Ramirez v. Superior Court CA5

Filed 2/9/23 Ramirez v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KEVIN RAMIREZ,
F082588
Plaintiff and Respondent,
(Kern Super. Ct.
v. No. BCV-19-102984)
SUPERIOR COURT OF KERN COUNTY,
OPINION
Defendant and Respondent;
CALIFORNIA DEPARTMENT OF MOTOR
VEHICLES,
Real Party in Interest and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw,
Judge.
Rob Bonta, Attorney General, Chris A. Knudsen, Nancy G. James, and Lorinda D.
Franco, Deputy Attorneys General, for Real Party in Interest and Appellant.
Middlebrook & Associates and Richard O. Middlebrook for Plaintiff and
Respondent.
No appearance for Defendant and Respondent.
-ooOoo-
Real Party in Interest and appellant California Department of Motor Vehicles
(DMV) appeals from a judgment granting plaintiff and respondent Kevin Ramirez’s
petition for writ of mandate (judgment). We modify the judgment, affirm it as modified,
and remand to the trial court with directions.
FACTUAL AND PROCEDURAL BACKGROUND
I. Ramirez is Arrested for Driving Under the Influence
On June 25, 2018, at approximately 1:08 a.m., Bakersfield Police Department
(BPD) received reports of an assault with a deadly weapon that occurred at River Walk
Park in Bakersfield California. One individual reporting the incident described the
suspect(s) as fleeing southbound in a black Toyota occupied by two Hispanic males and a
Hispanic female. Another reporting individual described the suspect(s) as fleeing in a
black, four door Ford Ranger pickup traveling southbound on Buena Vista Road.
According to his supplemental report, BPD Officer Van Dyke was dispatched at
1:10 a.m. and responded to the call. As he travelled northbound on Buena Vista Road, he
noticed a black, four door truck speeding southbound on Buena Vista Road. Believing it
might be the suspect’s vehicle, Officer Van Dyke turned his vehicle onto southbound
Buena Vista Road and initiated an “investigatory traffic enforcement stop” of the vehicle
which Officer Van Dyke described as a black “2001 Ford F-150, 4 door, [with] lowered
suspension.” The truck was driven by Ramirez.
In his supplemental report, Officer Van Dyke also stated Ramirez “displayed
symptoms of being intoxicated. He had red watery eyes, slurred speech, and the odor of
an alcoholic beverage emitting from his breath and person.” When Ramirez stepped out
of his vehicle, Officer Van Dyke “observed [Ramirez] was unsteady on his feet.”
Ramirez “was ruled out as a suspect” in the River Walk Park assault investigation.
However, another BPD officer, Officer Reynolds, arrived at the scene and commenced
investigating whether Ramirez had been driving under the influence (DUI). Other BPD
officers also responded to the scene.
2.
Officer Reynolds observed Ramirez “display the objective symptoms of being
impaired by an alcoholic beverage” including “watery eyes, slightly slurred speech …, an
unsteady gait as he was slightly swaying while standing …, and an odor of an alcoholic
beverage about his person.”
According to Officer Reynolds’s report, Ramirez refused a request he comply with
the investigation and “perform a series of standardized field sobriety tests.” Upon
Ramirez’s refusal, Officer Reynolds reported he gave Ramirez the “Preliminary Alcohol
Screening test (PAS) admonishment,” as follows:
“I am requesting that you take a preliminary alcohol screening test to
further assist me in determining whether you are under the influence of
alcohol. You may refuse to take this test; however, this is not an implied
consent test and if arrested, you will be required to give a sample of your
blood or breath, for the purpose of determining the actual alcoholic and
drug content of your blood.”
Officer Reynolds reported that Ramirez continued in his refusal and was placed
under arrest for violating subdivision (a) of Vehicle Code section 23152 – DUI.1 Officer
Reynolds then took Ramirez to Kern Medical “to obtain an evidential blood sample.”
According to Officer Reynolds’s report, another BPD officer, Officer Diaz
attempted to obtain Ramirez’s cooperation with the blood draw, but Ramirez would not
consent and only stated, “ ‘I want my lawyer.’ ” Officer Reynolds’s report indicates
Officer Diaz provided Ramirez with the “Watson Advisement[2] pursuant to CVC
1 Vehicle Code section 23152 provides, in part: “(a) It is unlawful for a person
who is under the influence of any alcoholic beverage to drive a vehicle. [¶] (b) It is
unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her
blood to drive a vehicle…. (Veh. Code § 23152, subds. (a) & (b).)
2 Per Officer Reynolds’s report, the Watson Advisement given was, as follows:
“You are hereby advised that being under the influence of alcohol or drugs, or both,
impairs your ability to safely operate a motor vehicle. Therefore, it is extremely
dangerous to human life to drive while under the influence of alcohol or drugs, or both.
If you continue to drive while under the influence of alcohol or drugs, or both, and, as a
result of that driving someone is killed, you can be charged with murder. Do you
understand?”
3.
[California Vehicle Code section] 23593(a)” and states, “Officer Diaz told me, he
observed Ramirez look at him as he read the advisement; but when asked if he
understood, Ramirez only raised his eyebrows without providing a verbal response.”
Officer Reynolds obtained a search warrant authorizing the blood draw which was
completed at 4:00 a.m. The blood vials were later booked into evidence at the BPD
property room.
Officer Reynolds took custody of Ramirez’s driver’s license and “provided him
with a copy of his DMV 367 – Order of suspension/revocation” which advised Ramirez
his driver’s license “will be suspended or revoked effective 30 days from the issue date”
of the order. The order also advised Ramirez of his right to request a hearing on the
matter within 10 days of his receipt of the order and that “[t]he suspension or revocation
will not be stayed (delayed)” unless a hearing is timely requested. (Bold type and italics
omitted.)
