Rankin v. Valverde

Filed 10/25/06 Rankin v. Valverde CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Pena, Judge.

Law Office of Richard P. Berman, Richard P. Berman; W. Scott Quinlan for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Alicia M. B. Fowler and Michelle K. Littlewood, Deputy Attorneys General, for Defendant and Appellant.

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The California Department of Motor Vehicles (DMV) in an administrative hearing revoked Robert Lee Rankin’s privilege to operate a motor vehicle for a period of two years, pursuant to Vehicle Code section 13353, subdivision (a)(2).^[1] The trial court reduced the revocation to a one-year suspension under subdivision (a)(1). DMV appeals from that order. Rankin cross-appeals, challenging the initial vehicle stop that led to the DMV administrative action.

We will reverse the trial court’s order and remand the matter with directions to enter an order denying the petition for writ of mandate and reinstating the two-year revocation.

FACTUAL AND PROCEDURAL SUMMARY

On December 31, 2003, at approximately 1:40 a.m., Rankin pulled off Freeway 41, exiting onto Friant Road, and nearly collided with a patrol car. Sheriff’s Deputy Alonzo, the driver of the patrol car, activated the lights on the patrol car. Rankin did not stop. Alonzo then activated the siren and began honking the horn. Eventually, Rankin stopped.

Alonzo approached Rankin’s pickup and asked if he had been drinking. Rankin admitted drinking at a local bar. Alonzo observed that Rankin had slurred speech, watery eyes, an unsteady gait, and emitted a strong odor of an alcoholic beverage. California Highway Patrol Officer Moran was called to the scene and observed the same signs of intoxication. Moran administered field sobriety tests, all of which Rankin failed. Rankin was placed under arrest for violating section 23152, subdivision (a), and informed of his choice of submitting to a breath or blood test. He chose a blood test and was transported to a local hospital.

At the hospital, Moran presented Rankin with a consent form, which Rankin refused to sign. Moran inquired if Rankin was refusing to sign the form or refusing to submit to the test. Rankin replied, “I’m not doing either one.” Moran explained the ramifications of refusing to test and Rankin stated he wanted to talk to an attorney before testing. Moran informed Rankin that he did not have a right to an attorney before testing or during testing. Moran again read the standard DMV admonition regarding the consequences of failure to test. Rankin asked to read the form to himself and Moran handed him the form. Afterwards, Rankin still declined to test. Rankin was transported to the county jail and booked for violating section 23152, subdivisions (a) and (b).

Because Rankin refused to submit to a test, the DMV revoked Rankin’s license for a period of two years, effective January 30, 2004. Rankin appealed the DMV’s decision at an administrative hearing. Numerous documents were admitted into evidence at the administrative hearing, including Rankin’s driving record. The driving record indicated that Rankin had been arrested four times for driving under the influence, including the December 31, 2003, arrest.

During the administrative hearing, Rankin objected to the admission of Moran’s report into evidence, contending it contained inadmissible hearsay. Rankin asserted a blanket objection to all the other exhibits on the same grounds. The objections ultimately were overruled by the administrative hearing officer and the exhibits became part of the record of the administrative hearing.

The administrative hearing officer issued findings of fact and a ruling. The hearing officer found that there was reasonable cause to believe Rankin was under the influence while driving a vehicle; Rankin refused to submit to a blood or breath test; and he was advised his license would be suspended or revoked if he refused to submit to testing. The hearing officer found cause existed to revoke Rankin’s license for a period of two years.

Rankin filed a petition for writ of mandate and a stay in the superior court. In part, Rankin asserted that the administrative hearing officer relied on inadmissible evidence. Regarding the driving record printout, Rankin argued that his driving record did not justify suspension or revocation of his license.

A hearing was held on the petition for writ of mandate on December 17, 2004. Although the trial court granted the petition for mandate, the trial court held that the officer was justified in effecting a stop of Rankin’s vehicle and suspension of Rankin’s driving privilege was mandatory. The trial court concluded that Rankin’s driving record should not have been admitted into evidence at the administrative hearing and consequently a two-year revocation was not supported by the evidence. The trial court directed that a one-year suspension be imposed.

