Judge: James C. Chalfant, Case: 25STCP00163, Date: 2025-04-24 Tentative Ruling

Case Number: 25STCP00163    Hearing Date: April 24, 2025    Dept: 85

A reasonable suspicion does not require than an officer observe all elements of criminal conduct.  Rather, it requires that an officer to be able to point to specific articulable facts that, considered in light of the totality of the circumstances provide some objective manifestation that the person detained may be involved in criminal activity.  People v. Souza, (1994) 9 Cal.4th 224, 231.  “[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.  Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.  The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]”  Id. at 893.

Elodat correctly notes (Pet.  Op. Br. at 12) that, although an officer’s sworn statement and unsworn arrest report are collectively admissible at the administrative per se hearing (Murphey v. Shiomoto, (2017) 13 Cal. App. 5th 1052, 1063), the DMV may not apply the official duty presumption in Evid. Code section 664 to the lawfulness of Elodat’s stop, detention, and arrest.  Evidence Code section 664 explicitly provides: “This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.”  Thus, if a driver controverts the legality of the arrest, the DMV has the burden of establishing the legality without reliance on the “official duty” presumption.  Fisk v. Department of Motor Vehicles, (1981) 127 Cal. App. 3d 72, 78.

Elodat notes that a stop is presumed unlawful where it is not based on a warrant.  Badillo v. Superior Court, (1956) 46 Cal.2d 269.  An investigatory stop of a vehicle requires “specific, articulable facts” that a person is engaged in criminal activity.  People v. White, (2003) 107 Cal. App. 4th 636, 641) (citing United States v. Twilley, (9th Cir. 2000) 222 F.3d 1092, 1095).  “[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law.”  People v. Wells, (2006) 38 Cal. 4th 1078, 1082 (citing Ornelas v. United States, (1996) 517 U.S. 690, 693.  “An investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.” Id. at 1083.  For a lawful stop, all the facts necessary for reasonable suspicion to be established must be sufficiently articulated by the officer.  In re Tony C., supra, 21 Cal.3d at 888.  Pet. Op. Br. at 11-12.

Elodat argues that the DS-367 and arrest report clearly show that she was already stopped and detained when Officer Chang arrived at the scene.  Both reports state that, upon his arrival, Officer Chang “contacted El Segundo police officers who had a female subject detained”.  The DS-367 and arrest report do not have “specific, articulable facts” to support a reasonable suspicion that Elodat was involved in criminal activity when she was stopped by El Segundo PD.  The only fact articulated in the report is that as Officer Chang responded to the scene “an involved female driver, who appeared to be intoxicated, was walking away from the scene.”  There is no further description of the female walking away.  There are no further facts the El Segundo PD officers had to believe that Elodat was the female who was walking away from the crash.  In fact, there is no evidence that the El Segundo PD officers even knew a female driver was walking away from a crash.  Pet. Op. Br. at 13.

The court disagrees.  As demonstrated by the following facts, the El Segundo PD officers conducted a police-citizen encounter, which is the most easily justified contact permitted under the Fourth Amendment – and had from Elodat’s answers a reasonable suspicion that a crime had been committed and that she was involved.

On October 02, 2024, MBPD Officer Boyes was dispatched to the scene of a collision and arrived at 0615 hours.  AR 20.  There he observed the accident scene and the fact that the driver of the white Mercedes had fled the scene.  AR 21.  The driver of the white Mercedes (Elodat) fled the scene prior to police arrival.  AR 21. 

Fifteen minutes after the collision, Elodat was contacted by El Segundo PD officers near the True Foods located inside the Point shopping mall, a very short distance from the collision.  AR 20.  El Segundo PD Officer Reyes was the initial contact officer.  AR 9.  He stated that he found Elodat walking away from the collision with her phone to her ear.  AR 9.  She did not comply with Reyes’ orders to stop walking.  AR 9.  Officer Reyes had to reach for Elodat’s phone to convince her to stop.  AR 9.  Elodat told Reyes she was the registered owner of the white Mercedes but denied driving it.  AR 9.

Around 0700 hours, MBPD Officers Pereira and Chang were dispatched to the traffic collision scene.  AR 9.  While en route, dispatch informed them that an involved female driver, apparently intoxicated, was leaving the scene on foot.  AR 9.

