Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. CV156123
McAdams, J.
Following an administrative hearing, appellant Department of Motor Vehicles (DMV) suspended respondent Leslie Fox’s driving privilege for one year because she refused a chemical test after being arrested for driving under the influence of alcohol. (Vehicle Code, § 13353). The superior court granted Fox’s petition for writ of mandate and reversed the suspension. The DMV appeals.
All further statutory references are to the Vehicle Code, unless otherwise stated.
Under section 13380, upon arresting someone for driving under the influence of alcohol or drugs, the arresting officer is required to make a sworn statement to the DMV setting forth all of the relevant information. In MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 159 (MacDonald), the California Supreme Court held that in an administrative per se hearing before the DMV, the DMV may consider the information in any unsworn statements by the arresting officer to correct “technical omissions of proof” in the sworn statement, as long as the officer has filed a sworn statement that contains “all or nearly all of the information necessary to remove the offender’s license.”
In this case, we determine whether the DMV may consider the information in the arresting officer’s unsworn statement relating to the question whether the officer had reasonable cause to suspect that Fox was driving under the influence of alcohol or drugs, where the officer’s sworn statement did not contain any information regarding the circumstances of Fox’s driving that led to the traffic stop. We conclude that, although this case is factually distinguishable from MacDonald in this respect, the rule from MacDonald applies. Addressing the parties other arguments, we hold that the arresting officer had reasonable suspicion to stop Fox’s vehicle and that there is insufficient evidence to support Fox’s claim that officer-induced confusion led to her refusal to submit to chemical testing. We therefore reverse the judgment of the superior court.
facts
On June 5, 2006, at 12:05 a.m. California Highway Patrol (CHP) Officers Macias and Colby were travelling in a patrol car on U.S. Highway 101 near Salinas, California. They were headed southbound in the number 1 lane at approximately 65 miles per hour when they observed Fox driving a Ford F-250 pick-up truck (pick-up) directly ahead of them in the same lane. Officer Macias also observed a Monterey County Sheriff’s patrol car travelling ahead of him in the number 2 lane at about 70 miles per hour.
Just south of Orchard Lane, Officer Macias saw the Sheriff’s vehicle pass the pick-up. As it passed, the pick-up swerved to the left, crossing the solid yellow roadway edge line. Officer Macias continued to follow the pick-up and observed it weave back and forth within the number 1 lane. Just north of Ralph Lane, the pick-up changed lanes and moved into the number 2 lane. Officer Colby activated the overhead lights on the patrol car and the CHP officers initiated a traffic stop. The pick-up pulled over onto the asphalt shoulder of the highway at White Road.
Officer Macias approached the pick-up from the passenger side and “detected a moderate strong odor of alcohol.” Officer Macias noticed that both Fox, who was driving the pick-up, and her male passenger had “red and watery eyes.” He asked Fox whether she had had anything to drink and she said, “No.” Officer Macias moved to the driver’s side of the pick-up. As he spoke with Fox, he noticed that her speech was slow and mumbled. He saw a “distinct sustained Nystagmus” and smelled the odor of alcohol on her breath. He asked Fox again whether she had had anything to drink. She replied, “ ‘Is this really necessary? I mean, I am tired, I was surfing all day and I just want to go home.’ ”
Officer Macias asked Fox to exit the pick-up and conducted a series of field sobriety tests. Fox failed to perform the field sobriety tests as demonstrated. In his sworn report, Officer Macias noted that Fox had an unsteady gait, slurred speech, and “poor performance” on the field sobriety tests.
While Officer Macias worked with Fox, Officer Colby spoke to her passenger, who stated that “they had consumed some Coors Lights prior to driving.” Based on his observations and investigation, Officer Macias formed the opinion that Fox was driving under the influence of alcohol.
At 12:22 a.m., Officer Macias gave Fox an admonition regarding a preliminary alcohol screening test and Fox refused to take the test. Officer Macias arrested Fox at 12:23 a.m. and placed her in his patrol car. Officer Macias advised Fox of the implied consent law and asked her to give a breath test and a blood test. Her response to both requests was “no.” At 12:50 a.m., Officer Macias read Fox the following admonition verbatim: “You are required by state law to submit to a chemical test to determine the alcohol and/or drug content of your blood. [¶] . . . Because I believe you are under the influence of alcohol, you have a choice of taking a breath or blood test. [¶] . . . [¶] If you refuse to submit to, or fail to complete a test, your driving privilege will be suspended for one year or revoked for two or three years. . . . [¶] . . . Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence. [¶] . . . You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test. [¶] . . . If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test.” Fox refused to submit to any chemical test and repeatedly asked to see her attorney.
The officers transported Fox to the Monterey County jail, where she was booked for violating section 23152, subdivision (a) (misdemeanor DUI). Officer Macias issued Fox a Notice to Appear (CHP form 215) and an Administrative Per Se Suspension/Revocation Order and Temporary License (hereafter suspension order), which is part of the DMV form DS 367.
Procedural History
Administrative Per Se Hearing Before the DMV
Fox requested an administrative hearing. The hearing officer conducted the hearing by telephone on July 27, 2006, and October 18, 2006. Fox did not appear at the hearing but was represented by counsel. No witnesses testified.
The DMV received the following documents in evidence at the hearing: (1) the Age 21 and Older Officer’s Statement (DMV form DS 367), which Officer Macias had certified under penalty of perjury (hereafter the sworn report), and (2) a five-page Driving Under the Influence Arrest – Investigation Report (CHP form 202), which was not sworn under penalty of perjury (hereafter the unsworn report).
