Himelspach v. Department of Motor Vehicles (1983)

KATHLEEN VIRGINIA HIMELSPACH, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent

(Opinion by Broussard, J., expressing the unanimous view of the court.)

COUNSEL

James Gaus for Plaintiff and Appellant.

George Deukmejian, Attorney General, and Martin H. Milas, Deputy Attorney General, for Defendant and Respondent.

OPINION

BROUSSARD, J.

This is a companion case to Daniels v. Department of Motor Vehicles (1983) ante, page 532 [189 Cal. Rptr. 512, 658 P.2d 1313].

In or before July 1980, the Department of Motor Vehicles (D.M.V.) received an SR 1 report signed by Sandra Frankel, describing an accident that had occured on February 5, 1980, between a vehicle operated by Frankel and a vehicle operated by licensee Himelspach.

Himelspach received a notice of suspension and requested a formal hearing, which was held October 1, 1980. Himelspach did not personally attend the hearing. However, her attorney did appear and objected to the introduction of the SR 1 report on the grounds that it was not authenticated, it contained only hearsay, and that the contents of the document were not sufficient to sustain any finding regarding the issues at the hearing. These objections were overruled. The D.M.V. subsequently suspended Himelspach's license, and the superior court denied a petition for writ of mandate.

[1] The issue in this case is identical to that in Daniels v. Department of Motor Vehicles, supra. For the reasons set forth in that opinion, we hold that when the licensee requests a hearing, the SR 1 report is itself insufficient to establish a prima facie showing of the facts supporting the suspension of a drivers license.

The judgment is reversed and the cause is remanded to the trial court with directions to grant Himelspach's petition and issue a peremtory writ commanding [33 Cal. 3d 544] the D.M.V. to set aside its order of suspension and proceed in accordance with the views expressed herein.

Bird, C. J., Mosk, J., Richardson, J., Kaus, J., Reynoso, J., and Dalsimer, J., concurred.