Jehosafat Ocampo vs Steve Gordon
Jehosafat Ocampo vs Steve Gordon
Case Number
24CV06654
Case Type
Hearing Date / Time
Fri, 05/16/2025 - 10:00
Nature of Proceedings
Writ of Mandate
Tentative Ruling
For the reasons set forth below, petitioner Jehosafat Ocampo’s petition for Writ of Administrative Mandate is denied.
Background:
This action commenced on November 27, 2024, by the filing of the verified petition for writ of administrative mandate (the “petition” or “writ of mandate”) by petitioner Jehosafat Ocampo (“Ocampo”) against respondent Steve Gordon, Director, California Department of Motor Vehicles (“DMV”).
As set forth in the petition:
On August 3, 2024, Officer Vorster of the Santa Barbara Police Department responded to assist with a hit-and-run traffic collision that occurred at the intersection of E. Yanonali Street and Calle Cesar Chavez Street in Santa Barbara. (Pet., ¶ 6.) Shortly thereafter, Officer Vorster detained Ocampo to conduct a driving under the influence investigation to determine whether or not Ocampo was safe enough to drive. (Id. at ¶ 7.)
Officer Vorster placed Ocampo under arrest for violations of Vehicle Code sections 20001 (a) and 23153 (a). (Pet., ¶ 8.) According to Officer Vorster’s statement, Ocampo received a chemical test admonition, on the same day, at 5:16 a.m. (Id. at ¶ 9.) Although Ocampo’s initial response is not documented, Ocampo allegedly refused to submit to a chemical test. (Ibid.) When Officer Vorster asked Ocampo to submit to a chemical test of his breath, Ocampo allegedly replied, “I won’t take nothing.” (Id. at ¶ 10.)
Officer Vorster took Ocampo to the police station and authored a blood draw search warrant, which was issued. (Pet., ¶ 11.) Officers Murrillo and Palmerin Pena transported Ocampo to Ventura County Medical Center and obtained a blood sample. (Id. at ¶ 12.)
“Vorster did not adequately record in his worn report Ocampo’s alleged ‘refusal’ statements or conduct. The question as to whether Ocampo would submit to a blood test was left blank. There is no indication that Respondent stated he would not submit to a blood test.” (Pet., ¶ 13.)
On August 3, 2024, the DMV revoked Ocampo’s driving privilege. (Pet., ¶ 14.) Ocampo requested an administrative hearing (the “hearing”), and the DMV stayed the revocation of Ocampo’s driving privileges pending the outcome of the hearing. (Id. at ¶ 15.)
On October 8, 2024, the hearing took place and was conducted by DMV Driver Safety Officer Ramirez (“Ramirez”), to determine, among other things, whether Ocampo refused or failed to complete the chemical test(s) after Officer Vorster requested that he do so. (Pet., ¶ 16.) On behalf of the DMV, and over Ocampo’s objection, Ramirez admitted into evidence Officer Vorster’s Investigation Report and Officer Vorster’s Officer’s Statement. (Id. at ¶ 17.)
On November 1, 2024, Ramirez issued a Notification of Finding and Decision that found, among other things, that Ocampo “did refuse or fail to complete the chemical test or tests after being requested to do so by a peach officer.” (Pet., ¶ 18.) As a result, the DMV re-imposed its revocation of Ocampo’s driving privilege. (Id. at ¶ 19.)
On January 14, 2025, DMV filed its answer to the petition, admitting some paragraphs and denying others.
Ocampo seeks an order that the DMV set aside its suspension of Ocampo’s driving privileges, arguing that “the DMV erred when it found by a preponderance of the evidence that Ocampo was placed under ‘lawful arrest’.” (Opening Brief, p. 4, ll. 17-18.)
DMV opposes the petition, arguing that the DMV properly upheld the revocation because of Ocampo’s refusal to complete the chemical tests after being requested to do so.
Ocampo filed his reply to DMV’s opposition on May 9, 2025.
