DMV Issues

March 29, 2025

Officer’s failure to inform Kazelka that the PAS testing was voluntary does not require the test’s exclusion at DMV hearing

Kazelka v. California Department of Motor Vehicles (Cal. Ct. App., Mar. 27, 2025, No. A163664) 2025 WL 923651, at *1–2

Summary: At an administrative hearing, a California Department of Motor Vehicles (DMV) hearing officer concluded that Kazelka had been driving under the influence and temporarily suspended his license. The trial court later granted Kazelka’s petition for writ of mandamus and reversed the order of suspension, finding that the hearing officer improperly admitted and relied upon a pre-arrest breath test. The DMV now challenged the trial court’s exclusion of the breath test as contrary to California law. The Court of Appeal agreed and reversed.

Facts

April 6, 2024

Due process violated when DMV Hearing Officer acts as an advocate

by Uthman Law Office

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.

December 3, 2023

DMV license suspension upheld where blood collection for BAC test did not comply with regulations

by Uthman Law Office

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.

March 18, 2023

Police Officer Testimony by Telephone at DMV Administrative Hearing is Improper when Driver Objects

by Uthman Law Office

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.

April 16, 2022

DMV’s Administrative Hearings to Suspend Licenses after DUI’s Violates Due Process

by Uthman Law Office

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.

January 15, 2022

Branded Title and Restitution

by Uthman Law Office

People v. Newsom (Cal. Ct. App., Jan. 10, 2022, No. B312652) 2022 WL 92779, at *1

What is “Branded Title”

A “branded title” can reduce a car’s resale value.

May 30, 2021

No dismissal of non-felony motor vehicle charges when defendant is charged in a single action and sentenced to prison

by Uthman Law Office

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).

May 9, 2021

Reckless Driving (§ 23103) is Not a Lesser Included Offense of Felony Evasion of a Peace Officer

by Uthman Law Office

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)).

February 21, 2021

DMV may use blood test results to suspend licenses even if there is a violation of blood test regulations

by Uthman Law Office

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.

BACKGROUND

June 28, 2020

Resumption of DMV Road Tests

by Uthman Law Office

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.