Opinion
G044760 Super. Ct. No. 30-2010-00413932
10-28-2011
MADELEINE SHANE, Plaintiff and Appellant, v. GEORGE VALVERDE, as Director, etc., Defendant and Respondent.
Michael Shane for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney General, Celine M. Cooper and Melissa F. Day, Deputy Attorneys General, for Defendant and Respondent.
Filed 10/28/11 Shane v. Valverde CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Gregory Munoz, Judge. Affirmed.
Michael Shane for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney General, Celine M. Cooper and Melissa F. Day, Deputy Attorneys General, for Defendant and Respondent.
Plaintiff Madeleine Shane appeals from a judgment denying her petition for writ of mandate to overturn suspension of her driver's license. She argues her initial detention was unconstitutional because police did not have reasonable suspicion she was intoxicated and there was insufficient evidence at the administrative hearing conducted by defendant Department of Motor Vehicles (DMV) to support a finding she was driving under the influence of alcohol and drugs. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
One night just after midnight Officer Fulks of the Irvine Police Department saw plaintiff's car "swerving and weaving in traffic" on the freeway. Fulks pulled over plaintiff but because he was already transporting an "arrestee" he called for another officer to assist. When Officer Partida arrived Fulks told him plaintiff's car "had been swerving in and out of traffic lanes."
Partida approached plaintiff, who was still in the driver's seat. He smelled alcohol on her breath and saw her eyes were bloodshot; when she spoke to him her speech was slurred. Partida asked her why she had been swerving and she answered that it was "[p]robably because [she] had a little to drink" and had "smoked 'one bowl' of marijuana" that was affecting her more than the alcohol. She did not perform well on the field sobriety tests and the results of two preliminary alcohol screening tests were .051 percent and .049 percent at 1:00 a.m. and three minutes later, respectively. Determining plaintiff was intoxicated Partida arrested her for driving under the influence of alcohol and drugs (Veh. Code, § 23152, subd. (a)). Upon searching the car Partida found six cold beers remaining in an 18-can pack. Plaintiff, who was then 20 years old, surrendered her driver's license.
At the administrative hearing the following documents were admitted into evidence, some over plaintiff's objections: 1) the officer's statement for a driver under age 21; 2) the arrest report; 3) the lab report showing plaintiff's blood alcohol level at .03; and 4) plaintiff's DMV driving printout.
In finding plaintiff was driving with a blood alcohol level of .01 percent or over while under the age of 21, the hearing officer determined Fulks had probable cause to detain defendant based on his observation of her swerving in and out of lanes. After he relayed the information to Partida, the latter formed the opinion plaintiff was intoxicated after considering her physical condition, failure to pass the field sobriety tests, admission she had consumed alcohol and used marijuana, preliminary blood alcohol results, and the beer in her trunk. The hearing officer also found Partida lawfully arrested defendant. The Vehicle Code provides for immediate suspension of a driver's license for a person under 21 with a blood alcohol level of .01 percent or higher (Veh. Code, § 13353.2, subd. (a)(2)) and on that basis the stay of suspension of plaintiff's license was lifted and the suspension was reimposed.
Plaintiff then filed a petition for writ of mandate to set aside the suspension, based on the sole issue of whether police had reasonable cause to detain and arrest her. The court denied the petition, stating in its tentative ruling that, after an independent weighing of the evidence there was sufficient cause to stop plaintiff. Plaintiff did not meet her burden to show to the contrary.
DISCUSSION
On appeal plaintiff relies on the same argument as she did in the trial court, that police did not have a reasonable suspicion she was driving under the influence when she was detained. The basis for this is that Fulks' only statement to Partida about why he stopped plaintiff was that she "had been swerving in and out of traffic lanes." She claims this is not sufficient to justify a stop because it failed to describe for how long the swerving went on, the "manner" of swerving, the distance into or out of the adjoining lanes, or the number of times she swerved. She claims this violates the rule that Fulks had to "be able to point to 'specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant[ed]'" the stop. (People v. Evans (1977) 65 Cal.App.3d 924, 931.) Not so.
