Judge: Curtis A. Kin, Case: 23STCP01671, Date: 2024-02-29 Tentative Ruling

Case Number: 23STCP01671    Hearing Date: April 2, 2024    Dept: 82

Petitioner Luther Hung-Ming Yang 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.

I.       Factual Background

            On June 9, 2022 at 4:40 p.m., petitioner Luther Hung-Ming Yang was involved in a collision at or near Loyola and La Tijera Boulevards in Los Angeles while driving a motor vehicle. (AR 8, 10.) Officers Lozano and Nagata arrived at the scene of the collision. (AR 8-11.) Officer Lozano prepared a sworn statement on a form DS-367 concerning the collision. (AR 8-11.)

            Officer Nagata asked petitioner if he was hurt. (AR 10.) Petitioner responded no. (AR 10.) Officer Nagata then asked petitioner if he was currently taking any medications or drugs. (AR 10.) Petitioner responded that he had a few drinks before the accident. (AR 10; see also AR 8 [“I had 3 drinks”].) Petitioner then sat on the passenger side of his vehicle, pulled down his pants, and urinated in his vehicle. (AR 10.) Due to petitioner’s unsteady gait and blank stare on his face, Officer Nagata determined petitioner to have been under the influence of alcohol or narcotics. (AR 10.)

At or near 5:45 p.m., Officer Lozano admonished petitioner that, if he refused to submit or failed to complete a chemical test to determine the alcohol content in his blood, the Department of Motor Vehicles (“DMV”) would suspend his driving privilege for one year. (AR 9.) Officer Lozano asked petitioner if he would take a breath or blood test. (AR 9.) As recorded in Officer Lozano’s DS-367 statement, petitioner “refused to answer” with respect to both tests. (AR 9.) Because neither Officer Lozano nor Officer Nagata were certified to use the preliminary alcohol screening device, no test to determine petitioner’s blood alcohol content was taken. (AR 9.)

            Because petitioner was determined to have refused to submit to a chemical test, petitioner was served with an order of suspension of his driver license with the option to request a hearing to demonstrate that hearing was not justified. (AR 12.) Petitioner requested such a hearing. (AR 35.)

The administrative per se (“APS”) hearing[1] took place on March 29, 2023 before Hearing Officer Craig (“Hearing Officer”). (AR 17, 32.) Petitioner was represented during the hearing, but he did not appear himself. (AR 17-18.) The Hearing Officer introduced “on behalf of the Los Angeles Airport Police” Officer Lozano’s sworn DS-367 statement and a printout of petitioner’s driving record. (AR 19-21.) The Hearing Officer also stated: “The Department does propose to receive the documents into evidence.” (AR 19.) Through counsel, petitioner objected to both exhibits as having contained hearsay and double hearsay, having lacked foundation, and having constituted a legal conclusion. (AR 20.) The Hearing Officer overruled the objections and moved both exhibits into evidence. (AR 20-21.)

Petitioner did not present any documentary evidence or witnesses at the hearing. (AR 17-22.) All petitioner’s counsel did was move to set aside the suspension, having asserted that Officer Lozano’s statement reflected that petitioner underwent a blood test at 7:45 p.m. on June 9, 2022. (AR 21.) The Hearing Officer indicated that she would consider the argument and concluded the hearing. (AR 21-22.)

            On April 11, 2023, the Hearing Officer found: (1) that Officer Lozano had reasonable cause to believe that petitioner was driving a motor vehicle under the influence of alcohol; (2) that petitioner was lawfully arrested; (3) that petitioner was told that his driving privilege would be suspended or revoked if he refused to complete a required chemical test to determine the alcohol content of his blood; and (4) that petitioner refused or failed to complete the chemical test after having been requested to do so by Officer Lozano. (AR 5.) The Hearing Officer gave little weight to petitioner’s arguments because petitioner presented no affirmative evidence or testimony to support them. (AR 5.)  Having previously been stayed pending the hearing, the suspension was re-imposed effective April 20, 2023 for one year. (AR 4-5.)

