Preview
Ros BONTA
Attorney General of California
Gary S. BALEKJIAN
Supervising Deputy Attorney General
LoRINDA D. FRANCO
Deputy Attorney General
State Bar No. 213856
300 South Spring Street, Suite 1702
Los Angeles, CA 90013-1230
Telephone: (213) 269-6459
Fax: (916) 731-2119
E-mail: Lorinda.Franco@doj.ca.gov Filing Fees Exempt Per Govt. Code § 6103
Attorneys for Defendant
Department of Motor Vehicles, an agency of the
State of California, by and through its Director
Steve Gordon
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF KERN-METROPOLITAN DIVISION
11
12
13
14 NEIL RAJIV TRIVEDI, Case No. BCV-23-103553-BCB
15 Petitoner, OPPOSITION TO PETITION FOR WRIT
OF MANDATE
16
Date: May 3, 2024
17 Time: 1:30 p.m.
DEPARTMENT OF MOTOR VEHICLES, , Dept: H
18 AN AGENCY OF THE STATE OF Judge: The Honorable Judge Bernard C.
CALIFORNIA, BY AND THROUGH ITS Barmann, Jr.
19 DIRECTOR STEVE GORDON, Action Filed: October 23, 2023
20 Respondent
21
INTRODUCTION
22
Petitioner Neil Rajiv Trivedi (“Petitioner”) seeks to overturn his suspension for driving with
23
a blood alcohol concentration at least twice the legal limit on June 1, 2023. The chemical breath
24
tests chosen by Petitioner yielded results of 0.16 percent, while an additional chemical blood test
25
yielded a result of 0.18 percent concentration. Petitioner does not dispute the reasonable suspicion
26
precipitating the contact with the officer, the validity of his arrest, or the validity of the 0.18
27
28
1
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
percent BAC result. Rather, Petitioner challenges the propriety of the DMV hearing process.
Petitioner’s argument lacks merit.
Petitioner contends that DMV’s administrative hearing process violated due process, based
on California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.Sth 517
(“California DUI Lawyers’). However, what California DUI Lawyers found improper was
where the Hearing Officer acts as an advocate. As relevant here, California DUI Lawyers
recognized that the Hearing Officer may lawfully collect and develop the evidence, and render a
final decision. (/d., at p. 533, fn. 5.) Here, the record shows that the DMV Hearing Officer acted
properly, basing the suspension on records that DMV is statutorily required to consider, and no
10 indicia of bias or improper motive is shown. Because Petitioner fails to meet his burden to
11 establish that his license was improperly suspended, the DMV respectfully requests that the Court
12 deny the petition.
13 STATEMENT OF FACTS
14 In the predawn morning of June 1, 2023, Kern County Sheriff Deputy A. Mendez stopped a
15 blue Porsche Macan for a stop sign violation and driving in the wrong direction—heading
16 southbound in the northbound lane of Allen Road. (AR 8.) Deputy Mendez contacted the driver,
17 who displayed red and watery eyes, and admitted to consuming alcohol prior to driving. (AR 8.)
18 California Highway Patrol Officer Baza responded to Deputy Mendez’s call requesting a
19 possible DUI investigation. (AR 8.) Deputy Mendez conveyed his observations to Officer Baza,
20 and Officer Baza investigated further. (AR 8.)
21 Officer Baza approached the Porsche’s driver, who was seated in the driver’s seat, and
22 immediately noticed a strong odor of an alcoholic beverage emitting from within the SUV. (AR 8,
23 17.) When Officer Baza instructed the driver, later identified by his California driver’s license as
24 Neil Rajiv Trivedi (“Petitioner”), to exit the Porsche to conduct field sobriety tests, Officer Baza
25 observed Petitioner’s droopy, red, watery eyes, and unsteady gait. (AR 8, 15, 17.) As he swayed
26 in a circular motion and in his slurred speech, Petitioner stated that he consumed three glasses of
27 beer at the Boulevard and was heading home. (AR 8, 15, 17.) Throughout the interaction, Officer
28
2
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
Baza observed the strong odor of an alcoholic beverage emitting from Petitioner’s breath and
person. (AR 8, 17.)
Officer Baza administered a series of field sobriety tests to Petitioner, which Petitioner was
unable to complete as explained and demonstrated. (AR 8, 16-17.) Officer Baza administered two
preliminary alcohol screening tests, which resulted in readings of 0.163 percent at 2:44 a.m. and
0.170 percent at 2:47 a.m. (AR 6, 15.)
Based on Petitioner’s objective signs of intoxication, driving behavior, admission to
drinking an alcoholic beverage prior to driving and poor performance on the field sobriety tests,
Officer Baza formed the opinion that Petitioner was driving while under the influence of an
10 alcoholic beverage and could not safely operate a motor vehicle. (AR 8.)
11 Officer Baza arrested Petitioner at 2:48 a.m. and advised Petitioner of Implied Consent.
12 (AR 6, 8, 17.) Petitioner chose to take a breath test. (AR 6, 8, 17.) Officer Baza observed
13 Petitioner for more than 15 minutes and then administered two chemical breath tests, which
14 yielded results of 0.156 percent blood alcohol concentration at 3:03 a.m. and 0.165 percent blood
15 alcohol concentration at 3:08 a.m. (AR 6, 15, 17.) Officer Baza recorded the results of the two
16 chemical breath tests, signed the form below the results, and certified under penalty of perjury
17 under the laws of the State of California, that the “breath test sample results were obtained in the
18 regular course of [his] duties,” and further certified “that [he] was qualified to operate this
19 equipment and that the test was administered pursuant to the requirements of Title 17 of the
20 California Code of Regulations.” (AR 6, 17.) Petitioner also elected to take a chemical blood test.
21 which later yielded results of 0.18 percent blood alcohol concentration. (AR 13, 15, 17.)
