Judge Curtis A. Kin, Case Number: 23STCP01229, Date: 2024-04-16 Tentative Ruling

Petitioner Gary Joseph Suggett petitions for a writ of mandate directing respondent Steve Gordon, Director of the Department of Motor Vehicles of the State of California, to set aside an order suspending petitioner’s driving privileges.

On January 25, 2022, Officers Do and Davis observed petitioner driving westbound on Washington Boulevard approaching Pacific Avenue in Los Angeles at 12:23 a.m. (AR 13.) Petitioner turned right against a red light despite a “No Turn on Red” sign. (AR 13.) Petitioner then nearly hit a vehicle in front of him, accelerating quickly and conducting a hard stop. (AR 13.) The officers pulled petitioner over. (AR 13.)

When the officers approached petitioner, Officer Do could smell alcohol from petitioner’s vehicle. (AR 13.) Petitioner also had watery/glossed eyes. (AR 13.) When petitioner stepped out of his car onto the sidewalk, Officer Do observed petitioner stopping twice, walking slowly, and appearing to sway. (AR 13.) Petitioner denied having drunk any alcohol. (AR 13.) However, the passenger in petitioner’s car informed Officer Davis that the two had been at Hinano Café and that he personally observed petitioner drink at least two alcoholic beverages. (AR 13.) Petitioner declined to participate in any field sobriety tests and was arrested for suspicion of DUI. (AR 13.)

Officers Do and Davis transported petitioner to the Pacific Station at about 1:00 a.m. (AR 13.) After having transported petitioner, Officer Do asked petitioner: “You said you didn’t want to a breath or blood test right?” (AR Ex. 3 [body worn video], Transcript (“Tr.”), at 14:2-3.) Petitioner responded: “[O]n the side of the road, no.” (Tr. at 14:4.) When Officer Do clarified with “Oh, I mean here,” petitioner responded: “I’d prefer not to.” (Tr. at 14:5-8.) Officer Do then read to petitioner the chemical test admonition, as follows:

You are required by State Law to submit to a chemical test to determine the alcohol and drug content of your blood. You have the choice of taking a blood or breath test when applicable. If you refuse to submit to or fail to complete a test, your driving privilege will be administratively suspended for one year or administrative revoked for two or three years.

A two-year administrative revocation will result if the refusal occurred within 10 years of a separate violation of driving under the influence and/or such a charge reduced to reckless driving or vehicular manslaughter, which resulted in a conviction of administrative determination that you refused testing or were driving in an excessive concentration of alcohol on a separate occasion. A three-year administrative revocation will result if you had more than one of these violations or administrative determinations within the last 10 year. [sic]

Your refusal or failure to complete a test may be used against you in court. Refusal or failure to complete breath or urine testing will result in a fine and mandatory imprisonment if you are convicted of a violation of the California Vehicle Sections 23152 or 23153. You do not have the right to talk to an attorney or have an attorney present before stating whether you submit to a test, before deciding which test to take or during the test. If you cannot complete the test you choose, you must submit to and complete the remaining test.

(Tr. at 14:13-15:14.) Officer Do read the admonition verbatim and without any interruptions. (See ibid.)

After reading petitioner the admonition, Officer Do asked petitioner: “So again, you don’t want to do any tests, right?” (Tr. at 15:15.) Petitioner did not give any verbal response. (Ibid.) It is unclear from the video of the body worn camera whether petitioner gave any non-verbal response, such as by shaking his head “no.” (See AR Ex. 3 [body worn video] at timestamp 23:52-23:55.) Officer Davis then stated: “And let me just explain, by you refusing, automatically your license is being taken away.” (Tr. at 15:16-17.)

Officer Davis then asked petitioner whether he would still refuse a chemical test once he was checked into the station. (Tr. at 16:5-6.) Petitioner responded by stating: “I’d rather do it now.” (Tr. at 16:7.) Officer Davis replied with “okay,” but reminded petitioner that, by refusing, “your driver’s license is gonna automatically be taken away.” (Tr. at 16:8-14.) Petitioner responded: “I’m well aware of California law.” (Tr. at 16:16.)

