Opinion
H024174
9-30-2003
JAMES GARZA, Plaintiff and Respondent, v. STEVEN GOURLEY, AS DIRECTOR, etc., Defendant and Appellant.
Appellant, the Department of Motor Vehicles (hereinafter the DMV), appeals from a judgment granting a writ of mandate that directed the DMV to restore James Garzas driving privileges.
The DMV contends that the trial court erred in finding insufficient probable cause for Mr. Garzas arrest based on the holding in Solovij v. Gourley (2001) 87 Cal.App.4th 1229.
Facts and Proceedings Below
On June 1, 2001, at 10:43 p.m., respondent James Garza was involved in a verbal disturbance with a neighbor. Watsonville Police Officers Barrera and Ibarra responded to the scene. Officer Barerra observed Mr. Garza attempting to drive away from the scene in a black pickup truck. Officer Barerra ordered Mr. Garza to get out of his vehicle. Mr. Garza complied and stood next to the drivers door.
Officer Ibarra noted that Mr. Garza appeared disoriented and that his eyes were bloodshot. The officers placed Mr. Garza in Officer Ibarras patrol car. Officer Barerra smelled the strong odor of alcohol on Mr. Garzas breath. He observed that Mr. Garzas eyes were red, glassy and watery, and suspected that Mr. Garza had been driving while intoxicated. In addition, Officer Ibarra smelled the strong odor of alcohol coming from Mr. Garza. He observed that Mr. Garza was unsteady and that his words were slurred when he spoke. As a result, he too suspected that Mr. Garza has been driving while intoxicated.
Officer Barerra decided to conduct a "DUI" investigation. He asked Officer Ibarra to take Mr. Garza to the police station. However, Officer Barerra was called to respond to an attempted homicide. Consequently, he asked Officer Ibarra to conduct the "DUI" investigation at the station.
Once at the station, Officer Ibarra was unable to perform any field sobriety tests on Mr. Garza because of Mr. Garzas extreme intoxication and uncooperative behavior. Mr. Garza was arrested for driving under the influence of alcohol at approximately 10:49 p.m. At 11:29 p.m. Mr. Garza gave two breath samples, which revealed a blood alcohol concentration (BAC) of .26 percent and .27 percent respectively. Officer Ibarra issued respondent a citation for violating Vehicle Code section 23152, subdivisions (a) and (b), he confiscated Mr. Garzas driving license, and issued him "administrative per se" suspension and temporary drivers license.
Relevant here, Vehicle Code section 23152 states: "(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. [¶] (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. [& para;] For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a persons blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath."
On August 6, 2001, at a "contested" administrative hearing held before Hearing Officer R. Jaime, the DMV presented Exhibits 1 through 7. Exhibits 1-7 consist of Officer Ibarras sworn report on form DS 367; Officer Barreras supplemental report; Officer Ibarras "DUI" report, in which he noted that Mr. Garza had a strong odor of alcohol coming from his breath; had blood shot eyes; and spoke in a slurred tone of voice; the administrative per se suspension revocation order and temporary driver license; the results of the intoxilyzer-alcohol analyzer test; drivers printout dated July 31, 2001 in the name of James Garza; and a document called "Field Coordination Test."
We use the word "contested" to distinguish this review hearing from the automatic review the DMV holds pursuant to section 13557.
It appears that the hearing officer neglected to move and receive the marked exhibits into evidence. Accordingly, for purposes of the trial courts review of the petition for writ of mandate the parties stipulated that all exhibits marked at the administrative hearing "shall be considered as having been received in evidence over any objections which may have been raised by petitioner."
In addition, Officer Barrera testified at the hearing. His testimony was essentially the same as the facts stated in his unsworn police report. Mr. Garza did not present any evidence.
The sworn report of Officer Ibarra prepared pursuant to Vehicle Code section 13380, and submitted to the DMV on form DS 367 (hereinafter DS 367), indicated that plaintiff was involved in a verbal disturbance with his neighbor and that at 10:43 p.m., on June 1, 2001, Mr. Garza was observed by Officer Barrera driving away from that scene. In addition, the report noted that Mr. Garza was arrested for a violation of Vehicle Code section 23152 at 10:49 p.m. on June 1, 2001. Thereafter at 11:29 p.m., Mr. Garza took two breath tests with results of 0.26 percent BAC and 0.27 percent BAC respectively.
