Snelgrove v. Department of Motor Vehicles

• Decision Date: 22 September 1987
• Citation: 194 Cal.App.3d 1364,240 Cal.Rptr. 281
• Parties: Richard SNELGROVE, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent. A035417.
• Court: California Court of Appeals Court of Appeals

Page 281

240 Cal.Rptr. 281

194 Cal.App.3d 1364

Richard SNELGROVE, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

A035417.

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

Sept. 22, 1987.

Andrew H. Parnes, Nolan & Parnes, Palo Alto, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Sr. Asst. Atty. Gen., Mary C. Michel, Supervising Deputy Atty. Gen., Victor D. Sonenberg, Deputy Atty. Gen., San Francisco, for defendant and respondent.

SMITH, Associate Justice.

We hold in this case that the "sworn statement" executed by an arresting officer in a drunk driving stop can supply sufficient proof, in a formal administrative hearing before the Department of Motor Vehicles (department or DMV), to suspend or revoke the arrestee's license under Vehicle Code section 13353, even though the officer does not personally testify and the arrestee offers contrary proof. (All further section references are to the Vehicle Code unless designated otherwise.)

BACKGROUND

Richard Snelgrove was stopped by California Highway Patrol Officer Alex Silva in the early morning hours of March 20, 1985, for weaving along a stretch of Highway 101 in San Mateo County. The officer arrested Snelgrove for suspected drunk driving and took him to the jail in Redwood City for booking.

The officer prepared and signed a sworn statement later that same day and submitted it to the DMV pursuant to section 13353. The statement gives the officer's reasons for suspecting drunk driving, documents the arrest, and indicates that Snelgrove was admonished and then asked three times to submit to a chemical sobriety test, but refused each time. ¹

Notified that the DMV intended to suspend his driving privileges, Snelgrove requested a formal hearing. (§§ 14100, 14107, 13353, subd. (b).) The DMV's evidence at the hearing consisted solely of the sworn statement, admitted by the referee as an "official record" of the department. (§ 14108.) The arresting officer had been expected to appear but left a note that morning stating, without explanation, that he would be unavailable. Counsel for Snelgrove objected to admitting the statement on grounds that the officer's absence deprived him of the chance to cross-examine. ² The referee offered to postpone the hearing so that counsel might subpoena the officer, but counsel declined, maintaining that it was the department's burden to produce the officer. The objection was overruled.

Snelgrove testified. He admitted that he was weaving (though due to fatigue), had had a beer (three hours earlier), and was arrested by the officer on suspicion of drunk driving. He also recalled being advised (at least in part) and aware of his obligation to submit to a choice of tests. He recalled being advised twice at the jail, once in a small conference room and once in a larger room, both times during booking procedures. He did not recall, but conceded it possible, that the tests were discussed earlier, before arriving at the jail.

Snelgrove's main dispute with the written statement was its indication that he refused to be tested. According to the statement, he was arrested at 2:50 a.m. (1:50 a.m. probably intended), and was admonished and refused the tests at 2:05, at 2:40 and again at 3:50 a.m. At one point, according to the statement, Snelgrove answered, "I don't feel that you have the right to ask me to take any tests."

Snelgrove denied ever saying that and insisted that he did offer to take a test about an hour after the arrest. He said he was seated in the small conference room pondering "a whole table full of paperwork" he had been told to sign, when Officer Silva first admonished him and asked him to select a test. Confused by the paperwork, Snelgrove instead asked the officer for a brief explanation of each of the papers. At that point, the officer led him into the larger room, forced him over a counter, twisted his arm behind his back and told him he had better start cooperating and sign all the paperwork. Snelgrove had the officer repeat the admonishment and said that he would take the urine test. However, the officer answered, "No, it's too late." Snelgrove asked what the problem was, but the officer just repeated that it was too late.

The referee found against Snelgrove, and the suspension was upheld. Snelgrove petitioned the superior court for administrative mandate (Code Civ.Proc., § 1094.5), and an alternative writ issued. No new evidence was presented, but the matter was argued at a show-cause hearing. The court exercised its independent judgment on the administrative record and found the suspension supported, noting in particular that Snelgrove's testimony was contradictory and showed, "frankly, a lack of credibility...." The writ was ordered denied.

Snelgrove moved for reconsideration. Counsel argued, based on dictum in Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 189 Cal.Rptr. 512, 658 P.2d 1313, and a discussion of that dictum in Hughes v. Alexis (1985) 170 Cal.App.3d 800, 216 Cal.Rptr. 550, that the officer's sworn statement was insufficient alone to support the suspension. The motion was denied after a hearing.

