Arburn v. Department of Motor Vehicles , 151 Cal. App. 4th 1480 ( 2007 )

Opinion

MIHARA, Acting P. J.

Following an administrative hearing, appellant Department of Motor Vehicles (the DMV) suspended respondent Jeffrey J. Arburn’s driving privileges for one year for driving motor vehicle while under the influence of alcohol. (See Veh. Code, §§ 13353.2, 13353.3, subd. (b)(2).)¹ The superior court granted Arburn’s subsequent petition and issued a writ of mandate directing the DMV to set aside the suspension. On appeal, the DMV contends the superior court erred in reversing Arburn’s suspension on the grounds that the arresting officer did not have reasonable suspicion to stop Arburn’s vehicle. We agree and reverse.

I. Background

On March 31, 2005, at approximately 5:00 p.m., San Jose Police Officer Lira was stopped at a stop sign eastbound on Forest at the Bascom Avenue intersection.² Turning to his left, Officer Lira saw Arburn’s “vehicle weaving, S/B Bascom Ave. and almost hit the curb.” Arbum’s vehicle was “weaving in Lane #2,” and was “traveling at about the speed limit” when it “almost hit the west curb of Bascom Ave.” Officer Lira pulled behind the vehicle as it passed in front of him and the car “immediately turned into a parking lot of a business.” Officer Lira “initiated a vehicle stop for the weaving in the roadway.” >

Upon contacting Arburn, Officer Lira observed several objective symptoms of intoxication: bloodshot/watery eyes, the odor of an alcoholic beverage, unsteady gait, slurred speech, and horizontal nystagmus. Arburn “needed to lean on [the] police car at times to keep steady” and was “very slow in [his] responses.” Officer Lira arrested Arburn for driving under the influence. On the way to the police station, Arburn began to fall asleep in the back of the police car. A blood-alcohol test administered one hour later confirmed a blood-alcohol content. of 0.23 percent, well over the legal limit of 0.08 percent. (See § 23152.) As a result of the blood test results, the DMV suspended Arbum’s driver’s license.

Arburn requested an administrative hearing pursuant to section 13558 to determine whether the suspension of his license was justified. (§ 13558, subd. (a); see also Lake v. Reed (1997) 16 Cal.4th 448, 456 [65 Cal.Rptr.2d 860, 940 P.2d 311] [describing right to hearing upon request and hearing process].) At the hearing, the administrative officer was tasked with determining: (a) whether the officer had reasonable cause to believe that Arburn had been driving a motor vehicle in violation of section 23152; (b) whether Arburn was lawfully arrested; and (c) whether Arburn was driving a motor vehicle with a blood-alcohol content of 0.08 percent or greater. (§§ 13557, subd. (b)(2), 13558, subd. (c)(2).) Arburn challenged only the second statutory requirement—that he was not lawfully arrested—and contended that Officer Lira did not have sufficient cause to stop his vehicle. The hearing officer found all three statutory prerequisites met by a preponderance of the evidence and reinstated the suspension of Arbum’s driving privileges.

On September 26, 2005, Arburn petitioned the superior court for review of the administrative findings. (See § 13559 [providing for judicial review of license suspension].) The court issued an alternative writ temporarily staying the suspension to consider Arbum’s petition for writ of mandamus. At the hearing on the petition, the court found there was insufficient evidence to support the findings that the investigatory stop was justified. The court issued a writ of mandate directing the DMV to set aside its order suspending Arbum’s driving privileges. The DMV filed a timely appeal.

II. Discussion

In ruling on a driver’s petition for writ of mandamus, the trial court uses its independent judgment to determine “ 1 “whether the weight of the evidence supported the administrative decision.” ’ ” (Lake v. Reed, supra, 16 Cal.4th 448, 456-457.) On appeal, the trial court’s factual findings must be upheld if supported by substantial evidence. (Id. at p. 457.) If the facts are undisputed and the issue presented is a question of law, as it is here, we conduct an independent review. (See Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372 [4 Cal.Rptr.3d 46]; Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517 [1 Cal.Rptr.2d 528].)

“ ‘Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess “reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity.” . . . Such reasonable suspicion “requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” ’ ” (People v. White (2003) 107 Cal.App.4th 636, 641 [132 Cal.Rptr.2d 371], citation omitted.) “Under this standard, an officer may stop and briefly detain a suspect for questioning for a limited investigation even if the circumstances fall short of probable cause to arrest.” (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 509 [30 Cal.Rptr.3d 275] (Brierton).) The standard of reasonable suspicion is “less demanding than probable cause ‘not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show-probable cause.’ ” (People v. Souza (1994) 9 Cal.4th 224, 230-231 [36 Cal.Rptr.2d 569, 885 P.2d 982].) At the same time, however, “no stop or detention is permissible when the circumstances are not reasonably ‘consistent with criminal activity’ and the investigation is therefore based on mere curiosity, rumor, or hunch.” (In re Tony C. (1978) 21 Cal.3d 888, 894 [148 Cal.Rptr. 366, 582 P.2d 957] (Tony C.), superseded on other grounds by Cal. Const., art. I, § 28.)