II. Ramirez’s Driver’s License is Suspended by DMV
On June 28, 2018, three days following Ramirez’s arrest, his counsel wrote the
Bakersfield Driver Safety Office of DMV to request an “in person [Administrative Per Se
(APS)] Hearing” and “discovery pertaining to” Ramirez’s arrest. The letter “confirm[ed]
that [the DMV] will place a ‘stay’ on the suspension of [Ramirez’s] license pending the
outcome of the hearing.”
On July 12, 2018, DMV confirmed the suspension of Ramirez’s license would be
stayed pending the APS hearing and provided Ramirez’s counsel with a temporary
license for Ramirez’s use in the interim period.
On December 20, 2018, Ramirez’s counsel forwarded “his reciprocal discovery”
to the DMV hearing officer (hearing officer) which included CAD records and two audio
CDs of the CAD radio transmissions.3
3 The term CAD commonly refers to the “Computer-Aided Dispatch” system
utilized by law enforcement to process, communicate, and respond to 911 calls. (See
4.
The APS hearing went forward on July 11, 2019. The hearing officer noted, “the
scope of [the] hearing is limited to the following issues in accordance with Section 13558
of the California Vehicle Code. [¶ 1] Did the officer have reasonable cause to believe
that [Ramirez] had been driving a motor vehicle in violation of Section 23152 or 23153
of the Vehicle Code? [¶ 2] Was [Ramirez] lawfully arrested? [¶ 3] [W]as [Ramirez]
told that if he refused to submit to a chemical test or failed to complete a chemical test
that his driving privilege would be suspended or revoked for two – suspended for one
year or revoked for two or three years? [¶ 4] And did [Ramirez] refuse to submit or fail
to complete a chemical test after being requested to do so by a peace officer?”
The hearing officer, on behalf of DMV, marked, moved, and received into
evidence Exhibit 1 – the “Age 21 and Older Officer’s Statement” and the “Probable
Cause Statement” concerning Ramirez, dated June 25, 2018, and completed by Officer
Reynolds; and Exhibit 2 – Ramirez’s driving record printout. At that point, the hearing
officer indicated DMV had “no further evidence to present” and called on Ramirez’s
counsel to present his case.
Ramirez’s counsel marked and moved into evidence Exhibit A – the arrest report
and related officer reports and statements; and Exhibit B – the CAD logs. Thereafter,
Ramirez’s counsel argued, among other things, the arrest report included the name of
another individual in one area – suggesting the report had been cut and pasted; the reports
of the suspects and their vehicle did not match Ramirez and his vehicle and, therefore, the
stops were unlawful; and the reports of admonitions purportedly given to Ramirez were
not based on personal knowledge. Upon concluding his argument, counsel submitted.
The hearing officer then indicated she wanted to “reconvene and get the officer.”
She stated, “[i]f I need the officer, I think I will subpoena, possibly subpoena Officer
Diaz. So we will – we need to reschedule with you ….”
https://10-8systems.com/what-is-a-computer-aided-dispatch-cad-system-for-law-
enforcement/.)
5.
The continued in-person APS hearing was set for September 12, 2019. In the
interim, DMV subpoenaed Officer Van Dyke to appear at the hearing.4
When the APS hearing reconvened on September 12, 2019, the hearing officer
notified Ramirez’s counsel that DMV did subpoena Officer Van Dyke to appear in
person, but that Officer Van Dyke had “contacted the support staff [of DMV] and
requested to testify by phone due to some appointment that had arisen, and I – I did grant
that request – for him to testify by phone.”
The hearing officer inquired if there were any objections. Ramirez’s counsel
objected and indicated, “[t]his one is important because we have documents that we’ve
subpoenaed that do not – that are not regularly handled by the – by the officers. And it’s
impossible for me to show him those documents, refresh his recollection or clarify his
understandings if he isn’t here to look at them. I can read them to them [sic], but he may
or may not be able to establish whether or not these are official Department documents,
whether they appear to be dealing with the exact issues involved. And I can’t show them
to him to have him do that, so at this point I would object.”
The hearing officer overruled the objection and the in-person APS hearing
proceeded with Officer Van Dyke being permitted to testify by telephone.
On September 20, 2019, the hearing officer issued an “Administrative Per Se –
Refusal, Notification of Findings and Decision” (some capitalization omitted). In her
findings, the hearing officer noted, among other things, Officer Van Dyke initiated the
investigatory stop of Ramirez’s vehicle and that Officer Reynolds subsequently made
4 Although the hearing officer indicated at the first APS hearing that she might
“possibly subpoena Officer Diaz,” the record only indicates she subpoenaed Officer Van
Dyke to appear.
In his respondent’s brief, Ramirez indicated that he too “issued a subpoena to
Officer Van Dyke to ensure his personal appearance at the hearing.” However, Ramirez
does not cite to anywhere in the administrative record where this may be confirmed, and
we have not found any indication in the administrative record that Ramirez also issued a
subpoena to Officer Van Dyke.
6.
contact with Ramirez. She determined that Officer Van Dyke’s decision to stop
Ramirez’s vehicle was reasonable and necessary to the proper discharge of Officer Van
Dyke’s duty, that Officer Reynolds had probable cause to contact Ramirez and
“reasonable cause to believe that [Ramirez] was driving a motor vehicle while under the
influence of alcohol,” and that Ramirez’s arrest for DUI was lawful. The hearing officer
further found Officer Diaz admonished Ramirez that “his driving privilege would be
suspended or revoked if he refused to complete the required testing,” and that Ramirez
“did refuse or fail to complete the chemical test or tests after being requested to do so by
a peace officer.” As a result of these determinations, DMV reimposed the suspension of
Ramirez’s driving privileges.
III. The Trial Court Grants Ramirez’s Petition for a Writ of Mandate
On October 18, 2019, Ramirez filed a petition for a writ of mandate seeking an
order directing DMV to set aside and revoke its driver’s license suspension order.
Ramirez’s petition was premised, in part, on his contention that, having objected to
Officer Van Dyke testifying by telephone, the hearing officer was precluded by Title 13,
section 115.07 of the California Code of Regulations (“CCR section 115.07”) and former
Government Code section 11440.30 from allowing the officer to testify telephonically.
