Nick v. Department of Motor Vehicles, A054300

• Citation: 14 Cal.Rptr.2d 290,11 Cal.App.4th 868
• Decision Date: 11 December 1992
• Docket Number: No. A054300,A054300
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 11 Cal.App.4th 868 11 Cal.App.4th 868 J. David NICK, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents.

Page 290

14 Cal.Rptr.2d 290

Previously published at 11 Cal.App.4th 868

11 Cal.App.4th 868

J. David NICK, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents.

No. A054300.

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

Dec. 11, 1992.

Rehearing Granted Jan. 5, 1993.

Daniel E. Lungren, Atty. Gen., Henry G. Ullerich, Interim Asst. Atty. Gen., Jose R. Guerrero, Supv. Deputy Atty. Gen., Kerry Weisel, Deputy Atty. Gen., Oakland, for defendants and respondents.

Paul J. Killion, Hancock, Rothert & Bunshoft, San Francisco, for plaintiff and appellant.

STEIN, Associate Justice.

J. David Nick (Nick) appeals from a judgment dismissing a petition for writ of mandate directed against California Department of Motor Vehicles, A.A. Pierce, Director of the Department of Motor Vehicles, and the California Highway Patrol (hereafter respondents). Appellant contends he was denied a fair hearing on the suspension of his driver's license because

he was unable, due to his indigence, to compel the attendance of the arresting officer. We conclude that respondents afforded appellant a fair hearing and affirm the judgment.

I.

At about 1:55 a.m., on November 14, 1990, Nick was arrested by Officer Gummert of the California Highway Patrol for driving under the influence of alcohol in violation of Vehicle Code section 23152. Officer Gummert based the arrest on personal observation of Nick's physical symptoms of intoxication and his performance of field sobriety tests. Approximately a half an hour later, appellant was given breath tests at the jail, which registered blood-alcohol contents of .08 and .09. Pursuant to Vehicle Code sections 13353.2 and 23158.5, his driver's license was seized. He was served with an "order of suspension," given a temporary license and advised of his right to request a hearing. Nick demanded a formal administrative hearing on the suspension of his driver's license before the Department of Motor Vehicles (DMV) as provided for by Vehicle Code section 13558.

Prior to the administrative hearing, Nick obtained from the DMV a subpoena for Officer Gummert. The department's "order of suspension" advised appellant that he would be "responsible for service of your subpoenas and any witness fees required by statute." Nick attempted to serve the subpoena on the officer by delivering it to the California Highway Patrol (CHP) office. He was informed that they would not accept the subpoena without payment of a $150 witness fee. Claiming to be indigent and unable to pay the fee, Nick left the subpoena at the CHP office. It was later returned to him by mail. Thereafter, another attempt was made to serve the subpoena on Officer Gummert by delivery to the CHP office, but again without tender of the witness fee.

Two weeks before the hearing, which was held on December 27, 1990, the criminal charges against Nick arising from his arrest were dismissed.

At the administrative hearing the DMV relied on Officer Gummert's sworn arrest report submitted under Vehicle Code section 23158.2 and other documentary evidence supporting the license suspension. Appearing without counsel, and as his only witness, Nick disputed Officer Gummert's written account of the circumstances of the arrest and the conduct of the field sobriety tests. He testified that at the jail, "they were having trouble with the [intoxilyzer] machine. They were banging the machine with a piece of stick to make it work. They had to use a mouthpiece that had been used by another person previously because they had run out of mouthpieces." The hearing officer upheld the suspension.

On January 30, 1991, Nick filed a petition for writ of mandate in the superior court seeking to order respondent DMV to reinstate his driver's license. Rejecting the petition, the court found that a "preponderance of the evidence supports the Department's determination that Petitioner was driving with a blood alcohol level of .08 or above." After entry of judgment denying the petition, Nick filed this appeal.

II.

Appellant contends that respondents denied him a fair hearing by conditioning his right to confront and cross-examine Officer Gummert at the administrative hearing upon payment of a $150 witness fee.

Any "person, who has received a notice of an order of suspension ... of the person's privilege to operate a motor vehicle pursuant to Section ... 13353.2 ... or 23158.5 ... may request a hearing on the matter pursuant to Article 3 (commencing with Section 14100) of Chapter 3, ..." (Veh.Code, § 13558, subd. (a).) All matters concerning the hearing which are "not covered by this chapter shall be governed, as far as applicable, by the provisions of the Government Code relating to administrative hearings, and particularly by Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code." (Veh.Code, § 14112.)