Arburn first contends that a single weave or swerve presents insufficient cause to suspect an intoxicated driver. He argues that “the record is ambiguous as to whether the weave and the almost hitting the curb constituted one action,” so this court must assume that it was. We are not persuaded by Arbum’s interpretation of the record. Officer Lira reported “weaving”, in the lane and that Arburn almost hit the west curb. The reasonable inference is not that Arbum’s car swerved once, but that the vehicle was moving back and forth as it proceeded southbound and at one point narrowly missed the curb. More than one California court has found that “weaving” within a lane provides sufficient cause to conduct an investigatory stop. (See People v. Bracken (2000) 83 Cal.App.4th Supp. 1, 3-4 [99 Cal.Rptr.2d 481] (Bracken) [weaving within lane for one-half mile]; People v. Perez (1985) 175 Cal.App.3d Supp. 8, 10-11 [221 Cal.Rptr. 776] (Perez) [“‘pronounced weaving’ within the lane” for three-quarters of a mile; citing additional cases holding that weaving from one lane to another justifies an investigatory stop]; People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 14 [179 Cal.Rptr. 431] [driving 20 miles per hour under speed limit and “weaving abruptly from one side of [the] lane to the other”]; see also People v. Russell (2000) 81 Cal.App.4th 96, 104 [96 Cal.Rptr.2d 568] [concluding summarily that fact that defendant was “drifting around in his lane” justified an investigatory stop].)

While we recognize factual differences between this case and those cited above, we are not persuaded they are legally significant. The absence in the record of information regarding the officer’s particular expertise, for instance, is of minimal relevance. (Cf. Perez, supra, 175 Cal.App.3d at p. Supp. 11 [noting that a trained officer should, be “permitted to make inferences and deductions that might well elude an untrained person” and that the detaining officer in the case before it had seven and one-half years of experience]; Bracken, supra, 83 Cal.App.4th at p. Supp. 4 [observing that detaining officer was an expert in ¿riving under the influence cases].) Weaving within a lane is a widely recognized characteristic of an intoxicated driver and recognizing a weaving driver is undoubtedly within the province of even the most junior officer. It is, we posit, even within the ability of most fellow drivers. The DMV’s failure to relate the particular training and experience of the arresting officer thus does not prevent us from crediting the officer’s reasoned inference that Arburn’s erratic driving was the result of criminal activity.

Likewise, the lack of evidence that Arburn was observed weaving over a “substantial” or “considerable” distance does not prevent a finding of reasonable suspicion.³ (Cf. Perez, supra, 175 Cal.App.3d at p. Supp. 11 [weaving within lane for a “substantial distance” sufficient justification for investigatory stop]; Bracken, supra, 83 Cal.App.4th at p. Supp. 4 [following Perez; weaving within lane for a “considerable distance” supports reasonable suspicion].) “Weaving” for even the length of a block may signify that something is amiss, and the distance of observation is not a controlling factor in evaluating a traffic stop. In Perez, the issue presented was whether, weaving over three-quarters of a mile (referred to as a “substantial distance”) alone could provide sufficient justification for an investigatory stop. (Perez, supra, 175 Cal.App.3d at p. Supp. 10.) The court found that it did, and had no cause to determine whether a shorter distance would be sufficient. (See id. at p. Supp. 11.)

Arburn also stresses that there is a bend in Bascom Avenue at Naglee Road, one block north of where Officer Lira was stopped when he observed Arburn “weaving” and “almost hit[ting] the west curb.” He claims that this accounts for any erratic driving on that block of road. We question Arburn’s presumption that a mere bend in the road would cause an attentive, sober driver to be “weaving” in the lane to the extent that he or she almost hits the curb. More importantly, “[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (Tony C., supra, 21 Cal.3d at p. 894.) “Even if the circumstances are as consistent with lawful activity as with criminal activity, the officer may still rightfully ‘inquire into such circumstances “in the proper discharge of the officer’s duties.” ’ ” (Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476 [89 Cal.Rptr.2d 362], quoting Tony C., supra, 21 Cal.3d at p. 894.)

The facts presented in this case support more than a mere “hunch” regarding criminal activity; Arburn’s weaving and near miss of the curb created an immediate concern for public safety and raised a reasonable suspicion that he was driving under the influence. Officer Lira had the right and the duty to determine exactly what was causing Arburn’s car to weave and whether he could continue driving without presenting a safety risk. (See Brierton, supra, 130 Cal.App.4th at p. 510 [“The officer’s duty is to resolve—through investigation—any ambiguity presented as to whether the activity observed is, in fact, legal or illegal”].) We conclude the superior court erred in reversing Arburn’s suspension on the grounds that his detention was unlawful.

III. Disposition

The judgment granting Arburn’s petition for writ of mandate is reversed.

McAdams, J., concurred.

1 All further statutory references are to the Vehicle Code unless otherwise noted.

2 The facts are taken from Officer Lira’s sworn statement and unsworn narrative in the investigation report. Both documents were properly admitted in the proceedings below. (See generally MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 153 [8 Cal.Rptr.3d 48, 81 P.3d 975].)

3 As an aside, we note that Arburn’s assertion that he was observed weaving for only 50 to 60 yards is not supported by admissible evidence. Arburn was not present at and did not testify at the administrative hearing. His attorney argued that Arburn only weaved for 50 to 60 yards at most, but that assertion is supported only by an exhibit drawn by the attorney that shows the Bascom/Forest intersection and surrounding area. Neither of Officer Lira’s reports indicate how far away Arburn’s vehicle was when he first noticed the erratic behavior.