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JASON LOWRY, Petitioner and Respondent,
v.
CHON GUTIERREZ, AS DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLES, ET AL., Respondent and Appellant.

B177605

Court of Appeal of California, Second District, Division Seven

Filed May 26, 2005

Bill Lockyer, Attorney General, Jacob A. Applesmith, Senior Assistant Attorney General, Silvia M. Diaz and Laura Lee Gold, Deputy Attorneys General, for Respondent and Appellant.

T. Douglas Allen for Petitioner and Respondent.

JOHNSON, J.

The Department of Motor Vehicles and its director Chon Gutierrez (collectively referred to as "the DMV") appeal from an order setting aside the administrative suspension of Jason Lowry's driver's license for drunk driving. The issues are whether the contents of a call to police from an anonymous cellphone user gave a patrol officer reasonable cause to briefly stop a motorist's vehicle for purposes of investigating the reported erratic driving and, if not, whether evidence obtained as the result of an unlawful traffic stop must be excluded at an administrative hearing to suspend the motorist's license.

In what we concede is a close call we conclude the officer had reasonable cause to stop Lowry and therefore the evidence resulting from the stop was admissible at Lowry's administrative hearing. Accordingly we do not reach the question whether the exclusionary rule applicable to criminal cases applies to DMV administrative hearings.

FACTS AND PROCEEDINGS BELOW

The facts are not in dispute.

The Upland Police Department received a report about a reckless driver from an anonymous cellphone caller. According to the caller the driver of the vehicle drove the wrong way on Benson Avenue and then turned left onto Baseline Road in front of oncoming traffic. The caller described the vehicle, gave its license number, and stated the driver was a male. The Upland police forwarded the report to the police department of the neighboring city of Claremont. From the license plate number the dispatcher at the Claremont Police Department determined the registered owner lived in Claremont. The dispatcher broadcast the information received from the Upland police and the vehicle owner's address to officers in the field.

Officer Hall received the dispatch. Four to five minutes later he spotted a vehicle matching the cellphone caller's description. It took Hall approximately 30 to 40 seconds to catch up to the vehicle and stop it. During this time the vehicle was traveling at a safe speed and Hall observed no traffic violations.

The driver identified himself as Jason Lowry and told Hall he was on his way home from work. During their conversation Hall smelled alcohol on Lowry's breath and clothes, saw his eyes were red and watery and noticed his speech was slow and deliberate. Lowry admitted drinking two 24 ounce beers after work.

Hall commenced a field sobriety test. After a few unsuccessful attempts to perform the test activities Lowry gave up and said, "You got me, I can't do these tests, lets just get this over with." A preliminary check for blood alcohol content showed Lowry at 0.10 percent.

Based on Lowry's objective symptoms of intoxication, his inability to compete the field sobriety test and his blood alcohol level, Hall formed the opinion Lowry had been driving under the influence and arrested him.

Following Lowry's arrest the DMV suspended his driver's license and this suspension was upheld at an administrative hearing. The hearing officer determined Hall had reasonable cause to stop and detain Lowry on suspicion of drunk driving based on the report by the anonymous cellphone caller and probable cause to arrest based on the objective symptoms of intoxication Hall observed after making the stop.

Lowry filed a petition for writ of mandate in the superior court challenging the DMV's order suspending his license. He contended the officer did not have reasonable cause to make the traffic stop and therefore any resulting evidence of drunk driving should have been excluded at the administrative hearing. The trial court agreed and issued a writ of mandate ordering the DMV to set aside its order suspending Lowry's license.

We reverse.

DISCUSSION

We note at the outset Lowry does not contend Officer Hall lacked probable cause to arrest him for drunk driving based on the officer's observations after he pulled Lowry over. Rather, the issue is whether the traffic stop itself was lawful when it was based solely on an allegation of reckless or erratic driving reported by an anonymous caller on a cellular telephone.[1]

It is undisputed an officer may stop and detain a person based on a reasonable suspicion criminal activity "has taken place, is occurring, or is about to occur and . . . the person to be detained is involved in that activity."[2]

In Florida v. J.L.[3] the United States Supreme Court addressed the question whether the reasonable suspicion necessary to stop and detain a person for investigation can be based on an anonymous tip. There an anonymous caller told police a young Black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. Three Black males were at the bus stop when officers arrived. Aside from the anonymous tip the officers had no reason to suspect any of the three men of illegal conduct. The officers did not see a firearm and none of the men made any threatening or unusual movements. An officer approached J.L., the only one wearing a plaid shirt, told him to place his hands on the bus stop and frisked him. The officer found a gun in J.L.'s pocket and he was charged with carrying a concealed weapon without a license. The Florida Supreme Court held the search violated the Fourth Amendment and the United States Supreme Court granted certiorari.[4]

In a unanimous opinion the Supreme Court held an anonymous tip a person is carrying a gun is not sufficient to justify stopping and frisking that person. The problem with relying on anonymous tips, the court explained, is that "[u]nlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated . . . `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.'"[5] Thus, to justify even a brief stop and detention the tipster must provide some indication the report of criminal activity is reliable. Providing innocent and readily observable facts such as a description of the person or the person's location is insufficient.[6]

The court distinguished the case before it from Alabama v. White.[7] In White an anonymous informant called police and stated White would leave a specific location at a particular time in a brown station wagon with a broken right tail light. She would be carrying an attaché case containing an ounce of cocaine and would drive to a particular motel. Officers saw White leave the specified location at the forecasted time, get into a station wagon with a broken right tail light and drive by the most direct route toward the particular motel. White was not carrying an attaché case. The officers stopped White just before she arrived at the motel. A search of the car yielded a brown attaché case carrying marijuana.[8] The court upheld the search because it concluded the anonymous caller's ability "to predict [White's] future behavior . . . demonstrated inside information"—a special familiarity with White's criminal affairs.[9] The court cited its previous decision in Adams v. Washington[10]for the proposition that while an unverified tip may be insufficient to support an arrest or search warrant it is sufficient to justify a stop and detention if it carries "sufficient `indicia of reliability[.]'"[11] While Adams involved a known, reliable informant, not an anonymous caller, Adams and White shared common "indicia of reliability"—verifiable predictions of what the police would find upon investigating the tip and details of the accused's criminal conduct which would not be generally known.[12]

The difference between J.L. and White, the court explained, was that in J.L. the tipster merely described the accused's location and appearance while in White the tipster not only described White and her location but accurately predicted her movements thereby showing "the tipster [had] knowledge of concealed criminal activity."[13] A showing of "reliability as to the likelihood of criminal activity," the court held, "is central in anonymous-tip cases."[14]

The court explicitly limited its holding to anonymous tips concerning gun possession. "The facts of this case," the court stated, "do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk."[15]

Since the decision in J.L. a number of courts have addressed the question whether a police officer may conduct an investigative stop based on an anonymous tip alleging reckless or erratic driving.[16]

There are no reported California decisions directly on point.[17]

The DMV has cited us to one California decision, People v. Superior Court (Meyer)[18] but in Meyer the tipster was not truly anonymous, as the opinion notes. The person providing the tip pulled alongside a parked highway patrol car and told the officer he had observed a blue Chevrolet pickup truck with a white camper shell driving northbound on the freeway in a reckless manner and that the driver was pointing a gun at other cars. The person making the report gave the license number of the truck and identified himself as a "`captain of a fire department.'" The officer wrote down this information but did not obtain the tipster's name, address, vehicle license number or any other identification. A short time later the officer located a truck matching the informant's description. The officer did not observe the truck make any erratic movements nor did he observe anyone in the truck brandishing a gun. Nevertheless, the officer stopped the truck. A search of the driver and the truck failed to produce a gun but did yield a box of marijuana.[19] The Court of Appeal held the stop and detention were reasonable. The court found the informant was more than a mere anonymous tipster because the informant exposed himself to identification through his self-description as "`a captain of a fire department'" and the license number on his vehicle. "When the informant approached the officer, he had no way of knowing that the officer would elect to begin the pursuit without waiting to record the identity of the informant."[20]Meyer is also distinguishable because it involved allegations of reckless driving and brandishing a gun. The brandishing allegation heightened the urgency of the stop.[21] It also differentiates Meyer from J.L. in which the tipster stated the man in the plaid shirt was carrying a gun, not that he was brandishing the gun or threatening anyone with it.

