Petitioner Wendy Melissa Guardado petitions for a writ of mandate directing respondent Department of Motor Vehicles, by and through its Director, Steve Gordon, to set aside an order suspending petitioner’s driving privileges.  

I. Factual Background 

On August 8, 2022, at approximately 11:56 p.m., Officer D. Alvarado was on patrol with Officer R. Cazares investigating a traffic collision on Interstate 10 westbound, east of Crenshaw Boulevard. (AR 2, 8, 12, 15.) Officer Cazares established a flare pattern at the Crenshaw Boulevard exit to prevent traffic from exiting because there was a disabled vehicle blocking the off-ramp. (AR 15.) While on scene, Officer Alvarado observed a gray Mazda SUV traveling westbound in the #5 lane cross over the gore point and flare pattern – violations of Vehicle Code Sections 21655 and 2818, respectively. (AR 15.) At the top of the Crenshaw Boulevard exit, Officers T. Kirby and T. Johnson stopped and informed Officers Alvarado and Cazares that they stopped the Mazda SUV for exiting the Crenshaw Boulevard off-ramp, when it was closed to through traffic. (AR 15.) Officer Kirby advised Officer Alvarado that he contacted the subject of the Mazda SUV (later identified as petitioner Wendy Melissa Guardado) and while speaking with her, he smelled the odor of an alcoholic beverage emitting from within the vehicle. (AR 15.) Officer Kirby related that when he asked petitioner how much alcohol she consumed prior to driving, petitioner stated she had two drinks. (AR 15.)  

Officer Alvarado approached petitioner, who was standing on the sidewalk near her vehicle. (AR 15.) A driver’s license check revealed she possessed a valid driver’s license. (AR 15.) Officer Alvarado advised petitioner of the reason for the stop and explained that he needed to speak with her about the alcohol she admitted to consuming prior to driving. Officer Alvarado noticed her eyes were watery and he could smell a strong odor of an alcoholic beverage emitting from her breath, prompting him to conduct a DUI investigation. (AR 15.) Officer Alvarado asked petitioner a series of pre-Field Sobriety Test questions and asked her to perform a series of Field Sobriety Tests (“FSTs”), which she did not perform as explained and demonstrated. (AR 15.) All FSTs were explained and demonstrated in English and petitioner acknowledged she understood all tests before she performed them. (AR 14.)  

Based on Officer Alvarado’s observations, training, and experience; petitioner’s objective signs and symptoms of alcohol intoxication; her admission to drinking an alcoholic beverage prior to driving; her poor performance on her FSTs; her driving violations; and her disregard for safety of emergency personnel aiding another motorist involved in a traffic collision, Officer Alvarado formed the opinion that petitioner was driving a motor vehicle under the influence of alcohol and was unable to safely operate a motor vehicle, a violation of Vehicle Code section 23152(a). (AR 15.) Accordingly, at 12:30 a.m., Officer Alvarado arrested petitioner. (AR 16.) Empty cans of the alcoholic beverage White Claw were located in petitioner’s right front floorboard. (AR 16.) 

At 12:53 a.m., petitioner was advised of Implied Consent per Vehicle Code section 23612, and she elected to submit to a chemical breath test. (AR 16.) Petitioner was placed in the front right seat of the patrol vehicle and transported to the California Highway Patrol (“CHP”) Central Los Angeles Area office. (AR 16.) Upon arrival, petitioner requested and with the assistance of Officer Marroquin, used the restroom. (AR 16.) 

After petitioner finished using the restroom, the process for her chemical test was explained to her. (AR 16.) Petitioner then requested water and conditioned her consent to perform her breath test upon receiving water. (AR 16.) Officer Alvarado explained to petitioner that she would be provided water after she completed the chemical breath test. (AR 16.) Petitioner “continued to negotiate her request for water in a pestering manner, which appeared purposeful to delay the process of providing two chemical breath samples.” (AR 16.) Petitioner then said she did not want to submit to a chemical breath test because she felt the machine would be inaccurate. (AR 16.) Instead, she agreed to a blood draw in lieu of the breath test. (AR 16.) Accordingly, petitioner was transported to the LAPD 77th Division Street Jail. (AR 16.)  