As a result, Ramirez contended his counsel “was not able to cross examine the
officer on how the vehicle description provided was entirely different than [Ramirez’s]
actual vehicle using tangible exhibits”; was unable “to show [Officer Van Dyke] the
specific CAD logs provided in this case,” including specific references in the CAD logs
describing the vehicle as a “ ‘4DR Ford Ranger Blk in color’ and not a truck” which
“made it nearly impossible to get the officer to admit that the car stopped … was at
random” and “without a valid basis”; was unable to “thoroughly cross examine Officer
Van Dyke” concerning the dispatch call, which was “weapons-related … and had nothing
to do with a DUI”; and was unable to question the witness concerning alleged
discrepancies, and other issues, pertaining to the sworn statements of the officer(s).
7.
DMV opposed the writ of mandate. Among other things, DMV argued CCR
section 115.07 is directory and not mandatory; that the “directory and mandatory
designations do not refer to whether a particular statutory requirement is permissive or
obligatory, but simply denote whether the failure to comply … will invalidate the
governmental action …,” quoting In re C.T. (2002) 100 Cal.App.4th 101, 111. DMV
argued “[i]f something is deemed directory, then noncompliance will not invalidate the
action.” DMV further argued Ramirez was not prejudiced by the hearing officer’s
decision to allow Officer Van Dyke to testify telephonically; the investigatory stop was
lawful; Ramirez displayed objective signs of intoxication; and Ramirez was properly
admonished upon his refusal to submit to a chemical test.
On September 1, 2020, the hearing on Ramirez’s petition for writ of mandate went
forward. In its ruling from the bench, the trial court made the following comments.
“All right. Counsel I am going to grant the writ petition. The writ is
granted on the procedural ground. I’m not addressing the substantive
grounds.
“I am ordering – the writ will require the DMV to conduct a hearing.
At this point I’m not sure that there is already – there is already testimony,
but I don’t think that there necessarily needs to be a full blown hearing but I
do think that the officer – if the officer – if [Ramirez’s counsel] wants the
officer there, the officer needs to be there and the error here was the DMV’s
failure to make that happen. So I’m not sure what the continued hearing
necessarily looks like and I’m not sure that we need to deal with that right
now, but the writ is on the procedural ground that the – that there should
have been – at a minimum if the witness was not available on that day, the
witness should have been made available. The matter should have been
continued to another day. However it was dealt with – but that’s what
should have happened so I am granting the writ petition on that basis.”
The court then directed Ramirez’s counsel to prepare the judgment that ultimately issued.
The minute order that issued read, in relevant part: “The Court makes the following
findings and orders: [¶] Writ of mandate is granted on procedural grounds. [¶] … [¶]
[Ramirez’s counsel] to prepare Order and Judgment.”
8.
Judgment was entered on October 19, 2020. The judgment itself does not reflect
the basis of the trial court’s decision and only provides, in relevant part: “Petitioner’s
Writ of Mandate is granted ….” Notice of entry of the judgment was served and filed on
January 27, 2021. On March 26, 2021, DMV timely appealed.
DISCUSSION
I. DMV Articulates the Issues It Contends are Presented on Appeal
DMV contends the issues presented on appeal are whether the trial court erred in
overturning the suspension of Ramirez’s driver’s license (1) “by applying [former]
Government Code section 11440.30,[5] which is the section that governs telephonic
hearings under the APA, when [former] section 11440.30 does not apply to DMV APS
hearings”; (2) “because noncompliance with [CCR ]section 115.07, which is directory
rather than mandatory in nature, does not invalidate the suspension of Ramirez’s driver’s
license”; (3) “because Ramirez was provided a meaningful hearing and was not
prejudiced”; (4) “when the evidence established all the elements of a refusal case”; and
(5) “even if the DMV erroneously permitted telephonic testimony, the trial court should
have remanded the matter back to the DMV for further hearing.”
II. Standard of Review
DMV argues “[t]his case involves the interpretation and construction of [CCR]
section 115.07” and that such matters present a question of law upon which this court
should exercise independent judgment. Thus, DMV contends the standard of review is
de novo.
Ramirez agrees, in part, noting that the facts are not in dispute and that “insofar as
the Court is required to interpret a statute or regulation the review is de novo.” In that
regard, Ramirez argues that, if this court determines that either CCR section 115.07 or
Government Code section 11440.30 is mandatory, then this court must affirm the
5Effective January 1, 2022, Government Code section 11440.3 was amended. See
footnote 6, post. The newly amended law is not at issue on appeal.
9.
judgment “because there is no dispute … DMV conducted the APS hearing over
[Ramirez’s] objection.”
We agree the interpretation of former Government Code section 11440.30 and
CCR section 115.07 present questions of law and our review of the issue is de novo.
(Gann v. Acosta (2022) 76 Cal.App.5th 347, 354; Talley v. County of Fresno (2020)
51 Cal.App.5th 1060, 1070; Spanish Speaking Citizens’ Foundation, Inc. v. Low (2000)
85 Cal.App.4th 1179, 1214.)
III. Former Government Code Section 11440.30 Applied to Ramirez’s DMV
Driver’s License Suspension Hearing
The parties disagree as to whether former Government Code section 11440.30,6 a
provision of the Administrative Procedure Act (APA) applied to Ramirez’s APS hearing.
6Effective January 1, 2022, Government Code section 11440.3 was amended.
Subdivision (a) of the statute remained the same as its predecessor statute.
Subdivision (b) was amended, and a subdivision (c) was added. Those amended
subsections now provide:
“(b)(1) Except as provided in paragraph (2), the presiding officer may not
conduct all of a hearing by telephone, television, or other electronic means
if a party objects.