DISCUSSION

There are essentially three issues in this appeal, specifically, whether (1) the trial court erred in determining the DMV printout of Rankin’s driving record was inadmissible; (2) the DMV printout supported a two-year revocation; and (3) the officer was justified in making the initial stop of Rankin on Friant Road.

In reviewing an administrative law decision, the trial court conducts an independent review. (County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 909.) Under this standard, there is a presumption of correctness concerning the administrative findings of fact and the party challenging the decision has the burden of establishing that the administrative findings are contrary to the weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 812, 817.)

If the trial court has conducted an independent review, the appellate court is obligated to uphold the trial court’s decision if the findings are supported by substantial evidence. (County of Alameda v. Board of Retirement, supra, 46 Cal.3d at p. 910.) Here, the trial court applied the independent standard of review. On appeal, the party challenging the trial court’s decision has the burden of proving there was no substantial evidence to support the decision. (Vernon Fire Fighters Assn. v. City of Vernon (1986) 178 Cal.App.3d 710, 718.)

I. Admissibility of Driving Record

It is undisputed that the administrative hearing officer based her determination that Rankin was subject to a two-year revocation on information contained in the DMV printout. Rankin challenged the printout as hearsay. The trial court concluded that the printout was admitted improperly at the administrative hearing. The trial court was incorrect.

In determining the length of a person’s suspension, the DMV is entitled to rely on its printout of the person’s driving record. Section 1801 provides that the DMV may store its records in any feasible manner, including electronic media, and that its records shall be admissible in all administrative, quasi-judicial, and judicial proceedings. (§ 1801, subd. (c).) Sections 1806, subdivision (a), and 14104.7 authorize the DMV to rely upon its records in administrative hearings. (Beamon v. Dept. of Motor Vehicles (1960) 180 Cal.App.2d 200, 209.)

In particular, the DMV printout of a person’s driving record may be used as evidence of prior violations. (§ 23622, subd. (b); McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 522, fn. 2.) In Vinson v. Snyder (1999) 75 Cal.App.4th 182, this court stated that the hearing officer “was not required to document her expertise in reading printouts or to lay a foundation establishing her qualifications as an expert in this area” before she could rely on a DMV printout to impose a suspension or revocation. (Id. at p. 188.)

We conclude the administrative hearing officer was entitled to rely on a DMV printout of Rankin’s driving record in imposing a suspension and the trial court erred in disregarding this evidence.

II. Two-Year Revocation

The trial court, after first erroneously concluding the DMV printout should have been excluded from evidence at the administrative hearing, thereafter determined there was insufficient evidence in the record to support a two-year revocation and reduced the penalty to a one-year suspension. Having concluded in part I, ante, that the DMV printout properly was considered by the administrative hearing officer and that the trial court erred in concluding the printout should have been excluded from evidence, we now consider whether the evidence supports a two-year revocation.

In his cross-appeal, Rankin contends there was no evidence of a prior suspension or conviction as asserted by the hearing officer. The administrative hearing officer reviewed the DMV printout and made a finding that the driving record, as established by the printout, supported a two-year revocation.

Rankin testified at the administrative hearing, but did not challenge the contents of the printout on other than hearsay grounds. In the reply points and authorities filed in support of his petition for writ of mandate, Rankin asserted that there was no evidence supporting a two-year revocation because there was “nothing in the record that shows a qualified person interpreted what the codes or entries mean” in the printout.

At oral argument, the DMV argued that a two-year revocation was imposed by operation of law, not as a result of the administrative hearing. We need not decide this point. The DMV printout was admitted at the administrative hearing for the purpose of determining whether a suspension or revocation was warranted, and the hearing officer did make a finding on this point. Therefore, we address the issue on the merits.

As this court stated in Vinson, the hearing officer is not required to make a record of his or her expertise in the area of reading DMV printouts. (Vinson v. Snyder, supra, 75 Cal.App.4th at p. 188.) A hearing officer may make reasonable deductions from the printout. (Ibid.) Rankin did not dispute or contradict the information in the printout during the administrative hearing, although he was entitled to challenge the accuracy of the printout. (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 380, fn. 8.) The trial court can reverse an administrative order only if the hearing officer’s factual determinations are not supported by the weight of the evidence. (Vinson v. Snyder, supra, 75 Cal.App.4th at p. 189.) The trial court did not reach a conclusion that the printout failed to support a two-year revocation. Rather, the trial court erroneously excluded the printout from evidence and concluded a two-year revocation was not supported by the weight of the evidence.

