IN THE SUPREME COURT OF CALIFORNIA
DANIEL L. MacDONALD,
Plaintiff and Respondent,
) S111253
v.
Ct.App. 2/3 B152695
CHON GUTIERREZ, as Interim Director, etc. )
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BS061075
Upon arresting someone for driving under the influence of alcohol or drugs,
the arresting officer is required to make a sworn statement to the Department of
Motor Vehicles (DMV) setting out all of the relevant information.1 In Lake v.
1
“If a peace officer . . . arrests any person for a violation of Section 23140,
23152, or 23153 [driving under the influence], the peace officer shall immediately
forward to the department a sworn report of all information relevant to the
enforcement action, including information that adequately identifies the person, a
statement of the officer’s grounds for belief that the person violated [the statute], a
report of the results of any chemical tests that were conducted on the person . . . , a
copy of any notice to appear under which the person was released from custody,
and, if immediately available, a copy of the complaint filed with the court. For the
purposes of this section, . . .‘immediately’ means on or before the end of the fifth
ordinary business day following the arrest . . . . [¶] (b) The peace officer’s sworn
report shall be made on forms furnished or approved by the department. [¶] (c)
For the purposes of this section, a report prepared pursuant to subdivision (a) and
received pursuant to subdivision (a) of Section 1801, is a sworn report when it
bears an entry identifying the maker of the document or a signature that has been
affixed by means of an electronic device approved by the department.” (Veh.
Code, § 13380, italics added; hereafter all further statutory references are to the
Vehicle Code unless otherwise indicated.)
1
Reed (1997) 16 Cal.4th 448 (Lake), we held that, notwithstanding the predecessor
statute to section 13380, an unsworn statement by a nonarresting officer is
admissible, pursuant to the public employee record exception to the hearsay rule,
at an administrative per se review hearing conducted by the DMV. (Lake, at
p. 461.) The question presented by this case is whether, at such a hearing, the
DMV may, in addition to considering the arresting officer’s sworn statement, also
consider an unsworn statement by the arresting officer. The DMV, we conclude,
may properly do so, for section 13557 provides in pertinent part: “The department
shall consider the sworn report submitted by the peace officer pursuant to Section
23612 or 13380 and any other evidence accompanying the report.” (Italics
added.)
FACTUAL AND PROCEDURAL BACKGROUND2
A California Highway Patrol (CHP) officer observed Daniel L.
MacDonald, who was driving in the No. 5 lane on a freeway, encroach two feet
into the No. 4 lane, and then slowly drift five feet onto the shoulder. When the
officer stopped MacDonald, he observed that MacDonald’s eyes were red and
watery, his speech thick and slurred, and an odor of alcohol was emanating from
his breath. MacDonald admitted he had been drinking. He failed several standard
field sobriety tests, and upon being transported to a police station, his blood-
alcohol concentration twice tested at .11 percent.3 The officer issued an
administrative per se suspension order, confiscated MacDonald’s driver’s license,
and issued him a temporary license.
2
This statement of the factual and procedural background is largely drawn
from the opinion below. Neither party petitioned for rehearing to suggest that the
Court of Appeal omitted or misstated any material fact. (Cal. Rules of Court, rule
28(c)(2).)
3
A blood-alcohol concentration of .08 percent is a ground for suspension of
the driving privilege. (§ 13353.2, subd. (a)(1).)
2
On the date of the incident, the arresting officer completed a sworn report
on DMV form 367. With respect to the facts and circumstances which led to the
stop, he wrote: “OBS, S/V [subject vehicle] DRIVING W/B 101 DESOTO TO
TOPANGA WEAVING SIDE TO SIDE IN W-1 LANE—STOP MADE.”
On the same date, the officer completed a “Driving Under the Influence
Arrest/Investigation Report” (CHP form 202) and the narrative/supplement report
(CHP form 556). These two reports, which we will refer to collectively as the
“unsworn report,” and which we have summarized in the first paragraph of this
statement of the factual and procedural background, provided a more detailed
narrative of the circumstances leading to the stop and arrest, but were not sworn.
MacDonald requested an administrative hearing to review his license
suspension. (§ 13558, subd. (a).) At the hearing, MacDonald’s counsel objected
to the unsworn report, contending an unsworn report by the arresting officer is
inadmissible hearsay. The hearing officer overruled the objection and sustained
the license suspension.
MacDonald petitioned for writ of mandate to set aside the suspension.
(Code Civ. Proc., § 1094.5.) The petition was granted. Relying on Solovij v.
