Daniel Graybill vs California Department of Motor Vehicles
Case No: 18CV04877
Hearing Date: Wed May 15, 2019 9:30

Nature of Proceedings: Writ of Mandate

TENTATIVE RULING: The petition for writ of mandate is denied in its entirety; the temporary stay of the suspension of petitioner’s driving privilege will be dissolved.

Background: The petition for writ of mandate was filed by petitioner Daniel Graybill (Mr. Graybill) on October 11, 2018. It alleged that Mr. Graybill had a valid California driver’s license at the time he was arrested on April 29, 2018 for driving under the influence of alcohol. At the time of his arrest, Mr. Graybill was served by the arresting officer with a notice of “administrative per se suspension/revocation order and temporary driver’s license.” He sought an administrative hearing from the Department, and a stay of the suspension/revocation pending the determination of whether to set aside or reinstate the suspension. Mr. Graybill’s administrative hearing commenced on June 21, 2018, and was conducted by G.C. Chacon as “hearing officer.” At the hearing, the hearing officer presented evidence in support of the suspension, including the DS367 (officer’s sworn statement), arrest report, and supplemental report. On June 22, 2018, the hearing officer issued a decision upholding the Department’s decision to suspend/revoke Petitioner’s driver’s license, from June 25, 2018 to June 24, 2019. On July 11, 2018, the Department notified Mr. Graybill that the suspension had been upheld after department review, and Petitioner could seek court review within 94 days. Mr. Graybill alleged that a transcript of the hearing had been ordered, and would be lodged with the Court upon receipt.

The Petition further alleges that his license was suspended based on the claim that he refused to submit to a post-arrest chemical test, but that the evidence presented in support of the suspension does not support the conclusion that the arresting officer gave a full and complete admonition as required by Vehicle Code section 23612. He alleged that no evidence was presented that: (a) the arresting officer warned him that if he failed to submit to a chemical test there would be a “strong likelihood” (and not a mere possibility) that a license suspension would be imposed by the department; (b) the arresting officer informed him that the suspension would be for one year; or (c) the officer informed him that he had no right to assistance of counsel regarding whether he would submit to a breath or blood test.

On October 23, 2018, Mr. Graybill submitted an ex parte application for stay of the driving suspension pending resolution of the petition. The trial court granted the ex parte stay on October 25, 2018.

From that date, nothing occurred in the case until the Department of Motor Vehicles (DMV) on March 20, 2019, sought an ex parte order to set the hearing on the petition for writ of mandate, contending that by obtaining a stay of his driver’s license suspension but doing nothing further to prosecute the petition for writ of mandate, the public safety purpose of the administrative license suspension statutes was being thwarted. DMV urged that Mr. Graybill’s driving history was such that his continuing to drive represented an immediate danger to public safety, and therefore the merits of his petition for writ of mandate should be addressed at the earliest possible date.

The ex parte application was accompanied by a declaration executed by Deputy Attorney General Lauren E. Sible, who briefly reiterated the procedural history of the action, including the stay of the driver’s license suspension obtained by Mr. Graybill. Counsel wrote to petitioner’s attorney, Kenneth Hamilton, on January 30, 2019, in an effort to select a hearing date, but as of the date of execution of the declaration (March 20, 2019) had not received a response. The letter was attached, and is addressed to Mr. Graybill’s counsel at the same address as that which is set forth on the Petition and other documents filed on Mr. Graybill’s behalf in this proceeding (i.e., his office address of record).

Counsel further notified Mr. Hamilton of the date and time of the ex parte application by e-mail (ken@socodui.com–the e-mail address for Mr. Hamilton which is reflected on the State Bar website) on March 20, 2019 at 9:47 a.m., and by phone (805-625-0929) at 9:44 a.m. The Court notes that the telephone number attributed to Mr. Hamilton on the documents he has filed with the court is 805-966-0812. A copy of the proposed order on the ex parte application—which noted on its face that the hearing would be held at 8:45 a.m. on March 25, 2019 in Dept. 6 of the Court—was served upon Mr. Hamilton on March 20 both by e-mail (ken@socodui.com) and by U.S. Mail at his office address of record.

