Judge Curtis A. Kin, Case Number: 23PSCP00071, Date: 2024-01-25 Tentative Ruling

Petitioner James Chen petitions for a writ of mandate directing respondent Steven Gordon, Director, California Department of Motor Vehicles to set aside an order suspending petitioner’s driving privileges.

On October 16, 2021, Officer Convento responded to a traffic collision call. (AR 22, 24.) Upon his arrival, he observed petitioner James Chen sitting on the ground near a vehicle, which had collided into a fence. (AR 24.) The security guard of the neighborhood told Officer Convento that he assisted petitioner out of his vehicle prior to Officer Convento’s arrival. (AR 24.) When the security guard told petitioner that law enforcement was responding, petitioner told him: “No, I can’t get another DUI.” (AR 24.)

While initially speaking with petitioner, Officer Convento did not observe any odor of an alcoholic beverage coming from him. (AR 24.) A slight breeze was blowing. (AR 24.) However, Officer Convento did observe that petitioner had watery eyes. (AR 24.) When asked, petitioner admitted to drinking. (AR 24.) Based on petitioner’s statement and Officer Convento’s observations, Officer Convento detained petitioner pending a driving under the influence of alcohol (“DUI”) investigation. (AR 24.) Petitioner submitted to a preliminary alcohol screening test but twice provided insufficient samples. (AR 14.) Officer Convento asked him the initial observations and pre-Standardized Field Sobriety Tests (“SFST”) investigative questions. (AR 24.) Before beginning each SFST, petitioner was asked if he had any medical problems, and he replied that he did not. (AR 24.) Petitioner performed poorly on the SFSTs. (AR 24-25.)

During the administration of the SFSTs, the breeze stopped. (AR 25.) Officer Convento could smell an odor of an alcoholic beverage emitting from petitioner’s breath and person. (AR 25.) Based on the above, Officer Convento formed the opinion that petitioner was driving under the influence of alcohol and arrested him for violating Vehicle Code section 23152(a). (AR 25.) Officer Convento then transported petitioner to Walnut Sheriff Station. (AR 25.)

At Walnut Sheriff Station, petitioner agreed to attempt the chemical breath test. (AR 25.) After two attempts, he failed to provide a sufficient sample. (AR 25.) On the first attempt, petitioner was not blowing through his mouth. (AR 20.) On the second attempt, he constantly opened his mouth while blowing. (AR 21.) Officer Convento transported petitioner to Intercommunity Hospital Covina for an “OK to book.” (AR 25.) At the hospital, petitioner was examined by a doctor and given the OK to book. (AR 25.)

While at the hospital, petitioner refused to give a blood sample, even though he had consented earlier. (AR 15, 25.) He refused to sign the Blood Test Request by Peace Officer form. (AR 26.) The form requires the signature of the person being tested. (AR 26.) Officer Convento transported petitioner back to Walnut Sheriff Station where he was booked. (AR 25.)

The administrative hearing took place on October 31, 2022 before the Department of Motor Vehicles (“Department” or “DMV”). (AR 32.) Hearing Officer Bernal introduced five exhibits into evidence: Exhibit #1: Age 21 & Older Officer’s Statement (DS-367); Exhibit #2: Instrument Time Out of the Breath Alcohol Analysis Reports; Exhibit #3: arrest report; Exhibit #4: Blood Test Request by Peace Officer; and Exhibit #5: Petitioner’s driving record history print. (AR 34-36.)

On Exhibit 1, the DS-367 form, Officer Convento did not check the boxes to indicate that petitioner refused to submit to a chemical test. (AR 14, 16, 18.) On the reverse side of page 1, Officer Convento checked the boxes indicating that petitioner consented to a breath test and a blood test. (AR 15.)

With respect to Exhibit 4, the Blood Test Request by Peace Officer form states that petitioner was requested to provide a blood sample. (AR 26.) No signature appears on the “Signature of Person Being Tested” line. (AR 26.) Officer Convento wrote “Refused to Sign/Draw” on the Witness line. (AR 26.)

Petitioner objected to Exhibits 1-4; however, all of the Department’s exhibits were admitted into evidence over petitioner’s objections. (AR 35-38.) A photograph of the interior of petitioner’s vehicle, which showed his eyeglasses on the driver’s seat, was offered by petitioner and admitted into evidence as Exhibit A. (AR 39, 74-75.)

At the administrative hearing, petitioner’s counsel argued that petitioner did not refuse to submit to a blood test. (AR 50.) Rather, petitioner refused to sign the Blood Test Request form. (AR 50.) Petitioner testified that he refused to sign the form because he could not read it and therefore he did not understand what it was or what he was signing. (AR 44.) He testified that he told Officer Convento “multiple times” that he could not read the form because he did not have his glasses but Officer Convento requested that he sign the form. (AR 43-44, 48-49.) He also asked the nurse for a magnifying glass, but the nurse shook his head. (AR 48.) However, petitioner did not recall whether he asked the nurse or Officer Convento to read the form to him. (AR 48.)

