Brown v Valverde (2010) ____Cal.App. ___
a)
Key Facts/Procedural Posture
The Brown case presented a single issue of first impression: In a Department of Motor Vehicles (DMV) administrative per se hearing, can a driver facing license suspension following arrest for driving under the influence seek discovery of confidential peace officer personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 and its statutory codifications? Brown considered two statutory schemes: the DMV administrative per se law (Veh. Code, §§ 13350 et seq.) and what has become known as Pitchess discovery (Evid. Code, §§ 1043, 1045; Pen. Code, §§ 832.7, 832.8).
i)
Key Facts to Arrest
C.H.P. Officer Desmarais observed the Plaintiff Brown driving on a freeway in Oakland while following too closely behind the car in front of him, having difficulty maintaining his lane, veering across the line into the next lane and then jerking back into his own. As Officer Desmarais approached Brown's vehicle, he could smell alcohol emanating from the car, and observed that Brown's eyes were red and watery. Brown admitted he had been drinking, claiming he had two large beers a few hours earlier. After Brown failed several standard field sobriety tests, Officer Desmarais arrested him for driving under the influence of alcohol, and transported him to the CHP office, where chemical tests performed one minute apart confirmed Brown’s BAC to be 0.08 percent and 0.09 percent. Brown, Slip Opinion at 9-10, _____Cal.App.4th_____
ii))
Procedural Posture
Officer Desmarais served Brown with a notice of order of suspension, advising that the DMV intended to suspend his license in 30 days and that he could challenge the suspension by timely requesting an administrative per se hearing. Brown requested such a hearing and, although the arrest occurred on June 3, 2006, for reasons not evident from the record the hearing did not begin until September 29, 2006 and not conclude until November 28, 2006. Brown retained his driving privileges the entire time. Brown, Slip Opinion at 10, _____Cal.App.4th_____
On February 1, 2007, the DMV hearing officer issued its notification of findings and decision: That Officer Desmarais had probable cause to initiate a traffic stop, had observed objective symptoms indicating Brown was intoxicated, had reasonable cause to believe Brown was driving while under the influence of alcohol and made a lawful arrest; and that two chemical tests confirmed Brown had a BAC of 0.08 percent and 0.09 percent shortly after the arrest. Brown, Slip Opinion at 10, _____Cal.App.4th_____.
On February 8, 2007, Brown petitioned the superior court for a writ of mandate, seeking an order compelling the DMV to set aside the license suspension. He also moved to augment the record of the administrative per se hearing, arguing that dispatch records from the night of his arrest demonstrated that Officer Desmarais’s testimony was unreliable. Brown, Slip Opinion at 10-11, _____Cal.App.4th_____.
On July 9, 2007, the trial court granted Brown’s motion to augment, concluding that the dispatch records and other new evidence were relevant and in the exercise of reasonable diligence could not have been produced at the hearing. The trial court also granted Brown’s writ petition in part, concluding that in light of the new evidence, the DMV’s February 1, 2007 findings and decision should be set aside and the administrative hearing reconvened to allow the hearing officer to consider the new evidence. Brown, Slip Opinion at 11, _____Cal.App.4th_____.
On October 2, 2007, before the matter reconvened, Brown filed a Pitchess motion, requesting discovery of Officer Desmarais’s personnel records. Specifically, Brown sought information regarding complaints filed against the officer for conducting illegal traffic stops and detentions, effecting illegal arrests, testifying falsely in court or administrative proceedings, fabricating evidence against suspects, or “acts involving dishonesty, moral turpitude or conduct which reflects a morally lax character . . . .” Brown also sought records of discipline imposed on Officer Desmarais as a result of any such complaints, exculpatory or impeaching evidence, and records reflecting Officer Desmarais’s absence from work on September 7, 2007. Brown, Slip Opinion at 12, _____Cal.App.4th_____.
On October 25, 2007, the matter reconvened for a hearing on Brown’s Pitchess motion, and Brown submitted a reply brief disputing the CHP’s position. After considering the submissions, the hearing officer denied Brown’s motion. On November 14, 2007, Brown petitioned the superior court for a writ of administrative mandamus directing the hearing officer to grant Brown’s Pitchess motion and compel the CHP to produce Officer Desmarais’s personnel records. Brown, Slip Opinion at 12-13, _____Cal.App.4th_____.
