Judge Mitchell L. Beckloff, Case 21STCP00868 2022-09-16 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP00868, Date: 2022-09-16 Tentative Ruling

Petitioner, Zachar Yedigarov, seeks an order compelling Respondent, the Department of Motor Vehicles (DMV), to vacate its February 11, 2021 decision suspending Petitioner’s driving privilege and license.

On September 26, 2020, Police Officer Onderdonk with the Police Department for the City of Glendale was parked on Brand Boulevard just north of Dryden Street observing traffic. At just after midnight, Officer Onderdonk observed Petitioner’s vehicle make a north bound turn onto Brand Boulevard from west bound Dryden Street. (AR 21.) Officer Onderdonk observed the vehicle had no front plate and made the turn from an unsafe start (“it lost traction causing it’s tires to screech”) in violation of Vehicle Code section 22106. (AR 21-22.) Officer Onderdonk made a U-turn and initiated a traffic stop at Stocker Street west of Brand Boulevard. (AR 21-22.)

While speaking with Petitioner, Officer Onderdonk observed Petitioner’s eyes were watery and bloodshot. Officer Onderdonk also noted Petitioner’s speech was slurred. (AR 22.) Officer Onderdonk had Petitioner exit his vehicle and requested a driving under the influence (DUI) enforcement car to the location. (AR 22.)

Officer Lopez arrived and began the DUI investigation at 12:30 a.m. (AR 18.) Based on Petitioner’s performance on field sobriety tests and Petitioner’s other objective signs of intoxication, Officer Lopez arrested Petitioner for driving under the influence of alcohol in violation of Vehicle Code section 23152, subsection (a). (AR 20.)

Following the arrest, Petitioner refused to take a chemical test stating, “I refuse to do either or because [1] this is a pandemic and [2] I refuse to give my blood.”[1] (AR 14.) Officer Lopez thereafter summarily suspended Petitioner’s driving privilege and issued a 30-day temporary license. (AR 16.)

Petitioner challenged the suspension of his driving privilege at an administrative per se (APS) hearing with the DMV. The hearing occurred on December 16, 2020 and January 28, 2021. (AR 40, 78.)

At the APS hearing, to support a suspension of Petitioner’s driving privilege, the DMV was required to establish the following: (1) did the peace officer have reasonable cause to believe that Petitioner had been driving under the influence; (2) was Petitioner lawfully arrested; and (3) Petitioner was told that his driving privilege would be suspended or revoked if he refused to complete the required testing; and (4) Petitioner did refuse or fail to complete the chemical test after being asked to do so by a peace officer pursuant to a lawful DUI arrest. (AR 10.)

On February 11, 2021, the DMV issued its APS Notification of Findings and Decision (Decision) suspending Petitioner’s driving privilege for one-year. (AR 8-9.)

Petitioner contends the DMV abused its discretion when it suspended his driving privilege and license. Petitioner contends the DMV did not provide Petitioner a fair trial and the findings were not supported by the evidence.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision 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 respondent 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. (Code Civ. Proc. § 1094.5, subd. (b).)

The parties do not dispute the suspension of a driver’s license is reviewed under the court’s

independent judgment. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396; Espinoza v. Shimoto (2017) 10 Cal.App.5th 85, 99.)

Accordingly, the court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) Under independent judgment, “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code of Civ. Proc. § 1094.5, subd. (b).)

Where the issue is whether a fair administrative hearing was conducted, a petitioner is entitled to an independent judicial determination of the issue. (Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1141; Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) Therefore, the court must independently review the fairness of the administrative proceedings as a question of law. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1438.)

Finally, Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code § 664.)[2] “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.) This presumption of correctness includes giving great weight to the agency’s credibility determinations even where the standard of review is independent judgment. (Fukuda, supra, 20 Cal.4th at 819.)

Officer Onderdonk Had a Reasonable Suspicion to Effectuate a Stop of Petitioner’s Vehicle for Driving in Violation of the Vehicle Code:

Petitioner contends the reason for his stop was “fabricated,” and Officer Onderdonk did not have reasonable suspicion Petitioner had violated the Vehicle Code.

