Judge Curtis A. Kin, Case Number: 22STCP00664, Date: 2023-08-31 Tentative Ruling

Petitioner Dustin Taylor Duket seeks a writ of mandate directing respondent Department of Motor Vehicles to set aside its February 17, 2022 order suspending petitioner’s driver license.

Petitioner was arrested and convicted twice during a ten-year period for driving under the influence (“DUI”). He was first arrested for DUI on October 19, 2010 in Orange County. (Pet. ¶ 4.) On February 22, 2011, petitioner pled guilty to two DUI counts in Orange County Superior Court (“OCSC”). (Pet. ¶¶ 4-5.)[1] Petitioner was arrested a second time for DUI on February 5, 2020. (Pet. ¶ 6.) Thereafter, on September 21, 2021, petitioner pled guilty to two DUI counts in OCSC. (Pet. ¶ 7.)

A condition of petitioner’s probation for the second conviction required him to attend and complete an 18-month DUI program. (Pet. ¶ 8; PRJN Ex. 7.) Petitioner enrolled in a DUI program at ABC Traffic Safety Programs (“ABC”) on September 28, 2020. (See Pet. ¶ 14; Freestone Decl. ¶ 2(a) & Ex. 1.) Petitioner’s enrollment contract with ABC states, “ABC will provide Educational Sessions and Group Sessions in accordance with Section 9851 [of Title 9 of California Code of Regulations] and procedures consistent with the County/State.” (Freestone Decl. ¶ 2(a) & Ex. 1 [Contractual Agreement at § 1.A].)

The DUI program had multiple requirements including: 12 hours of educational sessions, 52 hours of group counseling sessions, 26 self-help meetings, 27 face-to-face interviews, and 6 re-entry face-to-face meetings. (Gomez Decl. ¶ 6 & Ex. G [Program Contract Review].) The Contractual Agreement stated: “The CLIENT will be referred back to the referring agency for consideration of termination for all of the following reasons … 5. Fails to obtain a leave of absence, in accordance with Section 9876.5, when the participant is unable to attend scheduled program services for 21 days or more; 6. Exceeds the number of absences allowed in Section 9876(d), without a leave of absence approved in accordance with Section 9876.5….” (Freestone Decl. ¶ 2(a) & Ex. 1 [Contractual Agreement at §§ II.5, II.6].)

• Ten (10) absences or no activity within 21 days will result in your case being referred back to the proper agency for notification of non-compliance (DMV will also be notified and your license will be suspended, and the court may issue a bench warrant for violation of court order.)

• “During the last six (6) months of the SB-38 Program, failure to attend activities within sixty (60) days will result in termination of the program.

The Rules and Policies attached to the contract further stated that clients “will be terminated from the program” for various reasons, including for 10 absences “unless client is on an approved Leave of Absence, in accordance with Section 9876(d)” or “failure to attend a program activity within a 21 day period” without requesting a leave of absence. (Gomez Decl. ¶ 7 & Ex. H [Rules and Policies].)

On or about September 21, 2021, as a result of petitioner’s two convictions, DMV issued an order suspending petitioner’s driver’s license from September 21, 2021 through September 21, 2023. (Pet. ¶ 10; Veh. Code § 13352(a)(3).) However, DMV stayed the suspension and issued petitioner a restricted driver’s license after he, among other things, enrolled in an 18-month DUI program at ABC as part of his probation ordered by OCSC. (Pet. ¶¶ 12-14, 21-23, 31-32.)

On or about January 9, 2022, petitioner’s live-in girlfriend and her two small children were confirmed to be infected with the virus causing COVID-19. (Duket Decl. ¶ 2.) Petitioner had contact with them on January 9, 2022. (Duket Decl. ¶ 3.) As result of his close contact to a confirmed positive COVID-19 case, on January 9, 2022, petitioner’s employer, the City of Los Angeles Department of Water and Power (“DWP”), placed petitioner on paid administrative leave. (Freestone Decl. ¶ 2(b) & Ex. 3.) On January 17, 2022, petitioner became ill with COVID-19. (Duket Decl. ¶ 5.)

