Filed 5/25/22 Cook v. Dept. of Motor Vehicles CA4/1

(unmodified opinion attached)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:

It is ordered that the opinion filed herein on May 9, 2022, be modified as follows:

On page 11, after the last sentence in the last paragraph (ending “drove under the influence”), add as footnote 7 the following footnote:

For the first time in a petition for rehearing, Cook argues that his right to due process was violated during the administrative hearing, and he seeks leave to raise that issue in this administrative mandamus proceeding. Cook explains that his due process argument is based on the recent opinion in California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (California DUI Lawyers 2022), which held, in the context of a taxpayer action, that the DMV’s administrative per se hearing structure violates the California and federal due process rights of drivers by combining the advocacy and adjudicatory roles into a single DMV employee. A party generally may not raise a new issue for the first time on appeal. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603; Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143.) We conclude that Cook has waived his right to pursue the issue in this litigation by failing to raise it earlier. Although California DUI Lawyers 2022 was only recently filed, the litigation leading to that opinion has been ongoing. A previous appellate decision was issued in 2018 prior to Cook’s 2020 administrative hearing (California DUI Lawyers Assn. v. Department of Motor Vehicles (2018) 20 Cal.App.5th 1247), and the litigation was first commenced in 2014. (Id. at p. 1252.) Cook accordingly should have been on notice of a potential due process challenge, and he waived his right to pursue it by not raising it in the trial court when he filed his petition for writ of mandate.

There is no change in the judgment.

Plaintiff and appellant’s petition for rehearing is denied.

McCONNELL, P. J.

Copies to: All parties

Filed 5/9/22 Cook v. Dept. of Motor Vehicles CA4/1 (unmodified opinion)

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

APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed.

Paul H. Neuharth and Charles M. Sevilla for Plaintiff and Appellant.

Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Jodi L. Cleesattle and Jennifer L. Santa Maria, Deputy Attorneys General, for Defendant and Respondent.

Robert G. Cook appeals from the judgment denying his petition for writ of mandate, in which he sought an order requiring the California Department of Motor Vehicles (the DMV) to vacate and set aside its order suspending Cook’s driver’s license after Cook refused to submit to a chemical test to determine his blood-alcohol level. Cook contends that the hearing officer’s decision confirming the license suspension must be set aside because the hearing officer improperly relied on hearsay evidence to support a finding that the arresting officer had reasonable cause to suspect that Cook had unlawfully driven a vehicle under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a).[1]

We conclude that the hearing officer relied on admissible evidence in finding that the arresting officer had reasonable cause to suspect that Cook had driven under the influence of alcohol. Accordingly, we affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The primary factual background for this matter is set forth in two reports written by California Highway Patrol Officer K. King, namely, a sworn “DS-367” report to the DMV[2] and an “Arrest-Investigation Report.”

As described in those documents, at 1:28 a.m. on August 18, 2019, Officer King was notified by dispatch that security guards from a casino had requested that officers respond because a driver of a white Jeep was driving under the influence. While Officer King was en route, dispatch notified him that the Jeep’s driver and a female passenger had subsequently parked the Jeep and walked away eastbound on SR-20.[3] Officer King located Cook and his wife while they were walking at a gas station that was in an eastward direction from the casino. Officer King immediately noticed that both Cook and his wife were extremely intoxicated. They both smelled of an alcoholic beverage, were unsteady on their feet, and had red and watery eyes. Cook had slowed and slurred speech. When Officer King contacted the Cooks, they initially refused to identify themselves, and Cook then repeatedly denied being associated with a white Jeep or having driven any vehicle. He claimed that he had walked to the gas station and was on his way to his “camp.”

Officer King’s partner, Officer Irwin, photographed the Cooks and drove to the casino to interview witnesses. Officer Irwin then informed Officer King that two casino security guards had confirmed that Cook was the driver of the white Jeep and that Cook’s wife was the passenger. The Cooks had been cut off from alcohol at the casino because of excessive intoxication, and the security guards witnessed Cook driving after they told him not to drive.

Officer King decided to conduct a driving-under-the-influence investigation, but Cook refused to answer any preliminary field sobriety test questions or to perform a field sobriety test, stating that Officer King “ ‘didn’t catch him driving.’ ” At approximately 1:56 a.m., Officer King placed Cook under arrest for driving under the influence of alcohol in violation of section 23152, subdivision (a).[4]

Officer King then handcuffed Cook and transported him to the casino. The security guards made an in-person identification of Cook as the driver of the Jeep. Upon investigating the white Jeep parked at the casino, Officer King noted that it belonged to a construction company in San Diego, which is where the Cooks were from. In addition, the Jeep had a construction company logo which matched the logo on Cook’s shirt. Officer Irwin viewed a security video from the casino, and he informed Officer King that the video showed the Cooks driving away in the Jeep before the security guards contacted them.

After being advised by Officer King about the consequences of exercising his right to refuse to take a test to determine his blood-alcohol level, Cook refused to take either a breath or chemical test. Cook was then booked into jail.

