Opinion
F085146
04-05-2024
GUILLERMO RENE TAMAYO, Plaintiff and Appellant, v. STEVE GORDON, as Director of Department of Motor Vehicles, etc., Defendant and Respondent.
Middlebrook & Associates, Richard O. Middlebrook and Gabrielle A. Burnett for Plaintiff and Appellant. Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gabrielle H. Brumbach and Samuel Richman, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. BCV-22-101120 BCB Bernard C. Barmann, Jr., Judge.
Middlebrook & Associates, Richard O. Middlebrook and Gabrielle A. Burnett for Plaintiff and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gabrielle H. Brumbach and Samuel Richman, Deputy Attorneys General, for Defendant and Respondent.
OPINION
LEVY, ACTING P. J.
Appellant Guillermo Rene Tamayo appeals from an order of the Kern County Superior Court denying his petition for a writ of mandate to compel the Department of Motor Vehicles (DMV) to set aside its suspension of his driver's license. We affirm the order of the superior court.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Subject Incident
In the early morning hours of September 10, 2021, Guillermo Rene Tamayo was arrested for driving a motor vehicle while under the influence of alcohol. The following details of his arrest and related investigatory stop are drawn primarily from the arresting officer's written statement and arrest investigation report.
On September 10, 2021, at approximately 1:13 a.m., Officer Lorenzo Valdovinos observed a motor vehicle "having trouble maintaining its lane." In his "Age 21 and Older Officer's Statement" (unnecessary capitalization omitted) (hereafter "Officer Valdovinos's written statement"), Officer Valdovinos stated that he "observed the vehicle veer to the right and drive on the painted broken white lines that separate the [number one] lane from the [number two] lane on two separate occasions" and saw the vehicle "veer[] to the right and the right side tires drove over the painted broken white lines that separate the [number one] lane from the [number two] lane." Officer Valdovinos "contacted the subject driver and observed objective sign[s] and symptoms of alcohol intoxication."
According to Officer Valdovinos's subsequent "Driving Under the Influence Arrest-Investigation Report" (bold type and unnecessary capitalization omitted) (hereafter "DUI arrest report"), Tamayo admitted drinking alcohol but stated it was "[n]ot that much." Officer Valdovinos "noticed the smell of an alcoholic beverage" coming from the vehicle and "an odor of an alcoholic beverage … emitting from [Tamayo's] breath and person." Officer Valdovinos observed Tamayo was "unsteady on his feet," his eyes were "red and watery," and his speech was slurred. Tamayo said, "[H]e consumed one beer and referred to it multiple times as 'my drink.'" He gave Officer Valdovinos conflicting statements concerning where he was traveling to and from that evening and asked to speak to Officer Valdovinos privately and" 'off the record.'" Officer Valdovinos replied that Tamayo was free to speak since no one else was nearby but that he would not be turning off his microphone.
Officer Valdovinos "ask[ed] Tamayo a series of Pre-Field Sobriety Test questions prior to explaining and demonstrating a series of Field Sobriety Tests (F.S.T.'s)" to Tamayo. Tamayo "related he understood all instructions given to him." Officer Valdovinos then administered the tests but Tamayo was unable to complete them as explained. The F.S.T.'s given to Tamayo were identified in the DUI arrest report as the "Horizontal Gaze Nystagmus" test, the "Modified Romberg" test, the "One Leg Stand" test, and the "Walk and Turn" test. Tamayo refused to complete a Preliminary Alcohol Screening Device (P.A.S.) test.
Having "formed the opinion Tamayo had been driving a motor vehicle under the influence of an alcoholic beverage and further operation would be unsafe," Officer Valdovinos arrested Tamayo for violation of Vehicle Code section 23152, subdivision (a)-Misdemeanor-Driving Under the Influence and recommended his investigation report be forwarded to the District Attorney for prosecution under subdivisions (a) and (b) of Vehicle Code section 23152.
All statutory references are to the Vehicle Code unless otherwise stated.
Tamayo was taken to Kern Regional Crime Laboratory where a blood sample was taken from him and analyzed. The results of the analysis showed Tamayo had a blood-alcohol level in excess of 0.20 percent ("blood test results").
Officer Valdovinos issued Tamayo an "Age 21 and Older Administrative Per Se Suspension/Revocation Order and Temporary Driver License" (unnecessary capitalization omitted) (hereafter "APS suspension order"), which advised Tamayo his "privilege to operate a motor vehicle [would] be suspended or revoked effective 30 days from the issue date" of the APS suspension order.
Because Tamayo opted to challenge the APS suspension order, the suspension of his license was stayed pending an Administrative Per Se (APS) hearing.II. The Administrative Per Se Hearing
"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, 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." (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155.)
