Johanson v. Department of Motor Vehicles

• Decision Date: 19 July 1995
• Docket Number: No. A067105,A067105
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 5662, 95 Daily Journal D.A.R. 9583 Craig A. JOHANSON, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Page 42

43 Cal.Rptr.2d 42

36 Cal.App.4th 1209, 95 Cal. Daily Op. Serv. 5662,

95 Daily Journal D.A.R. 9583

Craig A. JOHANSON, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

No. A067105.

Court of Appeal, First District, Division 3, California.

July 19, 1995.

As Modified on Denial of Rehearing Aug. 9, 1995.

Review Denied Oct. 26, 1995.

Daniel E. Lungren, Atty. Gen., Martin H. Milas, Asst. Atty. Gen., William S. Clark, T. Michelle Laird, Deputy Attys. Gen., Oakland, for defendant and appellant.

Guy A. Campisano, Jr., Cotsirilos & Campisano, San Francisco, for plaintiff and respondent.

CORRIGAN, Associate Justice.

The Department of Motor Vehicles (DMV) appeals from the superior court's grant of mandamus overturning the administrative license suspension of respondent Dr. Craig A. Johanson. The court below found Johanson was not properly arrested for driving under the influence of alcohol. We disagree and reverse.

STATEMENT OF THE CASE

Johanson was arrested on October 21, 1993, for driving under the influence of alcohol, a violation of Vehicle Code section 23152, subdivision (a). ¹ When he refused to submit to a chemical test of his blood-alcohol level, a blood sample was drawn involuntarily. He was immediately notified that, unless he requested an administrative review hearing, his driver's license would be suspended under section 13353 for refusing to submit to a chemical test. Upon Johanson's timely request for a hearing, the suspension was stayed.

The administrative hearing was conducted on December 14, 1993. The following day, the hearing officer issued a written notice of findings and decision, lifting the stay and reinstating the suspension. On December 20, Johanson requested departmental review of the hearing officer's decision (§ 14105.5).

On March 22, 1994, DMV issued its notice of decision after the departmental review, upholding the hearing officer's determination. On April 20, Johanson filed a petition for writ of mandamus in the superior court. DMV demurred on May 11, alleging the petition was barred by the statute of limitations. The court overruled the demurrer on May 18 and granted the writ on June 8, ruling that Johanson had not been lawfully arrested by either a police officer or a citizen.

STATEMENT OF FACTS

At approximately 2 a.m. on October 21, 1993, Johanson tried to drive his new Jaguar out the entrance lane of a parking facility in San Francisco. The attendant, Gary Hilmoe, told Johanson he could not accept his payment for parking unless he backed his car up and drove out the exit lane. Johanson became angry and broke the wooden entrance gate. He returned to his car but found he had not broken enough of the gate to allow his car to pass. He got out of the car and broke more of the gate. By this time, a security guard had arrived and positioned himself in front of Johanson's car. Johanson again returned to his car and drove it forward, striking the security guard slightly. Hilmoe phoned the police.

Officer Craig responded to the report of an intoxicated person. When she arrived, she saw Johanson screaming at Hilmoe and the guard. She noted Johanson had bloodshot eyes, slurred speech, and was unsteady on his feet. Hilmoe told her what had happened, including that he had seen Johanson driving. He told the officer he wanted Johanson arrested "because he destroyed our gate arm, for one thing, and he was too drunk to drive out the ... drives (sic) goin' the wrong way." ² Hilmoe signed a citizen's arrest form that indicated he was arresting Johanson for malicious mischief and vandalism. Hilmoe did not tell Johanson he was arresting him for driving under the influence.

Johanson was informed of his obligation to take a blood, breath, or urine test. He refused. He also refused to complete field sobriety tests. A blood sample was drawn from him involuntarily. His blood-alcohol level was 0.20 percent.

DISCUSSION

A. Statute of Limitations

DMV first alleges Johanson's petition for writ of mandamus was barred by the statute of limitations. We disagree.

The Vehicle Code provisions relevant to the suspension of driving privileges and the administrative and judicial review of such action constitute a puzzling statutory maze. In an effort to work through the labyrinth, we begin with section 13353, the statute that provides for suspension for failure to submit to a chemical test.

