Hillyard v. DMV
Filed 3/7/07 Hillyard v. DMV CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JASON HILLYARD, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. | D047987 (Super. Ct. No. GIC849683) |
APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, David G. Brown, Judges. Reversed and remanded with directions.
I.
INTRODUCTION
Pursuant to a statutory procedure known as the "administrative per se" law (Veh. Code, 13353.2 et seq.),[1]the Department of Motor Vehicles (DMV) suspended Jason Hillyard's driver's license after he was arrested for driving under the influence of alcohol ( 23152). At an administrative hearing, the DMV offered in evidence both the arresting officer's sworn statement ( 13380, subd. (a)) and the police report from the incident. An administrative hearing officer concluded that Hillyard's arrest was lawful and upheld the suspension.
Hillyard filed a petition for writ of mandate in the trial court in which he sought the reinstatement of his driving privileges. In his memorandum in support of his petition, Hillyard claimed that the administrative hearing officer erred in admitting the police report in evidence. Hillyard further argued that without the police report, the weight of the evidence did not support the hearing officer's determination that Hillyard had been lawfully arrested.
The trial court determined that the administrative hearing officer had improperly admitted the police report in evidence. The trial court further concluded that without the police report, the DMV had failed to prove that Hillyard's arrest was lawful. The trial court entered a judgment granting Hillyard's petition.
On appeal, the DMV claims that information contained in the arresting officer's sworn statement was sufficient to establish that Hillyard's arrest was lawful. In addition, the DMV claims that the trial court erred in excluding the police report. We conclude that the undisputed facts contained in the arresting officer's sworn statement establish that Hillyard's arrest was lawful. Accordingly, we reverse the judgment and remand the matter to the trial court with directions to deny Hillyard's petition for writ of mandate.[2]
II.
FACTUAL AND PROCEDURAL BACKGROUND
On April 29, 2005, at 11:40 p.m., San Diego Police Officer H. Castro[3]observed Hillyard driving northbound in the 600 block of Seventh Avenue in San Diego. Officer Castro stopped Hillyard because the left brake light on Hillyard's car was out. Officer Castro observed that Hillyard had bloodshot or watery eyes and that his gait was unsteady. Officer Castro also detected the odor of an alcoholic beverage, and observed that Hillyard's eyes were exhibiting horizontal gaze nystagmus (HGN).[4] Officer Castro arrested Hillyard for driving under the influence of alcohol ( 23152).
Officer Castro served Hillyard with an order suspending his privilege to drive. The order informed Hillyard of his right to request a hearing to contest the suspension. The order also informed Hillyard that the hearing would be limited to a determination of whether Officer Castro had reasonable cause to believe Hillyard had been driving a motor vehicle in violation of section 23152, whether Hillyard had been lawfully arrested, and whether Hillyard had been driving a motor vehicle while having a blood alcohol level of .08 percent or more.
As required by section 13380, subdivision (a), Officer Castro signed, under penalty of perjury, "a sworn report of all information relevant to the enforcement action," on DMV form DS 367. (See 13380, subd. (b) ["The peace officer's sworn report shall be made on forms furnished or approved by the department"].) The DS 367 form states, "I had reasonable cause to believe the driver was driving a motor vehicle with alcohol and/or drugs present in the blood or while under the influence." Officer Castro checked boxes on the form indicating that he observed various "symptoms of intoxication" including: "Bloodshot/watery eyes," "Odor of alcoholic beverage," and "Unsteady gait." In addition, Officer Castro placed a checkmark in a box labeled "Other," and wrote next to the box, "HGN." The DS 367 form also indicates that a blood test was performed on Hillyard on April 30, 2005 at 12:10 a.m. A separate forensic analysis report states that Hillyard had a .13 percent blood alcohol content.
Hillyard requested an administrative hearing to review the suspension of his driver's license ( 13558). At the administrative hearing, the DMV offered in evidence several documents, including Officer Castro's sworn statement. The DMV also requested that the hearing officer admit in evidence Castro's police report, which contained additional information supporting Hillyard's arrest. One page of the police report was dated April 30, 6:00 a.m. Three pages of the police report were dated May 1, 8:27 p.m. Two pages were undated.
