Judge Curtis A. Kin, Case Number: 24STCP03118, Date: 2025-05-08 Tentative Ruling

24STCP02299 Luchia Tsegaberhan
The Petition will be granted. A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Petitioner Amy Matelski petitions for a writ of mandate directing respondent Steve Gordon, Director of the California Department of Motor Vehicles, to set aside an order suspending petitioner’s driving privilege. For the reasons that follow, the petition is DENIED.

On November 6, 2023, at around 11:20 p.m., California Highway Patrol Officer Kim responded to a multi-vehicle traffic collision that had occurred on the southbound I-405. (AR 10, 22.) Upon his arrival, Officer Kim observed petitioner lying on the ground, breathing but unresponsive; witnesses had observed an unidentified man pull petitioner out of her burning vehicle. (AR 23, 25.) Because petitioner was unresponsive at the scene, she was transported to Long Beach Memorial Hospital. (AR 23, 25, 27.)

At the hospital, Officer Kim spoke with petitioner in the trauma room around 1:00 a.m., after she had received a CT scan. (AR 7, 27.) After the Officer introduced himself, petitioner replied: “What did I do now.” (AR 27.) During this encounter, Officer Kim detected a strong odor of alcohol emanating from petitioner. (AR 27.) Petitioner explained that she could not recall anything from the crash but admitted to having a “one or two cocktails.” (AR 27.) When asked where she was coming from and where she was going, petitioner gave the same answer: home. (AR 27.)

Officer Kim then conducted a Driving Under the Influence (DUI) Investigation by asking a series of Pre-Field Sobriety Test Questions and administering a Field Sobriety Test (FST) and Preliminary Alcohol Screening (PAS) Test. (AR 27.) According to the PAS tests, petitioner’s blood alcohol concentration (BAC) was 0.210% and 0.200%. (AR 16.) Given the FST and PAS test results, as well as petitioner’s admission of drinking, witness statements, and other objective observations, Officer Kim determined that petitioner had violated California Vehicle Code § 23152(a) (Misdemeanor Driving Under the Influence) and placed her under arrest at 1:06 a.m. (AR 27-28.)

Following petitioner’s arrest, Officer Kim read the Chemical Test Admonition to petitioner at 1:13 a.m. (AR 9.) Due to her injuries, petitioner was limited to taking a blood test to satisfy the requirement of a chemical test. (AR 28.) Petitioner was admonished of this limitation on the available tests and was informed that she was not entitled to consult with an attorney before deciding whether to consent. (AR 9.) When asked if she would complete the blood test, petitioner stated: “I want to talk to my attorney.” (AR 9, 28.) Officer Kim understood this statement to be a refusal and sought a McNeely warrant to administer the blood test.[1] (AR 28.) While obtaining a McNeely warrant was in process, petitioner changed her mind and agreed to a blood test, which occurred around 1:40 a.m. (AR 15, 28.)

The administrative hearing took place on May 21, 2024, before the Department of Motor Vehicles (“Department” or “DMV”). (AR 87-88, 44-61.) Petitioner was represented by counsel at this hearing. (AR 49.) Hearing Officer Ramin Rafailzadeh introduced four exhibits into evidence: Exhibit #1: Age 21 & Older Officer’s Statement (DS-367); Exhibit #2: arrest report; Exhibit #3: Traffic Collision Report; and Exhibit #4: petitioner’s driving record. (AR 51-52.) Petitioner’s counsel has no objection to the admission of these exhibits. (AR 53.) Additionally, petitioner’s counsel introduced into evidence a single-page of petitioner’s hospital report, indicating that petitioner had suffered fractures, loss of consciousness, and other injuries. (AR 42, 58-59.)

On Exhibit 1, the DS-367 form, Officer Kim did not check the boxes to indicate that petitioner refused to submit to a chemical test. (AR 8, 10, 12.) Notwithstanding this omission, on the reverse side of page 1, in the section entitled “DRIVER RESPONSE: Include statements or actions by the driver that indicate a refusal or failure of each test,” Officer Kim indicated petitioner’s failure to consent by checking the box for “Will you take a Blood Test?” and wrote next to it: “I want to talk to my attorney.” (AR 9.)

During the hearing, petitioner testified that she lacked any memory of speaking with Officer Kim, including having her blood drawn, and that her request to speak with an attorney was not a refusal because it was actually a request to speak to a family friend who was an attorney. (AR 54-58.) The hearing officer asked clarifying questions regarding petitioner’s recollection of events,[2] and petitioner maintained that she lacked memory of the events following the incident. (AR 57-58.)

