Ramirez v. The Superior Court

• Decision Date: 09 February 2023
• Docket Number: F082588
• Parties: KEVIN RAMIREZ, Plaintiff and Respondent, v. THE SUPERIOR COURT OF KERN COUNTY, Defendant and Respondent; DEPARTMENT OF MOTOR VEHICLES, Real Party in Interest and Appellant.
• Court: California Court of Appeals Court of Appeals

1

KEVIN RAMIREZ, Plaintiff and Respondent, v. THE SUPERIOR COURT OF KERN COUNTY, Defendant and Respondent;

DEPARTMENT OF MOTOR VEHICLES, Real Party in Interest and Appellant.

F082588

California Court of Appeals, Fifth District

February 9, 2023

Certified for Publication 3/8/23

APPEAL from a judgment of the Superior Court of Kern County No BCV-19-102984 Eric Bradshaw, Judge.

Rob Bonta, Attorney General, Chris A. Knudsen, Nancy G. James and Lorinda D. Franco, Deputy Attorneys General, for Real Party in Interest and Appellant.

Middlebrook &Associates and Richard O. Middlebrook for Plaintiff and Respondent. No appearance for Defendant and Respondent.

OPINION

POOCHIGIAN, ACTING P. J.

Real Party in Interest and appellant California Department of Motor Vehicles (DMV) appeals from a judgment granting plaintiff and respondent Kevin Ramirez's petition for writ of mandate (judgment). We modify the judgment, affirm it as modified, and remand to the trial court with directions.

FACTUAL AND PROCEDURAL BACKGROUND

I. Ramirez is Arrested for Driving Under the Influence

On June 25, 2018, at approximately 1:08 a.m., Bakersfield Police Department (BPD) received reports of an assault with a deadly weapon that occurred at River Walk Park in Bakersfield California. One individual reporting the incident described the suspect(s) as fleeing southbound in a black Toyota occupied by two Hispanic males and a Hispanic female. Another reporting individual described the suspect(s) as fleeing in a black, four door Ford Ranger pickup traveling southbound on Buena Vista Road.

According to his supplemental report, BPD Officer Van Dyke was dispatched at 1:10 a.m. and responded to the call. As he travelled northbound on Buena Vista Road, he noticed a black, four door truck speeding southbound on Buena Vista Road. Believing it might be the suspect's vehicle, Officer Van Dyke turned his vehicle onto southbound Buena Vista Road and initiated an "investigatory traffic enforcement stop" of the vehicle which Officer Van Dyke described as a black "2001 Ford F-150, 4 door, [with] lowered suspension." The truck was driven by Ramirez.

In his supplemental report, Officer Van Dyke also stated Ramirez "displayed symptoms of being intoxicated. He had red watery eyes, slurred speech, and the odor of an alcoholic beverage emitting from his breath and person." When Ramirez stepped out of his vehicle, Officer Van Dyke "observed [Ramirez] was unsteady on his feet."

Ramirez "was ruled out as a suspect" in the River Walk Park assault investigation. However, another BPD officer, Officer Reynolds, arrived at the scene and commenced investigating whether Ramirez had been driving under the influence (DUI). Other BPD officers also responded to the scene.

Officer Reynolds observed Ramirez "display the objective symptoms of being impaired by an alcoholic beverage" including "watery eyes, slightly slurred speech .., an unsteady gait as he was slightly swaying while standing .., and an odor of an alcoholic beverage about his person."

According to Officer Reynolds's report, Ramirez refused a request he comply with the investigation and "perform a series of standardized field sobriety tests." Upon Ramirez's refusal, Officer Reynolds reported he gave Ramirez the "Preliminary Alcohol Screening test (PAS) admonishment," as follows:

"I am requesting that you take a preliminary alcohol screening test to further assist me in determining whether you are under the influence of alcohol. You may refuse to take this test; however, this is not an implied consent test and if arrested, you will be required to give a sample of your blood or breath, for the purpose of determining the actual alcoholic and drug content of your blood."

Officer Reynolds reported that Ramirez continued in his refusal and was placed under arrest for violating subdivision (a) of Vehicle Code section 23152 - DUI.^[1] Officer Reynolds then took Ramirez to Kern Medical "to obtain an evidential blood sample."

According to Officer Reynolds's report, another BPD officer, Officer Diaz attempted to obtain Ramirez's cooperation with the blood draw, but Ramirez would not consent and only stated," 'I want my lawyer.'" Officer Reynolds's report indicates Officer Diaz provided Ramirez with the "Watson Advisement^[2] pursuant to CVC [California Vehicle Code section] 23593(a)" and states, "Officer Diaz told me, he observed Ramirez look at him as he read the advisement; but when asked if he understood, Ramirez only raised his eyebrows without providing a verbal response."

