Nick v. Department of Motor Vehicles

12 Cal. App. 4th 1407, 16 Cal. Rptr. 2d 305, 93 Cal. Daily Op. Serv. 740, 93 Daily Journal DAR 1428, 1993 Cal. App. LEXIS 87

• Court: California Court of Appeal
• Decided: January 29, 1993
• Docket: A054300
• Status: Published

Opinions

Opinion

STEIN, J.

J. David Nick (Nick) appeals from a judgment dismissing a petition for writ of mandate directed against California Department of Motor Vehicles, A. A. Pierce, Director of the Department of Motor Vehicles, and the California Highway Patrol (hereafter respondents). Appellant contends he was denied a fair hearing on the suspension of his driver’s license because he was unable, due to his indigence, to compel the attendance of the arresting officer. He further contends that the evidence does not support the conclusion that he had been driving with a blood-alcohol level of .08 percent or more. We reject both contentions and affirm the judgment.

I.

About 1:55 a.m., on November 14, 1990, Nick was arrested by Officer Gummert of the California Highway Patrol for driving under the influence of alcohol in violation of Vehicle Code section 23152. Officer Gummert based the arrest on personal observation of Nick’s physical symptoms of intoxication and his performance of field sobriety tests. Approximately a half an hour later, appellant was given breath tests at the jail, which registered blood-alcohol levels of .09 and .08 percent. Pursuant to Vehicle Code sections 13353.2 and 23158.5, his driver’s license was seized. He was served with an “order of suspension,” given a temporary license and advised of his right to request a hearing. Nick demanded a formal administrative hearing on the suspension of his driver’s license before the Department of Motor Vehicles (DMV) as provided for by Vehicle Code section 13558.

Prior to the administrative hearing, Nick obtained from the DMV a subpoena for Officer Gummert. The department’s “order of suspension” advised appellant that he would be “responsible for service of your subpoenas and any witness fees required by statute.” Nick attempted to serve the subpoena on the officer by delivering it to the California Highway Patrol (CHP) office. He was informed that they would not accept the subpoena without payment of a $150 witness fee. Claiming to be indigent and unable to pay the fee, Nick left the subpoena at the CHP office. It was later returned to him by mail. Thereafter, another attempt was made to serve the subpoena on Officer Gummert by delivery to the CHP office, but again without tender of the witness fee.

Two weeks before the hearing, which was held on December 27,1990, the criminal charges against Nick arising from his arrest were dismissed.

At the administrative hearing the DMV relied on Officer Gummert’s sworn arrest report submitted under Vehicle Code section 23158.2 and other documentary evidence supporting the license suspension. Appearing without counsel, and as his only witness, Nick disputed Officer Gummert’s written account of the circumstances of the arrest and the conduct of the field sobriety tests. He testified that at the jail, “they were having trouble with the [intoxilyzer] machine. They were banging the machine with a piece of stick to make it work. They had to use a mouthpiece that had been used by another person previously because they had run out of mouthpieces.” The hearing officer upheld the suspension.

On January 30, 1991, Nick filed a petition for writ of mandate in the superior court seeking to order respondent DMV to reinstate his driver’s license. Rejecting the petition, the court found that a “preponderance of the evidence supports the Department’s determination that Petitioner was driving with a blood-alcohol level of .08 or above." After entry of judgment denying the petition, Nick filed this appeal.

II.

Appellant contends that respondents denied him a fair hearing by conditioning his right to confront and cross-examine Officer Gummert at the administrative hearing upon payment of a $150 witness fee.

Any “person, who has received a notice of an order of suspension ... of the person’s privilege to operate a motor vehicle pursuant to Section . . . 13353.2 ... or 23158.5 . . . may request a hearing on the matter pursuant to Article 3 (commencing with Section 14100) of Chapter 3, . . .” (Veh. Code, § 13558, subd. (a).) All matters concerning the hearing which are “not covered by this chapter shall be governed, as far as applicable, by the provisions of the Government Code relating to administrative hearings, and particularly by Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.” (Veh. Code, § 14112.)