22 PROCEDURAL HISTORY
23 On September 28, 2023, an administrative hearing was held. (AR 23-32.) Petitioner was
24 represented by his attorney, H.A. Sala. (AR 23-32.) Petitioner objected to and refused to
25 participate in the APS Hearing on grounds that the Department did not have the legal authority to
26 conduct the hearing as it violates Petitioner’s right to due process pursuant to the holding of
27 California DUI Lawyers v. Department of Motor Vehicles (2022) 77 Cal.App.Sth 517. (AR 25:9-
28 28:3.)
3
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
There were no objections, and the Hearing Officer identified and admitted into evidence
Exhibit 1, the Age 21 and Older Officer’s Statement DS-367 prepared by Officer Baza (“DS-
367°) (AR 6-11, 29:16-23; 30:21-23); Exhibit 2, Kern County Regional Crime Laboratory
Reporter Examination dated June 9, 2023 (AR 12-13, 29:24-30:5; 30:21-23); Exhibit 3, the
Driving Under the Influence Arrest Investigation Report (“Arrest Report”) (AR 14-18, 30:6-12;
30:21-23); and Exhibit 4, Petitioner’s Driving Record (AR 19-21, 30:12-20; 30:21-23). The
hearing officer did not cross-examine any witnesses because no witnesses testified.
After the hearing and considering the evidence, the suspension of Petitioner’s driver license
was imposed for a four-month period from July 1, 2023 through October 31, 2023. (AR 2-5.)
10 On or about October 23, 2023, Petitioner filed his Petition for Writ of Mandate. Petitioner
11 filed an ex parte application staying the suspension until the Petition for Writ of Mandate is
12 heard. The court stayed the suspension on November 1, 2023 pending the outcome of the Petition
13 for Writ of Mandate.
14 STANDARD OF REVIEW
15 In ruling on an application for a writ of mandate following an order of suspension or
16 revocation, a trial court is required to determine, based on its independent judgment, whether the
17 weight of the evidence supported the administrative decision. (Lake vy. Reed (1997) 16 Cal.4th
18 448, 456.) But even with that independent judgment, “the trial court still ‘must afford a strong
19 presumption of correctness concerning the administrative findings, and the party challenging the
20 administrative decision bears the burden of convincing the court that the administrative findings
21 are contrary to the weight of the evidence.”” . (Manriquez v. Gourley (2003) 105 Cal.App.4th
22 1227, 1233, quoting Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
23 ARGUMENT
24 I THE DMV Is REQUIRED TO SUSPEND THE DRIVING PRIVILEGE OF A MOTORIST
Wuo DRIVES WITH A BAC OF 0.08% OR MORE
25
26 The administrative per se laws were intended to create a prompt and efficient means to
27 remove drunk drivers from the roadways. (Lake v. Reed (1997) 16 Cal.4th 448, 454.) The DMV
28 must suspend the driving privilege of any person who drives a motor vehicle with .08 percent or
4
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
more, by weight, alcohol in his blood. (Veh. Code, §13353.2(a)(1).)
A driver whose license is suspended for driving while under the influence is entitled to an
administrative hearing. (Veh. Code, § 13558; Lake, supra, 16 Cal.4th at p. 456.) When a driver
requests a hearing, the DMV holds an administrative hearing, generally conducted by a Hearing
Officer. (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1537.) The only issues are whether:
(1) the officer had reasonable cause to believe that the person drove a motor vehicle in violation
of sections 23152 or 23153 of the Vehicle Code, (2) the person was lawfully arrested, and (3) the
person was driving with .08 percent or more, by weight, of alcohol in his blood. (Veh. Code,
§13558(c)(2); 133357(b)(2); Lake, supra, 16 Cal.4th at p. 456.) Petitioner does not dispute that
10 Respondent met each of the elements. Petitioner merely argues that the APS hearing process itself
11 was not legally authorized and violated his rights to due process.
12 The hearing is conducted pursuant to the Administrative Procedure Act (Gov. Code, §
13 11500, et. seq.), except as provided for more specifically by the Vehicle Code. (Veh. Code, §
14 14112(a).) At the hearing, DMV “shall consider its official records and may receive sworn
15 testimony.” (Veh. Code, § 14104.7(a); Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052, 1062.)
16 The sworn and unsworn police reports are routinely admitted pursuant to Evidence Code section
17 1280. (Murphey, supra, 13 Cal.App.5th at p. 1063.) A driver has the right to subpoena witnesses
18 and documents. (Veh. Code, § 14104.5.) At the conclusion, the hearing officer “shall make
19 findings and render a decision on behalf
of the department.” (Veh Code, § 14105(a).)
20 IL. THE DEPARTMENT MET ITs INITIAL BURDEN TO SHOW WHY THE SUSPENSION
SHOULD BE IMPOSED
21
The DMV bears the initial burden of establishing a prima facie case in an administrative
22
DMV hearing. The DMV must prove by a preponderance of the evidence certain facts, including
23
the fact that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or
24
higher. (Manriquez v. Gourley (2003) 105 Cal.App.4th, 1227, 1232.) The DMV may satisfy its
25
burden via the presumption of Evidence Code section 664. (Ibid.) Evidence Code section 664
26
creates a rebuttable presumption that blood-alcohol test results recorded on official forms were
27
obtained by following the regulations and guidelines of California Code of Regulations, Title 17,
28
5
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
section 1219.3. (/bid.) The results of chemical breath tests are presumptively admissible to prove
the driver’s blood alcohol level “upon a showing of either compliance with title 17 or the
foundational elements of (1) properly functioning equipment, (2) a properly administered test,
and (3) a qualified operator.” (People v. Williams (2002) 28 Cal.4th 408, 417; see also People v.
