Marquez v. Gourley

Opinion

PERREN, J. A driver’s license is suspended for operating a motor vehicle with a blood-alcohol level of 0.08 percent or more. On this appeal, we conclude he may not seek judicial review of the Department of Motor Vehicles’ (DMV) automatic review of his suspension under Vehicle Code section 13557.1 A driver who wishes to obtain judicial review of a suspension decision must first request an administrative hearing before the DMV under section 13558.

Martin A. Marquez appeals from a judgment sustaining a demurrer to his petition for a writ of mandate challenging the DMV’s suspension of his driver’s license under sections 13353.2 and 13557. The trial court sustained the demurrer on the ground that appellant failed to exhaust his administrative remedies prior to seeking judicial review by requesting an administrative hearing pursuant to section 13558. Appellant contends that his failure to request a section 13558 hearing does not preclude him from obtaining judicial review of the DMV’s decision to suspend his license following its automatic review under section 13557. We disagree and, accordingly, affirm.

Facts and Procedural History

Appellant was arrested for driving with a blood-alcohol level of 0.08 percent or more on August 4, 2001. At the time of his arrest, he was served with notice of the order of suspension of his driver’s license pursuant to section 13353.2, subdivisions (b) and (c), which informed him that he had 10 days from receipt of the notice to request a hearing. Appellant did not request a hearing. On October 15, 2001, he filed a petition for writ of mandate to set aside and revoke the suspension of his license. Respondent demurred on the ground that appellant had failed to exhaust his administrative remedies by requesting a hearing under section 13558. The trial court sustained the demurrer without leave to amend, and entered judgment accordingly. This appeal followed.

[713]Discussion

A driver served with a DMV suspension notice may contest the suspension by requesting an administrative hearing. (§§ 13558, 14100, subd. (a).) If the DMV determines after a hearing that the suspension is warranted, it shall notify the driver of the right to seek judicial review within 30 days of notice pursuant to section 13559. (§ 13558, subd. (f).) Judicial review under that section “shall be on the record of the hearing and the court shall not consider other evidence.” (§ 13559, subd. (a).)