Pursuant to the County’s Quarantine Order effective in January 2022, persons who were not “up to date” on COVID-19 vaccines were required to quarantine for at least five days from their contact with a person who has COVID-19 (if they obtained a negative test and had no symptoms) or up to 10 days (without a negative test or with symptoms). (PRJN Ex. 2.) Persons up to date on COVID-19 vaccines or who had COVID-19 in the past 90 days were not required to quarantine if not symptomatic for COVID-19. (PRJN Ex. 2.) Petitioner maintains that he was required to quarantine from January 10, 2022 to January 20, 2022.” (OB at 8:12-13; Gomez Decl. ¶ 11 & Ex. L [response to Form Interrog. No. 17.1 re: Req. for Admis. No. 6], ¶ 13 & Ex. N [¶¶ 14, 16, 18].)

Petitioner had a face-to-face meeting scheduled with ABC for January 19, 2022. (Duket Decl. ¶ 6.) On January 19, 2022, petitioner called ABC before the start of the meeting to request a leave of absence based on his required quarantine and his own illness. (Duket Decl. ¶ 7.) The ABC clerk told petitioner his request was not timely and that his absence would be treated as a missed meeting. (Duket Decl. ¶ 8.) On February 1, 2022, petitioner went in person to ABC to reschedule his missed January 19, 2022 face-to-face meeting. (Duket Decl. ¶ 9; see also Freestone Decl. ¶ 2(d) & Ex. 5 [written request for retroactive leave of absence].) Petitioner informed ABC that he had missed the January 19, 2022 face-to-face meeting due to exposure to COVID-19, mandatory quarantine period, and his own COVID-19 illness. (Duket Decl. ¶ 10.) Petitioner was informed that he had been terminated from the DUI education program on January 19, 2022 for exceeding the absences allowed. (Duket Decl. ¶ 11.)

On February 16, 2022, petitioner appeared before the Honorable Paula Coleman, Commissioner in OCSC. Commissioner Coleman ordered petitioner reinstated into the DUI program. (Pet. ¶ 43.)

In the meantime, DMV received notification from ABC on January 19, 2022 that petitioner had not complied with the requirements of the program. (Thomas Decl. ¶¶ 4, 14 & Ex. O].) On February 17, 2022, DMV sent petitioner an Order of Suspension, suspending his driver license effective February 21, 2022, “because the Department of Motor Vehicles (DMV) has been notified that you failed to comply with the terms of the driving under the influence (DUI) program.” (PRJN Ex. 7.) The Order states that petitioner’s driving privilege “shall not” be reinstated before September 15, 2023 and until DMV receives proof of financial responsibility and proof of completion of a DUI Program licensed pursuant to Health and Safety Code § 11836. (PRJN Ex. 8.)

On February 25, 2022, petitioner filed a verified Petition for Peremptory Writ of Mandamus. On April 1, 2022, respondent Steve Gordon, as DMV, filed an Answer to the petition. On April 25, 2022, petitioner filed a Supplemental Petition for Peremptory Writ of Mandamus. On May 16, 2022, respondent filed an answer to the supplemental petition.

On May 9, 2023, the Court (Hon. Mary H. Strobel) granted petitioner’s motion for preliminary injunction. The Court enjoined respondent from enforcing the February 21, 2022 suspension of petitioner’s driver license. (5/9/22 Order Granting Preliminary Injunction.)

· Exhibit 2: January 05, 2022, County of Los Angeles Department of Public Health, Order of the Health Officer – GRANTED (Evid. Code § 452(c))

· Exhibit 6: Transcription of Audio Recordings of February 16, 2022 proceedings in State of California v. Dustin Taylor Duket, OCSC Case No. 20WM11379 – GRANTED (Evid. Code § 452(d))

· Exhibit 7: February 17, 2022 DMV Order of Suspension – GRANTED (Evid. Code § 452(c))

· Exhibit 8: Relevant portions of the DMV 2021 Annual Report of the California DUI Management Information System – GRANTED (Evid. Code § 452(h))

· Exhibit 9: DMV Statistics for Publication January through December 2022 – GRANTED (Evid. Code § 452(h))