The sworn report contained identifying information about Fox, as well as information about the officers and the pick-up. Officer Macias filled out the form, providing information regarding the date and time he observed Fox driving, her “objective symptoms of intoxication,” the date and time of her arrest, and her responses to the admonition and questioning about the chemical tests. The third page of the sworn report had a section for describing the circumstances that led to the stop, which stated: “Probable Cause (Describe in detail the facts and circumstances that led to the stop or contact.) . . . Print or write directly on this page or attach complete arrest report or narrative report.” Officer Macias did not write anything in this section. Instead, he checked the box next to the statement “See attached arrest report or narrative report, which is incorporated by reference.”
The unsworn report, which was dated the same day as the arrest, described the circumstances that led to the stop, as set forth above.
In addition to Officer Macias’s reports, the following documents were received in evidence at the hearing: (1) the Notice to Appear (CHP form 215); (2) the suspension order; (3) a printout of Fox’s DMV record; (4) the DMV’s Notice of Hearing, notice transmitting discovery documents to Fox, and request for discovery from Fox; and (5) a temporary license that was issued to Fox during the pendency of the administrative hearing. Fox’s counsel objected to the sworn and unsworn reports on hearsay and foundational grounds. The hearing officer overruled the objections.
At the initial hearing on July 27, 2006, Fox’s counsel complained that he had not received the unsworn report in its entirety and that the omission handicapped Fox’s defense. The hearing officer granted a continuance to permit counsel to review the evidence and subpoena Officer Macias. However, neither party presented any witnesses at the continued hearing on October 18, 2006.
Fox’s counsel argued: (1) that the officers did not have reasonable cause to stop Fox; (2) that the sworn report was ambiguous with regard to which unsworn report was incorporated by reference; (3) that Officer Macias’s effort to incorporate the unsworn report into the sworn report by reference was invalid because the unsworn report was not prepared until after he signed the sworn report; and (4) that after Fox asked for an attorney, Officer Macias did not properly explain that she was not entitled to an attorney.
The first two pages of the unsworn report use fill-in-the-blank and check-the-box formats; the last three pages of the unsworn report are written in a narrative format on a “State of California Narrative/Supplemental” form. Fox treated these two portions of the unsworn report as two separate reports.
The hearing officer concluded that Officer Macias had “probable cause” to stop Fox’s pick-up truck, that Fox exhibited objective symptoms of intoxication at the scene, that Officer Macias had reasonable cause to believe that Fox was driving under the influence, that Fox was lawfully arrested, that Fox was told that her driving privilege would be suspended or revoked if she refused to complete a chemical test of her blood alcohol level, and that Fox refused to complete a test. On December 12, 2006, the hearing officer suspended Fox’s driving privilege for one year.
Fox’s Petition for Writ of Mandate
On January 12, 2007, Fox petitioned the trial court for a writ of mandate directing the DMV to set aside the suspension. She argued that it was improper for the hearing officer to admit the unsworn report because the sworn report did not contain a single word describing the circumstances leading to the stop. She asserted that the incorporation of the unsworn report into the sworn report by reference was invalid because (1) there were two unsworn arrest reports and it was ambiguous which document was being incorporated by reference, and (2) the unsworn reports did not exist at the time they were being incorporated by reference into the sworn report. Consequently, she asserted the sworn report was altered after it was sworn.
Fox argued that the weight of the evidence shows that the officer did not have reasonable cause to stop the pick-up. Finally, Fox made a series of arguments related to the contentions that she was confused when she requested an attorney and that Officer Macias should have clarified that the right to counsel does not apply to blood alcohol testing under the implied consent law.
The DMV opposed the writ petition.
Trial Court Order on Petition for Writ of Mandate
The trial court granted the writ. In its statement of decision, the court found that Officer Macias had not yet completed the unsworn report when he signed the sworn report under penalty of perjury and that he improperly altered the sworn report when he incorporated information from the unsworn report by reference. The court found that the officer’s unsworn “statement concerning the circumstances of [Fox’s] driving” that led to the stop was invalidly incorporated by reference into the sworn report and otherwise inadmissible under the standard set forth in MacDonald, supra, 32 Cal.4th 150. The court also distinguished MacDonald. It explained that unlike the sworn report in MacDonald, which provided some information regarding the basis for the vehicle stop, the sworn report in this case does not contain “a single word describing the . . . circumstances that led to the stop and arrest.” The trial court concluded that the DMV improperly relied on the unsworn report and ordered the DMV to set aside the suspension of Fox’s driving privilege and purge its records of the suspension action against Fox.
The DMV appeals. During the pendency of the appeal, we granted the application of the California DUI Lawyers’ Association to file a brief as amicus curiae in support of Fox, to which the DMV responded.
Discussion
I. Use of Arresting Officer’s Unsworn Report to Establish Reasonable Cause for the Traffic Stop
The DMV argues that the trial court erred when it concluded that the unsworn report was inadmissible to establish reasonable cause for the vehicle stop. The DMV asserts that the unsworn report was admissible under MacDonald, whether or not it was properly incorporated by reference. Fox responds that the trial court properly interpreted MacDonald and that the unsworn report was inadmissible under MacDonald because the sworn report was wholly devoid of facts on the question whether Officer Macias had reasonable cause to detain Fox.
