Judge James C. Chalfant, Case 21STCV46908 2022-08-25 Tentative Ruling

Petitioner Juan Jose Ignacio Villeda Garcia (“Garcia”) petitions the court for a writ of mandate compelling Respondent Director of the Department of Motor Vehicles (“DMV”) to set aside the decision suspending his driving privilege.

The court has read and considered the supplemental moving papers,[1] opposition, and reply, [2] and renders the following tentative decision.

Petitioner Garcia commenced this proceeding on December 17, 2021. The operative pleading is the First Amended Petition (“FAP”) filed on March 22, 2022 alleging a cause of action for a writ of administrative and traditional mandamus. The FAP alleges in pertinent part as follows.

On May 30, 2021, Garcia was arrested for driving under the influence of alcohol (“DUI”) in violation of Vehicle Code sections 23152 and 23153. The DMV held a hearing on November 4, 2021. Instead of live testimony, the DMV relied on five exhibits to which Garcia objected. This included a statement by J. Thornton on the issue of driving, which was inadmissible hearsay. The hearing officer allowed all five exhibits into evidence.

On November 4, 2021, the hearing officer suspended Garcia’s license effective December 1, 2021.

Garcia seeks a writ of mandate compelling the DMV to reinstate Garcia’s his license, as well as a temporary stay on the DMV’s decision pending the hearing on this matter.

On March 28, 2022, Department 61 (Hon. Gregory Keosian) reassigned the case to Department 1 (Hon. David Cowan) for reassignment to a Writs and Receivers court. On March 29, 2022, Department 1 reassigned the case to this court.

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085. In contrast, 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, (“Topanga”) (1974) 11 Cal.3d 506, 514-15. Therefore, although the petition cites to both (Pet. at 9-10), because this action follows a DMV hearing, this action is properly for a writ of administrative mandamus.

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, (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, (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, 150-151; 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 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.

1. Law Pertaining to Administrative Per Se Driver’s License Suspension/ Revocation

Vehicle Code[3] section 23152 provides that it is a crime to drive either (a) under the influence of alcohol or (b) with a blood alcohol of .08% or more, by weight. Section 23612(a) provides that any driver is deemed to have given consent to chemical testing of blood or breath for purposes of testing alcohol content if lawfully arrested for violation of sections 23140, 23152, or 23153. Section 23612(d)(2) provides that the driver is deemed to consent to a urine test of alcohol content if blood or breath are not available.

Section 23612(a)(2)(A) provides that if a person is arrested for driving under the influence of an alcoholic beverage, the person has a choice of two tests: blood or breath. The officer must advise the suspect of his choices. The person shall be told that his/her failure to submit to or complete the required chemical testing will result in a fine and mandatory incarceration if the person is criminally convicted, and the suspension/revocation of his/her driver’s license for one, two, or three years depending on prior offenses. §23612((a)(1)(D).

Section 13353 requires the DMV to suspend or revoke a person’s driving privilege if the person refused a peace officer’s request to submit to, or failed to complete, a chemical test or tests pursuant to section 23612, and the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of section 23152 or 23153. §13353(a). The suspension or revocation is for one, two or three years, depending upon the nature and recency of prior violations. §13353(a).

Section 13558 permits an administrative hearing to challenge the “administrative per se” suspension. Section 13557(b)(1) describes the only four issues that need be considered at a DMV license suspension hearing: (a) that the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of sections 23136, 24140, 23152 or 23153; (b) that the person was placed under lawful arrest or lawfully detained; (c) that the person refused or failed to complete the chemical test or tests after being requested by a peace officer; and (d) that, except for the persons described in section 23612 who are incapable of refusing, the person had been told that his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to and complete the required testing.