In other jurisdictions, courts holding anonymous reports of erratic driving do not justify an investigative stop have hewn closely to the analysis in J.L. Although the Supreme Court has frequently held the reliability of an anonymous tip should be determined from the "totality of the circumstances,"[22] for these courts the only relevant circumstance is the predictability of the suspect's future behavior. Finding none of the tips at issue predicted verifiable future conduct by the alleged reckless drivers the courts in these cases held the stops unlawful.

In Washington v. State, a decision from an intermediate appellate court in Indiana, an anonymous caller advised police a "possible drunk driver" was operating a black Cadillac with a white top southbound on the Interstate. The caller also provided the Cadillac's license number. When the car passed a state trooper the trooper verified the license number and began to follow it. The officer followed the car for two miles but observed no evidence of drunken or erratic driving. Nevertheless the officer stopped the driver based on the anonymous tip. When the driver got out of the car the officer saw marijuana in plain sight on the front seat. There was no evidence the driver was under the influence of drugs or alcohol.[23]

Reversing the defendant's conviction for various drug offenses the appellate court stated in anonymous tip cases "federal precedent requires ability to predict future behavior [citation] validating the informant's knowledge as `reliable in its assertion of illegality' [citation] in contrast to information that might be relayed to police by a prankster or a police officer acting in bad faith. . . . We accordingly hold that an anonymous telephone tip, absent any independent indicia of reliability or any officer observed confirmation of the caller's prediction of the defendant's future behavior, is not enough to permit police to detain a citizen and subject him or her to a Terry stop and the attendant interruption of liberty required to accomplish it."[24]

Commonwealth v. Lubiejewski, decided by a Massachusetts intermediate appellate court, like the present case, involved an anonymous cellphone report of a vehicle traveling on the wrong side of the road. From the vehicle's license number the police learned the address where the vehicle was registered and an officer arrived at the location just as the suspect drove past. The officer followed the suspect for approximately 20 feet before stopping him. In this short distance the officer did not observe the suspect do anything unlawful or which might indicate he was under the influence of drugs or alcohol. Evidence obtained after the stop, however, led the officer to arrest the defendant for drunk driving.[25] The appellate court held the stop was unlawful. Although the anonymous report provided such details as the vehicle's type and license number and the area in which it was being driven, "the information supplied by the informant did not include any specific details about the defendant which were not otherwise easily obtainable by an uninformed bystander."[26] The court rejected the state's argument the stop was justified by the exigencies of the situation. "[I]n the absence of any specific information that the operator of the pickup truck was intoxicated or incapacitated in some manner, once the operator returned to the correct side of the road, the emergency had ended."[27]

In State v. Stewart, a Texas appellate court reversed the defendant's conviction for driving while intoxicated based on evidence gathered only after an officer stopped his vehicle based on an anonymous telephone call to police. The caller told the dispatcher a green Chevrolet Camaro was parked at the gas pumps of a convenience store; the driver fell down a couple of times trying to get into the car and "`appeared to be highly intoxicated.'"[28] An officer arrived at the store just as a car matching the caller's description pulled away. The officer followed the car. The driver stopped at the red light at the intersection and made two lawful left turns. Nevertheless, the officer stopped the car and arrested the defendant for driving while intoxicated. In reversing the conviction the court held the officer's corroboration of the color, make and location of the vehicle "did not give the officer any basis for crediting the informer's accusation that the driver of the Camaro was intoxicated."[29] CitingJ.L. and Texas decisions the court explained: "[T]he anonymous caller's tip, which was uncorroborated in its assertion of possible illegality, did not objectively support a reasonable suspicion that appellant was driving while intoxicated."[30]

In contrast to the above decision, several state supreme courts and at least one federal circuit court have upheld traffic stops based on anonymous reports of reckless or erratic driving. These courts have not required the reports to contain predictions of future dangerous conduct but instead have taken a more flexible approach to circumstances which may indicate the reliability of the information.[31]Among these cases, the opinion in United States v. Wheat[32] contains the most detailed analysis of the issue.

In Wheat an anonymous caller reported a tan and cream colored Nissan with a license plate beginning W-O-C was being driven erratically in the northbound lane of Highway 169. The caller stated the car was passing on the wrong side of the road, cutting off other cars and being driven by a "`complete maniac.'"[33] Police dispatchers relayed this information to patrol cars in the vicinity. A few minutes later an officer spotted a car matching the caller's description and stopped it. The officer made the stop solely on the basis of the anonymous call as relayed by the dispatcher. He had not observed any traffic violations or erratic driving nor did his investigation following the stop lead him to conclude the driver was intoxicated. A search of the car, however, produced evidence which led to the driver's and passenger's arrests and convictions for possession with intent to distribute cocaine.[34] The Eighth Circuit affirmed. For the reasons discussed below the court held stopping the vehicle was reasonable under the totality of the circumstances.

The court concluded the decision in J.L. was instructive but not controlling.

For one thing the tip in Wheat was more precise than the one in J.L. In J.L. the tipster only gave a generic description of a young Black male wearing a plaid shirt and standing at a particular bus stop. The vagueness of the tipster's description was made even more problematic by the fact the police only responded "sometime" later.[35] In Wheat the caller gave a precise description of the car including its make, color, location and direction of travel. The officer made the traffic stop "within minutes" of hearing the dispatch.[36]

Furthermore, the court reasoned, predictability of future conduct is not an immutable requirement for establishing the reliability of an anonymous tip. Neither White nor J.L.holds predictability is always required and to interpret those cases otherwise would contradict the Supreme Court's long standing view reliability should be determined based on a "totality of the circumstances."[37] Moreover, tips about reckless driving do not lend themselves to a predictability-of-conduct analysis. First, it is not clear what conduct would have to be verifiably predicted to make the tip reliable. It cannot merely be a prediction the accused will pass by a certain point on a certain road at an approximate time. Such a prediction could readily be made by any person who has observed the vehicle. It does not require any inside knowledge of criminal activity.[38]Nor can it be a prediction the driver will perform some dangerous maneuver with the vehicle. If the officer personally observes the suspect driving recklessly the officer does not need the tip in order to justify a traffic stop. At the same time, requiring the officer to wait for the driver to actually cause or come close to causing an accident before he can stop the vehicle would render the officer morally if not legally culpable for the result.[39] Predictability-of-conduct is also inapposite to reckless driving cases because it was designed to test the reliability of tips about "concealed criminal activity" such as possession offenses.[40] Reckless driving is not a "concealed criminal activity" because it takes place in the open but neither is it an "innocent activity" which counts for naught in terms of establishing the observer's reliability. Rather reckless driving falls in a third category—"`illegality open to public observation.'"[41] Observation of this type of activity may provide indicia of reliability as discussed below.

