An appearance of bias by a DMV Hearing Office is insufficient to show a Due Process violation

Chi v. Department of Motor Vehicles (Cal. Ct. App., Mar. 24, 2026, No. A172237) 2026 WL 809967, at *1–7

Summary: Chi appealed the trial court’s denial of his petition for a writ of mandate challenging the suspension of his driving privileges by the Department of Motor Vehicles. Chi asserted that the department’s administrative hearing officer violated his due process rights by acting as a prosecutor rather than a neutral adjudicator. The Court of Appeal disagreed and affirmed.

The California Supreme Court granted review in a similar case, Romane v. Department of Motor Vehicles (2025) 110 Cal.App.5th 1002, 1019, 1021, 332 Cal.Rptr.3d 104, review granted August 13, 2025, S291093 (Romane). Romane is part of a line of recent involving the DMV—that examine this same due process issue. Some of these cases conflict with the Supreme Court’s precedent by employing an appearance of bias standard for assessing an adjudicator’s impartiality and by overlooking the presumption of impartiality that courts afford to adjudicators.

Implied consent to blood or breath tests after DUI arrest

By statute, a driver is deemed to have consented to a blood or breath test to determine the driver’s blood alcohol content if the driver is arrested for driving under the influence of alcohol. (Veh. Code, § 23612, subd. (a)(1)(A).) Refusing a peace officer’s request to submit to a test, in circumstances providing reasonable cause to believe the person was driving under the influence of alcohol, results in a one-year suspension of driving privileges. (§ 13353, subd. (a); see also § 23612, subd. (a)(1)(D) [providing that the driver must be advised that failure to submit to chemical testing will result in administrative suspension of his or her driver’s license for one year].)

After providing the driver with notice of the suspension (effective 30 days from the arrest date), the officer forwards to the DMV copies of the notice and the officer’s sworn report. (§ 23612, subds. (f), (g)(1); see also § 13380, subd. (a).) The DMV perrorms an automatic internal review of the report and any other accompanying evidence and will set aside the suspension if the evidence does not support it. (§ 13557, subds. (a), (b)(2).)

The driver may also request an administrative hearing. (§ 13353, subd. (e); see also §§ 13558, 14100.) The hearing officer will sustain the suspension if there was reasonable cause to believe that the person was driving under the influence in violation of the law; the person was arrested or lawfully detained; the person refused chemical testing upon request by a peace officer; and the person had been advised of the consequences of refusing to submit to testing. (§ 13557, subds. (b)(1)(A)-(D); see also § 13558, subd. (c)(1).)

DMV Hearing Officers no longer advocate for the DMV at Administrative Hearings

In 2022, California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, 292 Cal.Rptr.3d 608 (California DUI Lawyers) held that the department’s hearing structure violated the due process clause. At the time, the department defined the role of a hearing officer as “ ‘a trier of fact as well as an advocate for the department,’ ” directing the hearing officer to “ ‘[a]ssist, defend, prepare and/or present [the department]’s case’ ” and to rule on “the admissibility of the documentation he or she offers as evidence as ‘advocate for the [department]’ in support of the [department’s] position.” (California DUI Lawyers, at p. 527, 292 Cal.Rptr.3d 608.) The court held that this combination of advocacy and adjudicatory functions in an individual hearing officer created an unconstitutional risk of bias. (Id. at pp. 530-533, 292 Cal.Rptr.3d 608.)

In response, the department changed its policy. At the time of the hearing in Chi’s case, the department specified that the hearing officer acts only as a neutral trier of fact, does not represent or advocate for the department, and does not prepare the DMV’s case. Hearing officers are instructed to introduce any relevant evidence received from law enforcement, ask clarifying questions if necessary, and rule on objections. Since 2022, all hearing officers are instructed on this policy and are trained not to advocate on behalf of the department when conducting a hearing.

In March 2022, California Highway Patrol (CHP) officers stopped Chi’s vehicle after they observed it swerving and traveling at over 100 miles per hour on Interstate 880. Chi failed a series of field sobriety tests, an officer placed him under arrest for driving under the influence of alcohol. (See § 23152, subd. (a).) Subsequently, after an officer advised him that refusing to submit to a chemical test would result in the suspension of his driving privilege, Chi repeatedly refused to submit to further testing. The officer then served Chi with notice that his license would be suspended due to his refusal to take a chemical test.

