MOOD v. PIERCE

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Court of Appeal, Sixth District, California.

Janette MOOD, Plaintiff and Respondent, v. Del A. PIERCE, as Director, etc., Defendant and Appellant.

No. H010377.

Decided: July 16, 1993

Thomas F. Mueller, San Jose, for defendant and appellant. Daniel E. Lungren, Atty. Gen., Henry Ullerich, Interim Asst. Atty. Gen., and Jose R. Guerrero and Kim M. Settles, Deputy Attys. Gen., for plaintiff and respondent.

After the trial court issued a writ of mandate ordering reinstatement of respondent Janette Mood's driving privilege, the Department of Motor Vehicles (hereafter, DMV) appeals, contending that dismissal of charges after evidence is suppressed is not “acquitt[al] of criminal charges relat[ed] to a determination of facts under [Vehicle Code] section 13353.2, [subdivision] (a).” 1  We disagree and affirm.

FACTS

Milpitas Police Officer J. Reyes stopped and detained Janette Mood around 11 p.m. on August 11, 1991, when he looked 500 to 600 feet down Canton Street from his location on South Temple Drive and observed her going 35 to 40 miles per hour in a 25 mile per hour zone, and coming to an abrupt stop 4 to 5 feet past the limit line of the intersection.   Based on observations after the stop, he arrested her for driving under the influence of alcohol.  (§ 23152.)

The DMV held an administrative hearing on September 25, 1991, and revoked her driving privilege (§ 13353.2).2  Findings of fact held it was established by a preponderance of the evidence that the officer had reasonable cause to believe that respondent was driving in violation of sections 23152 or 23153, that she was lawfully arrested, and that she was operating a vehicle when she had .08 percent or more, by weight, of alcohol in her blood.  (§§ 13557, subd. (b)(2);  13353.2, subd. (a).)

Respondent filed a petition for a writ of mandate in the Alameda County Superior Court.   It was denied as untimely filed on January 27, 1992.

Four days later, in connection with a charge of driving under the influence of alcohol filed in the Santa Clara County Municipal Court, respondent's motion to suppress evidence (Pen.Code, § 1538.5) was heard.   The only issue was probable cause for the detention;  respondent stipulated that after Reyes made contact, there was probable cause to arrest.

Reyes testified to the observations stated above.   Albert Branco, an agent for State Farm Insurance and a friend of respondent, who had measured and videotaped the scene, played the videotape for the court and testified essentially that it was physically impossible for Reyes to have made the observations he claimed to have made from the location where Reyes insisted he had stopped his patrol car.   Respondent's motion to suppress was granted and charges were dismissed on February 19, 1992.3

The DMV refused respondent's post-dismissal requests to reinstate her license or to reopen the hearing for consideration of the municipal court's action.

Respondent filed a verified petition for writ of administrative mandamus to compel reinstatement of her driving privilege in the Santa Clara County Superior Court on May 15, 1992.   After a hearing on August 21, 1992, the trial court granted the writ, finding that the municipal court's “holding that there was no probable cause to detain petitioner (and therefore, no lawful arrest) was a determination of fact necessary for an administrative suspension of [respondent's] driving privileges.   Further, there was a factually compelled dismissal of the charge․  [T]he Court holds that the action taken by the Municipal Court operated as an acquittal for purposes of Vehicle Code section 13353.2(a).”

This appeal ensued.

ISSUE ON APPEAL

Appellant asserts that “[t]his court should construe section 13353.2 [, subdivision] (e) to require reinstatement only if a driver was acquitted of criminal charges in a contested criminal proceeding where issues were actually litigated and determinations of facts were actually made in the driver's favor by the trier of fact.”   Appellant contends that in the instant case, the court “declined to make any specific factual determinations” on hearing the motion to suppress evidence.   Therefore, appellant reasons, “the asserted ‘acquittal’ was, in reality, simply a dismissal based on the granting of the motion to suppress.”   Appellant cites Agresti v. Department of Motor Vehicles (1992) 5 Cal.App.4th 599, 7 Cal.Rptr.2d 353 to support her contention that “[d]ismissals do not meet the requirements for reinstatement under section 13353.2(e).”

