Judge Mitchell L. Beckloff, Case 23STCP00499 2023-04-26 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP00499, Date: 2023-04-26 Tentative Ruling

Petitioner, Narinder Singh, seeks an order compelling Respondent, the Department of Motor Vehicles (DMV), to set aside its decision suspending Petitioner’s driving license.[1]

On November 21, 2021, at approximately 12:50 a.m., San Bernardino County Sheriff’s deputies were dispatched to the Jack-in-the-Box restaurant at 11767 Foothill Boulevard. The sheriff’s department had received “a report of a driver asleep in a white Range Rover in the [restaurant’s] drive thru.” (AR 19.) “Deputy G Jasso arrived at the scene at approximately 0057 hours and found a white Land Rover SUV (8JBT959) stopped at the entrance of the drive thru.” (AR 19) Petitioner was asleep in the driver’s seat with the vehicle in “drive” and his foot on the brake. (AR 19) Deputy Jasso woke Petitioner and asked him to exit the vehicle. (AR 19) Deputy Jasso then observed “obvious objective indicators of alcohol intoxication” and requested the assistance of Deputy Rebollar. (AR 19)

Deputy Rebollar arrived at the scene at 1:05 a.m. to conduct a driving under the influence investigation. (AR 19) Deputy Rebollar noticed objective indicators of alcohol intoxication during his contact with Petitioner; Petitioner’s face was flushed, he swayed as he stood up, his speech was slurred, and Deputy Rebollar smelled the odor of an alcoholic beverage emitting from Petitioner’s person. (AR 16, 19.) Petitioner admitted to consuming “4 to 5 shots of tequila” about two hours prior. (AR 19.) Deputy Rebollar administered standardized field sobriety tests (FSTs) which Petitioner did not complete to Deputy Rebollar’s satisfaction. (AR 17, 19-20.) At the conclusion of his investigation, Deputy Rebollar arrested Petitioner for violating Vehicle Code section 23152, subdivisions (a) and (b). (AR 20.)

Petitioner agreed to submit to a chemical breath test, and Deputy Rebollar transported Petitioner to the West Valley Detention Center. Petitioner thereafter (at approximately 2:00 a.m. and 2:03 a.m.) provided two breath samples; both tested showed a result of .12 percent blood alcohol concentration (BAC). (AR 21.)

Based on the BAC test results, Deputy Rebollar issued an administrative per se suspension/revocation order and temporary driver’s license. (AR 14.) Petitioner challenged the suspension within 10 days and requested a hearing. (AR 14, 37.)

The DMV conducted a hearing on the suspension on January 13, 2012 with its hearing officer. (AR 2.) The hearing officer noted Petitioner’s attorney’s appearance for the record and identified the issues for decision: “Did the peace officer have reasonable cause to believe the driver was driving a motor vehicle in violation of 23152 or 23153 of the Vehicle Code? Was the driver lawfully arrested? Was the driver driving a motor vehicle with 0.08 percent BAC or more of alcohol?” (AR 3.)

The hearing officer then invited Petitioner’s counsel’s opening statement. (AR 3.) Petitioner’s counsel stated: “I object that [] the hearing, this hearing, is in violation of due process because it is being conducted by a single hearing officer in violation of the [California DUI Lawyers Association v. California Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (CDLA)] case.” (AR 3.) Petitioner’s counsel also objected “that the arrest was unlawful, and it has to be lawful.” (AR 3.)

The hearing officer thereafter marked and received into evidence—without objection—the administrative per se form, “also known as the DS-367,” the sheriff’s department’s seven page “showing the officer’s narrative of the event,” and a five page “DMV driving record printout.” (AR 4, 5 [“No objections”].)

The hearing officer then heard closing argument from Petitioner’s counsel. (AR 5.) Petitioner’s counsel argued Sheriff’s deputies encountered Petitioner when he “was stopped in a Jack-In-The-Box drive-through . . . .” (AR 6.) “He was on a drive-through” on private property “which does not meet the definition of a roadway.” (AR 6.) Finally, Petitioner’s counsel argued “nothing establishes [] driving, so the three-hour presumption does not apply.” (AR 7.)

