Robertson v. Department of Motor Vehicles, No. A123892 (Cal. App. 5/20/2010)
| Decision Date | 20 May 2010 |
| Docket Number | No. A123892.,A123892. |
| Court | California Court of Appeals Court of Appeals |
| Parties | WADE ANTHONY ROBERTSON, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent. |
Appeal from the San Francisco City & County, Superior Court No. 507352.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Wade Anthony Robertson appeals from the trial court's denial of his petition for a writ of administrative mandamus challenging the Department of Motor Vehicles's (the Department) suspension of his driver's license for failure to take a chemical test after a lawful arrest for driving under the influence of alcohol. We affirm.
At approximately 1:00 on the morning of April 28, 2006, Officer Daniel Ryan of the Palo Alto Police Department stopped a truck driven by Robertson. The manager of a local bar had drawn Ryan's attention to Robertson and two other people standing by a pickup truck, and had told Ryan that they had been drinking alcohol, they had refused his offer to call a cab, and he was concerned about their ability to drive. Ryan parked in a place where he could see the truck. He saw the driver's door open and saw someone get into the truck. He made a U-turn and followed the truck.
The truck drove northbound along Ramona Street, and reached the intersection with Lytton Avenue. At that intersection, traffic along Ramona had a flashing red light, and the cross-traffic on Lytton had a flashing yellow light. The truck stopped at the flashing red light, let one car driving eastbound on Lytton pass, then made a left turn to go westbound on Lytton. In doing so, it went directly in front of a second car that was driving eastbound on Lytton, forcing the car to slow down and almost come to a stop. The car stopped "close to the curb line or the limit line," and the driver avoided a collision with "plenty of clearance." Ryan followed Robertson's truck and stopped it. Robertson was driving, and there were no other passengers in the truck.
Ryan told Robertson the reason for the stop. Robertson argued with him, saying he had not violated anyone's right of way and accusing Ryan of making up the story. Ryan smelled a strong odor of alcohol on Robertson, and asked if he had consumed any alcohol. Robertson told Ryan he was the designated driver and denied having had any alcohol. Ryan checked Robertson's eyes and found nystagmus in both eyes. Ryan then asked him to perform field sobriety tests. He arrested Robertson for driving while intoxicated.
Robertson declined to take a preliminary alcohol screening test at the scene. Ryan took him to the police station and advised him of the "admin per se law," which required him to submit to a chemical test. He let Robertson read the text of the law, and read it to Robertson two or three times.1 Robertson refused to take a chemical sobriety test. When asked if he would take a breath test, he replied, "Absolutely not." When asked if he would take a blood test, he answered, "No, I will not." He was argumentative, and demanded an attorney and a night court judge, and said he wanted to file a petition for writ of habeas corpus that evening. He also threatened to sue Ryan for false arrest.
During this conversation, Robertson and Ryan talked about paragraph five of the admonition, which stated, "You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test." Ryan pointed to that language and said Robertson did not have a right to an attorney, but Robertson insisted that the language meant that he did have such a right.2 Ryan took this as a sign that Robertson was confused.
Robertson's driving privileges were suspended under Vehicle Code3 section 13353. This section authorizes a license suspension when a person has refused an officer's request to submit to a chemical test pursuant to section 23612. That section, in turn, provides, in pertinent part, that anyone who drives a motor vehicle is deemed to have consented to a chemical blood or breath test for alcohol if lawfully arrested for certain offenses related to driving under the influence of alcohol. (See §§ 23140, 23152, 23153.) An administrative hearing took place, at which Ryan testified about the events in question. Robertson called as a witness William Krone, a forensic video expert, who testified about a series of photographs taken by three surveillance cameras at a local bank. One camera, with a wide angle lens, was at an automatic teller machine, and looked directly east at Ramona Street. The second camera was mounted higher, and had a view southbound down Ramona. The third camera was in the lobby of the bank, which faced north at Lytton Avenue, and showed a small amount of Lytton. Krone testified that he examined the pictures from the three cameras, including the reflection of head and tail lights along the road, and concluded that the field view and the "cycling times of the cameras" did not support Ryan's version of events. According to Krone, the cameras did not show the vehicles driving along Ramona at the time Ryan testified he was turning and following Robertson's truck, and the gaps in time between the images the camera took were too short for the vehicles to have passed during one of the gaps.
