Rogers v. DMV

Filed 10/17/06 Rogers v. DMV CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

Petitioner Margaret Rogers appeals from the judgment denying her petition for administrative mandamus (Code Civ. Proc., § 1094.5) in which she seeks to vacate an order by the Department of Motor Vehicles (DMV) suspending her driver’s license for driving with a blood alcohol concentration (BAC) of .08 percent or greater. (Veh. Code, §§ 13353.2, subd. (a)(1), 23152.)^[1]

An administrative hearing was held at Rogers’s request, and the DMV introduced the arresting officer’s sworn statement as well as his investigative report. The investigative report references another report as an attachment, however no such attachment was introduced in evidence. The hearing officer found the suspension order was proper.

Rogers sought departmental review of that decision. While review was pending, the DMV realized the attachment, a police report providing probable cause to stop Rogers’s vehicle, was not introduced. The DMV obtained the omitted report, gave notice it was reopening the matter for a second hearing, and held a reopened hearing to admit the additional report in evidence. The DMV then issued its final decision upholding the suspension order. The trial court denied Rogers’s writ petition, finding that the DMV acted properly by reopening the hearing to receive Officer Wright’s supplemental narrative that was mistakenly omitted at the first hearing.

On appeal, Rogers contends (1) the DMV failed to establish at the first hearing that there was probable cause to stop her vehicle, (2) the DMV had no authority to reopen the matter and receive additional evidence during the pendency of its review process, and (3) Rogers should be awarded her attorney fees and costs.

Section 14106 authorizes the DMV to reopen a hearing and take further evidence after it has issued its decision. (§ 14106.) In light of this section, we hold that any procedural irregularity in reopening the case prior to issuance of its final decision on review was harmless error. Our holding renders Rogers’s remaining claims moot. We therefore do not address them and shall affirm the trial court’s judgment denying Rogers’s writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

On July 3, 2004, at approximately 10:30 p.m., Officer S. Wright observed Rogers drive erratically on Interstate 80 in Sacramento County and directed her to pull over. Officer Mayo was directed to the location of the stop and conducted the investigation. Rogers had bloodshot and watery eyes, the odor of alcohol on her breath, an unsteady gait, and slurred speech. Rogers admitted she was driving and advised Mayo she had a wine spritzer at her high school reunion. Suspecting that Rogers was under the influence of alcohol, Officer Mayo directed her to perform field sobriety tests. When she failed to perform them satisfactorily, Officer Mayo arrested her for driving under the influence of alcohol. After being advised of the implied consent law, Rogers submitted to a breathalyzer test, which revealed she had a blood alcohol level of .20 percent.

The DMV suspended Rogers’s driver license and she requested an administrative hearing on the suspension (§ 13558), challenging the sufficiency of the evidence of probable cause to stop her vehicle.^[2]

The hearing was held on September 14, 2004, before hearing officer Long. The DMV’s evidence consisted of five exhibits.^[3] Exhibit No. 1 was Officer Mayo’s sworn statement. On the question of probable cause to stop Rogers’s vehicle, his statement indicates that Officer Wright observed Rogers driving and stopped her on the Rocklin Road off ramp of Interstate 80. In the space designated Probable Cause, Officer Mayo states that Rogers “was observed by several motorists to be driving all over the freeway, a possible drunk driver. [The Sacramento Communication] Center advised us of the location in which she was driving.”

The DMV also offered Officer Mayo’s unsworn four-page investigation report, in which Officer Mayo stated that dispatch called him to meet Officer Wright on the Rocklin Road off ramp for a possible drunk driver he had stopped. In a portion entitled “Summary,” Officer Mayo states he made contact with Officer Wright and Rogers and that “Wright advised [Mayo] of his observations. See attached.” (Italics added.) No attachment appears in the record of this hearing.

On September 29, 2004, the DMV issued its Administrative Per se - .08% BAC Notification of Findings and Decision in which hearing officer Long determined that the DMV had met its burden of proof and suspended Rogers’s driver’s license for a period of one year effective October 3, 2004, through October 2, 2005. (§ 13353.3, subd. (b)(2).)

On October 13, 2004, Rogers sought departmental review of this decision on the ground no admissible evidence was presented that Officer Wright had probable cause to stop Rogers. On December 16, 2004, while review was pending, the DMV gave notice it was reopening the hearing, stating “[t]he case is being reopened to obtain clarification of the probable cause for contact.”

On January 27, 2005, while the departmental review was pending, Rogers filed a petition denominated writ in the nature of mandamus, a complaint for declaratory relief, and an ex parte application to stay the suspension.^[4] On January 28, 2005, the ex parte application was granted. The decision suspending Rogers’s driver’s license was stayed until March 11, 2005.

