Opinion
2d Civil No. B165061
10-21-2003
KELLOGG BOYNTON III, Plaintiff and Appellant, v. STEVEN GOURLEY, as Director, etc., Defendant and Respondent.
Advocate Legal Services, Law Offices of Ronald A. Jackson for Plaintiff and Appellant. Bill Lockyer, Attorney General, Andrea L. Hoch, Chief Assistant Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Silvia M. Diaz, Lead Supervising Deputy Attorney General, Martin H. Milas, Deputy Attorney General, for Defendant and Respondent.
Kellogg Boynton III appeals from a judgment denying his petition for a writ of mandate challenging the Department of Motor Vehicles (DMV) suspension of his drivers license for driving with a blood-alcohol level of 0.08 percent or more. (Veh. Code, §§ 13353.2, 13557, 13558.) He contends the trial court erred in denying his petition because the administrative record failed to establish that the arresting officer had reasonable cause to stop his vehicle. We affirm.
Factual and Procedural Background
On February 28, 2002, at 7:51 p.m., Officer Joe Ramirez of the Paso Robles Police Department was dispatched to Cregors Market regarding a possible drunk driver who had just parked a green Dodge pick-up bearing license No. 5Y20595 in Cregors parking lot. On arrival, Officer Ramirez observed the vehicle being driven in the parking lot by appellant. Officer Ramirez followed appellant out of the parking lot and observed him stop at the intersection of 9th and Spring Streets. Appellant turned left onto Spring Street without using his turn signal. Officer Ramirez was following behind appellant when he made the turn and stopped him for violating section 22107.
Upon approaching appellant, Officer Ramirez noticed his eyes were red and watery. The officer smelled an odor of alcohol on appellants breath and noticed his speech was thick and slurred. Officer Ramirez asked appellant to step out of the truck and to perform field coordination tests. He noticed appellants gait was slightly unsteady and that appellant performed the tests poorly. Officer Ramirez formed the opinion that appellant had been driving while under the influence and arrested him. Two breath tests administered later at the police station registered his blood-alcohol content at 0.13 percent. Appellants drivers license was confiscated and he was issued a notice of suspension.
Appellant requested a hearing before the DMV to contest the suspension of his license. At the hearing, the hearing officer received, among other things, Officer Ramirezs sworn report on form DS 367 and his unsworn incident report reciting the above facts.
Appellant contended he was not lawfully stopped by the officer because he had not violated section 22107. Relying on United States v. Mariscal (9th Cir. 2002) 285 F.3d 1127, he argued there was no traffic in the area other than the police car behind him and his turning movement did not affect the police car.
Appellant testified that he was driving in Paso Robles when he stopped at the intersection of 9th and Spring Streets before turning left. He said the intersection is a two-way stop, Spring Street does not have stop signs, and there was no cross traffic before he made his turn. Appellant acknowledged the police car was behind him. He testified that he assumed the police car was stopped behind him before he made his turn. Later, he testified that he did notice the police car stopped at the stop sign, stating, "I was watchin . . . Looking over the hood."
The hearing officer upheld the suspension of appellants license, finding that his failure to signal before making the turn justified the detention. The hearing officer further found that appellant had been lawfully arrested, and the officer had reasonable cause to believe he was driving a vehicle in violation of section 23152 or 23153 with a blood-alcohol content of 0.08 percent or higher.
Appellant then petitioned the trial court for a writ of mandate directing the DMV to vacate the suspension order, again challenging the lawfulness of his detention.
Respondent opposed appellants petition, arguing that the anonymous report of a drunk driver in a vehicle matching the description of appellants truck, coupled with the failure to use a turn signal, provided reasonable grounds for his detention.
In reply, appellant argued that the anonymous tip could not provide the basis for reasonable suspicion to detain. (See, e.g., Florida v. J.L. (2000) 529 U.S. 266, 270 [anonymous tip that a young black male standing at a particular bus stop was carrying a gun held insufficient in itself to justify a police officers stop and frisk of that male; the tip lacked sufficient indicia of reliability to provide reasonable suspicion for a Terry stop].)
The trial court denied appellants petition and upheld the suspension of his license. The judge reasoned that "because the police car was behind the petitioner and was traffic that may be affected by the turn, I think that the petitioner was required to signal, because the primary benefit of the signal requirement is for the vehicles in the rear of the signaling vehicle. . . . [¶] [T]herefore, under the statute, the police car was traffic, and the section . . . was violated. The officer had cause to stop the vehicle . . . ."