A decision was issued by the Department on November 4, 2022. (AR 9-13.) Based on a preponderance of the evidence, the Department concluded that (1) the peace officer had reasonable cause to believe that petitioner had been driving under the influence of alcohol; (2) petitioner was lawfully arrested; (3) petitioner was told that his driving privilege would be suspended or revoked if he refused to complete the required testing; and (4) petitioner refused or failed to complete the chemical test or tests after being requested to do so by a peace officer. (AR 11.) The DMV hearing officer found that petitioner did not refuse but failed to complete the chemical tests, as petitioner gave an insufficient sample of his breath and refused to sign the consent form to complete the blood draw. (AR 10.) The hearing officer gave more weight to the admitted evidence rather than petitioner’s testimony based on petitioner’s inability to recollect the events as they occurred. (AR 10.) For example, petitioner did not recall whether he asked the officer to read the form to him, but he was able to recall that he asked for a magnifying glass and that he left his glasses in his vehicle. (AR 10.)

The Department imposed a one-year license suspension, effective November 17, 2022 through November 16, 2023. (AR 9-13.) Petitioner requested a departmental review, which upheld the suspension on December 15, 2022. (AR 6.)

On February 7, 2023, petitioner James Chen filed a Verified Petition for Peremptory Writ of Mandate. On September 28, 2023, respondent Steve Gordon, Director of the California Department of Motor Vehicles filed an Answer.

On November 27, 2023, petitioner filed an opening brief. On December 14, 2023, respondent filed an opposition. Petitioner did not file a reply. The Court has received the administrative record lodged by petitioner.

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).) “[T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.)

When a driver petitions for a writ of mandate following an order suspending his or her driver’s license, the trial court is required to determine, based on its independent judgment, whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The Court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal.App.4th 860, 868.) However, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, 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.” (Fukuda, 20 Cal.4th at 817, internal quotations omitted.)

A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) The court cannot evaluate arguments that are not made in the briefs and cannot make the parties’ arguments for them. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-63 [argument waived if not raised]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

“Evidence Code section 664, which presumes that an official duty has been regularly performed, has been widely applied to DMV administrative hearings.” (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.) “[I]n an administrative hearing, ‘[a]ny 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....’ [Citations.] ‘A police officers report, even if unsworn, constitutes ‘the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs….’” (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-159.)

Petitioner seeks to set aside the administrative decision of the DMV to suspend his driving privileges. Petitioner contends that he never refused to have his blood drawn for a chemical test. Rather, petitioner argues that he did not have his eyeglasses and therefore was unable to read the Blood Test Request by Peace Officer form.[1] (OB ¶¶ 26, 41, 42, 54.)

When a person is lawfully arrested for driving under the influence of alcohol, they are deemed to have consented to the chemical testing of their blood or breath to determine their blood alcohol content. (Veh. Code § 23612(a)(1)(A).) Refusing to submit to, or failing to complete, a chemical test offered under Section 23612 is punishable by the suspension of the person’s driving privileges, among other sanctions. (Veh. Code § 13353(a)(1).) The officer must tell the arrestee that failure to submit to, or complete, the chemical test will result in a fine and suspension or revocation of driving privileges. (Veh. Code § 23612(a)(1)(D).)

“If the driver refuses to complete [a chemical test], his driving privilege is subject to suspension. There is a strong public policy against the nightmare of drunk driving. Thus, the implied consent law should be liberally construed to effect its purpose, which is to swiftly and accurately identify drunk drivers. (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270.) “Consent which is not clear and unambiguous may be deemed a refusal. The determinative factor as to whether there is a refusal is not the arrestee’s subjective state of mind, but rather the objective, fair meaning to be distilled from his words and conduct.” (Ibid.)

A person arrested for driving under the influence of alcohol must submit to and complete a test to determine blood alcohol content. (Carrey, 183 Cal.App.3d at1270.) The person may choose the type of test to which they will submit. (Ibid.) However, if the person cannot complete the chosen test, the person must choose and complete another. (Ibid.)

Petitioner submitted to a chemical breath test, but plaintiff twice provided an insufficient sample. (AR 20-21, 25.) Accordingly, petitioner was obligated to complete a different type of chemical test.

In the arrest report, Officer Convento indicated that petitioner refused to give a blood sample. (AR 25.) Under Evidence Code § 664, “[i]t is presumed that official duty has been regularly performed.” (Evid. Code § 664.) A police officer has an official duty to make accurate statements. (Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 79.)

