Lopez v. Shiomoto CA4/1 ( 2021 )

Filed 1/4/21 Lopez v. Shiomoto CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GEORGE IVAN LOPEZ, D076081
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-
00006716-CU-WM-NC)
JEAN SHIOMOTO, as Director, etc.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Pamela M. Parker, Judge. Affirmed.
Rodney Gould for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant
Attorney General, Jodi L. Cleesattle and Vanessa W. Mott, Deputy Attorneys
General, for Defendant and Respondent.
On July 28, 2018, deputies from the San Diego County Sheriff’s
Department responded to a noise complaint at the home of George Ivan
Lopez. Family members roused Lopez from his sleep to speak to the
deputies, but when another family member began to cause a scene, the
deputies asked Lopez to step outside. Lopez went to sit in his vehicle. A
deputy sheriff subsequently heard the vehicle’s engine start and saw it move
forward slightly. The deputy heard over the radio that the driver appeared to
be “very intoxicated” and should not be permitted to leave. The deputy
promptly detained Lopez and subsequently arrested him for driving under
the influence of alcohol (Vehicle Code, § 23152) and refusing to take a
chemical test (§ 23578).1 The deputy issued an order suspending Lopez’s
driving privileges.
Lopez requested an administrative hearing before the Department of
Motor Vehicles (DMV or department) and attempted to subpoena the deputy
sheriff to appear at the hearing; however, the deputy sheriff did not appear.
After the hearing, the department determined suspension of Lopez’s driving
privileges was warranted due to Lopez’s refusal to complete a chemical test
when requested by the deputy sheriff. On review, the trial court agreed the
weight of the evidence supported the department’s decision. On appeal,
Lopez contends he was denied due process because the deputy sheriff did not
comply with the subpoena. We conclude that Lopez did not exercise the
required diligence to secure the deputy’s attendance at the hearing because
Lopez failed to properly effect service on the deputy and neglected to include
the appropriate witness fee with the subpoena. As such, Lopez cannot
establish a violation of his due process rights. We further conclude the trial
court’s determinations are supported by substantial evidence, and we
therefore affirm the judgment upholding the suspension of Lopez’s license.
BACKGROUND
A. Arrest Report and Supporting Documentation
The arresting officer was deputy sheriff Nicholas Jehl. On July 29,
2018, Deputy Jehl prepared an arrest report, which indicated that Lopez was
1 Unless otherwise specified, statutory citations are to the Vehicle Code.
2
arrested for violating Vehicle Code sections 23152, subdivisions (a) and (b)
(driving under the influence of alcohol with a blood alcohol level of 0.08
percent or more) and 23578 (penalties for excessive blood alcohol or refusal to
take a chemical test).2
Deputy Jehl’s statement in the arrest report stated:
“I arrived on scene and saw [other deputies] were on scene
prior to my arrival. I noted a heavy-set male wearing a
white button-up dress shirt [Lopez] walking toward a white
truck. I observed that male, later identified as George
Lopez, enter the vehicle. I saw the headlights turn on as I
began to exit my patrol vehicle. I heard the engine start
and I could hear [the deputy] on the radio stating
something similar to, ‘Hey, don’t let that guy in the white
truck drive away, he’s very intoxicated!’ I looked around
and saw only one individual and one truck in my
immediate area which matched the description.
“ . . . I could hear the white truck engage the transmission
and I could hear/see the suspension ‘squat.’ The truck
moved forward slightly and I suspected, due to [the
deputy’s] radio transmission, the driver of the truck, Lopez,
was possibly under the influence of an alcoholic beverage.
“I commanded Lopez to stop. As I walked up to him, I
immediately noted several signs/symptoms of alcoholic
beverage intoxication. His jaw was lax, his eyelids were
droopy, his eyes were watery, and I could smell the odor of
an alcoholic beverage emitting from his breath/person. I
asked Lopez directly if he had been drinking. Lopez denied
2 Vehicle Code section 23578 provides in relevant part: “In addition to
any other provision of this code, if a person is convicted of a violation of
Section 23152 or 23153, the court shall consider . . . the refusal of the person
to take a breath or urine test[] as a special factor that may justify enhancing
the penalties in sentencing, in determining whether to grant probation . . . .”
“If a person refuses the officer’s request to submit to . . . a chemical test . . . ,
the department shall” suspend or revoke the person’s driving privileges.
(§ 13353, subd. (a).)
3
drinking anything alcoholic. I conducted a preliminary
Horizontal Gaze Nystagmus (HGN) bounce test. I noted
Lopez was unable to smoothly pursue the tip of my finger
with his eyes.
“I asked Lopez to exit his vehicle for the purposes of
conducting a full set of [s]tandardized [f]ield [s]obriety
[t]ests. . . . During my examination, Lopez admitted to
recently consuming some over-the-counter sleeping pills
(Seroquel).”
Deputy Jehl’s report further indicated that, after he administered the
field sobriety tests, Lopez repeatedly declined to submit to chemical testing:
“I asked Lopez if he would be willing to submit to a
Preliminary Alcohol Sensor (PAS) device test. Lopez
declined to provide a sample. Based on the previously
mentioned objective signs/symptoms in addition to Lopez’[s]
performance o[n] the SFSTs, I believed he was under the
influence of an alcoholic beverage while operating a motor
vehicle. I placed him under arrest . . . .
“I walked Lopez to my patrol vehicle and asked him which
chemical test (blood/breath) he would be willing to submit
to. Lopez declined to provide either. I sat him in the back
seat while seat belting him for safety. I transported Lopez
to the Vista Detention Facility (VDF) for processing. Due
to Lopez refusing to provide a chemical sample, I fully
admonished him per the DMV DS-367 form. When I asked
Lopez if he would be willing to provide a breath sample[,]
Lopez responded, ‘No, Sir.’ When I asked Lopez if he would
be willing to provide a blood sample[,] Lopez responded, ‘No
Sir.’ I confirmed with Lopez that he understood it was
considered a refusal and Lopez stated he understood.”