Contrary to Elodat’s argument, it is clear from Reyes’ questioning of Elodat that he knew there was a traffic accident involving a white Mercedes.  He also knew that Elodat was walking away from her own car and that her car was involved in the accident.  This is a reasonable basis for Elodat’s initial detention.

Upon their arrival, Pereira and Chang contacted the El Segundo PD officers who had detained Elodat.  AR 9.  Chang noticed that she exhibited objective symptoms of impairment, including inability to follow directions, unsteady gait, bloodshot and watery eyes, and slurred speech.  AR 9.  Her driver’s license identified her as Elodat.  AR 9.  Pereira and Chang relieved the El Segundo PD officers and took custody of Elodat.  AR 9.  Elodat denied involvement in the accident and requested to leave.  AR 9.  Because Elodat was uncooperative, and based on their observations and information, Pereira and Chang handcuffed and detained Elodat pending further investigation.  AR 9.  These are articulable facts justifying further detention for a DUI/hit and run investigation.

2. Whether Elodat 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 Chang had probable cause to arrest Elodat based on his observations of her objective signs of intoxication, including slurred speech, red, watery eyes, emitting the odor of alcohol, an unsteady gait, her refusal to perform FSTs, and dispatch call and witness statements identifying her as the driver of the white Mercedes involved in the collision.  AR 27-28.  Elodat does not dispute that she was lawfully arrested. 

3. Whether Elodat Refused to Submit to, or did Not Complete, the Test After Being Requested by Chang

Chang read Elodat the chemicall test admonition per section 23612.  AR 10.  Elodat stated that she understood but refused to take a chemical test.  AR 10.  At the jail, Pereira and Chang attempted to administer a breath test with Elodat’s consent, but she would not follow instructions and so failed to properly perform the test.  AR 10.  Elodat does not dispute that she refused to take or complete a chemical test.

4. Whether Elodat Had Been Told That Her Driving Privilege Would Be Suspended if She Refused to Submit to the Test

The arrested driver shall be advised that they have a choice of blood or breath test.  §23612(a)(2)(A).  The driver also shall be told that his or her failure to submit to or complete a chemical test will result in certain penalties, including license suspension.  §23162(a)(1)(D).  The officer shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.  §23612(a)(4).  If 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). 

Section 13353 requires that the 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.  Cole v. Department of Motor Vehicles, (1983) 139 Cal.App.3d 870, 873.  Only a lack of understanding due to no fault of the driver excuses a refusal to take a test; a self-induced condition, like drunkenness, does not qualify as a permissible ground.  Eilinger v. Department of Motor Vehicles, (1983) 143 Cal.App.3d 748, 751. 

A motorist will be deemed to have refused testing unless he clearly and unambiguously manifests consent by selecting and completing a chemical test.  Garcia v. Department of Motor Vehicles, (2010) 185 Cal.App.4th 73, 82-83.  Consent which is not clear or unambiguous may be deemed a refusal as may qualified or conditional consent.  Carrey v. Department of Motor Vehicles, (1986) 183 Cal.App.3d 1265, 1270-71.  

The chemical admonition in the DS-367 provided verbatim to an arrestee contains no inconsistencies or ambiguities and an arrestee cannot claim confusion from the admonition itself.  Blitzstein v. Department of Motor Vehicles, (“Blitzstein”) (1988) 199 Cal.App.3d 138, 142 (where arrestee received a Miranda warning and declined to waive his rights, but then agreed to a urine test after the chemical admonition, officer had no reason to suspect confusion or duty to explain).  The officer is not required to determine the psychological state of the arrested driver’s mind.  Elinger v. Director of Cal. Department of Motor Vehicles, (1983) 143 Cal.App.3d 748, 752.)  There also is no requirement that a refusal to take a chemical test be intelligently made to trigger the sanction of suspension of the driver’s license.  Maxsted v. Department of Motor Vehicles, (1971) 14 Cal.App.3d 982, 987; Goodman v. Orr, (1971) 19 Cal.App.3d 845, 857.  However, where an arrestee receiving Miranda warning mistakenly believes that he had the right to consult with an attorney and expresses that confusion with respect to the chemical test, the officer may have duty to explain.  See Blitzstein, supra, 199 Cal.App.3d at 142. 

