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Court of Appeal, First District, Division 5, California.

Douglas J. MALONEY, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES OF the STATE OF CALIFORNIA, Defendant and Respondent.


Decided: March 27, 1984

Hadden Roth, Roth & Thorner, San Rafael, for plaintiff and appellant. John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Harold W. Teasdale, Victor D. Sonenberg, Deputy Attys. Gen., San Francisco, for defendant and respondent.

Douglas Maloney was arrested in Marin County for drunk driving on February 14, 1982.   Maloney agreed to take a urine test to determine his blood alcohol level, but he failed to complete the test or to take other tests.   His driver's license was suspended for six months pursuant to Vehicle Code section 13353, subdivision (b).1  Maloney requested a Department of Motor Vehicles (DMV) administrative hearing to show cause for the suspension.   The DMV referee found adequate cause:  (1) Maloney was lawfully arrested, and (2) the arresting officer had reasonable cause to believe that Maloney was driving while intoxicated.   Maloney filed a petition for mandate in the superior court and appeals from the denial of this writ.   We affirm.

Maloney's primary contention is that his right to cross-examine witnesses was unconstitutionally limited in the administrative hearing.   During the DMV administrative hearing, he attempted to cross-examine one of the two arresting officers about the reason he believed Maloney had failed a series of field sobriety tests.   The referee stated that he would not allow detailed cross-examination on these tests because “the officer is the only person who can make a determination whether the field sobriety test was, in fact, performed to his satisfaction, or not.”   The trial court held that the referee's ruling was “patently erroneous,” but that it did not constitute reversible error since Maloney was allowed to extensively examine the police officers about his performance on the sobriety tests, despite the referee's ruling.

 Decisions of the DMV to suspend drivers licenses under section 13353 affect fundamental vested rights.   The trial court therefore uses the “independent judgment” standard to review the decisions of the DMV.   (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 394, 188 Cal.Rptr. 891, 657 P.2d 383;  Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 83, 177 Cal.Rptr. 566, 634 P.2d 917.)   In reviewing the trial court's decision on the petition for writ of mandamus, the appellate court can overturn the trial court's independent finding on the facts only if there is insufficient evidence as a matter of law to sustain those findings.   (McCarthy v. California Tahoe Regional Planning Agency (1982) 129 Cal.App.3d 222, 228, 180 Cal.Rptr. 866;  Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 840, 130 Cal.Rptr. 169.

 The trial court's 17-page decision is thorough and demonstrates sufficient evidence to find that Maloney was not prejudiced by any expressed limitation on his right to examine the arresting officers.   In fact, he was allowed to examine the second officer extensively about Maloney's performance on five out of the six sobriety tests which were administered.   The referee did not intervene to prevent Maloney from full examination of this officer.   The referee's responsibility was to determine if the officers had reasonable cause to believe Maloney was driving while intoxicated;  the referee did hear extensive evidence from the questioning of the officers on Maloney's performance on the sobriety tests.   As the trial court noted, the subjective views of the officers on what constituted a “passing test” was not relevant to the reasonable cause determination, and any restriction on this area of cross-examination was not prejudicial.   The significant evidence, the actual performance of the tests, was also presented.

We are satisfied that the trial court properly reviewed and reweighed the evidence and properly concluded in the exercise of its independent judgment that the weight and preponderance requires a finding there was reasonable cause to arrest Maloney for driving a vehicle under the influence of intoxicating liquor.

Maloney also claims he was illegally arrested because section 40302 temporarily did not list section 23152 as an offense for which an arrest was required.   In 1981, revisions were made in California's drunk driving laws and the main provision was renumbered from section 23102 to section 23152.   (Stats.1981, ch. 940, No. 7 West's Legis. Service, p. 3437.)   These revisions went into effect on January 1, 1982.   The Legislature discovered later that changes had not been made in related statutes, renumbering old references from 23102 to 23152.   Urgency legislation was passed on February 18, 1982, making these technical conforming changes.  (Stats.1982, ch. 53, No. 1 West's Legis. Service, p. 283.)   During the one and one-half month gap, one of these related statutes, section 40302, subdivision (d), required that an arrested person had to be taken before a magistrate when charged with a violation of section 23102.   Maloney was arrested during this gap, on February 14, 1982.   He claims that he was illegally arrested because the Vehicle Code did not provide, on February 14, for mandatory or optional appearances before magistrates under section 23152.   He asserts that, on the day he was stopped, the law only authorized the police to issue him a citation under section 40500 without taking him into custody.

 Courts may correct technical mistakes which render a statute meaningless.   Maloney urges this court to interpret section 40302 to require arrests for violations of section 23102, a section number which no longer exists, and not to require arrests for violations of section 23152, the renumbered version of section 23102.   The court must avoid such literal statutory construction when it creates absurd results.  California Manufacturers Association v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.

 The court can overlook short-term technical oversights in numbering.  (Wallace v. Municipal Court (1983) 140 Cal.App.3d 100, 105, fn. 2, 189 Cal.Rptr. 886 [Section 40302 applies to misdemeanor drunk driving offense under Section 23152 despite “obvious legislative oversight”];  People v. Andrade (1983) 141 Cal.App.3d Supp. 36, 39, 190 Cal.Rptr. 738 [Section 23165 reference to prior convictions under Section 23152 includes prior convictions under Section 23102].  See also In re Thierry S. (1977) 19 Cal.3d 727, 741 fn. 13, 139 Cal.Rptr. 708, 566 P.2d 610 [absurd reference to “Section 625 of this Act” clearly meant “Section 2”].)  Section 40302 remained applicable to drunk driving offenses under section 23152 despite the legislative oversight.

 Additionally, as the court below noted, “there is an arrest for any violation of the Vehicle Code, and [Section 40500] merely authorizes release from custody upon citation.   Since section 13353 is a specific statute, governing a particular offense, it would control and authorize custody at least up to the time the test is administered or refused.”

We are unable to conclude our decision without commenting, in general, upon the practice of having an employee of DMV conduct a hearing wherein DMV, as an adversary party, is attempting to suspend a citizen's license to drive and, more specifically, upon the conduct of the hearing officer in this case.

The ordinary citizen responding to DMV's effort to suspend his license is appalled to find that the hearing for this purpose will be conducted by an employee of the very department seeking to suspend his license.   At worst, this presents the appearance of a star chamber proceeding and, at best, it provides a tarnished perspective of justice.   We are convinced that much of the discontent resulting from a decision suspending a citizen's license would not arise if the hearing were conducted by an independent hearing officer who is not an employee of DMV.

One distinction between democratic and totalitarian societies is that a citizen in conflict with his government is entitled to full justice.   Although it may be legally permissible, the practice of an employee of DMV acting as a hearing officer in a proceeding pitting DMV against the citizen, at the very least, destroys the appearance of justice in such proceedings.

The conduct of the hearing officer who conducted Mr. Maloney's hearing should not be tolerated by DMV.   In addition to making what the trial judge correctly characterized as a “patently erroneous,” ruling in attempting to improperly limit cross-examination, his conduct and comments in other regards could easily have been understood by Mr. Maloney to exhibit favoritism toward the testimony of police officers over that presented by a citizen.

 In conclusion, we stress that a citizen appearing before a DMV hearing officer in a dispute over whether his license should be suspended is entitled to a full and fair hearing.   Conduct improperly limiting cross-examination has a chilling effect on adversary proceedings and, when combined with the fact that the hearing officer is an employee of the department which is a party to the adversary proceedings, seriously erodes public confidence in the system.

We affirm the judgment.


1.   All code references are to California's Vehicle Code.

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.

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