The trial court granted DMV’s ex parte application on March 25, 2019. The Order set the hearing on Mr. Graybill’s Petition for Writ of Administrative Mandamus for May 15, 2019 at 9:30 a.m. in Dept. 6, and directed that Petitioner’s opening brief be filed and served at least 45 days before the hearing date (i.e., March 29, 2019), Respondent’s opposition brief be filed and served at least 25 days before the hearing date, and Petitioner’s reply brief be filed and served at least 10 days before the hearing date. It further directed that Petitioner lodge the Administrative Record with his reply brief.

DMV served a Notice of Hearing upon Mr. Hamilton on March 27, 2019, at his office address of record. The Notice did not include a copy of the Order, and although it stated that the hearing on the Petition would be held on May 15, 2019, at 9:30 a.m. in Dept. 6, it did not set forth the dates upon which the Order directed that the briefs be filed.

DMV filed its answer to the Petition on March 29, 2019.

Although provided with ample notice of the hearing date set by the Court on his Petition, Graybill has never filed an opening brief, either pursuant to the dates set forth by the trial court in its order setting the hearing [45 days before the hearing], or pursuant to the terms of Code of Civil Procedure section 1005(b) [16 court days before the hearing, plus 5 calendar days for service by mail].

DMV filed its Opposition to the Petition for Writ of Mandate on May 2, 2019, serving it by U.S. Mail upon Mr. Hamilton at his office address of record. While the opposition brief was not filed within the time limits set forth in the Court Order setting the hearing date [25 days before the hearing], it can be inferred that DMV waited to file its opposition until the deadline for Graybill to have filed his opening brief under the provisions of Code of Civil Procedure section 1005 had passed, since the May 2, filing date would have been when an opposition would be due under the provisions of Section 1005 [9 court days before the hearing].

Even service of the DMV’s opposition has not spurred any action by the Petitioner, however, who has neither sought any sort of relief from his failure to serve an opening brief, nor filed a reply to the DMV’s opposition. Indeed, after obtaining the stay of his client’s driving privilege in October 2018, Mr. Hamilton has apparently not taken any action to pursue the Petition for Writ of Mandate, even after being advised that it had been set for hearing, including failing to file any briefs in support of his client’s position, and failing to lodge with the Court the Administrative Record of the underlying DMV administrative proceedings.

DMV lodged a certified copy of the Administrative Record with the Court on May 9, 2019. The Notice of Lodging was served upon Mr. Hamilton at his office address of record on May 8, 2019, via Federal Express. The Administrative Record makes clear that neither Petitioner Graybill nor his attorney appeared for the June 21, 2018, telephonic administrative hearing or presented any evidence. As a result, the matter proceeded as a default hearing. The Hearing Officer moved the DS-367 report, the Arrest Report, a certified copy of the MVAR video, and the H-6 (Petitioner’s driving record) into evidence, after which the hearing concluded. The DS-367, Arrest Report, and MVAR video were obtained by the DMV through a records subpoena.

Factual Background: The DS-367 form, the arresting officer, California Highway Patrol officer Ricardo Ayala, declared that while on patrol on SB 101 at approximately 0200 hours on April 29, 2017, he and his partner observed a gray SUV traveling at a high rate of speed in the #2 lane. He observed the vehicle drift to the right and straddle the broken white line between the #2 and #3 lanes for about 10 feet. The vehicle then crossed over the broken white lines partially into the #1 lane for approximately 20 feet, in violation of Vehicle Code section 21658(a), and initiated an enforcement stop. Upon contacting the driver, he observed bloodshot/watery eyes, an odor of alcoholic beverage, slurred speech, and an unsteady gait. The driver performed poorly on Field Sobriety Tests. The driver refused a PAS test. Under the portion of the form related to the Chemical Test Admonition, Officer Ayala checked the box indicating that he admonished the driver that, because the officer believed he was under the influence of alcohol, he was required to submit to a chemical test to determine the alcohol content of his blood, and had a choice of taking a breath or blood test. He also circled the #3 portion, indicating an admonition that a refusal to submit to or complete a chemical test would result in the driving privilege being suspended for one year. The driver refused to submit to or complete any test, as indicated by the driver’s statement, “I want my lawyer.”

