California DMV Caselaw

Daw v. DMV

Mary Lou DAW, Petitioner and Respondent,
v.
DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLES, Respondent and Appellant.

No. A098115.
(Mendocino County Super. Ct. No. MCTM CRTR 01-42502).

Nov. 13, 2002.

Motorist sought writ of mandate directing the Department of Motor Vehicles to restore her driving privileges, after her license was suspended for driving under influence of alcohol (DUI). The Superior Court, Mendocino County, No. MCTM CRTR 01-42502, granted the writ. Department appealed. The Court of Appeal, Gemello, J., held that: (1) hearsay statements in arresting officer's sworn statement were admissible in license suspension hearing to supplement or explain other evidence, and (2) arresting officer's unsworn hearsay reports were admissible in license suspension hearing under exceptions to the hearsay rule.
Reversed and remanded.

West Headnotes
[1] KeyCite Notes

48A Automobiles
48AIV License and Regulation of Chauffeurs or Operators
48Ak144 Suspension or Revocation of License
48Ak144.2 Procedure
48Ak144.2(9) Evidence
48Ak144.2(9.7) k. Admissibility. Most Cited Cases
(Formerly 48Ak144.2(9.1))

Hearsay statements in arresting officer's sworn statement were admissible in license suspension hearing to supplement or explain other evidence relating to whether motorist was driving under the influence of alcohol (DUI); a report of a traffic collision and a witness's identification of motorist as the driver of the car were hearsay statements not subject to exceptions, and could be used only to supplement or explain other evidence. West's Ann.Cal.Vehicle Code §14104.7, 23152(a); West's Ann.Cal.Gov. Code §11513(d); West's Ann.Cal.Evid. Code §1200.

[2] KeyCite Notes

Arresting officer's unsworn hearsay reports were admissible in license suspension hearing under exceptions to the hearsay rule, as the reports were public employee records and motorist's party admission offered to show that the officer had reasonable cause to arrest motorist for driving under the influence of alcohol (DUI); officer wrote the report within the scope of his duty as a public employee, and motorist had told officer that she was driving the car when it went into a ditch. West's Ann.Cal.Vehicle Code §14104.7, 23152(a); West's Ann.Cal.Gov. Code §11513(d); West's Ann.Cal.Evid. Code §1200, 1280.

GEMELLO, J.
*1 The Department of Motor Vehicles suspended Mary Lou Daw's driver's license after she was arrested for driving under the influence of alcohol. The trial court granted an alternative writ of mandate directing the DMV to restore her driving privileges, on the basis that the administrative hearing officer's decision relied on evidence that was not admissible. We reverse the judgment and hold that (1) the hearsay statements in the arresting officer's sworn statement were admissible to supplement or explain other evidence, and (2) the arresting officer's unsworn reports were admissible to show that the officer had reasonable cause to arrest Daw for driving under the influence of alcohol.

Facts and Procedural Background

On February 22, 2001, Highway Patrol officer D.E. Ray responded to a report of a solo vehicle accident on State Route 1 in an unincorporated area of Mendocino County. When Officer Ray arrived on the scene at approximately 12:35 p.m., a car was in the drainage culvert next to the northbound side of the roadway. Mary Lou Daw was seated behind the wheel, and Officer Ray observed that Daw had red, glassy eyes and that her speech was slurred. A witness stated that he had been driving behind Daw's car and had observed her driving, weaving back and forth until she swerved off the edge of the road into the drainage culvert.

Daw admitted she had been driving the car. Officer Ray administered field sobriety tests, which Daw failed. Believing that Daw was driving under the influence, Officer Ray arrested her for violating Vehicle Code section 23152, subdivision (a).FN1 Her blood alcohol level was 0.18 percent and 0.19 percent on two breath tests administered by the officer. The officer confiscated Daw's license and issued an administrative per se suspension notice and temporary driver's license.

