Haberman v. Shiomoto
Filed 2/14/13 Haberman v. Shiomoto CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Siskiyou)
RANDALL J. HABERMAN,
Plaintiff and Appellant,
v.
JEAN SHIOMOTO, as Chief
Deputy Director, etc.,
Defendant and Respondent.
C069788
(Super. Ct. No.
SC SC CV PT 10-0000601)
Plaintiff
Randall J. Haberman appeals from a trial court judgment denying his mandamus
petition challenging Department of Motor Vehicles’
(DMV) suspension of his driving privilege under the “administrative per seâ€
statutes (
ADDIN BA xc <@st> xl 28 s CNNWRV000001 xpl 1 l "Veh. Code, §
13353.2 et seq." Veh. Code, § 13353.2 et seq.)
concentration (BAC). He contends the
trial court erred in denying his petition for
of mandate because (1) he was not lawfully arrested, a
prerequisite for administrative license suspension, and (2) he “could not
reasonably have been found to have been driving with a prohibited BAC because
both elements were not concurrently established.†We shall conclude that Haberman’s arrest was
lawful, and that there is ample evidence to support the trial court’s
conclusion he drove with a BAC of 0.08 percent or higher. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 2:00 a.m. on September 6, 2009, California Highway Patrol Officer Monday
observed a pick-up truck parked along the right shoulder of Big Meadows Road in
Quartz Valley. He
pulled along side the truck, saw that it was occupied, and got out of his
patrol car to conduct a welfare check.
As he approached the truck, he noticed that the hood was warm to the
touch. Haberman was seated in the
driver’s seat and appeared to be asleep.
The driver’s side window was partially down, and when Officer Monday
looked inside the cab area, he saw a nearly empty bottle of rum in the
passenger seat and a full glass of liquid (later determined to be rum) in the
center console. Officer Monday knocked
on the window several times to wake Haberman, and Haberman finally opened his
eyes and stared straight ahead. ADDIN
BA xc <@$ru> xl 5 s CNNWRV000003 xpl 1 When asked if he knew where he was, Haberman
initially responded that he was in his driveway. ADDIN
BA xc <@$ru> xl 5 s CNNWRV000003 xpl 1 When Officer Monday explained that he was not
in his driveway, Haberman said he was somewhere in Quartz Valley and later stated he was on Big Meadows Road. ADDIN
BA xc <@$ru> xl 5 s CNNWRV000003 xpl 1 When asked what he was doing there, he said
he had a fight with his wife and had gone for a drive. ADDIN
BA xc <@$ru> xl 5 s CNNWRV000003 xpl 1 When asked how long he had been at that
location, he asked what time it was. ADDIN
BA xc <@$ru> xl 5 s CNNWRV000003 xpl 1 When Officer Monday told him it was about 2:00 a.m., Haberman said he had been there
approximately 30 minutes. Haberman
appeared intoxicated -- his speech was slurred, his eyes were bloodshot, and he
smelled of alcohol. Officer Monday asked
Haberman to exit the truck and instructed him to stand next to it. As Haberman did so, Officer Monday noticed
that he was unsteady on his feet and detected the odor of alcohol on his
breath. Haberman said he had a couple of
drinks at a bar in Fort
Jones and later had more to drink at his
home. He said he had his last drink at 11:30 p.m. He
denied having anything to drink while parked at that location. He also stated that he arrived at the
location alone and remained alone.
Officer Monday administered a series
of field sobriety tests, which Haberman failed to perform in a satisfactory
manner. Officer Monday arrested Haberman
for driving under the influence (DUI) ( ADDIN BA xc <@osdv> xl 23 s
CNNWRV000035 xpl 1 l "§ 23152, subds. (a),(b)" §
23152, subds. (a),(b))
BA xc <@osdv> xl 15 s CNNWRV000037 l "section 40300.5" section 40300.5,
which, among other things, allows a warrantless arrest for DUI when the officer
has reasonable cause to believe that a person has been driving while under the
influence of alcohol and may destroy or conceal evidence of the crime unless
immediately arrested.
CNNWRV000004 xpl 1
Haberman submitted to a breath test
at 3:27 a.m. and 3:30 a.m., which revealed a BAC of 0.13 and 0.12 percent,
respectively. Officer Monday served a
“Suspension/Revocation Order†to suspend Haberman’s driver’s license based on
his arrest for DUI and test showing a prohibited BAC.