Hillyard objected to the admission of the police report. He argued that the police report was hearsay and that it did not fall within the scope of the business record or official records exceptions because it was not prepared at or near the time of the arrest, as is required under Evidence Code sections 1270 and 1271. The administrative hearing officer overruled Hillyard's objection. Hillyard's counsel then stated: "We'll submit it based on the documents that you ─ that you have received into evidence. Our sole objection is to the [police] report and without the [police] report it's clear that the Department can't make its case against Mr. Hillyard, but based on that fact that its been received into evidence we'll submit."
The hearing officer subsequently issued a notice of findings and decision. The hearing officer determined that Hillyard had been lawfully arrested, and upheld the suspension of Hillyard's driver's license.
Hillyard filed a petition for writ of mandate in the trial court pursuant to Code of Civil Procedure section 1094.5. Hillyard's sole claim in his memorandum in support of his petition was that the DMV had not established by admissible evidence that he had been lawfully arrested. Hillyard contended that the hearing officer erred in admitting the police report in evidence, and claimed that Officer Castro's sworn statement did not establish that Hillyard had been lawfully arrested. The DMV filed an opposition in which it argued that the administrative hearing officer properly admitted the police report in evidence. The DMV argued in the alternative that even assuming the police report was inadmissible, the officer's sworn statement established that Hillyard's arrest was lawful.
After hearing oral argument from both parties, the trial court determined that the police report should not have been admitted in evidence at the DMV hearing. The trial court further concluded that Officer Castro's sworn statement did not establish that Hillyard had been lawfully arrested. The court granted the petition for writ of mandate.
The DMV timely appeals.
III.
DISCUSSION
Officer Castro's sworn statement establishes that Hillyard was lawfully arrested
The DMV contends that the trial court erred in granting Hillyard's petition for writ of mandate on the ground that the DMV failed to establish that Hillyard was lawfully arrested. The DMV argues that Officer Castro's sworn statement establishes that Hillyard's arrest was lawful.
A. Standard of review
"The United States Supreme Court has identified the applicable standards of review as follows for challenges to the legality of a detention: . . . '[A]s a general matter determinations of . . . probable cause should be reviewed de novo on appeal. . . .'" (People v. Butler (2003) 111 Cal.App.4th 150, 159, quoting Ornelas v. United States (1996) 517 U.S. 690, 699; accord Cooley v. Superior Court (2002) 29 Cal.4th 228, 257 ["The resolution of mixed questions of law and fact, like probable cause, usually is examined independently [citation], and the resolution of a question of fact, like any such question underlying probable cause, always is examined for substantial evidence [citation]"].)
In this case, we independently review the trial court's legal conclusion that the undisputed facts in Officer Castro's sworn statement failed to establish that Hillyard was lawfully arrested.
B. The law governing arrests premised on probable cause
"'If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.'" (People v. McKay (2002) 27 Cal.4th 601, 607, quoting Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354.)
In People v. Thompson (2006) 38 Cal.4th 811, 818, the California Supreme Court defined probable cause to arrest as follows:
"'Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime. [Citation.] "[P]robable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts . . . ." [Citation.] It is incapable of precise definition. [Citation.] "'The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,'" and that belief must be "particularized with respect to the person to be . . . seized." [Citation.]' [Citation.]"
In Grundy v. Gourley (2003) 110 Cal.App.4th 20, 24-25 (Grundy), in concluding that a police officer had probable cause to arrest a driver for driving under the influence, the court stated:
"[T]he weight of the evidence in the administrative record established that Officer Johnson had probable cause to arrest Grundy for driving under the influence. Officer Johnson's sworn report states that a witness watched Grundy try to drive her heavily damaged car after she was involved in an accident in the early morning hours. When Officer Johnson arrived at the scene, Grundy had bloodshot and watery eyes and smelled of alcohol. These facts, known to Officer Johnson at the time of the arrest, '"would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that"' Grundy had been driving under the influence. [Citation.] The facts contained in the sworn report, therefore, establish probable cause for her arrest, even before one considers Diaz's testimony at the hearing or the unsworn reports. [Citation.]"