California courts have long held that “[r]efusals to take tests have never been excused in California on any ground other than officer-induced confusion.” McDonnell v. Dept. of Motor Vehicles, (1975) 45 Cal.App.3d 653, 659; Jones v. Dept. of Motor Vehicles, (1977) 71 Cal.App.3d 615, 620. “If the evidence shows the officer made ambiguous or conflicting statements, that evidence has a bearing on whether ... the response of the driver indicated his confusion rather than his refusal to perform a statutory duty.” Goodman v. Orr, (1971) 19 Cal.App.3d 845, 853. If the driver manifests confusion, then the officer is obliged to make a clarifying statement. Id. Once the clarifying statement is made, the refusal is no longer excused. Id., at p. 856.

In determining whether an arrestee’s refusal is the result of confusion, the crucial factor is not the state of the arrestee’s mind; it is the fair meaning to be given his response to the demand that he submit to the chemical test. Cahall v. Department of Motor Vehicles, (1971) 16 Cal.App.3d 491, 497; McDonnell, supra, 45 Cal.App.3d at p. 659. The reasons for the driver’s refusal must be rational and disclosed. Eilinger v. Dept. of Motor Vehicles (1983) 143 Cal.App.3d 748, 751. The law is clear: “one offer plus one rejection equals one refusal, and one suspension.” Espinoza v. Shiomoto, (2017) 10 Cal.App.5th 85, 112-113.

If a witness is not testifying as an expert, his or her testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of his testimony. Evid. Code §800.

A writing made as a record is not made inadmissible by the hearsay rule if the writing was made by and within the scope of duty of a public employee, was made at or near the time of the act, condition, or event, and the sources of information and method and time of preparation were such as to indicate its trustworthiness. Evid. Code §1280.

In formal administrative hearings, each party shall have the right to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against him or her. Government Code (“Govt. Code”) §11513(b). If the respondent does not testify on his or her own behalf, he or she may be called and examined as if under cross-examination. Govt. Code §11513(c).

The hearing need not be conducted according to technical rules relating to evidence and witnesses; any 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, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. Govt Code §11513(c).

Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Govt. Code §11513(d).

According to the incident arrest report – approved the next day at 5:03 a.m. – on May 29, 2021 at about 10:50 p.m., Burbank Police Department (“BPD”) Officers Perry and Camarena were on patrol when they received a complaint from dispatch that the driver of a silver Mazda with Illinois plates had rear-ended the complainant while waiting in line at a Wendy’s drive-thru. AR 23. The complainant also informed dispatch that the driver of the Mazda – Garcia – appeared to be under the influence. AR 23.

Officers Caldwell and Debelius arrived as the Mazda was exiting the drive-thru. AR 23. The vehicle matched the description given by the reporting party to dispatch, and they told Garcia to park in a parking spot. AR 23. After Garcia complied, Officers Perry and Camarena arrived. AR 23.

Debelius approached Garcia and began speaking to him. AR 23. He observed that Garcia slurred his speech and had red, glossy eyes. AR 23. Based on Debeliu’s observations, Camarena began a DUI investigation. AR 23. Garcia was questioned and stated that he had not been drinking and last had a drink one year ago. AR 19. He admitted to driving the Mazda. AR 19.

Camarena explained and demonstrated the Field Sobriety Tests (“FSTs”). AR 23. Garcia failed the FSTs. AR 23. He was unable to smoothly track the target with his eyes during the Horizontal Gaze Nystagmus test, had the maximum deviation, and had an angle of onset of less than 45 degrees. AR 20. During the walk and turn test, he started too soon and did not remain in the instructional position. AR 20. Between going forward and back, the officers counted nine missed heel-to-toe steps, four steps off the line, and a turn in the wrong direction while pivoting on the balls of both feet. AR 20. For the standing on one leg test, Garcia started too early, did not count aloud as instructed, and put down his foot once. AR 20.

Camarena combined these results with Garcia’s refusal to take a Preliminary Alcohol Screening (“PAS”) test and arrested him at 11:35 p.m. for driving under the influence and placed him in the back of back of Camarena’s patrol vehicle. AR 10, 23.