“[¶] (2) If a party objects pursuant to paragraph (1) to a hearing being
conducted by electronic means, the presiding officer shall consider the
objections and may, in the presiding officer’s discretion, structure the
hearing to address the party’s specific objections and may require the
presiding officer, parties, and witnesses, or a subset of parties and witnesses
based on the specific objections, to be present in a physical location during
all or part of the hearing.
“[¶] (c) Subdivision (b) is not a limitation on the presiding officer
transmitting the hearing by telephone, television, or other electronic means
or receiving comments via electronic means from participants who are not
parties or witnesses.” (Gov. Code § 11440.30.)
These provisions are not at issue in this appeal.
10.
We conclude former Government Code section 11440.30 did apply to Ramirez’s APS
hearing.
At the time of the APS hearing, Government Code section 11440.30 provided:
“(a) The presiding officer may conduct all or part of a hearing by telephone,
television, or other electronic means if each participant in the hearing has
an opportunity to participate in and to hear the entire proceeding while it is
taking place and to observe exhibits.
(b) The presiding officer may not conduct all or part of a hearing by
telephone, television, or other electronic means if a party objects.
In arguing their respective positions, both parties cite to different subdivisions of
Government Code section 11501. Government Code section 11501 provides:
“(a) This chapter [concerning administrative adjudications by formal
hearing] applies to any agency as determined by the statutes relating to that
agency. [¶] (b) This chapter applies to an adjudicative proceeding of an
agency created on or after July 1, 1997, unless the statutes relating to the
proceeding provide otherwise. [¶] (c) Chapter 4.5 (commencing with
Section 11400) applies to an adjudicative proceeding required to be
conducted under this chapter, unless the statutes relating to the proceeding
provide otherwise.”
Government Code section 11501 is a part of Chapter 5 of Part 1 of Division 3 of Title 2
of the Government Code. (We refer to the provisions of said Chapter 5 (commencing
with Gov. Code, § 11500) as the “Chapter 5 provisions.”)
A. The Parties’ Contentions
DMV argues that “it is settled that DMV administrative hearings are specified
within the Vehicle Code at sections 14100 – 14112, rather than the APA,” citing Serenko
v. Bright (1968) 263 Cal.App.2d 682, 689 (Serenko), and contends “[t]he APA applies
only to matters not covered by the DMV’s statutory scheme.” DMV relies on
subdivision (a) of Vehicle Code section 14112 which provides, “[a]ll matters in a hearing
not covered by this chapter shall be governed, as far as applicable, by Chapter 5
11.
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code[]”—i.e., the Chapter 5 provisions.
DMV argues “California Code of Regulations[, title 13,] sections 115.01 through
115.10 are made applicable to Vehicle Code sections 14100 through 14112 by
section 115.01[]”7 and “[b]ecause [CCR] section 115.07 specifically provides and
addresses the procedure for telephonic hearings, the APA does not apply.” DMV further
argues, “even where portions of the APA are incorporated to govern matters that are not
specifically addressed in the Vehicle Code and its regulations, only [the Chapter 5
provisions] are incorporated.”
Somewhat inconsistent with its position that only the Chapter 5 provisions of the
APA apply to APS hearings, DMV cites to a provision of the APA that is not contained
within the Chapter 5 provisions, i.e., Government Code section 11415.10 which provides:
“(a) The governing procedure by which an agency conducts an adjudicative
proceeding is determined by the statutes and regulations applicable to that
proceeding. If no other governing procedure is provided by statute or
regulation, an agency may conduct an adjudicative proceeding under the
administrative adjudication provisions of the Administrative Procedure
Act.”
However, that same statute also provides, at subdivision (b), “[t]his chapter [i.e., the
Chapter 4.5 provisions] supplements the governing procedure by which an agency
conducts an adjudicative proceeding.” (Gov. Code, § 11415.10, subd. (b).)
In opposition to DMV’s argument, Ramirez contends DMV is overlooking
subdivision (c) of Government Code section 11501, which provides, “Chapter 4.5
(commencing with [Government Code s]ection 11400) applies to an adjudicative
proceeding required to be conducted under this chapter, unless the statutes relating to the
7California Code of Regulations, title 13, section 115.01 provides: “Section
115.01 through 115.10 of this article are applicable to hearings conducted before the
department pursuant to [Vehicle Code sections 14100 through 14112].”
12.
proceeding provide otherwise.” (Italics added.) (Hereafter, the provisions of said
Chapter 4.5 are referred to as the “Chapter 4.5 provisions.”)
Ramirez notes, “[p]rocedures for telephonic hearings are not specified [in Vehicle
Code sections 14100 through 14112]. Because telephonic hearings are not ‘governed’ by
the Vehicle Code, … , telephonic hearings are governed by [now former] Government
Code section 11440.30, made applicable by subdivision (a), of Vehicle Code section
14112, and subdivision (c), of Government Code section 11501.”
In its reply brief, DMV does not address Ramirez’s counterargument nor
subdivision (c) of Government Code section 11501. It merely reiterates its original
argument.
For the reasons stated below, we agree with Ramirez and conclude that former
Government Code section 11440.30 did apply to Ramirez’s DMV driver’s license
suspension hearing.
B. Under Government Code Section 11501, Subdivision (c), the Chapter 4.5
Provisions (Including Gov. Code, § 11440.30) Apply to APS Hearings
Unless Applicable Vehicle Code Statutes Provide Otherwise
There is no dispute as to the general applicability of Government Code
section 11501 to the case before us. DMV concedes “[t]he APA applies … to matters not
covered by the DMV’s statutory scheme,” citing Vehicle Code section 14112,
subdivision (a). Vehicle Code section 14112, subdivision (a) provides: “All matters in a
hearing not covered by this chapter shall be governed, as far as applicable, by [the
Chapter 5 provisions].”
Subdivision (c) of Government Code section 11501, a statute within the Chapter 5
provisions, is straightforward. It provides, “[the Chapter 4.5 provisions] appl[y] to an
adjudicative proceeding required to be conducted under this chapter, unless the statutes
relating to the proceeding provide otherwise.” Thus, a review of Vehicle Code
sections 14100 through 14112 (which DMV concedes relate to DMV administrative
13.
hearings) is necessary to determine whether they “provide otherwise” – i.e., whether they
provide that the Chapter 4.5 provisions do not apply.