The procedure for serving a subpoena on a witness to compel his or her attendance at a DMV administrative hearing is set forth in Government Code section 11510.¹ That section provides, in pertinent part, that all subpoenas “shall be served in accordance with Sections 1987 and 1988 of the Code of Civil Procedure.” (§ 11510, subd. (b).) Whenever a peace officer is subpoenaed to appear before any court or other tribunal in any civil action or proceeding concerning a matter he or she perceived or investigated in the course of his or her duties, Code of Civil Procedure section 1987 requires compliance with sections 68097.1² and 68097.2.³ Section 68097.2, subdivision (b) requires the party at whose request the subpoena is issued to reimburse the public entity for the expense to it of paying the officer’s salary. “The amount of one hundred fifty dollars ($150), together with the subpoena, shall be tendered to the public entity for each day that the officer is required to remain in attendance pursuant to the subpoena.” (Ibid.)

III.

Appellant, relying on section 11510, subdivision (c), which provides, in pertinent part, that “[a]ll witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the state . . . shall receive fees,” argues that because Officer Gummert was an employee of the state he could be subpoenaed to this hearing without payment of fees.

The legislative purpose in enacting these sections was to correct the perceived evils of the prior system where peace officers only received normal witness fees when they testified:

“Prior to the enactment of Vehicle Code sections 2266 and 2267 in 1961 (repealed in 1963 and reenacted in substance as Government Code sections 68097.1 et seq.), the appearance of California Highway Patrol officers who testified in civil suits did so on their own time and received only ordinary witness fees. This arrangement was unsatisfactory. The numerous appearances in civil cases by California Highway Patrol officers caused serious administrative problems for which the Department was not compensated. The officers appearing in the civil cases either lost wages or were required to take vacation. Finally, and most unsatisfactory, was the persistent allegation that officers, because of the economic hardships in testifying, made private arrangements for their compensation with the party subpoenaing them and in return colored their testimony in favor of that party. In our opinion, Government Code sections 68097.1 et seq. were intended by the Legislature to remedy these problems alone; and it was not intended that officers should testify in civil cases as part of their official duty.” (53 Ops.Cal.Atty.Gen. 322, 323 (1970).) This legislative plan, embodied in sections 68097.1-68097.8, places peace officers as witnesses in a special classification for compensation and makes it a crime (§ 68097.7) for them to accept compensation in any other way. (See Patterson v. Sharp (1967) 253 Cal.App.2d 838, 840-841 [61 Cal.Rptr. 517].) Where the employing governmental entity is a party to proceedings based on the actions of its peace officer employees, the provisions of section 68097.2 do not apply. (253 Cal.App.2d at p. 841.) However, in order to effectuate the legislative scheme, and notwithstanding the provisions of section 11510, subdivision (c), when the CHP is not a party to the proceedings the party who subpoenas a CHP officer to testify about a matter which he or she investigated in the course of his or her duties is required to pay the fees specified in section 68097.2.

IV.

In 1965 section 68097.1 was amended to define the term “tribunal,” as used in that section and in section 68097.2, to mean “any person or body before whom or which attendance of witnesses may be required by subpoena, including an arbitrator in arbitration proceedings.” Appellant contends that this amendment prohibits the application of these sections to DMV license suspension hearings.⁴

We must give effect to the intent of the Legislature so as to effectuate the purpose of the law. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008 [239 Cal.Rptr. 656, 741 P.2d 154].) In determining such intent, we must turn first to the words themselves, giving them their ordinary and generally accepted meaning. (People v. Craft (1986) 41 Cal.3d 554, 559-560 [224 Cal.Rptr. 626, 715 P.2d 585].) The words must be read in light of the legislative objective sought to be achieved, as well as the evil sought to be averted. (People v. Aston (1985) 39 Cal.3d 481, 489 [216 Cal.Rptr. 771, 703 P.2d 111].)

