Kroll v. DMV
Filed 1/29/14 Kroll v. DMV CA1/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
BENJAMIN KROLL,
Plaintiff and
Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and
Respondent.
A137416
(Marin
County
Super. Ct. No. CIV 1203977)
Benjamin Kroll appeals the denial of
his petition for writ of mandate
challenging the suspension of his driver’s license by the
§ 13559, subd. (a).) He contends: (1) the trial court’s reliance on the
invoked the Fifth Amendment at the DMV administrative hearing deprived him of
due process; (2) the trial court did not independently determine the
hearing as it was required to do; and (3) the trial court’s decision is
unsupported by substantial evidence. We
affirm.
I. BACKGROUND
At about 3:20 a.m. on October 1, 2011, California Highway Patrol
officers responded to a single vehicle rollover accident on a freeway onramp in
San Francisco. They found a Jeep Cherokee
upended on its roof with moderate damage, including a shattered passenger side
window. Kroll and Tracy Mahon were at
the scene. The registered owner of the
Jeep was James Mahon.
Kroll told Officer Farley someone
named “Maureen†had been driving the Jeep, though he was unable to provide any
additional information about this person.
Kroll asserted he had not been in the Jeep, but had received a telephone
call from “Dave†and had been dropped off at the accident scene by his good
friend “Ken.†He could not provide any
details about the car in which he had been riding, nor did he remember where he
had been sitting inside that car. Farley
noticed a two-inch red burn mark on the left side of Kroll’s neck consistent
with a seatbelt, which Kroll explained by saying, “Well[,] I do martial arts.†Farley also noticed a fresh spot of
caused by a cut on his left ankle that was still oozing blood. Asked about the injury, Kroll again stated he
did martial arts. Farley noted Kroll’s
height (six feet) was consistent with the position of the Jeep’s driver’s seat.
Mahon was shorter
than Kroll.
Farley smelled alcohol and noticed Kroll’s
speech was very slurred. Kroll acknowledged
drinking three rum and gin cocktails.
After he failed field sobriety tests, Kroll was arrested on suspicion of
driving under the influence and with a blood alcohol level in excess of .08 percent. (Veh. Code, § 23152, subds. (a),
(b).) A breath test conducted at 4:52 a.m. produced blood alcohol level readings of .085 and .084 percent,
and a blood draw taken at 5:05 a.m. resulted in a reading
of .08 percent.
Mahon, who was
transported to the hospital from the accident scene, was given presumptive
alcohol screenings at 3:46 and 3:49
a.m. that showed blood alcohol levels of
.126 and .116 percent. During
questioning by another officer, Mahon said she had been at a party in San Francisco and
was on her way to her home in San
Bruno, riding in the front
passenger seat with someone named “Margaret†driving. At first Mahon said Kroll
had not been in the Jeep, but she later stated he had been sitting in the back
passenger seat at the time of the accident.
She appeared intoxicated and was unable to provide further information
about the accident.
Kroll was notified his driver’s
license would be suspended. (Veh. Code, § 13353.2,
subd. (a)(1).) An administrative
hearing was held before a DMV officer, at which Kroll stipulated to having a
blood alcohol level of .08 percent but challenged the license suspension on the
ground that Mahon had been driving the Jeep.
Kroll testified that on the night of
the accident, he attended a nautically-themed party in San Francisco along
with his friends Rosalie Morgan, Kyle Misner and David Anderson. Kroll dressed up as a pirate, and carried a
long rapier-type sword.
name="_ftnref1" title="">[1]
Sometime after 3:00 a.m., Kroll
determined he was too intoxicated to drive, and Misner offered to drive Kroll
and Morgan back to his (Misner’s) house for the night. They left in Misner’s car, with Misner
driving, Kroll riding in the front passenger seat, and Morgan riding in the
back. As the three of them were leaving
the party, they saw Anderson and Mahon, who said they were going back into the party and then on to Mahon’s house.
Shortly after leaving the party,
Morgan got a call from Anderson saying he had been in an accident and needed help. Misner drove to the scene, where they saw the
Jeep flipped over on the onramp, with Mahon and Anderson standing
in the center of the onramp trying to wave off other cars. Kroll used Morgan’s cell phone to call the
police and stayed on the line with them until officers arrived. Mahon told Kroll someone named Maureen had been driving but had run off. Kroll denied having a red mark on his left
shoulder as described by Farley, presenting photographs he had taken of his
upper torso the evening following the accident that did not show any red marks. As to the ankle wound, Kroll explained that
the sword he was carrying as part of his costume cut his ankle while he was
dancing.
Morgan and Misner similarly
testified that Kroll had left the party in Misner’s car. Anderson testified he had ridden with Mahon, who was
driving the Jeep at the time of the accident.
