California DMV Caselaw
Acuna v. Gourley
Court of Appeal, Fourth District, Division 1, California.
Alexander ACUNA, Petitioner and Respondent,
v.
Steven GOURLEY, as Director, etc., Defendant and Appellant.
No. D039392.
(Super.Ct.No. M-0075).
April 9, 2003.
Motorist filed petition for writ of administrative mandate, seeking to overturn suspension of his driver's license for driving with a blood alcohol level of 0.08 percent or more. The Superior Court, Imperial County, No. M-0075, Jeffrey B. Jones, J., granted petition. Department of Motor Vehicles (DMV) appealed. The Court of Appeal, O'Rourke, J., held that motorist did not exhaust his administrative remedies, due to his failing to raise probable cause issue before administrative tribunal, and thus judicial review of issue was foreclosed.
Reversed with directions.
West Headnotes
KeyCite Notes
48A Automobiles48AIV License and Regulation of Chauffeurs or Operators
48Ak144 Suspension or Revocation of License
48Ak144.2 Procedure
48Ak144.2(2) Judicial Remedies and Review in General
48Ak144.2(2.1) k. In General. Most Cited Cases
By failing to raise the foundational challenge to arresting officer's sworn statement before administrative tribunal, motorist did not exhaust his administrative remedies, as was required to maintain action for writ of administrative mandate, which sought to overturn suspension of his driver's license for driving with a blood alcohol level of 0.08 percent or more, on the ground arresting officer's sworn statement was insufficient to establish probable cause for a lawful detention. West's Ann.Cal.Vehicle Code § 13353.2; West's Ann.Cal.Vehicle Code § 13558.
APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Reversed with directions.
T. Michelle Laird, Office of the State Attorney General, San Diego, CA, for Defendant-Appellant.
O'ROURKE, J.
*1 The Department of Motor Vehicles (the DMV) appeals from a judgment granting respondent Alexander Acuna's petition for writ of mandate, in which Acuna sought to overturn suspension of his driver's license for driving with a blood alcohol level of 0.08 percent or more. (Veh.Code, §§ 13353.2, 13558.) The superior court granted the petition on the ground the arresting officer's sworn statement was insufficient to establish probable cause for a lawful detention. The DMV contends the trial court erred by (1) granting the writ based on an argument not raised by Acuna either at the administrative hearing or before the trial court; (2) ruling the arresting officer's sworn statement did not contain sufficient facts to support a finding Acuna was lawfully detained; and (3) refusing to rely upon information contained in the officer's unsworn report to expand on facts reported in the officer's sworn report. We agree that by failing to raise the foundational issue before the administrative tribunal, Acuna did not exhaust his administrative remedies. Accordingly, we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 31, 2001, Acuna was arrested by California Highway Patrol Officer R. Gonzales for driving under the influence of alcohol. Officer Gonzales prepared a sworn statement on DMV form DS 367 describing the facts supporting probable cause for making the arrest, in which he averred Acuna “made two left turns and drove across double yellow lines [in] violation of [Vehicle Code section] 21460 [subdivision] (a)....” In listing Acuna's objective symptoms of intoxication, the officer checked boxes for “Bloodshot/watery eyes,” “Odor of alcoholic beverage,” “Unsteady gait,” and “Slurred speech.” He also noted Acuna “failed F.S.T.s [field sobriety tests].” Officer Gonzales issued an order suspending Acuna's driver's license.
Acuna sought an administrative hearing. At the hearing, the DMV offered, and the hearing officer admitted over hearsay objections, the DS 367, the order of suspension, the officer's arrest report, and Acuna's driving record. Acuna also unsuccessfully objected to the DS 367 and Officer Gonzales's arrest report on the ground both documents lacked authentication because they were not signed and the test results appearing on the DS 367 had been altered by some unknown person.FN1 Acuna did not testify, and the DMV did not call any witnesses.
FN1. In challenging admission of the DS 367, Acuna's counsel stated: “Exhibit 1 is a, a document which cannot be admitted, although I'm sure it will be admitted, uh, because, uh, it, first of all, it is not signed by anybody, it's not authenticated by anybody. It says to sign under [p]enalty of [p]erjury. I'm sure it doesn't matter much for this particular [h]earing, and it's not signed for, or numbered in here which indicate [ sic ] that a test was taken. There are results, they are results of the (INAUDIBLE) stop (INAUDIBLE) put them. And I don't know who in the world actually changed those results. I think probably it was another [h]earing [o]fficer. I don't know, but I know, I don't know if it was the police officer, and I don't know that it was, uh, the the [ sic ] Defendant, and I certainly-the only thing I know is that it wasn't me. Uh, but without that, you can't use those to establish what his blood alcohol level is. And certainly, it has to be signed, and, of course, it's not signed. Uh, without that, you couldn't possibly admit it. Of course, you don't have in here at all a printout of what happened to determine anything. So with that in mind, Ma‘am, I have nothing further. Submitted.”
The administrative hearing officer reimposed Acuna's driver's license suspension. She determined Officer Gonzales had reasonable cause to believe Acuna was driving a motor vehicle while under the influence of alcohol; that Acuna was lawfully arrested for a violation of Vehicle Code section 23152; and he was driving a vehicle while he had 0.08 percent or more by weight of alcohol in his blood. As for Acuna's challenge to the DS 367, the hearing officer made the following additional finding: “Counsel's contention that Exhibit # 1 [the DS 367] is not signed and the alterations to the breath test results invalidate the document, is without merit. No evidence was presented indicating Officer Gonzales didn't sign the document or that his printed name isn't his legal signature. The breath test results and time of test are confirmed in Exhibit # 3 [the arrest report].”