Gourley (2001) 87 Cal.App.4th 1229 (Solovij), the superior court held the unsworn
report was inadmissible under section 13380, and the sworn report alone failed to
provide reasonable cause for the stop.
Concluding
Solovij was wrongly decided, the Court of Appeal reversed
with directions to reinstate the suspension. “Solovij erred in fashioning an
exclusionary rule which precludes the DMV from considering an arresting
officer’s unsworn report on the ground the arresting officer’s sworn report was
inadequate. Although section 13380 requires the arresting officer to send the
DMV a sworn report of all information relevant to the enforcement action
(§ 13380, subd. (a)), the statute does not specify a penalty or consequence for the
3
officer’s failure properly to fill out the sworn report (see ibid.), and specifically
does not require the result reached in Solovij, a decision which appears to be
contrary to the intent and spirit of the administrative per se law.”
We agree with the Court of Appeal, and, accordingly, we affirm its
judgment.
DISCUSSION
In
Lake, supra, 16 Cal.4th 448, we described in detail the statutory
framework of the administrative per se law, and we will briefly reiterate that
discussion insofar as it is required for understanding the related issue presented by
this case.
Under the administrative per se law, the DMV must immediately suspend
the driver’s license of a person who is driving with .08 percent or more, by weight,
of alcohol in his or her blood. (§ 13353.2, subd. (a)(1).) The procedure is called
“administrative per se” because it does not impose criminal penalties, but simply
suspends a person’s driver’s license as an administrative matter upon a showing
the person was arrested for driving with a certain blood-alcohol concentration,
without additional evidence of impairment. (Lake, supra, 16 Cal.4th at
p. 454, fn. 1.) The express legislative purposes of the administrative suspension
procedure are: (1) to provide safety to persons using the highways by quickly
suspending the driving privilege of persons who drive with excessive blood-
alcohol levels; (2) to guard against erroneous deprivation by providing a prompt
administrative review of the suspension; and (3) to place no restriction on the
ability of a prosecutor to pursue related criminal actions. (Id. at p. 454; Gikas v.
Zolin (1993) 6 Cal.4th 841, 847.)
The administrative per se laws were deemed necessary due to the time lag
that often occurs between an arrest and a conviction for driving while intoxicated
or with a prohibited blood-alcohol concentration. During this interim period,
4
arrestees who would eventually be convicted of an intoxication-related driving
offense were permitted to continue driving and, possibly, endangering the public.
Moreover, without administrative per se laws, persons with extremely high blood-
alcohol concentration levels at the time of arrest could escape license suspension
or revocation by plea bargaining to lesser crimes or entering pretrial diversion.
Thus, by providing for an administrative license suspension prior to the criminal
proceeding, the law affords the public added protection. (Lake, supra, 16 Cal.4th
at pp. 454-455.)
Under the administrative per se law, when a person is arrested for driving
under the influence and is determined to have a prohibited blood-alcohol
concentration, the arresting officer or the DMV serves the person with a notice of
order of suspension. (§§ 13353.2, subds. (b), (c), 13382; Lake, supra, 16 Cal.4th
at p. 455.) The notice informs the driver the license suspension will be effective
30 days from the date of service, states the reason and statutory grounds for the
suspension, and explains the driver’s right to seek an administrative hearing.
(§§ 13353.2, subd. (c), 13353.3, subd. (a).)
After the arresting officer serves a driver with the notice of order of license
suspension, the DMV conducts an automatic internal review of the merits of the
suspension. (§ 13557, subd. (a); Lake, supra, 16 Cal.4th at p. 455.) In its review,
the DMV considers the sworn report submitted by the peace officer and any other
evidence accompanying the report. (§ 13557, subd. (a).)
In addition to the automatic internal review, the driver may request a
hearing, in which case the DMV holds a contested review hearing on its decision
to suspend a license. (§ 13558, subd. (a).) “The rules potentially governing the
evidence available for use in such hearings are set forth in division 6, chapter 3,
article 3 of the Vehicle Code, commencing with section 14100. [Citation.] Two
provisions are especially relevant. First, section 14104.7 states in pertinent part:
5
‘At any hearing, the department shall consider its official records and may receive
sworn testimony.’ Second, for all matters not specifically covered by division 6,
chapter 3, article 3 of the Vehicle Code, section 14112 incorporates the provisions
of the Administrative Procedures Act governing administrative hearings
generally.” (Lake, supra, 16 Cal.4th at p. 458.)
Government Code section 11513 addresses the admissibility of evidence in
administrative hearings. It states in relevant part: “The hearing need not be
conducted according to technical rules relating to evidence and witnesses, except
as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of
evidence on which responsible persons are accustomed to rely in the conduct of
serious affairs, regardless of the existence of any common law or statutory rule
which might make improper the admission of the evidence over objection in civil
actions.” (Gov. Code, § 11513, subd. (c).)
