Tuesday, February 5, 2008

Lawful DUI Hit & Run Stop in DMV Refusal case

California DUI attorney case law update

Filed 2/4/08 Perez v. Borucki CA4/1


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.







(Super. Ct. No. GIC862184)

APPEAL from a judgment of the Superior Court of San Diego County, Christine V. Pate, Judge. Affirmed.

Larry Garcia Perez appeals the judgment after the superior court denied his petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5. Perez contends the court erred by denying relief from a driver's license suspension order issued by the California Department of Motor Vehicles (DMV), following his arrest for driving under the influence of alcohol, because the administrative record contains insufficient evidence to support the court's finding police lawfully stopped his car. Because we conclude the record contains sufficient evidence to support the court's determination the traffic stop was lawful, we affirm the judgment.



Perez filed a petition for writ of mandamus in the superior court in March 2006 to overturn an order of the DMV suspending his driving privileges for one year because he refused to submit to a chemical test of his blood alcohol content. The court denied the writ petition, finding the record supported the DMV's determination suspending Perez's driving privileges. Perez appealed the denial of his writ petition, and filed a petition for writ of supersedeas to stay the judgment and the DMV's license suspension order, pending resolution of his appeal. Perez contended issuance of the writ of supersedeas was necessary to avoid irreparable harm because driving a car was essential to his livelihood and to the support of his family.

This court granted in part the writ of supersedeas, and stayed the license suspension to allow Perez to drive only for work and only during daylight hours. We deemed the exhibits in the petition to be the record on appeal (subject to a request to augment).



The Hit and Run Accident

On January 2, 2006, at about 11:30 p.m., San Diego police officer Triplett responded to a call regarding a hit-and-run accident in the area of Park Boulevard and Adams Avenue in San Diego. Three eyewitnesses to the accident reported seeing a red car run a stop sign at the intersection of Adams and Park and strike a parked sports utility vehicle (SUV), before fleeing the accident scene. One of the eyewitnesses unsuccessfully tried to run after the car involved in the accident to obtain its license plate number. Triplett stopped Perez's car just two blocks away from the crash site, within minutes of the accident.1 Perez's car matched the description of the car given to police by the reporting party,2 and it appeared Perez's car "had been in a collision as the front end had moderate damage . . . ."

San Diego police officer Armstrong also responded to the report of the hit-and-run accident. Armstrong parked immediately behind Triplett, and the two officers approached Perez's car. The accident report prepared by Armstrong states Perez smelled strongly of alcohol, struggled to get his identification out of his wallet when asked for it by the officers, and used his car for support after he got out of it. Armstrong observed Perez's eyes were glazed and glassy, and his speech was heavily slurred and slow.

Armstrong attempted to administer a field coordination test to Perez. As he was doing so, it became clear to him Perez was in fact intoxicated. Armstrong noted in his arrest report if Perez had been a pedestrian, he would have taken him to "detox." Armstrong put Perez in his patrol car to transport him to headquarters. Within two minutes of getting into the patrol car, Perez fell asleep.

A blood sample from Perez established he had driven with a blood alcohol content of .19 percent.3 Perez was booked into county jail for driving under the influence of alcohol and for the hit-and-run accident.

The Administrative Hearing

At Perez's request, an administrative hearing was held to address, among other issues, Perez's contention he was unlawfully stopped and detained by Triplett on the night of his arrest. Perez contended the probable cause statement prepared by Armstrong was insufficient and lacked facts showing Triplett had reasonable cause to stop Perez's car.

The hearing officer issued a "Notification of Finding and Decision," upholding Perez's one-year license suspension. Based on the arrest, traffic collision, laboratory and DMV reports, the hearing officer found (1) Triplett had reasonable cause to stop Perez's car, and (2) Perez's arrest was lawful.



Judicial Review of Administrative Decisions

When an administrative order or decision appealed substantially affects a fundamental vested right, the superior court is required to exercise an independent judgment standard of review and find an abuse of discretion if the findings of the administrative agency are not supported by the evidence. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52 (Kazensky); Code Civ. Proc., § 1094.5.4) In exercising its independent judgment, the superior court must afford a strong presumption of correctness to the administrative findings, and the burden rests on the party challenging the administrative decision to convince the court that decision is contrary to the weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 ("Fukuda").)

After the court reviews "an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial court's determination is the substantial evidence test." (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.) The "appellate court must sustain the superior court's findings if substantial evidence supports them"; it "must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment." (Kazensky, supra, 65 Cal.App.4th at p. 52.) When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court. (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314.) " 'Evidence is substantial if any reasonable trier of fact could have considered it reasonable, credible and of solid value.' " (Kazensky, supra, 65 Cal.App.4th at p. 52; Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052.)

Sufficient Evidence Supports the Court's Decision Triplett

Lawfully Stopped Perez

Perez contends the judgment following denial of his writ petition should be reversed, and the order of the DMV suspending his driving privileges for one year revoked, because the administrative record lacks sufficient evidence showing Triplett lawfully stopped Perez's car. However, the arrest report prepared by Armstrong indicates police received a description of the car involved in the hit-and-run accident from a reporting party. The traffic collision report provides three eyewitness accounts of the hit-and-run accident. Each of the witnesses told police a red car entered the intersection of Adams Avenue and Park Boulevard without stopping at a stop sign, and struck a parked SUV before fleeing the scene of the accident. One of the eyewitnesses even ran after the car in an unsuccessful attempt to obtain the car's license plate number.

Although the record does not disclose who reported the hit-and-run accident, it is clear a report was in fact made to the police by one or more witnesses. Significantly, the record shows the witness or witnesses who reported the accident to police included a description of the suspect's car. Triplett and Armstrong responded to the crash scene to investigate, and it was then Triplett located a car matching the description given by the reporting party. This evidence, and all reasonable inferences properly drawn from it, (Kazensky, supra, 65 Cal.App.4th at p. 52), shows the stop of Perez was lawful.

In addition to evidence in the record showing Perez's car matched the description of the suspect's car given to police by the reporting party, the evidence shows Triplett stopped Perez's car about two blocks from the accident scene within minutes of the accident. The timing and proximity of the stop to the hit-and-run accident provides additional evidence to support the judgment. This evidence helps to explain in part why Triplett and Armstrong were patrolling in the area and why Triplett stopped Perez's car. This evidence, and the reasonable inferences deduced from it, supports the finding the traffic stop was not random or arbitrary, but rather was based on information given to police by one or more witnesses just a few minutes before Triplett pulled over Perez's car. We therefore conclude sufficient evidence supports the judgment.


The judgment denying Perez's writ of mandate is affirmed. Respondent is awarded costs on appeal.

HUFFMAN, Acting P. J.




1 The record does not include the exact time of the stop of Perez's car by Triplett, although the arrest report shows Perez had been stopped, detained, and arrested by 11:38 p.m., just 18 minutes after the accident.

2 The record does not identify the name or names of the witnesses who reported the hit-and-run accident to police.

3 The record shows a disagreement between the parties regarding whether Perez refused to take a breathalyzer test to measure his blood alcohol content after he was transported to police headquarters. However, this dispute is not relevant in this appeal.

4 Code of Civil Procedure section 1094.5, states in part:

"(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.

(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence."