Judge James C. Chalfant, Case Number: 24STCP02617, Date: 2025-02-04 Tentative Ruling

Petitioner Fernando Rivas (“Rivas”) seeks administrative mandamus directing Respondent Department of Motor Vehicles (“DMV”) to set aside its decision suspending his driver’s license.

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

On August 16, 2024, Petitioner Rivas filed his verified Petition against Respondents DMV and Steven Gordon (“Gordon”), in his official capacity as Director of the DMV (collectively, “DMV”), for administrative mandamus. The Petition alleges in pertinent part as follows.

Petitioner Rivas is a resident of the County of Los Angeles with a date of birth on July 1, 1982. Pet., ¶1.

Respondent DMV is a department within the California State Transportation Agency. Pet., ¶2. The DMV’s two primary functions are to license California driver’s and register the State’s vehicles. Pet., ¶2.

Respondent Gordon is the Director of the DMV and is charged with administering and enforcing all provisions of the Vehicle Code relating to the DMV. Pet., ¶2.

On January 16, 2024, Rivas was in front of his residence when a neighbor, while walking his dog around 9:51 p.m. contacted the police to report that Rivas was yelling and possibly drunk. Pet., ¶5. Upon arrival, the police contacted the reporting party, who told the officers that he observed Rivas yelling and angry, back out of the driveway then incorrectly park the car on the street. Pet., ¶6.

The police officer contacted Rivas who was sitting on the curb and concluded that he was under the influence of alcohol. Pet., ¶¶7-8. The officer requested that Rivas submit to field sobriety tests (“FSTs”), which he refused. Pet., ¶9. Rivas was subsequently arrested for a violation of Vehicle Code Section 23152. Pet., ¶10. After the arrest, Rivas refused to submit to a chemical test. Pet., ¶11.

A DMV hearing was held before Vehicles Driver Safety Officer Jessica Freeman (“Hearing Officer”) on May 17, 2024. Pet., ¶13. The Hearing Officer issued her Notification of Findings and Decision suspending Rivas’ driver’s license on May 17, 2024. Pet., ¶14.

Rivas requested a Departmental Review of the Hearing Officer’s action. Pet., ¶16. On June 5, 2024, the DMV issued a Notice of Decision Department Review indicating that the “the Action is Proper and Required.” Pet., ¶16. The Notice indicated that Rivas could request judicial review within 90 days. Pet., ¶17.

Rivas contends that Respondent DMV prejudicially abused its discretion in sustaining the suspension of his driver’s license because (a) the decision is not supported by the findings and the findings are not supported by the evidence, (b) the findings are not supported by the weight of the evidence, and/or (c) the decision to sustain the suspension of Rivas’ driver’s license is arbitrary and capricious. Pet., ¶20.

Petitioner Rivas seeks (1) a peremptory writ of administrative mandate setting aside the DMV’s decision and compelling it to reinstate his driver’s license as it existed before the order of suspension was issued, (2) reasonable attorney fees and costs of suit, and (3) such other relief the court considers proper. Pet. at Prayer 1-4.

A proof of service on file show that Petitioner Rivas served the summons and Petition on Respondent DMV via substitute service on September 30, 2024.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999)20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). Revocation or suspension of a license warrants application of the independent judgment test. See Berlinghieri v. Department of Motor Vehicles, (1983) 33 Cal.3d 392, 396.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Id. at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

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 l3557(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.

“In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists:

(d) The person may cause injury to themselves or damage property unless immediately arrested.

(e) The person may destroy or conceal evidence of the crime unless immediately arrested.”

On January 16, 2024, Los Angeles County Sheriff’s Deputy Lorea (“Lorea”) received a radio call after 9:51 p.m. regarding a “male White yelling and possibly drunk at 1411 Laurel Avenue in the City of West Hollywood.” AR 14-16. Deputy Lorea arrived on the scene approximately an hour later and was flagged down by Robert Burdige (“Burdige”), the individual who had called the police. AR 14-16.

Burdige is Rivas’ neighbor and lives at 1320 Laurel and Rivas less than a block away at 1376 Laurel. AR 14. Burdige told Deputy Lorea that, while walking his dog, he observed Petitioner Rivas in front of his residence “yelling and seemed to be angry for an unknown reason.” AR 16. Burdige stated that without losing visual contact with Rivas, he observed Rivas enter a car parked in his driveway, back it out, drive south, and park on the street. AR 16. Rivas parked the car such that it was sticking out in the roadway. AR 16.

