Filed 12/11/14 Martinez-Escobar v. Valverde CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



EDGARDO F. MARTINEZ-ESCOBAR,

         Plaintiff and Appellant,                                        E058732

v.                                                                       (Super.Ct.No. RIC1212199)

GEORGE VALVERDE as director, etc.,                                       OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge.

Affirmed.

         Law Offices of Chad R. Maddox and Chad R. Maddox for Plaintiff and Appellant.

         Kamala D. Harris, Attorney General, Christine Mersten, Senior Assistance

Attorney General, and Theodore S. Drcar, Deputy Attorney General, for Plaintiff and

Respondent.




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                                             I

                                    INTRODUCTION

       Petitioner and appellant Edgardo F. Martinez-Escobar was convicted in Hawaii in

2004 for operating a vehicle under the influence of an intoxicant. (Haw. Rev. Stat.,

§ 291E-61.)1 Petitioner was convicted in California in 2012 for driving under the

influence of alcohol (DUI). (Veh. Code, §§ 23152, 23153.) In December 2012, the

DMV2 suspended petitioner’s California license for three years.3 (Veh. Code, § 13352,

subd. (a)(4).)

       Petitioner argues on appeal the Hawaii offense is not substantially similar to the

California offense and the court erred by admitting copies of Hawaii’s public records.

The DMV argues the Hawaii conviction qualifies as a first DUI offense and the appeal is

moot. Petitioner disagrees the appeal is moot because his three-year suspension is

effective until December 2015.

       We conclude the appeal is not moot although we still would have the discretion to

consider the issue. (LaChance v. Valverde (2012) 207 Cal.App.4th 779, 783.)

Nevertheless, we hold the Hawaii evidence was admissible to show that the 2004 offense

is substantially similar to the 2012 offense. Although the Hawaii statute also outlaws

       1 Haw. Rev. Stat. § 291E-61: “(a) A person commits the offense of operating a
vehicle under the influence of an intoxicant if the person operates or assumes actual
physical control of a vehicle. . . .”

       2 Department of Motor Vehicles.

       3We grant petitioner’s request for judicial notice filed January 29, 2014. (Evid.
Code, §§ 452, 459.)

                                             2
being in actual physical control of a vehicle while under the influence of alcohol, the

DMV provided sufficient evidence to show Petitioner was convicted for driving under the

influence of alcohol in Hawaii, not simply controlling a vehicle while under the

influence. Therefore, the Vehicle Code required the DMV to suspend petitioner’s driving

privileges. We affirm the judgment.

                                             II

                    FACTUAL AND PROCEDURAL BACKGROUND

A. The Administrative Hearing

       On February 25, 2012, petitioner was arrested in Murrieta for driving while

intoxicated. (Veh. Code, §§ 23152, 23153.) Petitioner surrendered his license and he

was issued a temporary license with a notice of his right to request a suspension hearing

before the DMV.

       After the administrative per se (APS) hearing, the hearing officer found that

Murrieta police had “witnessed a traffic collision involving a vehicle driven by

[Petitioner] who fled the scene of a prior accident in violation of California law.”

Petitioner displayed objective symptoms of intoxication: bloodshot and watery eyes,

odor of alcohol, an unsteady gait, and slurred speech. Petitioner could not perform the

field sobriety tests. The PAS4 results indicated the presence of alcohol and the chemical

blood test showed petitioner had a blood alcohol content (BAC) of .19 percent. The

DMV submissions for the APS hearing included exhibits 1 through 4—the Murrieta


       4   Preliminary alcohol screening.

                                             3
police reports and test results—and exhibit 5—petitioner’s current driving record—

displaying the 2004 Hawaii conviction.

       At the APS hearing, petitioner asked that the 2004 Hawaii conviction be stricken

because the Hawaii statute only requires physical control but not “actual driving.” The

hearing officer found petitioner had been previously convicted in Hawaii in 2004 for

“drunk driving” and no contrary evidence had been presented. The DMV suspended

petitioner’s license for one year from June 29, 2012, to June 28, 2013. After petitioner

was convicted of the February 25, 2012 offense in December 2012, his license was

suspended for three years until December 2015.