The person before whom a DMV license suspension hearing is held may compel the attendance of witnesses by subpoena. (§ 11510.) Appellant has not demonstrated why the language, “including an arbitrator in arbitration proceedings,” should be read to exclude DMV license suspension hearings from the operation of sections 68097.1 and 68097.2. Moreover, appellant’s interpretation would violate the legislative intent of those sections and lead to absurd results.

Section 68097.1 allows service of process on a peace officer by delivery to his supervisor. If appellant is correct, and section 68097.1 does not apply, then he has failed to properly serve this subpoena as required by Code of Civil Procedure section 1987 and may not now complain of Officer Gummert’s failure to attend the hearing. (.People v. Du Bose (1970) 10 Cal.App.3d 544, 549 [89 Cal.Rptr. 134].) We can discern no reason why the Legislature would allow substitute service on peace officers whenever they are required to appear as witnesses, except if subpoenaed to a DMV license suspension hearing. Section 68097.2 shifts the salary and travel expenses of peace officers while they are testifying from their employing public agency to the party who has subpoenaed their attendance. Again, we can discern no reason why the Legislature would require reimbursement to the public for the expenses of peace officers whenever they are required to appear as witnesses, except if subpoenaed to a DMV license suspension hearing.

Appellant properly attempted service on Officer Gummert by leaving copies of the subpoena at the CHP office (§ 68097.1) and the CHP properly refiised to accept appellant’s tender of the subpoena absent payment of the required fees (§ 68097.2). (See Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1376 [240 Cal.Rptr. 281]; Burkhart v. Department of Motor Vehicles (1981) 124 Cal.App.3d 99, 110 [177 Cal.Rptr. 175].)

V.

While no court has directly confronted the issue of whether due process requires that witness fees be waived for an indigent, some have assumed that the licensee is required to pay the costs of serving these subpoenas. (See Snelgrove v. Department of Motor Vehicles, supra, 194 Cal.App.3d at pp. 1376-1377; Burkhart v. Department of Motor Vehicles, supra, 124 Cal.App.3d at p. 110.) With regard to the analogous right to be represented by counsel at license suspension hearings, due process does not require the appointment of counsel for an indigent licensee. (Borror v. Department of Investment (1971) 15 Cal.App.3d 531, 543 [92 Cal.Rptr. 525].) “The constitutional right to counsel provided for in the California Constitution (art. I. § 13) and the federal Constitution (Amend. VI) is guaranteed specifically in criminal prosecutions. The guaranty does not, by virtue of the specific language of these provisions, apply to civil proceedings. Administrative proceedings are civil in nature. With particular reference to a proceeding to revoke or suspend a license or other administrative action of a disciplinary nature, it has been held in this state that such proceeding is not a criminal or quasi-criminal prosecution.” (Borror v. Department of Investment, supra, 15 Cal.App.3d at pp. 539-540.)

When the Legislature enacted both penal (Veh. Code, § 23152 et seq.) and administrative (Veh. Code, § 13352) sanctions for driving under the influence, it contemplated two processes. One involves court proceedings and is criminal in nature, the other involves administrative proceedings and is civil in nature. The administrative per se suspension of driving privileges “is a civil matter which is independent of the determination of the person’s guilt or innocence ... in the criminal proceeding.” (Veh. Code, § 13353.2, subd. (e).)

The privilege to drive a motor vehicle on the public highways is important, but not fundamental. (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 80-84 [177 Cal.Rptr. 566, 634 P.2d 917]; McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 1021 [140 Cal.Rptr. 168].) Driving is a highly regulated activity subject to numerous government-mandated fees and expenses. A fee is required to apply for, renew or change the name on a driver’s license. (Veh. Code, §§ 14900.1, 14901.1.) Every driver in this state is required to be financially responsible. (Veh. Code, § 16020.) Appellant will be required to pay a fee of $100 to reinstate his driver’s license because it was suspended under the provisions of Vehicle Code section 13353.2. (Veh. Code, § 14905.) Appellant also will be required to file proof of financial responsibility before his driving privilege can be reinstated. If the privilege to drive were a fundamental right, as appellant’s argument suggests, then the state could not burden it with these other fees and financial requirements.