The Arrest-Investigation Report confirmed the reason for the stop, and explained further that Mr. Graybill had become agitated when contacted by Officer Ayala, denying that he had been either speeding or weaving. After performing a precursory HGN check and observing a lack of smooth pursuit and distinct and sustained nystagmus at maximum deviation in both eyes, he asked Mr. Graybill to exit the vehicle and move to the sidewalk to continue the investigation. Mr. Graybill became argumentative and was hesitant to leave the vehicle. In response to the preliminary pre-FST questions, Mr. Graybill denied having consumed any alcohol. FSTs were then performed, and the results articulated in the report. Based upon his statements, his poor driving, observation of the objective signs and symptoms of alcohol intoxication, and poor FST performance, Officer Ayala formed the opinion that Mr. Graybill was driving while under the influence of alcohol and was unable to safely operate his vehicle. He placed Mr. Graybill under arrest at 0035 hours. He advised Mr. Graybill of Vehicle Code 23612 (implied consent) by reading verbatim: “You are requested to submit to a chemical test. You have the choice of a blood or breath test. If you choose not to submit to or fail to complete a test, your refusal can result in the suspension of your driver’s license. Which test do you want to take?” Mr. Graybill responded by saying “No I want my lawyer.” Mr. Graybill was transported to the CHP office to obtain a blood warrant. He became combative and started screaming for help, demanding several times that the handcuffs be loosened because they were too tight. After obtaining the warrant, Mr. Graybill was transported to the Santa Barbara County Jail where Officer Ayala observed CLS L. Michaels obtain a sample of blood from Mr. Graybill’s right arm at 0304 hours. He took possession of the blood vial and booked it into the DOJ blood evidence locker at the jail. Mr. Graybill was booked into the jail without further incident.

The MVAR video lodged with the court, provides a video of the movements of Graybill’s vehicle which gave rise to the enforcement stop, and portions of the enforcement stop itself. Most of the questioning of Mr. Graybill, and his performance of FSTs, took place to the side of the frame of the video, and were not depicted. Officer Ayala’s provision of the admonition, and Mr. Graybill’s responses, were captured on the audio portion of the MVAR video, even though those events were not visible on the video. The admonition was precisely as he had quoted it in his report (see above). Mr. Graybill repeatedly demanded a lawyer to advise him which test to choose; every time Officer Ayala told him he needed to choose which test to take, and that it had to be his choice, he demanded to first speak to his lawyer. Officer Ayala repeatedly advised him that if he refused or failed to complete a test, his license would be suspended, and on several occasions advised Mr. Graybill that he could not speak with a lawyer, and had no right to a lawyer. Even so, Mr. Graybill persisted, and would not make any choice unless he was first able to speak to a lawyer. As a result, Officer Ayala drove him to the CHP station to obtain a warrant for Mr. Graybill’s blood.

The Hearing Officer rendered a decision on the following day, June 22, 2018, entitled Administrative Per Se – Refusal, Notification of Findings and Decision. In its Findings of Fact, the report found there was probable cause to detain Mr. Graybill, who reflected objective symptoms of intoxication, performed unsatisfactorily on field sobriety tests, although denying any alcohol consumption. The officer was found to have had reasonable cause to believe that Mr. Graybill had been driving a motor vehicle while under the influence of alcohol, and that Mr. Graybill was lawfully placed under arrest for a violation of the DUI statutes. The report found that the Department’s evidence supported the findings that Mr. Graybill was properly admonished that his driving privilege would be suspended or revoked if he refused or failed to complete a required chemical test, and that Mr. Graybill in fact refused to take or failed to complete a chemical test after being requested to do so by a peace officer. In its Determination of Issues, the report stated the peace officer had reasonable cause to believe Mr. Graybill had been driving a motor vehicle in violation of the DUI statutes, that he was placed under lawful arrest, that he was told that his driving privilege would be suspended or revoked if he refused to complete the required testing, and that he did in fact refuse or fail to complete the chemical test or tests after being requested to do so by a peace officer. As a result, the Decision was that the suspension of the driving privilege be re-imposed.

The hearing officer’s decision was affirmed after Departmental Review, on July 11, 2018. The Notice of Decision stated that the suspension or revocation was proper and required, and that Mr. Graybill’s driving privilege was suspended effective June 25, 2018. It advised Mr. Graybill that before he could be reinstated after June 24, 2019, he would need to file proof of financial responsibility and pay a $125 fee.

