Howard v. Dept. of Motor Vehicles CA4/1

Opinion

Filed 9/23/26 Howard v. Dept. of Motor Vehicles CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BRENT MICHAEL HOWARD, D085484

Plaintiff and Respondent, v. (Super. Ct. No. 37-2024- 00022158-CU-WM-NC) DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Steven K. Berenson, Commissioner. Reversed. Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Katharine A. Tremblay and Rhea G. Mariano, Deputy Attorneys General, for Defendant and Appellant. Joseph K. Seipel for Plaintiff and Respondent. Brent Michael Howard was arrested on suspicion of driving under the influence. Because he refused to consent to chemical testing of his blood or breath, the Department of Motor Vehicles notified him it would suspend his driver’s license. Howard requested an “administrative per se” (APS) hearing to challenge the suspension. At the APS hearing, the hearing officer introduced and admitted documents provided by the DMV and then confirmed the suspension. Howard filed a petition for writ of mandamus, arguing the APS hearing procedure violated his due process rights because, in his view, the hearing officer improperly acted as an advocate for the DMV as well as a trier of fact. The superior court granted his petition, set aside the DMV’s decision, and reinstated Howard’s driving privileges. The DMV appeals the superior court’s order. It asserts the APS procedure followed in this case did not offend due process. We agree the hearing officer did not act as an advocate for the DMV or otherwise participate in a procedure that created a constitutionally unacceptable risk of bias. Accordingly, we reverse. I. In October 2023, Howard crashed his car and a sheriff’s deputy arrested him on suspicion of driving under the influence of alcohol. Howard performed poorly on standardized field sobriety tests and refused to voluntarily submit to a breathalyzer or other chemical test. After securing a warrant, the sheriff’s department obtained a blood sample from Howard. A. Howard requested an APS hearing. Prior to the hearing, T. Hartman- Cole, a DMV employee, sent a request to the San Diego Sheriff’s Office to obtain the deputy’s sworn statement, breath and blood test results, and the arrest report. The DMV’s driver safety branch chief subpoenaed the body- worn camera footage and Hartman-Cole signed the declaration in support of the subpoena.