FN1. Vehicle Code section 23152 provides: “(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. [¶] (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

On the same date, Officer Ray completed a sworn report on a Department of Motor Vehicles (DMV) form DS 367. The officer recorded that an accident had been reported, that Daw was found seated behind the wheel of the vehicle, that Daw was identified by a witness as the driver, and that Daw appeared intoxicated. The officer also completed two unsworn reports: CHP 202, Driving Under the Influence Arrest/Investigation Report (the arrest report), and CHP 555, Traffic Collision Report (the accident report). The unsworn reports reflected Daw's admission to Officer Ray that she was driving the car. All three of the reports were transmitted to the DMV.

The Administrat ive Hearing

Daw requested an administrative hearing before a DMV hearing officer to challenge the license suspension. The DMV submitted the DS 367 and the unsworn arrest and accident reports. The only direct evidence in the DS 367 that Daw was driving was a hearsay witness report; the unsworn reports both contained Daw's admission that she was driving. Daw objected to the hearsay in the sworn DS 367 and to the unsworn accident and arrest reports. The hearing officer admitted all three of the reports, and they provided the basis for the written decision that a preponderance of the evidence supported a finding that Daw was driving a motor vehicle while she had a blood alcohol content of 0.08 percent or more. The DMV suspended Daw's driver's license for four months.

Superior Court Proceedings

*2 Daw filed a petition for alternative writ of mandamus in the Mendocino County Superior Court. “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.” ‘ “ ( Lake v. Reed (1997) 16 Cal.4th 448, 456, 65 Cal.Rptr.2d 860, 940 P.2d 311 ( Lake ).) The trial court found that the administrative hearing officer's decision was not supported by competent, admissible evidence because (1) the arresting officer's sworn report did not reflect the officer's personal observation of Daw driving the car and thus did not support a finding that Daw was driving, and (2) the officer's unsworn reports were inadmissible under Solovij v. Gourley (2001) 87 Cal.App.4th 1229, 105 Cal.Rptr.2d 278. The trial court granted the petition and entered judgment in Daw's favor. The DMV timely appealed.

Discussion

On appeal following a trial court's decision on a petition for a writ of mandate, the reviewing court “ ‘need only review the record to determine whether the trial court's findings are supported by substantial evidence.’ “ ( Lake, supra, 16 Cal.4th at p. 457, 65 Cal.Rptr.2d 860, 940 P.2d 311, citing Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10, 93 Cal.Rptr. 234, 481 P.2d 242; Gananian v. Zolin (1995) 33 Cal.App.4th 634, 638, 39 Cal.Rptr.2d 384.) However, we review questions of law independently. ( Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 234, 54 Cal.Rptr.2d 634.) Where, as here, the facts are undisputed and the issue involves statutory interpretation, we exercise our independent judgment and review the matter de novo. ( International Federation of Professional & Technical Engineers v. City and County of San Francisco (1999) 76 Cal.App.4th 213, 224, 90 Cal.Rptr.2d 186.)

This case arises under a statutory procedure known as the “administrative per se” law, under which a person arrested for driving under the influence who is determined to have more than 0.08 percent blood alcohol content must have his or her driving privileges suspended, whether or not the person is convicted of a criminal offense. (Veh.Code, §§ 13353.2 et seq.FN2; Lake, supra, 16 Cal.4th at p. 454, 65 Cal.Rptr.2d 860, 940 P.2d 311.FN3) A person arrested and determined to have the requisite blood alcohol level will be served with a notice of the order of suspension. ( §§ 13353.2, subd. (b), 13382, subd. (a).) After serving the notice, the DMV automatically conducts an internal review of the suspension. (§ 13557, subd. (a).) The driver may also request a contested administrative hearing, in which case the DMV may dispense with the automatic review. (§§ 13558, subd. (a), 13557, subd. (e); Lake, supra, 16 Cal.4th at p. 456, 65 Cal.Rptr.2d 860, 940 P.2d 311.) At a contested hearing the DMV must prove by a preponderance of the evidence that the arresting officer had reasonable cause to believe the person was driving, that the person was placed under arrest, and that the person had 0.08 percent or more alcohol content in his or her blood. (§§ 13557, subds.(b)(1) & (b)(2)(A)-(C), 13558, subd. (c)(2); Lake, supra, 16 Cal.4th at p. 456, 65 Cal.Rptr.2d 860, 940 P.2d 311.)