Elodat contends that the combination of a Miranda warning and the chemicall test admonition created officer-induced confusion.  She argues that Officer Chang advised her under Miranda, then arrested her when she exercised her right to remain silent and refused to perform FSTs.  Thereafter, Officer Chang read the chemicall test admonition on the DS-367 and asked her if she would complete a breath or a blood test.  Elodat invoked her right to an attorney, just as Officer Chang had advised her that she had the right to do when he read her Miranda rights.  At that point, Officer Chang had an obligation to explain to Elodat, beyond merely reading the chemicall test admonition, that her right to an attorney referred to in the Miranda warning did not apply to the decision whether to submit to a breath or blood test.  For this reason, her refusal is excused under the law.  Pet. Op. Br. at 13-15.

Elodat relies heavily on Hoberman-Kelly v. Valverde, (2013) 213 Cal.App.4^th 626.  Pet. Op. Br. at 13-14.  There, the arrested driver was read her Miranda rights in the patrol car.  Id. at 629.  She was taken to the CHP station where the chemical admonition was read to her verbatim from the DS-367.  Id.  The arrestee saw a sign on the wall at the station advising her of her right to make a phone call, and she said she wanted to call her attorney and make the phone call to which the sign said she was entitled.  Id. She became belligerent, and at one point freed herself from her handcuff, but also made plain that she did not understand why she could not make the phone call.  Id.  During the chemical admonition reading, she stated several times that she had no problem with taking a blood test but wanted to first make a phone call.  Id.  The officer did not respond to her request and made no effort to explain that she had no right to an attorney before submitting to the chemical test.  Id. Instead, he continued to disjointedly read the admonition interspersed with her demands.  Id.  The admonition included the fact that the arrestee was not entitled to an attorney before deciding to take the test, but the officer must have been aware that she did not hear it.  Id.  After the chemical admonition, the arrestee agreed to take the blood test, but the officer responded “that’s a no.”  Id.  The arrestee became angry and repeatedly said that she would give a blood test and the phlebotomist administered the blood test without incident.  Id. at 630.  The hearing officer found a refusal because the arrestee initially refused and insisted she wanted to talk to an attorney and her opportunity to change her mind had expired.  Id.

The court noted that California courts have excused refusals on the ground of officer-induced confusion resulting from the juxtaposition of the chemical admonition and a Miranda warning, and the officer’s failure to clarify and explain the difference.  Id. at 632 (citation omitted).  The issue of officer-induced confusion is one of fact.  Id.  In this case, it is questionable whether officer-induced confusion would provide a defense if the arrestee had refused to take a blood test.  Id.  On the one hand, it is incumbent upon the arresting officer to elaborate on the warning if the person expresses confusion about the Miranda warning in conjunction with the chemical admonition.  Id. at 632-33.  On the other hand, the officer need only erase confusion caused by the officer’s own statements.  Id. at 634.  While there was no evidence that the officer made any incorrect or misleading statements, it was unmistakably apparent that the Miranda warning combined with the sign on the wall led the arrestee to believe she had the right to make a telephone call to her attorney before deciding whether to take the tests.  Id.  When a driver who receives a Miranda warning manifests confusion by asserting her right to an attorney, the officer needed to make a genuine effort to communicate that the constitutional rights previously explained to the plaintiff did not apply to the implied consent to a chemical test.  Id. A mechanical reading of the admonition is insufficient to remove officer-induced confusion.  Id. 

Although the arrestee repeatedly asked why she could not make a phone call as the sign indicated, he made no effort to respond.  Id.  The arrestee repeatedly told the officer that she would take a blood test both before and after the officer marked her as a refusal.  Id.  She never refused to submit to a blood test and certainly never did so after receiving the chemical admonition.  Id.  Because the officer both failed to make any effort to dispel her confusion and ignored her repeated statements that she would submit to a blood test, the court affirmed the trial court’s writ of mandate setting aside the suspension.  Id.

DMV correctly argues that Elodat failed to raise an issue of officer-induced confusion at the hearing and it is waived.  Opp. at 17.  As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies.  See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554.  Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures.  Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.  The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.”  Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293. 

