Killam v. DMV CA1/3

Filed 5/23/13 Killam v. DMV CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
DAVID KILLAM,
Plaintiff and Appellant,
A135546
v.
CALIFORNIA DEPARTMENT OF (City & County of San Francisco
MOTOR VEHICLES, Super. Ct. No. CPF-11-511579)
Defendant and Respondent.
David Killam appeals from the denial of his petition for a writ of mandate
challenging the suspension of his driver’s license. We affirm.
BACKGROUND
Killam was arrested for drunk driving at around 8:35 on the night of May 15,
2011, after he drove his car into a retaining wall. Killam’s breath smelled strongly of
alcohol, he was unable to stand unassisted, his speech was slurred, and his eyes were
bloodshot and watery. Killam admitted he had drunk six beers, but then said “I don’t
drink.”
Killam was transported to San Francisco General Hospital, where it was
determined that a blood test was necessary. Killam refused and said “I’m not giving you
anything.” A forced blood draw was conducted at 10:34 p.m. that night. Killam was
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notified that his driver’s license would be administratively revoked or suspended
pursuant to Vehicle Code section 133531 due to his refusal to submit to the test.
Killam challenged the revocation at an administrative hearing on the ground that
he was not admonished of the consequences of refusing to submit to a blood test before
his blood was forcibly drawn. The hearing officer found the revocation was proper and,
specifically, that a notation in San Francisco Police Officer K. Castillo’s sworn report
(the DS-367 form) that Killam was admonished at 10:45, 11 minutes after his blood was
drawn, was a “typographical,” or clerical, error. His driving privilege was revoked for
three years.2
Killam then filed a petition for writ of administrative mandate in the superior
court. The court found the hearing officer reasonably relied on an unsworn report by
Officer Castillo to find Killam was properly admonished before the forced blood draw.
Accordingly, it denied his writ petition. Killam timely appealed.
DISCUSSION
I. Standards of Review
In ruling on an application for a writ of mandate after a license suspension or
revocation, the trial court independently determines whether the weight of the evidence
supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457.)
However, “a trial court must afford a strong presumption of correctness concerning the
administrative findings, and the party challenging the administrative decision bears the
burden of convincing the court that the administrative findings are contrary to the weight
of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817.)
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All further statutory references are to the Vehicle Code unless otherwise
indicated.
2
Pursuant to section 13353, subdivision (a)(3), refusal to submit to a chemical
blood alcohol test results in a three-year revocation if within the prior 10 years the driver
has incurred two or more separate convictions for reckless driving, driving under the
influence of alcohol or drugs, or vehicular manslaughter while intoxicated; two or more
administrative license suspensions or revocations for driving with .08 percent or greater
blood alcohol content or failure to submit to blood alcohol testing; or any combination of
two or more of those convictions or administrative suspensions or revocations.
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On appeal, we review the record to determine whether the trial court’s findings are
supported by substantial evidence. We resolve all evidentiary conflicts and draw all
reasonable inferences in favor of the trial court’s decision, and may overturn the trial
court’s factual findings only if the evidence is insufficient as a matter of law to sustain
them. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) However, where the determinative
issue is legal rather than factual we exercise our independent judgment. (Manriquez v.
Gourley (2003) 105 Cal.App.4th 1227, 1233.)
II. Analysis
Killam argues, as he did before the superior court, that the Department of Motor
Vehicles (DMV) failed to introduce sufficient evidence to prove he was admonished
before his blood was forcibly drawn, and that his license would be revoked unless he
submitted to the test. We disagree.
Killam’s argument rests on Officer Castillo’s sworn incident report, the DS-367
form. In the box provided to indicate the time the blood test was administered, Officer
Castillo wrote “22[:]34 hrs,” or 10:34 p.m. An unsworn “narrative/supplemental” report
also prepared by Officer Castillo and dated May 15 added the following. “Ofc. Leong
advised (B) Killam of the chemical test admonition (23612 CVC). Due to medical
constraints, Killam had to provide us with a blood sample for our investigation. When
Killam was advised that he would have to give us a blood sample, he became
uncooperative and said, ‘I’m not giving you anything.’ It was at that time I informed Sgt.