“The police may make an investigatory stop of a person, in the absence of probable cause to arrest, when the police have a reasonable suspicion, based on specific and articulable facts, that the person stopped has been involved in a crime.” (People v. Conway (1990) 222 Cal.App.3d 806, 810-811.) “[W]here a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer's duties.” [Citation.]’ ” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)

In People v. Wells (2006) 38 Cal.4th at 1078, the Supreme Court reiterated the well-established reasonable suspicion standard for investigative stops by law enforcement officers. People v. Wells, supra, 38 Cal.4th at 1082-1083 held:

“[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.] The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.]” (Id. at 1082-1083. [Emphasis added.])

“When determining whether there was reasonable suspicion, we ‘must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.’ [Citation.] This approach ‘allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained

person.’ ” (United States v. Raygoza-Garcia, 902 F.3d 994, 1000 (9^th Cir. 2018).)

The preliminary question for the court is whether the weight of the evidence supports the finding Officer Onderdonk had reasonable suspicion of wrongdoing by Petitioner to effectuate an investigatory stop. Here, the potential wrongdoing relied upon by Officer Onderdonk to conduct the stop arises from two Vehicle Code sections—(1) failure to display a front license plate on the vehicle as required by Vehicle Code section 5200 and (2) an unsafe start in violation of Vehicle Code section 22106. (AR 21.)

“(a) When two license plates are issued by the department for use upon a vehicle, they shall be attached to the vehicle for which they were issued, one in the front and the other in the rear.

(b) When only one license plate is issued for use upon a vehicle, it shall be attached to the rear thereof, unless the license plate is issued for use upon a truck tractor, in which case the license plate shall be displayed in accordance with Section 4850.5.”

“No person shall start a vehicle stopped, standing, or parked on a highway, nor shall any person back a vehicle on a highway until such movement can be made with reasonable safety.”

With respect to Vehicle Code 5200, case law supports the reasonableness of the stop based on the absence of a front plate. Specifically, the Court in People v. Lee (1968) 260 Cal.App.2d 836 held “[w]hen the officers saw the automobile being driven on the public highway without a front license plate, they had reasonable cause to stop the automobile.” (Id. at 839 [predecessor statute].)

That Petitioner’s vehicle may not have been in violation of Vehicle Code section 5200, subdivision (a) because it could have been in compliance with subdivision (b) is of no consequence.

When considering whether reasonable suspicion justified an investigatory stop, reviewing courts “must look at the ‘totality of the circumstances' of each case to see whether the detaining officer has a ‘particularized and objective basis' for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ [Citations.] . . . [T]he likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard. [Citation.]” (United States v. Arvizu (2002) 534 U.S. 266, 273-274.)

From the language used—“suspecting legal wrongdoing”—courts recognize officers are allowed a degree of flexibility to conduct investigatory stops in order to dispel uncertainty regarding wrongdoing. “A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” (United States v. Arvisu, supra, 534 U.S. 266, 277; see Illinois v. Wardlow (2000) 528 U.S. 119, 126 [law governing detentions “accepts the risk that officers may stop innocent people.”]) “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal. . . .” (In re Tony C. (1978) 21 Cal.3d 888, 894.)

The DMV hearing officer found Officer Onderdonk had probable cause to stop Petitioner based in part on the absence of a front license plate on Petitioner’s vehicle. (AR 8.) The missing plate created a reasonable suspicion Petitioner had violated the law and justified Officer Onderdonk’s investigatory stop to determine Petitioner’s compliance with the law. The question then for this court is whether the weight of the evidence supports the administrative finding. Petitioner contends Officer Onderdonk was not a credible witness. (Opening Brief 5:16-6:13.)

