Tuesday, May 13, 2008

Constitutionality of California DUI checkpoint at DMV hearing

California DUI attorney case

May 13, 2008

Roelfsema v. Department of Motor Vehicles (1995) 41 Cal.App.4th 871 , 48 Cal.Rptr.2d 817

On September 10, 1993, at 10:55 p.m., in Palo Alto, California,
Officer Van Otten of the California Highway Patrol stopped respondent
at a sobriety checkpoint. Upon contacting respondent, the officer
observed signs of intoxication. Specifically, respondent's breath
smelled of alcohol, her eyes were red, watery, and glassy, and she
failed the field sobriety tests. The officer arrested respondent at
11:05 p.m. for violation of Vehicle Code section 23152. fn. 1 At
11:55 p.m., respondent submitted to a blood test that reported her
blood-alcohol content to be 0.21 percent. The officer issued an
"Administrative Per Se Order of Suspension/Revocation Temporary
License Endorsement," ordering that respondent's privilege to operate
a motor vehicle be suspended in 30 days.

Respondent requested an administrative hearing with the DMV. The
hearing was held on October 7, 1993. The DMV hearing officer presented
and admitted, over respondent's objections, the sworn statement of
Officer Van Otten, the temporary license, and the blood test results.
Van Otten's statement provided, "While working a DUI check point, I
observed the driver in a vehicle. Upon contact, I smelled the odor of
an alcoholic beverage and the Subj.'s eyes were red, watery and
glassy. Subj. failed F.S.T.'s/did not complete." Officer Van Otten
testified that there was no arrest warrant. On October 8, 1993, the
DMV issued the order sustaining the suspension of respondent's driving
privilege for four months.

On October 23, 1993, respondent petitioned for a writ of mandate
requesting that the trial court set aside the administrative decision.
The DMV filed its answer on November 19, 1993. Argument was heard on
December 10, 1993. The court granted the petition on the grounds that
the arrest was unlawful because the DMV did not prove that the
sobriety checkpoint had been publicized in advance.

On January 5, 1994, the DMV filed a motion to reconsider order
granting petition for writ of mandate in light of People v. Banks
(1993) 6 Cal.4th 926 [41 Cal.App.4th 875] [25 Cal.Rptr.2d 524, 863
P.2d 769]. Banks held that advance publicity is not a constitutional
prerequisite to the operation of a sobriety checkpoint. (Banks, supra,
6 Cal.4th at p. 931.) Argument was heard on January 7, 1994. The
motion to reconsider was denied on the grounds that the DMV failed to
establish the remaining factors in Ingersoll. Judgment was entered on
June 20, 1994. The DMV filed a timely appeal.

Standard of Review

[1] "Upon the driver's timely request, the Department must hold an
administrative hearing at which the evidence is not limited to that
presented at the prior administrative review. [Citation.] The
Department's determination is then subject to judicial review.
[Citation.] The trial court must conduct its review on the record of
the hearing and may not consider other evidence. [Citation.] The task
for the trial court is to determine, exercising its independent
judgment, whether the administrative decision was supported by the
weight of the evidence. [Citations.] On appeal, the only question is
whether substantial evidence supports the trial court's decision.
[Citations.]" (Santos v. Department of Motor Vehicles (1992) 5
Cal.App.4th 537 , 545 [7 Cal.Rptr.2d 10].)

Discussion

[2a] Respondent claims the DMV must prove the constitutionality of a
sobriety checkpoint as part of its "prima facie" case in a proceeding
pursuant to Vehicle Code section 13558. The trial court agreed,
relying upon Ingersoll v. Palmer, supra, 43 Cal.3d 1321 . As we shall
explain, the trial court erred. The DMV does not have to prove the
constitutionality of every sobriety checkpoint in every section 13558
license suspension hearing it considers.

We begin with Ingersoll v. Palmer. In Ingersoll, the California
Supreme Court considered whether sobriety checkpoints were
constitutional. Petitioners fn. 2 argued that the validity of the
sobriety checkpoint should be analyzed under the standard set out in
In re Tony C. (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957],
"requiring an individualized suspicion of wrongdoing." (Ingersoll v.
Palmer, supra, 43 Cal.3d 1321 , 1327.) [3] Rejecting this contention,
Ingersoll explained that the primary purpose of a sobriety checkpoint
is not to detect evidence of crime or arrest drunk drivers but to
"promote public safety by deterring intoxicated persons from driving
on the public streets and highways." (Id. at p. 1328.) Given this
purpose, Ingersoll found that the propriety of sobriety checkpoints
should be assessed [41 Cal.App.4th 876] under the standard applicable
to investigative detentions and inspections occurring as part of a
regulatory scheme in furtherance of an administrative purpose, and not
by the standard applying to traditional criminal investigative stops.
(Ibid.) Ingersoll also noted that the In re Tony C. court "expressly
recognized that individualized suspicion that the contactee is
involved in criminal activity is not required in certain types of
police-citizen contacts." (Ingersoll v. Palmer, supra, 43 Cal.3d 1321
, 1330, italics added.)

