Martinez-Escobar v. Valverde CA4/2 ( 2014 )

Filed 12/11/14 Martinez-Escobar v. Valverde CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
EDGARDO F. MARTINEZ-ESCOBAR,
Plaintiff and Appellant, E058732
v. (Super.Ct.No. RIC1212199)
GEORGE VALVERDE as director, etc., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge.
Affirmed.
Law Offices of Chad R. Maddox and Chad R. Maddox for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Christine Mersten, Senior Assistance
Attorney General, and Theodore S. Drcar, Deputy Attorney General, for Plaintiff and
Respondent.
1
I
INTRODUCTION
Petitioner and appellant Edgardo F. Martinez-Escobar was convicted in Hawaii in
2004 for operating a vehicle under the influence of an intoxicant. (Haw. Rev. Stat.,
§ 291E-61.)1 Petitioner was convicted in California in 2012 for driving under the
influence of alcohol (DUI). (Veh. Code, §§ 23152, 23153.) In December 2012, the
DMV2 suspended petitioner’s California license for three years.3 (Veh. Code, § 13352,
subd. (a)(4).)
Petitioner argues on appeal the Hawaii offense is not substantially similar to the
California offense and the court erred by admitting copies of Hawaii’s public records.
The DMV argues the Hawaii conviction qualifies as a first DUI offense and the appeal is
moot. Petitioner disagrees the appeal is moot because his three-year suspension is
effective until December 2015.
We conclude the appeal is not moot although we still would have the discretion to
consider the issue. (LaChance v. Valverde (2012) 207 Cal.App.4th 779, 783.)
Nevertheless, we hold the Hawaii evidence was admissible to show that the 2004 offense
is substantially similar to the 2012 offense. Although the Hawaii statute also outlaws
1 Haw. Rev. Stat. § 291E-61: “(a) A person commits the offense of operating a
vehicle under the influence of an intoxicant if the person operates or assumes actual
physical control of a vehicle. . . .”
2 Department of Motor Vehicles.
3We grant petitioner’s request for judicial notice filed January 29, 2014. (Evid.
Code, §§ 452, 459.)
2
being in actual physical control of a vehicle while under the influence of alcohol, the
DMV provided sufficient evidence to show Petitioner was convicted for driving under the
influence of alcohol in Hawaii, not simply controlling a vehicle while under the
influence. Therefore, the Vehicle Code required the DMV to suspend petitioner’s driving
privileges. We affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. The Administrative Hearing
On February 25, 2012, petitioner was arrested in Murrieta for driving while
intoxicated. (Veh. Code, §§ 23152, 23153.) Petitioner surrendered his license and he
was issued a temporary license with a notice of his right to request a suspension hearing
before the DMV.
After the administrative per se (APS) hearing, the hearing officer found that
Murrieta police had “witnessed a traffic collision involving a vehicle driven by
[Petitioner] who fled the scene of a prior accident in violation of California law.”
Petitioner displayed objective symptoms of intoxication: bloodshot and watery eyes,
odor of alcohol, an unsteady gait, and slurred speech. Petitioner could not perform the
field sobriety tests. The PAS4 results indicated the presence of alcohol and the chemical
blood test showed petitioner had a blood alcohol content (BAC) of .19 percent. The
DMV submissions for the APS hearing included exhibits 1 through 4—the Murrieta
4 Preliminary alcohol screening.
3
police reports and test results—and exhibit 5—petitioner’s current driving record—
displaying the 2004 Hawaii conviction.
At the APS hearing, petitioner asked that the 2004 Hawaii conviction be stricken
because the Hawaii statute only requires physical control but not “actual driving.” The
hearing officer found petitioner had been previously convicted in Hawaii in 2004 for
“drunk driving” and no contrary evidence had been presented. The DMV suspended
petitioner’s license for one year from June 29, 2012, to June 28, 2013. After petitioner
was convicted of the February 25, 2012 offense in December 2012, his license was
suspended for three years until December 2015.
