Judge James C. Chalfant, Case 22STCP02768 2023-04-20 Tentative Ruling

Petitioner Kemone Rodgers (“Rodgers”) seeks a writ of mandate to set aside the decision of Respondent Director of the Department of Motor Vehicles (“DMV”) to suspend his driver’s license.

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

Petitioner Rodgers filed the Petition on July 26, 2022, alleging a claim against Respondent DMV Driver Safety Administrative Hearing Officer J. Emery (“Hearing Officer”). The operative pleading is the Second Amended Petition (“SAP”) filed on January 26, 2023, alleging two causes of action for administrative mandamus. The SAP alleges in pertinent part as follows.

On February 26, 2022, Deputy C. Umphlett (“Umphlett”) of the San Bernardino County Sheriff’s Department (“SBCSD”) arrested Rodgers for Driving Under the Influence (“DUI”) and driving with 0.08% or more BAC level. Rodgers blew over a .08% BAC on the first preliminary alcohol screening (“PAS”) test and did not complete a second one.

Umphlett later asserted that she arrested Rodgers and then admonished him, but Rodgers refused to submit a chemical blood test. Umphlett then filed a search warrant affidavit to obtain a search warrant for collection of a blood specimen from Rodgers. Umphlett also issued Rodgers an Administrative Per Se (“APS”) Suspension/Revocation Order and Temporary Driver License for refusal of a chemical test and for blowing a 0.04% or more while driving a commercial vehicle.

Rodgers timely requested an administrative hearing. On April 22, 2022, he filed a motion to set aside his suspension, but no hearing was scheduled.

At the telephonic hearing on June 3, 2022, Rodgers objected to DMV’s evidence because Umphlett reported inconsistent information. On June 23, 2022, the Hearing Officer issued an APS Notification of Findings and Decision (“Decision”) that suspended Rodgers’ license under Vehicle Code^{^[1]} section 13557(b)(1).

On June 14, 2022, the DMV issued an administrative order suspending Rodgers’ license for one year. On June 25, 2022, the DMV issued an Order of Disqualification for Rodgers’ operation of any commercial vehicle.

On November 23, 2022, the court hearing Rodgers’ criminal case declared a mistrial. On December 5, 2022, the state dismissed the charges under sections 23152(a) and (b) and convicted Rodgers of “dry reckless” under section 23103.

Rodgers seeks a writ of mandate compelling the DMV to not enforce the Decision or the Order of Disqualification, reinstate Rodger’s driving privileges and waive all relevant costs, and remove all references to his DUI arrest from his record. Rodgers also seeks attorney’s fees and costs.

On August 3, 2022, Department 1 (Hon. David Cowan) reassigned the case to this court.

On December 13, 2022, Rodgers filed a notice of an address change and his consent to receive electronic filings.

On January 26, 2023, Rodgers filed the SAP and served the DMV with the SAP and Summons by mail.

On January 31, 2023, the court denied Rodger’s ex parte application for a stay of the Decision.

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.

CCP section 1094.5 does not on 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. 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, 101316.

“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, 150151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

Rodgers asserts that the court is not required to agree with the DMV on its interpretation of the evidence. Reply at 6-7. Rodgers cites to the definition of independent review in the California Practice Guide: Civil Appeals and Writs Chapter [8:106], which states that matters presenting pure questions of law, not involving the resolution of disputed facts, are subject to de novo review. Reply at 6. The court agrees that it must exercise its independent judgment while also giving a presumption of correctness to the DMV’s findings.

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, 51415. 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 (Evid. 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.

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.

Sections 23612(a)(2)(A) and 23612(a)(2)(B) provide that if a person is arrested for driving under the influence of an alcoholic beverage, drug, or combined influence of an alcoholic beverage or drug, 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). The officer shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law. §23612(a)(4).

If a person arrested for a violation of section 23152 refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the peace officer shall serve the notice of the order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person. §23612(e).

If a peace officer arrests any person for a violation of section 23140, 23152, or 23153, the peace officer shall immediately forward to the DMV a sworn report of all information relevant to the enforcement action, including information that adequately identifies the person, a statement of the officer’s grounds for belief that the person violated section 23136, 23140, 23152, or 23153, a report of the results of any chemical tests that were conducted on the person or the circumstances constituting a refusal to submit to or complete the chemical testing pursuant to section 13388 or 23612, a copy of any notice to appear under which the person was released from custody, and, if immediately available, a copy of the complaint filed with the court. §13380(a).

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).

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.

At the administrative hearing, the DMV shall consider the sworn report submitted by the peace officer pursuant to section 23612 or 13380 and any other evidence accompanying the report. §13557(a). The DMV shall also consider its official records and may receive sworn testimony. §14104.7.

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.

Within 30 days of issuance of a notice of determination that sustains an order of suspension or revocation of the person's privilege to operate a motor vehicle after the administrative hearing, the person may file a petition for review of the order in the court of competent jurisdiction in the person's county of residence. §13559(a). The filing of a petition for judicial review shall not stay the order of suspension or revocation. §13559(a).

According to Deputy Umphlett’s DS-367, on February 26, 2022 at 10:10 p.m., Umphlett found Rodgers passed out in the driver’s seat of his vehicle with the engine running. AR 9-10. Umphlett checked a box describing Rodgers’ vehicle as a “commercial vehicle.” AR 9. There were open alcohol containers in the car. AR 10. Rodgers had bloodshot or watery eyes, an unsteady gait, and slurred speech. AR 9. He also had a strong odor of alcohol about him and could not safely walk or stand on his own. AR 10. Umphlett checked a box asserting that “driving observed by this officer.” AR 9.