*2 Acuna petitioned the superior court for a writ of administrative mandate. In his petition, he challenged the suspension order on grounds there was no reasonable cause for Officer Gonzales to believe he had been driving a motor vehicle in violation of Vehicle Code sections 23152 or 23153; the arrest was without probable cause because “[n]o violation was committed in [Officer Gonzales's] presence”; and there was no credible evidence presented at the administrative hearing that Acuna was driving with more than 0.08 alcohol in his blood. After continuing the hearing on the matter,FN2 the superior court granted a writ overturning the administrative decision to suspend Acuna's driving privilege based on Solovij v. Gourley (2001) 87 Cal.App.4th 1229, 105 Cal.Rptr.2d 278 ( Solovij ), although, as the court acknowledged and the DMV pointed out, the probable cause issue had not been raised at the administrative hearing and the case had not been cited or discussed by either party. Relying on Solovij, the court said: “The probable cause for the initial stop or detention has to be contained in the sworn statement and cannot be supplied by the unsworn police reports which are otherwise acceptable to show that the person was driving under certain circumstances or with a blood alcohol greater than a certain level.... Now, here in the sworn declaration ..., all that's stated is, ‘Driver made two left turns and drove across double yellow lines, violation of 21460(a) Vehicle Code.’ But it is not necessarily illegal to turn left across double yellow lines. In fact, there are a host of situations where that is legal. So that doesn't state factual, probable cause for the stop. And the conclusionary statement ‘in violation of 21460(a)’ is the problem in Solovij, and of course Solovij says that you can't then turn to the unsworn police report to flesh out the probable cause.” The DMV appeals.
FN2. The superior court granted the continuance after Acuna's counsel represented he had not received the DMV's points and authorities in opposition to the writ petition. Thereafter, Acuna for the first time filed a memorandum of points and authorities in support of his petition. The DMV does not challenge the superior court's continuance order or the timeliness of Acuna's submission.
DISCUSSION
The DMV contends Acuna waived any right to argue Officer Gonzales's sworn statement was insufficient to support a finding of probable cause because, although he generally objected to the DS 367 on hearsay grounds, he did not specifically raise the probable cause issue addressed in Solovij before either the administrative hearing judge or the superior court. The DMV maintains Acuna thus failed to exhaust his administrative remedies. The contention has merit.
“It has long been the law in this state that ‘where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ [Citations.] This exhaustion requirement ‘is a jurisdictional prerequisite, not a matter of judicial discretion.’ [Citations.]” ( Marquez v. Gourley (2002) 102 Cal.App.4th 710, 713, 125 Cal.Rptr.2d 784 ( Marquez ); accord Morton v. Superior Court (1970) 9 Cal.App.3d 977, 981, 88 Cal.Rptr. 533 [exhaustion of an administrative remedy is a condition precedent to obtaining judicial relief, and a court violating the rule acts in excess of jurisdiction].) In Marquez, the court of appeal held that a driver who desires to obtain judicial review of a license suspension decision must first request an administrative hearing before the DMV under section 13558 to satisfy the exhaustion requirement. ( Marquez, supra, 102 Cal.App.4th at pp. 713, 715, 125 Cal.Rptr.2d 784.) There, the driver conceded he did not request an administrative hearing, and the court of appeal rejected his various contentions seeking to skirt this jurisdictional prerequisite. ( Id. at p. 713, 125 Cal.Rptr.2d 784.)
*3 Here, Acuna sought an administrative hearing, but in it he did not raise the issue upon which the superior court granted his writ petition. This is evident from both the hearing transcript and the administrative hearing officer's findings, which in no way address the issue. Acuna's failure to assert the inadequacy of the officer's sworn report to establish probable cause (as opposed to its inadmissibility based on hearsay or lack of an authenticating signature) prevents the superior court from deciding the issue on this ground. The exhaustion doctrine extends not only to those parties who entirely fail to seek relief from the administrative body, but also to those who seek judicial review of particular issues and theories that were not raised before that body. It “affords the public agency an ‘opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.’ [Citation.] Thus, by presenting the issue to the administrative body, the agency ‘will have had an opportunity to act and render the litigation unnecessary’ [citation]; and, in so doing, ‘lighten the burden of overworked courts in cases where administrative remedies are available and are as likely as the judicial remedy to provide the desired relief. [Citations.]’ [Citation.]” ( Leff v. City of Monterey Park (1990) 218 Cal.App.3d 674, 681, 267 Cal.Rptr. 343; accord Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447, 35 Cal.Rptr.2d 334 [“ ‘The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review’ “].) In City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019-1020, 162 Cal.Rptr. 224, the court explained: “ ‘It is fundamental that the review of administrative proceedings provided by section 1094.5 of the Code of Civil Procedure is confined to the issues appearing in the record of that body as made out by the parties to the proceedings, though additional evidence, in a proper case, may be received. [Citation.] It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or “skeleton” showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. [Citation.] The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play.’ “
Because Acuna did not exhaust his administrative remedies by raising the probable cause issue before the administrative tribunal, judicial review was and is foreclosed on that question. We need not reach the DMV's remaining contentions.
DISPOSITION
The judgment is reversed with directions that the superior court enter an order denying Acuna's petition for writ of mandate and reinstating the DMV's suspension order. The DMV shall recover its costs on appeal.