Jackson v. Department of Motor Vehicles

• Citation: 22 Cal.App.4th 730,27 Cal.Rptr.2d 712
• Decision Date: 15 February 1994
• Docket Number: No. D018039,D018039
• Court: California Court of Appeals Court of Appeals
• Parties: Travis Edwin JACKSON, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

Page 712

27 Cal.Rptr.2d 712

22 Cal.App.4th 730

Travis Edwin JACKSON, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

No. D018039.

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

Feb. 15, 1994.

Rehearing Denied March 4, 1994.

Gordon M. Jackson, Jr., San Diego, for plaintiff and appellant

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., Henry G. Ullerich, Asst. Atty. Gen., Martin H. Milas and Anne Hunter, Deputy Attys. Gen., for defendant and respondent.

KREMER, Presiding Justice.

Plaintiff Travis Edwin Jackson appeals a judgment denying his petition for administrative mandate against the Department of Motor Vehicles (DMV). Jackson attacks the judgment as without substantial evidentiary support. We affirm.

I INTRODUCTION

The DMV suspended Jackson's driver's license for driving under the influence of alcohol. Jackson lost at an administrative hearing. He also unsuccessfully sought mandate in the superior court. Jackson now appeals, contending the DMV did not present substantial evidence he (1) was driving or in control of the vehicle or (2) had .08 percent or more by weight of alcohol in his blood. We affirm the judgment denying mandate.

II FACTS

At 12:57 a.m. on February 28, 1992, California Highway Patrol Officer Reyes received a radio call about a traffic accident. At 1 a.m. Reyes arrived at the accident scene. Jackson's vehicle had been hit from the rear while stopped for a traffic light. The other driver fled. After apprehending the other driver at 1:18 a.m., Reyes noticed Jackson's symptoms of intoxication including bloodshot watery eyes, slurred speech, odor of alcohol and unsteady gait. Responding to questioning, Jackson told Reyes he drank one beer at about 11 p.m., started driving from "Girls Night Out" on Convoy Street, and was driving his passenger home. At the accident scene Reyes conducted a preliminary alcohol screening test on Jackson with a result of .09 percent. Reyes also conducted sobriety tests on Jackson. Jackson's performance on the tests was less than satisfactory.

At 1:45 a.m. Reyes arrested Jackson for violating VEHICLE CODE SECTION 23152¹.

At 2:37 a.m. Reyes administered a breath test to Jackson. The test results showed .08 percent by weight of alcohol in Jackson's blood. Reyes signed under penalty of perjury a statement he obtained the breath test samples in the regular course of his duties, he was qualified to operate the equipment, and to the best of his knowledge the machine was working properly with proper calibration at the time of Jackson's breath test.

Reyes took possession of Jackson's driver's license and served him with an administrative per se order of suspension. (§§ 13353.2, 23158.5.)

III PROCEDURAL BACKGROUND

On April 2, 1992, at Jackson's request, the DMV held an administrative hearing. (§ 13558, subd. (c)(2).) At the hearing the DMV introduced into evidence a printout of Jackson's driving record; Reyes's sworn statement (§§ 13353, 23158.2) ²; the crime laboratory's license, related documents, and report of breath test results; the administrative per se suspension order; the notice to appear; and Reyes's arrest/investigation report (arrest report) dated March 1, 1992. Only Jackson testified at the hearing. On advice of counsel, Jackson declined to answer any questions about whether he was driving when he had .08 percent or more by weight of alcohol in his blood. The hearing officer concluded Reyes had reasonable cause to believe Jackson was driving a vehicle in violation of section 23152 or 23153. The hearing officer also concluded Jackson was lawfully arrested and was driving a vehicle while he had .08 percent or more by weight of alcohol in his blood.

On May 28, 1992, after administrative review was denied, Jackson petitioned the superior court for administrative mandate.

On September 1, 1992, the superior court denied Jackson's petition.

On October 9, 1992, the court entered judgment denying Jackson's petition for mandate.

Jackson appeals.

IV DISCUSSION

Jackson contends there was no evidence he was driving the vehicle apart from hearsay in Reyes's sworn statement and the unsworn Section 13353.2, subdivision (a), provides: "The department shall immediately suspend the privilege of any person to operate a motor vehicle if the person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood."

arrest report. Jackson also contends there was no evidence whatsoever to establish his blood alcohol level at the time of driving.

