Lake v. Reed

• Decision Date: 07 August 1997
• Docket Number: No. S055775,S055775
• Citation: 65 Cal.Rptr.2d 860,940 P.2d 311,16 Cal.4th 448
• Court: California Supreme Court
• Parties: , 940 P.2d 311, 97 Cal. Daily Op. Serv. 6286, 97 Daily Journal D.A.R. 10,303 Richard LAKE, Plaintiff and Appellant, v. Sally R. REED, as Director, etc., Defendant and Respondent.

Page 860

65 Cal.Rptr.2d 860

16 Cal.4th 448, 940 P.2d 311, 97 Cal. Daily Op. Serv. 6286,

97 Daily Journal D.A.R. 10,303

Richard LAKE, Plaintiff and Appellant, v. Sally R. REED, as Director, etc., Defendant and Respondent.

No. S055775.

Supreme Court of California.

Aug. 7, 1997.

Rehearing Denied Oct. 22, 1997.

[16 Cal.4th 451] [940 P.2d 312] John A.W. Halley, Redwood City, for Plaintiff and Appellant.

Barry T. Simons, Laguna Beach, K. Randolph Moore, Fresno, and Ed Kuwatch, Willits, as Amici Curiae on behalf of Plaintiff and Appellant.

Daniel E. Lungren, Attorney General, Martin H. Milas, Assistant Attorney General, Robert R. Buell, Christine B. Mersten and Heidi T. Salerno, Deputy Attorneys General, for Defendant and Respondent.

WERDEGAR, Justice.

A person who operates a motor vehicle while intoxicated is subject to criminal prosecution and penalties. Prior to the criminal trial, however, the Department of Motor Vehicles (hereafter DMV or the department) must suspend the individual's driver's license as an administrative matter if it determines the person was driving a motor vehicle with a blood-alcohol concentration (hereafter sometimes BAC) of .08 percent or higher. (Veh.Code, § 13353.2, subd. (a)(1); all further statutory references are to the Vehicle Code unless otherwise stated.) In those cases where the individual requests an administrative hearing, whether he or she was driving with a prohibited BAC is often proved by the introduction into evidence of the arresting police officer's sworn report describing the circumstances of the arrest, together with the results of a breath test administered by the officer. If the driver chose instead to have a blood or urine test, the driver's BAC is usually established at the hearing by introduction of a forensic laboratory report documenting the results of a scientific analysis of the blood or urine sample.

We granted review in this case to address two issues: first, whether, in an "administrative per se" review hearing, the DMV presents sufficient evidence to show the individual arrested was driving the motor vehicle, when the only evidence that satisfies an exception to the hearsay rule is contained in an unsworn police report, and, second, whether the DMV presents sufficient evidence to show the person driving did so with a prohibited BAC, when the only evidence is an unsworn forensic laboratory report documenting the results of a chemical test of the driver's urine.

As explained below, we answer both questions in the affirmative.

FACTS

According to the sworn police report filed by Officer Dickerson of the San Carlos Police Department, as supplemented by an unsworn incident report filed by Officer King, also a San Carlos police officer, and two unsworn witness statements, plaintiff Richard Lake (hereafter Lake) was driving westbound on Belle Avenue in the City of San Carlos on Friday, July 15, 1994, when he approached the intersection of Belle and Cordilleras Avenue. The intersection is governed by stop signs on all four sides. Cheryl Morin was traveling south on Cordilleras. Morin stopped at the intersection before Lake's car. Then, believing she had the right of way, Morin entered the intersection, where she was struck by the car driven by Lake. The impact spun Morin's car around 180 degrees, inflicting moderate damage to the car. In addition, Morin complained of pain in her left shoulder and neck as a result of the collision.

Lake attempted to drive off, but was persuaded to stop by witnesses, including Morin, who yelled at him to stop. Officers Dickerson and then King responded to the scene and interviewed both drivers and two witnesses: Tamera Heck, a pedestrian, and James Wilton, a friend of Lake's who had been following him in his own car. According to Dickerson's report, Lake exhibited several manifestations of alcohol intoxication, including bloodshot or watery eyes, the odor of alcoholic beverages, an unsteady gait and slurred speech. Officer King's report stated Lake told him that he was driving and that he had stopped at the stop sign and had then proceeded into the intersection, where he hit Morin's car. Wilton confirmed Lake was driving and that he had come to a complete stop before proceeding into the intersection. Officer King concluded, however, that, due to Lake's intoxication, he had failed to yield the right of way, causing the accident.

