(Super. Ct. No. SC SC CV PT 10-0000601)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Randall J. Haberman appeals from a trial court judgment denying his mandamus petition challenging Department of Motor Vehicles' (DMV) suspension of his driving privilege under the "administrative per se" statutes (Veh. Code, § 13353.2 et seq.)*fn1 for driving with a prohibited blood alcohol concentration (BAC). He contends the trial court erred in denying his petition for writ of mandate because (1) he was not lawfully arrested, a prerequisite for administrative license suspension, and (2) he "could not reasonably have been found to have been driving with a prohibited BAC because both elements were not concurrently established." We shall conclude that Haberman's arrest was lawful, and that there is ample evidence to support the trial court's conclusion he drove with a BAC of 0.08 percent or higher. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 2:00 a.m. on September 6, 2009, California Highway Patrol Officer Monday observed a pick-up truck parked along the right shoulder of Big Meadows Road in Quartz Valley. He pulled along side the truck, saw that it was occupied, and got out of his patrol car to conduct a welfare check. As he approached the truck, he noticed that the hood was warm to the touch. Haberman was seated in the driver's seat and appeared to be asleep. The driver's side window was partially down, and when Officer Monday looked inside the cab area, he saw a nearly empty bottle of rum in the passenger seat and a full glass of liquid (later determined to be rum) in the center console. Officer Monday knocked on the window several times to wake Haberman, and Haberman finally opened his eyes and stared straight ahead. When asked if he knew where he was, Haberman initially responded that he was in his driveway. When Officer Monday explained that he was not in his driveway, Haberman said he was somewhere in Quartz Valley and later stated he was on Big Meadows Road. When asked what he was doing there, he said he had a fight with his wife and had gone for a drive. When asked how long he had been at that location, he asked what time it was. When Officer Monday told him it was about 2:00 a.m., Haberman said he had been there approximately 30 minutes. Haberman appeared intoxicated -- his speech was slurred, his eyes were bloodshot, and he smelled of alcohol. Officer Monday asked Haberman to exit the truck and instructed him to stand next to it. As Haberman did so, Officer Monday noticed that he was unsteady on his feet and detected the odor of alcohol on his breath. Haberman said he had a couple of drinks at a bar in Fort Jones and later had more to drink at his home. He said he had his last drink at 11:30 p.m. He denied having anything to drink while parked at that location. He also stated that he arrived at the location alone and remained alone.
Officer Monday administered a series of field sobriety tests, which Haberman failed to perform in a satisfactory manner. Officer Monday arrested Haberman for driving under the influence (DUI) (§ 23152, subds. (a),(b))*fn2 pursuant to section 40300.5, which, among other things, allows a warrantless arrest for DUI when the officer has reasonable cause to believe that a person has been driving while under the influence of alcohol and may destroy or conceal evidence of the crime unless immediately arrested.*fn3
Haberman submitted to a breath test at 3:27 a.m. and 3:30 a.m., which revealed a BAC of 0.13 and 0.12 percent, respectively. Officer Monday served a "Suspension/Revocation Order" to suspend Haberman's driver's license based on his arrest for DUI and test showing a prohibited BAC.
Haberman requested an administrative hearing, which was held on November 18, 2009, before a hearing officer appointed by the DMV Director, with Haberman and his counsel present. At the hearing, Haberman said he had been drinking in his car. He denied doing so when questioned by Officer Monday because he was afraid he would get into trouble if he said he had been sitting there drinking. He and his wife had been at a local bar earlier that evening from about 9:00 p.m. until 11:00 p.m., during which time he had two rum and Cokes. They returned home around 11:15 p.m., got into an argument, and Haberman left around 11:45 p.m. On his way out, he grabbed a bottle of Captain Morgan rum from the kitchen cabinet and drove down to Big Meadows Road, about a seven-minute drive. Once there, he drank the rum and fell sound asleep. While he could not recall exactly how much he had to drink, he remembered the bottle was nearly half-full when he left his house. He denied having anything to drink at home.
The hearing officer issued an "Administrative Per Se - .08% BAC Notification of Findings and Decision," concluding the license suspension was proper. The hearing officer found (1) Officer Monday had reasonable cause to believe Haberman was driving a motor vehicle in violation of section 23152, (2) Haberman was lawfully arrested, and (3) Haberman was driving a motor vehicle when he had 0.08 percent or more by weight of alcohol in his blood. The finding of lawful arrest was based on section 40300.5.
DMV issued a notice of decision of department review suspending Haberman's driver's license for four months effective December 27, 2009.
In April 2010, Haberman filed in the trial court a petition for review of the DMV determination. (§ 14401.) After a hearing, the trial court denied the petition, finding that Officer Monday's "conclusion that [Haberman] had driven the vehicle to its ultimate location while under the influence of alcohol was reasonable" given that Haberman "admitted he had driven the vehicle to its location approximately one-half hour earlier, denied consuming alcohol after parking the vehicle and the engine, while off, was still warm." The trial court rejected the notion that "actual observation of driving" is required for DMV action, where, as here, "from all of the circumstances, the officer had ...