On April 26, 2023, petitioner requested a departmental review of the suspension of his driver license. (AR 24.) On May 11, 2023, the DMV determined that “the suspension or revocation is proper and required.” (AR 2-3.)

            On July 20, 2023, petitioner, through different counsel, filed a request to reopen the refusal hearing. (AR 36-37.) Petitioner presented the declarations of Lawrence Braslow, Jr., MD, petitioner’s treating psychiatrist, and Paul F. Dorin, Ph.D., petitioner’s treating marriage and family therapist. In a declaration executed on May 12, 2023, Dr. Braslow averred that he had been treating petitioner since October 21, 2022. (AR 38.) Dr. Braslow averred that petitioner was recently diagnosed with Bipolar I Disorder, characterized by manic episodes. (AR 38.) According to Dr. Braslow, a patient in a manic state can present as highly agitated and delusional, out of touch with reality, and unable to navigate social situations. (AR 38.)

On June 8, 2022 – the day before the subject arrest – petitioner went to the emergency room for treatment for what he thought was a panic attack. (AR 39.) Petitioner was diagnosed with an altered mental state and panic attack. (AR 39.)

Based on petitioner’s diagnosis of bipolar disorder, Dr. Braslow averred “within a reasonable degree of medical certainty” that petitioner was suffering from an acute bipolar episode during the emergency room visit on June 8, 2022, which “likely” continued during his arrest on June 9, 2022. (AR 39.) Dr. Braslow averred that, at the time the officers demanded a chemical test, petitioner: “would have been unable to understand what they were saying about either his implied consent obligations under the Vehicle Code or the consequences of failing to complete that test. Thus, he was medically unable to refuse the chemical test.” (AR 39.)

Dr. Dorin’s declaration executed on May 11, 2023 is largely consistent with Dr. Braslow’s declaration. (AR 40.)

            The administrative record does not reflect any response to the request to reopen or the hearing having been reopened.  

II.      Procedural History

            On May 15, 2023, petitioner Luther Hung-Ming Yang filed a Verified Petition for Writ of Mandate. On March 8, 2024, respondent Steve Gordon, Director of the Department of Motor Vehicles of the State of California filed an Answer.

            On July 24, 2023, the Court (Hon. Mitchell L. Beckloff) 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 26, 2024, petitioner filed an opening brief. On March 8, 2024, respondent filed an opposition. On March 19, 2024, petitioner filed a reply.  

On February 29, 2024, the Court granted petitioner’s motion to augment record. The Court admitted for the purposes of adjudicating the instant writ petition counsel for petitioner’s request to reopen the administrative hearing and the supporting evidence attached thereto.

            The Court has received the administrative record lodged by petitioner, including the augmented request to reopen and supporting evidence.

III.     Standard of Review

Petitioner seeks writ relief under both CCP § 1085 and 1094.5.

A.           CCP § 1085

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.)        

B.           CCP § 1094.5

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.)

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].)

IV.     Analysis

            Petitioner seeks to set aside the administrative decision of the DMV to suspend his driving privileges. Petitioner asserts two arguments: (1) the Hearing Officer improperly acted as both advocate and adjudicator in handling the case (Pet. ¶¶ 14-16); and (2) petitioner was experiencing a bipolar episode and therefore was incapable of refusing to consent to a chemical test.[2] (Pet. ¶¶ 4, 8, 9).

A.           Hearing Officer’s Role During Administrative Per Se Hearing

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.)

1.    Waiver

            Citing Ramirez v. Superior Court (2023) 88 Cal.App.5th 1313, respondent contends that petitioner has waived his CDLA II due process argument by not raising it during the administrative per se hearing. In Ramirez, the petitioner asserted that the APS hearing was unconstitutional based on the holding in CDLA II. (Ramirez, 88 Cal.App.5th at 1335.) The Court of Appeal declined to exercise its authority to consider such argument on the following grounds: (1) having noted that the petitioner’s counsel had other administrative hearings before the DMV, the Court of Appeal found that petitioner’s counsel knew of the Hearing Officer’s dual role as advocate and adjudicator before or at the time of the hearing; (2) the combined role of advocate and adjudicator had been the subject of prior case law; (3) the petitioner failed to raise the issue at the administrative and trial court level; and (4) the petitioner first raised the issue in response to the DMV’s appeal and did not file any cross-appeal affirmatively raising the issue. (Id. at 1335-36.)

