Spitze v. Zolin

• Decision Date: 09 September 1996
• Docket Number: No. F024223,F024223
• Citation: 56 Cal.Rptr.2d 573,48 Cal.App.4th 1920
• Parties: , 96 Cal. Daily Op. Serv. 6757, 96 Daily Journal D.A.R. 11,009 Cherie A. SPITZE, Plaintiff and Respondent, v. Frank S. ZOLIN, as Director, etc., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 573

56 Cal.Rptr.2d 573

48 Cal.App.4th 1920, 96 Cal. Daily Op. Serv. 6757,

96 Daily Journal D.A.R. 11,009

Cherie A. SPITZE, Plaintiff and Respondent, v. Frank S. ZOLIN, as Director, etc., Defendant and Appellant.

No. F024223.

Court of Appeal, Fifth District, California.

Sept. 9, 1996.

Daniel E. Lungren, Attorney General, Martin H. Milas, Senior Assistant Attorney General, Marybelle D. Archibald, Supervising Deputy Attorney General, and Steven L. Simas, Deputy Attorney General, for Defendant and Appellant.

James Wm. Webster, Sonora, for Plaintiff and Respondent.

OPINION

DIBIASO, Associate Justice.

Vehicle Code section 23157, ¹ the implied consent law (Kessler v. Department of Motor Vehicles (1992) 9 Cal.App.4th 1134, 1136), provides in part that any person who has been lawfully arrested for specified violations of the Vehicle Code (including, as here, § 23152) "is deemed to have given his or her consent to chemical testing of his or her blood, breath, or urine for the purpose of determining the alcoholic content of his or her blood...." (§ 23157, subd. (a)(1).) The statute also authorizes the immediate seizure of the person's license to drive and service on the person of a notice of suspension or revocation of the person's driving privilege effective 30 days from the date of arrest. (§ 23157, subd. (f).) In this connection, subdivision (g) of section 23157 reads:

"The peace officer shall immediately forward a copy of the completed notice of suspension or revocation form and any driver's license taken into possession under subdivision (f), with the report required by Section 23158.2, to the department. If the person submitted to a blood or urine test, the peace officer shall forward the results immediately to the appropriate forensic laboratory. The forensic laboratory shall forward the results of the chemical tests to the department within 15 calendar days of the date of the arrest." (Emphasis added.)

We hold that a forensic laboratory's failure to forward the results of a chemical test to the Department of Motor Vehicles (DMV) within the prescribed 15 calendar days does not automatically render the test results inadmissible in an administrative license suspension proceeding.

STATEMENT OF FACTS

At approximately 8 p.m. on January 22, 1995, Tuolumne County Sheriff's Deputy Moses discovered a car over the embankment on Middle Camp Road. He found respondent Cherie A. Spitze still sitting, with her seat belt on, in the driver's seat of the vehicle. Spitze showed signs of intoxication. Her daughter reported that Spitze had had too much to drink and had lost control of the car as she attempted to enter Middle Camp Road from a driveway.

California Highway Patrol Officer Ayres arrived around 8:12 p.m. When he contacted Spitze, he noticed, in addition to other symptoms of intoxication, a strong odor of alcoholic beverage emanating from her. Based on his investigation, Officer Ayres formed the opinion that Spitze was under the influence of alcohol.

At 8:40 p.m., Spitze was arrested for driving under the influence of alcohol and with a blood alcohol content of more than .08 percent (§ 23152, subds. (a), (b)). A blood test taken at 9:35 that evening showed Spitze's blood alcohol level to be .21 percent.

PROCEDURAL HISTORY

On January 22, 1995, Officer Ayres issued Spitze a written administrative per se order of suspension. This document advised Spitze that her driving privilege would be suspended or revoked effective 30 days from the date of her arrest because the officer believed the results of a chemical test would show her blood alcohol concentration to be .08 percent or more.

On February 1, 1995, Spitze requested an administrative hearing. The hearing was held on March 2, 1995. The report of the forensic laboratory, showing Spitze's blood alcohol content to be .21 percent, was offered in evidence at the hearing. This report, which reflected that Spitze's blood had been analyzed on February 14 or 15, was dated February 17, 1995. Spitze asserted the test results were not actually forwarded to DMV until February 23, more than a month after Spitze's January 22 arrest; she therefore objected to admission of the results because the laboratory had not complied with the 15-calendar-day limit set by section 23157, subdivision (g).

