Isenberg v. Dep't of Motor Vehicles

Decision Date22 July 2022
Docket NumberF082435
PartiesSYDNEY ISENBERG, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals


Order Filed Date 8/19/2022

APPEAL from a judgment of the Superior Court of Kern County No BCV-19-102746. Eric Bradshaw, Judge.

Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Kenneth C. Jones and Anthony William Gomez, Deputy Attorneys General, for Defendant and Appellant.

Middlebrook & Associates, Richard O. Middlebrook Gabrielle A. LaCarre and Misty B. Franklin for Plaintiff and Respondent.



It is hereby ordered that the nonpublished majority opinion filed on July 22, 2022, be modified as follows:

On page 20, the text of footnote 7 is deleted in its entirety and the following text is inserted in its place:

APS hearings and the hearing officer's decision must comply with Vehicle Code sections 14100 through 14106. Pursuant to Vehicle Code section 14112, subdivision (a), all matters not covered by those sections shall be governed, as far as applicable, by chapter 5 (Gov. Code, §§ 11500- 11529) of California's Administrative Procedure Act (APA; Gov. Code, § 11340 et seq.). In turn, Government Code section 11501, subdivision (c) states that chapter 4.5 of the APA "applies to an adjudicative proceeding required to be conducted under this chapter, unless the statutes relating to the proceeding provide otherwise." Based on the foregoing provisions, Isenberg contends the hearing officer's decision is subject to Government Code section 11425.50, which requires decisions to be in writing, requires a statement of the factual and legal basis for the decision, and imposes other requirements for the contents of the decision. We do not resolve whether Government Code section 11425.50 applies to a hearing officer's decision because the parties' briefing did not address the specific issue of whether the requirements for a hearing officer's decision constitute "matters in a hearing not covered by [Vehicle Code section 14105]" for purposes of Vehicle Code section 14112, subdivision (a).

There is no change in judgment.

The request for publication of the opinion filed in the above entitled matter on August 11, 2022, is hereby denied. Part I of the opinion applies existing principles governing mootness and the impact of interim relief to the question of whether a plaintiff is a prevailing party. Part II of the opinion applies principles established by the Supreme Court in Coffey v. Shiomoto (2015) 60 Cal.4th 1198.

In compliance with California Rules of Court, rule 8.1120(b), the Clerk/Executive Officer of this court shall transmit copies of the request for publication, the opinion, and this order to the Supreme Court.



I concur in the denial of the request for publication, but do not otherwise adopt the rationale expressed herein as set forth in my dissent. J.



The Department of Motor Vehicles (DMV) appeals an award of attorney fees in the amount of $3,640 to plaintiff Sydney Isenberg. The superior court made the award pursuant to Government Code section 800 (section 800) after determining (1) Isenberg was the prevailing party in her civil writ proceeding challenging the suspension of her driver's license and (2) the DMV's conduct was arbitrary or capricious. On appeal, the DMV contends it, not Isenberg, was the prevailing party because Isenberg's petition for writ of mandate was dismissed as moot after an acquittal in her criminal case and, moreover, it acted reasonably, not arbitrarily or capriciously.

First, the superior court did not abuse its discretion when it determined Isenberg was the prevailing party because Isenberg achieved her litigation objective of preventing the suspension of her driver's license. Shortly after Isenberg filed this writ proceeding, the superior court granted her request for a stay of the DMV's suspension order pending the outcome of the case. Without the stay, the four-month suspension would have taken effect and expired before she was acquitted in her criminal case and the DMV, as required by statute, set aside its suspension order. Thus, the superior court reasonably could find Isenberg prevailed by obtaining a result that she would not have achieved without filing the writ petition.

Second, the superior court did not abuse its discretion when it determined the DMV acted arbitrarily by failing to follow the principles established by our Supreme Court in Coffey v. Shiomoto (2015) 60 Cal.4th 1198 (Coffey). Initially, the hearing officer unreasonably concluded the testimony of Isenberg's expert did not rebut the presumption about blood-alcohol content (BAC) set forth in Vehicle Code section 23152, subdivision (b) and, furthermore, relied in part on that presumption to find Isenberg's BAC was at least 0.08 percent at the time she was driving. This was not an isolated error. The DMV's stubborn refusal to accept and apply the principles in Coffey that define when expert testimony is sufficient to rebut the presumption is reflected in the superior court proceedings where the DMV, in conflict with Coffey, insisted that Isenberg's expert had not rebutted the presumption and, moreover, that it appropriately relied on the presumption to uphold the license suspension. This arbitrary failure to properly apply Coffey adequately supports the award of attorney fees under section 800.[1]We therefore affirm the judgment.