On August 9, 2001, the DMV issued its findings and decision that the evidence presented at the hearing established that Officer Barrera had "probable cause to contact [Mr. Garza]," and that Officer Ibarra had "reasonable cause to believe that [Mr.Garza] was driving a motor vehicle while under the influence of alcohol." The hearing officer found that "[Mr. Garza] was lawfully arrested for a violation of Section 23152 of the Vehicle Code," and the preponderance of the evidence supported a finding that Mr. Garza was driving with a blood alcohol level of .08 or above. Mr. Garzas driving license was suspended for one year based on a prior "DUI" arrest within seven years of the arrest at issue.
On September 10, 2001, Mr. Garza filed a petition for writ of mandate in the Superior Court of Santa Cruz County. He sought to set aside the one-year suspension of his driving privilege. The DMV answered and opposed the petition. At the same time the DMV lodged the record of the administrative hearing with the court.
On November 30, 2001, Judge Robert B. Atack granted the petition.
The trial court granted the petition based on the holding in Solovij v. Gourley, supra, 87 Cal.App.4th 1229. The court stated: "On the Garza versus Department of Motor Vehicles case, this is a question that involves the issue that was decided here recently by the Solovij [case] . . . which seems to decide this point. And that the Jackson case is not decided on point, where they were looking at that in cases substantially different. [¶] And the more recent case of the . . . Second District adopts the proposition that if the sworn statement fails to include any facts to show probable cause to arrest the defendant, those facts may not be - facts may not be supplied with additional evidence. Its got to have something in that sworn statement required under section 13380 of the Vehicle Code."
Judgment was entered against the DMV on December 26, 2001.
On February 22, 2002, the DMV filed a notice of appeal from the judgment entered in the trial court.
Discussion
It is important to note that the DMV does not dispute the fact that Officer Ibarras DS 367 fails to contain any facts or information giving rise to grounds for believing that Mr. Garza had violated Vehicle Code section 23152 (driving with a blood alcohol level of 0.08). That is, the officers sworn report is devoid of any facts or information with regard to whether Mr. Garza exhibited objective symptoms of intoxication.
All statutory references are to the Vehicle Code unless otherwise noted.
The DS 367 contains a series of boxes titled OBJECTIVE SYMPTOMS of intoxication. The various boxes include: Bloodshot/watery eyes; Odor of Alcoholic beverage; Unsteady gait; Slurred speech; and Other, after which there is a line for the officer to write more information. A second line is preceded by the words "Observed By" and followed by "at" and then another line followed by AM/PM. On Officer Ibarras DS 367 none of the boxes are checked and no name and time appears.
Instead, relying on Lake v. Reed (1997) 16 Cal.4th 448, the DMV argues that the fact that the sworn report does not contain this information is not fatal to the proceedings because when the DMV conducts its internal review of the suspension it is not limited to the sworn statement.
In Lake v. Reed,supra, 16 Cal.4th 448, the California Supreme Court was asked to determine whether, "in an administrative per se review hearing, the DMV presents sufficient evidence to show the individual arrested was driving the motor vehicle, when the only evidence that satisfies an exception to the hearsay rule is contained in an unsworn police report." (Id. at pp. 451-452.) Some of the information contained in the sworn report would not have been admissible over an objection in a civil action, and thus insufficient to sustain or support an administrative finding against the licensee. (Id. at pp. 458-459.)
The DMV offered two pieces of evidence to prove that Lake was driving: the arresting officers sworn report forwarded to the DMV under section 23185.2 [now section 13380]; and an unsworn report from another officer. This unsworn report related Lakes admission that he was driving, as well as statements of another witness, who also stated that Lake was driving. In addition, attached to the unsworn report were the unsworn statements of two other witnesses. (Id. at pp. 458-459.) Thus, as to whether Lake was driving, the only information in the DS 367 was hearsay. (Id. at p. 459.)
