Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 56-2008-00332898- CU-WM-VTA Barry B. Klopfer, Judge
(Retired Judge of the Ventura S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Advocate Legal Services, Ronald A. Jackson, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alicia M.B. Fowler, Senior Assistant Attorney General, Elizabeth Hong, Supervising Deputy Attorney General, Leslie A. Walden, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, . J.
Alice Marie Gonzalez drove into a sobriety checkpoint and was arrested for driving under the influence of alcohol. (Veh. Code, § 23152, subd. (a).) The Department of Motor Vehicles (DMV) imposed a four-month suspension of her driving privileges and she filed a first amended petition for a writ of mandate, requesting the trial court to set aside the DMV's suspension order. She appeals the trial court's order denying her writ petition, claiming there was insufficient evidence to support its findings that the sobriety checkpoint at which she was detained was validly established, and her arrest was lawful. We affirm.
FACTS
On June 14, 2008, at 1:55 a.m., appellant drove into a sobriety checkpoint on South Victoria Avenue in Ventura County. California Highway Patrol (CHP) Officer Kobaly noticed a strong odor of alcohol on her breath and that her eyes were red and glassy. She was giddy and her speech was thick. Kobaly directed appellant to park in a detention area and gave her a field sobriety test, which she was unable to complete. He arrested her for misdemeanor driving under the influence of alcohol. (Veh. Code, § 23152, subd. (a).) Two breath tests administered at approximately 3:00 a.m. measured blood alcohol content (BAC) levels of 0.11 percent.
The DMV suspended appellant's license for four months, effective July 14, 2008. She requested an Administrative Per Se hearing before the DMV, which issued her a temporary license for use during the pendency of its review. The hearing was conducted on October 17, 2008. Appellant argued, among other things, that the sobriety checkpoint was not validly established because its location was selected by a field officer, Sergeant Hong, rather than supervisory personnel. Moreover, it did not provide an "escape route" to allow drivers to avoid the checkpoint location. Appellant contends that both factors violated the Supreme Court's holding in Ingersoll v. Palmer (1987) 43 Cal.3d 1321 (Ingersoll), which established the criteria for a valid checkpoint.
The evidence submitted at the administrative hearing included a memo dated May 20, 2008, from the Ventura CHP to the CHP Coastal Division. It indicated that a sobriety checkpoint would be conducted on June 13, 2008 on South Victoria Avenue. The team was to consist of six officers and one sergeant from the Ventura CHP. The portion of Victoria Avenue on which the checkpoint was located is a north/south roadway with two lanes in each direction. A raised center median separates the north and southbound lanes. Victoria is bisected by Teal Club Road to the north and West 5th Street to the south. The checkpoint was located south of Teal Club Road, in the two southbound lanes, and operated from 9:00 p.m. to 3:00 a.m. Sergeant Hong selected the checkpoint location based on his personal knowledge of numerous alcohol-related incidents on that roadway.
Prior to establishing the checkpoint, the CHP provided advance publicity by issuing a news release announcing that it would conduct a sobriety checkpoint in western Ventura County on Friday evening, June 13, 2008. Media were invited to a pre-checkpoint briefing at the Ventura CHP office.
Appellant drove southbound on Victoria Avenue, crossed Teal Club Road, and entered the checkpoint location. A diagram of the checkpoint was offered into evidence. Signs indicated that the left lane was closed ahead, and two signs warned of the upcoming sobriety checkpoint. There was also a sign warning of a stop ahead. The closure of the left lane was marked by traffic cones, which directed the traffic down to a single lane as drivers approached the checkpoint. The roadway was lit by overhead streetlights.
After reviewing the evidence, the DMV's hearing officer issued a decision on November 6, 2008, in which it determined the checkpoint was valid and appellant's arrest was lawful. It concluded that no evidence was presented that Sergeant Hong was not at the policymaking level required to select the site.