Officer Do asked petitioner: “So do you still not want to do it, correct? Or do you want to do it?” (Tr. at 16:21-22.) Petitioner responded: “I’ll do the, can I do breath?” (Tr. at 16:23.) Officer Do responded: “Breath? So if you’re going to the breath….” What Officer Do said next was not clearly captured by the body worn camera. (See AR Ex. 3 [body worn video] at timestamp 25:21-25:24.) Officer Do then said: “Right? So you’re gonna have to do the other test.” (Tr. at 16:25-17:2.) Petitioner responded, “I don’t think so.” (Tr. at 17:2.)

OFFICER DO: Okay. So the Field Sobriety Test and then there’s also a chemical test.

OFFICER DO: You do not have to. It is your right to choose whether you do or you don't. And always in court, you can tell them you weren't drunk, you were just driving home, whichever.

GARY SUGGETT: Well, there won’t be any of that, but I understand that you guys can just get a warrant for my blood at this point if I refuse, so.

OFFICER DO: No, we will not force to get blood from you. And I’m telling you that and that’s a promise for me.

OFFICER DO: So are you refusing to take the chemical test? I'm giving you my word we're not gonna get a warrant to take your blood if you refuse, okay? It’s completely up to you. I’m not pressuring you to do anything. I just want you to be completely comfortable with yourself and your decisions on what you want to do.

GARY SUGGETT: I also understand that you can say that and then you can go back on that.

OFFICER DO: Well, no, I’m telling you now that I am not going to take your blood. And you have my word. And it’s all on camera.

OFFICER DAVIS: Like I said, it’s not like you killed three kids in a crosswalk.

OFFICER DAVIS: It’s not the crime of the century. We're not saying you killed three people. And yes, a warrant can be issued for your blood and it depends on the circumstances. It’s not saying that that’s always what happens.

OFFICER DO: No? Okay. So you said no and I'm still not gonna get a warrant for your blood, okay? So just relax, okay? I'm not gonna take it. Okay.

(Tr. at 17:3-19:10.) Officers Davis and Do then directed petitioner to the inside of the police station. (Tr. at 19:11-22.) Petitioner’s license was suspended for one year for refusing to submit to a chemical test. (AR 11.)

Petitioner appealed his suspension. The administrative per se (“APS”) hearing[1] was conducted November 22, 2022 in front of Driver Safety Hearing Officer Funes. (AR 23.) The sole issues at the hearing were: (1) whether the peace officers had probable cause to believe that petitioner was driving under the influence; (2) whether the peace officers lawfully arrested petitioner; (3) whether the peace officers properly admonished petitioner that his license would be suspended if he refused chemical testing; and (4) whether petitioner actually refused chemical testing. (AR 26:23-27:16.)

Petitioner presented an opening statement in which he conceded the first three issues and contested only whether he had actually refused chemical testing. (AR 27:19-23.) Petitioner argued that the peace officer improperly admonished him and that petitioner did not refuse a chemical test because he offered to take a breath test. (AR 27:19-29:2.) Petitioner invited Hearing Officer Funes to view the peace officer’s body worn footage, which Hearing Officer Funes agreed to do. (AR 28:17-29:16.)

Hearing Officer Funes introduced the following exhibits “on behalf of the Department”:

· Exhibit 1, the applicable peace officer’s statement (Form DS-367) by Officer Davis, which notes petitioner’s refusal;

Petitioner objected to Exhibits 1-4 on the ground that the evidence is “incorrect,” arguing that Exhibit 3 (the body worn footage) demonstrates that petitioner did not refuse a chemical test. (AR 32:22-33:14.) Petitioner requested that Hearing Officer Funes watch the video during the hearing before admitting the evidence, which Hearing Officer Funes agreed to do. (AR 33:17-35:7.) After technical difficulties, Hearing Officer Funes informed petitioner that she would view the video in its entirety after the hearing concluded and give the evidence proper weight. (AR 35:8-36:2.)

