MacKler v. Alexis

• Decision Date: 24 March 1982
• Citation: 181 Cal.Rptr. 613,130 Cal.App.3d 44
• Court: California Court of Appeals Court of Appeals
• Parties: David Michael MACKLER, Plaintiff and Respondent, v. Doris ALEXIS, as Director of the Department of Motor Vehicles, Defendant and Appellant. Civ. 62477.

Page 613

181 Cal.Rptr. 613

130 Cal.App.3d 44

David Michael MACKLER, Plaintiff and Respondent, v. Doris ALEXIS, as Director of the Department of Motor Vehicles, Defendant and Appellant.

Civ. 62477.

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

March 24, 1982.

Hearing Denied July 14, 1982.

George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen., Henry G. Ullerich and Christopher C. Foley, Deputy Attys. Gen., for defendant and appellant.

Pancer & Siegman and Hugh M. Siegman, Santa Monica, for plaintiff and respondent.

L. THAXTON HANSON, Associate Justice.

INTRODUCTION

Doris Alexis, Director of the Department of Motor Vehicles (hereinafter referred to as the DMV), appeals a judgment of the superior court directing a peremptory writ of mandate to issue commanding the DMV to permanently refrain from suspending or revoking the driver's license of petitioner David Michael Mackler (hereinafter petitioner and/or Mackler) as a result of his alleged refusal to submit to one of the sobriety tests (blood, breath or urine) required by the implied consent law. (Veh.Code, § 13353.) ¹

FACTS

On December 3, 1979, Mackler was arrested by Santa Monica Police Officer John Henry and charged with driving under the influence of alcohol in violation of section 23102, subdivision (a). He was taken to the police station and advised of the requirement to submit to a sobriety test (blood, breath or urine) to determine the alcoholic Arresting Officer Henry filed a sworn statement with the DMV alleging that Mackler had refused to submit to a blood, breath or urine test. The DMV notified Mackler that his driver's license was to be suspended for a period of six months pursuant to section 13353, subdivision (b). ² Thereupon, Mackler requested a formal hearing which was conducted before Referee Chatman of the DMV on March 11, 1980.

content of his blood as provided by section 13353. Following his subsequent appearance for trial on the criminal case, all charges were dropped and the case was dismissed.

At the hearing Mackler appeared accompanied by counsel. At the beginning of the hearing Referee Chatman for the record noted that Officer Henry was not present; that "the subpoena was sent to the Santa Monica Police Department and was returned on 2-22-80 indicating that Officer Henry was terminated and is no longer with the Santa Monica Police Department. There has been no further contact or attempt to locate the officer." The DMV sought to introduce in evidence the arresting officer's written sworn statement that Mackler on arrest manifested objective symptoms of alcohol intoxication, that the officer read to Mackler a statement explaining the requirements of section 13353, and that Mackler refused to choose a test.

Counsel for Mackler did not request a continuance to insure the presence of Officer Henry but objected to introduction of the arresting officer's sworn statement on the grounds that (1) the statement constituted inadmissible hearsay and (2) admission of the statement would deprive Mackler of his fundamental right to confront and cross-examine the sole witness against him. Over his objections the hearing officer admitted the sworn statement into evidence. No evidence other than the statement, the order of suspension, the request and the notice for hearing was introduced by the DMV.

The written sworn statement of arresting Officer Henry filed in accordance with the implied consent statute and utilized as evidence by the hearing officer recited Officer Henry's observations that Mackler was stopped at 1:45 in the morning of December 3, 1979, because he (Mackler) was observed "driving E/B Wilshire # 1 lane at approx. 75 mph". As objective symptoms of Mackler's alcoholic intoxication Officer Henry noted "red eyes-alcoholic breath-impaired balance & coordination". The statement further recited that the complete requirements of section 13353 from the printed form were read to the licensee. ³ Finally Officer Henry indicated that Mackler refused to submit to or failed to complete any such test. The refusal or failure was indicated by the following statements or actions: "Subject was arguementative [sic], refused to listen without continually interrupting. I explained the section 13353 cvc several (5-6) times to Mackler. However he would not choose a test." The sworn After Officer Henry's written sworn statement was introduced into evidence petitioner Mackler was asked the following question by his attorney: "[M]r. Mackler, on 12-3-79 did you refuse to take a blood, urine or breath test for the purpose of determining the alcoholic content in your blood which allegedly was offered to you by Officer Henry?" He responded, "No, I did not refuse". At this point his counsel rested his case and advised the hearing officer that since the burden was on the DMV to prove its allegations by evidence other than by a hearsay document, there was no need for Mackler testifying further. When Referee Chatman attempted to question Mackler as to whether the officer had asked him to submit to a chemical test on the date in question, his attorney indicated that he did not wish Mackler to testify further or to respond to any of Referee Chatman's questions. Since neither the DMV or licensee Mackler had any further evidence to present, the hearing was terminated following a closing statement by the licensee's counsel.

statement disclosed the presence of a witness "SMPD Matron J. Aran".

