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Brown v. Valverde

April 23, 2010


(Alameda County Super. Ct. No. RG07356234). Hon. Frank Roesch..

The opinion of the court was delivered by: Richman, J.


This appeal presents a single issue of law, an issue of first impression: in a Department of Motor Vehicles (DMV) administrative per se hearing, can a driver facing license suspension following arrest for driving under the influence seek discovery of confidential peace officer personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and its statutory codifications? The superior court concluded the driver could, and issued a writ of mandate directing the administrative hearing officer to hear Andrew Brown's motion. We reverse, concluding that the Pitchess procedure has no place in a DMV administrative per se hearing, a conclusion compelled by the statutory scheme, its legislative history-indeed, by the very purpose of the administrative per se hearing.


At the center of this appeal are two statutory schemes: the DMV administrative per se law (Veh. Code, §§ 13350 et seq.) and what has become known as Pitchess discovery (Evid. Code, §§ 1043, 1045; Pen. Code, §§ 832.7, 832.8). Before setting forth the factual background giving rise to the controversy, we summarize these two schemes.

A. The DMV Administrative Per Se Law

The statutory framework of the administrative per se law was described in detail in the leading case of Lake v. Reed (1997) 16 Cal.4th 448, 454-455 (Lake), and recently reiterated in MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155-156: "Under the administrative per se law, the DMV must immediately suspend the driver's license of a person who is driving with.08 percent or more, by weight, of alcohol in his or her blood. [Citation.] The procedure is called "administrative per se" because it does not impose criminal penalties, but simply suspends a person's driver's license as an administrative matter upon a showing the person was arrested for driving with a certain blood-alcohol concentration, without additional evidence of impairment. [Citation.] The express legislative purposes of the administrative suspension procedure are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions. [Citations.]

"The administrative per se laws were deemed necessary due to the time lag that often occurs between an arrest and a conviction for driving while intoxicated or with a prohibited blood-alcohol concentration. During this interim period, arrestees who would eventually be convicted of an intoxication-related driving offense were permitted to continue driving and, possibly, endangering the public. Moreover, without administrative per se laws, persons with extremely high blood-alcohol concentration levels at the time of arrest could escape license suspension or revocation by plea bargaining to lesser crimes or entering pretrial diversion. Thus, by providing for an administrative license suspension prior to the criminal proceeding, the law affords the public added protection. [Citation.]"

The administrative per se procedure is, in short, an expedited process, and for good reasons, as explained in Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 312: "The need for the administrative per se statutes are from the fact that `[t]he legal process leading to imposition of a suspension sometimes [took] years from the time of arrest.' [Citation.] `Many drivers with high chemical test results fail[ed] to have sanctions taken against their driving privilege because of reduction in charges as the result of "plea- bargaining" or pre-trial diversion programs.' [Citation.] In enacting the administrative per se law, the Legislature intended to establish `an expedited driver's license suspension system' [citation] that would `reduce court delays. The suspension will be swift and certain and will be more effective as a deterrent....' [Citation.]"

This is how the procedure works. When a driver is arrested for driving under the influence and is determined to have a prohibited blood-alcohol content (BAC), the arresting officer or the DMV serves the driver with a "notice of [an] order of suspension or revocation" of his or her driver's license, advising that the suspension will become effective 30 days from the date of service. (Veh. Code, §§ 13353.2, subds. (b) & (c); 13353.3, subd. (a).) The notice explains the driver's right to an administrative hearing before the effective date of the suspension if the driver requests a hearing within 10 days of receipt of the notice. (Id., §§ 13353.2, subd. (c); 13558, subd. (b).)

After the driver is served with the notice, the DMV automatically reviews the merits of the suspension to determine whether the peace officer had reasonable cause to believe that the driver had been driving a motor vehicle under the influence of alcohol, the driver was placed under arrest, and the driver had a BAC of 0.08 percent or more at the time he or she was driving.*fn1 (Veh. Code, §§ 13558; subd. (c)(2), 13557, subd. (b)(2).) This determination must be made prior to the effective date of the suspension, although the DMV may dispense with the automatic review if the driver requests a hearing. (Id., § 13557, subd. (c), (e).)

