Judge: James C. Chalfant, Case: 24STCP00925, Date: 2024-10-25 Tentative Ruling

Case Number: 24STCP00925    Hearing Date: October 25, 2024    Dept: 85

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 driving under the influence.  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.  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 person has a choice of blood or breath tests, and shall be so advised. §231 62(a)(2).

In an administrative per se hearing for license suspension after a DUI arrest where the driver completed and failed the chemical test, the DMV’s evidence must establish (1) that the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of sections 23152 or 23153; (2) that the person was placed under lawful arrest; and (3) that the person was driving a motor vehicle when that person had .08 percent or more, by weight, of alcohol in his or her blood.  §13558(c)(2); McKinney v. Department of Motor Vehicles, (1992) 5 Cal.App.4th 519, 526.

“[I]t is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”  §23152(b). 

Expert testimony that a petitioner's BAC was rising at the time of her chemical tests and thus possibly below the 0.08 percent threshold at the time she had been driving is sufficient to rebut the section 23152(b) presumption.  Coffey v. Shiomoto, (2015) 60 Cal.4th 1198, 1211.  Once the presumption is rebutted, the DMV must provide sufficient evidence to establish the plaintiff's BAC at the time she was driving without resorting to the statutory presumption.  Id.  The hearing officer may consider any relevant circumstantial evidence of the plaintiff’s intoxication in determining whether the plaintiff’s BAC was actually .08 or higher when driving.  Id. at 1217. 

D. Statement of Facts[2]

1. Background

            On July 27, 2022, CHP Officers Kim and D. Howells were driving northbound I-710, north of Pacific Coast Highway, in the number one lane when they noticed a black Chevrolet 2500 pickup truck, directly in front of them, that was unable to maintain its lane.  AR 9, 14.  At one point, the Chevrolet drifted over into the number two lane and nearly collided with a trailer attached to a semi-truck.  AR 9, 14.  After passing the I-405, the Chevrolet changed lanes to the number two lane and accelerated to 85 miles per hour (“mph”) in a 65-mph zone, passing slower traffic in the #1 lane. The Chevrolet then changed back into lane #1.  AR 9, 14.  At that point, Officer Kim activated his emergency lights to conduct an enforcement stop. AR 9, 14. 

While speaking with Clapp, Officer Kim could smell the odor of alcoholic beverage emitting from the vehicle.  AR 14.  Officer Kim asked Clapp if he had anything to drink and Clapp replied, “nothing.”  AR 14.  While questioning Clapp, Officer Kim observed objective signs of intoxication, including “red watery eyes, slurred speech, unsteady gait, and the distinct odor of alcoholic beverage emitting from his breath and person.”  AR 14.  Officer Kim asked Clapp again if he had anything to drink, to which Clapp stated, “I haven’t had much to drink.”  AR 14. 

Officer Kim administered Field Sobriety Tests (“FST”) but Clapp was unable to perform them as explained and demonstrated.  AR 14.  Clapp stumbled and lost his balance on his first step and missed heel-to-toe contact several times.  AR 13.  During the entire testing phase, Clapp raised his arms from his sides to aid in his balance.  AR 13.

Clapp agreed to take a Preliminary Alcohol Screening (“PAS”) in which he provided two samples with results of .219% BAC and a .234% BAC.  AR 13.  Based on Clapp’s “performance of FSTs, his objective signs and symptoms of alcohol intoxication, his observed driving and his admission of drinking,” Officer Kim formed the opinion that Clapp was under the influence of alcohol and was unable to operate a vehicle safely and placed him under arrest.  AR 14-15. 

Officer Kim admonished Clapp about his implied consent to take a blood or breath test and Clapp consented to take a breath test.  AR 15.  Clapp was transported to Long Beach Police Department, where he completed the breath test.  AR 15.  He provided two breath samples, which showed a BAC of .213% and .212%.  AR 15.

2. The Hearing

The hearing on Clapp’s driver’s license suspension took place on February 14, 2024.  AR 21.  The Hearing Officer began the hearing by stating that she will be acting as a neutral-fact finder and will not be acting as an advocate.  AR 23.  Her role was to review the evidence provided, ask clarifying questions if necessary, and make legal rulings and determinations under the relevant statutes.  AR 21-23.

