Frase v. Gourley

California Court of Appeal Dec 19, 2000 No. G025876Published

Before: Sills

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Holding. The court held that the DMV's refusal to pay for the costs of a new administrative hearing, necessitated by the DMV's failure to maintain an adequate record, was arbitrary and violated due process, justifying the trial court's decision to set aside the license suspension.

Issues

Whether the DMV is responsible for the costs of a new administrative hearing when it fails to maintain an adequate record for judicial review.
Whether a licensee can be required to pay additional costs for a rehearing caused by the DMV's failure to maintain the original record.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The DMV, whether intentionally or negligently, failed to maintain, and thus could not prepare, an adequate record in this case because discrete portions of the tape had been erased.”

“The DMV’s refusal to bear the cost of Prase’s attorney and expert witness at a new hearing here was arbitrary.”

“The DMV must bear the responsibility for its intransigence.”

Opinion

SILLS, P. J.

The Department of Motor Vehicles (DMV) suspended Stuart Fred Prase’s driver’s license following an administrative per se hearing. When Frase challenged the suspension in court, the DMV was unable to file the complete administrative record because it had lost a portion of the hearing—the testimony of Frase and his expert—and refused to bear the cost of reconstructing it. We affirm the judgment setting aside the suspension.

Early in the evening on October 7, 1998, Frase was involved in a minor automobile accident in Irvine. Results of a blood test indicated he had been driving with a blood-alcohol content in excess of the legal limit. Based upon that report, his driver’s license was suspended.

Frase requested an administrative per se hearing. Witnesses at the hearing were Frase and Darrell Clardy, his expert. Clardy contended that forensic test results were flawed because Prase’s blood-alcohol level was rising. He submitted his own test results to prove it. In upholding the suspension, the hearing officer discounted Clardy’s testimony as “too speculative.”

Frase filed a petition for writ of administrative mandamus in the superior court and asked the DMV to prepare the record. The record prepared by the DMV did not contain the testimony of Frase or his expert; apparently that portion of the tape of the hearing had been erased. No one knows why only

[765]

these discrete portions were missing, but without them the administrative record is incomplete. In an effort to recreate the record, the deputy attorney general assigned to the case suggested that the parties stipulate to remand the matter for a new hearing where Frase and his expert would retestify. Frase indicated he would agree to that if the DMV paid the cost, estimated to be about $1,500, for his expert and attorney to appear at the new hearing. The DMV refused without giving a reason.

The DMV certified the record even though it was incomplete. Following a hearing, the trial court set aside the suspension.

Frase v. Gourley

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SILLS, P. J.

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