C. A Review of Vehicle Code Sections 14100 Through 14112 Reveals, With
Limited Exceptions Not Relevant Here, the Chapter 4.5 Provisions
(Including Gov. Code, § 11440.30) Apply to APS Hearings
A review of Vehicle Code sections 14100 through 14112 reveals only two
provisions that expressly reference a statute within the Chapter 4.5 provisions. First,
subdivision (b) of Vehicle Code section 14104.5 provides: “Notwithstanding
Section 11450.20 of the Government Code, subpoenas and subpoenas duces tecum issued
in conjunction with the hearings may be served by first-class mail.” Second,
subdivision (b) of Vehicle Code section 14112 provides: “Subdivision (a) of
Section 11425.30 of the Government Code does not apply to a proceeding for issuance,
denial, revocation, or suspension of a driver’s license pursuant to this division.”
Several observations are worth making following our review of Vehicle Code
sections 14100 through 14112: (1) None of these statutes provide contrary to the
provisions of former Government Code section 11440.30 concerning telephonic hearings;
(2) Neither of the Government Code statutes referenced in Vehicle Code
sections 14104.5 and 14112 concern whether a hearing officer may allow telephonic
testimony over the objection of a party; and (3) the fact Vehicle Code sections 14104.5
and 14112 expressly mention (and provide exceptions to) specific Chapter 4.5 provisions
is indicative of a recognition that the Chapter 4.5 provisions otherwise do apply. It would
have been unnecessary for the Legislature to enact exceptions in the Vehicle Code to
specific statutes within the Chapter 4.5 provisions of the APA if those provisions did not
generally apply.
In Serenko, relied upon by DMV, the court noted, “[t]he Administrative Procedure
Act is a general law relating to administrative procedure in hearings and by established
precedent such regulations must yield to special statute where a variance exists. Hearings
14.
before the [DMV] are controlled by the provisions of Vehicle Code section 13353 itself
[concerning chemical blood, breath, or urine tests], and the [DMV’s] hearing procedures
are specified within the Vehicle Code (§§ 14100–14112) rather than the [APA]
[citation]…. The Vehicle Code provisions describe a comprehensive system for the
conduct of formal and informal hearings, and the application of the [APA] is limited to
those matters not covered by the Vehicle Code provisions [citation].” (Serenko, supra,
263 Cal.App.2d at p. 689, italics added.)
As we have noted above, the applicable Vehicle Code provisions do not cover
procedures for telephonic hearings. Moreover, DMV has not identified any “special
statute where a variance exists” between the applicable Vehicle Code statutes and former
Government Code section 11440.30 and we have not found any. (Serenko, supra,
263 Cal.App.2d at p. 689.)
We reject DMV’s contention that “even where portions of the APA are
incorporated to govern matters that are not specifically addressed in the Vehicle Code
and its regulations, only Government Code section 11500 et seq. of the APA are
incorporated,” citing Vehicle Code section 14112, subdivision (a). Vehicle Code
section 14112, subdivision (a) merely provides that “[a]ll matters in a hearing not covered
by this chapter shall be governed, as far as applicable, by [the Chapter 5 provisions].”
(Italics added.) Our review of said Chapter 5 provisions do not reveal any statutes that
address whether an adjudicative hearing may be conducted telephonically over the
objection of a party. Thus, the applicability of the Chapter 5 provisions does not conflict
in any way with former Government Code section 11440.30.
In summary, we conclude former Government Code section 11440.30 was
applicable to Ramirez’s DMV driver’s license suspension hearing. Said former statute is
fully consistent with other relevant statutes, including, without limitation, Vehicle Code
sections 14100 through 14112 and Government Code section 11501.
15.
IV. Former Government Code Section 11440.30 and CCR Section 115.07 Were
Not Merely Directory
DMV acknowledges the hearing officer did not adhere to CCR section 115.07
when she permitted Officer Van Dyke to testify by telephone over Ramirez’s objection.
DMV argues, however, that the “violation did not warrant reversal of Ramirez’s driver’s
license suspension because [CCR] section 115.07 is directory and provides no
consequence for noncompliance.” We conclude, however, that both CCR section 115.07
and former Government Code section 11440.30 were mandatory and not merely
directory.
A. CCR Section 115.07 was Promulgated Under the Chapter 4.5 Provisions
to Implement, Interpret, or Make Specific Government Code
Section 11440.30
Notably, a review of the Proposed Action on Regulations that led to the adoption
of CCR section 115.07 demonstrates it was promulgated, in part, under the authority of
Government Code section 11400.20 (also a part of the Chapter 4.5 provisions).
(2014 Ca. Reg. Text 366554 (NS).) The notice by which CCR section 115.07 was
proposed as a regulation by the DMV states, in relevant part “[t]he department proposes
to adopt this regulation under the authority granted by … Government Code
section 11400.20, in order to implement, interpret, or make specific … Government Code
section[] 11440.30 ….” (2014 Ca. Reg. Text 36654 (NS).)
Thus, DMV promulgated CCR section 115.07 to make certain Government Code
section 11440.30 was implemented by DMV hearing officers. Their purposes are the
same and it is no coincidence that there is not only similarity but near identity between
subdivision (b) of CCR section 115.07 which reads, “[t]he hearing officer shall not
conduct all or part of a hearing by telephone, television, or other electronic means, if a
party objects[,]” and subdivision (b) of former Government Code section 11440.30 which
reads, “[t]he presiding officer may not conduct all or part of a hearing by telephone,
television, or other electronic means if a party objects.”
16.
DMV acknowledges the hearing officer did not adhere to CCR section 115.07.
That acknowledgment is tantamount to an acknowledgement the hearing officer also did
not adhere to former Government Code section 11440.30.