Finally, the Wheat court pointed to the distinction the J.L. court drew between a report of a person carrying a concealed weapon and a report of a person carrying a bomb. In the case of a bomb report, the Supreme Court noted in dictum, the Fourth Amendment might not demand "the same indicia of reliability we demand for a report of a person carrying a firearm[.]"[42] In Wheat the court likened an erratic and possibly drunk driver to a person on the move carrying a bomb and concluded both pose an imminent threat to public safety not present in the case of the person with a concealed weapon.[43]

Having distinguished J.L. from the case before it the court in Wheat moved on to discuss the indicia of reliability it believed would justify an investigative stop based on an anonymous report of reckless or erratic driving.

As in every case involving an anonymous tip the report must contain a sufficient quantity of information to allow the responding officer to be certain she is stopping the "right" suspect. In the reckless driving context the information should include the vehicle's make and model, color, license number, location and direction of travel although slight variances would not necessarily be fatal.[44]

In addition, the quality of information in the report must be sufficient to justify an interference with the driver's liberty albeit limited and brief. Because the predictability-of-conduct test is unworkable, the information must necessarily be based on information generally observable. Whether the information is reliable, the court held, depends on its detail.[45] Thus under Wheat an anonymous report the operator of a black Toyota is driving "like a maniac" would not permit an officer to stop the first black Toyota he sees after receiving the report. But a detailed description of the car, as specified above, coupled with a detailed description of what the driver is doing and a sighting of the vehicle very close in time to the report would normally be sufficient. In Wheat the tipster described the driver as passing on the wrong side of the road and cutting off other cars. The arresting officer spotted the car within minutes of receiving the report.[46]

Next the court addressed the main objection to allowing traffic stops based on anonymous tips: the danger the report may be a complete work of fiction created by a malicious troublemaker such as a disgruntled ex-spouse, a teenage prankster or a lying officer.[47] The court acknowledged the police will sometimes receive false reports but concluded the risk to life and property by not taking action on a report which meets the criteria described above outweighs the risk of occasionally inconveniencing an innocent motorist.[48]

In balancing the interest in public safety against the individual's interest in freedom from unreasonable search and seizure the court stated "there is a critical distinction between gun possession cases and potential drunk driving cases. In the possessory offense cases, law enforcement officers have two less invasive options not available to officers responding to a tip about a drunk driver. First they may initiate a simple consensual encounter, for which no articulable suspicion is required. [Citation.] . . . . Alternatively, officers responding to a tip about a possessory violation may quietly observe the suspect for a considerable length of time, watching for other indications of incipient criminality that would give them reasonable suspicion to make an investigatory stop[.]"[49] Neither of these choices are available to an officer receiving a report of a possible drunk driver. The officer can either stop the vehicle immediately and ascertain whether the driver is indeed operating under the influence of drugs or alcohol or he can follow and observe the vehicle and run the risk the suspect will veer into oncoming traffic, run a red light, strike a pedestrian or otherwise cause a sudden and devastating accident. Given this "stark choice" the court held "there is a substantial government interest in effecting a stop as quickly as possible. [Fn. omitted.]"[50] Traffic stops, the court noted, "are considerably less invasive, both physically and psychologically," than a frisk for a weapon on a public street.[51] They are analogous to the invasion occurring at a sobriety checkpoint—an invasion the United States Supreme Court has described as "slight."[52]

The court also observed there are means of reducing the risk of false reports. Law enforcement agencies should train their personnel in appropriate responses to anonymous reports of reckless driving and employ instant caller identification technology or other means to identify anonymous tipsters.[53]

After considering the factors discussed above the court in Wheat upheld the stop. The anonymous caller had provided an extensive description of the vehicle. The caller also related contemporaneous observations of the driver's actions and cited specific examples of moving violations. Under the totality of the circumstances the officer had a reasonable suspicion the driver was intoxicated and the stop was justified.[54]

We find Wheat's analysis more persuasive than the views expressed in Washington v. State and the other cases discussed above which hold, in essence, an officer cannever stop a motorist to investigate an anonymous report of drunk (or reckless) driving no matter what the potential risk to innocent lives if the report is correct.

In 2002 the California Highway Patrol made 82,375 arrests for drunk driving.[55] It is no surprise then that our Supreme Court has referred to drunk driving as an "appalling problem"[56] and has found "removing drunk drivers from the roadways undeniably serves a highly important governmental interest."[57] Unfortunately law enforcement is unable to remove all drunk drivers from the roadways before they do harm. Seven hundred fifty people died on California's roads and highways in 2002 as the result of collisions caused by drunk drivers.[58] More citizen cellphone reports such as the one in the present case may help to reduce "the carnage wrought on California highways by drunk drivers[.]"[59]

While the possibility of anonymous false reports is a legitimate concern we believe training patrol officers, 911 operators and police dispatchers to apply the kind of scrutiny applied in Wheat together with employment of modern caller identification methods will minimize the number of false reports the police actually act upon. This solution is not merely precative on our part. Government officials "have a unique understanding of, and responsibility for, limited public resources, including a finite number of police officers."[60] However deep their concern for a driver's Fourth Amendment rights may be, we doubt police departments or their political superiors will want to use up scarce resources chasing down false reports of reckless driving.

Applying Wheat's reliability factors to the present case we conclude the officer had reasonable cause to stop Lowry on suspicion of drunk driving.

The quantity test for reliability was met because the caller gave the dispatcher the driver's gender, a description of the vehicle, its license number and approximate location. This information was sufficient to allow the officer who spotted the vehicle five minutes later to make sure he was stopping the right vehicle.[61] The quality test for reliability was met because the caller gave precise descriptions of the driver's actions—wrong-way driving and making a left turn in front of oncoming traffic. The caller also named the streets on which these traffic violations occurred. This information demonstrated the caller had been an eye witness to the accused's reckless and dangerous driving.[62]

For the reasons discussed above we hold the trial court erred in granting a writ of mandate setting aside the administrative suspension of Lowry's driver's license for drunk driving. At the same time, we want to stress the limited nature of our holding and why this case bears so little resemblance to Florida v. J.L.[63]

First, we need not and do not consider in this case whether the anonymous tip about erratic driving would have justified the officer in ordering the driver to exit the vehicle, or in frisking the driver or searching the vehicle. Notably, here the officer did none of these things. Rather, this was as close to a voluntary encounter and discussion with a suspect as is possible when that person is in a moving vehicle. Initially, the officer merely stopped the car momentarily and engaged in a conversation with the driver. Only when he smelled alcohol on the driver's breath did he prolong the stop and obtain evidence confirming the driver was intoxicated and had a blood alcohol count above the legal limit. Presumably, had the officer not smelled alcohol the conversation — and the stop — would have been brief. It would have represented only a minor inconvenience to the driver, even had the anonymous tip which prompted the stop been false or even malicious.