Deputy Jehl’s report concluded that he then sought and obtained a
warrant for Lopez’s blood and watched as a phlebotomist completed the blood
draw.3
3 Results from the blood draw do not appear in the record.
4
Deputy Jehl also prepared an officer’s statement using DMV form
DS 367 (officer’s statement). Deputy Jehl signed the statement under
penalty of perjury on July 29, 2018. The officer’s statement indicated that
the deputy had observed Lopez driving, that the deputy “had reasonable
cause to believe the driver was driving . . . while under the influence,” and
that Lopez was arrested at 00:34 a.m. on July 29, 2018. Deputy Jehl
indicated he observed the following “objective symptoms of intoxication” by
checking the boxes next to “Bloodshot/watery eyes,” “Odor of alcoholic
beverage,” “Unsteady gait,” and “Slurred speech,” and in the box marked
“Other,” Jehl wrote “HGN.” By checking boxes, Jehl indicated the case
involved “Chemical Test Refusal,” “Forced Blood Test,” and “0.08 [percent] or
more BAC Chemical Tests Results.”
The officer’s statement indicated Jehl “admonished the driver on
[July 29, 2018] at 00:38 AM” that he was “required by state law to submit to
a PAS [parenthetical] or other chemical test to determine the alcohol and/or
drug content” of Lopez’s blood. Jehl indicated he admonished Lopez that,
because Jehl believed he was under the influence of alcohol, he had the choice
of taking a breath or blood test. Jehl indicated Lopez responded, “No Sir” to a
breath test, and “No Sir” to a blood test.
On a page attached to the officer’s statement, Deputy Jehl described
the following details relating to probable cause: “I responded to a radio call
regarding a loud party. When I arrived, I saw the listed driver enter his
vehicle, start the engine, and begin to move forward. I heard a fellow deputy
get on the radio [and] state the driver was likely intoxicated. I stopped the
driver and immediately noted signs/symptoms of alcohol intoxication. The
driver was evaluated [and] performed poorly. When asked to provide a
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chemical samples [sic] the driver refused. A warrant was obtained [and] a
blood draw was completed.”
Deputy Jehl issued Lopez an “Administrative Per Se
Suspension/Revocation Order.” The order stated that Lopez’s driving
privilege would be suspended effective 30 days from the date of the order and
that this action was being taken because Lopez was arrested or detained for
driving under the influence of alcohol and refused to submit to a chemical
test of his blood alcohol content.
B. Administrative Proceedings
1. Request for a Hearing and Discovery
On July 30, Lopez—through retained counsel—sent a letter to the
department requesting they calendar an in-person hearing, temporarily stay
the license suspension, and send counsel copies of all discovery. Counsel
issued a formal request for discovery on August 30.
On September 20, Lopez’s counsel sent another letter notifying the
department that the district attorney’s office had declined to file criminal
charges against Lopez. The letter informed the department that the sheriff’s
department had not provided the affidavit in support of the search warrant or
the blood test results. The letter requested “that all the law enforcement
officers named in the report be subpoenaed by the [a]gency to appear by
telephone so that we may ascertain which one [of] them told Mr. Lopez to sit
in his car.”
On October 1, the department provided notice that Lopez’s in-person
hearing was scheduled for November 30.
Shortly thereafter, Lopez’s counsel attempted to issue a subpoena to
command Deputy Jehl to appear at Lopez’s hearing as a percipient witness.4
4 The subpoena was prepared using DMV form DS 2000P (rev. 7/2013).
6
The subpoena requested Deputy Jehl to “[p]lease bring the affidavit in
support of the search warrant obtained for the blood draw.” Lopez served the
subpoena on October 4, 2018, by U.S. mail addressed to Deputy Jehl at the
Vista station of the San Diego County Sheriff’s Department. Lopez enclosed
a check for witness fees in the amount of $150.5
Lopez’s counsel later informed the hearing officer in writing that
counsel had “meticulously followed the subpoena instructions on DS 2000P
[the DMV subpoena form] and accompanying instructions per the DMV
website link.” Counsel further stated, “The result was [a] failure. [¶] The
Sheriff’s business office contacted me to advise the following[:] (1) the fee is
$275 not $150 just for the appearance; (2) I am responsible for personally
serving the deputy, even though his contact information is confidential.
Based on my conversation with Melissa at the Sheriff’s business office in San
Diego, it will be virtually impossible for me to serve the deputy”
(capitalization omitted, italics added). Counsel requested that “the
[d]epartment issue a subpoena for the investigating officer to testify at the
hearing date” and that “the department serve the deputy to appear on
November 30.”
By letter dated October 16, the hearing officer informed Lopez it would
not assist in subpoenaing peace officer witnesses. The letter stated: “It
appears, from your message, the law enforcement agency has a policy and
procedure regarding how to subpoena an officer. The agency did not state
they will not honor the subpoena, rather they informed you of the procedure
5 A copy of the check does not appear in the record; however, a letter
from Lopez’s counsel reflects the enclosure of a $150 check for the appearance
fee with the subpoena. Further, the record reflects that, at the hearing,
counsel produced a copy of the check and requested that it be included “in the
file.” The hearing officer indicated it would be included.
7
required to subpoena an officer. After consulting with management, your
request to subpoena Officer Jehl on behalf of your client is denied. I regret
my response could not be more favorable.”
2. Administrative Per Se Hearing
Lopez appeared with counsel at his in-person hearing on November 30.