Analysis:
“Notwithstanding Section 14400 or 14401, within 30 days of the issuance of the notice of determination of the department sustaining an order of suspension or revocation of the person's privilege to operate a motor vehicle after the hearing pursuant to Section 13558, the person may file a petition for review of the order in the court of competent jurisdiction in the person's county of residence. The filing of a petition for judicial review shall not stay the order of suspension or revocation. The review shall be on the record of the hearing and the court shall not consider other evidence. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence in the record, the court may order the department to rescind the order of suspension or revocation and return, or reissue a new license to, the person.” (Veh. Code, § 13559, subd. (a).)
“Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. (Code Civ. Proc., § 1094.5, subd. (a).)
“ ‘When a person petitions for a writ of mandate following an order suspending his or her driver’s license, the court is required to determine, based on the exercise of its independent judgment, whether the weight of the evidence supports the administrative decision. [Citations.] In making that determination, the court acts as a trier of fact; it has the power and responsibility to weigh the evidence and make its own determination about the credibility of witnesses. [Citation.] The administrative findings, however, are entitled to ‘ “a strong presumption of correctness,” ’ and ‘ “the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” ’ [Citation.]’ ” [Citation.]” (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 99-100.)
“Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).)
“[I]n applying “ ‘ “independent judgment,” ’ ” a trial court must accord a “ ‘ “strong presumption of . . . correctness” ’ ” to administrative findings, and that the “ ‘burden rests’ ” upon the complaining party to show that the administrative “ ‘ “decision is contrary to the weight of the evidence.” ’ ” [Citations.]” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817.)
Hearing Findings of Fact
The issues for determination in the hearing were: (1) Did Officer Vorster have reasonable cause to believe Ocampo was driving a motor vehicle in violation of section 23152 or 23153 of the Vehicle Code; (2) Was Ocampo lawfully arrested; (3) Was Ocampo told his driving privilege would be suspended or revoked for one, two, or three years if he refused to submit to or failed to complete a chemical test; and (4) Did Ocampo refuse to submit to or fail to complete a chemical test after being requested to do so by Officer Vorster? (AR047.)
Ramirez made determinations including:
“Probable Cause:
“On or about Saturday, August 3, 2024, Officer Vorster, Badge #25912, of the Santa Barbara Police Department, contacted [Ocampo] as a result of a traffic collision and, upon investigation, had determined that [Ocampo] had been driving a motor vehicle involved in the collision.
“The determination of driving was based on: [Ocampo’s] admission of driving to Officer Vorster
“The evidentiary basis for the finding on the probable cause issue is: DMV Exhibits: Arrest Report & DS-367.” (AR003.)
“Objective Symptoms:
“Subsequent to making contact with [Ocampo], Officer Vorster formed the belief that [Ocampo] was intoxicated after having observed the following objective symptoms of intoxication:
“Bloodshot and watery eyes.
“Odor of alcoholic beverage.
“Officer Vorster also considered the following as contributing factors in forming the belief of intoxication:
“Soiled clothes.
“An admission of alcohol consumption.
“The evidentiary basis for the finding on the objective symptoms of intoxication issue is:
“The DS-367 (Officer’s Sworn Statement).
“The Arrest Report.” (AR003.)
“Reasonable Cause:
“Based on the preceding findings concerning probable cause, Officer Vorster’s determination of driving, the Officer’s belief that [Ocampo] was intoxicated because of the objective symptoms of intoxication, and the additional reported factors that the Officer used to form the belief of intoxication, it is hereby determined that Officer Vorster had reasonable cause to believe that [Ocampo] was driving a motor vehicle while under the influence of alcohol.” (AR003-AR004.)
“Lawful Arrest:
“On 8/3/2024, at 5:10 AM [Ocampo] was arrested for violation of Vehicle Code Section 23152, 23153, or 23140.
“The determination that [Ocampo] was arrested under the charge of driving under the influence, Vehicle Code Section 23152, 23153, or 23140 is based on:
“Explicit statements in DMV’s documentary evidence.
“The authority to arrest [Ocampo] was granted to Officer Vorster under Section 40300.5 of the California Vehicle Code.