B. The Writ Petition

       Petitioner responded to the administrative decision by demanding the DMV

remove the Hawaii conviction from his driving record. In August 2012, petitioner filed a

petition for preemptory writ of mandate, seeking to strike the Hawaii conviction from his

record and changing his initial one-year suspension to four months.

       In response to the writ petition, the DMV asserted the offense on February 25,

2012 was a second DUI offense. In support, the DMV submitted an administrative

record which included all the documents submitted at the APS hearing and a certified

case detail report from the Hawaii court, showing that petitioner was arrested on February

25, 2004, for violation of Hawaii Revised Statutes section 291E-61(a) and was found

guilty by a bench verdict on April 29, 2004. The description of the violation was “DUI

BY IMPAIRMT OR .08 BREATH.” The Hawaii court’s minutes reflect that petitioner

waived personal appearance, was represented by an attorney, and entered a guilty plea on

                                            4
the day of trial. As supplementary evidence, the DMV submitted additional public

records related to the Hawaii conviction: the three sworn police reports, stating that

petitioner was weaving while driving; the breath test results; the notice of administrative

revocation; another copy of the case detail report; and a case printout describing the

violation as “Traffic Crime Moving.”

       At the hearing on the writ petition, petitioner objected to the court accepting as

evidence the Hawaii public records of petitioner’s 2004 conviction. The court held that

the certified copy of the case detail report and the supplemental public records were all

admissible evidence under Evidence Code section 1280 and, taken together with the

evidence established that petitioner was guilty of driving a car while intoxicated in 2004.

The trial court denied the writ petition in April 2013.

                                             III

                                       DISCUSSION

       The judgment in this action is based on the trial court’s application of the relevant

statutory provisions to the undisputed facts set forth in the administrative record.

Accordingly, we independently review the judgment. (Isaac v. Department of Motor

Vehicles (2007) 155 Cal.App.4th 851, 855; Moles v. Gourley (2003) 112 Cal.App.4th

1049, 1054; Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1519-1520.)

A. The Interstate Driver License Compact and the Foreign State Conviction

       California and Hawaii participate in the interstate Driver License Compact

(Compact). (Veh. Code, § 15000 et seq.; Haw. Rev. Stat., § 286C.) The Compact “‘is

intended to increase highway and street safety by enhancing the degree of compliance

                                              5
with laws governing the operation of motor vehicles in party states. [Citation.]’

[Citations.]” (Moles v. Gourley, supra, 112 Cal.App.4th at p. 1055.) Another important

purpose of the compact is to “[m]ake the reciprocal recognition of licenses to drive and

eligibility therefor more just and equitable by considering the overall compliance with

motor vehicle laws . . . as a condition precedent to the continuance or issuance of any

license . . . in any of the party states.” (Veh. Code, § 15020, subd. (b)(2); McDonald v.

Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 682.) The Compact is

liberally construed to achieve these purposes. (Moles, at p. 1055.)

       The Compact requires party states to report all convictions of an out-of-state driver

to the state that issued the driver a license to operate a motor vehicle and the report must

“describe the violation specifying the section of the statute, code, or ordinance violated.”

(Veh. Code, § 15022; McDonald v. Department of Motor Vehicles, supra, 77 Cal.App.4th

at p. 682.) Upon receiving a report of an out-of-state conviction from another party state,

“[t]he licensing authority in the home state . . . shall give the same effect to the conduct

reported . . . as it would if such conduct had occurred in the home state, in the case of a

conviction for: [¶] . . . [¶] (2) Driving a motor vehicle while under the influence of

intoxicating liquor . . . .” (Veh. Code, § 15023, subd. (a); McDonald, at pp. 682-683.)