Upon arrival, petitioner again began to negotiate her consent to submit to a chemical test, “making requests for water and stipulations in a manner of, ‘I will do this, only if you do that.’” (AR 16, emphasis in original.) After several hours of having tried to reason with petitioner and help her understand what needed to be done, Officer Alvarado “determined [petitioner’s] behavior and obvious delay in providing any chemical tests” amounted to refusal. (AR 16.) Accordingly, at 3:26 a.m., Officer Alvarado read petitioner the back of the form DS-367 verbatim, advising her of the consequences of her refusal and that her refusal to submit would lead to a warrant for a blood draw. (AR 16.) In response, petitioner repeatedly stated, “I want water.” (AR 16.) Accordingly, while Officer Cazares was booking an arrestee, Officer Alvarado prepared an affidavit in support of a search warrant for a sample of petitioner’s blood. (AR 16.) When Officer Cazares returned, petitioner was transported the East Los Angeles Doctors Hospital for a blood draw. (AR 17.) 

Shortly thereafter, Sergeant S. Nielsen arrived at the hospital, introduced himself and advised petitioner of the reason for his presence. (AR 17.) At this time, petitioner again conditioned her consent to the blood draw in exchange for water and using the restroom. (AR 17.) Sergeant Nielsen explained to petitioner that she was under arrest and that she would not be able to have any water until she completed the required test. (AR 18.) In response, petitioner kept demanding water. (AR 18.) At 5:45 a.m., Los Angeles Superior Court Judge, Hon. J.D. Lord approved and signed the warrant for petitioner’s blood draw. (AR 18.) Sergeant Nielsen advised petitioner that they obtained a warrant for her blood draw, and it was not until this time, prior to being formally served the warrant by Officer Alvarado, that petitioner finally consented and allowed for her blood draw at 5:57 a.m. by certified Phlebotomist Lagonera. (AR 18.) Petitioner’s blood was booked at approximately 7:45 a.m., and petitioner was booked at approximately 9:40 a.m. (AR 18.) 

On approximately March 6, 2023, petitioner was mailed relevant discovery documents associated with her arrest to her address on Lotta Drive, which included a Notice of Hearing that detailed her hearing would be over the phone on March 28, 2023, at 11:15 a.m. (AR 75-76.) On March 8, 2023, the DMV subpoenaed the CHP for MVARS body worn video of petitioner’s DUI arrest. (AR 67-72.) On approximately March 21, 2023, petitioner was mailed and provided a copy of the MVARS body worn video to her address on Crenshaw Blvd. (AR 73-74.) On March 28, 2023, Hearing Officer (“HO”) Nelson called petitioner to begin her APS hearing. (AR 26.) 

At the start of her hearing, petitioner was unsure what hearing HO Nelson was calling about and was not aware that there was an appointment scheduled for that time. (AR 26-27.) After being advised that the phone call was for her hearing and that the conversation was being recorded, petitioner advised HO Nelson that the Lotta Dr.2 address was no longer her current address. (AR 27-28.) Petitioner asked if correspondence was being sent to her Lotta Dr. address. HO Nelson stated “[y]es, to the Lada Drive [address] because that’s the address that we have.” (AR 28.) In response, petitioner stated “I haven’t received anything.” (AR 28.) After further review, HO Nelson discovered that some documents were sent to the Lotta Dr. address and others to the Crenshaw Blvd. address. (AR 28.) Petitioner requested the documents be sent to her current address and HO Nelson offered to email them to her. (AR 28-29.) Petitioner agreed and provided her e-mail address. (AR 29.) HO Nelson then e-mailed all related hearing documents to petitioner and allowed her to review them before continuing with the hearing. (AR 30-31 [“Let me know once you’ve reviewed them, so we can continue”].) Petitioner responded, “I don’t think I understand very much, but we can continue.” (AR 31.) HO Nelson put petitioner under oath (AR 31-32.) HO Nelson then identified the four issues to be determined for the refusal hearing: 1) Did the officer have reasonable cause to believe that petitioner had been driving in violation of sections 23152 or 23153 of the Vehicle Code; 2) Was petitioner lawfully arrested; 3) Was petitioner told that her driving privilege would be suspended or revoked for one, two, or three years if she refused to submit to or failed to complete a chemical test, and 4) Did petitioner refuse to submit to or fail to complete a chemical test after having been requested to do so by a peace officer. (AR 33.) 