On January 19, 2023, the hearing officer issued the DMV’s decision. The DMV suspended Petitioner’s driving privilege effective January 29, 2023 through May 28, 2023 for driving with a BAC of .08 percent or more. (AR 28-30.)

Petitioner contends the DMV abused its discretion when it suspended Petitioner’s driving privilege because the DMV’s findings were not supported by the evidence. Petitioner also contends the DMV violated Petitioner’s due process rights through its hearing process.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

The parties do not dispute the suspension of a driver’s license is reviewed under the court’s

independent judgment. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396; Espinoza v. Shimoto (2017) 10 Cal.App.5th 85, 99.)

Accordingly, the court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) Under independent judgment, “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code of Civ. Proc., § 1094.5, subd. (b).)

Where the issue is whether a fair administrative hearing was conducted, a petitioner is entitled to an independent judicial determination of the issue. (Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1141; Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) Therefore, the court must independently review the fairness of the administrative proceedings as a legal issue. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1438.)

Finally, Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.)[2] “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) This presumption of correctness includes giving great weight to the agency’s credibility determinations even where the standard of review is independent judgment. (Fukuda v. City of Angels, supra, 20 Cal.4th at 819.)

As noted earlier, Petitioner’s counsel specifically objected at the beginning of the hearing to the structure of the DMV hearing based on CDLA. The hearing officer acknowledged Petitioner’s objection: “All right. Thanks so much, Counsel. So we’re going to introduce our first exhibit at this time here . . . .”[3] (AR 4.)

Petitioner argues the DMV’s administrative proceeding violated his due process rights relying on CDLA, supra, 77 Cal.App.5th at 517. In CDLA, the Court of Appeal 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.” (Id. at 532.)

Specifically, in CDLA, the Court found the hearing officer's dual roles as advocate and adjudicator in a DMV administrative per se (APS) hearing creates an unacceptable risk of bias by combining advocacy and adjudicatory roles into a single DMV employee. (CDLA, supra, 77 Cal.App.5th 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.) As result of CDLA, “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 [emphasis added].)

Petitioner argues his DMV APS hearing took place under the same system CDLA found violated due process. As at all APS hearings, the hearing officer stated the issues, introduced the DMV's evidence, and ruled on evidentiary objections to evidence. The hearing officer did it all--no other DMV employee was involved.

The DMV does not dispute the DMV’s APS hearing occurred pursuant to the same procedures held unconstitutional in CDLA. The DMV argues, however, the “possibility of bias alone is not enough to warrant reversal of a decision; actual bias or prejudice must be shown.” (Opposition 15:26-27 [citing Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549].) That is, CDLA does not mean the procedure here requires the court to provide Petitioner with relief. The DMV argues Petitioner must show actual prejudice resulted from the due process violation that—if remedied—would have resulted in a different outcome.

“That CDLA may not have demonstrated actual bias is not dispositive. Rather, evidence of a particular combination of circumstances creating an unacceptable risk of bias[4] is sufficient to render irrelevant the presumption that agency adjudicators are people of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances. [Citation.]” (CDLA, supra, 77 Cal.App.5th at 532 [cleaned up].)

Nonetheless, Petitioner must show something more than a mere failure to conduct an APS hearing consistent with due process and the standards enunciated in CDLA to obtain set aside of the agency’s order. Notably, Petitioner does not claim any actual bias or suggest any evidence in the administrative record demonstrating that the hearing officer did anything more than collect and develop the evidence before rendering a decision. That is, Petitioner does not demonstrate—and the record does not reflect—that the hearing officer here acted as an advocate for the DMV. (AR 2-8.)

