Judge Curtis A. Kin, Case Number: 24STCP01062, Date: 2024-08-29 Tentative Ruling

Petitioner Sandra Carmela Schmid petitions for a writ of mandate directing respondent Steven Gorden, Director for the Department of Motor Vehicles for the State of California (“Department” or “DMV”) to set aside an order suspending petitioner’s driving privileges.

On July 26, 2023, Officer Pacheco was on patrol with her partner, Officer Caldera, when she received a call of a disabled vehicle on SR-14 (Antelope Valley Freeway) northbound, south of Newhall Avenue. (AR 19.) The officers arrived on scene at approximately 2:51 a.m. (AR 19.)

Upon arrival, Officer Pacheco saw a vehicle with two flat tires and damage to the front bumper facing southbound in the descending dirt embankment to the Newhall Avenue westbound off-ramp on the northbound SR-14. (AR 19.) Officer Pacheco contacted petitioner Sandra Carmela Schmid with respect to the traffic collision. (AR 19.) Upon contact, petitioner was standing near her vehicle before walking towards the patrol vehicle. (AR 19.) Petitioner said she was the driver and the owner of the vehicle. (AR 19.) Officer Pacheco asked how long after the collision she had been waiting in the embankment. Petitioner said “30-35 minutes.” (AR 19.)

Officer Pacheco noticed that petitioner’s eyes were pink and watery and that there was a strong odor of an alcoholic beverage emitting from her breath and person. (AR 19.) Officer Pacheco asked petitioner if she had consumed any alcohol during the day, prior to the collision; petitioner said she had not. (AR 19.) Officer Pacheco performed a cursory check of petitioner’s eyes and determined further investigation was necessary. (AR 19.) She told petitioner that they were going to transport her off the freeway to ask her some questions and run her through some tests. (AR 19.) Officer Pacheco performed a Preliminary Frisk on petitioner before placing her in the patrol vehicle and transporting her to Newhall Avenue, east of SR-14. (AR 19.) Officer Pacheco asked petitioner a series of pre-field sobriety test (FST) questions. (AR 17-19.) As they spoke, Officer Pacheco continued to smell the odor of an alcoholic beverage emitting from petitioner’s breath and person. (AR 19.) Officer Pacheco explained and demonstrated a series of FSTs. (AR 19.) Petitioner stated she understood the tests but was unable to perform them as explained and demonstrated. (AR 17-19.)

Based on her training and experience, Officer Pacheco formed the opinion that petitioner was driving while under the influence of an alcoholic beverage and arrested her for having violated Vehicle Code section 23152, subdivision (a). (AR 20.) Officer Pacheco told petitioner that she was required by state law to submit to a chemical test and could choose either a breath test or blood test. (AR 5, 10.) Petitioner chose a blood test. (AR 5, 20.) Petitioner was transported to Henry Mayo Medical Center for the blood test. (AR 20.)

Once at the hospital, petitioner said she had to use the bathroom and would like to take a “urine analysis” as her chemical test. (AR 20.) After reading the back of the DS-367 verbatim, Officer Pacheco told petitioner that a urine analysis was not an option because petitioner did not meet the medical criteria and a blood test was readily available. (AR 20.) Petitioner then said that she was not refusing a chemical test but that she knew her rights and wanted a urine analysis. (AR 20.) Officer Pacheco told petitioner that not wanting to do a blood or breath test is considered a refusal because a blood test is readily available. (AR 20.)

Officer Pacheco then obtained a warrant for petitioner’s blood. (AR 20.) At 5:27 a.m. on July 26, 2023, Officer Pacheco observed a nurse obtain a blood sample from petitioner. (AR 20.) Petitioner was then medically cleared and transported to the Santa Clarita Sheriff’s Office, where she was booked without further incident. (AR 20.)

The administrative hearing was held on February 22, 2024, after several continuances. (AR 39-68.) Hearing Officer Freeman introduced five exhibits into evidence: (1) Exhibit #1: Age 21 & Older Officer’s Statement (DS-367); (2) Exhibit #2: DUI arrest investigation report; (3) Exhibit #3: traffic crash report; (4) Exhibit #4: MVARs (dashboard camera video footage); and (5) Exhibit #5: petitioner’s driving record history printout. (AR 72-74.) Petitioner objected to all the exhibits; however, the Department’s exhibits were admitted into evidence over petitioner’s objection. (AR 74.)

At the administrative hearing, petitioner objected to the hearing itself, arguing that it was unconstitutional in violation of the due process clauses of the State and Federal Constitution, as stated in California DUI Lawyers Association v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (“CDLA II”).[2] (AR 70.) Petitioner argued that CDLA II held that one hearing officer acting in a dual capacity as a prosecutor and judicial role is a violation of due process. (AR 70.) Further, petitioner asserted that, after CDLA II’s ruling, DMV changed its procedure for hearings and had one hearing officer acting in the prosecutorial role as an advocate and another officer in a judicial role as a trier of fact. (AR 70.) Petitioner further asserted that DMV has since abandoned that procedure and has gone back to one hearing officer solely conducting the hearing and making a determinative ruling in the matter. (AR 70-71.)

