Appeal of suspension after DMV Hearing finds DMV acted properly

Evans v. Shiomoto (Cal. Ct. App., Oct. 21, 2019, No. D073969) 2019 WL 5886970, at *1–7

The DUI stop, arrest and suspension

Evans was pulled over for driving with his off-road-only lights illuminated while on a “highway,” in violation of Vehicle Code section 24411. The officer observed signs of intoxication and Evans consented to a chemical breath test that registered a blood alcohol level above 0.08 percent.

Evans was arrested and his license was suspended for driving a motor vehicle with a blood alcohol level of 0.08 percent or more. The DMV upheld the suspension after conducting an administrative hearing. Evans filed a petition for a writ of administrative mandate challenging the DMV’s decision. The Superior Court denied the writ petition.

Appeal from denial of writ petition: No lawful detention; no substantial evidence of .08 blood alcohol level; officer failed to follow procedures

Evans appeals from the superior court’s denial of his writ petition. He claimed:

  • substantial evidence does not support the finding he was lawfully detained because he was allowed to use off-road lights because the road he was on was not a “highway” as defined by section 24411.
  • substantial evidence does not support the finding he was driving with a blood alcohol level of 0.08 percent or more. He argued that the time entries on the notice indicate the arresting officer administered two chemical breath tests before he had had the opportunity to observe Evans for 15 minutes, as required by Title 17 of the California Code of Regulations (Cal. Code Regs., tit. 17, § 1221.1 and the test results were inadmissible.
  • the DMV hearing officer and the superior court improperly relied upon a dispatch log, which showed that the arresting officer complied with the 15-minute observation requirement.


The Court of Appeal concluded that the initial stop was lawful, the DMV and superior court properly considered the dispatch log and breath test results, and substantial evidence supports the superior court’s findings. The Court affirmed the judgment.


United States Forest Service Officer Ethan White was on patrol in the Imperial County Sand Dunes Recreational Area near Glamis, California on the evening of December 30, 2016, when he observed Evans driving a pickup truck with its off-road-only lights illuminated while driving on a hard-packed graded dirt road known as Wash Road. The truck was driving on a one-way portion of the road but was approaching a point where the road merged into two-way traffic, and Officer White was concerned the bright lights could interfere with oncoming traffic. Another officer, Ken Marcus, also observed the truck and initiated a traffic stop using his patrol vehicle lights.  After stopping Evans, Officer White noticed Evans smelled of alcohol and had slurred speech and red, bloodshot, watery eyes. Officer White conducted several field sobriety tests, a preliminary alcohol screening (PAS), and two chemical breath tests. Evans registered a 0.16 percent blood alcohol level on the first test, conducted at 10:41 p.m., and a 0.15 percent blood alcohol level on the second, conducted at 10:44 p.m.

Officer White arrested Evansand issued him a form DS-367 Administrative Per Se Suspension/Revocation Order advising him that, based on the chemical breath test results, his license would be suspended, effective 30 days from the date of the order. Officer White recorded the time and results of the two chemical breath tests and signed the form below the results, certifying under penalty of perjury that the breath test results were obtained in the regular course of his duties, that he was qualified to operate the equipment used, and that the tests were administered in accordance with the requirements of Title 17. He also attached a printout from the test device. The form included a section to record PAS test results, but Officer White left it blank.

DMV Administrative Hearing

Evans requested an administrative to dispute the suspension of his license, and the suspension was stayed pending the outcome.

The hearing was limited to the following issues: 1) whether Evans was lawfully detained and arrested; 2) whether there was reasonable cause to believe Evans was driving while under the influence in violation of sections 23152 and 23153; and 3) whether Evans was in fact driving with a blood alcohol level of 0.08 percent or more.

In his testimony, Officer White acknowledged that Wash Road is in an off-highway vehicle recreation area, but stated it is a publicly maintained road with posted traffic signs open only to highway-legal vehicles. He also testified regarding his training concerning Title 17 and the administration of chemical breath tests and stated he was aware Title 17 required him to observe the driver for 15 minutes before conducting a chemical breath test.

DMV Hearing decision

The DMV hearing officer upheld the suspension. Based on credible testimony from Officer White indicating Wash Road was a publicly maintained road and Evans was driving on it with off-road lights on, she found there was reasonable cause to stop Evans. She concluded Evans demonstrated objective signs and symptoms of being under the influence and it was more likely than not that Officer White complied with the 15-minute observation period required by Title 17. Even if he did not wait 15 minutes, noncompliance would not exclude the breath test evidence but would instead go to the weight of that evidence. The hearing officer was satisfied the evidence established Evans drove with a blood alcohol level of 0.08 percent or more and re-imposed the suspension of Evans’s driver’s license.

Petition for Writ of Mandate

Evans filed a petition for writ of mandate and a request to stay the suspension pending the outcome of the petition. Evan claimed the initial stop was improper, the arresting officer did not comply with Title 17, the CAD dispatch log and breath test results were inadmissible, and, excluding those exhibits, there was insufficient evidence to support the DMV’s findings.