An APS hearing was conducted before the DMV on April 6, 2022. The DMV hearing officer identified the issues for the hearing, as follows: (1) "did [Officer Valdovinos] have reasonable cause to believe [Tamayo] was driving a motor vehicle in violation of … Section 23152 or 23153"; (2) "was [Tamayo] lawfully arrested"; and (3) "was [Tamayo] driving … with .08 percent blood alcohol content or more by weight of alcohol."
Section 23152 makes it unlawful for a person to drive a vehicle while under the influence of alcohol or with a blood-alcohol content of 0.08 percent or more. (§ 23152, subds. (a) & (b).) Section 23153 makes it unlawful for a person to drive a vehicle while under the influence of alcohol or with a blood-alcohol content of 0.08 percent or more and "concurrently do[ing] any act forbidden by law, or neglect[ing] any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury" to another. (§ 23153, subds. (a) & (b).)
The DMV hearing officer introduced five exhibits on behalf of the DMV and accepted them into evidence without objection by Tamayo's counsel, namely: Exhibit 1- Officer Valdovinos's written statement; Exhibit 2-the blood test results; Exhibit 3-the DUI arrest report; Exhibit 4-the MVARS recording from September 10, 2021; and Exhibit 5-Tamayo's driving record.
MVARS is an acronym for Mobile Video Audio Recording System.
Officer Valdovinos was subpoenaed by the DMV to testify at the APS hearing. He testified that, over the course of his 14 years as a police officer, he conducted several hundred DUI arrests. The DMV hearing officer asked Officer Valdovinos the following questions and received the following responses:
Q. "What was the probable cause for pulling Mr. Tamayo over?"
A. "The subject vehicle at the time [of] observation, could not maintain its lane. Should I go on to more detail?"
Q."Yes, if you would, please."
A. "As I was traveling southbound on … Calvary Drive south of Rosedale Highway, I observed the vehicle having trouble maintaining its lane. They were in the number one lane. I observed the vehicle veer to the right and drive over the broken white lanes [sic] that separate the number one and number two lanes on two separate occasions. As we … continued southbound …, I observed the vehicle again veer to the right and the right-side tires go over the broken white lines that separate the number one and number two lanes."
Tamayo's counsel then asked the following questions of Officer Valdovinos and received the following responses:
Q."[W]hen you were observing Mr. Tamayo, did he cross over into an adjacent lane or did his vehicle only drive onto the delineated line?"
A. "As he drove onto, his wheels drove over the broken white lines that separate the lanes."
Q."[L]et me just clarify, onto the line or fully over where the wheel was no longer touching that line?"
A. "The vehicle drove on-"
Q."So, on or over?"
A. "- (overlapping)."
Q."Oh, I'm sorry. Go ahead."
A. "I have the vehicle as it drove onto the broken white lines, not crossed over into the number two lane completely."
This concluded Tamayo's counsel's examination of Officer Valdovinos. The DMV hearing officer then asked the following question and received the following response:
Q."[I]f the car didn't cross over the white line, what was the rationale for the stop?"
A. "Unable to maintain a vehicle within its lane is an indication of an impaired driver based on my training and experience as an officer. And it's still a violation of [section] 21658(a), unable to maintain its lane."
With that testimony, the DMV and Tamayo rested. Tamayo's counsel provided her closing argument after which the matter was submitted for decision.
On April 26, 2022, the DMV hearing officer issued an Administrative Per Se- .08% BAC, Notification of Findings and Decision (unnecessary capitalization omitted) (the "APS decision"). In it, the hearing officer found that Officer Valdovinos had probable cause to perform an investigatory stop of Tamayo and had reasonable cause to believe Tamayo was operating his vehicle while intoxicated with alcohol; that Tamayo was lawfully arrested for violating section 23152, 23153 or 23140; and that Tamayo was driving his vehicle with a blood-alcohol content of 0.08 percent or more.
Per the terms of the APS decision, Tamayo's driving privilege was suspended effective May 6, 2022 and would remain suspended through May 5, 2023.
III. Trial Court Proceedings
Tamayo filed a petition for writ of mandate seeking an order compelling the DMV to set aside and revoke the suspension of Tamayo's driving privileges, and an award of reasonable attorney fees and costs. The Attorney General of California opposed the petition on behalf of the DMV.
Tamayo contended, among other things, that Officer Valdovinos "did not have articulable reasonable suspicion to stop [Tamayo]; therefore, there was no probable cause for [Tamayo's] arrest" (bold type and unnecessary capitalization omitted). Tamayo also argued the APS hearing violated Tamayo's due process rights because the DMV hearing officer who, as adjudicator, issued the APS decision also acted as an advocate on behalf of the DMV during the hearing.
