Judge Robert C. Longstreth, Case Number: 37-2023-00046733-CU-WM-CTL, Date: 2024-06-04 Tentative Ruling

Judge: Robert C. Longstreth, Case: 37-2023-00046733-CU-WM-CTL, Date: 2024-06-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 03, 2024

06/04/2024 02:00:00 PM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited Writ of Mandate Hearing on Petition 37-2023-00046733-CU-WM-CTL PETITION OF LEMON [IMAGED] CAUSAL DOCUMENT/DATE FILED: Petition for Writ of Mandate, 10/26/2023

Petitioner Scott Lemon's Petitioner for Writ of Mandamus (ROA 1, 18) is DENIED.

Petitioner's driver's license was administratively suspended by Respondent Department of Motor Vehicles ('DMV') after Petitioner was arrested for driving under the influence of alcohol on August 11, 2023. (Veh. Code � 23152(a).) At the outset, the court has not considered Petitioner's offered exhibits in support of his petition, which are extrinsic to the administrative record. The court's review of the DMV's decision 'shall be on the record of the hearing and the court shall not consider other evidence.' (Veh. Code � 13559(a).) In order for the court to consider any evidence beyond the record, Petitioner must first demonstrate the evidence is 'relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing.' (Code Civ. Proc. � 1094.5(e).) Petitioner has not done so here. 'In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented.' (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) The court has considered the administrative record as lodged by Respondent. (ROA 26.) Petitioner first contends he is entitled to a writ of mandate because his due process rights were violated during the administrative per se ('APS') hearing. Specifically, Petitioner contends the DMV improperly used one person to act as both advocate and as trier of fact for the DMV during the APS hearing.

'[C]ombining 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.' (California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, 532 ('CDLA').) The transcript of the hearing reflects that Hearing Officer Bell introduced himself as 'a neutral factfinder,' noting he is 'prohibited from and will not act as an advocate for the DMV or law enforcement.' (AR024.) Petitioner asserts that Hearing Officer Bell improperly introduced evidence against Petitioner on behalf of the DMV and then ruled on the admissibility of those exhibits. However, it was not improper that Hearing Officer both introduced and ruled on the admissibility of the exhibits during the hearing. As noted in CLDA, 'the DMV may task the same person with both collecting and developing the evidence and rendering a final decision. [Citation.] 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 at p. 533, fn. 5.) Calendar No.: Event ID: TENTATIVE RULINGS

3135809 11 CASE NUMBER: CASE TITLE: PETITION OF LEMON [IMAGED] 37-2023-00046733-CU-WM-CTL Here, Hearing Officer Bell permissibly acted as both the proponent of evidence and as the trier of fact.

Petitioner does not point to anywhere in the record that Hearing Officer Bell acted as an advocate on behalf of the DMV. Accordingly, the court concludes this argument does not have merit.

Next, Petitioner contends Hearing Officer Bell's findings are not supported by the weight of the evidence in the record, including the finding that Petitioner was lawfully arrested and the finding that Petitioner was informed that his driving privilege would be suspended if he refused to submit to a chemical test.

The trial court exercises its own independent judgment in reviewing an administrative decision by the DMV to suspend a driver's license pursuant to Vehicle Code section 13353. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 394.) Where the independent judgment standard is applied, 'abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.' (Code Civ. Proc. � 1094.5(c); see also Veh. Code � 13559(a).) Regarding the finding that Petitioner was lawfully arrested, Petitioner asserts the CHP Officer (Bennett) did not observe Petitioner driving, and instead relied on the Barona Tribal Enforcement Officer's (Rubalcava's) observation that Petitioner was driving.

As Respondent points out in opposition, proof that a person was driving immediately before arrest is not required. California's implied consent law, Vehicle code section 23612, 'does not require proof of actual driving immediately prior to lawful arrest for driving while under the influence of alcohol or a drug.' (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1125.) Thus, the statute providing for suspension or revocation of a person's license as a result of the person's refusal to submit to a chemical test under the implied consent law, Vehicle Code section 13353, 'similarly does not require proof that the person actually was driving immediately prior to the arrest.' (Id. at p. 1126.) Instead, section 13353 only requires a finding that 'the arresting officer had reasonable cause to believe the person had been driving a motor vehicle while under the influence.' (Ibid., italics omitted.) Furthermore, Officer Rubalcava's statement to Officer Bennett reporting his observations of Petitioner driving is admissible as well, because Officer Rubalcava was 'acting pursuant to his duty as a police officer to observe the facts and report them correctly.' (Gananian v. Zolin (1995) 33 Cal.App.4th 634, 641; see also Evid. Code � 1280.) Thus, Officer Bennett's sworn statement qualifies as an admissible public employee record under Evidence Code section 1280 'even to the extent that it reports [another officer's] personal observations, and thus is alone sufficient to prove that [the driver] had been driving.' (Gananian at p. 639.) Regardless, when Officer Bennett asked Petitioner if he had been driving, Petitioner admitted so.

(AR016-17.) Thus, Officer Bennett did not have to rely on Officer Rubalcava's observations to lawfully arrest Petitioner.

The court concludes that the finding that Petitioner was lawfully arrested is supported by the weight of the evidence in the record.

Regarding the finding that Petitioner was not admonished that his driving privilege would be suspended if he refused to submit to a chemical test, Petitioner argues the evidence in the record is not sufficient to support this finding. (Veh. Code � 23612(a)(1)(D).) However, Officer Bennett's report clearly indicates that Petitioner was advised of the consequences of a refusal. (AR012, AR018.) The fact that there is no correlating video or audio evidence of the admonishment is not sufficient to overcome the weight of the evidence in the record that Petitioner was properly advised. Petitioner also points out that Officer Bennett's report indicates that Officer Bennett did not give Petitioner a verbatim Watson advisal.

(AR016; Veh. Code � 23593.) To the extent that this is relevant, it tends to suggest that Officer Bennett was candid as to the extent to which an advisal was given, supporting his credibility as to whether Petitioner was properly advised of the consequences of refusing a chemical test.

The court concludes that the finding that Petitioner was advised that his driving privilege would be Calendar No.: Event ID: TENTATIVE RULINGS

3135809 11 CASE NUMBER: CASE TITLE: PETITION OF LEMON [IMAGED] 37-2023-00046733-CU-WM-CTL suspended or revoked if he refused to complete the required testing is supported by the weight of the evidence in the record.

The stay of suspension of Petitioner's driver's license is ordered lifted. Respondent is to submit a proposed Judgment within five (5) days.

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