At 10:30 p.m., Umphlett conducted a PAS test showing a BAC of 0.23%. AR 9. A second PAS at 10:35 p.m. showed an “error” result. AR 9. Rodgers then refused to submit to a chemical test. AR 9, 11. Umphlett checked a box stating “0.04% or more BAC (Commercial Vehicle)”. AR 10.

Umphlett arrested Rodgers at 10:30 p.m. for driving a commercial vehicle with a BAC of more than 0.04% and for refusing to submit to a chemical test. AR 9, 11.

The DS-367 states that Umphlett read the chemical test admonition at 11:18 p.m. AR 12. Rodgers agreed to take a breath test but could not follow instructions for the PAS. AR 12. He refused to take a chemical test. AR 12.

Umphlett issued an APS Suspension/Revocation Order and Temporary Driver License for driving a commercial vehicle with a BAC of more than 0.04% and for refusal to submit to a chemical test. AR 11.

Deputy Umphlett’s DUI Evaluation Report (“Arrest Report”) explained that, while on uniformed patrol at 10:03 p.m. on February 26, 2022, she received a dispatch call for a “man down” in the intersection of Ramona Avenue and Standing Rock Avenue. AR 18. The car was a red 2015 Nissan Altima. AR 15. The reporting party advised dispatch that the driver, later identified as Rodgers, was passed out in the driver’s seat of the running vehicle and did not respond to the caller’s shouts. AR 18.

Umphlett arrived on the scene at 10:13 p.m. AR 18. She approached Rodger’s driver’s side door and heard loud music from inside. AR 18. She saw Rodgers lying down asleep in the driver’s seat, fully reclined. AR 18. She knocked on the door several times to wake him up, but to no avail. AR 18. While she knocked, he observed an open Guinness beer bottle in the center cup holder. AR 18.

Emergency services eventually arrived and popped the lock on the door so they could ensure Rodgers was of sound medical condition. AR 18. Rodgers did not respond to questions when he first woke up. AR 18. He became agitated and refused to exit his vehicle until deputies pulled him out, at which point he fell to the ground. AR 18. Because he was uncooperative, Umphlett cuffed him to the rear of his car so that medical personnel could safely check on him. AR 18.

Between Rodgers’ uncooperative and insulting behavior, and his inability to stand without help, Umphlett could not conduct field sobriety tests (“FSTs”). AR 17, 18. The walk-and-turn required safe balance, which he did not have. AR 16. During the Horizontal Gaze Nystagmus (“HGN”), Rodgers often closed his eyes, moved his head, and stopped responding to the test midway. AR 19. Umphlett also observed a lack of smooth pursuit in both eyes and a Vertical Gaze Nystagmus (“VGN”). AR 16, 18. Rodger’s eyes were also watery and bloodshot. AR 16.

Umphlett asked if Rodgers would submit to a PAS test and, when asked, advised that he could not sway Rodgers’ decision either way. AR 19. Rodgers agreed to a PAS test and said that he understood the instructions. AR 19. He licked the plastic tube and winked until Umphlett reminded him to blow. AR 19. As soon as he did, the device displayed a 0.231% BAC. AR 19. Umphlett said that she needed to conduct a second PAS test to make sure it was accurate. AR 19. After Rodgers kept licking the tube and winking without blowing, Umphlett concluded that he was unable to perform the test. AR 19.

Umphlett put Rodgers in the back of his police car and advised him that he was under arrest for a DUI. AR 19. Because he could not finish the PAS test, Umphlett advised Rodgers that he would need to give a blood test and, if he refused, his license would be revoked for a year or longer. AR 19. Rodgers said that Umphlett could not revoke anything because she was harassing him. AR 19. Rodgers tried to get out of the patrol car, but Umphlett got him safely back in and secured him. AR 19.

Umphlett transported Rodgers to the Apple Valley police station to meet with a nurse for the blood draw. AR 19. Umphlett read Rodgers the APS chemical test admonition in its entirety as he sat in the patrol car. AR 19. When asked if he would consent, Rodgers refused to answer or acknowledge the admonition and kept asking why he was being arrested for DUI. AR 19. He refused to comply or acknowledge the admonition. AR 19.

Because he could not give consent and was uncooperative, Umphlett authored a search warrant for his blood, which a judge signed at 11:17 p.m. AR 19. Rodgers was uncooperative for the first blood draw at 11:30 p.m. and the nurse was unsuccessful. AR 19. Umphlett asked Rodgers if he would promise to be cooperative if he were uncuffed from the chair, and Rodgers agreed. AR 19-20. He was cooperative during a second blood draw at 11:33 p.m. AR 20.

Audio from Umphlett’s digital audio recorder and photographs of Rodgers’s car are both on the SBCSD’s online evidence vault. AR 20.

Rodgers timely requested a hearing to appeal the revocation of his license. On March 24, 2022, the DMV sent notice that the APS hearing would be held on June 3, 2022 via telephone. AR 44. The DMV issued Rodgers a temporary license pending the outcome of the hearing. AR 45.

