Opinion
D058115 Super. Ct. No. 37-2010-00065398-CU-JR-EC
10-18-2011
AMELIA ROSE CARY, Plaintiff and Appellant, v. STATE OF CALIFORNIA, DEPARTMENT OF MOTOR VEHICLES, etc., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed.
The trial court denied Amelia Rose Cary's petition for writ of administrative mandamus that requested reversal of the Department of Motor Vehicles' (DMV) decision to suspend her driving license.
On appeal, she contends DMV's finding the arresting officer had reasonable cause for the traffic stop that led to her license suspension was unwarranted because the arresting officer's sworn statement was insufficient and his unsworn statement was improperly admitted. We affirm the judgment.
FACTS
We rely on the facts set forth in the findings of fact from the December 30, 2009 DMV hearing and the arresting officer's sworn and unsworn reports.
California Highway Patrol (CHP) Officer R. Schmidt stated in his arrest report that on August 13, 2009, at approximately 10:15 p.m., he observed Cary driving a motor vehicle travelling 60 miles per hour in a posted 25 miles per hour zone and then failing to stop at a red traffic signal before making a right turn. Officer Schmidt stopped Cary's vehicle, approached Cary's side of it and "detected the strong and distinct odor of an alcoholic beverage emanating from the vehicle's interior." Cary was 16 years old and had a valid provisional California driver license.
Cary failed a series of preliminary field sobriety test (FST) questions. Officer Schmidt "observed that [her] eyes were red and watery and [he] detected the distinct odor of an alcoholic beverage on her breath and person. Cary had difficulty staying on task and was somewhat evasive when responding to [his] questions, often changing the subject. Cary initially denied consuming [an] alcoholic beverage, but when asked a second time she advised that she had a sip of an unknown Raspberry[-]flavored alcoholic beverage" earlier that evening.
A preliminary alcohol screening (PAS) was administered to Cary at 10:33 p.m. and her blood alcohol content (BAC) measured .069 percent. In two other tests administered at 10:35 p.m. and 11:22 p.m., her BAC measured .065 percent and .05 percent respectively. Cary and her minor passengers were transported to an Oceanside area office. CHP cited Cary and released her to her father at 11:45 p.m.
Officer Schmidt prepared two reports. The first is a three-page form, which we denominate "the sworn report." The first page of the sworn report is a document titled, "underage 21 officer's statement," which includes the arrest date, Cary's driver's license information and physical description, two PAS results, the time the blood test was administered, Officer Schmidt's observation of Cary driving the vehicle, the location of the stop, and objective symptoms of her intoxication. Officer Schmidt signed and dated this page on August 13, 2009. The second page of the sworn report instructs officers to "[d]escribe in detail the facts and circumstances that led to the stop or contact. The narrative must be an original print or write directly on this page." This page includes a paragraph that narrates the officer's stop of Cary's vehicle; it is unsworn, and Officer Schmidt signed and dated it on August 14, 2009. The third page is titled "administrative per se suspension/revocation order and temporary driver license," and Officer Schmidt signed and dated it on August 13, 2009.
Officer Schmidt's unsworn report, titled "driving under the influence arrest-investigation report," is dated August 14, 2009, and includes a paragraph, titled, "narrative/supplemental," which is identical to the narrative paragraph of page two of the sworn report mentioned above. The unsworn report also details the identities of the occupants of Carey's vehicle, the alcoholic beverage she had drunk, Cary's attire, her FST, PAS and blood test results, her arrest and release to her father.
PROCEDURAL BACKGROUND
Pursuant to Cary's arrest, Officer Schmidt issued Cary an "administrative per se" suspension/revocation order and a temporary 30-day driver's license under Vehicle Code sections 13353.2 and 13388.
All further statutory references are to the Vehicle Code unless otherwise specified.
At a DMV administrative hearing, Cary's counsel objected to the admission of the unsworn narrative paragraph outlining the circumstances of Cary's stop that is on page two of Officer Schmidt's sworn report, arguing it had no evidentiary value because it was not sworn. The hearing officer overruled the objection and concluded page two complied with Evidence Code section 664's presumption that "[a]n official duty regularly performed is presumed to have been done properly." The hearing officer ruled, "[T]he arrest report does indicate the time and date of the arrest report was 8/13/09 at [10:35 p.m.]. One can infer that the report and information contained in that report was fresh in the mind of the arresting officer at the time of its completion, in particular the initial portion of the reason for the contact and stop. One must also take into consideration the time of the contact being within a few hours from the following day (8/14/09). [Cary] presented no evidence or testimony that the arrest report was not completed at any other time. The Officer's [s]worn [s]tatement along with the cut and paste does meet the foundational requirements detailed within [s]ection 1280 of the Evidence Code, and is admissible in the administrative proceeding . . . ."
The hearing officer concluded, "As a result of the reasonable cause determination and the subsequent findings of an arrest taking place, it is hereby determined that [Cary] was lawfully arrested for a violation of . . . [s]ection[s] 23152, 23153, 23136, or 23140 or [s]ection 191.5 of the Penal Code." The hearing officer sustained the license suspension based on Officer Schmidt's sworn and unsworn reports.
Cary filed a writ of mandamus to set aside the license suspension and reinstate her license and driving privileges, but the Superior Court denied it and reimposed the suspension.
The parties informed us in supplemental briefing that Cary's license suspension period ended on July 7, 2011. Nonetheless, we do not treat this appeal as moot because a license suspension will remain on her driving record for several years and could affect any penalty for future Vehicle Code violations. (§§ 1808, 13353, 13353.3.)