“As a result of the reasonable cause determination and the subsequent findings of an arrest taking place, it is hereby determined that [Ocampo] was lawfully arrested for a violation of Vehicle Code Section 23152, 23153, or 23140.” (AR004.)
Ramirez determined that there was reasonable cause, Ocampo was placed under lawful arrest, Ocampo was told that his driving privilege would be suspended or revoked if he refused to complete the required testing, and Ocampo refused or failed to complete the chemical test(s) after Officer Vorster requested that he do so. (AR005.)
Evidence
“If a peace officer serves a notice of an order of suspension pursuant to Section 13388, or arrests any person for a violation of Section 23140, 23152, or 23153, the peace officer shall immediately forward to the department a sworn report of all information relevant to the enforcement action, including information that adequately identifies the person, a statement of the officer's grounds for belief that the person violated Section 23136, 23140, 23152, or 23153, a report of the results of any chemical tests that were conducted on the person or the circumstances constituting a refusal to submit to or complete the chemical testing pursuant to Section 13388 or 23612, a copy of any notice to appear under which the person was released from custody, and, if immediately available, a copy of the complaint filed with the court.” (Veh. Code, § 13380, subd. (a).)
“The peace officer’s sworn report shall be made on forms furnished or approved by the department.” (Veh. Code, § 13380, subd. (b).)
As reflected in the transcript of the hearing, the only persons that participated in the hearing were Ocampo’s counsel and Ramirez. (AR045 – AR056.)
The primary evidence relied on at the hearing was the statement of Officer Vorster contained on DMV form No. DS-367 (the “DS-367”) and the attachments thereto. (AR007 - AR013.) The DS-367 is a form “furnished or approved by the department.”
As relevant here, page 2 of the DS-367 contains a “Narrative” section, which states, in language pre-printed on the form:
“Describe in detail the facts, observations, and circumstances that led to the stop or contact. Print or write directly on this page. A portion of another report may be cut and pasted below but should be dated and contain an original signature. Attach arrest, collision, and/or supplemental report(s) if available. If arrest was made per CVC §40300.5 state the facts and circumstances that support the arrest. DUI Probation Violations: Indicate below how you determined the driver was on DUI probation.” (AR009; italics added.)
Under the Narrative section, Officer Vorster hand-wrote: “SEE ATTACHED REPORT.” (AR009.) The attached report is contained in the administrative record at AR011 through AR013. Each page of the attachment is dated and signed by Officer Vorster. Although Ocampo argued, at the hearing, that it is unclear if the narrative was signed, because they were just “squiggly marks” (AR052), the court is in agreement with Ramirez’s findings that the “squiggly marks” on the narrative match Officer Vorster’s signature on the bottom of page one of the DS-367. (AR004; AR007.) Although not mentioned by Ramirez, the marks also match Vorster’s signature at the bottom of page three of the DS-367. (AR010.)
Ocampo’s only cognizable argument is that the DMV erred when it found by a preponderance of the evidence that Ocampo was placed under “lawful arrest,” because Ramirez improperly relied on an unsworn arrest report to supplement Officer Vorster’s “sworn Officer’s statement that is “ ‘wholly devoid of relevant information’ ” regarding a material fact.” (Opening Brief, p. 8, ll. 2-5.) Ocampo asserts that the attachment is an unsworn arrest report because Vorster was required to cut and paste the sworn portion of his report into the DS-367, and, that by not doing so, it is unsworn. (Opening Brief, p. 5, ll. 15-27.)
Ocampo relies on MacDonald v. Gutierrez (2004) 32 Cal.4th 150 (MacDonald) for his argument that the attachment is an unsworn statement. MacDonald does not support Ocampo’s position.
In MacDonald the arresting officer, on the date of the incident, completed a sworn DS-367. The MacDonald court refers to the DS-367 as the “sworn report.” Also, on the date of the incident, the arresting officer completed a separate Driving Under the Influence Arrest/Investigation Report and a separate narrative/supplemental report. The MacDonald court refers to these two reports collectively as the “unsworn report.”
