Killam v. DMV

 

 

 

 

 

 

 

Filed 5/23/13  Killam v. DMV CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
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DAVID KILLAM,             Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES,             Defendant and Respondent.

A135546         (City & County of San Francisco       Super. Ct. No. CPF-11-511579)

 

          David Killam appeals from
the denial of his petition for a writ of
mandate challenging the suspension of his driver’s license.  We affirm.

>BACKGROUND

            Killam
was arrested for drunk driving at around 8:35 on the night of May 15, 2011, after he drove his car into a retaining wall.  Killam’s breath smelled strongly of alcohol,
he was unable to stand unassisted, his speech was slurred, and his eyes were
bloodshot and watery.  Killam admitted he
had drunk six beers, but then said “I don’t drink.” 

            Killam
was transported to San Francisco General Hospital, where it was determined
that a blood test was necessary.  Killam
refused and said “I’m not giving you anything.” 
A forced blood draw was conducted at 10:34 p.m. that night.  Killam was notified that his driver’s license
would be administratively revoked or suspended pursuant to Vehicle Code section
13353href="#_ftn1" name="_ftnref1" title="">[1]
due to his refusal to submit to the test. 


            Killam
challenged the revocation at an administrative
hearing on the ground that he
was not admonished of the consequences of refusing to submit to a blood test
before his blood was forcibly drawn.  The
hearing officer found the revocation was proper and, specifically, that a
notation in href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Francisco Police Officer K. Castillo’s sworn report (the DS-367 form) that
Killam was admonished at 10:45, 11 minutes after his blood
was drawn, was a “typographical,” or clerical, error.  His driving privilege was revoked for three
years.href="#_ftn2" name="_ftnref2" title="">[2]

            Killam
then filed a petition for writ of administrative mandate in the superior court.
 The court found the hearing officer reasonably
relied on an unsworn report by Officer Castillo to find Killam was properly
admonished before the forced blood draw. 
Accordingly, it denied his writ petition.  Killam timely appealed. 

>DISCUSSION

>I.  Standards of Review

            In
ruling on an application for a writ of mandate after a license suspension or
revocation, the trial court independently determines whether the weight of the
evidence supports the administrative decision. 
(Lake v. Reed (1997) 16
Cal.4th 448, 456-457.)  However, “a trial
court must afford a strong presumption of correctness concerning the
administrative findings, and the party challenging the administrative decision
bears the burden of convincing the court that the administrative findings are
contrary to the weight of the evidence.” 
(Fukuda v. City of Angels
(1999) 20 Cal.4th 805, 816-817.) 

            On
appeal, we review the record to determine whether the trial court’s findings
are supported by substantial evidence. 
We resolve all evidentiary conflicts and draw all reasonable inferences
in favor of the trial court’s decision, and may overturn the trial court’s
factual findings only if the evidence is insufficient as a matter of law to
sustain them.  (Lake v. Reed, supra, 16
Cal.4th at p. 457.)  However, where
the determinative issue is legal rather than factual we exercise our
independent judgment.  (>Manriquez v. Gourley (2003) 105
Cal.App.4th 1227, 1233.)

>II.  Analysis

            Killam argues, as he did before the superior court,
that the Department of Motor Vehicles (DMV) failed to introduce sufficient
evidence to prove he was admonished before his blood was forcibly drawn, and
that his license would be revoked unless he submitted to the test.  We disagree.

            Killam’s
argument rests on Officer Castillo’s sworn incident report, the DS-367
form.  In the box provided to indicate
the time the blood test was administered, Officer Castillo wrote “22[:]34 hrs,”
or 10:34 p.m.  An unsworn
“narrative/supplemental” report also prepared by Officer Castillo and dated May
15 added the following. “Ofc. Leong
advised (B) Killam of the chemical test admonition (23612 CVC).  Due to medical constraints, Killam had to
provide us with a blood sample for our investigation.  When Killam was advised that he would have to
give us a blood sample, he became uncooperative and said, ‘I’m not giving you
anything.’  It was at that time I
informed Sgt. Lozada . . . a forced blood draw of Killam’s blood would be
needed.”  (Italics added.)  A phlebotomist was then summoned, after which
Castillo observed the blood draw and delivered the samples to the station. 

