Kirschenmann v. Shiomoto
Filed 3/15/13
Kirschenmann v. Shiomoto CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
JEFFREY SCOTT KIRSCHENMANN,
Plaintiff and
Appellant,
v.
JEAN SHIOMOTO, as Chief Deputy
Director, etc.,
Defendant and
Respondent.
F063668
(Super.
Ct. No. S-1500-CV-271669)
THE COURT
name="_ftnref1" title="">*
APPEAL from
an order of the Superior Court of
Linda S. Etienne, Commissioner.
Middlebrook
& Brehmer, Richard O. Middlebrook, Jeremy C. Brehmer and Diane M. Medina,
for Plaintiff and Appellant.
Kamala D.
Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney General,
Kenneth C. Jones and Lorinda D. Franco, Deputy Attorneys General, for Defendant
and Respondent.
-ooOoo-
Jeffrey
Scott Kirschenmann appeals from an order denying the writ of mandate he filed in
the trial court, which sought to preclude enforcement of an order issued by the
Department of Motor Vehicles (DMV) suspending his driving privilege after he
was arrested for driving with a blood-alcohol content in excess of 0.08
percent, in violation of Vehicle Code section 23152, subdivision (b).
Kirschenmann’s primary argument is
that there was insufficient evidence
to identify him as the driver of the vehicle.
The basis for this argument is an assumption that identity can be
established only by eyewitness testimony.
As we shall explain, the circumstantial evidence in the record
adequately identified Kirschenmann as the driver of the vehicle.
Kirschenmann also argues that
omissions in the forms prepared by the arresting officer violated section
13380, thus precluding suspension of his driving privilege. There is no merit to this argument either,
and we shall affirm the order denying his petition.
FACTUAL AND PROCEDURAL SUMMARY
Two witnesses observed Kirschenmann
lose control of his vehicle, strike two trees and a stop sign, and finally stop when his vehicle struck a cinder
block wall. Kirschenmann exited his
vehicle and was standing nearby when Officer Rex Davenport arrived at the
scene. Davenport observed Kirschenmann
and observed bloodshot and/or watery eyes, an unsteady gait, slurred speech,
and smelled the odor of alcohol.
Kirschenmann refused to make any statement at the scene without the
presence of his attorney. Kirschenmann
took a breath test, which registered a blood-alcohol content of 0.18 percent on
the first test and 0.19 percent on the second test. Kirschenmann was arrested.
DMV is required to suspend the
driving privilege of any person who operates a vehicle with a blood-alcohol
content of 0.08 percent or higher.
(§ 13353.2, subd. (a)(1).)
As required by section 13382, Davenport served Kirschenmann with a
notice of the order suspending his driving privilege, confiscated his driver’s
license, and issued Kirschenmann a temporary driver’s license. The temporary driver’s license was valid for
a period of 30 days. At the expiration
of the 30-day period, the suspension of Kirschenmann’s driving privilege would
begin. (Id., subd. (b).)
When a police officer issues an
order suspending someone’s driving privilege, DMV is required to conduct an
internal review of the order. (§ 13557,
subd. (a).) In addition, the driver may
request a hearing on the matter. (§
13558, subd. (a).) The review, and
hearing if requested within 10 days of receipt of the notice of suspension, are
required to occur during the 30-day grace period. (Id.,
subd. (d).)
This procedure, often referred to
as the “administrative per se†law, is intended “(1) to provide safety to persons using the
highways by quickly suspending the driving privilege of persons who drive with
excessive blood-alcohol levels; (2) to guard against erroneous deprivation by
providing a prompt administrative review of the suspension; and (3) to place no
restriction on the ability of a prosecutor to pursue related criminal
actions. [Citations.]†(Gikas
v. Zolin (1993) 6 Cal.4th 841, 847.)
Kirschenmann requested a hearing on
the order suspending his driving privilege.
statute. (§ 13558, subd.