DISCUSSION

The question whether a contested evidentiary hearing on a motion to suppress evidence actually litigates anything has been answered.  “Clearly, the issue of the lawfulness of respondent's arrest is the ‘identical’ issue ․ decided by the municipal court.   Since the decision of the municipal court that respondent's arrest was unlawful followed a contested evidentiary hearing, the issue was unquestionably ‘actually litigated.’   The issue was also ‘necessarily decided’ because the unlawfulness of respondent's arrest was the basis of the motion and the basis upon which the order suppressing evidence was issued.   The decision of the municipal court was ‘final’ ․ because the prosecutor did not seek review of the court's order (see Pen.Code, § 1538.5, subd. (j)) and, in any event the criminal case [was] dismissed.   The decision was also ‘on the merits' or the arrest issue․”  (Zapata v. Department of Motor Vehicles (1991) 2 Cal.App.4th 108, 112–113, 2 Cal.Rptr.2d 855.)

Agresti is no help to appellant.  “The term ‘acquittal’ has consistently been held to refer to a disposition of a criminal case following an adjudication on the merits.”  (Agresti v. Department of Motor Vehicles, supra, 5 Cal.App.4th at p. 607, 7 Cal.Rptr.2d 353.)  Zapata teaches that litigation of the lawfulness of the arrest in a Penal Code section 1538.5 motion is an adjudication on the merits.   Before the DMV may suspend a person's driving privilege, it must make the specific factual determinations required by section 13557.  (Agresti v. Department of Motor Vehicles, supra, 5 Cal.App.4th at p. 606, 7 Cal.Rptr.2d 353.)  “The suspension must be rescinded if the person is acquitted of criminal charges ‘relating to’ this determination of facts (§ 13353.2, subd. (e)).”  (Ibid.)

It does not serve public policy considerations including “the preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation”  (Zapata v. Department of Motor Vehicles, supra, 2 Cal.App.4th at p. 115, 2 Cal.Rptr.2d 855) when “a nonjudicial officer, in an informal administrative hearing with no testimony taken, is permitted to relitigate the validity of an arrest that has been previously determined by a municipal court judge, at a contested evidentiary hearing, in the formal setting of a criminal prosecution” (ibid.).  Zapata, of course, was concerned with a “prior judicial decision that is being ignored in the subsequent administrative hearing․”  (Ibid.)   However, Zapata also pointed out that in People v. Sims (1982) 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321 our Supreme Court “found an impairment to the integrity of the judicial system when the administrative hearing preceded the criminal proceedings.”  (Zapata v. Department of Motor Vehicles, supra, 2 Cal.App.4th at p. 115, 2 Cal.Rptr.2d 855.)

Nevertheless, even if we ignore the policy considerations stated by Zapata, the Legislature has given us a clear mandate in section 13353.2, subdivision (e):  “If a person is acquitted of criminal charges relating to a determination of facts under subdivision (a), the department shall immediately reinstate the person's privilege to operate a motor vehicle if the department has suspended it administratively pursuant to subdivision (a)․”   Respondent was so acquitted.  (Zapata v. Department of Motor Vehicles, supra, 2 Cal.App.4th 108, 2 Cal.Rptr.2d 855.)   The trial court did not err in issuing a writ of mandate.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Further statutory references are to the Vehicle Code unless otherwise stated.

2.   Section 13353.2 provides, in pertinent part:  “(a) The department shall immediately suspend the privilege of any person to operate a motor vehicle if the person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood.”If the person requests an administrative hearing as provided in section 13353.2, subdivision (c), the DMV is to determine the facts in subdivision (a) on the basis of the report of the peace officer.  (§ 13353.2, subd. (d).)“The determination of the facts in subdivision (a) is a civil matter which is independent of the determination of the person's guilt or innocence, shall have no collateral estoppel effect on a subsequent criminal prosecution, and shall not preclude the litigation of the same or similar facts in the criminal proceeding.   If a person is acquitted of criminal charges relating to a determination of facts under subdivision (a), the department shall immediately reinstate the person's privilege to operate a motor vehicle if the department has suspended it administratively pursuant to subdivision (a)․”  (§ 13353.2, subd. (e).)

3.   On February 4, 1993, this court granted respondent's request to augment the clerk's transcript to include the amended petition for writ of administrative mandamus with addenda to exhibits A, D, E, and F, filed on June 4, 1992, the response to respondent's points and authorities in support of change of venue, filed on September 14, 1992, and notice of entry of judgment and judgment granting writ of mandate filed on September 25, 1992.

PREMO, Acting Presiding Justice.

ELIA and MIHARA, JJ., concur.