· Exhibit 11: 2021-22 Budget: Department of Motor Vehicles – GRANTED (Evid. Code § 452(h))

Petitioner’s objection to respondent’s use of its own responses to petitioner’s special interrogatories (see Gomez Decl. ¶ 3 & Ex. D) is SUSTAINED. (See Great American Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 450, emphasis in original [“‘At the trial or any other hearing in the action, so far as admissible under the rules of evidence, the propounding party or any party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party.’ (Code Civ. Proc., § 2030.410, italics added.) Thus, the responding party may not use its own interrogatory responses in its own favor”].) The Court exercises its discretion to consider the declaration of Stephanie Thomas filed after petitioner filed the reply. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)

Petitioner’s objection to the declaration of Jeannie Ho is OVERRULED. Declarations are not admissible at trial because they are hearsay. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541.) However, “[e]vidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Rule of Court 3.1306(a).) “Law and motion” includes applications for writs of mandate. (Rule of Court 3.1103(a)(2); see also American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 263 [“‘In a law and motion, writ of mandate hearing, the trial court has broad discretion to decide a case on the basis of declarations and other documents rather than live, oral testimony. [Citations.]’ [Citations]”].) Petitioner was aware on January 11, 2023 at the latest of respondent’s contention that petitioner could have complained to the Department of Health Care Services (“DHCS”) that his license was improperly suspended. (Gomez Decl. ¶ 17 & Ex. R at 108.) Petitioner had the opportunity to conduct discovery concerning the issues raised in the Ho declaration prior to the filing of the opening brief. (Cf. Ho Decl. ¶ 6 [“If the DUI Unit determines from its investigation that the DUI program should not have dismissed the participant, it will notify the DUI program of this deficiency and require the program to correct the deficiency -i.e. reverse the dismissal and reinstate the participant”].)

Petitioner’s objection to the introduction of an email exchange between the parties’ respective counsel is OVERRULED. The emails are not admitted to prove the truth of the matter asserted, e.g., that the ability to request a hearing with DHCS connected to petitioner’s dismissal from the program, may defeat petitioner’s due process claim. (See Gomez Decl. ¶ 17 & Ex. R at 108.) Rather, the emails show that petitioner was aware of respondent’s contention regarding a mechanism to complain to DHCS months before the filing of the opening brief.

CCP § 1085(a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.) “‘Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy.…’ [Citation.]” (Pomona Police Officers’ Ass’n v. City of Pomona (1997) 58 Cal.App.4th 578, 584.)

“When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1085, judicial review is limited to examining the agency proceedings to ascertain whether the agency's action has been arbitrary, capricious or lacking entirely in evidentiary support, or whether the agency failed to follow the proper procedure and give notices required by law. And, where the case involves the interpretation of a statute or ordinance, our review of the trial court's decision is de novo.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311, citing Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584.) In independently reviewing legal questions, “An administrative agency's interpretation does not bind judicial review but it is entitled to consideration and respect.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) In a CCP § 1085 writ petition, the petitioner generally bears the burden of proof. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

Petitioner maintains that Vehicle Code § 13352(e)(2) is unconstitutional on its face and as applied to petitioner. In evaluating these claims, the Court first provides an overview of the statutes and regulations governing the suspension of petitioner’s driver license and petitioner’s participation in the DUI program offered by ABC. Second, the Court provides an overview of the case law governing procedural due process. Third, the Court examines whether Section 13352(e)(2) is facially unconstitutional. Fourth, the Court examines whether Section 13352(e)(2) is unconstitutional as applied to petitioner.

Persons arrested for a second DUI face the possible suspension of their driver license under two different circumstances. First, the DMV is required to impose an administrative per se (APS) suspension of anyone driving with a blood alcohol content of 0.08 percent or more. (Veh. Code § 13353.2(a)(1).) Before the DMV may impose such suspension, the driver is entitled to a hearing before the DMV. (Veh. Code § 13558(a); Gikas v. Zolin (1993) 6 Cal.4th 841, 846 [explaining that administrative per se laws allow suspension of driver license prior to DUI conviction after notice and opportunity to be heard].)

