Vanhouten v. Dep't of Motor Vehicles
| Decision Date | 15 September 2014 |
| Docket Number | E057310,E057341 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BRIAN VANHOUTEN, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. MARYANN GARDELLA, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Reversed.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Senior Assistant Attorney General, and Elisabeth Frater, Deputy Attorney General, for Defendant andAppellant.
Law Offices of Michael A. Scafiddi, Inc., Michael A. Scafiddi and Benjamin R. Cates for Plaintiffs and Respondents.
I
INTRODUCTION
These two consolidated appeals concern the issue of telephonic testimony about blood alcohol content (BAC) at an administrative hearing involving a driver's license suspension. Appellants are the Department and the Director of Motor Vehicles (DMV). Respondents are Brian Gene Vanhouten and Maryann Gardella, the drivers who were the subjects of the suspension hearings.
Vehicle Code section 13353.21 provides for immediate suspension of the privilege to operate a motor vehicle "when the person had 0.08 percent or more, by weight, of alcohol in his or her blood." (§ 13353.2, subd. (a)(1).) At the administrative hearing, Vanhouten objected to telephonic testimony from the arresting officer about the results of the breath test administered by the officer. Gardella objected to telephonic testimony by a criminalist about the results of BAC analysis. The administrative hearing officers allowed the telephonic testimony of both witnesses and Vanhouten and Gardella's licenses were suspended.
After respondents each filed an administrative writ petition, the superior courtgranted the writs, deciding it was an abuse of discretion to admit the telephonic testimony. The DMV appeals, arguing it was not an error to admit telephonic testimony and, in the alternative, there was substantial evidence to support Gardella's conviction. Finally, the DMV argues the correct remedy was not reversal but to remand the matters to the administrative hearing officer. We agree that the superior court erred in issuing writs requiring the DMV to restore respondents' licenses. We reverse the judgment and affirm the license suspensions.
II
FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 2011, Gardella was driving a motor vehicle and weaving outside the traffic lane. When Deputy Wijnhamer contacted Gardella, he observed that she displayed bloodshot and watery eyes, the odor of an alcoholic beverage, slurred speech, and an unsteady gait. In addition, Gardella failed to perform satisfactorily on the field sobriety tests. The deputy arrested Gardella on suspicion of driving while under the influence of alcohol. (§ 23152.) According to the sheriff's scientific investigations division report, Gardella's BAC was 0.27 percent.
A DMV Driver Safety Officer, A. Diaz, conducted the administrative per se (APS) hearing. The physical evidence included the three-page sworn statement (DS 367),prepared by Deputy Wijnhamer, and the BAC report. The report identifies Paulette Saunchez as the forensic alcohol analyst. Before the hearing, Gardella had objected by letter "to a telephonic hearing or any testimony of a telephonic nature," citing Government Code section 11440.30, subdivision (b), and California Code of Regulations, Title 13, section 115.07 (section 115.07). The DMV subpoenaed Saunchez to testify but she was not available to testify in person due to staffing problems and had been instructed by her supervisor not to appear. The hearing officer allowed Saunchez to testify by telephone.
Analyst Saunchez testified that Gardella's blood sample was analyzed on July 8, 2011; the result of 0.27 percent BAC was reported on the same date. The blood sample was analyzed pursuant to legal requirements and the testing equipment was in proper working order.
Gardella's attorney stated that—based on his standing objection—he was not asking Analyst Saunchez any substantive questions, electing instead to ask about the reasons she could not appear in person. Saunchez described how her work was affected by the lack of proper staffing for the laboratory, numerous subpoenas and court appearances, and a severe backlog of cases.
In the notification of findings and decision, the hearing officer noted counsel's objection to the telephonic testimony, and explained she allowed the testimony because of the understaffing, time constraints, and back log at the laboratory, and because AnalystSaunchez had been advised by her supervisors that she was not required to appear in person at DMV hearings.