The matter came on before hearing officer Long who conducted the reopened hearing on January 31, 2005. She restated the purpose of the hearing, which was “to obtain clarification of the probable cause for contact” to allow “the Department to introduce additional evidence, which is one more exhibit . . . .” Long admitted as evidence the original exhibits from the first hearing, introduced collectively as Exhibit No. 1, and Exhibit No. 2, which she described as “a new Supplemental Report of one page prepared by Officer Wright, dated July 4, 2004 . . . .”^[5] Officer Wright’s report provides the statement of probable cause to conduct a traffic stop of

Rogers’s vehicle. We set forth the relevant substance of that statement in the margin.^[6]

On February 4, 2005, the DMV issued its final notice of decision finding the suspension of Rogers’s driving privilege was proper and required.

The trial court then treated Rogers’s Code of Civil Procedure section 1085 proceeding as a Code of Civil Procedure section 1094.5 proceeding on June 8, 2005, and denied it.^[7] The court found the operative decision was the February 4, 2005, notice of decision, which superseded the DMV’s earlier decision, and that Officer Wright’s supplemental report stated adequate probable cause to conduct the traffic stop of Rogers. The court further found that Officer Wright’s supplemental report, which was the additional item of evidence introduced at the second hearing, was the attachment referenced in Officer Mayo’s investigation report but mistakenly omitted from the record. It was properly considered by the DMV at the reopened hearing because the DMV retained continuing jurisdiction to correct the record by admitting an item of evidence that had been mistakenly omitted from the record at the first hearing.

Judgment was entered in favor of the DMV on June 24, 2005, and Rogers filed a timely notice of appeal from the judgment.

DISCUSSION

I.

Consideration of Officer Wright’s

Supplemental Report

Rogers contends the DMV’s order of suspension must be vacated because it improperly reopened the hearing and considered Officer Wright’s police report as new evidence while the review of its decision from the September 14, 2004, hearing was still pending. She argues that by reopening her case, the DMV violated its own rules as stated in its Notification of Findings and Decision as well as the statutory intent of the Vehicle Code.^[8] Respondent contends the DMV had authority to reopen the administrative hearing.

We disagree with both parties. The DMV has authority to reopen an administrative hearing although as we shall explain, it prematurely exercised that authority. (§ 14106.) Nevertheless, because the DMV has such authority, any error in reopening the hearing prior to the time specified by statute was harmless error.

A. Standard of Review

Having sought departmental review prior to judicial review, Rogers’s petition for a writ of administrative mandamus was made pursuant to section 14401 and Code of Civil Procedure section 1094.5. The trial court’s inquiry in such a proceeding is to determine “whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)

On appeal, this court reviews the trial court’s findings of fact under the substantial evidence test while independently reviewing the trial court’s legal determinations. (Handyman Connection of Sacramento, Inc. v. Sands (2004) 123 Cal.App.4th 867, 881.)

B. Reopening the Hearing

Defendant argues that the DMV cannot reopen the administrative hearing process to admit a missing page of a police report because the DMV’s notice of appeal rights in the Notification of Findings and Decision states only the findings and determination and the evidence presented at the hearing will be examined. She further argues that sections 14104.7, 14105.5, and 14106, when read together, preclude the DMV from reopening the administrative hearing process while its reviewing process is still pending. We do not take issue with Rogers’s interpretation of the statutory scheme.

At the conclusion of an administrative hearing, the hearing officer must make findings and render a decision on behalf of the DMV. (§ 14105, subd. (a).) The DMV may modify that decision “at any time after issuance to correct mistakes or clerical errors. (Id., subd. (b), italics added.)

The person subject to the hearing may request a review of the decision taken pursuant to section 14105. (§ 14105.5, subd. (a).) “The review shall include an examination of the hearing report, documentary evidence, and findings.” (Id., subd. (b).)^[9] Following the review, the DMV is required to mail a written notice of its decision to the involved person. (Id., subd. (c).) As with the decision following the administrative hearing, the decision of review “may be modified at any time after issuance to correct mistakes or clerical errors.” (Id., subd. (d), italics added.)

“Following the mailing of the notice of the department’s decision pursuant to Section 14105.5, the department, at its own option or upon the request of the person whose privilege of driving is in question, may reopen the question, take further evidence, or change or set aside any order previously made.” (§ 14106.)

Here the DMV reopened the question of probable cause while its review was pending and prior to mailing notice of its review decision. Respondent argues that the term “decision” in section 14106 includes the DMV’s determination that clarification of the issue of probable cause was necessary.

