Judge Mitchell L. Beckloff, Case Number: 23STCP01201, Date: 2024-03-06 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP01201, Date: 2024-03-06 Tentative Ruling

Petitioner, Richardo Trevino, seeks a writ of mandate compelling Respondent, the Department of Motor Vehicles (DMV),[1] to vacate its March 13, 2023 decision suspending his driver’s license and thereafter reinstate his license. Respondent opposes the petition.

The petition is granted. The DMV’s March 13, 2023 decision is vacated. The matter is remanded to the DMV for reconsideration of the matter in light of the court’s opinion and judgment. (Code Civ. Proc., § 1094.5, subd. (f).)

On November 21, 2020, Petitioner held a commercial (Class A) driver’s license. (AR 4, 20, 25.) At 1:10 a.m. on that date, California Highway Patrol officers stopped Petitioner who was driving a pickup truck on the freeway with “a large amount of sparks” emitting “from under the vehicle.” (AR 13.) During the traffic stop, the officers formed the opinion Petitioner may have been driving under the influence of alcohol based on Petitioner’s impaired judgment, the odor of alcohol, red watery eyes and slurred speech. (AR 20.)

After Petitioner failed various field sobriety tests (AR 19) and preliminary alcohol screening testing results showed a blood alcohol concentration (BAC) of .179 percent and .148 percent (AR 11), Petitioner consented to a blood draw for chemical testing. (AR 11.) Blood test results later revealed Petitioner’s BAC as .16 percent during his encounter with law enforcement. (AR 22, 23.)

On November 21, 2020, the officers arrested Petitioner for violations of Vehicle Code sections 23152, subdivision (a), 21352, subdivision (b) and 23578. The officers also served Petitioner with an administrative per se suspension/revocation order and temporary driver’s license. (AR 15.)

The DMV conducted an administrative per se (APS) hearing on Petitioner’s driver’s license suspension on February 21, 2023.[2] The DMV’s hearing officer conducted the hearing. (AR 42.)

At the commencement of the hearing, the DMV’s hearing officer announced: “At this time counsel, we do have a number of documents we would like to introduce to you as the Department’s evidence.” (AR 46 [emphasis added].) The hearing officer thereafter identified and marked four exhibits: a three-page form (DS-367) officer’s statement, a five-page arrest report, Petitioner’s blood testing results, and Petitioner’s driving record. (AR 46-47.)

The hearing officer then questioned whether Petitioner had any objections to the document “being admitted into evidence.” (AR 48.)

Petitioner’s counsel objected to the admission of the documents on various grounds including hearsay, foundation and conclusion. (AR 48, 51.) As to the form DS-367 Petitioner’s counsel noted the “employee records exception of Evidence Code section 1280” was inapplicable because the law enforcement officer “failed to follow procedures in preparing it.” (AR 48.) Petitioner’s counsel argued under the Vehicle Code the form DS-367 “requires the arresting officer present it to the DMV within five days of the arrest.” (AR 48.) Petitioner’s counsel noted a 22-day delay between the arrest and presentation of the form to Respondent undermined any hearsay exception Respondent intended to rely upon for the documents admission into evidence. (AR 48.) Petitioner’s counsel also noted “discrepancies and errors” in the report suggesting the report “cannot be relied on . . . .” (AR 52.)

Petitioner’s counsel also objected to admission of the arrest report and blood test results. Petitioner objected on hearsay, foundation and conclusion grounds. (AR 52, 53.) Petitioner’s counsel argued MacDonald v. Gutierrez (2004) 32 Cal.4th 150 precluded reliance on the arrest report. (AR 52-53.) As for the blood test results, Petitioner’s counsel asserted a hearsay objection.

Finally, Petitioner’s counsel objected to the hearing as a violation of Petitioner’s due process pursuant to California DUI Lawyers Association v. California Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (CDLA). (AR 54.)

The hearing officer thereafter overruled the objections. He then noted: “With that said, counsel, the Department has no further evidence to present.” (AR 54 [emphasis added].)

After the hearing officer concluded Respondent’s case, the hearing officer inquired whether Petitioner had any evidence to present. (AR 54.) Petitioner thereafter testified. (AR 54.)

After an extensive narrative response from Petitioner, the hearing officer inquired of him: “Mr. Trevino, what type of Bud Light? I know they have different types of Bud Light drinks now. They have platinum. They have – [] different – [] Bud Light as far as like no carbs and so forth. Do you recall which one?” (AR 82.) The hearing officer also inquired whether Petitioner consumed beer from “a can or a bottle” and whether it was a “tall can.” (AR 83.) The hearing officer also questioned whether Petitioner recalled seeing sparks or fire coming from beneath his vehicle. (AR 84.) He also questioned Petitioner about the speed of his driving. (AR 86.)

At the conclusion of the hearing officer’s questions, the hearing officer stated: “All right. Counsel, the Department has no further questions for Mr. Trevino today.” (AR 91 [emphasis added.)