The administrative per se hearing is presided over by either the director of the DMV, a hearing board, or in the usual case-and as here-a hearing officer. (Veh. Code § 14104.2, subd. (a) ["Any hearing shall be conducted by the director or by a hearing officer or hearing board appointed by him or her from officers or employees of the [DMV]."]; Reirdon v. Director of Dept. of Motor Vehicles (1968) 266 Cal.App.2d 808, 811; Serenko v. Bright (1968) 263 Cal.App.2d 682, 690; Spurlock v. Department of Motor Vehicles (1969) 1 Cal.App.3d 821, 829.) Hearing officers are typically DMV employees who need not have any legal training whatever. Thus, hearings conducted by such hearing officers are in contrast to other proceedings arising under the Administrative Procedure Act, where the agencies employ administrative law judges to preside over the proceedings. (Gov. Code, § 11502; 9 Witkin, Cal. Procedure (5th ed. 2008) Admin. Proceedings, § 58, p. 1176.) Such administrative law judges do have legal training: they must have been admitted to practice law in California for at least five years and have any additional qualifications prescribed by the State Personnel Board. (Gov. Code, § 11502, subd. (b).)

The sole task of the hearing officer is to determine whether the arresting officer had reasonable cause to believe the person was driving, the driver was arrested, and the person was driving with a BAC of 0.08 percent or higher. If the hearing officer determines that the evidence establishes these three facts by a preponderance of the evidence, the license will be suspended.*fn2 (Veh. Code, §§ 13558, subd. (c)(1); 13557, subd. (b)(2); 14104.2, subd. (a). See generally Lake, supra, 16 Cal.4th at pp. 455-456; Gikas v. Zolin (1993) 6 Cal.4th 841, 846-847.)

The procedure is civil in nature and is independent from the criminal prosecution that might ultimately result in the imposition of penalties through the criminal justice system.

B. Pitchess Discovery

In 1974, our Supreme Court decided Pitchess, supra, 11 Cal.3d 531. There, defendant Caesar Echeveria was, along with others, charged with battery against four deputy sheriffs. Echeveria moved for discovery of the deputies' personnel files, seeking records showing prior complaints against the deputies, in order to establish at trial that he acted in self-defense to their use of excessive force. The superior court granted Echeveria's motion, and Sheriff Pitchess sought a writ of mandate to quash a subpoena requiring production of the confidential records. The Supreme Court denied the writ, holding that a criminal defendant who is being prosecuted for battery on a peace officer is entitled to discovery of personnel records to show that the officer had a history of using excessive force and that defendant acted in self- defense. (Id. at pp. 535-537.)

Following the Pitchess decision, allegations surfaced that law enforcement agencies were destroying records to protect the privacy of officers whose personnel files contained potentially damaging information. (City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 883, 889.) At the same time concerns were expressed that defendants were abusing Pitchess discovery by conducting fishing expeditions into arresting officers' files. (San Francisco Police Officers' Assn. v. Superior Court (1988) 202 Cal.App.3d 183, 189-190.) In 1978, the California Legislature addressed these concerns by codifying the "privileges and procedures" of Pitchess motions, with the enactment of Evidence Code sections 1043 and 1045 and Penal Code sections 832.7 and 832.8. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81.)

The procedures established by the 1978 statutory scheme have been frequently summarized by California courts. The early exposition in City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d 74, is illustrative, and we quote it at length here:

"The Penal Code provisions define `personnel records' (Pen. Code, § 832.8) and provide that such records are `confidential' and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, § 832.7.) Evidence Code sections 1043 and 1045 set out the procedures for discovery in detail. As here pertinent, [Evidence Code] section 1043, subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, inter alia, `(2) A description of the type of records or information sought; and [¶] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has such records or information from such records.'

"A finding of `good cause' under [Evidence Code] section 1043, subdivision (b) is only the first hurdle in the discovery process. Once good cause for discovery has been established, [Evidence Code] section 1045 provides that the court shall then examine the information `in chambers' in conformity with [Evidence Code] section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), and shall exclude from disclosure several enumerated categories of information, including: (1) complaints more than five years old, (2) the `conclusions of any officer investigating a complaint...' and (3) facts which are `so remote as to make disclosure of little or no practical benefit.' ([Evid. Code,] § 1045, subd. (b).)

"In addition to the exclusion of specific categories of information from disclosure, [Evidence Code] section 1045 establishes general criteria to guide the court's determination and insure that the privacy interests of the officers subject to the motion are protected. Where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the statute requires the court to `consider whether the information sought may be obtained from other records... which would not necessitate the disclosure of individual personnel records.' ([Evid. Code,] §1045, subd. (c).) The law further provides that the court may, in its discretion, `make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.' ([Evid. Code,] § 1045, subd. (d), italics added.) And, finally, the statute mandates that in any case where disclosure is permitted, the court `shall... order that the records disclosed or discovered shall not be used for any purpose other than a court proceeding pursuant to applicable law.' ([Evid. Code,] § 1045, subd. (e), italics added.)

