Thursday, May 1, 2008

If you lie to a California DUI officer as to what you had to drink, a California DUI Judge may find against you & not look at your video

California DUI lawyer - San Diego California DMV attorney: new case

Filed 5/1/08 Avila v. Department of Motor Vehicles 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




Petitioner and Appellant,



(Super. Ct. No. GIC871047)

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia Eyerabide and Michael T. Smyth, Judges. Affirmed.

Roberto Avila appeals a judgment after the superior court denied his petition for a writ of administrative mandamus seeking 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. Avila contends: (1) the administrative record contains insufficient evidence to support the court's finding that police lawfully stopped his car and (2) his due process rights were violated. We conclude the record contains substantial evidence to support the court's determination and affirm the judgment.


On November 30, 2005, Oceanside Police Officer B. Sterling had to take evasive action to avoid a rear-end collision when a car driven by Avila approached his patrol car at an accelerated speed. After making a U-turn, Officer Sterling followed Avila a short distance, saw him make a right turn without using a turn signal, and stopped him. While approaching Avila's vehicle, Officer Sterling witnessed him place a breath mint into his mouth. Despite the mint, Officer Sterling smelled alcohol on Avila's breath. He also observed that Avila had watery and red eyes, slurred and repetitive speech, and difficulty finding his registration and insurance documents. When Officer Sterling asked Avila if he had been drinking, Avila responded that he had not.

After observing Avila's objective symptoms of intoxication, Officer Sterling asked him to perform a series of sobriety tests. Avila's performance on the tests indicated to Officer Sterling that he had "fair balance, poor coordination, and had some difficulty following [] instructions." Based on Avila's performance on these tests, as well as two preliminary alcohol screening tests that indicated Avila's blood alcohol concentration (BAC) to be 0.195 percent and 0.194 percent, Officer Sterling arrested Avila for driving under the influence.

After being taken to the police station, Avila refused to submit to a breath test, but agreed to have his blood taken. A forensic alcohol supervisor analyzed Avila's blood sample and determined it contained a BAC of 0.20 percent.

Officer Sterling wrote a sworn statement, as well as a more detailed unsworn arrest report, setting forth the facts, as described above, on which he relied as probable cause for the stop and Avila's arrest. He also issued an order suspending Avila's driver's license.

Avila sought an administrative hearing to contest the suspension order. At the hearing, the DMV hearing officer admitted Officer Sterling's sworn statement and unsworn report into evidence. Avila objected to the admission of the forensic blood-alcohol test report on foundational grounds, arguing that facial discrepancies made the report non-compliant with title 17 of the California Code of Regulations (Title 17). The DMV hearing officer overruled Avila's objection and admitted the document.

Avila testified at the hearing and offered exhibits describing his version of the events, but was not permitted to introduce a video allegedly supporting his testimony. Avila also admitted to consuming sake and scotch earlier in the day and to being untruthful to Officer Sterling regarding his alcohol consumption.

The DMV hearing officer re-imposed Avila's four-month driver's license suspension. She found that Officer Sterling had probable cause to stop Avila and reasonable cause to believe that Avila was driving a motor vehicle while under the influence of alcohol. Additionally, she found that Avila was lawfully arrested and that the forensic blood-alcohol test determined his BAC to be 0.20 percent. Regarding Avila's objection to the forensic blood-alcohol test report, the hearing officer found that the chain of custody was fully documented and no evidence suggested any unaccounted periods of custody. Finally, the hearing officer found that Avila was not credible due to his admitted untruthfulness with Officer Sterling regarding his alcohol consumption.

At Avila's request, the DMV reopened his administrative hearing. Officer Sterling testified that the reason for stopping Avila was accelerated speed in a residential area and failure to use a turn signal. Avila again testified contrary to Officer Sterling's version of the events and used scaled maps, mathematical calculations (obtained on an undisclosed website), and dozens of photographs in an attempt to show that Officer Sterling's version of the facts was physically impossible.