(c)(2).) As relevant here, DMV, which
bore the burden of proof by a preponderance of the evidence (
(Lake)), was required to establish
(1) Davenport had reasonable cause to believe Kirschenmann had been driving a
motor vehicle with a blood‑alcohol content of 0.08 percent or greater,
(2) Kirschenmann was placed under arrest, and (3) Kirschenmann actually had a
blood-alcohol content of 0.08 percent or higher (§ 13557, subd.
(b)(1)(A-C)).
The hearing officer upheld the
suspension. Kirschenmann then filed a
writ of mandate in the superior court seeking to prevent enforcement of the
suspension. The trial court denied the
writ. Kirschenmann appeals from the
denial of the writ.
DISCUSSION
“In ruling on an application for a
writ of mandate following an order of suspension or revocation, a trial court
is required to determine, based on its independent judgment, ‘“whether the
weight of the evidence supported the administrative decision.â€â€™ [Citations.]
appeal, we ‘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 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. [Citation.]â€â€™ [Citations.]â€
(Lake, supra, 16 Cal.4th
The issue in this case is whether
there was sufficient evidence to permit DMV to suspend Kirschenmann’s driving
privileges. The hearing officer was
required to consider “the sworn report submitted by the peace officer … and any
other evidence accompanying the report.â€
(§ 13557, subd. (a).) DMV
submitted form DS 367 (the officer’s sworn statement) prepared by Davenport,
the accident report prepared by Davenport, and Kirschenmann’s driving
record. These three documents set forth
the above facts.
Kirschenmann impliedly acknowledges
that if all of the evidence submitted was properly considered, then the finding
suspending his driving privilege was proper.
He argues, however, the documents relied on by the hearing officer and
the trial court did not contain sufficient admissible
evidence to support the necessary findings.
Resolution of this issue requires
us to consider relevant statutes and cases interpreting the administrative per
se law. Section 13557, subdivision (a)
requires the hearing officer to consider the officer’s sworn statement and any
other evidence accompanying the report.
This chapter in the Vehicle Code also provides that all matters not
covered in the chapter shall be governed by the chapter in the Government Code
entitled “Administrative Adjudication:
Formal Hearing,†which begins at Government Code section 11500. (Veh. Code, § 14112, subd. (a).)
Relevant to this issue, and the primary
basis for Kirschenmann’s arguments, is Government Code section 11513, which
addresses admission of evidence at administrative hearings.
only if an oath or affirmation is first obtained and provides each party with
the right to examine and cross-examine witnesses. It also provides the hearing need not be
conducted according to the technical rules of evidence, and any evidence that
is of the type “responsible persons are accustomed to rely in the conduct of
serious affairs†shall be admitted, “regardless of the existence of any common
law or statutory rule which might make improper the admission of the evidence
over objection in civil actions.†(
of “supplementing or explaining other evidence but over timely objection shall
not be sufficient in itself to support a finding unless it would be admissible
over objection in civil actions.†(
The Supreme Court has addressed the
administrative per se law in several opinions.
Two of those opinions are relevant here.
In Lake, Lake was involved in
an accident with another vehicle.
Officers Dickerson and King arrived at the scene and determined Lake was
exhibiting signs of intoxication.
Officer Dickerson arrested Lake and completed the sworn statement. Officer King prepared the accident report, in
which Lake admitted he was driving. The
accident report also stated that other witnesses identified Lake as the driver
of his vehicle. Lake was arrested, and
the urine sample he submitted showed that his blood-alcohol content exceeded
the statutory limit. (
453.)
Lake challenged the evidence that
identified him as the driver of his vehicle at the time of the accident. The Supreme Court began its analysis by
noting that at the initial administrative review, DMV is required to review the
police officer’s sworn statement and any other evidence submitted with the
statement, but at the appeal hearing “the universe of potentially available
evidence is enlarged, for ‘[a]ny evidence at the hearing shall not be limited
to the evidence presented at an administrative review pursuant to Section
13557.’ [Citation]†(Lake,
supra, 16 Cal.4th at p. 458.) The
Supreme Court then cited Government Code section 11513, discussed above.