Officer Perry spoke to the complainant, Jose Meraz (“Meraz”), who asserted that Garcia rear-ended his car in the east side of the Wendy’s parking lot. AR 23. Meraz then exited his car, approached Garcia, and said: “You just hit my car.” AR 23. Garcia replied: “Did I hit your car?” AR 23. Meraz asked Garcia if he was okay and Garcia replied: “No, are you okay?” AR 23. Meraz told Garcia to back up his car because Garcia’s front bumper was still touching Meraz’s rear bumper. AR 23. Garcia complied, but then went around the Wendy’s and cut him in line. AR 23. Garcia’s passenger, Crystal Delraso (“Delraso”), cursed at Meraz: “Fuck you”. AR 23. Meraz called the police. AR 23. He desired a prosecution for hit and run. AR 23.

Camarena gave Garcia the chemical test admonishment. AR 24. Garcia elected to provide a blood sample. AR 24. After they arrived at St. Joseph’s Medical Center, he refused to sign the blood consent form or give a breath or blood sample. AR 11, 24. Perry reread the chemical test admonishment and Garcia orally rejected both tests. AR 11, 24.

An administrative per se (“APS”) hearing was held on November 5, 2021. AR 28. The hearing officer outlined the issues: (1) whether the officers had reasonable cause to believe Garcia was under the influence; (2) whether he was lawfully arrested; (3) whether Garcia was told that his driving privilege would be suspended or revoked if he refused to submit to or failed to complete a chemical test; and (4) whether Garcia refused to submit to a chemical test after being requested to by the officers. AR 34. Garcia did not stipulate to any element, but he stated that Petitioner was only interested in the first two. AR 34.

The hearing officer admitted into evidence without objection (1) Camarena’s DS-367 form for the arrest, including the chemical test admonition (AR 10-15); (2) the traffic collision report (AR 16-18); (3) the DUI Investigation Report (AR 19-20); (4) the incident arrest report (AR 21-24); and (5) Garcia’s California driving history with the arrest and suspension (AR 25-26). AR 34-37.

The hearing officer explained that no witnesses were being called by the DMV. AR 37. Garcia’s counsel chose not to offer into evidence the ten hours of video footage from that night because it was too long, and he would not use it. AR 37-38. At the end of the hearing, the hearing officer confirmed with Garcia’s counsel that the videos had not been marked as an exhibit and were irrelevant. Counsel responded: “Okay, all right.” AR 60.

Delraso is Garcia’s girlfriend and they plan to get married down the line. AR 39-40. She is from Chicago and has been in California less than a year. AR 39. She is studying to be a CPA and lives with Garcia. AR 40.

On the pertinent evening, they went to dinner at a restaurant called Eden between 4:00 and 6:00 p.m. AR 41. She had two beers at dinner but Garcia did not drink anything. AR 41-42, 54. The went back home after dinner to relax and watch tv. AR 42. Garcia did not drink at home. AR 54. She was with him the whole day. AR 55. After about four hours, they decided to go to Wendy’s drive-thru. AR 43, 54. Garcia was driving her car. AR 43, 54.

There were a few people in line at the drive-through in front of them. AR 43, 54-55. One of them, Meraz, had a lot of space in front of him, so they honked to try to get him to move. AR 43-44. He angrily got out of his car, scaring Delraso, and told them to get out or he would call the police. AR 44. They told him they would not get out. AR 44. Meraz asked them one more time to get out or he would call the cops and say that you hit me (my car). AR 44. She rolled up the window and locked the doors. AR 44. Garcia and Delraso went around Meraz to order their food and “that was it.” AR 44. Her car never hit Meraz’s car. AR 45. He called the police only as a form of revenge for them honking at him. AR 45.

When Garcia’s counsel asked Delraso if she took her car to a dealer to be looked at, the hearing officer objected to any further testimony about the supposed collision. Delraso had said there was no accident and that was enough. AR 45-46.

As soon as Garcia and Delraso got their food, the police came and told them to park outside of the Wendy’s. AR 46. The officers came to the car and asked if Garcia had hit anyone, and Garcia and Delraso told them no. AR 47. After some questioning, the police had Garcia perform FSTs – walking the line and touching his nose. AR 47. These tests occurred next to the lefthand side of the vehicle, while Delraso remained in the passenger seat. AR 53. Delraso thought Garcia passed the FSTs easily, the Hearing Officer objected that Delraso was not qualified to testify on the results of such tests and struck her answer. AR 47-48, 51-52.