            This
is sufficient evidence that Killam was advised of the consequences of refusing
the blood test before his blood was forcibly drawn.  The issue here arises because, despite her
narrative description of the events, Officer Castillo wrote the time of the
test as“2234 hrs” in the DS-367 report. 
The question is whether the court could rely on the supplemental
narrative report that Killam was admonished before
the blood draw and infer that the time notation on the DS-367 was a
mistake.  We are satisfied that it could.

            MacDonald
v. Gutierrez (2004) 32 Cal.4th 150, 158-159,
clarifies that the court may rely on unsworn evidence to supplement the
officer’s sworn report.  The Supreme
Court explained:  “[i]n an administrative
hearing, ‘[a]ny 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. . . .” 
[Citation.]  ‘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.” â€™  [Citation.] 
Again, too, 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,’ a rationale we reiterated in Lake:  â€˜[T]he administrative per se laws are intended
to provide an efficient mechanism whereby those persons who drive after
consuming dangerous amounts of alcohol can have their driver’s licenses quickly
suspended so as to ensure they will not endanger the public by continuing to
drive.’ â€  (Ibid; see also
Gov. Code, § 11513, subd. (d).)  The
trial court properly could thus rely on the sequence of events set forth in
Officer Castillo’s supplemental report when it found the handwritten entry of
“2245” for the time of the chemical test admonition was erroneous and that
Killam was admonished before, not after, his blood was drawn.

            Killam disagrees.  He maintains that, while MacDonald allows the DMV to look to unsworn evidence “to fill in
any necessary information that the officer neglected to state in the DS-367,”
it does not allow the DMV to rely on such evidence “to override the facts
stated in the sworn report.”  This is so,
he argues, because MacDonald “only
authorizes the [DMV] to use unsworn reports to correct technical omissions of
proof,” not to contradict a sworn statement. 
He reads MacDonald too
narrowly.  The Court there was tasked
with reconciling section 13380, which requires the arresting officer to provide
the DMV a sworn report of “all information relevant to the enforcement action”
(§ 13380, subd. (a)) and section 13557, which directs the DMV to consider
the sworn report and “any other evidence accompanying the report.”  (§ 13557, subd. (a).)   The court rejected the view that the unsworn
report cannot supply relevant information that was omitted from the sworn report.  (MacDonald
v. Gutierrez, supra, 32 Cal.4th at pp.> 158-159.)  “[T]he Legislature clearly anticipates the
sworn report will contain all or nearly all of the information necessary to
remove the offender’s license.  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, italics
added.) 

            Those same “relaxed evidentiary
standards” permit the admission of hearsay evidence in an administrative
hearing to explain, as well as supplement, other evidence.  (Gov. Code, § 11513, subd. (d) [hearsay
evidence is admissible in administrative hearings to supplement or explain
other evidence, but insufficient in itself to support a finding unless
admissible over objection in a civil action].) 
Under the Court’s reasoning in MacDonald,
therefore, it is equally appropriate to rely on an officer’s unsworn report
to explain or interpret the sworn report as to cure any omissions.  That is what happened here.  The trial court looked to Officer Castillo’s
unsworn narrative report to reasonably find that the peculiar discrepancy
between the time of admonishment and the time of the blood draw presented in
the officer’s sworn report resulted from a drafting error.  It was permissible for the trial court to
consider the unsworn report for this purpose, and the evidence was sufficient
for it to conclude Killam was admonished before his blood was drawn.
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>DISPOSITION

            The
judgment is affirmed.

 

 

                                                                                    _________________________

                                                                                    Siggins,
J.

 

 

We concur:

 

 

_________________________

McGuiness, P.J.

 

 

_________________________

Pollak, J.