After briefing was completed, the trial court issued a tentative ruling granting the petition, which ruling read as follows: “The Petition for Writ of Mandate is GRANTED. Evidence Code § 1043 specifically gives an ‘administrative body’ the authority to entertain a Pitchess motion such as that brought by Petitioner. Brown, Slip Opinion at 33, _____Cal.App.4th_____.
b)
Questions of Law on Review
1. May a driver challenging the automatic suspension of their driver's license in an administrative per se hearing make a Pitchess motion to discover the arresting or other involved officer's personnel records?
c)
Analysis
1)
The Administrative Per Se Hearing Procedural Scheme.
The California Supreme Court last described the purpose of administrative per se hearings for driver's license suspension in MacDonald v. Gutierrez (2004) 32 Cal.4th 150, “Under the administrative per se law, the DMV must immediately suspend the driver’s license of a person who is driving with .08 percent or more, by weight, of alcohol in his or her blood. [Citation.] The procedure is called “administrative per se” because it does not impose criminal penalties, but simply suspends a person’s driver’s license as an administrative matter upon a showing the person was arrested for driving with a certain blood-alcohol concentration, without additional evidence of impairment. The express legislative purposes of the administrative suspension procedure are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions. Brown, Slip Opinion at 2, _____Cal.App.4th_____citing to MacDonald v. Gutierrez , supra, 32 Cal.4that 155-156.
In the administrative per se hearing, the sole task of the hearing officer is to determine whether the arresting officer had reasonable cause to believe the person was driving, the driver was arrested, and the person was driving with a BAC of 0.08 percent or higher. If the hearing officer determines that the evidence establishes these three facts by a preponderance of the evidence, the license will be suspended.1 Brown, Slip Opinion at 3-4 _____Cal.App.4th_____citing to (Veh. Code, §§ 13558, subd. (c)(1); 13557, subd. (b)(2); 14104.2, subd. (a); generally see Lake v. Reed (1997) 16 Cal.4th 448, 455-456; Gikas v. Zolin (1993) 6 Cal.4th 841, 846-847. The procedure is civil in nature and is independent from the criminal prosecution that might ultimately result in the imposition of penalties through the criminal justice system. Brown, Slip Opinion at 4, _____Cal.App.4th_____
The question presented in Brown was whether a Pitchess motion may be brought in an administrative per se hearing for a licensee to challenge the suspension of their driving privilege pursuant to Veh. Code, § 13353.2 and Veh. Code, § 13558. Slip Opinion at
2)
The Pitchess Discovery Statutory Scheme.
The remedy now known as a "Pirchess Motion" derived from a California Supreme Court case in Pitchess, holding that a criminal defendant who is being prosecuted for battery on a peace officer is entitled to discovery of personnel records to show that the officer had a history of using excessive force and that defendant acted in self-defense. Brown, Slip Opinion at _____Cal.App.4th_____citing to Pitchess, 11 Cal.3d at 535-537. The Legislature saw court allegation of both abuse of the Pitchess common law motions as "fishing expeditions" and the countering claims of police destruction of records followed by enacting legislation after the Pitchess decision. In 1978 it codifying the “privileges and procedures” of Pitchess motions, with the enactment of Evidence Code sections 1043 and 1045 and Penal Code sections 832.7 and 832.8. Brown, Slip Opinion at 5-6_____Cal.App.4th,_____citing to City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81.
To seek to obtain the officer’s records, Evidence Code section 1043, subdivision (a), requires the moving party to serve notice of the motion on the parties and the governmental agency in possession of the records. Such notice must comply with Code of Civil Procedure section 1005, subdivision (b), which requires at least 16 days notice of the motion, plus five additional days for service by mail. The agency must then notify the law enforcement officer whose records are the subject of the motion. (Evid. Code, § 1043, subd. (a).) After opposition and any reply (Code Civ. Proc., § 1005, subd. (b)), the court then conducts a hearing to determine whether good cause exists for disclosure of the requested records. If the court finds good cause, the second step involves an in camera review of the personnel records. Brown, Slip Opinion at 8_____Cal.App.4th,_____ citing to Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 61.) There, the court, in the presence of the custodian of records, a court reporter, and sometimes the attorney for the agency and the officer, personally examines the potentially relevant records in chambers. Brown, Slip Opinion at 8_____Cal.App.4th,_____ citing to City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 82-83.
If the court determines there are personnel records that are “relevant to the subject matter involved in the pending litigation,” it orders the records produced and the custodian of records must then prepare them for production. Brown, Slip Opinion at 9_____Cal.App.4th,_____ citing to Evid. Code, § 1045, subd. (a); People v. Mooc, 2001) 26 Cal.4th 1216, 1226.