The trial court announced its "tentative decision following court trial" and concluded Tamayo had waived his due process argument by not raising the issue during the APS hearing. The court also summarized the evidence supporting the APS decision and said it was "persuaded that the officers who stopped [Tamayo] had reasonable suspicion to do so."
On September 20, 2022, the trial court issued its order denying Tamayo's petition for writ of mandate in its entirety and awarding the respondent Director of Department of Motor Vehicles "costs it would have paid, but for Government Code section 6103, in the amount of $435.00 for a filing fee" (hereafter "subject order").
Notice of entry of the subject order was served by e-mail on September 23, 2022. On October 21, 2022, Tamayo timely filed his notice of appeal of the subject order.
DISCUSSION
On appeal, Tamayo contends the subject order must be reversed because the APS hearing "was conducted under a hearing structure determined by the Second District Court of Appeal to be unconstitutional" on due process grounds in California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (California DUI Lawyers). Tamayo argues the holding in California DUI Lawyers should be applied retroactively to his case, and that the trial court erred in finding he had waived his due process arguments by failing to raise a due process objection during the APS hearing. Tamayo contends California DUI Lawyers found "structural error" in the APS hearing process and, as a result, the trial court's order denying his petition for writ of mandate is reversible per se and not subject to harmless error analysis.
Tamayo further contends Officer Valdovinos did not have reasonable cause to conduct an investigatory stop of Tamayo. Tamayo does not dispute, however, that probable cause existed for Officer Valdovinos to arrest him and that his blood-alcohol content was 0.08 percent or more.
I. Due Process
"A person may not be deprived of life, liberty or property without due process of law. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) The due process clause protects an individual's liberty interest in freedom from arbitrary adjudicative procedures. [Citation.] The requirements of due process extend to administrative adjudications." (Hipsher v. Los Angeles County Employees Retirement Assn. (2020) 58 Cal.App.5th 671, 699-700.)
"In our present travel-oriented society, the retention of a driver's license is an important right to every person who has obtained such a license…. [¶] [T]he revocation or suspension of that license, even for a six-month period, can and often does constitute a severe personal and economic hardship." (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 398.) "[T]he retention of a driver's license constitutes a fundamental vested right …." (Campbell v. Zolin (1995) 33 Cal.App.4th 489, 493.)"' "A driver's license cannot be suspended without due process of law." '" (California DUI Lawyers, supra, 77 Cal.App.5th at p. 529.)
II. Standard of Review
"Where, as here, the driver petitions for a writ of administrative mandate following an order of suspension, the superior court is required to determine, based on the exercise of its independent judgment, whether the weight of the evidence supports the administrative decision. [Citations.] In reviewing the administrative record, the court makes its own determination about the credibility of the witnesses." (Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372 (Morgenstern).) "On appeal, [the appellate court] review[s] the record to determine whether the trial court's findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the trial court's decision." (Ibid.)" '" 'We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.'" '" (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1568.) "We exercise de novo review, however, of the trial court's legal determinations." (Morgenstern, at p. 372.)
Tamayo impliedly contends the trial court did not exercise its independent judgment in reviewing the DMV's decision to suspend Tamayo's driving privilege and cites relevant case law on the subject. However, Tamayo does not cite to anything in the record that demonstrates the contention to be true and we have found nothing to support the contention.
III. Structural Error, Generally
"' "[S]tructural errors not susceptible to harmless error analysis are those that go to the very construction of the trial mechanism-a biased judge, total absence of counsel, the failure of a jury to reach any verdict on an essential element." [Citations.] …. [¶] In short, trial errors can be fairly examined in the context of the entire record and are amenable to harmless error review…. A structural error requires per se reversal because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred.'" (People v. Bush (2017) 7 Cal.App.5th 457, 474.) Other examples of structural error include a complete denial of counsel, racial discrimination in the selection of a jury, denial of the right to represent one's self at trial, and denial of a public trial. (Washington v. Recuenco (2006) 548 U.S. 212, 218, fn. 2.)
"[W]henever 'due process requires a hearing, the adjudicator must be impartial.'" (Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212 (Today's Fresh Start).) "To prove a due process violation based on overlapping functions … requires something more than proof that an administrative agency has investigated and accused, and will now adjudicate. '[T]he burden of establishing a disqualifying interest rests on the party making the assertion.' [Citation.] That party must lay a 'specific foundation' for suspecting prejudice that would render an agency unable to consider fairly the evidence presented at the adjudicative hearing [citation]; it must come forward with 'specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias' [citations]. Otherwise, the presumption that agency adjudicators are people of' "conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances"' will stand unrebutted." (Id. at pp. 221-222.)