Officer Onderdonk’s report specifically identified the lack of front license plate as one reason he conducted an investigatory stop of Petitioner. (AR 21.) Petitioner’s vehicle “caught [Officer Onderdonk’s] attention because it lost traction causing its tires to screech as it made a north bound turn . . . .” (AR 21.) Officer Onderdonk’s report was consistent with his testimony during the administrative hearing.[3] (AR 54-55.) Further, although a bit difficult to see because of the glare of headlights, the MVARS[4] video does not contradict Officer Onderdonk’s narrative—a front license plate appears to be missing. (Ex. C: 0:58, 1:00.) In addition, the video is clear Petitioner’s vehicle lost traction and fishtails as it makes the turn.[5] (Ex. C: 0:57-0:59.)

The court finds the weight of the evidence supports the DMV hearing officer’s implicit finding Officer Onderdonk was a credible witness. On this record, the court finds Officer Onderdonk to be a credible witness.[6]

In particular, the court notes Officer Onderdonk’s testimony was materially uncontradicted[7] and, more specifically, not contradicted by the video evidence. While the court may not have been able to clearly corroborate all of Officer Onderdonk’s testimony with the video, the video does not contradict Officer Onderdonk’s testimony. Thus, the court disagrees with Petitioner’s claim “Officer Onderdonk’s testimony [] is contradicted by his own MVARS.” (Opening Brief 6:20.)

Nothing in the record refutes Officer Onderdonk’s determination Petitioner’s vehicle lacked a front license plate; that is, nowhere does Petitioner challenge the veracity of Officer’s Onderdonk’s statement regarding the lack of a front license plate during the administrative proceeding. In reply, Petitioner’s only argument about the Vehicle Code 5200, subdivision (a) violation is that the officers did not inquire about his lack of front plate when they stopped him. (Reply 1:20-21; see also AR 132.) However, the argument is of no legal consequence.[8]

While the court need not address the alleged violation of Vehicle Code section 22106 to determine whether Officer Onderdonk’s investigatory stop of Petitioner was reasonable, for completeness, the court does so. The court cannot corroborate Officer Onderdonk’s testimony Petitioner’s tires screeched or chirped when Petitioner made his right turn. The audio provides little more than the apparent hum of the police vehicle cabin. (Ex. C.) Nonetheless, Officer Onderdonk testified to the fact and the court finds Officer Onderdonk credible.

Moreover, the MVARS video clearly shows Petitioner making an uncontrolled right turn (deemed “unsafe” and “reckless” by the officer during the hearing) where the vehicle swerves causing the back of the vehicle to fishtail. (Ex. C: 0:55-1:01.) The vehicle’s movement would be consistent with a tire screech. While Petitioner argues even assuming Petitioner caused his vehicle’s tires to screech, the screech was insignificant because “there was no oncoming traffic and no pedestrians crossing the street.” (Opening Brief 7:5-6.) The incident occurred in a business district where other cars are parked. In addition, Petitioner swerved close to another car going in the same direction. (Ex. C: 0:56-0:58.)

The court finds based on the totality of the circumstances Officer Onderdonk had probable cause to initiate an investigatory stop of Petitioner. The court finds the weight of the evidence supports the DMV’s finding.

The Duration of Officer Onderdonk’s Investigatory Stop was not Unreasonable:

Petitioner argues Officer Onderdonk’s investigatory stop—even if initially lawful—became unlawful as a result of its duration. Specifically, Petitioner argues Officer Onderdonk only “purported” to suspect Petitioner was driving under the influence after the time to conduct a reasonable investigative stop on the vehicle code violations had “long passed”—rendering the stop unreasonable in length under the Fourth Amendment.

"An officer's inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop's duration." (Arizona v. Johnson (2009) 555 U.S. 323, 325 [emphasis added].) "Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” (Rodriquez v. United States (2015) 575 U.S. 348, 354.)

The court finds the 30 minutes that elapsed between Officer Onderdonk’s initial stop and the initiation of Officer Lopez’s DUI investigation did not unreasonably extend the duration of the lawful stop. Upon initiating contact with Petitioner, Officer Onderdonk noted Petitioner had “the classic red, bloodshot, watery eyes. . . . his speech was slurred.” (AR 50.) In addition, Petitioner began talking to his passenger and had to be reminded by the officer to provide his registration and insurance. (AR 22, 51.)

