Metropolitan News-Enterprise


Wednesday, July 9, 2008


Page 3


Court Rules Unexpected Hearsay Challenge Good Cause for Continuance


By STEVEN M. ELLIS, Staff Writer


A Department of Motor Vehicles hearing officer did not abuse her discretion when she continued an alleged drunk driver’s license suspension hearing after the man argued the DMV could not introduce statements by a sheriff’s deputy who stopped him because it could not prove the deputy was on duty, the Fifth District Court of Appeal has ruled.

Reversing a Kern Superior Court commissioner’s decision ordering the DMV to set aside its suspension of Richard Bussard’s driver’s license, the court held in a June 13 opinion ordered published yesterday that Bussard’s argument that the deputy’s statements were inadmissible hearsay absent such a showing gave the hearing officer good cause to continue the proceeding to subpoena the deputy under the circumstances.

A Kern County Sheriff’s Deputy stopped Bussard in June of 2006 after observing him make a left turn against a red light and drive down the wrong side of the street. Observing signs of intoxication, the deputy asked the dispatcher to send a California Highway Patrol officer to take custody of Bussard and transport him to jail.

Blood-Alcohol Content

When the CHP officer arrived, Bussard admitted having consumed six to eight beers, and was first unable, and then unwilling, to complete field sobriety tests. Post-arrest breath tests revealed a blood-alcohol content of .20 percent, and the CHP officer recorded his observations in a statement and a police report which also contained information relayed to him by the deputy.

The DMV then brought proceedings to suspend Bussard’s driver’s license, at which it sought to introduce the statement and report.

But Bussard objected to any portions containing the deputy’s statements. He argued that the statements were hearsay, and did not qualify for the public employee records exception to the hearsay rule under Evidence Code Sec. 1280 because there was no indication the deputy was “on duty” when he observed Bussard.

Noting that Bussard’s objection was valid, and over Bussard’s further objection that he was ready to go forward “today,” the hearing officer continued the hearing in order to subpoena the deputy.

The deputy subsequently appeared at the continued hearing where he confirmed that he had been on duty, satisfying the hearsay exception, and the hearing officer suspended Bussard’s driver’s license for one year, finding that Bussard had driven a vehicle with a blood-alcohol content of at least .08 percent.

Writ of Mandate

Bussard then sought a writ of mandate from the Kern Superior Court, arguing that the hearing officer had impermissibly continued the hearing without good cause in order to cure a defect in the DMV’s case, thereby prejudicing him, and Commissioner Linda S. Etienne agreed with Bussard and ordered the DMV to set aside the suspension.

However, on appeal, Justice Stephen Kane said that the hearing officer’s decision to continue the hearing was within her broad discretion for “several reasons.”

Kane first wrote that the CHP officer had provided adequate factual information to allow a reasonable and probable inference that the deputy had been on duty when he observed Bussard.

Noting that the arrest report plainly stated that Bussard had yielded during a traffic stop, Kane said that it was “highly unlikely (to say the least) that these feats could have been accomplished if [the deputy] was not on duty in his patrol car.”

Kane also remarked that Bussard’s question whether the deputy was on duty was “not reasonably foreseeable,” and that the situation was therefore not one in which the DMV was lacking in diligence or negligently unprepared to meet their burden of proof.

The jurist then opined that Bussard had suffered no prejudice from the continuance because he ultimately received a fair hearing and suspension of his license was stayed until after the conclusion of the continued hearing, and wrote that the flexibility conferred on hearing officers by Vehicle Code Sec. 14104.5(a)—which allows the DMV to issue subpoenas after a hearing has commenced—supported his conclusion.

“Since there was plainly substantial evidence to support the suspension of respondent’s license, and the continuance itself did not constitute an abuse of the hearing officer’s discretion, the trial court erred in granting the writ of mandate,” Kane wrote.

Justices Dennis A. Cornell and Gene M. Gomes joined Kane in his opinion.

The case is Bussard v. Department of Motor Vehicles, F053889


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