The Supreme Court next examined the
evidence presented by DMV, which consisted of the police officer’s sworn
statement, as well as the accident report prepared by another officer. The information in the accident report was
not subscribed under penalty of perjury.
The Supreme Court observed that because neither officer observed the
accident, and the arresting officer did not hear Lake’s admission that he was
driving, the only evidence in the sworn
statement (which is prepared by the arresting officer) identifying Lake as
the driver of the vehicle was inadmissible hearsay. Thus, the evidence in the
in Government Code section 11513, subdivision (d) that prohibits the use of
hearsay as the only evidence to support a finding unless the evidence would be
admissible in a civil action.
The issue, therefore, was whether
the accident report constituted
admissible evidence that Lake was driving, which could then be used to
supplement the sworn statement. The
Supreme Court first observed that section 13557, subdivision (a) requires DMV
to consider the sworn statement
prepared by the arresting officer, but also contemplates consideration of all
of the supporting evidence submitted with the sworn statement. Therefore, there was no statutory prohibition
that prevented DMV from considering the accident
report that was submitted with the sworn
statement, even though the accident report was prepared by a different
officer. (Lake, supra, 16 Cal.4th at pp. 459-460.) The Supreme Court also concluded the hearing
officer properly considered the accident report because it was the type of
report on which “‘responsible persons are accustomed to rely in the conduct of
serious affairs.’†(Id. at pp. 460-461.)
Having concluded the hearing office
properly could consider the accident report in addition to the sworn statement,
the Supreme Court turned to the question of whether the accident report
contained admissible evidence to establish Lake was driving the vehicle at the
time the accident occurred. The Supreme
Court first pointed out that the accident report fell within the public
employee record exception to the hearsay rule and thus an objection to the
report would have been overruled in a civil action. (Evid. Code, § 1280;
The information within the accident
report that identified Lake as the driver, however, also was hearsay. The Supreme Court concluded there was
admissible evidence identifying Lake as the driver because Lake’s admission he
was driving the vehicle fell within the party admission exception to the
hearsay rule. (Evid. Code, § 1220;
did not fall within an exception to the hearsay rule, could be used to explain
and supplement the accident report and the sworn statement pursuant to the
provisions of Government Code section 11513, subdivision (d). (Lake,
at pp. 461-462.) The Supreme Court
concluded this portion of the opinion by summarizing its holding:
“Although our interpretation of
the relevant statutes will render it easier for the DMV to sustain an
administrative suspension of a person’s driver’s license, this result is
consonant with the Legislature’s intent in creating the statutory scheme. We reiterate that the 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. [Citation.] One aspect of this accelerated procedure is a
slight relaxation of the rules of evidence applicable to an administrative per
se review hearing.
“Of course, in a great number
of cases, the arresting officer will have personally observed the arrestee
driving in a manner suggestive of being intoxicated, and any question of
hearsay or lack of personal knowledge will not materialize. In other cases, as here, where the officer in
question did not view the driver behind the wheel of the car, we find it is
consistent with the purposes of the administrative per se law to permit the DMV
to consider both: (i) the sworn report
of the peace officer who responded to the scene and arrested the person
suspected of driving while intoxicated (or with an elevated [blood-alcohol
content]); as well as (ii) the unsworn report of any officer who, within the
scope of the officer’s official duty, wrote a report at or near the time of the
accident under circumstances indicating trustworthiness of the sources of
information and method of preparation.
[Citation.]†(
In the second part of the opinion,
the Supreme Court rejected Lake’s challenge to the evidence that his
blood-alcohol content exceeded the statutory maximum. DMV submitted a report from the county
forensic laboratory, which showed a test of Lake’s urine established he had a
blood-alcohol content of 0.19 percent.
Lake argued that because the report was not signed under penalty of
perjury, it was inadmissible. The
Supreme Court again observed the statutory
scheme anticipated the sworn statement would be accompanied by other
material, and that it was unlikely the officer would have the personal
knowledge or scientific training to permit him or her to qualify as an expert
on the testing. (Lake, supra, 16 Cal.4th at p. 463.)