Consistent with the Compact’s terms, Vehicle Code section 13352, subdivision (d),

requires the DMV immediately to suspend a driver’s license for a drunk driving

conviction based on out-of-state convictions: “A conviction of an offense in [another]

state . . . that, if committed in this state, would be a violation of Section 23152, is a

conviction of Section 23152 for the purposes of this section, . . . The department shall

                                               6
suspend or revoke the privilege to operate a motor vehicle pursuant to this section upon

receiving notice of that conviction.” (Veh. Code, § 13352, subd. (d); Draeger v. Reed,

supra, 69 Cal.App.4th at p. 1523.)

       The DMV must receive sufficient evidence establishing the out-of-state conviction

was under a statute substantially similar to a California statute punishing the same

conduct. (Isaac v. Department of Motor Vehicles, supra, 155 Cal.App.4th at p. 856.)

Specifically, the DMV may not suspend or revoke a driver’s license based on an out-of-

state conviction “‘unless “(1) the law of the reporting state pertaining to conviction is

‘substantially the same’ as California law pertaining to the conviction; (2) the description

of the violation from which the conviction arose is sufficient; and (3) the interpretation

and enforcement of the law of the reporting state are ‘substantially the same’ as the

interpretation and enforcement of the California law in question.” [Citations.]’

[Citation.]” (Ibid.; Moles v. Gourley, supra, 112 Cal.App.4th at p. 1055; Draeger v.

Reed, supra, 69 Cal.App.4th at p. 1521; see § 13363, subd. (b).)

B. The California and Hawaii Drunk Driving Statutes

       Vehicle Code section 23152 (section 23152) is the basic statutory provision

prohibiting any person from driving a motor vehicle in California while under the

influence of alcohol. (Isaac v. Department of Motor Vehicles, supra, 155 Cal.App.4th at

p. 856.) In pertinent part, that statute makes it unlawful for any person who “has 0.08

percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” (§ 23152,

subd. (b).) The essential conduct under section 23152 is driving a vehicle, which requires



                                              7
“‘evidence of volitional movement of a vehicle.’” (Draeger v. Reed, supra, 69

Cal.App.4th at p. 1521.)

       Unlike Hawaii, “California is among the minority of states that prohibit simply

‘driving’ a vehicle while intoxicated; most states prohibit ‘“driving or operating” or

simply “operating” a vehicle . . . , or “driving or being in [or ‘having’] actual physical

control” of a vehicle.’ [Citation.] The overwhelming majority of those statutes have

been interpreted as ascribing to the words ‘being in actual physical control of’ or

‘operating’ a vehicle ‘a broad scope not limited to or dependent on volitional movement

of a vehicle. . . .’ [Citation.]” (Isaac v. Department of Motor Vehicles, supra, 155

Cal.App.4th at p. 861.)

       Petitioner’s out-of-state conviction was for violating Hawaii Revised Statute

section section 291E-61:

       “(a) A person commits the offense of operating a vehicle under the influence of an

intoxicant if the person operates or assumes actual physical control of a vehicle:

       “(1) While under the influence of alcohol in an amount sufficient to impair the

person’s normal mental faculties or ability to care for the person and guard against

casualty; [¶] . . . [¶]

       “(3) With .08 or more grams of alcohol per two hundred ten liters of breath; or

       “(4) With .08 or more grams of alcohol per one hundred milliliters or cubic

centimeters of blood.”

       California’s statutory scheme required the DMV immediately to suspend

petitioner’s license based on the Hawaii conviction if (1) the Hawaii statute under which

                                              8
he was convicted is substantially similar to section 23152 and (2) the public records from

the Hawaii court and the Honolulu Police Department provided sufficient proof petitioner

was convicted for conduct that would violate section 23152. (Veh. Code, §§ 13352,

subds. (a) & (d), 15023, subd (a); Moles v. Gourley, supra, 112 Cal.App.4th at pp. 1056-

1057, 1059-1060.) Petitioner contends neither of these conditions was satisfied and

therefore the trial court erred in upholding his suspension. We reject that contention for

the reasons discussed below.