At oral argument, the DMV argued for the first time that all of the evidence necessary to uphold the suspension of Fox’s license was in the sworn report and that all that was necessary to uphold the suspension was evidence that the officer observed the licensee driving and that the officer observed signs of intoxication. Since these points were not addressed in the DMV’s opening brief and were raised for the first time at oral argument, we decline to consider them. (Estate of McDaniel (2008) 161 Cal.App.4th 458, 463 [it is a “well established” principle of appellate review that “contentions raised for the first time at oral argument are disfavored and may be rejected solely on the ground of their untimeliness”].)
The DMV also contends that Officer Macias did all that is necessary to incorporate the unsworn report into the sworn report by reference and that the trial court erred when it found that the information regarding the circumstances of Fox’s driving in the unsworn report was not properly incorporated by reference into the sworn report. The DMV argues that the trial court did not cite any legal authority that supports its conclusion that Officer Macias improperly altered his sworn report and that there is no evidentiary support for the trial court’s finding that Officer Macias signed the sworn report before he completed the unsworn report.
A. California’s Implied Consent Law
California’s implied consent law “provides that ‘[a] person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for’ a driving-under-the influence offense (§ 23612, subd. (a)(1)(A)), and that such testing ‘shall be administered at the direction of a peace officer having reasonable cause to believe’ the person was driving while under the influence of alcohol or a drug. (§ 23612, subd. (a)(1)(C).) In subsequent subsections, the statute sets forth in detail the circumstances under which, pursuant to this implied consent, the arresting officer may require a chemical test, the various test choices available to the arrestee, and the procedure to be followed by the officer with respect to the arrestee’s license in the event the arrestee refuses to take or complete a required test. (Id., subds. (a)(2), (b)-(g).)” (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1129-1130 (Troppmann).)
“Section 13353 is a related statute that works in tandem with section 23612. Section 13353 specifies actions to be taken by the DMV in the event a person refuses an officer’s request to submit to a chemical test. Subdivision (a) of section 13353 authorizes the DMV to suspend or revoke the driver’s license of ‘a person [who] refuses [a law enforcement] officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle’ while under the influence of alcohol or a drug. . . . Section 13353 also confirms the process by which the arresting officer is personally to serve upon a recalcitrant arrestee a notice of suspension or revocation ‘pursuant to Section 23612.’ (§ 13353, subd. (c).)” (Troppmann, supra, 40 Cal.4th at p. 1130.)
“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. [Citation.] 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. [Citation.] 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.” (MacDonald, supra, 32 Cal.4th at p. 155.)
Under the administrative per se laws, when a person is arrested for driving under the influence and refuses or fails to complete a chemical test or tests, the arresting officer serves the person with a “notice of the order of suspension or revocation.” (§§ 23612, subd. (e), 13353, subds. (a) & (c).) The notice shall be on the form provided by the DMV. (§§ 13353, subd. (c), 23612, subd. (e).) The notice informs the person that his or her driver’s license will be suspended 30 days from the date of service, states the reason and statutory grounds for the suspension (in this case the refusal to submit to a chemical test), and explains the person’s right to seek an administrative hearing. (Lake v. Reed (1997) 16 Cal.4th 448, 455 (Lake).) If the arresting officer serves the notice, the officer confiscates the person’s driver’s license and issues a 30-day temporary license, as was done in this case. (§ 23612, subd. (f).)
Thereafter, relevant here, section 13380 requires that the arresting 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 the person violated Section . . . 23152 . . ., a report of the results of any chemical tests that were conducted on the person or the circumstances constituting a refusal to submit to or complete the chemical testing . . ., 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.” (§ 13380, subd. (a); see also § 23612, subd. (g)(1).) The officer’s sworn report shall be made on forms furnished or approved by the department. (§ 13380, subd. (b).) In addition, the officer “shall immediately forward a copy of the completed notice of suspension or revocation form, and any driver’s license taken into possession . . ., with the report required by Section 13380, to the department.” (§ 23612, subd. (g)(1).)
All statutory references to “the department” are to the DMV. (§ 290.)
After the arresting officer serves a person with a notice of an order of suspension or revocation of the person’s driver’s license, the DMV automatically reviews the merits of the suspension or revocation. (§§ 13353, subd. (d); 13557, subd. (a).) The standard of review is preponderance of the evidence (§ 13557, subd. (b)(1)) and the DMV bears the burden of proof. (Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536; Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 388.) The DMV is required to make its determination before “the effective date of the order of suspension or revocation.” (§ 13557, subd. (c).) However, the DMV may dispense with such automatic review if the driver requests a hearing. (§ 13557, subd. (e).) Since Fox requested a hearing and there is nothing in the record regarding this level of review, it does not appear that the internal administrative review was done in this case.
A driver served with a DMV suspension notice is entitled to an administrative hearing on request. (§§ 13558, subd. (a), 14100, subd. (a).) “The administrative hearing is held before either the director of the DMV, a hearing board or, more usually, a department hearing officer (§ 14104.2, subd. (a)).” (Lake, supra, 16 Cal.4th at p. 456.)
In a DMV administrative hearing in a refusal case, the DMV is required to suspend a person’s driving privilege if it determines by a preponderance of the evidence that (1) a “peace officer had reasonable cause to believe that the person had been driving a motor vehicle” under the influence of alcohol or drugs, (2) “the person was placed under arrest,” (3) “the person refused or failed to complete a chemical test or tests” and (4) except for situations that do not apply here, “the person was told that his or her [driving privilege] would be suspended or revoked if he or she refused to submit to, and complete, the required testing.” (§§ 13557, subd. (b)(1), 13558, subd. (c)(1).) “[T]hose four factors are the ‘only’ issues to be resolved at the administrative hearing . . . .” (Troppman, supra, 40 Cal.4th at p. 1131 citing § 13558, subd. (c)(1).) The DMV bears the burden of proof. (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.)