Spitze's objection was overruled. The hearing officer decided that while the laboratory report might not have been timely sent to DMV, the error was not fatal because the hearing was scheduled with the agreement of Spitze's lawyer and the hearing officer notified After the administrative hearing, DMV suspended Spitze's driving privilege for four months, effective March 8, 1995. On April 3, Spitze challenged the suspension order by filing a petition for alternative writ of mandate. ³ An alternative writ was issued, and a hearing was held on May 16, 1995. The parties agreed that the only issue before the superior court was the legal effect of the forensic laboratory's failure to comply with the 15-calendar-day time limit set out in section 23157, subdivision (g). After argument, the superior court granted Spitze's petition. DMV now appeals from the ensuing judgment which ordered the immediate reinstatement of Spitze's driving privilege.

counsel two days before the hearing that the blood test results were available. ²

DISCUSSION

DMV contends the superior court erred in granting Spitze's petition because the blood test results were properly considered by the hearing officer even though the laboratory did not forward them to DMV "within 15 calendar days of the date of the arrest." (§ 23157, subd. (g).) We agree.

We review the trial court's independent assessment of the administrative record and not the findings of the administrative agency. (Webb v. Miller (1986) 187 Cal.App.3d 619, 625, 232 Cal.Rptr. 50.) We will reverse the judgment of the superior court only if it is based upon an erroneous conclusion of law. (Ibid.) Because the pertinent facts of this case are not in conflict and the only issue before us involves the proper application of subdivision (g) of section 23157, we are not bound by the trial court's conclusions concerning the effect of the laboratory's failure to comply with the time stricture of that statute. (Webb, supra, at p. 625, 232 Cal.Rptr. 50; see Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856; Moomjian v. Zolin (1993) 12 Cal.App.4th 1606, 1612, 16 Cal.Rptr.2d 335; Goddard v. South Bay Union High School Dist. (1978) 79 Cal.App.3d 98, 105, 144 Cal.Rptr. 701.)

Section 15, one of the "General Provisions" of the Vehicle Code, states that "shall" is mandatory and "may" is permissive. (§ 15; Hough v. McCarthy (1960) 54 Cal.2d 273, 279, 5 Cal.Rptr. 668, 353 P.2d 276.) Although relevant, this directive is not, as Spitze argues, conclusive. To determine that the word "shall" must be construed to mean the opposite of "permissive" or "discretionary" is only the first step of the necessary analysis. As the California Supreme Court recently explained:

"The word 'mandatory' may be used in a statute to refer to a duty that a governmental entity is required to perform as opposed to a power that it may, but need not exercise. As a general rule, however, a ' "directory" or "mandatory" designation does not refer to whether a particular statutory requirement is "permissive" or "obligatory," but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.' [Citation.] If the action is invalidated, the requirement will be termed 'mandatory.' If not, it is 'directory' only." (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145, 43 Cal.Rptr.2d 693, 899 P.2d 79.)

Thus, although section 15 requires that we read the word "shall" in section 23157 to mean that the testing laboratory "must," rather than "may," forward chemical test results to DMV within 15 calendar days of the arrest of the suspect, there still remains the question of what effect must be given to a violation of section 23157's terms. (See To decide this issue, we again refer to California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th 1133, 43 Cal.Rptr.2d 693, 899 P.2d 79. That case involved Government Code section 18671.1, which specifies the time within which the California State Personnel Board "shall" render a decision following a hearing on or investigation of a state employee's appeal from a disciplinary action. Like the Vehicle Code, the Government Code contains a general provision that "shall" is mandatory and "may" is permissive. (Gov.Code, § 14.) In deciding whether the obligatory connotation of the word "shall" was mandatory or directory in effect, the Supreme Court articulated the applicable principles of statutory construction:

People v. Superior Court (Maria) (1992) 11 Cal.App.4th 134, 143-144, 13 Cal.Rptr.2d 741; Woods v. Department of Motor Vehicles (1989) 211 Cal.App.3d 1263, 1272, 259 Cal.Rptr. 885.)

"Time limits are usually deemed to be directory unless the Legislature clearly expresses a contrary intent. [Citation.] 'In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citations.] Other cases have suggested that a time limitation is deemed merely directory "unless a consequence or penalty is provided for failure to do the act within the time commanded.' " [Citation.] As Morris v. County of Marin [ (1977) ] 18 Cal.3d 901, 908 [136 Cal.Rptr. 251, 559 P.2d 606], held, the...