Because there was no express statutory requirement that a forensic test
be sworn, the Supreme Court concluded the report from the forensic laboratory
was admissible. (Id at p. 464.)
“[W]e conclude the express
statutory provision that the DMV may consider some types of evidence (e.g.,
23158.2[, subdivision (a)] report, live testimony) only if sworn, together with
the absence of a similar statutory limitation on consideration of blood and
urine test results, indicates a legislative intent that blood and urine test
results may be admitted in a DMV administrative hearing despite a lack of
certification under penalty of perjury.
“We thus conclude a forensic
laboratory report need not be sworn as a condition of admission into evidence
at an administrative per se review hearing.
So long as the forensic laboratory report complies with other statutory
requirements, it becomes an ‘official record’ of the DMV and, though unsworn,
is admissible in the administrative review hearing pursuant to section 14104.7.
“This conclusion is consistent
with the relaxation of evidentiary rules applicable in administrative
hearings. A report prepared by a
forensic laboratory properly licensed by the State of California (see tit. 17,
Cal. Code Regs., § 1215 et seq.), though unsworn, ‘is the sort of evidence
on which responsible persons are accustomed to rely in the conduct of serious
affairs’ (Gov. Code, § 11513, subd. (c)), and the admission of such
evidence will facilitate the immediate removal of dangerous drivers from the
road. The Legislature could reasonably
have concluded that the formality of having forensic alcohol analysts swear
under penalty of perjury to the accuracy of their test results, while
unquestionably providing an additional layer of confidence the [blood-alcohol
content] evidence is correct, could be dispensed with in administrative
hearings at which no criminal penalties will be imposed.
“Finally, to the extent Lake
contends the forensic laboratory report comprises insufficient evidence of his
[blood-alcohol content] because it is inadmissible hearsay, we agree with the
Court of Appeal below that the report falls within the public employees record
exception to the hearsay rule. (Evid.
Code, § 1280.) The report indicates
it was prepared ‘by and within the scope of duty of a public employee,’ that it
was done ‘near the time of the act’ of testing the urine sample, and the
‘sources of information and method and time of preparation were such as to
indicate its trustworthiness.’ Drawing
all logical and reasonable inferences in the trial court’s favor [citation], we
conclude sufficient evidence supports the finding Lake was driving with .08
[blood-alcohol content] or greater. Lake
does not strongly argue otherwise.†(Lake,
supra, 16 Cal.4th at pp. 466-467.)
This statutory scheme again was
addressed in MacDonald v. Gutierrez (2004)
32 Cal.4th 150 (MacDonald), which
required the Supreme Court to resolve a dispute between different divisions of
the Second District Court of Appeal. The
arresting officer submitted a sworn statement to DMV to support the notice of
order of suspension of MacDonald’s driving privilege. The sworn statement did not include
information necessary to permit DMV to uphold the suspension. The arresting officer, however, also
submitted to DMV his nonsworn accident report, which contained the necessary
information. The issue was whether DMV
could rely on information contained in the accident report to affirm the
suspension when the arresting officer completed both the sworn statement and
the accident report. Divisions Two and
Three of the Second District Court of Appeal reached opposite conclusions when
addressing the issue.
The issue was different from the
issue presented in Lake because in
sworn statement and the accident report.
The division holding the accident report in this situation was not
admissible concluded, in essence, that since the arresting officer was required
to complete the sworn statement, all relevant information must be included in
that statement, and resort to the accident report to provide omitted
information was not permitted. The
Supreme Court disagreed.
“To resolve this case we must
strike a balance between the two pertinent statutory provisions. While section 13380 provides that an officer
making an arrest for driving under the influence of alcohol or drugs shall
immediately forward to the DMV ‘a sworn report of all information
relevant to the enforcement action’ (italics added), section 13557 provides
that the DMV ‘shall consider the sworn report submitted by the peace officer … and
any other evidence accompanying the report’ (italics added).