On April 22, 2022, Rodgers filed a motion to set aside his suspension. AR 49, 52. Rodgers asserted that the DMV could not suspend his license before a DUI criminal conviction without violating his constitutional right to due process. AR 50. Evidence that he planned to subpoena from the criminal court would show that the authorities measured his BAC unlawfully. AR 50.

Rodgers also noted that his PAS screening with a BAC of 0.231 was collected at 10:30 p.m. that night. AR 51. Yet, Umphlett’s search warrant affidavit indicated that Rodgers refused to provide a chemical test at 11:17 p.m. AR 51. The affidavit justifying the search warrant contradicted the BAC results. AR 51, 59. The judge signed the warrant at 11:17 p.m. AR 63.

In a declaration attached to the motion, Rodgers asserted that his state and federal constitutional rights were being violated by suspension of his license before his criminal case. AR 55.

The hearing occurred on June 3, 2022, with Karyn James-Thomas (“James-Thomas”) as the DMV’s advocate. AR 27. Rodgers inquired whether the hearing was for a refusal or for driving a commercial vehicle and the Hearing Officer said: “It’s for a refusal.” AR 29. Rodgers stated that his phone was echoing loudly, which made it hard to understand the Hearing Officer. AR 29.

The Hearing Officer outlined the only relevant issues, which were: (1) whether the arresting peace officer had reasonable cause to believe Rodgers was driving the car in violation of section 23152 or 23153, (2) whether Rodgers was lawfully arrested, (3) whether the arresting officer warned Rodgers that the DMV would suspend or revoke his license between one and three years if he refused to submit to or failed to complete a chemical test, and (4) whether Rodgers refused to submit to or failed to complete a chemical test after the admonition. AR 29-30.

James-Thomas introduced Umphlett’s DS-367 with the chemical test admonition, narrative, and suspension revocation order. AR 10-13, 31. She then introduced the Arrest Report. AR 15-22, 31-32. Her third exhibit was a printout of Rodger’s driving record. AR 32.

Rodgers objected to all three exhibits. AR 33. He asserted that the credibility of the officer was in question because the reports are inconsistent. AR 32. Umphlett’s report even stated that Rodgers took a chemical test and therefore he did not refuse. AR 33. The Hearing Officer explained that Rodgers needed to present legal objections such as hearsay and authentication. AR 33. The assertion that the evidence was inconsistent was an argument for later. AR 33-34. The Hearing Officer overruled the objections. AR 34.

Rodgers asked about his motion to set aside the suspension. AR 35. The Hearing Officer stated that he received the motion, which was denied because the criminal case and administrative proceeding are separate; they move forward independent of each other. AR 35-36. Rodgers said “Okay” and asked to submit his declaration (AR 55-58) as evidence. AR 36. The Hearing Officer asked how it would be relevant to the hearing. AR 37. Rodgers only replied that he was willing to orally testify in addition to the declaration. AR 37.

Rodgers argued that the accusation is that he did not take a breathalyzer test, but the Arrest Report shows that he did take a breathalyzer. AR 38. Hearing Officer replied that the Arrest Report (Ex. 2) was already in evidence. AR 39. The parties said there was nothing else, so Hearing Officer said he would take the matter under submission. AR 39.

On June 14, 2022, Hearing Officer issued the Decision reimposing the one-year suspension on Rodgers’ license, effective June 26, 2022. AR 2, 4. The DMV served Rodgers with the Decision by mail on June 16, 2022. AR 5.

As to probable cause, Umphlett encountered Rodgers in response to a dispatch call for a “man down” whom had stopped in the middle of the intersection. AR 2. When he arrived, Rodgers was sleeping in the driver’s seat of his vehicle. AR 2. Umphlett concluded Rogers was driving because he was alone in the driver’s seat and did not deny driving. AR 2. Because Rodger’s vehicle matched the suspect vehicle from the dispatch call, this gave Umphlett probable cause to contact him. AR 2.

There were objective symptoms of intoxication. AR 2. Umphlett observed bloodshot and watery eyes, an odor of alcoholic beverage, an unsteady gait, and slurred speech. AR 2-3. The PAS results indicated that Rodgers was intoxicated. AR 3.

Based on the findings as to probable cause, Umphlett’s determination of driving, the belief that Rodgers was intoxicated, and the facts underlying it, Umphlett had reasonable cause to believe that Rodgers was guilty of a DUI. AR 3.

Umphlett arrested Rodgers at 10:30 p.m. for violations of section 23152, 23153, or 23140. AR 3. Explicit statements in the DMV’s documentary evidence support that finding. AR 3.

Rodgers did not deny that Umphlett told him that driving privilege would be suspended or revoked if he refused to complete the required drug testing. AR 3.

Rodgers contended that he took the breath and chemical test. AR 3. Umphlett’s DS-367 includes the chemical test admonition with a timestamp of 11:18 p.m. AR 3. It shows that Rodgers was unable to take a breath test and responded “no” when asked to take a chemical test. AR 3.

In addition, the Arrest Report prepared the same day said that Rodgers agreed to a PAS test. AR 3. Umphlett instructed him to blow into the tube like a balloon, and Rodgers said he understood. AR 3. Rodgers licked the tube and winked at Umphlett. AR 4. The PAS test showed a presence of alcohol, so Umphlett told Rodgers to take it again to ensure the reading was correct. AR 4. Rodgers instead licked the tube again, winked at Umphlett, and asked if she liked that. AR 4. This led Umphlett to conclude that Rodgers could not perform the PAS test and to arrest him. AR 4.