With respect to the substantive issues, petitioner testified that she was never informed that she was under arrest for driving under the influence. (AR 77, 84.) Petitioner also testified that she never refused to take a chemical test. (AR 82.) She testified that Officer Pacheco told her that she had to complete a breath or blood test and she chose “blood.” (AR 77 [response to question from counsel], 87-88 [response to question from Hearing Officer].) The officer purportedly did not tell her that, if she failed to complete a breath or blood test, her driver’s license would be suspended for one year or revoked for two or three years. (AR 77.) Petitioner testified that she never informed the officer that she would no longer complete a blood test; however, she also told the officer that she wanted to complete a urine test while they were at the hospital. (AR 78.) The officer told petitioner that the urine test was not an option for her. (AR 79.) Petitioner testified that, after she requested the urine test, the officer read an admonishment to her and said that a urine test was an option. (AR 80.) After the admonishment was read, petitioner again told the officer that she wanted to do the urine test because the officer just said it was an option for her. (AR 80.) The officer’s response was that the facility they were at did not have the capability to do a urine test. (AR 80.) Petitioner asked the officer to take her to a facility where she could take a urine test but the officer refused to do so. (AR 81.)

In closing, petitioner argued that there was not a lawful arrest for DUI because petitioner was never informed that she was arrested for DUI; she was just “essentially” placed in handcuffs and taken to the hospital. (AR 90.) Petitioner also argued that there was officer-induced confusion about submitting to a chemical test because the admonishment allows drivers to submit to a urine test. (AR 93.)

A decision was issued by the Department on March 21, 2024. (AR 3-7.) Based on a preponderance of the evidence, the Department concluded: (1) that the peace officer had reasonable cause to believe that petitioner had been driving under the influence of alcohol; (2) that petitioner was lawfully arrested; (3) that petitioner was told that her driving privilege would be suspended or revoked if she refused to complete the required testing; and (4) that petitioner refused or failed to complete the chemical test or tests after being requested to do so by a peace officer. (AR 6.) The Department did not find officer-induced confusion because Officer Pacheco read the admonishment verbatim and explained that the urine test was not an option because petitioner did not meet the medical criteria and a blood test was readily available. (AR 5.) The Department imposed a two-year license suspension, effective March 20, 2024, through March 19, 2026. (AR 3.)

On April 4, 2024, petitioner filed a Petition for Review/Alternative Writ of Mandate. On June 26, 2024, respondent filed an Answer.

On May 3, 2024, the Court denied petitioner’s ex parte application to stay the suspension.

On June 24, 2024, petitioner filed an opening brief. On July 30, 2024, respondent filed an opposition. On August 12, 2024, petitioner filed a reply. The Court has received a hard and electronic copy of the administrative record.

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.)

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 on which Officer Pacheco checked the box for “0.08% or more BAC Chemical Test Results” instead of “Chemical Test Refusal.” (AR 9, 11, 13.) Petitioner also argues that, in an Investigation Interview report, the box next to “Refused Test(s)” was not checked and that the report states that petitioner provided a blood sample at 5:27 a.m. (AR 16.) The Narrative prepared by Officer Pacheco also indicated that petitioner elected to have a blood test and was transported to hospital, where the blood test was completed.

“An 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.) On December 4, 2023, the Hearing Officer informed petitioner, then representing herself, that the DMV received petitioner’s subpoena and that “[l]ooking at the documents here on your subpoena list, your case is a refusal action.” (AR 53 [HT 15:12-13].) After having been asked how California Highway Patrol manuals were relevant to her hearing, petitioner responded: “So, from what I’m being told is that it’s a collision and a refusal.” (AR 53 [HR 15:13-18].) The Hearing Officer then explained to petitioner the issues in a refusal, including whether “the driver refuse[d] to submit to or fail to complete a chemical test after being requested to do so by the peace officer.” (AR 54 [HT 16:5-20].) After petitioner related that she did not know what the results were for her chemical test, the Hearing Officer stated that the results were not relevant for a refusal hearing. (AR 60 [HT 22:10-25].) The Hearing Officer subsequently confirmed to petitioner that the hearing would take place on the next day. (AR 62 [HT 24:17-20], 64 [HT 26:1-2].)

On December 5, 2023, petitioner appeared at the hearing with counsel. (AR 65-67.) Because petitioner had just retained counsel, the Hearing Officer continued the hearing. (AR 66 [HT 28:3-10].) On February 22, 2024, prior to proceeding with the hearing, petitioner did not object based on improper notice. Petitioner only objected based on the Hearing Officer acting as advocate and adjudicator in violation of due process per CDLA II. (AR 70-71 [HT 32:9-33:3].) After the Hearing Officer overruled the objection, petitioner proceeded with the hearing. Petitioner’s counsel asked petitioner whether Officer Pacheco mentioned anything about refusing to complete a chemical test. (AR 82 [HT 44:8-10].) Petitioner responded that Officer Pacheco told someone on the phone that petitioner had refused, to which petitioner stated that she was not refusing to submit to a chemical test. (AR 82 [HT 44:8-14].) During closing, petitioner’s counsel argued that Officer Pacheco sought a warrant even though petitioner did not state that she was refusing a blood test. (AR 95 [HT 57:14-17].)