DISCUSSION
I. Standard of Review
This court has stated, "In ruling on a petition for writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, whether the weight of the evidence supported the administrative decision." (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1567-1568 (Hildebrand).) "On appellate review of the superior court's exercise of its independent judgment, this court will sustain the court's findings if they are supported by substantial evidence. [Citation.] We resolve all conflicts in favor of the DMV, as the party prevailing in the superior court, and give it the benefit of all reasonable inferences in support of the judgment." (Hildebrand, at p. 1568.) "If the facts are undisputed and the issue presented is a question of law . . . we conduct an independent review." (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484; see also Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372.)
II. Applicable Law
Under sections 13353.2 and 13388, a person under the age of 21 stopped with a BAC of 0.01 or greater must surrender his or her license to the arresting officer and will receive in exchange a temporary license good for 30 days. (§§ 13353.2, subd. (a)(2), 13388, subd. (b)(1).) "The express legislative purposes of the administrative suspension are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions." (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155 (MacDonald).)
"One aspect of the accelerated procedures of the administrative per se laws, 'is a slight relaxation of the rules of evidence applicable to an administrative per se review hearing.' [Citation.] [¶] Government Code section 11513 addresses the admissibility of evidence in administrative hearings: 'The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.' [Citations.] It furthermore permits the use of hearsay evidence 'for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.' " (Lee v. Valverde (2009) 178 Cal.App.4th 1069, 1076-1077.)
" 'A police officer's report, even if unsworn, constitutes "the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. (Hildebrand, supra, 152 Cal.App.4th at p. 1569.) An officer's unsworn report "qualifies as an admissible public employee record in [an] administrative hearing . . . . Evidence Code section 1280 makes admissible a writing that records an act, condition, or event if '(a) [t]he writing was made by and within the scope of duty of a public employee[;] [¶] (b) [t]he writing was made at or near the time of the act, condition, or event[; and] [¶] (c) [t]he sources of information and method and time of preparation were such as to indicate its trustworthiness.' " (Hildebrand, at p. 1570.)
The California Supreme Court has stated, "[G]iven our conclusion [citation] that the DMV may consider an unsworn report by a nonarresting officer, it would be anomalous if it could not also consider an unsworn report by the arresting officer that is intended to supplement the officer's sworn report." (MacDonald, supra, 32 Cal.4th at p. 158-159.) The court reiterated, "we must not lose sight of the reason for the 'slight relaxation of the rules of evidence applicable to an administrative per se review hearing.' . . . [¶] . . . In light of this legislative intent, the sworn report cannot be wholly devoid of relevant information. However, so long as a sworn report is filed, it is consistent with the relaxed evidentiary standards of an administrative per se hearing that technical omissions of proof can be corrected by an unsworn report filed by the arresting officer." (Id. at p. 159.)
III. Analysis
Cary contends Officer Schmidt's sworn report was wholly devoid of facts establishing reasonable cause for the vehicle stop and the trial court erred in admitting the unsworn paragraph on page two of the sworn report.
We conclude Officer Schmidt's sworn report complied with section 13380, subdivision (a), which requires an arresting officer to file a sworn report containing three categories of information: (1) "information that adequately identifies the person"; (2) "a statement of the officer's grounds for belief the person violated section 23152 [driving while under the influence of alcohol or drugs]"; and (3) "the results of any chemical tests that were conducted on the person." Section 13380 further provides that for purposes of that section, " 'immediately' means on or before the end of the fifth ordinary business day following the arrest."
Officer Schmidt's sworn report contained information adequately identifying Cary, including her full name, driver's license number and type, address, and date of birth. It included information regarding her gender, hair and eye color, and height and weight. As to the second and third categories, the sworn report included information that Officer Schmidt saw Cary driving the vehicle and the various symptoms of Cary's intoxication and her test results.
The only information missing from the second category was Officer Schmidt's description of the grounds for the traffic stop. Officer Schmidt apparently cut and pasted that information from a paragraph in his unsworn report. The hearing officer inferred Officer Schmidt created the unsworn report within hours of the stop. We have no reason to second-guess that finding, with which the trial court agreed. We conclude the unsworn report was made within the regular course of Officer Schmidt's duties, it was prepared at or near the place of the arrest, and the sources of information and method and time of preparation had indicia of trustworthiness, as required by Evidence Code section 1280. The unsworn report would otherwise be admissible in a civil action as required by Government Code section 11513, which provides: "The hearing need not be conducted according to technical rules relating to evidence and witnesses. . . . Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions." (Govt. Code, § 11513, subd. (c).)
Cary seeks to distinguish this case from MacDonald, supra, 32 Cal.4th 150 by arguing that Officer Schmidt's sworn report was "wholly devoid of facts," and by contrast, in MacDonald the sworn report contained some information regarding the circumstances of the licensee's driving. To the contrary, we conclude that "nearly all" of the information necessary for the enforcement action was included in the sworn report. (MacDonald, at p. 159.) Although Officer Schmidt cut and pasted a description of events leading to the traffic stop, which was unsworn, that was a "technical omission[ ] of proof" that he was permitted to correct in the unsworn report. (Ibid.) The correction was made in a timely manner within the meaning of section 13380 because it was completed well within five days from the date of the traffic stop.
Therefore, McDonald, supra, 32 Cal.4th 150 governs this case, and the facts of the sworn and unsworn statements combined describe the incident surrounding the stop, constituting sufficient information required to revoke Cary's license for driving while intoxicated. (§ 23152, subd. (a).) Accordingly, DMV did not err in admitting the unsworn report into evidence, and the trial court did not err in denying Cary's writ petition.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.