The hearing officer indicated the scope of the hearing was limited to four
issues: (1) Did the officer have reasonable cause to believe Lopez was driving
a motor vehicle in violation of Sections 23152 or 23153 of the Vehicle Code?
(2) Was Lopez lawfully arrested? (3) Was Lopez told his driving privilege
would be suspended or revoked if he refused to submit to or failed to complete
a chemical test? (4) Did he refuse to submit to or fail to complete a chemical
test after being requested to do so by a peace officer? (See §§ 13353, subd. (d),
13557, subd. (b)(1).)
The hearing officer indicated she would introduce Deputy Jehl’s
officer’s statement, the arrest report, and a printout of Lopez’s DMV driving
record as exhibits. The hearing officer then indicated “[t]hat does conclude
the [d]epartment’s presentation” and invited Lopez to proceed with his case.
Lopez testified under oath at the hearing. He stated that he is a truck
driver with a commercial driver’s license. On the day of his arrest, the family
had a party to celebrate his niece’s baptism. The party was at Lopez’s house;
he owns the home and is the provider for his large family. Lopez took a
“ZzzQuil” as a sleep aid (not “Seroquel”) and went to bed around 7:00 or
8:00 p.m. that evening because he had to get up to work at 2:30 in the
morning. Lopez’s sister roused him from his sleep telling him “the cops are
outside, and they want to talk to the owner [of the house].” Near the front of
the house, Lopez saw his sister-in-law; she was intoxicated and attempted to
push him. Lopez went to re-enter his house, but the deputy told him to leave,
8
even when Lopez explained he owned the house. Lopez went to his vehicle,
which was parked “in the easement . . . in [¶] . . . [¶] the driveway.”6
Lopez testified he sat in the driver’s seat and “just laid back like that,”
and then an officer knocked on his window and asked if he had been
drinking. However, when counsel asked Lopez if he had turned on the
vehicle’s air conditioning, Lopez then testified he “tried the battery for the
AC” but he did not kick over the engine, and he denied that he was driving.
Lopez testified that, after he performed all the field sobriety tests the
officer administered, the officer told him about “a breath test,” but Lopez just
said he was sleepy and wanted to go back inside. At that point, the officer
arrested him.
Lopez testified the officer brought him to the Vista jail, which was a
short drive from his home; sat him down; and told him they were going to do
a blood test. Lopez said he waited four or five minutes for someone to come
perform the blood test, and when the man came, Lopez stuck his hand out
and told him to hurry because Lopez was afraid of needles.
Lopez acknowledged refusing the breathalyzer but denied refusing the
blood test. Lopez also denied being admonished regarding the repercussions
of refusing to take a blood test.
The hearing officer cross-examined Lopez and asked him if his air
conditioning would work without turning on his truck “[b]ecause most
vehicles . . . the air will come out, but it won’t get cold.” Lopez then said that
“[he] turned it on, and [he] put down a little bit the window[,] [a]nd the air
6 Lopez testified the driveway to his house is an easement which is about
40 feet long and poorly maintained. He did not recall if he had the keys to his
vehicle but said his vehicle was locked. He testified, and the documents
confirmed, that he did not have keys to his vehicle when his property was
inventoried at the jail.
9
came out,” but continued to insist he “did not turn over the engine.” The
hearing officer confirmed that Lopez’s testimony was that he “said no, sir
about the [p]reliminary [a]lcohol [s]creening test at [his] home, but when
[they] got to the jail . . . the officer did not advise [Lopez] that [he was]
required to submit to a chemical test, after [he] was arrested.” Lopez
responded, “No. He did not.”
On redirect, Lopez testified he was confused but did not tell the deputy
he did not understand what was going on “because [the deputy] already
looked frustrated, and . . . he handcuffed me.” Lopez testified that “maybe
[he] made [a mistake]” by not requesting an interpreter because English is
his second language.
Lopez’s sister testified that the family was at Lopez’s home to celebrate
their niece’s christening. When the police arrived, she was nearby, watching.
The deputy sheriff asked to speak to the owner of the home, and another
sister went to rouse Lopez from sleep. While Lopez was attempting to speak
to the officer, their sister-in-law, who was very intoxicated, began to make a
scene, and “the officer started telling my brother to leave.” She testified, “the
officer was taking my brother out of his own house, when he was obviously
sleeping, and they just wanted to talk to him, because he was the owner of
the house.” Lopez’s sister testified Lopez then got in his truck, which was
parked in the alley out front of the house. She testified she did not see what
Lopez did when he got into his vehicle and admitted it was possible she
would not have been able to hear the truck start over the music playing at
the house. She testified she was confident the truck did not move.7
7 Lopez was prepared to call his other sister to testify that she had
roused him from bed, but the hearing officer offered to stipulate to that fact.
10
Lopez’s counsel argued in closing that the police report was “very bare-
bones” and implored the hearing officer to give Lopez “the benefit of the
doubt.” Counsel argued, “the officer is not here. And that’s not our doing. I
have done everything possible to get the officer here, and the agency, not
you—it’s the agency. They’re the prosecutors. They decided no. We’re not
going to do it, not going to bring in the body cameras, not going to bring in
the officers, not going to bring in the warrants.”
3. Decision After Hearing
After the hearing, the hearing officer issued a written decision refusing
to set aside the suspension of Lopez’s driving privilege. The hearing officer
relied on the arrest report and the officer’s statement to support her findings
of fact. The hearing officer found there was probable cause to initially detain
Lopez in that officers were called to the house due to noise complaints after a
family party, Deputy Jehl observed Lopez enter his vehicle in front of the
house, Deputy Jehl was notified by radio that another deputy suspected
Lopez was “very intoxicated,” Deputy Jehl saw Lopez’s vehicle move forward
slightly, and Deputy Jehl then commanded Lopez to stop. The hearing officer
found the deputy observed objective symptoms of intoxication, including
bloodshot and watery eyes, odor of alcohol, unsteady gait, slurred speech, and
unsatisfactory field sobriety test results. The hearing officer found the
evidence indicated Lopez was then arrested for violating Vehicle Code
section 23152.
