Judge James C. Chalfant, Case 22STCP02919 2023-04-27 Tentative Ruling

Plaintiff Cory Randolph (“Randolph”) applies for a preliminary injunction enjoining Defendant Steve Gordon, Director of Department of Motor Vehicles (“DMV”) from suspending Randolph’s driver’s licenses during the pendency of this action.

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

Plaintiff Randolph filed his Complaint against the DMV on August 4, 2022. The operative pleading is the Second Amended Petition (“SAP”), alleging administrative mandamus. The verified SAP alleges in pertinent part as follows.

Randolph seeks (1) a writ of mandate commanding the DMV to grant his application for an IID license; (2) a writ of mandate commanding the DMV to set aside and revoke orders of suspension issued on August 4, September 6, and September 16, 2022; and (3) injunctive relief compelling the DMV to grant him a driver’s license and stay all suspensions. Randolph also requests that the court declare sections 13352.4(f), 13353.6(a)(1)(c), and 13353.75(a)(1)(C) unconstitutional and issue a writ of mandate enjoining the DMV from enforcing them against any person. Randolph further seeks costs and attorney’s fees under both CCP section 1021.5 and Government Code (“Govt. Code”) section 800.

On August 8, 2022, Randolph filed the First Amended Petition (“FAP”). On August 9, 2022, he served DMV with the Petition and FAP.

On August 11, 2022, the court denied Randolph’s ex parte application for a Temporary Restraining Order (“TRO”) and Order to Show Cause (“OSC”) re: preliminary injunction enjoining the DMV from suspending his driver license effective August 8, 2022 and refusing his application for an IID-restricted driver license under section 13352(a)(3). The court ruled that he had not shown that the TRO would not be against the public interest.

On August 26, 2022, Department 82 (Hon. Mary Strobel) denied Randolph’s request to relate this case to Dustin Taylor Duket v. DMV, (“Duket”) 22STCP00664.

On December 1, 2022, Department 1 (Hon. David Cowan) denied Duket and Randolph’s motion to relate this case to Duket.

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. CCP §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[2] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

When the DMV determines that an applicant is lawfully entitled to a license, it shall issue to the person a driver’s license as applied for. §12811(a)(1)(A). The word “issues” includes both the original issuance and the reissuance. Stackler v. Dep't of Motor Vehicles (1980), 105 Cal. App. 3d 240, 243.

When a driver is arrested for a DUI, there are two separate processes for license suspension: criminal conviction and administrative per se suspensions, which operated independently from each other. Brierton v. DMV, (2006) 140 Cal.App.4^th 427, 436.

The DMV shall immediately suspend or revoke the privilege of a person to operate a motor vehicle upon the receipt of an abstract of the record of a court showing that the person has been convicted of a violation of sections 23152, 23153, 23109(a), or 23109.1. Vehicle Code[3] §13352(a). A driver is not entitled to a hearing before a conviction suspension is imposed, and there are no due process concerns, because the facts have already been determined in the criminal proceeding. August v. Dep't of Motor Vehicles, (“August”) (1968) 264 Cal. App. 2d 52, 59.

Upon the first conviction for a DUI, the privilege shall be suspended for a period of six months. §13352(a)(1)(A). Upon a second conviction within ten years per section 23540, the privilege shall be suspended for a period of two years. §13352(a)(3)(A).

In either case, unless the conviction is for use of drugs under section 312, the DMV shall advise the person that they may apply for a restricted driver’s license if the person (ii) satisfactorily provides to the DMV, subsequent to the violation date of the current underlying conviction, enrollment in, or completion of, a DUI program licensed pursuant to Health and Safety Code (“H&S Code”) section 11836, (iii) agrees as a condition of the restriction to continue satisfactory participation in the program, (iv) submits verification of installation of an ignition interlock device (“IID”) and agrees to maintain the IID, (v) provides proof of financial responsibility, (vi) pays all reissuance fees and any restriction fee required by the DMV, and (vii) pays the DMV a fee sufficient to cover the reasonable costs of administering these requirements. §§ 13352(a)(1)(A), (a)(2)(A).

The restrictions shall remain in effect for the duration of suspension. §13352(a)(1)(B), (a)(3)(B). The suspension is six months for a first offender and two years for a second offender. §13352(a)(1)(A), (a)(3)(A). The driving privilege shall not be reinstated until the person gives proof of financial responsibility and gives proof satisfactory to the DMV of successful completion of a DUI program. §§ 13352(a)(1)(A), 13352(a)(2)(A). Credit shall not be given to any program activities completed prior to the date of the current violation. §§ 13352(a)(1)(A), 13352(a)(2)(A).

A person qualified for an IID as a first or second offender is entitled to the issuance of a restricted license. Matteo v. DMV, (2012) 105 Cal.App.3d 240, 243.

The DMV shall suspend a licensee’s restricted driving privileges upon receipt of notification from the DUI program that the person has failed to comply with the program requirements. §13352(e)(2).

The DMV shall immediately suspend the privilege of a person to operate a motor vehicle if the person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood. §13353.2(a)(1). The order shall become effective 30 days after notice to the person. §13353.3(a). The period of the suspension will be four months if the person has not been convicted of a separate applicable violation, or administratively determined to have committed a DUI on a separate occasion, within ten years of the violation at issue. §13353.3(b)(1)(A). If there has been such a violation, the suspension shall be for one year. §13353.3(b)(2)(A).

If the person requests a hearing to challenge the suspension and the DMV cannot complete the hearing before the suspension would go into effect, the suspension is stayed pending the hearing determination. §§ 13558(b), (d), (e).

A person with a suspended license under section 13353.2. and who has been previously convicted of a DUI within the past ten years, may apply for a restricted driver’s license if, among other requirements, the person satisfactorily provides proof of enrollment in a DUI program licensed under H&S Code section 11836. §13353.75(a)(1)(A). The program shall report any failure to participate in the program to the DMV. §13353.75(a)(1)(B). If a person who has been issued such a restricted license fails at any time to participate in the program, the DMV shall immediately terminate the restriction and reinstate the suspension of the privilege to operate a motor vehicle. §13353.75(a)(1)(C).

The DMV shall require that a person whose driver’s license has been revoked, suspended, or restricted under section 13353.2 or 13353.3 provide, as proof of financial responsibility, a certificate or certificates that covers all motor vehicles registered to the person before reinstatement of his or her driver’s license. §16431(b).

H&S Code section 11836(a) authorizes the Department of Health to license private entities to provide DUI education programs. H&S Code section 11836.15 authorizes the Department of Health to adopt regulations for the guidance of the programs, which have become Title 9 of the California Code of Regulations (“CCR”). H&S Code section 11837(a) requires the DMV to restrict the driving privileges of anyone convicted of DUI under section 13352 if the person participates for at least 18 months in a licensed DUI program.

The DUI program shall require the participant to request a leave of absence whenever the participant is unable to attend any scheduled program activities for 21 days or longer. 9 CCR §9876.5(a). The DUI program director or designee shall approve a leave of absence only for specific reasons. 9 CCR §9876.5(e).

