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Williams v. Department of Motor Vehicles4/16/2003
The director of the California Department of Motor Vehicles (DMV) appeals a judgment granting a petition for writ of mandate. The judgment overturns a decision of the DMV which suspended the driving privilege of Kimberly Williams (Williams) for four months for driving with a blood-alcohol concentration (BAC) of 0.08 percent or more. As discussed below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 14, 2001, Riverside County Sheriff's Deputy Irvine was stopped at the intersection of Country Club and Bob Hope in Rancho Mirage when he saw a Mercedes stop in the intersection beyond the limit line. He contacted the driver, Williams, and noticed objective signs of intoxication. Williams acknowledged she had consumed alcohol. She also failed to properly perform field sobriety tests. Deputy Irvine arrested her on suspicion of driving under the influence of alcohol. (Veh. Code, § 23152.) Given the choice of submitting a blood, breath or urine sample, Williams chose a blood test. She also exercised her statutory rights and requested an administrative review hearing.
At the administrative hearing, the DMV introduced into evidence Deputy Irvine's sworn report on DMV form DS 367, his unsworn incident report, the suspension order, the forensic alcohol analysis report, and Williams's driving record printout. Williams objected to the introduction of Deputy Irvine's reports on several grounds, including that his unsworn incident report was inadmissible hearsay. The hearing officer overruled all of Williams's objections and issued a notification of findings and decision, sustaining the license suspension because Williams's BAC was 0.08 percent or more at the time of driving. Under section 13353.3, subdivision (b)(1), Williams received a four-month suspension of her license based on her record.
Williams filed a petition for a writ of mandate (Code Civ. Proc., § 1094.5) to set aside the suspension. She alleged, in part, that the DMV erred in admitting Deputy Irvine's unsworn incident report into evidence and allowing its use to establish the time her blood was drawn as required by section 23152, subdivision (b). In opposition, the DMV contended, in part, that the unsworn incident report was properly received in evidence.
The trial court granted the petition, ruling as follows: Deputy Irvine's sworn statement stated only that Williams's blood test was taken in the morning of January 14, 2001; the hearing officer's finding that Wiliams's blood was drawn at 3:15 a.m. was based on Deputy Irvine's unsworn incident report; the unsworn incident report was the only evidence that Williams's blood was drawn within three hours of the time of driving, as required by section 23152, subdivision (b); and based on Solovij v. Gourley (2001) 87 Cal.App.4th 1229, the DMV may not rely on the unsworn incident report. Concluding the evidence was insufficient to show that Williams was driving a motor vehicle with a 0.08 percent or higher BAC, the trial court granted the petition.
The DMV filed the instant appeal, arguing the trial court abused its discretion. Williams filed a statement of nonopposition, stating she does not oppose the appeal. She asks that we dismiss the appeal as moot or, in the alternative, that we grant it by default and without the issuance of a published opinion because she already has served the full term of the DMV license suspension and probation and, therefore, would not face additional penalties even if the judgment were reversed. She unsuccessfully sought a stipulated resolution of the appeal. In its reply brief, the DMV acknowledges that Williams completed her period of suspension and no adverse consequences will attach even if th
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