B. Standard of Review
“In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, ‘ “whether the weight of the evidence supported the administrative decision.” ’ ” (Lake, supra, 16 Cal.4th at p. 456.) Here, the trial court granted the writ. On appeal, we “ ‘need only review the record to determine whether the trial court’s findings are supported by substantial evidence.’ [Citation.] ‘ “We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision.” ’ ” (Id. at p. 457.) “If the facts are undisputed and the issue presented is a question of law, . . ., we conduct an independent review.” (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484 (Arburn).)
C. General Rules Governing Admissibility of Evidence in DMV Proceedings
When the DMV conducts its automatic internal review of an order of suspension, it “shall consider the sworn report submitted by the peace officer pursuant to Section 23612 or 13380 and any other evidence accompanying the report.” (§ 13557, subd. (a), italics added; see also Lake, supra, 16 Cal.4th at p. 457.) “If the driver, as here, requests a hearing, the universe of potentially available evidence is enlarged, for ‘[a]ny evidence at the hearing shall not be limited to the evidence presented at an administrative review pursuant to Section 13557.’ (§ 13558, subd. (b).)” (Lake, at p. 458.)
The rules governing the evidence available for use in DMV administrative per se hearings “are set forth in division 6, chapter 3, article 3 of the Vehicle Code, commencing with section 14100. (§ 14100, subd. (a).) Two provisions are especially relevant. First, section 14104.7 states in pertinent part: ‘At any hearing, the department shall consider its official records and may receive sworn testimony.’ (Italics added.) Second, for all matters not specifically covered by . . . the Vehicle Code [provisions,] section 14112 incorporates the provisions of the Administrative Procedures Act governing administrative hearings generally. (Gov. Code, § 11500 et seq.; see also, id., § 11501, subd. (b)(41) [Administrative Procedures Act applies to DMV].)” (Lake, supra, 16 Cal.4th at p. 458.)
Section 14104.7 describes other types of admissible evidence that are not relevant to the instant inquiry, such as the reports of medical personnel or excerpts from expert testimony in other administrative cases before the DMV. (§ 14104.7, subds. (a) & (c); Lake, supra, 16 Cal.4th at p. 460, fn. 7.)
Government Code section 11513 addresses the admissibility of evidence generally in administrative hearings. (Lake, supra, 16 Cal.4th at p. 458.) It provides in relevant part: “(c) 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. [¶] (d) Hearsay 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.” (Gov. Code, § 11513, subds. (c) & (d).)
D. Use of Unsworn Reports by Law Enforcement Officers in DMV Administrative Hearings
In Lake, supra, 16 Cal.4th 448, the California Supreme Court was asked to determine whether, “in an ‘administrative per se’ review hearing, the DMV presents sufficient evidence to show the individual arrested was driving the motor vehicle, when the only evidence that satisfies an exception to the hearsay rule is contained in an unsworn police report” of an officer who was not the arresting officer. (Id. at pp. 451-452.) In Lake, the DMV offered two pieces of evidence to prove that Lake was driving: (1) the sworn report of the arresting officer (Officer Dickerson) on a DS 367 form and (2) an unsworn report from Officer King. (Id. at p. 458.) The arresting officer did not see Lake behind the wheel and his sworn report provided only hearsay evidence on the issue. Under Government Code section 11513, it was insufficient by itself to support a finding that Lake was behind the wheel. (Id. at p. 459.)
Officer King’s unsworn report related Lake’s admission that he was driving, as well as the statement of another witness, who said that Lake was driving. (Lake, supra, 16 Cal.4th at pp. 458-459.) The licensee argued that Officer King’s report was inadmissible because it was unsworn. The Supreme Court disagreed, reasoning that section 13557, subdivision (a) allows the hearing officer to consider the sworn report “ ‘and any other evidence accompanying’ ” it. (Lake, supra, 16 Cal.4th at p. 459.) The court stated that “[s]o long as the arresting officer files a sworn report, we see nothing in [former] section 23158.2 [(now section 13380)] that specifically precludes consideration of other, unsworn police reports.” (Id. at p. 460.) The court concluded that “permitting the [DMV] hearing officer to consider and rely on Officer King’s unsworn police report does not unfairly evade the [statutory] requirement . . . that the arresting officer file a sworn report.” (Ibid.) The court reasoned that Officer King’s report, which was hearsay, was excepted from the hearsay rule under the public employee records exception to the hearsay rule (Evid. Code, § 1280). However, like the arresting officer, Officer King did not personally observe Lake driving and relied on hearsay statements from Lake and another witness. But, Lake’s admission to Officer King that he was driving was excepted from the hearsay rule as a party admission. (Evid. Code, § 1220.) The court concluded that under Government Code section 11513, the evidence of Lake’s admission was sufficient by itself to support the hearing officer’s finding that Lake was driving the vehicle. Moreover, once Officer King’s report was properly admitted, the other evidence (the arresting officer’s report and the witness statements), though hearsay, could properly be used to explain and supplement Lake’s admission. (Lake, at pp. 461-462.) Thus, the court held that in a DMV administrative review hearing, the evidence needed to justify the suspension could come from an unsworn statement of a non-arresting officer. (Id. at pp. 462, 467.)
