Filed 11/18/19 Yarberry v. Gordon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

MARK EDWARD YARBERRY,

Plaintiff and Appellant,

v.

STEVE GORDON, as Director, etc.,

Defendant and Respondent.

F078072

(Super. Ct. No. BCV-17-102916)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge.

Middlebrook & Associates, Richard O. Middlebrook and Patrick R. Bowers for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Elisabeth Frater and Kaprisha L. Vallecillo, Deputy Attorneys General, for Defendant and Respondent.

-ooOoo-

Mark Yarberry appeals from the trial court’s denial of his petition for writ of mandate challenging the suspension of his driver’s license by the Department of Motor Vehicles (the DMV) for driving with a prohibited blood-alcohol content. Yarberry had been observed by the arresting officer to be driving his vehicle in an erratic manner, including weaving back and forth and crossing over lanes. When he was pulled over by the officer, Yarberry admitted he had too much to drink and, from all indications at the time and place of the traffic stop, he was plainly intoxicated. He refused to participate in a field sobriety test and simply implored the officer to take him to jail. Subsequent breath tests established Yarberry’s blood-alcohol level was .17 percent, or more than twice the legal limit. In the present appeal, Yarberry claims the suspension of his driver’s license by the DMV should not have been upheld by the trial court because, allegedly, he was not lawfully stopped by the arresting officer. We disagree. The nature of Yarberry’s erratic driving was sufficient to create a reasonable suspicion that Yarberry was driving under the influence, thereby permitting the officer’s traffic stop. Substantial evidence supported the trial court’s findings on this point, and Yarberry has failed to demonstrate otherwise. Therefore, we conclude the trial court correctly denied Yarberry’s petition, and we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The Traffic Stop and Arrest

The following summary of events leading to Yarberry’s arrest for driving with a blood-alcohol content in excess of the legal limit is derived from the arrest report and the officer’s statement, both of which documents were prepared by the arresting officer, California Highway Patrol (CHP) Officer D. Dinsing, and were admitted as evidentiary exhibits in the DMV administrative hearing.

On July 24, 2015, at approximately 10:15 p.m., Officer Dinsing was on routine patrol in the Bakersfield area in a marked black and white CHP patrol vehicle. At that time, while traveling northbound on Buck Owens Boulevard in the number 2 lane, his attention was drawn to a tan Ford pickup. Officer Dinsing then observed the following sequence of events: “The Ford made a short left turn onto northbound Buck Owens Blvd. from westbound Gilmore Avenue, crossing the solid yellow line. The Ford drifted right into the center of the # 1 lane. The Ford was at approximately 30 mph and began to drift back to the left, causing both left side tires to cross the solid yellow line. The Ford slowly drifted back towards the center of the # 1 lane, then once again back to the left. The Ford crossed the solid yellow line and continued to travel in the divided section for approximately five seconds. I placed my patrol vehicle directly behind the Ford and activated my overhead lights. The Ford responded and yielded on Brittan Street, east of Buck Owens Blvd.” As Officer Dinsing noted, he made the decision to stop the vehicle because it was “weaving in a serpentine like manner.”

Once the Ford had pulled over, Officer Dinsing approached the vehicle on the driver’s side and talked to the driver, Yarberry, who told the officer, “Sir, just take me to jail.” Yarberry handed the officer his driver’s license, and related that he had consumed five beers. Officer Dinsing noticed that Yarberry’s eyes were red and watery, his face was flush and there was a strong odor of an alcoholic beverage emitting from the vehicle. Due to Yarberry’s objective signs and symptoms of alcohol intoxication, poor driving, and strong odor of an alcoholic beverage emitting from the vehicle, Officer Dinsing asked Yarberry to exit the vehicle and asked Yarberry a series of pre-field sobriety test (or FST) questions. Officer Dinsing noted he could still smell the strong odor of an alcoholic beverage, but this time it was coming from Yarberry’s breath and person. Other symptoms of intoxication included slurred speech and unsteady gait. Yarberry refused to participate in FST’s. He told Officer Dinsing that he “knows he had too much to drink,” so he did not want to waste time doing a test. He just wanted the officer to take him to jail.