The Hearing Officer stated the hearing was limited to the following issues: (1) Whether the officer had reasonable cause to believe Clapp was driving a motor vehicle in violation of Vehicle Code Section 23152 or 23153; (2) whether Clapp was placed under lawful arrest; and (3) whether Clapp was driving a motor vehicle with a BAC of 0.08% or more.  AR 21-23. 

Clapp’s counsel objected to the single hearing officer format as unconstitutional.  AR 23-24.  The Hearing Officer responded  that she had no authority to rule on this issue.  AR 24.

The Hearing Officer identified and introduced the following four exhibits: (1): Age 21 and Older Officer’s Statement (Form DS-367); (2) arrest report; (3) precautionary check list or intoxilyzer precautionary checklist; and (4) Clapp’s driving record.  AR 24.  Clapp’s counsel objected to the Form DS-367 based on hearsay, lacks foundation, and unable to tell if it was provided timely.  AR 25.  He objected to the arrest report on the same grounds. AR 26.  He objected to the precautionary checklist or intoxilyzer precautionary checklist on the grounds that there is no indication as to when the intoxilyzer checklist was provided, as hearsay, and lacking foundation.  AR 27.  Lastly, he objected to Clapp’s driving record based on hearsay and lack of foundation.  AR 27-28. 

Clapp additionally argued that the DS367 form was not properly filled out and the complete document was not produced, and that there is no evidence that it was timely provided to the DMV within five (5) business days, as required by Vehicle Code section 13380(a).  AR 26-27.  Additionally, Clapp objected and argued that there is no admissible evidence of any BAC in this case.  AR 25.

The Hearing Officer overruled counsel’s objections and received the exhibits into evidence.  AR 29.  Clapp’s counsel submitted no exhibits or evidence of his own.  AR 21-31. 

In his closing argument, Clapp’s counsel argued that Officer Kim clearly did not complete the paperwork correctly.  AR 29.  The breath test results were not reported on the DS367, the police report and Intoxilyzer checklist are not sworn documents, and the lack a proper foundation.  AR 29.  As a result, there are no properly admitted chemical test results.  AR 29. 

3. The Decision

On March 12, 2024, the Hearing Officer issued her decision suspending Clapp’s driver license through July 22, 2024.  AR 3-5.  Based on a review of the evidence, the Hearing Officer determined that (a) the peace officer had probable cause to believe that Clapp was speeding, (b the officer  had reasonable cause to believe that Clapp was driving a motor vehicle under the influence of alcohol, and (c) he was placed under lawful arrest.  AR 3-4.  The Hearing Officer concluded that Clapp submitted to a chemical test and was driving a motor vehicle with a concentration of alcohol in his blood at or above 0.08%”.  AR 4.

Clapp claimed the test results were unsworn but the Hearing Officer determine that the contention lacked merit.  AR 4.  The breath test was taken within three hours of driving and the Breath Test Machine Operator’s Certification under penalty of perjury met the requirements of California Code of Regulations (“CCR”) Title 17.  The DMV used the unsworn reports to supplement the sworn report and case law states that accompanying heresy can supplement an officer’s sworn statement.  AR 4.

Clapp’s counsel contended that he was unsure whether the DS367 was filled out and filed with the DMV within five days of the incident, but the instruction to forward the DS367 to the DMV is directional, not mandatory.  AR 4.  Nor did counsel show that the DS367 was not forwarded to the DMV within five days.  AR 4.

E. Analysis

Petitioner Clapp seeks administrative mandamus to set aside the suspension of his driving privilege by the DMV.[3]

1. Whether Officer Kim Had Reasonable Cause to Believe Clapp Had Been Driving a Motor Vehicle in Violation of the Vehicle Code

Officer Kim observed objective signs of intoxication, including “red watery eyes,” “slurred speech,” “unsteady gait” and “odor of alcoholic beverage,” and those objective signs gave him probable cause to arrest Clapp. AR 14.   After the stop, Officer Kim administered a series of FSTs which Clapp was unable to perform as explained and demonstrated.  AR 14.  For example, during the test phase, he “stumbled and lost his balance” a few times and kept “missing heel to toe contact.”  AR 13.