Importantly, the plaintiffs as well as the Court of Appeal in CDLA recognized the particular circumstances of the APS hearing informed on whether there was a due process violation requiring the agency order be set aside. That is, the plaintiffs understood and “concede[d] the DMV may task the same person with both collecting and developing the evidence and rendering a final decision.” (CDLA, supra, 77 Cal.App.5th at 533 n. 5.) The DMV hearing officer, however, “must refrain [] from advocating on behalf of the DMV as the [Driver Safety Manual] currently mandates (i.e. present the DMV’s case and ‘promote driver safety,’ with no corresponding duty to present any evidence that would support the position of the driver at the hearing.” (Ibid. [emphasis is original].)[5]

In response to the notion Petitioner may be required to show something an APS hearing that does not comply with CDLA, Petitioner turns to the Supreme Court’s decision in F.P. v. Monier (2017) 3 Cal. 5th 1099, 1108, wherein the Court found a showing of actual prejudice or bias is not required when the hearing structure itself violates due process. (Reply 10:7-11:2.) While F.P. v. Monier teaches some constitutionally-required procedural deviations may constitute structural error, F.P. v. Monier is factually unrelated; how the case informs about the hearing structure in this particular instance is unclear.

Petitioner argues the dual role of the hearing officer created the theoretical possibility of bias in the hearing. In the administrative context, however, “a party claiming that the decision maker was biased must show actual bias, rather than the appearance of bias, to establish a fair hearing violation.” (Southern Cal. Underground Contractors, Inc. v. City of San Diego, supra, 108 Cal.App.4th at 549.) “ ‘[B]ias in an administrative hearing context can never be implied, and the mere suggestion or appearance of bias is not sufficient.’ ” (Ibid.)

As Petitioner does not claim actual basis and cannot point to any facts in the administrative record demonstrating “a particular combination of circumstances creating an unacceptable risk of bias” (CDLA, supra, 77 Cal.App.5th at 532), any constitutional error here is subject to harmless error analysis.[6] Under the harmless error standard, appellant must establish that there was a “reasonable probability of a more favorable result.” (Margarito v. State Athletic Com. (2010) 189 Cal.App.4th 159, 173.)

As noted, Petitioner does not suggest a different outcome would have resulted under a system that complied with the procedural due process requirements established by CDLA. Petitioner’s mere reliance on CLDA under the circumstances here is unavailing. While the DMV’s APS hearing structure may have violated Petitioner’s due process rights, Petitioner has not met his burden of demonstrating a reasonable probability of a more favorable result if the error had not occurred.

Importantly, the DMV hearing officer here did not advocate on behalf of the DMV. The hearing officer received evidence without objection and rendered a decision. Such circumstances do not warrant set aside of the DMV’s decision. Petitioner has not “ ‘come forward with “specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias” . . . .’ [Citation.]” (CDLA, 77 Cal.App.5th at 530 quoting Today’s Fresh Start (2013) 57 Cal.4th 197, 221.)

A driver served with such a suspension notice, like Petitioner, is entitled to a hearing to address three issues: (1) whether the arresting officer had reasonable cause to believe the driver was driving a motor vehicle; (2) whether the driver was lawfully arrested for an enumerated offense; and (3) whether the driver was driving a motor vehicle with a BAC of 0.08 or higher. (AR 3; Veh. Code, § 13557.)

The DMV’s decision required the hearing officer to find Officer Rebollar lawfully arrested Petitioner, and that the hearing officer properly applied the presumption Petitioner had been driving within three hours of his chemical test showing a BAC of more than .08 percent.

Petitioner argues the weight of the evidence does not support the DMV’s decision.

1. Whether the Weight of the Evidence Supports the Finding that the Arrest was Lawful

As a preliminary matter, the DMV may not suspend or revoke a driving privilege unless the driver has been lawfully arrested for a violation of Vehicle Code section 23152. (See Veh. Code, §§ 23612, 13353; Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 760.) A warrantless arrest by a peace officer for a misdemeanor is lawful only if the officer has reasonable cause to believe the misdemeanor was committed in the officer's presence. (Mercer v. Department of Motor Vehicles, supra, 53 Cal.3d at 761; Pen. Code, § 836, subd. (a)(1).) “The ‘in the presence’ requirement necessitates that the officer see the vehicle move.” (Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209, 1216; Mercer v. Department of Motor Vehicles, supra, 53 Cal.3d at 769.)

In California, generally “where an officer does not personally observe the driving element of the offense [of driving under the influence], a warrantless arrest for drunk driving is invalid.” (People v. Lively (1992) 10 Cal.App.4th 1364, 1367.) However, Vehicle Code section 40300.5 “provides exceptions to the requirement that misdemeanor drunk driving must occur in the arresting officer's presence.” (Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 174; People v. Schofield (2001) 90 Cal.App.4th 968, 975; Shaffer v. Department of Motor Vehicles (1977) 75 Cal.App.3d 698, 700.)