Based on Yarberry’s poor driving and the objective symptoms of alcohol intoxication, Officer Dinsing formed the opinion that Yarberry was driving under the influence of alcohol and was unable to safely operate a motor vehicle. Officer Dinsing arrested Yarberry for violation of Vehicle Code section 23152, subdivision (a).

Officer Dinsing advised Yarberry of his obligation to submit to and complete a chemical test to measure his blood-alcohol content. Yarberry agreed to the breath test and was transported to the Bakersfield CHP office where breath tests were administered. His breath tests resulted in readings of .172 and .179 percent blood-alcohol content. Yarberry was then booked for driving under the influence of alcohol in violation of Vehicle Code section 23152 in the Kern County Bakersfield jail facility.

The MVARS Recording Device

Officer Dinsing noted in his arrest report that the CHP patrol vehicle he used in the traffic stop and arrest was equipped with a “Mobile Video Audio Recording System” (or MVARS) that was activated during the events and may have captured relevant information about Yarberry’s driving and arrest.

The DMV Administrative Hearing

On November 21, 2017, an administrative hearing before DMV hearing officer K. Tseng was conducted to determine whether Yarberry’s driving privilege should be suspended. At the administrative hearing, the following documents were admitted into evidence: (1) Officer Dinsing’s officer’s statement; (2) the CHP arrest report prepared by Officer Dinsing; (3) the breath test report; (4) Yarberry’s DMV driving printout; and (5) the MVARS video. Yarberry’s attorney introduced the MVARS video as an exhibit, arguing it would refute Officer Dinsing’s account that Yarberry was weaving or driving erratically, which purportedly would mean that no reasonable basis for a lawful traffic stop existed.

On November 29, 2017, after considering all the evidence, the DMV hearing officer determined that (1) Officer Dinsing had reasonable cause to believe Yarberry was driving a motor vehicle in violation of Vehicle Code section 23152, 23153 or 23140, (2) Yarberry was placed under lawful arrest, and (3) Yarberry was driving a motor vehicle when he had .08 percent or more by weight of alcohol in his blood.

In the findings of fact, the DMV hearing officer held there were reasonable grounds for Officer Dinsing to stop Yarberry’s vehicle because the officer observed that Yarberry was “allowing [the] vehicle to weave in a serpentine manner and allowing the vehicle to cross the solid yellow line, a violation of the California Vehicle Code.” The hearing officer also determined that Yarberry’s argument based on the MVARS video was unpersuasive because the MVARS video was so unclear that it was insufficient to contradict Officer Dinsing’s report. On that issue, the hearing officer stated:

“The MVAR depicts [Yarberry’s] vehicle and the stop by the enforcement officer, however, the video is not visually clear on whether [Yarberry] had or had not swerved over the solid yellow line. The video appears dark, grainy, and pixelated on [Yarberry’s] vehicle position prior to the stop by the enforcement officer. Additionally, the line spacing is not visible at [Yarberry’s] vehicle location in the video, further compounding the problem of a clear indication that [Yarberry] did not cross over the solid white lines. [¶] As such, consideration is given to all other available evidence such as the officer’s sworn report and accompanying arrest report that indicates [Yarberry] was swerving and crossing over the solid yellow line.”

Yarberry was served with a written notification containing the DMV administrative findings and decision. Based on the administrative findings and decision, Yarberry’s driving privileges were suspended effective December 8, 2017 through April 7, 2018.

