Articles Posted in DMV Issues

Knudsen v. Department of Motor Vehicles (Cal. Ct. App., Apr. 4, 2024, No. F085992) 2024 WL 1453228, at *1

Summary: Knudsen appealed the suspension of his driver’s license at an administrative per se (APS) hearing. A hearing officer for the Department of Motor Vehicles (“DMV”) concluded that Knudsen had driven his car with a blood-alcohol content (BAC) of 0.08 percent or greater. Knudsen challenged the hearing officer’s decision through a writ of mandate in the Kern County Superior Court. The writ of mandate was denied, and the suspension sustained, by the trial court. On appeal, Knudsen argues in part that his state and federal due process rights were violated because the hearing officer who conducted the APS hearing was not constitutionally impartial.

California DUI Lawyers Assn. v. DMV (2022) 77 Cal.App.5th 517, 532–533. (DUI Lawyers) held that an administrative public hearing officer who acts as both an advocate and adjudicator violates a driver’s due process right to an impartial adjudicator. How to resolve a driver’s due process challenge to an APS hearing following DUI Lawyers has not been addressed by California courts. The Court of Appeal concluded that to resolve such a challenge, it is first necessary to determine whether a particular driver’s due process right to an impartial adjudicator was violated. According to DUI Lawyers, that determination is made by assessing the administrative record and the revocation decision to see if the public hearing officer actually acted as both an adjudicator and an advocate, or merely acted as an adjudicator and a collector and developer of evidence. If the relevant documents demonstrate that the public hearing officer did not act as an advocate, then the driver’s due process right to an impartial adjudicator was not violated, and the constitutional issue is resolved. If the relevant documents demonstrate that a public hearing officer actually acted as an advocate, then the driver’s due process right to an impartial adjudicator is violated. In the latter circumstance, because we conclude that a violation of the due process right to an impartial adjudicator is a structural error, then the driver is entitled to a new APS hearing before a constitutionally impartial adjudicator.

Phillips v. Gordon (Cal. Ct. App., Nov. 29, 2023, No. A165289) 2023 WL 8266154, at *1–2

Summary: Phillips appealed from the trial court’s denial of her petition for review of an order of the Department of Motor Vehicles (DMV) suspending her driver’s license for driving with a blood-alcohol concentration (BAC) of 0.08 percent or more. Phillips argues the trial court erred because the DMV failed to provide sufficient evidence of the reliability of the way in which her blood was collected for the BAC test. She contends she rebutted the presumption that the certified phlebotomy technician (CPT) drew her blood in a proper manner by showing that the CPT was not supervised and the procedure she followed was not approved as required by applicable regulations and statutes. The Court of Appeal agreed that Phillips rebutted the presumption of reliability but  affirmed  the trial court’s order because evidence introduced at the hearing nonetheless established the reliability of the manner of collection of Phillips’ blood.

Background:One night in September 2020, around 11:23 p.m., a California Highway Patrol officer pulled Phillips over and arrested her for driving under the influence in violation of Vehicle Code section 23152, subdivision (a). The officer’s partner took Phillips to a facility in Burlingame and requested a phlebotomist.

Ramirez v. Superior Court of Kern County (Cal. Ct. App., Feb. 9, 2023, No. F082588) 2023 WL 2399712

 Summary: A driver petitioned for writ of mandate ordering Department of Motor Vehicles (DMV) to set aside its driver’s license suspension order following his arrest for driving under the influence (DUI). The Superior Court granted the petition. DMV appealed as real party in interest. The Court of Appeal held that:

Administrative Procedure Act’s (APA) provision, addressing when a presiding officer can conduct a hearing by telephone, applied to administrative per se (APS) adjudicative hearing conducted by DMV;  APA’s provision, stating that a presiding officer “may not” conduct a hearing by telephone if a party objects, and regulation adopted to implement the APA provision in context of DMV adjudicative hearings, are mandatory, substantive procedural protections; and substantial evidence supported implied finding that motorist was prejudiced by police officer testifying by telephone.

Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants. (Cal. Ct. App., Apr. 15, 2022, No. B305604) 2022 WL 1125370

DMV Administrative Hearings after DUI Arrests and challenge by California DUI Lawyers

The Department of Motor Vehicles (DMV) conducts administrative hearings to suspend a driver’s license after an arrest for driving under the influence. At these hearings, the DMV hearing officers act both as advocates for the DMV and as triers of fact. The DMV authorizes its managers to change hearing officers’ decisions, or order the hearing officers to change their decisions, without notice to the driver.

