Ted R. Lowe v. Department of Motor Vehicles, 21STCP03748

Tentative decision on (1) Lowe’s petition for writ of mandate: denied; (2) DMV’s cross-petition for writ of mandate: granted

 

           

 

Petitioner Ted R. Lowe (“Lowe”) seeks a writ of mandate to set aside the decision of Respondent Department of Motor Vehicles (“DMV”), to suspend his Class C license.

            The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

 

            A. Statement of the Case

            1. Petition

            Petitioner Lowe commenced this proceeding against Respondent DMV on November 15, 2021.  His handwritten Petition does not identify a cause of action.  The Petition alleges in pertinent part as follows.

            The DMV technician who administered Lowe’s first driver’s license test falsified the results to fail Lowe due to his disability.  The DMV technician who administered his second test also made false statements.  The technician alleged that Lowe changed lanes, failed to check blind spots when backing, and jerked the car.  Lowe has footage of him driving that shows that he does not do this.

            When Lowe gave the DMV some medical papers, it kept those papers.  The DMV did not tell him that he needed to give the papers to the Driver Safety Branch until after it suspended his license.  The DMV has also lost the paper with the results for Lowe’s eye exam.  The DMV also stated that Lowe has chronic lower back pain, and he does not.

            Lowe seeks an order compelling the DMV to issue him another permit to drive and administer another driving test in Culver City.  He also seeks an investigation into the acts of discrimination alleged.

 

            2. Cross-Petition

            Cross-Petitioner DMV filed the Cross-Petition on January 6, 2023.  The operative pleading is the First Amended Cross-Petition (“FACP”) filed on January 13, 2023.  The FACP alleges in pertinent part as follows.

            Lowe’s Petition is based on the DMV’s September 13, 2021 decision that, despite enough time to practice and prepare, he failed to demonstrate an ability to drive safely.  As a result, the DMV decided to sustain the suspension of Lowe’s license in the interest of public safety because he could cause a traffic collision that results in serious bodily injury or fatality.

            On March 16, 2022, Lowe filed a separate complaint based on the same events as the Petition, alleging discrimination and $60,000,000 in damages.

            Before a trial setting conference scheduled for July 12, 2022, the DMV was ordered via interlocutory remand to conduct a further DMV hearing, prepare a transcript, and incorporate it into the administrative record.

            The DMV held the required hearing on September 28, 2022, and Lowe appeared.  At the hearing, the DMV presented seven exhibits as evidence of previous events.  The hearing officer told Lowe that he needed to take another driving test as part of the new hearing.  The hearing officer first scheduled the driving test for October 5, 2022, but asked Lowe if he needed time to practice driving.  Upon his request for time to practice, the hearing officer continued the hearing to October 19 and then October 26, 2022. 

            On September 29, 2022, DMV representative Anna Garcia (“Garcia”) sent Lowe a special instruction permit valid through October 27, 2022.  Garcia also sent Lowe notice of his driving test appointment for October 26, 2022 at 2:00 p.m.  Lowe also was mailed booklets titled “Driving Test Criteria,” “Senior Guide for Safe Driving,” and “Preparing for Supplemental Driving Test.”

            Lowe did not appear for his October 26 driving test.  On November 14, 2022, Garcia generated a Lack of Skill Hearing Report based on prior events and Lowe’s driver’s license suspension was sustained.

            DMV requests dismissal of the Petition, a finding that the suspension of Lowe’s license was proper both in 2021 and 2022, and injunctive relief directing Lowe to not pursue reinstatement or issuance of a driver’s license until he takes a driver’s test and complies with any other DMV requirement.  DMV also seeks attorney’s fees and costs under Government Code section 6103.5. 

 

            3. Course of Proceedings

            On January 31, 2022, the DMV filed an Answer to the Petition.

            On April 29, 2022, the court rejected a letter that Lowe attempted to file for failure to comply with CRC 2.100.

            On January 6, 2023, the DMV filed its Cross-Petition and served Lowe by first-class mail, overnight mail, and e-mail.

            On January 13, 2023, DMV filed its FACP and served Lowe by first-class mail, overnight mail, and e-mail.