FN2. Statutory references are to the Vehicle Code unless otherwise stated.

FN3. The Supreme Court in Lake sets out the statutory scheme at length. We do not repeat it here. (See Lake, supra, 16 Cal.4th at pp. 454-456, 65 Cal.Rptr.2d 860, 940 P.2d 311.)

*3 In this case, the hearing officer found that the DMV had met its burden, based on the sworn DS 367 and the unsworn reports. The issue before us is what evidence was admissible at the contested hearing to support the finding that the officer had reasonable cause to arrest Daw and that the license suspension was justified.

I. Sworn Reports

At the contested hearing, Daw objected to portions of the sworn DS 367 that she contended are hearsay: the statement that an accident had been reported, and the witness's statement that Daw was driving the car. The hearing officer admitted the form in its entirety. At the hearing on the writ, the trial court found that the hearsay was not subject to any exception and thus was inadmissible to support a finding that respondent was lawfully arrested. On appeal, the DMV contends the trial court erred. We conclude the trial court was correct that the hearsay could not itself support a finding of reasonable cause. However, the hearsay evidence was admissible to supplement or explain other evidence.

Section 14104.7 provides that at a contested hearing, the DMV “shall consider its official records....” (§ 14104.7.) The sworn DS 367 itself was admissible under section 14104.7 because it was an official DMV record. For any evidentiary issue not covered by the Vehicle Code, we are directed to the provisions of the Government Code pertaining to administrative hearings generally. (§ 14112; Lake, supra, 16 Cal.4th at p. 458, 65 Cal.Rptr.2d 860, 940 P.2d 311.) The sworn report contained hearsay, which the Government Code provides is only admissible in an administrative hearing under two circumstances.FN4 First, hearsay that is not subject to an exception is admissible to supplement or explain other evidence, but cannot alone support a finding of reasonable cause. ( Gov.Code, § 11513, subd. (d).) Second, hearsay that is subject to an exception so that it would be admissible over objection in a civil matter is admissible to support a finding of reasonable cause. ( § 11513, subd. (d).)

FN4. Government Code section 11513 provides in relevant part: “(c) The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. 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 ... any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. [¶] (d) 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 civil actions. An objection is timely if made before submission of the case or on reconsideration.”

[1] The report of a traffic collision and the witness's identification of Daw as the driver of the car were hearsay statements not subject to exceptions. Thus, they could be used only to supplement or explain other evidence. (Evid.Code, § 1200; Gov.Code, § 15113, subd. (d); Lake, supra, 16 Cal.4th at p. 459, 65 Cal.Rptr.2d 860, 940 P.2d 311.) Because we hold, post, that the unsworn reports were admissible, the hearsay statements in the DS 367 were also admissible to supplement or explain the unsworn reports. We do not reach the question whether in this case the DS 367 standing alone is sufficient to support a finding of reasonable cause, because Daw waived this issue at oral argument.FN5

FN5. Further, the DMV does not contend that the witness's hearsay statement that Daw was identified as the driver is admissible to supplement the officer's statement that Daw was found seated behind the wheel. We leave that question for another day.

II. The Unsworn Reports Were Admissible

A. Lake v. Reed, Solovij v. Gourley, and MacDonald v. Gourley

Each party claims to present the governing case authority on the admissibility of the unsworn reports. The DMV relies on Lake v. Reed to argue that the reports were admissible. In Lake, under facts similar to those in the case before us, the court held that an unsworn report by a nonarresting officer was admissible in an administrative per se hearing. ( Lake, supra, 16 Cal.4th at pp. 460-461, 65 Cal.Rptr.2d 860, 940 P.2d 311.) Hearsay statements of witnesses in the arresting officer's sworn report were not sufficient, standing alone, to support a finding that the petitioner was driving. ( Id. at p. 459, 65 Cal.Rptr.2d 860, 940 P.2d 311; § 11513, subd. (d).) The Supreme Court considered whether the nonarresting officer's unsworn report that the petitioner admitted to driving was admissible. If it was, the otherwise inadmissible hearsay in the arresting officer's sworn report could be used to “supplement or explain” that admission under Government Code section 11513, subdivision (d). ( Lake, supra, 16 Cal.4th at p. 459, 65 Cal.Rptr.2d 860, 940 P.2d 311.)