The hearing officer further found that, despite Lopez’s contrary
testimony, Deputy Jehl’s written reports clearly documented that Lopez was
admonished regarding the repercussions for refusing chemical testing, and
Lopez nonetheless refused testing. The hearing officer found Lopez’s “refusal
was clear and unequivocal even though he submitted to the blood draw,” and
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“the department’s evidence is deemed sufficient to establish [that Lopez] was
properly read the admonition and [that Lopez] refus[ed] to submit to a
chemical test.” The hearing officer thus concluded that Lopez “was told that
his driving privilege would be suspended or revoked if he refused to complete
the required testing,” and Lopez “did refuse or fail to complete the chemical
test or tests after being requested to do so by a peace officer.”
The hearing officer rejected Lopez’s defense that he was not driving,
noting that the arrest report documented Jehl’s observation that the vehicle
moved forward slightly. The hearing officer further noted circumstantial
evidence supported the finding that Lopez was driving: Lopez exited from
the driver’s seat of the vehicle, he was the registered owner of the vehicle,
and he did not identify anyone else driving the vehicle.
The hearing officer found that Lopez and his sister were not credible
because their testimony was self-serving.
The department notified Lopez that his driving privileges would be
suspended for one year, and further notified him he would be required to
surrender his commercial driver’s license as a result of this suspension.
C. Proceedings in the Superior Court
Lopez filed a petition for writ of mandate in the San Diego Superior
Court, seeking judicial review of the administrative action.8 In his petition,
Lopez contended that he had established, “by the totality of the
circumstances and by his witnesses and his own testimony at the hearing,”
8 Lopez requested that the trial court stay the administrative order
suspending his driving privileges pending review. The trial court imposed a
stay. By writ of supersedeas, Lopez also requested this court to stay the
suspension of his driving privileges pending appeal, which we granted on
September 19, 2019. As such, a stay of the administrative order suspending
Lopez’s driving privileges has remained in effect during the pendency of this
appeal.
12
that the criteria for suspension of his license had not been met. Lopez
challenged the propriety of the administrative procedure, asserting that
“[t]he deputy was not subpoenaed by the agency, despite [c]ounsel’s demand
for his appearance. The Sheriff’s Department refused to abide by DMV
protocol to accept service for the deputy. This objection was raised at the
hearing and documentary evidence was submitted to support [Lopez’s]
objections that his right to a fair hearing was tainted by gamesmanship
conducted by the [d]epartment. The [d]epartment always subpoenas an
officer but only when it suits the hearing officer’s case against the
Respondent. The one-sidedness of this protocol violates the due process of
law rights of every driver who demands a hearing with the arresting officer
present.” Lopez further argued that the department abused its discretion
when it “refused to call the officer as a witness despite the failure of the
Sheriff’s department to follow the DMV protocol.”
The department opposed Lopez’s petition, contending Lopez’s attempt
to subpoena the deputy was defective and that Lopez was informed of the
defects and the department’s refusal to issue a subpoena with ample time
before the hearing. The department further contended there was a strong
presumption that the hearing officer’s findings are correct and that the
hearing officer properly admitted Deputy Jehl’s sworn statement and arrest
report into evidence. The department further argued that it has a mandatory
duty to suspend the driving privileges of a motorist who is lawfully arrested
for driving under the influence and that the arresting deputy properly
detained Lopez and then lawfully arrested him for drunk driving.
13
Prior to the scheduled hearing on Lopez’s petition, the superior court
issued a tentative decision denying Lopez relief.9 Lopez appeared at the
initial hearing on his petition and requested a continuance to file
supplemental briefing addressing legal issues raised in the tentative ruling:
“specifically the issue [of] . . . whether the hearing officer at a DMV
suspension hearing who serves both as an arbitrator and as a biased advocate
for the agency should receive the same deference in her rulings upon this writ
of mandate.” The court granted Lopez’s request and continued the hearing.
In supplemental briefing, Lopez contended that he had “followed
protocol to subpoena the officer to make sure he would be available for
critical cross-examination. The Sheriff’s Department refused to follow the
written DMV protocol provided to counsel. . . . The Sheriff’s [Department]
stated that contrary to the DMV’s written protocol, it would not accept
service and that [Lopez] ‘needed to personally serve the deputy.’ Since the
deputy’s home address is not provided, this roadblock to serve him personally
rendered him secreted. Instead of easily issuing a subpoena at [c]ounsel’s
request, the hearing officer refused.”
At the hearing, the trial court pressed the attorney regarding her
contention that the subpoena was improperly ignored—stating there was no
evidence on that issue, only an attorney letter. “What you would need to do is
attach the protocol and say, they violated this protocol. And they did not do
this. And, by the way, I didn’t see any request for a continuance based on the
fact that the officer wasn’t there. I saw a request for a continuance based on
the lack of discovery. But I didn’t see one based on the fact that—your honor,
9 The tentative order does not appear in the record; however, it appears
the tentative was substantially similar to the minute order issued after the
subsequent hearing.
14
we can’t go forward today. It would be a denial of due process. You never
said that.”