The Court of Appeal summarized the DMV Administrative Per Se Suspension law and process.

Administrative Per Se Suspensions

California’s “administrative per se law” requires the DMV to immediately suspend the license of any individual arrested for driving under the influence and determined to have driven with a prohibited amount of alcohol in his or her blood. (See Coffey v. Shiomoto (2015) 60 Cal.4th 1198, (Coffey)

The   statute is intended to promote highway safety by quickly suspending the license of persons driving under the influence, while also providing prompt administrative review to anyone whose license is suspended.

Section 13382 specifies that if an individual is arrested for driving under the influence of alcohol in violation of sections 23152 or 23153 and the chemical test results show a blood alcohol level of 0.08 percent or more, “the peace officer, acting on behalf of the department, shall serve a notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person.” The notice “shall specify clearly the reason and statutory grounds for the suspension, the effective date of the suspension, the right of the person to request an administrative hearing, the procedure for requesting an administrative hearing, and the date by which a request for an administrative hearing shall be made in order to receive a determination prior to the effective date of the suspension.” (§ 13353.2, subds. (b), (c).)

DMV Review of suspension of a license by an officer

When an officer serves a notice of suspension under the administrative per se law, the officer must also forward a copy of the notice to the DMV, which will automatically review the merits of the suspension to consider the following:

  • Whether the arresting officer had reasonable cause to believe the individual was driving under the influence, whether the individual was lawfully arrested or detained, and whether the individual was driving with a blood alcohol level of 0.08 percent or more.

Rules of evidence do not apply in DMV Hearings

If the DMV hearing officer finds each of the issues proven by a preponderance of the evidence, the driver’s license will be suspended for four months, or longer if the driver has previous convictions. The DMV may consider evidence allowed under the Vehicle Code Administrative Procedures Act. (§§ 14100 et seq., 14112.)  The DMV hearing officer “shall consider its official records and may receive sworn testimony.” (§ 14104.7.) Technical rules of evidence do not apply in DMV Hearings and  may admit any relevant evidence that “is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.” (Gov. Code, § 11513, subd. (c); § 14112; Miyamoto, at p. 1216, 98 Cal.Rptr.3d 459.) He or she may also consider evidence that would normally be excluded as hearsay for the limited purpose of supplementing or explaining other evidence. (Gov. Code, § 11513, subd. (d); § 14112; Miyamoto, at p. 1216, 98 Cal.Rptr.3d 459.)

Review of DMV Decision under writ of mandate and appeal

The superior court independently reviews the DMV’s decision to determine whether it is supported by the weight of the evidence under a writ of mandate On appeal, the court applies a deferential abuse of discretion standard to any contested evidentiary rulings and consider whether the superior court’s findings are supported by substantial evidence.

Substantial evidence supports the finding the initial stop was lawful

Evans argued that Wash Road does not qualify as a highway because it is an unpaved dirt road inside an off-road recreational area with no posted speed limit or road markings. However, the Vehicle Code defines the term “[h]ighway” as “a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel.” (§ 360.) And it does not require that the road be paved or have speed limit signs or other road markings.

Substantial evidence supported the DMV’s finding of reasonable cause to detain Evans.

Substantial evidence supports the finding Evans was driving with a blood alcohol level of 0.08 percent

Evans contended that the DS-367 form indicates Officer White did not comply with the 15- minute observation period. When an officer conducts a chemical breath test and records the results on a standard DS-367 form, attesting that “the test was administered pursuant to the requirements of Title 17 of the California Code of Regulations,” the form creates a rebuttable presumption the test results are valid, reliable, and admissible. (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232, (Manriquez) If the driver is able to make an affirmative showing that one or more of the requirements of Title 17 was not observed, however, the burden shifts back to the DMV to prove the test was reliable despite the purported violation. (Manriquez, at p. 1233

Evans asserts that Officer White did not comply with Title 17 because the DS-367 form indicates on its face that Officer White began observing Evans at 10:30 p.m. and the two chemical breath tests were taken less than 15 minutes later, at 10:41 and 10:44 p.m. However, the form also contains an attestation of compliance with Title 17, signed by Officer White under penalty of perjury, and Officer White’s testimony at the hearing, supported by the CAD dispatch record, indicates he did wait 15 minutes before conducting the chemical breath tests After reviewing the CAD dispatch log, Officer White confirmed the traffic stop, and his observation of Evans, would have begun shortly before he provided Evans’s information to the dispatcher at 10:24 p.m. Using 10:24 p.m. as the start time, the two breath tests were conducted more than 15 minutes later, in compliance with Title 17.

Because substantial evidence supports the superior court’s finding that Officer White complied with Title 17, we also conclude the superior court did not abuse its discretion in determining the results of the chemical breath test were admissible. The chemical breath tests results indicated Evans had a blood alcohol level of 0.16 and 0.15, respectively. Therefore, substantial evidence also supports the finding that Evans was driving with a blood alcohol level of 0.08 percent or more.


The judgment is affirmed.


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