After lengthy consideration of the statutory scheme concerning the "administrative per se" laws, the Supreme Court held that in the DMVs internal review of the license suspension the evidence needed to justify the suspension could come from an unsworn statement of a non-arresting officer. (Id. at pp. 462, 467.)
Accordingly, the DMV argues that it may consider the sworn statement and any other evidence accompanying the report. We agree that when the DMV conducts its internal review pursuant to Section 13557 the hearing officer "shall consider the sworn report submitted by the peace officer pursuant to Section . . . 13380 and any other evidence accompanying the report." (§ 13557, subd. (a).)
In response, Mr. Garza contends, however, that the omission of facts or information in the arresting officers sworn report relating to any type of objective symptoms of intoxication is "totally fatal to any attempt by [the] DMV to suspend [his] driving privilege under the provisions of subdivision (a)(1) of section 13353.2 of the Vehicle Code." He argues that Vehicle Code section 13380 mandates that the information be in the officers sworn report.
Standard of Review
"In ruling on an application for a 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." [Citations.]" (Lake v. Reed, supra, 16 Cal.4th at pp 456-457.) Normally, "[o]n appeal, we need only review the record to determine whether the trial courts findings are supported by substantial evidence. " (Id. at p. 457.) However, when the trial courts judgment is based on undisputed facts, its conclusion concerns a question of law, which is not binding on this court. "On questions of law arising in mandate proceedings, we exercise independent judgment." (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 849.)
As our Supreme Court explained in Lake v.Reed, supra, 16 Cal.4th 448 (Lake), "[u]nder administrative per se laws, `when a person is arrested for driving under the influence and is determined to have a prohibited blood-alcohol level, the arresting officer or the DMV serves the person with a "notice of the order of suspension." (§§ 13353.2, subds. (b) & (c), [13382].) The notice informs the person that his or her drivers license will be suspended [30] days from the date of service, states the reason and statutory grounds for the suspension, and explains the persons right to seek an administrative hearing. (§§ 13353.2, subd. (c), 13353.3, subd. (a).) If the arresting officer serves the notice, the officer also confiscates the persons drivers license and issues a [30-day] temporary license. [Citations.] [Citation]" (Id. at p. 455, fns omitted.)
Thereafter, relevant here, section 13380 requires that the arresting officer "shall immediately forward to the department a sworn report of all information relevant to the enforcement action, including information that adequately identifies the person, a statement of the officers grounds for belief the person violated Section . . . 23152 . . . , a report of the results of any chemical tests that were conducted on the person . . . , a copy of any notice to appear under which the person was released from custody, and, if immediately available, a copy of the complaint filed with the court." (§ 13380, subd. (a).)
The officers sworn report "shall be made on forms furnished or approved by the department." (§13380, subd. (b).) In addition, the officer "shall immediately forward a copy of the completed notice of order of suspension form, and any drivers license taken into possession . . . with the report required by Section 13380, to the department." (§ 13382, subd. (c).)
Preliminarily, under Section 13353.2 the DMV "shall immediately" suspend a persons privilege to operate a motor vehicle if "[t]he person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood." (§ 13353.2, subd. (a)(1).) The determination that this is the case is based solely on the report of the police officer submitted pursuant to Section 13380. (§ 13353.2, subd. (d).)
Mr. Garza asserts that it is with this first level of administrative action with which we should be concerned in this case. He argues that if the officers sworn report does not contain all the information relevant to the enforcement action, then the DMV cannot suspend the persons license. He argues, "the arrested person should have his or her driving privilege immediately reinstated right then and there without the need of any additional determination . . . ." By extension of this argument, he would have the DMV return the confiscated license and the matter would be closed.
In this case Officer Ibarras sworn report adequately identified Mr. Garza and contained the results of the chemical tests that were conducted on him. What is missing from the report is "a statement of the officers grounds for belief that [Mr. Garza] violated Section . . . 23152." (§ 13380, subd (a).) There were no "objective symptoms of intoxication" boxes checked. Nor was there anything written. In the section of the report titled "Probable Cause," which requires the officer to "[d]escribe in detail the facts and circumstances that led to the stop or contact," Officer Ibarra wrote: "Suspect was involved in a verbal disturbance with his neighbor. Suspect drove away from the scene when WPD arrived."
