Richard LAKE, Plaintiff and Appellant, v. Frank S. ZOLIN, as Director, etc., Defendant and Respondent.
Here we hold that unsworn evidence may establish a necessary factual element for suspension of a driver's license at an administrative hearing, as long as the evidence is admissible under an exception to the hearsay rule.
Richard Lake appeals from a trial court judgment denying his petition for a writ of mandate. The petition challenged the suspension of his license by respondent Department of Motor Vehicles (DMV) for driving with a blood-alcohol concentration (BAC) of 0.08 percent or more. (Veh. Code, § 13353.2.) 1 Lake contends the DMV failed to meet its burden of proving (1) he had been driving, and (2) his BAC exceeded the statutory limit. We disagree and affirm the judgment.
On July 15, 1994, Officer Dickerson of the San Carlos Police Department issued an order suspending Lake's driver's license under section 13353.2. Lake requested a DMV hearing, which was conducted by telephone on August 11, 1994. Lake listened to the proceedings but did not testify. His counsel told the hearing officer a criminal action was pending against Lake based on the same incident, and Lake asserted his privilege against self-incrimination. The DMV introduced a series of documents into evidence which the hearing officer deemed to be official DMV records. Lake introduced no evidence.
The first document was Dickerson's sworn report on a DMV form submitted in compliance with section 23158.2.2 The report provided the following information: Lake was involved in a traffic collision at 6:48 p.m. on July 15, 1994, and started to drive away but was detained by a citizen witness. Lake displayed objective symptoms of intoxication, including bloodshot or watery eyes, the odor of alcohol, unsteady gait, and slurred speech. Lake's driving was observed by the other party involved in the collision and by two independent witnesses, one of whom was Cheryl Lynn Morin. Lake was arrested at 7:35 p.m. and submitted to a urine BAC test at 8:28 p.m. Lake objected to Dickerson's report on the ground it contained only hearsay information regarding his driving. The hearing officer noted and overruled the objection.
The second document was an unsworn traffic collision report prepared by Officer King of the San Carlos Police Department. There is no indication in the record that King's report was attached to or incorporated in Dickerson's report. The first three pages of this report are on a California Highway Patrol form, and provide information on the vehicles involved in the accident, their drivers and owners, the circumstances of the collision, and three witnesses: Cheryl Lynn Morin, Tamera Heck, and James Wilton. The last two pages of King's report contain narrative statements on a San Carlos Police Department form. King relates that he and his partner were dispatched to assist Dickerson at the scene of the accident which occurred in an intersection controlled by four-way stop signs. Morin told King she had stopped at the stop sign and saw Lake's car approaching on the intersecting avenue. She pulled into the intersection and was broadsided by Lake's car. Lake told King he stopped at the stop sign, didn't see Morin's car, and broadsided it in the middle of the intersection. Tamera Heck, a pedestrian who observed the collision, told King that Lake had continued driving after the collision and only stopped because several people were yelling at him. James Wilton, a friend of Lake's, told King he was directly behind Lake in his own vehicle, and Lake had made a complete stop. King asked Wilton if Lake was driving, and Wilton said yes. King concluded Lake caused the collision by driving under the influence and failing to yield at a stop sign.
Lake's counsel objected to King's report on the grounds it was not sworn as required by section 23158.2,3 and contained hearsay statements by the witnesses. The hearing officer noted and overruled the objection.
The next two documents introduced by the DMV were unsworn witness statements handwritten by Tamera Heck and Cheryl Morin, which were attached to King's report. Heck stated she observed the collision and didn't think Lake would have stopped if people hadn't yelled at him. Morin stated Lake had broadsided her and continued driving; she had to follow him and yell to witnesses to get him to stop. Lake's counsel raised the same objections to these statements as to the rest of King's report. Again, the hearing officer noted and overruled the objections.