On March 9, 2023, the DMV issued its decision upholding the suspension of Petitioner’s driver’s license. (AR 6.) The DMV found Petitioner “was driving a motor vehicle at the time that the concentration of alcohol in his blood was at or above 0.08%.” (AR 6.)

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).)

There is no 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.) 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.)

Petitioner argues the DMV denied him a fair hearing and violated his procedural due process rights. Petitioner contends an administrative hearing that combines the role of the agency’s prosecutor and decision maker in the same person is per se unconstitutional. Petitioner argues CDLA applies here and requires the DMV’s suspension decision to be set aside.

In CDLA, the Court found the hearing officer's dual roles as advocate and adjudicator in a DMV APS hearing creates an unacceptable risk of bias by combining advocacy and adjudicatory roles into a single DMV employee. (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.) The Court declared “combining the roles of advocate and adjudicator in a single person employed by the DMV violates due process under the Fourteenth Amendment and the California Constitution Article I, section 7.” (Ibid.) As result 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 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 everything in the APS hearing–no other DMV employee was involved. (AR 32-96.)

The DMV does not dispute it conducted Petitioner’s APS hearing with only one DMV official, who introduced exhibits, ruled on objections, and ultimately issued a ruling. Nonetheless, the DMV argues Petitioner “is wrong on all accounts.” (Opposition 14:10.) The DMV contends Petitioner “mischaracterizes the scope of [CDLA’s] ruling and omits critical language from the decision which qualifies the scope of its holding regarding the hearing officer’s actions.” (Opposition 14:11-12.)

To support its position the APS hearing here did not violate the injunction issued against the DMV in CDLA, the DMV parses footnote 5 from CDLA. The footnote states:

Relying on Poland v. Department of Motor Vehicles (1995) 34 Cal.App.4th 1128, [] the DMV contends the hearing officer may act as a proponent of evidence and trier of fact. [The plaintiff] concedes the DMV may task the same person with both collecting and developing the evidence and rendering a final decision. (See, e.g., Today's Fresh Start, supra, 57 Cal.4th at p. 220, [] [The same individual in an administrative agency may be tasked with “developing the facts and rendering a final decision”].) He or she must refrain, however, from advocating on behalf of the DMV as the DSM 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). (CDLA, supra, 77 Cal.App.5th at 533, fn. 5.)

Based upon the footnote, the DMV argues the DMV’s APS hearing process “merely follows long-standing federal and state due process principles.” (Opposition 14:28-15:1.) The DMV argues “[t]he hearing officer did not engage in advocacy by introducing documents received from law enforcement into evidence as required by statute.” (Opposition 15:13-14.) The DMV then asserts the hearing officer did nothing more than “flesh[] out the material facts and issues of the suspension action . . . .” (Opposition 15:24-25.)

The reporter’s transcript of the APS hearing makes clear that the hearing officer “present[ed] the DMV’s case” and acted as a prosecutor. (CDLA, supra, 77 Cal.App.5th at 533, fn. 5.) The hearing officer aligned and identified himself with the DMV. When the hearing began, the hearing officer announced: “At this time counsel, we do have a number of documents we would like to introduce to you as the Department’s evidence.” (AR 46 [emphasis added].) Thus, the hearing officer “present[ed] the DMV’s case” and acted as the prosecutor. (CDLA, supra, 77 Cal.App.5th at 533, fn. 5.) By introducing the DMV’s evidence, the APS hearing became one where the hearing officer’s role involved both advocating for the DMV—putting on its case and introducing documentary evidence—and acting as fact finder. (Id. at 532.)

As noted in CDLA, Petitioner need not demonstrate actual bias where the hearing officer acts as advocate[3] and fact finder. (Ibid.) Instead:

. . . evidence of a “ ‘particular combination of circumstances creating an unacceptable risk of bias’ is sufficient to render 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’ ” ” (Today’s Fresh Start, supra, 57 Cal.4th at pp. 221-222, . . . .)

Further, the hearing officer ruled on evidentiary objections. While the Legislature has mandated that certain information be considered by the hearing officer at an APS hearing (see Opposition 15:14-18), the hearing officer overruled Petitioner’s objections to all evidence the hearing officer ultimately admitted on behalf of the DMV, including Petitioner’s blood test results. After doing so, the hearing officer indicated the DMV had no further evidence to produce.

After Petitioner testified, the hearing officer also indicated “the Department has no further questions for [Petitioner] today.” (AR 91.)

Based on the foregoing, the court finds the APS hearing conducted here ran afoul of CDLA and deprived Petitioner of due process.

Finally, without discussion of CDLA’s discussion of prejudice and explanation that “demonstrated actual bias is not dispositive” (CDLA, supra, 77 Cal.App.5th at 532),[4] the DMV argues Petitioner failed to demonstrate DMV error that resulted in prejudice. The DMV asserts the “theoretical possibility of bias in hearings, such inchoate possibility of bias alone is insufficient to warrant a decision’s reversal; actual bias or prejudice must be shown.” (Opposition 17:7-8 [citing Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549].) Thus, the DMV contends its violation of Petitioner’s due process rights is subject to harmless error analysis—that is, a different outcome would have occurred in the absence of that violation.