*4 The Supreme Court reasoned that the statutory requirement that the arresting officer file a sworn report did not prevent the DMV from considering unsworn reports of a nonarresting officer. The administrative per se scheme “contemplates the DMV will consider evidence other than the sworn section 23158.2(a) report filed by the arresting officer, for section 13557, subdivision (a), states that the DMV, when conducting its automatic internal review of a license suspension, ‘shall consider the sworn report submitted by the peace officer pursuant to Section ... 23158.2 and any other evidence accompanying the report.’ “ ( Lake, supra, 16 Cal.4th at p. 459, 65 Cal.Rptr.2d 860, 940 P.2d 311.FN6) The court explicitly applied its holding to contested review hearings as well as the internal review. ( Id. at p. 460, 65 Cal.Rptr.2d 860, 940 P.2d 311.) The court rejected the argument that permitting consideration of the nonarresting officer's unsworn report improperly evades the requirement that the arresting officer file a sworn report. “So long as the arresting officer files a sworn report, we see nothing in section 23158.2 that specifically precludes consideration of other, unsworn police reports.” ( Id. at pp. 459-460, 65 Cal.Rptr.2d 860, 940 P.2d 311.)

FN6. Former section 23158.2, referred to in Lake, was replaced by section 13380 in 1999. (Stats.1998, ch. 118, § 30.5 (SB 1186) operative July 1, 1999; Stats.1998, ch. 118, § 3.24 (SB 1186), operative July 1, 1999.)

Daw relies on Solovij v. Gourley to distinguish Lake. In Solovij, the Second District, Division Six, affirmed the trial court's grant of an alternative writ on the basis that the unsworn report of an arresting officer was inadmissible in a contested hearing. ( Solovij, supra, 87 Cal.App.4th at p. 1234, 105 Cal.Rptr.2d 278.) The arresting officer's sworn report contained no details about his reason for stopping the petitioner, while his unsworn report stated that the car was speeding and weaving within its lane. ( Id. at pp. 1231-1232, 105 Cal.Rptr.2d 278.)

The Solovij court found that section 13380 requires the arresting officer to file a sworn report containing “all information relevant to the enforcement action” and the officer had not done so. The facts necessary to support the initial stop could not be considered because they were only recited in the arresting officer's unsworn report. ( Solovij, supra, 87 Cal.App.4th at p. 1234, 105 Cal.Rptr.2d 278.) The court distinguished Lake on the basis that Lake considered the unsworn report of a nonarresting officer, whereas in Solovij the issue was whether the arresting officer's unsworn report could be considered. ( Ibid.)

After briefing was complete in the matter before us, the Second District, Division Three, issued its decision in MacDonald v. Gourley (2002) 102 Cal.App.4th 568, 125 Cal.Rptr.2d 607. The court considered Solovij to be at odds with Lake and with the statutory scheme in general, and held instead that an arresting officer's unsworn report was admissible under Lake. We agree. In MacDonald, as in the instant case, the arresting officer was the only officer involved in the traffic stop. The arresting officer submitted both a sworn and an unsworn report, and the hearing officer admitted both into evidence. ( Id. at p. 574, 125 Cal.Rptr.2d 607.) The trial court granted a petition for an alternative writ of mandate, relying on Solovij for its finding that the sworn report did not contain all relevant information to support the detention and that the unsworn report was inadmissible. ( Id. at pp. 574-575, 125 Cal.Rptr.2d 607.) Division Three reversed.