Umphlett reports that she then told Rodgers that he must submit either a blood or breath test. AR 4. Umphlett read the APS chemical admonition and asked Rodgers if he would consent, but Rodgers refused to answer and kept asking why he was being arrested. AR 4. Because Rodgers did not give consent and was not cooperative with the admonishment for either chemical test, Umphlett authored a search warrant for a blood sample. AR 4.

Umphlett reported in the Arrest Report that Rodgers stated he had not been drinking. AR 4. The DS-367 reports bloodshot or watery eyes, an odor of alcoholic beverage, an unsteady gait, slurred speech, and a positive PAS test. AR 4. These are all objective signs of intoxication. AR 4.

Umphlett’s written statements have more weight because peace officers have a duty to accurately record statements, observe, and report. AR 4. Rodger’s statements have less weight because he was not honest at the time of the incident about whether he had been drinking. AR 4. While Rodgers asserted he took both tests, Umphlett’s reports show that Rodgers only performed a PAS test willingly and only had his blood taken after a warrant was issued. AR 4. The APS admonition read by Umphlett includes all of the consequences for failure to consent. AR 4. When Rodgers refused to answer, that constituted a refusal to take the test. AR 4.

The Hearing Officer found that Rodgers did refuse or fall to complete the chemical test or tests after being requested to do so by a peace officer. AR 4.

Hearing Officer found Umphlett had reasonable cause to believe Rodgers was in violation of sections 23140, 23152, or 23153, Rodgers was placed under lawful arrest, he was told his driving privilege would be suspended or revoked if he refused to complete the required testing, and he refused or failed to complete a chemical test. AR 4. The Hearing Officer lifted the stay on Rodgers’ suspension, which will be effective from June 26, 2022 through June 25, 2023. AR 2.

The DMV issued an Order of Disqualification, effective from June 26, 2022 to June 25, 2023, because Rodgers was a commercially licensed driver operating a non-commercial or commercial vehicle and knowingly refused a chemical test after admonishment. AR 7.

Rodgers seeks a writ of mandate to set aside the Decision and the suspension on his license.

Each party shall have the right to call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination, 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).

Under the Rules of Evidence, except as otherwise provided by statute, all relevant evidence is admissible. Evid. Code §351. “Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Evid. Code §210.

In an administrative hearing, 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. 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). An objection is timely if made before submission of the case or on reconsideration. Govt. Code §11513(d).

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.

At the hearing, the Hearing Officer received into evidence the DS-367 and the arrest report. AR 2-4. Rodgers argues that the DS-367 and the Arrest Report are inadmissible pursuant to Evidence Code section 1280 because they contain inconsistencies. Rodgers adds that a reasonable person would see the reports as dishonest and not rely on either document per Govt. Code section 11513(c). Reply at 8.

Rodgers notes that the DS-367 says that Umphlett observed the driving at issue and that it was a commercial vehicle. AR 9-10. The Arrest Report explains that when Umphlett arrived, Rodgers was passed out in the driver’s seat of the running vehicle and did not respond to the caller’s shouts. AR 18. The car was a red 2015 Nissan Altima, not a commercial vehicle. AR 15. Rodgers cites to Evid. Code sections 770 and 1235 and asserts that this inconsistency between the documents makes both inadmissible. Pet. Op. Br. at 9-10.

Evidence Code section 1280 requires that the sources of information and method of preparation indicate its trustworthiness. Downer v. Zolin, (1995) 34 Cal.App.4^th 578, 582 (forensic report inadmissible because court could not evaluate date of report preparation and therefore its trustworthiness). A mistake on a police report does not necessarily render a police report or sworn statement unreliable and inadmissible. Snelgrove v. Department of Motor Vehicles, (1987) 194 Cal.App.3d 1364 (report admitted despite noting an incorrect time of arrest); Burge v. Department of Motor Vehicles, (1992) 5 Cal.App.4th 384, 390 (officer’s statement admitted despite omitting the time of a chemical test).

Rodgers is confusing admissibility of evidence with its value. The DS 367 is a sworn report. “The department shall consider the sworn report submitted by the peace officer pursuant to Section 23612 or 13380 and any other evidence accompanying the report.” §13557. The Arrest Report may be admitted into evidence to supplement the DS-367. “An arresting officer’s failure to set forth all relevant information in the sworn report in compliance with section 13380 does not preclude the DMV from relying on the arresting officer’s unsworn report.” MacDonald v. Gutierrez, (“McDonald”) (2004) 32 Cal.4th 150, 159. MacDonald relied on Lake v. Reed, (1997) 16 Cal.4th 448, 467, which concluded that an agency may rely upon hearsay, including an unsworn arrest report, to supplement or explain other admissible evidence at administrative per se hearings despite a hearsay objection. Id. at 157. “So 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.” Id. at 155.

The Hearing Officer did not err in finding that the DS-367 and the Arrest Report were sufficiently trustworthy to be admissible. While she checked three boxes incorrectly on the DS-367 form, Officer Umphlett described the facts and circumstances that led to her arrest of Rodgers in the Arrest Report.