B. The Nature of the Mandatory – Directory Distinction
“[T]he mandatory-directory distinction … must not be confused with the
distinction between mandatory and permissive provisions in a statute. The two
dichotomies are not the same ….” (Galbiso v. Orosi Public Utility Dist. (2010)
182 Cal.App.4th 652, 664.) “Traditionally, the question of whether a public official’s
failure to comply with a statutory procedure should have the effect of invalidating a
subsequent governmental action has been characterized as a question of whether the
statute should be accorded ‘mandatory’ or ‘directory’ effect. If the failure is determined
to have an invalidating effect, the statute is said to be mandatory; if the failure is
determined not to invalidate subsequent action, the statute is said to be directory.”
(People v. McGee (1977) 19 Cal.3d 948, 958 (McGee), superseded by statute on
unrelated grounds in People v. Preston (1996) 43 Cal.App.4th 450, 461.)
In the context of whether a statute or regulation is considered mandatory or
permissive, “ ‘the term “mandatory” refers to an obligatory [procedure] which a
governmental entity is required to [follow] as opposed to a permissive [procedure] which
a governmental entity may [follow] or not as it chooses. By contrast, the “directory” or
“mandatory” designation does not refer to whether a particular statutory requirement is
“permissive” or “obligatory,” but instead simply denotes whether the failure to comply
with a particular procedural step will or will not have the effect of invalidating the
governmental action to which the procedural requirement relates.’ ” (McGee, supra, 19
Cal.3d at pp. 958–959.)
17.
C. Cases Relied Upon by DMV Acknowledge that Legislative Intent and
Purpose are Important Considerations in Determining Whether a
Statutory Requirement is Mandatory or Directory
DMV contends, “[w]hen a statute does not provide any consequence for
noncompliance, the language should be considered directory rather than mandatory[,]”
citing In re C.T., supra, 100 Cal.App.4th at p. 111 and Spitze v. Zolin (1996)
48 Cal.App.4th 1920, 1927–1928 (Spitze). Ramirez contends “neither these cases, nor
the cases they relied on to reach their conclusion, addressed the issue before this [c]ourt.”
In Spitze, the court was faced with the question of whether forensic laboratories’
failure to timely send test results for blood alcohol content to the DMV renders the results
inadmissible in driver’s license suspension hearings. (Spitze, supra, 48 Cal.App.4th at
p. 1923–1924.) At issue was Vehicle Code section 23157 which read, in relevant part,
“ ‘… If the person submitted to a blood or urine test, the peace officer shall forward the
results immediately to the appropriate forensic laboratory. The forensic laboratory shall
forward the results of the chemical tests to the department within 15 calendar days of the
date of the arrest.’ ” (Id. at pp. 1923–1924, citing former Veh. Code, § 23157, subd. (g),
italics added in original.) Relying on the analytical standards articulated in California
Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1209–
1210 (CCPOA), the Spitze court noted “no penalty or consequence [was] specified in the
statute for breach of the time limit”; “the Legislature ha[d] not clearly expressed an intent
that the time limit imposed upon testing laboratories be mandatory instead of directory”;
and if it were to hold the provision mandatory, it would “defeat the underlying purposes
sought to be achieved by the implied consent law.” As a result, the Spitze court
determined the provision was merely directory and that test results are not inadmissible if
not forwarded within the required statutory time frame. (Spitze, at pp. 1924, 1927–1928.)
In In re C.T., a father appealed a trial court order placing custody of his child with
the child’s mother who lived in Arkansas and terminating the California court’s
dependency jurisdiction over the child. (In re C.T., supra, 100 Cal.App.4th at p. 104.)
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At issue was Family Code section 3424, subdivision (d) which provided: “[a] court of
this state that has been asked to make a child custody determination … , upon being
informed that a child custody proceeding has been commenced in, or a child custody
determination has been made by” a sister state with jurisdiction over the matter “shall
immediately communicate with the other court.” (Fam. Code, § 3424, subd. (d).) The
father contended the court erred by waiting almost a month after learning the Arkansas
courts had made an earlier custody determination concerning his child. (In re C.T., at
p. 104.) In rejecting the father’s argument, the court wrote, “[w]hen a statute does not
provide any consequence for noncompliance, the language should be considered
directory rather than mandatory,” citing In re Charles B. (1986) 189 Cal.App.3d 1204,
1210 and In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419. (In re C.T., at p. 111.) It
noted the difference between directory and mandatory designations and, without further
analysis of that particular issue, determined “the error does not warrant reversal in this
case because there is no showing of prejudice.” (Ibid.)
Ramirez notes that the aforementioned cases all relate to “whether time limits are
mandatory or directory, not whether a hearing officer can ignore a substantive procedural
protection” (capitalization omitted). Ramirez’s point is well taken. Each of the above
cases addressed whether the failure to meet certain timing deadlines should have the
effect of invalidating the resultant order or judgment. The case before us does not
involve the failure to meet a timing deadline.
Moreover, Spitze and the cases it and In re C.T. rely upon all recognize that it is
not merely the fact of whether the statute or regulation provides a consequence for
noncompliance that determines whether they should be considered directory or
mandatory. Rather, the intent of the Legislature and the purpose of the statute or
regulation are also necessary considerations. (Spitze, supra, 48 Cal.App.4th at pp. 1927–
1928; CCPOA, supra, 10 Cal.4th at p. 1145; In re Charles B., supra, 189 Cal.App.3d at
pp. 1209–1210; In re Melinda J., supra, 234 Cal.App.3d at p. 1419.) As stated by the
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California Supreme Court, “in evaluating whether a provision is to be accorded
mandatory or directory effect, courts look to the purpose of the procedural requirement to
determine whether invalidation is necessary to promote the statutory design.” (McGee,
supra, 19 Cal.3d at p. 958.) “[W]e must ask whether the purposes of the statute would be
promoted or defeated if the [provision] were construed as mandatory.” (People v. Lara
(2010) 48 Cal.4th 216, 227.)