In MacDonald, our Supreme Court was presented with the question whether in an administrative hearing, the DMV may consider the arresting officer’s unsworn report in addition to his or her sworn statement. (MacDonald, supra, 32 Cal.4th at p. 153.) With respect to the facts and circumstances that led to the stop, the officer’s sworn report in MacDonald stated: “Driving w/b 101 Desoto to Topanga weaving side to side in W-1 lane – stop made.” (Id. at p. 154.) The officer’s unsworn report provided more detail; it indicated that the officer had observed the licensee, who was driving in the Number 5 lane on a freeway, “encroach two feet into the [Number] 4 lane and then slowly drift five feet onto the shoulder.” (Id. at p. 153.) The Supreme Court observed that there was a split of authority in the Court of Appeal on the question whether the DMV could consider the arresting officer’s unsworn report and concluded that under the statutory scheme, the DMV can consider both reports. (Id. at pp. 153, 156-158.)
The court stated, “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).” (MacDonald, supra, 32 Cal.4th at page 158.) The court stated, “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 persons are accustomed to rely in the conduct of serious affairs . . . .’ (Lake, [supra, 16 Cal.4th] 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.” ’ [Citation.] 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,’ . . . ‘[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 drivers licenses quickly suspended so as to ensure they will not endanger the public by continuing to drive.’ ” (MacDonald, supra, at pp. 158-159.)
The court held, “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.” (MacDonald, supra, 32 Cal.4th at p. 159.)
E. Analysis
The DMV contends that the trial court erred when it concluded that the unsworn report was inadmissible to establish reasonable cause for the vehicle stop. The DMV asserts that the unsworn report was admissible under MacDonald, whether or not it was properly incorporated by reference. Fox responds that the trial court properly interpreted MacDonald and that the unsworn report was inadmissible under MacDonald because the sworn report was wholly devoid of facts on the question whether Officer Macias had reasonable cause to detain Fox.
In our view, the arresting officer’s unsworn report in this case is admissible under the standard set forth in MacDonald. Officer Macias filed a sworn report on the form approved by the DMV. As required by section 13380, as interpreted in MacDonald, the sworn report contained “nearly all of the information necessary to remove [Fox’s] license.” (MacDonald, supra, 32 Cal.4th at p. 159.) As relevant here, section 13380 requires that the arresting officer’s sworn report contain three categories of information: (1) “information that adequately identifies the person,” (2) “a statement of the officer’s grounds for belief the person violated Section . . . 23152 [(driving while under the influence of alcohol or drugs)] . . .,” and (3) “a report of . . . the circumstances constituting a refusal to submit to or complete the chemical testing . . . .” (§ 13380, subd. (a).)
With regard to the first category, the sworn report contained information that adequately identified Fox, including her full name, driver’s license number and type, address, and date of birth. It included information regarding her gender, hair and eye color, and height and weight.
With regard to the second category, the sworn report contained some information regarding Officer Macias’s grounds for believing Fox was driving while under the influence of alcohol. It included the date of the incident, the time Officer Macias first observed Fox driving, and a general description of the location (“Salinas/Monterey”). It identified the pick-up she was driving by its license plate number. It stated “ I had reasonable cause to believe the driver was driving a motor vehicle with alcohol and/or drugs present in the blood or while under the influence.” It provided the date and time of the arrest. It stated that Officer Colby also observed Fox’s driving and provided contact information for Officer Colby. It set forth Fox’s “Objective Symptoms of Intoxication,” which included “Bloodshot/watery eyes,” “Odor of alcoholic beverage”, “Unsteady gait,” “Slurred speech,” and “Poor Performance on FST’s” (field sobriety tests) as observed by Officer Macias at 12:20 a.m.
The only thing missing from the second category of information was a description of Fox’s driving that led to the traffic stop. The DS 367 form used in this case contained a section entitled “Probable Cause” that instructed the officer to “[d]escribe in detail the facts and circumstances that led to the stop or contact” and to “[p]rint or write directly on this page or attach complete arrest report or narrative report.” Rather than describe those circumstances on the DS 367 form, Officer Macias checked the box stating “See attached arrest report or narrative report, which is incorporated by reference.” The unsworn arrest report contained detailed information regarding the circumstances that led to the stop, which we have set forth in our statement of facts.
Fox has attached a document to her brief that she describes as a subsequent revision to this part of the DS 367 form. Fox has not authenticated the document or provided any foundation. She has not requested that we take judicial notice of the document. We shall therefore disregard the exhibit and Fox’s argument based on the exhibit. We also deny amicus California DUI Lawyers’ Association’s request to take judicial notice of the document.
With regard to the third category of information, the sworn report contained information regarding the “circumstances constituting a refusal to submit to . . . the chemical testing.” (§ 13380, subd. (a).) It contained the full text of the chemical test admonition that Officer Macias gave to Fox, which is set forth in the statement of facts above, and noted the time the admonition was given. It noted her refusal to submit to both breath and blood tests and her request to see her attorney. The sworn report indicated that Officer Macias arrested Fox at 12:23 a.m., that Fox surrendered her license to the officer, and that he served her with the suspension order. It also provided identifying information regarding the officer.