Court of Appeal in Solovij [
and Dibble v. [Gourley (2002)] 103 Cal.App.4th 496—that the DMV may not consider
an unsworn report by the arresting officers—is certainly
arguable. However, given our conclusion
in Lake that the DMV may consider an unsworn
report by a nonarresting officer, it would be anomalous if it could not
also consider an unsworn report by the arresting officer that is
intended to supplement the officer’s sworn report. Again, in an administrative hearing,
admitted if it is the sort of evidence on which responsible persons are
accustomed to rely in the conduct of serious affairs .…’ [Citations.]
‘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.â€â€™ [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
‘[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. [Citation.]’ [Citation.]
“To summarize: Section 13380 provides the arresting
officer’s sworn report will contain ‘all information relevant to the
enforcement action.’ Therefore, the
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.
In this case, the arresting officer filed a sworn report.†(MacDonald,
supra, 32 Cal.4th at pp. 158-159.)
Identity
With these statutes and cases in
mind, we now turn to Kirschenmann’s arguments.
First, he asserts there was insufficient admissible evidence to identify
him as the driver of his vehicle.
Kirschenmann points out that, as in Lake,
the officers responding to the scene did not observe him driving. Also as in Lake, witnesses at the scene observed Kirschenmann driving the
vehicle and provided the information to the responding officers, who in turn
included the witness statements in the accident report. Unlike Lake,
however, Kirschenmann never admitted to the responding officers that he was
driving the vehicle.
This last fact, Kirschenmann
asserts, renders the finding that he was driving the vehicle unsupported by any
evidence. The fallacy in Kirschenmann’s
argument is the implicit assumption that identity of the driver of the vehicle
could be established only by eyewitness testimony. Even in criminal matters, in which the
prosecution must prove the defendant’s guilt by the standard of proof beyond a
reasonable doubt (In re Winship (1970)
397 U.S. 358, 364), identity often is proven by circumstantial evidence (see,
e.g., People v. Rogers (2006) 39
Cal.4th 826, 885-886).)
In determining whether there was
sufficient circumstantial evidence to support the hearing officer’s findings,
we look at the entire record and do not focus on the lack of admission by
Kirschenmann. The record establishes
Kirschenmann was the owner of the vehicle that obviously was involved in an
accident. He was present at the scene in
an obviously intoxicated state. The
scene of the accident strongly suggests the driver of the vehicle was
intoxicated. There is nothing in the
record to suggest there was a passenger in Kirschenmann’s vehicle, or that
someone other than Kirschenmann was driving the vehicle, or that the vehicle
had been stolen. Kirschenmann did not
present any evidence at the hearing to suggest that anyone other than himself
These facts, and absence of
conflicting facts, would permit the hearing officer to reasonably and logically
infer that Kirschenmann was the driver of the vehicle at the time of the
accident. Indeed, these facts are
similar to Rogers where the identity
of the perpetrator was established from evidence that the victim had been
murdered by being shot with a handgun, and Rogers possessed the murder weapon
when he was arrested. That evidence was
sufficient to permit the jury to infer that Rogers was the perpetrator. Here, it was indisputable that someone drove
the vehicle resulting in an accident, and Kirschenmann, as the owner of the vehicle
and present at the scene, was in possession of the vehicle. This evidence was sufficient to allow the
trier of fact to infer that Kirschenmann was the driver of the vehicle.
Government Code section 11513,
subdivision (d) allows the hearing officer to rely on hearsay evidence to
supplement or explain other evidence, but prohibits the hearing officer from
relying only on hearsay evidence to
support a finding. The circumstantial
evidence in the record provided substantial evidence that Kirschenmann was the
driver of the vehicle, and thus permitted the hearing officer to consider the
hearsay statements contained in the report to supplement and explain the
circumstantial evidence. Accordingly, we
reject Kirschenmann’s assertion that there was not substantial evidence in the
record to identify him as the driver of his vehicle at the time of the
accident.