The procedure for serving a subpoena on a witness to compel his or her attendance at a DMV administrative hearing is set forth in Government Code section 11510. ¹ That section provides, in pertinent part, that all subpoenas "shall be served in accordance with Sections 1987 and 1988 of the Code of Civil Procedure." ( § 11510, subd. (b).) Whenever a peace officer is subpoenaed to appear before any court or other tribunal in any civil action or proceeding concerning a matter he or she perceived or investigated in the course of his or her duties, Code of Civil Procedure section 1987 requires compliance with sections 68097.1 ² and 68097.2. ³ Section 68097.2, subdivision (b) requires the party at whose request the subpoena is issued to reimburse the public entity for the expense to it of paying the officer's salary. "The amount of one hundred fifty dollars ($150), together with the subpoena, shall be tendered to the public entity for each day that the officer is required to remain in attendance pursuant to the subpoena." (Ibid.)

III.

Appellant, relying on section 11510, subdivision (c), which provides, in pertinent part, that "[a]ll witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the state ... shall receive fees," argues that because Officer Gummert was an employee of the state he could be subpoenaed to this hearing without payment of fees.

The legislative purpose in enacting these sections was to correct the perceived evils of the prior system where peace officers only received normal witness fees when they testified:

"Prior to the enactment of Vehicle Code sections 2266 and 2267 in 1961 (repealed in 1963 and reenacted in substance as Government Code sections 68097.1 et seq.), the appearance of California Highway Patrol officers who testified in civil suits did so on their own time and received only ordinary witness fees. This arrangement was unsatisfactory. The numerous appearances in civil cases by California Highway Patrol officers caused serious administrative problems for which the Department was not compensated. The officers appearing in the civil cases either lost wages or were required to take vacation. Finally, and most unsatisfactory, was the persistent allegation that officers, because of the economic hardships in testifying, made private arrangements for their compensation with the party subpoenaing them and in return colored their testimony in favor of that party. In our opinion, Government Code sections 68097.1 et seq. were intended by the Legislature to remedy these problems alone; and it was not intended that officers should testify in civil cases as part of their official duty." (53 Ops.Cal.Atty.Gen. 322, 323 (1970).)

This legislative plan, embodied in sections 68097.1-68097.8, places peace officers as witnesses in a special classification for compensation and makes it a crime ( § 68097.7) for them to accept compensation in any other way. (See Patterson v. Sharp (1967) 253 Cal.App.2d 838, 840-841, 61 Cal.Rptr. 517.) Where the employing governmental entity is a party to proceedings based on the actions of its peace officer employees, the provisions of section 68097.2 do not apply. (Id. at p. 841, 61 Cal.Rptr. 517.) However, in order to effectuate the legislative scheme, and notwithstanding the provisions of section 11510, subdivision (c), when the CHP is not a

party to the proceedings the party who subpoenas a CHP officer to testify about a matter which he or she investigated in the course of his or her duties is required to pay the fees specified in section 68097.2.

IV.

In 1965 section 68097.1 was amended to define the term "tribunal," as used in that section and in section 68097.2, to mean "any person or body before whom or which attendance of witnesses may be required by subpoena, including an arbitrator in arbitration proceedings." Appellant contends that this amendment prohibits the application of these sections to DMV license suspension hearings. ⁴

We must give effect to the intent of the Legislature so as to effectuate the purpose of the law. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008, 239 Cal.Rptr. 656, 741 P.2d 154.) In determining such intent, we must turn first to the words themselves, giving them their ordinary and generally accepted meaning. (People v. Craft (1986) 41 Cal.3d 554, 559-560, 224 Cal.Rptr. 626, 715 P.2d 585.) The words must be read in light of the legislative objective sought to be achieved, as well as the evil sought to be averted. (People v. Aston (1985) 39 Cal.3d 481, 489, 216 Cal.Rptr. 771, 703 P.2d 111.)

The person before whom a DMV license suspension hearing is held may compel the attendance of witnesses by subpoena. ( § 11510.) Appellant has not demonstrated why the language, "including an arbitrator in arbitration proceedings," should be read to exclude DMV license suspension hearings from the operation of sections 68097.1 and 68097.2. Moreover, appellant's interpretation would violate the legislative intent of those sections and lead to absurd results.

Section 68097.1 allows service of...