D. The Legislative Purpose of Government Code Section 11440.30 Indicates
the Prohibition Against Conducting Telephonic Hearings Over the
Objection of a Party is Mandatory and Not Merely Directory
DMV notes, “[t]ypically, a requirement is deemed directory when it is designed to
make proceedings orderly, systematic, and speedy and when the failure to comply does
not injure the interested party[,]” citing Skelly Estate Co. v. City and County of San
Francisco (1937) 9 Cal.2d 28, 33 (Skelly) and Francis v. Superior Court of Los Angeles
County (1935) 3 Cal.2d 19, 28 (Francis). DMV also contends reason, practicality and
common sense must be applied to the statute or regulation at issue (citing Halbert’s
Lumber, Inc., v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1239), and that a court
should “consider the consequences that will flow from interpreting the regulation as
either directory or mandatory” (citing Meija v. Reed (2003) 31 Cal.4th 657, 663).
In Skelly, the court considered whether a tax levy increase was valid in light of the
fact the city’s application for the tax levy to the board of equalization was not filed within
the required statutory time frame. (Skelly, supra, 9 Cal.2d at p. 31.) In determining the
statutory deadline was merely directory and not mandatory, the Court wrote: “ ‘[i]t is a
well-settled rule of construction, applicable to tax statutes, that only those provisions
enacted for the benefit of the taxpayer are mandatory, while provisions enacted to secure
the orderly conduct of business are merely directory.’ ” (Id. at p. 33.)
In Francis, the Court determined that Code of Civil Procedure section 661’s
requirement that a “ ‘motion for a new trial shall be heard and determined by the judge
20.
who presided at the trial’ ” – absent one of the statutory exceptions, was mandatory and
not directory. (Francis, supra, 3 Cal.2d at p. 27.) As the Court stated, “the very essence
of this enactment is that the motion … shall be heard and determined whenever
practicable by the judge who had heard the evidence … and who was therefore best
prepared and qualified to pass upon the merits of the motion.” (Id. at p. 28.) “To leave it
optional with litigants to observe or disregard its provisions would defeat the very
purpose and object of its enactment.” (Id. at p. 29.) “[W]hen taken in connection with
the subject matter of section 661, and the purposes to be accomplished by its enactment,
we think the clear intent of the Legislature was to use it in its mandatory sense.” (Ibid.)
It is true that “[t]he express legislative purposes of the administrative suspension
procedure are: (1) to provide safety to persons using the highways by quickly suspending
the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to
guard against erroneous deprivation by providing a prompt administrative review of the
suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related
criminal actions.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 847; Lake v. Reed (1997)
16 Cal.4th 448, 454–455; Stats. 1989, ch. 1460, § 1, pp. 6501–6502.)
However, the legislative history behind former Government Code
section 11440.30, at issue here, was to provide an “Administrative Adjudication Bill of
Rights” which, among other things “specifie[d] the minimum due process and public
interest requirements that must be satisfied in a hearing …” (Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 523 (1995–1996 Reg. Sess.)
May 3, 1995.) The bill that led to the enactment of former Government Code
section 11440.30 (Stats. 1995, Ch. 938 (S.B. 523), § 21) “[r]equire[d] that all state
adjudicative proceedings adhere to a fundamental ‘administrative adjudication bill of
rights,’ which would promote greater due process, fairness, accessibility, objectivity and
consistency in the adjudicative proceedings.” (Assem. Com. on Consumer Protections,
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Government Efficiency and Economic Development, Rep. on Sen. Bill No. 523 (1995–
1996 Reg. Sess.) July 11, 1995, as amended: June 30, 1995.)
Thus, the legislative history of former Government Code section 11440.30
demonstrates the statute was designed, in part, to protect and enhance the due process
rights of persons in administrative proceedings. This is also fully consistent with a
legislative purpose of the driver’s license suspension statutes which includes protection
against the erroneous deprivation of driving privileges. (Gikas v. Zolin, supra, 6 Cal.4th
at p. 847; Stats., 1989, ch. 1450, § 1, pp. 6501–6502.)
We conclude the Legislature intended former Government Code section 11440.30
to be mandatory and not merely directory. To hold that the statute was merely optional
would undermine and defeat its purpose. Moreover, because CCR section 115.07 was
adopted to implement former Government Code section 11440.30, it too was mandatory
and not merely directory.
V. Substantial Evidence Supports an Implied Finding That Ramirez Was
Prejudiced by DMV’s Failure to Adhere to Former Government Code
Section 11440.30
“[T]he retention of a driver’s license constitutes a fundamental vested right ….”
(Campbell v. Zolin (1995) 33 Cal.App.4th 489, 493 (Campbell); accord Webb v. Miller
(1986) 187 Cal.App.3d 619, 625 (Webb).) In considering whether to grant a writ petition
under Code of Civil Procedure section 1094.5 in cases involving the suspension of a
driver’s license, “the trial court must exercise its independent judgment to determine
whether the weight of the evidence supported the administrative decision reached by the
DMV.” (Campbell, at p. 493; accord Webb, at p. 625.)
“ ‘ “In reviewing the trial court’s ruling on a writ of mandate, the appellate court is
ordinarily confined to an inquiry as to whether the findings and judgment of the trial
court are supported by substantial, credible and competent evidence.” ’ ” (Campbell,
supra, 33 Cal.App.4th at p. 493.) “ ‘[W]hen a trial court has made its own determination
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on all material facts and made findings using its own independent judgment …, it will be
the trial court’s findings and not those of the administrative agency that will be reviewed
on appeal.’ ” (Webb, supra, 187 Cal.App.3d at p. 625, fn. omitted in original.)
Here, the judgment did not include express findings by the trial court. However,
“[t]he doctrine of implied findings requires the appellate court to infer the trial court
made all factual findings necessary to support the judgment.” (Fladeboe v. American
Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) “In reviewing the evidence, we
‘resolve all conflicts in favor of the party prevailing in the superior court and must give
that party the benefit of every reasonable inference in support of the judgment.’ ” (Kifle-
Thompson v. State Bd. of Chiropractic Examiners (2012) 208 Cal.App.4th 518, 523.)
