Opinion
F074411
07-17-2018
MARCUS COLEMAN, Plaintiff and Appellant, v. JEAN SHIOMOTO, as Director, etc., Defendant and Respondent.
Middlebrook & Associates, Richard O. Middlebrook and Patrick R. Bowers for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian and Brad Parr, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BCV-16-100665)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge. Middlebrook & Associates, Richard O. Middlebrook and Patrick R. Bowers for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian and Brad Parr, Deputy Attorneys General, for Defendants and Respondents.
Before Levy, Acting P.J., Detjen, J. and Ellison, J.
-ooOoo-
A police officer arrested appellant, Marcus Coleman, for driving under the influence. Pursuant to the "administrative per se" law (Veh. Code, § 13353.2 et seq.), appellant's driving privilege was immediately suspended. At appellant's request, respondent, the Department of Motor Vehicles (DMV), held an administrative hearing regarding the suspension. At this hearing, over two years after the arrest, the arresting officer could not recall the specific details. Nevertheless, based on the sworn report submitted by the arresting officer and other documentary evidence, the hearing officer upheld the suspension.
Appellant petitioned the trial court for a writ of mandate to set aside the suspension. The trial court denied the petition.
Appellant challenges the judgment arguing that the arresting officer's sworn statement should not have been admitted into evidence because he could not meaningfully cross-examine the arresting officer. Appellant further contends that the weight of the evidence did not support two of the required factual findings.
The court did not err as alleged. Accordingly, the judgment will be affirmed.
BACKGROUND
On September 19, 2013, at 7:47 p.m., Bakersfield Police Officer Wright was dispatched to the scene of a traffic collision. Upon arrival, an officer who was already there advised Officer Wright that appellant, one of the drivers involved, might have been intoxicated.
When Officer Wright talked with appellant, appellant admitted he was the driver and sole occupant of one of the vehicles. Appellant also admitted that he had consumed four 22-ounce beers and had finished the last one about 20 minutes before talking to Officer Wright, i.e., approximately 7:27 p.m. At 8:12 p.m., Officer Wright administered the preliminary alcohol-screening test, which recorded a 0.21 percent blood-alcohol content (BAC). At 8:14 p.m., Officer Wright placed appellant under arrest. Officer Wright then administered chemical breath tests at 8:19 p.m. and at 8:22 p.m., which resulted in readings of 0.21 percent and 0.20 percent BAC.
Appellant surrendered his driver's license and Officer Wright issued him an "Administrative Per Se Suspension/Revocation Order and Temporary Driver License." This temporary license was to expire 30 days from the issue date. The order further advised appellant that he had 10 days to request a hearing to show that the suspension or revocation was not justified.
At appellant's request, the DMV held a hearing before a hearing officer regarding the suspension of appellant's driver's license. The hearing, which took place over five days, concluded on March 9, 2016.
Officer Wright, who by then had retired, appeared to testify on March 9, 2016. However, it had been over two and one-half years since the arrest. Due to the length of time, Officer Wright had no independent recollection of the arrest. Officer Wright testified that he was able to testify as to what he typed in the report but was unable to testify as to events not included in the report.
Thereafter, the hearing officer issued his Notification of Findings and Decision sustaining the suspension. The hearing officer relied on Officer Wright's sworn statement, the arrest report, and a supplemental report.
Appellant petitioned the trial court for a writ of mandate to set aside the suspension. The trial court denied the petition.
DISCUSSION
Under Vehicle Code section 13353.2 et seq., often referred to as the "'administrative per se'" law, a person who is arrested for driving under the influence of alcohol, and who is determined to have a prohibited amount of alcohol in his or her blood, must have his or her driving privileges suspended before an actual conviction for a criminal offense. (Lake v. Reed (1997) 16 Cal.4th 448, 454 (Lake).) The Legislature enacted these laws to provide safety to persons using the highways during the time lag that often occurs between an arrest and a conviction for driving while intoxicated. (Ibid.)
After the arresting officer or DMV serves a person with a "'notice of an order of suspension or revocation of the person's [driver's license],' the DMV automatically reviews the merits of the suspension or revocation." (Lake, supra, 16 Cal.4th at p. 455.) The DMV bears the burden to prove, by a preponderance of the evidence, that (1) the officer had reasonable cause to believe the driver had been driving under the influence; (2) the driver was arrested; and (3) the driver was driving with 0.08 percent or higher BAC. (Id. at pp. 455-456.)
If the driver so requests, the DMV will hold an administrative hearing on its decision to suspend a license. Such a hearing is limited to the above three issues. If the hearing officer finds a preponderance of the evidence proves these three prerequisites, the DMV will suspend the driver's license to operate a motor vehicle. (Lake, supra, 16 Cal.4th at p. 456.)
A driver who is dissatisfied with the result of the administrative hearing may file a petition for writ of mandate in the trial court. (Komizu v. Gourley (2002) 103 Cal.App.4th 1001, 1005 (Komizu).) "The trial court then determines, based on its independent judgment, whether the DMV's decision was supported by the weight of the evidence." (Ibid.) In contrast, the standard of review on appeal is whether substantial evidence supports the trial court's findings. (Ibid.)
Appellant contends the hearing officer should not have admitted Officer Wright's sworn statement over his objection because appellant did not have the opportunity to meaningfully cross-examine Officer Wright. Appellant further argues the hearing officer should not have admitted the breath test results because the evidence did not support finding that Officer Wright complied with the requirement that he observe the driver for at least 15 minutes before administering the test. Finally, appellant asserts the evidence does not support the finding that appellant drove within three hours of the chemical test. 1. The hearing officer properly admitted Officer Wright's sworn and unsworn statements.