Deputy Lorea contacted Rivas in front of his residence at 10:58 p.m., over an hour after Burdige had observed him move his car. AR 14. Upon contact, Deputy Lorea observed Rivas exhibiting objective signs of intoxication, such as an order of alcohol, bloodshot eyes, and slurred speech. AR 16. Rivas was also argumentative and uncooperative, denied driving and refused to submit to either field sobriety tests or a chemical test. AR 16. Deputy Lorea then arrested Rivas for driving under the influence of alcohol (“DUI”). AR 16.

Deputy Loera explained the private citizen’s arrest procedure to Burdige, who understood and also agreed to place Petitioner Rivas under private citizen’s arrest. AR 16.

On January 16, 2024, Deputy Lorea and his partner responded to a transient call at approximately 9:51 p.m. regarding a “male White yelling and possibly drunk” at 1411 Laurel Avenue in the City of West Hollywood. AR 16. The caller described the male as wearing a yellow shirt and blue jeans. AR 16.

When Deputy Loera and his partner arrived on Laurel Avenue, they were flagged down by Burdige, who told them he was walking his dog on the east side of Laurel Avenue when he heard yelling. He observed Rivas yelling and appeared angry for an unknown reason. AR 016. Burdige saw Rivas get into a vehicle, back out of a driveway, drive south on Laurel Avenue, and then park his vehicle on the west side of Laurel Avenue. AR 16. Burdige did not lose observation of Rivas and positively identified Rivas as the person driving the vehicle. AR 16.

Deputy Loera interviewed Rivas, who was sitting on a curb. AR 16. Deputy Loera immediately smelled the strong odor of alcohol emitting from Rivas’ person. AR 16; see also AR 14-15, 008-10. Deputy Loera asked standardized pre-FST questions, during which Rivas exhibited other signs of alcohol intoxication such as slurred, mumbled, and slow or thick speech; bloodshot eyes; staggering, swaying, and unsteady movements; and disarrayed clothing. AR 16; see also AR 8-15. Rivas was hostile and upset for a reason unknown to Deputy Loera. AR 16. Rivas was belligerent, combative, argumentative, and uncooperative. AR 14.

When Deputy Loera asked Rivas if he had anything to drink, Rivas responded: “No.” AR 16. Rivas also told Deputy Loera that he was not driving the vehicle, nor was he near the vehicle. AR 16.

Based on Rivas’ objective symptoms of alcohol intoxication, Deputy Loera detained him pending a DUI investigation. AR 008, 016. Deputy Loera asked Rivas to consent to a Preliminary Alcohol Screening Test (“PAS”), but Rivas refused. AR 8, 16.

Based on Deputy Loera’s observations of Rivas displaying signs and symptoms of being under the influence of alcohol and Burdige’s positive identification of Rivas as the driver of the vehicle, Deputy Loera arrested Rivas for driving under the influence of alcohol in violation of section 23151(a). AR 16.

In addition, Deputy Loera explained the private citizens arrest procedure with Burdige. AR 016. Burdige stated that he understood and agreed to place Rivas under private citizen arrest for violation of section 23151(a). AR 16.

Rivas’ vehicle was sticking out into the roadway, making it a hazard for traveling vehicles. AR 16. Deputy Loera arranged for the vehicle to be towed and impounded. AR 16.

At the arrest site on Laurel Avenue, Deputy Loera read the Chemical Test Admonition in DS 367 to Rivas. AR 8-9, 16. Rivas refused to take both a breath test and blood test, stating “No” to each. AR 8-9, 16.

Rivas was then transported to the West Hollywood Sheriff station, where Deputy Loera gave him another opportunity to provide a breath test and Rivas again refused. AR 16.

On May 17, 2024, an Administrative Per Se (“APS”) hearing was held, where Rivas was represented by counsel. AR 51-62. Rivas attended the hearing but did not testify. AR 53.

The Hearing Officer admitted the following into evidence over Rivas’ foundation and hearsay objections: (1) Exhibit 1: DS-367 dated January 16, 2024, prepared by Deputy Loera (AR 8-13); (2) Exhibit 2: The DUI Complaint Report, dated January 16, 2024, prepared by Deputy Loera (AR 14-16); and (3) Exhibit 3: Rivas’ Driving Record printout (AR 17-18). AR 54-55.