Hearing Officer Funes asked petitioner again whether his objection was “a general objection to all the exhibits.” (AR 36:8-10.) Petitioner responded, “yes,” and stated that his objection is that the evidence is “just not accurate.” (AR 36:13.) Hearing Officer Funes overruled the objection and admitted Exhibits 1-4. (AR 37:3-8.)

After admitting the evidence, Hearing Officer Funes allowed petitioner to present his case. (AR 37:10-15.) Petitioner testified during the hearing. (AR 37:16-40:1.) Hearing Officer Funes did not object to any questions asked by petitioner’s attorney. (AR 37:16-40:1.) Petitioner did not present any other witnesses or request any additional exhibits be admitted to the record. (AR 23-51.) Petitioner’s attorney informed Hearing Officer Funes that he was done asking questions and that Hearing Officer Funes should now ask petitioner questions. (AR 40:2-3 [“I have no further questions. Go ahead, Officer.”].)

Hearing Officer Funes asked petitioner whether he was informed why he was pulled over. (AR 41:4-7.) Petitioner responded that he was told that he made a right turn at an intersection that had a no right turn on red. (AR 41:8-13.) Counsel for petitioner responded that there is no issue of probable cause. (AR 41:14-20.) Hearing Officer Funes responded that she had “the right to go ahead and make any questions that [she] ha[s] – that [she] can with regards to this.” (AR 41:21-24.) Petitioner’s attorney did not further object to any of Hearing Officer Funes’ questions. (AR 40:8-46:21.) After Hearing Officer Funes finished asking questions, petitioner’s counsel provided his closing argument in which he objected to the Hearing Officer acting as prosecutor and judge. (AR 46:22-49:7.) Hearing Officer Funes overruled counsel’s objection. (AR 49:13-25.)

On December 2, 2022, Hearing Officer Funes found that petitioner’s license had been appropriately suspended for refusing to take a chemical test. (AR 3.) Regarding refusal, Hearing Officer Funes considered petitioner’s testimony at the administrative hearing that he had been improperly admonished and denied the opportunity to take a chemical breath test. (AR 4.) However, Hearing Officer Funes gave greater weight to the body worn video, which demonstrated petitioner’s interactions with the peace officers in real time. (AR 4.) Hearing Officer Funes found that the body worn footage demonstrated that “Respondent was properly admonished” regarding his obligation “to choose and submit to a chemical test.” (AR 4.) In the Hearing Officer’s view, petitioner was not confused and instead repeatedly and calmly stated: “I am well aware of my rights.” (AR 4.) Finding that petitioner nonetheless refused to take a chemical test multiple times, Hearing Officer Funes concluded that petitioner’s license suspension was appropriate. (AR 4-5.)

On April 18, 2023, petitioner Gary Joseph Suggett filed a Verified Petition for Writ of Mandate. On August 15, 2023, respondent Steve Gordon, Director of the Department of Motor Vehicles of the State of California filed an Answer.

On May 16, 2023, the Court granted petitioner’s ex parte application to stay the suspension of petitioner’s driver license pending entry of judgment in the instant matter.

On January 22, 2024, petitioner filed an opening brief. On March 6, 2024, petitioner filed a reply.

The writ petition was scheduled to be heard on March 21, 2024, but, prior to the hearing, no opposition or administrative record had been lodged. (3/21/24 Minute Order at 1.) In addition, petitioner’s reply brief referred to a certified audio transcript of video evidence that was purportedly filed with the reply, but no transcript had been filed with the reply or prior to the hearing. (3/21/24 Minute Order at 2.) The Court thus continued the hearing and ordered the respective parties to file the opposition and transcript and lodge the administrative record. (3/21/24 Minute Order at 2.)

On March 21, 2024, respondent filed an opposition. On March 22, 2024, petitioner filed the transcript of a body-worn camera video.

The Court has received the administrative record lodged by petitioner, including three compact discs.

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.)

“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, “[a]n 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.)

Under CCP § 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.)

Petitioner seeks to set aside the administrative decision of the DMV to suspend his driving privileges. Petitioner asserts two arguments: (1) petitioner was not properly admonished and did not refuse to submit to a chemical test (Pet. ¶¶ 9-11); and (2) the Hearing Officer improperly acted as both advocate and adjudicator in handling the case (Pet. ¶¶ 16, 17).[2]

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.)