As a result of his refusal to take a chemical test to determine his blood-alcohol level, Cook’s driver’s license was suspended. (§ 13353, subd. (a) [one-year license suspension based on a person’s refusal to submit to a chemical test].)

Pursuant to section 13558, Cook requested an administrative hearing to review the suspension. At such a hearing, “If the department determines . . . , by a preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation: (A) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154. (B) The person was placed under arrest . . . . (C) The person refused or failed to complete the chemical test or tests after being requested by a peace officer. (D) . . . [T]he person had been told that his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing.” (§ 13557, subd. (b)(1).)

An administrative hearing was held on January 2, 2020, at which counsel for Cook appeared. The evidence at the hearing included the DS-367 report and the Arrest-Investigation Report. Counsel for Cook filed evidentiary objections, in which he contended that the hearing officer should not consider any information in the DS-367 report and the Arrest-Investigation Report that was derived from statements made by the casino security guards or descriptions by Officer Irwin about what he saw on the security video. Counsel argued that the statements were hearsay, and if they were excluded, there was no evidence to support a finding that Officer King had reasonable cause to believe Cook drove under the influence.

The hearing officer overruled the hearsay objections, and on January 16, 2020, issued a written decision confirming the one-year suspension of Cook’s driver’s license. Relying specifically on the DS-367 report and the Arrest-Investigation Report, the hearing officer found that “Officer King had reasonable cause to believe that [Cook] was driving a motor vehicle while under the influence of alcohol.” The hearing officer also determined that Cook was placed under lawful arrest, was told his driving privilege would be suspended or revoked if he refused to complete the required testing, and refused the required testing.

On January 29, 2020, Cook filed a petition for a writ of mandate in the trial court. (Code Civ. Proc., § 1094.5; § 13559, subd. (a).) Cook sought an order directing the DMV to vacate and set aside the order suspending his driver’s license. As he did at the administrative hearing, counsel for Cook argued that the security guards’ statements about seeing Cook drive the Jeep and Officer Irwin’s description of the security video constituted hearsay, which could not be used to support a finding that Officer King had reasonable cause to believe that Cook drove under the influence of alcohol.

The trial court denied the petition for writ of mandate. It explained, “The weight of the evidence adduced at the administrative hearing supports the DMV’s suspension of driving privileges. . . . It is undisputed that [Cook] was properly admonished regarding the consequences of refusing a blood-alcohol test, and that he failed to consent. The evidence supports the conclusion that Officer King had reasonable cause to believe [Cook] was driving under the influence, and thereafter made a lawful arrest.”

The trial court entered judgment denying the petition for writ of mandate. Cook appeals from the judgment.

II.

DISCUSSION

On appeal, as in the trial court, Cook contends that the hearing officer improperly relied on hearsay evidence to support the finding that Officer King had reasonable cause to believe that Cook drove a vehicle while under the influence. Specifically, he contends that the statements of the casino security guards and Officer Irwin about having viewed Cook driving the Jeep should not have been considered because they are hearsay statements contained within Officer King’s reports.[5] In assessing this argument, we first examine the applicable legal standards.

Under section 23612, subdivision (a)(1)(A), “[a] person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.” The DMV is authorized to suspend the driver’s license of “a person [who] refuses [a law enforcement] officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle” while under the influence. (§ 13353, subd. (a).)

“ ‘In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, “ ‘whether the weight of the evidence supported the administrative decision.’ ” ’ [Citation.] Following the trial court’s denial of the writ, the scope of our review on appeal is limited: ‘[W]e “need only review the record to determine whether the trial court’s findings are supported by substantial evidence.” [Citation.] “ ‘We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.’ ” ’ ” (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1217.)

As we have explained, a hearing officer may confirm a driver’s license suspension for failure to submit to a chemical test if a preponderance of the evidence supports a finding on the following four elements: “(1) the law enforcement officer had ‘reasonable cause to believe that the person had been driving a motor vehicle in violation of [one or more specified vehicle code sections]’; (2) the person ‘was placed under arrest’; (3) the ‘person refused to submit to or did not complete the test or tests after being requested by a peace officer’; and (4) the ‘person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the test[ ] or tests.’ [Citations.] . . . [T]hose four factors are the ‘only’ issues to be resolved at the administrative hearing concerning license suspension or revocation.” (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1131 (Troppman).)

On appeal, Cook challenges only the first of these elements. Specifically, he contends that insufficient admissible evidence at the administrative hearing supported a finding that Officer King had reasonable cause to believe that he drove under the influence.[6] We accordingly turn to the issue of whether properly admitted evidence supported that finding.

As relevant here, Government Code section 11513 describes the evidence that may be admitted in an administrative hearing to challenge a license suspension. (§ 14112 [in DMV license suspension proceedings, unless otherwise specified, hearings shall be governed by Gov. Code, § 11500, et seq.].) Any relevant evidence must 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.” (Gov. Code, § 11513, subd. (c).) “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” (Id., § 11513, subd. (d).)

