Judge James C. Chalfant, Case 22STCP04159 2023-02-02 Tentative Ruling

Sabrina Dethloff v. Department of Motor Vehicles, 22STCP04159

Tentative decision on motion to stay license suspension: denied

Petitioner Sabrina Dethloff (“Dethloff”) seeks a stay of the decision by Respondent Department of Motor Vehicles (“DMV”) to suspend her driver’s license.

The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

Petitioner Dethloff filed a Petition for writ of administrative mandamus on November 21, 2022. The Petition alleges in pertinent part as follows.

On June 25, 2021, Dethloff was arrested for driving under the influence of alcohol (“DUI”). California Highway Patrol (“CHP”) Officer Lanius stated in his arrest report that he stopped Dethloff because she was following the truck in front of her too closely and veering her vehicle to the right into the solid painted white fog line. He reported that Dethloff refused to submit to a chemical test and agreed to submit to a breath test only after being shown an executed search warrant to obtain a blood sample.

On September 22, 2021, DMV granted Dethloff of an Administrative Per Se hearing pursuant to Vehicle Code section 13558. Hearing Officer J. Trinidad (“Trinidad”) did not believe that this was a refusal case and set the matter for an Administrative Hearing Per Se - .08%. On May 18, 2022, DMV informed counsel via email that the hearing was going to be a Refusal hearing, with DMV representative Cherrie Wallace (“Wallace”) as DMV’s hearing advocate and Hearing Officer Kenya Myers (“Myers”) as trier-of-fact.

The hearing occurred on May 20 and November 1, 2022. During the first hearing, Dethloff objected to a trier of fact employed by the same branch that sought to suspend her license. The hearing still went forward.

Lanius testified to facts different than those in his police report and in his affidavit to support the arrest warrant. He said that Dethloff did not agree to a breath test until after he obtained a signed warrant and presented it to her, but the signature on the warrant was two minutes after her first sample. Lanius could not explain this at the hearing.

During the second hearing, Wallace was absent and Myers acted as both trier of fact and DMV advocate. Dethloff objected that the hearing officer was not fair and impartial. Dethloff testified at this hearing that she did not decline and was confused about the process of providing a breath or a blood sample. The arresting officer did not advise her of the consequences of refusal, and the loud voice of passerby vehicles prevented her from hearing him. She believed that he transported her to the police station to provide a blood sample. Lanius never showed her the search warrant.

On November 7, 2022, the hearing officer issued a decision suspending Dethloff’s license for one year.

Dethloff seeks (1) a writ of mandate compelling the DMV to set aside the decision; (2) a stay of the DMV suspension; (3) an order for the DMV to remove any mention of this suspension or the underlying arrest from Dethloff’s driving record; and (4) reasonable attorney’s fees.

On November 28, 2022, the court denied Dethloff’s ex parte application to stay her license suspension for failure to show a reasonable probability of success or that it would not be against the public interest to grant a stay. The court ordered that if she makes a noticed motion for a stay, she must comply with CCP section 1008(b) except for its requirement that she show due diligence.

Dethloff served the instant motion by mail on December 8, 2022. DMV has made no appearance in this case.

Pursuant to CCP section 1094.5(g), the court may stay the operation of the administrative order or decision pending judgment, or until the filing of a notice of appeal from the judgment or until the expiration of the time for filing the notice, whichever occurs first. A stay may not be granted if it would be against the public interest. Id.

In addition to CCP section 1094.5(g)’s requirement that a stay must not be against the public interest, the applicant must show both some prospect of success and irreparable harm to obtain a stay. The reason is that a stay is a form of preliminary injunction. 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 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.

Although no case has so held, the court believes that the reasonable probability of success on the merits is relaxed for purposes of a stay to a “colorable claim”, which is the standard in federal court. The required showing is a sliding scale; the stronger the showing of a colorable claim, the less irreparable harm is necessary. Both, however, must be present to some degree along with the public interest.

