Santos v. Department of Motor Vehicles

• Decision Date: 10 April 1992
• Docket Number: No. A053438,A053438
• Court: California Court of Appeals Court of Appeals
• Parties: Vivian Mary SANTOS, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Page 10

7 Cal.Rptr.2d 10

5 Cal.App.4th 537

Vivian Mary SANTOS, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

No. A053438.

Court of Appeal, First District, Division 2, California.

April 10, 1992.

As Modified on Denial

of Rehearing May 7, 1992.

Review Denied June 26, 1992.

J. Thomas Sherrod, Fremont, for plaintiff and respondent Santos.

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., N. Eugene Hill, Sr. Asst. Atty. Gen., Jose R. Guerrero, Deputy Atty. Gen., Kim M. Settles, Deputy Atty. Gen., Oakland, for defendant and appellant Department of Motor Vehicles.

KLINE, Presiding Justice.

The Department of Motor Vehicles (Department) appeals from a judgment granting a peremptory writ of administrative mandamus to set aside the suspension of respondent's driving privilege. Appellant contends the trial court's decision granting the writ and awarding respondent attorney's fees was unsupported by the evidence.

STATEMENT OF THE CASE AND FACTS

At 11:23 p.m. on November 8, 1990, respondent Vivian Mary Santos was arrested by California Highway Patrol Officer M. Polanko for driving under the influence of alcohol and/or drugs (Veh. Code, § 23152, subd. (a)). According to the officer's sworn statement, he observed respondent driving in the slow lane at speeds of 45 to 60 miles per hour, weaving within the lane, crossing into the adjacent lane several times and following a small sedan too closely. When stopped, respondent displayed bloodshot and watery eyes, unsteady gait, slurred speech and smelled of alcohol. Respondent was given an Administrative Per Se Order of Suspension/Revocation Temporary License Endorsement (suspension order) which informed her that her driving privilege would be suspended or revoked effective 45 days from her arrest and that she could request a hearing to show the suspension was not justified within 10 days of receiving the notice. She submitted to a blood test, the results of which showed a blood alcohol concentration of 0.13 percent.

At respondent's request, a formal hearing regarding the suspension was held on December 11. Respondent stipulated that the officer had probable cause to arrest and that she was lawfully arrested, leaving as the sole contested issue whether she was driving or in actual control of a motor vehicle when her blood alcohol content was 0.08 percent or above. (See Veh. Code, § 13558, subd. (c)(2).) The Department introduced and received into evidence the following documents: the officer's statement, the suspension order; a document dated November 12, 1990, on letterhead from the Institute of Forensic Sciences, identifying respondent and relating the results of a test performed on a blood sample received November 12 as "ethanol; 0.13%;" an Administrative Per Se Telephone Information Sheet noting respondent's request for a hearing and respondent's driving record.

Respondent's attorney objected to the blood test result on the grounds that it was hearsay insufficient to support any of the findings required for suspension of respondent's driving privilege; did not come within the official records exception to the hearsay rule because there was no indication as to the time the entries were made; and did not meet statutory requirements in that it was not a sworn report by a peace officer. Additionally, respondent raised a variety of objections based on lack of foundation regarding the testing procedures and timing of the blood test. ¹ Respondent also urged that the administrative order constituted improper notice of the grounds of suspension as it failed to indicate a blood test was being taken. ² The hearing officer overruled all these objections and the Department introduced no further evidence.

Respondent testified she was stopped on November 8 while driving her fiance's car after a rehearsal dinner at which she had had a vodka and soda at 7 p.m., a glass of wine with dinner which was served about 9:30 and another glass of wine after dinner at about 10:45. During the evening she drank many glasses of water; dinner consisted of spaghetti with meat sauce, french bread and butter and a dinner salad with creamy ranch dressing. She did not feel the effects of alcohol when she left the restaurant. After her arrest, a blood sample was taken at Washington Hospital in Fremont. Respondent weighed 95 pounds.