At an administrative hearing in February 2024, the only participants were Chi, his counsel, and the department’s hearing officer. The hearing officer explained that she would be “acting as a neutral factfinder.” She would “not act as an advocate for the [department] or [for] law enforcement.”

Chi testified that English was not his native language and that, when he was speaking to the CHP officers, he “couldn’t hear” due to background noise. He did not remember being advised that, if he refused to take a test, his driving privilege would be suspended. The hearing officer had just one “clarifying question”: “At any point when you were having the conversation with the officer, did you communicate to the officer that you couldn’t hear him well?” Chi responded that he could not recall. His attorney argued that Chi could not hear or understand any admonition about the consequences of refusing to test.

The hearing officer sustained the suspension in a written decision. She found that Chi was advised of the consequences of refusing to submit to chemical testing and that he nonetheless refused to test.

In his petition for a writ of mandate, Chi argued that the administrative hearing violated his due process rights because the hearing officer acted as an advocate for the department. The trial court disagreed and denied the petition.

Due process in administrative hearings

The due process clauses of both the federal and state constitutions require the state to afford a fair process before depriving someone of their property. (U.S. Const., 14th Amend., § 1; Cal. Const., art. 1, § 7, subd. (a); see also Bell v. Burson (1971) 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 [holding that a state may not take away a driver’s license without providing due process].)

A fair process requires an impartial adjudicator. (Today’s Fresh Start, supra, 57 Cal.4th at p. 212, 159 Cal.Rptr.3d 358, 303 P.3d 1140.) However, the due process standard is more limited than statutes and ethical rules that are designed to prevent bias or the appearance of bias. (See People v. Freeman (2010) 47 Cal.4th 993, 996, 103 Cal.Rptr.3d 723, 222 P.3d 177 (Freeman); While an appearance of bias may violate a statute (see, e.g., Gov. Code, § 11425.30, subd. (a)), it does not violate the due process clause. (Freeman, at pp. 996, 1005, 103 Cal.Rptr.3d 723, 222 P.3d 177.)

The controlling principle for determining unconstitutional bias rests on the general concept that an adjudicator must remain disinterested in the outcome of the case. (See People v. Nieves (2021) 11 Cal.5th 404, 499, 278 Cal.Rptr.3d 40, 485 P.3d 457 (Nieves); Caperton, supra, 556 U.S. at p. 878, 129 S.Ct. 2252.)

Unless an adjudicator has a financial interest, the adjudicator is presumed to be impartial, and the burden of establishing bias rests on the party that claims it. (Today’s Fresh Start, supra, 57 Cal.4th at p. 219, 159 Cal.Rptr.3d 358, 303 P.3d 1140; Withrow v. Larkin (1975) 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (Withrow).)

 

The hearing officer functioned as a prosecutor or an advocate for the department. As explained, in 2022, following California DUI Attorneys, supra, 77 Cal.App.5th 517, 292 Cal.Rptr.3d 608, the department changed its policy to require hearing officers to act as a neutral trier of fact, not as a department representative or advocate. The hearing officer may introduce relevant evidence, ask clarifying questions, and rule on objections, which are all tasks consistent with the role of a neutral fact-finder. This combination of investigation and fact finding roles is inquisitorial, rather than adversarial, and does not, by itself, offend due process.

Absent extraordinary facts, it is unlikely that a court can accurately detect favoritism of an unconstitutional magnitude from the way that an adjudicator examined a witness, much less from a routine task like introducing relevant documents into evidence.

Adjudicators need some latitude to do their jobs. It is part of the job of judging to control the proceedings, ask probing questions, and develop and express opinions about the facts based on the evidence. Figorous questioning may simply reflect the adjudicator’s effort to “afford[ ] the [litigant] the chance to allay those concerns.”  In response to inappropriate courtroom conduct, an adjudicator may find it necessary to reprimand or speak harshly to a participant in the proceedings, without departing from her role as an impartial adjudicator. (Guerra, at p. 1111, 40 Cal.Rptr.3d 118, 129 P.3d 321.) This is ordinary behavior by adjudicators, not the sort of extreme behavior that may indicate unconstitutional bias. Using the due process clause routinely to regulate administrative hearings based on appearances rather than a more rigorous appraisal is contrary to what theSupreme Court has long required.

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