In Solovij v. Gourley, supra, 87 Cal.App.4th 1229 (Solovij), the Second District Court of Appeal held that the facts necessary to support the initial stop could not be provided by the unsworn report of the arresting officer. (Id. at pp. 1233-1234.) In Solovij the arresting officers sworn report on form DS-367 stated in part: "`Probable Cause. Describe in detail the facts and circumstances that led to the stop or contract. . . . Attach page if needed [.] On the lines provided, the arresting officer wrote `22350 VC N/B Chapala St. & W/B Carrillo St." (Id. at p. 1231.) The Second District Court of Appeal concluded that because "section 13380 expressly requires the arresting officer to file a sworn report containing all information relevant to the enforcement action . . . . . . . the Legislature . . . meant what it said." (Id. at p. 1234.) Thus, while "the DMV is not limited to a consideration of the arresting officers sworn report, . . . the DMV cannot evade the statutory requirement that the arresting officer must include all information in a sworn report . . . ." (Ibid.)
The DMV argues that the Solovij decision should have no effect on this case. Furthermore, that as an initial matter, "it is hard to square the holding of Solovij with the policy and practice set out by the California Supreme Court in Lake v. Reed (1997) 16 Cal.App.[sic]4th 448."
The DMV is missing the point of the Solovij decision. As the Solovij court noted, "[i]n order to justify a stop or detention the officer must have specific and articulable facts causing him to suspect that some activity relating to a crime has taken place, is occurring or is about to occur, and that the person detained is involved in that activity. [Citation.]" (Solovij, supra, at p. 1233.) Since in the Solovij case the arresting officers sworn report only contained a legal conclusion, there were no specific and articulable facts that would justify the initial detention. (Id. at p. 1234.) Consequently, the Second District Court of Appeal concluded that without a sworn report containing competent evidence the officers unsworn report could not supply the missing competent evidence. (Id. at p.1231.)
Here, by contrast there are specific facts in the DS 367 to justify the initial detention, albeit for reasons other than the officers belief that Mr. Garza was driving under the influence of alcohol or drugs. As noted the DS 367 indicates that Mr. Garza was involved in a verbal disturbance and attempted to drive away from the scene.
Mr. Garza argues, however, that because the officers DS 367 omits the necessary facts and information mandated by Section 13380, that is a statement of the officers grounds for belief that the person violated section 23152, there is no way to determine if the officer made a valid "DUI" arrest.
Here, while the DS 367 indicates the reasons for the initial detention, there is no indication that Mr. Garza was lawfully arrested for driving under the influence, the results of the breath tests notwithstanding. Accordingly, we must decide if this is fatal to the ability of the DMV to suspend Mr. Garzas license. We conclude that in this case it is not.
At the outset we note that section 13380 provides that the arresting officer shall send the DMV a sworn report of all information relevant to the enforcement action. However, the statute does not specify consequences if the officer fails to comply and leaves out some information.
Section 13380, subdivision (a), does specify what is to be in the report: information that adequately identifies the person, a statement of the officers grounds for belief that the person violated Section 23152 and a report of the results of any chemical tests that were conducted on the person.
Once the DMV receives the report, section 13353.2 requires that the DMV "shall" immediately suspend the persons privilege to operate a motor vehicle if the person was driving a motor vehicle with 0.08 percent or more by weight of alcohol in his or her blood. (§ 13353.2, subd. (a)(1).)
Returning to Officer Ibarras DS 367, the information in the report detailed that Officer Barrera observed Mr. Garza driving and that the breath test results showed that Mr. Garza had a BAC great than 0.08 percent. Accordingly, from this information the DMV could determine that Mr. Garza was driving with a BAC greater than 0.08 percent.
