 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Girard v. Gutierrez8/25/2004
Newport Beach Police Officer D. Psaros arrested Robert John Girard II for driving under the influence of alcohol in violation of Vehicle Code section 23152. (All further statutory references are to the Vehicle Code unless otherwise specified.) Following an administrative per se hearing, the Department of Motor Vehicles (DMV) revoked Girard's driver's license for two years because Girard (1) refused to submit to a chemical test under section 13353 and (2) had suffered a prior conviction for driving under the influence in New Jersey within the previous seven years. Girard filed a petition for writ of administrative mandate seeking the reinstatement of his driving privileges. The trial court denied his petition.
On appeal, Girard argues there was insufficient evidence supporting a finding of probable cause to arrest him. He contends Psaros's unsworn arrest report should not have been considered and Psaros's sworn arrest report was factually inconsistent internally and with the unsworn report with respect to the time of the arrest. Girard also argues the trial court erred by failing to decide whether he had been previously convicted under a New Jersey law that is "substantially the same" as section 23152, within the meaning of section 13363, subdivision (b)--a determination necessary to support the two-year revocation of his driver's license.
Based on MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 159, we conclude the trial court did not err by considering the contents of Psaros's unsworn report along with his sworn report. Further, although the trial court impliedly found the sworn report incorrectly stated the time Girard had been arrested, the court did not abuse its discretion by considering it otherwise trustworthy.
The trial court found Girard waived the issue whether he had been previously convicted under a New Jersey law that was substantially the same as section 23152. The court did so on the ground Girard first raised it in the traverse and not in his moving papers. But Girard did not waive this issue because he did raise it in the memorandum of points and authorities filed with the petition as well as in the traverse. We therefore reverse and remand the matter to the trial court to hold a hearing to decide whether Girard's prior conviction was based on another state's law that is substantially the same as section 23152, within the meaning of section 13363, subdivision (b).
FACTUAL BACKGROUND
At 1:05 a.m. on August 3, 2002, Psaros observed Girard driving 67 miles per hour in a 35 miles per hour zone. Girard pulled into a Taco Bell and drove over a curb in the drive-through lane. As Psaros approached Girard's driver's side window, he was overwhelmed by the "odor of alcohol" emanating from inside the vehicle. Psaros asked for Girard's driver's license and, as they conversed, Psaros observed that Girard's speech was slurred. Psaros also smelled alcohol on Girard's breath. Psaros asked Girard to exit the vehicle and noticed he was "off balance and appeared confused." Girard admitted to Psaros he had consumed two beers. Because he had observed "objective symptoms of intoxication" (bloodshot, watery eyes; odor of alcohol; unsteady gait; and slurred speech), Psaros administered various field sobriety tests. Girard's performance on these tests was "very poor."
*2 According to Psaros's unsworn arrest report (the unsworn report), Girard was arrested at 1:25 a.m. Psaros's sworn arrest report on the DMV DS 367 arrest form (the sworn report) noted the time of arrest as 1:05 a.m., even though the sworn report also stated Psaros first observed Girard driving at 1:05 a.m. Psaros asked Girard to take chemical breath and blood tests; Girard refused to take either test, stating he thought he had passed the field sobriety tests and wante
Page 1 2 3 4 5 6 7 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|