The DMV introduced two documents reporting the results of Lake's urine BAC test. The first was a report from the San Mateo County Sheriff's forensic laboratory identifying Lake, the analyst, the dates the urine sample was collected and analyzed, and the date the report was typed. It stated Lake's BAC was .19 percent. The analyst certified under penalty of perjury that he was qualified to perform forensic alcohol analysis, he analyzed Lake's sample in the regular course of his duties, the testing equipment was in proper working order, and the report was accurate. Lake's counsel objected on the grounds the report was not on a DMV form and failed to comply with the legal requirements for certification because it lacked a place and date of execution and did not refer to penalty of perjury “under the laws of the State of California.” 4 The other report was on a DMV form signed by Officer Dickerson. It identified the laboratory and the analyst, and stated the .19 percent BAC test result and the date of analysis. The certification on the form was not filled out by the analyst, however; instead, above the certification was a note reading “please see attached.” Lake's counsel objected on grounds of hearsay and failure of execution.
In his closing argument to the hearing officer, Lake's counsel contended both police officers' reports established Lake's driving only through hearsay statements by witnesses who were not police officers or public employees. Counsel contended the statutory scheme governing administrative suspension hearings precluded the hearing officer from relying on King's unsworn report. Regarding the BAC test results, counsel noted the DMV form included a proper certification that was not executed, whereas the certification statement on the laboratory report which was executed was defective. The hearing officer upheld the suspension of Lake's license.
The trial court denied Lake's writ petition, finding compliance with the sworn statement requirement of section 23158.2. The court ruled “the hearsay admissible on the same rationale as § 40300.5 of the Vehicle Code, which permits the officer to arrest when there has been a traffic collision.” The court found the driving element was satisfied by Dickerson's specific reference to the collision. Section 23158.2 did not require the BAC evidence to be sworn, and in any event the laboratory report substantially conformed to the requirements for certification, the court concluded. Lake filed this timely appeal.
The trial court's task was to use its independent judgment in determining whether the weight of the evidence supported the administrative decision. Our task is to review the record to determine whether the trial court's findings are supported by substantial evidence. We draw all legitimate and reasonable inferences in support of the trial court's decision and may overturn its findings only if the evidence was insufficient as a matter of law to sustain them. (Gananian v. Zolin (1995) 33 Cal.App.4th 634, 638, 39 Cal.Rptr.2d 384 (Gananian ).) When the facts are undisputed, we independently review the trial court's legal determinations. (Moomjian v. Zolin (1993) 12 Cal.App.4th 1606, 1612, 16 Cal.Rptr.2d 335.)
To support the suspension of Lake's license under section 13353.2, the DMV had the burden of proving the following three elements by a preponderance of the evidence: (1) Dickerson had reasonable cause to believe Lake was driving under the influence; (2) Lake was lawfully arrested; and (3) Lake was driving with a BAC of at least 0.08 per cent. (§§ 13557, subd. (b)(2) and 13558, subd. (c)(2); Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536, 189 Cal.Rptr. 512, 658 P.2d 1313; Gananian, supra, 33 Cal.App.4th at p. 638, 39 Cal.Rptr.2d 384.)
A. The Evidence of Driving
The evidence showing Lake was driving consisted of Dickerson's report, which relied only on the statements of civilian witnesses, and King's report, which recorded both the statements of witnesses and Lake's own admission he was driving.
Lake correctly argues the hearing officer could not rely on Dickerson's report to establish the element of driving because the report contained only inadmissible hearsay evidence of driving. While the DMV may use hearsay evidence to supplement or explain other evidence, hearsay evidence is itself insufficient to support a finding unless it would be admissible over objection in a civil action. (Gov. Code, § 11513, subd. (c); Daniels v. Department of Motor Vehicles, supra, 33 Cal.3d at pp. 538–539, 189 Cal.Rptr. 512, 658 P.2d 1313; Gananian, supra, 33 Cal.App.4th at pp. 638–639, 39 Cal.Rptr.2d 384.)