However, our inquiry does not end here. The procedure by which the DMV suspends a persons privilege to drive is called the "administrative per se" law. The procedure is called "administrative per se" because it does not "impose criminal penalties, but simply suspends or revokes a persons drivers license as an administrative matter upon a showing the person was arrested for driving with certain BAC." (Lake, supra, 16 Cal.4th at p. 454, fn. 1.) The administrative proceedings are civil in nature. (Gikas v. Zolin (1993) 6 Cal.4th 841, 847.) However, "for the DMV to suspend the drivers license, the underlying arrest must have been lawful." (Id. at p. 847.)
The question then becomes when was Mr. Garzas license actually suspended.
As noted, when an arresting officer determines that a person is driving with a prohibited blood-alcohol level, the officer serves a notice that the persons driving privilege is suspended effective in 30 days. (§ 13353.3, subd. (a).) The determination that a person was driving with a prohibited blood-alcohol level is made solely on the DS 367. (§ 13353.2, subd. (d).) Pursuant to section 13557, the DMV "shall" conduct a review of this determination and "shall" consider the arresting officers sworn report and any other evidence accompanying the report. (& sect; 13557, subd. (a).) The DMV is required to make its determination "before the effective date of the order of suspension or revocation" (& sect; 13557, subd. (c).) The department may dispense with such automatic review if the driver requests a hearing. (§ 13557, subd. (e).)
The notice of suspension informs the person that they have 10 days in which to request an administrative hearing. (§ 14100, subd. (a).) A request for an administrative hearing does not stay the suspension or revocation of a persons drivers license, unless the DMV receives the request for a hearing on or before 10 days after the person receives the notice of the order of suspension. (§ 13558, subds. (d) and (e).) If the DMV does not conduct a hearing and make a determination before the effective date of the order of suspension, the DMV "shall" stay the effective date of the order of suspension or revocation pending the determination. (§ 13558, subd. (e).) In Mr. Garzas case the suspension of his license was stayed pending the administrative hearing that he requested.
Mr. Garzas license was not suspended until August 18, 2001.
Relevant here, section 13558, subdivision (c)(2) provides that the only issues at the hearing on an order of suspension pursuant to section 13353.2 "shall be those facts listed in paragraph (2) of subdivision (b) of section 13557." In turn section 13557, subdivision (b)(2) lists the following facts: "(A) That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section . . . 23152 . . . . [& para;] (B) That the person was placed under arrest . . . . [¶] (C) That the person was driving a motor vehicle under any of the following circumstances: [¶] (i) When the person had 0.08 percent or more, by weight, of alcohol in his or her blood." (& sect; 13557, subd. (b)(2).) Any evidence at the hearing shall not be limited to the evidence presented at an administrative review pursuant to Section 13557. (§ 13558, subd. (b).) Consequently, "the universe of potentially available evidence is enlarged." (Lake, supra, 16 Cal.4th at p. 458.)
Accordingly, at the "contested" administrative hearing the DMV could properly rely on the sworn testimony of Officer Barrera (that he smelled the odor of alcohol on Mr. Garzas breath after Mr. Garza got out of his truck) and Officer Ibarras unsworn report, to establish that the officers had reasonable cause to believe that Mr. Garza was driving a motor vehicle in violation of section 23152.
Government Code section 11513 generally addresses the admissibility of evidence in administrative hearings. It states: "(c) 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. [¶] (d) Hearsay evidence may be used 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. . . ." (Gov. Code, § 11513, subds. (c) and (d).)
"A police officers report, even if unsworn, constitutes the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs." (Lake, supra, 16 Cal.4th at p. 461.)
Since Mr. Garzas drivers license was not suspended until after the contested administrative hearing, the fact that the DS 367 did not contain all the information relevant to the enforcement action does not become an issue. As noted, this is because at the contested hearing the hearing officer can supplement the sworn report with sworn testimony and Officer Ibarras personal observations of Mr. Garzas objective symptoms of intoxication detailed in his unsworn report.
As a result, the trial court erred in finding insufficient probable cause for Mr. Garzas arrest.
We note that in this situation probable cause to arrest is actually whether the "officer had reasonable cause to believe" that the driver was driving under the influence. (§ 13557, subd. (b)(2)(A).)
Disposition
The judgment is reversed. The parties are to bear their own appeal costs.
WE CONCUR:
Premo, Acting P. J., Bamattre-Manoukian, J.