            On January 10, 2023, the court informed the parties that there would be only one administrative record.  It also ordered that the DMV’s opposition to the Petition would serve as its opening brief for the FACP.

 

            B. Standard of Review

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies.  Topanga Ass’n for a Scenic Community v. County of Los Angeles, (1974) 11 Cal.3d 506, 514-15. 

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts.  Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811.  In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143.  See CCP §1094.5(c).  Revocation or suspension of a license warrants application of the independent judgment test.  See Berlinghieri v. Department of Motor Vehicles, (1983) 33 Cal.3d 392, 396.

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.”  Id. 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.  In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses.  Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In 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, supra, 20 Cal.4th at 817.  Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency.  Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing.  Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862.  The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15.  Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.  Id. at 115.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof.  Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137.  “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.  Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691. 

 

            C. Governing Law

            The DMV shall prescribe and provide suitable forms of applications, certificates of ownership, registration cards, drivers’ licenses, and all other forms requisite or deemed necessary for the purposes of the Vehicle Code.^[1] §1652(a). 

            The DMV may, through studies, develop and identify examinations and tests to more accurately identify persons who, due to physical or mental factors, or both, are not competent or qualified to safely operate a motor vehicle.  §12804.8(a).  Any such examination for the issuance or renewal of a driver’s license shall include (A) a test of the applicant’s knowledge and understanding of the provisions of this code governing the operation of vehicles upon the highways; (B) a test of the applicant’s ability to read and understand simple English used in highway traffic and directional signs; (C) a test of the applicant’s understanding of traffic signs and signals, including the bikeway signs, markers, and traffic control devices established by the Department of Transportation; (D) an actual demonstration of the applicant’s ability to exercise ordinary and reasonable control in operating a motor vehicle by driving it under the supervision of an examining officer; and (E) a test of the hearing and eyesight of the applicant, and of other matters that may be necessary to determine the mental and physical fitness of the applicant to operate a motor vehicle.  §12804.9(a).

            The DMV shall not issue a driver’s license to, or renew a driver’s license of, any person whose best corrected visual acuity is 20/200 or worse in that person’s better eye, as verified by an optometrist or ophthalmologist.  §12805(a)(2).  A person shall not use a bioptic telescopic or similar lens to meet the 20/200 visual acuity standards.  §12805(a)(2).  The DMV also shall not issue a driver’s license when it determines, by examination or other evidence, that the person is unable to safely operate a motor vehicle upon a highway.  §12805(a)(4). 

            The DMV may conduct an investigation to determine whether the privilege of any person to operate a motor vehicle should be suspended or revoked or whether terms or conditions of probation should be imposed upon receiving information or upon a showing by its records of any grounds for which a license might be refused.  §13800(f). 

In addition to an investigation, the DMV may require the re-examination of the licensee, and shall give ten days’ written notice of the time and place thereof.  §13801.  If the licensee refuses or fails to submit to the re-examination, the DMV may peremptorily suspend the driving privilege of the person until such time as the licensee shall have submitted to re-examination.  §13801.  The suspension is effective upon notice.  §13801.

Whenever the DMV determines upon investigation or re-examination that any ground for re-examination is true, or that the safety of the driver or other persons on the highways requires it, the DMV may suspend or revoke the person’s driver’s license or impose terms of probation on the driving privilege, after giving notice and an opportunity to be heard.  §§13950-52.

            In the alternative, the DMV shall suspend or revoke a driver’s license without hearing if it determines upon investigation or reexamination that the safety of the person subject to investigation or reexamination or other persons upon the highways requires such action.  §13953.^[2]  No order of suspension or revocation or the imposition of terms or conditions of probation shall become effective until 30 days after the giving of written notice thereof to the person affected, unless the DMV determines that because of the mental or physical condition of the person such immediate action is required for the safety of the driver or other persons upon the highways.  §13953.

