Diaz v. Gordon CA2/6

Filed 10/6/22 Diaz v. Gordon CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JHONNATAN I. LEMUS DIAZ, 2d Civil No. B318157 (Super. Ct. No. 21CV02534) Plaintiff and Appellant, (Santa Barbara County)

v.

STEVE GORDON, as Director, etc.

Defendant and Respondent.

A California Highway Patrol (CHP) officer arrested Jhonnatan I. Lemus Diaz for driving under the influence of alcohol. After an administrative hearing, the Department of Motor Vehicles (department) suspended Diaz’s driver’s license. Diaz appeals from the denial of a petition for writ of administrative mandamus upholding the department’s ruling.1 He contends the hearing officer abused his discretion and denied

1 Steve Gordon is respondent as the Director of the Department of Motor Vehicles. (Gerwig v. Gordon (2021) 61 Cal.App.5th 59, 64, fn. 3.)

due process in denying his motion to continue the administrative hearing. We affirm and deny the request for attorney’s fees. FACTUAL AND PROCEDURAL HISTORY A CHP officer observed Diaz driving erratically on the freeway. The officer visually estimated Diaz’s speed at 90 miles per hour, and the patrol vehicle’s radar showed Diaz driving 92 miles per hour. Diaz exhibited objective symptoms of intoxication and failed several field sobriety tests. His preliminary alcohol screening (PAS) breath results registered at .127 and .133 percent alcohol. He agreed to take an evidentiary breath test (see People v. Vangelder (2013) 58 Cal.4th 1, 5, fn. 1) and gave samples of .13 and .12 percent alcohol. The officer issued an administrative per se driver’s license suspension order. (Veh. Code, § 13353.2.) Diaz’s counsel requested an administrative hearing regarding the license suspension. (Veh. Code, § 13558.) On May 5, 2021, counsel received notice that the hearing was set for June 9 at 11:15 a.m. Diaz’s counsel also received discovery consisting of the CHP officer’s statement, the arrest report, the evidentiary breath test strip, and Diaz’s driving record. (Gov. Code, § 11507.6.) Almost three weeks later, on May 25, Diaz’s counsel mailed subpoenas duces tecum (SDT’s) to the California Department of Justice (DOJ) and the CHP. The SDT’s ordered that the records custodians appear and produce documents at the June 9 hearing. They further provided that the custodians were not required to appear in person if they produced the records with an affidavit compliant with Evidence Code sections 1560, 1561, and 1562. On June 8 at 4:04 p.m., the DOJ faxed the department the