In our view, “nearly all” of the information necessary to remove Fox’s license was in the sworn report. (MacDonald, supra, 32 Cal.4th at p. 159.) Although Officer Macias’s sworn report did not contain information regarding the circumstances that led to the traffic stop, we cannot say that the sworn report was “wholly devoid of relevant information” with regard to the circumstances that led to the suspension of Fox’s license. (Ibid.) In our view, Officer Macias’ failure to include information regarding the circumstances of Fox’s driving is a “technical omission[] of proof” that “can be corrected by [resort to his] unsworn report.” (Ibid.)
As the court observed in MacDonald, section 13557 provides that the DMV “shall consider the sworn report submitted by the peace officer . . . and any other evidence accompanying the report.” (MacDonald, supra, 32 Cal.4th at p. 158.) Moreover, since the unsworn report was admissible under the public employee’s exception to the hearsay rule (Evid. Code, § 1280) and was “ ‘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) it was sufficient in itself to support the DMV hearing officer’s finding that Officer Macias had reasonable cause to stop Fox (Gov. Code, § 11513, subds. (c) & (d)).
Fox argues that this case is distinguishable from MacDonald because the sworn report in MacDonald contained some information regarding the circumstances of the licensee’s driving, while Officer Macias’s report does not contain any facts regarding the manner in which Fox was driving. In our view the absence of this information does not preclude use of the unsworn report. As we noted previously, there are four factors that the DMV must prove in an administrative hearing concerning a license suspension based on a refusal to submit to or complete a chemical test. (§§ 13557, subd. (b)(1), 13558, subd. (c)(1).) Those factors include evidence: (1) that a “peace officer had reasonable cause to believe that the person had been driving a motor vehicle” under the influence of alcohol or drugs, (2) that “the person was placed under arrest,” (3) “that the person refused or failed to complete a chemical test or tests” and (4) except for situations that do not apply here, that “the person had been told that his or her [driving privilege] would be suspended or revoked if he or she refused to submit to, and complete, the required testing.” (§§ 13557, subd. (b)(1), 13558, subd. (c)(1).) Nothing in the statutes or MacDonald requires that there be evidence on all four factors in the sworn report, that we parse out any one of the four factors, or that there be evidence on the particular factor at issue in this case (whether the officer had reasonable cause to believe that Fox had been driving under the influence of alcohol) for the rule set forth in MacDonald to apply. Viewing the sworn report as a whole, it contained nearly all of the information necessary to uphold the suspension of Fox’s license. In Lake, as here, the only non-hearsay evidence that supported one of the DMV’s findings that was necessary to uphold the license suspension was in an unsworn report. (Lake, supra, 16 Cal.4th at pp. 452-453, 458, 461-462 [evidence that Lake was the driver].) Our conclusion is consistent with the purpose of the administrative per se laws, which is “ ‘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.’ ” (MacDonald, supra, 32 Cal.4th at p. 159.)
For all these reasons, we conclude that the trial court erred when it held that this case was distinguishable from MacDonald and when it held that the DMV could not rely on the unsworn report to provide the information regarding the circumstances of the stop.
In light of our conclusion, we shall not reach the DMV’s contentions that the trial court erred when it found that the information regarding the circumstances of Fox’s driving in the unsworn report was not properly incorporated by reference into the sworn report and that Officer Macias improperly altered his sworn report or the DMV’s argument there is no evidentiary support for the trial court’s factual finding that Officer Macias signed the sworn report before he completed the unsworn report.
II. Whether Arresting Officer Had Reasonable Cause to Stop the Vehicle
The DMV argues that the undisputed evidence in the sworn and unsworn reports, when viewed as a whole, was sufficient to establish reasonable cause to stop the pick-up. Fox contends that even if the unsworn report was admissible, there was insufficient evidence to support the DMV’s finding that the officer had reasonable cause to stop the pick-up. Fox argues that the DMV hearing officer made factual findings that are not supported by the evidence and that the facts that can be gleaned from the reports do not support a finding of reasonable cause.
At oral argument, the DMV asserted that, for the purposes of a DMV administrative per se hearing, there is no requirement of reasonable suspicion to detain the licensee. The DMV argued that under Park v. Valverde (2007) 152 Cal.App.4th 877 whether the officer had reasonable suspicion to stop the vehicle was irrelevant, since the exclusionary rule does not apply in DMV proceedings. The DMV raised a related point for the first time in its reply brief. Citing Park, it argued, “Even in the absence of reasonable cause for detention, the exclusionary rule does not bar evidence of Fox’s driving and intoxication.” Although Park was not decided until after the DMV and superior court hearings in this case, it was decided six months before the DMV’s opening brief was filed. Since these issues were not addressed in the DMV’s opening brief, were raised for the first time in the reply brief and at oral argument, and the DMV has not explained its failure to present them before, we decline to consider them here. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10 [points first raised in reply brief will not be considered unless good reason is shown for failing to present them before]; Estate of McDaniel, supra, 161 Cal.App.4th at p. 463 [“ ‘contentions raised for the first time at oral argument are disfavored and may be rejected solely on the ground of their untimeliness’ ”].)
The trial court did not make any findings with regard to this issue in its statement of decision and merely held that “[w]ithout the unsworn report concerning [Fox’s] driving, the evidence does not support the hearing officer’s findings upholding the . . . suspension.”