This is Snelgrove's appeal from the ensuing judgment denying a peremptory writ.

APPEAL

The question is whether an officer's sworn statement under section 13353 can furnish sufficient evidence to support suspension at a formal hearing where the officer does not appear, the licensee offers contrary testimony and admission of the statement is objected to based on lack of the officer's appearance. Subsumed within the question are issues of hearsay and due process. Although there is ample case authority that such evidence is sufficient, that authority has subsequently been clouded by the Supreme Court in Daniels v. Department of Motor Vehicles, supra, 33 Cal.3d 532, 189 Cal.Rptr. 512, 658 P.2d 1313 (Daniels ), and no published opinion has reexamined the matter since Daniels. We do so now and hold that the sworn statement alone can, and in this case does, support suspension.

We start by noting an evidentiary distinction between formal and informal DMV hearings. (§§ 14104, 14107.) In either type of hearing, the department "shall consider its official records" (§§ 14108, 14104), and a sworn statement filed with the department under section 13353 is an "official record" for that purpose. (Fankhauser v. Orr (1968) 268 Cal.App.2d 418, 422-423, 74 Cal.Rptr. 61.) However, formal hearings, as opposed to informal hearings, are further subject to the Administrative Procedure Act (APA) (see Gov.Code, § 11370), which provides that "[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." (Id., § 11513, subd. (c); § 14112; Daniels, supra, 33 Cal.3d 532, 538, 189 Cal.Rptr. 512, 658 P.2d 1313; Hough v. McCarthy (1960) 54 Cal.2d 273, 287, 5 Cal.Rptr. 668, 353 P.2d 276.) An officer's sworn statement, of course, is hearsay if offered to prove the truth of matters it contains. (Evid.Code, § 1200.)

The earliest cases to address the sufficiency of a sworn statement are August v. Department of Motor Vehicles (1968) 264 Cal.App.2d 52, 70 Cal.Rptr. 172 (August ) and Fallis v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 373, 70 Cal.Rptr. 595 (Fallis ). Both involved informal hearings where licensees testified but did not object to the statement's admission or request an opportunity to cross-examine the officer. The court in August ultimately found no conflict between the sworn statement and the licensee's testimony. (264 Cal.App.2d at pp. 62, 64-66, 70 Cal.Rptr. 172.) It further held that the sworn statement was prima facie evidence under the circumstances--i.e., an informal hearing and lack of an objection or a request to cross-examine. (Id., at p. 62, 70 Cal.Rptr. 172.)

The court in Fallis similarly held that "in an informal hearing the statement should be and is sufficient prima facie evidence of any matter as to which there is no conflicting evidence." (264 Cal.App.2d 373, 379, 70 Cal.Rptr. 595.) The court, however, found that a bare legal conclusion in the statement as to reasonable cause for the arrest was not sufficient evidence, alone, to overcome contrary testimony in that case. (Ibid.)

Soon afterward came Fankhauser v. Orr, supra, 268 Cal.App.2d 418, 74 Cal.Rptr. 61 (Fankhauser ), decided by a former panel of this court. The factual setting was again an informal hearing where the officer did not appear. However, the licensee objected to admission of the statement on hearsay grounds. Noting an observation in August that it is error to admit objected-to hearsay in administrative proceedings in the absence of statutory authorization (id., at p. 422, 74 Cal.Rptr. 61), Fankhauser found such authorization in the "official records" language of section 14108. The court held that the statement, having been duly filed with the department under section 13353, "was entitled to consideration at either an informal or formal hearing...." (Id., at p. 423, 74 Cal.Rptr. 61.) Thus, "even though the officer's sworn statement did constitute hearsay, it was hearsay specifically made admissible by statute. [Citation.]" (Ibid.) The court noted that the provisions of the APA did not apply to informal hearings and found that the licensee's testimony did not actually controvert the officer's statement. (Ibid.)

Next came Burkhart v. Department of Motor Vehicles (1981) 124 Cal.App.3d 99, 177 Cal.Rptr. 175 (Burkhart ), a case again involving an informal hearing without the officer present. The licensee had presented testimony and objected to admitting the statement. (Id., at pp. 102-103, 177 Cal.Rptr. 175.) The appellate court first reviewed implications in August and Fallis, that a sworn statement might be insufficient alone to establish a prima facie case as to any element of the DMV's...