Clapp agreed to take a PAS and, after struggling to blow into the PAS device correctly, he eventually provided a sample resulting in .219% BAC and a .234% BAC on his second sample.  AR 13. Based on Clapp’s “performance of FSTs, his objective signs and symptoms of alcohol intoxication, his observed driving and his admission of drinking,” Officer Kim formed the opinion that Clapp was under the influence of alcohol and unable to operate a vehicle safely and placed him under arrest.  AR 15.

Clapp does not dispute that Officer Kim had reasonable cause to believe that he had been driving under the influence. 

2. Whether Clapp Was Lawfully Placed Under Arrest

Probable cause for arrest exists when the facts known to the arresting officer would lead a

person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.  Grundy v. Gourley, (2003) 110 Cal.App.4th 20, 25. 

Officer Kim initially stopped Clapp because he was unable to maintain his lane, breaking erratically, and driving 85 miles per hour (mph) in a 55-mph zone.  AR 14.  After he had reasonable cause to believe that Clapp was driving under the influence of alcohol, he arrested Clapp.  AR 15.

Clapp does not dispute that Officer Kim had probable cause to stop his vehicle and that he was lawfully arrested. 

3. Whether Clapp Was Driving a Motor Vehicle With .08% or More, By Weight, of Alcohol in His Blood

Following his arrest, Clapp consented to take a breath test and he got two results showing a BAC of .213% and .212%.  AR 64, 94.  The tests were taken about an hour after his arrest.  AR 15, 64, 96.

Clapp challenges the admissibility of this evidence.  Clapp argues that the DS367 form was not properly filled out, was incomplete, and should not have been received into evidence.  The DS367 should be a total of 6 pages.  In this case, the back of page 2 and the back of page 3 are missing. The back of page 2 would tell the arresting officer to forward the entire DS367 within five business days of the arrest.  The back of page 3 advises the driver of the hearing issues and his rights.  Without these two pages, it is unknown whether Clapp was properly advised of his rights and whether Officer Kim properly and timely forwarded the DS367 to the DMV.  Pet. Op. Br. at 3, 5.

Clapp also argues that Officer Kim had a duty to provide the DS367 to DMV within five business days.  Section 13380(a) requires the officer to “immediately forward to the department a sworn report of all information relevant to the enforcement action…” and defines “’immediately’ means on or before the end of the fifth ordinary business day following the arrest.”  There is no evidence that happened. In her decision, the Hearing Officer shifted the burden of proof to Clapp to show it was not timely forwarded.  See AR 4.  Pet. Op. Br. at 3, 6; Reply at 2.

Finally, Clapp argues that there is no admissible evidence of his BAC.  There is a place on the front of page 1 of the DS367 (AR 7) for the officer to fill in the breath test results, but Officer Kim failed to include this information.  The DS367 is the only document submitted to the DMV under penalty of perjury; the police report and Intoxilyzer checklist are not sworn documents.  Unsworn, hearsay documents may be used to supplement sworn documents, but are not sufficient in themselves to support a finding.  Govt. Code §11513(d).  Title17 also has a foundational requirement that the breath device be accuracy checked every ten days. 17 CCR §1221.2(a)(2)(B).  No evidence of this foundation was presented at the hearing.  The PAS device is subject to the same requirements, and they were not met.  Id. Pet. Op. Br. at 3, 6.

The DMV responds that three key statutory sections govern the admissibility of evidence in APS hearings. First, Evidence Code section 1280 permits a court to admit an official record or report without requiring the witness to testify where: (1) the writing was made by and within the scope of duty of a public employee; (2) the writing was made at or near the time of the act, condition, or event; and (3) the sources of information and method and time of preparation were such as to indicate its trustworthiness. Second, section 13557(a) requires the Department to “consider the sworn report submitted by the peace officer … and any other evidence accompanying the report.”  Third, Government Code section 11513(c) states that, in administrative hearings, “[a]ny relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.”  Further, section 14104.7 has mandatory language requiring this evidence to be considered in a hearing: “At any hearing, the department shall consider its official records and may receive sworn testimony.”  Opp. at 13.