Similarly, in Dibble v. Gourley (2002) 103 Cal.App.4th 496 (Dibble) disapproved on another ground by MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 159, the court rejected the appellant's claim that a police officer lacked probable cause to arrest him:
"We also reject appellant's contention that the sworn statement is insufficient to support the trial court's finding Officer Smith had probable cause to believe that appellant was driving under the influence of alcohol in violation of section 23152. . . . The sworn statement establishes that the officer was informed that appellant had left the scene of an accident and that within 30 minutes of that accident appellant had the odor of an alcoholic beverage, bloodshot eyes, slurred speech and an unsteady gait. These facts contained in the sworn statement are sufficient to establish probable cause for appellant's arrest. [Citation.]" (Dibble, supra, 103 Cal.App.4th at p. 503.)
(See also McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 522 (McKinney) [concluding that administrative per se suspension was proper where officer noted in his sworn statement that the driver's "vehicle was straddling the southbound number 3 and 2 lanes of U.S. Highway 101 at 60 miles per hour," and that the driver "exhibited the following symptoms of intoxication: slurred speech, bloodshot/watery eyes, odor of alcohol, unsteady gait and poor performance of field sobriety tests"].)
C. Officer Castro's sworn statement established that he had probable cause
to arrest Hillyard
Officer Castro observed Hillyard driving and immediately thereafter observed Hillyard displaying various symptoms of intoxication, including bloodshot or watery eyes and an unsteady gait. Officer Castro also detected the odor of an alcoholic beverage. In addition, Officer Castro noted that Hillyard's eyes were exhibiting HGN. These facts, like the facts described in Grundy, Dibble, and McKinney, would persuade someone of reasonable caution to believe that Hillyard had been driving under the influence. (See People v. Thompson, supra, 38 Cal.4th at p. 818.) We therefore reject Hillyard's argument that these facts, standing alone, do not support the conclusion that Officer Castro had probable cause to arrest him for driving under the influence.
Hillyard contends that the factual evidence supporting probable cause was "generic and conclusory" because of the format in which that evidence was recorded, namely in a series of checked boxes. DMV form DS 367 contains a series of empty boxes next to words indicating the following "symptoms of intoxication": "Bloodshot/watery eyes," "Odor of alcoholic beverage," "Unsteady gait," and "Slurred speech." The form also contains a box labeled "Other," with a blank line adjacent to this box. The administrative per se law requires that a peace officer complete the DMV form DS 367 when serving a notice of order of suspension for driving under the influence. (See 13380, subds. (a), (b) [mandating peace officers provide the DMV with "a sworn report of all information relevant to the enforcement action . . . . [] on forms furnished or approved by the department"].)
Thus, in order to comply with section 13380, Officer Castro was required to record his observations of Hillyard's apparent intoxication in this mandated format. Further, the hearing officer was required to consider Officer Castro's sworn statement at the administrative hearing. ( 14104.7 ["At any hearing, the department shall consider its official records and may receive sworn testimony"; see also McKinney, supra, 5 Cal.App.4th at p. 526 [noting officer's sworn statement is a official record of the DMV].)
An administrative DMV hearing is an informal proceeding that does not require the full panoply of protections under Evidence Code provisions that apply in criminal and civil trials. (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.) Further, if the driver wishes to dispute the information contained in the sworn statement, he has the right to subpoena the arresting officer to the suspension hearing. (Id. at p. 1351; see 14104.5, subd. (a) ["Before a hearing has commenced, the department, or the hearing officer or hearing board, shall issue subpoenas or subpoenas duces tecum, or both, at the request of any party, for attendance or production of documents at the hearing"].) We reject Hillyard's argument that the "generic and extreme minimalism of such check[ed] boxes," demonstrates that the DMV failed to prove that he was lawfully arrested.
Officer Castro's sworn statement established that he had probable cause to arrest Hillyard. Accordingly, the trial court erred in granting Hillyard's petition for writ of mandate on the ground that the DMV failed to establish that Hillyard was lawfully arrested.
IV.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to deny Hillyard's petition for writ of mandate.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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[1] Unless otherwise specified, all subsequent statutory references are to the Vehicle Code.
[2] In light of our conclusion, we need not consider the DMV's claim regarding the admissibility of the police report.
[3] Officer Castro's first name does not appear in the record.
[4] Horizontal gaze nystagmus, or HGN, is"'[a]n inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) . . . .'" (People v. Leahy (1994) 8 Cal.4th 587, 592.) Some investigators believe "'alcohol intoxication increases the frequency and amplitude of HGN and causes HGN to occur at a smaller angle of deviation from the forward direction. [Citation.]' [Citation.]" (Ibid.)
