Filed 8/29/07 Kuo v. DMV CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
PHILIP FENG MING KUO,
Plaintiff and Respondent,
A116448
v.
(Alameda County
Super. Ct. No. RG06273544)
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Appellant.
The Department of Motor Vehicles (DMV) appeals from a judgment granting
Philip Feng Ming Kuo’s petition for a writ of administrative mandamus. The judgment
on Kuo’s petition set aside the DMV’s four-month suspension of Kuo’s driving privileges
imposed for his driving with a blood alcohol level over the legal limit. We reverse.
BACKGROUND
On August 15, 2005, Moraga Police Officer Ron Ward observed Kuo driving at
12-15 miles per hour in a 35 mile-per-hour zone and crossing into the northbound lane of
the road more than five times over a half-mile distance.
Ward pulled Kuo over and conducted a preliminary alcohol screening (PAS) test.
The results of two PAS tests administered at 9:55 and 9:57 p.m. showed a preliminary
blood alcohol content (BAC) of 0.124% and 0.113%, respectively. Kuo was then taken
into custody. Breath tests administered at the Moraga Police Department at 10:30 and
10:34 p.m. showed a BAC of 0.09%. Kuo also elected to take a blood test, as allowed
under Vehicle Code section 23614.
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Kuo was arrested and charged with driving under the influence, and was notified
that his driver’s license was to be administratively suspended. Kuo requested a hearing
to challenge the administrative suspension. (See generally Veh. Code, § 13353.2; Gikas
v. Zolin (1993) 6 Cal.4th 841.) The hearing was originally set for September 16, 2005,
but was continued five times at Kuo’s request before it was finally held on February 2,
2006. On January 30, 2006, Kuo requested another continuance because his attorney had
not yet received the blood test results and police communication tapes or logs he had
requested from the DMV. The DMV denied the request and on February 1, 2006, one
day before the hearing date, Kuo for the first time asked the DMV to subpoena the results
of the blood tests and the police communication tapes or logs.
At the administrative hearing Kuo’s attorney argued that Kuo had repeatedly
asked the DMV for the results of his blood tests since September. A number of written
requests from Kuo or his lawyer to the DMV and the district attorney’s office for the
results of those tests were admitted as exhibits. “The blood test,” counsel argued, “is
absolutely germane and completely relevant to determine whether [Kuo] was or was not
above the legal limit at the time he drove the car. And from the inception of the case, he
and the documents there set that out, he clearly was asking continuously back in
November and October of last year, for the blood test. When we came into the case we
contacted the DA’s Office, of which we have provided letters to you showing we’ve done
that. They have not provided any blood test. . . . We’ve written to the Moraga Police
Department asking them for the blood test . . . and again, we have no case pending so
there’s no way for me to issue a subpoena, I have no power to issue a subpoena without a
pending case. That’s why we wrote to the Department asking for a continuance because
still repeatedly after many, many months, this evidence which is absolutely germane to
his defense, which is exculpatory in nature, has not been produced. So we then, when
that was denied, we then asked the Department in our letter of February 1st, to issue
subpoenas to the Contra Costa Sheriff’s Department for the blood sample and for the
CAD tapes . . . but it’s my understanding that the Department is not going to issue the
subpoenas. . . .” Counsel argued that the DMV’s failure to issue subpoenas for the
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requested tests and tapes violated his constitutional right to due process and statutory
rights under the Vehicle Code.
The hearing officer rejected Kuo’s argument and upheld the suspension. Among
other things, she found that “[c]ounsel’s argument and inability to obtain evidence to
rebut the Department case was noted and does not appear to support any Due Process
violation as claimed.”
Kuo requested a written review of that decision. The basis for the request, counsel
explained, “is simply that Mr. Kuo requested, as is his statutory right to collect evidence
that would exonerate him, a blood test result. It is undisputed that the documentary
evidence before the DMV reveals that he did request a blood test and that a blood test
was given to him. We have sought to obtain the results of the aforesaid blood test but as
of the date of the hearing no criminal charges were filed against Mr. Kuo and therefore
we had no way to obtain a court subpoena for the blood test result evidence.