The issue of officer-induced confusion fails even if, arguendo, the court should consider it.  California courts have excused refusals on the ground of officer-induced confusion resulting from the juxtaposition of the chemical admonition and a Miranda warning, and the officer’s failure to clarify and explain the difference.  Hoberman-Kelly, supra, 213 Cal.App.4th at 632 (citation omitted).  Although Elodat cites no case so holding, the court agrees that the juxtaposition of a Miranda warning and the chemical admonition by itself can result in officer-induced confusion, even though everything the officer said is accurate because the language of the two advisements is contradictory.  Under Hoberman-Kelly, a request for an attorney in direct response to the officer’s advisement that the arrestee has no right to an attorney for the chemical test expresses confusion about the two warnings.   

The crucial factor in determining whether a refusal is the result of confusion is not the state of the arrestee’s mind, but the fair meaning to be given his response to the demand that he submit to a chemical test.  McGue v. Sillas, (1978) 82 Cal.App.3d 799, 804 (arrestee’s mere insistence on consulting with an attorney did not establish officer-induced confusion).  Confusion can be caused only by the officer’s statements.  McDonnell v. Dept. of Motor Vehicles, supra, 45 Cal.App.3d at 659.

Elodat has not presented sufficient evidence that she was confused by the juxtaposition of the two warnings.  It is worth noting that Elodat was not unfamiliar with the process as her driving record indicates a prior APS finding of driving with a BAC of 0.08 percent or more as result of an arrest on December 10, 2014.  AR 23-24.  This fact makes confusion less likely, although certainly possible.

The pertinent facts are as follows.  Elodat was uncooperative and Pereira and Chang handcuffed and detained her pending further investigation.  AR 9.  Chang read the Miranda warning to Elodat, which she stated she understood.  When asked, Elodat informed Chang that she did not want to discuss what happened.  AR 9.

Officer Pereira offered FSTs to Elodat, which she refused.  AR 10.  Chang read Elodat the chemicall test admonition per section 23612.  AR 10.  Elodat stated that she understood but refused to take a chemical test.  AR 10.  Specifically, the DS-367 states that Elodat was read the chemicall test admonition at 0720 hours.  AR 4.   When asked “Will you take a Breath Test?”, Elodat replied: “No, I want my lawyer.”  AR 4.  When asked “Will you take a Blood Test?”, Elodat replied: “No, I want my lawyer.”  AR 4.  Based on this further information, Pereira and Chang arrested Elodat for suspicion of DUI.  AR 10.  At jail, Pereira and Chang attempted to administer a breath test with Elodat’s consent, but she would not follow instructions and so failed to properly perform the test.  AR 10.

These facts negate any confusion by Elodat.  The proximity of the Miranda warning and the chemical admonition is unknown.  What is known is that Elodat was uncooperative and refused FSTs.  In the same uncooperative vein, she expressly answered “No” to Chang’s request that he submit to a breath or blood test.  The fact that Elodat embellished on her clear “No” with a reference that she wanted her lawyer was not an expression of confusion.  Rather, it was the behavior of an arrestee who heard the chemical admonition but refuses a test by stating that he would like to speak to an attorney before taking the chemical test.  Pepin v. Department of Motor Vehicles, (1969) 275 Cal.App.2d 9, 10.  Elodat expressly stated that she understood the chemical test admonition.  The fact that Elodat subsequently consented to (but failed) a breath test at the jail strongly shows that she was not relying on, and not confused by, the Miranda warning.

This case is similar to Blitzstein, supra, 199 Cal.App.3d at 142, where the arrestee was given both a chemical test admonition and a Miranda warning, which he declined to waive, and his subsequent agreement to perform a urine test belied any claim of confusion.  Id.  Similarly, Elodat did not rely on the Miranda warning to assert her right to an attorney in refusing a chemical test.