Level of Intoxication–Time of
Test
Kirschenmann next argues the
evidence did not establish he was intoxicated at the time of the accident. He asserts there is a lack of evidence to
support the presumption found in section 23152, subdivision (b). This statute creates a rebuttable presumption
that a person has 0.08 percent or more alcohol in his or her blood if the results
of a chemical test performed within three hours of the driving show the
driver’s amount of alcohol in the driver’s blood is greater than 0.08
percent. Kirschenmann argues the record
does not contain substantial evidence that the breath test he provided was
performed within three hours of the accident.
Kirschenmann’s argument focuses on
the sworn statement, which contains a section that requires an officer to
explain the alleged offense. This
section, for the most part, requires the police officer to fill in blanks and
check appropriate boxes. One of the
blanks the officer is required to fill in includes the date and time of the
incident. Davenport inserted June 29,
2010, as the date of the incident, and 9:11 p.m. as the time of the
incident. This section, as completed by
Davenport, then indicates that Kirschenmann was driving the vehicle pursuant to
the statement of the observer listed in the shaded area of the second page of
the sworn statement. The second page of
the sworn statement lists the two witnesses to the accident in the shaded
area.
The section on the first page of
the sworn statement described in the preceding paragraph also contains a
portion that Davenport could have completed, which indicates that the vehicle
was involved in a collision. When that
portion is checked, the form directs the officer to attach a collision report
and directs the officer to explain how the time of collision was established in
the probable cause section on the second page of the sworn statement.
Kirschenmann argues that because
Davenport did not check the portion of the sworn statement that is used when an
accident occurs, and, consequently, did not explain in the probable cause
section of the sworn statement report
how the time of the collision was established, it is not possible to determine
when the accident occurred, and the presumption established in
section 23152, subdivision (b) does not apply. The time listed by Davenport is unreliable,
according to Kirschenmann, because it is the same time Davenport was dispatched
to the scene of the accident.
The fallacy in this argument is
twofold. First, Kirschenmann seems to
assert the only way to determine if the accident occurred within three hours of
the breath test is through an explanation by Davenport in the sworn
statement. We review the entire record,
which includes the accident report, in addition to the sworn statement. In the accident report, Davenport explained
that when he arrived at the scene he attempted to interview Kirschenmann and
successfully interviewed two witnesses to the accident. Davenport then stated he was dispatched at
9:11 p.m. to the scene of an accident “which had just occurred.†This evidence was sufficient to establish
that the accident occurred within the three-hour window provided by section
23152, subdivision (b), which was sometime between 7:34 p.m. and 9:11 p.m.
The second reason the argument must
be rejected is that section 23152 creates a rebuttable presumption that the
defendant had a blood-alcohol content greater than 0.08 percent if the test was
performed within three hours of the time the defendant drove. A presumption, however, is not the only way
to establish a fact.
Here, Davenport was dispatched to
the scene of an accident at 9:11 p.m. He
took Kirschenmann into custody shortly thereafter, and he administered a breath
test at 10:34 p.m., which established Kirschenmann’s blood-alcohol content
was over twice the legal limit. The
level of alcohol in Kirschenmann’s blood would dissipate with the lapse of time. There is no evidence that Kirschenmann consumed
any alcoholic beverages between the time of the accident and when the breath
test was administered. These facts lead
to the inescapable conclusion that Kirschenmann was intoxicated at time of the
accident, without resort to the section 23152 presumption.
Intoxication–Incomplete Sworn
Statement
As explained above, the sworn
statement contains sections that require the police officer to fill in blanks
and check appropriate boxes. One such
section pertains to the results of the breath test used to establish the level
of alcohol in the blood. This section
indicates (1) the test occurred on June 29, 2010, in the afternoon or evening
(p.m.), (2) Davenport tested Kirschenmann using a breath test machine (and
also includes Davenport’s certification under penalty of perjury that the test
samples were obtained in the regular course of the officer’s duties), and (3)
Davenport was qualified to operate the test equipment.