When the DMV has given notice or has taken or proposes to take action for revocation or suspension of a license under, inter alia, sections 13950-52 or 13953, the person receiving the notice or subject to the action may, within ten days, demand a hearing which shall be granted.  §14100(a).  Any notice of the proposed action must include prominent notice of this right.  §14100(c).  An application for a hearing does not stay the action by the DMV for which the notice is given.  §14100(b).  A person is not entitled to such hearing if (a) the DMV action is mandatory under the Vehicle Code or (b) the person previously had an opportunity with appropriate notice for a hearing and failed to request a hearing within the time specified by law.  §14101.

           

            D. Statement of Facts

            1. Initial Reexamination

            On September 10, 2020, the DMV issued Lowe a Notice of Reexamination informing him that it had decided to review his driving qualifications to protect the safety of the motoring public.  AR 109.  The DMV required Lowe to have a doctor familiar with his medical history fill out attached medical forms for submission by October 4, 2020 to the Driver Safety Office located at 390 N. Pacific Coast Hwy, Ste 2075, El Segundo, CA 90245-4470.  AR 109.  Lowe was informed that he may then have to complete a written, vision, or driving test or make an in-person or telephonic appearance.  AR 109.  If the doctor’s answers on the medical forms indicated an immediate risk to public safety, or the DMV did not receive those answers on time, it would suspend Lowe’s driving privilege.  AR 109. 

            The DMV set a telephonic hearing for November 18, 2020, but Lowe did not attend.  AR 26.  The DMV continued the telephonic hearing to December 1, 2020 and Lowe did not attend again.  AR 26-27.  The hearing officer left a message that Lowe had 24 hours to reply and his failure to attend would mean that the suspension of his license would remain in place.  AR 27.

            Lowe appeared for a telephonic hearing on December 2, 2020.  AR 28.  The hearing officer informed Lowe that the purpose of the hearing was to determine if he could safely operate a motor vehicle in light of his physical condition.  AR 31.  The hearing officer marked an exhibit showing a Driver Safety Referral on September 8, 2020 due to neuropathy in his leg and refusal to give additional information.  AR 31, Ex. 1.  The hearing officer also marked a five-page exhibit filled out by Lowe and Dr. Sharon Hautmans dated November 3, 2020 and Lowe’s driving record. AR 31-32, Exs. 2-3. Lowe explained that he went to the DMV on a scooter because his leg hurt but they only asked him to go to the doctor for his eyes.  AR 33-34.  When he got back to the DMV with eye doctor test results, they had him go back to the doctor for his leg for no reason.   AR 35.  He can move his feet to the gas and brake pedal and his hands and eyes are good.  AR 36.  Why take his license because he is handicapped?  AR 36. 

            The hearing officer explained that the issue was driver safety, not discrimination.  AR 37.  He inquired whether Lowe had any other conditions and Lowe acknowledged that he has diabetes, he is working on his legs every day.  AR 38.  He does not need assistance because he can ride his scooter when he has to walk a long way.  AR 39.  He admitted that he takes a pain medication, Norco, when his leg hurts.  AR 41.

            Lowe explained that he came to the DMV to renew his license.  AR 47.  The hearing officer noted that the doctor said Lowe was ok and his condition is stable.  AR 52. Therefore, he did not see why he would not get his license back.  AR 52.  The hearing officer subsequently stated that, because of his neuropathy, Lowe would have to take a driving test.  AR 54.  His diabetes could affect his ability to grip or feel his feet while driving and a driving test will be required.  AR 55.  The hearing officer and Lowe arranged a December 15 ,2020 date for the driving test.  AR 57-59.

 

            2. First Driving Test

            Lowe took a driving test on July 28, 2021.  AR 15.  The Driver Safety/Field Referral form asserted that Lowe was referred for testing due to peripheral neuropathy related to diabetes and back surgery, which may affect driving.  AR 15.  His uncorrected vision is 20/0 in the right eye, and therefore he only has vision in the left eye.  AR 15.  The form also requested that the examiner pay specific attention to speed and vehicle control during the road test.  AR 15.