Hoberman-Kelly is factually distinguishable.  In that case, the arrestee saw a sign at the station stating that she had the right to make a phone call, she made plain that she did not understand why she could not call her attorney, she did not hear the admonition and asked to read it herself, she stated several times that she had no problem with taking a blood test but wanted to first make a phone call, after the officer said it was a refusal she repeated that she would take the blood test, and she in fact did accept a blood draw.  213 Cal.App.4^th at 629.  The court stated that it was questionable whether officer-induced confusion would provide a defense if Hoberman-Kelly had refused to take a blood test.  Id. at 632.  The court held that, when a driver who receives a Miranda warning manifests confusion by asserting her right to an attorney, the officer needs to make a genuine effort to communicate that the constitutional rights previously explained to the plaintiff did not apply to the implied consent to a chemical test.  Id. at 634.  A mechanical reading of the admonition is insufficient to remove officer-induced confusion.  Id.

In contrast, Elodat acquired no separate information – such as a sign on the wall -- besides the Miranda warning and chemical test admonition.  Elodat clearly heard the chemical test admonition and stated that she understood it.  She never indicated that she would take a test and instead expressly refused a test in favor of talking to her lawyer.  Finally, there is no evidence that Chang rendered a mechanical reading of the significant part of the chemical admonition.

Accordingly, there is insufficient evidence that Elodat was confused by the Miranda warning in conjunction with the chemical admonition. 

5. Elodat Did Not Receive a Fair Hearing

Elodat contends that she did not receive a fair hearing. 

a. Exhaustion of Administrative Remedies

The DMV argues that Elodat failed to exhaust her administrative remedies on this due process issue by raising it at her hearing.  Constitutional issues not raised in earlier judicial civil proceedings are generally forfeited.  In re Marriage of Minkin, (2017) 11 Cal.App.5th 939, 958.  This rule applies to due process challenges regarding administrative proceedings. Southern Cal. Underground Contractors, Inc. v. City of San Diego, (2003) 108 Cal.App.4th 533, 549.  “‘It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or “skeleton” showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court.’”  Milligan v. Hearing Aid Dispensers Examining Comm., (1983) 142 Cal.App.3d 1002, 1008 (citation omitted).  Opp. at 18.

Elobat correctly rebuts this argument.  An exception to the exhaustion requirement exists when “the agency is given no jurisdiction to make a judicial determination of the type involved.” McAllister v. Cty. of Monterey, (2007) 147 Cal. App. 4th 253, 276 (2007) (quoting County of Alpine v. County of Tuolumne, (1958) 49 Cal. 2d 787, 798).  At a refusal hearing the “only issues” to be decided are the issues in section 13357.  §13558(c)(1).  Those issues do not include whether the DMV is conducting the hearing in an unauthorized manner.  Reply at 7.

A second exception exists when it would have been futile to raise the issue below. Knudsen v. Department of Motor Vehicles, (2024) 101 Cal. App. 5th 186, 196.  An objection to DMV’s hearing procedure at an APS hearing would be futile because the DMV actively fights challenges to its procedures, it has recently adopted regulations supporting its procedure,  and there is no “reasonable chance of the public hearing officer/DMV doing anything other than overruling an objection.” See id. at 196-97.  Reply at 7.[3]

The DMV Procedure for APS Hearings

Elobat presents the procedure followed by the DMV for APS hearings.  Pet. Op. Br. at 15-16.  The process at the DMV begins when it receives a copy of the order of suspension or revocation and DS-367. Espinoza v. Shiomoto, (2017) 10 Cal. App. 5th 85, 99.  An officer is required to forward these documents to the DMV within five business days of the arrest. §13380(a).  The DMV must conduct a review of the DS-367, and any evidence accompanying it, to determine if there was reasonable cause to believe the person was DUI, the person was arrested, the person refused or failed to complete the chemical test or tests after being requested by a peace officer, and the person had been told their license would be suspended or revoked if they refused.  §13557(b)(1)(A)-(D).  If the person requests an APS hearing the DMV is not required to conduct the review.  §13557(e).

At a refusal hearing, the only issues to be decided are those “listed in paragraph (1) of subdivision (b) of section 13557.”  §13558(c)(1).  In general, the Administrative Procedures Act (“APA”) “governs evidentiary hearings conducted by all state agencies.” AIDS Healthcare Found. v. State Dep't of Health Care Servs., (2015) 241 Cal. App. 4th 1327, 1338.  “The governing procedure by which an agency conducts an adjudicative proceeding is determined by the statutes and regulations applicable to that proceeding.  If no other governing procedure is provided by statute or regulation, an agency may conduct an adjudicative proceeding under the administrative adjudication provisions of the Administrative Procedure Act.”  Govt. Code §11415.10. 

