Tuesday, September 11, 2007

Cal. DMV must pay attorney fees, expert fees when a rehearing is necessitated by loss of transcript

California DUI criminal defense attorney case

Frase v. Gourley (2000) 85 Cal.App.4th 762 [102 Cal.Rptr.2d 432]
[No. G025876.Fourth Dist., Div. Three. Dec. 19, 2000.]

STUART FRED FRASE, Plaintiff and Respondent, v. STEVEN GOURLEY, as Director, etc.,
Defendant and Appellant.
(Superior Court of Orange County, No. 805815, F. Latimer Gould, Temporary Judge. fn. * )
(Opinion by Sills, P. J., with Crosby and Bedsworth, JJ., concurring.)
Bill Lockyer, Attorney General, Silvia M. Diaz and Gabrielle Harner Brumbach, Deputy
Attorneys General, for Defendant and Appellant.
George L. Chelius for Plaintiff and Respondent. {Page 85 Cal.App.4th 764}
The Department of Motor Vehicles (DMV) suspended Stuart Fred Frase'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 Frase'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 {Page 85 Cal.App.4th 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.
[1] When a licensee files a petition for writ of administrative mandamus to challenge the
DMV's decision to suspend his or her driver's license, "review shall be on the record of the
hearing." (Veh. Code, § 13559.) The burden of supplying a record sufficient for review is on the
licensee. (Code Civ. Proc., § 1094.5, subd. (a); Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347,
355 [25 Cal.Rptr.2d 852].) That burden is met when the licensee makes a proper request on the
DMV to prepare and certify the record because the DMV records and transcribes the hearing
(Veh. Code, § 14104.2), has sole custody and control of the recordings and other evidence, and
has a duty to maintain an adequate record. (Hothem v. City and County of San Francisco (1986)
186 Cal.App.3d 702, 705 [231 Cal.Rptr. 70]; Cal. Administrative Mandamus (Cont.Ed.Bar 2d
ed. 1989) Initiating Proceedings to Review, § 8.13, p. 267.)
If the DMV does not maintain a record which is adequate for judicial review it may choose, for
example, to set aside the order, reconstruct the record, prepare a summary of the facts, or hold a
new hearing. (SeeHothem v. City and County of San Francisco, supra, 186 Cal.App.3d at p.
705; Chavez v. Civil Service Com. (1978) 86 Cal.App.3d 324, 332 [150 Cal.Rptr. 197].) On the
other hand, if it fails to maintain an adequate record and then refuses to assist the petitioner in
compiling the record, "the agency can be foreclosed from disputing petitioner's statement of fact"
(Woodard v. Personnel Commission (1979) 89 Cal.App.3d 552, 561 [152 Cal.Rptr. 658]) or the
court may set aside the order of suspension on that basis.
[2a] 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 deputy attorney general properly recognized that the DMV had a duty to assist Frase in
preparing an adequate record. She suggested that the parties stipulate to remand the matter for a
{Page 85 Cal.App.4th 766} new hearing. Frase agreed, but on condition that the DMV pay the
costs of his expert and attorney to attend the new hearing. This was a reasonable condition under
the circumstances.
It is unclear why the DMV refused to pay Frase's costs. We were advised at oral argument that
this was a "departmental decision," which suggests the DMV recognized the request was not
unreasonable. But the fact the DMV made a conscious decision to force Frase to expend
additional moneys when the need for the rehearing was solely its doing is outrageous. While
$1,500 may be an insignificant sum of money to some, it can be a considerable sum for the
average licensee, especially when it is placed on top of the sum which must be advanced for an
attorney and an expert witness just to mount a basic defense to an administrative per se hearing.
Moreover, requiring a licensee to pay any additional sum simply to obtain judicial review
violates fundamental notions of due process and runs contrary to the legislative scheme.
[3] InGikas v. Zolin (1993) 6 Cal.4th 841 [25 Cal.Rptr.2d 500, 863 P.2d 745], our high court
explained that "[t]he express legislative purposes of the administrative suspension procedure are:
(1) to provide safety to persons using the highways by quickly suspending the driving privilege of
persons who drive with excessive blood-alcohol levels; [and] (2) to guard against erroneous
deprivation [of that privilege] by providing a prompt administrative review of the suspension ...."
(Id. at p. 847, italics added.) This is why administrative per se hearings are set up as summary
[2b] Just as important as a quick hearing, however, is a fair one. AsGikas suggests, a fair
hearing is one which ensures that the licensee has an opportunity to guard against the "erroneous
deprivation" of his or her license. Any procedure which is overly burdensome or expensive
undermines the licensee's ability to raise potentially valid defenses, and creates roadblocks in any
effort to obtain judicial review. A prohibitively expensive procedure would, for example, be an
unfair barrier. But just as the DMV cannot impose excessive fees, it cannot act in a way which
functionally has that effect. A licensee who hires an attorney and expert witness to represent him
or her at the administrative per se hearing must bear the initial cost of that representation. Having
done so once, however, the licensee cannot be commanded by the DMV to do so again simply in
order to pursue judicial review.
Frase paid for his representation once. The DMV's refusal to bear the cost of Frase's attorney
and expert witness at a new hearing here was arbitrary. The DMV must bear the responsibility for
its intransigence. Accordingly, the {Page 85 Cal.App.4th 767} judgment setting aside the
suspension is affirmed. Frase shall recover his costs on appeal.
Crosby, J., and Bedsworth, J., concurred.
FN *. Pursuant to California Constitution, article VI, section 21.