Officer Dickerson arrested Lake on suspicion of driving under the influence of alcohol. Given the choice of submitting a blood, breath or urine sample (§ 23157), Lake submitted a urine sample. Dickerson took physical possession of Lake's driver's license and issued him an "Administrative Per Se Order of Suspension/Revocation Temporary License Endorsement," DMV form DS 360, which served as a temporary driver's license for 30 days.

Lake exercised his statutory rights and requested a hearing. (§ 13558.) He did not personally attend the hearing, but listened to the proceedings by telephone. He was, however, represented at the hearing by counsel. Lake's counsel explained that, in light of the pending criminal trial stemming from the same accident, his client would not be testifying, but would instead invoke his right against compelled self-incrimination pursuant to the Fifth Amendment to the United States Constitution.

The DMV introduced into evidence Officer Dickerson's sworn police report on DMV form DS 367. Lake objected to introduction of Dickerson's report on the grounds it contained inadmissible hearsay. The DMV also introduced Officer King's unsworn report. Lake objected to King's report because it was an unauthenticated photocopy of the original, it was unsworn, and it contained hearsay. Lake made the same three objections to the unsworn statements of witness Tamera Heck and victim Cheryl Morin, which were attached to King's report. The hearing officer overruled all of Lake's objections.

Finally, to establish Lake's blood-alcohol concentration, the DMV introduced two documents. First, the DMV introduced an "Alcohol Analysis Report" from the forensic laboratory of the San Mateo Sheriff's Office. The report indicated an analyst named Nicholas Stumbaugh tested Lake's urine sample and found it contained .19 percent blood alcohol. Lake objected to the introduction of this report because it was an unauthenticated photocopy of the original report, it was not prepared on a form "furnished or approved by the department" (§ 23158.2, subd. b), and the certification was defective, rendering the report unsworn. The hearing officer overruled these objections.

The DMV also introduced a DMV form DS 367A, entitled "Supplement to Officer's Statement [/] Blood/Urine Test Results." The top half of this form, designated "Chemical Test Request [/] Law Enforcement Use Only," indicated Lake requested his urine be tested and is signed by Officer Dickerson. The bottom half of this form, designated "Chemical Test Results [/] Laboratory Use Only," indicates the laboratory name, the analyst's name, and the test results (.19 percent BAC). Although the form has a statement of certification and a space for a signature, this part is not filled out. Instead, there is a handwritten notation stating "Please see attached" (presumably referring to the Alcohol Analysis Report). Lake objected to the introduction of this form on grounds it was hearsay and was unsworn, i.e., "it is not executed under oath and [on] grounds that there's no showing that the person that prepared that entry actually had personal knowledge of the [test] results." The hearing officer also overruled these objections.

The hearing officer upheld the suspension of Lake's driver's license. Lake sought a writ of mandate in the trial court, but his petition was denied. The Court of Appeal affirmed; we granted Lake's petition for review.

DISCUSSION

A. Introduction

At issue here is the statutory procedure (see § 13353.2 et seq.), often called the "administrative per se" law, ¹ under which a person arrested for driving under the influence of alcohol, and who is determined to have a prohibited amount of alcohol in his or her blood, must have driving privileges suspended prior to an actual conviction for a criminal offense. We confronted this scheme most recently in Gikas v. Zolin (1993) 6 Cal.4th 841, 25 Cal.Rptr.2d 500, 863 P.2d 745 (hereafter Gikas ); we there explained that "[t]he express legislative purposes of the administrative suspension procedure are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions. [Citations.]" (Id. at p. 847, 25 Cal.Rptr.2d 500, 863 P.2d 745.)

As we further explained in Gikas, supra, 6 Cal.4th at page 847, 25 Cal.Rptr.2d 500, 863 P.2d 745, the administrative per se laws were deemed necessary due to the time lag that often occurs between an arrest and a conviction for driving while intoxicated or with a prohibited BAC. During this interim period, arrestees who could eventually be convicted of an intoxication-related driving offense were permitted to continue driving and, possibly, endangering the public thereby. Moreover, without administrative per se laws, persons with extremely high BAC levels at the time of arrest could escape license suspension or revocation by plea bargaining to lesser crimes or entering pretrial diversion. Thus, by providing for an administrative license suspension prior to the criminal proceeding, the law affords the public added protection. ²

Under administrative per se laws, "when a person is arrested for driving under the influence and is determined to have a prohibited blood-alcohol level, the arresting officer or the DMV serves the person with a 'notice of the order of suspension.' (§§...