Having made this distinction, Ingersoll next examined various types of
seizures which did not require "reasonable suspicion." Ingersoll
discussed airport security screening searches, building inspections,
and border patrol checkpoint inspections. With respect to border
patrol searches, the court discussed United States v. Martinez-Fuerte
(1976) 428 U.S. 543 [49 L.Ed.2d 1116, 96 S.Ct. 3074], and emphasized
that Martinez-Fuerte held that no warrant was required for such
searches: "The need to provide an assurance of legitimacy of the
search/seizure required a warrant in the building inspection context,
but that need was served alternatively in the checkpoint operation by
the visible manifestation of authorization in the form of signs
announcing the roadblock, official insignia and vehicles, and fully
uniformed personnel." (Ingersoll v. Palmer, supra, 43 Cal.3d at pp.
1333-1334.) After analyzing these decisions, Ingersoll concluded that
"stops and inspections for regulatory purposes may be permitted if
undertaken pursuant to predetermined specified neutral criteria
[citation] such as the criteria for a checkpoint stop [citation]."
(Id. at p. 1335.)

Having so concluded, Ingersoll then assessed the constitutional
reasonableness of the sobriety checkpoint by "weighing the gravity of
the governmental interest or public concern served and the degree to
which the program advances that concern against the intrusiveness of
the interference with individual liberty." (Ingersoll v. Palmer,
supra, 43 Cal.3d at p. 1338.) [4] In examining the intrusiveness of
such checkpoints, the Ingersoll court identified eight factors to
"provide functional guidelines for minimizing the intrusiveness of the
sobriety checkpoint stop." (Ingersoll, supra, 43 Cal.3d at p. 1341.)
These factors are: (1) decisionmaking at the supervisory level; (2)
limits on discretion of field officers as to who is to be stopped; (3)
maintenance of safety conditions; (4) reasonable location of the
checkpoint; (5) a reasonable time and duration of the checkpoint; (6)
indicia of the official nature of the roadblock; (7) the length and
nature of the detention; and (8) advance publicity regarding each
checkpoint. (Ingersoll, supra, 43 Cal.3d at pp. 1341-1347.)

Ingersoll concluded, "while the intrusiveness of a sobriety checkpoint
is not trivial, the enumerated safeguards operate to minimize the
intrusiveness to the extent possible.... [¶] On balance, the intrusion
on Fourth [41 Cal.App.4th 877] Amendment interests is sufficiently
circumscribed so that it is easily outweighed and justified by the
magnitude of the drunk driving menace and the potential for
deterrence." (Ingersoll v. Palmer, supra, 43 Cal.3d at p. 1347.)

Three years after the Ingersoll decision, the United States Supreme
Court considered the constitutionality of sobriety checkpoints in
Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444 [110
L.Ed.2d 412, 110 S.Ct. 2481]. The court went through the same
balancing test as Ingersoll, and it also concluded that sobriety
checkpoints were constitutional.

Subsequently, in People v. Banks, supra, 6 Cal.4th 926 , the
California Supreme Court revisited the sobriety checkpoint issue. In
Banks, the court considered whether advance publicity, which is one of
the Ingersoll guidelines, was a constitutional prerequisite to the
operation of a sobriety checkpoint. In addressing the issue, the court
again emphasized that " 'federal constitutional principles require a
showing of either the officer's reasonable suspicion that a crime has
occurred or is occurring or, as an alternative, that the seizure is
"carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers." [Citations.]' "
(People v. Banks, supra, 6 Cal.4th at p. 936, latter italics added.)

In accordance with Michigan Dept. of State Police v. Sitz, supra, 496
U.S. 444, Banks concluded, "the operation of a sobriety checkpoint
conducted in the absence of advance publicity, but otherwise in
conformance with the guidelines we established in Ingersoll v. Palmer
[citation] does not result in an unreasonable seizure within the
meaning of the Fourth Amendment to the United States Constitution."
(People v. Banks, supra, 6 Cal.4th at p. 949, italics added.) fn. 3

As Ingersoll makes clear, sobriety checkpoints are constitutional so
long as certain guidelines are followed. The eight factors identified
in Ingersoll provide "functional guidelines" to assess the
intrusiveness of a checkpoint. However, the absence of one factor,
such as the failure to provide advance publicity, does not necessarily
mean the checkpoint is unconstitutional. (People v. Banks, supra, 6
Cal.4th at p. 949.)