The second type of suspension a DUI driver faces is only imposed by the DMV “upon the receipt of an abstract of the record of a court showing that the person has been convicted of” a DUI. (Veh. Code § 13352(a).) In petitioner’s case, he was convicted of a second DUI resulting in a two-year suspension of his driver license. (Veh. Code § 13352(a)(3) [“… the privilege shall be suspended for two years.”]) The Vehicle Code prescribes that a person is not entitled to a hearing before the suspension of their driver license “[i]f the action by the department is made mandatory by this code.” (Veh. Code § 14101(a).)

A second offender’s driving privilege “shall not be reinstated until the person gives proof of financial responsibility and gives proof satisfactory to the department of successful completion of a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code as described in subdivision (b) of Section 23542 of this code.” (Veh. Code § 13352(a)(3)(A).) Thus, in petitioner’s case, his license could not be fully reinstated until he completed the requirements of section 13352(a)(3)(A), including the DUI program.

However, the DMV “shall advise the person that they may apply to the department for a restricted driver’s license if the person” providing proof of enrollment in a DUI education program “agrees … to continue satisfactory participation” in the DUI education program, installs and maintains an ignition interlock device in their vehicle, and pays the required fees. (Veh. Code § 13352(a)(3)(A)(i)-(viii).) “The restriction shall remain in effect for the period required in subdivision (e).” (Veh. Code §§ 13352(a)(3)(B), 13352(e).) As noted above, DMV issued petitioner a restricted driver’s license after he, among other things, enrolled in an 18-month DUI program at ABC Traffic Programs. (See Pet. ¶¶ 12-14, 21-23, 31-32.)

Vehicle Code § 13352(e)(1) states: “The restricted driving privilege shall become effective when the department receives all of the documents and fees required under paragraphs (1) to (7), inclusive, of subdivision (a) and, except as specified in paragraph (2) or (3), shall remain in effect until all reinstatement requirements are satisfied.”

Vehicle Code § 13352(e)(2), the provision challenged by petitioner, states in full:

For the purposes of the restriction conditions specified in paragraphs (1) to (7), inclusive, of subdivision (a), the department shall terminate the restriction imposed pursuant to this section and shall suspend or revoke the person’s driving privilege upon receipt of notification from the driving-under-the-influence program that the person has failed to comply with the program requirements. The person’s driving privilege shall remain suspended or revoked for the remaining period of the original suspension or revocation imposed under this section and until all reinstatement requirements described in this section are met.

Because Vehicle Code § 13352(e)(2) creates a mandatory suspension, and because Vehicle Code § 14101 proscribes a hearing when an action is made mandatory, DMV had a ministerial duty under section 13352(e)(2) to suspend petitioner’s restricted license without a hearing after the DUI program reported that petitioner failed to comply with the program requirements. The parties agree on this point. (OB at 13:13-14; Opp. at 13:13-19.)

Health and Safety Code § 11836(a) authorizes DHCS to license private entities to provide DUI education programs. Health and Safety Code § 11836.15 authorizes DHCS to adopt regulations for the guidance of the programs. The regulations are codified in Title 9 of the California Code of Regulations.

As relevant to this case, the regulations state that a participant in a DUI education program is required to attend all scheduled activities unless the participant has “(1) Contacted the DUI program and arranged to attend an activity at an alternate time, or (2) Been granted an approved leave of absence, pursuant to Section 9876.5.” (9 C.C.R. § 9876(a).) A participant in an 18-month program is not permitted more than ten absences. (9 C.C.R. § 9876(d)(4).) 9 C.C.R. § 9876.5(a) states: “The DUI program shall require the participant to request a leave of absence whenever the participant is unable to attend any scheduled program activities for 21 days or longer. Participants may request a leave of absence for less than 21 days.”

9 C.C.R. § 9876.5(b) states: “To request a leave of absence, the participant shall submit to the DUI program a written request for leave of absence, and any documentation substantiating the need for a leave of absence. The written request shall specify: (1) The name of the participant; (2) The reason for requesting the leave of absence; and (3) The dates of the requested leave of absence.”

