August v. Department of Motor Vehicles

• Decision Date: 16 July 1968
• Citation: 70 Cal.Rptr. 172,264 Cal.App.2d 52
• Court: California Court of Appeals Court of Appeals
• Parties: Donald Andrew AUGUST, Petitioner and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, State of California, Respondent and Appellant. Civ. 8799.

Page 172

70 Cal.Rptr. 172

264 Cal.App.2d 52

Donald Andrew AUGUST, Petitioner and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, State of California, Respondent and Appellant.

Civ. 8799.

Court of Appeal, Fourth District, Division 1, California.

July 16, 1968.

[264 Cal.App.2d 54] Thomas C. Lynch, Atty. Gen., and Richard Tanzer, Deputy Atty. Gen., for respondent and appellant.

No appearance for petitioner and respondent.

OPINION

WHELAN, Associate Justice.

Appellant Department of Motor Vehicles (DMV) appeals from a judgment ordering a peremptory writ of mandate to issue that DMV set aside its order suspending a driver's license.

On November 11, 1966, San Diego Police Officer Warren filed a sworn statement, an arrest report, and a supplemental arrest report with DMV pursuant to section 13353, Vehicle Code. ¹ The statement alleged that the officer had probable cause to believe Donald Andrew August (licensee) had been driving a motor vehicle on a public highway while under the influence of intoxicating liquor; that licensee had been informed he had to submit to a chemical test of his blood, breath or urine; and that a refusal to do so would result in a six-month suspension of his driving privilege; and that licensee refused to submit to such a test.

On November 28, 1966, DMV notified licensee that his license would be suspended for six months and that he was entitled to a hearing which would be 'informal' unless he specifically requested a formal hearing. On December 11, 1966, licensee requested a hearing, without specifying that it be a formal one.

On January 18, 1967, an informal hearing was held at which licensee appeared without counsel and testified.

Licensee did not object to the hearing officer's use of the police officer's statement and arrest reports, and did not request an opportunity to cross-examine the arresting officer.

The hearing officer found that (1) licensee had been placed under arrest; (2) the arresting officer acted on reasonable cause; (3) licensee was advised of his driving privilege suspension if he refused to take a chemical test; and (4) licensee refused to submit to the test.

On February 10, 1967, DMV suspended licensee's license for six months. On February 17, 1967, licensee petitioned the superior court for an alternative writ of mandate and temporary restraining order. The petition alleged in part:

'III On or about November 14, 1966, petitioner was charged with the violation of California Vehicle Code 2310A (sic) to which he later plead (sic) guilty in San Diego Municipal Court and was sentenced. The court allowed him to retain his license for purposes of work. * * *

'* * *pur

'V Respondent ordered a hearing for the purpose of obtaining evidence on which to determine whether said charge was true and whether petitioner's said license should be revoked or suspended. Said hearing was held in San Diego, California on January 16, 1967 at the Normal Street Office of the Department of Motor Vehicles before a duly appointed and acting Hearing Officer.

'VI At said hearing, petitioner introduced evidence that he was so intoxicated at the time of the DC 2103 A (sic) offense that he was in a condition rendering him incapable of refusing a chemical test. No other competent evidence was introduced by either party. Respondent may or may not have relied on hearsay reports of the arresting officer, but respondent did not produce the arresting officer and is refusing to produce the arresting officer in such instances at a continued hearing without immediately suspending the license of the petitioner.

'* * *

'VIII Respondent acted arbitrarily and without right by suspending petitioner's license and by reason of fact that the record is insufficient by right of law to support respondent's findings that said charges are true.'

The matter was heard on March 2, 1967. The court heard testimony from licensee and his passenger, received the arresting officer's statement and reports into evidence, and found that licensee was properly arrested and refused to take a chemical test, but concluded that DMV abused its discretion because the complainant officer was not present for cross-examination at the hearing, and issued a peremptory writ of mandate.

PURPORT OF THE TRIAL COURT'S DECISION

The decision of the trial court may be interpreted as holding that the procedures established by section 13353, Vehicle Code, and the existing provisions regarding informal hearings, are deficient as to a constitutional basis of due process unless there be read into them a requirement of confrontation of witnesses physically present, regardless of whether there is in truth a contested issue of fact to be determined at such hearing.

In our opinion, the case at bench is one in which there was not any disputed issue of fact; our observations as to what is required by due process must be viewed in the light of that opinion.

The following declaration, which appears in the opinion of Endler v. Schutzbank, 68 A.C. 160, 176, 65 Cal.Rptr. 297, 308, 436 P.2d 297, 308, illuminates the path of decision in the present case:

'(W)henever governmental action based upon a stigmatizing judgment injures an individual by inducing others not to deal with him, he may challenge in court the government's refusal to accord him a full hearing on the Disputed facts which form the basis of its action.' (Emphasis added.)

