Opinion
2d Civil No. B163136.
10-30-2003
JASON ROBERT RANDALL, Plaintiff and Appellant, v. STEVEN GOURLEY, as Director, etc., et al., Defendants and Respondents.
Ronald A. Jackson for Plaintiff and Appellant. Bill Lockyer, Attorney General, Andrea Hoch, Chief Assistant Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Elizabeth Hong, Supervising Deputy Attorney General, Brian D. Vaughan, Deputy Attorney General, for Defendants and Respondents.
Jason Robert Randall 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, 13558.) He contends the evidence is insufficient to support the trial courts determination that his arrest was supported by probable cause. We conclude the information in the arresting officers sworn report is sufficient to make this showing. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On November 10, 2001, Santa Barbara Police Officer Tagles arrested Randall for driving under the influence of alcohol. The officers sworn statement, prepared on DMV form DS 367, stated that "Randall drove his vehicle into a DUI check point where all vehicles were stopped." In listing objective signs of intoxication, the officer checked boxes for "Bloodshot/watery eyes" and "Odor of alcoholic beverage." In a space provided for other observed symptoms, the officer wrote "nystagmus."
In an arrest report, Officer Tagles stated that Randall had admitted drinking a beer with dinner. The arrest report further indicated that Randall had been subjected to field sobriety tests and a preliminary alcohol screening breath test, which revealed a blood alcohol level in excess of 0.10 percent. A blood test subsequently revealed a blood alcohol level of 0.12 percent.
Randall requested an administrative hearing to challenge the DMVs decision to suspend his license. He offered no evidence at the hearing, but his attorney objected to the DS 367 report on foundational and hearsay grounds. Counsel also argued that the information in the DS 367 report was insufficient to demonstrate probable cause for his arrest, and that the hearing officer was precluded from considering the arresting officers unsworn arrest report for this purpose. Following the hearing, the DMV upheld the suspension. The trial court subsequently denied Randalls petition for a writ of mandate. The court concluded that while the information in the DS 367 report was insufficient to demonstrate probable cause, the hearing officer was entitled to consider information contained in the unsworn arrest report which, considered in conjunction with the sworn report, established probable cause for Randalls arrest. In reaching this conclusion, the court rejected our decision in Solovij v. Gourley (2001) 87 Cal.App.4th 1229, in favor of the contrary result reached in MacDonald v. Gourley (2002) 102 Cal.App.4th 568, review granted January 15, 2003, S111253. This appeal followed.
DISCUSSION
"Section 13380, subdivision (a), requires a peace officer who arrests a person for driving under the influence of alcohol or serves a DMV order of suspension of that persons license to `immediately forward to the [DMV] a sworn report of all information relevant to the enforcement action, including information that adequately identifies the person, a statement of the officers grounds for belief that the person violated Section . . . 23152, . . . [and] a report of the results of any chemical tests that were conducted on the person . . . . The DMV bears the burden of proving by a preponderance of the evidence that the driver has violated section 23152. [Citations.] In conducting its automatic review of the initial suspension decision, `the DMV must consider the [section 13380] sworn report and any other evidence accompanying the report. [Citation.]" (Dibble v. Gourley (2002) 103 Cal.App.4th 496, 500.)
"At the drivers request, the DMV must hold a hearing at which it must decide, among other things, whether the arresting officer had reasonable cause to believe that the driver had violated section 23152. [Citations.] 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. [Citation.] On appeal, we review the record to determine whether the trial courts findings are supported by substantial evidence and independently review the trial courts legal determinations. [Citation.] In conducting that review, `"`[w]e must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial courts decision. [Citations.] . . ." [Citation.]" (Dibble v. Gourley, supra, 103 Cal.App.4th at p. 501.)
In Solovij v. Gourley, supra, 87 Cal.App.4th 1229, we held it was error to admit at the administrative hearing, over the drivers objection, an arresting officers unsworn reports to prove that the drivers arrest was supported by probable cause. Randall contends the trial court erred in rejecting this decision, and that the information in Officer Tagles sworn report is insufficient to show probable cause for his arrest.
We reject the trial courts conclusion that the information in the sworn report is insufficient to support a finding of probable cause for Randalls arrest for driving in violation of section 23152. "Probable cause to arrest `exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citations.] [Citation.]" (People v. Hill (2001) 89 Cal.App.4th 48, 54; Dibble v. Gourley, supra, 103 Cal.App.4th at p. 503.) The sworn report provides that Randall had driven into a sobriety checkpoint, where he was observed to have bloodshot or watery eyes, an odor of alcohol, and nystagmus. These observations gave rise to a strong suspicion that Randall was driving in violation of section 23152. (See Dibble, p. 503 [sworn statement providing that a driver was observed to have bloodshot eyes, slurred speech, an unsteady gait, and the odor of alcohol within 30 minutes after leaving the scene of an accident held sufficient to establish probable cause]; Grundy v. Gourley (2003) 110 Cal.App.4th 20, 24-25 [probable cause established by arresting officers sworn statement that the driver was observed to have bloodshot and watery eyes and smelled of alcohol shortly after she was involved in an accident].) Because all of the information relevant to the probable cause determination was included in the arresting officers sworn report, the trial court did not have to consider information from another source in order to uphold the suspension decision.
Randall also contends the hearing officer erred by relying on the official duty presumption (Evid. Code, § 664) in concluding that the arrest was supported by probable cause. Aside from the fact that Randall did not raise this contention in the trial court and cannot do so for the first time now, his contention is belied by the record. The hearing officer merely concluded that Randalls challenges to the DS 367 report were insufficient to overcome the presumption that the blood test to which Randall was subjected had been conducted pursuant to an official duty that had been regularly performed.
The judgment is affirmed. Costs to respondents.
We concur: GILBERT, P.J., COFFEE, J. --------------- Notes: All statutory references are to the Vehicle Code unless otherwise noted.