Second, we observe this case involved a person's use of a vehicle on a public roadway — which is considered a privilege not a right. We consider it reasonable to require less reliable suspicion in order to momentarily interfere with a driver's exercise of that privilege than is required to justify detaining that person when he is walking or standing someplace — including in a bus station.

Finally, we find it significant the penalty the driver suffered in this case was directly related to the subject of the anonymous tip and the avowed purpose of the ensuing stop — that momentary interference with his exercise of the privilege of driving on the public roadways. On the basis of his abuse of that privilege — that is, driving while intoxicated — he lost the driver's license which enabled him to continue using those roadways. This represents a minimal and appropriate sanction for this driver's conduct.

Thus, in this case we conclude an anonymous tip was sufficiently reliable to justify a brief interference with the privilege of driving on the public roadways for purposes of conversing with a driver suspected of abusing that privilege, during which the officer also uses his senses to detect whether that person might be intoxicated. What is being interfered with is a privilege not a right; the initial interference is minimal — a brief stop and not a "frisk" or a search; and, in this case at least, the penalty ultimately imposed is both appropriate and the minimum suggested by the driver's conduct — the suspension of a privilege to drive rather than a deprivation of the person's physical liberty.

DISPOSITION

The judgment granting a writ of mandate is reversed and the cause is remanded to the trial court with directions to enter a new judgment denying the petition and dismissing the action. Because this case presents a close legal issue on which there is conflicting authority we order each party to bear its own costs on appeal.

We Concur:

PERLUSS, P.J.

WOODS, J.

[1] For purposes of our analysis we accept the assumption of the parties, the DMV and the trial court the caller was truly anonymous. The record does not reflect whether the Upland police identified the number of the cellphone or traced the call in some other manner.

[2] People v. Souza (1994) 9 Cal.4th 224, 230. See Terry v. Ohio (1968) 392 U.S. 1.

[3] Florida v. J.L. (2000) 529 U.S. 266.

[4] Florida v. J.L., supra, 529 U.S. at pages 268-269.

[5] Florida v. J.L., supra, 529 U.S. at page 270, quoting from Alabama v. White (1990) 496 U.S. 325, 329.

[6] Florida v. J.L., supra, 529 U.S. at page 272.

[7] Alabama v. White, supra, 496 U.S. 325.

[8] Alabama v. White, supra, 496 U.S. at page 327.

[9] Alabama v. White, supra, 496 U.S. at page 332, italics in original.

[10] Adams v. Washington (1972) 407 U.S. 143.

[11] Alabama v. White, supra, 496 U.S. at page 328, citing Adams v. Washington, supra, 407 U.S. at page 147.

[12] Alabama v. White, supra, 496 U.S. at page 330.

[13] Florida v. J.L., supra, 529 U.S. at page 272.

[14] Florida v. J.L., supra, 529 U.S. at page 272.

[15] Florida v. J.L., supra, 529 U.S. at pages 273-272.

[16] Many of these cases are collected and discussed in York, Search and Seizure: Law Enforcement Officers' Ability to Conduct Investigative Traffic Stops Based Upon an Anonymous Tip Alleging Dangerous Driving When the Officers Do Not Personally Observe Any Traffic Violations (2003) 34 U. Mem. L. Rev. 173.

[17] The issue is presently before our Supreme Court in People v. Wells (2004) 122 Cal.App.4th 155,review granted December 15, 2004, S128640.

[18] People v. Superior Court (Meyer) (1981) 118 Cal.App.3d 579.

[19] People v. Superior Court (Meyer), supra, 118 Cal.App.3d at pages 582-583.

[20] People v. Superior Court (Meyer), supra, 118 Cal.App.3d at page 584.

[21] In Meyer the court stated the officer "reasonably concluded that a vehicle driven recklessly on the freeway by a man pointing a gun at other cars was the kind of hazard which required him to proceed immediately to find the car and question its occupants." People v. Superior Court (Meyer), supra, 118 Cal.App.3d at page 585.

[22] Alabama v. White, supra, 496 U.S. at page 330.

[23] Washington v. State (Ind. App. 2000) 740 N.E.2d 1241, 1243.

[24] Washington v. State, supra, 740 N.E.2d at page 1246, citing Alabama v. White, supra, 496 U.S. at page 332 and J.L., supra, 529 U.S. at page 272.

[25] Com. v. Lubiejewski (Mass. App. 2000) 729 N.E.2d 288, 290.

[26] Com. v. Lubiejewski, supra, 729 N.E.2d at page 291, citing J.L., supra, and analogous state cases.

[27] Com. v. Lubiejewski, supra, 729 N.E.2d at page 292.

[28] State v. Stewart (Tex. App. 2000) 22 S.W.3d 646, 648.

[29] State v. Stewart, supra, 22 S.W.3d at page 649.

[30] State v. Stewart, supra, 22 S.W.3d at page 650.

[31] These cases include United States v. Wheat (8th Cir. 2001) 278 F.3d 722, State v. Walshire (Iowa 2001) 634 N.W.2d 625, State v. Boyea (Vt. 2000) 765 A.2d 862, and State v. Rutzinski (Wis. 2001) 623 N.W.2d 516.

[32] United States v. Wheat, supra, 278 F.3d 722.

[33] United States v. Wheat, supra, 278 F.3d at page 724.

[34] United States v. Wheat, supra, 278 F.3d at page 724-725.

[35] Florida v. J.L., supra, 529 U.S. at page 268.

[36] United States v. Wheat, supra, 278 F.3d at page 732.

[37] United States v. Wheat, supra, 278 F.3d at page 732 and see among other cases Alabama v. White, supra, 496 U.S. at page 330.

[38] United States v. Wheat, supra, 278 F.3d at page 733. (Cf. Florida v. J.L., supra, 529 U.S. at page 272.)

[39] United States v. Wheat, supra, 278 F.3d at page 733.

[40] United States v. Wheat, supra, 278 F.3d at page 733; Florida v. J.L., supra, 529 U.S. at page 272.

[41] United States v. Wheat, supra, 278 F.3d at page 730 quoting from State v. Walshire, supra, 634 N.W.2d at page 627.

[42] Florida v. J.L., supra, 529 U.S. at pages 273-274.

[43] United States v. Wheat, supra, 278 F.3d at page 736.

[44] United States v. Wheat, supra, 278 F.3d at pages 731 and 732, footnote 7.

[45] United States v. Wheat, supra, 278 F.3d at page 734.

[46] United States v. Wheat, supra, 278 F.3d at pages 724, 732, 734.

[47] United States v. Wheat, supra, 278 F.3d at page 735; and see Florida v. J.L., supra, 529 U.S. at page 272.

[48] United States v. Wheat, supra, 278 F.3d at pages 736-737.

[49] United States v. Wheat, supra, 278 F.3d at page 736.

[50] United States v. Wheat, supra, 278 F.3d at pages 736-737.

[51] United States v. Wheat, supra, 278 F.3d at page 737.

[52] United States v. Wheat, supra, 278 F.3d at page 737 citing Michigan Dept. of State Police v. Sitz(1990) 496 U.S. 444, 451. See also Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1341 [upholding constitutionality of sobriety checkpoints].

[53] United States v. Wheat, supra, 278 F.3d at page 736; and see Florida v. J.L., supra, at page 276, Kennedy, J. concurring.

[54] United States v. Wheat, supra, 278 F.3d at page 737.