The DUI program shall dismiss from the program any participant who fails to attend program services for 21 days or longer without obtaining a leave of absence in accordance with 9 CCR section 9876.5. 9 CCR §9886(a)(5). The program shall provide the court, DMV, and program participant with an immediate report of any failure of the person to comply with the program’s rules and policies. H&S Code §11837.1(a). If such a fact is reported, the DMV shall suspend the privilege of that person to operate a motor vehicle for the period prescribed under Vehicle Code section 13352.5. H&S Code §11837.1(b).

The court of the original conviction retains jurisdiction as to all related post-conviction matters. H&S Code §11837.2(f).

The word “shall” in the Vehicle Code means that an action is mandatory. §15.

Whenever the DMV has given notice of, has taken, or proposes to take action under sections 12804.15, 13353, 13353.2, 13950, 13951, 13952, 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). An application for a hearing does not stay the action by the department for which the notice is given. §14100(b). This right must be made prominent on the notice of the DMV action. §14100(c).

A person is not entitled to a hearing if the DMV action is mandatory under the Vehicle Code. §14101(a).

Other than the DUIs at issue in this case, Randolph’s driving record does not contain any accidents or DUI arrests. Freestone Decl., ¶¶ 10(n)-(o), Ex. 1.

On September 17, 2021, Randolph was arrested for DUI[4] in Riverside County. Freestone Decl., ¶4, Ex. 2.

On November 25, 2021, Randolph was arrested for a second DUI in Los Angeles County. Freestone Decl., ¶5, Ex. 3.

On November 29, 2021, Randolph voluntarily admitted himself to Monarch Shores LLC (“Monarch”), a residential drug and alcohol treatment facility. Randolph Decl., ¶33, Ex. 4. He remained in its program until he completed it on July 17, 2022, with no disciplinary problems. Randolph Decl., ¶33, Ex. 4.

Randolph did not request an administrative per se hearing for the Los Angeles DUI. On December 28, 2021, the DMV imposed an administrative per se suspension of his license based on this DUI arrest pursuant to section 13353.2. Freestone Decl., ¶10(e), Ex. 1. Because this was his first DUI, the suspension was for four months, from January 31 through May 30, 2022. Freestone Decl., ¶10(e).

Randolph requested an administrative per se hearing for the Riverside DUI arrest. On February 4, 2022, the DMV issued the Riverside DMV decision suspending Randolph’s license pursuant to 13353.2. Freestone Decl., ¶10(f), Exs. 1, 5. The suspension was for one-year, from February 11, 2022 through February 10, 2023, for a second violation within ten years under If section 13353.3(b)(2)(A). Freestone Decl., ¶10(f), Exs. 1, 5.

On March 2, 2022, Randolph pled guilty to the Riverside DUI. Randolph Decl., ¶9, Ex. 2. The court put him on probation for 60 months and required that he attend 22 Alcoholics Anonymous (“AA”) meetings and complete an impaired driver program. Ex. 2.

On March 17, 2022, the DMV issued an Order of Suspension automatically suspending Randolph’s license as a result of the Riverside DUI conviction under section 13352(a)(1). Ex. 6. Randolph’s DMV history also shows that his license was suspended for six months after a first DUI criminal conviction under §13352(a)(1)(A). Freestone Decl., ¶10(g), Ex. 1. The suspension was effective from March 2, 2022 to at least August 14, 2022. Ex. 6. After August 14, the DMV would lift the suspension only if Randolph provided proof of financial responsibility, a $55 reissuance fee, and proof of completion of a DUI program licensed under H&S Code section 11836. Ex. 6. However, Randolph could immediately apply for a restricted driver license to drive a vehicle with an IID per section 13352(a)(1). Ex. 6. The Order of Suspension was independent of any court action. Ex. 6.

On March 28, 2022, Randolph obtained a DMV California Insurance Proof Certificate (SR-22). Randolph Decl., ¶¶ 4-5, Ex. 7.

On April 19, 2022, Randolph enrolled in Academy’s 18-month DUI program. Randolph Decl., ¶10. Academy advised him that it would drop him if he did not attend class for 21 days after the program began and also advised him that it would drop him if he was convicted in court. Randolph Decl., ¶¶ 11-12. Academy provided him with a class schedule that showed that his first three scheduled activities were on May 4, 10, and 18, 2022. Randolph Decl., ¶13, Ex. 8.

Randolph installed the IID in his vehicle on April 20, 2022. Randolph Decl., ¶6; Freestone Decl., ¶10(b), Ex. 9. The DMV issued Randolph an IID restricted license on April 21, 2022, per sections 13352(a)(1), 13353.75, and 13353.6. Randolph Decl., ¶16; Freestone Decl., ¶¶ 10(h)-(j), Exs. 1, 10.

Monarch had events on May 4 and 10, 2022 and Randolph missed the Academy classes on those days. Randolph Decl., ¶15. He planned to attend the Academy class on May 18, 2022. Randolph Decl., ¶15. On May 12, 2022, the Academy issued a discharge report that terminated Randolph from the program for 21 days of non-activity with his last activity on April 19, 2022. Firestone Decl., ¶10(c), Exs. 1, 11. The report recommended reinstatement to complete all remaining hours. Firestone Decl., ¶10(c), Ex. 11.

On May 17, 2022, Randolph’s brother committed suicide. Randolph Decl., ¶17. On May 18, 2022, Academy informed Randolph of his termination from its program for 21 days of non-activity. Randolph Decl., ¶18. Randolph contacted the Academy to explain that his brother had passed away and that he (Randolph) had not failed to attend scheduled activities for 21 days. Randolph Decl., ¶19. The Academy advised Randolph that he needed to return to court to obtain another referral to the program, but that he should wait until his Los Angeles DUI was resolved because he would be dropped from the program upon conviction anyway. Randolph Decl., ¶19. Randolph decided to follow this advice. Randolph Decl., ¶20.

On July 14, 2022, Randolph pled nolo contendre to the Los Angeles DUI. Randolph Decl., ¶21, Ex. 3. On July 19, 2022, he enrolled in Gold Coast’s 18-month DUI program as a multiple offender. Randolph Decl., ¶22, Exs. 1, 12.

On August 1, 2022, the DMV issued an Order of Suspension automatically suspending Randolph’s license as a result of the Riverside and Los Angeles DUI convictions under section 13352(a)(3). Ex. 13. The suspension was effective from July 14, 2022. Ex. 13. To have his license restored, Randolph would have to prove installation of an IID and drive with the IID restriction on his license for 12 months, provide proof of financial responsibility, a $55 reissuance fee, and proof of completion of a DUI program licensed under H&S Code section 11836. Ex. 13. The Order of Suspension was independent of any court action. Ex. 13. To obtain an IID restricted license, Randolph would have to clear all other outstanding actions on his record, including suspensions and revocations. Ex. 13.