In Gananian, supra, at pp. 641–644, 39 Cal.Rptr.2d 384, we declined to follow a number of cases requiring information in a police officer's sworn report under section 23158.2 to be based solely on the officer's personal knowledge in order to survive a hearsay objection.5 Following Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 126, 52 Cal.Rptr. 561, 416 P.2d 793, we held that an officer's sworn report relating another officer's observation of driving was admissible under the hearsay exception for public employee records (Evid. Code, § 1280), because the other officer had been acting pursuant to his duty to observe the facts and report them correctly. (Gananian, supra, 33 Cal.App.4th at pp. 640–641, 39 Cal.Rptr.2d 384.) Under Taylor, the admissibility of a police report “depends first upon whether its contents are based on [the officer's] own observations, or the observations of other police officers or public officials whose job it is to know the facts recorded; if so, but only if so, is it then admissible under the business records exception. [Citations.]” (Taylor v. Centennial Bowl, Inc., supra, at p. 126, 52 Cal.Rptr. 561, 416 P.2d 793, italics added; see also People v. Baeske (1976) 58 Cal.App.3d 775, 781, 130 Cal.Rptr. 35 [police report based on information supplied by citizen witness was inadmissible hearsay].) Therefore, Dickerson's report, which made no reference to King or his report, provided only hearsay evidence of Lake's driving that would not be admissible over objection in a civil action.
The trial court ruled the hearsay in Dickerson's report “admissible on the same rationale as § 40300.5 of the Vehicle Code, which permits the officer to arrest when there has been a traffic collision,” and found Dickerson's reference to the collision sufficient to satisfy the driving element. These findings are legally insupportable. Section 40300.5 concerns a police officer's reasonable cause to arrest an intoxicated driver involved in a collision. Here, the DMV was required to establish that Dickerson had reasonable cause to believe Lake was driving under the influence, and reports Dickerson received from citizen witnesses were non-hearsay evidence of that element. (Cantrell v. Zolin, supra, 23 Cal.App.4th at pp. 132–133, 28 Cal.Rptr.2d 238.) That Lake was in fact driving was a separate element the DMV had to prove. The witnesses' statements to Dickerson were hearsay on that point, and by themselves could not support a finding that Lake was driving. (Gov. Code, § 11513, subd. (c); Gananian, supra, 33 Cal.App.4th at pp. 638–639, 39 Cal.Rptr.2d 384.) The trial judge's reliance on Dickerson's reference to the collision necessarily depended on the hearsay in the report. The report shows Dickerson did not observe the collision, but relied on the statements of citizen witnesses.
The DMV contends King's unsworn report provided sufficient evidence of Lake's driving. Lake challenges the admissibility of the report only on the ground it was not sworn; he does not contend it was improperly authenticated, or that it failed to meet the requirements for admission of a public employee record provided in Evidence Code section 1280. Whether the DMV may rely on unsworn police reports in administrative license suspension proceedings was an issue we did not reach in Gananian, supra, 33 Cal.App.4th at p. 641, footnote 5, 39 Cal.Rptr.2d 384. Here, we hold that it may.
The DMV reasons King's report was admissible as a public employee record under Evidence Code section 1280, and Lake's admission of driving was admissible as a statement by a party under Evidence Code section 1220. Support for this analysis is provided by Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 27 Cal.Rptr.2d 712. There, the officer who arrested Jackson for driving under the influence made both a sworn report under section 23158.2 and an unsworn arrest report, both of which were introduced at the administrative hearing on the suspension of Jackson's driving license. The unsworn arrest report provided the only evidence of driving, a statement made by Jackson to the officer. The court held the report and the admission related in it were admissible under Evidence Code sections 1280 and 1220, and concluded this evidence was sufficient under Government Code section 11513, subdivision (c) because it would be admissible over objection in a civil action. (Jackson, supra, at pp. 736–740, 27 Cal.Rptr.2d 712.)
