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Espinoza v. Shiomoto

California Court of Appeals, Fourth District, Second Division

March 24, 2017

BERNICE ESPINOZA, Plaintiff and Appellant,
v.
JEAN SHIOMOTO, as Director, etc., Defendant and Respondent.

         APPEAL from the Superior Court of San Bernardino County No. CIVDS1412956 Joseph R. Brisco, Judge. Affirmed.

          Bartell & Hensel, Donald J. Bartell and Lara J. Gressley for Plaintiff and Appellant.

          Burglin Law Offices and Paul R. Burglin as Amicus Curiae on behalf of Plaintiff and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian, Jennie M. Kelly, Bruce Reynolds and Brad Parr, Deputy Attorneys General, for Defendant and Respondent.

          OPINION

          McKINSTER, J.

         I.

         INTRODUCTION

         Bernice Espinoza appeals from the denial of her petition for writ of administrative mandate challenging the one-year suspension of her driver's license by the Department of Motor Vehicles (Department). We conclude the record supports the trial court's implied findings that (1) Espinoza was lawfully arrested on reasonable cause to believe she had been driving under the influence of alcohol (DUI), (2) Espinoza refused to submit to and failed to complete a chemical test as required under the implied consent law, and (3) Espinoza was afforded a fair hearing before the Department. Therefore, we conclude the superior court correctly denied Espinoza's petition, and we affirm the judgment.

         II.

         FACTS

         A. Investigation and Arrest.

         At 1:40 a.m., on May 15, 2013, Sergeant Temple of the California Highway Patrol (CHP) was on routine patrol in the City of Riverside when he observed Espinoza driving a grey Hyundai and holding a cellular phone to the left side of her face. Espinoza appeared to be in the middle of a conversation, but when Espinoza saw Temple she lowered the phone from her ear. Temple activated his emergency lights, and Espinoza pulled over and stopped approximately two feet from the curb.

         Temple approached and contacted Espinoza through her open driver's side window. Temple informed Espinoza that he had stopped her for talking on her phone while driving and asked for her driver's license. Espinoza handed Temple her driver's license and apologized for using her cellular phone while driving. While speaking to Espinoza, Temple smelled a strong odor of an alcoholic beverage emitting from the interior of Espinoza's vehicle. Temple asked Espinoza where she was coming from, and Espinoza responded she had been at a local bar. When Temple asked Espinoza if she had been drinking, Espinoza said she drank one cocktail but had not had anything else to drink for two hours. Espinoza's speech appeared to be normal.

         Temple asked Espinoza to step out of her vehicle, but Espinoza declined to cooperate. Espinoza informed Temple that she was a public defender; that she did not wish to perform any field sobriety tests or to step out of her vehicle; and citing McNeely, [1] a recently decided United States Supreme Court case, Espinoza said she would not submit to a blood test. When Temple again asked Espinoza to step out of her vehicle, Espinoza once again declined. Espinoza asked Temple to issue her a citation for the cellular phone violation (see Veh. Code, [2] § 23123, subd. (a)), and said she would call a friend to come pick her up and take her home.

         As Temple requested an additional officer to respond and conduct a DUI investigation, [3] Espinoza stepped out of her vehicle. Espinoza again informed Temple that she would not perform any field sobriety tests. While standing on the sidewalk, Espinoza crossed her legs, lost her balance, and stumbled a bit. As Espinoza spoke, Temple smelled a strong odor of an alcoholic beverage on Espinoza's breath. Temple also saw that Espinoza's eyes were red.

         Officer Gonzalez of the CHP then arrived on the scene. Temple told Gonzalez what he had observed, identified Espinoza, and directed Gonzalez to conduct a DUI investigation. When Gonzalez walked up to Espinoza, he immediately smelled a strong odor of an alcoholic beverage on Espinoza's person and on her breath. Gonzalez also saw that Espinoza had red, bloodshot, and watery eyes. Espinoza was standing normally, and she was not swaying or moving about. Gonzalez asked Espinoza if she had been drinking, and Espinoza replied she had a drink two hours earlier. Espinoza then told Gonzalez that she was a Riverside County public defender and knew her rights; that she did not want to have any problems with her work; that Gonzalez should not ask her any field sobriety questions because she would not answer them and would not perform any field sobriety tests; and again cited McNeely.