[55] http://www.chp.ca.gov//html/per02-43.html (as of 2/22/05).

[56] See Cory v. Shierloh (1981) 29 Cal.3d 430, 435.

[57] Ingersoll v. Palmer, supra, 43 Cal.3d at page 1338.

[58] http://www.chp.ca.gov//html/per02-43.html (as of 2/22/05).

[59] Ingersoll v. Palmer, supra, 43 Cal.3d at page 1339.

[60] Michigan Dept. of State Police v. Sitz, supra, 496 U.S. at page 454.

[61] Compare United States v. Wheat, supra, 278 F.3d at page 731.

[62] Compare United States v. Wheat, supra, 278 F.3d at pages 724, 732, 734.

[63] It also bears little resemblance to the recent case of People v. Dolly (2005) ___ Cal.App.4th ___ [27 Cal.Rptr.3d 638]. In that case, Division 2 of this District upheld in a 2-1 opinion a full-scale search of a vehicle and its three occupants based on an anonymous tip to a "911" operator. The tipster reported, not erratic driving behavior, but being threatened with a gun by someone in the vehicle he described. Based on this tip, three police cruisers converged on the parked vehicle. The officers ordered the driver and both passengers out of the automobile, forced them to lie on the ground and searched them and the inside of the car. The search yielded a weapon under the front seat and the driver ultimately was convicted on a gun possession charge. The Dolly case obviously raises very different issues than the simple traffic-related stop involved in the case before this court.


97 Cal.Rptr.2d 451 (2000)

81 Cal.App.4th 1167

George Clifford BAKER, Plaintiff and Respondent,
v.
Steven GOURLEY, as Director, etc., Defendant and Appellant.

No. E025915.

Court of Appeal, Fourth District, Division Two.

June 29, 2000. Review Denied August 30, 2000.

452*452 Bill Lockyer, Attorney General, Silvia M. Diaz, Supervising Deputy Attorney General, and Zachary D. Wechsler, Deputy Attorney General, for Defendant and Appellant.

Allen & Ehrle, Claremont, and T. Douglas Allen, for Plaintiff and Respondent.

OPINION

HOLLENHORST, Acting P.J.

The Director of the Department of Motor Vehicles (herein "DMV"), appeals from the judgment of the superior court granting George Clifford Baker's (herein "Baker") petition for alternative writ of mandamus requiring the DMV to set aside its order suspending Baker's driver's license.

PROCEDURAL BACKGROUND AND FACTS

On January 10, 1999, at approximately 1:47 a.m., Baker was observed by Officer Mark Wilson of the Upland Police Department, driving his truck 60 miles per hour in a 40 miles per hour speed limit zone. "The truck swerved when turning [and] straddled the # 1 [and] # 2 lanes of Central in violation of Vehicle Code, section] 21658[, subdivision (a) ]." After stopping Baker in his truck, Officer Wilson noticed objective symptoms of intoxication including bloodshot and watery eyes, the odor of an alcoholic beverage, an unsteady gait, slurred speech, impaired balance and coordination, and divided attention. Baker was placed under arrest at 2:09 a.m. He was issued a temporary driver's license pursuant to Vehicle Code sections 13353 and 13353.2. According to the County of San Bernardino Sheriffs Department Laboratory of Criminalistics, Blood Alcohol Report (herein "BA Report"), which is identified as "LRB # 99010233," Baker's blood sample was drawn in Officer Wilson's presence by technician Macias.

The bottom half of the BA Report is labeled "CHAIN OF POSSESSION OF SAMPLE." It indicates that Macias gave Baker's blood sample to Officer Wilson at 3:35 a.m. on January 11, 1999. The next entry indicates an individual named "Poles" retrieved the sample from storage locker "A-1" at 8:00 a.m.[1] Poles deliveredBaker's blood sample to the laboratory on January 12, at 9:30 a.m.[2] The BA Report bears a notation indicating the "Seal [was] cut by: [initials unclear]," on January 12, 1999, at 9:50 a.m.[3] There is an identification, "BA #" 122418 (herein referred to as BA 122418 or B122418) at the bottom of the page. There was, however, no evidence that the vial containing the blood sample was ever opened or that the sample ever left the custody and control of the laboratory where it was ultimately tested.

On January 18, 1999, Baker's blood sample was analyzed by a technician of the San Bernardino Sheriffs Department, Scientific Investigations Division, identified as "Schneider." Baker's blood-alcohol content (herein "BAC") is listed as 0.09 percent. Although Baker's name, LRB #99010233 and "kit #B122418" match those attached to Officer Wilson's report (and Chain of Possession of Sample document), Baker'sdate of birth is mistakenly 453*453 listed as "03081959" instead of the correct date of "05081959."[4]

At the administrative hearing, the DMV admitted the following documentary evidence: exhibit 1-Officer Wilson's sworn statement; exhibit 2-DUI (driving under the influence) arrest/investigation report; exhibit 3-order of suspension with a temporary license endorsement; exhibit 4-Baker's driving record; exhibit 5-correspondence betweenBaker's counsel and the DMV; exhibit 6-Baker's application for a subpoena duces tecum and a copy of the subpoena duces tecum issued to the West Valley Crime Lab. Baker did not object to exhibits 3 through 6, inclusive. Instead, Baker's primary concern was with the chain of custody of the blood sample, exhibit 2. His expert, Henry S. Greenberg, reviewed the discovery given to him by Baker's counsel. Based on the documents he reviewed, Mr. Greenberg concluded that the DMV did not comply with the requirements of California Code of Regulations, title 17, article 5, section 1219 (herein sometimes referred to as "Title 17").

Specifically, Mr. Greenberg noted the blood sample was collected by a person named Macias on January 10, 1999, at 3:35 a.m. He interpreted the exhibit as indicating Officer Wilson witnessed the drawing of the sample. Mr. Greenberg testified that according to his review of the "CHAIN OF POSSESSION OF SAMPLE," an individual named "Poles" received the sample from locker A 1 on January 11, 1999, at approximately 8:00 a.m. "Poles delivered the sample to the crime lab 25 hours, 25 and a half hours after he or she received it on January 12th." Once the sample was in the laboratory, Mr. Greenberg testified someone (whose initials he could not read) opened a seal. However, he was unsure at exactly what time this was done.

Based upon the first two pages of exhibit 2, Mr. Greenberg concluded that analyst Schneider analyzed the sample on January 18, 1999, six days after the seal was cut. According to Mr. Greenberg, "[w]hat we have here is a breakdown in the chain of custody, the integrity, the whereabouts of the sample for the six days between the time the sample was opened, ... or where the evidence seal was broken, when [sic] the time Schneider analyzed it." Thus, Mr. Greenberg opined that "we have ... a document in violation of [title 17, s]ection 1219, general, which requires the ... maintenance of the integrity and chain of custody, from collection, through analysis, to reporting." After considering all the evidence introduced at the administrative hearing, the hearing officer found that the suspension of Baker's driver's license was proper.

Baker petitioned for judicial review under Vehicle Code section 13559. He contended the DMV's findings were not supported by the evidence because the testimony of Mr. Greenberg was sufficient to rebut the evidentiary presumption in Evidence Code section 664, such that the reliability of the blood alcohol test was called into question. At trial, the DMV disputed Baker's claim by arguing that Baker failed to produce any evidence which showed that the officers or laboratory employees deviated in any way from the regular performance of their official duties.