“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 himself or herself or damage property unless immediately arrested.

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

Additionally, Vehicle Code section 40300.5 must 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 . . . .” (Veh. Code, § 40300.6; Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 234.)

The hearing officer determined Deputy Rebollar properly arrested Petitioner pursuant to subdivision (b) of Vehicle Code section 40300.5. The hearing officer reasoned Deputy Rebollar observed Petitioner in or about a motor vehicle that was obstructing a roadway. (AR 29.) Thus, the hearing officer found Deputy Rebollar arrested Petitioner for violating Vehicle Code section 23152, 23153 or 23140 without a warrant pursuant to Vehicle Code section 40300.5. (AR 29.)

Petitioner argues Deputy Rebollar did not lawfully arrested him. Petitioner asserts there is no evidence anyone observed him driving and subdivision (b) of Vehicle Code section 40300.5 does not apply because a “drive thru at a fast-food restaurant is not a roadway.” (Opening Brief 6:5-6.)

The DMV contends otherwise. It argues the drive-through area of the restaurant constituted a “roadway” for purposes of Vehicle Code section 40300.5, subdivision (b).

The Legislature defines “ ‘Highway’ as a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.” (Veh. Code, § 360 [emphasis added].) The Legislature specifies “[a] roadway is that portion of a highway improved, designed, or ordinarily used for vehicular travel.” (Veh. Code, § 530 [emphasis added].)

Acknowledging the statutory definitions, the DMV argues the Legislature specifically distinguished that a highway must be a “publicly maintained.”[7] The DMV then asserts the Legislature thereafter omitted the “publicly maintained” requirement from the definition of a “roadway.” Therefore, according to the DMV, “a ‘roadway’ can be either public, or in this case, a private restaurant drive thru.” (Opposition 15:9-11.)

The court disagrees with the DMV’s statutory interpretation. In fact, as argued by Petitioner, the DMV’s interpretation mischaracterizes the definition of roadway and omits operative language from it. The Legislature’s definitions lead to the inescapable conclusion all roadways are highways because “roadway” is defined as a portion of the “highway.” As such, a roadway is publicly maintained. The statutory definitions necessarily exclude private property as roadways because they are not publicly maintained. The drive-through area of a private restaurant is not a roadway.

Finally, the DMV argues even if Vehicle Code section 40300.5, subdivision (b) did not allow the warrantless arrest here, other subdivisions—(c), (d) and (e)—of the statute did allow the warrantless arrest. (Opposition 14:26-27.) The hearing officer did not make any such alternative findings. (AR 29.) That is, the hearing officer did not decide whether the other circumstances in Vehicle Code section 40300.5 allowed a warrantless arrest. The court cannot make such findings in the first instance. (See American Funeral Concepts v. Board of Funeral Directors (1982) 136 Cal.App.3d 303, 311. [“However, the court cannot cure the agency’s improper finding. [Citation.] To permit such a post hoc cure would make unattainable the goals of findings elaborated in Topanga, supra, 11 Cal.3d 506. . . . This consideration precludes the court from cutting and pasting its premise upon an agency determination founded on a different premise.”])

Based on the foregoing, the court finds Vehicle Code section 40300.5, subdivision (b) did not authorize Petitioner’s warrantless arrest. The DMV’s decision must therefore be set aside.

2. Whether the Weight of the Evidence Supports the Finding the Three-hour Presumption Applies

The hearing officer also determined Petitioner had been “driving” within three hours of Deputy Rebollar obtaining Petitioner’s chemical test results. (AR 28.)

Subdivision (b) of Vehicle Code section 23152 provides where a chemical test completed within three hours of driving reveals a BAC of .08 percent of more, the driver is presumed to have had a BAC of .08 percent at the time of driving. The presumption applies to DMV APS hearings. (Murphey v. Shiomoto (2017) 13 Cal. App. 5th 1052, 1058.)