Lake contends Jackson is not persuasive authority in this case. We disagree. It is true Jackson had failed to raise a foundational objection to the admissibility of the unsworn arrest report at the administrative hearing, whereas Lake did object to the admission of King's unsworn collision report on grounds of hearsay and noncompliance with section 23158.2. But the Jackson court, while noting Jackson had waived any foundational objection to the arrest report (22 Cal.App.4th at p. 738, 27 Cal.Rptr.2d 712), also concluded the arrest report was admissible hearsay evidence at the DMV hearing (id. at p. 740, 27 Cal.Rptr.2d 712). After observing that sworn reports under section 23158.2 are admissible under the hearsay exception for public employee records, the court stated: “We have not been alerted to any authority precluding as a matter of law any use of an officer's unsworn arrest report under a similar standard. To the contrary, case law indicates such reports may be admissible under proper circumstances.” (Jackson, supra, at p. 737, 27 Cal.Rptr.2d 712, citing Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d at p. 126, 52 Cal.Rptr. 561, 416 P.2d 793, and Rousseau v. West Coast House Movers (1967) 256 Cal.App.2d 878, 887, 64 Cal.Rptr. 655 [police reports reflecting arresting officers' direct observations were admissible].)
Lake argues that to permit consideration of unsworn police reports would evade the sworn report requirement of section 23158.2. However, the statutory scheme for administrative driver's license suspensions does not contemplate that the sworn report submitted under section 23158.2 will be the only evidence considered by the DMV. After a driver's license is suspended under section 13353.2, the DMV conducts an administrative review of the suspension based on “the sworn report submitted by the peace officer pursuant to Section 23157 or 23158.2 and any other evidence accompanying the report.” (§ 13557, subd. (a), italics added.) When the driver requests a hearing pursuant to section 13558, the DMV need not perform an administrative review under section 13557. (§ 13557, subd. (e).) Evidence at the hearing “shall not be limited to the evidence presented at an administrative review ․” (§ 13558, subd. (b).) Clearly, section 23158.2 does not limit the evidence that may be considered by the DMV. While it requires the officer to include all relevant information in his sworn report, it does not address what evidence is admissible at the hearing, and the statutes governing subsequent administrative proceedings permit the DMV to introduce other admissible evidence to fill any gaps in the officer's sworn report.
DMV hearings conducted upon a driver's request are governed by section 14100 et seq. (§ 13558, subd. (a).) All matters not covered by Vehicle Code, Division 6, Chapter 3 (beginning with section 13800, and including section 14100 et seq.) are governed by applicable provisions of the Administrative Procedure Act (Gov.Code, § 11500 et seq.). (§ 14112.) Section 14104.7 states: “At any hearing, the department shall consider its official records and may receive sworn testimony.” We asked the parties for supplemental briefing regarding the impact of section 14104.7 on consideration of King's unsworn police report. Neither party took the view that section 14104.7 restricts the evidence that may be introduced at a DMV hearing. Nor did the DMV argue King's report was admissible as an official DMV record. In the absence of any showing that King's report was included with Dickerson's report as part of the “relevant information” called for by section 23158.2, we do not believe it can be considered an official DMV record.6 The officer's sworn report under section 23158.2, submitted to the DMV on a DMV form in every license suspension proceeding is the police report constituting the DMV's “official record.” (McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 526, 7 Cal.Rptr.2d 18.) Nevertheless, the statutes do not prohibit the DMV from considering other unsworn police reports.
Reading section 14104.7 restrictively would be inconsistent with the more liberal evidentiary provisions of sections 13557 and 13558, noted above. It would limit all documentary evidence at DMV hearings to affidavits and official DMV records, which would unduly hinder both the DMV and drivers in presenting their cases. Section 14104.7 requires the DMV to consider its official records and authorizes it to receive sworn testimony, but otherwise does not cover the subject of what evidence may be introduced at an administrative hearing. Therefore, under section 14112, the governing rules are supplied by Government Code section 11500 et seq.7
Government Code section 11513, subdivision (c) provides in relevant part: “The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any 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, 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. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”
King's collision report, including Lake's admission of driving, was sufficient to establish the element of driving under Government Code section 11513, subdivision (c). It was “the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs,” and the admission of driving came within the hearsay exceptions for admissions of a party (Evid. Code, § 1220) and public employee records (Evid. Code, § 1280).