Section 9876.5(c) states: “The DUI program shall require the participant to request prior approval for all leaves of absence, unless unable to do so due to circumstances beyond the participant’s control. If the participant requests retroactive approval for a leave of absence, in addition to the information listed in Subsection (b) of this section, the request for leave of absence shall explain the circumstances that prevented the participant from requesting prior approval.” Leave of absences “shall” be approved for “[p]articipants who are absent due to their own extended illness or medical treatment or that of a family member” and “[p]articipants who cannot participate in program services due to an extreme personal hardship or family emergency.” (9 C.C.R § 9876.5(e)(3), (5).)

Petitioner maintains that he was deprived of due process because his driver’s license was suspended on February 17, 2022 without a hearing pursuant to Vehicle Code § 13352(e)(2). Petitioner maintains that Vehicle Code § 13352(e)(2) is unconstitutional on its face and as applied to petitioner, because the statute causes a deprivation of procedural due process.

“‘[A] statute is presumed to be constitutional and … must be upheld unless its unconstitutionality “clearly, positively and unmistakably appears.” [Citations.]’ ” (Boyer v. County of Ventura (2019) 33 Cal.App.5th 49, 53, quoting Hale v. Morgan (1978) 22 Cal.3d 388, 404; accord California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 175 [“a strong presumption of constitutionality supports the Legislature's acts”]; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 10-11 [party challenging constitutionality of statute has “heavy burden”].)

“The central purpose of procedural due process is to provide affected parties with the right ‘to be heard at a meaningful time and in a meaningful manner.’ Due process is a flexible concept. This flexibility is needed in order to gear the process to the particular need. Not every situation to which the right to procedural due process applies calls for the same procedure. Not every situation requires a formal hearing with full rights of confrontation and cross-examination. ‘What must be afforded is a ‘reasonable opportunity’ to be heard.’” (Rodriguez v. Department of Real Estate (1996) 51 Cal.App.4th 1289, 1296-97, internal citations omitted.)

Under the California Constitution, the extent to which procedural due process is available depends on a weighing of private and governmental interests involved. The required procedural safeguards are those that will, without unduly burdening the government, maximize the accuracy of the resulting decision and respect the dignity of the individual subjected to the decisionmaking process. Specifically, determination of the dictates of due process generally requires consideration of four factors: the private interest that will be affected by the individual action; the risk of an erroneous deprivation of this interest through the procedures used and the probable value, if any, of additional or substitute safeguards; the dignitary interest of informing individuals of the nature, grounds and consequences of the action and of enabling them to present their side of the story before a responsible governmental official; and the government interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. [Citations.]

(Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 390, quoting Rodriguez, 51 Cal.App.4th at 1297.)

A similar standard applies under federal law. “[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement

“A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.] ‘“To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute .... Rather, petitioners must demonstrate that the act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.”’ [Citation.]” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)

Petitioner maintains that the U.S. Supreme Court has determined that a driver facing suspension of a driver’s license is entitled to a pre- or post-suspension hearing, depending on the circumstances, because a driver’s license is a protected property interest. The U.S. Supreme Court has found that the “suspension of a driver’s license for statutorily defined cause implicates a protectible property interest.” (Mackey v. Montrym (1979) 443 U.S. 1, 10, fn. 7, citing Dixon v. Love (1977) 431 U.S. 105, 112 and Bell v. Burson (1971) 402 U.S. 535, 539.) Consistent with that authority, petitioner received due process when his license was originally suspended due to his criminal convictions, after which he obtained a restricted license. (See Pet. ¶¶ 12-14, 21-23, 31-32; Beamon v. Department of Motor Vehicles (1960) 180 Cal.App.2d 200, 205 [finding that statutes requiring mandatory suspension of driving privileges after conviction of certain public offenses are of no concern because “facts have already been determined in the criminal proceeding”].)

Notably, however, the U.S. Supreme Court cases cited by petitioner did not involve re-suspension of a driver license after failing to comply with a condition of probation. (Bell, 402 U.S. at 537 [driver faced suspension of license without hearing after accident unless he was covered by insurance or posted a bond]; Dixon, 431 U.S. at 110 [driver’s license revoked after having been convicted of multiple traffic offenses]; Mackey, 443 U.S. at 4-5 [driver’s license suspended after agency received police officer’s report of driver’s DUI and refusal to take breath-analysis examination].) Accordingly, these cases do not necessarily support the proposition that petitioner would be entitled to a hearing in all circumstances simply because the property interest involved is a driver license.