         As she did with Temple, Espinoza asked that Gonzalez issue her a citation for the cellular phone violation and said she would have a friend come and pick her up. Espinoza began to look at her cellular phone, and she fumbled and dropped her keys. As she spoke, Espinoza repeated herself several times within a short period of time that she would rather be issued a citation and have a friend come pick her up. Espinoza did not slur her speech and she was coherent, but she was crying and very emotional the whole time Gonzalez spoke to her. Gonzalez did not detect any mental impairment while talking to Espinoza. Gonzalez asked Espinoza to cooperate or he would arrest her for DUI based on his and Temple's observations. Espinoza refused to cooperate and said she could call a supervisor from her office to come pick her up.

         Based on his own observations of Espinoza and based on Temple's observations, Gonzalez concluded Espinoza had been driving while under the influence of alcohol and placed her under arrest. Espinoza became emotional and upset. Gonzalez admonished Espinoza pursuant to the implied consent law that she had to submit to a blood or breath test. Espinoza told Gonzalez she would take a blood test “pursuant to McNeely.” Gonzalez told Espinoza that her refusal to submit to a chemical test would result in her license being suspended for one year. Gonzalez then transported Espinoza to the county jail.

         At the jail, Espinoza refused to submit to a chemical test. Using a DS 367 form (“AGE 21 AND OLDER OFFICER'S STATEMENT”), Gonzalez advised Espinoza that: (1) she was suspected of driving under the influence of alcohol and, therefore, had the right to choose a blood or breath test; (2) refusal to submit to or failure to complete a blood or breath test would result in her license being suspended for one year or revoked for two or three years; (3) refusal to submit to or failure to complete a blood or breath test could be used against her in court and would result in a fine and imprisonment if she was convicted of DUI; (4) she did not have the right to have an attorney present when deciding whether to submit to a chemical test and when choosing which test; and (5) if she was incapable of completing one of the two test options, she had to submit to the other.

         Espinoza told Gonzalez she would submit to a blood test, but only if the officer obtained a “subpoena, ” “pursuant to McNeely” from the on-duty judge, compelling her to submit to a blood test. Gonzalez understood Espinoza to mean she would submit to a blood test if he first got a warrant. Gonzalez told Espinoza that her willingness to submit to a blood test with a warrant would be treated as a refusal. Gonzalez also told Espinoza that, after the decision in McNeely, the policy of the CHP was to obtain warrants for forced blood draws only in felony DUI cases, [4] and that no warrant would be requested in Espinoza's case. No warrant was obtained, so no blood test was taken. In addition, Espinoza did not submit to a breath test. Espinoza was then booked into jail on suspicion of DUI. Gonzalez personally served Espinoza with notice that her driver's license was suspended or revoked, and forwarded the DS 367 form and his DUI investigation report to the Department.

         B. Administrative Per Se Hearing.

         Espinoza requested an administrative hearing to review the order suspending her driver's license, during which Temple and Gonzalez testified to the facts just stated. Espinoza introduced the expert testimony of Felix D'Amico, a retired sheriff's sergeant and drug recognition expert. D'Amico testified he reviewed the reports prepared by the arresting officer and the mobile video audio recording (MVAR) taken from Gonzalez's police vehicle.

         D'Amico testified he observed no “bad driving” on Espinoza's part, although she was talking on a cellular phone, and that Espinoza had no problem getting out of her vehicle and walking to the curb. Contrary to Temple's account, D'Amico testified that after viewing the MVAR, he concluded Espinoza parked no more than 12 inches from the curb when she was stopped, and there was nothing wrong with the way she parked. D'Amico testified Espinoza did not slur her speech, she had no problem answering the officers' questions, and she was coherent. With regard to Gonzalez's testimony that he observed no mental impairment, D'Amico testified a person cannot be under the influence of alcohol if he or she is not mentally impaired. D'Amico testified he observed no mental impairment because Espinoza had no problem answering the officers' questions and, although she refused to submit to any tests, she did not argue with or show animosity toward the officers. D'Amico also testified that Espinoza was standing straight, she was not swaying, she did not have an unsteady gait, and she did not fall down.

