Judge Stephen I. Goorvitch, Case Number: 24STCP00969, Date: 2024-11-13 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP00969, Date: 2024-11-13 Tentative Ruling

While driving her vehicle, Petitioner Ekaterina Petrushkina (“Petitioner”) drove off the street and hit a wood utility pole. Officers from the Los Angeles Police Department (the “LAPD”) responded and asked Petitioner to take field sobriety tests. For the next 25 minutes, Petitioner argued with the officers, claiming that she would take the tests, but refusing to do so until her attorney was present and/or her daughter was taken to her mother’s house. The officers—a model of professionalism and courtesy—eventually arrested her. When advised that she had to take a chemical test and had the option of taking a breath or blood test, Petitioner continued to argue with the officers and refused at least twice. As a result, Petitioner’s driving privileges were suspended for one year, giving rise to the instant petition for writ of administrative mandate against Steve Gordon in his official capacity as Director for the Department of Motor Vehicles (the “DMV” or “Respondent.”) Petitioner raises three issues before this court. First, Petitioner argues that there was no reasonable cause to arrest her. Second, Petitioner argues that the chemical test admonishment was defective and she never refused to take a chemical test. Third, Petitioner argues that the DMV hearing lacked due process because there was no prosecutor, only a hearing officer, and the hearing officer was biased. The petition for writ of mandate is denied.

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.)

The court exercises its independent judgment on questions of law arising in mandate proceedings. (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.)

Contrary to Petitioner’s argument, there was sufficient evidence to arrest her for driving under the influence of alcohol. Vehicle Code section 40300.5 states in relevant part:

[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 . . . [t]he person is involved in a traffic crash.

(Veh. Code § 40300.5.) The officers had reasonable cause to believe that Petitioner had been driving under the influence of alcohol. There is no dispute that Petitioner was in a solo collision, having hit a wooden utility pole. Moreover, the officer smelled alcohol on Petitioner’s breath. (AR 15.) This evidence alone is sufficient to justify the arrest. (See Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 101-102.)

In addition, the officers reasonably interpreted Petitioner as refusing to take the field sobriety tests, which is a valid consideration in determining whether she had been driving under the influence. (Ibid.) First, Petitioner refused to take the field sobriety tests unless she had an attorney present. (See 904_AMB_CPI at 15:00-27:30.) Then, Petitioner agreed to do the field sobriety tests if they could be conducted outside the presence of her daughter. (See id. at 27:30-28:40.) When the officers suggested that might be possible, Petitioner again reiterated that she wanted an attorney present and insisted on taking her daughter to her mother’s house as a condition of doing the field sobriety tests. (See id. at 28:40-38:00.) Petitioner accused the officers of “intimidating” her, even though the officers were a model of professionalism and courtesy. (See id. at 37:04-37:12.) Finally, the lead officer said: “I’m just going to say one more thing, and after that I’m done.” (See id. 39:20-39:30.) The lead officer advised Petitioner that she would need to do the field sobriety tests “right now.” (See id. at 39:30-39:33.) The lead officer then said: “If you keep insisting on doing what you want to do, you’re going to be subject to an arrest.” (See id. at 39:33-39:39.) Petitioner said, “No.” (See id. at 39:40.) The lead officer then advised Petitioner that they would interpret the record as a refusal. (See id. at 39:45-39:48.) Petitioner was arrested. Petitioner’s lack of cooperation—after 25 minutes of the officers asking her to take the field sobriety tests and her refusal to do so unless the officers accommodated her various conditions—was reasonably interpreted as a refusal that justified her arrest.[1] Indeed, Petitioner did not have the right to have an attorney present before taking the field sobriety tests. (See Veh. Code § 23612(a)(4).) Conditional consent to a chemical test constitutes a refusal. (See Espinoza, supra, 10 Cal.App.5th at 104.) The same is true for field sobriety tests.

Pursuant to Vehicle Code section 23612, an officer must advise those lawfully arrested for driving under the influence of certain information, including, among other things, that they have an obligation to take a chemical test of blood or breath for the purpose of determining alcoholic content; they have a choice which test to take but a breath test will not result in a sample being saved; they do not have a right to an attorney being present; and refusal to submit to the test will result in an administrative suspension of driving privileges for one year. The officer read Petitioner an advisement that contained all necessary information under section 23612. (See DUI-ARR-CHEM_TEST-REFUSAL at 2:00-4:00.)

Petitioner argues that the admonition was incomplete because the officer referenced a refusal to take a “test,” instead of making clear that he was referring to a breath or blood test. The court disagrees. The admonition contained all necessary information under section 23612, and it was abundantly clear to which test the officer was referring, either a breath or blood test.

