Hildebrand v. DMV (2007)

 

CASE BRIEF – HILDEBRAND V. DMV

Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562

This is an important case for understanding what evidence a hearing officer can use to sustain a finding that your client was driving the vehicle. Specifically, it dissects one of the most important statutes in DMV administrative advocacy: Government Code §11513.

Note to Lawyers: If you don’t already know this section, you need to. Or call my office and hire me to assist.

FIRST READ (AND MEMORIZE) THIS STATUTE:

Government Code §11513

(a) Oral evidence shall be taken only on oath or affirmation.

(b) Each party shall have these rights: to call and examine witnesses, to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against him or her. If respondent does not testify in his or her own behalf he or she may be called and examined as if under cross-examination.

(c) The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided.  Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.

(d) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection is timely if made before submission of the case or on reconsideration.

(e) The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing.

(f) The presiding officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.

RELEVANT FACTS

  • Around 2:30 a.m. on July 17, 2005, a Fire Truck observed a vehicle stuck on the train tracks in the 1100 block of West Laurel Street. The Fire Department Captain approached the vehicle while Hildebrand, was revving the engine in an attempt to drive off the tracks.
  • The Fire Captain helped Hildebrand, the only occupant, out of the car and to the sidewalk in case a train came along. The Captain then reported to the San Diego Police Department (SDPD) that a suspected drunk driver, Hildebrand, had driven his car onto, and become stuck on, train tracks.
  • SDPD responded to the scene first and the Fire Captain informed the police officer of what he’d seen.
  • SDPD approached Hildebrand, noticed objective symptoms of intoxication and began field sobriety tests on him. He had to discontinue the tests as Hildebrand was falling over.
  • SDPD arrested him and transported Hildebrand to SDPD headquarters where a chemical test was required for determining his blood alcohol content (BAC).
  • Hildebrand chose a breath test but was unable to complete all portions of the test. His first sample showed a BAC of .21%, but a valid second sample could not be provided.
  • Hildebrand was eventually forced to give a blood sample and the DMV went forward with a “Refusal” action.

ISSUE PRESENTED: WAS SUFFICIENT ADMISSIBLE EVIDENCE INTRODUCED AT THE DMV TO ESTABLISH DRIVING? 

Specifically: is an unsworn hearsay statement of a fire captain admissible on the issue of whether Hildebrand was driving? 

Yes. The appellate court held there were two separate reasons why it was admissible; either one would suffice on its own.

Hildebrand’s Argument: Since Government Code section 11513(d) states that “hearsay evidence is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions,” how is the fire captain’s reported statement — relayed by the police officer — admissible by itself to sustain the finding that Hildebrand was driving? 

(I) The Fire Captain’s statement was admissible under Evidence Code §1280 because it was a statement made by a public employee who has a duty to observe facts and report them correctly. 

The evidence that was presented at the hearing consisted of a sworn statement by the arresting officer, explaining the fire captain’s statements, as well as an unsworn arrest report, also explaining the same statements in greater detail.

Most important, the unsworn report included statements made by Hildebrand himself, explaining why his vehicle was lodged on the tracks — including an admission that he had, in fact, been driving.

The court noted that Evidence Code §1280 makes admissible statements by public employees. Hildebrand argued the fire captain’s statements were inadmissible hearsay and did not fall under §1280 because the fire captain was not a peace officer.

The appellate court made an important distinction — one that should be noted by all attorneys when it comes to civilian hearsay statements — that hearsay statements made by “public employees who have a duty to observe the facts and report and record them correctly” are admissible under the §1280 exception.

Since they are admissible under the §1280 exception, they are sufficient to sustain a finding despite what §11513(d) holds.

(II) Even if the Fire Captain’s Unsworn Hearsay Statement was Insufficient to Sustain a Finding, the hearsay statement by Hildebrand admitting to Driving was admissible under Evidence Code §1220: a party admission. 

Even if Captain Uzdavines’s hearsay statements were considered to be inadmissible under Evidence Code section 1280 to establish that Hildebrand was driving, the fire captain’s observations may be admitted to supplement or explain Hildebrand’s own admissions.

Under Government Code section 11513, subdivision (d), evidence in an administrative hearing may include hearsay evidence for the purpose of supplementing or explaining other evidence. Contained in the officer’s unsworn arrest report, in addition to other statements, is Hildebrand’s admission he was driving. Hildebrand’s statements are excepted from the hearsay rule as party admissions. (Evidence Code, § 1220.)

The observations of the fire captain are admissible under Government Code § 11513(d) to “supplement or explain Hildebrand’s own admissions. Since Hildebrand’s admissions come within the party admission exception to the hearsay rule, the fire captain’s observations are permitted to explain and supplement his admissions about driving.

TERRY’S SILVER LINING:

– IF A STATEMENT IS MADE BY A PUBLIC EMPLOYEE WHO DOES NOT NORMALLY HAVE A DUTY TO CORRECTLY OBSERVE AND REPORT FACTS, THIS OPINION HOLDS THE STATEMENT INSUFFICIENT BY ITSELF TO SUSTAIN A FINDING UNDER GOV CODE 11513.

– IF THERE IS NO ADMISSION TO DRIVING REPORTED IN THE DOCUMENTARY EVIDENCE, THERE IS NOTHING TO BOOTSTRAP UNSWORN HEARSAY STATEMENTS BY CIVILIAN WITNESSES OR PUBLIC EMPLOYEES WITHOUT A DUTY TO OBSERVE & REPORT CORRECTLY. 

 

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