Rivas did not introduce any evidence at the hearing and relied on Exhibit 2, the DUI Complaint, in his closing argument. AR 51-62. Rivas contended that the arrest was not lawful because neither Deputy Loera nor witness Burdige saw him doing anything unlawful. AR 61. Rivas did not dispute that he was properly admonished and that he refused to submit to a chemical test to measure his blood alcohol content. AR 59. Rivas’ counsel stated: “And yes, he [Petitioner] was uncooperative. He refused to take preliminary alcohol screening test. He refused to take a breath test. He refused pretty much everything he said no to everything.” AR 59.

On May 17, 2024, the Hearing Officer issued her Notification of Findings and Decision imposing a one-year suspension of Rivas’ driver’s license. AR 3-7.

The Hearing Officer determined that Deputy Loera had reasonable cause to believe that Petitioner Rivas was driving a motor vehicle while under the influence of alcohol. AR 3-4. Deputy Loera had a duty to respond to a call of a male yelling and possibly intoxicated. AR 3-4. A witness flagged Deputy Loera down and told him that he saw Rivas driving a vehicle that had been parked on Laurel Avenue. AR 3-4. Deputy Loera had a valid reason to contact Rivas and investigate further. AR 3-4. During the contact with Rivas, Deputy Loera smelled the strong odor of alcohol emitting from Petitioner and observed bloodshot/watery/glassy eyes, and slurred/mumbled/slow speech. AR 3-4.

The Hearing Officer found that section 40300.5 authorized Deputy Loera to arrest Rivas. AR 4-5. The Hearing Officer found probable cause for arrest “based on the totality of the circumstances,” which included the facts supporting reasonable cause determination, and the fact that Rivas’ vehicle was sticking out of the roadway making it a hazard for traveling vehicles. AR 5.

The Hearing Officer also found that the evidence confirmed Rivas was admonished for the consequences of refusing to submit to a chemical test, and that he refused to submit to a chemical test when requested to do so by a peace officer. AR 5.

Petitioner Rivas seeks an order directing DMV to set aside the decision to suspend his driver’s license and reinstate it.

1. Whether Deputy Loera Had Reasonable Cause to Believe Rivas Had Been Driving a Motor Vehicle in Violation of the Vehicle Code

Rivas notes that section 23152 provides that it is unlawful to operate a motor vehicle while under the influence of alcohol. CalCrim Jury Instruction 2110 “Driving Under the Influence” states:

“A person is under the influence if, as a result of drinking and/or taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”

Rivas argues that there is no evidence that he was under the influence of alcohol or a drug at the time of driving. The only person who saw Rivas move his car was his neighbor Burdige. While walking his dog more than an hour before Deputy Loera arrived, Burdige witnessed an angry Rivas move a car from his driveway to the street. AR 16. Burdige did not provide any further details, such as where he was in relation to Rivas when he observed Rivas drive, how long after he observed Rivas before calling the police, and whether Rivas showed any specific signs of intoxication at the time of, or before, driving. Pet. Op. Br. at 7-8.

While he was sufficiently interested in Rivas’ anger that he called the police and observed Rivas closely, Burdige never described a single objective sign of intoxication. Deputy Loera observed numerous common signs of intoxication an hour later (AR 14), but Burdige did not report any. [2] Burdige only reported Rivas’ lawful activity. Acting angry in front of one’s residence is lawful. Moving a car out of one’s driveway is lawful. The anger Burdige reported is the only evidence of Rivas’ state at the time he moved the car. Driving while yelling and angry does not provide reasonable cause of a violation under section 23152. That Deputy Loera concluded Rivas was impaired over an hour later, at 10:58 p.m., in front of his residence, is not evidence of impairment at the time of driving when he moved his car. Pet. Op. Br. at 8.

The reasonable cause determination is more tenuous because the incident occurred at or in front of Rivas’ residence. AR 14. For over an hour, between driving and parking his vehicle and the interview, Rivas had access to any amount of food and/or drink in his home. Pet. Op. Br. at 8.

The DMV initially responds that this is not a search and seizure case. Although Rivas inaccurately summarizes Penal Code section 836 and references to the Fourth Amendment, section 40300.5 governs warrantless arrests for misdemeanor drunk driving offenses not committed in the presence of the officer. People v. Thompson, (2006) 38 Cal.4th 811, 821.