            Examiner Adrian Ledesma (“Ledesma”) determined that Lowe did not demonstrate the ability to drive safely and securely.  AR 16.  Lowe made a critical driving error by driving on the left side of the double yellow line when turning left, turning into oncoming traffic in the process.  AR 16-17.  He also abruptly stopped in the middle of traffic, which forced everyone behind him to brake harshly to avoid collision.  AR 16-17.  Lowe’s performance was unsatisfactory due to uncorrectable errors, and Ledesma recommended another driving test with supervised practice or professional instruction.  AR 16.

 

            3. Second Driving Test

            Lowe took a second driving test on September 8, 2021 at Culver City.  AR 21.  The referral form instructed the examiner to focus written comments on Lowe’s backing, speed, vehicle control, turns, lane changes, and visual searches.  AR 21.

            The examiner, Mariela Ortega (“Ortega”) wrote that Lowe made critical driving errors.  He disobeyed a traffic sign or signal, made a right turn on a red light when not allowed, and pumped the gas to create jerking movements.  AR 22.  He did not check blindspots when backing and making lane changes.  AR 22, 24.  When Ortega told Lowe about the mistakes he made, Lowe accused her and the DMV of discriminating against him for his disability.  AR 22.  Ortega replied that he needed to follow road signs.  AR 22.  Lowe’s performance was unsatisfactory due to uncorrectable errors, and Ortega recommended another driving test with supervised practice or professional instruction.  AR 22.

 

            4. The 2021 Decision

            The DMV held a hearing on August 27, 2021^[3] to determine if Lowe’s physical condition affected his ability to safely operate a motor vehicle.  AR 2.  On September 13, 2021, the DMV issued a decision sustaining the suspension of Lowe’s license.  AR 2-3. 

            The decision explained that the DL11D field office referred Lowe for reevaluation based on his loss of vision in right eye and peripheral neuropathy that affected mobility and causes chronic pain and lower back pain.  AR 2.  Lowe uses a scooter for mobility and has had diabetes for 10 years.  AR 2. 

            The DMV first suspended his license on October 5, 2020 for non-compliance under section 13801.  AR 2.  Then later an immediate suspension was imposed on August 14, 2021 under section 13953 due to the results of the July 2021 driving test.  AR 2.  This was one of five driving test appointments that Lowe scheduled.  AR 2. 

            During the driving test, the examiner said he failed to prove he could drive safely because he turned right into oncoming traffic, drove on the left side of the double yellow lines, and stopped so abruptly that the traffic behind him had to brake harshly to avoid collision.  AR 2.  Lowe denied the examiner’s observations.  AR 2.  He said that he only lightly tapped on the brake because he did not know that road, and that he did not turn into the opposing lane of traffic when he turned left.  AR 2.  He denied that he had any of the medical conditions that the DMV alleged affected his driving ability.  AR 2-3.

            During his driving test on September 8, 2021, Lowe again failed to demonstrate that he could drive safely.  AR 3.  The examiner observed him make a right turn on a red light when road signs said he could not.  AR 3.  He also created jerking movements when he pumped the gas, and he failed to check blink spots when backing and making lane changes.  AR 3.  Lowe accused the examiners of discrimination against him due to disability.  AR 3.

            Lowe had sufficient time to practice and prepare for the driving test and twice failed to demonstrate that he could drive safely.  AR 3.  The suspension of his license remains in the interest of public safety based on the critical driving errors he made.  AR 3.  Lowe could otherwise cause or contribute to a traffic collision that would result in serious bodily injury or fatality.  AR 3.

 

            5. The New Hearing

            After Lowe filed the Petition, the court ordered the DMV to hold an administrative hearing on the suspension because the transcript of the August 27, 2021 hearing had been lost.  On September 8, 2022, the DMV gave Lowe notice that it would hold the new hearing on September 28, 2022, at 10:15 a.m.  AR 148.