After argument, the trial court issued a detailed, eight-page order
denying Lopez relief. The trial court stated that, in reviewing the
administrative decision, it was required to determine, based on its
independent judgment, whether the weight of the evidence supported the
decision. The trial court observed that the disputed issues were whether Jehl
had reasonable cause to believe that Lopez had been driving a motor vehicle,
whether Lopez refused to submit to chemical testing after Jehl’s request, and
whether Lopez had been told that his license would be suspended if he
refused to submit to or did not complete the test or tests. The trial court
acknowledged that the evidence presented on these issues was “conflicting,”
but that the officer’s written reports regarding the incident which supported
the administrative decision constituted admissible, relevant evidence on
which the hearing officer was permitted to rely.
The trial court considered Lopez’s testimony and observed that Lopez
testified he stated he had taken an over-the-counter sleeping aid called
“ZzzQuil” (not Seroquel). The trial court observed that Lopez initially
testified he just sat in his truck, and only when questioned by counsel did he
admit he turned the truck on to use the air conditioning, but still denied
turning the engine over. The trial court observed that Lopez did not testify
the vehicle did not move, and observed that, under the law, even a slight
movement can constitute “driving.” (See Henslee v. Dept. of Motor Vehicles
(1985) 168 Cal.App.3d 445, 451-452 [forward movement of several inches
constituted driving].)
The trial court emphasized that, where there was a conflict in the
evidence, the hearing officer was entitled to believe the contemporaneous
15
notes of the deputy. The trial court ruled that it “cannot find that the
hearing officer’s determination is contrary to the weight of the evidence.”
The court acknowledged Lopez’s argument that he “was credible and that he
testified truthfully,” but noted that the court’s “role is to determine whether
the hearing officer’s determination is contrary to the weight of the evidence.
It is not.” The trial court entered judgment accordingly.
DISCUSSION
I.
Legal Background and Standard of Review
“[T]he implied consent law provides that drivers who are arrested on
suspicion of [driving under the influence] are deemed to have consented to
chemical testing to determine their blood-alcohol concentration.” (Espinoza v.
Shiomoto (2017) 10 Cal.App.5th 85, 97 (Espinoza), citing § 23612,
subd. (a)(1)(A).) “The administrative per se procedure is the means by which
the [d]epartment suspends or revokes a motorist’s driver’s license for driving
under the influence or for refusing to submit to a chemical test under the
implied consent law. ‘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.’ ” (Espinoza, at p. 98.)
“Testing for [blood alcohol concentration] is incidental to a lawful arrest
for [driving under the influence] and at the direction of the peace officer
having reasonable cause to believe the motorist drove under the influence of
alcohol in violation of section 23152 or 23153. [Citation.] The motorist must
be admonished that failure to submit to or failure to complete a chemical test
will result in a fine, mandatory imprisonment if the motorist is subsequently
16
convicted of [driving under the influence] under section 23152 or 23153, and
suspension of his or her driver’s license. [Citation.] A motorist arrested for
driving under the influence of alcohol ‘has the choice of whether the test shall
be of his or her blood or breath and the officer shall advise the person that he
or she has that choice. If the person arrested either is incapable, or states
that he or she is incapable, of completing the chosen test, the person shall
submit to the remaining test.’ [Citation.] If both blood and breath tests are
unavailable, the motorist must submit to a urine test.” (Espinoza, supra,
10 Cal.App.5th at pp. 97-98.)
If a motorist refuses to submit to or fails to complete a chemical test,
the arresting officer submits a sworn statement to the department that the
officer had reasonable cause to believe the person had been driving a motor
vehicle in violation of sections 23140, 23152, or 23153, and that the person
had refused to submit to, or did not complete, the test or tests after being
requested by the officer. (§ 13353, subd. (a); see Espinoza, supra,
10 Cal.App.5th at pp. 98-99.) Upon receipt of the officer’s sworn statement,
the department “shall” suspend the motorist’s driver’s license for one year or
revoke the motorist’s driver’s license for two or three years if the motorist
falls within certain recidivist statutes. (§ 13353, subd. (a); see Espinoza, at
pp. 98-99.)
The department must conduct an administrative review of the record.
(§ 13353, subd. (d); see Espinoza, supra, 10 Cal.App.5th at p. 99.) During
administrative review, the department must determine whether the following
facts are true: (1) the officer had reasonable cause to believe the motorist
drove under the influence of alcohol in violation of section 23152; (2) the
motorist was lawfully detained; (3) the motorist refused to submit to or failed
to complete a chemical test after being requested by a peace officer; and
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(4) the motorist was admonished that his or her driving privilege would be
suspended or revoked if he or she refused to submit to or failed to complete a
chemical test. (§§ 13353, subd. (d), 13557, subd. (b)(1).) If the department
concludes those facts to be true by a preponderance of the evidence, it shall
sustain the order of suspension or revocation. (§ 13557, subd. (b)(1).) Before
or after receiving the results of the administrative review, the motorist may
request an administrative hearing. (§§ 13353, subd. (e), 13557, subd. (e),
13558.)
A motorist desiring further review of the department’s determination to
sustain the suspension order may petition the superior court for review.
(Veh. Code, § 13559, see Code Civ. Proc., § 1094.5.) When a driver petitions
for review of an order suspending his license, 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. (Murphey v.
Shiomoto (2017) 13 Cal.App.5th 1052, 1068-1069 (Murphey); Lake v. Reed
(1997) 16 Cal.4th 448, 457 (Lake).) However, “ ‘[o]n appeal, we review 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.’ ”
(Murphey, at p. 1069; see Lake, at p. 458.)
II.
Lopez Has Not Established He Was Denied Due Process
A licensee has “ ‘an absolute right to compel’ the attendance of
witnesses ‘if he requests a [subpoena], has it served and pays the statutory
fee.’ ” (Monaghan v. Department of Motor Vehicles (1995) 35 Cal.App.4th
1621, 1626; § 14104.5, subd. (a).)