Furthermore, we specifically requested that the Department issue a subpoena so that we
could obtain the evidence which would exonerate Mr. Kuo of being above the legal limit;
however, you expressly stated at the hearing on record that you would not issue a
subpoena for Mr. Kuo to obtain this exculpatory evidence (as required by California
Vehicle Code Section 14104.5 and Government Code Section 11450.20.)” The DMV
upheld the suspension.
Kuo then challenged the suspension in a petition for writ of administrative
mandamus. The petition alleged that Kuo’s counsel had asked the DMV to issue a
subpoena to obtain the blood sample both at, and prior to, the administrative hearing.1
This claim figured prominently at the hearing on the petition, when the trial court
1
It also noted that the criminal driving under the influence charges against Kuo
were dismissed on April 18, 2006, after the administrative hearing, because the blood
sample was lost or destroyed, and that Kuo pled guilty to a “dry reckless,” a violation of
Vehicle Code section 23103. The DMV objected to admission of the April 18, 2006,
transcript and any documents and information not contained in the administrative record.
The court sustained the objection.
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repeatedly stated its view, reinforced by Kuo’s counsel, that Mr. Kuo had been trying to
obtain the blood sample itself; that, unlike the results of the blood test, the sample was
“not something that you can subpoena to a hearing and presto magic you get a new
reading on that blood”; and that “[i]n the criminal prosecution arena” continuances are
frequently necessary because of delays incumbent in obtaining and analyzing blood
samples. When the hearing concluded the court took the matter under submission and
advised DMV’s counsel that “on February 2nd when the hearing was had and the
attorney says we still haven’t been able to get the blood from the entity that has it, I
believe that the hearing officer should have absolutely, unequivocally given him an
additional continuance to permit him to do that, and I think it’s a deprivation of
procedural due process to not permit it.”
The court granted the petition and ordered the DMV to set aside the suspension
because Kuo “was not allowed a fair opportunity to obtain significant exculpatory
evidence for the administrative hearing held on February 2, 2006.” This appeal timely
followed.
DISCUSSION
I. Standards of Review
In ruling on an application for a writ of mandate following an order of suspension,
a trial court uses its independent judgment to determine whether the weight of the
evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456457.) However, “the court must afford a strong presumption of correctness concerning
the administrative findings, and the party challenging the administrative decision bears
the burden of convincing the court that the administrative findings are contrary to the
weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817.)
On review from an order granting a writ of administrative mandamus, this court
reviews the record to determine whether the trial court’s findings are supported by
substantial evidence. We resolve all evidentiary conflicts and draw all reasonable
inferences in favor of the trial court’s decision, and may overturn the trial court’s factual
findings only if the evidence is insufficient as a matter of law to sustain them. (Lake v.
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Reed, supra, 16 Cal.4th at p. 457.) However, where the determinative issue is legal
rather than factual we exercise our independent judgment. (Manriquez v. Gourley (2003)
105 Cal.App.4th 1227, 1233.)
II. Analysis
Despite some apparent factual confusion before the trial court, the question
presented is a simple one: whether the DMV denied Kuo a fair opportunity to obtain
potentially exculpatory evidence. We conclude it did not.
The confusion, and the court’s ruling, stems from its misconception that Kuo’s
efforts at discovery were directed at obtaining his actual blood sample rather than his
blood test results. Between September 14, 2005, and January 30, 2006, Kuo sent the
DMV, the Moraga Police Department and the district attorney’s office a number of
written requests for discovery material specifically seeking the blood test results—but not
the blood sample itself.2 On February 1, 2006, the day before the hearing, Kuo for the
first time asked the DMV to subpoena the blood test results; even then, however, he did
not ask it to subpoena or otherwise obtain his blood sample. In short, while Kuo states in
his writ petition and argued in his administrative hearing that he asked the DMV to
subpoena the blood sample before the administrative hearing, he is incorrect. The
administrative record contains no evidence of such a request.
