Kuo v. DMV

Filed 8/29/07 Kuo v. DMV CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

The Department of Motor Vehicles (DMV) appeals from a judgment granting Philip Feng Ming Kuos petition for a writ of administrative mandamus. The judgment on Kuos petition set aside the DMVs four-month suspension of Kuos driving privileges imposed for his driving with a blood alcohol level over the legal limit. We reverse.

BACKGROUND

On August 15, 2005, Moraga Police Officer Ron Ward observed Kuo driving at 12-15 miles per hour in a 35 mile-per-hour zone and crossing into the northbound lane of the road more than five times over a half-mile distance.

Ward pulled Kuo over and conducted a preliminary alcohol screening (PAS) test. The results of two PAS tests administered at 9:55 and 9:57 p.m. showed a preliminary blood alcohol content (BAC) of 0.124% and 0.113%, respectively. Kuo was then taken into custody. Breath tests administered at the Moraga Police Department at 10:30 and 10:34 p.m. showed a BAC of 0.09%. Kuo also elected to take a blood test, as allowed under Vehicle Code section 23614.

Kuo was arrested and charged with driving under the influence, and was notified that his drivers license was to be administratively suspended. Kuo requested a hearing to challenge the administrative suspension. (See generally Veh. Code,  13353.2; Gikas v. Zolin (1993) 6 Cal.4th 841.) The hearing was originally set for September 16, 2005, but was continued five times at Kuos request before it was finally held on February 2, 2006. On January 30, 2006, Kuo requested another continuance because his attorney had not yet received the blood test results and police communication tapes or logs he had requested from the DMV. The DMV denied the request and on February 1, 2006, one day before the hearing date, Kuo for the first time asked the DMV to subpoena the results of the blood tests and the police communication tapes or logs.

At the administrative hearing Kuos attorney argued that Kuo had repeatedly asked the DMV for the results of his blood tests since September. A number of written requests from Kuo or his lawyer to the DMV and the district attorneys office for the results of those tests were admitted as exhibits. The blood test, counsel argued, is absolutely germane and completely relevant to determine whether [Kuo] was or was not above the legal limit at the time he drove the car. And from the inception of the case, he and the documents there set that out, he clearly was asking continuously back in November and October of last year, for the blood test. When we came into the case we contacted the DAs Office, of which we have provided letters to you showing weve done that. They have not provided any blood test. . . . Weve written to the Moraga Police Department asking them for the blood test . . . and again, we have no case pending so theres no way for me to issue a subpoena, I have no power to issue a subpoena without a pending case. Thats why we wrote to the Department asking for a continuance because still repeatedly after many, many months, this evidence which is absolutely germane to his defense, which is exculpatory in nature, has not been produced. So we then, when that was denied, we then asked the Department in our letter of February 1st, to issue subpoenas to the Contra Costa Sheriffs Department for the blood sample and for the CAD tapes . . . but its my understanding that the Department is not going to issue the subpoenas. . . . Counsel argued that the DMVs failure to issue subpoenas for the requested tests and tapes violated his constitutional right to due process and statutory rights under the Vehicle Code.

The hearing officer rejected Kuos argument and upheld the suspension. Among other things, she found that [c]ounsels argument and inability to obtain evidence to rebut the Department case was noted and does not appear to support any Due Process violation as claimed.

Kuo requested a written review of that decision. The basis for the request, counsel explained, is simply that Mr. Kuo requested, as is his statutory right to collect evidence that would exonerate him, a blood test result. It is undisputed that the documentary evidence before the DMV reveals that he did request a blood test and that a blood test was given to him. We have sought to obtain the results of the aforesaid blood test but as of the date of the hearing no criminal charges were filed against Mr. Kuo and therefore we had no way to obtain a court subpoena for the blood test result evidence. Furthermore, we specifically requested that the Department issue a subpoena so that we could obtain the evidence which would exonerate Mr. Kuo of being above the legal limit; however, you expressly stated at the hearing on record that you would not issue a subpoena for Mr. Kuo to obtain this exculpatory evidence (as required by California Vehicle Code Section 14104.5 and Government Code Section 11450.20.) The DMV upheld the suspension.

Kuo then challenged the suspension in a petition for writ of administrative mandamus. The petition alleged that Kuos counsel had asked the DMV to issue a subpoena to obtain the blood sample both at, and prior to, the administrative hearing.^[1] This claim figured prominently at the hearing on the petition, when the trial court repeatedly stated its view, reinforced by Kuos counsel, that Mr. Kuo had been trying to obtain the blood sample itself; that, unlike the results of the blood test, the sample was not something that you can subpoena to a hearing and presto magic you get a new reading on that blood; and that [i]n the criminal prosecution arena continuances are frequently necessary because of delays incumbent in obtaining and analyzing blood samples. When the hearing concluded the court took the matter under submission and advised DMVs counsel that on February 2nd when the hearing was had and the attorney says we still havent been able to get the blood from the entity that has it, I believe that the hearing officer should have absolutely, unequivocally given him an additional continuance to permit him to do that, and I think its a deprivation of procedural due process to not permit it.

