MacDONALD v. CHON GUTIERREZ, 32 Cal. 4th 150 (2004)

A California Highway Patrol (CHP) officer observed Daniel L. MacDonald, who was driving in the No. 5 lane on a freeway, encroach two feet into the No. 4 lane, and then slowly drift five feet onto the shoulder. When the officer stopped MacDonald, he observed that MacDonald's eyes were red and watery, his speech thick and slurred, and an odor of alcohol was emanating from his breath. MacDonald admitted he had been drinking. He failed several standard field sobriety tests, and upon being transported to a police station, his blood-alcohol concentration twice tested at .11 percent. The officer issued an administrative per se suspension order, confiscated MacDonald's driver's license, and issued him a temporary license and completed a sworn report on DMV form 367.

The officer completed a "Driving Under the Influence Arrest/Investigation Report" (CHP form 202) and the narrative/supplement report (CHP form 556). These two reports, provided a more detailed narrative of the circumstances leading to the stop and arrest, but were not sworn.

MacDonald requested an administrative hearing to review his license suspension. At the hearing, MacDonald's counsel objected to the unsworn report, contending an unsworn report by the arresting officer was inadmissible hearsay. The hearing officer overruled the objection and sustained the license suspension. MacDonald petitioned for writ of mandate to set aside the suspension and the petition was granted. Relying on Solovij v. Gourley (2001) 87 Cal.App.4th 1229, the superior court held the unsworn report was inadmissible, and the sworn report alone failed to provide reasonable cause for the stop.

Concluding Solovij was wrongly decided, the Court of Appeal reversed with directions to reinstate the suspension.

The California Supreme Court affirmed the Court of Appeal, stating that upon arresting someone for driving under the influence of alcohol or drugs, the arresting officer is required to make a sworn statement to the Department of Motor Vehicles (DMV) setting out all of the relevant information.

The California Supreme Court noted that in Lake v. Reed (1997) 16 Cal.4th 448 (Lake), it held that, notwithstanding the predecessor statute to section 13380, an unsworn statement by a non-arresting officer is admissible, pursuant to the public employee record exception to the hearsay rule. The California Supreme Court concluded that DMV may properly consider an officers unsworn report in as much as section 13557 provides in pertinent part: "The department shall consider the sworn report submitted by the peace officer pursuant to Section 23612 or 13380 and any other evidence accompanying the report." (Italics added.)

How does this affect your agency? This case clarifies that an unsworn statement by an assisting officer involving an arrest of being under the influence of alcohol or drugs, shall be considered by the DMV in it's administrative process regarding driver license suspensions.

CRIMINAL LAW/PROCEDURE

BEIER v. CITY OF LEWISTON, et al. 354 F. 3d 1058 (2004)

Rafael Beier and his wife, Susan, were in the process of divorcing. Susan called police after a dispute arose between Beier and their son, Joseph. Responding officer Mundell informed Susan of the process for obtaining a civil protection order and gave her a pamphlet concerning such orders. Susan applied for and obtained a temporary protection order against Beier. The order contained a provision that Beier was not to harass or follow Susan and not contact or attempt to contact the other in person, in writing, by a third person, or by telephone.

A few days after obtaining the order, Susan attended church services. Beier appeared at the church with his infant son from another relationship. Beier had been a member of the congregation and sat several rows behind Susan. Susan was informed by Joseph that Beier was present. Disturbed by Beier's presence, Susan consulted with the Bishop and, on his advice, called the Lewiston Police Department, talked with officer Mundell and told him she had a restraining order against Beier, and that Beier was violating the order. Mundell checked with the dispatcher to confirm the issuance and service of the protection order but did not request information about the order's terms.

Officer Mundell came to the church, encountered Beier, repeatedly asked him to leave and Beier refused. When Mundell informed Beier he was in violation of the restraining order, Beier informed Mundell that he was not in violation of any restraining order and asked Mundell to read the order for himself. Officer Mundell responded that he had not read the order and did not know the details of the order, but that Beier would be arrested if he did not leave the church. Officer Mittendorf arrived at the scene to assist Mundell and, after the dispute continued for some time, with Beier persistently refusing to leave, Beier was placed under arrest by Mittendorf.

All charges against Beier were dismissed by the county prosecutor and Beier brought a 42 U.S.C. § 1983 action against Mundell, Mittendorf, the City and others, alleging Fourth Amendment violations. The district court denied the officer's motion for summary judgment on qualified immunity grounds.

The United States District Court of Appeals, Ninth Circuit, affirmed the district court's denial of the officer's motion, holding that the officers could not have reasonably believed that Beier's arrest complied with the Fourth Amendment, as any reasonably competent officer would have ascertained the terms of the protection order before arresting Beier for failing to comply with it. The officers were not entitled to qualified immunity.

The Ninth Circuit stated that law enforcement officers who act to enforce such protective orders have a responsibility to familiarize themselves with the order's precise contents through some official source. A police officer who does not personally read the order may fulfill his/her duty by obtaining information from authorized personnel, such as a supervisor or police dispatcher, who have access to the terms of the order.

The Ninth Circuit pointed out that the Domestic Violence Crime Prevention Act provides that "[l]aw enforcement agencies shall establish procedures reasonably adequate to assure that an officer approaching or actually at the scene of an incident of domestic violence may be informed of the existence and terms of [the] protection order."

How does this affect your agency? This case points out that, even with all the training given regarding Domestic Violence and the need for officer's to familiarize themselves with the provisions of the protective orders they counsel victims on how to obtain, acting without knowledge can be potentially costly. Personnel should continually be appraised of their responsibility to become fully knowledgeable regarding the provisions of any court order they are attempting to enforce. Unfortunately in this case the officers destroyed their "qualified immunity" and may have personal liability.