On behalf the Department, the hearing officer rendered a decision on May 28, 2024. (AR 3-7.) Based on a preponderance of the evidence, the hearing officer concluded that (1) the peace officer had reasonable cause to believe that petitioner had been driving under the influence of alcohol; (2) petitioner was lawfully arrested; (3) petitioner was told that her driving privilege would be suspended or revoked if she refused to complete the required testing; and (4) petitioner refused or failed to complete the chemical test or tests after being requested to do so by a peace officer. (AR 5.) The hearing officer found that “[petitioner’s] medical condition and emotional state does not excuse her from taking the chemical test at [the] Officer’s request.” (AR 4.) He further found that petitioner engaged in conversation with Officer Kim and that there was no display of “any confusion, disorientation, or incapacity to understand [the] officer’s questions or instructions.” (AR 4.) The hearing officer thus concluded petitioner “clearly refused to submit to a chemical test once she was asked by the officer and requested to talk to her attorney,” noting “[t]here was no evidence to suggest her medical condition or injuries contributed to Petitioner’s action and behavior at the time.” (AR 4.)

The Department imposed a two-year license suspension, effective April 5, 2024, through April 4, 2026. (AR 3.) Petitioner requested a departmental review, which upheld the suspension on June 24, 2024. (Pet. Br. at 6 & Ex. A.)

On September 30, 2024, petitioner filed a Verified Petition for Peremptory Writ of Mandate. On October 14, 2024, petitioner filed a Verified First Amended Petition for Preemptory Writ of Mandate. On January 13, 2025, respondent filed an Answer.

On March 7, 2025, petitioner filed an opening brief. On April 7, 2025, respondent filed an oversized opposition without leave of court. Petitioner did not file a reply. The Court has received the physical and digital copy of the administrative record lodged by petitioner.

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.)

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

As a preliminary matter, the Court notes that respondent’s opposition brief exceeds the maximum 15-page limit by six pages. (Rule of Court 3.1113(d); Local Rule 3.231(i).) Respondent did not obtain an order for an oversized brief prior to filing its opposition brief. Respondent was required to seek such permission at least 24 hours before the brief was due. (Rule of Court 3.1113(e).) It is difficult to excuse exceeding the allowable page limit by approximately 40% and hard to see under the circumstances that so doing was anything but willful or inexcusably negligent.

“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Rule of Court 3.1113(g).) Because the opposition brief exceeds 15 pages, the Court considers the filing in the same manner as a late-filed paper. The Court would be well within its rights to disregard or strike the opposition brief. Nevertheless, the Court exercises its discretion and considers the opposition brief. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)

Because no reply has been filed, there has been no objection to the length of the opposition brief and no evidence that petitioner has been prejudiced by respondent’s gross failure to comply with Rules of Court, rule 3.1113(d) and Local Rule 3.231(i). Furthermore, a large portion of respondent’s brief on the section concerning due process is superfluous because, as discussed further below, petitioner has forfeited those arguments.

Accordingly, the Court shall address the merits of petitioner’s arguments with consideration of respondent’s opposition. Respondent’s counsel is admonished to comply with the rules and requirements for briefing before this Court.

Petitioner seeks to set aside the administrative decision of the DMV to suspend her driving privilege. Petitioner first argues that her due process rights were violated during the hearing because the hearing officer purportedly acted as an advocate for the DMV as well as the trier of fact. (Pet. Br. at 6-8.) Additionally, petitioner contends that she never refused to have her blood drawn for a chemical test because she was incapacitated for purposes of Vehicle Code § 23612(a)(5). (Pet. Br. at 9.)

Petitioner argues that her due process rights were violated due to the hearing officer’s advocacy for the DMV: (1) by deciding to pursue the matter as a refusal to submit to a chemical test, even though the DS-367 reflected that the matter concerned only a BAC violation; and (2) by asking petitioner questions that “were inconsistent with developing testimony” and by strategically deciding what evidence to admit. (Pet. Br. at 7-8.) These due process violations are not properly before this Court for review because petitioner failed to raise any such objections to the proceedings during the DMV hearing, despite being represented by counsel.

Accordingly, by failing to object to the nature and manner of the hearing, as well as the conduct and purported advocacy of the hearing officer at the time of the administrative hearing, petitioner has forfeited any argument that her due process rights were violated. (Kazelka v. California Dept. of Motor Vehicles (Mar. 27, 2025) 2025 WL 923651 at **8; Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549 [“An issue not raised at an administrative hearing, including a claim of bias, may not be raised in later judicial proceedings”]); see also Hand v. Board of Examiners (1977) 66 Cal.App.3d 605, 613.)