After identifying the issues, HO Nelson marked and introduced five exhibits: (1) Exhibit 1—the age 21 and older officer statement; (2) Exhibit 2—the driving under the influence investigation report; (3) Exhibit 3—the affidavit in support of search warrant; (4) Exhibit 4a and 4b—disc #1 and #2 of the audio video record; and (5) Exhibit 5—petitioner’s driving record. (AR 34.) HO Nelson asked petitioner if she had any objections to any of the Exhibits and Petitioner stated: “What do you mean by objections?” (AR 35.) HO Nelson explained: “If the information is untrue or illegal, or not what you recall, you might tend to object.… If the information appears to be true and correct based on what you recall, then you may tend not to object.” (AR 35.) Petitioner responded that what she is reading is not what she recalls and that she did not refuse a sobriety test. (AR 35.) HO Nelson took her comment as an objection and overruled the objection, moving Exhibits 1 through 5 into evidence. (AR 35.) HO Nelson asked petitioner if she had any evidence to present. Petitioner explained that she had pictures of bruises on her body. (AR 36-37.) HO Nelson explained the pictures of bruises on her body are not relevant to the issues outlined. Petitioner stated that she understood. (AR 37.) 

HO Nelson asked petitioner if she had any testimony she wished to provide. Petitioner provided a lengthy narrative, detailing that, after she exited the freeway on Crenshaw Boulevard, an officer approached and asked her what she had been doing and whether she would take a sobriety test. (AR 37-39.) Petitioner described the performance of her FSTs and subsequent arrest. (AR 38-39.) HO Nelson then asked follow up, clarifying questions. (AR 39-40.) In response to HO Nelson’s questions, petitioner explained that there was a flare pattern but not all of the flares were on and that “they were at the top of the…exit where [she] couldn’t see them.” (AR 39-40.) Petitioner stated that she did not cross the gore point but that she may have crossed the flare pattern. (AR 43-44.) Petitioner confirmed that she admitted to the officer that approached her that she had two drinks prior to driving. (AR 44.) Petitioner confirmed that she performed physical tests but denied that she refused to blow into a device at the scene because she does not recall being asked to do so. (AR 45-46.) Petitioner confirmed that she was placed under arrest at the scene for driving under the influence and then informed about taking a breath or blood test. (AR 47.) Petitioner stated that she chose the blood test at the station. (AR 48.) Petitioner disputed the officer’s account that she conditioned her blood draw on receiving water. (AR 51.) Petitioner explained that she asked for water at the station, but the officers explained that if she drank water, it could interfere with her chemical test. (AR 51-52.) Petitioner then confirmed that she was read a form that informed her that she needed to take a breath or blood test and that, if she does not, her license would be suspended or revoked. (AR 53.) When questioned about having refused to get out of the car, petitioner indicated that she had a panic attack. (AR 58.) HO Nelson answered petitioner’s questions and advised that the matter would be taken under consideration and that she would provide her decision in the mail. (AR 59-64.) 

On March 30, 2023, HO Nelson served the Administrative Per Se Notification of Findings and Decision, upholding and re-imposing Petitioner’s license suspension. (AR 2-5.) HO Nelson determined that Officer Alvarado had reasonable cause to believe petitioner was driving under the influence of alcohol, that petitioner was lawfully arrested, that petitioner was admonished that her driving privilege would be suspended or revoked if she refused or failed to complete a required chemical test, and that petitioner refused to take or complete a chemical test or tests after being requested to do so by a peace officer. (AR 2-3.) HO Nelson also determined that petitioner’s testimony was not credible. (AR 3.) HO Nelson found that the documentary evidence completed at or near the time of the events was more reliable and trustworthy than petitioner’s testimony at the hearing. (AR 3.) Based thereon, HO Nelson found that the preponderance of the evidence did not favor petitioner. (AR 3.) 

II. Procedural History 

On May 3, 2023, petitioner filed a Verified Petition for Review/Administrative Writ of Mandate. On February 16, 2023, respondent filed an Answer. On June 28, 2024, petitioner filed an opening brief. On July 26, 2024, respondent filed an opposition. On August 12, 2024, petitioner filed a reply.  

III. Standard of Review 

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.) 

IV. Analysis 

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 she did not have notice that the administrative hearing would focus on her alleged refusal to submit to a chemical test, as opposed to the noticed “.08% or higher BAC” hearing. Petitioner references the DS 367 form, where Officer Alvarado checked the box for “0.08% or more BAC Chemical Test Results” instead of “Chemical Test Refusal.” (AR 6.) Petitioner also notes that the “Chemical Test Admonition” portion of the DS 367 form was not completed. (AR 7.) 