In
Solovij, supra, 87 Cal.App.4th 1229, the DMV suspended Solovij’s
license for driving with a blood-alcohol level of .08 percent or more. The
administrative hearing officer considered both sworn and unsworn reports
submitted by the arresting officer. The trial court granted Solovij’s petition for
writ of mandate on the ground there was no competent evidence in the sworn
report to justify the initial stop and detention. The Court of Appeal affirmed,
concluding that “without a sworn report containing competent evidence the
officer’s unsworn report cannot supply the missing competent evidence.” (Id. at
p. 1231.)
The
Solovij court distinguished Lake. “Here the question is whether the
DMV properly considered the unsworn report of the arresting officer.” (Solovij,
supra, 87 Cal.App.4th at p. 1234, italics added.) The Solovij court acknowledged
that the DMV’s “reliance on the arresting officer’s unsworn report does not
involve the hearsay rule. The unsworn report of the arresting officer is just as
6
much a public employee record as the unsworn report of the nonarresting officer
found admissible in Lake.” (Ibid.) “The problem,” in the Solovij court’s view,
was that “section 13380 expressly requires the arresting officer to file a sworn
report containing ‘all information relevant to the enforcement action . . . .’ We
presume that when the Legislature said the arresting officer must include ‘all
information’ in a sworn report, it meant what it said. An unsworn report will not
suffice. [¶] It is true that at the hearing, the DMV is not limited to a consideration
of the arresting officer’s sworn report. But the DMV cannot evade the statutory
requirement that the arresting officer must include all information in a sworn
report simply by categorizing the arresting officer’s unsworn report as additional
evidence. [¶] Our Supreme Court said in Lake: ‘[P]ermitting the department’s
hearing officer to consider and rely on [the nonarresting officer’s] unsworn police
report does not unfairly evade the requirement . . . that the arresting officer file a
sworn report.’ (Lake v. Reed, supra, 16 Cal.4th at p. 460.) Permitting the
department’s hearing officer to consider and rely on the arresting officer’s
unsworn report would unfairly evade that requirement.” (Solovij, at p. 1234.)
This Court of Appeal declined to follow Solovij. “Here, although section
13380 provides the arresting officer ‘shall’ send the DMV a sworn report of all
information relevant to the enforcement action, the statute does not specify a
consequence for the officer’s failure to properly complete the sworn report. The
consequence fashioned by Solovij for the arresting officer’s failure to perfect the
sworn report is at odds with the rest of the statutory scheme, which does not limit
the DMV’s review to the information contained in the sworn report and allows the
DMV to consider an officer’s unsworn report which meets the conditions for
admissibility. (Lake v. Reed, supra, 16 Cal.4th at p. 461.) [¶] Further, the Solovij
interpretation of section 13380 thwarts, rather than advances, the express
legislative purpose of the administrative per se law to protect the public
7
‘ “by quickly suspending the driving privilege of persons who drive with excessive
blood-alcohol levels.” ’ (Lake v. Reed, supra, 16 Cal.4th at p. 454.) [¶] Finally,
our determination that the DMV may consider the unsworn report of an arresting
officer does not prejudice the interests of the arrestee. Regardless of whether
information relevant to the enforcement action is set forth in a sworn report or an
unsworn report, the statutory scheme guards against an erroneous deprivation by
providing a prompt administrative review of the suspension.”
In
Dibble v. Gourley (2002) 103 Cal.App.4th 496 (Dibble), the same Court
of Appeal that decided Solovij, Division Six of the Second District, reaffirmed its
holding in that case, while rejecting the contrary holding in this case by Division
Three of the same district. (Dibble, at p. 501.) The Dibble court rejected “our
colleagues’ criticism that our interpretation of section 13380 ‘thwarts, rather than
advances, the express legislative purpose of the administrative per se law to
protect the public “ ‘by quickly suspending the driving privilege of persons who
drive with excessive blood-alcohol levels.’ ” ’ (. . . [Q]uoting Lake v. Reed, supra,
16 Cal.4th at p. 454.) If a person successfully objects to an arresting officer’s
unsworn report at an administrative hearing and the sworn report is insufficient to
meet the DMV’s burden of proof, the DMV can call the officer to testify. (Lake,
at p. 458; §§ 13558[,] subd. (b), 14104.7.) Although it may be more practical to
allow consideration of the arresting officer’s unsworn reports, the power to fashion
such a rule lies exclusively with the Legislature. Of course, all of this is rendered
moot and the purpose of the law satisfied if all of the relevant information is
included in the officer’s sworn report.” (Dibble, at p. 502.)