Some time passed during which the police decided they were going to arrest Garcia, put him in the police car, and gathered insurance information. AR 48. Garcia rejected a breathalyzer test but agreed to a blood test. AR 50, 53. After that, Delraso heard one of the police officers say they were going to “bury him”. AR 50-51. They then took Garcia to the hospital, and she remained behind. AR 51.

Garcia is an investigator for the State Bar and a private investigator. AR 56. On the evening in question, there was an allegation that he hit someone’s car. AR 57. The next day he looked at his girlfriend’s car and there was no damage. AR 57.

To Garcia’s knowledge, he passed the FSTs at Wendy’s. AR 57-58. Although he agreed to have his blood drawn at the hospital. AR 57-58. He refused upon arrival at the hospital because one of the officers said he wanted to “bury me.” AR 58. In the car, one of the officers imitated him saying in a childish voice that he (Garcia) wanted to go to the hospital. AR 59.

The hearing officer determined that the officers had reasonable cause to believe that Garcia was driving a motor vehicle while under the influence of alcohol. AR 6. Probable cause existed because Garcia admitted driving and the officer determined that Garcia had been in a traffic collision. AR 5. Subsequent to making contact, Officer Camerena formed the belief that Garcia was intoxicated based on (1) his bloodshot and watery eyes, alcoholic odor, unsteady gait, and slurred speech (2) unsatisfactory FST results, (3) Delraso’s and Garcia’s testimony during the hearing that Garcia admitted at the scene to having consumed alcohol. AR 5-6. Garcia also was lawfully arrested for driving under the influence. AR 6.

As for the chemical admonition, Garcia did not contest the BPD’s evidence that he was admonished that his failure to take complete a chemical test would lead to suspension or revocation of his license. AR 6.

As to failure/refusal to complete the chemical test, Garcia contended that he agreed to take a chemical test but he later changed his mind because he did not like the statements made by the officers. AR 6. The hearing officer rejected this defense because Garcia did not manifest any retraction of his previous refusal. AR 6. Garcia’s prior consent to a chemical test does not excuse his refusal at the hospital because he was not only required to consent but also to complete the test. AR 6.

The hearing officer determined that both Delraso and Garcia were credible. AR 7. Garcia testified against his own interest by admitting that he was the driver at the time of the supposed collision at the Wendy’s. AR 7. Delraso gave testimony consistent with the observations of the responding officers and Garcia. AR 7.

The hearing officer concluded that the BPD had demonstrated all four elements necessary for an administrative per se driver’s license suspension for refusal to complete the required chemical test. AR 7. She therefore lifted the stay on his yearlong suspension, effective December 1, 2021. AR 5.

Petitioner seeks administrative mandamus[4] compelling the DMV to set aside the decision suspending his driving privilege. While the format of his brief makes his argument a little unclear, Garcia seems to base this on (1) the admission of five police reports over Garcia’s objection; (2) the hearing officer’s exclusion of Delraso’s testimony; (3) lack of reasonable cause; and (4) Garcia’s decision to revoke his consent to a chemical test after a BPD officer said “bury him”.

Garcia asserts that his counsel objected to the introduction of police reports as hearsay and a violation of his right to confront and cross-examine the officers who wrote them under Govt. Code section 11513(c). Garcia claims he objected to a “statement submitted by J. Thornton on the issue of driving.” Pet. Op. Br. at 2.

This is incorrect. Garcia’s counsel made no objection to the introduction of the DMV’s exhibits at the hearing. AR 34-37. The record also is devoid of any mention of a “J. Thornton”. Garcia’s failure to make a timely objection prohibits him from doing so now.