ANALYSIS: The Petition for Writ of Mandate is denied, and the temporary suspension of petitioner’s driving privilege is dissolved.

As noted by the DMV in their opposition brief, judicial review is conducted pursuant to Vehicle Code section 13559 and Code of Civil Procedure section 1094.5. (Coombs v. Pierce (1991) 1 Cal.App.4th 568, 575.) The reviewing court must exercise its independent judgment in determining whether the weight of the evidence supports the Department’s findings. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 394.) The Department must prove, by a preponderance of the evidence, that license suspension or revocation is authorized. (Veh. Code,§ 13557, subd. (b)(l).) The Department’s findings nevertheless, come before the Court with a strong presumption of their correctness, and the burden rests upon the Petitioner to convince the Court that the findings are contrary to the weight of the evidence. (Bixby v. Pierco (1971) 4 Cal.3d 130, 139; Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 85; Wilson v. Zolin (1992) 9 Cal.App.4th 1104, 1104-1107.)

Vehicle Code section 23612(a)(1) provides that a person, lawfully arrested of driving under the influence, is deemed to have given his or her consent to chemical testing of his or her blood for determining the alcoholic content of his or her blood. Under subdivision (a)(1)(D), the person “shall be told” that his or failure to submit to, or the failure to complete, the required breath, blood, or urine tests will result in the administrative suspension by the department of the person’s privilege to operate a motor vehicle for a period of one year. Pursuant to subdivision (a)(4), the officer must also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.

Pursuant to Vehicle Code section 13358(c)(1), at the administrative hearing on the suspension of a driving privilege based upon the failure to submit to a chemical test by an officer who had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 (driving under the influence), the only issues are those set forth in Section 13557(b)(1). Those facts include: (1) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23152, among others; (2) The person was placed under arrest; (3) The person refused or failed to complete the chemical test or tests after being requested by a peace officer; and (4) The person had been told that his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing.

Petitioner has not provided the Court with any brief or provided any argument, through which to meet his burden of convincing the Court that the DMV’s findings were contrary to the weight of the evidence. All that Petitioner has provided this court is his original petition, in which he does not contest the Hearing Officer’s findings of probable cause to arrest, exhibition of objective symptoms of intoxication, reasonable cause to believe that Mr. Graybill was driving a motor vehicle while under the influence of alcohol, or lawful arrest. Rather, the Petition solely challenges the Hearing Officer’s findings regarding the admonishment provided to Mr. Graybill, and his refusal to submit to or to complete a chemical test, after being requested to do so by a peace officer. Specifically, the Petition contends that the Court should issue a writ of mandate setting aside the license suspension, solely because Mr. Graybill contends there was no evidence presented that (a) the arresting officer warned him that if he failed to submit to a chemical test there would be a “strong likelihood” (and not a mere possibility) that a license suspension would be imposed by the department; (b) the arresting officer informed him that the suspension would be for one year; or (c) the officer informed him that he had no right to assistance of counsel regarding whether he would submit to a breath or blood test.

The record before the court does not support Petitioner’s claims, and in fact the weight of the evidence fully supports the findings made by the Hearing Officer. The recording of the exchange between Officer Ayala and Mr. Graybill make very clear that the officer repeatedly advised him that if he did not take a blood or breath test his driver’s license would be suspended; that he had to choose which test to take; and that he had no right to an attorney to advise him which test to choose. The warnings were not ambiguous, and did not mislead Mr. Graybill in any way. In the face of many such warnings, Mr. Graybill persisted in refusing to select which chemical test to take and insisted he would only do so if permitted to speak to an attorney. Under California law, constitutes a refusal to submit to a chemical test. (See Pepin v. Department of Motor Vehicles (1969) 275 Cal.App.2d 9, 10.)

Because the evidence before the Court supports the findings made by the DMV, and because Petitioner has failed to submit any brief or argument which might tend to convince the Court that the findings are contrary to the weight of the evidence, the Court will deny the petition in its entirety. The temporary stay of the suspension, which was granted pending resolution of the petition, is dissolved under its express terms.