Filed 9/15/14 Vanhouten v. Dept. of Motor Vehicles CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


BRIAN VANHOUTEN,

         Plaintiff and Respondent,                                       E057310/E057341

v.                                                                       (Super.Ct.Nos. CIVRS1200345
                                                                                     & CIVRS1200563)
DEPARTMENT OF MOTOR VEHICLES,
                                                                         OPINION
         Defendant and Appellant.

MARYANN GARDELLA,

         Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES,

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,

Judge. Reversed.

         Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Senior Assistant

Attorney General, and Elisabeth Frater, Deputy Attorney General, for Defendant and

                                                             1
Appellant.

       Law Offices of Michael A. Scafiddi, Inc., Michael A. Scafiddi and Benjamin R.

Cates for Plaintiffs and Respondents.

                                               I

                                     INTRODUCTION

       These two consolidated appeals concern the issue of telephonic testimony about

blood alcohol content (BAC) at an administrative hearing involving a driver’s license

suspension. Appellants are the Department and the Director of Motor Vehicles (DMV).

Respondents are Brian Gene Vanhouten and Maryann Gardella, the drivers who were the

subjects of the suspension hearings.

       Vehicle Code section 13353.21 provides for immediate suspension of the privilege

to operate a motor vehicle “when the person had 0.08 percent or more, by weight, of

alcohol in his or her blood.” (§ 13353.2, subd. (a)(1).) At the administrative hearing,

Vanhouten objected to telephonic testimony from the arresting officer about the results of

the breath test administered by the officer. Gardella objected to telephonic testimony by

a criminalist about the results of BAC analysis. The administrative hearing officers

allowed the telephonic testimony of both witnesses and Vanhouten and Gardella’s

licenses were suspended.

       After respondents each filed an administrative writ petition, the superior court

       1   All statutory references are to the Vehicle Code unless otherwise identified.



                                              2
granted the writs, deciding it was an abuse of discretion to admit the telephonic

testimony. The DMV appeals, arguing it was not an error to admit telephonic testimony

and, in the alternative, there was substantial evidence to support Gardella’s conviction.

Finally, the DMV argues the correct remedy was not reversal but to remand the matters to

the administrative hearing officer. We agree that the superior court erred in issuing writs

requiring the DMV to restore respondents’ licenses. We reverse the judgment and affirm

the license suspensions.

                                             II

                   FACTUAL AND PROCEDURAL BACKGROUND

A. Gardella Facts

1. Gardella’s Arrest

       On June 19, 2011, Gardella was driving a motor vehicle and weaving outside the

traffic lane. When Deputy Wijnhamer contacted Gardella, he observed that she displayed

bloodshot and watery eyes, the odor of an alcoholic beverage, slurred speech, and an

unsteady gait. In addition, Gardella failed to perform satisfactorily on the field sobriety

tests. The deputy arrested Gardella on suspicion of driving while under the influence of

alcohol. (§ 23152.) According to the sheriff’s scientific investigations division report,

Gardella’s BAC was 0.27 percent.

2. Gardella’s DMV Administrative Hearing

       A DMV Driver Safety Officer, A. Diaz, conducted the administrative per se (APS)

hearing. The physical evidence included the three-page sworn statement (DS 367),

                                              3
prepared by Deputy Wijnhamer, and the BAC report. The report identifies Paulette

Saunchez as the forensic alcohol analyst. Before the hearing, Gardella had objected by

letter “to a telephonic hearing or any testimony of a telephonic nature,” citing

Government Code section 11440.30, subdivision (b), and California Code of Regulations,

Title 13, section 115.07 (section 115.07). The DMV subpoenaed Saunchez to testify but

she was not available to testify in person due to staffing problems and had been instructed

by her supervisor not to appear. The hearing officer allowed Saunchez to testify by

telephone.

       Analyst Saunchez testified that Gardella’s blood sample was analyzed on July 8,

2011; the result of 0.27 percent BAC was reported on the same date. The blood sample

was analyzed pursuant to legal requirements and the testing equipment was in proper

working order.