Even if, arguendo, Garcia had objected, the police reports (Exs. 1-4) were properly admitted. The officer’s DS-367 is statutorily required to be received into evidence. §13557(a); Lake v. Reed, (2004) 32 Cal.4^th 448, 461. Once the DS-367 is received, unsworn reports by an arresting or a non-arresting officer may be admitted to supplement the sworn statements. Id. “[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.” MacDonald v. Gutierrez, (2004) 32 Cal.4th 150, 159.

As for Garcia’s right to confront the officers, the right to confrontation applies only to a criminal defendant and has no application in an administrative proceeding. Garcia had subpoena power and could have called the officers to cross-examine them. He failed to do so.

If a witness is not testifying as an expert, his or her testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is (a) rationally based on the perception of the witness; and (b) helpful to a clear understanding of his testimony. Evid. Code §800.

Garcia asserts that the hearing officer improperly excluded Delraso’s testimony that (1) there had not been a car accident, and (2) Garcia passed the FSTs. Pet. Op. Br. at 4.

The hearing officer permitted Delraso to testify that there had not been an accident at Wendy’s drive-thru. AR 43, 54. Delraso explained that there were a few people in line at the drive-through in front of them. AR 43, 54-55. Meraz had a lot of space in front of him, so they honked to try to get him to move. AR 43-44. He angrily got out of his car, scaring Delraso, and told them to get out or he would call the police. AR 44. Meraz asked them one more time to get out or he would call the cops and say that you hit me (my car). AR 44. She rolled up the window and locked the doors. AR 44. Garcia and Delraso went around Meraz to order their food and “that was it.” AR 44. Her car never hit Meraz’s car. AR 45. He called the police only as a form of revenge for them honking at him. AR 45.

Garcia argues that the truncation of Delraso’s testimony prevented him from showing that a proper investigation by the officers would have revealed that no collision had taken place. Pet. Op. Br. at 4.

The hearing officer was entitled to control the mode of interrogation (Evid. Code §765) and exclude matter that is an undue consumption of time (Evid. Code §352). The hearing officer did not strike Delraso’s testimony. She only limited further testimony on the accident issue because the parties were there on “the DUI issues”, not the accident. AR 45-46. Whether or not a collision occurred is not particularly relevant to the DUI investigation. The BPD’s DUI investigation concerned whether Delraso drove under the influence of alcohol, not whether Meraz lied about the accident. This fact is underscored by the fact that a different officer prepared the traffic collision report. AR 16-18. The hearing officer properly limited Delraso’s further testimony on the lack of an accident.

As for Delraso’s opinion about the FSTs, there is little doubt that Delraso could have described what she saw. That is, she could have said that she saw Garcia standing on one leg without putting it down, or that he walked a line without wobbling. She could not testify, however, that he passed the FSTs. Garcia provides no evidence that Delraso would know what a passing grade on the FSTs would be. The hearing officer did not strike Delraso’s observations and only struck Delraso’s opinion that Garcia passed the FSTs. AR 47-48. This was proper.

Section 13557(b)(1) requires that the peace officer have reasonable cause to believe that the person had been driving a motor vehicle in violation of sections 23136, 24140, 23152 or 23153.

Garcia generally asserts that the officers lacked reasonable cause to believe that he drove under the influence. Pet. Br. at 6-7. He asserts that there was no damage to either vehicle, no one was showing signs of intoxication, the video footage does not show Garcia slurring his speech or bloodshot eyes,[5] and he understood and responded to their questions without showing signs of intoxication. Delraso was with Garcia all day and he did not drink that night. Pet. Op. Br. at 6.

Although Garcia does not point this out, the hearing officer erred in stating that both Delraso and Garcia admitted that Garcia had been drinking. AR 5-6. This is false. The police reports and Garcia’s and Delraso’s testimony show that they consistently denied that Garcia had been drinking. AR 19, 41-42. However, the relevant issue is not whether Garcia in fact drank, but whether the police had reasonable cause to believe that he had done so and then driven based on their observations. §13557(b)(1)(a).

Officer Camarena’s reasonable cause that Garcia had driven is based on the fact that he observed Garcia drive his vehicle and park it into a parking stall as instructed by Officer Caldwell. AR 23. Garcia also admitted to driving Delraso’s car. AR 19.