CDLA makes clear the DMV violated Petitioner’s due process rights with the procedure the DMV used here. The issue then should be whether the DMV’s error is harmless as advocated by the DMV or structural such that its decision is reversible per se or a trial error subject to harmless error analysis. The court recognizes harmless error analysis applies to both constitutional and nonconstitutional errors. (People v. Anzalone (2013) 56 Cal.4th 545, 553-554.)

“There is a strong presumption that any error falls within the trial error category, and it will be the rare case where a constitutional violation will not be subject to harmless error analysis.” (Id. at 554.) In fact, “ ‘[A] strong presumption’ exists against finding that an error falls within the structural category, and ‘it will be the rare case’ where an error—even ‘a constitutional violation’—‘will not be subject to harmless error analysis.” (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108 [quoting People v. Anzalone, supra, 56 Cal.4th at 554].)

The court finds harmless error analysis is not appropriate here where the DMV has knowingly proceeded with an APS hearing process that violates a driver’s due process rights.[5] The court agrees.

The DMV knew when it conducted Petitioner’s APS hearing that its hearing process suffered from flaws of a constitutional magnitude; it nonetheless utilized the flawed procedure to address Petitioner’s challenge to his license suspension.[6] “Just as in a judicial proceeding, due process in an administrative hearing also demands an appearance of fairness . . . .” (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.) Given the circumstances and the DMV’s knowing violation of Petitioner’s due process rights, the court finds Petitioner need not show actual bias to prevail here—the issue instead is “whether the hearing met minimal constitutional standards of due process, . . . .” (Id. at 86.) CDLA advises it did not. Petitioner is therefore entitled to a new APS hearing. (See id. at 98.)

Finally, the court concludes pursuant to Code of Civil Procedure section 1094.5, subdivision (b), the DMV did not proceed in the manner required by law and abused its discretion when it knowingly violated the injunction imposed by CDLA. Remand is required.

The court cannot countenance the DMV’s failure to comply with a final and binding order by the Court of Appeal requiring the DMV to be “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.” (CDLA, supra, 77 Cal.App.5th at 538.) That the DMV knowingly elected to proceed with its hearing in a manner finally determined by the courts to “violate[] due process under the Fourteenth Amendment and the California Constitution Article I, section 7” requires the DMV to provide Petitioner with a new hearing. (Id. at 532.)

Based on the foregoing, the Petition is GRANTED. The matter is remanded to the DMV. To the extent the DMV elects to repeat Petitioner’s APS hearing, it must do so in a manner consistent with CDLA.

[1] Petitioner named Steve Gordon in his capacity as Director of the DMV as Respondent in this matter.

[2] The parties agreed the DMV would provide Petitioner with the hearing as part of a settlement agreement. (AR 109.)

[3] CDLA defined advocating as putting on the DMV’s case with no corresponding duty to present any evidence that would support the driver’s position. (CDLA, supra, 77 Cal.App.5th at 533, fn. 5.)

[4] In fact, the DMV argues “actual bias or prejudice must be shown.” (Opposition 17:8.)

[5] CDLA distinguishes between DMV hearing officers “ ‘developing the facts and rendering a final decision’ ” and “function[ing] as advocates for the position of the DMV . . . .” (CDLA, supra, 77 Cal.App.5th at 533 n. 5 [quoting Today’s Fresh Start v. City of Los Angeles County Office of Education (2013) 57 Cal.4th 197, 220], 538.) In CDLA, the DMV acknowledged the DMV hearing officer “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.” (CDLA, supra, 77 Cal.App.5th at 527.) The permanent injunction ordered by CDLA 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.” (Id. at 538 [emphasis added].) CDLA does not prohibit DMV hearing officers from doing that approved by our Supreme Court in Today’s Fresh Start v. City of Los Angeles County Office of Education—“developing the facts and rendering a final decision.” (Fresh Start v. City of Los Angeles County Office of Education, supra, 57 Cal.4th at 220.) Thus, in the court’s view, if a DMV hearing officer is required to proffer evidence on behalf of the DMV, rule on an evidentiary objections, and decide when “the Department has no further questions” for a witness (AR 91) during an APS hearing, the DMV’s APS hearing process has fallen outside what is constitutionally permissible under CDLA. Under such circumstances, the DMV hearing officer has become a prosecutor and advocate of the DMV’s case.

[6] The DMV must know that its hearing officers are violating the injunction issued in CDLA because there is no one else presenting the DMV’s case during the APS hearing. Thus, the hearing officers are required to act as advocates and “present the DMV’s case.” (CDLA, supra, 77 Cal.App.5th at 533 n. 5.) CDLA draws a clear line; the conduct violates a driver’s due process. The logical extension of the DMV’s argument here is that the DMV—a government agency—can knowingly violate the injunction and argue such knowing violations of due process must be reviewed under harmless error analysis.