Judge Carolyn M. Caietti, Case 37-2023-00017624-CU-WM-CTL 2023-10-06 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2023-00017624-CU-WM-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 05, 2023

10/06/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Writ of Mandate Hearing on Petition 37-2023-00017624-CU-WM-CTL ROMANE VS STATE OF CALIFORNIA DEPARTMENT OF MOTOR VEHICLES CAUSAL DOCUMENT/DATE FILED:

Petitioner Anthony Frank Romane Jr.'s Petition for Writ of Mandate is GRANTED IN PART.

Background This is a petition brought under C.C.P. section 1094.5. The Department of Motor Vehicles (DMV) suspended Petitioner's driver's license after he refused a breath or blood test following his arrest for driving under the influence of alcohol. Petitioner moves for an order directing the Department of Motor Vehicles to set aside his driver's license suspension, restore his full rights to operate a motor vehicle and reinstate his driver's license.

Standard of Review When a driver petitions for a writ of administrative mandate following an order of suspension, the superior court is required to determine, based on the exercise of its independent judgment, whether the weight of the evidence supports the administrative decision. (C.C.P., § 1094.5(c); Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372.) In exercising independent judgment, trial courts must afford a strong presumption of correctness concerning the administrative findings.

(Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) Discussion On April 6, 2021, Petitioner was arrested for driving under the influence. An Administrative Per Se (APS) hearing was held before the DMV's hearing officer beginning on December 19, 2022 and concluded March 27, 2023. (AR 45-65.) The DMV introduced and admitted documents into evidence. (AR 48, 52, 54, 67, 83-86.) At one point, the hearing officer stated, 'we are presenting [evidence] on behalf of the Department, yes.' (AR 73.) The hearing officer later reiterated, 'I am simply giving the documents that I have that have been signed under penalty of perjury and that is how I will go forward with the hearing.' (AR 78.) Petitioner also introduced evidence, including body worn camera footage, which this Court reviewed. (AR 84-85.) Petitioner's counsel objected to the APS hearing with a single hearing officer and to at least two of the documents submitted and admitted by the hearing officer. (AR 50-51, 54-55, 56, 58, 61, 67-70, 72, 80.) The hearing officer overruled the objections. (AR 81.) Ultimately, the hearing officer determined the elements for suspending Petitioner's driver's license were met and the DMV served Petitioner with a Notification of Findings and Decision on Petitioner, suspending his license for one year.

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2972108 39 CASE NUMBER: CASE TITLE: ROMANE VS STATE OF CALIFORNIA DEPARTMENT OF 37-2023-00017624-CU-WM-CTL The Second District Court of Appeal recently held the DMV's APS hearing structure 'violates the California and federal due process rights of drivers by combining the advocacy and adjudicatory roles into a single DMV employee.' (California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, 530 (CDLA II).) In CDLA II, the Second District Court of Appeal, concluded 'a hearing officer's dual roles of advocate and adjudicator violates due process,' and that '[v]ehicle [c]ode section 14112, subdivision (b) is unconstitutional to the extent it permits the DMV to combine the advocacy and adjudicatory roles in a single ... hearing officer.' (CDLA II, at p. 533.) However, in a footnote to this holding, the court also stated: '[California DUI Lawyers Association] concedes the DMV may task the same person with both collecting and developing the evidence and rendering a final decision. (See, e.g., Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 220] ....) He or she must refrain, however, from advocating on behalf of the DMV as the DSM currently mandates (i.e., present the DMV's case and 'promote driver safety,' with no corresponding duty to present any evidence that would support the position of the driver at the hearing.' (Ibid., fn. 5.) Here, like in CDLA II, the hearing officer represented the DMV, the hearing was adversarial, and the hearing officer's role involved both advocating on behalf of the DMV and acting as a fact finder. The hearing officer presented the DMV's case by submitting exhibits into evidence. (E.g., AR 48, 52, 54, 56, 67, 83-86.) The hearing officer also promoted driver safety. (AR 4.) The hearing officer was under no corresponding duty to present evidence that would support Petitioner at the hearing and did not present any evidence for Petitioner, like the body warn camera footage. These facts show the hearing officer did more than develop the facts and render a final decision. The hearing officer also advocated on behalf of the DMV. Due process rights are not dispensed with simply because the 'DMV hearing officer typically introduces two or three official documents into evidence and decides a limited number of issues.' Rather, 'whenever 'due process requires a hearing, the adjudicator must be impartial.'' (CDLA II, supra, 77 Cal.App.5th at p. 532.) Combining the roles of advocate and adjudicator in a single person employed by the DMV violated Petitioner's due process under the Fourteenth Amendment and the California constitution. (CDLA II, at p. 532.) Next, a due process violation is subject to a harmless error analysis. (Malaga County Water Dist. v. Central Valley Regional Water Quality Control Bd. (2020) 58 Cal.App.5th 418, 445 [noting that due process violations in the administrative law context 'are, absent exceptional circumstances, subject to a harmless error analysis when a violation is found'].) In CDLA II, the court did not address the harmless error analysis. Instead, it found actual bias is not dispositive. (CDLA II, supra, 77 Cal.App.5th at p. 532.) 'Rather evidence of a 'particular combination of circumstances creating an unacceptable risk of bias' is sufficient to render irrelevant the 'presumption that agency adjudicators are people of ' conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances'.' (Ibid., citing Today's Fresh Start, supra, 57 Cal.4th at p. 221-22.) Here, particularly in light of CDLA II, it was not harmless error to have the hearing officer serve as both advocate and trier of fact when rendering the decision to suspend Petitioner's license. This practice presents an 'intolerably high risk of actual bias.' (Today's Fresh Start, supra, 57 Cal.4th at p. 216.) A harmless error finding would make a violation of due process meaningless under these facts, the limited inquiry into whether to suspend a driver's license, the evidence that can be readily admitted and the nature of the proceeding. Further, the DMV would not be incentivized to discontinue the very same process CDLA II found to be unconstitutional and permanently enjoined.

The petition is granted in part because the Court declines to set aside the suspension. Instead, a new hearing will be ordered. (Hall v. Superior Court (2016) 3 Cal.App.5th 792, 810 ['The proper remedy for the denial of a fair administrative hearing is to remand the matter for a new administrative hearing before a different, qualified hearing officer.'].) Concluding Orders Calendar No.: Event ID: TENTATIVE RULINGS

2972108 39 CASE NUMBER: CASE TITLE: ROMANE VS STATE OF CALIFORNIA DEPARTMENT OF 37-2023-00017624-CU-WM-CTL For these reasons, the petition for writ of mandate is GRANTED IN PART.

Respondent The State of California Department of Motor Vehicles is ordered to hold an APS hearing consistent with California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517.

Respondent is also ordered to maintain custody of the administrative record in its original form pending exhaustion of any appeals of this matter.

Petitioner is ordered to: (i) prepare and submit a judgment in accordance with any rules and laws; and (ii) serve written notice of this ruling by October 10, 2023.

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