Judge: David A. Hoffer, Case: Hernandez VS Director of the DMV, Date: 2022-09-12 Tentative Ruling
Petitioner Jesus Hernandez petitions this court for an administrative writ of mandamus to restore his driver’s license after it was suspended by the California Department of Motor Vehicles (DMV). The petition is DENIED.
In the petition, petitioner makes two arguments: (1) that the evidence at the administrative hearing did not prove that petitioner, who concededly was arrested for driving under the influence and refused a chemical test of his blood, actually drove the vehicle at issue, and (2) that the procedure utilized by the DMV violated petitioner’s Due Process rights in that the same DMV employee acted as both an advocate and an adjudicator. (California DUI Lawyers v. California Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (“CDLA II”). Neither argument has merit.
1. The Evidence Was Sufficient to Support the DMV Ruling
With regard to the first argument, utilizing the independent judgment review standard of CCP section 1094.5, the evidence in the administrative record was sufficient to prove that petitioner drove the vehicle. The evidence showed that, when the officer reached the scene, defendant was out of the vehicle and Raymond Leon was asleep in the passenger seat. Importantly, petitioner initially admitted driving the vehicle (an action even an intoxicated person would easily recall) before later denying it. Furthermore, when the officer inspected the seat position of the vehicle, the driver’s seat was positioned for a person of small stature (such as petitioner who is 5 feet, 5 inches tall) and could not fit a person of large statute (such as Leon who is 6 feet tall).
At the hearing, both petitioner and Leon testified that Leon was driving the car. For several reasons, the hearing officer was correct in discounting this testimony. First of all, petitioner initially admitted driving. There is no reason to make this admission (which comported with the circumstances of Leon asleep in the passenger seat, the petitioner outside of the car and the driver’s seat empty) unless it was true. Moreover, this admission is especially likely to be correct because it occurred at a time when petitioner may well have believed the police were only present to check on his welfare. Second, as mentioned above, the driver’s seat was set for petitioner, not Leon. It is not likely that petitioner, who was outside the car when the police arrived, would have bothered to reset the seat for his driving while stuck on the freeway and awaiting roadside assistance. Finally, at the hearing, both petitioner and Leon failed to recall a number of things they could have been expected to remember when they testified. Most notably, Leon, who denied drinking that night, changed his story on the route he had taken between downtown Los Angeles and the scene of the arrest (on the side of the 5 freeway) and then cited two freeways that do not go through downtown Los Angeles. Such lack of recollection seems far more likely for a passenger (especially a sleeping one) than a driver.
Finally, petitioner’s argument -- that the hearing officer is somehow estopped from utilizing the petitioner and Leon’s repeated failures to recall against petitioner because the officer had cautioned the witnessed to admit that they did not recall when, in fact, they did not recall – is unavailing. The hearing officer’s caution is completely consistent with the law as a witness must testify truthfully, including to a failure of recollection, and it is important that witnesses not guess or insert testimony they think would be likely or helpful in place of actual recollection. Therefore, the hearing officer did not err in considering the failure of recollection and using it as a factor in discounting petitioner and Leon’s testimony.
On the merits of the arrest, the court, performing an independent review, concurs with the hearing officer’s ruling.
2. Petitioner Waived the Due Process Argument by Not Asserting It at the Administrative Hearing
Petitioner’s main argument is that the court must reverse the DMV’s ruling because, under CDLA II, the DMV’s hearing violated petitioner’s constitutional right to due process in that the same DMV employee acted as both the advocate for the DMV’s position and the ultimate adjudicator of that petition. The court rejects this argument because petitioner waived the CDLA II claim by failing to raise it at the administrative hearing.
The law is clear that “[a]n issue not raised at an administrative hearing, including a claim of bias, 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 [claim that plaintiff did not receive fair hearing because city was both prosecutor and adjudicator was waived when not raised at administrative hearing].) Here, petitioner concedes that the due process claim was not raised at the administrative hearing (where the claim could have resulted in a change to the administrative hearing rules). Thus, the claim is waived and cannot be raised to challenge the DMV’s action in this case.
Furthermore, the fact that CDLA II was not decided until after the administrative hearing does not relieve petitioner from the obligation to raise the claim underlying CDLA II at the hearing. In a situation such as this one, the standard is whether the law “changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.” (People v. Jones (2019) 36 Cal.App.5th 1028, 1031). Here, it was reasonable to expect counsel to anticipate the change because, at the time of the hearing, the arguments underlying CDLA II had been extant in the courts for years. (See California DUI Lawyers Association v. California Department of Motor Vehicles (2018) 20 Cal.App.5th 1247 (“CDLA I”) [summarizing in detail the CDLA’s due process challenge to the DMV’s administrative hearing process in determining whether plaintiffs had taxpayer standing to bring their claims]. This argument was especially well known in the community of lawyers who appear before the DMV. Thus, the waiver is not excused by the timing of the CDLA II ruling, and the DMV’s ruling in this case stands.
The DMV is ordered to give notice of this ruling.