We conclude substantial evidence does not support the trial court’s determination that the weight of the evidence failed to support the DMV-imposed penalty of a two-year revocation pursuant to section 13353, subdivision (a)(2).

III. Validity of Initial Stop

Rankin contends that the evidence at the administrative hearing was insufficient to support a finding that he lawfully was stopped and arrested. His contention is that Alonzo’s unsworn report of the initial stop constitutes inadmissible hearsay.

In Lake v. Reed (1997) 16 Cal.4th 448, the California Supreme Court concluded that a police officer’s report, even if unsworn, is admissible as evidence in a DMV administrative hearing. (Id. at p. 461.) The Lake court concluded there are two bases for admitting the unsworn statement, Government Code section 11513, subdivision (c), and Evidence Code section 1280.

Government Code section 11513, subdivision (c) provides that 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.” The report of a law enforcement officer, even if unsworn, is evidence of the type that satisfies the requirements of Government Code section 11513, subdivision (c). (Lake v. Reed, supra, 16 Cal.4th at p. 461.)

Rankin challenges the use of the report because the copy faxed to the California Highway Patrol (CHP) was marked “DRAFT.” Rankin failed to challenge the report on this ground in the administrative hearing. Furthermore, the document clearly was the type of evidence on which a responsible person was accustomed to rely because it was faxed from the sheriff’s department to the CHP, obviously with the intent that the CHP rely on the document.

Evidence Code section 1280 also supports the admission into evidence of the unsworn report. The report was written within the scope of Alonzo’s duties as a public employee; the report was made near the time of the event in question; and the source of the information in the report was such as to indicate its trustworthiness. (Lake v. Reed, supra, 16 Cal.4th at p. 461.)

Here, Alonzo stopped Rankin and a report of the incident was prepared by Alonzo using an official department form, which noted Alonzo’s badge number and status as a deputy. The report indicates that Rankin was stopped at approximately 1:31 a.m., and the written report was faxed to the CHP at 7:41 a.m., establishing that the report was prepared near the time of the event in question. The information in the report is based upon Alonzo’s personal observations and also admissions made by Rankin. These facts establish the foundation required by Evidence Code section 1280. Additionally, as a party to the proceedings, any statements made by Rankin were admissible as exceptions to the hearsay rule under Evidence Code section 1220. (Lake v. Reed, supra, 16 Cal.4th at p. 461.)

The report itself sets forth facts that justified the initial stop of Rankin. Alonzo was in the “#2 lane” on Friant Road when Rankin exited the freeway “at a high rate of speed” and entered Alonzo’s lane, requiring Alonzo to “swerve into the #1 lane” in order to “avoid a collision.” Alonzo noted that the light was red and Rankin did not stop for the red light before turning. Rankin did dispute this aspect of the report at the administrative hearing, claiming that there was a green arrow allowing him to turn without stopping.

Regardless, Rankin failed to make a safe turn when he made the turn at a high rate of speed and moved immediately into an inside lane, directly in Alonzo’s path, instead of turning into the far right lane. This conduct by Rankin justified the initial stop. Once stopped, Rankin’s slurred speech, unsteadiness on his feet, the odor of an alcoholic beverage, and his own admissions of having consumed alcoholic beverages justified the further action.

IV. Conclusion

Section 13353, subdivision (a)(2) mandates that Rankin’s driving privileges be revoked for a period of two years. The trial court erred when it reversed the DMV’s two-year revocation and instead imposed a one-year suspension.

DISPOSITION

The trial court’s order is reversed. The case is remanded to the trial court with directions to enter an order denying Rankin’s petition for writ of mandate and reinstating the DMV’s two-year revocation order. Costs are awarded to the DMV.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

DAWSON, J.

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^[1] All further statutory references are to the Vehicle Code unless otherwise noted.