Following the second hearing, the DMV hearing officer affirmed and amended her initial findings. Among other things, the hearing officer made a specific finding that Avila violated the Vehicle Code by failing to use a signaling device in the presence of another vehicle -- Officer Sterling's patrol car. Regarding Avila's credibility, she added that more weight was given to Officer Sterling's "documentation of the events that transpired, than to the attempts of [Avila] to accurately assess his own actions or the actions of others while intoxicated, whereas the officer is presumed to be sober and . . . accurately report the events of the contact." As a result, the DMV re-imposed the four-month suspension against Avila's driving privilege.

Avila petitioned the superior court for a writ of administrative mandamus challenging the validity of the DMV's suspension order. Avila's arguments at the superior court differ little from those on appeal. In support of his petition, he submitted a declaration containing his mathematical calculations purportedly showing a physical impossibility in Officer Sterling's version of the events. Following oral argument, the superior court entered a judgment denying the petition. Avila appeals.


1. Standard of Review

At an administrative hearing to determine whether to suspend a motorist's driving privilege for driving under the influence, the only issues are: (1) whether the officer had reasonable cause to believe the motorist was driving under the influence; (2) whether the motorist was lawfully arrested; and (3) whether the motorist was driving when he had a BAC of 0.08 percent or more. (See Veh. Code, § 13557, subd. (b)(2); Lake v. Reed (1997) 16 Cal.4th 448, 456.)

When ruling on a petition for writ of administrative mandamus seeking relief from a driver's license suspension order, the trial court determines whether the administrative hearing officer abused her discretion by making findings not supported by the weight of the evidence. (Code Civ. Proc., § 1094.5; Lake v. Reed, supra, 16 Cal.4th at p. 456.) The court acts as trier of fact -- weighing the evidence and determining the credibility of witnesses. (Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176, 1184.) However, the administrative findings come before the trial court with a "strong presumption of correctness," and the burden rests on the petitioner to establish administrative error. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

After the trial court has rendered its judgment, however, a different, more limited, standard of review applies to the appellate court. The only question is whether the trial court's (and not the administrative agency's) findings are supported by substantial evidence. (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 508 (Brierton).) The appellate court views the record favorably to the respondent, indulging all reasonable inferences and resolving all conflicts in support of the judgment. (Ibid.) When two or more inferences can reasonably be deduced from the facts, a reviewing court cannot substitute its deductions for those of the trial court. (Ibid.) The appellate court does not evaluate the credibility of witnesses but defers to the trial court. (Roze v. Department of Motor Vehicles, supra, 141 Cal.App.4th at p. 1184.) We will overturn the trial court's factual findings only if the evidence is insufficient as a matter of law to support those findings. (Brierton, supra, 130 Cal.App.4th at p. 508.)

2. Sufficiency of the Evidence

Avila challenges the sufficiency of the evidence supporting the finding that Officer Sterling lawfully stopped him. Specifically, he contends that, at the DMV hearings, his mathematically-based evidence demonstrated that the events described by Officer Sterling were physically impossible, making the stop and arrest unlawful.

A police officer may, consistent with the Fourth Amendment, detain a motorist to conduct a brief investigation when the police officer has a reasonable, articulable suspicion that the driver has violated the law. (Illinois v. Wardlow (2000) 528 U.S. 119, 123; People v. Miranda (1993) 17 Cal.App.4th 917, 926.) Reasonable suspicion is a lesser standard than probable cause, but the officer's suspicion must be supported by some specific, articulable facts. (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484.) Violation of the Vehicle Code justifies a traffic stop. (See, e.g., People v. White (2001) 93 Cal.App.4th 1022, 1025-1026 [detention for partially obscured license plate]; Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476-477 [detention for violating seat belt law].) Erratic driving may also justify a traffic stop. (People v. Russell (2000) 81 Cal.App.4th 96, 102.)

Here, Officer Sterling articulated in his sworn statement, unsworn arrest report, and sworn testimony that he stopped Avila due to Avila's accelerated speed in a residential area and subsequent failure to use a turn signal. This is substantial evidence supporting the traffic stop because it is a violation of the Vehicle Code to not signal when making a turn (Veh. Code, § 22107) and to drive at a speed which endangers personal safety. (Veh. Code, § 22350.) Furthermore, Avila's erratic driving, poor performance on the sobriety and alcohol screening tests provided Officer Sterling with justification to lawfully arrest Avila for driving under the influence.