Section 13353, subdivision (a) commands the DMV to suspend the driving privilege "upon receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer...." That suspension does not take effect until 30 days after the giving of written notice to the driver. (§ 13353, subd. (a)(3)(C).)

Section 13353, subdivision (c) requires the DMV, upon receipt of the sworn statement, to conduct a departmental review in which the following issues are determined: "(1) Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153. [p] (2) Whether the person was placed under arrest. [p] (3) Whether the person refused to submit to, or did not complete, the test or tests after being requested by a peace officer. [p] (4) Whether, except for the persons described in subdivision (a) of Section 23157 who are incapable of refusing, the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to, or did not complete, the test or tests."

DMV's obligation to conduct this initial review and the issues to be determined are set out again in section 13557, subdivisions (a) and (b). This section, however, also mandates that this initial review shall be based upon the officer's sworn statement and "any other evidence accompanying the report." Consequently, we shall refer to this initial departmental review as a paper review of the order of suspension.

The driver may request an independent departmental hearing, if the request is made within 10 days of receiving written notice of suspension. (§§ 13558, subd. (b), 13353, subd. (d).) Such a request obviates DMV's obligation to conduct the paper review. (§ 13557, subd. (e).) Finally, the issues to be determined at the hearing are the same as those at the paper review, and DMV is required to issue a written notice of decision. (§ 13558, subds. (c)(1) & (f).) ³

Within 30 days of the issuance of the written notice of decision following a hearing, the driver may petition the court for review of DMV's decision upholding suspension. This 30-day limitation supersedes the more Alternatively, within 15 days of the effective date of the decision, the driver may request an independent departmental review of the hearing officer's decision. (§ 14105.5, subd. (a).) This review shall be based upon the hearing report, documentary evidence, and findings. (§ 14105.5, subd. (b).) DMV is required to issue a written notice of its decision following this review as well. (§ 14105.5, subd. (c).)

general provisions of sections 14400 and 14401. (§ 13559, subd. (a).) ⁴

Thus, the statutory scheme establishes two independent procedures for review of the hearing officer's determination, one judicial, the other administrative. While the efficiency of two procedures may be doubted, their existence cannot be denied. Certainly, the driver may wish to avail himself of judicial review sooner, though the statutory scheme does not require him to do so. He may, instead, opt for further departmental review. Thereafter, however, he may seek judicial review of the department's final decision by way of section 14401, subdivision (a), which reads in part: "Any action brought in a court of competent jurisdiction to review any order of the department ... suspending, or revoking the privilege of a person to operate a motor vehicle shall be commenced within 90 days from the date the order is noticed." While judicial review immediately following the hearing is subject, by explicit statutory language, to the 30-day statute of limitations (§ 13559, subd. (a)), judicial review following the final departmental action is subject to the more generous 90-day limitation.

Here, Johanson chose not to seek judicial review immediately following the hearing, but instead sought further departmental review. Upon receiving DMV's final decision on March 22, 1994, Johanson had 90 days to seek a writ. (§ 14401, subd. (a).) His petition was filed on April 20, 1994, well within the statutory limit. ⁵

B. Lawfulness of Arrest

Secondly, DMV alleges Johanson was lawfully arrested, contrary to the trial court's determination. We agree and reverse on this basis.

DMV may not suspend or revoke a driving privilege under section 13353 unless the driver was lawfully arrested for a violation of section 23152. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 760, 280 Cal.Rptr. 745, 809 P.2d 404.) A warrantless arrest by a peace officer for a misdemeanor is lawful only if the officer has reasonable cause to believe the misdemeanor was committed in the officer's presence. (Id. at p. 761, 280 Cal.Rptr. 745, 809 P.2d 404; Pen.Code, § 836, subd. (a)(1).) ⁶ The "in the presence" requirement necessitates that the officer see the vehicle move. (Mercer, supra, at p. 769, 280 Cal.Rptr. 745, 809 P.2d 404.) Here, Officer Craig did not see Johanson's car move; therefore, she could not lawfully arrest him for driving under the influence.

A lawful warrantless arrest by a citizen also requires that the misdemeanor occur in the citizen's presence. Here, the misdemeanor of driving under the influence In Padilla v. Meese (1986) 184 Cal.App.3d 1022, 229 Cal.Rptr. 310, Miller, an inspector for the Department of Food and Agriculture acting as a private citizen, stopped...