IV. California DUI Lawyers
A. Summary of the Opinion
The opinion in California DUI Lawyers was filed on April 15, 2022, nine days after Tamayo's APS hearing had concluded and 11 days before the DMV issued the APS decision. (California DUI Lawyers, supra, 77 Cal.App.5th at p. 517.) In that case, the California DUI Lawyers Association (CDLA) brought suit against the DMV challenging, among other things, DMV's practice of allowing a single individual to serve both as advocate for the DMV and hearing officer in APS hearings. (Id. at p. 530.)
Tamayo contends the trial court erred by concluding Tamayo had waived his due process argument by failing to raise a due process objection during the APS hearing. He argues, among other things, that the statutory law in existence at the time of his APS hearing purported to authorize a DMV hearing officer's dual role as advocate and adjudicator and that challenges to the procedure had failed. (§ 14112, subd. (b); Poland v. Department of Motor Vehicles (1995) 34 Cal.App.4th 1128, 1134-1135.) Thus, Tamayo argues, the change in the law effected by California DUI Lawyers could not have been reasonably anticipated and his failure to raise an objection during the APS hearing should be excused. We need not address the waiver argument because Tamayo's contentions on appeal fail on the merits. In responding to Tamayo's waiver argument, DMV requested this court judicially notice the membership list of the California DUI Lawyers Association (CDLA) to demonstrate Tamayo's counsel's (i.e., attorney Richard O. Middlebrook) membership in the association, citing Evidence Code section 452, subdivision (h). DMV argues Tamayo's counsel, as a CDLA member, should have anticipated the holding in California DUI Lawyers and was, therefore, required to raise a due process objection during the APS hearing to avoid waiver. Tamayo countered that attorney Middlebrook did not represent Tamayo at the APS hearing. The membership of the CDLA does not qualify as a fact "not reasonably subject to dispute and … capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code, § 452, subd. (h).) Moreover, because we do not decide the appeal on grounds of waiver, counsel's membership in the CDLA is irrelevant. For these reasons, we deny DMV's request to judicially notice counsel's membership in the CDLA.
The challenge implicated the constitutionality of section 14112, subdivision (b) which provides, "Subdivision (a) of Section 11425.30 of the Government Code does not apply to a proceeding for issuance, denial, revocation, or suspension of a driver's license pursuant to" division 6 of the Vehicle Code wherein APS hearing provisions are found. (§ 14112, subd. (b); California DUI Lawyers, supra, 77 Cal.App.5th at p. 533.) Government Code section 11425.30 provides, in relevant part, "A person may not serve as presiding officer in an adjudicative proceeding in any of the following circumstances: [¶] (1) The person has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. [¶] (2) The person is subject to the authority, direction, or discretion of a person who has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage." (Gov. Code, § 11425.30, subd. (a).) Thus, as enacted, section 14112, subdivision (b), operated to excuse the DMV from complying with the strictures of Government Code section 11425.30 for purposes of APS hearings.
The California DUI Lawyers court found DMV's practice of allowing a single individual to occupy the role of both advocate and adjudicator created an unacceptable risk of bias and, thus, violated due process under the Fourteenth Amendment and the California Constitution, article I, section 7. (California DUI Lawyers, supra, 77 Cal.App.5th at pp. 532-533.) Consequently, the court held section 14112, subdivision (b) "unconstitutional to the extent it permits the DMV to combine the advocacy and adjudicatory roles in a single APS hearing officer." (California DUI Lawyers, at p. 533.) The court ordered judgment in the matter be modified to provide "the DMV is permanently enjoined and restrained from having its APS hearing officers function as advocates for the position of the DMV in addition to being finders of fact in the same adversarial proceeding." (California DUI Lawyers, supra, 77 Cal.App.5th. at p. 538.)