       Gardella’s attorney stated that—based on his standing objection—he was not

asking Analyst Saunchez any substantive questions, electing instead to ask about the

reasons she could not appear in person. Saunchez described how her work was affected

by the lack of proper staffing for the laboratory, numerous subpoenas and court

appearances, and a severe backlog of cases.

       In the notification of findings and decision, the hearing officer noted counsel’s

objection to the telephonic testimony, and explained she allowed the testimony because

of the understaffing, time constraints, and back log at the laboratory, and because Analyst




                                              4
Saunchez had been advised by her supervisors that she was not required to appear in

person at DMV hearings.

       Hearing officer Diaz found the analyst was credible and consistent in her

telephonic testimony. The hearing officer also found that Deputy Wijnhamer had

reasonable cause to believe that Gardella was driving while under the influence; that he

placed Gardella under lawful arrest; and that Gardella was driving a motor vehicle with a

BAC of 0.08 percent or greater. The DMV suspended Gardella’s license for four months.

3. Gardella’s Superior Court Hearing

       Gardella filed an administrative writ petition in superior court, seeking to set aside

the DMV’s suspension order and contending that the introduction of Analyst Saunchez’s

telephonic testimony over objection was an error of law that deprived Gardella of an

opportunity to cross-examine a state witness in person. The DMV opposed the petition

on the grounds that (1) Government Code section 11440.30 is inapplicable to DMV

license suspension hearings; (2) assuming section 115.07 prohibited telephonic testimony

over objection, Gardella failed to demonstrate that she suffered prejudice sufficient to

overturn the decision of the hearing officer; and (3) the blood test results admitted at the

APS hearing were sufficient to establish that Gardella had been driving with a BAC

above .08 percent.

       Based on C & C Partners, Ltd. v. Department of Industrial Relations (1999) 70

Cal.App.4th 603, 612, the DMV argued to the court that allowing telephonic testimony

over objection was not an abuse of discretion. Gardella responded that the error was not

                                              5
harmless because the hearing officer was unable to assess the credibility of the witness.

       Superior court judge, Joseph R. Brisco, found Gardella was prejudiced “because

she lost the hearing.” The superior court granted the writ of mandate, determining that it

was an abuse of discretion for the DMV hearing officer to admit the telephonic

testimony, stating: “Without Ms. Saunchez’s testimony, the only evidence of Petitioner’s

blood alcohol content is inadmissible, therefore, Petitioner’s suspension is set aside.”

B. Vanhouten Facts

1. Vanhouten’s Arrest

       On April 16, 2011, Deputy Clark responded to a traffic collision involving

Vanhouten, who admitted driving and consuming alcohol, exhibited the objective signs

of intoxication and failed adequately to perform the field sobriety tests. Vanhouten

submitted to a chemical breath test, which twice resulted in a BAC of 0.13 percent,

although the deputy failed to record the results on the chemical test portion of the DS-

367. Deputy Clark prepared the DS-367; the DUI Evaluation/Arrest Report; the sheriff's

department report; the National Draeger Alcotest 7110 MKIII-C Precautionary Checklist,

with an attached copy of the printout of the Alcotest; and a traffic collision report.

2. Vanhouten’s DMV Administrative Hearing

       The DMV Driver Safety Officer, L.W. Hunt, conducted an APS hearing, relying

upon the DS-367, the DUI arrest report, and the Alcotest checklist, with a photocopy of

the printout of the chemical test. Before the APS hearing, Vanhouten objected by letter

“to a telephonic hearing or any testimony of a telephonic nature.” At the APS hearing,

                                              6
Vanhouten’s lawyer renewed the objection to the telephonic testimony of Deputy Clark

based on the right to cross-examine the officer in person and on section 115.07 and

Government Code section 11440.30, subdivision (b). The hearing officer overruled the

objection, explaining that the DMV and the sheriff’s department had agreed to allow

telephonic testimony in suspension hearings because it would cost $150 for the deputy to

appear personally at the DMV hearing.