Also on August 1, 2022, the DMV issued an Order of Probation and Suspension suspending Randolph’s license, effective September 4, 2022, through March 2, 2023, pursuant to sections 12809(e), 13359, 14103, and 14250. Freestone Decl., ¶10(l), Ex. 14. The DMV found that Randolph was a negligent operator under section 12810.5 as a result of his two DUI convictions. Freestone Decl., ¶10(l), Ex. 14. The order informed Randolph that he could request a hearing to contest that he was a negligent operator. Freestone Decl., ¶10(l), Ex. 14. He had to surrender his license by September 4, 2022 if he did not. Freestone Decl., ¶10(l), Ex. 14.

On August 3, 2022, Randolph went to a DMV field office for an IID restricted license. Randolph Decl., ¶25. The DMV said that he was not eligible for an IID restricted license because of his suspensions for his termination from the Academy and his status as a negligent operator. Randolph Decl., ¶25.

On August 8, 2022, Randolph requested a hearing to contest his status as a negligent operator. Freestone Decl., ¶2. The DMV scheduled the hearing for November 1, 2022 but then rescheduled it for April 4, 2023. Freestone Decl., ¶2, Exs. 15-16.

On September 6, 2022, the DMV sent Randolph an Order of Suspension, effective September 10, 2022, for failure to comply with the terms of a DUI program pursuant to section 13352(e)(2). Ex. 17. The Order did not list the date of the offense. Ex. 17.

On September 16, 2022, the DMV sent Randolph two Orders of Suspension, both effective September 20, 2022, for failure to comply with the terms of a DUI program. Ex. 18. One Order was issued pursuant to section 13352(e)(2) and the other Order was issued pursuant to section 13353.75(a)(1)(C). Ex. 18. Both cited the violation date as September 17, 2021. Ex. 18.

Both of Randolph’s administrative per se decisions and the suspension for the Riverside DUI conviction have expired. Markelz Decl., ¶4.

As of January 19, 2023, Randolph’s driving record shows that his license was suspended for the second criminal conviction in the Los Angeles DUI case, effective July 14, 2022, pursuant to section 13353(a)(3). Freestone Decl., ¶11a. His license was suspended again on September 6 2022, pursuant to section 13352(e)(2) for failure to comply with a DUI education program, effective September 10, 2022. Freestone Decl., ¶11b, Ex. 19. His license also was suspended on September 16, 2022 pursuant to section 13353.75, effective September 20, 2022 and ending February 10, 2023. Freestone Decl., ¶11b, Ex. 19.

Randolph has remained sober and has not received a traffic ticket or been involved in a traffic accident since the Los Angeles DUI. Randolph Decl., ¶¶ 32 34. With an IID in place, Randolph cannot drive his vehicle if he has consumed alcohol. Randolph Decl., ¶35.

Randolph is a network engineer and cannot rely on public transportation for his driving needs. Randolph Decl., ¶¶ 27-28. Without the ability to drive, he cannot maintain employment in his profession and cannot meet his living expenses. Randolph Decl., ¶¶ 29-30. He also needs a vehicle to attend DUI program activities, primary care doctor’s appointments, dental visits, eye exams, and AA meetings. Randolph Decl., ¶31.

Petitioner Randolph seeks a preliminary injunction enjoining the DMV from suspending his IID restricted driver’s license during this action.

A person whose driver’s license is suspended by administrative per se suspension under sections 13353.2 and 13353.3 does not need to enroll in or complete a DUI program for reinstatement. Mot. at 17. Once the suspension ends, the only requirement is that he submits proof of financial responsibility (SR-22) per section 16431(b). Mot. at 17.

Randolph has a proof of financial responsibility on file (SR-22). His first four month administrative per se suspension for the Los Angeles DUI ended on May 30, 2022. Freestone Decl., ¶10(e). His one-year suspension imposed for the Riverside DUI after an administrative per se hearing for a second violation within ten years under section 13353.3(b)(2)(A) ran from February 11, 2022 through February 10, 2023, and has been completed. See Freestone Decl., ¶10(f), Exs. 1, 5. Both suspensions have expired and cannot serve as a basis for denying an IID restricted license.

Upon the first conviction for a DUI, a driver’s privilege shall be suspended for a period of six months. §13352(a)(1)(A). Upon a second conviction within ten years per section 23540, the privilege shall be suspended for a period of two years. §13352(a)(3)(A).

The DMV shall suspend a licensee’s restricted driving privileges upon receipt of notification from the DUI program that the person has failed to comply with the program requirements. §13352(e)(2).

On March 2, 2022, Randolph pled guilty to the Riverside DUI. Randolph Decl., ¶9, Ex. 2. As a result of the Riverside DUI conviction, on March 17, 2022 the DMV automatically suspended Randolph’s license for six months as a first offense under section 13352(a)(1). Ex. 6; Freestone Decl., ¶10(g), Ex. 1. The suspension was effective from March 2, 2022 to at least August 14, 2022. Ex. 6. After August 14, 2022, the DMV would lift the suspension only if Randolph provided proof of financial responsibility, a $55 reissuance fee, and proof of completion of a DUI program licensed under H&S Code section 11836. Ex. 6. The DUI program must be completed after the date of the current violation. §13352(a)(3)(A). Randolph could immediately apply for a restricted driver license to drive a vehicle with an IID per section 13352(a)(1). Ex. 6.

On April 19, 2022, Randolph enrolled in Academy’s DUI program. On April 20, 2022 he installed an IID in his vehicle. On April 21, 2022, Randolph obtained an IID restricted license for the March 2, 2022 Riverside conviction.

On May 10, 2022, Academy terminated him from its DUI program. On September 16, 2022, the DMV suspended Randolph’s license under section 13352(e)(2), effective September 20, 2022, for a violation on September 17, 2021 (the Riverside DUI). Ex. 18.

The Riverside DUI suspension ended on August 14, 2022 and remains in effect only because Randolph has not completed his DUI program. Since Randolph has not completed his DUI program, he is not eligible for reinstatement from the suspension for the Riverside conviction. See Mot. at 16-17.

Randolph was convicted of the Los Angeles DUI on July 14, 2022. Randolph Decl., ¶21, Ex. 3. As a result of his second DUI conviction within ten years, on August 1, 2022, the DMV automatically suspended Randolph’s license for two years under section 13352(a)(3). Ex. 13. The suspension was effective from July 14, 2022. Ex. 13. To have his license restored, Randolph must prove installation of an IID and drive with the IID restriction on his license for 12 months, provide proof of financial responsibility, a $55 reissuance fee, and proof of completion of a DUI program licensed under H&S Code section 11836. Ex. 13.

On September 6, 2022, the DMV suspended Randolph’s license under section 13352(e)(2), effective September 10, 2022, for failure to comply with the terms of a DUI program. Ex. 17. The suspension does not indicate the date of violation/conviction to which it relates. Id. On September 16, 2022, the DMV also suspended Randolph’s license under section 13353.75(a)(1)(C), effective September 20, 2022, for failure to comply with the terms of a DUI program. Ex. 18. Again, there is no indication of the date of violation/conviction to which it relates.