18
When the individual subpoenaed is a deputy sheriff, the subpoenaing
party must comply with certain provisions of the Government Code. (Nick v.
Department of Motor Vehicles (1993) 12 Cal.App.4th 1407, 1415 (Nick)
[holding that Government Code sections 68097.1 and 68097.2 apply to
subpoenas served in DMV administrative proceedings].) Service of a
subpoena on a deputy sheriff may be made by either serving the deputy
personally or delivering two copies to his immediate supervisor (or an agent
designated by the supervisor to receive service). (Gov. Code, § 68097.1.)10 In
addition to effecting proper service, the subpoenaing party must tender to the
person accepting the subpoena “two hundred seventy-five dollars ($275),
together with the subpoena, . . . for each day” that the peace officer’s
attendance is required. (Gov. Code, § 68097.2, subd. (b).) A subpoena on a
peace officer is properly refused absent tender of the required fee. (Nick, at
p. 1415.)
When a peace officer is properly served with a valid subpoena but
refuses to comply, the subpoenaing party must seek to enforce the subpoena
using one or more statutory procedures. He may raise an objection at the
10 Government Code section 68097.1, subdivision (a) provides: “Whenever
an employee of the Department of Justice who is a peace officer or an analyst
in a technical field, peace officer of the Department of the California Highway
Patrol, peace officer member of the State Fire Marshal’s Office, sheriff,
deputy sheriff, marshal, deputy marshal, district attorney inspector,
probation officer, building inspector, firefighter, or city police officer is
required as a witness before any court or other tribunal in any civil action or
proceeding in connection with a matter regarding an event or transaction
which he or she has perceived or investigated in the course of his or her
duties, a subpoena requiring his or her attendance may be served by
delivering a copy either to the person personally, or by delivering two copies
to his or her immediate superior at the public entity by which he or she is
employed or an agent designated by that immediate superior to receive that
service.”
19
administrative hearing, request a continuance (Gov. Code, § 11524), request
the hearing officer to issue a subpoena (Veh. Code, § 14104.5, subd. (a)), or
request the hearing officer to initiate contempt proceedings by certifying the
facts that justify a contempt sanction to the superior court (Gov. Code,
§§ 11455.10, 11455.20). (See Petricka v. Dept. of Motor Vehicles (2001)
89 Cal.App.4th 1341, 1351 (Petricka) [driver must take steps prescribed by
statute to challenge the DMV’s failure to disclose, including petitioning the
superior court for relief, objecting at the administrative hearing, requesting a
continuance, and requesting the hearing officer to issue a subpoena];
Snelgrove v. Dept. of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1376
(Snelgrove) [“When the arresting officer fails to appear, the licensee who
wants a chance to confront and cross-examine the officer has every right to
obtain a postponement and [subpoena] the witness, at his or her own
expense. Due process concerns are thus satisfied.”].)
It is incumbent upon the driver to take the appropriate steps to secure
the attendance of a witness. (Petricka, supra, 89 Cal.App.4th at p. 1351;
Nick, supra, 12 Cal.App.4th at p. 1417 [“ ‘A defendant may not complain of
the absence of a witness unless he had made a showing of due diligence to
obtain the attendance of the witness.’ ”].)
When a properly subpoenaed officer fails to appear, proceeding with an
administrative hearing over the licensee’s objection may constitute a
violation of due process. (See Fitzpatrick v. Dept. of Motor Vehicles (1993)
13 Cal.App.4th 1771, 1776-1777 [where officer was subpoenaed by both the
licensee and the department, department’s insistence on proceeding with
administrative hearing despite officer’s failure to appear resulted in denial of
licensee’s constitutional and statutory rights to confront and cross-examine
the witness against him].)
20
Deputy Jehl’s failure to appear at Lopez’s hearing raises no due process
concerns because the record demonstrates Lopez’s subpoena was defective for
at least two reasons: ineffective service and an insufficient witness fee.
Lopez did not properly serve the subpoena on Deputy Jehl. (Gov. Code,
§ 68097.1, subd. (a) [requiring personal service on a deputy sheriff, or, in the
alternative, service by delivery of two copies to his or her immediate superior
at the public entity by which he or she is employed or an agent designated by
that immediate superior to receive that service].) The record indicates Lopez
attempted to effect service by mail directed to Deputy Jehl at the address of
the station at which he was headquartered. This is not a proper method of
service under applicable law.11 Lopez’s protestation that personal service
was impossible because he did not know the deputy’s home address is
unavailing because service alternatively could have been effected by mailing
11 We thus reject Lopez’s claim he “validly served” a subpoena duces
tecum for Deputy Jehl’s appearance “by placing a copy in the United States
mail addressed to the Vista Station of the San Diego County Sheriff’s
Department,” in compliance with Vehicle Code section 14104.5. This claim
fails to recognize the additional requirement to comply with Government
Code section 68097.1, subdivision (a), when the subpoenaed witness is a
deputy sheriff. Indeed, none of Lopez’s briefs contains a single citation to the
applicable Government Code sections.
21
two copies of the subpoena to Jehl’s superior officer at the Vista Sheriff’s
department.12
Moreover, Lopez’s subpoena was accompanied by an insufficient
witness fee of $150. (Gov. Code, § 68097.2, subd. (b) [appearance fee for
peace officer is $275 per day].) The record reflects that Lopez was notified of
this deficiency by the Sheriff’s business office; however, Lopez made no
attempt to correct the error. Failure to tender the proper attendance fees
pursuant to Government Code section 68907.2 allows the peace officer to
disregard the subpoena. (Nick, supra, 12 Cal.App.4th at pp. 1416-1417.)