       Deputy Clark answered the hearing officer’s questions about his omission on the

“chemical test” portion of the DS-367, documenting the two breath test results of 0.13

percent. During cross-examination, Deputy Clark admitted that he did not know whether

the breath device had been calibrated or maintained in compliance with regulations.

However, he always confirms the equipment is in working order.

       Hearing officer Hunt found that Deputy Clark had reasonable cause to believe

Vanhouten was driving while under the influence; that he placed Vanhouten under lawful

arrest; and that Vanhouten was driving a motor vehicle with a BAC of 0.08 percent or

greater. The hearing officer also found that Deputy Clark had complied with testing

standards and that he conducted the breath test in the process of his normal duties and

within testing guidelines. The hearing officer noted that Vanhouten did not present any

evidence to suggest that the testing equipment was not working properly. The DMV

suspended Vanhouten’s license for one year.

3. Vanhouten’s Superior Court Hearing

       Vanhouten filed an administrative writ petition asking the superior court to set

                                             7
aside the DMV’s suspension order on the ground that the DMV had committed an error

of law under section 115.07, subdivision (b), and Government Code section 11440.30. In

addition, Vanhouten contended he was prejudiced by the telephonic testimony because

the hearing officer could not assess Deputy Clark’s credibility.

       The DMV opposed the petition, arguing that, notwithstanding any error, the

chemical test results were valid and Vanhouten failed to demonstrate prejudice or

substantial injury. The DMV asserted it had satisfied its burden under section 13353.2 to

prove that Vanhouten had a BAC greater than .08 percent.

       At Vanhouten’s writ hearing, held in the week following the Gardella writ hearing,

Judge Brisco noted the similarities between the two cases. Judge Brisco granted the writ,

determining “it was an abuse of discretion for the DMV Hearing Officer to admit the

telephonic testimony of the investigating officer. The fact that the DMV failed to pay the

$150.00 appearance fee to the Sheriff’s Department did not vest the Hearing Officer with

the authority to ignore the law over Petitioner’s valid objection. Therefore, Petitioner’s

suspension is set aside.”

                                             III

                     THE PETITIONS FOR WRIT OF MANDATE

A. Overview of Statutory Scheme

       The driver’s license suspension scheme, often referred to as the administrative per

se law, requires a person—who is determined to have been driving with a prohibited

amount of alcohol in his or her blood—to have driving privileges suspended without the

                                             8
need for an actual conviction for a criminal offense: “‘[T]he express legislative purposes

of the administrative suspension procedure are: (1) to provide safety to persons using the

highways by quickly suspending the driving privilege of persons who drive with

excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a

prompt administrative review of the suspension; and (3) to place no restriction on the

ability of a prosecutor to pursue related criminal actions. [Citations.]’ [Citation.]” (Lake

v. Reed (1997) 16 Cal.4th 448, 454.)

       If a person is arrested for driving under the influence (§ 23152) and a chemical test

reveals a BAC of 0.08 percent or greater, the officer must serve the person with a notice

of order of suspension of the person’s driving privilege, confiscate the person’s driving

license, and issue a temporary license, and send the DMV a “sworn report of all

information relevant to the enforcement action, including information that adequately

identifies the person, a statement of the officer’s grounds for belief that the person

violated Section . . . 23152 . . . [and] a report of the results of any chemical tests that were

conducted on the person . . . .” (§§ 13380, subds. (a), (b); 13382.)

       If a license suspension is imposed, the licensee may request an administrative

hearing on the matter. (§§ 13557, 13558, and 14100.) At the hearing, the DMV bears the

burden of proving by a preponderance of the evidence that the peace officer had

reasonable cause to believe that the person had been driving a motor vehicle in violation

of section 23152 and the person was arrested. (§§ 13557, subd. (b)(1)(A), (B).)