B. The Unsworn Reports Are Admissible Under the Vehicle and Government Codes

*5 In the context of the cases discussed above, we consider the admissibility of the unsworn reports under the administrative per se and related Government Code statutes. Vehicle Code section 14104.7 provides that in a contested hearing “the department shall consider its official records and may receive sworn testimony.” The unsworn reports here are not official records under section 14104.7 because (1) no statute requires that they be filed; (2) they are not on approved DMV forms; and (3) they are not sworn. ( Lake, supra, 16 Cal.4th at p. 460, 65 Cal.Rptr.2d 860, 940 P.2d 311.) However, section 14104.7 does not address “the entire universe of permissible evidence that may be adduced at an administrative per se hearing.” ( Ibid.) We turn again to Government Code section 11513, which permits the introduction of any evidence that is “the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.” (Gov.Code, § 11513, subd. (c).) A police officer's unsworn report is that sort of evidence. ( Lake, supra, at p. 461, 65 Cal.Rptr.2d 860, 940 P.2d 311.)

Daw contends that this case does not fall under Lake's holding, relying on the distinction made by the Solovij court between the unsworn reports of an arresting and a nonarresting officer. To be clear, Lake does not specifically address the distinction between arresting and nonarresting officers. The court did not hold one way or the other whether “other unsworn reports” must be filed by a nonarresting officer or may be filed by any officer. However, in this case, the arresting officer complied with section 13380 by forwarding the sworn report containing the appropriate information to the DMV and preparing and submitting the two unsworn reports. The Lake court held that “[s]o long as the arresting officer files a sworn report, we see nothing in section 23158.2 that specifically precludes consideration of other, unsworn reports.” ( Lake, supra, 16 Cal.4th at p. 460, 65 Cal.Rptr.2d 860, 940 P.2d 311.) In dicta, the Supreme Court noted that the DMV could consider “the unsworn report of any officer who, within the scope of the officer's official duty, wrote a report [meeting the requirements of Evidence Code section 1280].” ( Id. at p. 462, 65 Cal.Rptr.2d 860, 940 P.2d 311 (emphasis added).)

The Solovij court also does not distinguish, or even discuss, the holding in Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 27 Cal.Rptr.2d 712, which is directly on point. In Jackson, the Fourth District held that the arresting officer's unsworn report was admissible in a license suspension proceeding. ( Id. at p. 738, 27 Cal.Rptr.2d 712.) Exactly as in the case before us, the officer's sworn report in Jackson indicated he did not see the arrestee driving; the accompanying unsworn report contained the arrestee's hearsay admission that he was driving. The court held the unsworn report was admissible as a public employee record and the arrestee's hearsay statements were admissible under the exception for party admissions. ( Id. at pp. 738-739, 740, 27 Cal.Rptr.2d 712.) FN7

FN7. Daw contends that Jackson does not apply because the court found that the petitioner waived any foundational objection to the unsworn report when he failed to raise the issue at the hearing. However, the court in Jackson proceeded to discuss and render a holding on the report's admissibility, and that holding is persuasive here.

*6 [2] The same analysis applies in the instant case. The unsworn reports are hearsay because they consist of the arresting officer's out-of-court statements offered to prove the truth of the matter asserted (that Daw told the officer she was driving the car). (Evid .Code, § 1200.) Nonetheless, the reports would be admissible over objection in a civil action because they come under the public employee records exception to the hearsay rule. “[The officer] wrote the report within the scope of his duty as a public employee; the report was made near the time of the event in question; and the source of the information contained in the report-i.e., [the officer]-and the method and time of preparation ‘were such as to indicate its trustworthiness.’ (Evid.Code, § 1280.)” ( Lake, supra, 16 Cal.4th at p. 461, 65 Cal.Rptr.2d 860, 940 P.2d 311; see also Gananian v. Zolin, supra, 33 Cal.App.4th at pp. 640-641, 39 Cal.Rptr.2d 384; Jackson v. Department of Motor Vehicles, supra, 22 Cal.App.4th at pp. 737-738, 27 Cal.Rptr.2d 712.)

Daw's statement that she was driving, contained in both of the unsworn reports, is also hearsay. However, as a party admission, the statement is excepted from the hearsay rule. ( Lake, supra, 16 Cal.4th at p. 461, 65 Cal.Rptr.2d 860, 940 P.2d 311; Evid.Code, § 1220.)