Lopez acknowledged that the sheriff’s department promptly informed
him his attempted service was defective and notified him of the appropriate
witness fee. When the department declined to issue its own subpoena, the
hearing officer emphasized that “[t]he agency did not state they will not
honor the subpoena, rather they informed you of the procedure required to
subpoena an officer.” This information was provided to Lopez weeks in
advance of his hearing date, leaving him ample time to remedy the defects of
the original subpoena, yet Lopez failed to do so. Instead, Lopez appeared at
the hearing, claimed his defective subpoena was valid, and proceeded on the
merits of the license suspension. At no point during his hearing did Lopez
object on due process grounds, request a continuance, or request the hearing
12 Any apparent failure to understand the governing subpoena procedures
does not excuse Lopez from exercising diligence to effect valid service of the
subpoena along with the required witness fee. (See, e.g., Hopkins & Carley v.
Gens (2011) 200 Cal.App.4th 1401, 1414 [counsel’s duty of competence
“includes the obligation to know ‘ “those plain and elementary principles of
law which are commonly known by well informed attorneys,” ’ and also ‘ “to
discover those additional rules of law which, although not commonly known,
may readily be found by standard research techniques.” ’ ”]; People v. Meneses
(2008) 165 Cal.App.4th 1648, 1661 [“ignorance of the law is no excuse”].)
22
officer to initiate contempt proceedings by certification to the superior court.
Lopez failed to demonstrate the due diligence required to obtain Deputy
Jehl’s attendance and may not now complain of the deputy’s absence.13
(Nick, supra, 12 Cal.App.4th at p. 1417; Petricka, supra, 89 Cal.App.4th at
p. 1351.)
The cases Lopez cites do not support his position that he was denied
due process. For example, Lopez relies on Mohilef v. Janovici (1996)
51 Cal.App.4th 267, in which the court noted, “Due process may require an
agency to subpoena witnesses where, absent their testimony, the agency’s
ultimate decision would be based solely on their written reports.” (Id. at
p. 304.) However, the Mohilef court rejected the petitioners’ contention they
were deprived of due process, finding they received adequate notice of the
proceedings and a meaningful opportunity to respond, and noting the
petitioners neglected to provide information about who they wished to
subpoena or what those witnesses might have said. (Ibid.) Similarly here,
Lopez had the opportunity to subpoena Deputy Jehl to appear at his
administrative hearing, but he failed to effect service of a valid subpoena
with the correct witness appearance fee.
Relying on Butera v. Apfel (7th Cir. 1999) 173 F.3d 1049, Lopez
contests the department’s refusal to issue a subpoena, contending that
subpoena power must be exercised by an agency where it is “ ‘reasonably
necessary for the full presentation of a case.’ ” (Id. at p. 1057.) Lopez
13 Because the failure to properly subpoena the deputy as a witness is
dispositive of Lopez’s due process claim, we decline to address Lopez’s
additional contention that the opportunity to cross-examine the deputy was
“critical to his defense.” “The due process concern for cross-examination and
confrontation was satisfied” by Lopez’s opportunity to subpoena the deputy,
even if he failed to take the steps necessary to secure the witness’s
attendance. (Snelgrove, supra, 194 Cal.App.3d at pp. 1371, 1375-1376.)
23
acknowledges the Butera court found no due process violation because the
litigant had failed to fulfill the regulatory requirement that he demonstrate
that the presence of the witness was required for a full presentation of his
case.14 Lopez attempts to differentiate himself from the litigant in Butera,
claiming that he properly followed subpoena requirements “to the letter,” but
he did not. As discussed, Lopez failed to effect proper service on the deputy
sheriff and failed to tender the correct witness fee. The Butera decision is
neither binding on this court nor helpful to Lopez’s position.
We also reject Lopez’s additional challenges to the failure of the
administrative record to include a warrant, blood test results, or body camera
footage.15 Lopez made no objection to the absence of this evidence during the
administrative proceeding, nor did he file with the hearing officer a motion to
compel discovery (Gov. Code, § 11507.7). Moreover, aside from sheer
speculation, Lopez has not shown that any of this evidence would have
benefitted him or changed the outcome of the hearing.
III.
Substantial Evidence Supports the Trial Court Judgment
The issues at the hearing were limited to the following: (1) whether the
officer had reasonable cause to believe Lopez drove under the influence of
alcohol in violation of section 23152; (2) whether Lopez was lawfully
detained; (3) whether Lopez refused to submit to a chemical test after being
14 In Butera, federal regulations not applicable here provided that the
administrative law judge may issue a subpoena “[w]hen it is reasonably
necessary for the full presentation of a case.” (20 C.F.R. § 404.950(d)(1)
(2020).)
15 These documents were not sought in conjunction with Lopez’s attempt
to subpoena Deputy Jehl. Through the subpoena, Lopez only sought
discovery of the affidavit in support of the search warrant for a blood draw.
24
requested by a peace officer; and (4) whether Lopez was admonished that his
driving privilege would be suspended or revoked if he refused to submit to a
chemical test.16 (§§ 13353, subd. (d), 13557, subd. (b)(1).)
“Where an officer files a sworn statement with the [d]epartment, the
officer’s unsworn arrest report is admissible at the administrative per se
hearing to supplement the sworn report.” (Murphey, supra, 13 Cal.App.5th
at p. 1063; § 13557, subd. (a) [“The department shall consider the sworn
report submitted by the peace officer . . . and any other evidence
accompanying the report.”]; see MacDonald v. Gutierrez (2004) 32 Cal.4th
150, 158-159 (MacDonald) [“[I]n 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 . . . .’
[Citation.] ‘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.” ’ ”].)
At the administrative hearing, the hearing officer entered as evidence
Deputy Jehl’s arrest report and his officer’s statement. Lopez raised no
objections to the admission of this evidence. The superior court, like the
hearing officer before it, relied on this evidence to conclude Lopez’s license
suspension was warranted.