Davenport omitted from this section
the test results, as well as the time the test took place.
In another section of the sworn
statement, Davenport indicated he observed objective symptoms of Kirschenmann’s
intoxication, including unsteady gait, slurred speech, bloodshot/watery eyes,
and the odor of alcoholic beverages.
Each of these observations was indicated by marking the appropriate box
on the sworn statement. This section
also required Davenport to state the identity of the person who made the
observation and at what time the observations were made. Davenport indicated on the form that he made
these observations, but failed to state the time.
Kirschenmann asserts that these
three omissions (test results, time of test, and time of observations) on the
sworn statement violate the requirements of section 13380 and
argument.
When a police officer arrests
someone for driving with a blood-alcohol content of 0.08 percent or higher,
section 13380, subdivision (a) imposes a duty on that officer to “immediately
forward to the [DMV] a sworn report of all information relevant to the
enforcement action, including†(1) the identity of the person arrested, (2) a
statement of the grounds for believing the person violated the statute, (3) a
report of the chemical test results, (4) a copy of the notice to appear if the
person is released from custody, and, if available, (5) a copy of the complaint
filed with the court. Subdivision (b) of
this section mandates the information be provided on a form provided by DMV.
DMV.
While section 13380, subdivision
(a) requires a report of the test results, and the information must be in the
sworn statement, this section does not state the information must be provided
on the first page of the form in a specific blank. This is significant, because on page two of
the sworn statement, Davenport included in his written summary the results of
the breath test.
Moreover, contrary to an argument
Kirschenmann appears to be making, Davenport certified under penalty of perjury
all of the information contained in the sworn statement, not just the
information on the first page where his signature appears. The DMV form states above the signature line
that the officer is certifying “under penalty of perjury, under the laws of the
State of California, that the information contained
on all pages of this Officer’s Statement is true and correct.†(Italics added.) Accordingly, the sworn statement contains a
report of the chemical test results as required by section 13380.
The time the test was taken does
not appear on the sworn statement, but this omission is hardly fatal. Section 13380 requires a report of the test
results be on the sworn statement, but it does not require the time the test
was taken to be on the form. As stated
above, the accident report prepared by Davenport does state the time the test
was administered, and this information is admissible because Davenport
administered the test himself. Because
the accident report is admissible under the public employees’ record exception
to the hearsay rule (Lake, supra, 16
Cal.4th at p. 460), Kirschenmann has no grounds to object to this
evidence.
The final omission cited by
Kirschenmann, the time Davenport observed Kirschenmann exhibit the signs of
intoxication, similarly is not required by section 13380. Therefore, the omission of this information
on the sworn statement is not fatal.
Moreover, the hearing officer easily could deduce from the accident report
the approximate time of the observations, since Davenport was not dispatched to
the scene until 9:11 p.m. and the test was administered at 10:34 p.m. The only logical inference to be drawn from
these facts is that Davenport’s observations must have occurred between these
two times. Moreover, since probable
cause for the stop was not contested, the time of the observations was
irrelevant.
Finally, Kirschenmann cites the
portion of MacDonald that requires
the sworn statement not be “wholly devoid of relevant information,†and must
contain “all or nearly all of the information necessary to remove the
offender’s license.†(
159.) He asserts the omissions violated
this requirement.
We disagree. As explained, the only two omissions on the
sworn statement—the time Davenport observed the objective signs of intoxication
and the time of the breath test—were technical omissions that were only
tangentially relevant to the proceedings.
as the driver of the vehicle, explained why Davenport concluded he had reasonable
cause to suspect Kirschenmann was intoxicated, informed DMV that Kirschenmann
had been arrested, and reported the results of breath test. (§ 13557, subd. (b)(1)(A-C).) This is “all or nearly all of the information
necessary to remove†Kirschenmann’s license.
The requirements of MacDonald
were not violated.
DISPOSITION
The order of the trial court
denying the petition for a writ of mandate is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Kane, J. and Poochigian, J.
further statutory references are to the Vehicle Code unless otherwise stated.
