Appendix E

• Pages: 1297-1529
• Author: Paul Burglin,Barry Simons,Ed Kuwatch

APPENDIX E

UNPUBLISHED

CASE DIGEST

E-93

APPENDIX E

CALIFORNIA DRUNK DRIVING

LAW’S UNPUBLISHED CASE DIGEST

Introduction to CDDL’s Unreported Case Digest

While there is a general prohibition against citing or relying on unpublished opinions, there are several

exceptions to the rule.

The CDDL Unpublished Cases Digest is intended to provide another exception to the general rule and is

based upon language from Santa Ana Medical Center v. Belshe (1997) 56 Cal.App.4th 819, wherein it was noted

that: “[T]rial court decisions may be considered instructive and persuasive, particularly where there is no binding

higher authority. (9 Witkin, Cal. Procedure, supra, §763, pp. 730-731.) However, what the cited treatise says is

“The doctrine [of stare decisis] applies only to decisions of appellate courts. Trial courts make no binding prece-

dents…. [¶] But such decisions [trial court decisions and administrative tribunal decisions] are by no means ignored;

when collected and readily available for study, they may be cited for their persuasive value, and are occasionally

followed in the absence of controlling higher authority. Examples are: [¶] (1) Coey’s Probate Decisions … [and

administrative decisions of workers’ compensation appeals board, public utilities commission, and unemployment

insurance board].” (Ibid., original italics.)

Rule 977

California Rules of Court §977(a) generally prohibits the citation to or reliance upon cases which have not



or collateral estoppel apply. This section will only apply in rare cases, because of VC §13353.2(e) which excludes

the doctrine of collateral estoppel.

Rule 977(b)(2) provides a straight faced argument to permit citation to and reliance upon unpublished cases

where they are relevant to a disciplinary proceeding such as a DMV Hearing and the opinion states reasons for a

   

Appeals involving the DMV can be relied upon by demonstrating that the opinion deals with the same issues and

DMV was either the defendant or respondent. Why shouldn’t they be bound by decisions that they are a party to



 





Government Code §800

Another way to cite and rely upon unpublished opinions is to argue that they are relevant on the question of

    

payment of attorney’s fees for writs and appeals up to $7,500.00. See §12:41.1 Form 12-12 for a sample of a request

APPENDIX E

UNPUBLISHED

CASE DIGEST

California Drunk Driving Law E-94

     

manner is to cite published cases, which they have a duty to follow. Another way is to cite unpublished opinions,

which are directly on point, especially where they interpret published cases and establish a stubborn insistence

and bad faith disregard of established case law.

Citation to Unpublished Opinion for the Purpose of Adopting Reasoning of Court







Chad Maddox of Santa Ana has attached and incorporated by reference the trial court opinion of Contra Costa





Procedure for Citing Unpublished Opinions

Any citable opinion under Rule 977(b) must be furnished to the Court and all parties by attaching it to the

document in which it is cited. In the event that the citation is made orally, the notice should be by letter within a

reasonable time in advance of the oral citation.

INDEX OF UNPUBLISHED CASE DIGEST

Barry v. Gourley (2007) (First District Court of Appeal, Division 5 — Docket No. A113996) (Unpublished). There

is little published case law on medical revocation hearings, leaving the DMV with a lot of discretion on how to

rule on them. One important limitation on this discretion, however, is that the DMV may not revoke a driving

privilege solely on a medical condition if “[it] has medical information which indicates the person may safely

operate a motor vehicle.” VC §12806(c); Title 13, California Code of Regulations, §110.02. Thus, a DMV license

revocation order was reversed where the Medical Evaluation noted the driver’s seizure condition was stable and

  



fees under Govt. Code 800!