"As statutory schemes go the foregoing is a veritable model of clarity and balance. [Evidence Code s]section 1043 clearly requires a showing of `good cause' for discovery in two general categories: (1) the `materiality' of the information or records sought to the `subject matter involved in the pending litigation,' and (2) a `reasonable belief' that the governmental agency has the `type' of information or records sought to be disclosed. ([Evid. Code,] § 1043, subd. (b).)

"The relatively low threshold for discovery embodied in [Evidence Code] section 1043 is offset, in turn, by [Evidence Code] section 1045's protective provisions which: (1) explicitly `exclude from disclosure' certain enumerated categories of information ([Evid. Code,] § 1045, subd. (b)); (2) establish a procedure for in camera inspection by the court prior to any disclosure ([Evid. Code,] § 1045, subd. (b)); and (3) issue a forceful directive to the courts to consider the privacy interests of the officers whose records are sought and take whatever steps `justice requires' to protect the officers from `unnecessary annoyance, embarrassment or oppression.' ([Evid. Code,] § 1045, subds. (c), (d) & (e).)

"The statutory scheme thus carefully balances two directly conflicting interests: the peace officer's just claim to confidentiality, and the criminal defendant's equally compelling interest in all information pertinent to his defense. The relatively relaxed standards for a showing of good cause under [Evidence Code] section 1043, subdivision (b)-`materiality' to the subject matter of the pending litigation and a `reasonable belief' that the agency has the type of information sought-insure the production for inspection of all potentially relevant documents. The in camera review procedure and disclosure guidelines set forth in [Evidence Code] section 1045 guarantee, in turn, a balancing of the officer's privacy interests against the defendant's need for disclosure. As a further safeguard, moreover, the courts have generally refused to disclose verbatim reports or records of any kind from peace officer personnel files, ordering instead... that the agency reveal only the name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question. [Citations.]" (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 81-84, fns. omitted. See also Alford v. Superior Court (2003) 29 Cal.4th 1033, 1037-1039; People v. Mooc (2001) 26 Cal.4th 1216, 1225-1227; City of Los Angeles v. Superior Court, supra, 111 Cal.App.4th at p. 889-890.)

That statutory scheme may be, as the Supreme Court described, a "model of clarity and balance." (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 83.) It is not, however, a model of the "swift and certain" procedure (Bell v. Department of Motor Vehicles, supra, 11 Cal.App.4th at p. 312) or "prompt administrative review" (Lake, supra, 16 Cal.4th at p.454) that is the essence of the administrative per se hearing. Quite the contrary.

To seek to obtain the officer's records, Evidence Code section 1043, subdivision (a), requires the moving party to serve notice of the motion on the parties and the governmental agency in possession of the records. Such notice must comply with Code of Civil Procedure section 1005, subdivision (b), which requires at least 16 days notice of the motion, plus five additional days for service by mail. The agency must then notify the law enforcement officer whose records are the subject of the motion. (Evid. Code, § 1043, subd. (a).) After opposition and any reply (Code Civ. Proc., § 1005, subd. (b)), the court then conducts a hearing to determine whether good cause exists for disclosure of the requested records. (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 82-83.) This is what a leading treatise calls the first step of the two-step Pitchess discovery process. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶¶ 8:127.1-8:127.10, pp. 8C-23-8C-24.)

If the court finds good cause, the second step involves an in camera review of the personnel records. (Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61.) There, the court, in the presence of the custodian of records, a court reporter, and sometimes the attorney for the agency and the officer, personally examines the potentially relevant records in chambers. (Evid. Code, § 915, subd. (b); People v. Mooc, supra, 26 Cal.4th at pp. 1226, 1229.) As explained in Mooc, "The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise non-responsive to the defendant's Pitchess motion. A court reporter should be present to document the custodian's statement, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. [Citation.] ¶ The trial court should then make a record of what documents it examined before ruling on the Pitchess motion.... Of course, to protect the officer's privacy, the examination of documents and question of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed." (People v. Mooc, supra, 26 Cal.4th at p. 1229, fn. omitted.)

If the court determines there are personnel records that are "relevant to the subject matter involved in the pending litigation," it orders the records produced and the custodian of records must then prepare them for production. (Evid. Code, ยง ...

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