3)
The Statutory Provisions for DMV Administrative Per Se Hearing
Do Not Allow for Pitchess Discovery Motions to be Made.
A)
Statutory Interpretation
The Brown court reviewed the pure issue of law as to whether a Pitchess motion may be made in a DMV Administrative per se hearing de novo. Brown, Slip Opinion at 14-15_____Cal.App.4th,_____. The Brown court reviewed the competing statutory for its "plain language: if not ambiguous, but also with the caveat that "we do not consider the statutory language in isolation, but rather examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts." Brown, Slip Opinion at 15_____Cal.App.4th,_____., citing to Alford v. Superior Court, (2003) 29 Cal.4th 1033, 1040.
B)
The DMV's Administrative Regulation Language
do not Permit Pitchess Discovery Motions to be Made.
The Brown court looked to California Supreme Court precedent in Lake, supra
for determining whether Pitchess discovery could be made in administrative per se hearings.
“The rules potentially governing the evidence available for use in such hearings are set forth in division 6, chapter 3, article 3 of the Vehicle Code, commencing with section 14100. [Citation.]” Brown, Slip Opinion at 16_____Cal.App.4th,_____., citing to Lake, 16 Cal.4th at p. 458: The Brown court identified all of the evidence that was permitted to be proffered and considered by the hearing officer at administrative per se hearings:
Veh.Code § 14104.7 permits the department’s official records, sworn testimony, and any “evidence concerning any fact relating to the ability of the applicant or licensee to safely operate a motor vehicle,” such as “[r]eports of attending or examining physicians and surgeons,” “[r]eports of special investigators appointed by the department to investigate and report upon any facts relating to the ability of the person to operate a vehicle safely,” and “[p]roperly authenticated reports of hospital records, excerpts from expert testimony received by the department or a hearing board upon similar issues of scientific fact in other cases, and the prior decision of the director upon those issues." Brown, Slip Opinion at 16-17_____Cal.App.4th,_____
With Veh.Code § 14112 holding that all matters not covered by division 6, chapter 3, article 3 being governed, as far as applicable, by Chapter 5 (commencing with Government Code Section 11500. Government Code section 11507.6 addresses discovery in administrative hearings, and identifies the discovery that a party may obtain from another party and the method by which that discovery may be obtained. The specified discovery includes names and addresses of witnesses, statements of witnesses and parties to the proceeding, all writings a party intends to offer into evidence, and investigative reports. Brown, Slip Opinion at 16-17_____Cal.App.4th,_____. See also Brown, Slip Opinion at 30, _____Cal.App.4th,_____, "because the administrative per se hearing “need not be conducted according to technical rules relating to evidence and witnesses” (Gov. Code, § 11513, subd. (c).), there is no guarantee that the hearing officer has the skills to be deciding the evidentiary issues presented by Pitchess motions, such as “good cause” and “relevance.”
In giving weight to the Government Code's provisions, the Brown court opined three reasons for its being controlling here: 1) no mention is made of law enforcement personnel files. 2) it expressly provides that “[n]othing in this section shall authorize the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential,” and Penal Code section 832.7, subdivision (a) specifically designates peace officer personnel records as confidential; and 3) it “provide[s] the exclusive right to and method of discovery as to any proceeding governed by” the APA provisions. Brown, Slip Opinion at 18_____Cal.App.4th,_____.
The Brown court also looked to a leading treatise for guidance, "“The extensive discovery available in civil proceedings is deemed inappropriate for administrative adjudications, ‘which should be simple, quick, and inexpensive.’ ” And, he goes on, “[d]iscovery is allowed to all parties . . . but does not extend to discoverable matters in the possession of nonparties.” Brown, Slip Opinion at 18,_____Cal.App.4th,_____, citing to 9 Witkin, Cal. Procedure, supra, Admin. Proceedings, § 102, p. 1228.
In rejecting the plaintiff's claims that Pitchess discovery motions are applicable to DMV administrative hearings, the Brown court opined that Evidence Code section 1043 does not provide that Pitchess discovery is available in “any” judicial or administrative proceeding. And nothing suggests that this section defines the scope of proceedings in which Pitchess discovery is available. Rather, this provision merely sets out how to initiate the process of obtaining the records, that is, where to file the motion—not when those records are obtainable. Brown, Slip Opinion at 19,_____Cal.App.4th,_____. The Brown court also pointed out that Government Code Section 11507.6 does not expressly state Pitchess motions are permitted, and that "[h]ad the Legislature intended to make a Pitchess motion a discovery tool in DMV administrative per se hearings, it could easily have done so by including or referencing the provisions of Evidence Code § 1043 et seq. as an approved method of discovery within Government Code section [sic] 11507.6 and 11507.7.” The Brown court further pointed out that the Legislature could also have provided for Pitchess discovery in Vehicle Code sections 14100 et seq., the provisions specifically governing DMV administrative per se hearings, but that it did not. Brown, Slip Opinion at 19,_____Cal.App.4th,_____.