Hearing officer Diaz found the analyst was credible and consistent in her telephonic testimony. The hearing officer also found that Deputy Wijnhamer had reasonable cause to believe that Gardella was driving while under the influence; that he placed Gardella under lawful arrest; and that Gardella was driving a motor vehicle with a BAC of 0.08 percent or greater. The DMV suspended Gardella's license for four months.
Gardella filed an administrative writ petition in superior court, seeking to set aside the DMV's suspension order and contending that the introduction of Analyst Saunchez's telephonic testimony over objection was an error of law that deprived Gardella of an opportunity to cross-examine a state witness in person. The DMV opposed the petition on the grounds that (1) Government Code section 11440.30 is inapplicable to DMV license suspension hearings; (2) assuming section 115.07 prohibited telephonic testimony over objection, Gardella failed to demonstrate that she suffered prejudice sufficient to overturn the decision of the hearing officer; and (3) the blood test results admitted at the APS hearing were sufficient to establish that Gardella had been driving with a BAC above .08 percent.
Based on C & C Partners, Ltd. v. Department of Industrial Relations (1999) 70 Cal.App.4th 603, 612, the DMV argued to the court that allowing telephonic testimony over objection was not an abuse of discretion. Gardella responded that the error was notharmless because the hearing officer was unable to assess the credibility of the witness.
Superior court judge, Joseph R. Brisco, found Gardella was prejudiced "because she lost the hearing." The superior court granted the writ of mandate, determining that it was an abuse of discretion for the DMV hearing officer to admit the telephonic testimony, stating: "Without Ms. Saunchez's testimony, the only evidence of Petitioner's blood alcohol content is inadmissible, therefore, Petitioner's suspension is set aside."
On April 16, 2011, Deputy Clark responded to a traffic collision involving Vanhouten, who admitted driving and consuming alcohol, exhibited the objective signs of intoxication and failed adequately to perform the field sobriety tests. Vanhouten submitted to a chemical breath test, which twice resulted in a BAC of 0.13 percent, although the deputy failed to record the results on the chemical test portion of the DS-367. Deputy Clark prepared the DS-367; the DUI Evaluation/Arrest Report; the sheriff's department report; the National Draeger Alcotest 7110 MKIII-C Precautionary Checklist, with an attached copy of the printout of the Alcotest; and a traffic collision report.
The DMV Driver Safety Officer, L.W. Hunt, conducted an APS hearing, relying upon the DS-367, the DUI arrest report, and the Alcotest checklist, with a photocopy of the printout of the chemical test. Before the APS hearing, Vanhouten objected by letter "to a telephonic hearing or any testimony of a telephonic nature." At the APS hearing,Vanhouten's lawyer renewed the objection to the telephonic testimony of Deputy Clark based on the right to cross-examine the officer in person and on section 115.07 and Government Code section 11440.30, subdivision (b). The hearing officer overruled the objection, explaining that the DMV and the sheriff's department had agreed to allow telephonic testimony in suspension hearings because it would cost $150 for the deputy to appear personally at the DMV hearing.
Deputy Clark answered the hearing officer's questions about his omission on the "chemical test" portion of the DS-367, documenting the two breath test results of 0.13 percent. During cross-examination, Deputy Clark admitted that he did not know whether the breath device had been calibrated or maintained in compliance with regulations. However, he always confirms the equipment is in working order.
Hearing officer Hunt found that Deputy Clark had reasonable cause to believe Vanhouten was driving while under the influence; that he placed Vanhouten under lawful arrest; and that Vanhouten was driving a motor vehicle with a BAC of 0.08 percent or greater. The hearing officer also found that Deputy Clark had complied with testing standards and that he conducted the breath test in the process of his normal duties and within testing guidelines. The hearing officer noted that Vanhouten did not present any evidence to suggest that the testing equipment was not working properly. The DMV suspended Vanhouten's license for one year.
Vanhouten filed an administrative writ petition asking the superior court to setaside the DMV's suspension order on the ground that the DMV had committed an error of law under section 115.07,...
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