C. Substantially Similar Statutes

       To determine whether the California and Hawaii statutes are substantially similar

we must examine the conduct the statutes prohibit, not the elements of the offenses the

statutes describe. (Draeger v. Reed supra, 69 Cal.App.4th at pp. 1521-1522; see

McDonald v. Department of Motor Vehicles, supra, 77 Cal.App.4th at pp. 688-689.) The

California statute prohibits driving a vehicle with a blood alcohol content of 0.08 percent

or higher while the Hawaii statute prohibits both operating or assuming actual physical

control of a vehicle with a blood alcohol content of 0.08 percent or higher. The Hawaii

statute therefore covers a broader range of conduct. (Draeger, at pp. 1522-1523 [Florida

statute]; see Moles v. Gourley, supra, 112 Cal.App.4th at p. 1058 [Virginia statute].)

       The California and Hawaii statutes, however, both make it unlawful for a person

to drive with a blood alcohol content of 0.08 percent or higher. Accordingly, the two

statutes are substantially similar as they relate to driving while under the influence of

alcohol. Petitioner’s challenge therefore turns on whether the Hawaii public records

submitted by the DMV clearly show his Hawaii conviction was based on driving a

                                              9
vehicle, as opposed to assuming actual physical control of a vehicle. (Draeger v. Reed,

supra, 69 Cal.App.4th at p. 1522; see Moles v. Gourley, supra, 112 Cal.App.4th at pp.

1058, 1060.) The California and Hawaii statutes are substantially similar “where the

description of the violation from which the conviction arose clearly shows the conviction

was based on drunk driving.” (Draeger, at p. 1522.)

D. The Hawaii Public Records

       The report or record of a foreign conviction must contain proof that the person was

actually convicted of a crime based on conduct that would violate section 23152;

evidence of the offense alone is not sufficient. (Moles v. Gourley, supra, 112

Cal.App.4th at p. 1059; Draeger v. Reed, supra, 69 Cal.App.4th at p. 1523.) Draeger,

Moles, and Isaac explain what records are sufficient to show an out-of-state conviction

was based on conduct outlawed by section 23152.

       In Draeger, the DMV relied solely on a police report and traffic citation to

suspend a driver’s license based on his conviction under a Florida statute that outlawed

both driving and being in actual physical control of a vehicle while under the influence of

alcohol. The Court of Appeal affirmed the trial court’s decision overturning the

suspension because the DMV failed to provide any evidence the driver’s conviction was

based on conduct that would violate section 23152. The Draeger court explained the

DMV could not rely on the police report because it was not part of the record of

conviction. As for the traffic citation, the Draeger court explained the DMV could

consider it as part of the record of conviction, but the citation standing alone was merely

the charging document and therefore did not establish the driver was convicted of an

                                             10
offense. The DMV also needed the Florida court docket or some other record showing

the driver was actually convicted of driving under the influence in Florida but the DMV

failed to present that evidence. (Draeger, supra, 69 Cal.App.4th at pp. 1522-1523.)

       In Moles, the Court of Appeal upheld the DMV’s suspension based on the driver’s

conviction under a Virginia statute that made it unlawful for a person to drive or operate a

motor vehicle while under the influence of alcohol. The driver argued the Virginia

records on which the DMV relied failed to show he was convicted of driving while under

the influence, as opposed to Virginia’s broader prohibition against operating a vehicle

while under the influence. The Moles court rejected that argument and found the

Virginia records identifying “‘driving while intox., 1st’ as the ‘reason of conviction’”

adequately established the driver was convicted for driving under the influence, as

opposed to merely operating a vehicle under the influence. (Moles v. Gourley, supra, 112

Cal.App.4th at pp. 1059-1060.)

       Finally, in Isaac, the DMV suspended a driver’s license based on his conviction

under an Ohio statute that outlawed operating a vehicle while under the influence of

alcohol. The driver argued his suspension should be overturned because the DMV failed

to present any evidence showing he was convicted of an offense that involved driving a

vehicle, as opposed to merely operating one. (Isaac v. Department of Motor Vehicles,

supra, 155 Cal.App.4th at pp. 856-857.) The Isaac court rejected that argument because

the traffic citations charging the driver with operating a vehicle while under the influence

also charged him with (1) failing to reasonably control his vehicle because he “was

operating his vehicle in a ‘weaving course outside marked lines’” and (2) “‘driving’”

                                             11
with a suspended license. The Isaac court found these additional charges supported the

reasonable inference that the driver was driving the vehicle, as opposed to merely

operating it. (Id. at pp. 857-858, 861-862.)