(d) The person may cause injury to themselves or damage property unless immediately arrested.

(e) The person may destroy or conceal evidence of the crime unless immediately arrested.” §40300.5 (emphasis added).

“Section 40300.5 shall be liberally interpreted to further safe roads and the control of driving while under the influence of an alcoholic beverage or any drug in order to permit arrests to be made pursuant to that section within a reasonable time and distance away from the scene of a traffic accident.” §40300.6; Corrigan v. Zolin, (1996) 47 Cal.App.4th 230, 235. “The obvious intent of the Legislature in enacting section 40300.5 was to eliminate, in misdemeanor drunk driving cases, the troublesome requirement that a peace officer can make an arrest only if he has reasonable cause to believe that the person to be arrested had committed the offense in his presence.” People v. Jordan, (1977) 75 Cal.App.3d Supp. 1. Section 40300.5 is an exception to the general requirements of warrantless arrests under Penal Code section 836 because of the substantial dangers created to the public by driving under the influence. People v. Thompson, supra, 38 Cal.4th at 821.

In reply, Rivas refutes any relevance of Penal Code section 836’s requirement that a misdemeanor must be committed in the officer’s presence and section 40300.5’s exceptions to that requirement. He states that the failure to commit a crime in the officer’s presence and need for a warrant is not the issue. The issue is whether Deputy Loera have reasonable cause to believe that Rivas committed a DUI. Section 40300.5 expressly requires the officer to have reasonable cause to believe that the person had been driving while under the influence in order for one of the warrantless exceptions to occur. Reply at 4.

Rivas contends that, at its foundation, this is a Fourth Amendment case because Deputy Loera lacked reasonable cause. Reply at 4. Deputy Loera had reasonable cause to believe that Rivas had disturbed the peace an hour before his arrival in violation of Penal Code section 415(2), and also had reasonable cause to believe that Rivas was drunk in public at the time of initial contact in violation of Penal Code section 647(f). But Deputy Loera did not have reasonable cause to believe that Rivas had driven a vehicle while under the influence of alcohol in violation of section 23152. There is no evidence that Rivas consumed alcohol before the act of driving. Reply at 4, 5.[3]

This case presents the difference between a criminal prosecution for driving under the influence under section 23152 -- which requires proof beyond a reasonable doubt that the person actually drove under the influence – and section l3557(b), which requires only that the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of section 23152. Criminal and administrative per se proceedings are separate, distinct, and have different standards of proof. There need not be proof in the administrative hearing that the person actually drove while under the influence, only that the officer had reasonable cause to believe the person did so. Troppman v. Valverde, (2007) 40 Cal.4th 1121, 1134. The evidence required for the establishment of reasonable cause is less than that required to satisfy the reasonable doubt or preponderance of the evidence standards. Burkhardt v. Department of Motor Vehicles, (1981) 124 Cal.App.3d 99, 109.

Applying this standard, Deputy Loera had reasonable cause to believe that Rivas was under the influence when Burdige saw him move his vehicle. Deputy Leora and his partner responded to a call made at approximately 9:51 p.m. that a male was yelling and “possibly drunk”. AR 16. The information that Rivas was possibly drunk, could only have come from Burdige, who reported the information at an unknown time. AR 14.

When Deputy Leora and his partner responded, Burdige flagged Deputy Leora down and reported that he saw Rivas yelling, driving, and parking his vehicle, and that he had maintained visual contact with Rivas at all times. AR 16. Burdige positively identified Rivas as the person driving the vehicle inebriated. AR 10, 16.[4]

At approximately 10:58 p.m., Deputy Leora then contacted Rivas, who was sitting on the curb and exhibited objective symptoms and signs of alcohol intoxication. The strong smell of alcoholic beverage emitted from Rivas’ person and breath, his eyes were bloodshot and watery, his speech was slurred, mumbled and slow, and his coordination was unsteady, staggering, and swaying. AR 14, 16.

Despite displaying objective signs of intoxication, Rivas denied having had anything to drink or having driven. AR 16. Deputy Leora had good reason to believe both statements were not true.

Finally, Rivas’ vehicle was sticking out into the roadway, making it a hazard for traveling vehicles. AR 16.