C. Admission of the Unsworn Reports Is Consistent with the Statutory Purpose

The Supreme Court in Lake gave a broad reading to the evidentiary rules. “[T]he statutory scheme contemplates the DMV will consider evidence other than the sworn section 23158.2(a) report filed by the arresting officer ... .” ( Lake, supra, 16 Cal.4th at p. 459, 65 Cal.Rptr.2d 860, 940 P.2d 311.) “[I]f anything ... even more evidence will be available in a contested review hearing as compared to the department's automatic internal review process.” ( Id. at p. 460, 65 Cal.Rptr.2d 860, 940 P.2d 311 .)

Under section 13380, the arresting officer “shall immediately forward” a sworn report containing all relevant information to the DMV. The word “shall” is ordinarily deemed mandatory. However, the term “mandatory” does not refer to whether a statute is permissive or obligatory, but rather to whether the failure to comply results in “invalidating the governmental action to which the procedural requirement relates.” ( California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145, 43 Cal.Rptr.2d 693, 899 P.2d 79.) If the failure to comply does not invalidate the action, the statute is considered directory. ( Ibid.)

Since section 13380 provides no penalty for the failure to comply with its terms, the statute is directory under California Correctional Peace Officers Assn. We therefore conclude that the statutory requirement that a sworn report shall include all relevant information is permissive, and it is not inconsistent with the statute to admit unsworn evidence along with the sworn report. (See also Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1927-1928, 56 Cal.Rptr.2d 573 [laboratory results were properly considered by the DMV hearing officer even though they were untimely; time requirement was directory, not mandatory, because no penalty attached for failure to comply, there was no contrary intent expressed by the Legislature, and to hold otherwise would defeat the underlying purposes of the statutory scheme, the goals of which “are entitled to preference over the interests of persons facing suspension of their driving privileges”].)

*7 The administrative per se laws protect the public by expediting the process of suspending the driver's licenses of those who drive drunk. “One aspect of this accelerated procedure is a slight relaxation of the rules of evidence applicable to an administrative per se review hearing.” ( Lake, supra, 16 Cal.4th at p. 462, 65 Cal.Rptr.2d 860, 940 P.2d 311.) Allowing an arresting officer's unsworn report to be considered as evidence fits within this framework. Moreover, the “slight relaxation” of evidentiary rules does not prejudice the arrestee given the other protections provided by the statutory scheme. Live testimony at the hearing must be sworn; subpoena power is available to the petitioner as to both witnesses and documents; administrative and judicial review are available and if criminal charges are not filed or are dismissed for insufficiency of evidence the petitioner has another opportunity for reevaluation of the license suspension. “In light of these procedural protections, we find the threat of an erroneous administrative determination minimal.” ( Lake, supra, 16 Cal.4th at pp. 462-463, 65 Cal.Rptr.2d 860, 940 P.2d 311; see also MacDonald v. Gourley, supra, 102 Cal.App.4th at p. 576, 125 Cal.Rptr.2d 607.)

III. Conclusion

The DMV hearing officer properly considered the entire sworn DS 367 and the unsworn reports. Based on our independent review we conclude that Daw's admissions contained in the unsworn reports, supplemented by the DS 367, were sufficient to support the hearing officer's conclusion there was reasonable cause to believe Daw was driving and to sustain the license suspension. FN8

FN8. The Attorney General urges us to adopt the observation of the MacDonald court set forth in its footnote 8 regarding the mere two and one-half blank lines on the DMV's 367 for the officer to set forth “in detail the facts and circumstances that led to the stop or contact.” ( MacDonald v. Gourley, supra, 102 Cal.App.4th at p. 583, fn. 8, 125 Cal.Rptr.2d 607.) We agree with the MacDonald court that this minimal space is problematic.

Disposition

The judgment on the alternative writ of mandate is reversed. The matter is remanded with instructions to enter judgment denying the writ petition and reinstating the DMV's suspension of Daw's license.

We concur. JONES, P.J., and SIMONS, J.