         D'Amico testified bloodshot eyes do not necessarily indicate a person is under the influence of alcohol because there are many reasons why a person's eyes may become bloodshot. D'Amico testified odor of an alcoholic beverage on a person's breath merely indicates the person had alcohol in his or her mouth at some point and does not indicate the person actually swallowed the alcohol. D'Amico opined that Espinoza was not under the influence of alcohol and, therefore, Officer Gonzalez did not have probable cause to lawfully place Espinoza under arrest.

         The hearing officer examined D'Amico. D'Amico testified that if a person merely puts alcohol in his or her mouth but does not swallow it, the alcohol will dissipate entirely in about 20 minutes. If Espinoza had merely placed alcohol in her mouth but had not swallowed it, the alcohol would have dissipated during the stop and investigation.

         In her notification of findings and decision, the hearing officer sustained the one-year suspension of Espinoza's driver's license. The hearing officer found: (1) Gonzalez had reasonable cause to believe Espinoza drove under the influence of alcohol; (2) Espinoza was lawfully arrested; (3) Espinoza was told her driver's license would be suspended or revoked if she refused to submit to or failed to complete a chemical test; and (4) Espinoza refused to submit to or failed to complete a chemical test.

         In her findings of fact, the hearing officer concluded Officer Gonzalez had probable cause to lawfully arrest Espinoza for DUI based on the objective symptoms of bloodshot and watery eyes and the odor of an alcoholic beverage, and based on the additional facts that Espinoza refused to perform field sobriety tests and admitted to consuming alcohol. The hearing officer also concluded Gonzalez correctly admonished Espinoza under the implied consent law that her license would be suspended or revoked if she refused to submit to or failed to complete a chemical test. With respect to Espinoza's refusal to submit to a chemical test, the hearing officer concluded Espinoza's conditional submission under McNeely was a refusal. The hearing officer concluded McNeely only applies to forced blood draws, and Gonzalez did not request a forced blood draw. In addition, the hearing officer concluded Espinoza “adamantly refused all other test[s].” The hearing officer found that Temple and Gonzalez were credible witnesses, and found D'Amico's testimony to be biased and entitled to little weight.

         III.

         PROCEEDINGS IN THE SUPERIOR COURT

         After being served with the Department's administrative per se findings and decision, Espinoza filed a petition for writ of review and administrative mandamus in the superior court challenging the hearing officer's decision. In her points and authorities in support of the petition, Espinoza argued: (1) she was not lawfully arrested because Gonzalez lacked reasonable cause to believe she was under the influence of alcohol; (2) she had a right under McNeely to force the police to obtain a warrant before they drew her blood and, therefore, her conditional consent to a blood test did not amount to a refusal; and (3) the hearing officer's complete disregard of D'Amico's expert testimony and a number of errors on the face of the hearing officer's decision showed the decision was not made in accordance with due process. The Department filed an answer and opposition to the petition.

         At the hearing on Espinoza's petition, the superior court stated its tentative decision was to deny the petition. Espinoza's counsel argued that Espinoza had met her burden of showing the administrative decision was contrary to the weight of the evidence because it contained numerous factual errors. Counsel also argued the administrative hearing was a “farce” because the hearing officer completely disregarded Espinoza's expert witness for no good reason. The court took the matter under submission after hearing argument from the Department.

         The court subsequently entered an order denying the petition. Neither party requested a statement of decision (Code Civ. Proc., § 632), so the trial court did not issue written findings. Thereafter, the trial court entered a judgment in favor of the Department and against Espinoza. The judgment dissolved the stay on Espinoza's license suspension and awarded the Department its costs. The Attorney General served Espinoza with a notice of entry of the judgment, and Espinoza timely appealed.

         IV.

         DISCUSSION

         A. Ap ...


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