In the DS-367, Umphlett described how she found Rodgers passed out in the driver’s seat of his vehicle with the engine running and an open alcohol container in the car. AR 10. Rodgers had bloodshot or watery eyes, an unsteady gait, slurred speech, a strong odor of alcohol about him, and could not safely walk or stand on his own. AR 10. A PAS test showing a BAC of 0.23%. AR 9. Umphlett read the chemical test admonition at 11:18 p.m. AR 12. Rodgers agreed to take a breath test but could not follow instructions for the PAS. AR 12. He refused to take a chemical test. AR 12.

Umphlett’s Arrest Report supplemented the DS-357, explaining that she received a dispatch call for a “man down” in the intersection of Ramona Avenue and Standing Rock Avenue. AR 18. The car was a red 2015 Nissan Altima. AR 15. The reporting party advised dispatch that the driver, later identified as Rodgers, was passed out in the driver’s seat of the running vehicle and did not respond to the caller’s shouts. AR 18.

Umphlett approached Rodger’s driver’s side door and heard loud music from inside. AR 18. She saw Rodgers lying down asleep in the driver’s seat, fully reclined. AR 18. She knocked on the door several times to wake him up, but to no avail. AR 18. While she knocked, she observed an open Guinness beer bottle in the center cup holder. AR 18. Rodgers did not respond to questions when he first woke up. AR 18. He became agitated and refused to exit his vehicle until he was pulled out, at which point he fell to the ground. AR 18.

As fire personnel began to check Rodgers, he swayed from side to side and needed help standing up. AR 18. His face was flushed and sweaty, he slurred his words, and he had alcohol on his breath. AR 15, 18. When Umphlett asked if Rodgers had been drinking, he responded that Umphlett was drunk. AR 15, 18. Rodgers’ uncooperative and insulting behavior and inability to stand without help precluded Umphlett from fully conducting FSTs, but she was able to record passive FSTs like a lack of smooth pursuit in both eyes. AR 16, 18.

Rodgers agreed to a PAS test and said that he understood the instructions. AR 19. He licked the plastic tube and winked until Umphlett reminded him to blow. AR 19. As soon as he did, the device displayed a 0.231% BAC. AR 19. Umphlett said they needed to conduct a second PAS test to make sure it was accurate. AR 19. Rodgers kept licking the tube and winking without blowing and Umphlett concluded that he was unable to perform the test. AR 19.

Umphlett put Rodgers in the back of her police car and advised him that he was under arrest for DUI. AR 19. Because he could not finish the PAS test, Umphlett advised Rodgers that he would need to give a blood test and, if he refused, his license would be revoked for a year or longer. AR 19. Rodgers said that Umphlett could not revoke anything because he was harassing him. AR 19. Rodgers tried to get out of the patrol car, but Umphlett got him safely back in and secured him. AR 19.

Umphlett transported Rodgers to the Apple Valley police station, and she read Rodgers the APS chemical test admonition in its entirety as he sat in the patrol car. AR 19. When asked if he would consent, Rodgers refused to answer or acknowledge the admonition and kept asking why he was being arrested for DUI. AR 19. He refused to comply or acknowledge the admonition. AR 19.

Because he could not give consent and was uncooperative, Umphlett authored a search warrant for his blood, which a judge signed at 11:17 p.m. AR 19. Rodgers was uncooperative for the first blood draw at 11:30 p.m. and the nurse was unsuccessful. AR 19. He was cooperative during a second blood draw at 11:33 p.m. AR 20.

The detail of the Arrest Report corroborates and supplements the DS-367 and demonstrates that the three discrepancies in it are not material. The DS-367 did identify Rodgers’ vehicle as commercial and then used that fact to allege that Rodgers had driven a commercial vehicle with a BAC of more than 0.04%. AR 9-10. But the DS-367 also stated that the violation was a refusal. AR 10. The fact that Umphlett was wrong because Rodgers’ 2015 Nissan was commercial is not particularly significant because the error lay in checking two wrong boxes on the form. AR 9-10. In contrast, Umphlett’s narrative is consistent on both the DS-367 and the Arrest Report.

The second discrepancy -- that Umphlett stated “driving observed by this officer” on the DS-367 -- is even less significant. Again, the statement is contained on a checked box. AR 9. A more accurate statement would have been that, although not personally observed, Rodgers must have been driving because he was passed out while sitting in the driver’s seat of a running vehicle in the middle of an intersection with loud music playing. AR 18. Yet, there was no box available for such a conclusion on the DS-367. See id. Although not accurate, it was not unfair for Umphlett to check that box on the DS-367.

Additionally, the DMV correctly notes that actual driving prior to a lawful DUI arrest is not required for an administrative suspension. See Troppman v. Valverde, (“Troppman”) (2007) 40 Cal.4th 1121, 1125-26. Opp. at 12. Therefore, the wrongly checked box is immaterial to the proof and only bears on reliability of the DS-367.

Rodgers incorrectly relies on Evid. Code sections 770 and 1235. These provisions govern the admission of inconsistent statements of testifying witnesses and requires that the witness be given an opportunity to explain the inconsistency. Umphlett did not testify. If Rodgers felt the three inconsistencies showed such sloppy paper work by Umphlett that they undermined the truth of the remaining detailed facts presented in the DS-367 and Arrest Report, he should have required Umphlett to appear at the hearing to testify and confronted her with those discrepancies. As it stands, the three discrepancies do not bear on the reliability and truthfulness of the reports for purposes of their admission into evidence under Evid. Code section 1280. The Hearing Officer did not err in admitting the DS-367 and the Arrest Report.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amendment XIV, §1.