Adams (1976) 59 Cal.App.3d 559, 561 [setting forth the foundational elements]; Davenport v.
Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 140 [arresting officer’s written
statement was sufficient to support suspension of driver’s license because officer had duty to
administer the breath test according to methods designed to assure reliability and presumption
that official duty had been regularly performed gave rise to inference of reliability of test; due
10 process was not offended by placing burden on driver to show non-reliability of test].)
11 Once the DMV establishes its prima facie case, the licensee must produce affirmative
12 evidence of the nonexistence of the presumed facts sufficient to rebut the presumption and shift
13 the burden of proof back to the DMV. (Manriquez v. Gourley, supra, 105 Cal.App.4th 1227,
14 1233.) The licensee must show through the cross-examination of the officer or by the introduction
15 of affirmative evidence that official standards were in any respect not observed. (Jbid.) Once such
16 showing has been made, the burden shifts back to the DMV to prove that the test was reliable
17 despite noncompliance with the regulations. (Ibid.)
18 Where here, Officer Baza conducted the chemical breath test and recorded the results on the
19 standard DS-367 form, attesting therein that the test was administered pursuant to the
20 requirements of Title 17 of the Code of Civil Procedure, there is a rebuttable presumption that the
21 test results are valid, reliable and admissible. (Manriquez v. Gourley, supra, 105 Cal.App.4th
22 1227, 1232; see also Davenport v. Department of Motor Vehicles, supra, 6 Cal.App.4th 133, 143;
23 Williams, supra, 28 Cal.4th at p. 417; Evid. Code §664.) Because the DMV introduced evidence
24 of a valid chemical test, Petitioner was required to produce competent evidence that official
25 standards were not observed to shift the burden of proof back to the DMV. But Petitioner
26 presented no evidence to contradict the presumption that the chemical breath test results are valid,
27 reliable and admissible. Consequently, the DMV has established its prima facie case that
28 Petitioner was driving with a blood alcohol concentration of 0.08 percent and above.
6
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
Ti. PETITIONER’S DUE PROCESS ARGUMENT LACKS MERIT
A The Hearing Officer Did Not Act As an Advocate
Petitioner asserts that his suspension should be set aside in its entirety because the APS
hearing was allegedly conducted in violation of his due process rights according to California
DUI Lawyers Assn. vy. Department of Motor Vehicles (2022) 77 Cal.App.5th 517. (Opening Brief
filed October 23, 2023, 6:1-27.) This argument lacks merit because the Hearing Officer did not
impermissibly act as an advocate, and therefore Petitioner suffered no due process violation.
In California DUI Lawyers, the Court of Appeal held that the DMV’s APS hearing
structure violated the California and federal due process rights of drivers by combining the
10 advocacy and adjudicatory roles into a single DMV employee. (California DUI Lawyers, 77
11 Cal.App.5th at p. 531.) The court nonetheless noted that the DMV “may task the same person
12 with both collecting and developing the evidence and rendering a final decision,” in other words
13 the adjudicatory role. (California DUI Lawyers, supra, 77 Cal.App.5th at p. 533, n. 5.) Blanket
14 challenges to the fairness of the DMV’s hearing procedures or qualification of the hearing
15 officers have otherwise been rejected. (See Poland v. Department of Motor Vehicles (1995) 34
16 Cal.App.4th 1128, 1134-1135 [challenge to the statutory procedures for license revocation lacks
17 merit]; Ziehlke v. Valverde (2011) 191 Cal.App.4th 1525, 1534 [it is presumed that the director of
18 the DMV appoints qualified hearing officers.].)!
19 At the hearing, the Hearing Officer did nothing more than identify and move the records
20 received from law enforcement into evidence: Exhibit 1, the Age 21 and Older Officer’s
21 Statement DS-367 prepared by Officer Baza (“DS-367") (AR 6-11, 29:16-23; 30:21-23); Exhibit
22 2, Kern County Regional Crime Laboratory Reporter Examination dated June 9, 2023 (AR 12-13
23 29:24-30:5; 30:21-23); Exhibit 3, the Driving Under the Influence Arrest Investigation Report
24 ' In Knudsen v. Department of Motor Vehicles (Apr. 4, 2024, F085992) Cal.App.5th
(“Knudsen”), the Fifth District Court of Appeal considered a similar challenge to the APS hearing
25 process as is presented in this case. Knudsen held, “to resolve such a challenge, it is first
necessary to determine whether a particular driver’s due process right to an impartial adjudicator
26 was violated. Consistent with DUI Lawyers, that determination is made by assessing the
administrative record and the revocation decision to see if the public hearing officer actually
27 acted as both and adjudicator and an advocate, or merely acted as an adjudicator and a collector
and developer of evidence. (Knudsen, supra, Cal.App.Sth [p. 2].) Knudsen was filed on April 4,
28 2024. It is not yet final
7
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
(“Arrest Report”) (AR 14-18, 30:6-12; 30:21-23); and Exhibit 4, Petitioner’s Driving Record (AR
19-21, 30:12-20; 30:21-23).