B. The Writ Petition
Petitioner responded to the administrative decision by demanding the DMV
remove the Hawaii conviction from his driving record. In August 2012, petitioner filed a
petition for preemptory writ of mandate, seeking to strike the Hawaii conviction from his
record and changing his initial one-year suspension to four months.
In response to the writ petition, the DMV asserted the offense on February 25,
2012 was a second DUI offense. In support, the DMV submitted an administrative
record which included all the documents submitted at the APS hearing and a certified
case detail report from the Hawaii court, showing that petitioner was arrested on February
25, 2004, for violation of Hawaii Revised Statutes section 291E-61(a) and was found
guilty by a bench verdict on April 29, 2004. The description of the violation was “DUI
BY IMPAIRMT OR .08 BREATH.” The Hawaii court’s minutes reflect that petitioner
waived personal appearance, was represented by an attorney, and entered a guilty plea on
4
the day of trial. As supplementary evidence, the DMV submitted additional public
records related to the Hawaii conviction: the three sworn police reports, stating that
petitioner was weaving while driving; the breath test results; the notice of administrative
revocation; another copy of the case detail report; and a case printout describing the
violation as “Traffic Crime Moving.”
At the hearing on the writ petition, petitioner objected to the court accepting as
evidence the Hawaii public records of petitioner’s 2004 conviction. The court held that
the certified copy of the case detail report and the supplemental public records were all
admissible evidence under Evidence Code section 1280 and, taken together with the
evidence established that petitioner was guilty of driving a car while intoxicated in 2004.
The trial court denied the writ petition in April 2013.
III
DISCUSSION
The judgment in this action is based on the trial court’s application of the relevant
statutory provisions to the undisputed facts set forth in the administrative record.
Accordingly, we independently review the judgment. (Isaac v. Department of Motor
Vehicles (2007) 155 Cal.App.4th 851, 855; Moles v. Gourley (2003) 112 Cal.App.4th
1049, 1054; Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1519-1520.)
A. The Interstate Driver License Compact and the Foreign State Conviction
California and Hawaii participate in the interstate Driver License Compact
(Compact). (Veh. Code, § 15000 et seq.; Haw. Rev. Stat., § 286C.) The Compact “‘is
intended to increase highway and street safety by enhancing the degree of compliance
5
with laws governing the operation of motor vehicles in party states. [Citation.]’
[Citations.]” (Moles v. Gourley, supra, 112 Cal.App.4th at p. 1055.) Another important
purpose of the compact is to “[m]ake the reciprocal recognition of licenses to drive and
eligibility therefor more just and equitable by considering the overall compliance with
motor vehicle laws . . . as a condition precedent to the continuance or issuance of any
license . . . in any of the party states.” (Veh. Code, § 15020, subd. (b)(2); McDonald v.
Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 682.) The Compact is
liberally construed to achieve these purposes. (Moles, at p. 1055.)
The Compact requires party states to report all convictions of an out-of-state driver
to the state that issued the driver a license to operate a motor vehicle and the report must
“describe the violation specifying the section of the statute, code, or ordinance violated.”
(Veh. Code, § 15022; McDonald v. Department of Motor Vehicles, supra, 77 Cal.App.4th
at p. 682.) Upon receiving a report of an out-of-state conviction from another party state,
“[t]he licensing authority in the home state . . . shall give the same effect to the conduct
reported . . . as it would if such conduct had occurred in the home state, in the case of a
conviction for: [¶] . . . [¶] (2) Driving a motor vehicle while under the influence of
intoxicating liquor . . . .” (Veh. Code, § 15023, subd. (a); McDonald, at pp. 682-683.)