In MacDonald, at an administrative hearing, over objection that the unsworn report was inadmissible hearsay, the hearing officer overruled the objection and sustained the license suspension. On petition for writ of mandate, the trial court held that the unsworn report was inadmissible and that the sworn report alone failed to provide reasonable cause for the stop. As such, the trial court granted the petition. Thereafter, the Court of Appeal held that the unsworn report was admissible evidence and reversed the trial court with directions to reinstate the suspension.
In affirming the ruling of the Court of Appeal, the California Supreme Court held:
“Government Code section 11513 addresses the admissibility of evidence in administrative hearings. It states in relevant part: “ ‘The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.’ ” [Citation.]” (MacDonald, supra, 32 Cal.4th at p. 156.)
“To resolve this case we must strike a balance between the two pertinent statutory provisions. While section 13380 provides that an officer making an arrest for driving under the influence of alcohol or drugs shall immediately forward to the DMV “ ‘a sworn report of all information relevant to the enforcement action’ ”, section 13557 provides that the DMV “ ‘shall consider the sworn report submitted by the peace officer . . . and any other evidence accompanying the report’ ”.” (McDonald, supra, 32 Cal.4th at p. 158.)
In conclusion, the MacDonald court summarized as follows:
“Section 13380 provides the arresting officer’s sworn report will contain “ ‘all information relevant to the enforcement action.’ ” Therefore, the Legislature clearly anticipates the sworn report will contain all or nearly all of the information necessary to remove the offender’s license. In light of this legislative intent, the sworn report cannot be wholly devoid of relevant information. However, so long as a sworn report is filed, it is consistent with the relaxed evidentiary standards of an administrative per se hearing that technical omissions of proof can be corrected by an unsworn report filed by the arresting officer.” (MacDonald, supra, 32 Cal.4th at p. 159.)
DMV argues that Ramirez properly determined that the DS-367 included Officer Vorster’s attached report. The court agrees. Ocampo’s argument is flawed. Ocampo’s argument that the pages of an attachment are not sworn, because they are not “contained on all the pages” of the DS-367, is neither persuasive nor true. By including those pages as a signed and dated attachment, that Officer Vorster specifically referred to in the narrative section, they become “pages” of the DS-367. As noted above, the narrative section of the DS-367 specifically instructs the officer to: “Attach arrest, collision, and/or supplemental report(s) if available.” The portion of the report that Ocampo objects to is not an unsworn supplemental report as he argues.
Further, the portion of the DS-367 other than the attachment, is not wholly devoid of relevant information. For example, on page one of the DS-367, Officer Vorster noted that Ocampo had bloodshot/watery eyes, smelled of an alcoholic beverage, and had soiled clothing. (AR-007.) On the following page, Officer Vorster indicated that he gave Ocampo the chemical test admonition, but that Ocampo refused by saying, “I won’t take nothing.” (AR-008.) Thus, even if the attachment were an unsworn supplemental report, which it is not, Ramirez could, and should, have considered it.
On page 1 of the DS-367, Officer Vorster dated and signed: “I certify under penalty of perjury, under the laws of the State of California, that the information contained on all pages of this Officer’s Statement is true and correct.” (AR-007; italics added.) The “narrative” section on page 2 of the DS-367, as noted above, says “SEE ATTACHED REPORT.” Each page of the attachment is signed and dated by Officer Vorster.
Simply put, the attachment at issue in this Writ is a part of the Officer’s Statement and has been certified as true and correct. Ocampo cites no authority for his assertion that Officer Vorster was required to cut and paste his findings in the “narrative” portion of the DS-367. The langue under narrative does not say it is mandatory. It uses the permissive language of “may be cut and pasted,” rather than mandatory language of “shall.” Ramirez was correct in overruling Ocampo’s objection to the admissibility of the attachment, and considering the narrative contained therein.
Considering all the evidence presented, Ramirez made the correct ruling by finding in favor of the DMV and upholding the revocation of Ocampo’s driving privilege. The overwhelming weight of the evidence favors the revocation.