Then later, the Hearing Officer acted properly in considering the records received from law
enforcement. (AR 2-5.) Indeed, the DMV is required by law to consider these records. (See
Veh. Code, §§ 13557(a), 14104.7(a).) The Hearing Officer did not make an opening statement,
call any witnesses, elicit any witness testimony, or make closing arguments—which are hallmarks
of an advocate. The Hearing Officer engaged in no behavior that would suggest he was acting as
an advocate. In fact at the start of the hearing, the Hearing Officer clarified the scope of his role
as a neutral fact-finder prohibited from acting as an advocate. (AR 24:6-12.) California DUI
10 Lawyers noted that in addition to collecting and developing evidence, the Hearing Officer’s role
11 could permissibly include rendering a final decision. (California DUI Lawyers, supra, 77
12 Cal.App.5th at p. 533, n. 5; see also Today's Fresh Start, Inc. v. Los Angeles County Office of
13 Education (2013) 57 Cal.4th 197, 220 [the combination of investigative, prosecutorial, and
14 adjudicatory functions within a single administrative agency does not violate due process rights].)
15 The Hearing Officer’s role was to render a final decision based on the evidence. (California DUI
16 Lawyers, supra, 77 Cal.App.Sth at p. 533, n. 5.) The Hearing Officer acted well within his proper
17 adjudicative role in the administrative proceedings.
18 B Petitioner Cannot Establish More than Harmless Error
19 Regardless, even if the Hearing Officer did not cross into “advocacy,” Petitioner fails to
20 show that any constitutional error was more than harmless error. A party that has established
21 error must also show that there was a “reasonable probability of a more favorable result.”
22 (Margarito y. State Athletic Com. (2010) 189 Cal.App.4th 159, 173; Thornbrough v. Western
23 Placer Unified School Dist. (2013) 223 Cal. App. 4th 169, 200.) In the administrative context, “a
24 party claiming that the decision maker was biased must show actual bias, rather than the
25 appearance of bias, to establish a fair hearing violation.” (Southern Cal. Underground
26 Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549.) Here, the Hearing
27 Officer displayed no bias, but rather made logical findings based on the evidence available.
28 (Today's Fresh Start, supra, 57 Cal.4th at pp. 221-222 [the presumption is that agency
8
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
adjudicators are people of “conscience and intellectual discipline, capable of judging a particular
controversy fairly on the basis of its own circumstances”].)
IV. ATTORNEYS’ FEES SHOULD BE DENIED.
If the Court is inclined to rule that the suspension cannot stand, Petitioner has provided no
evidence to justify an award of attorney’s fees. Attorney’s fees are only available under unusual
circumstances where the administrative action, finding or award was the product of arbitrary and
capricious conduct by a public agency or its agent while acting in an official capacity. (Gov.
Code, 800.) Attorney’s fees may not be awarded simply because the administrative action was
erroneous, even if it was clearly erroneous. (Stirling v. Agricultural Labor Relations Bd. (1987)
10 189 Cal.App.3d 1305, 1312.) The action must be found to be lacking any rational support
11 whatsoever (Marin Hosp. Dist. v. Department of Health (1979) 92 Cal.App.3d 442, 450), or
12 discriminatory and illegal. (Olson v. Hickman (1972) 25 Cal.App.3d 920, 922-23.) An incorrect
13 interpretation, not rising to the level of a bad faith legal position, will not support an award of
14 attorney’s fees. (American President Lines, Ltd. v. Zolin (1995) 38 Cal.App.4th 910, 934.)
15 Here, the California DUI Lawyers opinion clearly authorizes the DMV to “task the same
16 person with both collecting and developing the evidence and rendering a final decision,” in other
17 words, the adjudicatory role. (California DUI Lawyers, supra, 77 Cal.App.Sth at p. 533, n. 5.)
18 Petitioner has not identified a single piece of evidence that shows the DMV acted arbitrarily and
19 capriciously. Petitioner’s request for attorney’s fees should be denied.
20 CONCLUSION
21 Contrary to Petitioner’s factually and legally unsupported arguments, all the evidence
22 points to the fact that Petitioner was driving under the influence with a blood alcohol
23 concentration greater than 0.08 percent on June 1, 2023 in violation of the law, and that the
24 suspension of his driver’s license was justified. Petitioner presented no evidence to rebut the
25 presumption of reliability of the admissible chemical breath test results. Accordingly, the weight
26 of the evidence supports the Hearing Officer’s decision to suspend Petitioner’s license to drive.
27 The Petition for Writ of Mandate should be denied.
28
9
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
Dated: April 19, 2024 Respectfully submitted,
Ros BONTA
Attorney General of California
Gary S. BALEKJIAN
Supervising Deputy Attorney General
Digitally signed by
Lorinda D. Lorinda D. Franco
Date: 2024.04.19
Franco 11:32:54 -07'00'
LoRINDA D. FRANCO
Deputy Attorney General
Attorneys for Defendant
Department of Motor Vehicles, an agency
ofthe State of California, by and through
its Director Steve Gordon
10
LA2023604527
66733850.docx
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB)
DECLARATION OF SERVICE BY E-MAIL
Case Name: Trivedi, Neil Rajiv v. Department of Motor Vehicles
No.: BCV-23-103553-BCB
I declare:
Iam employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter.
On April 19, 2024, I served the attached OPPOSITION TO PETITION FOR WRIT OF
MANDATE by transmitting a true copy via electronic mail addressed as follows:
Jeremy C. Brehmer, Esq.
BREHMER LAW CORPORATION
E-mail Address:
jeremy@brehmerlaw.com
maria@brehmerlaw.com
I declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on April 19,
2024, at Los Angeles, California.