Consistent with the Compact’s terms, Vehicle Code section 13352, subdivision (d),
requires the DMV immediately to suspend a driver’s license for a drunk driving
conviction based on out-of-state convictions: “A conviction of an offense in [another]
state . . . that, if committed in this state, would be a violation of Section 23152, is a
conviction of Section 23152 for the purposes of this section, . . . The department shall
6
suspend or revoke the privilege to operate a motor vehicle pursuant to this section upon
receiving notice of that conviction.” (Veh. Code, § 13352, subd. (d); Draeger v. Reed,
supra, 69 Cal.App.4th at p. 1523.)
The DMV must receive sufficient evidence establishing the out-of-state conviction
was under a statute substantially similar to a California statute punishing the same
conduct. (Isaac v. Department of Motor Vehicles, supra, 155 Cal.App.4th at p. 856.)
Specifically, the DMV may not suspend or revoke a driver’s license based on an out-of-
state conviction “‘unless “(1) the law of the reporting state pertaining to conviction is
‘substantially the same’ as California law pertaining to the conviction; (2) the description
of the violation from which the conviction arose is sufficient; and (3) the interpretation
and enforcement of the law of the reporting state are ‘substantially the same’ as the
interpretation and enforcement of the California law in question.” [Citations.]’
[Citation.]” (Ibid.; Moles v. Gourley, supra, 112 Cal.App.4th at p. 1055; Draeger v.
Reed, supra, 69 Cal.App.4th at p. 1521; see § 13363, subd. (b).)
B. The California and Hawaii Drunk Driving Statutes
Vehicle Code section 23152 (section 23152) is the basic statutory provision
prohibiting any person from driving a motor vehicle in California while under the
influence of alcohol. (Isaac v. Department of Motor Vehicles, supra, 155 Cal.App.4th at
p. 856.) In pertinent part, that statute makes it unlawful for any person who “has 0.08
percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” (§ 23152,
subd. (b).) The essential conduct under section 23152 is driving a vehicle, which requires
7
“‘evidence of volitional movement of a vehicle.’” (Draeger v. Reed, supra, 69
Cal.App.4th at p. 1521.)
Unlike Hawaii, “California is among the minority of states that prohibit simply
‘driving’ a vehicle while intoxicated; most states prohibit ‘“driving or operating” or
simply “operating” a vehicle . . . , or “driving or being in [or ‘having’] actual physical
control” of a vehicle.’ [Citation.] The overwhelming majority of those statutes have
been interpreted as ascribing to the words ‘being in actual physical control of’ or
‘operating’ a vehicle ‘a broad scope not limited to or dependent on volitional movement
of a vehicle. . . .’ [Citation.]” (Isaac v. Department of Motor Vehicles, supra, 155
Cal.App.4th at p. 861.)
Petitioner’s out-of-state conviction was for violating Hawaii Revised Statute
section section 291E-61:
“(a) A person commits the offense of operating a vehicle under the influence of an
intoxicant if the person operates or assumes actual physical control of a vehicle:
“(1) While under the influence of alcohol in an amount sufficient to impair the
person’s normal mental faculties or ability to care for the person and guard against
casualty; [¶] . . . [¶]
“(3) With .08 or more grams of alcohol per two hundred ten liters of breath; or
“(4) With .08 or more grams of alcohol per one hundred milliliters or cubic
centimeters of blood.”
California’s statutory scheme required the DMV immediately to suspend
petitioner’s license based on the Hawaii conviction if (1) the Hawaii statute under which
8
he was convicted is substantially similar to section 23152 and (2) the public records from
the Hawaii court and the Honolulu Police Department provided sufficient proof petitioner
was convicted for conduct that would violate section 23152. (Veh. Code, §§ 13352,
subds. (a) & (d), 15023, subd (a); Moles v. Gourley, supra, 112 Cal.App.4th at pp. 1056-
1057, 1059-1060.) Petitioner contends neither of these conditions was satisfied and
therefore the trial court erred in upholding his suspension. We reject that contention for
the reasons discussed below.