Haberman requested an
hearing, which was held on November 18, 2009,
before a hearing officer appointed by the DMV Director, with Haberman and his
counsel present. At the hearing,
Haberman said he had been drinking in his car.
ADDIN BA xc <@ru> xl 5 s CNNWRV000009
xpl 1 l "AR 57" He denied doing so when questioned by Officer
Monday because he was afraid he would get into trouble if he said he had been
sitting there drinking. He and his wife
had been at a local bar earlier that evening from about 9:00 p.m. until 11:00
p.m., during which time he had two rum and Cokes. They returned home around 11:15 p.m.,
got into an argument, and Haberman left around 11:45 p.m. On his way out, he grabbed a bottle of
Captain Morgan rum from the kitchen cabinet and drove down to Big Meadows Road,
about a seven-minute drive. Once there,
he drank the rum and fell sound asleep.
While he could not recall exactly how much he had to drink, he
remembered the bottle was nearly half-full when he left his house. He denied having anything to drink at home.
The hearing officer issued an
“Administrative Per Se - .08% BAC Notification of Findings and Decision,â€
concluding the license suspension was proper.
The hearing officer found (1) Officer Monday had reasonable cause to
believe Haberman was driving a motor vehicle in violation of ADDIN
BA xc <@osdv> xl 18 s CNNWRV000038 l "section 23152, (2)" section 23152, (2)
Haberman was lawfully arrested, and (3) Haberman was driving a motor vehicle
when he had 0.08 percent or more by weight of alcohol in his blood. The finding of lawful arrest was based on ADDIN
BA xc <@$osdv> xl 15 s CNNWRV000037 section 40300.5.
DMV issued a notice of decision of
department review suspending Haberman’s driver’s license for four months
effective December 27, 2009.
In April 2010, Haberman filed in the
trial court a petition for review of the DMV determination. ( ADDIN BA xc <@osdv> xl 7 s
CNNWRV000039 xpl 1 l "§ 14401" §
14401.) After a hearing, the trial court denied the
petition, finding that Officer Monday’s “conclusion that [Haberman] had driven
the vehicle to its ultimate location while under the influence of alcohol was
reasonable†given that Haberman “admitted he had driven the vehicle to its
location approximately one-half hour earlier, denied consuming alcohol after
parking the vehicle and the engine, while off, was still warm.†The trial court rejected the notion that
“actual observation of driving†is required for DMV action, where, as here,
“from all of the circumstances, the officer had reasonable cause to believe
that the vehicle had been operated by a person who was at the time in violation
of ADDIN BA xc <@$osdv> xl 7 s
CNNWRV000036 §
23152.†The court entered judgment denying the
petition.
Haberman appeals.
DISCUSSION
I
Standard of
Review
On appeal of a trial court decision concerning administrative
suspension of a driver’s license, the appellate court reviews the record to
determine whether the trial court’s findings are supported by
evidence. ( ADDIN BA xc <@cs> xl 39 s
CNNWRV000025 xhfl Rep xpl 1 l "Lake v. Reed
(1997)
Cal.4th 448, 457.) We may overturn the trial court’s factual
findings only if the evidence is insufficient as a matter of law to sustain
those findings. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)
However, we review questions of law under a de novo standard. ( ADDIN BA xc <@cs> xl 48 s
CNNWRV000026 xhfl Rep xpl 1 l "Corrigan v. Zolin
(1996)
Cal.App.4th 230, 234.)
II
Statutory
Framework
Under what is often called the
“administrative per se†law ( ADDIN BA xc <@$st> xl 17 s
CNNWRV000001 xpl 1 § 13353.2 et seq.), a person arrested for DUI, and who is
determined to have a prohibited BAC, shall have his or her driving privileges
suspended prior to an actual conviction for a criminal offense, regardless of
whether or not there is evidence that the person’s driving ability was actually
impaired. ( ADDIN BA xc <@$cs> xl 41 s
CNNWRV000025 xhfl Rep xpl 1 Lake v.
Reed, supra, 16 Cal.4th
at p. 454.)
When a person is arrested for DUI
and is determined to have a prohibited BAC, the arresting officer or the DMV
serves the person with a notice of order of license suspension, advising that
the license will be suspended in 30 days and that the person has the right to
an administrative hearing. ( ADDIN BA xc <@osdv> xl 19 s
CNNWRV000040 xpl 1 l "§§ 13353.2, 13353.3" §§ 13353.2, 13353.3.)