Naomi R. Bolivar Nacme Bobvar
Declarant Signature
1LA2023604527
6673461 I .docx
Preview
Ros BONTA Attorney General of California Gary S. BALEKJIAN Supervising Deputy Attorney General LoRINDA D. FRANCO Deputy Attorney General State Bar No. 213856 300 South Spring Street, Suite 1702 Los Angeles, CA 90013-1230 Telephone: (213) 269-6459 Fax: (916) 731-2119 E-mail: Lorinda.Franco@doj.ca.gov Filing Fees Exempt Per Govt. Code § 6103 Attorneys for Defendant Department of Motor Vehicles, an agency of the State of California, by and through its Director Steve Gordon SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF KERN-METROPOLITAN DIVISION 11 12 13 14 NEIL RAJIV TRIVEDI, Case No. BCV-23-103553-BCB 15 Petitoner, OPPOSITION TO PETITION FOR WRIT OF MANDATE 16 Date: May 3, 2024 17 Time: 1:30 p.m. DEPARTMENT OF MOTOR VEHICLES, , Dept: H 18 AN AGENCY OF THE STATE OF Judge: The Honorable Judge Bernard C. CALIFORNIA, BY AND THROUGH ITS Barmann, Jr. 19 DIRECTOR STEVE GORDON, Action Filed: October 23, 2023 20 Respondent 21 INTRODUCTION 22 Petitioner Neil Rajiv Trivedi (“Petitioner”) seeks to overturn his suspension for driving with 23 a blood alcohol concentration at least twice the legal limit on June 1, 2023. The chemical breath 24 tests chosen by Petitioner yielded results of 0.16 percent, while an additional chemical blood test 25 yielded a result of 0.18 percent concentration. Petitioner does not dispute the reasonable suspicion 26 precipitating the contact with the officer, the validity of his arrest, or the validity of the 0.18 27 28 1 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) percent BAC result. Rather, Petitioner challenges the propriety of the DMV hearing process. Petitioner’s argument lacks merit. Petitioner contends that DMV’s administrative hearing process violated due process, based on California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.Sth 517 (“California DUI Lawyers’). However, what California DUI Lawyers found improper was where the Hearing Officer acts as an advocate. As relevant here, California DUI Lawyers recognized that the Hearing Officer may lawfully collect and develop the evidence, and render a final decision. (/d., at p. 533, fn. 5.) Here, the record shows that the DMV Hearing Officer acted properly, basing the suspension on records that DMV is statutorily required to consider, and no 10 indicia of bias or improper motive is shown. Because Petitioner fails to meet his burden to 11 establish that his license was improperly suspended, the DMV respectfully requests that the Court 12 deny the petition. 13 STATEMENT OF FACTS 14 In the predawn morning of June 1, 2023, Kern County Sheriff Deputy A. Mendez stopped a 15 blue Porsche Macan for a stop sign violation and driving in the wrong direction—heading 16 southbound in the northbound lane of Allen Road. (AR 8.) Deputy Mendez contacted the driver, 17 who displayed red and watery eyes, and admitted to consuming alcohol prior to driving. (AR 8.) 18 California Highway Patrol Officer Baza responded to Deputy Mendez’s call requesting a 19 possible DUI investigation. (AR 8.) Deputy Mendez conveyed his observations to Officer Baza, 20 and Officer Baza investigated further. (AR 8.) 21 Officer Baza approached the Porsche’s driver, who was seated in the driver’s seat, and 22 immediately noticed a strong odor of an alcoholic beverage emitting from within the SUV. (AR 8, 23 17.) When Officer Baza instructed the driver, later identified by his California driver’s license as 24 Neil Rajiv Trivedi (“Petitioner”), to exit the Porsche to conduct field sobriety tests, Officer Baza 25 observed Petitioner’s droopy, red, watery eyes, and unsteady gait. (AR 8, 15, 17.) As he swayed 26 in a circular motion and in his slurred speech, Petitioner stated that he consumed three glasses of 27 beer at the Boulevard and was heading home. (AR 8, 15, 17.) Throughout the interaction, Officer 28 2 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) Baza observed the strong odor of an alcoholic beverage emitting from Petitioner’s breath and person. (AR 8, 17.) Officer Baza administered a series of field sobriety tests to Petitioner, which Petitioner was unable to complete as explained and demonstrated. (AR 8, 16-17.) Officer Baza administered two preliminary alcohol screening tests, which resulted in readings of 0.163 percent at 2:44 a.m. and 0.170 percent at 2:47 a.m. (AR 6, 15.) Based on Petitioner’s objective signs of intoxication, driving behavior, admission to drinking an alcoholic beverage prior to driving and poor performance on the field sobriety tests, Officer Baza formed the opinion that Petitioner was driving while under the influence of an 10 alcoholic beverage and could not safely operate a motor vehicle. (AR 8.) 11 Officer Baza arrested Petitioner at 2:48 a.m. and advised Petitioner of Implied Consent. 12 (AR 6, 8, 17.) Petitioner chose to take a breath test. (AR 6, 8, 17.) Officer Baza observed 13 Petitioner for more than 15 minutes and then administered two chemical breath tests, which 14 yielded results of 0.156 percent blood alcohol concentration at 3:03 a.m. and 0.165 percent blood 15 alcohol concentration at 3:08 a.m. (AR 6, 15, 17.) Officer Baza recorded the results of the two 16 chemical breath tests, signed the form below the results, and certified under penalty of perjury 17 under the laws of the State of California, that the “breath test sample results were obtained in the 18 regular course of [his] duties,” and further certified “that [he] was qualified to operate this 19 equipment and that the test was administered pursuant to the requirements of Title 17 of the 20 California Code of Regulations.” (AR 6, 17.) Petitioner also elected to take a chemical blood test. 21 which later yielded results of 0.18 percent blood alcohol concentration. (AR 13, 15, 17.) 