Randolph argues that his January 19, 2023 driving history report shows that the September 6 suspension is related to the Los Angeles DUI conviction and contends that this entry is an error. He was never issued a restricted license for suspension based on the Los Angeles conviction and the suspension cannot be based on his failure to complete a DUI program pursuant to a restricted license. Mot. at 18.

As the DMV notes, this is why the September 6, 2022 suspension cannot be based on the Los Angeles DUI conviction. Opp. at 11. The restricted license issued after Riverside DUI conviction included a requirement that Randolph attend a DUI program. Randolph Decl., ¶9, Ex. 2. Enrollment in a DUI program cannot predate the underlying conviction. §13352(a)(3). Randolph enrolled in Academy’s program on April 19, 2022, before his conviction for the Los Angeles DUI. Randolph Decl., ¶10. Therefore, the September 6 and 16 suspensions cannot relate to the Los Angeles DUI and must relate to the Riverside DUI. Randolph’s SAP acknowledged this fact, alleging that the September 6 suspension refers to his failure to complete the program with the Academy. SAP, ¶¶ 98-99.

Randolph has not demonstrated that the DMV erred in issuing the September 2022 suspensions.

A “DUI program shall dismiss from the program any participant who: “Fails to attend program services for 21 days or longer without obtaining a leave of absence in accordance with [9 CCR] section 9876.5….” 9 CCR §9886(a)(5).[5] The program shall provide the court, DMV, and program participant with an immediate report of any failure of the person to comply with the program’s rules and policies. H&S Code §11837.1(a). The DMV shall suspend a licensee’s restricted driving privileges upon receipt of notification from the driving-under-the-influence program that the person has failed to comply with the program requirements. §13352(e)(2); H&S Code §11837.1(b).

On April 19, 2022, Randolph enrolled in Academy’s 18-month DUI program. Randolph Decl., ¶10. The class schedule showed that the next three scheduled activities were on May 4, 10, and 18, 2022. Randolph Decl., ¶13, Ex. 8. Because Randolph’s rehabilitation program Monarch had events on May 4 and 10, 2022, Randolph missed the Academy classes on those days. Randolph Decl., ¶15. He planned to attend the class on May 18, 2022. Randolph Decl., ¶15. However, by May 12, 2022, the Academy had sent the DMV a discharge report that terminated Randolph from the program for 21 days of non-activity beginning April 19, 2022. Firestone Decl., ¶10(c), Exs. 1, 11.

Randolph asserts that the 21-day calculation pursuant to 9 CCR section 9886(a)(5) began on May 4, 2022, the first class he failed to attend. As a result, he was only absent for seven days when he was terminated by Academy on May 10. Mot. at 18.

The DMV responds that Randolph’s position lacks any supporting authority and asserts that Academy was correct to calculate the 21-days period beginning on April 19, 2022, the day that Randolph enrolled in the program. The DMV notes that Randolph failed to attend any program services for the first 21 days of his enrollment and argues that he was properly terminated. Randolph could have sought a leave of absence from the DUI program per 9 CCR section 9876.5 but did not do so. Opp. at 10-11.

Neither party provides authority for the proper construction of 9 CCR section 9886(a)(5) and the matter is not free from doubt. The plain language of the provision would suggest that attendance at “program services” is not the same as attendance at “classes”. On the other hand, the court has no evidence that DUI programs offer any program services other than classes. If they do not, then perhaps the term “program services” should mean classes, which would support Randolph’s position.

The policy behind the regulation – which is to require regular attendance -- may make more sense if the 21 days begins upon enrollment. Otherwise, if an enrollee attended a class and another class was not scheduled for another week, the 21-day period would not start until the missed class. Such an interpretation may not be consistent with the policy of requiring regular attendance. Public policy alone cannot control the interpretation of a regulation, however, and the court needs more information about the purpose and legislative history of the regulation to reach a conclusion.

At this stage, Randolph has not demonstrated a probability of success that Academy should not have dismissed him under 9 CCR section 9886(a)(5).

Randolph notes that he is not entitled to a hearing if the DMV action is mandatory under the Vehicle Code. §14101(a). The word “shall” in section 13352(e)(2) indicates that action is mandatory. §15. Randolph acknowledges that the automatic suspension of his license because of termination from his DUI program was required by section 13352(e)(2) and argues that the statute is an unconstitutional violation of due process without a hearing. He further acknowledges that only the court, not the DMV, may make this determination. Lockyer v. City and County of San Francisco, (2004) 33 Cal.4^th 1055 1068, 1081(official charged by statute with ministerial duty may not declare it unconstitutional); Lund v. California State Employees Assn., (1990) 222 Cal.App.3d 174, 183 (constitutional claim against statute need not be raised to agency enforcing it. Mot. at 19.

Randolph argues that the high court concluded in Bell v. Burson, (1971) 402 U.S. 535-37 and Dixon v. Love, (1977) 431 U.S. 105, 106, that a driver’s license issued by a state is a protected property interest that may not be suspended or revoked without due process, and in Mackey v. Montrym, (1979) 443 U.S. 1, 4, that due process is satisfied where an implied consent statute requires an immediate suspension for a refusal to take a chemical test if a post-suspension hearing is immediately available for correction of administrative error. Mot. at 19-20.

Randolph argues that he has no mechanism for review of the automatic suspension based on his suspension under sections 13352(e)(2) and 13353.75(a)(1)(C) for failure to comply with the terms of Academy’s DUI program. He acknowledges that a preliminary injunction generally cannot be issued to prevent the execution of a statute by public officers, but notes that injunctive relief is available where the officers operate under an unconstitutional statute. Randolph concludes that section 13352(e)(2) is unconstitutional as applied to him. Mot. at 20-21.

Determination of the dictates of due process generally requires consideration of four factors: (1) the private interest that will be affected by the individual action; (2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value, if any, of additional or substitute safeguards; (3) the dignitary interest of informing individuals of the nature, grounds and consequences of the action and of enabling them to present their side of the story before a responsible governmental official; and (4) the government interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Oberholzer v. Commission on Judicial Performance (“Oberholzer”) (1999) 20 Cal.4th 371, 390-91, n. 16 (citing Mathews v. Eldridge (“Mathews”) (1976) 424 U.S. 319, 334).

As the DMV notes (Opp. at 12-13), Randolph bears a heavy burden in demonstrating that section 13352(e) violates due process. City of Los Angeles v. Superior Court, (2002) 29 Cal.4^th 1, 10-11. Randolph’s moving papers fail to meet that burden because they do not make any effort to weigh the private and governmental interests in the deprivation, the risk of erroneous deprivation, and the dignity interest. Randolph purports to do so in reply after the DMV’s opposition discusses them, but this is insufficient. The DMV was entitled to know Randolph’s position on this weighing process from his moving papers and the court is entitled to have the DMV’s assessment of Randolph’s discussion before it.

At this stage, Randolph has not demonstrated a probability of success on the merits.[6]

In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Id.

