Opinion
A131403
10-31-2011
KYLE GLUSKIN, Plaintiff and Appellant, v. GEORGE VALVERDE, as Director, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. N101207)
Appellant Kyle Gluskin appeals the trial court's denial of her petition for writ of mandate seeking to set aside the Department of Motor Vehicles' (DMV) suspension of her driving privileges. Gluskin contends the court's denial of her writ petition must be reversed because: (1) she was unlawfully detained; (2) the hearing officer abused its discretion by continuing the administrative hearing; and (3) the hearing officer erred by admitting the results of the chemical breath tests administered at the police station.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Incident
At 1:45 a.m. on September 20, 2009, Santa Barbara Sheriff's Deputy Bruno Bertuzzi was participating in a DUI investigation in Isla Vista. The investigation blocked several lanes of traffic. Gluskin's car was among those stopped in traffic while law enforcement officers conducted the investigation. At 2:00 a.m., Bertuzzi heard a "male voice yell, 'Moooove! I'm drunk and I'm trying to get home!'" Bertuzzi looked at Gluskin's car and saw a young man "with almost half his body hanging out the rear passenger window . . . . Due to how far [the passenger] was sticking his body out of the window, [the passenger] did not appear to be wearing a seatbelt" in violation of Vehicle Code section 27315, subdivision (d)(1). The backseat passenger again yelled, "'Moooove! I'm drunk and I'm trying to get home!'"
Unless otherwise noted, all further statutory references are to the Vehicle Code. Section 27315, subdivision (d)(1) provides in relevant part, "A person shall not operate a motor vehicle on a highway unless that person and all passengers 16 years of age or over are properly restrained by a safety belt."
Bertuzzi approached the car and "consensually contacted" Gluskin. He noticed the backseat passenger was wearing his seatbelt. When Bertuzzi asked "what all of the yelling was about," Gluskin "mumbled her words." Bertuzzi smelled alcohol coming from the car; Gluskin admitted she had consumed "'[a]bout two beers'" and Bertuzzi asked her to get out of the car so he could "verify she was okay to drive."
Shortly thereafter, California Highway Patrol Officer Sean Armacher arrived to help Bertuzzi. Armacher spoke with Gluskin and "smell[ed] the odor of an alcoholic beverage." Gluskin's eyes were "red and watery and she slurred her words as she spoke." In addition, she did not perform the Field Sobriety Test as Armacher had "explained and demonstrated." Armacher administered Preliminary Alcohol Screening Tests (PAS tests) at 2:05 a.m. and 2:08 a.m.; Gluskin's blood alcohol level was .093 and .091 percent.
At 2:14 a.m., Armacher arrested Gluskin for driving under the influence of alcohol in violation of the Vehicle Code and drove her to the police station. The chemical breath tests Armacher administered at 2:29 a.m. and 2:32 a.m. at the police station indicated Gluskin's blood-alcohol content was .08 and .07 percent. In his report (DS 367 Under Age 21 Officer's Statement) Armacher averred the tests were "administered pursuant to the requirements of Title 17 of the California Code of Regulations" (title 17).
Armacher testified he left Gluskin in a room while he retrieved the testing apparatus from another room but he clarified that he continuously observed Gluskin for 15 minutes before the test. Armacher explained that the only time he might have "lost sight" of Gluskin was when he "walk[ed] around the vehicle from the passenger side to the driver side" during the traffic stop. His partner watched Gluskin during that short time period.
Gluskin testified she had "a few shots of vodka and then a couple beers" on the evening of September 20, 2009 and conceded she did not tell Bertuzzi the truth about the amount of alcohol she drank. She explained that she was not planning on driving that night, but her friends wanted to retrieve a cell phone at another location a few blocks away, and they were "too intoxicated" to drive. The backseat passenger in Gluskin's car was wearing his seatbelt when he yelled out of the window. After Armacher arrested Gluskin, he placed her in the front seat of his patrol car and left her there, unsupervised and alone, for several minutes. Armacher and his partner returned to the car; Armacher drove the patrol car back to the police station. According to Gluskin, Armacher left her in a room at the police station and went to a "different room behind [her]" to retrieve the breathalyzer. Armacher's partner was not standing next to her when Armacher went to obtain the testing apparatus.
