MacKler v. Alexis

*65 DALSIMER, J.

I respectfully dissent for several reasons. First, this decision contributes to the diversity of decision which already exists in this area of law. Second, I believe that the lead opinion in this case and the decisions in other cases upon which it relies incorrectly determine that there has been a legislative creation of an exception to the hearsay rule pertaining to the sworn statement of the arresting officer. Third, I feel that the use of the report of the arresting officer is not warranted under the official records exception to the hearsay rule. Finally, and most importantly, I believe that to permit the Department of Motor Vehicles (DMV) to conduct the hearing without producing thereat the arresting officer is a violation of the licensee’s due process right of confrontation.

The Use of Hearsay

Two cases have recognized that in an informal hearing under Vehicle Code section 14104 1 the police officer’s sworn statement made pursuant to section 13353 is not sufficient to support a finding against the licensee when contradicted by other evidence. (August v. Department of Motor Vehicles (1968) 264 Cal.App.2d 52, 62 [ 70 Cal.Rptr. 172 ]; Fallis v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 373, 379 [ 70 Cal.Rptr. 595 ].) The lead opinion declines to follow August and Fallís and instead holds that there is statutory authorization for the admission of hearsay and that such hearsay is a sufficient basis for a finding against the licensee even though contradicted by other evidence. The lead opinion relies upon Fankhauser v. Orr (1968) 268 Cal.App.2d 418 [ 74 Cal.Rptr. 61 ]. That case involved an informal hearing. The court noted that section 14108 provides that at a formal hearing the DMV shall consider its official records and that at an informal hearing the DMV may consider any of the records or reports referred to in section 14108. The court concluded that the arresting officer’s sworn statement, having been filed with the DMV under the mandate of section 13353, became an “official record” of the DMV within the meaning of *66 section 14108 and thus should have been considered by the hearing officer. This conclusion was reached by the Fankhauser court without further explanation or citation of authority. The court in Burkhart v. Department of Motor Vehicles (1981) 124 Cal.App.3d 99 [ 177 Cal. Rptr. 175 ] also relied on Fankhauser even though the hearing requested there was formal (§ 14107), as was the hearing in the case at bar. (The hearing conducted was informal. (Id., at p. 102.))

Although neither August nor Fallís dealt specifically with the question whether the sworn statement of the arresting officer provided for by section 13353 was hearsay, in both opinions the court held such report to be a sufficient basis for the summary suspension of the license if the licensee does not ask for a hearing, and indicated that at an informal hearing such statement is sufficient prima facie evidence of any matter as to which there is no conflicting evidence. The lead opinion in this case and the court in Burkhart uncritically accept the Fankhauser holding that the interaction of section 14104 with section 13353 creates a statutory exception to the hearsay rule, thus validating the admission of and reliance upon the officer’s written statement.

Division 2 of the Vehicle Code provides for the administration of the DMV. Article 3 of chapter 1 of division 2 of the Vehicle Code provides what records shall be maintained by the DMV. (§§ 1800-1819.) Article 3 contains a comprehensive scheme for identifying which records shall be kept, the manner in which they shall be kept, and whether a specific record is public. Nowhere in article 3 is there any mention of the sworn statement provided for in section 13353. The DMV is specifically enjoined to maintain records dealing with the registration of vehicles (§ 1800, subd. (a)), records dealing with licenses to operate motor vehicles (§ 1800, subd. (b)), accident reports (§ 1806), abstracts of court records of convictions under various statutes, including statutes involving use or possession of controlled substances (§§ 1803, 1804, 1806, 1818), abstracts of convictions for traffic offenses (§§ 1806, 1818) and of the disposition of traffic offenses committed by juveniles (§ 1816), and even records of the mileage of motor vehicles upon their sale (§ 1819). A time-honored rule of statutory construction provides that when a listing of subject matter is made, that which is not listed is excluded. An application of this rule would seem to demonstrate that the holding in Fankhauser that the statement of the arresting officer required by section 13353 becomes one of the records mentioned in section 14108 is contrary to fact and is unsupported by reason or law.

*67 I do not quarrel with the holding that, when no hearing is requested, the officer’s sworn statement may be considered by the DMV and that a suspension may be based thereon; however, once an informal hearing has been requested, a different result ensues. By virtue of section 14108, the DMV may consider the sworn statement as a hearsay document, not as an exception to the hearsay rule. It has been held that informal hearings are not covered by the provisions of the Government Code dealing with administrative hearings. (Hough v. McCarthy (1960) 54 Cal.2d 273, 286-287 [ 5 Cal.Rptr. 668 , 353 P.2d 276 ]; August v. Department of Motor Vehicles, supra, 264 Cal.App.2d 52, 59-60 .) This is not so in a formal hearing. Section 14112 provides: “All matters in a formal hearing not covered by this chapter shall be governed, as far as applicable, by the provisions of the Government Code relating to administrative hearings, and particularly by Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.” As a formal hearing is governed in part by the Administrative Adjudication Act, section 11513 of the Government Code applies. Subdivision (c) of that section provides in part: “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions....’