                                               9
       The evidentiary standards are somewhat relaxed. At the administrative hearing,

the DMV “shall consider its official records and may receive sworn testimony.”

(§ 14104.7.) In other respects, Government Code section 11500 et seq., which applies to

administrative hearings generally, governs the admission of evidence. (§ 14112, subd.

(a); Lake v. Reed, supra, 16 Cal.4th at p. 458; Molenda v. Department of Motor Vehicles

(2009) 172 Cal.App.4th 974, 987.) An administrative hearing before the DMV “does not

require the full panoply of the Evidence Code provisions used in criminal and civil

trials.” (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.)

“The hearing need not be conducted according to technical rules relating to evidence and

witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is

the sort of evidence on which responsible persons are accustomed to rely in the conduct

of serious affairs, regardless of the existence of any common law or statutory rule which

might make improper the admission of the evidence over objection in civil actions. [¶]

. . . Hearsay evidence may be used for the purpose of supplementing or explaining other

evidence but over timely objection shall not be sufficient in itself to support a finding

unless it would be admissible over objection in civil actions.” (Gov. Code, § 11513,

subds. (c), (d).)

       As noted, the Department bears the burden of proof at the hearing. (Daniels v.

Department of Motor Vehicles (1983) 33 Cal.3d 532, 536; Santos v. Department of Motor

Vehicles (1992) 5 Cal.App.4th 537, 549.) Since a driver’s license is a protectable

property interest, there must be a showing by “substantial competent evidence of facts

                                             10
supporting the suspension.” (Davenport v. Department of Motor Vehicles (1992) 6

Cal.App.4th 133, 139.)

         The driver may file a petition for review of the hearing officer’s decision in the

superior court. (§ 13559, subd. (a).) “If the court finds that the [DMV] exceeded its

constitutional or statutory authority, made an erroneous interpretation of the law, acted in

an arbitrary and capricious manner, or made a determination which is not supported by

the evidence in the record, the court may order the [DMV] to rescind the order of

suspension or revocation and return, or reissue a new license to, the person.” (Ibid.)

Under the sufficiency of the evidence prong, the “court is required to determine, based on

its independent judgment, ‘“whether the weight of the evidence supported the

administrative decision.”’ [Citation.]” (Lake v. Reed, supra, 16 Cal.4th at pp. 456-457.)

“The administrative findings come before the superior court with a ‘strong presumption

of correctness,’ and the burden rests on the petitioner to establish administrative error.

[Citation.]” (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562,

1568.)

         On appeal of a trial court’s sufficiency of the evidence determination, “we ‘need

only review the record to determine whether the trial court’s findings are supported by

substantial evidence.’ [Citation.] ‘“We must resolve all evidentiary conflicts and draw

all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.]

Where the evidence supports more than one inference, we may not substitute our

deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual

                                               11
findings only if the evidence before the trial court is insufficient as a matter of law to

sustain those findings. [Citation.]”’ [Citation.]” (Lake v. Reed, supra, 16 Cal.4th at p.

457.) We review the trial court’s evidentiary rulings for abuse of discretion. (Miyamoto

v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1217.) Where the facts

present a question of law, we conduct a de novo review. (Park v. Valverde (2007) 152

Cal.App.4th 877, 881; Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th

161, 174.)

B. Admission of Telephonic Testimony

       In its opening brief, the DMV argued that Government Code section 11440.302

does not apply to DMV license suspension hearings, which are controlled by Vehicle

Code sections 14100 through 14112 (Serenko v. Bright (1968) 263 Cal.App.2d 682, 689)

and California Code of Regulations, Title 13, sections 115.01 through 115.10.3

Respondents offer no contrary argument in their respondents’ brief.




       2 Government Code section 11440.30 provides: “(a) The presiding officer may
conduct all or part of a hearing by telephone, television, or other electronic means if each
participant in the hearing has an opportunity to participate in and to hear the entire
proceeding while it is taking place and to observe exhibits. [¶] (b) The presiding officer
may not conduct all or part of a hearing by telephone, television, or other electronic
means if a party objects.”

