Bell v. Department of Motor Vehicles

I respectfully dissent.

It is my view that the rebuttable presumption contained in Vehicle Code section 23152 1 is inapplicable to administrative hearings.

In Burge v. Department of Motor Vehicles (1992) 5 Cal. App,4th 384, 391 [ 7 Cal.Rptr.2d 5 ], Division One of this court held the section 23152 presumption was applicable to administrative proceedings. Although I followed the reasoning of Burge in several unpublished opinions, I now believe the reasoning of the Burge court was incorrect.

Department of Motor Vehicle’s (DMV) administrative per se procedure of immediately suspending driving privileges is authorized by section 13353.2. Subdivision (a) of that section provides that the DMV “shall immediately suspend the privilege of any person to operate a motor vehicle if the person was driving or was in actual physical control of a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood.” Thus, the subdivision makes suspension of driving privileges dependent on a specific finding of an individual’s blood-alcohol level rather than the fact that she or he may have been driving while intoxicated. One of the critical questions in DMV…

The Department of Motor Vehicles (DMV) appeals from a judgment granting respondent Michael A. Bell’s petition for a writ of mandate and ordering the DMV to set aside the suspension of Bell’s driving privilege. It contends that substantial evidence does not support the trial court’s decision to overturn the suspension order. We agree. Therefore, we reverse and direct the trial court to deny Bell’s petition.

Factual and Procedural Background

While on patrol, California Highway Patrol (CHP) Officer J. Perez and another officer observed Bell “come out of a club” and drive away with the car windows down and music playing at a level such that Perez could hear it from a distance of 100 feet. Perez stopped the vehicle and informed Bell that he had violated Vehicle Code section 27007, which limits the level at which a driver may play a vehicle’s sound system during the vehicle’s operation.

During the stop, Perez observed that Bell had bloodshot eyes, slurred speech, and an odor of alcohol on his breath. Perez then conducted field sobriety tests, which Bell failed. Therefore, at approximately 2:05 a.m. on August 14, 1991, Perez arrested Bell for driving under the influence of…

The Department of Motor Vehicles (DMV) appeals from a judgment granting respondent Michael A. Bell's petition for a writ of mandate and ordering the DMV to set aside the suspension of Bell's driving privilege. It contends that substantial evidence does not support the trial court's decision to overturn the suspension order. We agree. Therefore, we reverse and direct the trial court to deny Bell's petition.

While on patrol, California Highway Patrol (CHP) Officer J. Perez and another officer observed Bell "come out of a club" and drive away with the car windows down and music playing at a level such that Perez could hear it from a distance of 100 feet. Perez stopped the vehicle and informed Bell that he had violated Vehicle Code section 27007, which limits the level at which a driver may play a vehicle's sound system during the vehicle's operation. [1]

During the stop, Perez observed that Bell had bloodshot eyes, slurred speech, and an odor of alcohol on his breath. Perez then conducted field sobriety tests, which Bell failed. Therefore, at approximately 2:05 a.m. on August 14, 1991, Perez arrested Bell for driving under the influence of alcohol in violation of…