be valid unless the driver were also brought before a magistrate and criminally charged. [Citation.] We do not understand the Legislature to have intended such an absurd result. (See Behan v. Alexis [(1981)] 116 Cal.App.3d [403,] 406 [court should interpret statutes to accomplish legislative objective while accommodating important statutory and policy considerations].) [¶] . . . . [¶] We hold an arrest, valid when made, remains a valid arrest for purposes of an administrative per se license suspension, even though the driver is subsequently released pursuant to Penal Code section 849, subdivision (b). [Citation.]" (Armondo, supra, 15 Cal.App.4th at p. 1179, fn. omitted.) We concur with this reasoning and adopt it here.
Ratliff identifies no other evidence indicating that he was not actually arrested. California courts determine whether there has been an arrest "by looking to the essential elements of taking into custody, and actual restraint or submission to custody." (Ormonde v. Department of Motor Vehicles (1981) 117 Cal.App.3d 889, 892.) Here, the undisputed record confirms Ratliff was taken into custody, placed in handcuffs, driven to the jail, and placed in a holding cell, after which he completed field sobriety testing, had his blood drawn, was interviewed, and was released. These facts lead to the ineluctable conclusion that Ratliff was arrested.
C. The Miranda Warnings
Ratliff next contends the trial court erred in considering inculpatory statements Ratliff made to Officer Summers at the scene of the accident, because Summers did not advise Ratliff of his Miranda rights before questioning him. Ratliff suggests that Officer Summers's questioning at the scene, before the formal arrest, amounted to a custodial interrogation. "An interrogation is custodial, for purposes of requiring advisements under Miranda, when 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' (Miranda, supra, 384 U.S. at p. 444.) Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant's position would have understood his situation. [Citation.] All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present. [Citation.]" (People v. Moore (2011) 51 Cal.4th 386, 394-395.)
Here, Ratliff offers only his own conclusory assertion that he "reasonably believed" he was "deprived of his freedom when confronted by the officer at the scene of the accident." He does not point to specific facts supporting that conclusion, or cite case law confirming that a reasonable person in his circumstances would have felt the same. Ratliff, therefore, does not meet his burden on appeal. "A touchstone legal principle governing appeals is that 'the trial court's judgment is presumed to be correct, and the appellant has the burden to prove otherwise by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited. [Citations.]' " (Okorie v. Los Angeles Unified School District (2017) 14 Cal.App.5th 574, 599, italics added.) "Matters . . . that are lacking in adequate legal discussion will be deemed forfeited. [Citation.] [¶] In other words, it is not this court's role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness. Rather, an appellant is required to present a cognizable legal argument in support of reversal of the judgment. . . . Further, an appellant is required to explain the relevance of facts cited in his or her brief. The court is not ' " 'obligate[d] . . . to cull the record for the benefit of the appellant.' " ' [Citation.]" (Id. at p. 600.)
But, even if Ratliff had not forfeited his argument by failing to support it with citations to supporting evidence or legal authority, we would reject the argument because the record shows Ratliff was not in custody when he gave his statement at the scene of the accident. According to the police report, Ratliff was standing with another officer, when Summers first approached him. The other officer told Summers to take Ratliff's personal information and statement. After first confirming with Ratliff that he felt okay and did not need medical attention, Summers complied. He took Ratliff's personal information, and asked what had happened. After Ratliff gave a brief account in response, Summers asked whether he had been consuming alcohol. Ratliff said yes. The other officer then instructed Summers to arrest Ratliff and take him to the jail to complete sobriety testing, because numerous people by then were on the scene, including children and the media. Only after completing his brief initial questioning, did Summers handcuff Ratliff and place him in the patrol car. "[T]he term 'custody' generally does not include 'a temporary detention for investigation' where an officer detains a person to ask a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." (People v. Farnam (2002) 28 Cal.4th 107, 180.) The questioning here was brief and nonconfrontational; only one officer asked questions; Ratliff was not restrained and had not been advised he was under arrest. It was not a custodial interrogation.
In his reply brief on appeal, Ratliff "reasserts" that "he was not given a Miranda advisement prior to choosing an[d] undergoing a blood-alcohol test." Ratliff cites no authority for the proposition this was required, however, and it was not. (See § 23612, subds. (a)(1)(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 . . . 23152"], (a)(4) ["The officer shall . . . advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law"].)
D. The Blood Test Equipment
Finally, Ratliff contends the equipment used to measure his blood alcohol content was not functioning properly so the test results were unreliable, and should not have been admitted into evidence.