In response to the court's inquiry regarding the evidence that the seal had been cut, the DMV noted that "Title 17 does not require that ... a test be done within a certain time of the seal being cut.... Once the sample is in the lab's possession, [it is] presume[d] it's been correctly handled unless the Petitioner can establish ... affirmative evidence showing otherwise." Baker replied that the "documents themselves establish there has been a violation of Title 17" because the six-day window between the cutting of the seal and the analysis interrupted the chain of custody and rebutted the presumption of regularity. Thus, Baker claimed that as long as he could show official standards were in any way violated, the burden shifts back to the DMV to explain why this six-day window did not corrupt the sample.

454*454 According to the DMV, Title 17 does not require a seal to be cut by the person performing the analysis. The DMV noted that the chain of custody document does not indicate whether the seal that was cut was the seal to the pouch carrying the sample or to the sample itself.[5] Finally the DMV objected to Baker's characterization of Mr. Greenberg's testimony as "undisputed." Instead, the DMV faulted Mr. Greenberg's testimony as being a legal conclusion that Title 17 was violated despite the fact that he was unable to point to any specific violation of Title 17. Thus, the DMV contended that the presumption that the official business had been regularly performed was not rebutted; thus, the burden of proof remained with Baker. The trial court took the matter under submission.

On August 2, 1999, the trial court issued its ruling wherein it granted Baker's petition and entered judgment in his favor. The DMV appeals. Neither party disputes the facts. Instead, the sole issue on appeal is whether Mr. Greenberg's testimony rebutted the reliability of the blood alcohol test such that there was insufficient evidence to support the hearing officer's decision.

STANDARD OF REVIEW

In ruling on Baker's petition for writ of mandate, the trial court was required to determine, by exercising its independent judgment, whether the hearing officer's decision was supported by the weight of the evidence. (Code Civ.Proc., § 1094.5, subd. (c); Lake v. Reed (1997) 16 Cal.4th 448, 456, 65 Cal.Rptr.2d 860, 940 P.2d 311; McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 523, 7 Cal.Rptr.2d 18; Coombs v. Pierce (1991) 1 Cal.App.4th 568, 575-576, 2 Cal. Rptr.2d 249.) "When the trial court is authorized to exercise independent judgment on the evidence, on appeal [we] need only review the record to determine whether substantial evidence supports the trial court's findings. [Citations.]" (Coombs v. Pierce, supra, 1 Cal.App.4th at p. 576, 2 Cal.Rptr.2d 249; Lake v. Reed supra, 16 Cal.4th at p. 457, 65 Cal.Rptr.2d 860, 940 P.2d 311.)

THE EVIDENCE

According to Evidence Code section 664, there is a rebuttable presumption that an official duty has been regularly performed. For example, once the DMV presents competent evidence in the form of documents contemplated in the statutory scheme to establish its prima facie case, the licensee must produce competent affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. (Cf. Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 739, 27 Cal. Rptr.2d 712.) The licensee must show, "through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed...." (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 144, 7 Cal.Rptr.2d 818.) Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation. (Ibid.)

In the instant case, Evidence Code section 664 places upon Baker the burden of proving the nonexistence of the foundational trustworthiness of the BA report, and specifically, the nonexistence of the foundational reliability of the tests. Bakercontends that he met this burden by offering the testimony of Mr. Greenberg who opined that the integrity of the blood sample had been compromised when its seal had been cut some six days before it was tested. We disagree.

California Code of Regulations, title 17, article 5, section 1219 (herein "Section 1219") provides, "Samples taken for forensic alcohol analysis and breath alcohol analysis shall be collected and handled in a manner approved by the Department. The identity and integrity of the samples shall be maintained through collection to analysis and reporting." Section 1219.1 of Title 17 (herein "Section 1219.1"), in relevant part, provides, "(e) The blood sample 455*455 shall be deposited into a clean, dry container which is closed with an inert stopper. [¶] ... [¶] (g) In order to allow for analysis by the defendant, the remaining portion of the sample shall be retained for one year after the date of collection."

As the DMV points out, there are no specific requirements which deal with the cutting of a seal or the lapse of time[6] in testing. Nothing in the administrative record suggests a violation of the procedures set forth in Section 1219.1. Nonetheless, the trial court found Mr. Greenberg's testimony dispositive on the issue. Turning to Mr. Greenberg's testimony, we are unable to find substantial evidence to support the trial court's findings. According to Mr. Greenberg, "[W]hat we have is ... a document in violation of Section 1219, general, which requires the ... maintenance of the integrity and chain of custody, from collection, through analysis, to reporting." However, nothing in Sections 1219 or 1219.1 requires a chain of custody document. In order to rebut the Evidence Code section 664 presumption, Baker must show that cutting the seal six days prior to testing the sample resulted in compromising the integrity of the sample. While the chain of custody document indicates that the sample was tested some six days after the "seal" was cut, there is no evidence that the official standards were not observed such that the sample itself was tampered with or compromised. As the DMV correctly notes, because "the purported `flaw' does not break the chain of custody at all, there can be no reasonable basis for inferring that the blood sample was somehow contaminated or tainted."

Also, we reject the trial court's conclusion that the sample was further compromised because the individual who cut the seal was not the same person who performed the analysis. The chain of custody document clearly indicates that someone in the crime lab cut the seal on January 12, 1999. Nothing in the record suggests that the person who cut the seal did not have the authority to do so. Moreover, we note that there is no evidence which demonstrates that the cutting of the seal was the equivalent of opening the sample. As such, there is no evidence that the vial was opened or that the contents of the vial were mixed with any other ingredient. Thus, the record shows no more than a mere possibility that the integrity of the sample was not maintained. Such speculation is insufficient to support a reasonable inference that the integrity of the sample was, in fact, compromised.

For the reasons stated herein, we conclude that the trial court's findings are not supported by substantial evidence and reasonable inferences.[7]

456*456 DISPOSITION

The trial court's judgment granting Baker's petition for writ of mandate is reversed. The trial court is directed to issue a new order denying Baker's petition. Baker shall pay DMV's costs on appeal.

McKINSTER and RICHLI, JJ., concur.

[1] Although the DMV suggests that it is unclear whether this time was a.m. or p.m., we note the use of military time "0800." Accordingly, the time was a.m.

[2] Once again, the use of military time, i.e., 0930, tells us that it was delivered in the morning at 9:30 a.m. Although the DMV contends it is unclear whether it was delivered at 9:30 or 4:30, we disagree. If it had been delivered at 4:30 p.m., the notation would have read 1630.

[3] The initials are unclear, and the notation indicating the time the seal was cut is not very legible.

[4] This error was corrected by a revised report dated February 4, 1999, indicating a revision "as to Date of Birth only."

[5] The samples must be enclosed in vials, sealed with an inert stopper. (Cal.Code Regs., tit. 17, art. 5, § 1219.1, subd. (e).)