David Lewis testified as an expert in the field of forensic toxicology in behalf of respondent. Lewis testified that title 17 of the California Code of Regulations sets out requirements for the collection, preservation and analysis to insure accuracy in blood tests. He stated that Exhibit 2 did not report the blood test result by weight or reveal the time the analysis was performed. According to Lewis, without knowing the time blood was drawn there would be no way to determine what the blood alcohol level was at an earlier time. Lewis explained that the effect of a given amount of alcohol varies depending on the weight of the subject; for an individual of 95 pounds, with an empty stomach, one standard drink of wine would raise the blood alcohol level 0.039 percent and would take an average of one hour and 20 minutes to reach its maximum level. If the person had consumed the dinner respondent described, it would take about two and a half hours for the alcohol to reach its highest level. If a person was stopped by a police officer approximately twenty minutes after consumption of three or four drinks and a blood test performed immediately, the test would not show the person to be under the influence or impaired to operate a motor vehicle; a test performed later would show a blood alcohol level higher than the level was at the time of driving. Based on the facts presented, Lewis opined that respondent's blood alcohol level at the time of driving would have been less than 0.08 percent by weight because the last drink she had consumed, and possibly earlier ones, would not yet have been absorbed.

In a decision served December 14, the Department determined that the suspension of respondent's driving privilege was proper and required in that the peace officer had reasonable cause to believe she had been driving a motor vehicle in violation of Vehicle Code section 23152 or 23153, she was placed under lawful arrest, and she was driving or in actual physical control of a motor vehicle when she had 0.08 percent or more, by weight, of alcohol in her blood. Appellant's license was suspended effective December 23, 1990, through April 22, 1991.

On January 11, 1991, respondent filed a petition for writ of mandate seeking to compel the Department to restore her driver's license. On January 14, the court issued an ex parte order staying the Department's administrative decision to suspend respondent's license. On January 29, the court issued its tentative decision granting the writ. Appearances and oral arguments were waived and on March 11 judgment was entered ordering the issuance of a peremptory writ of mandate commanding the Department to set aside its order and awarding respondent $1,500 attorney's fees under Government Code section 800 and costs of $316.25.

DISCUSSION

I.

Vehicle Code section 23152 ³ makes it unlawful for any person who is under the influence of an alcoholic beverage or has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. Section 13353.2 mandates that the Department "immediately suspend the privilege of any person to operate a motor vehicle if the person was driving or was in actual physical control of a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood." Under the statutory scheme for "administrative per se" suspension, when a peace officer arrests a person for violation of section 23152, he or she must "immediately forward to the department a sworn report of all information relevant to the enforcement action, including information which adequately identifies the arrested person, a statement of the officer's grounds for belief that the person violated Section 23152 ..., a report of the results of any chemical tests which were conducted on the person or the circumstances constituting a refusal to submit to or complete the chemical testing pursuant to Section 23157...." (§ 23158.2.) If the chemical test results show a blood alcohol concentration of 0.08 percent or more, or if the driver refuses a chemical test or requests a blood or urine test, the police officer must serve a notice of order of suspension, confiscate the driver's license and issue a 45-day temporary driving permit. (§ 23158.5; 23157, subds. (e), (f).) If the peace officer has not served the notice of order of suspension, the Department must mail written notice of the order upon receipt of the officer's sworn report. (§ 13353.2, subd. (b).)

The Department must make a determination of the facts requiring suspension on the basis of the peace officer's sworn report. (§ 13353.2, subd. (d).) It must then determine by a preponderance of the evidence whether the peace officer had reasonable cause to believe the driver violated section 23152, the driver was placed under arrest, and the driver was driving or in actual physical control of a motor vehicle with 0.08 percent or more, by weight, of alcohol in his or her blood. (§ 13557 subds. (a), (b)(2).) This determination is final unless the driver timely requests a hearing. (§ 13557, subd. (b)(2).)

Upon the driver's timely request, the Department must hold an administrative hearing at which the evidence is not limited to that presented at the prior administrative review. (§ 13558.) The Department's determination is then subject to judicial review. (§ 13559). The trial court must conduct its review on the record of the hearing and may not consider other evidence. (§ 13559.) The task for the trial court is to determine, exercising its independent judgment, whether the administrative decision was supported by the...