The evidence that Garcia was under the influence when he drove began when Officer Debelius approached Garcia and spoke with him. Officer Debelius noticed that Garcia slurred his speech, and his eyes were red and glossy. AR 19, 23. He also had a strong odor of alcohol. AR 19. Based on these observations, Officer Camarena began a DUI investigation. AR 23.

Officer Camarena then explained and demonstrated the FSTs to Garcia, who said he understood them. AR 23. After Garcia performed the FSTs, Officer Camarena opined that Garcia failed to perform them as explained and demonstrated. AR 23. On the Horizontal Gaze Nystagmus, Garcia lacked smooth pursuit and had maximum deviation in both eyes. AR 20. On the One Leg Stand, Garcia did not count out loud and started too early. AR 20. On the Walk and Turn, Garcia missed heel to toe once on the first nine steps and eight times on the second nine steps. AR 20. He stepped off the line twice on the first nine and also on the second nine. AR 20. On the turn he “turned right instead of left” and “pivoted on both balls of feet.” AR 20. Officer Camarena offered Garcia a PAS test, and he refused. AR 23.

According to Camarena, Garcia was unsteady on his feet and swayed when standing in place. AR 19. He further was uncooperative and argumentative. AR 19. Garcia’s bad attitude is corroborated by his answers to DUI questions, when he stated that he last drank “a year ago” and also said that he started drinking 24 hours ago, and when asked what he had eaten that day, he said “everything”. AR 19.[6]

Admittedly, FSTs are subjective. The observations of Garcia’s physical state also are subject to easy manipulation by the police and are not determinative. Garcia’s unwillingness to submit to a PAS test plainly works against him, however. On balance, Officer Camarena had reasonable cause to conclude that Garcia had driven under the influence.

Garcia argues that he was sitting in the back seat of the patrol car at this time and overheard the comment to “bury him”.[7] He did not make any statements during the transport to the hospital to take the blood test. At the hospital, he was asked again to take the test and this time he refused to take the test because he was worried and concerned due to the comment about burying him. He became reluctant to further cooperate and it was only because of the statement to bury him that decided to refuse. Pet. Op. Br. at 7.

There are two problems with Garcia’s argument. First, an arrestee’s concern about cooperation is not a reason to refuse a chemical test. As the DMV asserts (Opp. at 8-9) the courts have long held that “[r]efusals to take tests have never been excused in California on any ground other than officer-induced confusion.” McDonnell v. Dept. of Motor Vehicles, (1975) 45 Cal.App.3d 653, 659; Jones v. Dept. of Motor Vehicles, (1977) 71 Cal.App.3d 615, 620.

The only ground on which a refusal may be excused is officer-induced confusion. “If the evidence shows the officer made ambiguous or conflicting statements, that evidence has a bearing on whether ... the response of the driver indicated his confusion rather than his refusal to perform a statutory duty.” Goodman v. Orr, (1971) 19 Cal.App.3d 845, 853. If the driver manifests confusion, then the officer is obliged to make a clarifying statement. Id. Once the clarifying statement is made, the refusal is no longer excused. Id., at p. 856.

As the opposition notes (Opp. at 9-10), Garcia does not contend that he was confused about the mandatory chemical test. Nor did he manifest any confusion to the BPD officers. Consequently, the officers had no duty to clarify any misunderstanding. The law does not require the officers to correct any misconception Garcia might have had. “[T]here is no duty imposed upon the officer demanding the test to explain the niceties of the implied consent law.” Maxsted v. Department of Motor Vehicles, (1971) 14 Cal.App.3d 982, 987.

Second, any officer prejudice is irrelevant to consent. Garcia asserts that the officers were prejudiced against him because one said: “bury him.” AR 50-51, 58. He therefore revoked his consent at the hospital. Pet. Op. Br. at 7. Yet, police officer bias or prejudice is not a reason to refuse a chemical test. If it were, arrestees could routinely refuse consent due to police prejudice, and that would be inconsistent with the public purpose behind the implied consent law.