The arresting officer takes possession of the person’s driver’s license
and issues a temporary license. ( ADDIN BA xc <@osdv> xl 7 s
CNNWRV000041 xpl 1 l "§ 13382" § 13382.)
The DMV automatically reviews the
merits of the suspension, under a
of evidence standard, with the burden of proof on the
department. ( ADDIN BA xc <@osdv> xl 7 s
CNNWRV000042 xpl 1 l "§ 13557" § 13557; ADDIN
BA xc <@$cs> xl 41 s CNNWRV000025 xhfl Rep xpl 1 Lake v.
Reed, supra, 16
Cal.4th at p. 455.) “For drivers 21
years of age and older, the sole issues are whether: ‘(A) . . . the peace
officer had reasonable cause to believe that the person had been driving a
motor vehicle in violation of ADDIN
BA xc <@$osdv> xl 19 s CNNWRV000036 Section . . . 23152 or 23153. [¶] (B) . . . the person was
placed under arrest . . . [and] [¶] (C) . . . the person was driving . . . [¶]
[w]hen the person had 0.08 percent or more, by weight, of alcohol in his or her
blood.’†( ADDIN BA xc <@$cs> xl 35 s
CNNWRV000025 xhfl XRef xpl 1 Lake v.
Reed, supra, at pp.
455-456, citing ADDIN
BA xc <@$osdv> xl 7 s CNNWRV000042 xqt xpl 1 §
13557.) The department may dispense with
the automatic review if the driver requests an administrative hearing. ( ADDIN BA xc <@osdv> xl 18 s
CNNWRV000043 xpl 1 l "§ 13557, subd. (e)" § 13557, subd. (e).)
The administrative hearing is
usually held before a department hearing officer. ( ADDIN BA xc <@$cs> xl 41 s
CNNWRV000025 xhfl Rep xpl 1 Lake v.
Reed, supra, 16
Cal.4th at p. 456.) The only issues at
the hearing on an order of suspension pursuant to ADDIN
BA xc <@osdv> xl 15 s CNNWRV000044 l "Section
13353.2" section
13353.2 are
whether the arresting officer had reasonable cause to believe the person was
driving, the driver was arrested, and the person was driving with 0.08 percent
BAC or higher. ( ADDIN BA xc <@osdv> xl 22 s
CNNWRV000045 xpl 1 l "§§ 13557, subd. (b)(3)" §§ 13557, subd. (b)(3); 13558, subd. (c)(2).)
If the hearing officer finds the
evidence proves these three statutory prerequisites by a preponderance of the
evidence, the driver’s license will be suspended for four months if the driver
had a clean driving record, or one year if the driver had a prior conviction or
prior specified administrative action regarding BAC. ( ADDIN BA xc <@osdv> xl 9 s
CNNWRV000046 xpl 1 l "§ 13353.3" § 13353.3.)
In ruling on an application for a
writ of mandate following an order of suspension, the trial court is guided by ADDIN
BA xc <@osdv> xl 13 s CNNWRV000047 l "section
13559" section 13559, which provides: “If the court finds [upon
review of the record of the administrative hearing] that the department
exceeded its constitutional or statutory authority, made an erroneous interpretation
of the law, acted in an arbitrary and capricious manner, or made a
determination which is not supported by the evidence in the record, the court
may order the department to rescind the order of suspension or revocation and
return, or reissue a new license to, the person.†( ADDIN BA xc <@$osdv> xl 7 s
CNNWRV000047 xpl 1 § 13559,
subd. (a).) The trial court exercises its independent judgment in determining
whether the weight of the evidence supported the administrative decision. ( ADDIN BA xc <@$cs> xl 41 s
CNNWRV000025 xhfl Rep xpl 1 Lake v.
Reed, supra, 16
Cal.4th at p. 456.)
As indicated above, we apply a
evidence standard to the trial court’s factual
findings, and a de novo standard to questions of law. ( ADDIN BA xc <@$cs> xl 41 s
CNNWRV000025 xhfl Rep xpl 1
BA xc <@$cs> xl 50 s CNNWRV000026 xhfl Rep xpl 1 Corrigan
v. Zolin, supra, 47 Cal.App.4th at p. 234.)