“A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. . . . An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . does not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” (Arizona v. Johnson (2009) 555 U.S. 323, 333.)

The weight of the evidence supports the finding Officer Onderdonk had reasonable suspicion based on his own observations of Petitioner that Petitioner was driving under the influence. Officer Onderdonk’s observations were sufficient to justify an investigative detention going beyond the purpose of the initial traffic stop. (People v. Russell (2000) 81 Cal.App.4th 96, 102; Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358-359.)

As for the specific length of the detention, the court find a 30-minute wait from the initial stop to the arrival of the DUI enforcement investigative officer to conduct the DUI investigation was not unreasonably long. Officer Onderdonk acted diligently in pursuing a means of investigation likely to quickly confirm or dispel the particularized suspicion of wrongdoing. (United States v. Sharpe (1985) 470 U.S. 675, 685.)

Reasonable/Probable Cause to Support a Violation of Vehicle Code section 23152:

"It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle." (Veh. Code, § 23152, subd. (a))

Petitioner argues the alleged objective symptoms of intoxication could have been present for reasons other than intoxication. Petitioner contends without more the officers lacked probable cause to believe Petitioner was driving under the influence such that his arrest was unlawful. The court disagrees and finds the weight of the evidence supports the DMV’s finding of probable cause.

Probable cause to arrest exists when “facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person . . . is guilty of a crime. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 410.)

The record shows that Officer Onderdonk observed Petitioner’s eyes were watery and bloodshot and his speech was slurred. (AR 22.) Thereafter, Officer Lopez—who conducted the DUI investigation—also observed Petitioner’s slurred speech; he also noted that Petitioner had difficulty maintaining his balance. (AR 18, 21, 90-91.)

Petitioner performed poorly on the field sobriety tests and refused to take a preliminary alcohol screening test. (AR 19-20.) While Petitioner appears to suggest an alternative explanation for his poor performance on the field sobriety tests,[9] the officers—like this court in reviewing the video evidence—noticed Petitioner did not appear to require the assistance of any device such as cane or crutches and did not walk with a limp. (AR 18, 93; see also Ex. B [Video].) As such, it unclear on this record how, if at all, Petitioner’s injury affected his performance on the field sobriety tests; in any event, the court finds based on the weight of the evidence Petitioner’s injury does not undermine Officer Lopez’s probable cause determination.

Lastly, Officer Lopez’s clarification that he removed his face covering or mask during the encounter does not demonstrate dishonesty, and the court is inclined to find is somewhat irrelevant given the fact that neither Officer Onderdonk nor Officer Lopez claimed they smelled an odor of alcohol on Petitioner. (AR 18, 84-85.) As such, the misstatement appears to be an insignificant oversight by Officer Lopez.

Petitioner also argues the “DMV arbitrarily and erroneously excluded evidence from the record and ignored other evidence in [its] decision, failing to afford Petitioner a fair trial.” (Opening Brief 12:16-17.)

According to Petitioner, on Petitioner’s cross examination of Officer Onderdonk, the DMV arbitrarily and capriciously prohibited Petitioner’s counsel from raising questions about Officer Onderdonk's warrant check for Petitioner—specifically his omission of the warrant check. Petitioner argues the information he sought to elicit is relevant because it supports an inference Officer Onderdonk only included favorable facts in his report. (Opening Brief 12:23-26.) It remains unclear to the court how the information is relevant or even material. As such, the court finds no prejudice from the DMV’s evidentiary ruling.

Petitioner also claims the DMV ignored the affidavit he submitted because the Decision does not refer to it. Petitioner further argues that although the DMV required Petitioner to testify at the hearing, the DMV hearing officer made no findings as to whether Petitioner was credible.

Petitioner’s fair hearing arguments are unpersuasive. Petitioner essentially argues the Decision’s failure to address some of Petitioner’s specific evidence somehow means the evidence was “excluded” or not properly considered. (AR 8-10.) The court finds nothing in the record to suggest the DMV improperly excluded evidence, and nothing required the Decision to make certain findings on specific evidence or express findings as to Petitioner’s credibility. The Decision properly identified the evidence it relied upon to reach its findings and conclusions. (AR 8-10.)