Tamayo requested this court take judicial notice of the docket in California DUI Lawyers. Tamayo argues, without citation to authority, that this court is bound by California DUI Lawyers because "among other reasons, this Court does not have the vast body of evidence before it that the Second District had before it" and the docket "demonstrates the vast number of evidentiary documents the court had for review." The docket itself, however, provides little substantive information concerning the evidence considered in California DUI Lawyers. We reject the premise of Tamayo's request for judicial notice. This court is not bound by the decision of a California Court of Appeal from another appellate district. (County of Kern v. State Dept. of Health Care Services (2009) 180 Cal.App.4th 1504, 1510.) Yet, "we generally follow the decisions of other appellate courts unless there is good reason to disagree." (Ibid.) Here, we have no basis upon which to disagree with the holding in California DUI Lawyers. Consequently, we deny Tamayo's request for judicial notice for lack of relevance. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)
Notably, however, in a footnote to its opinion, the California DUI Lawyers court wrote, "CDLA concede[d] the DMV may task the same person with both collecting and developing the evidence and rendering a final decision. (See, e.g., Today's Fresh Start [(2013)] 57 Cal.4th [197], 220 [The same individual in an administrative agency may be tasked with 'developing the facts and rendering a final decision'].) He or she must refrain, however, from advocating on behalf of the DMV as the DSM currently mandates (i.e., present the DMV's case and 'promote driver safety,' with no corresponding duty to present any evidence that would support the position of the driver at the hearing)."(California DUI Lawyers, supra, 77 Cal.App.5th at p. 533, fn. 5.)
Tamayo does not argue the DMV hearing officer failed to present evidence, suppressed evidence, or otherwise refused to admit evidence in support of Tamayo's defense, and the record does not reflect any such act or omission.
B. California DUI Lawyers Did Not Hold That All APS Hearings Conducted Under the Current Statutory Scheme Were Tainted By Structural Error
Tamayo contends the California DUI Lawyers court has already "specifically held that the due process violation was structural." (Italics omitted.) This is incorrect. Although the court in California DUI Lawyers uses the words "structure" and "structural design" to refer to the APS hearing process, the court did not use the term in the context of "structural error." (California DUI Lawyers, supra, 77 Cal.App.5th at pp. 524, 528, 530, 535, fn. 6.) Notably, the California DUI Lawyers court premised its holding on an "unacceptable risk of bias"-not actual bias. As mentioned, it was considering the APS hearing process in the abstract and no specific APS proceeding was at issue.
The holding in California DUI Lawyers was premised on evidence including the DMV's Driver Safety Manual (DSM) and the DMV's admission of the following facts: "(1) … [APS] hearings are adversarial; (2) the DSM accurately reflects the policies and practices of the DMV; (3) the DSM defines the role of a hearing officer as 'a trier of fact as well as an advocate for the department and driver safety'; (4) the DSM explains that in the hearing officer's capacity as a 'trier of fact' he or she must '[h]ear, weigh, and deliberate upon evidence' and '[m]ake findings and render a decision relating to an issue of fact'; (5) the DSM explains that in the hearing officer's capacity as an 'advocate' he or she must '[a]ssist, defend, prepare and/or present DMV's case' and '[p]romote driver safety'; (6) the hearing officer neither has a duty to assist the driver in preparing for the hearing, nor a duty to present any evidence that would support the position of the driver at the hearing; and (7) as 'trier of fact' at APS hearings, the hearing officer rules on the admissibility of the documentation he or she offers as evidence as 'advocate for the [DMV]' in support of the DMV's position at the APS hearing." (California DUI Lawyers, supra, 77 Cal.App.5th at p. 527.)
We were not presented with the same or similar record as that provided in California DUI Lawyers. We note the California DUI Lawyers case was a taxpayer's challenge to the APS hearing process, no specific APS hearing case was before that court, and it was envisioned that hearing officers would actually act as advocates consistent with DMV policy.
V. Knudsen v. Department of Motor Vehicles
In Knudsen v. Department of Motor Vehicles (Apr. 4, 2024, F085992) Cal.App.5th (Knudsen), this court considered a similar challenge to the APS hearing process as is presented in the case before us. Knudsen held, "to resolve such a challenge, it is first necessary to determine whether a particular driver's due process right to an impartial adjudicator was violated. Consistent with DUI Lawyers, that determination is made by assessing the administrative record and the revocation decision to see if the public hearing officer actually acted as both and adjudicator and an advocate, or merely acted as an adjudicator and a collector and developer of evidence. If the relevant documents demonstrate that the hearing officer did not act as an advocate, then the driver's due process right to an impartial adjudicator was not violated, and the constitutional issue is resolved. If the relevant documents demonstrate that a public hearing officer actually acted as an advocate, then the driver's due process right to an impartial adjudicator is violated." (Kundsen, supra, Cal.App.5th [p. 2].)
Knudsen, supra, ___Cal.App.5th ____, was filed on April 4, 2024. It is not yet final.
VI. No Showing of Actual Bias or Advocacy
Among other things, Tamayo argues the APS decision demonstrates actual bias on the part of the DMV hearing officer. We disagree. Tamayo asserts the DMV hearing officer's decision "completely ignored the MVARS evidence" and further asserts the hearing officer "had to ignore the MVARS as it was incontrovertible proof that [Tamayo] did not cross over into the adjacent lane and directly contrary to [the hearing officer's] probable cause findings." However, as discussed in section VII.B. of this opinion, the MVARS evidence actually supports the hearing officer's findings. Thus, the omission of any discussion of the MVARS in the APS decision does not demonstrate actual bias against Tamayo on the part of the DMV hearing officer.