QUESTIONS OF LAW PRESENTED

The following questions present themselves:

FIRST. WHAT DOES DUE PROCESS REQUIRE IN THE WAY OF A HEARING FOR SUSPENSION OR REVOCATION OF A DRIVER'S LICENSE?

SECOND. WHAT CHARACTER OF EVIDENCE IS REQUIRED AT SUCH A HEARING?

THIRD. DO THE PROVISIONS OF SECTION 13353, VEHICLE CODE, PERMITTING A SUMMARY SUSPENSION, IF NO HEARING IS ASKED FOR, MEET THE REQUIREMENTS OF DUE PROCESS?

FOURTH. IN AN INFORMAL HEARING UNDER SECTION 13353, WHERE THE FACTS GIVING RISE TO SUSPENSION ARE NOT CONTROVERTED, IS THE EVIDENCE REQUIRED FOR A PRIMA FACIE SHOWING OF A LESSER CHARACTER THAN WHERE THE FACTS ARE CONTROVERTED?

FIFTH. WAS THERE AN ISSUE OF FACT?

INCIDENTAL QUESTIONS

The circumstances that appear give rise to certain other questions:

SIXTH. DOES LICENSEE'S CLAIM OF LACK OF RECOLLECTION WHETHER HE WAS WARNED OF

THE CONSEQUENCES OF A REFUSAL TO TAKE A TEST AND WHETHER HE DID REFUSE CREATE A CONFLICT IN THE EVIDENCE?

SEVENTH. DOES LICENSEE'S CLAIM THAT HE WAS TOO MUCH INTOXICATED TO UNDERSTAND THE CONSEQUENCES OF A REFUSAL TO TAKE THE TEST AVERT THE CONSEQUENCES OF SUCH REFUSAL?

EIGHTH. HOW DOES THE DISPOSITION OF THE CRIMINAL PROSECUTION AFFECT THE ACTION OF DMV IN ORDERING THE SUSPENSION?

REQUIRING OF A HEARING

Under certain statutes a hearing has been held to be a necessary preliminary to any suspension or revocation, because of the wording of the statutes. Indeed, it may be said that a prior hearing is required unless the language of the statute makes clear that an order for suspension may be made in advance of a hearing although provision must be made for a subsequent hearing or review.

Thus in People v. Noggle, 7 Cal.App.2d 14, 18--19, 45 P.2d 430, a conviction of driving without a license after a permit to operate a motor vehicle had been revoked was reversed because the revocation was made by DMV without a hearing and under a statute that was construed to require a prior hearing.

Similarly, in Ratliff v. Lampton, 32 Cal.2d 226, 227, 195 P.2d 792, a revocation without a prior hearing was ordered on the ground the licensee was unable to operate a motor vehicle safely upon the highways because of physical or mental disability or lack of skill, as shown by examination or other evidence. The Supreme Court, in Ratliff v. Lampton, supra, held that even though the statute did not expressly provide for a hearing, DMV could not summarily revoke a license on the ground that licensee could not safely operate a motor vehicle. The court left open the question whether a summary suspension could be justified on public safety grounds.

THE HEARING MAY BE INFORMAL

In Beamon v. Dept. of Motor Vehicles (1960), 180 Cal.App.2d 200, 205, 4 Cal.Rptr. 396, 400, the revocation of a driver's license was upheld following an informal hearing in which the records of DMV were received into evidence showing licensee's convictions of numerous violations of the Vehicle Code. It is stated in that opinion:

'We are not concerned with the provisions which made it mandatory on the department to suspend or revoke the privilege of any person to operate a motor vehicle upon the highway on receipt of a record showing he had been convicted of certain public offenses. §§ 304, 305, 307. In such cases the facts have already been determined in the criminal proceeding. Nor are we concerned with the question whether the department had the power to suspend or revoke the privilege in a case in which a court had acted on the question.'

Hough v. McCarthy, 54 Cal.2d 273, 5 Cal.Rptr. 668, 353 P.2d 276, declared that the provisions of the Government Code dealing with administrative hearings (§§ 11500--11528) are not applicable to informal hearings under section 14104, Vehicle Code.

The Legislature in 1961 amended said section 14104, section 14107, Vehicle Code, governing formal hearings, and section 14112 of that code which makes the Government Code sections applicable to formal hearings; it has also amended section 11501, Government Code. The Legislature has made all those amendments since the decision in Hough v. McCarthy, supra, 54 Cal.2d 273, 5 Cal.Rptr. 668, 353 P.2d 276, and with knowledge of the holding in that case; however, no change was made as to any of those statutes in the matters that were the basis for the ruling in Hough v. McCarthy.

CONSTITUTIONAL RIGHTS OF CONFRONTATION AND CROSS-EXAMINATION

The right of a defendant in a criminal trial to be confronted by the witnesses against him is guaranteed by the Sixth Amendment to the Federal Constitution as well as section 686(3) of the California Penal Code. (People v. Johnson, ...