A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation. Cal. Const. art. I, §7(a).

On April 22, 2022, Rodgers filed a motion to set aside his suspension. AR 49, 52. He asserted that the DMV could not suspend his license without violating his constitutional right to due process before he was convicted in his DUI criminal case. AR 50. The DMV never set a hearing on this motion before the administrative hearing on the merits of the suspension. At the hearing, the Hearing Officer denied it without giving Rodgers a chance to explain. AR 35-36. Pet. Op. Br. at 8. Rodgers asserts that the Hearing Officer deprived him of the opportunity to be heard on the motion and therefore violated his due process rights under the Fourteenth Amendment of the U.S. Constitution and Cal. Const. Article I, section 7(a); Reply at 8-9.

The Hearing Officer did not deprive Rodgers of a right to be heard. An administrative hearing conducted by procedures prescribed by Govt. Code sections 11513, 11517, 11518, 11519 and 11521 does not deprive one of due process under the California Constitution or the Fourteenth Amendment of the U.S. Constitution. Whitlow v. Board of Medical Examiners (1967), 248 Cal. App. 2d 478, 489. The Hearing Officer explained that the DMV had the right to conduct the administrative hearing parallel to the criminal case. AR 35-36. In response, Rodgers said “Okay” and asked to submit his declaration (AR 55-58) as evidence. Opp. at 9; AR 36.

The Hearing Officer was correct that the criminal process and the administrative process with respect to DUIs are independent and parallel. One procedure need not wait for the other and Rodgers fails to cite any authority to the contrary. Even if the Hearing Officer did not give Rodgers an opportunity to argue further, Rodgers fails to demonstrate that he could have refuted the Hearing Officer’s analysis. The Hearing Officer did not violate Rodgers’ right to due process in summarily denying the motion to set aside Rodgers’ suspension.

If a peace officer arrests any person for a violation of section 23140, 23152, or 23153, the peace officer shall immediately forward to the DMV a sworn report of all information relevant to the enforcement action, including information that adequately identifies the person, a statement of the officer’s grounds for belief that the person violated section 23136, 23140, 23152, or 23153, a report of the results of any chemical tests that were conducted on the person or the circumstances constituting a refusal to submit to or complete the chemical testing pursuant to Section 13388 or 23612, a copy of any notice to appear under which the person was released from custody, and, if immediately available, a copy of the complaint filed with the court. §13380(a).

According to the DS-367, Rodgers’ PAS test with a BAC of 0.231 occurred at 10:30 p.m. AR 51. The DS-367 states that Rodgers refused a chemical test after being given an admonition at 11:18 p.m. AR 12. The judge signed the search warrant at 11:17 p.m. AR 63. The search warrant affidavit, sworn before the judge at 10:50 p.m. (AR 59), asserted that Rodgers had refused Umphlett’s request to submit to a chemical test. AR 59.

According to Rodgers, the search warrant/affidavit contradicts the DS-367 by showing that he could not have been admonished before 10:50 p.m. and the warrant was obtained by using dishonest information. Pet. Op. Br. at 6.

It is not clear what Rodgers’ point is. If he is arguing that the search warrant was unlawfully obtained, that fact would be irrelevant to this case. The DMV did not rely on any information in the search warrant or supporting affidavit.

If he is arguing that the search warrant affidavit shows an inconsistency with the times listed on the DS-367, the difference is immaterial. The search warrant affidavit does not mention the chemical admonition; it only says that Umphlett requested a chemical test and that Rodgers refused, which necessarily occurred before 10:50 p.m. AR 59. The Arrest Report shows that Umphlett obtained the search warrant after giving the chemical admonition and after it was clear that Rodgers could not and would not comply with the implied consent law. AR 19. The DS-367 states that Rodgers refused a chemical test after being given an admonition at 11:18 p.m. AR 12. While this is one minute after the judge signed the search warrant, it is quite possible that Umphlett gave a chemical admonition before 10:50 p.m. and repeated it at 11:18 p.m., immediately after receiving the warrant at 11:17 p.m.

Finally, if Rodgers is arguing that the DS-367 shows that he did comply with the implied consent law by completing a PAS test – which is what his motion to set aside argued (AR 57) – he would be wrong. A PAS test is a screening device which does not qualify as a chemical breath test for purposes of an APS license suspension.

Rodgers also argues that Umphlett was required to forward the search warrant/affidavit to the DMV, and it was improperly excluded at the hearing. Pet. Op. Br. at 6. Rodgers fails to show that section 13380 required Umphlett to forward the search warrant/affidavit for the criminal case to the DMV for the APS suspension. Even if she was so required, Rodgers had the search warrant/affidavit as an attachment to his motion to set aside his suspension and did not offer it into evidence at the administrative hearing. See AR 49-52.

The administrative record includes the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence and any other papers in the case. CCP §1094.6(c); Govt. Code §11523.

“The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. The court can only admit additional evidence where the party seeking its inclusion shows (1) the evidence could not have been presented to the agency in the first instance in the exercise of reasonable diligence or (2) was improperly excluded. CCP §1094.5(e); Western States Petroleum Assn. v. Superior Court, (“Western States”) (1995) 9 Cal.4th 559, 578; Eureka Citizens for Responsible Govt. v. City of Eureka, (2007) 147 Cal.App.4th 357, 366. In addition, extra-record evidence is admissible only if it is relevant. Western States, supra, 9 Cal.4^th at 570.