[6] Instead, the only reference to time is in section 1219.1, subdivision (g), which requires the DMV to retain the remaining portion of the sample for one year after the date of collection in the event the licensee wishes to have an independent test performed. This subdivision refutes Mr. Greenberg's unsupported assertion that the person who receives the sample for analysis is the person who is supposed to cut the seal. If we were to give any meaning to this bold assertion, we would render subdivision (g) meaningless. As the DMV points out, "Were the cutting of the seal of a vial which is already within the confines of a laboratory to start the running of an arbitrary clock, so that a blood sample could only be tested by the same person who initially cut the seal, and then only tested only hours or minutes after the seal was cut, Section 1219.1, subdivision (g) ... would be rendered nonsensical or meaningless.... If such purported requirements were the litmus test to insure a blood sample's integrity, any samples on which tests were performed pursuant to ... Section 1219.1 [, subdivision] (g) in the days, weeks and months after such sample was originally tested would, under [Mr. Greenberg's] analysis, necessarily lack integrity and be of no evidentiary value."

[7] In light of our conclusion, it is unnecessary to address the DMV's second basis for reversal, i.e., that the record contained substantial circumstantial evidence that Baker was driving with a blood alcohol content of 0.08 percent by body weight.


100 Cal.Rptr.2d 349 (2000) 83 Cal.App.4th 1331

Geoff C. JACOBSON, Plaintiff and Respondent,
v.
Steven GOURLEY, as Director, etc., Defendant and Appellant.

No. E026312.

Court of Appeal, Fourth District, Division Two.

September 28, 2000.

Bill Lockyer, Attorney General, Silvia M. Diaz, Supervising Deputy Attorney General and Jorge M. Otano, Deputy Attorney General, for Defendant and Appellant.

Allen & Ehrle, Claremont, and T. Douglas Allen, for Plaintiff and Respondent.

OPINION

McKINSTER, J.

The Director of the Department of Motor Vehicles ("DMV") appeals from a judgment granting a petition for a writ of mandate. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 27, 1999, Jacobson was arrested in Rancho Cucamonga for driving while under the influence of alcohol in violation of Vehicle Code section 23152. A sample of his blood was taken and he surrendered his driver's license to the arresting officer.

At Jacobson's request, the DMV held an administrative hearing to determine whether his driver's license should be suspended. At the hearing, the DMV offered documentary evidence including a document entitled "San Bernardino Co. Sheriffs,350*350 Scientific Investigation Division 7-Apr-1999 Report on the Receipt and Examination for Ethyl Alcohol." [1] The document lists four names, including "JACOSON, GE." Across from Jacobson's name, the document reflected a blood alcohol level of .16%. The analyst is identified as "WHITE." Printed in ink with a rubber stamp at the end of the four entries is the emblem of the San Bernardino County's Sheriffs Department together with the name and address of the department's scientific investigation division.

Over Jacobson's objections, that document ("SID report") was admitted into evidence. Relying upon that evidence of the chemical tests of his blood, the hearing officer found that Jacobson had been driving with a blood alcohol level of .08% or more, and that his license should be suspended.

Pursuant to Code of Civil Procedure section 1094.5 and Vehicle Code section 13559,Jacobson filed a petition for a writ of mandate. His petition seeks an order directing the DMV to revoke the suspension of his driver's license on the ground that the hearing officer erred by admitting the SID report. The trial court granted the petition and ordered the DMV to revoke the suspension of Jacobson's driver's license. The DMV appeals.

ISSUE ON APPEAL

In administrative hearings, "[h]earsay 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, subd. (d).) The SID report is the only evidence ofJacobson's blood alcohol level. The DMV concedes that Jacobson objected to its admission as hearsay.

The trial court decided that the blood-alcohol finding was not supported by substantial evidence because the SID report would not have been admissible in a civil action over objection. In particular, it reasoned that the SID report would not have been admissible under the official-records exception to the hearsay rule (Evid.Code, § 1280) because the document was not properly authenticated (id., § 1401, subd. (a)). Authentication was lacking, the court said, because the document bore neither a signature nor a seal. (See id., §§ 1452-1453.)

Although the DMV contends that the trial court erred in several respects by concluding that the SID report was not admissible, one issue is dispositive: whether the report had been sufficiently authenticated to merit admission into evidence. The DMV's sole argument on this issue is that the SID report bore a seal, that pursuant to Evidence Code section 1452 the seal is presumed to be genuine and its use is presumed to be authorized, and that the report itself was therefore sufficiently authenticated to be admitted into evidence. It is mistaken.

ANALYSIS

"Authentication of a writing is required before it may be received in evidence." (Evid.Code, § 1401, subd. (a).) "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law" (id., § 1400), such as by a statutory presumption (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed.1999) § 30.11, p. 628; 2 Witkin, Cal. Evidence (4th ed. 2000) Documentary Evidence, § 7, p. 139).

The statutory presumptions (Evid. Code, §§ 1451-1454) affect the burden of 351*351producing evidence (id., § 1450). If the facts support the existence of a presumption, "[t]he burden is on the adverse party to introduce evidence sufficient to sustain a finding that the ... official writing is not genuine in order to dispel the presumption of authenticity or genuineness." (1 Jefferson, supra, § 30.36, p. 638, italics omitted.) If the adverse party fails to come forward with evidence that disputes authenticity, the writing must be found to be authentic. (Evid.Code, § 604; 1 Jefferson, supra, § 30.36, p. 638.)

The DMV relies upon the statutory presumption created by Evidence Code section 1452, which provides in relevant part: "A seal is presumed to be genuine and its use authorized if it purports to be the seal of: ... [¶] (b) A public entity in the United States or a department, agency, or public employee of such public entity."

The critical issue here is whether that presumption arose, i.e., whether the emblem on the SID report constitutes a seal.

The Evidence Code does not define "seal," but the Code of Civil Procedure does: "A seal is a particular sign, made to attest, in the most formal manner, the execution of an instrument." (Code Civ. Proc., § 1930.) In particular, "[a] public seal in this State is a stamp or impression made by a public officer with an instrument provided by law, to attest the execution of an official or public document, upon the paper, or upon any substance attached to the paper, which is capable of receiving a visible impression."[2] (Id., § 1931.) The execution of an instrument is its subscription and delivery. (Id, § 1933.)

If a seal attests to the execution of a document, and if execution means subscription, then it follows that there can be no seal of a document that has not been subscribed. The SID report is not signed by anyone. Therefore, the emblem stamped upon it does not meet the statutory definition of a seal.[3]

The existence of a seal being the only grounds upon which the DMV challenged the trial court's conclusion that the report had not been properly authenticated, that challenge fails. Authentication being an indispensable prerequisite to the admission of documentary evidence (Evid.Code, § 1401, subd. (a)), the DMV has failed to show that the trial court erred by granting the petition for writ of mandate.

DISPOSITION

The judgment is affirmed.

HOLLENHORST, Acting P.J., and RICHLI J., concur.

[1] There is no indication in the record that the document admitted was a certified copy. (Evid.Code, § 1531.) Therefore, we assume for purposes of our analysis that the document was an original.

[2] Thus, a seal may be printed in ink by a stamp, as was done here. (See, e.g., Gov. Code, § 8207 [notary seals]; id., § 68074.1 [seals of superior or municipal courts].)

[3] Accordingly, we need not consider whether there is any evidence that the emblem meets the other aspects of the definition of a public seal, e.g., whether it was impressed upon the SID report "by a public officer with an instrument provided by law...." (Code Civ. Proc., § 1931.)


How Long Does A California Expungement Take?

