Filed 8/28/26 Freedman v. Dept. of Motor Vehicles CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
ARI FREEDMAN,
Plaintiff and Appellant, A173607
v. (Mendocino County
DEPARTMENT OF MOTOR Super. Ct. No. 24CV00677)
VEHICLES,
Defendant and Respondent.
Ari Freedman appeals from the trial court’s denial of his petition for a
writ of mandate challenging the suspension of his driving privileges by
respondent Department of Motor Vehicles (DMV). He contends that the
DMV’s administrative hearing officer violated his due process rights because
she both introduced evidence at the hearing and decided the case. We
disagree for the reasons stated in our recent decision in Chi v. Department of
Motor Vehicles (2026) 119 Cal.App.5th 473, review granted May 13, 2026,
S296201 (Chi). We also reject Freedman’s contention that substantial
evidence does not support that he refused to take a chemical test after he was
arrested for driving under the influence (DUI). We therefore affirm.
I. BACKGROUND
On the night of September 21, 2022, a California Highway Patrol
(CHP) officer stopped Freedman’s car after he observed it traveling over 30
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miles per hour over the speed limit. Freedman abruptly pulled over to the
shoulder and exited the car, even though the officer instructed him to get
back into the driver’s seat. As the officer approached Freedman, he noticed a
young boy sitting in the rear passenger seat. After Freedman provided the
officer with his insurance and registration documents, the officer again told
him to sit in the car. Freedman did not appear to understand the request.
Instead, he told the officer, “ ‘when you pulled me over, I wasn’t driving, I was
out here looking at my car.’ ” He also refused to get back into his car and
denied that he had consumed any alcohol or drugs. The officer, however,
observed Freedman’s “eyes to be red and watery” and smelled a strong odor of
alcohol from Freedman’s breath and person. His speech was also “slow,
slurred, repetitive and at [times] incoherent.”
Based on these observations, the officer conducted a DUI investigation.
He first attempted to conduct a series of field sobriety tests, but Freedman
refused to perform them. At that point, the officer arrested Freedman and
placed him in the rear seat of his patrol car. He advised Freedman of the
implied consent law (Veh. Code, § 23612), and Freedman agreed to take a
chemical breath test.1 The officer repeatedly explained how to provide a
breath sample, but, according to the officer, Freedman “did not listen” to him.
Freedman initially “attempted to forcibly spit/blow into the device which did
not work.” He then “attempted short blows into the machine which did not
work.” After multiple failed attempts, the officer decided to obtain a warrant
for a blood test and transported Freedman to the hospital. Despite reading
the chemical test admonition on “the back of the DS 367” form to Freedman
multiple times, Freedman “would not answer if he would provide a chemical
breath or blood test.” After a warrant was obtained, the officer showed it to
1 All further statutory references are to the Vehicle Code.
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Freedman and explained what it was. Freedman still refused the blood test
and “started begging to do a chemical breath test.” He then tensed up his
arm to avoid his blood being drawn. Several officers had to restrain
Freedman in order to draw his blood.
Freedman’s counsel appeared at the DMV’s administrative hearing in
April 2024. Freedman was not present. At the outset, the hearing officer
explained that she was “prohibited from and w[ould] not advocate for the
[DMV] or any law enforcement.” She continued that her role was “to simply
review the evidence provided, ask necessary questions of witnesses, and
make a legal ruling and determination.” Counsel objected to “a single
hearing officer [serving] as adjudicator and advocate.” The hearing officer
reiterated that she would not advocate for the DMV. The hearing officer then
introduced and moved several documents from the DMV into evidence, over
counsel’s hearsay objections. These documents included the CHP officer’s
sworn statement, the arrest report, and video camera footage from the arrest.
No witnesses testified. After the hearing, the hearing officer issued a
decision that reimposed the suspension of Freedman’s driving privileges. The
decision found, among other things, that Freedman was admonished but
refused or failed to complete a chemical test.
Freedman filed a petition for writ of mandate in the trial court to set
aside the suspension, arguing that his due process rights were violated based
on the hearing officer’s dual role as advocate and adjudicator. The petition
also alleged that the CHP officer failed to offer Freedman the blood test after
Freedman was incapable of providing a breath sample. The court denied the
petition, finding no due process violation because the hearing officer “may
collect and develop evidence without acting as an advocate.” It further found
that Freedman refused to complete the breath test because he “was
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intentionally not following instructions” and made “it impossible to collect a
viable breath sample.”