After the administrative hearing, the hearing officer upheld the suspension. At Robertson's request, the Department conducted a review, and found that the suspension was proper and required.
Robertson challenged the license suspension through a petition for writ of administrative mandamus. The trial court denied the petition, finding in part that Ryan had a reasonable basis to effect the traffic stop and that there was no basis for Robertson to refuse to take the chemical test.
Before we address the merits of the decision below, we must consider Robertson's procedural contention that the Department failed to preserve and present to the trial court an adequate administrative record.
Robertson filed his petition for writ of mandate on June 20, 2007, and filed a first amended petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5 on July 17, 2007. On June 5, 2008, Robertson filed a motion for peremptory writ of mandate in this action, on the ground that the Department had not produced the complete administrative record and had not cooperated with Robertson to perfect the record. In particular, he contended that the administrative record prepared by the Department did not contain all of the rolls of film containing the surveillance pictures about which Robertson's expert witness, William R. Krone, had testified at the administrative hearing or a map prepared by Krone.
At the administrative hearing, Robertson offered two exhibits. Exhibit A was a map of the area in question, and Exhibit B was a series of pictures taken on the bank's security cameras. It appears that the images in Exhibit B had originally been subpoenaed from Comerica Bank. In a hearing in the administrative action, Robertson's counsel stated that as a result of the subpoena he had obtained seven rolls of stop action film. During the hearing, however, Robertson's counsel asked Ryan if he had reviewed "the roll." He asked to make "the rule [sic] an exhibit," and agreed to leave "it" with the Department. In the ruling in the administrative action, the hearing officer referred to Exhibit B as "[a] roll of pictures from [Comerica Bank's] 3 cameras."
On June 20, 2007, the same date that he filed his petition for writ of mandate, Robertson filed and served a demand that the Department prepare an administrative record and transcript within 30 days. Two months later, the Department certified an administrative record. Exhibits A and B were not included in the certified record. Through his counsel, Ronald Jackson, Robertson contacted the Department, pointing out that the certified administrative record did not contain a reproduction or copy of the video images that were admitted into evidence, stating that the officer was in possession of the only copy of the images, and asking the Department to supply a copy of the video images and make it part of the administrative record. The deputy attorney general assigned to the case, David Carrillo,4 agreed to open the exhibit, which was sealed, and send it for processing into a usable form. Carrillo sent "a copy of the surveillance video" to Jackson on October 29, 2007, and Jackson responded that the copies were not sufficient to convey the details.
On December 17, 2007, Carrillo informed Jackson, as well as the counsel representing Robertson in separate criminal and civil actions, that in addition to Jackson's request for the roll of images in connection with the petition for writ of mandate, he had also received subpoenas from Robertson's counsel in the other two actions. He proposed to allow the agent for the attorney representing Robertson in the federal civil action to inspect and copy the evidence. Carrillo would then deliver the original roll into the court's custody in the Santa Clara County criminal case against Robertson. According to a declaration Carrillo later filed, counsel agreed to this procedure and Carrillo lodged the roll with the Santa Clara County Superior Court.
On May 1, 2008, Jackson wrote to Carrillo, taking the position that the administrative record was incomplete because (1) it lacked Exhibit A, the map; (2) the copies of the pictures provided by the Attorney General were of poor quality; and (3) only one roll of images—rather than the seven Jackson asserted had been admitted into evidence as Exhibit B—had been reproduced.
Robertson filed his motion for peremptory writ of mandate on June 5, 2008, contending the Department had not produced a complete administrative record and had not cooperated with him to...
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