Opinion
F082711
09-16-2022
RICHARD DEAN FLETCHER, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents.
Richard O. Middlebrook for Plaintiff and Appellant. Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian and Brad Parr, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BCV-20-102842 William D. Palmer, Judge. (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Richard O. Middlebrook for Plaintiff and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian and Brad Parr, Deputy Attorneys General, for Defendants and Respondents.
OPINION
THE COURT [*]
In this review of an administrative decision, appellant Richard Dean Fletcher challenges not only the quality of the evidence submitted at a Department of Motor Vehicles (DMV) hearing, but also the process used in that hearing resulting in the suspension of his driver's license. Following our review of the administrative hearing and the trial court records, we affirm the judgment below.
FACTUAL AND PROCEDURAL SUMMARY
When appellant failed to stop at a posted stop sign on August 27, 2017, a police officer initiated a vehicle stop to cite him for a violation of the Vehicle Code. The officer observed appellant had bloodshot or watery eyes, an unsteady gait, and slurred his speech. The officer also detected the smell of alcohol on appellant. After appellant failed a field sobriety test, and preliminary alcohol screening indicated appellant had a blood-alcohol level of 0.17 percent, two chemical breath tests were administered. These tests were administered with appellant's consent and were completed within three minutes of each other. Both breath tests showed appellant had a blood-alcohol level of 0.18 percent.
Appellant requested an administrative hearing to challenge the suspension of his driver's license, which was held over two days on August 13, 2019, and November 5, 2020. On the first day, appellant presented the expert testimony of Stanley Dorrance. Dorrance reviewed the printout and the maintenance logs for the breathalyzer used by the officer who administered the chemical breath tests. Dorrance testified that the breathalyzer passed routine calibration tests on August 24, 2017, and September 4, 2017. A "Breath Alcohol Accuracy Report" reviewed by Dorrance showed that between July 27, 2017, and September 21, 2017, the specific breathalyzer at issue here was tested seven times and passed every time. However, Dorrance believed the breathalyzer was out of compliance when used on August 27, 2017, because DMV regulations require these devices be tested every 10 days. Between August 24, 2017, and September 4, 2017, 11 days had passed. This was the only defect Dorrance cited challenging the accuracy of the breathalyzer. The hearing officer then decided he would bring in an "analyst" to explain why 11 days between the two tests would be a problem. The hearing officer also indicated he would review the report again before the next hearing.
On the second hearing date in November 2020, the same hearing officer stated he had changed his mind and did not need to call an analyst to address the accuracy of the breathalyzer used on appellant. The hearing officer then found appellant had driven with a blood-alcohol level of 0.08 percent or more, and suspended his driver's license effective November 26, 2020, through November 25, 2021.
On December 3, 2020, appellant filed a petition for writ of mandate in the Kern County Superior Court, asking the court to set aside the suspension of his driver's license. Following a hearing on the petition, the trial court initially stated the matter would be returned to the DMV for further proceedings consistent with the hearing officer's initial intent to call an additional witness. The court directed appellant to prepare an order to that effect on April 9, 2021. Three days later on April 12, 2021, the trial court issued a new written ruling denying the petition, and stated:
"The Court, on further reflection, sets aside the ruling announced in open court on April 9, 2021, and replaces it with the following ruling:
"The petition for writ of [m]andate is denied. Counsel for Respondent to prepare judgment.
"Discussion: Petitioner, at the time that the DMV Hearing Officer announced that he was not going to call a witness, indicated that []he was prepared to close. (AR-0035). Therefore, there was no prejudice in going forward and ruling by the hearing officer. As the Court indicated, the "Lane" decision controls, and thus the [p]etition should be denied."
The citation of "Lane" refers to this court's opinion in Lane v. Valverde (2012) 203 Cal.App.4th 71, as further justification for denying the petition. In fact, we stated in Lane, when an instrument is found to be accurate less than 10 days before the subject is tested, the instrument should not then be found invalid or untrustworthy retroactively if the testing instrument falls out of compliance at some later point in time. (Lane, supra, at p. 79.)
No reporter's transcript of the hearing held in the trial court exists.
When reviewing the decision of the trial court, we are limited to the language of the orders issued by the trial court at that time.
Appellant filed a timely notice of appeal on April 22, 2021.
DISCUSSION
Appellant challenges the quality of the evidence supporting the conclusion he was under the influence of alcohol beyond the threshold allowed by law. Appellant also contends he was denied due process in the administrative hearing before the DMV. We consider each of those issues below.
I. The Administrative Hearing Officer's Decision to Suspend Appellant's License
A. The Standard of Review
"If the decision of an administrative agency will substantially affect a "fundamental vested right," then the trial court must not only examine the administrative record for errors of law, but also must exercise its independent judgment upon the evidence." (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 395.) Because case law has determined that once obtained, a license is a vested fundamental right, a trial court must exercise independent judgment when reviewing a decision to suspend a driver's license. (Munro v. Department of Motor Vehicles (2018) 21 Cal.App.5th 41, 46.) The standard of review on appeal then asks if the decision reached by the trial court is supported by substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.)
" '[O]n appeal, we ... "review the record to determine whether the trial court's findings are supported by substantial evidence.." . We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision.. Where the evidence supports more than one inference, we may not substitute our deductions for the trial court's.. We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.'" (Robertson v. Zolin (1996) 44 Cal.App.4th 147, 152.)