            At the hearing, the hearing officer explained that its purpose was to determine if the driving examinations or other evidence demonstrated a lack of skill that impacted Lowe’s ability to safely operate a car.  AR 149, 152.  The hearing officer marked as an exhibit was the original referral after Lowe applied on August 31, 2020 for a license renewal.  AR 153.  Lowe argued that he had not broken any laws when he walked into the office.  AR 154.  He read the chart in the DVM office perfectly.  AR 154.  The DMV then said he needed to have the doctor perform an eye exam, which Lowe passed.  AR 154.  Lowe brought the eye doctor’s form to the DMV, which told him to go home and wait for his license.  AR 154-55.  Then all this drama about a suspension started.  AR 155.  Lowe asked whether it was against the law for him to have a driver’s license because he has only one eye?  AR 155. 

            The hearing officer explained that Lowe went to a DMV field office to renew his license.  AR 155.  If the field office has a concern, it is required to refer reports of neuropathy, including Lowe’s, to the Driver’s Safety Office.  AR 156.  This in turn led to the notice of reexamination by the El Segundo office, which included a request for a medical report.  AR 156-57.  Lowe was told that he had to send the medical report by October 4, 2020 or his license would be suspended.  AR 157. 

Lowe asserted that the DMV withheld this paperwork from him, but the hearing officer noted that the notice was never returned as unclaimed.  AR 157.  Nonetheless, when Lowe failed to provide the medical forms on time, the DMV suspended his driving privilege under section 13801, which only means that the investigation was incomplete.  AR 157-58.  The suspension stopped Lowe from driving until the investigation was completed.  AR 158.

After the DMV received Lowe’s forms, the driving examinations followed.  AR 158.  Lowe asked why that was necessary when his doctor cleared him.  AR 158-59.  The hearing officer explained that the DMV issues driver’s licenses, not his doctor.  AR 159.  Lowe needed to comply with DMV requirements.  AR 159.  Lowe called this discrimination based on his condition, but the hearing officer said this was necessary for everyone who suffers from certain conditions.  AR 159-60.

            Lowe then asserted that he had proof that the examiners lied and did not administer accurate tests.  AR 160.  He alleged that Ledesma is gay and failed Lowe in retaliation for the fact that Lowe told him: “I don’t like gay people.”  AR 164.  The hearing officer described the results of the second driving test with Ortega on September 8, 2021.  AR 165-66. Lowe attempted to explain why Ortega lied about his failure.  AR 166-68.  In response to the hearing officer’s assertion, Lowe claimed he was not being treated like everyone else.  AR 170-71. 

The hearing officer asked Lowe to stop his tirades of accusations of racism and discrimination and discuss the details of his case.  AR 174.  He explained that Lowe needed to pass the driving test for his license to be reinstated.  AR 174, 183.  Lowe requested that he take it in Culver City, so the hearing officer scheduled it for October 5, 2022 at that DMV office.  AR 185.  Lowe requested a permit until then, and the hearing officer explained that he could only issue a special instruction permit that would allow Lowe to drive when with a licensed driver who was at least 25 years old.  AR 187.  Lowe also requested extra time to practice.  AR 188.  The hearing officer rescheduled the test for October 19, 2022 and then October 26 at 2:00 p.m.  AR 188-89.

 

            6. The Renewed Suspension

            On September 29, 2022, the DMV send a Notice of Appointment to Lowe for the driving test at the Culver City office on October 26, 2022 at 2:00 p.m.  AR 117.  The DMV also issued a Special Instruction Permit allowing Lowe to drive when accompanied by a licensed driver who was at least 25 years old until October 27, 2022.  AR 119.  Lowe did not appear for his October 26, 2022 driving test.  AR 115. 

On November 14, 2022, Garcia generated a report sustaining the suspension of Lowe’s license.  AR 112.  After summarizing the facts from the 2021 decision, Garcia’s report noted that Lowe was verbally aggressive and uncooperative during the September 29, 2022 hearing.  AR 113.  He alleged that examiners discriminated against him because he was African American, denied that he committed any critical driving errors during the tests, and did not answer questions posed during the hearing.  AR 113. 

            At the September 29 hearing, Lowe agreed to a driving test on October 26, 2022.  AR 113.  The DVM sent booklets on “Driving Test Criteria,” “Senior Guide for Safe Driving,” and “Preparing for Supplemental Driving Test” to help him prepare.  AR 113.  The Special Instruction Permit also gave Lowe a chance to practice and improve.  AR 113.  Lowe did not appear for the scheduled test.  AR 113.