Petitioner contends that the officers illegally conditioned his taking a breath test on undergoing field sobriety tests. (Tr. at 16:23-17:6.) However, Officer Do properly admonished petitioner on the consequences of refusing to complete a chemical test. (Transcript at 14:13-15:14.)

Petitioner argues that Officer Do told petitioner that he would “have to do the other test,” to which petitioner responded, “I don’t think so.” (Transcript at 16:25-17:2.) The parties dispute whether the “other test” refers to a blood test or a field sobriety test (“FST”). Petitioner argues that Officer Do did not mention any blood test and thus impermissibly told petitioner that he would have to complete FSTs if petitioner did not submit to a breath test. In support of this view, petitioner points out that Officer Do’s next statement to petitioner was “Okay, so you don’t want to do the Field Sobriety Test?” (Tr. at 17:3:4.) However, during the admonition, Officer Do had told petitioner that petitioner had “the choice of taking a blood or breath test when applicable.” (Tr. at 14:15-16.) Indeed, the only available chemical test other than a breath test was a blood test. (See Veh. Code § 23612(a)(1)(A) [chemical test includes blood or breath].)

It is true that, when petitioner asked whether he could complete the breath test, Officer Do’s camera did not capture what Officer Do said with respect to the availability of the breath test. (Tr. at 16:23-25.) However, considering that Officer Do had earlier admonished petitioner that he had the choice to take a blood or breath test, it would not make sense for Officer Do to have characterized an FST as the “other test.” Under Evidence Code § 664, “It 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.) Officer Do’s request for petitioner to confirm that he didn’t want to do the FST does not mean that Officer Do sought to force petitioner to complete FSTs. Rather, the request is explained by petitioner’s previous refusal to complete the FST, which had occurred before Officer Do admonished petitioner with respect to the chemical test. (Tr. at 5:20-6:2.) Petitioner does not sufficiently demonstrate that Officer Do required petitioner to complete field sobriety tests.

In any event, irrespective of whether “other test” referred to a chemical test or an FST, “[i]n determining whether an arrestee's refusal is the result of confusion, the crucial factor is not the state of the arrestee's mind; it is the fair meaning to be given his response to the demand that he submit to the chemical test.” (Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 497.) Petitioner gave no indication that he was under the impression that he had to complete FSTs as the result of Officer Do’s statements. Instead, when Officer Do asked petitioner whether he did not want to do the FST, petitioner responded: “I feel there’s two things being mixed up here.” (Tr. at 17:3-6.) Officer Do then stated that there was an FST and a chemical test. (Tr. at 17:7-8.) Officer Do then asked whether petitioner refused to do the FST, to which petitioner stated that he was refusing. (Tr. at 17:10-12.) Officer Do then asked petitioner whether he was refusing to do the chemical testing. (Tr. at 17:13-15.) When petitioner responded that he was not refusing, Officer then asked affirmatively whether petitioner wanted to do the chemical testing, to which petitioner responded: “I have to by California law.” (Tr. at 17:15-17; see also Tr. at 16:16-18 [in response to Officer Davis stating consequence of refusing chemical testing, petitioner responded “I’m well aware of California law”].) Accordingly, there was no confusion on the part of petitioner as to whether he was required to complete a chemical test.

For the foregoing reasons, the weight of the evidence supports the Hearing Officer’s finding that petitioner was properly admonished on the consequences of refusing a chemical test.

Petitioner also contends that he never refused a chemical test. Respondent contends that petitioner refused a chemical test three times: (1) when petitioner purportedly shook his head in response to Officer Do’s question, “So again, you don’t want to do any tests, right?” (Opp. at 13:5-13); (2) when petitioner stated, “I don’t think so,” when Officer Do stated, “So if you’re gonna do the breath…right? So you’re gonna have to do the other test?” (Opp. at 13:14-23); and (3) when petitioner shook his head “no” in response to Officer Do’s question, “So you’re refusing? That's a yes or no?” (Opp. at 13:24-14:5.)