The DMV also rejected appellant's contention that the checkpoint did not provide for an escape route. It relied in part upon a diagram reflecting that a driver could avoid the checkpoint by using Teal Club Road. The DMV terminated the stay of suspension against appellant's driving privilege and re-imposed the suspension from November 16, 2008 to March 15, 2009.
Appellant filed an amended petition for a writ of mandate, requesting the trial court to set aside the DMV's order of suspension. The court directed the DMV to file a response, and granted appellant's request to stay the order of suspension of her driving privileges until the completion of the hearing.
At the hearing on her writ petition, and on appeal, appellant makes the argument that the sobriety checkpoint failed to satisfy the criteria set forth in Ingersoll, supra, 43 Cal.3d 1321. She contends that its location was selected by an officer in the field (Sergeant Hong), rather than policymaking personnel, and the checkpoint had no escape route to allow her to have avoided it.
The trial court issued a minute order denying appellant's petition and vacating the order staying the order of suspension. It found that Officer Kobaly had reasonable cause to believe appellant had been driving a motor vehicle in violation of Vehicle Code section 23152, she was lawfully arrested, and had a BAC level of.08 percent or more.
DISCUSSION
The trial court, exercising its independent judgment, determines whether the administrative decision was supported by the weight of the evidence. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457; Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354, 358.) On appeal, our review is limited to whether substantial evidence supports the trial court's decision. (Ibid.) "The administrative findings come before the superior court with a 'strong presumption of correctness, ' and the burden rests on the petitioner to establish administrative error." [Citation.] (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1568.) If necessary, we will imply findings to support the judgment. (Lee v. Department of Motor Vehicles (1983) 142 Cal.App.3d 275, 284.) The trial court's legal determinations, however, are subject to our de novo review. (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 863; Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372.)
Selection of Checkpoint Location
In Ingersoll, supra, 43 Cal.3d 1321, California taxpayers brought an action against police departments and the CHP, challenging the constitutionality of sobriety checkpoints. At issue was the validity of a checkpoint in Burlingame that was to serve as a model for checkpoints to be established throughout the state.
The Supreme Court formulated eight guidelines to limit the intrusiveness of the stop. It held that, with their application, any intrusion on Fourth Amendment rights would be outweighed by the "magnitude of the drunk driving menace and the potential for deterrence." (Ingersoll, supra, 43 Cal.3d.at p. 1347.) The Ingersoll factors are as follows:
A. The decision to establish the checkpoint, selection of its site, and procedures for operation should be made by supervisory law enforcement personnel, rather than an officer in the field;
B. Motorists should be stopped according to a neutral formula (i.e., every third, fifth or tenth driver), to eliminate the unbridled discretion of the officers in the field;
C. Safety precautions should be taken, such as proper lighting, warning signs, clearly identifiable official vehicles and personnel;
D. The checkpoint must be in a reasonable location, to be determined by policymaking officials rather than officers in the field;
E. Consideration must be given to the time of day and duration of the checkpoint;
F. There should be indicia of the official nature of the roadblock;
G. The length and nature of the detention should be as minimal as possible; and
H. There should be advance publicity of the checkpoint. (Id. at pp. 1341-1347.)
Here we are concerned with Ingersoll factors A and D. Factor A states that checkpoint site selection and the procedures for its operation should be established by "supervisory law enforcement personnel" rather than an officer in the field. (Ingersoll, supra, 43 Cal.3d. at pp. 1341-1342.) In its discussion of factor A, the court indicated that there should be visible signs of authority in advance of the roadblock "to ward off surprise or fright" and to allow the motorist to avoid the checkpoint. (Id. at p. 1344.)
Factor D provides that the checkpoint must be in a reasonable location, and the site should be determined by policy-making officials rather than officers in the field. (Ingersoll, at p. 1343.) "The sites chosen should be those which will be most effective in achieving the governmental interest; i.e., on roads having a high incidence of alcohol related accidents and/or arrests." (Ibid.)