The Report as an Official Record

The holding in Burkhart and the lead opinion in the instant case have blurred the distinctions between an informal hearing and a formal hearing to the point of extinction. At a formal hearing, because of Government Code section 11513, subdivision (c), the statement of the arresting officer is insufficient in itself to support a finding that the licensee was reasonably arrested, or advised of his obligation to take a test, or refused to take any test.

Of course, if the sworn statement of the arresting officer can be admitted as a recognized exception to the hearsay rule, it would be sufficient basis for such a finding. The court in Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 76-79 [ 179 Cal.Rptr. 379 ], 2 held that the officer’s statement constituted admissible hearsay as an official record, and the lead opinion herein agrees with that analysis. (Evid. *68 Code, § 1280.) I respectfully disagree that the officer’s statement was an official record.

Insofar as the Fisk court held that the trustworthiness of the method of preparation of the report was supported by the presumption that official duty has been regularly performed, its finding disregarded without citation of authority the express legislative exception in Evidence Code section 664. That section reads: “It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.” Section 13353, as interpreted by the courts, recognizes as a basic issue the question as to whether the licensee was legally arrested. The lead opinion concedes, by its quotation ante, at page 60, from Burkhart and ante, at page 59, footnote 4, from the statement of the referee, that the lawfulness of the arrest is a central issue in this case. The Fisk court states that it does not “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 the multiple ultimate issues upon which that evidence is relevant is the legality of an arrest.” (Fisk v. Department of Motor Vehicles, supra, 127 Cal.App.3d 72, 78 , fn. omitted.) I cannot understand this lack of perception. I do not know how the Legislature could be more clear in its statement as to when the presumption of official duty regularly performed does not apply. The lead opinion appears to draw a distinction here based on the fact that the hearing is civil rather than criminal. The exception contained in Evidence Code section 664 is not limited to criminal cases, but extends as well to civil hearings under section 14112. Neither are criminal actions the only situations wherein “the possible abridgement of constitutional rights may be involved.” (Lead opn., ante, p. 58, fn. 4.) Serious due process problems (post, pp. 70-72) exist under the approach of the lead opinion.

The second reason why I do not believe that the sworn statement of the police officer constitutes an official record is, I believe, much more basic. The necessity for the exceptions to the hearsay rule which permit business records and official records to be used goes without question in this modern day and age. Nevertheless, these exceptions to the hearsay rule are not without limitation. This limitation has been recognized for many years. It was mentioned as early as 1835 in the English case of Poole v. Dicas (1835) 131 Eng.Rep. 1267, 1269, and as early as 1854 in Lord v. Moore (1854) 37 Me. 208, 220 , and is said by Wigmore to *69 require that there must be no motive of the maker of the record to misrepresent. (5 Wigmore, Evidence (Chadbourn rev. ed. 1974) § 1527, p. 448.) The leading case in this regard is Palmer v. Hoffman (1943) 318 U.S. 109 [ 87 L.Ed. 645 , 63 S.Ct. 477 , 144 A.L.R. 719 ], In that case, the court excluded a written accident report made by a train engineer on the grounds that “[u]nlike payrolls, accounts receivable, accounts payable, bills of lading and the like, these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.” (Id., at p. 114 [ 87 L.Ed. at p. 650 ].)

The same principle was recognized by the Congress of the United States when dealing with rule 803(8)(B) of the Federal Rules of Evidence. The Judiciary Committee of the House of Representatives had approved the provision as it was reported by the Supreme Court (H. R. Rep. No. 93-650, 2d Sess. (1974)), but, on the floor of the house after debate, rule 803(8)(B) was amended to provide the matter which is enclosed in brackets in the following excerpt: “Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (B) matters observed pursuant to duty imposed by law [as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel ....]” (120 Cong. Rec. 2387-2389 (1974), italics supplied.) Of course, we are not dealing with the right of a defendant in a criminal trial. But, as was pointed out in August v. Department of Motor Vehicles, supra, 264 Cal.App.2d 52 , “The provisions of the Sixth Amendment to the federal Constitution in terms protect only persons charged with a crime and have been held to apply only to criminal proceedings. The presence in the amendment of that provision has, however, colored judicial thinking as to noncriminal proceedings. [Citation.]” (Id., at p. 60.) It has long been the rule in California that reports such as a police officer’s sworn statement are not admissible under the Official Records Act. (Hoel v. City of Los Angeles (1955) 136 Cal.App.2d 295, 309 [ 288 P.2d 989 ].)

In my view the proper interpretation of section 1280 of the Evidence Code must include a consideration of the motivational factor. Under Evidence Code section 1280, subdivision (c), the sources of information must be taken into consideration to determine the trustworthiness of the writing. As was recognized in Palmer v. Hoffman, supra, 318 U.S. 109 , documents prepared for the purpose of litigation lack the presumption *70 of trustworthiness that may apply to documents prepared in the ordinary course of business. Thus, in the case of the verified statement prepared by a police officer after arrest, it would seem that there might be a motivation on the part of the officer to justify his action. The verified statement is by its very nature a part of the litigation process. It triggers the action of the DMV in enforcing section 13353. It is no more a regular record made in the course of business than was the report of the engineer in Palmer v. Hoffman, supra, 318 U.S. 109 . I hasten to add that I have no inherent distrust of police officers or lack of respect for their obligations. Nevertheless, the fact cannot be eschewed that the officer has taken a position; he has made an arrest. He has developed an interest in the outcome thereof. Further, I do not believe that the appellate courts should allow their zeal for the enforcement of a worthwhile statute to erode the protection of the rules of evidence which have evolved through the history of Anglo-American jurisprudence.

