Fisk v. Department of Motor Vehicles

Opinion

The Department of Motor Vehicles (hereinafter DMV) appeals from a judgment mandating the DMV to set aside its decision suspending Donald Edward Fisk’s license pursuant to the implied consent statute (Veh. Code, § 13353).^[1]

Subsequently Fisk’s license was suspended and Fisk sought a writ of mandate in the superior court. The court concluded that the “Officer’s Statement” was hearsay, not admissible under any exception to the hearsay rule, which did not constitute substantial evidence, and license suspension based solely on such hearsay evidence violated due process. The court granted a peremptory writ ordering the DMV to set aside his suspension. This appeal followed.

The Officer’s Report Was Admissible Under the Official Records Exception to the Hearsay Rule

The DMV contends, and we agree, that, in view of his testimony, the “Officer’s Statement, Section 13353 Vehicle Code” constituted competent evidence since it qualified for admission in evidence as an official record, a well-recognized exception to the hearsay rule.^[3]

Evidence Code section 1280 provides: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

“(a) The writing was made by and within the scope of duty of a public employee;

“(b) The writing was made at or near the time of the act, condition, or event; and

“(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

The foundational requirement of subdivision (a) of section 1280 was established by the officer’s testimony that, in the course of his duties, he personally arrested Fisk for drunk driving and wrote this report which was mandated by Vehicle Code section 13353. The timeliness condition (subds. (b), (c)) was met by the officer’s testimony that he prepared the document within an hour of the arrest while the events he described were still fresh in his mind. The “sources of information ... indicate[d] its trustworthiness” (subd. (c)) since the writing consisted of a report of firsthand observations by the arresting officer.

The requirement of a trustworthy “method” of preparation (subd. (c)) was also satisfied. “The trustworthiness requirement for this exception to the hearsay rule is established by a showing that the written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly.” (People v. Baeske (1976) 58 Cal.App.3d 775 , 780 [ 130 Cal.Rptr. 35 ]; italics in original.) (See also Jefferson, Cal. Evidence Benchbook (1978 supp.) § 5.1, p. 98.) The arresting officer had a duty under Vehicle Code section 13353 to submit a written “sworn statement” to the DMV reporting these observations and the licensee’s refusal to submit to a chemical test. He performed that duty by filling out the “Officer’s Statement, Section 13353 Vehicle Code” on an official DMV form^[4] and signing it “under penalty of perjury.” The officer’s testimony that he personally wrote the report while “the events it describes [were] fresh in [his] mind” was sufficient to establish that the report accurately described the events he observed.

Moreover, the trustworthiness of the method of preparation of the report is also supported by the presumption, contained in Evidence Code section 664, that “official duty has been regularly performed.” This presumption, which affects the burden of proof (see Evid. Code, §§ 606, 660), applies to police officers (see, e.g., People v. Farrara (1956) 46 Cal.2d 265 , 269 [ 294 P.2d 21 ]; August v. Department of Motor Vehicles (1968) 264 Cal.App.2d 52 , 65 [ 70 Cal.Rptr. 172 ]; Whaley v. Jansen (1962) 208 Cal.App.2d 222 , 230 [ 25 Cal.Rptr. 184 ]) and may help lay the foundation for admissibility of evidence. (See Dutton, The

We recognize, of course, that section 664 is expressly inapplicable “on an issue as to the lawfulness of [a warrantless] arrest.” The obvious purpose of this exception is to codify the common law rule that the burden of proof as to the legality of an arrest shifts to the proponent upon a prima facie showing of illegality by proof that the arrest was made without a warrant. (See Badillo v. Superior Court (1956) 46 Cal.2d 269 , 272 [ 294 P.2d 23 ]; Assem. Com. of the Judiciary comment to Evid. Code, § 664.) It is true that one of the issues at the DMV hearing was whether Fisk was legally arrested. (See Veh. Code, § 13353, subds. (a), (c).) We do not, however, perceive that the exception to Evidence Code section 664 is intended to make the presumption that official duty is regularly performed inapplicable whenever there is an issue as to the foundation for evidence merely because one of multiple ultimate issues upon which that evidence is relevant^[5] is the legality of an arrest.

Thus, section 664 places the burden with respect to the foundational issue of the trustworthiness of the method of preparation of the official report on the licensee instead of the officer. Accordingly, Fisk had the burden of showing that the officer failed in his duty to observe and report correctly the events described if Fisk opposed the admission of this report into evidence, even though the burden of proof with respect to the legality of the arrest remained with the DMV. Fisk, however, did not even attempt to controvert the presumptive accuracy of this official report.

Commentators have recognized the interrelationship between the official records hearsay exception and the presumption of proper performance of official duty. Thus, Wigmore points out that the essential “circumstantial probability of trustworthiness” justifying the common law exception to the hearsay rule for official statements “is related in its thought to the presumption that public officers do their duty. When it is a part of the duty of a public officer to make a statement as to a fact coming within his official cognizance, the great probability is that he

Similarly, McCormick states: “The special trustworthiness of official written statements is found in the declarant’s official duty and the high probability that the duty to make an accurate report has been performed. [Fn. deleted.]” (McCormick, Evidence (2d ed. 1972) § 315, p. 735.)

Moreover, the officer’s lack of independent recollection of the event at the time of the hearing does not render his contemporaneous written sworn statement untrustworthy. It has been noted that the principal reasons for this well recognized hearsay exception for official records are (1) the presumption that a public official will perform his duty properly and (2) the unlikelihood that he will remember details independently of the record. (Advisory Com. Notes to Proposed Fed. Rules Evid., rule 803(8), 28 U.S.C.; see Wong Wing Foo v. McGrath (9th Cir. 1952) 196 F.2d 120 , 123.) Given the volume of official police work, the officer’s official written statement will usually be more reliable than his present memory. (McCormick, supra, § 315 at p. 736.)

Accordingly, sufficient foundation was laid for the admission in evidence of this official report under Evidence Code section 1280, the official records exception to the hearsay rule.^[6]

The Suspension Complied With Due Process

The suspension of Fisk’s license, solely on the basis of the officer’s sworn statement, was supported by substantial evidence and did

Nor was Fisk denied a due process right to cross-examine and confront the arresting officer. Fisk had the opportunity to confront the person who had made charges against him and to present evidence refuting such charges. (See August v. Department of Motor Vehicles, supra, 264 Cal.App.2d at p. 60.) The officer was present and testified at the hearing. In Noll v. Department of Motor Vehicles (1969) 274 Cal.App.2d 281 [ 79 Cal.Rptr. 236 ], the appellate court rejected a licensee’s claim that his right of cross-examination at the DMV hearing was curtailed because the officer, though present, did not recollect some of the details. The court in Noll pointed out (id., at pp. 285-286): “‘The chief object of cross-examination is to test the credibility, knowledge, and recollection of the witness.’ (People v. Watson (1956) 46 Cal.2d 818 , 827 [ 299 P.2d 243 ].) [The licensee] successfully tested the knowledge and recollection of the witness and established that it was imperfect. (See Evid. Code, § 780, subd. (c).)” Here, the officer’s lack of recollection was established by his direct testimony and the voir dire conducted by Fisk’s counsel. Fisk, moreover, had the opportunity to cross-examine the officer respecting his practices in making such reports in an attempt to demonstrate their unreliability. He also had the opportunity to refute the report by his own testimony or that of other witnesses. There was nothing unfair about the conduct of this proceeding: the DMV presented the competent evidence in its possession; and the licensee, though he had apparently indicated a desire to challenge the validity of the summary license suspension on the basis of the sworn statement by requesting this formal hearing, chose to rest his case with