On July 3, 1980, the DMV on the basis of the evidence introduced at the hearing notified Mackler that his driver's license was suspended for a period of six months. On July 16 Mackler filed with the superior court a verified petition for a writ of mandamus ordering the DMV to revoke and set aside the suspension.

Petitioner Mackler based his "Petition for Alternative Writ of Mandamus" before the superior court "on the ground that Respondent's [DMV] sole evidence against Petitioner is inadmissible hearsay evidence and that Petitioner has successfully met his burden of proof by his oral testimony. Introduction of the arresting officer's sworn statement deprived Petitioner of due process of law since he was prevented from exercising his fundamental right to cross-examine the principal witness against him."

Following hearing on August 8, 1980, the trial court granted a peremptory writ of mandate ordering the DMV to absolutely and permanently desist and refrain from suspending or revoking Mackler's license. The court below found, inter alia, that Mackler rebutted the allegations in the arresting officer's sworn statement; that the admission into evidence of the officer's sworn statement was error since the statement constituted inadmissible hearsay; and that the introduction of the statement into evidence under the circumstances of the case deprived Mackler of due process since he had no opportunity to cross-examine the police officer.

ISSUES

The determinative issues raised on this appeal by the DMV are: (1) whether or not the written sworn statement of Officer Henry made pursuant to section 13353 falls within an exception to the hearsay rule and therefore is admissible hearsay, and (2) whether or not Mackler was deprived of due process in that he was not afforded an opportunity to confront and cross-examine Officer Henry who prepared the written sworn statement. The DMV also contends on appeal that Mackler failed to rebut adequately the evidence represented by Officer Henry's written sworn statement.

DISCUSSION

GENERAL:

It is well established that California's "implied consent" law, section 13353, constitutes a constitutional method of regulating the driving privilege.

In Anderson v. Cozens (1976) 60 Cal.App.3d 130, 131 Cal.Rptr. 256, this court reversed a peremptory writ of mandate issued by the trial court setting aside a decision of the DMV suspending a motorist's driving privileges for six months for his refusal to submit to one of the blood alcohol tests required by section 13353. We rejected a claim that the motorist was denied equal protection of the law because other litigants facing the loss of state-granted licenses issued by agencies other than the DMV were entitled to a hearing pursuant to the Administrative Code.

In Anderson in rejecting the denial of equal protection argument, applying the strict standard employed to suspect classifications or fundamental interests, we pointed out at pages 143-144, 131 Cal.Rptr. 256 "The long-range purpose of Section 13353 is to inhibit intoxicated persons from driving on the highways [citations] and thus reduce the carnage and slaughter on California freeways and byways caused by drunk drivers [citations] which 'now reaches the astounding figures only heard of on the battlefield' (Breithaupt v. Abram (1957) 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 [...]; ...)." (Fn. omitted.)

that "[t]he reasonable, compelling and legitimate state purposes for Section 13353 are both immediate and long-range in nature. The immediate purpose is to obtain the best evidence of blood-alcohol content at the time of the arrest of a person reasonably believed to be driving while intoxicated [citation] and to avoid the possible violence which could erupt if forcible tests were made upon a recalcitrant and belligerent inebriate in order to obtain that best evidence [citations].

In Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 177 Cal.Rptr. 566, 634 P.2d 917, the California Supreme Court with finality upheld the statute against broad constitutional attack. The court therein noted: "[P]ast cases have upheld the constitutionality of section 13353 against claims that the statute (1) violates the driver's privilege against self-incrimination, (2) authorizes an unreasonable search or seizure, (3) denies equal protection to variously defined classes, and (4) fails to satisfy procedural due process requirements." (Id., at p. 73, 177 Cal.Rptr. 566, 634 P.2d 917, fns. omitted.)

In the case at...