Randolph asserts that as a network engineer, he cannot rely on public transportation for his driving needs. Randolph Decl., ¶¶ 27-28. Without the ability to drive, he cannot maintain employment in his profession and cannot meet his living expenses. Randolph Decl., ¶¶ 29-30. He also needs a vehicle to attend DUI program activities, primary care doctor’s appointments, dental visits, eye exams, and AA meetings. Randolph Decl., ¶31.

As the DMV notes, Randolph’s claim that public transportation or alternatives such as Uber or Lyft cannot meet his needs is too broad. Opp. at 19. The suspension has been in effect for several months and Randolph should have examples of how this restriction has hindered him, including evidence of client visits he could not make as a network engineer, complaints from his supervisors about decreased efficiency, and notes about missed doctor and dental appointments.

The DMV asserts that there is a compelling government interest in keeping the roads safe by making sure that drivers with two prior DUI convictions do not drive again until they are authorized to do so. Opp. at 19. This is true, but Randolph only asks for restoration of his IID restricted license, and the IID reduces the public harm because Randolph cannot drive the vehicle if he consumes alcohol beforehand. Randolph Decl., ¶35, Ex. 10. Randolph also provides evidence that he has not consumed alcohol, received a traffic ticket, or been involved in a traffic accident since the Los Angeles DUI arrest. Randolph Decl., ¶¶ 32, 34, Ex. 1.

CCP section 1094.5(g) requires that a stay not be against the public interest. Neither party directly addresses this issue, instead doing so by discussing the balancing of the parties’ harms. While there is a strong public interest in preventing a person with two DUI convictions from driving unless authorized by law, the Vehicle Code provisions at issue demonstrate that the Legislature believes it is better to allow a DUI offender with a second conviction to drive with an IID than to face the risk that he or she will drive unlawfully without one. See i§13352(a)(3)(E). The public interest lies in permitting Randolph to drive with and IID.[7]

The motion for a preliminary injunction will be continued for the parties to provide supplemental briefing that addresses two issues for purposes of probability of success: (a) the proper interpretation of 9 CCR section 9886(a)(5), including the DHCS’s statements of purpose, intent, or prior construction, including whether Randolph’s suspension from the program was required as a matter of law; and (b) the Mathews v. Eldridge/Oberholzer factors for the constitutionality of section 13352(e) as applied to Randolph’s case.

The court asked for supplemental briefing on (1) whether the proper interpretation of 9 CCR section 9886(a)(5) required Randolph’s suspension from the DUI program as a matter of law, and (2) application of the Mathews v. Eldridge/Oberholzer factors to section 13352(e) as applied to Randolph.

H&S Code section 11836(a) authorizes the Department of Health Care Services (“DHCS”) to license private entities to provide DUI education programs for specified Vehicle Code convictions and administrative suspensions. H&S Code section 11836.15 authorizes DHCS to adopt regulations for the guidance of the DUI programs, which shall include (a) application requirements, (b) service requirements, (c) reporting requirements, (d) staff qualifications, (e) management and documentation of participant records, and (f) licensure fee assessment and collection procedures. These regulations are codified in 9 CCR.

A DUI program may enroll any person who presents documentation from the court or the DMV verifying an arrest or conviction for an applicable DUI violation specified in H&S Code section 11836(a). 9 CCR §9848(a). The documentation shall state whether it is the first, second, or third DUI violation. 9 CCR §9848(a).

Before a potential participant receives services from a DUI program, the program shall conduct an intake interview and enroll the participant in the program. 9 CCR §9848(d). As part of this process, DUI program staff shall explain the counseling, education, and face-to-face interview requirements, attendance requirements, procedures for requesting a leave of absence, and reasons for dismissal from the program. 9 CCR §9848(d)(1)(C).

Staff shall also complete a participant contract listing the services to be provided, program rules, grievance procedures, program fees, additional fees, payment schedule and reasons for dismissal from the program per 9 CCR section 9886. 9 CCR §9848(d)(1)(D).

After the DUI program staff conducts the intake interview, it shall enroll the participant by scheduling program services and providing a written list of the date, time, and location of program activities the participant is scheduled to attend. 9 CCR §9848(d)(2)(B)-(C). The DUI program shall begin providing services (i.e., face-to-face interviews, educational sessions, and group counseling sessions) within 21 days of the date that it enrolls a participant). 9 CCR §9848(f).

During the first 12 months of an 18-month multiple offender program, the program shall require a participant to complete (A) 12 hours of alcohol and other drug-related educational sessions in accordance with 9 CCR section 9852, (B) 52 hours of group counseling sessions in accordance with 9 CCR section 9854, (C) one face-to-face interview every other week in accordance with 9 CCR section 9858 from the initial date of enrollment until completion of the aforementioned educational and group counseling sessions, and (D) any additional county requirements approved pursuant to 9 CCR section 9860. 9 CCR §9851(e)(1).

The educational sessions and group counseling sessions shall be no less than one hour and no more than two hours in length. 9 CCR §§ 9852(a), 9854(a). The private, face-to-face interviews are to (1) monitor payment of fees, (2) discuss and encourage participant attendance in educational sessions and counseling sessions, (3) discuss and identify problems which may be barriers to program completion, including progress in group and other counseling sessions, and (4) evaluate the participant's need for referral to ancillary services. 9 CCR §9858(a). These interviews shall be on a regularly scheduled basis, rather than a drop-in basis. 9 CCR §9858(c).

The DUI program shall dismiss from the program any participant who, inter alia, fails to attend program services for 21 days or longer without a leave of absence in accordance with 9 CCR section 9876.5. 9 CCR §9886(a)(5). “Program services” are defined as all services which the DUI program is required to provide in accordance with 9 CCR section 9848 et seq., including participant enrollment under 9 CCR section 9848. 9 CCR §9800(a)(23).

The current language of 9 CCR sections 9795-83 stems from amendments proposed in 2012 by the Department of Drug and Alcohol Programs. Chern Decl., ¶5, Ex. C. The amendments revise the definitions of Drinking Driver Program, Multiple Offender, Significant Other, and Working Days. Ex. C. The revisions did not change the definition of “program services” in 9 CCR section 9800(a)(23). Ex. C.

On March 22, 2012, the Office of Administrative Law approved the amendments. Chern Decl., ¶6, Ex. D. The redlined copy of the proposed regulatory text shows that the definition of “program services” in 9 CCR section 9800(a)(23) remained unchanged. Ex. D. The amendment to 9 CCR section 9886(a)(5) changed a condition of program dismissal from “Fails to obtain a leave of absence…when the participant is unable to attend any scheduled program services for 21 days or longer” to “Fails to attend program services for 21 days or longer without obtaining a leave of absence….” Ex. D.

Regulations and statutes are subject to the same rules of construction. Lusardi Construction Co. v. California Occupational Safety &Health Appeals Bd. (1991) 1 Cal.App.4th 639, 647. When interpreting an administrative regulation, the courts follow the same rules of construction that apply to statutes. Dep't of Indus. Relations v. Occupational Safety & Health Appeals Bd., (“Relations”) (2018), 26 Cal. App. 5th 93, 100. The fundamental objective is to ascertain and effectuate the intent of the issuing agency. Id. In determining that intent, if the language is clear and unambiguous, there is no need for construction, nor is it necessary to resort to indicia of the intent of the agency. Id. If construction is needed, one rule of construction is to construe a regulation with reference to the scheme of law of which it is a part so that the whole may be harmonized and retain effectiveness. 26 Cal.App.5^th at 101.