The suspension of a driver’s license may affect a substantial private interest and “cause personal inconvenience and possible economic hardship. But however substantial such a property interest may be, it is no more substantial than the right to pretrial freedom in criminal cases because of the presumption of innocence. [][] Gerstein v. Pugh (1975) 420 U.S. 103 [43 L.Ed.2d 54, 95 S.Ct. 854] examined Florida’s criminal procedures which resulted in pretrial restraint of liberty simply upon the filing of a prosecutor’s information without preliminary hearing and without leave of court. The high court held the procedure unconstitutional and held that a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention. However, it also held that a full adversary hearing was not required. The determination of probable cause need not be accompanied by the full panoply of adversary safeguards— counsel, confrontation, cross-examination, and compulsory process for witnesses. Since the sole issue is probable cause for detention, the issue may be determined without an adversary hearing.” (Burkhart v. Department of Motor Vehicles, supra, 124 Cal.App.3d at pp. 108-109.)

At appellant’s request the Department of Motor Vehicles issued a subpoena for the attendance of Officer Gummert, who refused to obey the subpoena absent the tender of the fees required by section 68907.2. Neither the DMV nor the CHP has the authority to waive the required fees. Only a court can determine if appellant is truly indigent, and only appellant can establish his claim of indigence. Appellant had at least two methods by which he could have presented his claim to the courts before the administrative hearing was held. Appellant could have petitioned the court to be relieved of the duty to deposit these fees because of his indigence. (§ 68097.55.)⁵ Appellant could have asked the DMV to enforce the subpoena and, when the DMV refused, he could have petitioned the superior court to compel the agency to perform its mandatory duty. (Gilbert v. Superior Court (1987) 193 Cal.App.3d 161, 167 [238 Cal.Rptr. 220].)

Rather than attempt either to have the fees waived or the subpoena enforced, appellant merely objected at the conclusion of the hearing, claiming a denial of due process resulted from the officer’s absence. Even where the right to compel the attendance of witnesses is constitutionally protected, appellant’s actions would not amount to a sufficient showing of due diligence to support a claim that the failure of a witness to attend denied him a fair hearing. “Due diligence requires application be made to the court invoking its aid to secure such witnesses long before trial and certainly at a time which would not require an extended interruption of a trial, then almost completed. A defendant may not complain of the absence of a witness unless he had made a showing of due diligence to obtain the attendance of the witness.” (People v. Du Bose, supra, 10 Cal.App.3d at p. 549.)

VI.

Appellant also contends that the trial court erred in concluding that the finding that the determination that he had been driving with a blood-alcohol level of .08 percent or above was supported by a preponderance of the evidence. The report of the arresting officer declared that appellant had been stopped after he signaled right and turned left, made a wide right turn onto another street and drove along the street “to the left of the solid, painted double yellow lines.” The officer noticed the odor of alcohol on appellant’s breath, and “observed his eyes to be red, watered and glassy, and his speech was slurred.” Appellant did not perform well on the field sobriety tests; when he was asked to stand on one foot, he used his arms and hands to balance and used an “improper counting sequence.” He could not coordinate moving his finger to thumb with a counting sequence. The field breath testing unit indicated that appellant had a blood-alcohol level of roughly .078 percent. Appellant was given a formal test on an intoxilyzer approximately one-half hour after he was arrested. A first test reported that he had a blood-alcohol level of .09 percent. A second test reported a level of .08 percent.⁶

Appellant argues that the test results could not be used as evidence “[wjithout the aid of expert testimony or a statutory presumption.” Vehicle Code section 23152, subdivision (b), however, contains the requisite statutory presumption. Subdivision (b) sets forth the rebuttable presumption as to “any prosecution under this subdivision” that “the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.”