Since sobriety checkpoints are constitutional, we must now consider
how those checkpoints mesh with the Vehicle Code license suspension
scheme. [41 Cal.App.4th 878] Vehicle Code section 13558 fn. 4
authorizes the licensee to request an administrative hearing regarding
a section 13353.2 license suspension. fn. 5 At such hearing, "[t]he
only issues ... shall be those facts listed in paragraph (2) of
subdivision (b) of Section 13557." (§ 13558, subd. (c)(2).)

Section 13557, subdivision (b)(2) provides in pertinent part that "If
the department determines in the review of a determination made under
Section 13353.2, by the preponderance of the evidence, all of the
following facts, the department shall sustain the order of suspension
or revocation ...: [¶] (A) That the peace officer had reasonable cause
to believe that the person had been driving a motor vehicle in
violation of Section 23136, 23140, 23152, or 23153. [¶] (B) That the
person was placed under arrest or, if the alleged violation was of
Section 23136, that the person was lawfully detained. [¶] (C) That the
person was driving a motor vehicle under any of the following
circumstances: (i) When the person had 0.08 percent or more, by
weight, of alcohol in his or her blood."

In this case, respondent requested a hearing to consider the three
issues under section 13557. At the hearing, the DMV submitted the
"Officer's Statement." The arresting officer stated: "While working a
DUI check point, I observed the driver in a vehicle. Upon contact, I
smelled the odor of an alcoholic beverage and the Subj.'s eyes were
red, watery and glassy. Subj. failed F.S.T.'s/did not complete." The
breath test printout was also admitted, and the arresting officer
testified. The arresting officer testified that the "Officer's
Statement" was completed and signed by him at or near the time of the
incident.

[5a] "An officer's statement reporting firsthand
observations-objective symptoms of intoxication, circumstances of a
driver's refusal to submit to a chemical test, or results of a
personally administered breath test-falls within the public employee
records exception to the hearsay rule. [Citations.]" (Santos v.
Department of Motor Vehicles, supra, 5 Cal.App.4th 537 , 546.) Under
the exception, a writing recording an act, condition or event is
admissible if the writing was: (1) made by and within the scope of
duty of a public employee; (2) at or near the time of the act,
condition or event; and (3) the sources of information and method and
time were such as to indicate its trustworthiness. (Evid. Code, §
1280; Santos v. Department of Motor Vehicles, supra, 5 Cal.App.4th at
pp. 546-547.)

In this case, the officer stated that he was "working a DUI
checkpoint." Under the hearsay exception above, this statement shows
the officer "was [41 Cal.App.4th 879] working a DUI checkpoint" when
respondent was stopped. As already discussed, sobriety checkpoints are
constitutional so long as certain requirements are met. "[T]he
operation of a sobriety checkpoint conducted in the absence of advance
publicity, but otherwise in conformance with the guidelines we
established in Ingersoll v. Palmer ... does not result in an
unreasonable seizure within the meaning of the Fourth Amendment to the
United States Constitution." (People v. Banks, supra, 6 Cal.4th at p.
949, italics added.) Further, the evidence showing that there was a
checkpoint, and that the officer witnessed signs of respondent's
intoxication, demonstrates that "the peace officer had reasonable
cause to believe that [respondent] had been driving a motor vehicle in
violation of Section ... 23152 ...." (§ 13557, subd. (b)(2)(A).) The
fact that there was a checkpoint justified the officer's stopping
respondent, and his subsequent observations of her condition gave him
reasonable cause to believe she had been driving under the influence.

This interpretation comports with common sense and fosters efficiency.
[2b] We doubt that the Legislature intended to require the DMV to
prove the constitutionality of each and every sobriety checkpoint, at
every license revocation hearing, regardless of whether the issue had
been raised. Such a result would be highly inefficient. No case has
imposed such a requirement upon the DMV.

[5b] Further, Evidence Code section 664 provides that "It is presumed
that official duty has been regularly performed. 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."
Thus, in the absence of evidence to the contrary, it is presumed that
official duty has been properly performed. (Spahn v. Spahn (1945) 70
Cal.App.2d 791 , 793 [162 P.2d 53]; see also Davenport v. Department
of Motor Vehicles (1992) 6 Cal.App.4th 133 , 143 [7 Cal.Rptr.2d 818];
McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519 ,
525 [7 Cal.Rptr.2d 18]; Imachi v. Department of Motor Vehicles (1992)
2 Cal.App.4th 809 , 815 [3 Cal.Rptr.2d 478].) In McKinney, supra, the
court held that the DMV was not required to prove, in every
administrative suspension hearing, that the blood alcohol test was
properly administered and the machine was in working order. "Given the
statutory presumption that official duty has been regularly performed
(Evid. Code, § 664), the burden was on the person challenging the
result, here McKinney, to show that there was some irregularity in the
administration of the test such as would bring into question the
reliability of the BAL readings." (McKinney v. Department of Motor
Vehicles, supra, 5 Cal.App.4th at p. 525; see also Imachi v.
Department of Motor Vehicles, supra, 2 Cal.App.4th 809 .) [41
Cal.App.4th 880]