Randolph notes that 9 CCR section 9851(e)(1) lists the requirements that a participant in an 18-month multiple offender DUI program must complete by the end of the first 12 months. He notes that 9 CCR provides that, before a participant “receives services” from a DUI program, the program shall conduct an intake interview and enroll the participant. 9 CCR section 9848(d)(1). Rand. Supp. Br. at 4. Similarly, 9 CCR section 9848(f) states that the DUI program shall “begin providing services” within 21 days of the date that it enrolls a participant. Rand. Supp. Br. at 4-5. Those services include “face-to-face interviews, educational sessions, and group counseling sessions.” 9 CCR §9848(f).

Randolph asserts that, if DUI program services must begin after the intake interview under 9 CCR section §9848, such services cannot include the intake interview. This means that the intake interview cannot trigger the requirement that a participant attend a program service within 21 days to avoid dismissal pursuant to 9 CCR section 9886(a)(5). Rather, the 21-day period does not begin until the first program service after the intake interview. Randolph’s first scheduled service after enrollment was on May 4, 2022. He had only failed to attend services for seven days when the DUI program terminated him on May 10, 2022. Randolph Decl., ¶13, Ex. 8. Rand. Supp. Br. at 5.

Randolph’s interpretation contradicts the plain meaning of the regulations. The definitions in Chapter 9 are set forth in 9 CCR section 9800(a). “Program services” are defined as all services which the DUI program is required to provide in accordance with 9 CCR section 9848 et seq., including participant enrollment under 9 CCR section 9848. 9 CCR §9800(a)(23). This definition existed prior to the 2012 amendments to the regulations. Chern Decl., ¶¶ 5-6, Exs. C-D.

Thus, the definition of “program services” in 9 CCR section 9800(a)(23) includes the participant’s enrollment. The interpretation of a regulation must be harmonized with the statutory scheme and other regulations, if possible. Relations, supra, 26 Cal. App. 5th at 101. Are 9 CCR section 9848(d)(1) and 9 CCR section 9848(f) incompatible with the definition of “program services” in 9 CCR section 9800(a)(23)?

They are not. Randolph argues that he has no mechanism for review of the automatic suspension based on his suspension under sections 13352(e)(2) and 13353.75(a)(1)(C) for failure to comply with the terms of Academy’s DUI program. A “DUI program shall dismiss from the program any participant who: “Fails to attend program services for 21 days or longer without obtaining a leave of absence in accordance with [9 CCR] section 9876.5….” 9 CCR §9886(a)(5) (emphasis added). 9 CCR sections 9848(d)(1) provides that, before a participant “receives services” from a DUI program, the program shall conduct an intake interview and enroll the participant. 9 CCR section 9848(f) states that the DUI program shall “begin providing services” within 21 days of the date that it enrolls a participant. These provisions refer to services, not program services. The defined term “program services” for which a participant can be dismissed for failure to attend under 9 CCR section 9886(a)(5), is broader than and distinct from, the “services” provided after enrollment.

Randolph’s intake interview qualified as a program service that began the 21-day period within which Randolph was required to attend another service to avoid termination. Randolph completed enrollment on April 19, 2022 and the 21-day period elapsed on May 10, 2022, the day that the program terminated Randolph. Randolph Decl., ¶10. His termination was required under 9 CCR section 9886(a)(5).

Although Randolph was properly dismissed from the DUI program, the second issue is whether he entitled to some process from the DMV before suspension of his driving privilege under section 13352? This determination of what process was due requires application of the Mathews/Oberholzer factors to section 13352(e) as applied to Randolph.

Determination of the dictates of due process generally requires consideration of four factors: (1) the private interest that will be affected by the individual action; (2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value, if any, of additional or substitute safeguards; (3) the dignitary interest of informing individuals of the nature, grounds and consequences of the action and of enabling them to present their side of the story before a responsible governmental official; and (4) the government interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Oberholzer, supra, 20 Cal.4th at 390-91, n. 16 (citing Mathews, supra, 424 U.S. at 334).

Randolph asserts that his driver’s license cannot be suspended without due process of law. A state cannot take away a license without due process because it becomes a “right” more than a “privilege”. Bell v. Burson, (“Bell”) (1971) 402 U.S. 535, 539. The suspension of a driver’s license for statutorily defined cause must comport with due process requirements to protect against erroneous deprivation of the driver’s property interest in that license (Peretto v. Department of Motor Vehicles, (1991) 235 Cal.App.3d 449, 459), and due process may require a hearing where the statute does not. See Horn v. County of Ventura, (1979) 24 Cal.3d 605, 616. Rand. Supp. Br. at 6.

Randolph argues that the Mathews/Oberholzer factors do not apply in his case. Mathews concerned the termination of Social Security Administration (“SSA”) benefits, which by statute only happens after the beneficiary receives a summary of the evidence, an opportunity to respond in writing, and a chance to seek reconsideration. 424 U.S. at 338-39. After reconsideration is denied, the person is entitled to an evidentiary hearing before an administrative law judge. Id. at 339. The question before the high court was whether the SSA could terminate benefits after the request for reconsideration was denied but before the evidentiary hearing. Id. at 323. Applying the pertinent factors, the court held that the statutory procedure comported with due process. Id. at 340-49. Randolph Supp. Br. at 5-6.

In Oberholzer, supra, 20 Cal.4th at 375-377, Hon. Richard Oberholzer received a letter inviting him to comment on a report before the Commission of Judicial Performance (“CJP”). A second letter informed Oberholzer that the CJP had launched a preliminary investigation and gave him the opportunity to comment. Id. at 382. Oberholzer submitted a written response. Id. at 383. The CJP closed the matter with a “severe advisory matter,” and Oberholzer filed a mandamus petition asserting that due process had not been satisfied because he had not received any hearing and no opportunity to confront and cross-examine witnesses. Id. at 390. The court explained that he received notice and an opportunity to respond, which was all that was required; a full evidentiary hearing was unnecessary. Id. at 392.

Randolph contends that the administrative procedure in both Mathews and Oberholzer provided the petitioner with some notice of the intended action and an opportunity to respond. Randolph Supp. Br. at 5-6. Unlike those cases, section 13352(e) did not entitle Randolph to any form of review before the DMV suspended his license. This is a matter in which no protections were given to him, not a matter in which the current protections are inadequate, and the Mathews/Oberhozer do not apply. Randolph Supp. Br. at 7.

Randolph misunderstands the purpose of the Mathews/Oberholzer test. Both cases ask what process was the petitioner entitled to by constitutional principles. In both cases, the petitioner sought a pre-deprivation evidentiary hearing. Mathews, supra, 424 U.S. at 323; Oberholzer, supra, 20 Cal.4th at 390. It does not matter whether that particular process is at issue, however, in applying the Mathews/Oberholzer balancing test. The test addresses whether more process is required than a particular statutory scheme provides.

