Petrus v. Department of Motor Vehicles

Opinion

McDONALD, J. Edmond Petrus appeals the trial court’s denial of his petition for writ of mandate seeking to set aside the suspension by the Department of Motor Vehicles (DMV) of his driving privileges. Petrus contends (1) he was deprived of due process because the DMV’s administrative hearing officer denied his request for a continuance; (2) the DMV’s administrative hearing officer erred by admitting hearsay evidence; and (3) there was no evidence to show Petrus’s blood test was timely taken. We conclude Petrus was deprived of due process and reverse.1

FACTS

About 10:35 p.m. on September 16, 2009, Petrus drove his car into a restaurant parking lot. Off-duty California Highway Patrol Officer Mora was waiting for his car when he observed Petrus hit a parked car, back up, and almost hit the car again. Mora approached Petrus and saw that he had red, watery, and droopy eyes and smelled of an alcoholic beverage. Mora placed him under citizen’s arrest and detained him until deputy sheriffs arrived. Deputy Brenda Wiebe arrived and smelled the strong odor of an alcoholic beverage on Petrus and saw his red, watery, and droopy eyes and his slow, exaggerated movements. Wiebe arrested Petrus for driving under the influence. Petrus consented to a blood test, and a sample of his blood was taken [1243]about 11:56 p.m. Wiebe served Petrus with an administrative per se order of suspension of his privilege to drive.

Petrus requested a hearing before the DMV. Not until the morning of the hearing were Petrus’s blood test results faxed to his counsel, who was not in his office. Petrus’s counsel received the blood test results minutes before the commencement of the hearing, at the beginning of which he objected to receiving discovery on the day of the hearing. The blood test showed a blood-alcohol concentration of 0.18 percent. Hearing officer Jacqueline Denney asked counsel if he was ready to proceed and he said yes. The hearing officer then identified the exhibits she intended to introduce into evidence and asked if Petrus objected to any of them. His counsel objected to the blood test report on the basis of discovery rules violation. The hearing officer overruled the objection and admitted the report into evidence. Counsel then asked for a continuance, which was denied because counsel made no offer of proof as to why additional time and a continuance were necessary. At the conclusion of the hearing, the DMV reimposed the suspension of Petrus’s driving privileges. Petrus then filed a petition for writ of mandate in the trial court seeking to overturn the suspension, which petition was denied.