Similarly, Petitioner argues that the officers erred in asking whether she would submit to a “chemical test” instead of asking, first, whether Petitioner would take a breath test and, second, whether Petitioner would take a blood test. Based upon this, Petitioner argues that “she was offered neither.” That is a mischaracterization of the record. The officer read the entire admonishment, which made clear that she was required to take a test and that she had the choice between a breath or a blood test. Therefore, when the officers referenced a “chemical test,” it was clear that they were offering her the choice between a breath or a blood test.

Moreover, Petitioner’s argumentative and disruptive behavior gave rise to this issue. When the lead officer asked whether Petitioner understood the admonishment, she began arguing, accusing him of depriving her of her rights relating to the field sobriety tests. The officer then said, “This is not the field sobriety test. This is the chemical test.” (See id. at 4:20-4:20.) When Petitioner continued to argue with him, the lead officer asked, “Are you going to take the chemical test, yes or no?” (See id. at 4:20-4:25.) Petitioner continued to argue with him. (See id. at 4:25-4:30.) The lead officer asked, “Are you going to refuse a chemical test?” (See id. at 4:30-4:33.) When Petitioner said, “No,” the officer said, “Let’s do the chemical test then.” (See id. at 4:33-4:36.) Petitioner refused to move from her position and again started arguing with the officer about the field sobriety tests. The officer said, “We’re beyond that,” referring to the field sobriety tests, and then said, “We’re going to do the chemical test.” (See id. at 4:36-4:42.) Petitioner said, “No, No, No, you’re not a judge, you’re not a prosecutor.” (See id. at 4:42-4:55.) One refusal is sufficient to constitute a refusal. (See Webb v. Miller (1986) 187 Cal.App.3d 619, 627.)

The officers continued to ask whether Petitioner would take a “chemical test,” and she continued to argue with the officers about the field sobriety tests. (See id. at 4:55-10:15.) At one point, Petitioner said she would take a chemical test but continued to argue with the officers over the field sobriety tests. (See ibid.) Finally, the sergeant said, “So, are you willing to do the chemical test right now, yes or no?” (See id. at 10:15-10:19.) Petitioner said, “No, [Unintelligible], No.” (See id. at 10:20.) This is sufficient to establish that Petitioner refused to take a chemical test, and based upon the prior admonishment, it is clear she was refusing both a breath and a blood test. Contrary to Petitioner’s argument, the officers did not commit perjury when they noted a refusal to both tests in their report.

Petitioner contends that the DMV violated her 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.”

Petitioner argues that the hearing office acted in a dual role by admitting exhibits into evidence and then using those exhibits to find against Petitioner. Standing alone, this does not constitute a due process violation under Knudsen v. Department of Motor Vehicles (2024) 101 Cal.App.5th 186, 193 (“Knudsen”). A hearing officer is permitted to act “as an adjudicator and a collector and developer of evidence,” as long as the hearing officer does not also act as an “advocate.” (Id. at 193.) In this case, the hearing officer made no opening statement or closing argument and asked no questions. Simply, there was no advocacy in this case.

Petitioner argues that the hearing officer sustained her own objection to one of Petitioner’s exhibits and would not allow her to move the exhibit into evidence. Ruling on the admissibility of exhibits is a judicial function, not advocacy. A judge can refuse to admit exhibits even if there is no objection from the other side, especially in a bench trial. The hearing officer never “objected;” the hearing officer simply refused to admit the exhibit.

Finally, Petitioner argues that the hearing officer was biased because she overruled Petitioner’s objections ignored “false, misleading and fabricated statements” by the officers in their reports, and failed to consider video evidence calling into question the officers’ accounts. This does not evidence bias. Bias stems from extra-judicial sources, and there is no evidence of that in this case.

The court watched the LAPD’s body camera videos in this case, which makes abundantly clear that the officers had reasonable cause to arrest Petitioner for driving under the influence, and that Petitioner refused to take a chemical test after she was properly advised. Indeed, Petitioner’s conduct throughout this entire encounter was nothing more than passive-aggressive gamesmanship. In addition, the hearing before the DMV did not lack due process and there is no evidence that the hearing officer was biased. Therefore, the court orders as follows:

2. The parties shall meet-and-confer and lodge a proposed judgment if necessary.

[1] Petitioner argues that her watery eyes and flush face was the result of the air bag’s deployment. Petitioner also argues that the officers misinterpreted a statement by her daughter suggesting that she had been drinking. The court need not reach these issues. Even if the absence of this evidence, there was a sufficient basis to arrest Petitioner, as discussed.