The Arrest Report states that audio from Umphlett’s digital audio recorder and photographs from Rodgers’s car are both in the SBCSD’s online evidence vault. AR 20. The DMV did not provide the recording to the Hearing Officer, and the Decision does not cite to it as a source for factual findings. AR 3. Rodgers asserts that, pursuant to section 13380(a), the DMV should have provided this to the Hearing Officer for consideration. Pet. Op. Br. at 11.

The clerk of the court in which the action is pending shall issue a deposition subpoena signed and sealed, but otherwise in blank, to a party requesting it, who shall fill it in before service. CCP §2020.210(a). Alternatively, an attorney of record for any party may sign and issue a deposition subpoena. CCP §2020.210(b). As demonstrated at the April 18, 2023 ex parte hearing on the subject, Rodgers obtained trial subpoenas duces tecum to the DMV for policy records and to the SBCSD’s custodian for the audio recording. The DMV objected and did not comply. SBCSD’s custodian complied. In his ex parte application, he sought to reopen discovery to obtain the subpoenaed information, continue the trial, and then move to augment the record with this information.

As discussed with Rodgers at the hearing on his ex parte application, his plan to incorporate the recording through a subpoena and a motion to augment is procedurally defective. Rodgers was required to obtain this information, if at all, through a deposition subpoena and then would then need to file a motion to augment the record with the bodycam audio recording in compliance with CCP section 1005. Allowing Rodgers to obtain and use this evidence after the DMV has filed its opposition would be improper and prejudice it.

As the court also ruled, even if Rodgers timely filed a motion to augment, he cannot meet the requirement of CCP section 1094.5(e) by showing that the body cam audio could not have been obtained for the administrative hearing in the exercise of due diligence. The audio is expressly referred to in the Arrest Report. AR 20. Rodgers asserts without evidence (Pet. Op. Br. at 8), and also stated at the ex parte hearing, that he asked SBCSD for any recording it had of the incident and was told that it had none. There apparently was no video but there was an audio recording. Because of confusion, he did not know about the recording until his criminal trial in November 2022. Pet. Op. Br. at 8. As the court ruled, Rodgers should have subpoenaed the SBCSD custodian for the bodycam audio for the June 2022 administrative hearing. He also should have filed a motion to augment after receiving the audio in his criminal case (even that might not meet the requirements of CCP section 1094.5(e)). Rodgers cannot augment the record with the bodycam audio now.

Rodgers asserts two interferences with his right to due process. First, he argues that the poor audio quality during the telephonic hearing kept him from effectively arguing his case. See AR 29. He spoke as if he did not hear the Hearing Officer’s questions and as if he did not hear the Hearing Officer ask if he wanted to testify. AR 37, 38. Pet. Op. Br. at 7-8.

Rodgers also argues that the Hearing Officer acted as a second advocate for the DMV. Pet. Op. Br. at 8. He made determinations against Rodgers without any allegation or request for relief from Advocate James-Thomas (AR 26-40), interrupted Rodgers when he was making legal arguments (AR 34), failed to admit Rodgers’ declaration into evidence despite its relevance (AR 36-37), denied the motion to set aside his suspension without providing Rodgers an opportunity to argue (AR 36). Pet. Op. Br. at 8.

As to poor telephonic audio quality, Rogers was obligated to do more than simply state at the outset that he was having trouble hearing. Only he would know if he could hear throughout the hearing, and he should have asked for a continuance if necessary. Nor was there anything beyond Rodgers’ initial comment that should have led the Hearing Officer to conclude that anything was wrong. Although there were moments when the Hearing Officer and Rodgers spoke over each other, the Hearing Officer asked clarifying questions to ensure that Rodgers understood and he answered them.

As for the Hearing Officer acting as an advocate, the recent case of California DUI Lawyers Assn. v. Department of Motor Vehicles, (“DUI Lawyers”) (2022) 77 Cal. App. 5th 517, 532, held that combining the role of the DMV’s decision-maker and advocate during APS hearings violates due process.^{^[2]} The DMV complied with this holding by separating the Hearing Officer from the advocate Ms. James Thomas. AR 27. That does not mean, however, that the Hearing Officer should have no knowledge of the procedure in an APS case and what the advocate must prove.

The hearing does not reflect any impropriety in the Hearing Officer’s handling of it and Rodgers miscasts the Hearing Officer’s comments as advocacy for the DMV. The Hearing Officer interrupted Rodgers’ legal argument because the parties were submitting evidence at that stage. AR 34. Rodgers’ argument that the DS-367 and Arrest Report were inconsistent did not constitute a legal objection, and the Hearing Officer said that he would hear Rodgers’ argument on that issue later. AR 34. When the Hearing Officer asked for Rodgers’ legal argument, Rodgers did not return to this point. AR 37-39. The Hearing Officer rejected the declaration supporting the motion to set aside the suspension because Rodgers would not explain its relevance when asked. AR 37. All Rodgers said was that he could orally testify as well, which did not answer the Hearing Officer’s relevance question. AR 37.

In any event, a due process violation requires a showing of prejudice.¿ Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice).¿ Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation.¿ People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay). ¿“Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”.¿ Fisher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20.