       The Isaac court also explained the rules of evidence ordinarily applicable in civil

and criminal proceedings do not apply in a DMV administrative hearing. The court

concluded the DMV could consider the statements in the citations because they

constituted part of the Ohio record of conviction as statements lodged in the citation or

charging document. (Isaac v. Department of Motor Vehicles, supra, 155 Cal.App.4th at

pp. 862-863.) The Isaac court emphasized the governing standards in an administrative

proceeding differed from those found in a criminal trial: “[W]e must keep in mind the

vast difference between the protections afforded a driver whose license may be

suspended as the result of an administrative determination by DMV, which may properly

be made on the basis of the record of a foreign conviction, and the protections afforded a

criminal defendant, who has a due process right to be tried only upon competent evidence

properly offered and admitted at trial which meets the People’s burden to prove guilt

beyond a reasonable doubt [citation], and to be sentenced in accordance with a highly

protective regime.” (Id. at p. 864.) Otherwise, the strict evidentiary standards the driver

sought to impose on the DMV “would render the Compact and implementing provisions

of our Vehicle Code nugatory insofar as they apply to drunk driving convictions in those

states party to the Compact that make it unlawful to ‘operate’ or ‘physically control’

rather than ‘drive’ a vehicle while under the influence of alcohol or drugs, particularly

when, as here, the conviction is based on a plea of guilty or nolo contendere.” (Ibid.)

                                               12
       Based on these controlling standards, we conclude the court-certified case detail

report and the supplemental Hawaii public records, including the citation and three sworn

police reports, provided adequate evidence to support the DMV’s determination

petitioner was convicted of driving a vehicle while under the influence. The Honolulu

police reports showed petitioner was arrested for weaving while driving, as well as

exhibiting other criteria of intoxication. Petitioner pleaded guilty to “DUI BY

IMPAIRMT OR .08 BREATH” and “Traffic Crime Moving.” If petitioner was simply in

actual physical control of his vehicle, he could have pleaded guilty to that conduct in

violation of the same statute, but he did not do so.

       There is no material difference between the facts in this case and the facts in

Moles. Both the Virginia statute at issue in Moles and the Hawaii statute at issue here

outlawed driving and either operating or controlling a vehicle while under the influence

of alcohol. The Moles court concluded the driver’s guilty pleas adequately established

the driver actually drove while intoxicated, rather than merely operating a vehicle while

intoxicated, and therefore upheld the DMV’s suspension. The Hawaii public records here

are comparable to those in Moles and likewise support the DMV’s decision to suspend

Petitioner’s driving privileges.

       Petitioner’s arguments about the admissibility of the Hawaii public records seek to

impose an evidentiary standard on the DMV that does not apply in the administrative

context in which the DMV suspended his driving privileges. As explained in Isaac, the

evidentiary rules applicable in civil and criminal proceedings do not apply in DMV

administrative proceedings to suspend a person’s driving privileges. (Isaac v.

                                             13
Department of Motor Vehicles, supra, 155 Cal.App.4th at pp. 862-863.) Petitioner does

not dispute that the certified case detail report is part of the record of the Hawaii

conviction. The supplemental public records, including the sworn police reports, are also

admissible in an administrative hearing even if they were not certified as required in a

criminal proceeding. (Evid. Code, §§ 1280, 11513, subd. (c); Isaac, at p. 863.) The

foregoing documents establish the DMV’s findings that petitioner was convicted in

Hawaii based on conduct that would violate section 23152, requiring his license

suspension.

                                              IV

                                       DISPOSITION

       We affirm the judgment. The DMV shall recover its costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  CODRINGTON
                                                                                           J.

We concur:


McKINSTER
                 Acting P. J.


KING
                           J.




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