Tamayo also argues actual bias is shown because the hearing officer mischaracterized Officer Valdovinos's testimony "by stating the officer testified [Tamayo] 'crossed over the broken white line twice,' when the officer specifically testified … '[I have the vehicle as it] drove onto the broken white lines, not crossed over into the number two lane completely.'" We do not agree that the DMV hearing officer mischaracterized the officer's testimony. Again, we address Tamayo's contention in further detail in section VII.B. of this opinion.
Thus, we conclude there is no showing of actual bias on the part of the DMV hearing officer in this matter.
Similarly, the record demonstrates no advocacy on the part of the DMV hearing officer. The DMV hearing officer admitted evidence without objection from Tamayo's counsel. This evidence was of a type that would likely be entered into evidence in any APS hearing, and the DMV hearing officer's questions to Officer Valdovinos were neutral in tenor. The DMV hearing officer did not mischaracterize testimony, and his conduct and questioning were consistent with attempts to merely gather and develop the evidence. In addition, Tamayo's counsel was permitted to ask questions of Officer Valdovinos and did so without objection.
Because there was no evidence of actual bias, and because the record reveals the DMV hearing officer did not act in the dual role of an advocate and adjudicator, no due process error occurred. (See Knudsen, supra,___ Cal.App.5th ___; California DUI Lawyers, supra, 77 Cal.App.5th at p. 533, fn. 5.) As a result, we need not decide the issue of whether California DUI Lawyers should be applied retroactively.
VII. Substantial Evidence Supports the Trial Court's Findings
A. Reasonable Suspicion May Be Predicated On Pronounced Weaving Within One's Own Lane for a Substantial Distance
"[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.] The guiding principle in determining the propriety of an investigatory detention is 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' [Citations.] In making our determination, we examine 'the totality of the circumstances' in each case." (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083 (Wells).)
"Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause …. [Citation.] But to be reasonable, the officer's suspicion must be supported by some specific, articulable facts that are 'reasonably "consistent with criminal activity."' [Citation.] The officer's subjective suspicion must be objectively reasonable, and 'an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]' [Citation.] But where a reasonable suspicion of criminal activity exists, 'the public rightfully expects a police officer to inquire into such circumstances "in the proper exercise of the officer's duties." '" (Wells, supra, 38 Cal.4th at p. 1083.)
Tamayo argues Officer Valdovinos "did not have specific and articulable facts giving rise to a rational inference that [Tamayo] had committed a traffic violation or any other crime." "We review the determination of reasonable suspicion independently, as it is a mixed question of fact and law." (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 509; United States v. Rodriguez (9th Cir. 1992) 976 F.2d 592, 594 (Rodriguez).)
Tamayo argues the evidence demonstrates that he "was only observed driving 'onto' the [broken white lane divider] lines and had 'not crossed' [from the number one lane] into the [number two] lane." He further contends his "alleged weaving" was not sufficiently "pronounced" or "continued for a substantial distance." Tamayo argues that "movement within one's own lane or other relatively benign driving activity is not sufficient ground on which to base reasonable suspicion, even when coupled with other suspicious circumstances," relying upon United States v. Jimenez-Medina (9th Cir. 1999) 173 F.3d 752, 755 (Jimenez-Medina) and Rodriguez, supra, 976 F.2d at pp. 595-596.
The driver in Jimenez-Medina was not observed to be weaving. (Jimenez-Medina, supra, 173 F.3d 752, 755.) That case is only relevant to the extent it quotes from, and discusses, Rodriguez, supra, 976 F.2d 592. (Jimenez-Medina, at p. 755.)
In Rodriguez, the court reversed the district court's denial of a motion to suppress evidence seized after an investigatory stop. (Rodriguez, supra, 976 F.2d 592, 594.) In Rodriguez, the court indicated the stop was premised on (1) the driver sitting up straight, both hands on the wheel, and looking straight ahead without acknowledging the officers' presence which the officers felt was suspicious; (2) one of the officer's recollection of seeing a picture of a similar vehicle "involved in another smuggling case at some unknown place and time"; (3) the officers' knowledge that the type of vehicle driven has "a space behind the seat where aliens can be concealed"; (4) that the vehicle appeared to be heavily loaded as it drove over a bump; and (5) that the driver "swerved slightly within his lane" as the driver looked in his rear view mirror. (Id. at pp. 593-594, italics added.)