As stated in the Factual Background above, the purported first refusal is not clear from the body-worn camera. The Court is unable to discern whether petitioner shook his head “no” when Officer Do asked petitioner if he did not want to do any tests. (See AR Ex. 3 [body worn video] at timestamp 23:52-23:55.) The fact that Officer Davis followed Officer Do’s question by stating: “And let me just explain, by you refusing, automatically your license is being taken away,” does not necessarily serve as a confirmation that petitioner refused any chemical test. (See Tr. at 15:16-17.) Rather, Officer Davis could have determined that petitioner did not respond to Officer Do and decided to attempt to persuade petitioner to submit to a chemical test.

Nevertheless, having reviewed the transcript and the video footage from Officer Do’s body-worn camera, the Court finds that petitioner refused to complete a chemical test. With respect to petitioner’s purported second refusal, Officer Do told petitioner that he would “have to do the other test,” to which petitioner responded, “I don’t think so.” (Tr. at 16:25-17:2.) Because a blood test was the only option given to petitioner, as discussed above, petitioner had to complete the blood test. (Tr. at 16:24-17:1; Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 114–115 [“Under the implied consent law, when either a blood test or a breath test is unavailable for whatever reason, the motorist must submit to and complete the available test….”].)

Further, the Court need not solely rely on petitioner’s second refusal, as characterized by respondent, to find that the weight of the evidence supports a finding that petitioner refused a chemical test. After petitioner confirmed that he refused to do the field sobriety test, Officer Do asked petitioner whether he refused to do the chemical testing. (Tr. at 17:13-14.) Petitioner responded that he was not refusing. (Tr. at 17:16.) Officer Do then asked petitioner whether he wanted to do the testing. (Tr. at 17:16.) Petitioner responded that he had to by California law. (Tr. at 17:17.) In response, Officer Do told petitioner that he had the right to choose the chemical testing or not. (Tr. at 17:18-19.) Petitioner did not believe Officer Do, stating: “[Y]ou guys can just get a warrant for [his] blood at this point if [he] refuse[s]….” (Tr. at 17:22-24.) Officer Do told petitioner that they would not “force to get blood from” petitioner, after which petitioner stated: “I’m not saying anything else.” (Tr. at 17:25-18:2.) Officer Do then attempted to assure petitioner that they would not get a warrant for petitioner’s blood if he refused. (Tr. at 18:3-8.) Petitioner responded: “I also understand that you can say that and then you can go back on that.” (Tr. at 18:9-10.) Officer Davis then explained: “And yes, a warrant can be issued for your blood and it depends on the circumstances. It’s not saying that’s always what happens.” (Tr. at 19:1-3.) Petitioner responded: “At this point, I’d like to say no more.” (Tr. at 19:4.) Officer Do then asked petitioner: “So you’re refusing? That’s a yes or no?” (Tr. at 19:5-6.) Petitioner then shook his head no. (Tr. at 19:7; AR Ex. 3 [body worn video] at timestamp 27:26 .)

Because Officer Do asked petitioner whether he was refusing a chemical test, petitioner’s head shake arguably could be viewed as petitioner indicating that he was not refusing. However, the context of the peace officers’ conversation does not support this view. In response to petitioner’s head shake, Officer Do said: “So you said no and I’m still not gonna get a warrant for your blood, okay?” (Tr. at 19:8-9.) Officer Do thus indicated his understanding that petitioner was refusing a chemical test, specifically a blood test. Petitioner did not correct Officer Do by stating that he would complete a blood test. Petitioner’s failure to correct Officer Do in his understanding that petitioner was refusing a blood test is an acknowledgement of and agreement with Officer Do’s understanding that petitioner refused. (Cf. Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299 [“A motorist’s silence in the face of a police officer’s repeated requests that he submit to a chemical test and that he choose a test to determine the alcohol content of his blood, constitutes a refusal to submit to a chemical test.”]