Thus, a request for a stay under CCP section 1094.5(g) presents three elements: (a) a colorable claim by the petitioner, (b) balancing of irreparable harms, and (c) the stay will not be against the public interest. The burden is on the petitioner to establish the criteria for a stay, and the decision is committed to the court’s discretion. The decision to grant any 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 party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP §1008(b). For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion. CCP §1008(b).

A motion for reconsideration constitutes the exclusive means for a party seeking modification, amendment or revocation of an order. Morite of Calif. v. Sup. Ct. (1993) 19 Cal.App.4th 485, 490. To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi, (1997) 58 Cal.App.4th 674, 690. A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.

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

Vehicle Code^{^[1]} 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 23153 provides that these same circumstances are a crime where they resulted in injuries to anyone other than the driver. Section 23612(a) provides that any driver is deemed to have given consent to chemical testing of blood or breath for purposes of testing alcohol content if lawfully arrested for violation of sections 23140, 23152, or 23153. Section 23612(d)(2) provides that the driver is deemed to consent to a urine test of alcohol content if blood or breath are not available.

Section 23612(a)(2)(A) provides that if a person is arrested for driving under the influence of an alcoholic beverage, the person has a choice of two tests: blood or breath. 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).

Section 13357 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. Section 13558 permits an administrative hearing to challenge the “administrative per se” suspension. The suspension or revocation is for one, two or three years, depending upon the nature and recency of prior violations. Section 13557(b) describes the only four issues that need be considered at a DMV license suspension hearing: (1) 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; (2) that the person was placed under lawful arrest or lawfully detained; (3) that the person refused or failed to complete the chemical test or tests after being requested by a peace officer; and (4) 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, (“McDonnell”) (1975) 45 Cal.App.3d 653, 659; Jones v. Dept. of Motor Vehicles, (“Jones”) (1977) 71 Cal.App.3d, 615, 620. “If the evidence shows the officer made ambiguous or conflicting statements, that evidence has a bearing on whether ... the response of the driver indicated his confusion rather than his refusal to perform a statutory duty.” Goodman v. Orr, (1971) 19 Cal.App.3d 845, 853. If the driver manifests confusion, then the officer is obliged to make a clarifying statement. Id. Once the clarifying statement is made, the refusal is no longer excused. Id., at p. 856.

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

Dethloff is a Consumer Safety Officer with the Food and Drug Administration. Dethloff Decl., ¶4. Dethloff conducts in-person inspections of importers and collects and examines samples of imported food. Dethloff Decl., ¶5. These inspections require her to drive her government-issued vehicle, which makes her license a necessity in her employment. Dethloff Decl., ¶¶ 6-7.

Before the events underlying this action, Dethloff was convicted of a DUI in 1997. Dethloff Decl., ¶9; Kay Decl., ¶5, Ex. D.

On May 24, 2022, the DMV stayed her suspension pending its decision. Kay Decl., ¶5, Ex. D. Since her arrest for this matter on June 25, 2021, Dethloff has had no police contact or posed any public danger. Kay Decl., ¶6.

When CHP Officer Lanius pulled over Dethloff on June 25, 2021, she was confused about the process of submitting to a chemical test per the implied consent law. Dethloff Decl., ¶2. The fact that she could not hear Lanius’s complete chemical test admonition over loud noises from passing cars did not help. Dethloff Decl., ¶3. She did not refuse the test, and she did not know that doing so would lead to mandatory license suspension. Dethloff Decl., ¶¶ 2-3.

In his report, Officer Lanius wrote that he observed Dethloff’s car follow a semi-truck only 5-10 feet away. Ex. A. His partner positioned the patrol vehicle directly behind Dethloff’s car, and she veered slowly to the right. Ex. A. This caused both right tires to cross over the solid painted white fog line. Ex. A. Dethloff then drove onto the right shoulder without activating a turn signal. Ex. A.

Lanius stopped Dethloff and observed signs of intoxication. Ex. A. After she failed to perform field sobriety tests, he arrested her on a charge of misdemeanor DUI. Ex. A.