Tamayo also cites to United States v. Colin (9th Cir. 2002) 314 F.3d 439 (Colin), wherein the court held a police officer did not have reasonable suspicion to conduct an investigatory stop. In Colin, the officer testified he observed the vehicle for 35 to 45 seconds during which time the driver "drove within the speed limit and properly activated his turn signals before making lane changes." (Colin, supra, 314 F.3d at p. 445.) The officer testified the "car's wheels touched the fog line on the right side of the right lane for 10 seconds and then, about 5 [to] 10 seconds later, touched the yellow line on the far left of the left lane for another 10 seconds." (Ibid.) The Ninth Circuit Court of Appeals "recognize[d] that in some cases evidence of weaving might be indicative of driving under the influence," but that the facts before it did not justify the stop. (Ibid.) In so concluding, the court acknowledged case law has held" 'pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.'" (Id. at p. 446, citing People v. Perez (1985) 175 Cal.App.3d Supp. 8, 11 (Perez).) The Colin court, however, felt the driver's pattern of driving in the case before it did not meet that criteria.
Perez expressly held "pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance." (Perez, supra, 175 Cal.App.3d Supp. 8 at p. 11.) The Perez court premised its holding on several cases from other jurisdictions wherein such driving patterns justified an investigatory stop. (Ibid., citing State v. Bailey (1981) 51 Ore.App. 173 ["weaving within a lane for a period of four or five blocks"]; Ebona v. State (Alaska 1978) 577 P.2d 698 ["vehicle was 'continually weaving' but at all times remained in its lane"]; and State v. Dorendorf (N.D. 1984) 359 N.W.2d 115 ["vehicle weaving within its own lane of traffic for approximately one-eighth to one-quarter of a mile"].)
DMV argues that, to the extent Colin concluded that a vehicle must cross lanes before an officer may conduct an investigatory stop, it is a minority view even among federal courts, citing, e.g., United States v. Williams (E.D. Va. 2013) 945 F.Supp.2d 665, 673-674 (Williams) and United States v. Bassols (D.N.M 2011) 775 F.Supp.2d 1293, 1296 [holding that "a driver who drives on the line or stripe dividing a lane of traffic from another lane or on the line or stripe that separates a lane from the shoulder has failed to drive 'as nearly as practicable entirely within a single lane' "]. (See § 21658 ["Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: [¶] (a) A vehicle shall be driven as nearly as practical entirely within a single lane …."].)
In Williams, the court cited to numerous cases in which weaving within one's own lane without crossing over into an adjacent lane was sufficient to justify an investigatory stop. (Williams, supra, 945 F.Supp.2d 665, 674-675, citing United States v. Banks (4th Cir. 1998) 162 F.3d 1156, 1998 WL 558757 at *1 (unpublished); United States v. Sang (4th Cir. 1996) 89 F.3d 831, 1996 WL 316479 (4th Cir.1996) (unpublished); United States v. Smith (4th Cir. 1994) 35 F.3d 557, 1994 WL 445636 (unpublished); United States v. Graves (E.D.Va.2011) 2011 WL 796791 at *3; United States v. Gupta (E.D.Va.2006) 2006 WL 6093874 at *4; Neal v. Commonwealth (1998) 27 Va.App. 233, 239; 498 S.E.2d 422, 425; Freeman v. Commonwealth (1995) 20 Va.App. 658, 661-662, 460 S.E.2d 261, 263.)
Here, we need not determine whether Colin represents a minority view, for Colin did not require that a vehicle weave into an adjacent lane before an officer may be justified in conducting an investigatory stop. Colin acknowledged that reasonable cause may exist where pronounced weaving within a lane occurs over a substantial distance. (Colin, supra, 314 F.3d at p. 446.)
In Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480 (Arburn), the court determined the arresting officer had reasonable suspicion to conduct an investigatory stop after observing a vehicle traveling within the speed limit weaving and nearly hitting a curb. (Id. at pp. 1482-1483.) It noted, "More than one California court has found that 'weaving' within a lane provides sufficient cause to conduct an investigatory stop[,]" citing People v. Bracken (2000) 83 Cal.App.4th Supp. 1, 3-4; Perez, supra, 175 Cal.App.3d Supp. 8, 10-11; People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 14; People v. Russell (2000) 81 Cal.App.4th 96, 104. (Arburn, at p. 1485.)