The Trial Court Denies Petition for Writ of Mandate

On December 20, 2017, Yarberry filed a petition for writ of mandate in the trial court challenging the DMV’s administrative suspension of his driving privilege. The crux of Yarberry’s argument in the trial court was that Officer Dinsing did not have reasonable grounds to initiate a traffic stop, which argument was based on his assertion that the MVARS video refuted Officer Dinsing’s account of what happened. In opposing the writ petition, the DMV’s position was that it was reasonable for Officer Dinsing to make an investigative traffic stop of the vehicle because Yarberry was weaving or swerving back and forth and crossing over the yellow line. According to the DMV, such objective facts would create a reasonable suspicion of a “DUI” or other traffic violation. At the time of the hearing, the trial court had received the entire administrative record except for the MVARS video. It was agreed that once Yarberry submitted the MVARS video, the matter would stand submitted.

On August 8, 2018, the trial court issued its ruling denying Yarberry’s petition for writ of mandate, explaining as follows: “The weight of the evidence supports the respondent hearing officer’s determinations. The MVARS DVD does not contradict the weight of other evidence concerning the position of [Yarberry’s] vehicle during and after the left turn. The weight of the evidence shows that the officer had reasonable cause to believe [Yarberry] was driving under the influence, that [Yarberry] was lawfully arrested, and that [Yarberry] had a BAC [blood-alcohol content] at or above .08%.” A formal order and judgment denying the petition was entered by the trial court on August 23, 2018.

On September 4, 2018, Yarberry timely filed his notice of appeal from the denial of his petition for writ of mandate. Yarberry’s sole argument on appeal is the same as he raised in the trial court; namely, that Officer Dinsing had no lawful basis to stop Yarberry’s vehicle and investigate.

DISCUSSION

I. Standard of Review

In ruling on an application for writ of mandate following a DMV suspension order, a trial court is required to determine, based on its independent judgment, whether the weight of the evidence supported the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) On appeal, we need only review the record to determine whether the trial court’s findings are supported by substantial evidence. (Id. at p. 457; Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 81–82.) We view the evidence favorably to the prevailing party, resolving all conflicts and indulging all reasonable inferences to support the judgment. (Petrus v. Department of Motor Vehicles (2011) 194 Cal.App.4th 1240, 1243.) We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) However, we independently review the mixed question of law and fact whether a peace officer would have had a reasonable suspicion to make a traffic stop. (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 509.)

II. Officer Dinsing Had Reasonable Suspicion to Stop Yarberry

Under what is often called the “administrative per se” law, when a person is arrested for driving under the influence of alcohol and is determined to have a prohibited amount of alcohol in his or her blood, the DMV initiates an administrative process to suspend the person’s driving privileges. (Lake v. Reed, supra, 16 Cal.4th at pp. 454–455.) In order for the DMV to validly suspend a person’s driver’s license under this statutory process, the underlying arrest must have been lawful. (Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 168; Gikas v. Zolin (1993) 6 Cal.4th 841, 847; accord, Freitas v. Shiomoto (2016) 3 Cal.App.5th 294, 299.) In the present appeal, Yarberry’s position is that there was no basis to justify the traffic stop, and therefore the arrest itself was unlawful. We disagree.

“ ‘A law enforcement officer may legally stop a motorist if the facts and circumstances known to the officer support a reasonable suspicion that the driver has violated the Vehicle Code or some other law.’ [Citation.]” (Dyer v. Department of Motor Vehicles, supra, 163 Cal.App.4th at p. 168.) To be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are reasonably consistent with criminal activity. (People v. Wells (2006) 38 Cal.4th 1078, 1083; People v. White (2003) 107 Cal.App.4th 636, 641.) That is, the officer must be able to point to specific articulable facts which, considered in light of the totality of the circumstances, provide some objective manifestation that the person may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) Where such a reasonable suspicion exists, “ ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ ” (People v. Wells, supra, 38 Cal.4th at p. 1083.)

Under this standard, an officer may stop and briefly detain a suspect for questioning for a limited investigation even if the circumstances fall short of probable cause. (Brierton v. Department of Motor Vehicles, supra, 130 Cal.App.4th at p. 509.) “A traffic stop is lawful at its inception if it is based on a reasonable suspicion that any traffic violation has occurred, even if it is ultimately determined that no violation did occur. [Citations.] The officer’s duty is to resolve—through investigation—any ambiguity presented as to whether the activity observed is, in fact, legal or illegal.” (Id. at p. 510, italics omitted.)

