Menge v. Reed

Citation101 Cal.Rptr.2d 443,84 Cal.App.4th 1134
Decision Date16 November 2000
Docket NumberNo. A089133.,A089133.
CourtCalifornia Court of Appeals
PartiesVirginia MENGE, Plaintiff and Respondent, v. Sally REED, as Director, etc., Defendant and Appellant.


The trial court issued a writ of mandate requiring Sally Reed, as Director of the Department of Motor Vehicles (DMV), to set aside the DMV's revocation of a California school bus certificate held by respondent Virginia Menge (Menge). In the DMV's appeal of this ruling, the issue presented is whether a school bus driver, who submitted a purportedly adulterated urine specimen in a random drug test, is entitled to a hearing before the DMV, prior to the revocation of her school bus driver's certificate. We conclude the driver is entitled to a prerevocation hearing, and we affirm the judgment.


Menge was a school bus driver employed by the San Ramon Valley Unified School District (District). She was required to possess, and did possess,

a California school bus certificate issued by the DMV. (See Veh.Code, § 12517, subd. (a).)1 Menge was also obligated to comply with the controlled substances and alcohol use and testing requirements set forth in section 382.101 et seq. of title 49 of the Code of Federal Regulations. (Veh. Code, § 34520, subd. (a).) Section 382.211 of title 49 of the Code of Federal Regulations mandates such drivers to submit to random testing for alcohol or controlled substances.

The District subjected Menge to a random drug test, administered by National Medical Review Offices, Inc. (NMRO), on February 18, 1999. It was determined that Menge's urine sample was unsuitable for testing due to the presence of nitrate, an adulterant. When the District learned of the test results, it placed her on administrative leave, with pay, and scheduled a Skelly hearing for March 10, 1999.2 Menge did not attend this hearing, reserving her right to appeal any decision that her employment be terminated.

By letter dated March 10, 1999, the District next notified Menge of its intention to recommend that the State Board of Education (Board) terminate her employment as a school bus driver, on the ground that she falsified information, acted dishonestly, and willfully violated the Education Code or Board rules, based on the allegedly adulterated urine sample. The letter, quoting from a ruling of the United States Department of Transportation (DOT), advised that an adulterated specimen constituted a refusal to test, and the donor therefore had no right to test a split specimen or retest the primary specimen. Menge was placed on administrative leave, without pay, pending Board action at its meeting on March 30, 1999, and advised of her right to request a hearing before the Board.

At some point, Menge contacted the District to inquire whether her urine specimen could be retested, and she was told to contact the NMRO. The NMRO advised her that the specimen could not be made available for retesting. The NMRO forwarded a copy of the test result, which read in part: "SPECIMEN ADULTERATED." Menge then elected not to attend the March 30 meeting before the Board, but instead resigned from her employment.

Upon learning of the results of Menge's test report, the DMV, on March 31, issued an order of revocation of Menge's school bus certificate, effective April 15, 1999, on the ground that her adulterated specimen constituted a refusal to test under title 49 of the Code of Federal Regulations. (49 C.F.R. § 382.107 (1999).) The DMV order erroneously cited section 13376, subdivision (b)(1), which pertains to testing positive on a drug or alcohol test. The order also informed Menge she was not entitled to a hearing because the DMV's revocation was mandatory under the Vehicle Code, but she could nevertheless seek court review of the order by filing a petition for a writ of mandate.

Menge filed a petition for writ of administrative mandate in the superior court, seeking to compel the DMV to reinstate her certificate. In its written order, the trial court noted that the DMV was not "remiss" in revoking Menge's certificate, because the DMV was "required to do so by the Legislature of this state." The court nonetheless granted Menge's petition, to the extent of commanding the DMV to set aside its order of revocation. The trial court found that Menge "was deprived of due process: the system of testing and reporting in place here does not allow persons such as [Menge] to challenge the validity of the process by which they are stripped of their professional license." In particular, the court was disturbed by the federal regulation denying Menge access to the split sample, and believed the hearings offered by the District and Board provided no realistic opportunity to challenge the NMRO report.