In this case, the DUI program shall dismiss from the program any participant for one of eight reasons, one of which is that the participant fails to attend program services for 21 days or longer without a leave of absence in accordance with 9 CCR section 9876.5. 9 CCR §9886(a)(5). Upon receipt of notice from the DUI program that the person failed to complete the program requirements, the DMV is required to terminate the driver’s restricted license issued pursuant to section 13352(a) and suspend or revoke the person’s license. §13352(e). The person’s driving privilege shall remain suspended or revoked until all reinstatement requirements are met. Id. Similarly, if a person issued a restricted license fails to participation in the DUI program, the DMV shall immediately terminate the restriction and reinstate the suspension of the privilege to operate a motor vehicle. §13353.75(a)(1) (C). The DMV shall give notice of the suspension. Id.

Thus, a driver who has a restricted license and is in a DUI program under sections 13352 or 13353.75, and who is terminated from the DUI program pursuant to 9 CCR section 9886(a), receives notice of the termination of his or her restricted license and reinstatement of the suspension but does not have an opportunity to be heard by the DMV.

The four-factor test of Mathews/Oberholzer applies to whether due process requires more for Randolph than sections 13352(e) and 13353.75(a)(1)(C) provide. While the right to a driver’s license is fundamental such that administrative decisions are subject to independent judicial review, it is not fundamental for equal protection purposes and does not merit strict scrutiny. Berlinghieri v. Department of Motor Vehicles, (“Berlinghieri”) (1983) 33 Cal.3d 392, 397. Driving is a matter of great practical importance, but it has never been given the status of a fundamental right for equal protection purposes. Snelgrove v. Department of Motor Vehicles (“Snelgrove”) (1987) 194 Cal.App.3d 1364, 1376, Id. at 1376. It always has been subject to substantive police power regulation so long as it is exercised consistently with procedural due process. Id. The two distinct uses of the term “fundamental” should not be blurred. Berlinghieri, supra, 33 Cal.3d at 397; Snelgrove, supra, 194 Cal.App.3d at 1376.

Due process is the opportunity to be heard at a meaningful timeand in a meaningful manner. Mathews, supra, 424 U.S. at 333. Due process is flexible and calls for such procedural protections as the particular situation demands. Id. As such, it is a fluid concept. Snelgrove, supra, 194 Cal.App.3d at 1376. Randolph bears a heavy burden in demonstrating that the notice of reinstatement of his suspension under section 13353.75 violates due process. City of Los Angeles v. Superior Court, (2002) 29 Cal.4^th 1, 10-11. Randolph has not provided supplemental briefing on the issue and instead incorporates by reference the arguments in his reply brief. Randolph Supp. Br. at 6, n. 5 (citing Reply at 3-8).

Randolph argues that a driver’s license is fundamental because it is essential to livelihood (Bell, supra, 402 U.S. at 539), and an IID restricted license allows him to pursue his livelihood. Reply at 4; Randolph Decl. ¶¶ 27-31.

DMV notes that, after his Riverside DUI conviction, Randolph only has a restricted license permitting him to drive to and from work and to and from his DUI program. Therefore, his private interest is limited. DMV Supp. Br. at 5-6.

Randolph’s license has been suspended under section 13352 and he has been issued a restricted license under section 13353.75. Randolph’s interest in a restricted license affects an important property interest, but this interest is limited by the fact that it is not unrestricted. Randolph’s private interest in the suspension of his restricted license is substantial but not high.

Randolph asserts that the risk of erroneous deprivation is high because section 13352(e)(2) entails license suspension for all dismissals from a DUI program. Reply at 5. Some reasons for dismissal -- such as 9 CCR section 9886(a)(8)’s requirement that a participant not be physically or verbally abusive or acts in a threatening manner to DUI program staff -- are subjective. Reply at 5.

Randolph cannot rely on any reason for dismissal in 9 CCR section 9886 except his own. He is not making a facial challenge; his due process claim is an as-applied challenge. Mot. at 21. As a result, the risk of erroneous dismissal from a DUI program for reasons other than failure to attend program services per 9 CCR section 9886(a)(5) is irrelevant.

The DMV argues that procedural due process applies to governmental decisions which are adjudicative in nature, not those which are ministerial or legislative in nature. Linovitz Capo Shores LLC v. California Coastal Commission (2021) 65 Cal.App.5th 1106, 1122. The DMV had a ministerial duty to reinstate Randolph’s suspension for his failure to attend program services. 9 CCR section 9886(a)(5). No procedural due process is required for its decision. DMV Supp. Br. at 6.

Despite the ministerial nature of the process, there remains an issue whether the DMV should blinding accept the DUI program’s decision that Randolph’s dismissal from the program was required.

Randolph asserts that there is subjectivity and room for error when the DUI program grants a request for a leave of absence under 9 CCR section 9876.5(a). Reply at 5. Randolph never asserted that he filed for a leave of absence. Again, this is not part of his as-applied challenge. Additionally, the program’s degree of subjectivity in granting a request for leave is circumscribed by the reasons on which a request can be granted. 9 CCR §9876.5(e). Randolph’s excuse that he was attending an outpatient rehabilitation program is not one of them. See Randolph Decl., ¶33, Ex. 4.[9]

There are some circumstances in which the DUI program’s dismissal is subject to a risk of erroneous deprivation, such as dismissal for physical or verbal abuse to DUI program staff. Dismissal for failure to attend program services is not one of them. The risk of erroneous deprivation by the DUI program in dismissing Randolph for failure to attend program services is modest.

The third factor is dignitary interest of informing individuals of the nature, grounds, and consequences of the action and of enabling them to present their side of the story before a responsible governmental official. Oberholzer, supra, 20 Cal. 4th at 391. Randolph asserts that the circumstances of this case demonstrate that he has this interest to a high degree. Reply at 6.

DMV asserts (DMV Supp. Br. at 6) that Randolph’s dignitary interest is minimal because he can plead his case to a court via a mandamus action. DMV cites (Opp. at 17-18) Rodriguez v. Department of Real Estate, (“Rodriguez”) (1996) 51 Cal.App.4th 1289, 1299-1300, in which the court held that suspension of a broker’s license without a statutory pre-deprivation hearing did not violate due process. In analyzing the risk of erroneous deprivation, the court observed in part that a broker has the right to challenge an adverse decision by traditional mandate. Id. at 1298. The court found that the broker’s dignitary interest was minimal because the claimant must notify the broker of the claim and the consequences if the claim is granted. Id. at 1298-99. The broker then has the right to present a written opposition to the Commissioner of the Department of Real Estate. Id. at 1299. As a result, a formal hearing would not add to the integrity of the process. Id.

Rodriguez does not suggest that resort to mandamus in the court by itself is sufficient to protect dignitary interests.

Randolph would appear to have a substantial interest in being informed of his dismissal for failure to attend program services and the consequence of his action and the opportunity to present his side of the story. He does not present much evidence on this issue.