Certain agencies conduct hearings pursuant to statutes and regulations that do not incorporate the APA and “[s]till other agencies, pursuant to their respective governing statutes, follow only selected provisions of the APA.” Id. at 1339.  APS hearings are governed by sections 14100-06.  §13558(a).  Those section do not address all procedural aspects of an APS hearing and, to fill the gaps, “[a]ll matters,” not covered by those sections “are governed, as far as applicable, by Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.” §14112(a).  “There is no dispute that the DMV is an agency for purposes of chapter 5 of the APA.” Cisneros v. Dep’t of Motor Vehicles, (2024) 104 Cal. App. 5th 381, 410.  In addition, Chapter 4.5 of the APA (Govt. Code §§ 11400-475.70) is applicable to APS hearings.  Govt. Code §11501(c); Ramirez v. Superior Court, (2023) 88 Cal. App. 5th 1313, 1325-27.  Pet. Op. Br. at 15.

APS hearings are conducted by a “hearing officer” appointed by the Director of the DMV. §14104.2(a).  Government Code section 11425.30(a) states: “A person may not serve as presiding officer in an adjudicative proceeding in any of the following circumstances: (1) The person has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. (2) The person is subject to the authority, direction, or discretion of a person who has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.”  However, section 14112(b) exempts the DMV from the requirements of Government Code section 11425.30(a).  Pet. Op. Br. at 15.

When there is a hearing, the DMV “shall consider its official records and may receive sworn testimony.” §14104.7.  Police reports and police recordings “cannot be characterized as part of the DMV’s official record.” Lake v. Reed, (1997) 16 Cal. 4th at 460.  However, Government Code section 11513(c) controls the evidence that can be presented at the hearing and permits, but does not require, the use of police reports at an APS hearing.  Id. at 460-61.  At a hearing, the DMV is not required to rely on a DS-367 but may instead call an officer to give sworn testimony. Morgenstern v. Dep't of Motor Vehicles, (2003) 111 Cal. App. 4th 366, 377.  Thus, the hearing officer at an APS hearing determines what evidence to introduce on behalf of the DMV. 

b. DUI Lawyers

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, Inc. v. Los Angeles County Office of Education, (“Today’s Fresh Start”) (2013) 57 Cal.4^th 197, 220.[4]  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 court in California DUI Lawyers Association v. California Department of Motor Vehicles, (“DUI Lawyers”) (2022) 77 Cal.App.5th 517, held that 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 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.

DUI Lawyers noted that “[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.

DUI Lawyers explained that the DMV is a party to an adversarial APS hearing.  Id. 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.[5]  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 court in Knudsen v. Department of Motor Vehicles, (“Knudsen”) (2024) 101 Cal.App.5th 186, 206-07, suggested that the driver's due process right to an impartial adjudicator is not violated, and the constitutional issue is resolved, if the DMV hearing officer does not act as an advocate for the DMV or law enforcement.[6]  

The court in Clarke v. Gordon, (“Clarke”) (2024) 104 Cal.App.5^th 1267, 1270, did not decide this constitutional issue.  It did state: “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”.  Id.  It also stated: “we do not resolve that issue in this opinion.” Id.  Opp. at 16.

c. Application of DUI Lawyers

Elobat argues that the Hearing Officer, as the DMV’s representative at the hearing, admitted documents into evidence at her hearing and then rendered a decision based on the very documents she admitted.  While there was no witness for the Hearing Officer to cross-examine, neither DUI Lawyers nor Clarke require that she have done so to be a due process violation; it is the structure of the DMV hearing that is the violation.  The fact that the Hearing Officer did not examine witnesses does not change the fact that the hearing structure was a combination of circumstances creating an unacceptable risk of bias.  There is little need for the hearing officer to “advocate” at all in an APS hearing since the hearing officer himself or herself is the only audience.  The problem with embodying the roles of DMV representative and hearing officer in one person is that the functions of both roles take place in the mind of that person, creating an unacceptable risk of bias. The threat to due process is not oral advocacy by the hearing officer, but the risk of bias.   That threat to due process is greater when “the advocacy and decision making roles are combined in one individual.” DUI Lawyers, supra, 77 Cal. App. 5th at 532 (the lack of a need for ex parte communications between the DMV’s advocate and the decision-maker demonstrates “how the practice here poses an even greater threat to due process”).   There is no way for the court to divine from the record whether the Hearing Officer approached the hearing as an impartial decision-maker. The due process violation is that the hearing structure itself and is not dependent on the specific conduct of the hearing officer.  See id. at 530.  Pet. Op. Br. at 19.