            The preponderance of evidence showed that, despite his years of experience driving in California, Lowe cannot safely operate a motor vehicle.  AR 113.  He failed two driving tests after a year of supervised practice, received an opportunity to prove himself at a third driving test and failed to appear.  AR 113.  Lowe did not call and provide a reason why he did not appear.  AR 113.  His conduct during the hearing shows that he either cannot or will not improve his driving skill so he can drive without posing a risk to the motoring public.  AR 113.  The likelihood that his driving would cause or contribute to a serious injury or even fatal collision was unreasonably high.  AR 113.  Garcia sustained the suspension of Lowe’s license.  AR 113. 

The DMV sent Lowe notice of this decision the same day. AR 116.

 

            E. Analysis

            Petitioner Lowe seeks to set aside the DMV’s decision upholding his driver’s license suspension.  In the FACP, the DMV seeks a finding that the suspension of Lowe’s license was proper both in 2021 and 2022 and injunctive relief directing Lowe to not pursue reinstatement or issuance of a driver’s license until he takes a driver’s test and complies with any other DMV requirement. 

 

1. Procedural Error

            A petitioner has the burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision.  State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749.  Moreover, a memorandum of points and authorities is required for a noticed mandamus motion.  See CCP §1094; CRC 3.1113(a).  The absence of a memorandum is an admission that the motion is not meritorious and may be denied.  CRC 3.1113(a).

            “An appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority.”  Bullock v. Philip Morris USA, Inc., (2008) 159 Cal.App.4th 655, 685.  A court is not required to search the record to ascertain whether it supports an appellant’s contentions, nor make the parties’ arguments for them.  Inyo Citizens for Better Planning v. Inyo County Board of Supervisors, (2009) 180 Cal.App.4th 1, 14.  When a party asserts a point, but fails to support it with reasoned argument and citation to authority, the point may be treated as waived.  Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784, 85; Solomont v. Polk Development Co., (1966) 245 Cal.App.2d 488 (point made which lacks supporting authority or argument may be deemed to be without foundation and rejected). 

            Lowe’s one-page opening brief merely lists a few citations to pages of the administrative record and statutory authority without any discussion of the facts and application of law.  This procedural error means that Lowe has not met his burden of proof to show that the DMV’s decision was in error.  This alone is sufficient reason to deny the Petition.

 

            2. Merits

            Assuming arguendo that the court is required to consider Lowe’s briefs, the Petition must be denied on the merits.

            The DMV shall not issue a driver’s license when it determines, by examination or other evidence, that the person is unable to safely operate a motor vehicle upon a highway.  §12805(a)(4).

            The DMV may conduct an investigation to determine whether the privilege of any person to operate a motor vehicle should be suspended or revoked upon receiving information or upon a showing by its records of any grounds for which a license might be refused.  §13800(f).  In addition to an investigation, the DMV may require the re-examination of the licensee, and shall give ten days’ written notice of the time and place thereof.  §13801.  If the licensee refuses or fails to submit to the re-examination, the DMV may peremptorily suspend the driving privilege of the person until such time as the licensee shall have submitted to re-examination.  §13801.  The suspension is effective upon notice.  §13801.

Whenever the DMV determines upon investigation or re-examination that any ground for re-examination is true, or that the safety of the driver or other persons on the highways requires it, the DMV may suspend or revoke the person’s driver’s license or impose terms of probation on the driving privilege, after giving notice and an opportunity to be heard.  §§13950-52.

            The DMV explains that it suspended Lowe’s license due to both his medical history and his failure to demonstrate that he can safely operate a vehicle.  Opp. at 5.

 

            a. The Medical Reports

            On September 10, 2020, the DMV issued Lowe a Notice of Reexamination directing Lowe to submit the attached medical forms by October 5, 2020.  AR 109.  Lowe asserts that he provided these forms on time, but the DMV did not advise him that he needed to send the forms to the support unit until after it suspended his license.  Reply at 1. 