       3Sections 115.01 through 115.10 are made applicable to Vehicle Code sections
14100 through 14112 by section 115.01.



                                              12
       Instead, the parties focus their dispute on the meaning and application of section

115.07, the regulation which expressly addresses the issue of telephonic testimony at an

APS hearing:

       “(b) The hearing officer shall not conduct all or part of a hearing by telephone,

television, or other electronic means, if a party objects.

       “(c) Any objection to conducting all or part of a hearing by telephone, television,

or other electronic means must be made at the time the hearing is requested or

scheduled.”

       Respondents contend the regulation prohibiting a telephone hearing is absolute if

there is an objection. The DMV responds that the Director of Motor Vehicles has the

power to enforce or not to enforce regulations governing activities of the department.

       Subdivision (a) of section 1651 provides: “The director may adopt and enforce

rules and regulations as may be necessary to carry out the provisions of this code relating

to the department.” (§ 1651 subd. (a); Yeoman v. Department of Motor Vehicles (1969)

273 Cal.App.2d 71, 79.) The DMV argues this language gives the Director the discretion

not to enforce its regulations if necessary to carry out the goal of holding efficient and

speedy license suspension hearings in the enforcement of the administrative per se laws

and public safety. (Gikas v. Zolin (1993) 6 Cal.4th 841, 847, citing Bell v. Department of

Motor Vehicles (1992) 11 Cal.App.4th 304, 312.) The DMV extrapolates that, when

suspending the license of a suspected drunk driver, the Director can decide whether or

not to allow telephonic testimony in spite of the regulation.

                                              13
       These cases, however, do not involve the exercise of discretion by the Director not

to enforce a regulation. There is no evidence in the record that the Director has adopted a

policy against the enforcement of section 115.07. The Director did not decide, based on

necessity, not to carry out the provisions of the code, or the related regulations, of the

DMV. Instead, two individual hearing officers decided on an ad hoc basis to allow

telephonic testimony over respondents’ objections based on the limited availability of the

two witnesses. For that reason, section 1651 does not seem applicable here.

       Nevertheless, we acknowledge the authority, as cited by the DMV, holding that

section 115.07 is not mandatory: “When a statute does not provide any consequence for

noncompliance, the language should be considered directory rather than mandatory.

[Citations.] The directory and mandatory designations do not refer to whether a

particular statutory requirement is permissive or obligatory, but simply denote whether

the failure to comply with a particular procedural step will invalidate the governmental

action to which the procedural requirement relates. [Citation.]” (In re C. T. (2002) 100

Cal.App.4th 101, 111; California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th

231, 257; City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 923; California

Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145;

Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1927-1928.) If something is deemed

directory, then noncompliance will not invalidate the action. (People v. Superior Court

(Small) (2008) 159 Cal.App.4th 301, 308.)




                                              14
       Furthermore, this court may consider the impact of an adverse interpretation of

section 115.07 on public policy, for “‘[w]here uncertainty exists consideration should be

given to the consequences that will flow from a particular interpretation.’” (Mejia v.

Reed (2003) 31 Cal.4th 657, 663, quoting Dyna-Med, Inc. v. Fair Employment &

Housing Com. (1987) 43 Cal.3d 1379, 1387.) Typically, a requirement is deemed

directory when it is designed to make proceedings orderly, systematic, and speedy and

when the failure to comply does not injure the interested party. (Skelly Estate Co. v. City

and County of San Francisco (1937) 9 Cal.2d 28, 33; Francis v. Superior Court of Los

Angeles County (1935) 3 Cal.2d 19, 28.)

       Applying these principles, we conclude that the hearing officers’ failure to follow

section 115.07 did not warrant reversal of their decisions to suspend the respondents’

driver’s licenses. Section 115.07 may be interpreted as directive, not mandatory, and the

public policy considerations identified by the hearing officers provided sound reasons for

not requiring the personal appearances of the laboratory analyst and the deputy sheriff.