The court granted the petition and ordered the DMV to set aside the suspension because Kuo was not allowed a fair opportunity to obtain significant exculpatory evidence for the administrative hearing held on February 2, 2006. This appeal timely followed.

DISCUSSION

I. Standards of Review

In ruling on an application for a writ of mandate following an order of suspension, a trial court uses its independent judgment to determine whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457.) However, the 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 review from an order granting a writ of administrative mandamus, this court reviews the record to determine whether the trial courts findings are supported by substantial evidence. We resolve all evidentiary conflicts and draw all reasonable inferences in favor of the trial courts decision, and may overturn the trial courts 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

Despite some apparent factual confusionbefore the trial court, the question presented is a simple one: whether the DMV denied Kuo a fair opportunity to obtain potentially exculpatory evidence. We conclude it did not.

The confusion, and the courts ruling, stems from its misconception that Kuos efforts at discovery were directed at obtaining his actual blood sample rather than his blood test results. Between September 14, 2005, and January 30, 2006, Kuo sent the DMV, the Moraga Police Department and the district attorneys office a number of written requests for discovery material specifically seeking the blood test resultsbut not the blood sample itself.^[2] On February 1, 2006, the day before the hearing, Kuo for the first time asked the DMV to subpoena the blood test results; even then, however, he did not ask it to subpoena or otherwise obtain his blood sample. In short, while Kuo states in his writ petition and argued in his administrative hearing that he asked the DMV to subpoena the blood sample before the administrative hearing, he is incorrect. The administrative record contains no evidence of such a request.

The question, then, narrows down to this: whether the DMVs refusal to continue the February 2, 2006, hearing in order to subpoena the blood test results violated Kuos due process rights. It did not. Vehicle Code section 14104.5, subdivision (a) provides in relevant part that: 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. (Italics added.) Similarly, under Government Code section 11450.20, subdivision (a), Subpoenas and subpoenas duces tecum shall be issued by the agency or presiding officer at the request of a party, or by the attorney of record for a party . . . . (See also Gov. Code,  11450.10, subd. (a), italics added.)

Kuos efforts to obtain the evidence were too little and too late. He never tried to obtain his blood sample by subpoena. Nor does the record reveal efforts by Kuo or his attorney to directly subpoena the blood test results or request that the DMV do so until the day before the February 2, 2006, hearing.^[3] Their efforts were untimely: California Code of Regulations, title 13, section 115.05, subdivision (b) specifies that A request for discovery must be made at least 10 days prior to the date set for commencement of the hearing to receive discovery prior to the hearing. The hearing had already been continued some five previous times since the original September 16, 2005, hearing date and Kuo did not request a subpoena until February 1, 2006. The hearing officer was not obligated to grant yet another continuance to accommodate his eleventh hour request. (See generally Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 342-343 [administrative law officer may grant continuance on good cause guided by same principles applicable to continuances generally in adjudicative settings; Veh. Code,  14112, subd. (a).) To the extent Kuos petition and appeal may be construed as challenging the denial of the continuance, the DMV correctly points out that he is jurisdictionally barred from challenging that denial because he did not appeal it to the superior court within 10 days of the administrative ruling. (Gov. Code,  11524, subd. (c).)

Nor were Kuos previous written requests for discovery an effective substitute for the statutory subpoena procedures. While his letters prior to February 1, 2006, asked for production of various discovery materials including blood test results, or followed up on earlier such requests, not a one asked the DMV to issue subpoenas for the results or even referred to the authorizing statutes. Under these circumstances it was not incumbent upon the DMV to issue subpoenas that Kuo had not requested. (See Monaghan v. Department of Motor Vehicles (1995) 35 Cal.App.4th 1621, 1625-1626 [letter that did not expressly request issuance of subpoena as required by statute was insufficient to compel witnesss attendance at administrative hearing, despite written demand for cross-examination].)

The relevant sections of the Government and Vehicle Codes provide those in Kuos position the opportunity and means to subpoena evidence in advance of their administrative hearing. That Kuo, represented by counsel, failed to properly utilize those available mechanisms does not constitute a due process violation. Because the record establishes that Kuo failed to properly seek to subpoena his blood test results (and never requested the blood sample itself until his counsel made reference to his blood sample in closing argument in the administrative hearing), the courts finding that he was deprived of a fair opportunity to obtain potentially exculpatory evidence is without evidentiary support. Consequently, the judgment must be reversed.

DISPOSITION

The judgment granting the writ of administrative mandamus is reversed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Horner, J.^*

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^[1] It also noted that the criminal driving under the influence charges against Kuo were dismissed on April 18, 2006, after the administrative hearing, because the blood sample was lost or destroyed, and that Kuo pled guilty to a dry reckless, a violation of Vehicle Code section 23103. The DMV objected to admission of the April 18, 2006, transcript and any documents and information not contained in the administrative record. The court sustained the objection.

^[2] As late as March 7, 2006, in his request for review of the suspension order, Kuo stated that the basis for the request is simply that Mr. Kuo requested, as is his statutory right to collect evidence that would exonerate him, a blood test result.

^[3] Kuo had retained counsel at least by December 22, 2005.

^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.