The Brown court's last statutory support for its position that Pitchess motions are not permitted at DMV administrative per se hearing was in the language of Evidence Code sections 914 and 915. Evid. Code, § 914, subd. (a)), but that “[n]o person may be held in contempt for failure to disclose information claimed to be privileged unless he has failed to comply with an order of a court that he disclose such information...The exception in subdivision (b) applies only when a court is ruling on the claim of privilege. Thus, in view of subdivision (a), disclosure of the information cannot be required, for example, in an administrative proceeding.” Brown, Slip Opinion at 21-22,_____Cal.App.4th,_____ , citing to Cal. Law Revision Com. com., West’s Ann. Code Evid. (2009 ed.) foll. § 915, p. 256.)
C)
The Legislative History Supports the Conclusion that Pitchess Motions
are Not Permitted at DMV Administrative Per Se Hearings
The Brown court also looked to the legislative history of the Pitchess discovery motion legislation to support its conclusion. Specifically, the legislative history of Senate Bill No. 1436, which ultimately became Evidence Code sections 1043 and 1045 and Penal Code sections 832.7 and 832.8 indicates that it was intended to detail procedures for obtaining discovery of law enforcement personnel records in cases involving allegations of excessive force. Brown, Slip Opinion at 23,_____Cal.App.4th,_____ ; The Brown court also noted the bill's author statements in the legislative record, "The basic issue presented by this bill is whether a peace officer or his or her employing agency may prevent discovery of information which a court has determined to be relevant to the defense of a party charged with a criminal offense and still not violate the defendant’s right to a fair trial and right to full due process under the law. The Supreme Court in Pitchess seems to have already said that such information cannot be denied unless the prosecution is prepared to dismiss the charges.” Brown, Slip Opinion at 24,_____Cal.App.4th,_____
The Brown court's final conclusion from reviewing the legislative history: "There is no suggestion that the Legislature inexplicably intended to increase the scope of Pitchess discovery to include discovery of law enforcement personnel records in every proceeding—criminal, civil, or administrative—where the moving party claims the records are relevant to any issue, such as the officer’s credibility." Brown, Slip Opinion at 25,_____Cal.App.4th,_____. Indeed, it opined in closing that "that the main purpose of the 1978 legislation (Sen. Bill No. 1436) was to curtail the practice of record shredding and discovery abuses which allegedly occurred in the wake of the” Pitchess decision, while protecting “personnel records from random discovery by defendants asserting self-defense to charges of criminal assault upon a police officer.” Brown, Slip Opinion at 26,_____Cal.App.4th,_____, citing to San Francisco Police Officers’ Assn. v. Superior Court (1988) 202 Cal.App.3d 183, 189-190.
D)
The Purpose of Administrative Per Se Hearings Would be
Undermined by Pitchess Discovery Motions.
Lastly, the Brown court opined that the Administrative Per Se Hearing Process would be undermine dif Pitchess discovery motions were permitted as part of its evidentiary scheme because the necessary steps required to obtain Pitchess discovery itself is an antithesis to the "quick, swift and certain" and would create burdensome extra step that would be impractical and difficult to carry out without unnecessary delays. Brown, Slip Opinion at 26-29,_____Cal.App.4th,_____,
d)
Case Disposition
The Plaintiff's petition for issuance of writ of administrative mandamus was reversed and remanded to the DMV for completion of the administrative per se hearing on the issue of suspension of Brown’s driver’s license.
e)
Application of Rule of Law
Unless this case is taken up by the California Supreme Court and reversed, the DMV will not entertain and Pitchess discovery motions or claims of police misconduct. and those defense attorneys seeking such information will have no remedy at the administrative level or through a writ of mandate to the Superior Court.
f)
Implications
Those defense attorneys using the DMV administrative per se hearing for discovery in defense of the collateral criminal case have been dealt a blow if part of that defense is police bias, insubordination to legal procedures or misconduct. Now that information will only be permitted at the pre-trial discovery in the criminal case.