C. Substantially Similar Statutes
To determine whether the California and Hawaii statutes are substantially similar
we must examine the conduct the statutes prohibit, not the elements of the offenses the
statutes describe. (Draeger v. Reed supra, 69 Cal.App.4th at pp. 1521-1522; see
McDonald v. Department of Motor Vehicles, supra, 77 Cal.App.4th at pp. 688-689.) The
California statute prohibits driving a vehicle with a blood alcohol content of 0.08 percent
or higher while the Hawaii statute prohibits both operating or assuming actual physical
control of a vehicle with a blood alcohol content of 0.08 percent or higher. The Hawaii
statute therefore covers a broader range of conduct. (Draeger, at pp. 1522-1523 [Florida
statute]; see Moles v. Gourley, supra, 112 Cal.App.4th at p. 1058 [Virginia statute].)
The California and Hawaii statutes, however, both make it unlawful for a person
to drive with a blood alcohol content of 0.08 percent or higher. Accordingly, the two
statutes are substantially similar as they relate to driving while under the influence of
alcohol. Petitioner’s challenge therefore turns on whether the Hawaii public records
submitted by the DMV clearly show his Hawaii conviction was based on driving a
9
vehicle, as opposed to assuming actual physical control of a vehicle. (Draeger v. Reed,
supra, 69 Cal.App.4th at p. 1522; see Moles v. Gourley, supra, 112 Cal.App.4th at pp.
1058, 1060.) The California and Hawaii statutes are substantially similar “where the
description of the violation from which the conviction arose clearly shows the conviction
was based on drunk driving.” (Draeger, at p. 1522.)
D. The Hawaii Public Records
The report or record of a foreign conviction must contain proof that the person was
actually convicted of a crime based on conduct that would violate section 23152;
evidence of the offense alone is not sufficient. (Moles v. Gourley, supra, 112
Cal.App.4th at p. 1059; Draeger v. Reed, supra, 69 Cal.App.4th at p. 1523.) Draeger,
Moles, and Isaac explain what records are sufficient to show an out-of-state conviction
was based on conduct outlawed by section 23152.
In Draeger, the DMV relied solely on a police report and traffic citation to
suspend a driver’s license based on his conviction under a Florida statute that outlawed
both driving and being in actual physical control of a vehicle while under the influence of
alcohol. The Court of Appeal affirmed the trial court’s decision overturning the
suspension because the DMV failed to provide any evidence the driver’s conviction was
based on conduct that would violate section 23152. The Draeger court explained the
DMV could not rely on the police report because it was not part of the record of
conviction. As for the traffic citation, the Draeger court explained the DMV could
consider it as part of the record of conviction, but the citation standing alone was merely
the charging document and therefore did not establish the driver was convicted of an
10
offense. The DMV also needed the Florida court docket or some other record showing
the driver was actually convicted of driving under the influence in Florida but the DMV
failed to present that evidence. (Draeger, supra, 69 Cal.App.4th at pp. 1522-1523.)
In Moles, the Court of Appeal upheld the DMV’s suspension based on the driver’s
conviction under a Virginia statute that made it unlawful for a person to drive or operate a
motor vehicle while under the influence of alcohol. The driver argued the Virginia
records on which the DMV relied failed to show he was convicted of driving while under
the influence, as opposed to Virginia’s broader prohibition against operating a vehicle
while under the influence. The Moles court rejected that argument and found the
Virginia records identifying “‘driving while intox., 1st’ as the ‘reason of conviction’”
adequately established the driver was convicted for driving under the influence, as
opposed to merely operating a vehicle under the influence. (Moles v. Gourley, supra, 112
Cal.App.4th at pp. 1059-1060.)
Finally, in Isaac, the DMV suspended a driver’s license based on his conviction
under an Ohio statute that outlawed operating a vehicle while under the influence of
alcohol. The driver argued his suspension should be overturned because the DMV failed
to present any evidence showing he was convicted of an offense that involved driving a
vehicle, as opposed to merely operating one. (Isaac v. Department of Motor Vehicles,
supra, 155 Cal.App.4th at pp. 856-857.) The Isaac court rejected that argument because
the traffic citations charging the driver with operating a vehicle while under the influence
also charged him with (1) failing to reasonably control his vehicle because he “was
operating his vehicle in a ‘weaving course outside marked lines’” and (2) “‘driving’”
11
with a suspended license. The Isaac court found these additional charges supported the
reasonable inference that the driver was driving the vehicle, as opposed to merely
operating it. (Id. at pp. 857-858, 861-862.)