The question, then, narrows down to this: whether the DMV’s refusal to continue
the February 2, 2006, hearing in order to subpoena the blood test results violated Kuo’s
due process rights. It did not. Vehicle Code section 14104.5, subdivision (a) provides in
relevant part that: “Before a hearing has commenced, the department, or the hearing
officer or hearing board, shall issue subpoenas or subpoenas duces tecum, or both, at the
request of any party, for attendance or production of documents at the hearing.” (Italics
added.) Similarly, under Government Code section 11450.20, subdivision (a),
2
As late as March 7, 2006, in his request for review of the suspension order, Kuo
stated that the basis for the request “is simply that Mr. Kuo requested, as is his statutory
right to collect evidence that would exonerate him, a blood test result.”
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“Subpoenas and subpoenas duces tecum shall be issued by the agency or presiding officer
at the request of a party, or by the attorney of record for a party . . . .” (See also Gov.
Code, § 11450.10, subd. (a), italics added.)
Kuo’s efforts to obtain the evidence were too little and too late. He never tried to
obtain his blood sample by subpoena. Nor does the record reveal efforts by Kuo or his
attorney to directly subpoena the blood test results or request that the DMV do so until
the day before the February 2, 2006, hearing.3 Their efforts were untimely: California
Code of Regulations, title 13, section 115.05, subdivision (b) specifies that “A request for
discovery must be made at least 10 days prior to the date set for commencement of the
hearing to receive discovery prior to the hearing.” The hearing had already been
continued some five previous times since the original September 16, 2005, hearing date
and Kuo did not request a subpoena until February 1, 2006. The hearing officer was not
obligated to grant yet another continuance to accommodate his eleventh hour request.
(See generally Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 342-343
[administrative law officer may grant continuance on good cause “guided by same
principles applicable to continuances generally in adjudicative settings”; Veh. Code,
§ 14112, subd. (a).) To the extent Kuo’s petition and appeal may be construed as
challenging the denial of the continuance, the DMV correctly points out that he is
jurisdictionally barred from challenging that denial because he did not appeal it to the
superior court within 10 days of the administrative ruling. (Gov. Code, § 11524, subd.
(c).)
Nor were Kuo’s previous written requests for discovery an effective substitute for
the statutory subpoena procedures. While his letters prior to February 1, 2006, asked for
production of various discovery materials including blood test results, or followed up on
earlier such requests, not a one asked the DMV to issue subpoenas for the results or even
referred to the authorizing statutes. Under these circumstances it was not incumbent
upon the DMV to issue subpoenas that Kuo had not requested. (See Monaghan v.
3
Kuo had retained counsel at least by December 22, 2005.
6
Department of Motor Vehicles (1995) 35 Cal.App.4th 1621, 1625-1626 [letter that did
not expressly request issuance of subpoena as required by statute was insufficient to
compel witness’s attendance at administrative hearing, despite written demand for crossexamination].)
The relevant sections of the Government and Vehicle Codes provide those in
Kuo’s position the opportunity and means to subpoena evidence in advance of their
administrative hearing. That Kuo, represented by counsel, failed to properly utilize those
available mechanisms does not constitute a due process violation. Because the record
establishes that Kuo failed to properly seek to subpoena his blood test results (and never
requested the blood sample itself until his counsel made reference to his blood sample in
closing argument in the administrative hearing), the court’s finding that he was deprived
of a fair opportunity to obtain potentially exculpatory evidence is without evidentiary
support. Consequently, the judgment must be reversed.
DISPOSITION
The judgment granting the writ of administrative mandamus is reversed.
_________________________
Siggins, J.
We concur:
_________________________
Pollak, Acting P.J.
_________________________
Horner, J.*
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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