B. The BAC Evidence
Lake contends the evidence of his BAC was insufficient, because neither of the BAC test reports received by the DMV was properly sworn. He argues BAC test results are within the “sworn report” requirement of section 23158.2.8 This was an issue we did not reach in Monaghan v. Department of Motor Vehicles (1995) 35 Cal.App.4th 1621, 1628, footnote 5, 42 Cal.Rptr.2d 167. Here, we decide section 23158.2 does not require a sworn report of BAC test results which were not obtained by the officer submitting the sworn report called for by the statute. In doing so, we must again respectfully disagree with our colleagues in the Fourth District,9 who reached the opposite conclusion in Wheeler v. Department of Motor Vehicles (1994) 34 Cal.App.4th 228, 45 Cal.Rptr.2d 462.
In Wheeler, the court held that section 23158.2 requires all BAC test results to be sworn, even though on its face the statute “arguably requires a police officer only to swear to relevant events of which the officer has personal knowledge.” (34 Cal.App.4th at p. 233, 45 Cal.Rptr.2d 462.) The only chemical test results an officer can normally report first-hand are breath test results. (Ibid.; see also Santos v. Department of Motor Vehicles, supra, 5 Cal.App.4th 537, 548, fn. 7, 7 Cal.Rptr.2d 10.) Blood and urine samples require laboratory analysis and those test results may be separately forwarded to the DMV by the laboratory under section 23157, subdivision (g), which does not require a sworn report.10
The Wheeler court, which did not consider section 23157, reasoned as follows: “We cannot believe the Legislature contemplated a lesser standard (i.e., an unsworn report) with a blood or urine test. The purpose of the sworn statement is to provide the DMV with competent evidence sufficient to meet its burden of proving the facts necessary to support a license suspension. [Citations.] An unsworn statement merely listing the blood test results, whether attached to the officer's statement or introduced separately, is nothing more than inadmissible hearsay which is insufficient evidence (in and of itself) to support a license suspension. [Citations.]” (Wheeler v. Department of Motor Vehicles, supra, 34 Cal.App.4th at pp. 233–234, 45 Cal.Rptr.2d 462, italics omitted.) The court rejected the DMV's argument that the driver's blood test results were admissible hearsay under the public employee records exception provided by Evidence Code section 1280. The court deemed that issue “irrelevant” in view of its conclusion that section 23158.2, which “sets forth the method of proof for this type of violation,” required the results to be sworn. (Wheeler, supra, at pp. 234–235, 45 Cal.Rptr.2d 462.)
We cannot agree with this analysis. In the first section of our discussion regarding the admissibility of Officer King's unsworn collision report on the driving issue, we concluded the Legislature did not intend the officer's sworn report under section 23158.2 to be the only competent evidence that may be introduced to support a driver's license suspension. Section 23158.2 does not limit the methods of proving the necessary elements for suspension. Other evidence accompanying the sworn report may be considered at an administrative review (§ 13557, subd. (a)), and evidence at a hearing requested by the driver is not limited to the evidence presented at the administrative review (§ 13558, subd. (b)). The Legislature specifically provided for blood and urine test results to be forwarded by laboratories to the DMV, without requiring such reports to be certified. (§ 23157, subd. (g).) However, BAC test results must be admissible under the hearsay provisions of the Evidence Code in order to provide the sole support for a finding of illegal BAC. (Gov. Code, § 11513, subd. (c); Daniels v. Department of Motor Vehicles, supra, 33 Cal.3d at pp. 538–539, 189 Cal.Rptr. 512, 658 P.2d 1313; Gananian, supra, 33 Cal.App.4th at pp. 638–639, 39 Cal.Rptr.2d 384.)