The hearing officer admitted Officer Wright's sworn statement and unsworn arrest report under Evidence Code section 1280. That section provides:
"Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:
"(a) The writing was made by and within the scope of duty of a public employee.
"(b) The writing was made at or near the time of the act, condition, or event.
"(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
At the administrative hearing, the DMV may consider both the sworn report of the peace officer who responded to the scene and arrested the suspect and the unsworn report of any officer who, within the scope of the officer's official duty, wrote a report at or near the time of the accident. (Lake, supra, 16 Cal.4th at p. 462.)
"'The trustworthiness requirement for this exception to the hearsay rule is established by a showing that the written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly.'" (Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 77 (Fisk).) The Evidence Code section 664 presumption that "official duty has been regularly performed" also supports the trustworthiness of the method of preparation of the report. (Fisk, at p. 77.) Further, the licensee has the burden of showing that the officer failed in his or her duty to observe and correctly report the events described. (Id. at p. 78.)
Appellant contends the source of the information in the sworn and unsworn reports is not such as to indicate its trustworthiness. According to appellant, the evidence is insufficient to establish either that he was the driver or the time he was driving. Appellant notes that neither Officer Wright nor any other public employee personally witnessed appellant driving a vehicle.
However, appellant admitted to Officer Wright that he was the driver and sole occupant of his vehicle. Appellant also stated that he had consumed four 22-ounce beers and that he had had his last beer about 20 minutes before talking with Officer Wright at 7:47 p.m. These statements establish that appellant was driving the vehicle and the approximate time he was driving. As party admissions, these statements are excepted from the hearsay rule and are admissible competent evidence. (Lake, supra, 16 Cal.4th at p. 461.)
Appellant further asserts he could not "meaningfully" cross-examine Officer Wright because Officer Wright did not independently recall the subject events and, consequently, Officer Wright's reports were inadmissible. However, Officer Wright's lack of recollection did not deny appellant a due process right to cross-examine and confront him. (Fisk, supra, 127 Cal.App.3d at p. 80.) Appellant had the opportunity to confront the person who had made charges against him and to present evidence refuting such charges.
For example, appellant could have cross-examined Officer Wright about his practices in making such reports in an attempt to demonstrate their unreliability. He also had to the opportunity to refute the report. However, appellant did not take advantage of that opportunity but, rather, chose to rest his case without offering any evidence whatsoever to contradict Officer Wright's version of the events. Once Evidence Code section 664 and Officer Wright's reports presented a prima facie case that the appropriate procedures were properly performed, the burden shifted to appellant to show improper performance. (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348 (Petricka).) Appellant did not do so. Accordingly, Officer Wright's reports were admissible. (Fisk, supra, 127 Cal.App.3d at pp. 80-81.) 2. The record supports the trial court's finding that Officer Wright observed appellant for at least 15 minutes before administering the breath test.
The DMV must establish the requisite foundation for admission of the BAC evidence. (Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64.) One requirement is that the arresting officer observe the subject for at least 15 minutes before collecting the breath sample. (Cal. Code Regs., tit. 17, § 1219.3; Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1230 (Manriquez).) During this time, the subject must not ingest alcoholic beverages or other fluids, regurgitate, vomit, eat, or smoke. (Manriquez, supra, 105 Cal.App.4th at p. 1230, fn. 1.) This continuous observation requirement ensures the subject's mouth is free of foreign matter that could retain alcohol and potentially influence the test results. (Id. at p. 1236, fn. 3.)
Under Evidence Code section 664, we presume that Officer Wright properly collected the breath samples, including continually observing appellant for 15 minutes before administering the tests. (Petricka, supra, 89 Cal.App.4th at p. 1348.) On appeal, appellant again relies exclusively on the fact that Officer Wright did not independently recall the arrest. However, appellant's reliance is misplaced. Appellant did not present any evidence to rebut the Evidence Code section 664 presumption and thus did not meet his burden to show Officer Wright improperly performed the tests. (Petricka, at p. 1348.)
Moreover, we can infer from Officer Wright's reports that he observed appellant for the required 15 minutes. Officer Wright made contact with appellant at approximately 7:47 p.m. Officer Wright then interviewed appellant and administered a series of field sobriety tests. At 8:12 p.m., around 25 minutes after the initial contact, Officer Wright administered the preliminary alcohol-screening test. At 8:19 p.m., 32 minutes after contact, and at 8:22 p.m., 35 minutes after contact, Officer Wright administered the chemical breath tests. Thus, the record supports the trial court's finding that Officer Wright complied with the 15-minute observation requirement. 3. The record supports the trial court's finding that appellant drove within three hours of his arrest.
Vehicle Code section 23152, subdivision (b), provides, in part, that
"it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving."
Appellant contends the weight of the evidence did not support the finding that he drove within three hours of the chemical test because Officer Wright did not observe appellant driving. Therefore, appellant argues, the time of driving is unknown.
However, appellant admitted to Officer Wright that he had been driving and that he had his last beer about 20 minutes before talking with Officer Wright. These statements are admissible competent evidence. (Lake, supra, 16 Cal.4th at p. 461.) As noted above, Officer Wright administered the preliminary alcohol-screening test 25 minutes after contact with appellant, and the second chemical breath test 35 minutes after contact. Based on the inferences and deductions from appellant's admissions and these facts, the evidence demonstrates that appellant drove within approximately one hour of the chemical tests, well within the three-hour requirement. (Cf. Komizu, supra, 103 Cal.App.4th at pp. 1008-1009.) Accordingly, the record supports the trial court's finding that the breath test was timely.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
†
† Retired judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.