22 PROCEDURAL HISTORY 23 On September 28, 2023, an administrative hearing was held. (AR 23-32.) Petitioner was 24 represented by his attorney, H.A. Sala. (AR 23-32.) Petitioner objected to and refused to 25 participate in the APS Hearing on grounds that the Department did not have the legal authority to 26 conduct the hearing as it violates Petitioner’s right to due process pursuant to the holding of 27 California DUI Lawyers v. Department of Motor Vehicles (2022) 77 Cal.App.Sth 517. (AR 25:9- 28 28:3.) 3 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) There were no objections, and the Hearing Officer identified and admitted into evidence Exhibit 1, the Age 21 and Older Officer’s Statement DS-367 prepared by Officer Baza (“DS- 367°) (AR 6-11, 29:16-23; 30:21-23); Exhibit 2, Kern County Regional Crime Laboratory Reporter Examination dated June 9, 2023 (AR 12-13, 29:24-30:5; 30:21-23); Exhibit 3, the Driving Under the Influence Arrest Investigation Report (“Arrest Report”) (AR 14-18, 30:6-12; 30:21-23); and Exhibit 4, Petitioner’s Driving Record (AR 19-21, 30:12-20; 30:21-23). The hearing officer did not cross-examine any witnesses because no witnesses testified. After the hearing and considering the evidence, the suspension of Petitioner’s driver license was imposed for a four-month period from July 1, 2023 through October 31, 2023. (AR 2-5.) 10 On or about October 23, 2023, Petitioner filed his Petition for Writ of Mandate. Petitioner 11 filed an ex parte application staying the suspension until the Petition for Writ of Mandate is 12 heard. The court stayed the suspension on November 1, 2023 pending the outcome of the Petition 13 for Writ of Mandate. 14 STANDARD OF REVIEW 15 In ruling on an application for a writ of mandate following an order of suspension or 16 revocation, a trial court is required to determine, based on its independent judgment, whether the 17 weight of the evidence supported the administrative decision. (Lake vy. Reed (1997) 16 Cal.4th 18 448, 456.) But even with that independent judgment, “the trial court still ‘must afford a strong 19 presumption of correctness concerning the administrative findings, and the party challenging the 20 administrative decision bears the burden of convincing the court that the administrative findings 21 are contrary to the weight of the evidence.”” . (Manriquez v. Gourley (2003) 105 Cal.App.4th 22 1227, 1233, quoting Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) 23 ARGUMENT 24 I THE DMV Is REQUIRED TO SUSPEND THE DRIVING PRIVILEGE OF A MOTORIST Wuo DRIVES WITH A BAC OF 0.08% OR MORE 25 26 The administrative per se laws were intended to create a prompt and efficient means to 27 remove drunk drivers from the roadways. (Lake v. Reed (1997) 16 Cal.4th 448, 454.) The DMV 28 must suspend the driving privilege of any person who drives a motor vehicle with .08 percent or 4 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) more, by weight, alcohol in his blood. (Veh. Code, §13353.2(a)(1).) A driver whose license is suspended for driving while under the influence is entitled to an administrative hearing. (Veh. Code, § 13558; Lake, supra, 16 Cal.4th at p. 456.) When a driver requests a hearing, the DMV holds an administrative hearing, generally conducted by a Hearing Officer. (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1537.) The only issues are whether: (1) the officer had reasonable cause to believe that the person drove a motor vehicle in violation of sections 23152 or 23153 of the Vehicle Code, (2) the person was lawfully arrested, and (3) the person was driving with .08 percent or more, by weight, of alcohol in his blood. (Veh. Code, §13558(c)(2); 133357(b)(2); Lake, supra, 16 Cal.4th at p. 456.) Petitioner does not dispute that 10 Respondent met each of the elements. Petitioner merely argues that the APS hearing process itself 11 was not legally authorized and violated his rights to due process. 12 The hearing is conducted pursuant to the Administrative Procedure Act (Gov. Code, § 13 11500, et. seq.), except as provided for more specifically by the Vehicle Code. (Veh. Code, § 14 14112(a).) At the hearing, DMV “shall consider its official records and may receive sworn 15 testimony.” (Veh. Code, § 14104.7(a); Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052, 1062.) 16 The sworn and unsworn police reports are routinely admitted pursuant to Evidence Code section 17 1280. (Murphey, supra, 13 Cal.App.5th at p. 1063.) A driver has the right to subpoena witnesses 18 and documents. (Veh. Code, § 14104.5.) At the conclusion, the hearing officer “shall make 19 findings and render a decision on behalf of the department.” (Veh Code, § 14105(a).) 20 IL. THE DEPARTMENT MET ITs INITIAL BURDEN TO SHOW WHY THE SUSPENSION SHOULD BE IMPOSED 21 The DMV bears the initial burden of establishing a prima facie case in an administrative 22 DMV hearing. The DMV must prove by a preponderance of the evidence certain facts, including 23 the fact that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or 24 higher. (Manriquez v. Gourley (2003) 105 Cal.App.4th, 1227, 1232.) The DMV may satisfy its 25 burden via the presumption of Evidence Code section 664. (Ibid.) Evidence Code section 664 26 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were 27 obtained by following the regulations and guidelines of California Code of Regulations, Title 17, 28 5 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) section 1219.3. (/bid.) The results of chemical breath tests are presumptively admissible to prove the driver’s blood alcohol level “upon a showing of either compliance with title 17 or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator.” (People v. Williams (2002) 28 Cal.4th 408, 417; see also People v. Adams (1976) 59 Cal.App.3d 559, 561 [setting forth the foundational elements]; Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 140 [arresting officer’s written statement was sufficient to support suspension of driver’s license because officer had duty to administer the breath test according to methods designed to assure reliability and presumption that official duty had been regularly performed gave rise to inference of reliability of test; due 10 process was not offended by placing burden on driver to show non-reliability of test].) 