However, petitioner waived any objections based on notice by electing to proceed with the hearing after she was emailed discovery in this matter, including the DS 367 form and the Notice of Hearing. (AR 75.) The Hearing Officer told petitioner, “Let me know once you’ve reviewed them [the documents], so we can continue.” Petitioner responded, “I don’t think I understand very much, but we can continue.” (AR 30-31 [HT 5:19-6:5].) Petitioner did not object based on lack of notice, nor did petitioner request a continuance. “Any defect in the procedural form was waived by the consent that the court proceed based upon the papers and notices there present.” (Baske v. Burke (1981) 125 Cal.App.3d 38, 46.)  

Petitioner also argues that the finding that she refused to submit to a chemical test is not supported by the evidence.3  However, the Narrative prepared by Officer Alvarado explained that, although petitioner initially agreed to a breath test, she later conditioned her taking any chemical test on her receiving water beforehand over the course of several hours. (AR 16.) “Consent which is not clear and unambiguous may be deemed a refusal.” (See Carrey, 183 Cal.App.3d at 1271.) 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.) Accordingly, the Court presumes that Officer Alvarado’s statements concerning petitioner’s conduct after her arrest were accurate, unless the record demonstrates othewise.  

Even though petitioner denied having refused a chemical test and having conditioned the chemical test on her receiving water and stated that she was having a panic attack (AR 36, 47, 51, 52, 54), the Court agrees with the Hearing Officer that such statements are self-serving and not credible as compared to the detailed, contemporaneous narrative provided by a peace officer. There is no reason offered by plaintiff as to why Officer Alvarado would state that petitioner repeatedly conditioned her submission to a chemical test on being given water if the statements were not true. The weight of the evidence supports the finding that petitioner refused a chemical test. 

Petitioner argues that the Hearing Officer improperly acted as both advocate and adjudicator in handling the case, 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).4 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 from having its hearing officers function as advocates and 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 (2024) 101 Cal.App.5th at 207 [“[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 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.) 

Petitioner argues that the DMV acted as an advocate by subpoenaing the CHP for the dashboard camera videos from petitioner’s arrest. (Reply at 7:22-8:8.) However, as stated above, mere collection of evidence does not necessarily constitute the sort of advocacy that cannot be combined with adjudication. (Knudsen, 101 Cal.App.5th at 207.)  

Petitioner also argues that the Hearing Officer never emailed the videos to her, thereby acting as advocate by having selected the evidence that would be sent to petitioner. (Reply at 6:28-7:7; AR 30 [HT 5:22-24], 62 [HT 38:21-24].)  This contention is unpersuasive. The videos were mailed to petitioner’s Crenshaw Blvd. address. (AR 73-74.) During the APS hearing, petitioner stated that she currently resided at the Crenshaw Boulevard address. (AR 27-28 [HT 2:16-19, 3:2-5].) 

Nevertheless, the Court finds that the Hearing Officer impermissibly acted as an advocate. During the hearing, the Hearing Officer introduced exhibits, including the age 21 and older officer statement, the driving under the influence investigation report, the affidavit in support of the search warrant, the dashboard camera videos, and petitioner’s driving record. (AR 34.) When petitioner contended the exhibits were “not what I recalled” and “definitely not true” because she “definitely did not refuse to [sic] a sobriety test,” the Hearing Officer deemed such comments as an objection and admitted the evidence over such objection.  (AR 35.) By introducing the evidence against petitioner on behalf of the DMV and additionally ruling on petitioner’s objection thereto, the Hearing Officer impermissibly acted as both advocate for the DMV and adjudicator as to what evidence may properly be considered.  In CDLA II, the Court of Appeal found an “irreconcilable conflict between advocating for the agency on the one hand, and being an impartial decision maker on the other” where the DMV had conceded its policy and practice 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, 532 emphasis added.)  

In addition, the Hearing Officer acted as an advocate in her questioning of petitioner. The Hearing Officer asked petitioner whether, after having performed the FSTs, the officer asked petitioner to blow into a device, to which petitioner responded, “That’s not correct.” (AR 45 [HT 20:14-25.) The Hearing Officer then said, “Now, I did look at the video” and that she “can hear him asking [petitioner] to blow into the device at the scene. And you declined that one.” (AR 46 [HT 21:1-6].) By confronting petitioner with questions about video evidence that purportedly refuted petitioner’s testimony, the Hearing Officer engaged in cross-examination of petitioner and acted as an advocate for respondent.