III
Analysis
A. Haberman
was lawfully arrested for DUI.
not lawfully arrest him for DUI in violation of ADDIN
BA xc <@$osdv> xl 13 s CNNWRV000036 section 23152 where Haberman’s vehicle was “lawfully
parked and neither the officer, nor any other witnesses . . . observed the
vehicle move.†We disagree.
the administrative per se statutes, in order for the DMV to validly suspend a
person's driver's license, ‘the underlying arrest must have been lawful.’†( ADDIN BA xc <@cs> xl 68 s
CNNWRV000027 xhfl Rep xpl 1 l "Dyer
v. Department of Motor Vehicles (2008)
168" Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161,
168; see also ADDIN BA xc <@cs> xl 64 s
CNNWRV000028 xhfl Rep xpl 1 l "Mercer
v. Department of Motor Vehicles (1991)
760" Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 760.)
ADDIN
BA xc <@$st> xl 22 s CNNWRV000005 Penal Code section
836 generally prohibits warrantless arrests for misdemeanors not committed
in the officer’s presence. An exception
is provided, however, where the officer has reasonable cause to believe a
person has been DUI and certain circumstances exist, e.g., the person may destroy
or conceal evidence of the crime if not immediately arrested. ( ADDIN BA xc <@osdv> xl 27 s
CNNWRV000048 xpl 1 l "§ 40300.5, subd. (e), fn. 2" § 40300.5,
subd. (e), fn. 3,
This exception has been extended to the metabolic destruction of alcohol
and/or drugs in the body by the simple passage of time. ( ADDIN BA xc <@cs> xl 50 s
CNNWRV000029 xhfl Rep xpl 1 l "People
v. Schofield (2001)
approval in ADDIN BA xc <@cs> xl 57 s
CNNWRV000030 xhfl Rep xpl 1 l "Troppman
v. Valverde (2007)
Cal.4th 1121, 1136, fn. 11.)
“[S]ection 40300.5, subdivision (e) creates an exception to the presence
requirement of ADDIN BA xc <@$st> xl 22 s
CNNWRV000005 Penal Code section
836 because evidence will be destroyed by the simple passage of time unless
the person is immediately arrested.†( ADDIN BA xc <@$cs> xl 52 s
CNNWRV000029 xhfl Rep xpl 1 People v. Schofield,
supra, 90 Cal.App.4th at p. 975.)
Here, Haberman’s arrest was lawful
because had he not been immediately arrested his body would have metabolized
the alcohol over time, thereby destroying evidence he was DUI.
Officer Monday did not observe Haberman drive while intoxicated is of no
consequence.
B. Substantial evidence supports the trial court’s finding that Haberman actually drove with a
BAC of 0.08 percent or above.
Haberman also contends “[t]here
simply was no substantial and credible evidence that established the time of
driving in relation to the level of alcohol in [his] blood after arrest.†Again, we disagree.
Officer Monday discovered Haberman
asleep in his truck at approximately 2:00 a.m.
Haberman told Officer Monday that he had driven to that location around
1:30 a.m. He admitted drinking prior to
driving to that location and denied drinking while at that location. At 3:27 a.m. and 3:30 a.m., Haberman’s BAC
was 0.13 and 0.12, respectively. Based
on these facts, we have no trouble concluding that substantial evidence
supports the trial court’s finding that Haberman drove with a BAC of 0.08
percent or above. That the record
contained evidence that would support a contradictory finding does not undermine
our conclusion. (See ADDIN
BA xc <@$cs> xl 41 s CNNWRV000025 xhfl Rep xpl 1 Lake
v. Reed, supra, 16 Cal.4th at p. 457; ADDIN
BA xc <@cs> xl 56 s CNNWRV000032 xhfl Rep xpl 1 l "
Cal.App.4th 1596, 1607" Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1607.)
DISPOSITION
The judgment is
affirmed. DMV shall recover its costs on
appeal. ( ADDIN BA xc <@ru> xl 37 s
CNNWRV000033 xpl 1 l "Cal. Rules of Court, rule 8.278(a)(1)" Cal. Rules of Court,
rule 8.278(a)(1).)
BLEASE , Acting
P. J.
We concur:
HULL , J.
DUARTE , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the ADDIN BA xc <@ost> xl 12 s
CNNWRV000034 l "Vehicle Code" Vehicle
Code.
name="_ftn2" title="">[2] ADDIN BA xc <@osdv> xl 13 s
CNNWRV000036 l "Section 23152" Section
23152 provides in pertinent part:
“(a) It is unlawful for any person who is under the influence of
any alcoholic beverage or drug, or under the combined influence of any
alcoholic beverage and drug, to drive a vehicle. [¶] (b) It is unlawful for any person who
has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a
vehicle.â€