Section 13558, subdivision (c)(2), in effect at relevant times in 1992, provided in relevant part: "The only issues at the hearing on an order of suspension pursuant to Section 13353.2 shall be whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 or 23153, the person was placed under arrest, and the person was driving or in actual physical control of a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood."

"The trial court's task in this case was to determine, using its independent judgment, whether the weight of the evidence supported the administrative decision. [Citation.]" (Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 309, 13 Cal.Rptr.2d 830.) Our task on appeal is to determine whether the evidence demonstrates substantial support--contradicted or uncontradicted--for the superior court's conclusion the weight of the evidence supported the DMV's suspension order. (Ibid.) "In making this determination, we must draw all legitimate and reasonable inferences in favor of the trial court's decision. [Citations.]" (Ibid.) ³

We conclude substantial evidence and reasonable inferences supported the finding Jackson was driving the vehicle when his blood alcohol level was .08 percent or more by weight.

A EVIDENCE OF DRIVING

Reyes's sworn report under sections 13353 and 23158.2 indicated he did not observe Jackson driving. Reyes's unsworn arrest report indicated Jackson stated he was driving his passenger home from "Girls Nite Out" on Convoy Street. As noted, hearsay within Reyes's reports--including the truth of statements made personally to Reyes--would not by itself suffice to support a finding under former section 13558, subdivision (c)(2), unless it would be admissible over objection in a civil action. (Gov.Code, § 11513, subd. (c); Carlton v. Department of Motor Vehicles, supra, 203 Cal.App.3d at p. 1432, 250 Cal.Rptr. 809.) Citing that authority, Jackson contends the sole evidence he was driving or in actual physical control of the vehicle was hearsay and hence insufficient to support an affirmative finding of that element of former section 13558, subdivision (c)(2). However, as we explain, Jackson's statement to Reyes--contained in the arrest report--that Jackson was driving the vehicle constituted competent evidence under hearsay exceptions for public employee records and admissions by a party and thus would be admissible over objection in a civil action. (Evid.Code, §§ 1280, 1220.) ⁴ Hence, evidence of The DMV had the evidentiary burden to justify its order suspending Jackson's license. (Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 388, 7 Cal.Rptr.2d 5.) The "hearsay statement of a public employee, such as the statement of a police officer ... is admissible at thehearing, and is sufficient in and of itself to support a finding, if it meets the criteria of a public employee business record (Evid.Code, § 1280). [Citation.] This principle arises from the provisions of Government Code section 11513 providing that hearsay evidence may provide the sole supporting evidence for a finding, if such evidence would be admissible over objection in a civil action." (Ibid.) "Public employee business records, however, are admissible in civil actions only to the extent that they report the employee's firsthand knowledge. These statements, therefore, may form the sole basis for suspension of a driver's license only if made from firsthand observation. [Citation.]" (Id. at pp. 388-389, 7 Cal.Rptr.2d 5.) In sum, an "officer's statement reporting firsthand observations ... falls within the public employee records exception to the hearsay rule. [Citations.]" (Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 546, 7 Cal.Rptr.2d 10; Evid.Code, § 1280.)

Jackson's statement to Reyes was sufficient to support the finding Jackson was driving.

Police officers' sworn statements (§§ 13353, 23158.2) are admissible under Evidence Code section 1280 as public employee records to the extent they report the officers' firsthand observations. (E.g. Santos v. Department of Motor Vehicles, supra, 5 Cal.App.4th at pp. 546-547, 7 Cal.Rptr.2d 10; Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 817, 3 Cal.Rptr.2d 478; Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1375, 240 Cal.Rptr. 281; Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 76-79, 179 Cal.Rptr. 379.) We have not been alerted to any authority precluding as a matter of law any use of an officer's unsworn arrest report under a similar standard. To the contrary, case law indicates such reports may be admissible under proper circumstances. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 126, 52 Cal.Rptr. 561, 416 P.2d 793; Rousseau v. West Coast House Movers (1967) 256 Cal.App.2d 878, 887, 64 Cal.Rptr. 655.)

In Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793, the Supreme Court stated: "The hearsay objection was not valid if the police reports were admissible under the Uniform Business Records as Evidence Act. [Citations.] In a proper case the business records exemption to the hearsay rule is applicable to public documents, such as police reports. [Citations.] The problem arises, however, because business records...