Here, the report of Lake's urine test results from the sheriff's forensic laboratory qualified for admission as a public employee record. Evidence Code section 1280 required the report to be made within the scope of the analyst's duty, at or near the time of the test, with sources of information and a method and time of preparation indicating trustworthiness. The analyst's certification established that he was a qualified forensic alcohol analyst, and that the report was made within the scope of his duty and expertise the day after the sample was analyzed, using properly functioning equipment. The trustworthiness of the report was supported by the presumption of official duty regularly performed. (Evid. Code, § 664; Imachi v. Department of Motor Vehicles, supra, 2 Cal.App.4th at pp. 816–817, 3 Cal.Rptr.2d 478.) Officer Dickerson's sworn report showed that Lake's urine sample was obtained within an hour of his arrest and within two hours of his collision with Morin's vehicle. (Cf. Santos v. Department of Motor Vehicles, supra, 5 Cal.App.4th 537, 548, 7 Cal.Rptr.2d 10 [BAC test results held defective for failure to indicate time sample collected or analyzed].) Because the report was not required to be sworn, it is irrelevant whether the analyst's certification complied with the requirements of Code of Civil Procedure section 2015.5.
Lake introduced no evidence of his own to challenge the accuracy of the analyst's report. His BAC was properly established and supports the suspension of his license.
The judgment is affirmed. The DMV shall recover its costs on appeal.
1. Further statutory references are to the Vehicle Code, unless otherwise specified.
2. Section 23158.2, subdivision (a) requires a police officer who makes an arrest for driving under the influence to forward to the DMV “a sworn report of all information relevant to the enforcement action․” Section 23158.2, subdivision (b) requires the report to be made on “forms furnished or approved” by the DMV.
3. Lake's counsel initially based this and subsequent objections on section 23158.5, but eventually corrected himself and notified the hearing officer that the correct citation was section 23158.2.
4. Code of Civil Procedure section 2015.5 requires a certification to either (1) state the date and place of execution, if executed in California, or (2) state the date of execution and certify the truth of the matters stated “under the laws of the State of California,” if executed in or out of California.
5. The cases we disagreed with were Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 816–817, 3 Cal.Rptr.2d 478; Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 389, 7 Cal.Rptr.2d 5; Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 546–547, 7 Cal.Rptr.2d 10; Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 141, footnote 3, 7 Cal.Rptr.2d 818; Wilson v. Zolin (1992) 9 Cal.App.4th 1104, 1106–1107, 11 Cal.Rptr.2d 870; and Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 133, footnote 2, 28 Cal.Rptr.2d 238.
6. The hearing officer could not transform the character of King's report simply by deeming all the documents he had received to be official DMV records. Such an unlimited designation stretches the notion of “official record” beyond recognition.
7. We are aware that a different view of section 14104.7 was taken, in dicta, by the Fourth District in Downer v. Zolin (1995) 34 Cal.App.4th 578, 581, footnote 4, 40 Cal.Rptr.2d 288. The Downer court, while holding a BAC test report inadmissible on hearsay grounds, stated: “Unless the report can be considered an official record of the DMV, section 14104.7 strongly suggests the report must be sworn to be admissible at the DMV administrative hearing.” (Ibid.) We respectfully disagree with this reading of section 14104.7, for the reasons stated above.
8. “[T]he peace officer shall immediately forward to the department a sworn report of all information relevant to the enforcement action, including information which adequately identifies the person, a statement of the officer's grounds for belief that the person violated [a statute proscribing driving under the influence], a report of the results of any chemical tests which were conducted on the person or the circumstances constituting a refusal to submit to or complete the chemical testing ․ a copy of any notice to appear under which the person was released from custody, and, if immediately available, a copy of the complaint filed with the court.” (§ 23158.2, subd. (a).)
9. See footnote 7, supra.
10. Lake argues the certification form included on the official DMV form for reporting BAC test results reflects the agency's interpretation of the governing statutes. We are unconvinced. There is nothing on the form, and Lake cites no other evidence, indicating the DMV was implementing a statutory requirement when it designed the form.
PARRILLI, Associate Justice.
PHELAN, P.J., and CORRIGAN, J., concur.