Judge: Curtis A. Kin, Case: 23STCP03496, Date: 2024-08-15 Tentative Ruling

Case Number: 23STCP03496    Hearing Date: August 15, 2024    Dept: 86

Petitioner Corey Caston petitions for a writ of mandate directing respondent Steve Gordon, Director of the Department of Motor Vehicles, to set aside an order suspending petitioner’s driving privileges.

I.       Factual Background

A.           Arrest

On April 8, 2023, Officer Zamudio and Officer Saldana were working uniformed patrol in a marked black and white patrol vehicle (P24/8X5). (AR 15.)[1] At approximately 1:27 a.m., Officers Zamudio and Saldana received a call regarding a male asleep in a Dodge Charger at a drive through while multiple vehicles were honking at him for approximately 20 minutes without any response from the driver. (AR 15.) Emergency medical services responded on the scene to assist. (AR 15.)

After arriving on scene, the officers located the Dodge Charger stopped in the drive through with a gap in front of the Charger, making it clear that the driver was not proceeding forward through the drive through. (AR 15.) The officers observed the driver to be asleep in the driver’s seat. To prevent the vehicle from moving, Officer Zamudio parked directly in front of the Dodge Charger (nose to nose) with only a few inches apart in case the driver woke up and took his foot off the brake pedal. (AR 15.) Officer Zamudio then approached the driver’s side door and noticed the driver and sole occupant of the vehicle sleeping. (AR 15.) After a few seconds of knocking and rocking the vehicle back and forth, the driver (later identified by California Driver’s License as petitioner Corey Caston) woke up. (AR 15-16.)

Petitioner appeared disoriented and had difficulty opening the door and rolling down the window. (AR 16.) Officer Zamudio asked petitioner to put his vehicle in park, and petitioner placed the vehicle from Drive to Neutral. (AR 16.) Officer Zamudio noticed a strong odor of alcohol emitting from petitioner’s breath. (AR 16.) Officer Zamudio asked petitioner to step out of the vehicle, and petitioner complied. (AR 16.) Petitioner swayed as he exited the vehicle. (AR 16.) Los Angeles County Fire Department also arrived on the scene and checked petitioner’s vital signs but did not feel the need to continue their medical evaluation. (AR 16.)

Officer Zamudio asked petitioner how much he drank. Petitioner admitted to having drunk a shot of alcohol. (AR 16.) During his conversation with Officer Zamudio, petitioner had slurred speech. (AR 16.) Officer Zamudio then conducted an eye test on petitioner and saw that he had bloodshot watery eyes and horizontal gaze nystagmus with a lack of smooth pursuit and that his eyes were unable to converge. (AR 16.) The officers then escorted petitioner to a well-lit safe area with fewer vehicles for petitioner to perform standardized field sobriety tests. (AR 16.) Officer Zamudio asked petitioner to perform the standardized field sobriety tests, but petitioner refused. (AR 16.) Officer Zamudio then read petitioner the Preliminary Alcohol Screening (“PAS”) admonition, and petitioner refused to take the PAS test. (AR 16.)

Based on Officer Zamudio’s training and experience, petitioner’s objective signs and symptoms of intoxication, including petitioner sleeping in the running vehicle set in Drive, Officer Zamudio formed the opinion that petitioner had been driving a vehicle while under the influence of alcohol and placed him under arrest for having violated Vehicle Code section 23152, subsection (a). (AR 16.) Officer Zamudio then read petitioner the Chemical Test Admonition (DMV-367 form) verbatim. Petitioner agreed to take a breath test. (AR 16.) Officer Zamudio offered to call someone to pick up the vehicle, but petitioner refused and the vehicle was towed pursuant to Vehicle Code section 22651, subsection (h). (AR 16.) The officers then transported petitioner to the Gardena Police Department jail where he was booked for having violated Vehicle Code section 23152 subsection (a). (AR 16.)

Petitioner became argumentative regarding the tow of the vehicle and stated he wanted an attorney. (AR 16.) Officer Zamudio asked petitioner again if he would take a breath or blood test, and petitioner refused to take both tests, stating he wanted his attorney. (AR 16.) Petitioner refused and did not provide any blood or breath chemical test sample after he was read the Chemical Test Admonition on the DMV form verbatim and the officer had requested that petitioner select and submit to a test. (AR 16.)

B.           Administrative Proceedings

Petitioner’s administrative per se hearing[2] was held before DMV Hearing Officer Rubio on June 5, 2023. (AR 32.) The scope of the hearing was limited to the following issues: (1) Whether petitioner was admonished that his driving privilege would be suspended or revoked if he refused or failed to complete a required chemical test to determine the alcohol content of his blood; and (2) Whether petitioner refused to take or failed to complete a chemical test or tests after being requested to do so by a peace officer. (AR 6.)

During the hearing, the DMV introduced and marked DMV’s Exhibits 1-5 and petitioner made no objections. (AR 38.) Based on the exhibits entered into evidence, including the “DS-367, Officer’s Statement Dated 4/8/2023; Arrest Report Dated, 4/8/2023; Supplemental Arrest Report Dated, 4/8/2023, MVARS footage dated 4/8/2023,” Hearing Officer Rubio determined: (1) Arresting Officer Zamudio had reasonable cause to believe petitioner was driving a motor vehicle in violation of Vehicle Code sections 23140, 23152, or 23153; (2) petitioner was placed under lawful arrest; (3) petitioner was told his driving privilege would be suspended or revoked if he refused to complete the required testing; and (4) petitioner refused or failed to complete the chemical test or tests after being requested to do so by a peace officer. (AR 6.) With respect to the final element, Hearing Officer Rubio specifically found based on the above noted evidence that petitioner “presented no contentions against this issue,” determined that “California law does not provide for the presence of an Attorney during the admonition,” and that petitioner’s contention that he did not understand the chemical test admonition was “based on a subjective interpretation of the evidence.” (AR 6.)