While Ocampo does not challenge any of the evidence, or findings, outside of the above discussion, this court finds the following:
The evidence presented shows ample reasonable probable cause to believe Ocampo was driving a motor vehicle in violation of Vehicle Sections 23152 or 23153, that Ocampo was lawfully arrested, that Ocampo was given notice that his driving privilege would be suspended or revoked if he refused to submit to or failed to complete a chemical test, and that Ocampo refused to chemical test after being requested to do so. While the court has carefully reviewed and considered all the evidence contained in the administrative record, following is a summary, and not an exhaustive recitation, of relevant evidence.
According to the DS-367 attached narrative, Officer Vorster responded to assist at the scene of a hit and run at the intersection of E. Yanonali Street and Calle Cesar Chavez Street. (AR-011) With information obtained by way of an iPhone crash notification and an OnStar collision notification, it was determined that the involved vehicle was a 2024 white Chevrolet Silverado. (Ibid.) The Silverado had collided into a building on the east side of the intersection, sustaining major damage and rendering it inoperable. (Ibid.) The driver was gone upon the officer’s arrival and the Silverado was unoccupied. (Ibid.) A records check showed that the Silverado was registered to Ocampo. (Ibid.)
An individual by the name of Aaron Guevara was located and advised Officer Vorster that he had been crossing E. Yanonali Street when he was struck by a passing white pickup truck that failed to stop at the stop sign and that he had seen the driver flee on foot. (AR-011.)
Officer Vorster and another officer conducted a search for the driver of the Silverado and were able to locate him. (AR-011.) Ocampo identified himself via a California Identification Card. (AR-012.) Officer Vorster noted a very strong odor of an alcoholic beverage emanating from Ocampo, as well as soiling/vomit on his pants and shirt. (Ibid.) Upon questioning, Ocampo initially maintained that he did not know anything about an accident, but eventually admitted that he was driving the Silverado. (Ibid.)
Based on Officer Vorster’s interaction with Ocampo, Officer Vorster came to suspect that Ocampo was intoxicated at the time of the collision and decided to conduct a DUI investigation. (AR-012.) Ocampo “admitted to drinking one to two 12oz beers from 1500 hours on 8/02/24 [at] an unknown time, somewhere in the Funk Zone.” (Ibid.)
After questioning Ocampo, Officer Vorster checked Ocampo’s eyes for the presence of horizontal gaze nystagmus, and observed six out of six possible clues; three per eye: a lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and the early onset of nystagmus prior to 45 degrees. (AR-012.) Officer Vorster attempted to conduct the remaining standard field sobriety tests, but Ocampo refused, saying, “I’m not doing anything else.” (Ibid.) [The only reasonable inference that can be garnered from this statement is that Ocampo was not going to cooperate with any tests at all. It clearly constitutes a refusal.] Ocampo also refused to provide a voluntary breath sample. (Ibid.)
Based on the probable cause discussed above, Officer Vorster placed Ocampo under arrest for violations of Vehicle Code sections 20001, subdivision (a), and 23153, subdivision (a). (AR-012.) During a search incident to arrest, Officer Vorster located keys to the Silverado in Ocampo’s pocket. (AR-013.)
Following the arrest, Officer Vorster gave Ocampo the chemical test admonishment. (AR-013.) Ocampo refused to provide a blood or breath sample. (Ibid.) Officer Vorster again gave Ocampo the chemical test admonishment, and again Ocampo refused to provide either a breath or blood sample. (Ibid.)
Upon arriving at the station, Officer Vorster authored a blood draw search warrant for Ocampo’s person, which was reviewed and signed by a deputy district attorney and issued by a superior court judge. (AR-013.) Ocampo was transported to the Ventura County Medical Center where the warrant was executed, and a blood sample obtained. (Ibid.)
Considering all of the evidence, the court finds that (1) Officer Vorster had reasonable cause to believe that Ocampo was driving a motor vehicle in violation of Vehicle Code sections 23152 or 23153; (2) Ocampo was lawfully arrested; (3) Ocampo was told that his driving privilege would be suspended or revoked for one, two, or three years if he refused to submit to or failed to complete a chemical test; and (4) Ocampo did refuse to submit to a chemical test after being requested to do so by Officer Vorster.
The writ of mandate will be denied.