Elobat argues that the July 2024 regulations permit DMV hearing officers to do what both DUI Lawyers and Government Code section 11425.30 prohibit, which is to serve as an investigator, prosecutor, or advocate for the DMV while also serving as the fact finder.  The DMV cannot dismiss these prohibitions by passing a regulation.  “When there is a conflict between a regulation and a statute or decisional law, it is well settled that the law controls the regulation.”  Kerollis v. Dep't of Motor Vehicles, (1999) 75 Cal. App. 4th 1299, 1308.  Pet. Op. Br. at 18.

The DMV’s conduct in this matter demonstrates its bias.  The Hearing Officer did not just present the DS-367 Officer Chang was required to provide with accompanying evidence.  Someone at the DMV felt more evidence was required to be gathered beyond the DS-367 and directed P. Robles, an El Segundo DSO staff member, to request MBPD to (a) send the arrest report narrative, and (b) send the collision report (requested twice), and to twice issue SDTs for recordings.  The collision report and arrest report narrative were entered into evidence.  MBPD has had BWC since at least 2017 and presumably complied with the subpoenas.  It is unknown if the BWC were exculpatory as the DMV never provided copies to Elobat and the Hearing Officer never admitted them into evidence.  The Hearing Officer rendered a decision based on the evidence she chose to present to herself as the DMV’s representative.  Pet. Op. Br. at 20.

The DMV acknowledges that DUI Lawyers held section 14112(b) to be unconstitutional, but only “to the extent it permits the DMV to combine the advocacy and adjudicatory roles in a single APS hearing officer.”  77 Cal.App.5th at 533.  Otherwise, section 14112(b) is controlling and renders Government Code 11425.30(a) inapplicable because a review of the record under Knudsen demonstrates that the Hearing Officer never acted as an advocate.  The “gap filler” in section 14112(a) is inapplicable because section 14104.2(a) specifically provides the statutory authority for a hearing officer to conduct APS hearings.  Contrary to Elobat’s argument, the Hearing Officer, pursuant to her statutory authority under section 14104.2(a), exercised her role to conduct the APS hearing as the hearing officer appointed by the DMV Director.  Opp. at 19-20.

Further, the role of a DMV hearing officer is codified not as an advocate, but rather a neutral decision-maker who may investigate, gather evidence, and subpoena witnesses as necessary to determine whether a license should be issued, renewed, denied, revoked, or suspended under applicable statutes and regulations.  13 CCR §115.01.  Knudsen provides that a review of the APS hearing records, transcripts, and decision is necessary to determine if a hearing officer acted as an advocate, rather than merely collecting and developing evidence before rendering a decision.  101 Cal.App.5th at 206-07.  “The analysis will necessarily depend on the unique facts of each hearing.”  Id. at 207.  In Knudsen, the court found that the hearing officer engaged in advocacy by mischaracterizing testimony, asking questions from the perspective of an advocate, and making errors of law that significantly benefited the DMV.  Ibid.  Opp. at 20.

A review of the hearing records, transcripts and decision in this case demonstrates that the Hearing Officer did not act as an advocate.  She merely collected and dispassionately developed evidence before rendering a final decision.  DMV employee Robles, not the Hearing Officer, subpoenaed case documentation.  The Hearing Officer opened the administrative hearing by stating that she would be acting as a neutral factfinder who is prohibited from, and will not act as, an advocate for the DMV or law enforcement.  The Hearing Officer clarified that her role “is to review the evidence provided, ask clarifying questions of witnesses if necessary, and to make legal rulings and determinations under the relevant statutes if necessary.”  She then identified the relevant issues under section 23152 and 23153.  She gave Elobat, who was represented by counsel, the opportunity to make an opening statement, introduce evidence, and call witnesses, but Petitioner elected not to do so.  The Hearing Officer’s decision made findings based on the admitted evidence.  In sum, the record reflects that the Hearing Officer did not engage in any of the acts identified in Knudsen as amounting to advocacy.  See 101 Cal.App.5th at 212.  Accordingly, the Hearing Officer did not advocate on behalf of the DMV or otherwise exceed the DMV’s statutory authority.  Opp. at 21.