[2c] In this case, it is presumed the checkpoint was operated
consistent with Ingersoll. The official duty-setting up and operating
the sobriety checkpoint-is presumed to have been regularly performed.
(Evid. Code, § 664.) Once the presumption attaches, it is then up to
the licensee to attack the propriety of the checkpoint. She must show
there was "some irregularity" in the sobriety checkpoint operation.
(Cf. McKinney v. Department of Motor Vehicles, supra, 5 Cal.App.4th at
p. 525.) Until she does so, the constitutionality of the checkpoint is
not at issue.

Although respondent claims the Evidence Code section 664 presumption
does not apply because she was arrested without a warrant, she applies
the presumption to the wrong facts. Section 664 authorizes a
presumption that the checkpoint itself was lawful-operated in a
regular manner. Section 664 does not permit a presumption that
respondent's arrest was lawful. Once the existence of the checkpoint
is shown, the DMV still must show there were grounds to arrest
respondent-reasonable cause to believe she had been unlawfully
operating a motor vehicle. (Veh. Code, § 13557, subd. (b)(2)(A).)

Accordingly, once it was demonstrated that respondent was stopped
pursuant to a sobriety checkpoint, and it is presumed such a
checkpoint was "performed regularly," it was respondent's obligation
to attack the constitutionality of the checkpoint if she so chose. Had
she done so, then the DMV would have had to consider whether the
checkpoint was constitutional under the Ingersoll guidelines. But
respondent did not raise this issue. Rather, she contended the DMV was
required to establish, as part of its "prima facie" case, that the
Ingersoll guidelines were met.

Indeed, respondent never explained why she believed the checkpoint was
unconstitutional. In fact, at the hearing, she never precisely raised
the issue of unconstitutionality at all. At the end of the hearing,
respondent simply stated, "And the argument is that the suspension
should not go into effect based on a failure of proof, in that, the
cases of Ingersoll and a current one, which is now, I believe being
examined by the Courts, which is the Banks case, indicate there must
be a certain showing made for a check point stop. My understanding,
having read the law is that the burden shifts once I show that there
was no arrest warrant to the people who want to suspend the license,
whether it be you, the DMV, or the criminal courts, that failure of
any proof to show the lawfulness of the arrest, there's been a failure
of proof, and therefore the arrest, itself, has not been proven to be
lawful ...."

Accordingly, since respondent failed to properly raise the issue of
the constitutionality of the sobriety checkpoint, and merely claimed
it was the [41 Cal.App.4th 881] DMV's responsibility, as part of its
"prima facie" case, to show compliance with Ingersoll, the checkpoint
issue was not before the DMV. Since the issue was not before the DMV,
the DMV was not obligated to consider whether the sobriety checkpoint
complied with Ingersoll. The trial court therefore erred in granting
the writ of mandate.

Disposition

The judgment is reversed. Costs on appeal to appellant.

Cottle, P. J., and Premo, J., concurred.

­ FN 1. Vehicle Code section 23152 provides in pertinent part: "(a) It
is unlawful for any person who is under the influence of any alcoholic
beverage or drug, or under the combined influence of any alcoholic
beverage and drug, to drive a vehicle. [¶] (b) It is unlawful for any
person who has 0.08 percent or more, by weight, of alcohol in his or
her blood to drive a vehicle."

­ FN 2. The Ingersoll petitioners were California taxpayers seeking to
prohibit sobriety checkpoints in California.

­ FN 3. The court noted that its discussion was limited to the advance
publicity issue and that it was not revisiting the broader questions
addressed in Ingersoll and Sitz concerning the constitutionality
generally or the effectiveness of sobriety checkpoints. Further,
"nothing in our decision should be construed to suggest that any of
the eight guidelines set forth in Ingersoll, including advance
publicity [citation] are not relevant to a consideration of the
intrusiveness of a sobriety checkpoint stop." (People v. Banks, supra,
6 Cal.4th at p. 934, fn. 3, italics in original.)

­ FN 4. All unspecified statutory references are to the Vehicle Code.

­ FN 5. Section 13353.2 provides, among other things, that the DMV
shall immediately suspend a person's privilege to operate a motor
vehicle if the person was driving with .08 percent or more, by weight,
of alcohol in his or her blood.



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