Nick

*1411 Opinion

J. David Nick (Nick) appeals from a judgment dismissing a petition for writ of mandate directed against California Department of Motor Vehicles, A. A. Pierce, Director of the Department of Motor Vehicles, and the California Highway Patrol (hereafter respondents). Appellant contends he was denied a fair hearing on the suspension of his driver’s license because he was unable, due to his indigence, to compel the attendance of the arresting officer. He further contends that the evidence does not support the conclusion that he had been driving with a blood-alcohol level of .08 percent or more. We reject both contentions and affirm the judgment.

I.

About 1:55 a.m., on November 14, 1990, Nick was arrested by Officer Gummert of the California Highway Patrol for driving under the influence of alcohol in violation of Vehicle Code section 23152. Officer Gummert based the arrest on personal observation of Nick’s physical symptoms of intoxication and his performance of field sobriety tests. Approximately a half an hour later, appellant was given breath tests at the jail, which registered blood-alcohol levels of .09 and .08 percent. Pursuant to Vehicle Code sections 13353.2 and…

I respectfully dissent. In my view respondents violated appellant’s statutory and constitutional right to cross-examine adversary witnesses at the administrative hearing by demanding payment of a $150 witness fee without valid statutory authorization.

In analyzing the statutory right of cross-examination, one necessarily moves through turgid and murky waters. I begin with Vehicle Code section 13558, which provides that a “person, who has received a notice of an order of suspension ... of the person’s privilege to operate a motor vehicle pursuant to Section . . .13353.2. . .or 23158.5. . . may request a hearing on the matter pursuant to Article 3 (commencing with Section 14100) of Chapter 3, . . .” Section 14112 of chapter 3 of the Vehicle Code provides that all matters concerning the hearing which are “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.” The referenced chapter 5 of part 1, division 3, title 2 of the Government Code deals generally with administrative…

J. David Nick (Nick) appeals from a judgment dismissing a petition for writ of mandate directed against California Department of Motor Vehicles, A.A. Pierce, Director of the Department of Motor Vehicles, and the California Highway Patrol (hereafter respondents). Appellant contends he was denied a fair hearing on the suspension of his driver's license because he was unable, due to his indigence, to compel the attendance of the arresting officer. He further contends that the evidence does not support the conclusion that he had been driving with a blood-alcohol level of .08 percent or more. We reject both contentions and affirm the judgment.

About 1:55 a.m., on November 14, 1990, Nick was arrested by Officer Gummert of the California Highway Patrol for driving under the influence of alcohol in violation of Vehicle Code section 23152. Officer Gummert based the arrest on personal observation of Nick's physical symptoms of intoxication and his performance of field sobriety tests. Approximately a half an hour later, appellant was given breath tests at the jail, which registered blood-alcohol levels of .09 and .08 percent. Pursuant to Vehicle Code sections 13353.2 and…