Judge Stephen I. Goorvitch, Case Number: 23STCP04189, Date: 2024-07-17 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP04189, Date: 2024-07-17 Tentative Ruling

Petitioner Roger Lim (“Petitioner”) petitions for a writ of administrative mandate directing Respondent Steve Gordon, Director of the Department of Motor Vehicles (“Respondent” or the “DMV”) to set aside its administrative decision suspending Petitioner’s driving privilege for one year for violation of the implied consent law. The court denies the petition because: (1) Petitioner forfeited his due process issue by not objecting during the administrative hearing; (2) There was no due process violation because the hearing officer did not act as an advocate at the administrative hearing; and (3) The weight of the evidence supports the hearing officer’s findings that Petitioner violated the implied consent law.

On April 9, 2023, at approximately 9:51 p.m., Officer William Lazaro of the San Gabriel Police Department responded to a report of reckless driving. (AR 8, 16, 18.) At the scene, the reporting party, Anthony Arredondo, informed Officer Lazaro that his neighbor—described as a “male Asian, wearing a t-shirt and jeans”—was driving up and down the street in a black Toyota Prius at a high rate of speed while intoxicated. (AR 18.) Arrendondo stated that the driver almost hit Arredondo’s spouse. (Ibid.) Officer Lazaro then observed a black Toyota Prius driving southbound on Charlotte Avenue in the middle of the roadway at a high rate of speed. (Ibid.) Arredondo identified the driver, shouting, “That’s him!” (Ibid.)

Officer Lazaro activated his flashlight and ordered the vehicle to stop. (Ibid.) The driver ignored the command and drove quickly past Officer Lazaro to the driveway of the home address described by the reporting party. (Ibid.) Office Lazaro then walked toward the vehicle and met the driver, Petitioner. (Ibid.) Officer Lazaro immediately noticed objective symptoms of intoxication. (Ibid.) He smelled a strong odor of an alcoholic beverage on Petitioner’s breath and noticed that Petitioner had slurred speech. (AR 18-19.)

Based on Petitioner’s erratic driving, Vehicle Code violations, and objective symptoms of intoxication, Officer Lazaro commenced a DUI investigation. (Ibid.) Officer Lazaro asked Petitioner to exit the vehicle and he observed Petitioner’s unsteady gait. (Ibid.) Officer Lazaro attempted to administer a series of Standard Field Sobriety Tests (“SFSTs”), including the Horizontal Gaze Nystagmus, One Leg Stand, and Walk and Turn. (Ibid.) Petitioner either refused or failed to perform the SFSTs and also refused to submit to a Preliminary Alcohol Screening (“PAS”). (Ibid.; see also AR 15 (Dash Camera Video, 22:00-24:30).) Officer Lazaro formed the opinion that Petitioner was driving under the influence of alcohol and placed him under arrest. (AR 18-19.) Petitioner then refused to take a chemical test:

· After arresting Petitioner, Officer Lazaro read the chemical test admonition on the DMV’s Age 21 and Older Officer’s Statement (Form DS-367.) Officer Lazaro advised Petitioner of the consequences of refusing to submit to or complete a chemical test. (AR 9, 19; see also AR 15 (Dash Camera Video, 22:00-24:30.)

· Officer Lazaro then asked, “Will you take a breath test?” (AR 15 (Dash Camera Video, 24:20.) In response, Petitioner said, “No.” (Ibid.)

· Officer Lazaro then asked, “Will you take a blood test?” (AR 15 (Dash Camera Video, 24:24.) In response, Petitioner said, “No.” (Ibid.)

At Petitioner’s request, the DMV held an administrative hearing on June 27, 2023, before Hearing Officer Anna Garcia. The scope of the hearing was limited to four issues: (1) Did Officer Lazaro have reasonable cause to believe that Petitioner was driving a motor vehicle in violation of section 23152 of the Vehicle Code? (2) Was Petitioner lawfully arrested? (3) Was Petitioner informed that if he refused to take or failed to complete a chemical test, his driving privilege would be suspended for one year, or revoked for two or three years? and (4) Did Petitioner refuse to take or fail to complete a chemical test when requested to do so by the officer? (AR 4-6, 32.)

Petitioner appeared at the administrative hearing and represented himself. Hearing Officer Garcia introduced four documents into evidence: (1) the Age 21 and Older Officer’s Statement (Form DS-367); (2) two DVDs containing video footage from Officer Lazaro’s dash cam and body worn camera; (3) the arrest report; and (4) Petitioner’s driving record. (AR 31- 33.) Hearing Officer Garcia asked Petitioner whether he had any legal objections to the Department’s exhibits being moved into evidence. (AR 34.) Petitioner responded that he did not. (Ibid.)

At the administrative hearing, Petitioner did not dispute that DMV had established issues one, two, and four under the implied consent law (i.e., reasonable cause for the traffic stop, lawful arrest, and refusal or failure to complete a chemical test.) Petitioner only raised an issue concerning the sufficiency of the admonishment. (See AR 32-34.) Petitioner did not raise any argument concerning the fairness of the proceeding or the impartiality of the hearing officer. (Ibid.)

Petitioner testified that Officer Lazaro read the chemical test admonishment, but did not “make clear … that he was going to read the APS admonishment.” (AR 34.) Upon questioning from Hearing Officer Garcia, Petitioner clarified that Officer Lazaro “read the admonishment to me” and “it just didn’t make sense at the time to me.” (AR 35.) The hearing officer asked: “Did you ask him any questions about it?,” to which Petitioner responded, “No, I didn’t.” (Ibid.)