Elodat replies that it was against the backdrop of Today’s Fresh Start holding that a single agency, but not a single person, could serve in dual roles that DUI Lawyers held the DMV’s hearing procedure was unconstitutional.  The DMV’s argument that the Hearing Officer “merely collected and dispassionately developed evidence before rendering a final decision” was rejected by DUI Lawyers: “We are unpersuaded. Due process protections are not dispensed with simply because the “DMV hearing officer typically introduces two or three official documents into evidence and decides a limited number of issues.” 77 Cal. App. 5th at 532.  DUI Lawyers unequivocally held that, until there is a change in the structure of APS hearings, it is a due process violation for a DMV hearing officer to do what the Hearing Officer did here.  Elodat acknowledges that Knudsen concluded: “If a hearing officer does not actually act as an advocate, but instead merely collects and develops evidence and then renders a decision, then the due process right to an impartial adjudicator would not be violated in a particular case because the adjudicator did not actually act as an advocate.” 101 Cal.App.5^th at 207 (citing footnote 5 of DUI Lawyers, supra, 77 Cal.App.5^th at 533).  Elodat argues that footnote 5 was dictum and not the holding of DUI Lawyers, which was that the overlapping function of DUI hearing officers in a dual role creates an unacceptable risk of bias.  Reply at 10-11.

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 Elodat’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.  See also 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, supra, 57 Cal.4th at 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). 

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.  104 Cal.App.5^th at 1276-77.  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.   Although another employee obtained the documents, the Hearing Officer chose to mark and identify not only the DS-367 but also the arrest report and the traffic collision report.  She also chose not to use the BWC recordings presumably obtained by the subpoenas.  She also overruled the objections of Elobat’s attorney and received the exhibits into evidence, which she then used to decide the case.  While the Legislature has mandated that certain information shall be considered by the hearing officer at an APS hearing, the Hearing Officer overruled Elobat’s objections to all evidence she offered on behalf of the DMV. 

Thus, 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 Elobat.  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 DUI Lawyers, supra, 77 Cal.App.5^th at 532.

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. The court agrees.  Although at the margins, this case is within DUI Lawyers and Clarke v. Gordon, presenting an unacceptable risk of bias.

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.  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.

Elobat 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’s continued disregard of DUI Lawyers is further demonstrated by the DMV’s new regulation permitting itself to do what DUI Lawyers said it could not.  The award should not only encompass the DMV’s past conduct, but should also include attorney fees for a remanded hearing because it will be solely a result of the DMV’s unlawful conduct.  See Frase v. Gourley, (2000) 85 Cal. App. 4th 762, 765.  Pet. Op. Br. at 20-21.

The DMV argues that there is no evidence supporting, or even suggesting, that the Hearing Officer’s conduct was arbitrary or capricious.  The DMV based its decision on the evidence admitted at Elodat’s APS hearing and the Hearing Officer dispassionately developed the facts and rendered a final decision, which one person in an administrative agency is permitted to do.  See DUI Lawyers, supra, 77 Cal.App.5th at p. 533, n. 5; Today’s Fresh Start, supra, 57 Cal.4th at 220.   Nor is there any evidence that the Hearing Officer actually was biased against Elodat.  Opp. at 22.

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.  Elodat is awarded attorney fees under section 800.  The fees will include the attorney fees incurred for the remanded hearing, up to the maximum of $7500 under section 800.  See Frase v. Gourley, (2000) 85 Cal. App. 4th 762, 765

F. Conclusion

The Petition is granted solely on the due process issue.  A judgment and writ shall issue directing the DMV to set aside the révocation of Elodat driver’s license and conduct a new hearing in compliance with this decision.  Elodat is awarded attorney fees under section 800, including fees incurred in the remand hearing,  up to the statutory maximum of $7500. 

Petitioner Elodat’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 May 27, 2025 at 9:30 a.m.