Here, as discussed above, Officer Dinsing decided to stop Yarberry’s vehicle because he observed it was being driven with a definite back-and-forth weaving motion which included crossing over solid yellow lines. It is firmly established in California appellate cases that such weaving, whether outside or within a lane, is “a widely recognized characteristic of an intoxicated driver” and creates a reasonable suspicion the driver is operating his vehicle under the influence of alcohol. (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1485–1486 [traffic stop justified where driver weaving in lane and narrowly missed hitting a curb]; People v. Russell (2000) 81 Cal.App.4th 96, 104 [traffic stop justified where driver drifting around in his lane]; People v. Perez (1985) 175 Cal.App.3d Supp. 8, 11 [even if driver did not cross from one lane to another, weaving within a lane is sufficient to justify traffic stop]; People v. Bracken (2000) 83 Cal.App.4th Supp. 1, 3–4 [weaving within lane for one-half mile supported reasonable suspicion].) Further, if weaving or erratic driving is observed, the distance of observation is not a controlling factor in evaluating the traffic stop. (Arburn v. Department of Motor Vehicles, supra, 151 Cal.App.4th at pp. 1485–1486; see also People v. Russell, supra, 81 Cal.App.4th at p. 104 [erratic driving in the form of drifting in lane justified traffic stop to determine if driver intoxicated].) Based on the above authorities, we conclude that Officer Dinsing’s observation of Yarberry’s driving pattern, including serpentine weaving and drifting over lanes, was sufficient to reasonably justify the traffic stop.

In addition to having reasonable suspicion that Yarberry was driving under the influence of alcohol, the DMV points out the facts observed by Officer Dinsing would also raise a reasonable suspicion of other Vehicle Code violations, such as a failure to stay within the roadway lanes by drifting over and straddling the solid yellow line. We agree with that assessment. (See People v. Butler (1978) 81 Cal.App.3d Supp. 6, 8 [Vehicle Code section 21658 is violated when driver either straddles a lane or when he changes lanes unsafely].) Yarberry contends there was no Vehicle Code violation based on a Ninth Circuit decision in United States v. Colin (9th Cir. 2002) 314 F.3d 439, which interpreted Vehicle Code section 21658 to mean that merely touching the lines did not constitute lane straddling. (United States v. Colin, at p. 444.) We are not bound by federal decisions on questions of California law. (Howard Contracting, Inc. v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 52; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 507, p. 570.) In any event, the present case is clearly distinguishable because Yarberry’s vehicle did not merely touch the yellow line, but the record showed Yarberry’s left-side tires actually crossed over for a period of time.

Based on the foregoing analysis, we conclude that Officer Dinsing had reasonable suspicion to stop Yarberry’s vehicle. Of course, the facts learned by Officer Dinsing after Yarberry was pulled over, including the telltale signs and symptoms of intoxication, clearly confirmed that Yarberry was driving under the influence of alcohol. We conclude that Yarberry has failed to establish the traffic stop and the arrest that followed it were unlawful.

III. Yarberry Failed to Meet Burden of Showing Error

“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because of the presumption of correctness, error must be affirmatively shown by the appellant. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) Thus, an appellant must affirmatively demonstrate prejudicial error based on sufficient legal argument and citation to an adequate record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.)

Here, Yarberry continues to argue that the officer’s observations were refuted by the MVARS video. However, the construction given to that video evidence by the DMV hearing officer and the trial court was that the MVARS video was unclear and did not contradict Officer Dinsing’s account. Not only has Yarberry failed to explain why the findings were in error, he has also failed to provide the MVARS video itself as part of the appellate record. Since he has failed to meet his burden of providing an adequate record for meaningful review, Yarberry’s argument is forfeited. “Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; see also Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed].)

DISPOSITION

The judgment of the trial court is affirmed. Costs on appeal are awarded to respondent, DMV.