Officer Reynolds obtained a search warrant authorizing the blood draw which was completed at 4:00 a.m. The blood vials were later booked into evidence at the BPD property room.

Officer Reynolds took custody of Ramirez's driver's license and "provided him with a copy of his DMV 367 - Order of suspension/revocation" which advised Ramirez his driver's license "will be suspended or revoked effective 30 days from the issue date" of the order. The order also advised Ramirez of his right to request a hearing on the matter within 10 days of his receipt of the order and that "[t]he suspension or revocation will not be stayed (delayed)" unless a hearing is timely requested. (Bold type and italics omitted.)

II. Ramirez's Driver's License is Suspended by DMV

On June 28, 2018, three days following Ramirez's arrest, his counsel wrote the Bakersfield Driver Safety Office of DMV to request an "in person [Administrative Per Se (APS)] Hearing" and "discovery pertaining to" Ramirez's arrest. The letter "confirm[ed] that [the DMV] will place a 'stay' on the suspension of [Ramirez's] license pending the outcome of the hearing."

On July 12, 2018, DMV confirmed the suspension of Ramirez's license would be stayed pending the APS hearing and provided Ramirez's counsel with a temporary license for Ramirez's use in the interim period.

On December 20, 2018, Ramirez's counsel forwarded "his reciprocal discovery" to the DMV hearing officer (hearing officer) which included CAD records and two audio CDs of the CAD radio transmissions.^[3] The APS hearing went forward on July 11, 2019. The hearing officer noted, "the scope of [the] hearing is limited to the following issues in accordance with Section 13558 of the California Vehicle Code. [¶ 1] Did the officer have reasonable cause to believe that [Ramirez] had been driving a motor vehicle in violation of Section 23152 or 23153 of the Vehicle Code? [¶ 2] Was [Ramirez] lawfully arrested? [¶ 3] [W]as [Ramirez] told that if he refused to submit to a chemical test or failed to complete a chemical test that his driving privilege would be suspended or revoked for two - suspended for one year or revoked for two or three years? [¶ 4] And did [Ramirez] refuse to submit or fail to complete a chemical test after being requested to do so by a peace officer?"

The hearing officer, on behalf of DMV, marked, moved, and received into evidence Exhibit 1 - the "Age 21 and Older Officer's Statement" and the "Probable Cause Statement" concerning Ramirez, dated June 25, 2018, and completed by Officer Reynolds; and Exhibit 2 - Ramirez's driving record printout. At that point, the hearing officer indicated DMV had "no further evidence to present" and called on Ramirez's counsel to present his case.

Ramirez's counsel marked and moved into evidence Exhibit A - the arrest report and related officer reports and statements; and Exhibit B - the CAD logs. Thereafter, Ramirez's counsel argued, among other things, the arrest report included the name of another individual in one area - suggesting the report had been cut and pasted; the reports of the suspects and their vehicle did not match Ramirez and his vehicle and, therefore, the stops were unlawful; and the reports of admonitions purportedly given to Ramirez were not based on personal knowledge. Upon concluding his argument, counsel submitted.

The hearing officer then indicated she wanted to "reconvene and get the officer." She stated, "[i]f I need the officer, I think I will subpoena, possibly subpoena Officer Diaz. So we will - we need to reschedule with you . . .."

The continued in-person APS hearing was set for September 12, 2019. In the interim, DMV subpoenaed Officer Van Dyke to appear at the hearing.^[4]

When the APS hearing reconvened on September 12, 2019, the hearing officer notified Ramirez's counsel that DMV did subpoena Officer Van Dyke to appear in person, but that Officer Van Dyke had "contacted the support staff [of DMV] and requested to testify by phone due to some appointment that had arisen, and I - I did grant that request - for him to testify by phone."

The hearing officer inquired if there were any objections. Ramirez's counsel objected and indicated, "[t]his one is important because we have documents that we've subpoenaed that do not - that are not regularly handled by the - by the officers. And it's impossible for me to show him those documents, refresh his recollection or clarify his understandings if he isn't here to look at them. I can read them to them [sic], but he may or may not be able to establish whether or not these are official Department documents, whether they appear to be dealing with the exact issues involved. And I can't show them to him to have him do that, so at this point I would object."

The hearing officer overruled the objection and the in-person APS hearing proceeded with Officer Van Dyke being permitted to testify by telephone.

On September 20, 2019, the hearing officer issued an "Administrative Per Se -Refusal, Notification of Findings and Decision" (some capitalization omitted). In her findings, the hearing officer noted, among other things Officer Van Dyke initiated the investigatory stop of Ramirez's vehicle and that Officer...