All three maintained Kroll had only arrived at the accident scene after Anderson called
Morgan to tell her about the crash. They
also testified that Kroll remained at the scene with Mahon while Misner
drove Anderson and Morgan to his (Misner’s) house. Misner claimed he later returned and told
police Kroll was not the driver, but was directed to leave.
Mahon was also called
as a witness, and testified she had seen Kroll and his friends at the party. When asked about leaving the party and the
circumstances of the accident and its aftermath, she invoked her Fifth
Amendment right against self-incrimination and refused to answer further
questions.
Farley testified that he concluded Kroll
was the driver based on the fresh seat belt mark on Kroll’s left shoulder,
which was consistent with the partial distention of the Jeep’s driver’s side seat
belt, as well as the positioning of the driver’s seat to fit a person of Kroll’s
height, and Mahon’s statement placing Kroll inside the Jeep. He had Kroll sit in the driver’s seat to
confirm that he fit the driver’s seat as adjusted. Farley indicated he would not be surprised if
the red mark he had observed on Kroll’s shoulder had faded by the following
morning.
He did not recall Misner coming to the
accident scene.
The DMV hearing officer upheld the
license suspension. In her written
findings, the hearing officer indicated she was giving no weight to Mahon’s testimony
at the hearing, and concluded that Morgan, Misner and Anderson were not
credible witnesses. The officer also noted,
“[Kroll] stated that he sat on the right passenger side of Mr. Misner’s car,
however, [Farley] determined that the belt mark[] was on his left neck and left
shoulder. His excuse[] that martial arts
caused his ankle injury is given little weight because his ankle’s injury still
had fresh blood bleeding. The pictures
taken by [Kroll] [were] not taken at the time of the accident therefore, they
are given no weight. Therefore, the
testimony of [Kroll] is not deemed credible at the hearing. [¶] [Farley] was
consistent while testifying, in that his testimony at the hearing is consistent
with his report which [was] made at or near the time of the accident.â€
Kroll filed a petition for writ of
mandate in superior court challenging the license suspension. He argued: (1) his Sixth Amendment right to confront
witnesses was violated because Mahon refused to answer questions about the accident; (2) the
evidence he presented at the DMV hearing rebutted the presumption that he was
driving; and (3) the trial court had the power to make its own credibility
determination and should find his witnesses credible.
After hearing argument and taking
the matter under submission to review the administrative record, the trial
court issued an order denying the writ.
“The evidence strongly supports the Hearing Officer’s determination that
‘[Kroll] was driving a motor vehicle at the time that concentration of alcohol
in his blood was at or above 0.08%.’ . . . Moreover, the evidence
also strongly supports the determination that the arresting officer had
probable cause to believe that [Kroll] was in violation of Vehicle Code [section] 23152
. . . , and that the arrest was lawful. The court notes that the Hearing Officer was
in the best position to assess the credibility of the witnesses.â€
The criminal charges against Kroll
for driving under the influence were dismissed for lack of evidence.
II. DISCUSSION
A. License Suspension Procedure and Standard of Review
The DMV must immediately suspend the
driving privileges of a person who drives a motor vehicle with a blood alcohol
level of .08 percent or higher. (Veh.
Code, § 13353.2, subd. (a)(1).) The driver may request an administrative
hearing to challenge the suspension, which will be upheld if the DMV
demonstrates by a preponderance of the evidence (1) the peace officer had reasonable
cause to believe the person was driving in violation of Vehicle Code section
23152; (2) the person lawfully was arrested; and (3) the person was
driving with a blood alcohol level of .08 percent or higher. (Veh. Code, §§ 13557, subd. (b)(1), 13558,
subds. (a), (c)(2);
Reed (1997) 16 Cal.4th 448, 454, 456 (
(2003) 105 Cal.App.4th 1227, 1232.)
An administrative hearing on a
license suspension “need not be conducted according to technical rules relating
to evidence and witnesses . . . . Any relevant evidence shall be admitted if it
is of the sort of evidence on which responsible persons are accustomed to rely
in the conduct of serious affairs, 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.†(Gov.
Code, § 11513, subd. (c); Hildebrand
v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1569.) A police report is “ ‘the sort of
evidence on which responsible persons are accustomed to rely in the conduct of
serious affairs.’ †(
Hearsay evidence may be introduced “for the purpose 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.†(Gov. Code,
§ 11513, subd. (d); see Hildebrand
v. Department of Motor Vehicles, at
p. 1569.)
A driver dissatisfied with the
result of a license suspension hearing may file a petition for writ of
administrative mandate in superior court.
(Veh. Code, § 13559, subd. (a); Code Civ. Proc., § 1094.5.) The court must exercise its independent
judgment to determine whether the weight of the evidence supports the DMV’s
decision. (Veh. Code, § 13559, subd.
