Jimenez, Jose v. Department of Motor Vehicles

Standard of Review Cal. Veh. Code Sec. 13559 establishes this Court's jurisdiction to review the DMV's hearing that led to the Petitioner's driver's license being suspended. Cal. Veh. Code Sec. 13559 subd. (a) states, The review shall be on the record of the hearing and the court shall not consider other evidence.

If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence in the record, the court may order the department to rescind the order of suspension or revocation and return, or reissue a new license to, the person.

If the Court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a decision which is not supported by the evidence in the record, then the Court can order the return of the Petitioner's driver's license or order a new hearing. Cal. Veh. Code Sec. 13559 subd. (a), Hall v. Superior Court (2016) 3 Cal.App.5th 792, 807, and Cal. Civ. Proc. Sec. 1094.5.

Authority and Analysis The Evidentiary Challenges Made in This Petition Were Waived in the Underlying Administrative Proceedings Government Code Sec. 11513, subd. (d) states, "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection is timely if made before submission of the case or on reconsideration."

In Jackson v. Department of Motor Vehicles (1994) 22 Cal. App. 4th 730, 733, Jackson challenged the suspension of his driver's license. There, the Department of Motor Vehicles (DMV) admitted the arrest/investigation report. (Id. at 734.) The DMV suspended Jackson's license. (Id.) After an agency review and the trial court denied a writ of mandate, Jackson appealed to the Court of Appeals arguing in part that the officer's police report was hearsay. (Id. at 735.) The Court affirmed the judgment reasoning in part, "If Jackson had made a foundational objection, the DMV could have subpoenaed Reyes to testify. Hence, as noted by the DMV, Jackson has waived any foundational objection to the arrest report." (Id. at 738.)

Here, the petitioner, through trial counsel, stated he had no objection to the admission of the police report. As reasoned in Jackson, if he had, the respondent could have further continued the hearing to allow for the officer to be present. When presented with this option by the hearing officer, the petitioner objected to any further continuance. (AR 34-36.)

The Petitioner's Due Process Rights Were Not Violated Because He Was Offered a Continuance to Assure the Officer's Appearance and Objected to it Gov. Code Sec. 11513, subd. (b) states, "Each party shall have these rights: to call and examine witnesses, to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against him or her. If respondent does not testify in his or her own behalf he or she may be called and examined as if under cross-examination."

Here, Officer Hughes did not respond to the multiple subpoenas issued by the DMV. The hearing officer asked the petitioner, "So, you're objecting to give him a few more minutes then to appear for the hearing?" The petitioner's counsel responded, "I'm afraid so." (AR 35.) Then the hearing officer asked, "I assume that you'd be holding the same objection not continuing the hearing altogether then?" The petitioner's counsel responded, "I would." (AR 35-36.)

The petitioner cannot now claim his due process rights, as codified in Gov. Code Sec. 11513, subd. (b), were violated when the hearing proceeded without Officer Hughes testimony. Further, without his appearance there was nothing to cross-examine. To the extent the code allows the petitioner to subpoena witnesses, he did not do so. He cannot complain now that he did not have the opportunity to cross-examine a witness who did not testify, he did not object to the officer's report being admitted and did not subpoena the officer himself. Consequently, the petitioner's due process rights were not violated.

Exercising It's Independent Judgment, the Court Finds That the DMV Did Not Abuse it's Discretion and It's Findings and Conclusions Are Supported By the Unobjected to Evidence Both parties acknowledge that the Court is supposed to review the administrative record using its independent judgment. Independent judgment review "does not mean that the preliminary work performed by the administrative board in sifting the evidence and in making its findings is wasted effort...[I]n weighing the evidence the courts can and should be assisted by the findings of the board. The findings of the board come before the court with a strong presumption of their correctness, and the burden rests on the complaining party to convince the court that the board's decision is contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 812.)

Vehicle Code Sec. 13359 states, "The department may suspend or revoke the privilege of any person to operate a motor vehicle upon any of the grounds which authorize the refusal to issue a license." Vehicle Code Sec. 12809, subd. (e) states, "The department may refuse to issue or renew a driver's license to any person: (e) If the department determines that the applicant is a negligent or incompetent operator of a motor vehicle."

a. Negligence The elements of negligence are duty, breach, cause and damages. There does not appear to be any question that the petitioner held a duty to act with due care while driving a freightliner truck. Rather the question is whether he breached that duty causing the death of the other driver. In the "Order of Suspension/Revocation" the specific allegation of negligence is that the petitioner, "caused, or contributed to, a fatal accident." However, the fact there was an automobile accident that was fatal does not automatically mean there was negligence.

The hearing officer found the following facts in her Findings and decision: "Due to...[petitioner's] inattention while being on his hands-free cellphone, respondent began merging into the #2 lane without first ensuring the lane change could be conducted safely, directly into the path of V-2. V-2 was forced onto the right asphalt shoulder, where P-2 lost control of V-2." (AR 003.)

Petitioner "is a negligent operator of a motor vehicle because he caused a fatal injury traffic collision by being in violation of section 21658, subd. (a) of the CVC in that: A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety." (AR 004.)

"The petitioner herein killed a pedestrian and was convicted of reckless driving in a criminal proceeding. To hold that such recklessness, coupled with his record of many previous convictions for speeding is not amenable to disciplinary action by the department of Motor Vehicles because section 12810 provides for a violation point count determinative of a presumption, prima facie, of negligence, would thwart the very purpose of such sections, namely, the effective elimination of hazard on the public highways." (Kriesel v. McCarthy (1963) 214 Cal. App. 2d 69, 73.)

Here, as in Kriesel, the petitioner's driving record is not clean. The petitioner has suffered a conviction for violating Vehicle Code section 23153, subd. (b) - (DUI Causing Injury) and Vehicle Code section 22406, subd. (b) - (Speeding in a passenger vehicle or bus drawing any other vehicle). Further, it has been demonstrated by the evidence in the admitted and unobjected to police report that the petitioner changed lanes in this case which caused the victim to have to swerve onto the right asphalt shoulder.

It is alleged based on this conduct that the petitioner violated Vehicle Code section 21658, subd. (a). Based on this finding, it can be concluded that the petitioner breached his duty causing the death of the other passenger. The petitioner's driving record, in conjunction with the determination that he was at fault in the accident at issue in this case, is enough to establish that he was a negligent or incompetent operator of a motor vehicle.

Conclusion

The Petition for a Writ of Mandate is denied. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Eckert, Russell et al vs. Hyundai Motor America, a California Corporation et al