Based on the arrest report, video footage, and DS-367, the hearing officer determined that (1) Officer Lazaro had reasonable cause to believe Petitioner was driving a motor vehicle in violation of section 23152 or 23153 of the Vehicle Code; (2) Petitioner was lawfully arrested;

(3) Petitioner was properly informed that if he refused to take or failed to complete a chemical test, his driving privilege would be suspended for one year, or revoked for two or three years; and (4) Petitioner refused to take or failed to complete a chemical test when requested to do so. (AR 4-6.)

With regard to disputed issue number three, the hearing officer found “no evidence was presented in support of the contention” that Officer Lazaro did not clearly read the chemical test admonishment and induced confusion. The hearing officer found that Petitioner “did not convey any apparent confusion to Officer Lazaro.” The hearing officer also found that “[t]he body worn camera footage shows the officer clearly admonishing Respondent and Respondent clearly refusing to take either test.” (AR 5.)

Under Code of Civil Procedure section 1094.5(b), the pertinent issues 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 agency 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(b).)

When a driver petitions for a writ of mandate following an order suspending his or her driver’s license, the trial court is required to determine, based on its independent judgment, whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal. 4th 448, 456.)

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) However, “in exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner contends that the DMV violated his due process rights by using a single hearing officer format in which the hearing officer acted both as an advocate for DMV and as the trier of fact. In California DUI Lawyers Association v. California Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (“DUI Lawyers”), 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 532-533.) Summarizing prior appellate decisions, the DUI Lawyers Court reasoned as follows:

Although 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. The irreconcilable conflict between advocating for the agency on one hand, and being an impartial decisionmaker on the other, presents a “particular combination of circumstances creating an unacceptable risk of bias.”

(Id. at 532.) However, Petitioner forfeited any due process challenge on this basis by failing to object at the administrative hearing. Petitioner did not raise any argument concerning the fairness of the proceeding, his due process rights, the impartiality of the hearing officer, or the hearing officer both introducing exhibits and ruling on the case. (See AR 32-34.)

Petitioner argues that no objection is required, relying on Knudsen v. Department of Motor Vehicles (2024) 101 Cal.App.5th 186. In that case, the District Court of Appeal recognized that “[t]he DMV is correct that claims or constitutional issues not raised in earlier civil or administrative proceedings are generally forfeited.” (Id. at 196, citations omitted.) However, the District Court of Appeal recognized that “appellate courts also have traditionally excused parties for failing to raise an issue below where an objection would have been futile.” (Ibid.) The District Court of Appeal found no forfeiture because at the time of the administrative hearing, the DMV was still litigating DUI Lawyers, which was not yet law. By contrast, by the time of Petitioner’s administrative hearing, DUI Lawyers was a published appellate decision, which Petitioner could have cited. Therefore, the court finds that Petitioner forfeited any due process objection.

In the alternative, the court finds no due process violation under DUI Lawyers. The dispositive issue is whether the hearing officer “acted as both an adjudicator and an advocate, or merely acted as an adjudicator and a collector and developer of evidence.” (Knudsen, supra, 101 Cal.App.5th at 193, 198.)

Petitioner argues that Hearing Officer Garcia acted as an advocate for DMV when she “admitted” DMV’s exhibits into evidence and then “made a ruling on the matter adverse to Petitioner’s interest” based on those exhibits. (OB 9-10.) The court disagrees. Hearing Officer Garcia merely introduced four exhibits: (1) the Age 21 and Older Officer’s Statement (Form DS-367); (2) two DVDs containing video footage from Officer Lazaro’s dash cam and body worn camera; (3) the arrest report; and (4) Petitioner’s driving record. (AR 31- 33.) She then asked Petitioner if he had any “legal objections to the Department’s exhibits being admitted into evidence,” and he responded, “I do not.” (AR 34.) She then admitted the exhibits. (Ibid.) Standing alone, this is not enough to demonstrate “advocacy.”

Petitioner’s counsel argues that “Respondent went further, going out of their way to make written requests to the San Gabriel Police Department for Officer audio and video recordings to subsequently use against Petitioner’s interest. (AR 42-44.)” (OB 9.) Petitioner’s record citation shows a request by Maryjane Castro, a Motor Vehicle Representative, to the San Gabriel Police Department for the video recordings related to Petitioner’s arrest. (AR 42-44.) The record does not show that Hearing Officer Garcia was involved in requesting this evidence from San Gabriel Police Department. Regardless, the mere “collection” of evidence by the hearing officer does not give rise to a due process violation.[1]

In sum, Hearing Officer Garcia merely introduced and admitted four exhibits without ruling on any objections to those exhibits. There is no evidence suggesting that she “collected” these exhibits, though that would have been permissible under Knudsen. While Petitioner did not challenge any of her questions as “advocacy,” the questions were merely clarifying in nature. Thus, Hearing Officer Garcia did the “bare minimum,” which is permissible under Knudsen. If the court were to grant this petition under these circumstances, it effectively would hold that a hearing officer may do nothing more than adjudicate a case, which is not consistent with the holding in Knudsen.

Petitioner does not challenge the sufficiency of the evidence. If the court is required to consider that issue, the court finds that the weight of the evidence supports the hearing officer’s findings. Indeed, Officer Lazaro’s body camera demonstrates that he adequately advised Petitioner, and Petitioner expressly refused to take a chemical test.

3. Petitioner’s counsel shall provide notice and file proof of service with the court.

[1] Petitioner has not developed an argument that the hearing officer’s questions at the administrative hearing show advocacy on the part of the DMV. He, therefore, forfeits such argument. (Nelson, supra, 172 Cal.App.4th at 862-863.) Regardless, the hearing officer merely asked Petitioner clarifying questions regarding his contention that the admonishment was unclear. (AR 34-35.)