Clapp fails to acknowledge that the DMV is not required to lay a foundation for the exhibits to be considered at his APS hearing pursuant to the relaxed standards of evidence applicable under the Administrative Procedures Act.  Govt. Code §11513(c).  Clapp’s hearsay objections also lack merit because a police officer’s sworn and unsworn reports are admissible in APS hearings despite a hearsay objection.  See, e.g., MacDonald v. Gutierrez, (2004) 32 Cal.4th 150, 159 (“so long as a sworn report is filed, it is consistent with the relaxed evidentiary standards” of an APS hearing that “an unsworn report filed by the arresting officer” can be considered); Lake v. Reed, (1997) 16 Cal.4th 448, 461 (“A police officer’s report, even if unsworn, constitutes the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.”); Murphy v. Shiomoto, (2017) 13 Cal.App.5th 1052, 1063 (“Where an officer files a sworn statement with the Department, the officer’s unsworn arrest report is admissible at the [APS] hearing to supplement the sworn report.”).  Opp. at 14.

The DMV concludes that overwhelming evidence shows that Clapp’s BAC exceeded the legal limit.  As the Hearing Officer noted, “the Breath Test Machine Operator’s Certification, contained herein signed certification under penalty of perjury that the breath test sample results were obtained in the regular course of duties, indicates that the breath test operator was qualified to operate the equipment and that the test was administered pursuant to the requirements of Title 17 of the California Code of Regulations.”  AR 4.[4]  These results were reported on the arrest report.  The PAS results, which are contained in the DS-367, also clearly show that Clapp’s BAC exceeded the legal limit.  Additionally, circumstantial evidence consisting of objective symptoms of intoxication, performance on FSTs, and admissions of drinking may all be considered in determining whether a driver had or did not have a BAC of .08 percent or greater.  Komizu v. Gourley, (2002) 103 Cal.App.4th 1001, 1007-08.  Opp. at 12.

The court agrees that unsworn reports may be admitted to supplement sworn statements in APS cases.  “[S]o long as a sworn report is filed, it is consistent with the relaxed evidentiary standards of an administrative per se hearing that technical omissions of proof can be corrected by an unsworn report filed by the arresting officer.”  MacDonald v. Gutierrez, supra, 32 Cal.4th at 159.  Moreover, 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). 

Additionally, as the Hearing Officer noted, “there is no requirement that the DS-367 be received by the Department within 5 days”.  AR 4. The D-367 states that the form shall be forwarded to the DMV within five days, but it is instructional and not a requirement. Thus, the DS-367 was properly admitted.  AR 4.

While the parties do not specifically address the breathalyzer BAC test results, the evidence generally was properly admitted.

4. Clapp Did Not Receive a Fair Hearing

Despite this evidence, the principal issue in this case is whether Clapp received a fair hearing. 

In California DUI Lawyers Association v. California Department of Motor Vehicles, (“DUI Lawyers”) (2022) 77 Cal.App.5th 517, the court found the hearing officer's dual roles as advocate and adjudicator in a DMV APS hearing creates an unacceptable risk of bias by combining advocacy and adjudicatory roles into a single DMV employee.  Id. at 530. The court noted “[a]lthough procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process.”  Id. at 532.  The court held that “combining the roles of advocate and adjudicator in a single person employed by the DMV violates due process under the Fourteenth Amendment and the California Constitution Article I, section 7.”  Ibid. As result, “the DMV is permanently enjoined and restrained from having its APS hearing officers function as advocates for the position of the DMV in addition to being finders of fact in the same adversarial proceeding.”  Id. at 538.

The DMV relies on footnote 5 in DUI Lawyers:

“[Petitioner DUI Lawyers] concedes the [DMV] may task the same person with both collecting and developing the evidence and rendering a final decision....He or she must refrain, however, from advocating on behalf of the [DMV] as the DSM currently mandates ….” Id. at 533, n.5.

The DMV argues that this footnote permits it to task the same hearing officer with investigatory and adjudicatory duties and merely follows long-standing federal and state due process principles.   See, e.g., Withrow v. Larkin, (1975) 421 U.S. 35, 46-47, 54 (rejecting due-process-based challenge to the combination of investigatory and adjudicatory functions of a medical licensing board); Richardson v. Perales, (1971) 402 U.S. 389, 408-10 (social security examiner's role as investigator who gathers evidence and decision maker does not violate due process); Today’s Fresh Start, Inc. v. Los Angeles Cnty. Office of Education, (“Today’s Fresh Start”) (2013) 57 Cal.4th 197, 220 ("legislature may adopt an administrative procedure in which the same individual or entity is charged both with developing the facts and rendering a final decision, and separate adversarial advocates are dispensed with."); id. at 221 ("Even an agency’s participation in an accusatory portion of administrative proceedings need not give rise to constitutional concerns."); Doe v. Univ. of S. Cal., (2018) 29 Cal.App.5th 1212, 1235, n.29 (combining investigative and adjudicative functions does not, without more, deprive a student accused of sexual misconduct of a fair hearing).  Opp. at 15-16.