Even though the arrest report is unsworn, it was admissible during the DMV hearing as the sort of evidence typically relied upon. (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-59 [“[S]o 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”]; AR 14-19 [DS-367 Officer’s Statement is sworn].) Accordingly, petitioner needed to demonstrate that Officer Convento’s statement that petitioner did not consent to the chemical blood test was inaccurate.

Petitioner argues that he never refused to have his blood drawn for a chemical test. Petitioner contends that, in the DS-367 form, Officer Convento did not check the boxes that indicated that he refused any chemical test. (AR 14, 16, 18.) Petitioner also refers to the reverse side of page 1 of the DS-367 form where Officer Convento indicated that petitioner agreed to submit to a breath and blood test. (AR 15.) Petitioner argues that he refused to sign the blood test request form because he did not have his eyeglasses, which were on the driver’s seat of petitioner’s vehicle. (AR 29, 39, 41, 42, 44, 48, 49.) Petitioner maintains that his refusal to sign the blood test request form was not his refusal to have his blood tested.

Petitioner’s assertions are insufficient to demonstrate that he is not responsible for failing to submit to a blood draw. The indication of petitioner’s initial consent to a blood test on the DS-367 form is not inconsistent with Officer Convento’s assertion on the arrest report that petitioner ultimately refused to give a blood sample despite having consented at an earlier time. (AR 15, 25.)

Concerning petitioner’s purported inability to read the blood test request form, it is true that “[a] person who is…in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the noncompletion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle.” (Veh. Code § 23612(a)(5).) Thus, “a driver may defend in an implied-consent hearing by proof of lack of capacity to refuse a test….” (Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 755 [analyzing Vehicle Code § 23157(a)(5), renumbered to § 23612(a)(5)].) “If, in what we perceive to be an infrequent case, the driver is able to convince a trier of fact that he or she was incapable of refusing a test for reasons unconnected with the consumption of alcohol, the statute contemplates a restoration of the driver’s license…” (Id. at 762.)

Here, petitioner’s evidence of not having his glasses is insufficient to demonstrate he was rendered incapable of refusing the test. Petitioner’s testimony that he could not read the form without his glasses was entirely self-serving,[2] and petitioner presented no other evidence that he was incapable of reading or otherwise understanding the contents of the blood test request form. Under the circumstances—where petitioner had stated he would consent to a blood draw and, in the presence of the nurse and officer, is asked to sign a consent form immediately prior to the blood draw—it is simply not credible that petitioner did not know or understand why his signature was required and what his refusal to sign the form meant. Indeed, petitioner’s admission of at least one prior driving under the influence encounter (see AR 16 [“No, I can’t get another DUI”]) suggests he was well familiar with the process and what would be required of him. Further, insofar as one were to credit the claim petitioner could not read the form due to lack of eyeglasses, as observed by the hearing officer, petitioner could have asked the officer to read and/or explain the form to him. (AR 10.)

The Court thus finds that petitioner’s refusal to sign the blood test request form was a knowing failure to do what was required in order to effectuate the required chemical blood test. (See Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1271 [refusal to sign medical consent form found to be “the pragmatic equivalent of a refusal to consent to the procedure involved”].) Even if petitioner were willing to submit to the blood test, such willingness “was meaningless in absence of his signature on the [consent] form.” (Ibid. [“Consent which is not clear and unambiguous may be deemed a refusal”].)

Accordingly, the weight of the evidence supports the finding that petitioner refused to do what was needed for him to give a blood sample as required by law. Under Vehicle Code § 13353(a)(1), petitioner’s failure to submit to or complete the required chemical test justifies the suspension of his driving privileges for one year.

In the petition, petitioner requests attorney fees pursuant to Government Code § 800. (Pet. at 18:10-23.) Under the statute, complainants who demonstrate that findings in an administrative proceeding were the result of arbitrary or capricious action by a public entity may collect reasonable attorney’s fees not exceeding $7,500. For the reasons stated above, the administrative findings were not arbitrary. Petitioner is not entitled to attorney’s fees.

The petition for writ of mandate is DENIED. Pursuant to Local Rule 3.231(n), respondent Steve Gordon, Director of the Department of Motor Vehicles shall prepare, serve, and ultimately file a proposed judgment.

[1] Petitioner does not otherwise challenge the findings upon which the decision is based, i.e., reasonable cause that petitioner drove under the influence of alcohol, lawful arrest, and notice of consequences for failure to submit to a chemical test. (See AR 11; Veh. Code § 13353(d) [listing factors necessary to trigger penalty of suspension].)

[2] As a whole, the hearing officer found there is reason to give “little weight” to petitioner’s testimony in that it was “vague and inconsistent with the evidentiary documentation.” (AR 11.) The Court agrees with that assessment.