Killam v. DMV CA1/3

Filed 5/23/13 Killam v. DMV CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

DAVID KILLAM, Plaintiff and Appellant, A135546 v. CALIFORNIA DEPARTMENT OF (City & County of San Francisco MOTOR VEHICLES, Super. Ct. No. CPF-11-511579) Defendant and Respondent.     David Killam appeals from the denial of his petition for a writ of mandate challenging the suspension of his driver’s license. We affirm. BACKGROUND Killam was arrested for drunk driving at around 8:35 on the night of May 15, 2011, after he drove his car into a retaining wall. Killam’s breath smelled strongly of alcohol, he was unable to stand unassisted, his speech was slurred, and his eyes were bloodshot and watery. Killam admitted he had drunk six beers, but then said “I don’t drink.” Killam was transported to San Francisco General Hospital, where it was determined that a blood test was necessary. Killam refused and said “I’m not giving you anything.” A forced blood draw was conducted at 10:34 p.m. that night. Killam was

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notified that his driver’s license would be administratively revoked or suspended pursuant to Vehicle Code section 133531 due to his refusal to submit to the test. Killam challenged the revocation at an administrative hearing on the ground that he was not admonished of the consequences of refusing to submit to a blood test before his blood was forcibly drawn. The hearing officer found the revocation was proper and, specifically, that a notation in San Francisco Police Officer K. Castillo’s sworn report (the DS-367 form) that Killam was admonished at 10:45, 11 minutes after his blood was drawn, was a “typographical,” or clerical, error. His driving privilege was revoked for three years.2 Killam then filed a petition for writ of administrative mandate in the superior court. The court found the hearing officer reasonably relied on an unsworn report by Officer Castillo to find Killam was properly admonished before the forced blood draw. Accordingly, it denied his writ petition. Killam timely appealed. DISCUSSION I. Standards of Review In ruling on an application for a writ of mandate after a license suspension or revocation, the trial court independently determines whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457.) However, “a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817.)