The court in Knudsen v. Department of Motor Vehicles, (“Knudsen”) (2024) 101 Cal.App.5th 186, suggested that, if the DMV hearing officer does not act as an advocate for the DMV or law enforcement, then the driver's due process right to an impartial adjudicator is not violated and the constitutional issue is resolved.  In this case, no evidence indicates that the Hearing Officer acted as an advocate.[5]  The court in Clarke v. Gordon, (Sept. 12, 2024), __ Cal.App.5^th __, 2024 WL 4163081, did not decide this constitutional issue.  Although Clarke v. Gordon stated “[w]e are hard pressed to imagine how a single DMV employee might discharge multiple functions during an APS hearing in a manner that will satisfy due process requirements,” it also stated: “we do not resolve that issue in this opinion.” 2024 WL 4163081, at 6*.  Opp. at 16.

The DMV argues that the combination of collecting and developing the evidence and rendering a final decision establishes that the DMV did not violate DUI Lawyers and Clapp’s due process rights.  DUI Lawyers did not conclude that that the DMV hearing officer’s dual role violates due process simply because a hearing officer rules on objections and renders a decision on the evidence.  Opp. at 16.

The Hearing Officer introduced the Department’s evidence at Clapp’s APS hearing to set the evidentiary base for the case as required by statute.  The Hearing Officer did not, for example, “rigorously cross-examine” Clapp. See Clarke v. Gordon, supra, 2024 WL 4163081 at 6*.  The Hearing Officer began the hearing by stating that she will be acting as a neutral-fact finder and will not be acting as an advocate, read the issues to be decided on the record, identified four exhibits, gave Clapp’s counsel the opportunity to present any evidence or make arguments, and the hearing concluded after those tasks; she did not cross-examine anyone.  AR 21-30.  The Department did not violate DUI Lawyers or Clapp’s due process rights at the APS hearing.  Opp. at 17.

More importantly, the Department’s evidence fleshed out the material facts and issues.  The arresting officer’s sworn and unsworn reports laid out the case.  These reports then enabled the Hearing Officer to collect and understand the evidence and weigh it against the law enforcement reports.  See AR 4-7, 17-20, 31-35.  The Hearing Officer did not advocate when she introduced the police reports into evidence.  Compare In re Emily D., (2015) 234 Cal.App.4th 438, 445-47 (juvenile court did not violate a mother’s due process rights by directing Department of Children and Family Services for the mother’s missing drug test results to “provide the court with a clearer understanding of [the mother’s] capacity to parent her three children”).  Opp. at 17.

Clapp points to the documents that the Hearing Officer chose not to present at the hearing, which were maintenance, calibration, and accuracy check records for the breath device at issue, a vehicle report, and records concerning the qualifications of the arresting officer.  AR 38-64, 103-04, 113-14.  He argues that the Hearing Officer’s choice to use these records, or not use them, is squarely within the purview of an advocate, not a trier of fact.  The Hearing Officer chose to use only the documents she believed were sufficient for the suspension and chose not to use other available documents.  Reply at 3.

Clapp also argues that the Hearing Officer chose to use the DS367 that was incomplete and missing critical information about the chemical test.  He contends that the DS367 should not have been admitted, and the admission of this document demonstrates the Hearing Officer’s bias. Reply at 2.

This case is at the margin of due process and, admittedly, Knudsen indicated that the process followed by the DMV here might work.  101 Cal.App.5th at 206-07.  The Hearing Officer did no more than select the evidence that would be offered and received by the DMV, overrule the objections of Clapp’s attorney, and receive four exhibits into evidence.  This is not a case like Clarke v. Gordon, where the hearing officer not only offered and received exhibits into evidence but also examined the appellant. 