Further, in connection with the officers’ efforts to assure petitioner that they would not seek a warrant to obtain his blood, petitioner responded, “I’m not saying anything else” and “At this point, I’d like to say no more.” (Id. at 18:2, 19:4.) Despite petitioner’s earlier denial that he was refusing chemical testing (id. at 17:16), petitioner’s lack of affirmative consent to a blood is properly deemed a refusal to submit to chemical testing. (Carrey, 183 Cal.App.3d at 1271 [“Consent which is not clear and unambiguous may be deemed a refusal”].)

For the foregoing reasons, the weight of the evidence supports the Hearing Officer’s finding that petitioner refused to complete a chemical test.

Petitioner contends that the Hearing Officer acted as advocate and adjudicator, in contravention of the Court of Appeal’s holding in California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (CDLA II).[3] In CDLA II, the Court of Appeal held that “combining the roles of advocate and adjudicator in a single person employed by the DMV violates due process under the Fourteenth Amendment and the California constitution Article I, section 7.” (CDLA II, 77 Cal.App.5th at 532.)

The Court of Appeal in CDLA II found that a hearing officer cannot serve as both advocate for the DMV and decision maker in the same proceeding because it creates an unacceptable risk of bias. “Although procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process.” (CDLA II, 77 Cal.App.5th at 532.) Thus, in CDLA II, the Court of Appeal ordered that the DMV be “permanently enjoined and restrained from having its APS hearing officers function as advocates for the position of the DMV in addition to being finders of fact in the same adversarial proceeding.” (Id. at 538.)

Respondent maintains that the Hearing Officer may collect and develop evidence, as well as render a final decision. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 220 (Today’s Fresh Start) [“[A] legislature may adopt an administrative procedure in which the same individual or entity is charged both with developing the facts and rendering a final decision”]; Knudsen v. Department of Motor Vehicles (Cal. Ct. App., Apr. 4, 2024, No. F085992) 2024 WL 1453228, at *9 [“[A]s recognized by [CDLA II] itself, the same agency employee may collect and develop evidence and act as the adjudicator in a single case without offending due process”].) While this may be true, the Court of Appeal has determined that a DMV hearing officer must refrain from advocating on behalf of the DMV, including by presenting the DMV’s case. (CDLA II, 77 Cal.App.5th at 533, fn. 5.)

During the APS hearing, the Hearing Officer introduced exhibits, including the DS-367 Officer’s Statement, arrest report, and the body work video, “on behalf of the Department.” (AR 30:8-10.) Similarly, in CDLA II, the DMV conceded that, “as ‘trier of fact’ at the APS hearings, the hearing officer rules on the admissibility of the documentation he or she offers as evidence as ‘advocate for the [DMV]’ in support of the DMV's position at the APS hearing.” (CDLA II, 77 Cal.App.5th at 527, emphasis added.) By introducing the evidence in the case against petitioner on behalf of the DMV, the Hearing Officer acted not as the proponent of evidence but as advocate on behalf of the DMV.

Further, the Hearing Officer asked petitioner questions which exceeded the scope of questions asked of petitioner by his counsel. Counsel for petitioner asked petitioner what he learned from the officer having read the admonition about the necessity to take a chemical test. (AR 37:25-38:6.) Petitioner asserted that the officer said that he had to take the field sobriety test before taking a breath test. (AR 38:15-17, 39:12-14.) Counsel for petitioner also asked petitioner why he didn’t take the field sobriety test and why he didn’t want to do the blood test. (AR 38:18-39:6.)

After counsel finished his questioning of petitioner, the Hearing Officer asked questions that further developed the evidence at the hearing. In particular, the Hearing Officer asked petitioner whether the admonishment was confusing. (AR 45:7-9.) Petitioner responded: “They interpreted back the words and it was confusing to me.” (AR 45:10-11.) The Hearing Officer then asked petitioner if he asked for clarification. (AR 45:12-13, 45:16-18.) Petitioner responded: “I said I would take the breath test and that I didn’t have to take field sobriety.” (AR 45:19-20.) The Hearing Officer then asked: “What part did you find confusing?” (AR 45:22-23.) Petitioner responded: “That the officer kept telling me that I had to take a field sobriety test.” (AR 45:24-46:1.) The Hearing Officer then asked: “At any time that the admonition was read to you, did the—did the term have to take a field sobriety test appear in that admonition?” (AR 46:2-5.) Petitioner responded: “It appeared in their explanation when they were (inaudible) things to me, telling me things.” (AR 46:6-8.)