Appellant argues that the subdivision may not be construed as establishing a presumption for any proceeding other than prosecution under section 23152. We recently held to the contrary. (Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 391 [7 Cal.Rptr.2d 5]; and see Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 310-314 [13 Cal.Rptr 2d 830].)

Appellant argues that there was no evidence rebutting his own testimony that the intoxilyzer was malfunctioning and the test was performed improperly. The testing officer’s checklist, however, was admitted and is evidence that the test was properly performed as to the matters checked off. In addition, the Code of Regulations details the procedures for performing these tests (tit. 17, arts. 5-7), and Evidence Code section 664 states the presumption that “official duty has been regularly performed.” It follows that there was evidence contradicting Nick’s testimony. The trial court was entitled to accept this evidence and reject Nick’s. (McDonald v. Hewlett (1951) 102 Cal.App.2d 680, 688 [228 P.2d 83, 24 A.L.R.2d 1281]; Lane v. Whitaker (1942) 50 Cal.App.2d 327, 330 [123 P.2d 53].) We see no error in the trial court’s determination that Nick had indeed been driving with a blood-alcohol level of .08 percent or over.

Conclusion

We hold that appellant received a full and fair administrative hearing and that the evidence supports the conclusion that appellant drove with a blood-alcohol level of .08 percent or more. The judgment of the trial court dismissing appellant’s petition for a writ of mandate is affirmed. Each party will bear its own costs on appeal.

Dossee, J., concurred.

1 All further statutory references, unless otherwise noted, are to the Government Code.

2 Whenever a member of the CHP “is required as a witness before any court or other tribunal in any civil action or proceeding in connection with a matter regarding an event or transaction which he or she has perceived or investigated in the course of his or her duties, a subpoena requiring his or her attendance may be served by delivering a copy either to the person personally or by delivering two copies to his or her immediate superior . . . .” (§ 68097.1.)

3 “Any peace officer . . . who is obliged by a subpoena issued pursuant to Section 68097.1 to attend as a witness, shall receive the salary or other compensation to which he or she is normally entitled from the public entity by which he or she is employed . . . .” (§ 68097.2, subd. (a).)

4 Initially, we note that section 11510, subdivision (c), which requires payment of witness fees and mileage “in the same amount and under the same circumstances as prescribed by law for witnesses in civil actions in a superior court,” for attendance at these hearings, has remained unchanged since its enactment some 20 years before section 68097.1 was amended in 1965. Thus, payment of these fees would be required under section 11510, subdivision (c), regardless of whether DMV license suspension hearings are held before a “tribunal” as defined in section 68097.1. (Veh. Code, § 14112.)

5 As noted above, with respect to the service of subpoenas, the Administrative Procedure Act incorporates the provisions of sections 68097.1 to 68097.8 through Code of Civil Procedure section 1987, subdivision (a). (§ 11510.)

6 Appellant incorrectly claims that the second and third tests, respectively, reported blood-alcohol levels of .08 and .09 percent. He argues that these results, together with the field sobriety test, indicate that his blood-alcohol level was rising. The field sobriety test, of course, is used not to establish blood-alcohol levels for purposes of Vehicle Code section 13353.2, but to aid the police in determining if cause exists to arrest an individual. Furthermore, these tests are not performed on equipment licensed for the purpose of establishing blood-alcohol levels and, accordingly, there is no foundation for admitting the results. (See Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 816 [3 Cal.Rptr.2d 478].) The results of the first test, therefore, are not evidence that appellant’s blood-alcohol level was ever lower than .08 percent The second and third tests are admissible, but to the extent that the varying results indicate anything—other than that the equipment was accurate to within plus or minus .01 percent of actual blood-alcohol level (see Cal. Code Regs., tit. 17, § 1221.4, subd. (a)(2)(A))—they indicate that Nick’s blood-alcohol level was falling.