Nonetheless, the APS process is adversarial, and the court does not believe that the hearing officer can both present evidence and decide the case consistently with DUI Lawyers.  Clarke v. Gordon expressly stated that it is the function performed by the hearing officer during the APS hearing that will decide the due process issue.  2024 WL 4163081 at 6*.  In that case, the hearing officer (1) marshalled, identified, and introduced into evidence the DMV’s exhibits, (2) overruled Clarke’s objections and received the exhibits, and (3) vigorously cross-examined Clarke.  Id.  This violated Clarke’s due process rights, and the court was “hard pressed to imagine” how the DMV employee could discharge multiple functions in a manner that would satisfy due process, albeit not deciding that issue.   Id.

In this case, the Hearing Officer performed the first two tasks identified in Clarke v. Gordon.   She marked exhibits: “At this time, I do have a couple of documents that I want to mark and identify for the record.”  AR 24.  She also overruled the objections of Clapp’s attorney and received the exhibits into evidence, which she then used to decide the case.

The California Supreme Court has explained that it is not unconstitutional for the same agency employee to develop facts and make a decision in a proceeding that is inquisitorial, not adversarial.  Today’s Fresh Start, supra, 57 Cal.4^th at 220.[6]  It also is not unconstitutional for an agency to be both investigator, accuser, and adjudicator and, at the extreme, for a single individual may act as investigator, prosecutor, and decisionmaker.   Id. at 221.  The issue of bias requires a showing of specific evidence of actual bias or a combination of circumstances showing an unacceptable risk of bias.  Id. 

Applying the law articulated in Today’s Fresh Start, the DUI Lawyers court held that an APS hearing officer’s dual role of advocate and adjudicator creates an unacceptable risk of bias.  77 Cal.App.5^th at 530.  In DUI Lawyers, the DMV admitted that its APS hearing officers have no duty to assist the driver in preparing for the hearing, “nor a duty to present any evidence that would support the position of the driver at the hearing.”  Id. at 527.  Further, the DMV acknowledged that the APS hearing officers rules on “the admissibility of the documentation he or she offers as evidence as ‘advocate for the [DMV]’ in support of the DMV’s position at the APS hearing.”  Ibid.  The DMV’s new regulations do not change this approach. 

DUI Lawyers explained that the DMV is a party to an adversarial APS hearing.  77 Cal.App.5^th at 532.  Combining the roles of advocate and adjudicator in a single DMV employee violates due process.  Id. at 532.  DUI Lawyers defined “advocating” as putting on the DMV’s case with no corresponding duty to present any evidence that would support the driver’s position.  Id. at 533, n. 5. 

Here, the Hearing Officer “present[ed] the DMV’s case” and acted as the prosecutor.  She selected, marked, and received the DMV’s evidence and nothing suggests that she attempted to flesh out facts favorable to Clarke.  Nor did she have a duty to do so.  By introducing the DMV’s evidence, the Hearing Officer’s role involved both putting on the DMV’s case “as advocate for the DMV’s position at the hearing” and acting as fact finder.  See id. at 532.

While the Legislature has mandated that certain information shall be considered by the hearing officer at an APS hearing, the Hearing Officer overruled Clapp’s objections to all evidence the Hearing Officer ultimately admitted on behalf of the DMV, including his BAC test results.  The court has concluded that the DS367 was properly (without specifically addressing the breathalyzer BAC test results).  Nonetheless, Clapp’s objections about the DS367’s incompleteness and the lack of supporting evidence are not frivolous; they could have been sustained in whole or in part.   Hence, the circumstances of this case support the prospect of an unacceptable risk of bias.

Subsequent to DUI Lawyers, Clarke v. Gordon, expressed skepticism whether it is possible to have a single hearing officer preside over a DMV hearing consistent with due process requirements. 2024 WL 4163081 at 6* (“We are hard pressed to imagine how a single DMV employee might discharge multiple functions during an APS hearing in a manner that will satisfy due process requirements.”).  The court agrees.  Although at the margins, this case is within DUI Lawyers and Clarke v. Gordon, presenting an unacceptable risk of bias.

5. Prejudice

The DMV argues that Clapp fails to demonstrate error that resulted in prejudice, meaning that a more favorable result would likely have resulted had a different hearing procedure been used.  Cal. Const., art. VI, § 13; see also Leal v. Gourley, (2002) 100 Cal.App.4th 963, 968 (applying requirement of prejudice to error in APS proceedings).  If the combination of investigatory and adjudicatory duties impermissibly brought the theoretical possibility of bias in hearings, such inchoate possibility of bias alone is insufficient to warrant a decision's reversal.  Actual bias or prejudice must be shown.  Southern California Underground Contractors, Inc. v. City of San Diego, (2003) 108 Cal.App.4th 533, 549.  "In other words, it must be reasonably probable a more favorable result would have been reached absent the error."  Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services, (2009) 176 Cal.App.4th 1249, 1255 (citation omitted).  Opp. at 17-18.