“ ‘ “Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess ‘reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ . . . Such reasonable suspicion ‘requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.’ ” ’ ” [Citation.] ‘Under this standard, an officer may stop and briefly detain a suspect for questioning for a limited investigation even if the circumstances fall short of probable cause to arrest.’ [Citation.] The standard of reasonable suspicion is ‘less demanding than probable cause “not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” ’ [Citation.] At the same time, however, ‘no stop or detention is permissible when the circumstances are not reasonably “consistent with criminal activity” and the investigation is therefore based on mere curiosity, rumor, or hunch.’ ” (Arburn, supra, 151 Cal.App.4th at p. 1484.)
We begin by addressing Fox’s contention that some of the hearing officer’s factual findings are not supported by the evidence. Officer Macias reported that at 12:05 a.m. on June 5, 2006, he was travelling approximately 65 miles per hour in the in the southbound number 1 lane on U.S. Highway 101 just south of Orchard Lane in the Salinas area when he observed a pick-up driven by Fox directly ahead of him in the same lane. Officer Macias saw a Sheriff’s Department patrol car, which was travelling southbound in the number 2 lane at about 70 miles per hour, pass the pick-up. Officer Macias saw the pick-up “swerve over to the left[,] crossing the solid yellow roadway edge line. As [he] continued to follow [the pick-up, he] observed the [pick-up] weaving back and forth within the #1 lane before finally moving into the #2 lane just north of Ralph Lane.” Officer Colby activated the patrol vehicle’s overhead lights and the officers “initiated a traffic stop of the [pick-up] southbound US-101 at White Road. The [pick-up] pulled to the right asphalt shoulder and came to a stop.”
The DMV hearing officer found that Officer Macias “observed [Fox] driving a motor vehicle and allowing vehicle to cross double yellow lines and travelling 70 mph in a 65 mph speed zone, a violation of the California Vehicle Code. Also [Fox] allowed the vehicle to weave back and forth within the #1 lane.” (Italics added.) The hearing officer concluded that the facts articulated by Officer Macias were “sufficient to establish the validity of the stop.”
Based on this record, we agree with Fox’s assertion that the record does not support the hearing officer’s factual findings that Fox crossed a double yellow line or that she was travelling 70 miles per hour. Officer Macias reported that the Sheriff Department vehicle, not Fox, was going 70 miles per hour when it passed Fox. However, the report does support the DMV’s findings that Fox crossed a solid yellow roadway edge line and that she was weaving in her lane.
Fox contends that the law requires that “ ‘weaving’ ” within a lane must occur for a substantial distance, must be pronounced, and must be observed by an experienced officer to justify a stop. She argues that the evidence does not specify how long she was weaving or indicate that the weaving was pronounced. She also contends that swerving over the lane line was justified when the Sheriff’s Department patrol car passed her.
As this court observed in Arburn, “[more than one California court has found that ‘weaving’ within a lane provides sufficient cause to conduct an investigatory stop.” (Arburn, supra, 151 Cal.App.4th at p. 1485.) For instance, in People v. Perez (1985) 175 Cal.App.3d Supp. 8, 10-11 (Perez), the court held that the officer’s observation of “ ‘pronounced weaving’ within the lane,” that was described as “two feet in each direction” on an Interstate highway at 2:15 a.m. that continued “for a substantial distance” of “about three quarters of a mile” justified the traffic stop. Likewise, in People v. Bracken (2000) 83 Cal.App.4th Supp. 1, 3 (Bracken), the officer’s observation of a “vehicle weav[ing] within its own lane for a distance of approximately one-half mile” presented reasonable suspicion justifying the traffic stop. The court held, “There is a reasonable inference that something is wrong when a vehicle weaves while it is being followed by a law enforcement officer and that the cause may be a driver under the influence of alcohol or drugs.” (Id. at p. Supp. 4; see also People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 14 [driving 20 miles per hour under the speed limit and “weaving abruptly from one side of his lane to the other”.)
In Arburn, the officer observed a motorist weaving within his lane for an unspecified distance at about the speed limit on a city street and “ ‘almost hit the west curb’ ” of the street on which he was traveling. (Arburn, supra, 151 Cal.App.4th at p. 1483 .) After the officer pulled in behind the motorist’s car, the motorist immediately pulled into a driveway. (Id. at p. 1483.) After the officer initiated a traffic stop, he observed objective signs that the motorist was intoxicated. A blood test later revealed that motorist had a blood alcohol content almost three times the legal limit. (Ibid.) The trial court concluded that there was insufficient evidence to support the DMV finding that the stop was justified. (Ibid.) We reversed. The majority of our court rejected the motorist’s contention that the record showed only a single weave within the lane and that this minimal deviation did not support a reasonable suspicion that the motorist was intoxicated. We inferred from the record “that the vehicle was moving back and forth” within the lane “and at one point narrowly missed the curb.” (Id. at p. 1484.)
The majority also rejected the argument that the absence of evidence that the motorist had been observed to have been weaving for a distance that was “substantial” (Perez, supra, 175 Cal.App.3d at p. Supp. 11) or “considerable” (Bracken, supra, 83 Cal.App.4th at p. Supp. 4) prevented a finding of reasonable suspicion. (Arburn, supra, 151 Cal.App.4that p. 1485.) We explained that “ ‘[w]eaving’ for even the length of a block may signify that something is amiss, and the distance of observation is not a controlling factor in evaluating a traffic stop. In Perez, the issue presented was whether weaving over three-quarters of a mile (referred to as a ‘substantial distance’) alone could provide sufficient justification for an investigatory stop. [Citation.] The court found that it did, and had no cause to determine whether a shorter distance would be sufficient.” (Id. at pp. 1485-1486.) We stated, “The facts presented in this case support more than a mere ‘hunch’ regarding criminal activity; Arburn’s weaving and near miss of the curb created an immediate concern for public safety and raised a reasonable suspicion that he was driving under the influence. [The officer] had the right and the duty to determine exactly what was causing Arburn’s car to weave and whether he could continue driving without presenting a safety risk.” (Id. at p. 1486.)