Although Avila testified and provided mathematical calculations to contradict Officer Sterling's account of the events, the trial court presumably rejected his version of the events and found Officer Sterling's testimony credible. For an appellate court to reject the statements given by a witness whom the trial court has found credible, the statements must either be physically impossible or clearly false without resorting to inferences or deductions. (People v. Mayberry (1975) 15 Cal.3d 143, 150.) Here, Avila's version of the events purports to show the physical impossibility of Officer Sterling's account of the events, but his evidence fails to do so. Avila asserts, without support in the record, that he did not travel the route described by Officer Sterling and pulled over immediately after Officer Sterling turned on his red lights. Avila's mathematical calculations focused on testimony by Officer Sterling taken out of context and were based on arbitrary speed estimates. His testimony was not "of such a nature that it cannot rationally be disbelieved." (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) Accordingly, we conclude substantial evidence supported the trial court's implied determination that Officer Sterling's testimony was not physically impossible or inherently improbable.

3. Alleged Evidentiary Errors

Avila alleges violations of due process stemming from the DMV hearing officer (1) disregarding his evidence, (2) excluding his proposed video evidence, and (3) admitting the forensic blood-alcohol test result. We reject Avila's first due process contention as it is simply another challenge to the sufficiency of the evidence. Avila waived any error regarding the proposed video and forensic blood-alcohol test result by failing to raise the issues before the trial court. (Petropoulos v. Department of Real Estate (2006) 142 Cal.App.4th 554, 561 ["Generally, points not raised in the trial court are deemed waived on appeal"].) However, even if a party has waived an issue, an appellate court may, at its discretion, hear waived issues, particularly when the parties have already briefed them. (In re C. T. (2002) 100 Cal.App.4th 101, 110, fn. 7.) We exercise our discretion to consider the merits of Avila's arguments and reject them.

Avila failed to indicate how exclusion of the proposed video affected his right to notice and an opportunity to be heard. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 ["As a general matter, the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.]"].) Avila testified at both DMV hearings, submitted numerous photographs and scaled maps to support his theory, and extensively cross-examined Officer Sterling. Accordingly, Avila received more than a reasonable opportunity to present evidence to support his defense and he has not shown prejudice as even his counsel admitted that the "pictures really cover it pretty good anyway."

Avila further contends that the forensic blood-alcohol test result was inadmissible because there was insufficient foundation to establish that the analysis was conducted in compliance with Title 17. Specifically, his counsel argued that the certifying document from Forensic Alcohol Supervisor Jorge R. Peña did not apply to the attached log sheet listing the results of the forensic analysis because the two documents contained different dates. The documents do not support his contention. The certifying document lists the initials of "JRP," analysis date of December 21, 2005, and a signature date of December 23, 2005. Likewise, the accompanying log sheet contains analyst initials of "JRP," analysis date of December 21, 2005, and results entry date of December 23, 2005. Thus, Avila's objection was insufficient to rebut the presumption that the analysis was conducted in compliance with Title 17. (Evid. Code, § 664; Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 388-389 [tests performed by authorized laboratories are "presumptively valid"].)

Finally, Avila alleges that the admission of a driving record that included his driving history dating back to 1987 violated Vehicle Code section 1808. Assuming, without deciding, that this section applies, the judgment will be affirmed unless the appellate court concludes there is a reasonable probability that a result more favorable to the appellant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, Avila provided no cogent argument as to how the driving history prejudiced the outcome of his administrative hearing. Moreover, the record does not reflect that the DMV hearing officer relied upon Avila's driving record in reaching her determination. In fact, the hearing officer made no mention of the driving history during the hearings or in her findings and imposed only a four-month suspension, reflecting a first time offense. (See Veh. Code, § 13353.3, subd. (b)(1).) Accordingly, Avila was not prejudiced by admission of the driving record.

In summary, Avila's accelerated speed and failure to signal provided Officer Sterling with a reasonable basis to conduct a traffic stop and Avila's performance on the sobriety and alcohol screening tests provided a lawful basis for his subsequent arrest. Furthermore, the DMV hearing did not violate Avila's due process rights and substantial evidence supported the trial court's determination.


The judgment is affirmed.



HUFFMAN, Acting P. J.