We disagree. Section 14106 clearly states that it applies after the DMV mails notice of its “decision pursuant to Section 14105.5 . . . .” As stated above, that section governs the review of its decision following the administrative hearing. Therefore, strictly speaking, section 14106 does not authorize the DMV to reopen a question until after it has completed its review and mailed notice of its decision. That is not what occurred here. Nevertheless, because no prejudice resulted, we find that reopening the question of probable cause while review was pending was harmless error. (Cal. Const., art. VI, § 13; Leal v. Gourley (2002) 100 Cal.App.4th 963, 968.)

Since the DMV is authorized to reopen the matter, take further evidence, or change any prior order after it issues its review decision (§ 14106), the DMV could have issued a decision vacating the suspension order for lack of probable cause to effect a traffic stop and then reopened the case pursuant to section 14016. By reopening the question of probable cause before it issued its decision on review, the DMV merely altered the chronology of its statutorily authorized procedures and in so doing, saved itself the time and effort involved in issuing a decision that was destined to be set aside.

Moreover, the DMV had authority to modify the hearing officer’s decision “at any time after issuance to correct mistakes or clerical errors.” (§ 14105, subd. (a).) The Vehicle Code does not define the term “clerical errors.” However, Black’s Law Dictionary (7th ed. 1999) p. 563), cited by the Attorney General, defines it as “[a]n error resulting from a minor mistake or inadvertence, esp[ecially] in writing or copying something on the record, and not from judicial reasoning or determination.” Included among the examples given is the omission of an appendix from a document. (Ibid.)

That is essentially what happened here. The error resulted from a minor mistake of a clerical nature, the omission of Officer Wright’s statement from Officer Mayo’s report. As the trial court found, the additional evidence heard by the DMV at the second hearing, namely Officer Wright’s statement of probable cause to stop Rogers, was mistakenly omitted from the record of the first hearing. His statement was expressly referenced as an attachment on page four of Officer Mayo’s investigation report, it was prepared by Officer Wright at the same time Officer Mayo prepared his investigation report and is paginated page 5 of 5, which is the logical page number for the attachment to Officer Mayo’s four-page report. Thus, the trial court properly found the attachment was mistakenly omitted from the record of the first hearing and is the type of evidence the DMV could have considered at a hearing held pursuant to section 14106.

Rogers argues however, that it would be foolish to request departmental review because it opens the door for the DMV to introduce additional evidence that would be inadmissible had she sought immediate judicial review. She reasons that by upholding the department’s actions, drivers will no longer request departmental review and it will cease to be a viable option. We disagree.

The Vehicle Code provides alternate procedures for reviewing a hearing officer’s decision. (Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209, 1215.) Under one procedure, the driver may seek immediate judicial review of the hearing officer’s decision. (§ 13559, subd. (a).) Under the other procedure, the driver may first seek independent departmental review of the decision (§ 14105.5, subd. (a)) and then seek judicial review of the department’s final decision. (§ 14401, Code Civ. Proc., § 1094.5.)

Administrative review under section 14105.5 provides a more timely and cost effective procedure for reviewing the hearing officer’s decision, thereby providing a speedy remedy to guard against the erroneous suspension of a driver’s license. The decision to seek one avenue of review rather than the other will turn on the nature, seriousness, and complexity of the claimed error, and possibly the size of one’s budget. If it is one of statutory or constitutional dimension, direct judicial review may be more appropriate. If the error is one of clerical error, simple mistake, or clear evidentiary insufficiency, departmental review may be the more appropriate forum.

The legislative policy behind the statutory scheme governing administrative per se hearings for driver’s license suspension orders supports our conclusion. (Lake v. Reed, supra, 16 Cal.4th at p. 454.) As the Supreme Court explained, “the administrative per se laws were deemed necessary due to the time lag that often occurs between an arrest and a conviction for driving while intoxicated or with a prohibited BAC. During this interim period, arrestees who could eventually be convicted of an intoxication-related driving offense were permitted to continue driving and, possibly, endangering the public thereby.” (Ibid.) The Supreme Court therefore found that “‘[t]he express legislative purposes of the administrative suspension procedure are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions. [Citations.]’” (Ibid., quoting Gikas v. Zolin (1993) 6 Cal.4th 841, 847.)

Rogers was arrested for driving with a BAC of .20 and she does not dispute the accuracy of that finding nor does she claim the administrative process was delayed. Given her extreme BAC and her driving record, reversing her suspension order would clearly defeat the Legislature’s intent to provide safety to other drivers on the highways. Moreover, the DMV’s decision to reopen the hearing while review was pending provided a more timely final decision than if it had rendered its review decision before reopening the matter.