Petitioner argues nothing supports the finding Petitioner’s chemical breath tests were conducted within three hours of Petitioner driving a motor vehicle. Therefore, according to Petitioner, the presumption he had been driving with a BAC over .08 percent is inapplicable. The court disagrees.

“Fundamentally, whether evidence ‘raises’ or ‘supports’ a particular inference is a matter of probability. Relevant evidence increases the apparent probability a particular fact is true. Some evidence increases that apparent probability greatly, and other evidence does so slightly. There is a point on this spectrum above which the probabilistic connections between the evidence and proposed inference are deemed ‘reasonable’ and below which weaker probabilistic connections are deemed ‘speculation’ or ‘conjecture.’ [Citation.] In this way, the law distinguishes between facts that can ‘logically and reasonably be drawn’ from the evidence [citation] versus evidence which ‘merely raises a possibility’ a particular fact is true. [Citation.] The former is called a reasonable inference; the latter is called speculation and is ‘not a sufficient basis for an inference of fact.’ [Citation.] At the margins, it can be difficult to demarcate between the two.” (People v. Bell (2020) 47 Cal.App.5th 153, 180.) A reasonable inference from the evidence may not be based upon speculation or conjecture. (See People v. Sanford (2017) 11 Cal.App.5th 84, 91–92.)

The record evidence supports an inference Petitioner was driving close to the time Deputy Jasso received the dispatch call at 12:50 a.m. First, the request for service from law enforcement reported there was “a driver asleep in a white Range Rover in the drive thru” at a fast-food restaurant. (AR 19.) Deputy Jasso arrived at the scene seven minutes later. (AR 19.) Deputy Jasso found the white Range Rover at a stop with the engine running. Petitioner was asleep in the vehicle with his foot on the brake and the vehicle in gear. (AR 19.) Deputy Rebollar arrived eight minutes after Deputy Jasso. (AR 12.) Common sense dictates under such circumstances Petitioner had very recently been driving when Deputy Jasso arrived at the scene.

Moreover, Petitioner admitted he had consume 4 to 5 shots of tequila “with his last shot about two hours before” deputies woke him. (AR 18, 19.)

Based on the foregoing facts, the court finds the weight of the evidence supports a finding the dispatch call was made close in time to when Petitioner was last driving. (See e.g., Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 740-741 [in absence of evidence showing delay, hearing officer could infer driving occurred at around the time police received the dispatch call]; Komizu v. Gourley (2002) 103 Cal.App.4th 1001, 1010.)[8]

Further, the chemical tests were conducted at 2:00 a.m. and 2:03 a.m., less than an hour and a half after receipt of the dispatch call. According to the record, Petitioner’s chemical test showed a BAC of .12 percent. (AR 10, 21.) The statutory presumption Petitioner had been driving with a BAC of .08 percent is applicable here.

Petitioner has requested attorney’s fees pursuant to Government Code section 800. Subdivision (a) of that section provides:

In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, . . . if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney's fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), if he or she is personally obligated to pay the fees in addition to any other relief granted or other costs awarded. (Gov. Code, § 800, subd. (a).)

Petitioner contends the DMV’s “conduct was the very definition of arbitrary and capricious. The DMV conducted the hearing over Petitioner’s objection in direct defiance of the CDLA decision.” (Opening Brief 18:21-22.)

To be entitled to an award of attorney’s fees under Government Code section 800, subdivision (a), the public agency must have “wronged the litigant by arbitrary or capricious action.” (Kimura v. Roberts (1979) 89 Cal.App.3d 871, 875.) In addition, the litigant must have prevailed against the public entity. (Plumbing etc. Employers Council v. Quillin (1976) 64 Cal.App.3d 215, 221.)

Petitioner did not prevail against the DMV with his argument based on CDLA. While the DMV erred, such error was harmless under the circumstances. Accordingly, Petitioner sustained no harm despite the DMV’s error.

Petitioner also argues “[t]he hearing officer made conclusions not supported by the law or evidence. This is not a matter of making a mistake. The DMV cannot ignore the law . . . .” (Opening Brief 18:23-24.) Petitioner does not otherwise explain how the hearing officer’s mistake about the application of Vehicle Code section 40300.5, subdivision (b) was arbitrary or capricious.