Swerving and weaving in traffic is sufficient to justify a detention. In Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480 the arresting officer detained the plaintiff for "'weaving' in the lane" and almost hitting a curb. The plaintiff argued "that a single weave or swerve presents insufficient cause to suspect an intoxicated driver." (Id. at p. 1484.) In rejecting the argument the court pointed to several cases that had held "'weaving' within a lane" justified a stop. Although in a couple of the cases cited, the description of the weaving was slightly more detailed than in the instant case, e.g., weaving for half or three-quarters of a mile (id. at p. 1485), in one case, People v. Russell (2000) 81 Cal.App.4th 96, 104, the court found merely "drifting around in [the] lane" was sufficient cause to detain.
"Weaving within a lane is a widely recognized characteristic of an intoxicated driver and recognizing a weaving driver is undoubtedly within the province of even the most junior officer." (Arburn v. Department of Motor Vehicles, supra, 151 Cal.App.4th at p. 1485.) "[T]the lack of evidence [the plaintiff] was observed weaving over a 'substantial' or 'considerable' distance does not prevent a finding of reasonable suspicion. [Citations.]" (Ibid., fn. omitted.)
Moreover, in Fulks' supplemental report he more specifically stated he watched plaintiff's car for two miles and saw it weaving during that time, on two occasions "drift[ing] halfway into the adjacent lane." It also unnecessarily braked several times in the absence of traffic. This is a more than sufficient articulation of his cause to detain plaintiff.
The other ground for plaintiff's appeal, however, is that, although it was part of the administrative record lodged as part of defendant's opposition to the writ petition, this supplemental report was not in evidence at the DMV hearing and should not have been considered by the trial court, which relied on it to support its finding Fulks had reasonable cause to detain plaintiff. Partida's arrest report referred to Fulks' supplemental report. At the administrative hearing plaintiff's counsel informed the hearing officer he never received a copy of it in discovery. Plaintiff argues that the hearing officer did not refute his comment nor did she refer to it in the decision but stated only that reasonable cause to detain was due to Fulks' observing plaintiff swerving in and out lanes. Based on her counsel's belief in the integrity of the hearing officer, plaintiff concludes the hearing officer did not have the supplemental report.
But as pointed out by the Attorney General, the supplemental report was part of Partida's arrest report, which was admitted into evidence at the administrative hearing. It is also part of the certified copy of defendant's records lodged by defendant in opposition to the petition for writ of mandate. An officer making an arrest for driving under the influence must send to the DMV "a sworn report of all information relevant to the enforcement action . . . ." (Veh. Code, § 13380, subd. (a).) "It is presumed that official duty has been regularly performed." (Evid. Code, § 664.) Notwithstanding plaintiff's assumptions to the contrary, there is no evidence to show the hearing officer did not have the supplemental report.
Even if plaintiff did not receive the supplemental report in discovery she has not shown prejudice. Partida's arrest report states Fulks reported plaintiff's car was "swerving in and out of traffic lanes" and "swerving and weaving in traffic." Moreover, in the arrest report Partida related his conversation with plaintiff where he advised her Fulks "had seen her weaving in traffic and asked her if there was any reason she had been doing this." Thus, plaintiff was aware of the basis of the detention. And, although the trial court specifically relied on the supplemental report as the basis for its determination of reasonable cause, as discussed above the record supports the finding based on Partida's reports even absent the supplemental report.
Where there has been no prejudice we may not set aside a judgment. (Cal. Const., art. VI, § 13 ["No judgment shall be set aside . . . in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice"]; see Leal v. Gourley (2002) 100 Cal.App.4th 963, 969 [despite DMV's failure to give simultaneous notice of hearing and right to interpreter, judgment affirmed because no prejudice].) Such is the case here.
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
RYLAARSDAM, ACTING P. J. WE CONCUR: BEDSWORTH, J. O'LEARY, J.