An implied finding of the trial court is that Ramirez suffered prejudice when the
hearing officer overruled his counsel’s objection to allowing Officer Van Dyke to testify
by telephone. At the APS hearing, Ramirez’s counsel relied on the fact Officer
Van Dyke had been subpoenaed to testify in person. He was not notified until the
hearing was underway that the officer’s personal attendance had been excused by the
hearing officer. In objecting to the officer testifying telephonically, Ramirez’s counsel
indicated he had documents “not regularly handled” by officers; that it was “impossible
for [counsel] to show [the officer] those documents, refresh his recollection or clarify his
understandings if [the officer] isn’t here to look at them”; and that the officer “may or
may not be able to establish whether or not [the documents] are official [BPD]
documents, [or] whether they appear to be dealing with the exact issues involved [in the
case].” In his petition for writ of mandate, Ramirez argued, among other things, his
counsel “was not able to cross examine the officer on how the vehicle description
provided was entirely different than the [Ramirez’s] actual vehicle using tangible
exhibits”; “was limited in his ability to cross examine the officer by not being able to
show him the specific CAD logs provided in this case”; and was hampered in his ability
to adequately cross-examine the officer on several related issues.
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Additionally, the trial court could infer that, because the officer was permitted to
testify telephonically, his demeanor could not be observed by the hearing officer, and it
would be impossible to tell whether the witness was testifying from those documents he
was able to access remotely as opposed to testifying from his recollection.
Based on the evidence, the trial court could have permissibly concluded Ramirez’s
counsel was unfairly prejudiced in his ability to cross-examine Officer Van Dyke.
VI. We Decline to Address Ramirez’s Argument that DMV Driver’s License
Suspension Hearings are Unconstitutional
Ramirez contends this court should affirm the judgment because the DMV’s
process for conducting APS hearings is unconstitutional. In support of this contention,
Ramirez notes that the Second District Court of Appeal recently 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.” (California DUI Lawyers Assn. v. Department of Motor Vehicles (2022)
77 Cal.App.5th 517, 532.) DMV contends Ramirez waived this issue by failing to raise it
before the trial court. We agree.
The traditional rule is that “a party must raise an issue in the trial court if they
would like appellate review.” (People v. Lowery (2020) 43 Cal.App.5th 1046, 1054.)
“While ‘ “[i]t is the general rule applicable in civil cases that a constitutional question
must be raised at the earliest opportunity or it will be considered as waived” ’ [citation],
application of this principle is not automatic.” (Hale v. Morgan (1978) 22 Cal.3d 388,
394.) “[A] new theory raising a pure question of law on undisputed facts can be raised
for the first time on appeal.” (Fort Bragg Unified School Dist. v. Colonial American
Casualty & Surety Co. (2011) 194 Cal.App.4th 891, 907.) Notwithstanding, an appellate
court is under no mandatory duty to consider “forfeited arguments that raise pure
questions of law.” (Wittenberg v. Bornstein (2020) 51 Cal.App.5th 556, 567.) For the
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reasons set forth below, we decline to exercise our discretion to consider Ramirez’s
argument that DMV driver’s license suspension hearings are unconstitutional.
The hearing officer’s dual role as advocate and adjudicator was known at the time
of the administrative hearing, if not before. (The record reveals Ramirez’s counsel has
had other administrative hearings pending before the DMV.) Moreover, DMV notes this
issue and similar issues have been the subject of prior case law. (Poland v. Department
of Motor Vehicles (1995) 34 Cal.App.4th 1128, 1134–1135 [due process challenge on
ground “hearing officer cannot fairly or properly adjudicate the case because he or she is
an employee of the Department and a proponent of evidence”]; see also Southern Cal.
Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 548–
549 [claims of biased tribunal “because City was both prosecutor and adjudicator”].)
Here, not only did Ramirez fail to raise the issue at the trial court level, but he also
failed to raise the issue at the administrative level. “An issue not raised at an
administrative hearing … may not be raised in later judicial proceedings.” (Southern
Cal. Underground Contractors, Inc. v. City of San Diego, supra, 108 Cal.App.4th at
p. 549.)
In addition, the appeal in this matter was filed by DMV. No protective cross-
appeals were taken. The new issue was first raised by Ramirez in his respondent’s brief
and DMV’s reply brief only addresses the procedural propriety of this court addressing
the issue rather than the substantive question posed by the new issue.
Consequently, we decline to address Ramirez’s argument that the APS hearing
process employed by DMV is unconstitutional.
VII. Remand to DMV is Necessary
Because we have determined that former Government Code section 11440.30 was
applicable to Ramirez’s APS hearing; that said statute and its corresponding regulation,
CCR section 115.07, were mandatory and not merely directory; and that substantial
evidence supports an implied finding of prejudice, we conclude the trial court properly
25.
granted Ramirez’s petition for writ of mandate. However, we note the judgment that
issued does not reflect the trial court’s ruling from the bench which, in essence, provided
that the matter be remanded to the DMV for further proceedings. The judgment should
be modified to reflect a remand to the DMV for further proceedings.
DISPOSITION
The “Judgment Granting Petition For Writ Of Mandate And Awarding Costs And
Attorney Fees To Petitioner” (some capitalization omitted) is affirmed, and the cause is
remanded to the court below, with directions to modify the judgment to provide that the
matter shall thereafter be remanded to the DMV for further proceedings not inconsistent
with this opinion.8 Costs on appeal are awarded to Ramirez.
POOCHIGIAN, Acting P. J.
WE CONCUR:
DETJEN, J.
SNAUFFER, J.
8 Aside from the requirement that Officer Van Dyke be present at the continued
APS hearing, and consistent with the trial court’s ruling from the bench (see discussion at
pages 8 through 9, ante), we do not attempt to provide further structure for the continued
hearing.
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