By asking petitioner whether he asked for clarification and whether the field sobriety test appeared in the admonition, the Hearing Officer developed the evidentiary record beyond what petitioner’s counsel had elicited with respect to petitioner’s understanding of what the officers told him. Instead, the Hearing Officer sought to elicit that petitioner was not confused with respect to his obligation to complete chemical testing. Given petitioner’s consistent position during the hearing that the officer conditioned a breath test on field sobriety tests, the Hearing Officer appears to have sought to undermine petitioner’s position through questioning. (Knudsen, 2024 WL 1453228, at *12 [“Given the clarity of Moore's testimony, the question does not appear to be legitimately developing Moore's testimony. Instead, by pointing out something that Moore did not do, it appears to be an attempt to undermine Moore and cast doubt on his opinion”].)

Because the Hearing Officer introduced evidence on behalf of the DMV and sought to elicit evidence that petitioner was properly admonished, the Hearing Officer acted as an advocate. The Hearing Officer therefore could not also act as adjudicator by ruling on the evidentiary objections and deciding to suspend petitioner’s driver license. (AR 36:8-37:8.)

Respondent argues that, even if the Hearing Officer’s dual role presented a possibility of bias, petitioner is required to show that actual bias existed. (See Southern Cal. Underground, 108 Cal.App.4th at 549 [“[B]ias in an administrative hearing context can never be implied, and the mere suggestion or appearance of bias is not sufficient”].) Respondent also argues that petitioner is required to show prejudice resulting from a procedural due process violation. “[P]rocedural due process violations, even if proved, are subject to a harmless error analysis,” i.e., a different outcome would have resulted in the absence of the violation. (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)

While it may be true that ordinarily a petitioner must demonstrate prejudice or harm to prevail on a due process claim, the Court of Appeal in CDLA II determined that tasking the hearing officer with advocacy and fact finding duties creates an unacceptable risk of bias and renders any presumption of impartiality irrelevant. (CDLA II, 77 Cal.App.5th at 532.) Simply put, the Hearing Officer’s dual role at the subject APS hearing “violate[d] the minimum constitutional standards of due process.” (Ibid.; see also Knudsen, 2024 WL 1453228, at *9 [“California and federal cases either expressly recognize or appear to assume that the violation of the due process right to an impartial adjudicator, be it through a showing of actual bias or through a showing that a constitutionally intolerable probability/risk of bias exists, is deemed a structural error that requires reversal without regard to the sufficiency of the evidence or the possibility of a harmless error analysis”].)

As of July 20, 2022 at the latest, when the California Supreme Court deemed CDLA II final, the DMV knew it would be permanently enjoined from having its hearing officers act as advocates and adjudicators. (CDLA II, 77 Cal.App.5th at 538.) Despite the injunction, the DMV still conducted the APS hearing in the instant matter with the Hearing Officer acting as advocate for the DMV and finder of fact in the hearing.

For the foregoing reasons, petitioner is entitled to a new hearing. (See Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 98.)

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

Petitioner requests attorney fees pursuant to Government Code § 800. 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. Petitioner may seek fees in a post-judgment motion.

[1] “Under the administrative per se law, the DMV must immediately suspend the driver's license of a person who is driving with .08 percent or more, by weight, of alcohol in his or her blood. [Citation.] The procedure is called ‘administrative per se’ because it does not impose criminal penalties, but simply suspends a person's driver's license as an administrative matter upon a showing the person was arrested for driving with a certain blood-alcohol concentration, without additional evidence of impairment.” (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155.)

[2] 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 and lawful arrest. (See AR 5; Veh. Code § 13353(d) [listing factors necessary to trigger penalty of suspension].)

[3] CDLA II follows the Court of Appeal’s prior appellate opinion in California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, 524.