Appellant does not challenge the reasonableness of the checkpoint location. She argues only that the checkpoint was invalid because it was chosen by Sergeant Hong, whom she asserts was not supervisory law enforcement personnel or a policymaking official. Her argument fails. The trial court relied upon the administrative finding that appellant presented no evidence that Hong did not possess the requisite authority to select the site.
Whether or not Sergeant Hong could be designated as supervisory personnel, the checkpoint location was selected based upon his personal knowledge of the location on a road with a high incidence of alcohol-related accidents or arrests. A very detailed plan provided for its operation. According to a memo written by the Ventura CHP to the coastal division, the checkpoint was to be "conducted in compliance with departmental policies and procedures, as stated in [Highway Patrol Manual] 70.4, Driving Under the Influence Manual, Chapter 8, Sobriety/Driver License Checkpoint." Consideration was given to the roadway configurations, traffic volumes, lighting conditions, sight distance, and field sobriety test administration.
In People v. Banks (1993) 6 Cal.4th 926, 936-937, the Supreme Court reviewed the Ingersoll factors and determined advance publicity--factor H--is not a constitutional prerequisite to a valid sobriety checkpoint. (Id. at p. 945.) It held that operation of a checkpoint without publicity, but in conformance with other factors, does not constitute an unreasonable seizure within the meaning of the Fourth Amendment. (Id. at p. 949.) Sergeant Hong selected a reasonable location for the site based on his personal knowledge and designed a meticulous plan for the checkpoint operation. The checkpoint was in conformance with all the factors, except Hong's employment designation. Like the court in Banks, we conclude that the absence of this single factor did not render the checkpoint unconstitutional. (Id. at p. 948.)
Lack of "Escape Route"
Appellant claims there was no escape route which would have allowed her to avoid the roadblock. Factor F of the Ingersoll criteria states that a sobriety roadblock must have indicia of its official nature to minimize intrusiveness to the motorist. (Ingersoll, supra, 43 Cal.3d at p. 1345.) The roadblock should be highly visible and include warning signs, flashing lights, adequate lighting, police vehicles and uniformed officers. (Ibid.) There is no factor among the eight Ingersoll criteria requiring an escape route. The only mention made in the court's discussion of Factor A is that advance notice of the roadblock will ward off the motorist's surprise and allow him or her to avoid the checkpoint. (Id. at p. 1344.) Appellant combines the requirements of factor F and the court's discussion of factor A to argue that the placement of the warning signs did not give her sufficient notice of the checkpoint, so she was unable to take an alternate route. Her argument is conclusory and unsupported by the evidence.
Appellant drove south on Victoria Avenue, where she crossed Teal Club Road, and entered the checkpoint location. She contends that the first sign alerting drivers of the checkpoint was south of Teal Club Road, thus there was no way to avoid the sobriety checkpoint, other than crossing the center median, for which she could have legitimately been stopped. The DMV argues that the checkpoint was clearly identified and appellant could have avoided it by making a right or left turn on Teal Club Road.
Appellant submitted no evidence of the precise location of the signage relative to Teal Club Road. She offered nothing to support her assertion that the placement of the signs denied her the opportunity to avoid the checkpoint. A diagram submitted by the CHP reflects multiple signage in the two southbound lanes of Victoria Avenue as drivers approached the checkpoint. One sign indicated the left lane was closed ahead, three signs warned of the upcoming sobriety checkpoint, and a fourth warned of an upcoming stop. There were streetlights overhead. Traffic cones marked the closure of the left lane, which directed the traffic down to a single lane as drivers approached the checkpoint. On site were patrol vehicles, six uniformed CHP officers, and one uniformed sergeant. Substantial evidence supports the trial court's express finding that appellant's arrest was lawful, and its implied finding that the checkpoint was valid.
The judgment (order denying petition for writ of mandate) is affirmed. Costs on appeal are awarded to respondent.
We concur: YEGAN, A.P.J., PERREN, J.