"At the administrative hearing, the DMV had the burden of proving by a preponderance of the evidence that [Ratliff] had a [blood alcohol content] of 0.08 percent or more. [Citation.] The DMV can do this, . . . by merely submitting blood-alcohol test results recorded on official forms. [Citation.] This is because (1) provisions of title 17 of the California Code of Regulations (specifically, Cal. Code Regs., tit. 17, § 1215 et seq.) regulate the collection and testing of blood samples for determination of alcohol concentration; (2) Evidence Code section 664 creates a rebuttable presumption that official duties (such as the duty to follow regulations) have been carried out; and (3) Evidence Code section 1280 establishes a hearsay exception for records made by public employees. [Citation.] Consequently, '[t]he recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence.' [Citation.]" (Freitas v. Shiomoto (2016) 3 Cal.App.5th 294, 300-301.) Here, as the DMV submitted blood alcohol test results for Ratliff on official forms, the results were presumptively valid. The burden then shifted to Ratliff " 'to demonstrate that the test was not properly performed.' [Citation.]" (Id. at p. 301.) "Among the ways [a] driver can do this is by showing that the particular machine used to test the sample malfunctioned or was improperly calibrated or employed. [Citation.] If the driver does this, the burden of proof shifts back to the DMV to show that the results [were] reliable despite the facts presented by the driver. [Citation.]" (Ibid.)
Ratliff contends he met his burden before the trial court by submitting a copy of the maintenance log for the machine used to test his blood sample. The log did not include any entry for October 30, 2012, the date on which the official lab reports indicated Ratliff's blood sample was analyzed. But it did contain entries indicating that there were magazine motor and crane arm errors on October 25, 2012, and that troubleshooting of those errors occurred on October 29, 2012, one day before Ratliff's blood sample was analyzed. Further, Ratliff notes, two days after analysis of his blood sample was completed, on November 1, 2012, there was a log entry reporting another crane arm error, and that service was required to replace the crane arm's pneumatic valves.
The trial court was not convinced by these entries in the machine's maintenance log. In its order denying the writ petition, the court observed that the "action taken" note for the first date (October 25, 2012) indicated the machine was restarted and the "standards and GC's passed." The "action taken" note for the second date (October 29, 2012) indicated that, after troubleshooting of the earlier errors was completed, the machine was restarted and functioned properly. Further, the trial court noted, the Forensic Services Division's official report regarding Ratliff's blood test contained statements confirming regulatory compliance in conducting the analysis—including statements that the "[s]ampling was performed in accordance with the sampling procedure" and that "[a]ny deviations from the sampling plan or technical procedures [would] be document[ed] in the case notes"—but the report included no mention of any sampling plan or technical issues. Finally, the trial court observed, "the administrative record contain[ed] a calibration report for the instrument used to test [Ratliff's] blood sample. On October 30th, the same day [Ratliff's] sample was analyzed, the instrument was calibrated using a "blank" sample with known alcohol values," and the "log indicate[d] the instrument reported the expected values after testing the blank." In combination, the trial court concluded, this was substantial evidence the blood testing equipment was functioning properly at the time Ratliff's blood sample was analyzed. As this was a legitimate and reasonable inference, we uphold the trial court's finding on the subject (see Lee v. Valverde, supra, 178 Cal.App.4th at p. 1075), and affirm the judgment.
In his reply brief on appeal, Ratliff for the first time contends the administrative hearing officer erred by presuming he had a blood alcohol content of 0.08 percent while driving immediately before the accident, because he had a blood alcohol content of 0.08 percent when his blood was tested within three hours after the driving. (See § 23152, subd. (b) [rebuttable presumption].) Because the police report did not list the time of the accident, but indicated that he was arrested at 8:05 a.m. and that his blood was not drawn until 10:37 a.m., Ratcliff submits, the hearing officer must have been speculating to conclude the blood draw occurred within three hours of the time he actually was driving. "As a general proposition, points raised for the first time in a reply brief will not be considered unless good reason is shown for failure to present them earlier." (People v. Whitney (2005) 129 Cal.App.4th 1287, 1298.) Ratliff has not attempted to show a reason for his delay in raising this issue. Nor does he cite any portion of the administrative record confirming the hearing officer applied this presumption. (See, e.g., Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109 [party waives argument by failing to cite the record].) For both reasons, we reject his argument. Even if this were not the case, however, we would reject the argument on the merits because Ratliff's own statement to Officer Summers, recounted in the police report, supported the inference the accident occurred within three hours of the time that Ratliff's blood was drawn for testing. Ratliff recounted the following sequence: at 7:30 a.m., Ratliff and his friends decided to make breakfast; they drove from Antioch to Pittsburg; they entered a Winco, purchased some items, and returned to the car; they were driving back to the friend's house when the accident happened. The hearing officer reasonably could have inferred from this circumstantial evidence that the sequence lasted longer than seven minutes, i.e., that the accident occurred after 7:37 a.m. and, by extension, that Ratliff had been driving within three hours before his blood was drawn for the test. (See, e.g., Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 741.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Kennedy, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------