            He is incorrect.  The Notice of Reexamination advised him of to submit the required medical forms to the Driver Safety Office at the El Segundo address by October 4, 2020.  AR 109.  Lowe does not provide any evidence that he timely submitted the medical forms to the listed office.  Therefore, his initial suspension under section 13801 was proper.

            Lowe alleges that, after he submitted the proper medical and eye exam forms, his doctors said nothing in the forms that would suggest his condition would cause him problems when driving.  As a result, the DMV should not have suspended his license based on his medical history.  Reply at 1-2.

            Subsequent events rendered this issue moot.  The hearing officer explained that when Lowe failed to provide the medical forms on time, the DMV suspended his driving privilege under section 13801.  AR 157-58.  After the DMV received the forms, a driving examination was required no matter what the doctors said.  AR 158. 

            Lowe asserted during the August 27, 2021 hearing that the DMV had no right to conduct a driving test when his doctor had decided that he could safely drive.  AR 158-159.  The hearing officer explained at the December 2, 2020 hearing that Lowe had to take a driving test because of his neuropathy.  AR 54.  His diabetes could affect his ability to grip or feel his feet while driving and a driving test was required.  AR 55. Lowe’s neuropathy is a condition that the DMV has decided always poses a risk (AR 156), and the DMV had the right to investigate whether it should suspend Lowe’s license.  See §13800(f).  This included the right to require re-examination and to suspend Lowe’s driving privilege if he either failed the test or refused to take it.  See §13801. 

In the September 13, 2021 decision, the DMV sustained the suspension of Lowe’s license because Lowe twice failed driving tests to demonstrate if he could drive safely.  AR 3.  The doctors’ finding that Lowe’s medical condition should not affect his driving does not invalidate the license suspension based on Lowe’s failed driving tests.

           

            b. The Driving Tests

            For Lowe’s first driving test on July 28, 2021, Ledesma wrote that Lowe made a critical driving error by crossing the double yellow line when turning left, turning into oncoming traffic in the process.  AR 16-17.  He also abruptly stopped in the middle of traffic, which forced everyone behind him to brake harshly to avoid collision.  AR 16-17.

            For Lowe’s second driving test on September 8, 2021, Ortega wrote that Lowe disobeyed traffic signs, made a right turn on a red light when not allowed, and pumped the gas to create jerking movements.  AR 22.  He did not check blindspots when backing and making lane changes.  AR 22, 24.

            The DMV cited both tests in the September 13, 2021 Decision when it concluded that Lowe could cause or contribute to a traffic collision if he kept his license.  AR 2-3.  Lowe asserts that both examiners lied and discriminated against him.  Reply at 2.  Garcia’s 2022 report states that Lowe alleged discrimination based on his race (AR 113), but Lowe alleges in the hearing transcript and Petition that they discriminated based on his disability (AR 159).  Pet. at 1.

            Lowe presents no evidence of discrimination.  At most, he alleged that Ledesma was biased against him because Lowe told him that “I don’t like gay people.”  AR 164.  Lowe cannot bootstrap a claim of retaliation from his own discriminatory comment.  His unsupported allegation is insufficient to show that either examiner unlawfully discriminated against him. 

            Lowe was given the opportunity of a third driving test on October 26, 2022 and he makes no effort to explain why he did not attend it.  AR 115, 117, 189.  As the 2022 report states, Lowe failed two driving tests after a year of supervised practice, received an opportunity for a third driving test, and failed to appear for it.  AR 113. 

Lowe has been given an opportunity for three driving tests and has not passed any of them.  He fails to refute the examiners’ conclusions that his lack of skill as a driver puts himself and others on the road at risk unless the DMV suspends his license.

 

F. Conclusion

Driving is a convenience in Los Angeles that borders on necessity.  It is also true that the DMV’s suspension/revocation of an elderly person’s driver’s license can seriously impact the person’s feelings of independence and self-worth.  However, driving is a privilege and not a right.  In past years, there have been fatal accidents directly attributable to an elderly person’s inability to drive safely, and the DMV has the legal duty to monitor such drivers.  Whatever his previous skill, Lowe has not demonstrated that he can drive safely.