Rogers argues however that the evidence admissible at a hearing held pursuant to section 14106 is more limited than that admissible at an administrative per se hearing. We disagree. Section 14107.4 governs evidence at administrative hearings before the Board. It states in pertinent part that “[a]t any hearing, the department shall consider its official records and may receive sworn testimony.” (Lake v. Reed, supra, 16 Cal.4th at p. 458.) However, section 14104.7 does not circumscribe “the entire universe of permissible evidence that may be adduced at an administrative per se review hearing.” (Id. at p. 460, fn. omitted.) Evidence not addressed in that section is governed by the default provision of section 14112,^[10] which references Government Code section 11513, subdivision (c) of the Administrative Procedures Act (APA). (Lake v. Reed, supra, 16 Cal.4th at p. 460.)

Government Code section 11513, subdivision (c) states that “[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, 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 court in Lake v. Reed therefore held that a police officer’s unsworn report constitutes the sort of evidence described in Government Code section 11513. (16 Cal.4th at pp. 460-461.)

Thus, Officer Wright’s statement of probable cause would have been admissible in the administrative per se hearing had it in fact been attached to Officer Mayo’s report. It also would have been admissible at a reopened hearing held pursuant to section 14106, which authorizes the DMV to “take further evidence . . . .” Since section 14106 does not by its terms limit the type of evidence that may be heard, the question defaults to section 14112 as to the type of evidence admissible at that hearing. We therefore conclude the DMV may take and consider the same type of evidence at a section 14106 hearing as it may hear in an administrative per se hearing.

Accordingly, we conclude the DMV’s procedural error in reopening the matter to receive additional evidence while review was pending was harmless error.

DISPOSITION

The judgment is affirmed. The Department of Motor Vehicles is awarded its costs on appeal. (Cal. Rules of Court, rule 27, subd. (a).)

BLEASE , Acting P. J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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^[1] All further section references are to the Vehicle Code unless otherwise specified.

^[2] At the hearing, the DMV had the burden of proving by a preponderance of the evidence that (1) the officer had reasonable cause to believe Rogers had been driving; (2) Rogers was lawfully arrested; and (3) Rogers was driving with a .08 percent blood alcohol concentration or higher. (§§ 13557, subd. (b)(2), 23152, subd. (b); Lake v. Reed (1997) 16 Cal.4th 448, 456.)

^[3] The documents were the Age 21 and Older Officer’s Statement, the Age 21 and Older Administrative Per Se Suspension/Revocation Order and Temporary License, the Driving Under the Influence Arrest Investigation Report, The Intoxilyzer Breath Test Card, and Rogers’s Driving Record.

^[4] This is technically a Code of Civil Procedure section 1085 proceeding.

^[5] This report indicates it was prepared by S.B. Wright on July 4, 2004, as page 5 of 5, was requested by the DMV on December 28, 2004, and received on January 3, 2005.

^[6] Officer Wright’s report indicates in relevant part that he was on duty in a marked CHP unit on July 4, 2004, at approximately 10:15 p.m. when he heard a CHP dispatch put out a report of a possible DUI driver in a white Toyota, California license 4XGR983, driving westbound from Newcastle Road. The dispatch advised that the vehicle was using two lanes and driving with varying speeds of 50 miles per hour to 70 miles per hour. Officer Wright waited on the side of the freeway for a few minutes and then observed a white sedan go by in the number two lane ahead of other traffic. He pulled out and accelerated to catch up and observed that the vehicle was straddling the number three lane and then back to the number two lane at approximately 60 miles per hour. The other cars were keeping their distance behind the vehicle. He saw that the license plate was the same as the one broadcast and advised the dispatcher he was behind the vehicle. He followed the vehicle towards the Rocklin Road exit and turned on his lights for an enforcement stop. The vehicle slowed, exited the freeway, and pulled over on Rocklin Road as directed. When Officer Wright advised Rogers, who was the driver, that she had been observed using two lanes, she replied in slurred speech that she was okay and unaware of any bad driving. After smelling the odor of alcohol on her breath and obtaining her license, Officer Wright requested a patrol unit to respond to evaluate Rogers for driving under the influence. Officers Hall and Mayo responded and Officer Mayo handled the investigation to its conclusion.

^[7] None of the parties on appeal raise a question about the propriety of this action nor will we.

^[8] Rogers makes no claim that the showing of probable cause at the second hearing was insufficient nor does she claim Officer Mayo lacked reasonable cause to believe she was driving or that she was driving with a BAC of .20 percent.

^[9] The Notification of Findings and Decision advises the licensee of her appeal rights as follows: “You are entitled to a departmental review of this decision. A request for the departmental review does not stay the action. The review shall be limited to an examination of these findings and determination, and any documentary evidence submitted at the hearing. It will not include a personal interview nor a review of evidence not presented at the hearing. To have this review, you must submit your written request with $120 for any action taken pursuant to § 13353 VC or § 13352.2 VC to the address shown above within 15 days from the date shown below.”

^[10] Section 14112, subdivision (a) states in pertinent part, that “[a]ll matters in a hearing not covered by this chapter shall be governed, as far as applicable, by Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.”