The Hearing Officer's Decision and the Trial Court's Denial of Gluskin's Writ Petition
In March, 2010, the hearing officer issued a written decision concluding: (1) Gluskin was lawfully detained and arrested; (2) Armacher administered the chemical breath tests in compliance with title 17, which requires a 15-minute observation period prior to the test; and (3) the preponderance of the evidence established Gluskin was driving a motor vehicle with a blood alcohol level "at or above .01% while under . . . 21 years of age." Regarding title 17, the hearing officer concluded Armacher's testimony was more credible than Gluskin's and that the DMV's "documentary evidence confirms [Gluskin] was [in] the presence of the peace officer during the fifteen minutes immediately preceding the commencement of the testing process. This confirmation is evidenced by . . . Armacher's direct testimony." The hearing officer determined Gluskin was "inconsistent while testifying" and deemed her "not credible."
Gluskin petitioned for a writ of mandate. The trial court denied the petition, concluding: (1) Bertuzzi had reasonable cause to believe Gluskin was driving a motor vehicle in violation of the Vehicle Code; (2) Bertuzzi lawfully detained Gluskin; and (3) Gluskin was driving a motor vehicle while under the age of 21 with a blood alcohol content of .01 percent or more in violation of section 23136. The court noted that the purpose of section 23136 "is to enhance public safety, and indirectly, to discourage minors from consuming any alcohol before driving. [Citation.] [Gluskin] testified at the administrative hearing that she 'had a few shots of vodka and then a couple of beers'" before driving. The court also determined the administrative hearing officer properly admitted the results of the chemical breath tests. Finally, the court concluded the hearing officer properly exercised its discretion by continuing the hearing pursuant to Government Code section 11524, subdivision (a).
Section 23136, subdivision (a) provides in relevant part, "it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle." Subdivision (b) provides, "A person shall be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years, and the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test."
DISCUSSION
Standard of Review
"When a person petitions for a writ of administrative mandate following an order suspending his or her driver's license, 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. [Citations.] . . . [¶] 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. . . . '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, 1183-1184 (Roze).)
Bertuzzi Lawfully Detained Gluskin
Gluskin contends the results of her chemical breath tests are inadmissible because she was unlawfully detained. "The Fourth Amendment's protection against unreasonable searches and seizures dictates that traffic stops must be supported by articulable facts giving rise to a reasonable suspicion that the driver or a passenger has violated the Vehicle Code or some other law. [Citation.]" (People v. Durazo (2004) 124 Cal.App.4th 728, 731.) Reasonable suspicion requires only that "the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231; see also People v. Wells (2006) 38 Cal.4th 1078, 1083.)
Gluskin contends Bertuzzi unlawfully detained her because it "is not against the law" for someone to yell out of the car. This argument misses the point. Bertuzzi stopped Gluskin not because someone in her car was yelling out of a window but because he believed the backseat passenger was not wearing a seatbelt in violation of section 27315, subdivision (d)(1). In his D.U.I. investigation statement, Bertuzzi averred one of the backseat passengers in Gluskin's car had "almost half his body hanging out the rear passenger window . . . yelling, 'Moooove! I'm drunk and I want to go home!' Due to how far [the passenger] was sticking his body out of the window, [he] did not appear to be wearing a seatbelt. This was a violation of [section] 27315(d)(1)." The detention was therefore lawful because Bertuzzi ha when he stoppd specific and articulable facts objectively suggesting a Vehicle Code violationed Gluskin's car. (People v. Watkins (2009) 170 Cal.App.4th 1403, 1408 ["[r]easonable suspicion of a Vehicle Code violation or other criminal activity justifies a traffic stop . . ."].)
The facts in Taylor v. Department of Motor Vehicles (1995) 36 Cal.App.4th 812, 815 (Taylor) are not — as Gluskin contends — "almost identical to the facts in [this] case." In Taylor, the 17-year-old defendant was driving a pickup truck containing two passengers when a "police officer heard "[a] loud yell [coming] from the truck . . . . The truck 'cut sharply behind'" the police officer as the defendant "turned left onto a cross street.'" The defendant "was not speeding or disobeying any other traffic laws." (Id. at p. 816.) The appellate court determined the police officer did not have reasonable suspicion to detain the defendant, concluding "[a] 'sharp' but entirely legal turn and a yell from within a vehicle do not indicate that the driver is under the influence of alcohol, nor do these facts objectively indicate that there is any other criminal activity afoot." (Ibid.) Here, and in contrast to the police officer in Taylor, Bertuzzi believed the backseat passenger was not wearing a seatbelt in violation of section 27315, subdivision (d)(1). As a result, Taylor has no application here.