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 affect its purpose, which is to swiftly and accurately identify drunk drivers. (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270.) “Consent which is not clear and unambiguous may be deemed a refusal. The determinative factor as to whether there is a refusal is not the arrestee's subjective state of mind, but rather the objective, fair meaning to be distilled from his words and conduct.” (Ibid.)

“A person 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.)

In the arrest report, Officer Kim indicated that petitioner refused to give a blood sample. (AR 9, 28.) Under Evidence Code § 664, “[i]t is presumed that official duty has been regularly performed.” (Evid. Code § 664.) A police officer has an official duty to make accurate statements. (Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 79.) Even though the arrest report is unsworn, it was admissible during the administrative hearing as the sort of evidence typically relied upon. (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-59 [“[S]o long as a sworn report is filed, it is consistent with the relaxed evidentiary standards of an administrative per se hearing that technical omissions of proof can be corrected by an unsworn report filed by the arresting officer”]; AR 14-19 [DS-367 Officer’s Statement is sworn].)

Petitioner contends that she never refused to have her blood drawn for a chemical test. Petitioner instead asserts that she merely requested to speak with her attorney and eventually agreed to submit to a blood test. She additionally asserts that she had been incapacitated at the time Officer Kim made the request because she had suffered a traumatic head injury and, as a result, lacked capacity to revoke her implied consent. (Pet. Br. at 9-10, relying on Hughey, 235 Cal.App.3d at 755-756, 767.)

While petitioner attempts to liken her situation to that of the petitioner in Hughey, the Court is unpersuaded because the factual circumstances are quite different. In Hughey, the motorist was described as “both ‘in and out,’ meaning he went from responsive to the irrational, and ‘up and down,’ meaning he would go from the calm to the belligerent.” (Hughey, 235 Cal.App.3d at 755.) Here, by contrast, there is no evidence that petitioner exhibited an impaired and irrational mental state. Also, the motorist in Hughey provided nonsensical and irrational statements, such as “I’m not taking any test — just let me go, I’ll show you something too cool man.” (Id. at 756.) Here, by contrast, petitioner unequivocally stated that she wanted to speak with her attorney in direct response to the question “Will you take a Blood Test?” (AR 9, 28.)[3] Petitioner’s response evidenced her understanding of what was asked of her and her decision not to comply.

Lastly, while petitioner was found unconscious at the scene and she presented a hospital record indicating she had a concussion and fractures (AR 23, 42), there was no evidence adduced that would lead to the conclusion that her physical condition rendered her incapable of understanding the admonition delivered by Officer Kim or appreciating the significance of her refusal to submit to a blood test. (Hughey, 235 Cal.App.3d at 756.) Other than testifying that she could not recall her interactions with Officer Kim and producing a single-page hospital record, petitioner presented no evidence that she was incapacitated at the time of the incident.

Based on the lack of meaningful evidence supporting petitioner’s assertion that she was incapable of refusal, the weight of the evidence supports the finding that petitioner refused to give a blood sample, as indicated by Officer Kim in the arrest form. Accordingly, under Vehicle Code § 13353(a)(1), the suspension of petitioner’s driving privileges for two-years was justified.

The petition for writ of mandate is DENIED.[4] Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.

[1] A McNeely warrant is a search warrant permitting a blood draw, named for the case Missouri v. McNeely (2013) 569 U.S. 141, in which the U.S. Supreme Court held that a warrantless blood sample taken from a drunk driver violated the driver’s Fourth Amendment right against unreasonable search and seizure.

[2] The hearing officer asked the following four questions of petitioner: (1) “Do you remember what time you came to in the hospital?”; (2) “Do you remember anybody taking blood from you?”; (3) “Do you remember talking to any police officer at all?”; and (4) “So you say you don’t remember talking to officer telling him that maybe you had a cocktail, one or two cocktail? Do you remember any of these?” (AR 14-15.)

[3] The Court acknowledges petitioner gave to Officer Kim the confused response that she was going both to and from home at the time of the accident. (AR 27.) But, such statements evidence intoxication, not a lack of capacity to revoke consent. If the Court were to equate the ordinary confusion attendant to intoxication as a lack of capacity, then consent or refusal to take a chemical could never be obtained when there is probable cause to believe a driver is under the influence.

[4] In the opening brief, 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. For the reasons stated above, the administrative findings were not arbitrary or capricious; rather, they were, in the Court’s independent judgment, supported by the evidence and correct. Accordingly, petitioner is not entitled to attorney’s fees.