2 Hartman-Cole forwarded seven categories of documents to Howard. Because the subpoenaed body-worn camera videos had not been received by December 20, 2023—the day before the scheduled hearing—the DMV verbally requested to continue the hearing. The hearing officer granted the request, citing “[d]ue process” as the reason. There is no indication Howard objected to the continuance. On December 22, 2023, Hartman-Cole provided Howard with a copy of the video footage. In January 2024, Howard submitted a written objection to the hearing officer. He argued the DMV’s hearing procedure violated the ruling in California DUI Lawyers Association v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, which enjoined the DMV from having its hearing officers advocate for the DMV in addition to serving as factfinders. If the DMV proceeded as anticipated, it would violate Howard’s due process right to an impartial trier of fact. Accordingly, Howard demanded that, in addition to the hearing officer, the DMV provide a separate advocate whose duties would include proffering and introducing evidence. Howard did not otherwise object to any of the documents received from law enforcement, the body-worn camera footage, or the hearing officer’s decision to continue the hearing. On March 19, 2024, the hearing officer convened a hearing and stated that she would be “acting as a neutral factfinder” who was “prohibited from and will not act as an advocate for the DMV or law enforcement.” Howard did not appear for the hearing. At Howard’s attorney’s request, the hearing officer confirmed that she would be introducing evidence given to the DMV by law enforcement and that it was a contested two-party matter. Howard’s attorney restated his concern that, by presenting evidence on behalf of the DMV in a contested matter, the hearing officer was acting as an 3 advocate for the DMV in violation of California DUI Lawyers. Counsel declined to further participate in the hearing for fear of violating a court order. The hearing officer overruled counsel’s objection and proceeded without his participation. She then introduced and moved into evidence eight exhibits, including the deputy’s sworn statement and arrest report, the collision report, Howard’s driving record, and the body-worn camera footage. In a written decision, the hearing officer upheld the suspension of Howard’s driving privilege for one year. B. Howard filed a petition for writ of mandamus in the superior court. He argued the suspension of his driver’s license violated due process and caused irreparable harm because his job required weekly driving. He also asserted the DMV exceeded its jurisdiction by disregarding the injunction imposed by California DUI Lawyers and abused its discretion in deciding against him. The DMV opposed the petition. The superior court heard oral argument. The record does not include a transcript of the proceedings, a statement of decision, or a settled statement. But the court’s November 14, 2024 order granting the writ petition with prejudice directed the DMV to set aside its decision and reinstate Howard’s driving privileges. II. A trial court ruling on an application for a writ of mandate following an order of suspension or revocation must use its independent judgment to determine whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) Normally on appeal, we would “‘review the record to determine whether the trial court’s findings are 4 supported by substantial evidence.’” (Id. at p. 457.) But where the appeal stems from the trial court’s ruling on a legal question, we exercise independent judgment. (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 863.) Here, Howard challenges the procedural fairness of his APS hearing, which also “‘is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.’” (Hall v. Superior Court (2016) 3 Cal.App.5th 792, 808.) A. Before moving to the merits of this appeal, we address two threshold procedural issues. First, Howard contends the DMV did not present an adequate record to demonstrate error because it did not provide a transcript from the trial court, a statement of decision, or a settled statement. He explains that where the appeal is made on the judgment roll, meaning it is based only on a clerk’s transcript, “[t]he sufficiency of the evidence to support the findings is not open to review.” (Wheelright v. County of Marin (1970) 2 Cal.3d 448, 454.) Rather, the court infers the trial court made the factual findings necessary to support the judgment under the doctrine of implied findings. (Ramirez v. Superior Court (2023) 88 Cal.App.5th 1313, 1334.) Although that is generally true, Howard did not ask the trial court to make independent factual findings. Rather, he invited the court to find as a matter of law that the hearing officer violated his due process rights by “present[ing] the DMV’s case, and then decid[ing] the case.” The DMV repeatedly highlighted this fact in its opposition, noting “[t]his was a case where there were no factual disputes to resolve” and Howard “makes no arguments as to the evidence whatsoever.” Howard did not refute these statements in his reply. His writ petition asserted only that the DMV abused 5 its discretion by not proceeding in the manner required by law. (See Code Civ. Proc., § 1094.5(b).) In granting the petition and setting aside the DMV’s decision to suspend Howard’s driver’s license, the court necessarily agreed with this argument. We are further persuaded this is not a case requiring us to make implied findings because, in proceedings governed by the Vehicle Code, the trial court’s review “shall be on the record of the hearing and the court shall not consider other evidence.” (Veh. Code, § 13559(a); see also Armondo v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174, 1180.) Thus, not only was the trial court