Like so many questions involving the practice of law, the answer is "it depends"

Several factors impact the length of time an expungement takes to go through the court system. Some of these factors are: the length of time between the conviction and the filing of the expungement; whether or not the case is in the current computer system at the courthouse where the expungement needs to be filed; whether or not the case is a felony or misdemeanor; how complex the case is; whether or not the case file is in storage off-site from the courthouse where the expungement needs to be processed; and if the Court wants a Probation Report prepared prior to the Court hearing.

Cases that are less than 10 years old usually process reasonably fast, as the files are still physically on site at most courthouses in California. Also, cases that are recent are automated and often times the entire case is available as an electronic docket so that the clerk's office and the court can have instant access to the entire history of the case.

Older cases are often placed in a central storage area that is commonly called the ?archives?. Once a case has been sent to archives it is often processed into microfiche, or a similar optical storage process.

In some counties, such as Los Angeles County, felony cases are moved to a central storage facility near downtown, and retrieval of those cases can often take 60 to 90 days before the expungement process even starts in the courthouse where the case occurred.

Some courthouses tend to be very efficient in processing expungements and ?turn around? petitions in 6 to 8 weeks; Van Nuys Court in LA County and the Newport Beach Court in Orange County tend to be pretty quick in processing expungements that are less than 10 years old.

Generally speaking, you can count on your expungement taking in the neighborhood of 90 to 120 days, but certain courts or older cases and can take up to six months.

When you call us for telephone consultation we will be able to give you a better idea of a more precise time that your expungement petition will probably take. That being said, expungement petitions are not a priority for the court system, and there is no time limit associated with expungement petitions, so sometimes delays of weeks or months occur.

Bear in mind that there are NO legal time limits for expungement, so delays are sometimes unavoidable.

Thomas "Doug" Allen, in practice for the past 22 years, has limited his practice to Expungement Lawand has litigated more than 2000 expungement cases all over the state of California. He has extensive courtroom and trial experience.

This article was published on 01 Jan 2013 and has been viewed 71 times
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DUI Expungement In California- Law Overview And Summary Of Remedies

DUI convictions are one of the most common criminal offenses in California. Violation of 23152 or 23153 of the California Penal Code can result in conviction, fine, alcohol school and custody time. Such a conviction can have long lasting repercussions in employment, and adversely impact quality of life. A DUI expungement helps mitigate this mistake.

In many cases, a Felony DUI can be reduced to a misdemeanor and then expunged.

The legal standard for California DUI Expungement cases is higher than other expungements due to a rather recent change in the Expungement law:

1203.4 PC in part:

".......((c) (1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.

(2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant."

Experienced legal counsel greatly increases the success rate in these matters as the court must make a finding that the expungement is in 'the interest of justice'. In many cases, a Felony DUI can be reduced to a misdemeanor and then expunged.

California DUI records are not expunged automatically with the passage of time, but require the filing and granting of a Petition for relief in Court.

A California DUI expungement is a legal process that petitions the Court to review a conviction to determine:

If probation was successfully completed;

That all fines, restitution and reimbursement ordered by the court has been paid;

That the petitioner is not now on probation for another offense;

That the petitioner has no new pending cases;

The Court then allows the petitioner to withdraw their plea or finding of guilt, enters a "not guilty" plea, and orders the case dismissed. You will receive a copy of the Court Order when your case is complete.

Please be aware that while all DUI cases can not be expunged most can be; there are some limits on the relief an expungement can grant; such as- DMV does not remove their record of the case after an expungement is granted in the criminal Court.

Does a DUI expungement destroy or seal all traces of a DUI conviction?

No. An expungement changes and updates the disposition of the case to reflect a dismissal under 1203.4 of the Penal Code.

This means the Court file, the California Department of Justice, and the FBI update their files to show a new plea of not guilty has been entered and the case has been ordered dismissed and set aside by the Court.

It does not remove all records of the case, nor does it make the conviction 'invisible' to background checks. The conviction is set aside, and the case dismissed by Court Order.

At our firm potential clients get a free telephone consultation with an Attorney with hundreds of DUI defense cases, including many jury trials. Our fees are reasonable, competitive, and include all legal work, court costs and court appearances. We DO NOT charge a higher fee for a California DUI expungement, unlike many lawyers.

Thomas "Doug" Allen, in practice for the past 22 years, and has extensive courtroom and trial experience. Seven years ago he limited his practice to California Expungement Law and has litigated hundreds of California DUI Expungement cases.....www.record-clear.com

This article was published on 27 Nov 2012 and has been viewed 121 times
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California Expungement Law Explained

Background checks for employment, professional licensing, college admission and financial aid, or even renting an apartment are now commonplace, and an expungement helps ensure success in these undertakings. Many of people seek expungement for these reasons, but a large number get their records expunged for peace of mind and for closure on a past mistake.

California misdemeanor and felony criminal records can usually be expunged. Once relief has been granted, you can honestly answer "no" to a question regarding criminal convictions in many circumstances.

Several other types of remedies in California such as: sealing of diversion or juvenile records, early termination of probation, DUI expungement, or reduction of a felony conviction to misdemeanor status are also available.

California Expungement law (Penal Code Section 1203.4) provides in part:

"[Petitioner shall]...be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided..." (Emphasis added)

Does an Expungement erase all records and destroy the Court file?

No. An expungement changes and updates the disposition of the case to reflect a dismissal under 1203.4 of the Penal Code. This means the Court file, the California Department of Justice, and the FBI update their files to show a new plea of not guilty has been entered and the case has been ordered dismissed and set aside by the Court. It does not remove all records of the case, nor does it make the conviction 'invisible' to background checks.

What exactly is an Expungement in California, then?

A California expungement is a legal process that petitions the Court to review a conviction to determine:

If probation was successfully completed, or, if no probation was granted, a year has passed since the conviction;

That all fines, restitution and reimbursement ordered by the court has been paid;

That the petitioner is not now on probation for another offense;

That the petitioner has no new pending cases;

The Court then allows the petitioner to withdraw their plea or finding of guilt, enters a "not guilty" plea, and orders the case dismissed.

What doesn't a California Expungement do?

You will not be allowed to own or possess a firearm until you would otherwise be able to do so.

Your dismissed conviction can still be used to increase your punishment in future criminal cases, if the offense is "priorable"- such as a DUI or theft offense.

An expungement will not relieve you of your duty to register as a sex offender.

Why Expunge my record?

There are a number of reasons to do so such as employment or licensing. However, many, many people want to expunge their record as final "closure" on an old mistake- just for peace of mind.

Please be aware this article is NOT a comprehensive analysis of all expungement law, or of all types of remedies that may be available to you. This is not legal advice, and a consultation with an Attorney is always recommended on any legal matter.

Thomas "Doug" Allen, in practice for 22 years, has extensive courtroom and trial experience. His practice is now limited to California Expungement Law and he has litigated more that 2000 cases. FREE telephone Consultation for CA Record Clearing clients.

This article was published on 16 Nov 2012 and has been viewed 128 times
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Record-Clear

We are a small firm that emphasizes personal attention, not a high volume of cases. Our fees are reasonable and competitive; you usually do not need to appear in court. Call or contact us through our site for a FREE Attorney consultation. We ONLY practice California Expungement Law.

Do I Need An Attorney?

Probably so. Remember that you are hiring a lawyer for a proceeding that is very important to your future, and carefully examine the experience and background of any attorney you employ. Give us a call; you will be glad you did.