The Hearing Officer Did Not Abuse Its Discretion by Continuing the Hearing
Gluskin's administrative hearing was scheduled for December 30, 2009. At the outset of the hearing, the hearing officer moved to continue it because Armacher "was not aware that [the hearing] was an in-person hearing until the last minute . . . ." Defense counsel objected, contending there was no good cause to continue the hearing. Counsel explained, "I think that it's unreasonable for the officer, who was given a [s]ubpoena, that was told that it was to be here in person, to not respect and honor that [s]ubpoena." Defense counsel also objected to having Armacher appear at the hearing by telephone. The hearing officer continued the hearing to March 2010.
Gluskin contends the administrative hearing officer abused its discretion by continuing the hearing without good cause. Pursuant to Government Code section 11524, subdivision (a), a hearing officer has discretion to continue an administrative hearing "upon a showing of good cause." (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 864 (Bussard); see also 9 Witkin, Cal. Procedure (5th ed. 2008) Administrative Proceedings, § 108, pp. 1233-1234 & 2011 Supp, p. 106, citing cases.) Government Code section 11524 imposes a requirement of reasonable diligence when a party seeks a continuance: "When seeking a continuance, a party shall apply for the continuance within 10 working days following the time the party discovered or reasonably should have discovered the event or occurrence which establishes the good cause for the continuance." (Gov. Code, § 11524, subd. (b).) "'"The factors which influence the granting or denying of a continuance in any particular case are so varied that the trial judge must necessarily exercise a broad discretion"'" when granting or denying a request for a continuance. (Bussard, supra, 164 Cal.App.4th at p. 864, quoting 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 10, p. 36.) As a result, it is "'practically impossible to show reversible error in the granting of a continuance.' [Citation.]" (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1007.)
Bussard is on point. There, a deputy sheriff saw the respondent's car driving on the wrong side of the street, stopped the car, and called the California Highway Patrol (CHP). (Bussard, supra, 164 Cal.App.4th at p. 860.) A CHP officer arrived, determined the respondent had been driving under the influence of alcohol in violation of section 23152, and arrested him. (Bussard, at p. 861.) The arrest report prepared by the CHP officer contained statements made by the deputy sheriff. (Id. at p. 864.) At the administrative hearing, the respondent objected to the arrest report, claiming it contained the deputy's hearsay statements. (Id. at p. 861.) The hearing officer continued the hearing to enable the DMV to determine whether the deputy's statements were admissible under the public employee records exception set forth in Evidence Code section 1280, specifically whether the deputy was "'on duty'" when he observed the respondent. (Bussard, at p. 862.) When the administrative hearing took place, the sheriffs deputy testified about the traffic stop and, following the hearing, the hearing officer suspended the respondent's driver's license. (Ibid.)
On the respondent's petition for writ of mandate, the trial court concluded the hearing officer "continued the administrative hearing to allow [the deputy] to testify, . . . without 'good cause' as required by Government Code section 11524, thereby causing prejudice to [the] respondent." (Bussard, supra, 164 Cal.App.4th at p. 863.) The appellate court reversed. It determined the "hearing officer's decision to continue the hearing was within her broad discretion" in part because the necessity of live testimony from the sheriff's deputy was an unexpected occurrence. (Id. at p. 865.)
The Bussard court also explained the continuance was not an abuse of discretion because "[t]he flexibility conferred on the DMV hearing officer under provisions such as . . . section 14104.5 is in keeping with the legislative purposes of the administrative suspension procedure, which purposes include the protection of the public from drunk drivers by providing an accelerated procedure to suspend licenses. [Citation.] When, in such an expedited administrative process it becomes apparent to the DMV hearing officer that it is necessary to subpoena a witness to obtain live testimony, the discretion to do so is expressly provided under . . . section 14104.5, subdivision (a), which discretion logically includes the ability to grant continuances to accomplish that objective." (Bussard, supra, 164 Cal.App.4th at p. 866.) The court concluded the continuance did not prejudice the respondent because: (1) there was good cause to continue the hearing; (2) he ultimately received a fair hearing; and (3) the suspension of the respondent's license was stayed until after the DMV issued its findings and decision. (Id. at p. 865.)