The dissent in Arburn disagreed that the officer had a reasonable suspicion to initiate the traffic stop, concluding that based upon “the incomplete state of the record presented at the DMV hearing, . . . [a]ll that may be gleaned from the record is that [the motorist], while proceeding at the speed limit, drove poorly for a brief period of time and over a short distance.” (Arburn, supra, 151 Cal.App.4th at p. 1487 (dis. opn. of Duffy, J.).)
The record here presents a showing of reasonable suspicion to justify the traffic stop that could be seen as more compelling than the showing in Arburn. Just south of Orchard Lane, Officer Macias observed Fox, who was in the number 1 lane, swerve to the left and cross over the solid yellow edge line as another vehicle passed her on the right. He continued to follow the pick-up and observed it weaving back and forth within its lane before finally moving into the number 2 lane just north of Ralph Lane.
We reject Fox’s contention that the swerve was justified because another vehicle was passing her in the next lane.
In conclusion, we agree with the DMV’s assertion that there was sufficient evidence to support the hearing officer’s finding that there was reasonable cause to stop the pick-up.
III. Alleged Officer-Induced Confusion
Fox contends that even if we conclude there was reasonable cause for the traffic stop, the trial court’s order should be affirmed because she refused the chemical testing due to officer-induced confusion. The DMV argues that there was no officer-induced confusion in this case, since Officer Macias did not administer the Miranda warnings to Fox and, in any event, he read her the advisement that is designed to eliminate any confusion that may result from both giving the Miranda warnings and advising a motorist that he or she is not entitled to have an attorney present during chemical testing.
Miranda v. Arizona (1966) 384 U.S. 436.
Although Fox raised this issue below, when granting her writ petition, the trial court did not make any findings with regard to her claim of officer-induced confusion. Likewise, the DMV hearing officer did not make any findings regarding the issue of officer-induced confusion.
“It is recognized that juxtaposition of the implied consent warnings (no right to refuse a test and no right to consult with or to have an attorney present during its administration) with the Miranda admonition (right to refuse interrogation and to have an attorney present at all stages of a police interrogation, etc.), is apt to induce confusion. If a driver who has been given Miranda insists on the presence of an attorney before choosing a test the courts have recognized that he [or she] may have been confused by the two warnings and the officer’s failure to clarify and explain the difference. In such a case the refusal to take a test has been held not to be a refusal within the meaning of said section 13353. (Rust v. Department of Motor Vehicles (1968) 267 Cal.App.2d 545, 547.) The question of officer-induced confusion is one of fact. [Citations.] When a driver who has been given Miranda manifests confusion by asserting his [or her] alleged right to an attorney, it is incumbent upon the officer to explain that the right does not apply to these tests.” (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658 (McDonnell).)
“Pepin v. Department of Motor Vehicles (1969) 275 Cal.App.2d 9 . . ., holds that mere insistence on an attorney because the driver wants to consult one about which test to take does not establish officer-induced confusion. Neither does being too drunk to understand the proffered information or explanations. (Smith v. Department of Motor Vehicles [(1969)] 1 Cal.App.3d 499[,] 505.) Further Goodman v. Orr (1971) 19 Cal.App.3d 845, 857 . . ., holds that lack of understanding engendered by partial intoxication does not affect the finality and effectiveness of refusal. Cahall v. Department of Motor Vehicles [(1971)] 16 Cal.App.3d 491 at page 497 states, ‘In determining whether an arrestee’s refusal is the result of confusion, the crucial factor is not the state of the arrestee’s mind; it is the fair meaning to be given his response to the demand that he submit to the chemical test.’ ” (McDonnell, supra, 45 Cal.App.3d at pp. 658-659.)
In this case, there is no evidence that Fox was given the Miranda warnings. Under the heading “Admonition of Rights,” the form used for the unsworn report sets forth the text of the Miranda warnings, followed by a line that states: “The above statement was read to the arrestee,” followed by another line that states: “BY: □ ARRESTING OFFICER □ OR: I.D. TIME: .” Officer Macias checked the box in front of the word “OR” and typed “NOT QUESTIONED AFTER ARREST.” He did not state that either he or Officer Colby administered the Miranda warnings to Fox. A reasonable inference from this evidence is that the officers did not read Fox the Miranda warnings. At the DMV hearing, Fox’s counsel acknowledged that under California’s implied consent law there is no right to counsel before completing chemical testing and stated “That’s why Miranda is not even read until after a sample is obtained . . . .” He also stated, “We know Miranda wasn’t done in this case because if you look at the [unsworn report], it tells us it was not read.” Thus, Fox’s counsel conceded that Fox did not receive the Miranda warnings. Without evidence that the officers read Fox the Miranda warnings, there is no claim of officer-induced confusion. Finally, after Fox was arrested, Officer Macias read her an admonition that explained that she was not entitled to counsel under the implied consent law. For these reasons, we reject Fox’s claim of officer-induced confusion.
Disposition
The judgment granting Fox’s petition for writ of mandate is reversed with direction to enter a new judgment denying the petition for a writ of mandate.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.