Based on this evidence, Deputy Leora knew that Burdige had reported a male as yelling and possibly drunk, and that Burdige had been sufficiently concerned that he had maintained visual contact with Rivas for over an hour. Burdige reported that Rivas had driven his vehicle and parked it on the street and Deputy Leora observed that the vehicle was sticking out into the roadway in a manner that made it a hazard. Further, Deputy Leora reasonably believed from his own observations that Rivas was under the influence when he was contacted at the curb.

As a resuly, Deputy Leora could reasonably conclude that Rivas and had moved his vehicle while under the influence. Rivas’ poor parking of the vehicle is circumstantial evidence of this fact. Deputy Leora could also conclude that Rivas’ lies that he had not been drinking and that he had not driven the vehicle reflected his guilty knowledge.

The DMV’s opposition is correct that Rivas’ speculation that he “could have engaged in countless activities” and “had access to any amount of food and/or drink in his home” in the time between moving his car and being contacted by Deputy Leora is unsupported by any evidence from the APS hearing. In fact, the speculation belies Rivas’ statement to Deputy Leora that he did not have anything to drink (which of course was false). Opp. at 15.

The Hearing Officer reasonably concluded that Deputy Leora had reasonable cause to believe that Rivas drove his vehicle while under the influence.

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. Examples of cases where circumstantial evidence supported probable cause to arrest for DUI include the following: Dibble v. Gourley, (2002) 103 Cal.App.4th 496 (driver left the scene of an accident and that within 30 minutes of that accident had the odor of an alcoholic beverage, bloodshot eyes, slurred speech and an unsteady gait); Johanson v. Department of Motor Vehicles, (1995) 36 Cal. App. 4th 1209, 1217 (driving wrong way, striking objects and a person with the vehicle, bloodshot eyes, slurred speech, and unsteady gait); People v. Lively, (1992) 10 Cal. App. 4th 1364, 1367 (1992) (slurred speech, red and bloodshot eyes; staggering when walking, odor of alcohol on his breath, FSTs); Martin v. Department of Motor Vehicles, (1976) 54 Cal. App. 3d 903, 907 (speeding, weaving, unsteady on his feet, gait unsteady, flushed of face, eyes watery, speech slurred and a breath that smelled strongly of alcohol, and refused to take FSTs).

Although Rivas discusses the Fourth Amendment probable cause requirements for a warrantless arrest (Pet. Op. Br. at 6-7), he acknowledges that his argument that he was unlawfully arrested is based solely on lack of reasonable cause. Pet. Op. Br. at 9; Reply at 3-4. It follows from the court’s determination on reasonable cause that Rivas’ arrest was lawful.

3. Whether Rivas Refused to Submit to, or did Not Complete, the Test After Being Requested by Deputy Loera

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

Rivas does not dispute that he refused to submit to a chemical test after being requested by Deputy Loera.

5. Whether Rivas Had Been Told That His Driving Privilege Would Be Suspended if He Refused to Submit to the Test

Rivas does not dispute that he was properly admonished about the consequences before his refusal.

The petition for writ of mandate is denied. The DMV’s counsel is ordered to prepare a proposed judgment, serve it on Rivas’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for March 11, 2025 at 9:30 a.m.

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

[2] The very purpose that commonly recognized objective symptoms of intoxication are prominently listed on the first page of a DUI Complaint Report is so an officer can report and document material factors in his/her probable cause determination. Pet. Op. Br. at 8, n. 2.

[3] Rivas distinguishes the case cited by the DMV’s opposition, Corrigan v. Zolin, (1996) 47 Cal.App.4th 233. There, a woman consumed alcohol at an open house, drove a vehicle, and caused a collision near her home. Officers arrived two hours later and found her at home, intoxicated. The court ruled there was reasonable cause to believe she had violated section 23152 despite the two-hour delay. The fundamental difference between that case and this is that the driver in Corrigan admitted drinking several glasses of wine at the open house.” Id. at 233. Deputy Loera only had evidence that Rivas was yelling before he moved his car. Reply at 5.

[4] One can argue that Deputy Leora’s account that Burdige identified Rivas as the person driving inebriated (AR 10) is inconsistent with the DUI Complaint Report, which states only that he identified Rivas as the person driving the vehicle (AR 16). But there can be no doubt that Burdige reported that he suspected Rivas was drunk (AR 16).