            Here, weighing in favor of a finding of waiver, the CDLA II opinion was published on April 15, 2022. Thereafter, on July 20, 2022, the California Supreme Court declined to review the matter on its own motion and denied a request to depublish the CDLA II opinion.[4]  The high court deemed the matter final. The APS hearing in the instant matter took place on March 29, 2023, approximately eight months after CDLA II was deemed final. (AR 17, 32.) Petitioner’s former counsel could have cited CDLA II during the hearing.  In general, “[a]n issue not raised at an administrative hearing…may not be raised in later judicial proceedings.” (Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549 (Southern Cal. Underground).)

            However, unlike in Ramirez, petitioner raises the issue concerning the Hearing Officer’s purported role as both advocate and adjudicator at the trial court level. Petitioner did not wait until the appeal to belatedly assert the Hearing Officer’s alleged dual role. The record also contains no indication concerning whether petitioner’s former counsel who represented him during the APS hearing knew about the Hearing Officer’s dual role or whether former counsel had other hearings before the DMV.

As recognized by the Ramirez court, even on appeal, “‘[A] new theory raising a pure question of law on undisputed facts can be raised for the first time . . . .’ [Citation.]” (Ramirez, 88 Cal.App.5th at 1335, quoting Fort Bragg Unified School Dist. v. Colonial American Casualty & Surety Co. (2011) 194 Cal.App.4th 891, 907; see also Fox v. State Personnel Bd. (1996) 49 Cal.App.4th 1034, 1039 [“[T]he doctrine of waiver does not apply if the issue…is one of public interest or the due administration of justice, and involves a pure question of law on undisputed facts”].) The Ramirez court phrased the issue of whether to consider a potentially forfeited argument concerning a pure question of law as a matter of discretion. (Ramirez, 88 Cal.App.5th at 1335.)

            Under the circumstances, this Court does not find that petitioner has waived his “dual role” argument by not raising it during the APS hearing. It is undisputed that a single Hearing Officer introduced exhibits, ruled on petitioner’s objections, and issued a ruling. Whether the Hearing Officer served as advocate for the DMV in addition to adjudicator is a pure question of law that the Court elects to address. (AR 4-6, 17-22.) There being no indication in the record that petitioner’s former counsel knew about the Hearing Officer’s dual role or had other hearings before the DMV, petitioner appears to have raised the argument at the earliest practicable opportunity – the instant writ petition. While petitioner’s former counsel could have cited CDLA II during the hearing, this argument also raises the question why the DMV, assuming petitioner is correct, did not conduct petitioner’s hearing in compliance with CDLA II, which had been the law for approximately eight months prior to petitioner’s APS hearing. Application of binding precedent concerns the due administration of justice.

For the foregoing reasons, the Court will reach petitioner’s “dual role” argument on the merits.

2.    Whether Hearing Officer Acted as Advocate

            As stated above, 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 CFLA 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”].) 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 the DS-367 Officer’s Statement and petitioner’s driver record, stating the “Department does propose to receive the documents into evidence.” (AR 19-20.) 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 proposed by the DMV in the case against petitioner, the Hearing Officer acted not as the proponent of evidence but as advocate on behalf of the DMV. 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 4-6, 17-22.)

            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.) 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. (Id. 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.)

B.           Ability of Petitioner to Refuse Chemical Test

            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.)

            Respondent contends that petitioner refused to submit to a chemical test by remaining silent when Officer Lozano asked him whether he would take a breath or blood test. (AR 9; see Lampman v. Department of Motor Vehicles (1972) 28 Cal.App.3d 922, 926 [remaining silent after being repeatedly requested to submit to and choose a chemical test constituted a failure to submit to test under Vehicle Code § 13353]; Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299 [same]; Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 83 [same].)