As stated in Arburn, "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. It is, we posit, even within the ability of most fellow drivers. The DMV's failure to relate the particular training and experience of the arresting officer thus does not prevent us from crediting the officer's reasoned inference that Arburn's erratic driving was the result of criminal activity." (Arburn, supra, 151 Cal.App.4th 1480, 1485.) The Arburn court went on to state, "[T]he lack of evidence that Arburn was observed weaving over a 'substantial' or 'considerable' distance does not prevent a finding of reasonable suspicion. [Citations.] 'Weaving' 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. (Perez, supra, 175 Cal.App.3d at p. Supp. 10.) The court found that it did, and had no cause to determine whether a shorter distance would be sufficient. (See id. at p. Supp. 11.)" (Arburn, supra, 151 Cal.App.4th at pp. 1485-1486, fn. omitted.)
In Wells, supra, our state high court upheld the lawfulness of an officer's investigatory stop of a vehicle that was reported, in a 911 call, to have been" 'weaving all over the roadway'" despite the fact the officer did not actually observe the erratic driving. (Wells, supra, 38 Cal.4th at pp. 1081, 1088 [finding the tip involved was sufficiently precise and reported "contemporaneous activity" subsequently corroborated by the officer].) In upholding the lawfulness of the stop, the court noted "officers undoubtedly would be severely criticized for failing to stop and investigate a reported drunk driver if an accident subsequently occurred." (Id. at p. 1087.) The court further noted that" 'in light of the pervasive regulation of vehicles capable of traveling on the public highways, individuals generally have a reduced expectation of privacy while driving a vehicle on public thoroughfares.'" (Ibid.) Our state high court observed that the United States Supreme Court "has upheld police roadblocks stopping all drivers to investigate possible drunk driving, despite a complete lack of articulable facts indicating an immediate risk of harm." (Ibid., citing Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444, 455.) The Wells court noted the United States Supreme Court has "determined that the state's interest in preventing drunk driving outweighed the relatively minor inconvenience to individual motorists in being briefly stopped and detained." (Wells, supra, at p. 1087, citing Michigan Dept. of State Police v. Sitz, at pp. 451-453.)
B. The Facts Justified the Investigatory Stop
Here, consistent with Officer Valdovinos's written statement, Officer Valdovinos testified he "observed [Tamayo's] vehicle veer to the right and drive over the broken white [lines] … on two separate occasions." He "observed the vehicle again veer to the right and the right-side tires go over the broken white lines that separate" the driving lanes. When asked whether Tamayo "cross[ed] over into an adjacent lane or … only drive onto the delineated line," Officer Valdovinos testified, "As he drove onto, his wheels drove over the broken white lines that separate the lanes." When asked to clarify "onto the line or fully over where the wheel was no longer touching that line," Officer Valdovinos's response was interrupted by Tamayo's counsel after which the officer stated, "I have the vehicle as it drove onto the broken white lines, not crossed over into the number two lane completely." Apparently satisfied with this response, Tamayo's counsel concluded his examination.
Officer Valdovinos's answer to Tamayo's counsel's final question was somewhat ambiguous and not fully responsive. His testimony on defense counsel's questioning was merely that the "vehicle" did "not cross[] over into the number two lane completely." This did not have the import that Tamayo's counsel ascribed to the testimony. The testimony that the vehicle did not cross into the adjacent lane completely is not the same as testimony that the car's tires never crossed over the dividing lines. Moreover, case law such as Arburn and Perez, among others, demonstrates that reasonable cause may exist even where weaving occurs within one's own lane.
Tamayo's counsel had the opportunity to further clarify Officer Valdovinos's testimony, but opted not to do so. For example, counsel could have asked Officer Valdovinos, "Are you saying that Tamayo's wheels never crossed into the adjacent lane during the time you observed his driving?" Presumably, this would have elicited a more precise answer from Officer Valdovinos.
In addition, we have had occasion to view the MVARS recording at issue. The record does not indicate whether the MVARS recording captures the entire span of time Officer Valdovinos observed Tamayo. Notwithstanding, it shows pronounced weaving by Tamayo's vehicle over the course of nearly a full minute of driving-a substantial distance. The MVARS recording shows Tamayo's vehicle weaving in a pronounced manner within his lane, and shows him driving onto the white lines separating the adjacent lane on four occasions. Because the recording was at night with sparse lighting, we were unable to determine based on the MVARS recording alone whether Tamayo's wheels crossed completely over the white lines separating the lanes. Consequently, we reject Tamayo's argument that "the MVARS … was incontrovertible proof that [Tamayo] did not cross over into the adjacent lane."
The trial court's finding that reasonable cause existed to conduct an investigatory stop is supported by substantial evidence.
DISPOSITION
The trial court's order denying Tamayo's petition for a writ of mandate is affirmed. DMV is entitled to its costs on appeal.
WE CONCUR: POOCHIGIAN, J., DE SANTOS, J.