With respect to the Oberholzer/Mathews factors, Vehicle Code § 13352(e)(2) is not unconstitutional on its face. Concerning the private interest affected and dignitary interests, a person who does not need to drive to work or for work does not face the same due process concerns as a person whose “continued possession [of a driver license is] essential in pursuit of a livelihood.” (Bell, 402 U.S. at 539; cf. Gomez Decl. Ex. N at ¶¶ 30-35 [petitioner’s need for a driver license to maintain employment as first responder].) The risk of an erroneous deprivation under section 13352(e)(2) is low in cases in which a person fails to comply with the requirements of a DUI program, such as failure to pay fees, reporting to class with any measurable amount of alcohol, or being further convicted of another DUI while participating in the program. (Gomez Decl. ¶ 7 & Ex. H.) As for the government’s interests, the government has a strong interest in removing from the roadways drivers who operate their vehicles under the influence of alcohol. (See Mackey, 443 U.S. at 17 [states have an interest in removing drunken drivers from highways to protect public health and safety].)

Accordingly, petitioner has not met his “heavy burden” to demonstrate that Vehicle Code § 13352(e)(2) “inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions” such that it should be found unconstitutional on its face.[2] (Tobe, 9 Cal.4th at 1084; City of Los Angeles, 29 Cal.4th at 10-11.)

“An as applied challenge may seek (1) relief from a specific application of a facially valid statute or ordinance to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied, or (2) an injunction against future application of the statute or ordinance in the allegedly impermissible manner it is shown to have been applied in the past. It contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right.” (Tobe, 9 Cal.4th at 1084.)

The Court examines the Oberholzer/Mathews factors to determine whether petitioner is entitled to a pre- or post-suspension hearing notwithstanding the mandatory nature of Vehicle Code § 13352(e)(2).

Here, the private interest is petitioner’s restricted license to operate a motor vehicle. “Once licenses are issued, as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” (Bell, 402 U.S. at 539; accord Dixon, 431 U.S. at 112 [“It is clear that the Due Process Clause applies to the deprivation of a driver's license by the State….”]; Mackey, 443 U.S. at 10; Rios v. Cozens (1972) 7 Cal.3d 792, 796.)

Respondent suggests that the private interest here is not important under due process standards because petitioner only had a restricted license. Respondent cites no case authority for the blanket proposition that a restricted license cannot be an important property interest subject to procedural due process protections depending on the circumstances. Indeed, even on a restricted basis “limited to the hours necessary for driving to and from the person’s place of employment, driving during the course of employment, and driving to and from activities required in the driving-under-the-influence program” (Veh. Code § 13352.5(c)), petitioner’s driving privilege is vitally important to petitioner, who demonstrates that he needs his driver license for work and that he could lose his employment if his restricted license is suspended. (Duket Decl. ¶¶ 30-36.) Thus, for petitioner, his restricted license has “become essential in the pursuit of a livelihood” such that certain due process protections should have been given before it was taken away. (Bell, 402 U.S. at 539.)

Respondent argues that “the risk of erroneous deprivation is minimal for a DUI program participant with a restricted driver license [because] [t]here is no evidence to suggest the DMV often makes clerical errors in misreading a DUI program’s notification that a participant had not complied with the program’s requirements, let alone that the DMV did not here.” (Opp. at 16:20-24.) Respondent contends that “ministerial actions … do not implicate violations of due process.” (Opp. at 7:14-15; Sustainability of Parks, Recycling and Wildlife Legal Defense Fund v. County of Solano Department of Resource Management (2008) 167 Cal.App.4th 1350, 1359 [“[O]nly governmental decisions that are adjudicative in nature trigger procedural due process concerns. …. [M]inisterial actions by government are generally not governed by these principles, because they are essentially automatic based on whether certain fixed standards and objective measurements have been met”].)