The
Dibble court is quite correct in observing that “all of this” could easily
have been rendered moot. (Dibble, supra, 103 Cal.App.4th at p. 502.) As the
Dibble court points out, one simple means of rendering it moot would have been
by training officers to attach additional pages to their sworn DMV reports and to
8
expressly incorporate the additional pages by reference. Section 13380,
subdivision (b) calls for the arresting officer’s sworn report to be made “on forms
furnished or approved by [the DMV].” The problem is that the form designed by
the DMV gives the arresting officer only two and one-half lines to “[d]escribe in
detail the facts and circumstances that led to the stop or contact.” Instead of
attaching additional pages to the sworn DMV form, as the form suggests, the
officers in these cases have been providing the detailed information on separate
unsworn CHP forms. If, as we conclude, the plaintiffs in these cases elevate form
over substance, the DMV and the CHP have themselves to blame. “Those who
craft such forms―like those who prepare instructions for the assembly of
children’s toys or mail-order furniture―should themselves be required to use the
form before imposing it on the intended user.” (Dibble, at p. 504, fn. omitted.)
To resolve this case we must strike a balance between the two pertinent
statutory provisions. While section 13380 provides that an officer making an arrest
for driving under the influence of alcohol or drugs shall immediately forward to
the DMV “a sworn report of all information relevant to the enforcement action”
(italics added), section 13557 provides that the DMV “shall consider the sworn
report submitted by the peace officer . . . and any other evidence accompanying
the report” (italics added).
The conclusion reached by the Courts of Appeal in Solovij, supra, 87
Cal.App.4th 1229, and Dibble, supra, 103 Cal.App.4th 496—that the DMV may
not consider an unsworn report by the arresting officer―is certainly arguable.
However, given our conclusion in Lake that the DMV may consider an unsworn
report by a nonarresting officer, it would be anomalous if it could not also
consider an unsworn report by the arresting officer that is intended to supplement
the officer’s sworn report. Again, in an administrative hearing, “[a]ny relevant
evidence shall be admitted if it is the sort of evidence on which responsible
9
persons are accustomed to rely in the conduct of serious affairs . . . .” (Dibble, at
p. 458, quoting Gov. Code, § 11513, subd. (c).) “A police officer’s report, even if
unsworn, constitutes ‘the sort of evidence on which responsible persons are
accustomed to rely in the conduct of serious affairs.’ ” (Lake, supra, 16 Cal.4th at
p. 461.) Again, too, we must not lose sight of the reason for the “slight relaxation
of the rules of evidence applicable to an administrative per se review hearing,” a
rationale we reiterated in Lake: “[T]he administrative per se laws are intended to
provide an efficient mechanism whereby those persons who drive after consuming
dangerous amounts of alcohol can have their driver’s licenses quickly suspended
so as to ensure they will not endanger the public by continuing to drive.
[Citation.]” (Id. at p. 462.)
To summarize: Section 13380 provides the arresting officer’s sworn report
will contain “all information relevant to the enforcement action.” Therefore, the
Legislature clearly anticipates the sworn report will contain all or nearly all of the
information necessary to remove the offender’s license. In light of this legislative
intent, the sworn report cannot be wholly devoid of relevant information.
However, so long as a sworn report is filed, it is consistent with the relaxed
evidentiary standards of an administrative per se hearing that technical omissions
of proof can be corrected by an unsworn report filed by the arresting officer. In
this case, the arresting officer filed a sworn report.
10
Accordingly, we affirm the judgment of the Court of Appeal, and we
disapprove of Solovij, supra, 87 Cal.App.4th 1229, and Dibble, supra, 103
Cal.App.4th 496, insofar as they are inconsistent with the views expressed herein.
BROWN, J.