(a); Lake
whether substantial evidence supports the trial court’s findings, and may
overturn the trial court’s factual findings only if the evidence is
insufficient as a matter of law. (
law. (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th
499, 508 (Brierton).)
B.
Amendment Right to Silence
The police report introduced at the
administrative hearing described three statements made by Mahon on the night of
the accident—that someone named “Margaret†had been driving the Jeep, that Kroll
had not been inside the Jeep at the time of the accident, and that Kroll had
been in the back passenger seat of the Jeep.
Kroll argues the use of these statements deprived him of due process
because Mahon invoked her right to remain silent at the hearing and could not be
cross-examined.
title="">[3] We disagree.
We begin by noting that only the
last of the three statements by Mahon—that Kroll was in the back seat of the Jeep at the time of the
accident—was incriminating in any way, because it contradicted his claim he arrived
at the scene after the accident. The
other two statements—that someone named Margaret had been driving the Jeep and
that Kroll had not been in the Jeep—supported Kroll’s claim he was not the
driver and were not in any sense prejudicial to his case. Our discussion therefore focuses on Mahon’s statement
that Kroll was riding in the back seat of the Jeep.
When, as here, the independent
judgment test is applied at the trial court level, we examine the actions of
the trial court rather than the DMV hearing officer. (Thompson
v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354, 358; see also
San Jose (2003) 106 Cal.App.4th 204, 218.) Although we review the trial court’s findings
to determine whether they are supported by substantial evidence, we review a
challenge to an evidentiary ruling for abuse of discretion. (Miyamoto
v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1217.)
Kroll’s due process claim, though
constitutionally based, concerns the admissibility of hearsay evidence. As he did not object at the administrative
hearing to Mahon’s out-of-court statement placing him inside the Jeep, his claim was
forfeited, and the trial court would not have abused its discretion in considering
the statement. (Dibble v. Gourley (2002) 103 Cal.App.4th 496, 503 [objection at
administrative hearing necessary to preserve challenge based on hearsay],
overruled on another ground in MacDonald
v. Gutierrez (2004) 32 Cal.4th 150, 158–159; Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730,
738 [failure to make foundational objection to arrest report at DMV hearing
forfeited challenge to admissibility of document]; see also
(2008) 170 Cal.App.4th 127, 141 & fn. 11 [current version of Govt.
Code, § 11513, subd. (d) requires hearsay objection at administrative
hearing]; Lake, supra, 16 Cal.4th at pp. 461–462 [witness statements identifying
person as the driver, though otherwise hearsay subject to no exception, were
admissible to supplement or explain the driver’s own admission under Govt.
Code, § 11513, subd. (c)].)
Even if Kroll’s challenge were
cognizable on appeal, we would find any error harmless. “No judgment shall be set
aside . . . in any cause . . . for any error as
to any matter of procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error
complained of resulted in a miscarriage of justice.†(Cal. Const., art.
VI, § 13; Leal v. Gourley (2002)
100 Cal.App.4th 963, 968 [applying standard of prejudice in California
Constitution to error in DMV proceedings].)
“In other words, it must be reasonably probable a more favorable result
would have been reached absent the error.
[Citation.]†(
Bureau of Security & Investigative Services (2009) 176 Cal.App.4th
1249, 1255.) Error is not prejudicial
when it is merely cumulative of other evidence properly in the record or
“ ‘was not necessary, the judgment being supported by other
evidence.’ †(Ibid.)
Mahon’s statement
placing Kroll in the Jeep, though contrary to Kroll’s position he arrived at
the scene after the accident, did not identify him as the driver. The evidence as a whole made it clear Mahon was
intoxicated at the scene and would have had as much incentive as Kroll to deny
having driven the Jeep if she had been the guilty party. Other, stronger evidence supported the
conclusion Kroll was the driver—his injuries, his implausible explanations for
those injuries, the position of the Jeep’s driver’s seat, and his failure to direct
the police to friends who could corroborate his story. It is not reasonably probable Kroll would
have obtained a more favorable result if Mahon’s statement
had been disregarded.
“Due process requires full and fair
administrative hearings that provide drivers a ‘ “meaningful opportunity
to present their case.†’
[Citation.]†(
(2011) 194 Cal.App.4th 1240, 1244.) Kroll
was given a full administrative hearing, at which he was able to cross-examine
the investigating officer and present the testimony of three witnesses who
supported his version of events. His
case was reviewed by the trial court in a mandamus proceeding. His inability to cross-examine Mahon regarding
statements that did not identify him as the driver did not render the
proceedings unfair.
C. Witness Credibility
The DMV hearing officer noted in her
written findings that she had determined Kroll’s witnesses were not
credible. Kroll argues the trial court
improperly deferred to this finding, rather than making its own assessment of witness
credibility. We are not persuaded.