It may be true that DMV’s actions under Vehicle Code § 13352(e)(2) are ministerial in nature. However, at least in some cases, DMV’s suspension of a restricted license under section 13352(e)(2) may depend on the adjudicative or discretionary decision of the DUI program, which is licensed by the government. As summarized above, regulations adopted by DHCS establish procedures whereby participants in the DUI program may request a leave of absence. A participant in an eighteen-month program is not permitted more than ten absences. (9 C.C.R. § 9876(d)(4).) The participant must request a leave of absence in writing and explain “the reason for requesting the leave of absence.” (9 C.C.R. § 9876.5(b).) A leave of absence “shall” be approved for “[p]articipants who are absent due to their own extended illness or medical treatment or that of a family member” and “[p]articipants who cannot participate in program services due to an extreme personal hardship or family emergency.” (9 CCR § 9876.5(e)(3), (5).)

In some cases, such as when the participant claims “extreme personal hardship” or requests a retroactive leave of absence, a DUI program may have substantial discretion in determining whether a participant satisfies the regulatory requirements for an excused absence. A DUI program could abuse its discretion in determining whether a participant satisfies the requirements for an excused absence, or even in calculating the number of absences (excused or unexcused)

that a participant has already had. Depending on the circumstances, there is a reasonable probability of erroneous deprivation of a restricted license under section 13352(e)(2).

Thus, in petitioner’s case, there is evidence petitioner experienced “an extreme personal hardship or family emergency” when his entire household was stricken with COVID-19 and he was required to quarantine in accord with the Los Angeles County Department of Health order. Significantly, the commissioner in petitioner’s criminal case ordered him reinstated into an 18-month DUI program. (Pet ¶ 43.) This evidence suggests that petitioner may have been erroneously terminated from the DUI program. Whether or not that is ultimately determined to be the case is not before this Court. However, what is before this Court is whether petitioner had any reasonable opportunity to challenge the DUI program’s determination that he did not qualify for an excused absence, which did not occur here.

Respondent DMV argues that petitioner had the opportunity to submit a grievance with DHCS concerning any improper dismissal. (Freestone Decl. ¶ 2(a) & Ex. 1 at VII [Grievance Procedures]; Ho Decl. ¶¶ 4, 6.) The regulations provide that “[a]ny person may request an investigation of a DUI program by contacting [DHCS] in person, by telephone, in writing, or by any other automated or electronic means, in order to determine compliance with the provisions” governing DUI programs. (9 C.C.R. § 9823.1(a).) When that occurs, the regulation requires DHCS to start an investigation within 10 days of receiving a complaint. (Ibid.) However, the regulation does not prescribe a time limit to complete the investigation. (Ibid.)

Moreover, while a DHCS investigation may result in the issuance of a deficiency to the DUI program (9 C.C.R. §§ 9823 [types of compliance deficiencies], 9824 [issuance of notice of deficiencies]), the corrective actions provided for in the regulations are development of a corrective action plan for the DUI program (§ 9825), assessment of civil penalties (§ 9827), and suspension or revocation of the license to operate the DUI program (§ 9834). Thus, a DUI program that receives a deficiency may be required to fix the deficiency, e.g., by approving a leave request or reversing a dismissal (Ho Decl. ¶ 7), but the regulations do not set forth a process whereby the DUI program is required to notify DMV that an enrollee was improperly dismissed despite having complied with the program requirements. DMV does not cite any regulation or statute suggesting that the DMV must undo the suspension of an enrollee to a DUI program who was improperly dismissed.

DMV also argues that petitioner could have sought review of the DUI program’s determination from the criminal court that referred him to the program. DMV relies on Health and Safety Code § 11837.2(f), which states: “Jurisdiction of all postconviction matters arising pursuant to this section may be retained by the court of conviction.” DMV also cites Health and Safety Code section 11837.1(b), which states in pertinent part: “If, at any time after entry into or while participating in a program, a participant who is referred to an 18-month … fails to comply with the rules and policies of the program, and that fact is reported, the Department of Motor Vehicles shall suspend the privilege of that person to operate a motor vehicle for the period prescribed by law in accordance with Section 13352.5 of the Vehicle Code, except as otherwise provided in this section.”