“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Conversely, an out-of-court statement is not hearsay when it is offered for other purposes, such as its effect on the listener. (See, e.g., People v. Jablonski (2006) 37 Cal.4th 774, 820 [to the extent statement was admitted to show its effect on defendant, the statement was not hearsay].) If a statement is hearsay, it is inadmissible under the Evidence Code unless an exception applies. (Evid. Code, § 1200, subd. (b).)

Case law establishes that extrajudicial statements used to establish an officer’s reasonable cause to believe a person drove under the influence do not function as hearsay statements because they are not offered for the truth of the matter asserted. (Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 132-133 (Cantrell).) In Cantrell, the arresting officer developed reasonable cause to believe that the appellant had been driving under the influence of alcohol based on the statement of a witness who had seen the appellant drive while “weaving in a snake like manner across the center line.” (Id. at pp. 130-131.) Cantrell rejected the appellant’s contention that the witness’s statement, which appeared in the arresting officer’s report, was inadmissible hearsay. (Id. at pp. 132-133.) “[The witness’s] statement was relevant to the issue whether [the arresting officer] had reasonable cause to believe [appellant] had been driving under the influence. To the extent [the witness’s] statement was received on that issue, it was not hearsay because it was not offered to prove the truth of the matter stated, to wit, that [appellant] ‘was weaving in a snake like manner across the center line.’ . . . The question is not whether [appellant] had in fact been driving under the influence, but whether [the arresting officer] ‘had reasonable cause [so] to believe.’ ” (Ibid.; see also Mueller v. Department of Motor Vehicles (1985) 163 Cal.App.3d 681, 685 [in a petition for writ of mandate challenging a license suspension for failure to submit to a blood-alcohol test, witness reports to the arresting officer were admissible to establish that the officer had reasonable cause to believe the defendant drove under the influence].)

Here, as in Cantrell, supra, 23 Cal.App.4th 128, the hearing officer relied on the statements of the casino security guards and Officer Irwin for the non-hearsay purpose of determining whether Officer King had reasonable cause to believe that Cook drove under the influence of alcohol. Accordingly, there is no merit to Cook’s contention that those statements should have been excluded as inadmissible hearsay.

Contrary to statements made in Cook’s appellate briefing, the issue presented is not “whether there was competent evidence of [Cook’s] driving presented at the administrative hearing.” (Italics added.) Whether Cook actually drove would be an issue, for example, if his license suspension was based on a charge of driving under the influence with a prohibited blood-alcohol level. (§ 13353.2.) Here, however, the suspension was based on Cook’s refusal to take a chemical test. Accordingly, the issue presented is whether the officer had reasonable cause to believe that Cook drove under the influence, not whether in fact Cook did so. (§ 13557, subd. (b)(1)(A); Troppman, supra, 40 Cal.4th at p. 1131.) As Cantrell explained, “The arresting officer’s reasonable belief is not to be conflated with the actual fact. If the officer’s belief is reasonable, it matters not that it turns out to be mistaken.” (Cantrell, supra, 23 Cal.App.4th at p. 134, italics added.)

Further, the case law that Cook relies upon is inapposite, as none of it concerns the question presented here, i.e., whether an officer had reasonable cause to believe a person drove under the influence. Instead, those cases concern the question of whether extrajudicial statements were admissible to establish a different issue that was necessary to uphold the license suspension in those cases, namely, the person’s blood-alcohol level (Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 817), or whether the person was actually driving with a prohibited blood-alcohol level (Lake, supra, 16 Cal.4th at p. 459). In those cases, the extrajudicial statements were in fact introduced as hearsay, as they were offered for the truth of the matter (i.e., blood-alcohol level or actually driving with a prohibited blood-alcohol level). However, those factual issues are not presented here. Instead, as we have explained, the statements made by the casino security guards and by Officer Irwin were introduced to show their effect on Officer King, namely to establish that he developed reasonable cause to believe that Cook had been driving under the influence. They were not admitted for the truth of the matter asserted, and thus they were not hearsay.

In sum, we reject Cook’s contention that insufficient admissible evidence supported a finding that Officer King had reasonable cause to believe that Cook drove under the influence.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.

[1] Unless otherwise indicated, all further statutory references are to the Vehicle Code.

[2] “Upon arresting someone for driving under the influence of alcohol or drugs, the arresting officer is required to make a sworn statement to the [DMV] setting out all of the relevant information.” (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 152-153, italics omitted; see also § 13380, subd. (a).)

[3] The incident took place in Lake County, California, near the Robinson Rancheria Casino.

[4] Section 23152, subdivision (a) provides, “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.”

[5] We note that Cook does not challenge the principle that, in general, a law enforcement officer’s reports are admissible in an administrative hearing under the public records exception to the hearsay rule. (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1570; Lake v. Reed (1997) 16 Cal.4th 448, 461 (Lake).) Instead, Cook makes the more specific objection that certain third-party statements within those reports may not be considered because they are hearsay.

[6] Because Cook does not make a challenge to the sufficiency of the evidence supporting the other elements required for a license suspension of someone who refuses to take a chemical test, we do not address them.