Section 14104.5, subdivision (a) authorizes a hearing officer to issue subpoenas or subpoenas duces tecum before or during an administrative hearing. Section 14104.5 "clearly evidences the Legislature's intent to give a DMV hearing officer reasonable flexibility to issue subpoenas after the hearing has commenced, in order to obtain witness testimony or documents." (Bussard, supra, 164 Cal.App.4th at p. 866, italics omitted.)
The same is true here. Like the deputy sheriff in Bussard, Armacher was not available to testify in person despite being subpoenaed to do so. Gluskin's objection to having Armacher testify by telephone was an unexpected development, and a continuance was necessary to obtain his testimony. Although the continuance may have resulted in increased costs and fees to Gluskin and inconvenienced her attorney, Gluskin did receive a fair hearing a few months later. And like the respondent in Bussard, Gluskin's license suspension was stayed pending the outcome of the hearing. We cannot conclude the hearing officer's decision to continue the hearing was arbitrary, capricious, or resulted in a miscarriage of justice. (Bussard, supra, 164 Cal.App.4th at p. 860.)
We reject Gluskin's claim that the DMV did not subpoena Armacher to testify. At the initial administrative hearing, counsel for Gluskin stated it was "unreasonable for the officer, who was given a subpoena . . . to not respect and honor that [s]ubpoena." At oral argument, counsel conceded a witness's failure to comply with the subpoena would constitute good cause to continue the hearing.
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The Hearing Officer Properly Admitted the Results of Gluskin's Chemical Breath Tests
Gluskin's final contention is the results of her chemical breath tests were inadmissible because the testing procedures did not conform to title 17 requirements. "Title 17 establishes the procedures for determining 'the concentration of ethyl alcohol in samples of blood, breath, urine, or tissue of persons involved in traffic accidents or traffic violations.'" (Hernandez v. Gutierrez (2003) 114 Cal.App.4th 168, 172, quoting Cal. Code Regs., tit. 17, § 1215.1, subd. (b).) "Among other things, the regulations include standards for licensing and operation of laboratories, procedures for breath-alcohol analysis, and performance of instruments used to analyze breath-alcohol levels. [Citation.] Section 1219.3 of title 17 states: 'The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.'" (Roze, supra, 141 Cal.App.4th at p. 1181, fn. 1.) Gluskin contends the results of her chemical breath tests were inadmissible because she was not under continuous observation for 15 minutes before the tests.
There are several problems with this argument. First, substantial evidence supports the trial court's determination that Armacher complied with title 17 when he administered the chemical breath tests. The hearing officer specifically found Armacher was more credible than Gluskin; the hearing officer also determined Gluskin "was inconsistent while testifying," was "not credible" and "showed bias in favor of herself . . . ." "[T]he determination of the credibility of witnesses in an administrative proceeding is within the province of the hearing officer." (Mullen v. Department of Real Estate (1988) 204 Cal.App.3d 295, 301.)
Second — and even if we assume for the sake of argument that Armacher did not comply with title 17 — it is well settled that noncompliance with title 17 requirements does not require exclusion of the test results. The California Supreme Court has held that noncompliance with title 17 "goes only to the weight of the evidence, not its admissibility." (People v. Williams (2002) 28 Cal.4th 408, 414.) Put another way, "[u]nder Williams, title 17 compliance is plainly relevant to the trier of fact's independent assessment of the weight of PAS test evidence for purposes of proving unlawful blood-alcohol concentration." (Roze, supra, 141 Cal.App.4th at pp. 1186-1187.)
Even if we assume for the sake of argument that the hearing officer erred by admitting the results of the chemical breath tests, the remaining evidence demonstrated Gluskin was under the influence of alcohol when she drove on September 20, 2009. Gluskin did not dispute the evidence regarding: (1) the smell of alcohol coming from her and from her car; (2) her slurred speech; (3) her admission that she had consumed alcohol before driving; and (4) the PAS tests results of .093 and .091, far in excess of the permissible level of .01 percent under section 23136.
DISPOSITION
The judgment is affirmed.
Jones, P. J. We concur: Simons, J. Needham, J.