Section 11837.2 addresses the criminal court’s reference of persons to licensed programs and related matters, such as procedures for transfer of the participant to another licensed DUI program. Section 11837.1 authorizes the court to “require periodic reports concerning the performance of each person referred to and participating in a program” and also states the procedure when a DUI program loses its license. Neither statute pertains to driver’s license suspensions pursuant to subdivision section 13352(e)(2), and neither contains any express language suggesting that the criminal court can order the DMV to reinstate a restricted license that has been suspended pursuant to section 13352(e)(2). Accordingly, while the court ordered Petitioner reinstated to a DUI program, there is nothing in the record to suggest that the criminal court ordered DMV to reinstate petitioner’s restricted license or had the power to do so.

Here, the probable value of additional safeguards is high, namely, a post-suspension hearing. While petitioner could have filed a grievance with DHCS or addressed any improper dismissal from the DUI program with the criminal court, the applicable statutes and regulations do not ensure that any improper dismissal results in the reversal of the suspension of the driver license. Absent a post-suspension hearing, the risk of erroneous deprivation of petitioner’s license is substantial.

Under the circumstances of this case, petitioner has shown a relatively high dignitary interest in being informed of the nature, grounds, and consequences of his termination from the DUI program and in being able to challenge that decision before a responsible government official. As discussed above, petitioner needs the restricted license for his livelihood, and petitioner submits evidence that could support his contention that he may have been erroneously terminated from the DUI program.

As stated above, there is a compelling government interest in the safety of the roads and in protecting the public from unsafe drivers. For persons with two DUI convictions, that governmental interest may justify the immediate suspension of a restricted license without a prior hearing or prior opportunity to respond if such persons fail to comply with the requirements of the DUI program. (Mackey, 443 U.S. 1, 19 [“We conclude, as we did in Love, that the compelling interest in highway safety justifies the Commonwealth in making a summary suspension effective pending the outcome of the prompt postsuspension hearing available”].) Nonetheless, the governmental interest in ensuring the safety of the roads would not necessarily be harmed by affording a post-suspension hearing, which would allow for a challenge to the suspension only after the suspension had taken effect.

With respect to the administrative and fiscal burdens that additional or substitute procedural requirements would entail, this ruling only applies as to petitioner. Thus, this determination of an as applied constitution violation does not force the DMV to expend substantial resources to implement post-suspension hearing procedures in all cases after the ministerial suspension of a driver license, as would have been the case if the Court had found that Vehicle Code § 13352(e)(2) was unconstitutional on its face.

For the foregoing reasons, because petitioner may have been improperly dismissed from the DUI program offered by ABC but the applicable statutes and regulations do not provide for DMV to reverse any improper dismissal, the Court finds that Vehicle Code § 13352(e)(2) as applied to petitioner violates procedural due process and is accordingly unconstitutional as applied. The issue of whether petitioner timely requested a leave of absence (or is otherwise entitled to have his absence excused) is reserved for DMV at a post-suspension hearing. (See 9 C.C.R. § 9876.5(c) [“The DUI program shall require the participant to request prior approval for all leaves of absence, unless unable to do so due to circumstances beyond the participant's control. If the participant requests retroactive approval for a leave of absence…the request for leave of absence shall explain the circumstances that prevented the participant from requesting prior approval”].)

The petition is GRANTED. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.

[1] With respect to citations to the Petition, respondent admitted the cited paragraphs in the Answer.

[2] For the same reasons, the Court declines petitioner’s request to find that Vehicle Code § 13352.4(f), which applies to first-time DUI offenders, is unconstitutional on its face. (OB at 13, fn. 7.)

DUSTIN TAYLOR DUKET,	Petitioner,	Case No.	22STCP00664
vs.		[TENTATIVE] RULING ON PETITION FOR PEREMPTORY WRIT OF MANDAMUS Dept. 82 (Hon. Curtis A. Kin)
STEVE GORDON, AS DIRECTOR, CALIFORNIA DEPARTMENT OF MOTOR VEHICLES,	Respondent.