II.      Procedural History

            On September 20, 2023, petitioner filed a Petition for Writ of Mandamus. On December 12, 2023, respondent filed an Answer.

            On September 25, 2023, petitioner filed a memorandum of points and authorities. No proof of service was attached to that brief.

            The Trial Setting Conference was held on January 16, 2024. During the Trial Setting Conference, petitioner advised the Court that, although a memorandum of points and authorities had previously been filed, petitioner would be filing an opening brief. The Court set the hearing on the writ petition for June 13, 2024, and ordered that the opening brief be served and filed 60 days prior to the hearing date, the opposition served and filed 30 days prior to the hearing date, and the reply served and filed 15 days prior to the hearing date. (1/16/24 Minute Order.) The hearing was later continued to August 15, 2024, with the briefing schedule tied to the original hearing date. (6/4/24 Minute Order.)

            On May 10, 2024, respondent filed an opposition. On May 17, 2024, petitioner served and filed the opening brief, with administrative record attached.

III.     Standard of Review

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).) “[T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.)

When a driver petitions for a writ of mandate following an order suspending his or her driver’s license, the trial court is required to determine, based on its independent judgment, whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal.App.4th 860, 868.)  However, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda, 20 Cal.4th at 817, internal quotations omitted.)

A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) The court cannot evaluate arguments that are not made in the briefs and cannot make the parties’ arguments for them. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-63 [argument waived if not raised]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

IV.     Analysis

A.           Untimely Opening Brief

As stated above, the opening brief was due 60 days prior to the original hearing date, i.e., by April 15, 2024, as April 14, 2024 was a Sunday. No opening brief was filed by that date. Instead, after respondent filed an opposition on May 10, 2024 arguing that petitioner did not file an opening brief, petitioner untimely served and filed an opening brief on May 17, 2024. Despite the untimely filing of the opening brief, the Court exercises its discretion to consider it. The Court also exercises its discretion and considers the opposition. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)

B.           Merits

            Petitioner seeks to set aside the administrative decision of the DMV to suspend his driving privileges. Petitioner contends that there was no factual basis for a finding that he refused to complete a chemical test.[3]

            When a person is lawfully arrested for driving under the influence of alcohol, they are deemed to have consented to the chemical testing of their blood or breath to determine their blood alcohol content. (Veh. Code § 23612(a)(1)(A).) Refusing to submit to, or failing to complete, a chemical test offered under Section 23612 is punishable by the suspension of the person’s driving privileges, among other sanctions. (Veh. Code § 13353(a)(1).) The officer must tell the arrestee that failure to submit to, or complete, the chemical test will result in a fine and suspension or revocation of driving privileges. (Veh. Code § 23612(a)(1)(D).)

            “If the driver refuses to complete [a chemical test], his driving privilege is subject to suspension. There is a strong public policy against the nightmare of drunk driving. Thus, the implied consent law should be liberally construed to effect its purpose, which is to swiftly and accurately identify drunk drivers. (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270.) “Consent which is not clear and unambiguous may be deemed a refusal. The determinative factor as to whether there is a refusal is not the arrestee’s subjective state of mind, but rather the objective, fair meaning to be distilled from his words and conduct.” (Ibid.)

Petitioner argues that, on the Chemical Test Admonition form, Officer Zamudio recorded petitioner as having said: “I’ll just do the breath test” in response to the question, “Will you take a Breath Test?” (AR 10.) The body worn camera footage from the arrest also purportedly shows petitioner agreeing to take the breath test. (AR 39 [argument from petitioner’s counsel at administrative hearing].)

However, in the Crime/Incident Report, Officer Zamudio wrote that, after petitioner agreed to take a breath test, he and Officer Saldana transported petitioner to the Gardena Police Department jail. (AR 16.) At the jail, Officer Zamudio asked petitioner again if he would take a breath or blood test, at which point petitioner refused both tests. (AR 16.)

Petitioner appears to argue that the post-arrest Crime/Incident Report is inadmissible hearsay evidence. (Opening Br. at 6:14-16.) Although the post-arrest report is unsworn, it was admissible during the DMV hearing as the type of evidence typically relied upon. (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-59 [“[S]o 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”]; AR 9 [DS-367 Officer’s Statement is sworn].)

Further, under Evidence Code § 664, “[i]t is presumed that official duty has been regularly performed.” (Evid. Code § 664.) A police officer has an official duty to make accurate statements. (Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 79.) Accordingly, petitioner must demonstrate that Officer Zamudio’s statement that petitioner did not consent to the chemical blood test was inaccurate.

Petitioner argues that there was no evidence in the body worn camera video that petitioner later refused any chemical test after his arrest. (Opening Br. at 6:3-4.)  The Court has no way to determine the truth of that contention.  “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “‘prejudicial abuse of discretion.’” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) Petitioner did not provide the body worn camera video to the Court and thus fails to meet his burden to prevail here.

Under CCP § 1094.5, “the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.) Petitioner’s assertion that he was not provided the opportunity to complete the breath test (Opening Br. 6:13-16) is self-serving; there is no reason offered by plaintiff as to why Officer Zamudio would state that petitioner refused to complete a chemical test post-arrest if the refusal was not true.

            For the foregoing reasons, in its independent judgment, the Court finds the weight of the evidence supports the Hearing Officer’s finding that petitioner refused to complete a chemical test after being requested to do so by a peace officer.

V.      Conclusion

The petition for writ of mandate is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.