Based on petitioner’s failure to object to insufficient notice on December 5, 2023, and on February 22, 2024, as well as her argument during the hearing that she did not refuse to submit to a chemical test, petitioner had adequate notice that the focus of the hearing would be on whether she refused to submit to a chemical test. Accordingly, the Court finds that petitioner waived any objection based on improper notice of a refusal hearing.

Petitioner argues that the Hearing Officer improperly acted as both advocate and adjudicator in handling the case, in contravention of CDLA II. 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 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.)

Petitioner argues that the DMV acted as an advocate by subpoenaing the CHP for the dashboard camera videos from petitioner’s arrest. (AR 40 [HT 2:21-24].) However, 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 acted as advocate by changing the charge from exceeding 0.08% Blood Alcohol Concentration to a chemical test refusal. Petitioner cites no authority indicating that a Hearing Officer necessarily acts as advocate in changing the charge against a petitioner (Opening Br. at 17:6-11; Reply at 8:7-16), but it would appear to this Court that deciding on the charge and/or theory of liability falls within the role of the advocate. Indeed, in CDLA II, when discussing the problems of “overlapping functions of an administrative agency,” the Court noted how our Supreme Court has described the role of advocate as one who has “investigated and accused” in an agency prosecution. (CDLA II, 77 Cal.App.5th at 530, citing Today’s Fresh Start, 57 Cal.4th at 221.) Here, the Hearing Officer indicated that, after having read the documents subpoenaed by petitioner, the case was properly classified as a refusal case. (AR 53 [HT 15:12-13].) In so doing, the Hearing officer engaged in advocacy on behalf of the DMV by selecting the prosecutorial theory by which the DMV would seek to suspend petitioner’s license.

The Court further finds that the Hearing Officer impermissibly acted as an advocate by introducing evidence and ruling on its admissiblity. During the hearing, “on behalf of the Department” (AR 72 [HT 34:9-11), the Hearing Officer introduced exhibits, including the age 21 and older officer statement, the driving under the influence investigation report, the traffic crash report prepared by Officer Pacheco, the dashboard camera videos, and petitioner’s driving record (AR 72-74). Petitioner asserted hearsay objections to the exhibits, which the Hearing Officer overruled. (AR 74 [HT 36:5-10].) By introducing the evidence against petitioner on behalf of the Department and 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 when petitioner was told she had to do a breath or a blood test. Petitioner responded: “At the scene.” (AR 87 [HT 49:16-21].) The Hearing Officer then asked petitioner: “And did you communicate [to] the officers anything about whether you were willing to do a breath or a blood test at that point at the scene?” Petitioner responded, “At the scene, I had said blood.” (AR 87-88 [HT 49:22-50:2].) The Hearing Officer then asked, “So, what happened when you got to the hospital? Were you given the blood test?” Petitioner responded, “I completed a blood test after the officer had said that she got a warrant.” (AR 88 [HT 50:8-14].) After eliciting that answer, the Hearing Officer declared: “Okay. I don’t have any other questions.” (AR 88 [HT 50:16].)

Such questioning by the Hearing Officer was not merely clarifying; rather, the Hearing Officers’ questions amounted to advocacy to support the DMV’s view of what occurred. In the administrative decision, the Hearing Officer rejected petitioner’s contention that she was only admonished about the consequences of failing to complete a chemical test after being taken to the hospital. (AR 5.) In rejecting that contention, the Hearing Officer determined that petitioner was admonished at the scene and that petitioner “clearly told officers she was willing to [d]o a blood test at the scene.” (AR 5.) The above questions by the Hearing Officer elicited answers to support that determination. Likewise, the Hearing Officer rejected petitioner’s contentions that she did not refuse a chemical test, that she “just stated she wanted to do a urine test,” and that “[s]he subsequently completed a blood test.” (AR 6.) In so doing, the Hearing Officer determined petitioner’s consent to a chemical test was not clear and unambiguous (and thus “may be deemed a refusal”) because “[i]t is reasonable to infer the blood test was non-consensual if it was done only after officers obtained a warrant.” (AR 6.) The Hearing Officer elicited a response from petitioner to establish the blood test only occurred after the warrant was obtained and then ceased questioning immediately after having obtained an answer consistent with the view that the warrant (not petitioner’s consent) led to the completion of the blood test. Through such questioning, the Hearing Officer advanced the DMV’s case as to why petitioner’s driver license should be suspended.

For the foregoing reasons, by introducing evidence and eliciting testimony helpful to the DMV’s case, the Hearing Officer engaged in advocacy. The Hearing Officer therefore could not also act as adjudicator by ruling on the admissibility of evidence and ultimately deciding whether to suspend petitioner’s driver license. (AR 3-7; 74 [HT 36:5-11].) [HT 10:11-23].) The DMV has been 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 conducted petitioner’s hearing with the Hearing Officer acting as advocate for the DMV and ultimate finder of fact.

Accordingly, 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.

[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] 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.