Garcia’s claim that the “bury him” comment made him reluctant to cooperate also makes no sense. Garcia had been admonished that his license would be suspended or revoked if he did not submit to a chemical test. It is undisputed that an officer said “bury him” after Garcia asked for a blood test. But Garcia’s concern that an officer was prejudiced against him would not be a reason to refuse a blood test, which is an objective test performed by hospital personnel in which the police have no direct involvement. In fact, Garcia does not even show that the officer who made the comment was one of the officers investigating the DUI as opposed to the alleged accident. Garcia’s State Bar and private investigator jobs and his argumentative attitude with the officers also make it unlikely that he was intimidated by the comment. At most, it would make him angry.

Finally, the reason for the officer’s comment may well be not prejudice, but annoyance. In the court’s experience, police officers do not want suspects to elect a blood test because it requires transport to a hospital where the suspect often does exactly what Garcia did -- refuse a blood test. It is quite possible that a single officer said "bury him” because the uncooperative Garcia had chosen a test that imposed a greater burden on the officers. Obviously, the court does not know this to be true, but neither has it been shown that the officer had some other reason to make the comment.

The Petition is denied. The DMV’s counsel is ordered to prepare a proposed judgment, serve it on Garcia’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for October 6, 2022 at 9:30 a.m.

[1] Garcia submitted a supplemental opening brief that is his moving papers.

[2] At the May 26, 2022 trial setting, the court ordered the DMV’s counsel to submit a trial notebook, the administrative record, and a memory stick by August 15, 2022. The DMV’s counsel failed to do so, belatedly lodging only a memory stick and the record on August 22, 2022. Because the court did not have these materials, Garcia’s counsel was asked to provide them. His counsel did so, but the record was not bates-stamped in violation of CRC 3.231(g)(1). As a result, the court’s staff had to bates-stamp the record. The DMV’s counsel is directed to follow the court’s orders for trial preparation in future cases.

[3] All further statutory references are to the Vehicle Code unless otherwise stated.

[4] Although the Petition alleges claims for both traditional and administrative mandamus, only administrative mandamus is available where there has been a hearing required by law and where evidence was required to be taken. CCP section 1094.5 is the exclusive remedy for judicial review of a final administrative decision. See Woods v. Superior Court (1981) 28 Cal.3d 668, 675.

Garcia separately submits a Declaration of Crystal Del Raso, a sales receipt for a front-end inspection (Ex. 6), and a purported judgment (Ex. 7) (which is not in the trial notebook). These exhibits are impermissible under CCP section 1094.5(e) where the court’s review is strictly limited to the record of the administrative hearing. §13557(a); Dyer v. DMV. (2008) 163 Ca.4th 161, 167. This evidence also is improperly presented for the first time in reply. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333 (new evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded). The court has not considered this evidence.

The court also has viewed but has not considered the body cam video presented in the trial notebook as this evidence was not offered and received at the hearing. See AR 37-38, 60. Garcia asserts that his counsel requested submission of the body cam footage after it became clear that the hearing officer would not permit Delraso’s testimony on the accident. Reply at 1. Not so. Garcia’s counsel asked the hearing officer generally if she looks at videos and whether she should send them in. AR 60. The hearing officer replied that the videos were irrelevant because they were not marked as an exhibit. AR 60. Garcia’s counsel then responded: “Okay, all right”. Garcia’s counsel did not mark and offer the videos as evidence or make any objection to their non-receipt. AR 60.

[5] The body cam video is not in evidence.

[6] Garcia’s attitude was further corroborated by Maraz, who stated that he told Garcia: “You just hit my car.” AR 23. Garcia replied: “Did I hit your car?” AR 23. Meraz asked Garcia if he was okay and Garcia replied: “No, are you okay?” AR 23.

[7] The DMV contends that this comment was hearsay (Opp. at 10), but that is not correct. The comment is not a statement offered for its truth (Evid. Code §1200), but rather is a direction or declarative statement.