 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Fisk v. Department of Motor Vehicles12/23/1981
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE
Civ. No. 57784
1981.CA.40022 ; 179 Cal. Rptr. 379; 127 Cal. App. 3d 72
December 23, 1981
DONALD EDWARD FISK, PLAINTIFF AND RESPONDENT,
v.
DEPARTMENT OF MOTOR VEHICLES, DEFENDANT AND APPELLANT
Superior Court of Los Angeles County, No. C 270502, Vernon G. Foster, Judge.
George Deukmejian, Attorney General, Scott D. Rasmussen and Richard M. Radosh, Deputy Attorneys General, for Defendant and Appellant.
Tumbleson & Lawton and Stephen E. Lawton for Plaintiff and Respondent.
Opinion by Potter, Acting P. J., with Cobey and Lui, JJ., concurring.
Potter
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).
Fisk was arrested by Officer Gary Blackmon of the California Highway Patrol on April 28, 1978, for driving under the influence of alcohol (Veh. Code, § 23102, subd. (a)). The arresting officer, in accordance with the implied consent statute, submitted to the DMV a written "sworn statement." The document, entitled "Officer's Statement, Section 13353 Vehicle Code," recited the arresting officer's "observations" that Fisk's "vehicle was straddling and weaving at approx. 15 mph in a 35 mph zone," and that Fisk "had a blank expression on his face with mouth hanging open and blood-shot eyes," "extremely slurred" speech, "a strong odor of an alcoholic beverage on his breath" and "staggered and swayed side to side as he walked." It further recited that the officer warned Fisk that refusal to submit to a chemical test (breath, urine or blood) to determine the alcoholic content of his blood would result in his license being suspended; and that Fisk responded by saying: "I'm not going to take a test because I've got the money to buy a license. I'll get a lawyer, a real good lawyer, they can't take my license" and by answering "No" to the officer's separate requests to take each of the three tests.
Following the DMV's notice of his license suspension, Fisk requested and received a formal hearing. At the administrative hearing on August
22, the arresting officer testified that he had personally arrested Fisk in the course of his duties as a police officer and had prepared the above document in his own handwriting within an hour of the arrest when "the events it describes [were] fresh in mind" but that he had no independent recollection of the incident. The referee admitted the document in evidence under the exception to the hearsay rule for past recollection recorded and pursuant to Vehicle Code section 14108, over Fisk's counsel's objection that it was "totally inadmissible" hearsay. Fisk did not testify; nor did his counsel present any evidence on his behalf.
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 suspen
Page 1 2 3 4 5 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|