“Attorney’s fees may not be awarded simply because the administrative entity or official’s action was erroneous, even it if it was ‘clearly erroneous.’ ” (Stirling v. Agricultural Labor Relations Bd. (1987) 189 Cal.App.3d 1305, 1312; Gilliland v. Medical Bd. of California (2001) 89 Cal.App.4th 208, 221.) While the court finds the hearing officer erred, the court cannot find the error was arbitrary or capricious.

Neither the parties nor the court relied upon precedent to address the issue of the drive-through as a roadway; the issue was novel. Resolution of the issue required statutory interpretation. The court notes Petitioner’s argument before the hearing officer did not suggest how Vehicle Code section 40300.5, subdivision (b) should be interpreted. During the APS hearing, Petitioner’s counsel merely concluded without analysis that the drive-through could not constitute a roadway. Under such circumstances, Petitioner is not entitled to attorney’s fees under Government Code section 800, subdivision (a).[9]

Based on the foregoing, the petition is GRANTED. The DMV’s decision is set aside.

[1] Petitioner has named Steve Gordon, the Director of the DMV as the Respondent.

[2] “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.” (Evid. Code, § 664.)

[3] The hearing officer did not specifically overrule the objection but did proceed with the hearing despite the objection.

[4] Thus, contrary to Petitioner’s position, to set aside the DMV’s APS hearing decision Petitioner must show “a particular combination of circumstances creating an unacceptable risk of bias.” (CDLA, supra, 77 Cal.App.5th at 532.)

[5] CDLA’s acknowledgement the DMV may collect and develop evidence and render a decision but not advocate on behalf of the DMV is consistent with Supreme Court authority relied upon by CDLA. CDLA explained:

“In Today's Fresh Start, our Supreme Court clarified the standard applicable to prove a due process violation based on overlapping functions of an administrative agency: ‘[T]he general rule endorsed by both the United States Supreme Court and this court is that “[b]y itself, the combination of investigative, prosecutorial, and adjudicatory functions within a single administrative agency does not create an unacceptable risk of bias and thus does not violate the due process rights of individuals who are subjected to agency prosecutions.” ’ (Today’s Fresh Start, supra, 57 Cal.4th at p. 221 [].) Our Supreme Court further explained: ‘To prove a due process violation based on overlapping functions thus requires something more than proof that an administrative agency has investigated and accused, and will now adjudicate. “[T]he burden of establishing a disqualifying interest rests on the party making the assertion.” [Citation.] That party must lay a “specific foundation” for suspecting prejudice that would render an agency unable to consider fairly the evidence presented at the adjudicative hearing [citation]; it must come forward with ‘specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias” [citations].’ (Ibid.)” (CDLA, supra, 77 Cal.App.5th at 530.)

[6] As Petitioner has shown no actual basis and no circumstances creating an unacceptable risk of bias, the circumstances here are exactly like those recognized in CDLA that do not run afoul of due process. (CDLA, supra, 77 Cal.App.5th at 533 n. 5.) Here, the hearing officer did not act as an advocate during the APS hearing.

[7] “There are other factors which lead to the conclusion that the words ‘publicly maintained’ mean ‘maintained by some public agency or body.’ ” (Vazquez v. Pacific Greyhound Lines (1960) 178 Cal.App.2d 628, 631.)

[8] The court does not agree with Petitioner that a driver who is asleep in his vehicle with his foot on the brake and the car in gear in a drive-through fast food restaurant does not represent a hazard or emergent situation. (See Reply 9:6-8.)

[9] In reply, Petitioner argues if the court remands the matter to the DMV, the court must require the DMV to pay Petitioner’s attorney’s fees for the new APS hearing. (Reply 11:6.) Petitioner’s authority, Frase v. Gourley (2000) 85 Cal.App.4th 762 is distinctly different from the circumstances here. Moreover, the court is not ordering reconsideration. The court’s order requires the DMV to set aside the decision suspending Petitioner’s driver’s license. It is up to the DMV to determine how to proceed. (See Code Civ. Proc., § 1094.5, subd. (f) [court “may order . . . reconsideration”].)