Rodgers does not show how it would reasonably have affected the outcome if the telephonic audio was clearer or based on the Hearing Officer’s alleged failure to be neutral.^{^[3]}

Rodgers has failed to demonstrate that the court should set aside the Decision due to violations of due process.

At the APS hearing, the DMV was required to establish only four elements: (1) the peace officer had reasonable cause to believe that the person had been driving under the influence of alcohol in violation of section 23136, 23140, 23152 or 23153; (2) the person was lawfully arrested, or if the alleged violation was of section 23136, that the person was lawfully detained; (3) after being asked by the officer to do so, the person refused or failed to complete the chemical test or tests required by the implied consent law; and (4) the person was told that refusal or failure to complete the required testing would result in the suspension or revocation of his or her driving privilege. Troppman, supra, 40 Cal.4th 1121, 1130, 1138.

a. Whether Umphlett Had Reasonable Cause to Believe Rodgers Had Been Driving a Motor Vehicle in Violation of the Vehicle Code

The Arrest Report states that when Umphlett arrived at Rodgers’s vehicle stopped in the middle of an intersection with the engine running and loud music coming out. AR 18. Rodgers was lying down asleep in the driver’s seat, fully reclined. AR 18. Umphlett observed a beer bottle in the center cup holder. AR 18. After emergency services helped him out, Rodgers swayed side to side and needed help standing up. AR 18. His face was flushed and sweaty, he slurred his words, and he had alcohol on his breath. AR 15, 18. When Umphlett asked if Rodgers was drunk, he said that Umphlett was drunk. AR 15, 18.

Rodgers does not dispute that Umphlett had reasonable cause to believe he was DUI.

b. Whether Rodgers Was Placed Under Arrest and Told That His Driving Privilege Would Be Suspended if He Refused to Submit to the Test

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. Pursuant to subdivision (a)(2)(B), if a driver is arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person may select from three tests: blood, breath or urine. 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).

Rodgers does not dispute that he was placed under arrest sometime after he failed the second PAS test. AR 9, 19. Reply at 9. He also does not dispute that Umphlett read the chemical admonition to him. AR 12.

c. Whether Rodgers Refused to Submit to, or did Not Complete, the Test After Being Requested by Umphlett

If the driver fails to complete or refuses to submit to a chemical test upon request, the DMV must suspend or revoke the driver’s driving privilege for a period which is dependent upon the person’s prior driving record. §13353(a). See Cole v. Department of Motor Vehicles, (1983) 139 Cal.App.3d 870, 873 (section 13342 requires that driver be advised that he does not have the right to an attorney before stating whether he will submit to a chemical test or before deciding which test to take).

Rodgers does not dispute that he refused of failed to complete a chemical test. He argues that any assertion that he refused a chemical test before the admonition or an arrest would be invalid and that he agreed to submit to a chemical test after being arrested. Reply at 10.

Rodgers fails to show that the chemical admonition must occur after his arrest. None of the elements for a violation of section 23612 require consideration of the timing of the arrest and chemical admonition and there is a good policy reason why the statutes do not do so. There can also be factual issues whether the person has been informed that he or she is under arrest and for what offense. The Legislature avoided this problem by not requiring any specific timing between the chemical admonition and arrest; it is sufficient for a refusal that the officer has probable cause to arrest when the admonition occurs. So long as the officer has probable cause, the admonition may come before or after the formal arrest.

In any event, Rodgers was given the chemical admonition after his arrest. AR 19. There also is no evidence that he agreed to a chemical test. Because he could not finish the PAS test, Umphlett informed Rodgers that he would have to take a blood test. AR 19; see AR 12 (Rodgers was “unable to perform/follow direction” for a breath test). She gave him the chemical admonition in the patrol car. AR 19. Rodgers said that Umphlett could not revoke anything because he was harassing him. AR 19. Rodgers tried to get out of the patrol car, but Umphlett got him safely back in and secured him. AR 19. This conduct qualified as a refusal. While Rodgers’ later complied with the search warrant and blood was drawn after his initial non-cooperation, that fact has no bearing on the refusal.

The Petition is denied. The DMV’s counsel is ordered to prepare a proposed judgment, serve it on Rodgers 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 June 8, 2023 at 9:30 a.m.

^{^[1]}All citations are to the Vehicle Code unless otherwise specified.

^{^[2]} The DMV’s opposition argues that Rodgers’ counsel is himself a member of the petitioner association in DUI Lawyers and should have been aware of the pending due process challenge. Opp. at 18. Obviously, this is erroneous.

^{^[3]} The DMV argues that Rodgers waived any due process objections to the Hearing Officer’s conduct because he did not raise them at the hearing. Opp. at 17. Constitutional issues not raised in earlier civil proceedings are generally forfeited. In re Marriage of Minkin, (2017) 11 Cal.App.5th 939, 958. Only when the issue is purely legal and based on an uncontroverted record is it appropriate to address new theories. Id.

Rodgers responds that the due process violation did not occur until the Hearing Officer rendered the Decision. Reply at 9. While some fairness issues may not be recognizable at hearing, the conduct Rodgers highlights occurred during the hearing and is in the hearing transcript. See Pet. Op. Br. at 8. Yet, Rodgers never questioned the Hearing Officer’s role during the hearing. AR 27-39. Recognizing the difficult in raising fairness issues at a hearing, the court declines to find that Rodgers waived his due process argument.