WE CONCUR:
GEORGE,
C.J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
11
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion MacDonald v. Gutierrez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S111253Date Filed: January 8, 2004
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Dzintra I. Janavs
__________________________________________________________________________________
Attorneys for Appellant:
Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, Jacob A.Appelsmith, Assistant Attorney General, Elizabeth Hong and Michelle Logan-Stern, Deputy Attorneys
General, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Law Offices of Ronald A. Jackson and Ronald A. Jackson for Plaintiff and Respondent.12
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michelle Logan-SternDeputy Attorney General
300 South Spring Street, Suite 1000
Los Angeles, CA 90013
(213) 897-5745
Ronald A. Jackson
Law Offices of Ronald A. Jackson
2100 Goodyear Avenue, Suite 11
Ventura, CA 93003
(805) 650-8588
13
| Date: | Citation: | Docket Number: |
| Thu, 01/08/2004 | 32 Cal. 4th 150, 81 P.3d 975, 8 Cal. Rptr. 3d 48 | S111253 |
| 1 | Macdonald, Daniel (Plaintiff and Respondent) Represented by Ronald Avent Jackson Advocate Legal Services 2100 Goodyear Avenue, Suite 11 Ventura, CA |
| 2 | Gutierrez, Chon (Defendant and Appellant) Represented by Michelle Logan-Stern Office of Atty General 300 S Spring Street, 5th Floor Los Angeles, CA |
| 3 | Gourley, Steven (Defendant and Appellant) |
| Disposition | |
| Jan 8 2004 | Opinion: Affirmed |
| Dockets | |
| Nov 6 2002 | Petition for review filed respondent Daniel MacDonald |
| Nov 7 2002 | Received Court of Appeal record 1 envelope |
| Dec 11 2002 | Time extended to grant or deny review The time for granting or denying review in the above-entitled mater is hereby extended to and including February 5, 2003, or the date upon which review is either granted or denied. |
| Jan 15 2003 | Letter sent to: All parties enclosing "Certification of Interested Entities or Persons" form. |
| Jan 15 2003 | Petition for Review Granted (civil case) Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Feb 3 2003 | Certification of interested entities or persons filed counsel for respondent. |
| Feb 13 2003 | Request for extension of time filed attorney for respondent Daniel Macdonald, to file opering brief/merits asking to February 28, 2003. faxed to sf. |
| Feb 20 2003 | Extension of time granted On application of respondent Daniel MacDonald and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including February 28, 2003. No further extensions of time will be granted. |
| Feb 27 2003 | Opening brief on the merits filed Respondent (Daniel MacDonald) |
| Feb 27 2003 | Request for judicial notice filed (in non-AA proceeding) by Respondent MacDonald |
| Mar 25 2003 | Request for extension of time filed to file appellant's' answer brief/merits asking to April 4, 2003. |
| Mar 25 2003 | Received: |
| Apr 3 2003 | Extension of time granted On applicationof appellant and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including April 4, 2003. |
| Apr 4 2003 | Answer brief on the merits filed respon Steven Gourley, Director of the D.M.V. |
| Apr 23 2003 | Reply brief filed (case fully briefed) respondent, Daniel Macdonald |
| Apr 23 2003 | Received application to file amicus curiae brief; with brief amicus curiae Michael J. Piuze, supporting petitioner Jarrow formulas, Inc. under same cover. |
| Oct 1 2003 | Case ordered on calendar Wednesday, November 5, 2003 @ 1:30PM (Sacramento) |
| Nov 5 2003 | Cause argued and submitted |
| Dec 9 2003 | Note: |
| Jan 8 2004 | Opinion filed: Judgment affirmed in full Majority opinion by Brown, J. ---------------joined by George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, JJ. |
| Feb 9 2004 | Remittitur issued (criminal case) |
| Feb 25 2004 | Received: Receipt for remittitur from Second District, Division Three, signed for by M Gavinski, Deputy |
| Briefs | |
| Feb 27 2003 | Opening brief on the merits filed |
| Apr 4 2003 | Answer brief on the merits filed |
| Apr 23 2003 | Reply brief filed (case fully briefed) |
| May 25, 2011 Annotated by rob poulsen | Justice Brown delivered the opinion of the Court Facts Procedural History Issues Holding Analysis The Court relies on Government code section 11513(c) , which states, in part, that any relevant evidence may be admitted if responsible persons are accustomed to it in serious affairs. The Court concluded that an arresting officer’s report, even if unsworn, is admissible evidence because it meets the relaxed evidentiary standards of administrative per se hearings. The Court strikes a balance between section 13380, which states that the arresting officer must file “a sworn report of all information relevant to the enforcement action,”and section 13557, which provides that the DMV “shall consider the sworn report submitted by the peace officer ... and any other evidence accompanying the report.” The Court disapproves of the Court of Appeals decision in Solovij and Dibble. The Court relies on its previous conclusion in Lake, which allows the DMV to consider an unsworn report by a nonarresting officer, to disapprove of Solovij and Dibble not allowing an unsworn report by an arresting officer. In this case, the Court find that although the sworn report cannot be devoid of relevant information, an unsworn report can be used by the arresting officer to correct technical omissions of proof. Therefore, in this case, the arresting officer filed a sworn report. Tags Key Related Cases By Robert Poulsen |