not asked to make factual findings; it could not take additional evidence. For these reasons, we need not infer the court made factual findings on issues not presented in the briefing. Rather, we are tasked with reviewing the administrative record and determining de novo whether the DMV violated Howard’s due process rights by having one hearing officer introduce evidence on behalf of the DMV, rule on the admissibility of such evidence, and then adjudicate the hearing. Second, Howard contends the hearing officer abused her discretion in granting a continuance under Government Code section 11524 to await the body-worn camera footage. Although the record lacks evidence of the superior court proceedings, Howard agrees with the DMV that the court expressed concern about the hearing officer’s continuance of the hearing in this case. Because the superior court then granted the writ, Howard argues we must presume the oral proceedings during the writ hearing revealed facts that conclusively established an abuse of discretion. We disagree. Howard did not argue in his briefing below, as he does here, that the DMV violated Government Code section 11524 by not requesting a continuance within 10 working days of when it reasonably 6 should have discovered the need for it. Rather, the only concern he expressed about the continuance related to the due process argument. We will not presume the trial court resolved the matter on an issue it was not asked to decide. Howard also doubly forfeited this issue by not (1) objecting after the hearing officer granted the continuance or during the administrative hearing and (2) asserting it in the superior court. (Ramirez, 88 Cal.App.5th at p. 1336.) Nor did he file a protective cross-appeal to assert the issue here. Therefore, we decline to further consider it. B. Turning to the merits, the DMV argues it is not a due process violation for the hearing officer to introduce and develop the evidence before deciding whether a violation occurred. We agree. Both the United States Supreme Court and the California Supreme Court have identified the requirement of an impartial adjudicator over a hearing as one of the “irreducible minimums” of due process. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) The due process right to “a fair tribunal” requires “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 Bd. (2009) 45 Cal.4th 731, 737.) This right is violated when a party provides “proof of actual bias” or shows “‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’” (Ibid.) Whether an intolerably high risk of actual bias exists is assessed under an objective standard. (Today’s Fresh Start, at p. 216.) At the same time, our high court has recognized that “administrative hearings need not be conducted with the same rigor demanded of judicial proceedings.” (Today’s Fresh Start, 57 Cal.4th at p. 214.) “[A]n 7 administrative procedure in which the same individual or entity is charged both with developing the facts and rendering a final decision, and separate adversarial advocates are dispensed with,” has been deemed “‘inquisitorial rather than adversarial.’” (Id. at p. 220.) “‘[T]he case law, both federal and state, generally rejects the idea that the combination [of] judging [and] investigating functions is a denial of due process.’” (Withrow v. Larkin (1975) 421 U.S. 35, 52; Today’s Fresh Start, 57 Cal.4th at p. 221.) California DUI Lawyers concluded the DMV’s APS structure, as it was then structured, created an unacceptable risk of bias and ran afoul of the due process guarantee of a fair tribunal because it allowed one individual to advocate for the DMV as well as adjudicate. (California DUI Lawyers, 77 Cal.App.5th at pp. 530, 532.) It defined “advocating” on the DMV’s behalf as “present[ing] the DMV’s case and ‘promot[ing] driver safety,’ with no corresponding duty to present any evidence that would support the position of the driver at the hearing.” (Id. at p. 533, fn. 5.) The California DUI Lawyers Association conceded, however, that under Today’s Fresh Start, “the DMV may task the same person with both collecting and developing the evidence and rendering a final decision.” (Ibid.) Since then, appellate opinions have diverged as to the legal framework they applied in reviewing challenges to the DMV’s APS procedure. One line of cases, consistent with California DUI Lawyers, focused on “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.” (Knudsen v. Department of Motor Vehicles (2024) 101 Cal.App.5th 186, 193.) In those cases, if the evidence demonstrated the hearing officer acted as an advocate, the court would find “the driver’s due process right to an impartial 8 adjudicator [was] violated.” (See ibid.; Clarke v. Gordon (2024) 104 Cal.App.5th 1267, 1270, Kazelka v. Department of Motor Vehicles (2025) 109 Cal.App.5th 1239, 1255; Romane v. Department of Motor Vehicles (2025) 110 Cal.App.5th 1002, 1018–1020.) Chi v. Department of Motor Vehicles (2026) 119 Cal.App.5th 473 recently opined that these cases took “a wrong turn.” (Id. at p. 484.) In Chi’s view, the prior decisions contradict Supreme Court precedent by focusing on the appearance of bias versus actual disqualifying interests. (Id. at p. 486.) If the hearing officer’s action “looks like advocacy, the implication is that the adjudicator appeared to favor” the DMV even though, as Chi points out, the reviewing court “never identifies, or analyzes evidence of, any circumstances that would tempt an average adjudicator to favor the department.” (Ibid.) Chi would find a due process violation only in the context of “‘extreme facts’” showing a disqualifying interest such as a financial interest in the outcome, a personal prejudice against a party, or a personal grudge against a party based on a history of conflict. (Id. at pp. 480–481.) Our Supreme Court granted