On August 5, 2018, at approximately 1:35 a.m., California Highway Patrol Officers Martinez and Tait saw a black sport utility vehicle weave to the left on two separate occasions and tailgate a pickup truck. The officers pulled the vehicle over and officer Martinez spoke with the driver, Isenberg through her side window. Isenberg told him that she had two, 25 ounce El Cerrito beers at the "BLVD." Isenberg's speech was normal and she was cooperative. Officer Martinez notice a strong smell of alcohol and observed her eyes were red and watery. Officer Martinez requested Isenberg perform some balance and coordination tests. Isenberg did not adequately perform the field sobriety tests. Next, Officer Martinez administered preliminary alcohol screening (PAS) tests that took samples of Isenberg's breath to determine her BAC. The results were 0.091 percent BAC at 1:51 a.m. and 0.097 percent BAC at 1:54 a.m.

Officer Martinez formed the opinion that Isenberg had been driving under the influence of alcohol and placed her under arrest for violating Vehicle Code section 23152, subdivision (a). Isenberg was asked if she wanted to do a blood screening or a breathalyzer and she chose the breathalyzer. The test taken at 2:15 a.m. showed her BAC at 0.100 percent and the test taken at 2:17 a.m. showed her BAC at 0.101 percent. These tests were done with the same breathalyzer machine as the PAS tests. Isenberg was advised that her breath samples would not be retained for later analysis and, if she chose, she could provide a blood or urine sample that would be retained. Isenberg declined further testing and the officers took her to the Kern County Central Receiving Jail and she was booked at approximately 2:32 a.m.

Vehicle Code section 13353.2, subdivision (a)(1) requires the DMV to suspend the driver's license of a person who drove with a BAC of .08 percent or more. Accordingly, "[w]hen a driver is arrested for driving under the influence and is determined to have a prohibited [BAC], the arresting officer or the DMV serves the driver with a 'notice of [an] order of suspension or revocation' of his or her driver's license, advising that the suspension will become effective 30 days from the date of service. (Veh. Code, §§ 13353.2, subds. (b) & (c); 13353.3, subd. (a).)" (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1536-1537.) The notice explains the driver's right to an administrative per se (APS) hearing[2] before the suspension takes effect. (Id. at p. 1537.) A driver must request the APS hearing within 10 days of receipt of the notice. (Ibid.)

The day after Isenberg's arrest, her attorney sent the DMV a letter requesting an APS hearing. The letter confirmed that the DMV would stay the suspension of Isenberg's driver's license pending the outcome of the administrative hearing.

In September 2018, criminal charges were filed against Isenberg. Count 1 alleged driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a). Count 2 alleged driving with a BAC of 0.08 percent or more. Also in September 2018, the DMV stayed the suspension of Isenberg's license pending the outcome of the APS Hearing.

APS Hearing

A DMV driver safety officer conducted the APS hearing over two days-January 30, 2019, and August 23, 2019. In between these two hearing dates, Isenberg was acquitted on count 1, driving under the influence of alcohol, but the jury was unable to reach a verdict on count 2.

At the January 30, 2019 APS hearing, Isenberg's expert witness Stanley D. Dorrance, testified. From 1972 to 1982, Dorrance was employed by the California Department of Justice, Bureau of Forensic Services as a Criminalist III and part of his duties involved the analysis of blood, breath and urine for alcohol. While at the department, he testified about alcohol approximately 500 times. In 1982, Dorrance left the department and became self-employed as the founder of Forensic Science Services. Since that time, he has testified approximately 3,000 times regarding alcohol.

Dorrance provided expert testimony to support Isenberg's rising blood alcohol defense.[3] Dorrance stated his opinions were based on the sworn statement and arrest report (which...

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