Driving Under Court’s Influence

Richard J. Manning thought he had his battle won with the state Department of Motor Vehicles over the suspension of his driver’s license.

The 51-year-old Huntington Beach man convinced a judge in 1994 that the DMV improperly relied on a lab report declaring that Manning’s blood-alcohol content was 0.24%, three times the legal limit, when he was stopped for driving on the shoulder of the Santa Ana Freeway in Irvine.

There were no claims that the test was faulty, or that it was mishandled. Instead, Manning--like dozens of other accused drunk drivers in Orange County--had their DMV suspension overturned simply because the lab technicians who test blood and urine samples did not swear under penalty of perjury to the accuracy of their reports.

A recent California Supreme Court opinion, however, held that unsworn lab reports are admissible in DMV hearings such as the one where Manning lost his license.

The little-noticed opinion by the state high court effectively overturned precedent established in 1994 by the 4th District Court of Appeal in Santa Ana.

Manning and several other suspected drunk drivers now face the prospect of being suspended from driving after all.

“It’s approaching four years,” Manning said in a brief interview last week. “That’s a long time. I don’t have a resolution.”

Officials with the state attorney general’s office say the Supreme Court’s ruling now gives the DMV greater authority to swiftly remove dangerous drivers from the road.

“A lot of people in Orange County would have gotten away with driving under the influence,” said Heidi T. Salerno, a deputy state attorney general in Oakland, who handled the case before the Supreme Court. Now “we won’t be spending as much money defending these frivolous arguments.”

The court’s Presiding Justice David Sills insisted that state law required Orange County crime lab personnel to submit a signed document--along with the results--attesting to the accuracy of the blood and urine tests performed.

The lab reports are among the evidence considered by DMV judges presiding over appeals by alleged drunk drivers who have had their licenses confiscated.

Under state law, drivers stopped on suspicion of drunk driving must turn over their license to arresting officers, who in turn issue a temporary 30-day driving permit. A judge hearing a driver’s appeal is presented with paperwork including police reports, results of lab tests and eyewitnesses’ statements.

In its ruling, the 4th District Court of Appeal said DMV hearings should not operate under a more lenient standard than applies in a court of law, where a sworn oath is used to certify the accuracy of the evidence.

“We cannot believe the Legislature contemplated a less standard with a blood or urine test,” Sills wrote in a March 1994 opinion. “An unsworn statement merely listing the blood test results . . . is nothing more than inadmissible hearsay which is insufficient to support a license suspension.”

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According to defense attorneys and state officials, hundreds of suspected drunk drivers statewide had their suspensions overturned after the 1994 ruling.

Detailed statistics are not kept, but Barry T. Simons, a Laguna Beach attorney who exclusively defends people accused of drunk driving, said he was able to get licenses returned for hundreds of clients simply because the DMV had relied on unsworn reports.

Robison Harley, a Santa Ana attorney who specializes in drunk driving defense cases, said dozens of his clients also had their licenses returned after he challenged unsworn police and lab reports.

Christine B. Mersten, a deputy state attorney general, conceded that the 4th District Court’s opinion ensured a successful outcome for many motorists’ challenges to DMV suspensions.

“We pretty much knew we were not going to win,” said Mersten, noting that other courts across the state generally allowed unsworn police and lab reports into evidence at DMV hearings.

The attorney general’s office succeeded last August in convincing the Supreme Court to overturn the Orange County appellate court’s decision.

Writing for a unanimous seven-member court, Justice Kathryn Mickle Werdegar said unsworn reports were admissible at DMV hearings because they are “the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.”

“The admission of such evidence will facilitate the immediate removal of dangerous drivers from the road,” Werdegar wrote.

Since Werdegar’s opinion last August, the Supreme Court has asked the Santa Ana appellate court to reconsider at least three cases involving suspected drunk drivers whose licenses were reinstated by the 4th District Court of Appeal ruling.

Among them are Manning and Stephen Roghair, a 35-year-old Newport Beach resident whose license had been suspended for four months in 1993 after an unsworn blood test alleged that he was caught driving with a blood-alcohol level in excess of 0.11%.

In California, motorists are deemed too drunk to responsibly drive when their alcohol level registers at 0.08% or above.

Marshall Schulman, an attorney for Roghair, said he believes the crime-lab report in his client’s case will still be found inadmissible by the appellate court because of additional problems with it.

In addition, Schulman criticized the DMV’s hearing process, saying it was one-sided because the agency can confiscate someone’s license, then place the burden on the driver to prove that he or she was not under the influence while behind the wheel.

“I think the whole system lacks a lot of fairness, not just for [Roghair], but for thousands of other people,” Schulman said. “The DMV is the prosecutor, judge and jury. I think the [process] should be looked at very carefully and changed.”

Simons, the Laguna Beach attorney, said the court’s ruling will mean “less justice and more cases with errors and mistakes.”

He predicted that the Supreme Court’s ruling would clog the DMV’s hearing docket because suspected drunk drivers “are left now with little choice but to subpoena witnesses because unreliable hearsay is going to be used against them.”

But Salerno, who received a special award from Atty. Gen. Dan Lungren for her role in winning the case, said people who don’t drink and drive need not worry.