The DMV is incorrect.  Case law demonstrates that the error of a hearing officer acting as advocate and decision-maker is structural.  A petitioner need not demonstrate actual bias where the hearing officer acts as advocate and fact finder.  Knudsen, supra, 101 Cal.App.5^th at 206; Cisneros v. Department of Motor Vehicles, (June 27, 2024) __Cal.App.5^th __, 2024 DJDAR 6082, 6101 (like the advocacy/decision maker issue in DUI Lawyers and Knudsen, due process violation by managerial directives as to what constitutes good cause for continuance was structural error).  The appropriate remedy is a new APS hearing.

6. Attorney Fees

Govt. Code section 800 (“section 800”) authorizes the recovery of attorney fees from a public entity incurred in appealing an administrative decision only if the court makes a factual finding that the agency’s decision was the result of arbitrary or capricious action or conduct of a public entity or public official.  See Plumbing, Heating and Piping Empl. Council of North Carolina v Quillin, (“Plumbing”) (1976) 64 Cal.App.3d 215, 221.  Arbitrary or capricious in this context means conduct not supported by a fair or substantial reason, a stubborn insistence on following unauthorized conduct, or a bad faith legal dispute.  Zuehlsdorf v. Simi Valley Unified School District, (2007) 148 Cal.App.4th 249.  “Attorney’s fees may not be awarded simply because the administrative entity or official’s action was erroneous, even if it was ‘clearly erroneous.’”  Stirling v. Agricultural Labor Relations Ed., (1987) 189 Cal.App.3d 1305, 1312.  The court must make this finding when ruling on the merits of the case.  A petitioner’s failure to raise the question of arbitrary or capricious action during the underlying action results in waiver of the issue.  See Plumbing, supra, 64 Cal.App.3d at 221, 225.  Section 800 limits the amount of recovery of attorney’s fees to a maximum of $7500 and a rate of $100 per hour. 

Clapp argues that attorney fees are warranted because the DMV willfully ignored the United States Constitution and the DUI Lawyers permanent injunction against using a single hearing officer as trier of fact and advocate for the DMV. The DMV blatantly disregarded the law and that is the very conduct section 800 seeks to prevent.  Pet. Op. Br. at 8.

The DMV argues that there is no evidence supporting, or even suggesting, that the Hearing Officer’s conduct was arbitrary or capricious. On the contrary, her conduct was reasonable and well-intentioned. The Hearing Officer allowed opposing counsel to present his case without limitations and, in her ruling, weighed all the evidence in an impartial manner.  The Hearing Officer’s conduct is neither in bad faith nor a stubborn insistence on unauthorized conduct and Clapp’s request for attorney fees should be denied.   Opp. at 19-20.

The DMV’s opposition is wrongly focused.  The DUI Lawyers permanent injunction expressly prohibits DMV hearing officers from “acting as advocates for the position of the DMV in addition to being finders of fact in the same adversarial proceeding.”  77 Cal.App.5^th at 538.  That is what the DMV did in this case. Although it has tried to work around the DUI Lawyers injunction -- following the possibility left open by Knudsen -- the DMV had to know there is a serious risk that its hearing officers would be violating the injunction by proceeding in the chosen manner.  The logical extension of the DMV’s argument is that it can run the risk of violating the injunction and then argue that such violations of due process are not subject to attorney fees.  They are.  Clapp is awarded attorney fees under section 800.

F. Conclusion

The Petition is granted.  A judgment and writ shall issue directing the DMV to set aside the suspension of Clapp’s driver’s license and conduct further proceedings within its discretion and the law.  Clapp is awarded attorney fees under section 800.   Given the statutory maximum of $7500, the parties are ordered to meet and confer to agree on the amount of attorney fees.  If they cannot agree, Clapp may file a motion for a reasonable fee award.

Petitioner Clapp’s counsel is ordered to prepare a proposed judgment and writ, serve them on the DMV’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for December 5, 2024 at 9:30 a.m.