Mueller v. Department of Motor Vehicles

• Decision Date: 15 January 1985
• Citation: 163 Cal.App.3d 681,210 Cal.Rptr. 14
• Court: California Court of Appeals Court of Appeals
• Parties: Charles D. MUELLER, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. A023810.

Page 14

210 Cal.Rptr. 14

163 Cal.App.3d 681

Charles D. MUELLER, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

A023810.

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

Jan. 15, 1985.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Harold Teasdale, Eleanor Nisperos, Deputy Attys. Gen., San Francisco, for defendant/appellant.

ELKINGTON, Associate Justice.

The motor vehicle driver's license, of the instant plaintiff and respondent, Charles D. Mueller, had been ordered suspended for six months by the Motor Vehicle Department (Department), for his refusal to take a blood alcohol test as a suspected drunken driver. (See Veh.Code, § 13353.) He applied for a writ of mandate in the superior court, seeking to set aside the Department's order. The writ was granted, and the Department appeals from the judgment granting it.

Upon the superior court proceedings, the court properly exercised its "independent judgment" on the Department's administrative record. (See Berlinghieri v. Department of Motor Vehicles, 33 Cal.3d 392, 188 Cal.Rptr. 891, 657 P.2d 383, passim.)

An essential condition to the application of Vehicle Code section 13353 is that the suspect be lawfully arrested on probable cause to believe that he wasdriving a motor vehicle under the influence of an alcoholic beverage. (See § 13353, subd. (2).)

The principal issue of the superior court mandate proceedings was whether there was substantial evidence that Mueller was the driver of one of the colliding vehicles at the time of the accident.

As here relevant the Department's administrative record disclosed the following evidence.

A police officer witness, by radio, had been called by his lieutenant to the scene of a motor vehicle accident. At the scene, in addition to the police officers, were the automobiles which had collided, Mueller, two witnesses to the accident, and the "other driver." The lieutenant explained the circumstances to the officer, and told him that the witnesses had placed Mueller in one of the cars "during the time of the collision," and that they had "placed Mr. Mueller at fault." And the lieutenant said "he felt that [Mueller] was driving under the influence of alcohol, and he wished me [the officer] to administer field sobriety tests." The tests were thereupon administered by the officer, and Mueller indisputably flunked them.

Mueller was thereupon arrested by the officer for driving a motor vehicle while under the influence of alcohol, in violation of Vehicle Code section 23152, subdivision (a). Asked to take one of the blood alcohol content tests of Vehicle Code section 13353, he refused, thus bringing upon himself the here contested Department's order suspending his driver's license.

Following hearing of the mandate proceedings, the superior court made and filed its "Statement of Decision," according to the recent amendment to Code of Civil Pro- cedure section 632. As here relevant, it provided:

"The primary issue determinative of all of the other issues in the case is whether or not the arresting officer had reasonable cause to believe that petitioner [Mueller] had been driving upon a highway while under the influence of an intoxicating liquor. The arresting officer testified that he did not personally observe petitioner driving a motor vehicle on the night of the arrest. His testimony, that he had been told by his supervisor who in turn had been told by a lay witness, that petitioner had been driving before the accident, is hearsay, and insufficient evidence for respondent to conclude that there was reasonable cause to believe that petitioner had been driving a vehicle under the influence of an intoxicating liquor. Inasmuch as there was no reasonable cause to arrest petitioner, petitioner's subsequent arrest was unlawful and there was no need to subject him to the requirements of the implied consent law." (The latter emphasis is ours.)

The trial court's statement of reasons must fairly be interpreted as concluding that the arresting officer, not having personally seen Mueller driving an automobile, and the lieutenant having but relayed to the officer information from a "lay witness" that Mueller had been so driving, the arrest was based on inadmissible hearsay. It was thus held to be insufficient evidence, as a matter of law, from which "to conclude that there was probable cause" to arrest Mueller.

We find error, as claimed by the Department.

(Parenthetically, we first observe evidence of the administrative record that the officer had been told by the witnesses, i.e., two witnesses and the "other driver," that Mueller had been driving the offending motor vehicle.)

Hearsay evidence has universally been held to establish probable cause. (See Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723; Price v. Superior Court, 1 Cal.3d 836, 840-844, 83 Cal.Rptr. 369, 463 P.2d 721.) Indeed, such hearsay evidence, consisting of statements by informers to law enforcement officers, appears to be the principal basis of judicial findings of probable cause.

A report to a police officer, by a citizen-informant who has witnessed a crime's commission, will ordinarily be supportive of probable cause for an arrest. " 'A "citizen-informant" is a citizen who purports to ... have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement.... It is reasonable for...