On April 19, 2022, Randolph enrolled in Academy’s DUI program. On May 12, 2022, Academy issued a discharge report that terminated Randolph from the program for 21 days of non-activity with his last activity on April 19, 2022. Firestone Decl., ¶10(c), Exs. 1, 11. On May 18, 2022, Academy informed Randolph of his termination from its program for 21 days of non-activity. Randolph Decl., ¶18. Randolph contacted the Academy to explain that his brother had passed away and that he (Randolph) had not failed to attend scheduled activities for 21 days. Randolph Decl., ¶19. On September 16, 2022, the DMV suspended Randolph’s license under section 13352(e)(2), effective September 20, 2022, for a violation on September 17, 2021 (the Riverside DUI). Ex. 18.

There is no evidence of Academy’s response to Randolph’s argument about his brother and no evidence whether he contacted the DMV to review Academy’s decision. Nonetheless, Randolph’s dignitary interest is a substantial interest in favor of additional process by the DMV.

The DMV asserts (Opp. at 14; DMV Supp. Br. at 6) that it has a substantial government interest in not providing a hearing. The substantial public interest in administrative efficiency would be impeded by the availability of a pretermination hearing in every case. Dixon v. Love, (1977) 431 U.S. 105, 114. There is also substantial interest in keeping the roads safe from those who, by the nature of section 13352, have proven themselves less trustworthy to drive. Pollack v. Department of Motor Vehicles, (1985), 38 Cal.3d at 367, 380-381. This interest is more acute because Randolph has been convicted of DUI twice. The IID restriction does not remove this interest because a drunk driver can get a clean reading by having a sober passenger blow into the device. Opp. at 15.

Randolph asks why both first-time and second-time DUI drivers qualify for restricted licenses if a second offense makes someone more dangerous? Reply at 6.

The answer is that the mere eligibility for an IID restricted license does not make the two groups equal. Upon the first conviction or finding of a DUI, the privilege shall be suspended for a period of six months. §13352(a)(1)(A). Upon a second conviction within ten years per section 23540, the privilege shall be suspended for a period of two years. §13352(a)(3)(A). That 18-month difference persists if the drivers apply for IID restricted licenses. This law acknowledges that someone who decided to drive under the influence twice is more reckless and dangerous than someone who did so once.

Randolph argues that a requirement that the DMV provide notice and an administrative hearing to every DUI driver on a restricted license before revocation cannot be burdensome because it is required to do so for other violations. §§ 14100(a), (c). Reply at 7.

The hearing rights argued by Randolph are not the same as his own. Due process may require a hearing in some contexts and not others. Randolph’s argument is that due process requires that the DMV not reinstate his license suspension under section 13352(e)(2) until he has an administrative hearing. Not every deprivation requires an administrative hearing.

Randolph asserts that the DMV does not proffer a single fact of fiscal or administrative burden that a right to a pre- or post-suspension hearing would create. Reply at 7. It also does not address what governmental interest justifies denying a driver the opportunity to respond after an allegedly erroneous removal from a DUI program. Reply at 7. The DMV is not required to present evidence on this issue. The burden it will face if it must administer a hearing when a participant is dropped from a DUI program is self-evident and need not be quantified. See DMV Supp. Br. at 7.

DMV has a significant public interest in not offering an administrative hearing to contest every license suspension reinstated for failure to complete a DUI program under section 13352(e)(2).

In some circumstances, the DMV may be required by due process to provide a hearing when it reinstates a license suspension for failure to complete a DUI program under 9 CCR section 9886(a). Randolph has not demonstrated that his dismissal from Academy’s program for failure to attend program services under 9 CCR section 9886(a)(5) is one of them.

Even if he has shown that his due process rights were violated because the DMV should have given him an opportunity to argue his side of dismissal from the DUI program, the error is harmless. 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).

Randolph has not met this requirement because he makes no showing of a reasonable prosect that he could have avoided reinstatement of his suspension of the DMV had reviewed Academy’s decision to dismiss him from the DUI program. He was dismissed for failure to attend program services on a timely basis and demonstrates no error in that decision.

[1] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction — one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

[2] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).

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

[4] For purposes of this motion, the court need not distinguish between driving with a .08 or greater blood alcohol content (§23152(b)) and driving under the influence (§23152(a)).

[5] The Department of Health Care Services (“DHCS”) has sole authority to license DUI programs. H&S Code §11836. A court may refer a person only to licensed programs. H&S Code §11837.2(a)(1).

[6] Randolph will have an administrative suspension hearing on April 4, 2023 for the DMV’s contention that he was a negligent operator of a vehicle. A person with a point count of four or more points in 12 months shall be presumed to be a negligent operator of a motor vehicle. §12810.5. Randolph points out that each of his DUI convictions is worth two points and argues that he has not had four points within the past 12 months. Mot. at 23.

Randolph’s argument is premised on a conclusion that the pertinent period is the 12 months before the administrative hearing as opposed to the 12 months before the date of his suspension. Randolph had 4 points at the time of his September 2022 suspension and his administrative suspension was stayed pending the hearing determination (§§ 13558(b), (d), (e)), meaning that the suspension was based on the point total at the time of suspension. The stay on Randolph’s suspension may well be lifted by the DMV on April 4, 2023.

[7] The DMV argues that Randolph can achieve his opportunity to be heard through the criminal court’s jurisdiction over his compliance with the DUI program or a traditional mandamus claim against Academy. Opp. at 17. The Riverside DUI criminal court has jurisdiction over Randolph’s criminal case, including his compliance with his DUI program, under H&S Code section 11837.2. While the criminal court can order Randolph to be reinstated to a DUI program, it has no jurisdiction to order that the DMV give him a restricted license under section 13352.5.

The DMV also argues that Randolph has a remedy of traditional mandamus against Academy, citing Rodriguez v. Department of Real Estate, (“Rodriguez”) (1996) 51 Cal.App.4^th 1289. Opp. at 17-18.

Rodriquez concerned the suspension of a real estate broker’s license after the real estate department granted the claim for payment by a client defrauded by the broker. Id. at 1289. The administrative procedure permitted the department to rule on the client’s claim after notification to the broker and receipt of written argument. Id. at 1289. In notifying the broker of the claim, the department informed the broker that, if the claim was granted, his license would automatically be suspended until such time as he reimbursed the department for its payment to the client. Id. This notice and opportunity to be heard satisfied due process. Id.

Rodriguez is distinguishable as a case in which due process was satisfied by notice and an opportunity to be heard on the ground that caused his automatic suspension – payment of the client’s claim -- whereas Randolph has not had an opportunity to be heard on his violation of DUI program requirements. Randolph also is correct that an agency cannot avoid its due process obligations by compelling him to sue a third party. Reply at 8.

[8] DMV failed to lodge a courtesy copy of its supplemental brief in violation of the Presiding Judge’s First Amended General Order for electronic filing. Counsel is admonished to provide courtesy copies in all future filings.

[9] A leave may be granted for participating in a residential alcoholism or drug rehabilitation program. 9 CCR §9876.5(e).