Scott v. Pierce

Opinion

PUGLIA, P. J.

The Department of Motor Vehicles (DMV) revoked appellant’s driver’s license for two years for refusing to submit to an intoxication test. (Veh. Code, § 13353; hereafter section 13353.) In the administrative hearing the DMV relied upon the arresting officer’s sworn statement pursuant to section 13353. Although the officer had been subpoenaed by DMV, he did not appear at the hearing. After exhausting his administrative remedies, the appellant sought review in the trial court by administrative mandamus. (Code Civ. Proc., § 1094.5.) Exercising its independent judgment, the trial court denied a peremptory writ.

(Berlinghieri

v.

Department of Motor Vehicles

(1983) 33 Cal.3d 392, 394 [188 Cal.Rptr. 891, 657 P.2d 383].)

On appeal, appellant contends chiefly that he had a right to rely upon the DMV subpoena of the arresting officer, and when the officer failed to appear at the hearing, the referee should have offered him a continuance to secure the officer’s attendance. We decline to impose such a duty on the

[656]

hearing officer. Moreover, the appellant’s failure to request a continuance is a waiver of that right.

The appellant relies upon four cases:

Burkhart

v.

Department of Motor Vehicles

(1981) 124 Cal.App.3d 99 [177 Cal.Rptr. 175];

Mackler

v.

Alexis

(1982) 130 Cal.App.3d 44 [181 Cal.Rptr. 613];

Hughes

v.

Alexis

(1985) 170 Cal.App.3d 800 [216 Cal.Rptr. 550]; and