People v. Escareno (Cal. Ct. App., May 24, 2021, No. A160209) 2021 WL 2069434, at *1–4

Summary: Escareno pleaded no contest to two felonies, four misdemeanors and an infraction arising from a single incident of driving under the influence of alcohol and without a valid license. The  trial court refused  to dismiss the misdemeanor and infraction counts pursuant to Vehicle Code section 41500 after sentencing him to prison on the felony counts. Escareno appealed and the Court affirmed.

Escareno was charged with felony driving under the influence of alcohol after two prior felony convictions for the same (Veh. Code,1 §§ 23152, subd. (a), 23550.5) (count 1); felony driving with .08 percent or higher blood alcohol after two prior felony convictions for the same (§§ 23152, subd. (b), 23550.5) (count 2); misdemeanor unlawful operation of a vehicle not equipped with a functioning ignition interlock device (§ 23247, subd. (e)) (count 3); misdemeanor driving when privilege suspended for driving under the influence, with priors (§ 14601.2, subd. (a)) (count 4); misdemeanor driving while license suspended or revoked, with priors (§ 14601.5, subd. (a)) (count 5); misdemeanor driving without a valid license (§ 12500, subd. (a)) (count 6); and possession of an open container of alcoholic beverage while driving, an infraction (§ 23222, subd. (a)) (count 7).

People v. Walker (Cal. Ct. App., May 6, 2021, No. A158423) 2021 WL 1811648, at *1–4

Summary: Walker appealed following his convictions for felony evasion of a peace officer (Veh. Code, § 2800.2)1 and other crimes. In the published portion of the opinion, the Court of Appeal rejected Walker’s contention that reckless driving (§ 23103) is a lesser included offense of felony evasion.

Facts: In June 2019, Walker was charged with felony evasion of a peace officer (§ 2800.2); misdemeanor driving under the influence (§ 23152, subd. (f)); and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).

WILLIAM LEE GERWIG, JR., Plaintiff and Appellant, v. STEVE GORDON, as Director, etc., Defendant and Respondent. (Cal. Ct. App., Feb. 19, 2021, No. D076921) 2021 WL 650274

 Summary: When the Department of Motor Vehicles (DMV) holds an administrative hearing to consider whether to suspend a driver’s license, it can usually support its case by relying on an Evidence Code presumption that chemical blood tests were properly conducted, and the results are thus reliable. Here, the Court of Appeal concluded that licensees rebut that presumption only when they cast doubt on the integrity of the test. A violation of governing regulations that has only a tenuous connection to the accuracy of the results is not enough. Here,  plaintiff proved a regulatory violation with only an indirect and speculative relationship to the manner in which the blood test was conducted, and to the reliability of the test results. The Court affirmed.


The California DMV resumed behind-the-wheel testing beginning Friday, June 26.  Drivers and DMV instructors will be required to wear face masks and drivers will be asked to lower two windows to increase air flow in the car. Pre-test instructions will be given  outside the car. DMV examiners will also wear gloves and place plastic covers on the passenger seat and floorboard as precautions against transmission of the coronavirus. Applicants will be required to wear a face covering and answer screening questions before starting the exam. Temperature checks will be added to safety protocols  in the coming weeks.

There has been a  three month backlog of behind-the-wheel testing as a result of  the DMV closing all of its 169 field offices and cancelling  all appointments in March due to the coronavirus pandemic. Some offices were reopened in May and the rest resumed operations in June, but no behind-the-wheel tests have taken place since mid-March.

The DMV will automatically reschedule all canceled driving test appointments and  anticipates it will take several weeks to complete testing for previously canceled tests. Appointments for new behind-the-wheel tests will not be available until previously canceled tests are completed.

The decrease in traffic during the COVID-19 shelter in place, has seen an increase in speeding tickets for driving over 100 mph.

‘From March 19, when the state’s stay-at-home order began, to April 19, the CHP issued 2,493 citations for speeding more than 100 mph, as compared with 1,335 during the same period last year.” (100-mph speeding tickets soar statewide: Gary Richards, Roadshow

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