In his affidavit in support of the arrest warrant, Lanius wrote that he performed a traffic stop at 2:27 a.m., on June 24, 2021 because Dethloff was weaving in her lane and following the vehicle in front of her too closely. Ex. B. Lanius observed that Dethloff fumbled with the vehicle’s controls and had slurred speech, watery eyes, and an unsteady gait. Ex. B. She smelled of alcohol and admitted to drinking. Ex. B. She was unable to perform some field sobriety tests and refused others. Ex. B. After Lanius read the chemical test admonition, Detthloff refused to submit to either the breath or blood test. Ex. B.

The Honorable Joel Wallerstein signed a search warrant to take Dethloff’s blood sample at 3:50 a.m. on June 25, 2021. Ex. B.

Dethloff’s counsel objected at the DMV hearings that the hearing process was unfair and violated her right to have a fair hearing. Kay Decl., ¶2.

At the first hearing on May 20, 2022, Officer Lanius testified that Dethloff refused to submit to a chemical test and submitted to a breath test only after Lanius showed her an executed search warrant. Kay Decl., ¶3. Dethloff’s counsel noted that the first breath test sample of 0.15% BAC was obtained at 3:48 a.m., two minutes before the signature timestamp on the search warrant, and the second breath test occurred was only a minute after the timestamp. Kay Decl., ¶3. Lanius failed to explain this discrepancy at the hearing. Kay Decl., ¶3.

On November 9, 2022, the DMV decision reimposed the year-long suspension of Dethloff’s license from November 18, 2022. Ex. C. It explained that Lanius testified that at 2:26 a.m. on June 25, 2021, he observed Dethloff driving too close to the big rig in front of her and driving on the right-side fog line. Ex. C. Dethloff could not recall if she drove too close to the truck, but she claimed she only swerved because of the patrol car’s lights. Ex. C.

Lanius’s suspicion that Dethloff was intoxicated was based on her bloodshot and watery eyes, odor of alcohol, unsteady gait, and slurred speech. Ex. C. Lanius also based his judgment on Dethloff’s unsatisfactory field sobriety tests and admission of alcohol consumption. Ex. C.

Based on these facts, Lanius had reasonable cause to believe Dethloff was driving a motor vehicle in violation of section 23140, 23152, or 23153. Ex. C. He placed her under lawful arrest and told her that she would have her license suspended if she refused the required testing, which she did. Ex. C.

Petitioner Dethloff seeks a stay of DMV’s decision to suspend her license for one year.

The court denied Dethloff’s ex parte application for a stay on November 28, 2022 because she failed to meet two of the required elements of a stay. The court ordered that, if Dethloff makes a noticed motion for a stay, she must comply with CCP section 1008(b) (“section 1008(b)”) except for its requirement that she show due diligence.

Dethloff has not complied with the court’s order. To make a motion for reconsideration, the moving party must present an attorney declaration stating when the party previously appeared, who the judge was, how the judge ruled, and what new or different facts, circumstances, or law are claimed to be shown. §1008(b). The party must also provide a satisfactory explanation for failing to produce such evidence in the first application. Kalivas, supra, 49 Cal.App.4th at 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia, supra, 58 Cal.App.4th at 690.

The court removed the section 1008(b) due diligence requirement, but Dethloff was required to meet the other elements. Dethloff’s moving papers address the issue, but she fails to provide an attorney declaration this information. The motion for reconsideration is procedurally defective. Nonetheless, it will not be denied for this reason.

Dethloff fails to show that the DMV has been served with the Petition or moving papers other than by mail. This is insufficient to establish jurisdiction. The DMV must be served with process per CCP sections 412.10-417.40 before a noticed motion may be filed and served by mail pursuant to CCP section 1010 et seq. Otherwise, the court does not have personal jurisdiction. Ziller Electronics Lab GmbH v. Superior Court, (1988) 206 Cal.App.3d 1222, 1229. The motion must be denied for lack of personal jurisdiction over the DMV.

^{^[1]} All further statutory references are to the Vehicle Code unless otherwise stated.