            However, as reflected in the augmented administrative record, according to treating psychiatrist Lawrence Braslow, Jr., petitioner was diagnosed with Bipolar I Disorder after the APS hearing. (AR 38 ¶ 3.) Dr. Braslow recounts that on June 8, 2022 – the night before the arrest – petitioner visited the emergency department for a panic attack and was diagnosed with an altered mental state and panic attack. (AR 39 ¶¶ 4, 7.) Based on petitioner’s Bipolar I Disorder diagnosis, Dr. Braslow opines within a reasonable degree of medical certainty that petitioner was suffering from an acute bipolar episode during the emergency department visit. (AR 39 ¶ 4.)

            Dr. Braslow also opines that, within a reasonable degree of medical certainty, petitioner’s acute bipolar episode continued during his arrest the next day on June 9, 2022. (AR 39 ¶ 7.) Petitioner purportedly was unable to understand the officers’ demand for a chemical test and admonishment concerning his implied consent obligations. (AR 39 ¶¶ 5, 8.) As a result, petitioner purportedly was medically unable to refuse the chemical test. (AR 39 ¶ 8.)

The augmented administrative record also contains the declaration of Dr. Paul F. Dorin, petitioner’s treating Marriage and Family Therapist. (AR 40.) The declaration of Dr. Dorin contains averments similar to those presented in Dr. Braslow’s declaration. (See, e.g., AR 40 [averring that petitioner’s mania at time of arrest “rendered him unable to cognitively process and understand the legal consequences of not submitting to a chemical test, let alone the instructions for the procedure”].)

             “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).) “[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…. If the driver presents expert testimony of his incapability to refuse a test which convinces the trier of fact, this is permitted under section [23612], subdivision (a)(5).” (Id. at 762.)

            Pursuant to CCP § 1094.5(e), the Court finds that the declarations of Dr. Braslow and Dr. Dorin are relevant evidence that, in the exercise of reasonable diligence, could not have been produced during the APS hearing. Petitioner was not notified of the basis for a defense based on incapacity to refuse until he was diagnosed with Bipolar I Disorder after the hearing. Pursuant to CCP § 1094.5(e) and (f), the Court elects to enter judgment directing respondent to set aside the decision to suspend his driver license and to conduct a new hearing to reconsider the case based on the declarations of Dr. Braslow and Dr. Dorin and such other evidence as may be relevant to assess petitioner’s capacity to refuse consent based on his medical condition.

            Respondent argues that petitioner waived the issue of lack of capacity to refuse a chemical test by not raising the issue during the APS hearing. However, according to Dr. Braslow, petitioner had not yet been diagnosed with Bipolar I Disorder at the time of the arrest. (AR 38 ¶ 3.) Respondent argues that, because petitioner was diagnosed with an altered mental state and a panic attack the night before the arrest, petitioner could have presented evidence from his hospital visit during the APS hearing. A diagnosis of panic attack or altered mental state is not necessarily probative of capacity to refuse, and not all issues pertaining to mental health necessarily pertain to the capacity to refuse. Consequently, petitioner’s hospital visit did not necessarily put him on notice prior to the APS hearing that he may have been incapable of understanding his obligation to submit to a chemical test and refusing to submit thereto.

            Respondent also contends that the declarations of Drs. Braslow and Dorin should be given little weight because they do not have firsthand knowledge of petitioner’s behavior and mental state during his hospital visit and arrest. Respondent emphasizes that Dr. Braslow did not start treating petitioner until October 21, 2022, four months after petitioner was arrested. (AR 38 ¶ 2.) Because petitioner told the officers that he was not hurt in response to their question, petitioner purportedly could understand the officers and respond to their questions. (AR 10.)

            No firsthand knowledge is required for expert testimony. Experts can testify not only based on personal knowledge but also on matters made known to them. (Evid. Code § 801(b).) In any rehearing, the hearing officer can decide what weight to give to the declarations of Dr. Braslow and Dr. Dorin. With respect to respondent’s assertion that petitioner’s response to questions during the arrest indicated an ability to understand the chemical test admonition and to refuse to submit to a chemical test, the hearing officer may weigh all the available evidence on remand to determine petitioner’s capacity to refuse a chemical test during his arrest. 

            In the petition, 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.

V.      Conclusion

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.