“[T]he scope of our review on appeal is limited: ‘[W]e “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
16 The attorney general contends that Lopez did not challenge the
lawfulness of his arrest. However, at the hearing, Lopez clearly indicated he
refused to stipulate on any of the four issues.
25
decision. [Citations.] Where the evidence supports more than one inference,
we may not substitute our deductions for the trial court’s. [Citation.] 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.’ ” ’ ”
(Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1217, citing Lake, supra,16 Cal.4th at p. 457.)
Applying this standard, we conclude the record evidence supports the
trial court’s determination that each contested factor was established by a
preponderance of the evidence. Deputy Jehl’s arrest report contained
extensive evidence supporting the conclusion he had reasonable cause to
believe Lopez drove under the influence of alcohol and that Lopez was
lawfully detained: The arrest report recounted that Deputy Jehl arrived on
the scene and was informed by radio that a man later identified as Lopez
should not be permitted to drive away in his vehicle because he was “very
intoxicated.” Deputy Jehl saw Lopez’s vehicle’s headlight turn on, heard the
engine start, heard the vehicle “engage the transmission,” and heard and saw
“the suspension ‘squat.’ ” In the arrest report, Deputy Jehl stated that the
vehicle “moved forward slightly.” Deputy Jehl observed “several
signs/symptoms of alcoholic beverage intoxication. [Lopez’s] jaw was lax, his
eyelids were droopy, his eyes were watery, and [Deputy Jehl] could smell the
odor of an alcoholic beverage emitting from his breath/person.” The arrest
report notes that Lopez denied drinking alcohol but admitted to taking over-
the-counter sleeping medication. Deputy Jehl noted he conducted field
sobriety tests.
Deputy Jehl’s officer’s statement, signed under penalty of perjury,
contained additional evidence regarding the issues of reasonable cause and
lawful detention: The officer’s statement indicated Deputy Jehl observed
26
Lopez “enter his vehicle, start the engine, and begin to move forward.”
Deputy Jehl observed “objective symptoms of intoxication,” including
“Bloodshot/watery eyes,” “Odor of alcoholic beverage,” “Unsteady gait,” and
“Slurred speech.” Deputy Jehl evaluated Lopez and noted he “performed
poorly.”
Deputy Jehl’s arrest report also evidenced Lopez’s refusal to submit to
a chemical test upon request and the deputy’s admonishment that Lopez’s
driving privilege would be suspended if he refused to submit to a chemical
test: Deputy Jehl stated in the arrest report that he initially asked Lopez if
he would be willing to submit to a preliminary alcohol sensor device test, but
Lopez declined. Then after Lopez was placed under arrest, Deputy Jehl
“walked Lopez to [his] patrol vehicle and asked him which chemical test
(blood/breath) he would be willing to submit to. Lopez declined to provide
either.” Deputy Jehl then transported Lopez to the station, again asked if
Lopez would be willing to provide a breath sample or a blood sample, and
Lopez responded “No, Sir,” to each request. The arrest report stated that
Deputy Jehl “confirmed with Lopez that he understood it was considered a
refusal and Lopez stated he understood.”
The officer’s statement further indicated Deputy Jehl “admonished the
driver” that he was required by state law to submit to a chemical test to
determine the alcohol content of Lopez’s blood. Deputy Jehl indicated he
admonished Lopez that, because Deputy Jehl believed he was under the
influence of alcohol, he had the choice of taking a breath or blood test.
Deputy Jehl indicated Lopez responded, “No Sir” to a breath test, and “No
Sir” to a blood test.
This evidence, which was properly admitted at the hearing and on
which the hearing officer and the trial court were entitled to rely, supports
27
the trial court’s determination on each of the contested issues and establishes
that Lopez’s license was properly suspended for refusal to consent to a
chemical test. (§ 13353.) We thus reject Lopez’s claims regarding the
insufficiency of evidence, including his contentions that there “could not have
been reasonable cause to believe he violated DUI laws because he testified
[he] never started the motor or drove the truck,” “there could not have been
reasonable cause to believe he was intoxicated,” “he never refused the [blood]
test and voluntarily submitted to it as soon as Deputy Jehl asked him,” and
“there was no reading of any admonishment and certainly no threat of Lopez
losing his license.” As discussed, the deputy sheriff’s written reports refute
each of these contentions.
Because we have concluded the trial court’s decision is supported by
substantial evidence, we reject Lopez’s protestations that the trial court, like
the hearing officer, improperly discounted the testimony offered by Lopez and
his sister.17 The trial court acknowledged the conflicts in the evidence,
recognized that the hearing officer found Lopez’s testimony to be “not
credible,” and noted that Lopez’s sister admitted she was unable to see what
Lopez was doing in the truck. The trial court noted that, in light of the
conflicting evidence, the hearing officer was entitled to rely on the deputy’s
contemporaneous written reports (MacDonald, supra, 32 Cal.4th at pp. 158-
159; § 13557, subd. (a)) and properly concluded the weight of the evidence
supported the administrative decision (Lake, supra, 16 Cal.4th at p. 457).
There was substantial evidence supporting the trial court’s ruling and our
17 Lopez contends “[i]t was error for the hearing officer to rely on the
police report of the absent Deputy Jehl and disregard the testimony of
[Lopez] and his sister.” However, as we have discussed, it was appropriate
for the hearing officer to rely on the deputy sheriff’s written reports.
28
role on appeal is not to reweigh the conflicting evidence. (Murphey, supra,
13 Cal.App.5th at p. 1069; Lake, at p. 458.)
DISPOSITION
The stay issued on September 19, 2019 is dissolved. The judgment is
affirmed.
GUERRERO, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
29