Our review is limited in this appeal as no reporter's transcript of the hearing in the trial court was provided. The cardinal rule of appellate review is that judgments and orders of the trial court are presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The party seeking review has the burden of providing an adequate record, and the failure to provide an adequate record for meaningful review requires the issue be resolved against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
We note, however, our independent review of the administrative record provides substantial evidence for the decision reached by the trial court. Appellant's only significant challenge involves the reliability of the breathalyzer test. Our opinion in Lane held that title 17, section 1221.2, subdivision (a)(2)(B) of the California Code of Regulations does not require that a device later found invalid or untrustworthy during a compliance test be retroactively considered invalid or untrustworthy. (Lane v. Valverde, supra, 203 Cal.App.4th 71, at p. 79.) We have been provided no valid reason to reconsider Lane at this time. We simply note the breathalyzer was tested and found to be accurate three days before it was used on appellant, and was tested and found to be accurate again eight days later. There was no evidentiary basis established by appellant supporting a conclusion the breathalyzer showed invalid or untrustworthy results when the test was administered.
We affirm the judgment as substantial evidence supports the suspension of appellant's license.
II. Appellant's Due Process Rights Have Not Been Prejudiced
Appellant also contends that his due process rights were denied when the DMV hearing officer decided not to present evidence from a criminologist addressing the reliability of the breathalyzer used to calculate his level of intoxication. Appellant believes the hearing officer represented during the first hearing in August 2017 that "the reliability of the tests had been rebutted and then did absolutely nothing to dispel that reasonable belief." When the hearing officer decided not to pursue testimony from a criminologist, appellant contends either he was denied the opportunity to put forth more evidence on the accuracy of the breathalyzer, or the hearing officer failed to rebut the presumption it was not in compliance, denying appellant the fundamental fairness guaranteed by due process.
When an administrative agency conducts an adjudicative proceeding, due process of law requires a fair tribunal. (Gerawan Farming, Inc. v. Agricultural Labor Relations Board (2020) 52 Cal.App.5th 141, 207.) "A fair tribunal is one in which the judge or other decision maker is free of bias for or against a party." (Morongo Band of Mission Indians v. State Water Resources Control Board (2009) 45 Cal.4th 731, 737.) However, the "standard of impartiality required at an administrative hearing is less exacting than that required in a judicial proceeding." (Gerawan Farming, at p. 207.)
Appellant suggests when the hearing officer stated he would attempt to find an analyst to address the accuracy of the breathalyzer, he was making a finding that the presumption of accuracy had been rebutted. In fact, the hearing officer never made such a statement. After the hearing resumed in November 2020, the hearing officer was still free to conclude the breathalyzer was accurate. When counsel for appellant learned the hearing officer would no longer be calling a criminologist to testify about the accuracy of the breathalyzer, she stated, "that means that the question of the reliability of the instrument is no longer being rebutted." Appellant's counsel never asked to reopen the case or place any more evidence into the record addressing the accuracy of the breathalyzer. Appellant's counsel simply made a closing argument, focusing on the claim the breathalyzer did not comply with regulations governing the testing of these devices. Appellant's mere belief the failure to call the criminologist to the stand hindered his case was not enough to establish any unfairness, bias, or other form of impartiality, and did not result in a violation of due process.
After this case was fully briefed, a new case was published considering the overall fairness of the DMV hearing process. In California DUI Lawyers Association v. California Department of Motor Vehicles, supra, 77 Cal.App.5th 517, the Second District Court of Appeal, concluded "a hearing officer's dual roles of advocate and adjudicator violates due process," and that "[v]ehicle [c]ode section 14112, subdivision (b) is unconstitutional to the extent it permits the DMV to combine the advocacy and adjudicatory roles in a single ... hearing officer." (California DUI Lawyers, at p. 533.) However, in a footnote to this holding, the court also stated:
Appellant has asked this court to take judicial notice of the docket in California DUI Lawyers Association v. California Department of Motor Vehicles (2022) 77 Cal.App.5th 517. (Evid. Code, § 452, subd. (d).) We take judicial notice only for the limited purpose the opinion is discussed here. We note the opinion is from another appellate district, and therefore, not binding authority on this court.
The procedural setting of the case brought in the Second District Court of Appeal involved trial court rulings granting motions for summary adjudication in favor of the DMV on the issue of the constitutional fairness of the hearing process, and a related claim against the Director of the DMV under Title 42 of the United States Code, section 1983.
"[California DUI Lawyers Association] 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[, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 220] ..) He or she must refrain, however, from advocating on behalf of the DMV as the DSM currently mandates .." (Ibid., fn. 5.)
Although we asked the parties to address the constitutionality of Vehicle Code section 14112 in supplemental briefing, based on this language from California DUI Lawyers, we have determined the facts do not require our court to express a conclusive opinion at this time. We note the Supreme Court has decided not to accept the case for review on its own motion. (S274860.)
Even if we were to be bound by this new case, the record presented to this court failed to show the hearing officer did anything more than collect and develop the evidence, before rendering a decision. The mere fact the hearing officer explored the possibility of seeking more evidence on the accuracy of the breathalyzer does not prove he was acting as an advocate on behalf of the DMV.
We do not find appellant's due process rights were violated by the DMV.
DISPOSITION
The judgment is affirmed.
[*] Before Franson, Acting P. J., Smith, J. and DeSantos, J.