In Brown v. Valverde, (— Cal.Rptr.3d —-, Cal.App. 1 Dist., April 23, 2010), the superior court allowed a driver to conduct Pitchess discovery in a Department of Motor Vehicles (“DMV”) administrative per se hearing and the Director of the DMV appealed. The court of appeal considered whether a person facing suspension of his driver’s license following an arrest for driving under the influence could seek discovery of the personnel records of the officer who arrested him, pursuant to Pitchess v. Superior Court (1974) 11 Cal. 3d 351, for use at a DMV administrative per se hearing.
The court reasoned that in enacting the statutory framework for Pitchess motions, the Legislature intended that discovery be limited to “criminal cases involved allegations of officer use of excessive force. There is no suggestion that the Legislature inexplicably intended to increase the scope of Pitchess discovery to include discovery of law enforcement personnel records in every proceeding—criminal, civil, or administrative—where the moving party claims the records are relevant to any issue, such as the officer’s credibility.” Based on this analysis, the court of appeal held that Pitchess discovery is not permissible in a DMV administrative hearing on a license suspension.
Facts
Andrew Brown was arrested for driving under the influence of alcohol on an Oakland freeway in 2006. California Highway Patrol (“CHP”) Officer J.P. Desmarais made the arrest and stated in his report that he observed Brown following other cars too closely, and veering and jerking in and out of his lane. The officer said he could smell alcohol on Brown, that he appeared to be under the influence, and that Brown acknowledged he had been drinking a short time earlier. At the CHP office, two chemical tests a minute apart showed Brown’s blood alcohol content to be 0.08 percent and 0.09 percent.
Officer Desmarais notified Brown that pursuant to California law, his driver’s license would be suspended in 30 days, and that he could appeal the suspension only by requesting a DMV per se hearing. Brown requested the hearing, after which the DMV hearing officer denied Brown’s appeal and notified him that his license would be suspended.
Brown petitioned the Superior Court seeking an order setting aside his license suspension and seeking to admit additional evidence he believed would contradict the information in Desmarais’ report. The court ordered the DMV to reopen Brown’s hearing to consider the new evidence. Brown also filed a Pitchess motion, seeking discovery of Desmarais’ personnel records, in hopes of obtaining evidence of complaints filed against him for conducting illegal traffic stops, effecting illegal arrests, testifying falsely, fabricating evidence, or other acts of dishonest conduct.
The trial court granted Brown’s petition, rejecting the DMV’s contention that a Pitchess motion was inappropriate at a per se administrative hearing, and ordering the DMV to conduct a hearing on Brown’s request. The DMV, and its Director, George Valverde, appealed.
Decision
In the 1974 Pitchess case, the California Supreme Court ruled that a criminal defendant being prosecuted for battery on a peace officer is entitled to discovery of personnel records to show that the officer had a history of using excessive force. The Legislature subsequently enacted new laws specifying the circumstances when Pitchess motions may be made, the procedures for making them, and what materials may be excluded from them.
The court of appeal noted that those laws, in several sections of the Evidence Code, repeatedly use the word “court” as the venue in which Pitchess motions may be made. A DMV administrator is plainly not a “court,” the court said. Further, Penal Code Section 832.7 specifies that peace officers’ personnel records are confidential. Finally, the Vehicle Code sections that describe the procedures for administrative per se hearings make no provision for obtaining those records. The Legislature could have specifically provided for Pitchess discovery in those statutes, but did not.
The court of appeal further concluded, from reviewing the legislative history of the post-Pitchess legislation, that the purpose of those laws is to curtail the destruction of personnel records and to limit the use of the procedures to specific types of criminal proceedings. Allowing Pitchess discovery in a DMV administrative per se hearing would plainly run contrary to those purposes. The purpose of a DMV administrative per se hearing is to provide a “swift and certain” procedure to suspend the license of a person suspected of drunk driving. Permitting Pitchess discovery in these matters would inevitably result in long delays, and is plainly contrary to that purpose.
Neither the Evidence Code nor the Vehicle Code contemplate Pitchess discovery in a DMV administrative per se hearing. Allowing Pitchess discovery in that context would undermine the purpose of both sets of laws and there is no justification for a finding that Brown was entitled to pursue Pitchess discovery. The trial court’s judgment allowing for Pitchess discovery was reversed and the matter remanded to DMV for completion of its administrative per se hearing on the issue of suspending Brown’s driver’s license.
Questions
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Mona G. Ebrahimi | 916.321.4500