11 Once the DMV establishes its prima facie case, the licensee must produce affirmative 12 evidence of the nonexistence of the presumed facts sufficient to rebut the presumption and shift 13 the burden of proof back to the DMV. (Manriquez v. Gourley, supra, 105 Cal.App.4th 1227, 14 1233.) The licensee must show through the cross-examination of the officer or by the introduction 15 of affirmative evidence that official standards were in any respect not observed. (Jbid.) Once such 16 showing has been made, the burden shifts back to the DMV to prove that the test was reliable 17 despite noncompliance with the regulations. (Ibid.) 18 Where here, Officer Baza conducted the chemical breath test and recorded the results on the 19 standard DS-367 form, attesting therein that the test was administered pursuant to the 20 requirements of Title 17 of the Code of Civil Procedure, there is a rebuttable presumption that the 21 test results are valid, reliable and admissible. (Manriquez v. Gourley, supra, 105 Cal.App.4th 22 1227, 1232; see also Davenport v. Department of Motor Vehicles, supra, 6 Cal.App.4th 133, 143; 23 Williams, supra, 28 Cal.4th at p. 417; Evid. Code §664.) Because the DMV introduced evidence 24 of a valid chemical test, Petitioner was required to produce competent evidence that official 25 standards were not observed to shift the burden of proof back to the DMV. But Petitioner 26 presented no evidence to contradict the presumption that the chemical breath test results are valid, 27 reliable and admissible. Consequently, the DMV has established its prima facie case that 28 Petitioner was driving with a blood alcohol concentration of 0.08 percent and above. 6 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) Ti. PETITIONER’S DUE PROCESS ARGUMENT LACKS MERIT A The Hearing Officer Did Not Act As an Advocate Petitioner asserts that his suspension should be set aside in its entirety because the APS hearing was allegedly conducted in violation of his due process rights according to California DUI Lawyers Assn. vy. Department of Motor Vehicles (2022) 77 Cal.App.5th 517. (Opening Brief filed October 23, 2023, 6:1-27.) This argument lacks merit because the Hearing Officer did not impermissibly act as an advocate, and therefore Petitioner suffered no due process violation. In California DUI Lawyers, the Court of Appeal held that the DMV’s APS hearing structure violated the California and federal due process rights of drivers by combining the 10 advocacy and adjudicatory roles into a single DMV employee. (California DUI Lawyers, 77 11 Cal.App.5th at p. 531.) The court nonetheless noted that the DMV “may task the same person 12 with both collecting and developing the evidence and rendering a final decision,” in other words 13 the adjudicatory role. (California DUI Lawyers, supra, 77 Cal.App.5th at p. 533, n. 5.) Blanket 14 challenges to the fairness of the DMV’s hearing procedures or qualification of the hearing 15 officers have otherwise been rejected. (See Poland v. Department of Motor Vehicles (1995) 34 16 Cal.App.4th 1128, 1134-1135 [challenge to the statutory procedures for license revocation lacks 17 merit]; Ziehlke v. Valverde (2011) 191 Cal.App.4th 1525, 1534 [it is presumed that the director of 18 the DMV appoints qualified hearing officers.].)! 19 At the hearing, the Hearing Officer did nothing more than identify and move the records 20 received from law enforcement into evidence: Exhibit 1, the Age 21 and Older Officer’s 21 Statement DS-367 prepared by Officer Baza (“DS-367") (AR 6-11, 29:16-23; 30:21-23); Exhibit 22 2, Kern County Regional Crime Laboratory Reporter Examination dated June 9, 2023 (AR 12-13 23 29:24-30:5; 30:21-23); Exhibit 3, the Driving Under the Influence Arrest Investigation Report 24 ' In Knudsen v. Department of Motor Vehicles (Apr. 4, 2024, F085992) Cal.App.5th (“Knudsen”), the Fifth District Court of Appeal considered a similar challenge to the APS hearing 25 process as is presented in this case. Knudsen held, “to resolve such a challenge, it is first necessary to determine whether a particular driver’s due process right to an impartial adjudicator 26 was violated. Consistent with DUI Lawyers, that determination is made by assessing the administrative record and the revocation decision to see if the public hearing officer actually 27 acted as both and adjudicator and an advocate, or merely acted as an adjudicator and a collector and developer of evidence. (Knudsen, supra, Cal.App.Sth [p. 2].) Knudsen was filed on April 4, 28 2024. It is not yet final 7 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) (“Arrest Report”) (AR 14-18, 30:6-12; 30:21-23); and Exhibit 4, Petitioner’s Driving Record (AR 19-21, 30:12-20; 30:21-23). Then later, the Hearing Officer acted properly in considering the records received from law enforcement. (AR 2-5.) Indeed, the DMV is required by law to consider these records. (See Veh. Code, §§ 13557(a), 14104.7(a).) The Hearing Officer did not make an opening statement, call any witnesses, elicit any witness testimony, or make closing arguments—which are hallmarks of an advocate. The Hearing Officer engaged in no behavior that would suggest he was acting as an advocate. In fact at the start of the hearing, the Hearing Officer clarified the scope of his role as a neutral fact-finder prohibited from acting as an advocate. (AR 24:6-12.) California DUI 10 Lawyers noted that in addition to collecting and developing evidence, the Hearing Officer’s role 11 could permissibly include rendering a final decision. (California DUI Lawyers, supra, 77 12 Cal.App.5th at p. 533, n. 5; see also Today's Fresh Start, Inc. v. Los Angeles County Office of 13 Education (2013) 57 Cal.4th 197, 220 [the combination of investigative, prosecutorial, and 14 adjudicatory functions within a single administrative agency does not violate due process rights].) 