Berezin v. Department of Motor Vehicles (2007) (First District Court of Appeal, Division 3 — Docket No.



procedures were not included within the DMV’s record (it is unclear whether the Licensee failed to introduce it or

the DMV failed to forward it with discovery). The lack of evidence, which would have been in the DMV record

had the procedures been introduced, allowed the Court to hold that the Licensee did not rebut the presumption that



Berg v. Valverde (2010) (Third Appellate District — Docket No. C063107). Nevada prior which allows for DUI

conviction without proof of volitional movement does not satisfy §13352(a)(d). Case notes that Nevada pulled out



dismissed speeding charge constitutes “competent evidence” that Berg was driving. It does not. See Draeger v.

Reed, supra, 69 Cal.App.4th 1511 (although charging document is properly included in the record of conviction,



Callan v. Gourley (San Bernardino Superior Court). Expert testimony that a licensee’s BAC at time of driving

was below .08 neutralizes the three-hour presumption and under Evid. Code §604 requires the DMV to produce

evidence to sustain burden.

Coehlo v. Valverde (Fifth District Court of Appeal, No. F048545) (7/11/06). Report stated that blood drawn by a

 

disregards Furman.

APPENDIX E

UNPUBLISHED

CASE DIGEST

E-95 California Drunk Driving Law’s Unpublished Case Digest

Coey v. Shiomoto (2014) (Fourth District Court of Appeals, Div3 G047562) This case held that even in the face

of uncontradicted evidence which indicated a pattern of rising blood alcohol on their face and were therefore

indicative of rising BAC, the evidence was not conclusive. The Court of Appeal found that there was substantial

evidence to uphold the trial court’s determination that the BAC was over 0.08 at the time of driving and that the





greater than 0.08 percent at the time of driving.

Colon v. Valverde-

cation under VC §§15300 et seq. as part of an APS hearing without proof of a conviction.

Hernandez v. Gourley (Fourth District Court of Appeal, Division 3 — Case No. G026641) (1/29/01). People v

Martinez does not overrule Downer.

Hicks v. Valverde (Second District Court of Appeal, Division 6 — Case No. B187885) (10/31/06). Driver who



Howe v. Department of Motor Vehicles (2007) (Second District Court of Appeal, Division 3 — Docket No. B192856)

(Unpublished). The licensee presented evidence that his blood was a .08 and his PAS (with the foundational testimony



 

testimony was speculative and “based his opinions on the PAS results only.” Thus, the licensee did not rebut the presump-

tion and the suspension was upheld. This goes under the heading do not writ a DUI that involves a fatality! Compare

this case with the better reasoned Callan decision. The Howe Court failed to recognize that you cannot support an

Administrative Per SeBaker v. Gourley.

Kishida v. Shiomoto (2015) (Fourth District Court of Appeal, Division 3 Case #G049242. In this case, the Court

of Appeal reversed the Superior Court ruling that the licensee’s had a BAC below 0.08% based on Darrell Clardy’s

testimony that Kishida was between 0.06% and 0.07% at the time of driving. This Court found that there was not

substantial evidence to support the trial court’s ruling that Kishida was still in the absorptive stage when the test



in an Admin. Pre Se 0,08% Hearing

Lewis v. Shiomoto (2015) (Fourth district Court of Appeal, Division 3, Case #G049264. This case upheld a trial

court’s ruling that the evidence presented by expert Darrell Clardy of a rising blood alcohol was not speculative

    

the absorptive phase and that breath alcohol readings are susceptible to false high readings. This is a great read

and should be compared with Coey v. Shiomoto supra and Kishida v. Shiomoto supra.

Malekow v. Superior Court (2009) (Fourth District Court of Appeal, Division 2 — Case No. E049523). This case



to deny a stay is an issue of public safety, not a determination of any factual issue in the case.

Nazerian v. Gourley (2005) (Second District Court of Appeal, Division 6 — Case No. B174066). Excellent dis-

cussion of zero tolerance, margin of error and burden shifting based on expert testimony. Another great case by

Lee McCoy of Santa Barbara.

People v. Alice 

§995 based on lack of evidence that ability to drive was impaired by amphetamines-reversed, but see court’s



People v. Branch 

-

olation and three-hour presumption did not apply.