This appeal followed.


The DMV argues: (1) the writ compels the DMV to perform an act that violates federal regulations, section 34520 (which mandates obedience to the Code of Federal Regulations) and public policy; (2) Menge had a meaningful opportunity to challenge the test results; (3) Menge waived her right to assert a due process violation when she elected not to attend the hearings before the District and the Board; and (4) Menge pursued the wrong party, because the DMV does not control the evidence of the adulterated sample and is merely an "innocent bystander."

A. Standard of Review

Whether the DMV's administrative procedures comply with due process is a question of law, and we review the trial court's determination of that question de novo. We accept as conclusive the trial court's factual findings if supported by substantial evidence. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169, 56 Cal.Rptr.2d 223.)


As mentioned ante, school bus drivers must comply with the controlled substances and alcohol use and testing requirements of title 49 of the Code of Federal Regulations. (§ 34520, subd. (a).) Those regulations prohibit such drivers from using alcohol and controlled substances while on duty, as well as for certain periods before and after duty. They also require employers to impose on their drivers random testing for alcohol and controlled substances, and require drivers to submit to the testing. (49 C.F.R. §§ 382.201-382.215 (1999).) Under the regulations, "No driver shall refuse to submit to ... a random alcohol or controlled substances test required under [section] 382.305." (49 C.F.R. § 382.211 (1999).) A driver is deemed to refuse to submit to an alcohol or controlled substances test if she fails to provide an adequate urine sample or "[e]ngages in conduct that clearly obstructs the testing process." (49 C.F.R. § 382.107 (1999).)

Federal regulations relating to the testing of school bus drivers for alcohol and controlled substances "preempt[ ] any State or local law, rule, regulation, or order to the extent that: [¶] (1) Compliance with both the State or local requirement and this part is not possible; or [¶] (2) Compliance with the State or local requirement is an obstacle to the accomplishment and execution of any requirement in this part." (49 C.F.R. § 382.109 (1999).)

The DMV argues that, by requiring the DMV to reinstate Menge's certificate, the trial court's action presents "an obstacle to the accomplishment and execution" of the federal regulations. (49 C.F.R. § 382.109 (1999).) These regulations, however, do not address the process by which the DMV issues or revokes a school bus certificate. Nor do they forbid the DMV from affording a hearing to a driver whose school bus certificate has been revoked. In this regard, the trial court's issuance of the writ does not conflict with federal regulations.

The DMV also takes the position that the action taken by the lower court is contrary to public policy, because of the government's overriding interest in regulating the conduct of its employees and ensuring public safety. The DMV's position, however, presupposes that Menge's urine sample was adulterated and the trial court excused Menge from the consequences. The trial court did not condone the adulteration of urine specimens or allow Menge to escape the ramifications of adulterating her sample. Instead, it found fault with the process which precluded Menge from contesting the conclusion that her sample was, in fact, adulterated.

For that reason, the DMV's reliance on Doyle v. Board of Supervisors (1988) 197 Cal.App.3d 1358, 243 Cal.Rptr. 572, and Swan v. Civil Service Commission (1971) 16 Cal.App.3d 710, 94 Cal.Rptr. 236, is misplaced. Neither decision has any bearing upon the issue before us, since the issuance of the writ of mandate does not compel the performance of acts which were unlawful, contrary to public policy, or in conflict with federal law.


In ruling that Menge had no meaningful opportunity to challenge the determination that she adulterated her drug test, the lower court's notice of decision placed considerable reliance upon Rios v. Cozens (1972) 7 Cal.3d 792, 103 Cal.Rptr. 299, 499 P.2d 979 (Rios).3 Sections 16000-16553 required any driver who was in an accident involving bodily injury or property damage over $200 to file an accident report. Based on the reports of the involved parties, the DMV would decide whether there was credible evidence of potential culpability on the part of one of the drivers and, if so, it would suspend the license of that driver, without a hearing. Our Supreme Court held that due process required a...

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