When a driver petitions for a writ
of mandate following a license suspension, the trial court exercises its
independent judgment on the evidence. (
(2003) 111 Cal.App.4th 366, 372.) As
part of this review, the court is permitted to draw its own inferences from the
evidence and make its own credibility determinations. (Ibid.) At the same time, it must afford a strong
presumption of correctness to the administrative findings, with the burden
resting on the complaining party to show the decision is contrary to the weight
of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817;
(2010) 184 Cal.App.4th 1199, 1204–1205.)
The order denying the writ indicates
the court reviewed the writ petition, the administrative record, the DMV’s
opposition, and supplemental points and authorities submitted by Kroll. The supplemental points and authorities
discuss the independent judgment standard at length and urge the court to find Kroll’s
witnesses credible. During oral argument
before the trial court on the writ, the parties discussed the weight of the
evidence and the relative credibility of the witnesses. In light of the briefing and argument on this
subject, and given the lack of any indication to the contrary, we presume the
trial court was aware of the applicable law and applied the appropriate
standard when reviewing the administrative record. (Howard
v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443;
235, 254 [absent indication to the contrary, we presume court was aware of and
followed the law]; Evid. Code, § 664.)
Kroll points to the final sentence
in the order denying the writ, which states, “The court notes that the Hearing
Officer was in the best position to assess the credibility of the witnesses.†He argues this language shows the trial court
declined to make its own determination of witness credibility, citing
45 Cal.App.4th 652, 658. In that case,
the trial court considered an administrative decision upholding the termination
of a police officer “where the major underlying issue was one of
credibility.†(Id. at p. 653.) Though bound
to apply an independent standard of review when considering the officer’s
petition for writ of mandate, the trial court expressly, and incorrectly,
stated it had no ability to reweigh the credibility determinations made by the
administrative agency. (
because the error “went to the heart of [the] case†(id. at p. 659), the matter was remanded to the trial court for
a redetermination of the mandate petition (id.
at p. 660).
No similar error infects the trial court’s
decision in this case. The court simply
observed that the DMV officer who actually heard the testimony of the witnesses
firsthand was in the best position to assess their credibility. Independent review “ ‘does not mean that
the preliminary work performed by the [agency] in sifting the evidence and
making its findings is wasted effort. . . . [I]n weighing the evidence the courts can and
should be assisted by the findings of the [agency]. The findings
of the [agency]
presumption of their correctness, and the burden rests on the complaining party
to convince the court that the [agency]
evidence. [Citation.]†(Fukuda
v. City of Angels, supra, 20
Cal.4th at p. 812.)
D. Substantial Evidence
Kroll argues the evidence before the
trial court was insufficient as a matter of law to sustain a determination he
drove under the influence. Again we
disagree. Our review of the trial
court’s decision is for substantial evidence, with all conflicts resolved in
favor of the trial court’s decision and all factual findings upheld unless the
evidence was insufficient as a matter of law.
(Lake, supra, 16 Cal.4th at p. 457.)
When two or more inferences can be deduced from the facts, the appellate
court may not substitute its judgment for that of the trial court. (Brierton,
supra, 130 Cal.App.4th at p. 508.)
A number of circumstances support
the trial court’s determination Kroll was the driver: (1) he was present at the accident scene;
(2) Farley observed a red mark on Kroll’s shoulder that matched the
distended seat belt in the driver’s seat of the Jeep; (3) Kroll’s initial explanation
of his injuries as resulting from “martial arts†was implausible, and was
contrary to his equally implausible testimony at the DMV hearing that his ankle
injury was caused by a sword while dancing at the party; (4) the driver’s
seat was adjusted for someone of Kroll’s height, and Mahon, the only other
person at the scene, was shorter than Kroll; (5) Kroll identified
“Maureen†as the driver, but this person was not at the scene of the accident; and
(6) though Kroll told Farley he had been dropped off at the scene by a
friend, he never provided contact information to the police so they could verify
his claim he had not been driving.
Though the trial court had the power to reweigh the evidence in its
review, we do not. (Brierton, supra, 130 Cal.App.4th
at p. 508.) Substantial evidence
supports the denial of the writ.
III. DISPOSITION
The judgment is affirmed.
NEEDHAM, J.
We concur.
JONES, P. J.
SIMONS, J.
The police report indicates that at the time of his arrest, Kroll was wearing
“casual†clothes: brown tennis shoes,
tan corduroy pants and a green wool collared shirt. Asked about this apparent discrepancy by the
DMV hearing officer, Kroll explained that the people holding the party had made
costumes available for guests to wear, and that he had left the costume portion
of his clothing in his own car, which was parked near the party.
Although Farley was asked about the injury dissipating by the following morning,
the photographs of Kroll’s torso were taken the evening of October 1 after 7:00 p.m.
