Fletcher v. Dep't of Motor Vehicles

• Decision Date: 16 September 2022
• Docket Number: F082711
• Parties: RICHARD DEAN FLETCHER, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

RICHARD DEAN FLETCHER, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents.

F082711

California Court of Appeals, Fifth District

September 16, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County, No BCV-20-102842 William D. Palmer, Judge. (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Richard O. Middlebrook for Plaintiff and Appellant.

Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian and Brad Parr, Deputy Attorneys General, for Defendants and Respondents.

OPINION

THE COURT ^[*]

In this review of an administrative decision, appellant Richard Dean Fletcher challenges not only the quality of the evidence submitted at a Department of Motor Vehicles (DMV) hearing but also the process used in that hearing resulting in the suspension of his driver's license. Following our review of the administrative hearing and the trial court records, we affirm the judgment below.

FACTUAL AND PROCEDURAL SUMMARY

When appellant failed to stop at a posted stop sign on August 27 2017, a police officer initiated a vehicle stop to cite him for a violation of the Vehicle Code. The officer observed appellant had bloodshot or watery eyes, an unsteady gait, and slurred his speech. The officer also detected the smell of alcohol on appellant. After appellant failed a field sobriety test, and preliminary alcohol screening indicated appellant had a blood-alcohol level of 0.17 percent, two chemical breath tests were administered. These tests were administered with appellant's consent and were completed within three minutes of each other. Both breath tests showed appellant had a blood-alcohol level of 0.18 percent.

Appellant requested an administrative hearing to challenge the suspension of his driver's license, which was held over two days on August 13, 2019, and November 5, 2020. On the first day, appellant presented the expert testimony of Stanley Dorrance. Dorrance reviewed the printout and the maintenance logs for the breathalyzer used by the officer who administered the chemical breath tests. Dorrance testified that the breathalyzer passed routine calibration tests on August 24, 2017, and September 4, 2017. A "Breath Alcohol Accuracy Report" reviewed by Dorrance showed that between July 27, 2017, and September 21, 2017, the specific breathalyzer at issue here was tested seven times and passed every time. However, Dorrance believed the breathalyzer was out of compliance when used on August 27, 2017, because DMV regulations require these devices be tested every 10 days. Between August 24, 2017, and September 4, 2017, 11 days had passed. This was the only defect Dorrance cited challenging the accuracy of the breathalyzer. The hearing officer then decided he would bring in an "analyst" to explain why 11 days between the two tests would be a problem. The hearing officer also indicated he would review the report again before the next hearing.

On the second hearing date in November 2020, the same hearing officer stated he had changed his mind and did not need to call an analyst to address the accuracy of the breathalyzer used on appellant. The hearing officer then found appellant had driven with a blood-alcohol level of 0.08 percent or more, and suspended his driver's license effective November 26, 2020, through November 25, 2021.

On December 3, 2020, appellant filed a petition for writ of mandate in the Kern County Superior Court, asking the court to set aside the suspension of his driver's license. Following a hearing on the petition, the trial court initially stated the matter would be returned to the DMV for further proceedings consistent with the hearing officer's initial intent to call an additional witness. The court directed appellant to prepare an order to that effect on April 9, 2021. Three days later on April 12, 2021, the trial court issued a new written ruling denying the petition, and stated:

"The Court, on further reflection, sets aside the ruling announced in open court on April 9, 2021, and replaces it with the following ruling:

"The petition for writ of [m]andate is denied. Counsel for Respondent to prepare judgment.

"Discussion: Petitioner, at the time that the DMV Hearing Officer announced that he was not going to call a witness, indicated that []he was prepared to close. (AR-0035). Therefore, there was no prejudice in going forward and ruling by the hearing officer. As the Court indicated, the "Lane" decision^[1] controls, and thus the [p]etition should be denied."

No reporter's transcript of the hearing held in the trial court exists.^[2]

Appellant filed a timely notice of appeal on April 22, 2021.

DISCUSSION

Appellant challenges the quality of the evidence supporting the conclusion he was under the influence of alcohol beyond the threshold allowed by law. Appellant also contends he was denied due process in the administrative hearing before the DMV. We consider each of those issues below.

I. The Administrative Hearing Officer's Decision to Suspend Appellant's License

A. The Standard of Review

"If the decision of an administrative agency will substantially affect a "fundamental vested right," then the trial court must not only examine the administrative record for errors of law, but also must exercise its independent judgment upon the evidence." (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 395.) Because case law has determined that once obtained, a license is a vested fundamental right, a trial court must exercise independent judgment when reviewing a decision to suspend a driver's license. (Munro v. Department of Motor Vehicles (2018) 21 Cal.App.5th 41, 46.) The standard of review on appeal then asks if the decision reached by the trial court is supported by substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.)

" '[O]n appeal, we ... "review the record to determine whether the trial court's findings are supported by substantial evidence.." . We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision.. Where the evidence supports more than one inference, we may not substitute our deductions for the trial court's.. We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.'" (Robertson v. Zolin (1996) 44 Cal.App.4th 147, 152.)

Our review is limited in this appeal as no reporter's transcript of the hearing in the trial court was provided. The cardinal rule of appellate review is that judgments and orders of the trial court are presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The party seeking review has the burden of providing an adequate record, and the failure to provide an adequate record for meaningful review requires the issue be resolved against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

We note, however, our independent review of the administrative record provides substantial evidence for the decision reached by the trial court. Appellant's only significant challenge involves the reliability of the breathalyzer test. Our opinion in Lane held that title 17, section 1221.2, subdivision (a)(2)(B) of the California Code of Regulations does not require that a device later found invalid or untrustworthy during a compliance test be retroactively considered invalid or untrustworthy. (Lane v. Valverde, supra, 203 Cal.App.4th 71, at p. 79.) We have been provided no valid reason to reconsider Lane at this time. We simply note the breathalyzer was tested and found to be accurate three days before it was used on appellant, and was tested and found to be accurate again eight days later. There was no evidentiary basis established by appellant supporting a conclusion the breathalyzer showed invalid or untrustworthy results when the test was administered.

We affirm the judgment as substantial evidence supports the suspension of appellant's license.

II. Appellant's Due Process Rights Have Not Been Prejudiced

Appellant also contends that his due process rights were denied when the DMV hearing officer decided not to present evidence from a criminologist addressing the reliability of the breathalyzer used to calculate his level of intoxication. Appellant believes the hearing officer represented during the first hearing in August 2017 that "the reliability of the tests had been rebutted and then did absolutely nothing to dispel that reasonable belief." When the hearing officer decided not to pursue testimony from a criminologist, appellant contends either he was denied the opportunity to put forth more evidence on the accuracy of the breathalyzer, or the hearing officer failed to rebut the presumption it was not in compliance, denying appellant the fundamental fairness guaranteed by due process.

When an administrative agency conducts an adjudicative proceeding, due process of law requires a fair tribunal. (Gerawan Farming, Inc. v. Agricultural Labor Relations Board (2020) 52 Cal.App.5th 141, 207.) "A fair tribunal is one in which the judge or other decision maker is free of bias for or against a party." (Morongo Band of Mission Indians v. State Water Resources Control Board (2009) 45 Cal.4th 731, 737.) However, the "standard of impartiality required at an administrative hearing is less exacting than that required in a judicial proceeding." (Gerawan Farming, at p. 207.)

Appellant suggests when the...