The Isaac court also explained the rules of evidence ordinarily applicable in civil
and criminal proceedings do not apply in a DMV administrative hearing. The court
concluded the DMV could consider the statements in the citations because they
constituted part of the Ohio record of conviction as statements lodged in the citation or
charging document. (Isaac v. Department of Motor Vehicles, supra, 155 Cal.App.4th at
pp. 862-863.) The Isaac court emphasized the governing standards in an administrative
proceeding differed from those found in a criminal trial: “[W]e must keep in mind the
vast difference between the protections afforded a driver whose license may be
suspended as the result of an administrative determination by DMV, which may properly
be made on the basis of the record of a foreign conviction, and the protections afforded a
criminal defendant, who has a due process right to be tried only upon competent evidence
properly offered and admitted at trial which meets the People’s burden to prove guilt
beyond a reasonable doubt [citation], and to be sentenced in accordance with a highly
protective regime.” (Id. at p. 864.) Otherwise, the strict evidentiary standards the driver
sought to impose on the DMV “would render the Compact and implementing provisions
of our Vehicle Code nugatory insofar as they apply to drunk driving convictions in those
states party to the Compact that make it unlawful to ‘operate’ or ‘physically control’
rather than ‘drive’ a vehicle while under the influence of alcohol or drugs, particularly
when, as here, the conviction is based on a plea of guilty or nolo contendere.” (Ibid.)
12
Based on these controlling standards, we conclude the court-certified case detail
report and the supplemental Hawaii public records, including the citation and three sworn
police reports, provided adequate evidence to support the DMV’s determination
petitioner was convicted of driving a vehicle while under the influence. The Honolulu
police reports showed petitioner was arrested for weaving while driving, as well as
exhibiting other criteria of intoxication. Petitioner pleaded guilty to “DUI BY
IMPAIRMT OR .08 BREATH” and “Traffic Crime Moving.” If petitioner was simply in
actual physical control of his vehicle, he could have pleaded guilty to that conduct in
violation of the same statute, but he did not do so.
There is no material difference between the facts in this case and the facts in
Moles. Both the Virginia statute at issue in Moles and the Hawaii statute at issue here
outlawed driving and either operating or controlling a vehicle while under the influence
of alcohol. The Moles court concluded the driver’s guilty pleas adequately established
the driver actually drove while intoxicated, rather than merely operating a vehicle while
intoxicated, and therefore upheld the DMV’s suspension. The Hawaii public records here
are comparable to those in Moles and likewise support the DMV’s decision to suspend
Petitioner’s driving privileges.
Petitioner’s arguments about the admissibility of the Hawaii public records seek to
impose an evidentiary standard on the DMV that does not apply in the administrative
context in which the DMV suspended his driving privileges. As explained in Isaac, the
evidentiary rules applicable in civil and criminal proceedings do not apply in DMV
administrative proceedings to suspend a person’s driving privileges. (Isaac v.
13
Department of Motor Vehicles, supra, 155 Cal.App.4th at pp. 862-863.) Petitioner does
not dispute that the certified case detail report is part of the record of the Hawaii
conviction. The supplemental public records, including the sworn police reports, are also
admissible in an administrative hearing even if they were not certified as required in a
criminal proceeding. (Evid. Code, §§ 1280, 11513, subd. (c); Isaac, at p. 863.) The
foregoing documents establish the DMV’s findings that petitioner was convicted in
Hawaii based on conduct that would violate section 23152, requiring his license
suspension.
IV
DISPOSITION
We affirm the judgment. The DMV shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
KING
J.
14