Lozada . . . a forced blood draw of Killam’s blood would be needed.” (Italics added.) A
phlebotomist was then summoned, after which Castillo observed the blood draw and
delivered the samples to the station.
This is sufficient evidence that Killam was advised of the consequences of
refusing the blood test before his blood was forcibly drawn. The issue here arises
because, despite her narrative description of the events, Officer Castillo wrote the time of
the test as“2234 hrs” in the DS-367 report. The question is whether the court could rely
on the supplemental narrative report that Killam was admonished before the blood draw
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and infer that the time notation on the DS-367 was a mistake. We are satisfied that it
could.
MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-159, clarifies that the court
may rely on unsworn evidence to supplement the officer’s sworn report. The Supreme
Court explained: “[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.” ’ [Citation.] Again, too, we must not lose sight
of the reason for the ‘slight relaxation of the rules of evidence applicable to an
administrative per se review hearing,’ a rationale we reiterated in Lake: ‘[T]he
administrative per se laws are intended to provide an efficient mechanism whereby those
persons who drive after consuming dangerous amounts of alcohol can have their driver’s
licenses quickly suspended so as to ensure they will not endanger the public by
continuing to drive.’ ” (Ibid; see also Gov. Code, § 11513, subd. (d).) The trial court
properly could thus rely on the sequence of events set forth in Officer Castillo’s
supplemental report when it found the handwritten entry of “2245” for the time of the
chemical test admonition was erroneous and that Killam was admonished before, not
after, his blood was drawn.
Killam disagrees. He maintains that, while MacDonald allows the DMV to look
to unsworn evidence “to fill in any necessary information that the officer neglected to
state in the DS-367,” it does not allow the DMV to rely on such evidence “to override the
facts stated in the sworn report.” This is so, he argues, because MacDonald “only
authorizes the [DMV] to use unsworn reports to correct technical omissions of proof,”
not to contradict a sworn statement. He reads MacDonald too narrowly. The Court there
was tasked with reconciling section 13380, which requires the arresting officer to provide
the DMV a sworn report of “all information relevant to the enforcement action”
(§ 13380, subd. (a)) and section 13557, which directs the DMV to consider the sworn
report and “any other evidence accompanying the report.” (§ 13557, subd. (a).) The
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court rejected the view that the unsworn report cannot supply relevant information that
was omitted from the sworn report. (MacDonald v. Gutierrez, supra, 32 Cal.4th at pp.
158-159.) “[T]he Legislature clearly anticipates the sworn report will contain all or
nearly all of the information necessary to remove the offender’s license. In light of this
legislative intent, the sworn report cannot be wholly devoid of relevant information.
However, so long as a sworn report is filed, it is consistent with the relaxed evidentiary
standards of an administrative per se hearing that technical omissions of proof can be
corrected by an unsworn report filed by the arresting officer.” (Id. at p. 159, italics
added.)
Those same “relaxed evidentiary standards” permit the admission of hearsay
evidence in an administrative hearing to explain, as well as supplement, other evidence.
(Gov. Code, § 11513, subd. (d) [hearsay evidence is admissible in administrative hearings
to supplement or explain other evidence, but insufficient in itself to support a finding
unless admissible over objection in a civil action].) Under the Court’s reasoning in
MacDonald, therefore, it is equally appropriate to rely on an officer’s unsworn report to
explain or interpret the sworn report as to cure any omissions. That is what happened
here. The trial court looked to Officer Castillo’s unsworn narrative report to reasonably
find that the peculiar discrepancy between the time of admonishment and the time of the
blood draw presented in the officer’s sworn report resulted from a drafting error. It was
permissible for the trial court to consider the unsworn report for this purpose, and the
evidence was sufficient for it to conclude Killam was admonished before his blood was
drawn.
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DISPOSITION
The judgment is affirmed.
_________________________
Siggins, J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Pollak, J.
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