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

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.

Ramirez’s Driver’s License is Suspended by DMV

Three days after 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.

The APS 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?”

Ramirez’s counsel argued 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.

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.”

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.”

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” and the DMV reimposed the suspension of Ramirez’s driving privileges.

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 contended that 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.

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”

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.

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.

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,

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. Ramirez argued that 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.

The trial court could have permissibly concluded Ramirez’s counsel was unfairly prejudiced in his ability to cross-examine Officer Van Dyke.

Remand to DMV is Necessary

Former Government Code section 11440.30 was applicable to Ramirez’s APS hearing; corresponding regulation, CCR section 115.07, were mandatory and not merely directory; and substantial evidence supports an implied finding of prejudice. The trial court properly granted Ramirez’s petition for writ of mandate. The judgment was  modified to reflect a remand to the DMV for further proceedings.

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