Finally, Petitioner argues the DMV ignored the search warrant affidavit completed by Officer Lopez and submitted by Petitioner. Petitioner claims the affidavit contradicts the officers' recollection of events and supports the inference that Officer Lopez lied in order to obtain the warrant for a blood draw. The DMV argues it is not clear how Officer Lopez’s affidavit contradicts any of the officers’ recollection. (Opposition 15:10-13; See AR 32.) Petitioner does not explain the argument further on reply. The court finds Petitioner’s claim unpersuasive.

Under the court’s independent judgment, Petitioner has not demonstrated the DMV denied him a fair hearing.

[1] During the administrative hearing, Petitioner testified he did not want to submit to chemical testing because “[i]t was against [his] religion.” (AR 138.)

[2] However, “[t]his This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.” (Evid. Code § 664.)

[3] The officer testified he was facing southbound on Brand Boulevard “when [Petitioner’s] black Tesla came west on Dryden, took a right turn onto northbound Brand. He took a turn at such a speed or accelerating, he caused the tires to lose traction, which I looked over, saw the car, noticed there was also no front license plate. So that was two Vehicle Code violations.” (AR 54-55.)

[4] MVARS, mobile video audio recording systems, is often referred to as the “Dashcam.”

[5] Officer Onderdonk labeled the turn as “unsafe” and “reckless.” (AR 59.)

[6] Petitioner argues Officer Onderdonk lacked capacity: (1) to perceive the events giving rise to the stop; (2) to perceive validated clues of the horizontal gaze nystagmus (HGN) test; (3) to properly administer the HGN test; (4) to accurately and truthfully recollect the incident at the time of his report approximately seven hours later; and (5) to accurately and truthfully recollect the incident at the hearing nearly three months later. Petitioner bases his argument on the officer’s “perception and recollection of events being overtly contradicted by the video evidence obtained from his MVARS.” (Opening Brief 5:27-6:1.) Petitioner also contends Officer Onderdonk is an unreliable witness because he did not recall performing a single field sobriety test, HGN, on Petitioner prior to calling for assistance with a DUI enforcement car. (AR 65.) The officer explained he believed Officer Lopez conducted the tests. (AR 65.) Finally, Petitioner argues Officer Onderdonk’s certificate for the California Highway Patrol Drug Recognition Course had lapsed. (Opening Brief 6:3-4.) That the officer did not recall performing the HGN with Petitioner given that a DUI enforcement officer took over the investigation and conducted a batter of field sobriety tests prior to Petitioner’s arrest does not persuade the court Officer Onderdonk was not a credible witness. The court finds Officer Onderdonk’s lapsed certificate irrelevant to his credibility.

[7] There seems to be no dispute Petitioner’s vehicle did not have a front license plate. (See AR 155-158.)

[8] Petitioner suggests the alleged license plate violation was pretext to investigate a suspected driving while under the influence violation. In Whren v. U.S. (1996) 517 U.S. 806, the United States Supreme Court reaffirmed the rule an officer's subjective motives are irrelevant so long as the detention is objectively reasonable under the Fourth Amendment. (Id. at 809-813.) The Court confirmed several of its earlier decisions “foreclose any argument that the constitutional reasonableness of traffic stops depend on the actual motivations of the individual officers involved. . . . Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” (Id. at 813; accord People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1266; People v. Miranda (1993) 17 Cal.App.4th 917, 923-925.) Here, the potential traffic violation observed by Officer Onderdonk furnished an objectively reasonable basis for stopping the car and briefly detaining its occupants. (People v. Brown (1998) 62 Cal.App.4th 493, 496-497.) Thus, Officer Onderdonk’s subject intent is irrelevant to the issue of whether his stop was reasonable.

[9] Petitioner represented he had a broken leg and had been shot. (AR 156.)