15 The Hearing Officer’s role was to render a final decision based on the evidence. (California DUI 16 Lawyers, supra, 77 Cal.App.Sth at p. 533, n. 5.) The Hearing Officer acted well within his proper 17 adjudicative role in the administrative proceedings. 18 B Petitioner Cannot Establish More than Harmless Error 19 Regardless, even if the Hearing Officer did not cross into “advocacy,” Petitioner fails to 20 show that any constitutional error was more than harmless error. A party that has established 21 error must also show that there was a “reasonable probability of a more favorable result.” 22 (Margarito y. State Athletic Com. (2010) 189 Cal.App.4th 159, 173; Thornbrough v. Western 23 Placer Unified School Dist. (2013) 223 Cal. App. 4th 169, 200.) In the administrative context, “a 24 party claiming that the decision maker was biased must show actual bias, rather than the 25 appearance of bias, to establish a fair hearing violation.” (Southern Cal. Underground 26 Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549.) Here, the Hearing 27 Officer displayed no bias, but rather made logical findings based on the evidence available. 28 (Today's Fresh Start, supra, 57 Cal.4th at pp. 221-222 [the presumption is that agency 8 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) adjudicators are people of “conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances”].) IV. ATTORNEYS’ FEES SHOULD BE DENIED. If the Court is inclined to rule that the suspension cannot stand, Petitioner has provided no evidence to justify an award of attorney’s fees. Attorney’s fees are only available under unusual circumstances where the administrative action, finding or award was the product of arbitrary and capricious conduct by a public agency or its agent while acting in an official capacity. (Gov. Code, 800.) Attorney’s fees may not be awarded simply because the administrative action was erroneous, even if it was clearly erroneous. (Stirling v. Agricultural Labor Relations Bd. (1987) 10 189 Cal.App.3d 1305, 1312.) The action must be found to be lacking any rational support 11 whatsoever (Marin Hosp. Dist. v. Department of Health (1979) 92 Cal.App.3d 442, 450), or 12 discriminatory and illegal. (Olson v. Hickman (1972) 25 Cal.App.3d 920, 922-23.) An incorrect 13 interpretation, not rising to the level of a bad faith legal position, will not support an award of 14 attorney’s fees. (American President Lines, Ltd. v. Zolin (1995) 38 Cal.App.4th 910, 934.) 15 Here, the California DUI Lawyers opinion clearly authorizes the DMV to “task the same 16 person with both collecting and developing the evidence and rendering a final decision,” in other 17 words, the adjudicatory role. (California DUI Lawyers, supra, 77 Cal.App.Sth at p. 533, n. 5.) 18 Petitioner has not identified a single piece of evidence that shows the DMV acted arbitrarily and 19 capriciously. Petitioner’s request for attorney’s fees should be denied. 20 CONCLUSION 21 Contrary to Petitioner’s factually and legally unsupported arguments, all the evidence 22 points to the fact that Petitioner was driving under the influence with a blood alcohol 23 concentration greater than 0.08 percent on June 1, 2023 in violation of the law, and that the 24 suspension of his driver’s license was justified. Petitioner presented no evidence to rebut the 25 presumption of reliability of the admissible chemical breath test results. Accordingly, the weight 26 of the evidence supports the Hearing Officer’s decision to suspend Petitioner’s license to drive. 27 The Petition for Writ of Mandate should be denied. 28 9 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) Dated: April 19, 2024 Respectfully submitted, Ros BONTA Attorney General of California Gary S. BALEKJIAN Supervising Deputy Attorney General Digitally signed by Lorinda D. Lorinda D. Franco Date: 2024.04.19 Franco 11:32:54 -07'00' LoRINDA D. FRANCO Deputy Attorney General Attorneys for Defendant Department of Motor Vehicles, an agency ofthe State of California, by and through its Director Steve Gordon 10 LA2023604527 66733850.docx 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 OPPOSITION TO PETITION FOR WRIT OF MANDATE (BCV-23-103553-BCB) DECLARATION OF SERVICE BY E-MAIL Case Name: Trivedi, Neil Rajiv v. Department of Motor Vehicles No.: BCV-23-103553-BCB I declare: Iam employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. On April 19, 2024, I served the attached OPPOSITION TO PETITION FOR WRIT OF MANDATE by transmitting a true copy via electronic mail addressed as follows: Jeremy C. Brehmer, Esq. BREHMER LAW CORPORATION E-mail Address: jeremy@brehmerlaw.com maria@brehmerlaw.com I declare under penalty of perjury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on April 19, 2024, at Los Angeles, California. Naomi R. Bolivar Nacme Bobvar Declarant Signature 1LA2023604527 6673461 I .docx