Discussion
In ruling on an application for a writ of mandate following a DMV order of suspension, the trial court is required to determine, based on its independent judgment, whether the weight of the evidence supported the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457.) On appeal, we review the record to determine whether the trial courts findings are supported by substantial evidence and independently review the courts legal determinations. (Ibid.)
A persons driving privilege may be suspended or revoked if, after being "lawfully arrested" for driving under the influence, the person is found to have a blood-alcohol concentration of 0.08 percent or greater. (§ 13557; Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 760; Gikas v. Zolin (1993) 6 Cal.4th 841, 847.) A prerequisite to a "lawful arrest" is a lawful detention.
A detention is reasonable under the Fourth Amendment if the detaining officer points to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231; United States v. Arvizu (2002) 534 U.S. 266, 273.) A determination that reasonable suspicion of criminal activity exists under the totality of the circumstances warrants an officer to engage in further investigation. "That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence." (United States v. Sokolow (1989) 490 U.S. 1, 7.)
Appellant contends his detention was unlawful because there was insufficient evidence that his turning movement violated section 22107. Section 22107 provides: "No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement." He argues there was no evidence that any other vehicle might have been affected by his unsignaled turn. We disagree.
It is undisputed that Officer Ramirezs police car was directly behind appellants vehicle on the roadway. Whether the patrol car was moving or stopped at the moment appellant made his turn is immaterial. It was in a position to have been affected by the failure to signal. Appellants turning movement could affect a vehicle in the lane behind him because a trailing vehicle would have no way of knowing what he was going to do. Turn signals are required so that drivers may see the signal and take precautions to avoid an accident. For example, a turning vehicle might drive at a slower speed than a vehicle proceeding straightforward. If the driver does not activate his turn signal, the driver of a trailing vehicle might assume that no turn will be made and proceed at an increased speed, thereby placing himself in a greater danger of an accident. The primary benefit of the signal requirement is for vehicles to the rear of the signaling vehicle. (People v. Miranda (1993) 17 Cal.App.4th 917, 930.) Appellants unsignaled turn violated section 22107 and provided reasonable cause for the officer to stop his vehicle. (Whren v. United States (1996) 517 U.S. 806, 810-811 [probable cause that a traffic violation has been committed supports an officers decision to stop a vehicle].)
Moreover, the officer could properly stop appellant based on a reasonable suspicion that he was driving under the influence. The officer received an anonymous report of a possible drunk driver with a detailed description of a vehicle that matched appellants truck. Rather than stopping appellant immediately to investigate the anonymous tip, the officer followed appellant and observed him make a turn without signaling. As respondent observes, neglecting to use a turn signal could reasonably be construed by a police officer who has been alerted to a possible drunk driver as a particularized driving irregularity sufficient to give rise to a suspicion of illegal drunk driving. The failure to signal is indicative of a lack of attention to detail and corroborated the anonymous report of a possible drunk driver. Under the totality of circumstances, which include the anonymous tip, the matching description of appellants truck and appellants turn without a signal, appellants detention was lawful.
United States v. Mariscal (9th Cir. 2002) 285 F.3d 1127, relied upon by appellant, is distinguishable. In Mariscal, the defendant moved to suppress evidence obtained after officers stopped the vehicle in which he was riding for violating an Arizona traffic law similar to section 22107. The Arizona statute provided in part that "[a] person shall not so turn any vehicle without giving an appropriate signal in the manner provided by this article in the event any other traffic may be affected by the movement." (Mariscal, at p. 1131.) There was no evidence of any traffic on the roadway that could have been affected by the unsignaled turn. The officers who observed the turn were sitting in a parked car and could not have been affected by the turn. The Court of Appeal held that, absent any evidence of traffic on the roadway, there existed no probable cause to stop the vehicle for a violation of the statute, and thus the stop itself violated the Fourth Amendment. Accordingly, the appellate court reversed the trial courts denial of the suppression motion.
Unlike the facts of Mariscal, the patrol car following appellant might have been affected by his unsignaled turn. The officers vehicle falls within the purpose of the statute. Appellants failure to signal constituted a violation of the statute and provided reasonable cause for his detention.
The judgment is affirmed. Respondent is awarded costs on appeal.
We concur: GILBERT, P.J. & YEGAN, J. --------------- Notes: All statutory references are to the Vehicle Code.