Wall v. Shiomoto CA4/3

Filed 6/7/13 Wall v. Shiomoto CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PHILIP WALL,

Plaintiff and Appellant, G047428

v. (Super. Ct. No. 30-2012-00570477)

JEAN SHIOMOTO, as Chief Deputy OPINION Director, etc.,

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed. Christian Jensen; Chad Firetag for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Michael E. Whitaker and Michael J. Hui Deputy Attoneys General, for Defendant and Respondent. * * *

After providing Phillip Wall an administrative hearing, the Department of Motor Vehicles (DMV) suspended his driver‟s license subsequent to his arrest for violating Vehicle Code1 section 23152. Wall pled guilty to the new offense and admitted he suffered a prior conviction for violating section 23152. The court ordered Wall to complete a driving-under-the-influence alcohol program and when the DMV received notification of Wall‟s enrollment, it set aside the suspension and issued Wall a restricted driver‟s license. The DMV subsequently suspended Wall‟s license again when it received notice Wall did not successfully complete the program. (§ 13352, subd. (e).) Section 14101 provides that a driver is not entitled to a hearing when the DMV is required to suspend the driver‟s license, as the DMV was in this case. Wall contends the DMV‟s suspension of his license violated due process because he was not provided a hearing to determine whether his termination from the alcohol program was arbitrary or capricious. We conclude that even if a driver is entitled to a hearing to demonstrate termination from the program was arbitrary or capricious, Wall‟s petition did not allege facts tending to indicate his termination from the alcohol program was arbitrary or capricious. Consequently, we affirm the superior court‟s order denying relief on Wall‟s petition for a writ of mandate. I FACTS On July 6, 2011, Wall was arrested for driving under the influence of alcohol. (§ 23152, subd. (a).) The DMV suspended Wall‟s driver‟s license after an administrative hearing, pursuant to section 13352. Wall pled guilty to driving under the influence in Orange County Superior Court case No. 11WM10159 on November 3, 2011, and admitted he suffered a prior conviction for a violation of section 23152 on March 16, 2007. The court placed Wall on probation for a period of five years. Among the