Due Process

I respectfully believe that the Burkhart court was in error and that the August court was correct in their respective evaluations of the procedural due process aspects of the problem at hand. The court in Greene v. McElroy (1959) 360 U.S. 474 [ 3 L.Ed.2d 1377 , 79 S.Ct. 1400 ] stated: “Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right ‘to be confronted with the witnesses against him.’ This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, [citations], but also in all types of cases where administrative and regulatory actions were under scrutiny. [Citations.]” (Greene v. McElroy, supra, 360 U.S. 474, 496-497 [ 3 L.Ed.2d 1377, 1390-1391 ], fn. omitted.)

*71 In making its case that due process did not require that the DMV produce the officer at the hearing, the Burkhart court states: “The physical presence of the officer at the hearing would not substantially enhance the reliability of the hearing process. The officer and the licensee would engage in a swearing match and cross-examination of the officer would seldom reveal any weaknesses in his testimony, simply because the issues are neither complex nor subtle.” (Burkhart v. Department of Motor Vehicles, supra, 124 Cal.App.3d 99, 110 .) I would respectfully suggest that what the Burkhart court characterizes as “a swearing match” is known in Anglo-American jurisprudence as the adversary system. I, for one, am not ready to abandon that system for a system of inquisition. As the Supreme Court has said, “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. [Citations.]” (Goldberg v. Kelly (1970) 397 U.S. 254, 269 [ 25 L.Ed.2d 287, 300 , 90 S.Ct. 1011 ].) Again, I differ with the Burkhart court in its interpretation of the quoted statement from Steen v. Board of Civil Service Commrs. (1945) 26 Cal.2d 716, 726-727 [ 160 P.2d 816 ]: “The general rule is that in the absence of a special statute an administrative agency cannot over objection make findings of fact supported solely by hearsay evidence. [Citations.]” To reiterate, there is no special statute involved here. The holding in Steen governs.

All of the cases which have dealt with section 13353 agree that depriving the licensee of his license is a severe sanction and one which has a severe impact upon an important aspect of life in contemporary California society. In Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70 [ 177 Cal.Rptr. 566 , 634 P.2d 917 ], the court, in reaffirming the constitutionality of section 13353, cited August approvingly as being a case which held that the statute satisfied procedural due process requirements. (Hernandez v. Department of Motor Vehicles, supra, 30 Cal.3d 70, 73, fn. 5 .) It is my opinion that the August decision is correct and that it should be followed in this case.

I further respectfully disagree with the lead opinion’s finding that a licensee’s “due process rights to cross-examine the police officer who made the written sworn statement” (lead opn., ante, at p. 61) could be exercised by the licensee calling the officer as a witness. The lead opinion cites no authority for the proposition that, in affording the due process rights of confrontation and cross-examination, it is up to the accused to seek out and bring the accuser to court. I suspect this is so because there is no such authority. The lead opinion permits the hearing *72 officer to receive the sine qua non of the case against the licensee via the hearsay statement of the officer and then permits the accused to summon as his own witness the author of the statement in the hope of impeaching not the officer, but the hearsay statement. If, indeed, the licensee has, as I believe he does, a right to be confronted by and to cross-examine his accuser, then the correlative duty on the part of the DMV is to produce the accuser at the hearing. If the law does not require the DMV to produce at the hearing the police officer who instigated the complaint against the licensee, then in my opinion the hearing becomes a farce. If the police officer is unavailable, what becomes of the licensee’s due process rights? I do not contend, as the lead opinion suggests, that the DMV should automatically subpoena the arresting officer in every case where a formal hearing is requested, but only where the licensee requests that the officer be produced.

If, as the court states in Burkhart , a formal hearing may result in the suspension of the license when the only evidence before the hearing officer is a sworn hearsay statement of an absent police officer which is contradicted by the live sworn testimony of the licensee and a witness, then, indeed, the constitutional requirement of providing a hearing has become nothing more than sham and pretense. The lead opinion states ante, at pages 64-65, footnote 10, that the “horrendous seriousness of the drunk driving problem” convinced the Legislature that a “streamlined method of conducting” section 13353 hearings was essential. As indicated, I do not believe that the Legislature has provided a streamlined method as the lead opinion asserts. In any case, I respectfully suggest that the end does not justify the means, particularly not where the means is a retreat from constitutional principles.

The judgment should be affirmed.

A petition for a rehearing was denied April 23, 1982. Dalsimer, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied July 14, 1982.

All statutory references hereinafter are to the Vehicle Code unless otherwise designated.

The Fisk court refrained from considering the question whether section 14108 creates an independent statutory exception to the hearsay rule and the due process questions thereby posed. (Id., at p. 76, fn. 3.)