In these circumstances, practicality and common sense justify departing from a regulation

based on a scarcity of resources. Furthermore—and possibly most compelling—error

does not warrant reversal where there is no identifiable prejudice to the respondents.

       The case C & C Partners, Ltd. v. Department of Industrial Relations, supra, 70

Cal.App.4th at page 6120—cited by the DMV in the Gardella hearing—held that

telephonic testimony over objection is not prejudicial and therefore not an abuse of

discretion. Administrative hearings are not necessarily infirm because of telephonic

                                            15
testimony. The C & C court described such hearings as “‘a pragmatic solution, made

possible by modern technology, which attempts to reconcile the problem of

geographically separated adversaries with the core elements of a fair adversary hearing:

the opportunity to cross-examine adverse witnesses and to rebut or explain unfavorable

evidence.’” (Ibid., citing Slattery v. Unemployment Ins. Appeals Bd. (1976) 60

Cal.App.3d 245, 251.) In James v. City of Coronado (2003) 106 Cal.App.4th 905, 911-

913, the court held that due process rights to cross-examine and confront witnesses do not

attach to every administrative hearing. To satisfy due process “‘a formal hearing, with

full rights of confrontation and cross-examination is not necessarily required.’” (Id.,

citing Saleeby v. State Bar (1985) 39 Cal.3d 547, 565.)

       Gardella and Vanhouten bore the burden to prove more than that they “lost” the

APS hearings. The law demands that they establish that they did not receive a

meaningful opportunity to be heard in a meaningful manner. (See Fukuda v. City of

Angels (1999) 20 Cal.4th 805, 817, citing Campbell v. Board of Dental Examiners (1971)

17 Cal.App.3d 872.) Respondents contend they were denied a meaningful hearing

because the hearing officer could not “observe the witness, look the witness in the eye,

notice nervous reactions or fidgeting and determine credibility based on all observations.”

Respondents also protest that the witnesses could testify by reading their reports rather

than testifying based on their independent recollection.

       Neither Gardella nor Vanhouten challenged the witnesses’ credibility so there was

no basis on which to claim error by the hearing officer. While Vanhouten’s counsel did

                                             16
choose to cross-examine Deputy Clark at the APS hearing, he still based his allegations

of prejudice on lack of a meaningful opportunity to cross-examine the officer in person

without explaining what cross-examination would accomplish. Thus, the taking of

telephonic testimony was a harmless error because Gardella and Vanhouten were

afforded the opportunity for a meaningful hearing.

       Additionally, Analyst Saunchez’s testimony by telephone did not impair

Gardella’s ability to rebut the chemical test result in the laboratory report—a report that

was already admissible under Evidence Code section 1280 under the public employee

records exception to the hearsay rule. The report was sufficient in itself to support the

DMV hearing officer’s finding that Gardella was driving a motor vehicle with a BAC in

excess of 0.08 percent. (Molenda v. Department of Motor Vehicles, supra, 172

Cal.App.4th at pp. 987-988.)

       The record on appeal does not offer any evidence establishing why the two

witnesses had to appear in person or how their telephonic appearances caused prejudice

to respondents. Therefore, any mistake in admitting telephonic testimony apparently did

not affect Gardella and Vanhouten’s constitutional right to a meaningful DMV hearing.

(Cal. Const., article VI, § 13, Leal v. Gourley (2002) 100 Cal.App.4th 963, 969; Reimel v.

House (1969) 268 Cal.App.2d 780, 787-787.)




                                             17
                                           IV

                                     DISPOSITION

       It was harmless error for the DMV hearing officers to admit telephonic testimony

over objection. We reverse the judgment and order the trial court to deny the writ

petitions.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              CODRINGTON
                                                                                      J.

We concur:


RICHLI
                Acting P. J.


MILLER
                          J.




                                           18