review of Romane to consider “[u]nder what circumstances . . . an [APS] hearing officer’s relationship with the Department of Motor Vehicles (DMV) violate[s] a driver’s due process right to an impartial adjudicator by creating an unacceptable risk of bias during a DMV driver’s license suspension hearing.” (Romane v. Department of Motor Vehicles, S291093, Supreme Ct. Mins., Aug. 13, 2025.) The court likewise granted review of Chi pending consideration of Romane. (Chi v. Department of Motor Vehicles, S296201, Supreme Ct. Mins., May 13, 2026.) For purposes of resolving the instant appeal, we conclude the DMV’s actions did not violate due process under either line of authority. The evidence shows the hearing officer introduced and admitted law enforcement 9 evidence that had been requested by other DMV employees. Such an inquisitorial function has long been authorized under federal and state due process law (see Withrow, 421 U.S. at p. 52; Today’s Fresh, 57 Cal.4th at pp. 220–221), as conceded by counsel for the driver in California DUI Lawyers, 77 Cal.App.5th at p. 533, fn. 5. Howard’s attempt to recast these actions as advocacy is not supported by existing authority. The question then is whether Howard otherwise pointed to objective evidence of an intolerably high risk of bias. (See Today’s Fresh, 57 Cal.4th at p. 216.) Howard argued below that the hearing officer “advocated for the DMV in requesting to continue the matter because she wanted to be able to introduce the subpoenaed [body-worn camera] footage at the hearing, and then acted as a factfinder by granting her continuance request.” The continuance decision form indicates only that the request was made verbally by the DMV, so it is not evident it was made by the hearing officer. But even assuming it was, Howard has not persuaded us this action, or the hearing officer’s decision to grant the request, violated due process. These actions do not meet either standard. As we acknowledged in Romane, the law enforcement officer’s sworn statement and arrest report are routinely admitted into evidence at APS hearings. (Romane, 110 Cal.App.5th at p. 1018.) Where, as here, the sworn report does not contain all the relevant information, the unsworn arrest report is also appropriately considered to satisfy Vehicle Code section 13380’s requirement that the arresting officer’s sworn report contain “‘all information relevant to the enforcement action.’” (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158– 159, italics omitted.) And in this case, the arrest report referenced the body- worn camera footage. DMV employees, not the hearing officer, subpoenaed the videos. Thus, the hearing officer merely postponed the hearing to await 10 relevant evidence that had already been requested. Under Romane, we conclude this constitutes collecting the evidence and developing the facts. Howard provides no authority for his apparent assertion that due process only allows the hearing officer to collect evidence the hearing officer is legally required to consider under the Vehicle Code. Yet the law governing administrative proceedings provides otherwise, explaining that “[a]ny relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.” (Gov. Code, § 11513(c).) More importantly, given it provides an objective depiction of what occurred, body-worn camera footage is not inherently biased. In fact, in Romane, the driver offered the body-worn camera footage into evidence, not the DMV. (Romane, 110 Cal.App.5th at p. 1019.) As a result, it is not evident the hearing officer’s actions fall under California DUI Lawyer’s definition of advocating because body-worn camera footage may be “evidence that would support the position of the driver at the hearing.” (California DUI Lawyers, 77 Cal.App.5th at p. 533, fn. 5.) Although Howard argues most of the videos here were prejudicial, he does not explain how or why they were so prejudicial as to offend due process. He also forfeited this argument by not making it at the APS hearing or in his writ briefing. We are thus not convinced that any aspect of the hearing officer’s procedural handling of the case veered into constitutionally prohibited advocacy. We reach the same conclusion under the standard applied in Chi. Howard provided no “specific circumstances” of an unacceptable risk of bias to undermine the default “presumption of ‘honesty and integrity in those serving as adjudicators.’” (Chi, 119 Cal.App.5th at pp. 481, 484, 486.)

11 Specifically, the record contains no evidence the hearing officer had a financial interest in the outcome of the case, a personal prejudice relating to people with Howard’s characteristics, or a personal grudge against Howard. (Id. at pp. 480–481; see also People v. Nieves (2021) 11 Cal.5th 404, 499.) There also is no evidence that allowing the hearing officer to collect and develop the evidence before adjudicating the matter incentivized her to favor the department. (See Chi, at p. 484.) And because body-worn camera footage could favor either party, allowing the hearing officer to await and admit it does not objectively present a circumstance creating an unacceptable risk of bias. Even if the evidence favored the DMV, that alone, without evidence of some additional disqualifying interest, does not undermine the presumption that the hearing officer adjudicated with honesty and integrity. Accordingly, we conclude the procedure the hearing officer employed during the APS hearing in this case falls short of the “extreme facts” that offend due process. (Nieves, 11 Cal.5th at p. 499.)

12 III. We reverse with directions to the superior court to vacate the order granting Howard’s petition for writ of mandate and instead enter a new order denying it. The DMV is entitled to its costs on appeal.

CASTILLO, Acting P. J.

WE CONCUR:

RUBIN, J.

BERMÚDEZ, J.