Freedman timely appealed.
II. DISCUSSION
A. Law and Standard of Review
Under California’s implied consent law, a driver is deemed to have
consented to a blood or breath test to determine their blood alcohol content if
the driver is lawfully arrested for driving under the influence. (§ 23612,
subd. (a)(1)(A).) If a driver refuses to submit to or complete a chemical test
in this circumstance, the DMV may suspend the driver’s license for one year.
(§ 13353, subd. (a)(1).) The driver may challenge the suspension by
requesting an administrative hearing. (§ 13558, subd. (a).) The hearing
officer will, in turn, sustain the suspension if there was reasonable cause to
believe that the driver: (1) drove under the influence in violation of the law;
(2) was arrested or lawfully detained; (3) refused or failed to complete
chemical testing upon request by a peace officer; and (4) was advised of the
consequences of refusing to submit to or complete testing. (§ 13557, subd.
(b)(1)(A)–(D).)
In 2022, the Court of Appeal in California DUI Lawyers Assn. v.
Department of Motor Vehicles (2022) 77 Cal.App.5th 517 concluded that
“combining the roles of advocate and adjudicator in a single person employed
by the DMV violates [a driver’s] due process” right to an impartial
adjudicator. (Id. at p. 532.) In response, the DMV changed its policy to
specify “that the hearing officer acts only as a neutral trier of fact, [and] does
not represent or advocate for the department . . . . Hearing officers are
instructed to introduce any relevant evidence received from law
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enforcement, ask clarifying questions if necessary, and rule on objections.”
(Chi, supra, 119 Cal.App.5th at p. 479.)
We review the denial of a writ of mandate following an administrative
order suspending a driver’s license for substantial evidence. (Lake v. Reed
(1997) 16 Cal.4th 448, 456–457.) We review due process claims de novo.
(Cardona v. Soto (2024) 105 Cal.App.5th 141, 150.)
B. Analysis
Notwithstanding the DMV’s policy change, Freedman argues that he
was denied due process because the hearing officer acted both as a
prosecutor by introducing evidence and as an adjudicator by deciding the
case. He contends that this “create[d] the appearance of unfairness.” We
dismiss Freedman’s arguments based on our recent holding in Chi. There,
the driver raised similar due process arguments against the DMV in
challenging his license suspension. (Chi, supra, 119 Cal.App.5th at p. 480.)
We concluded that a hearing officer “may introduce relevant evidence, ask
clarifying questions, and rule on objections, which are all tasks consistent
with the role of a neutral fact finder.”2 (Id. at p. 483.) We continued that
“[t]his combination of investigation and factfinding roles is inquisitorial,
rather than adversarial, and does not, by itself, offend due process.” (Ibid.)
We further held in Chi that “a mere appearance of bias does not violate
the due process clause.” (Chi, supra, 119 Cal.App.5th at p. 484, italics
added.) Indeed, the DMV specifically instructs its hearing officers to act as a
2 We need not address Freedman’s argument that the hearing officer is
not required to consider any evidence at an administrative hearing. Even
assuming that were true, the hearing officer’s introduction of relevant
documents that “are routinely admitted into evidence,” including a CHP
officer’s sworn statement, does not constitute advocacy for the DMV.
(Romane v. Department of Motor Vehicles (2025) 110 Cal.App.5th 1002, 1018,
review granted August 13, 2025, S291093.)
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neutral fact finder and absent “extraordinary facts, we are skeptical that a
court can accurately detect favoritism of an unconstitutional magnitude . . .
from a routine task like introducing relevant documents into evidence.” (Id.
at pp. 486–487.)
Freedman points to nothing that distinguishes his due process claim
from the one we rejected in Chi. Nor does he provide us with any reason to
reconsider our decision in Chi. We therefore follow Chi in rejecting his due
process claim.
Freedman also argues that because he was incapable of completing the
breath test, the CHP officer should have offered him the blood test pursuant
to section 23612, subdivision (a)(2)(A) but failed to do so. In making this
argument, he appears to contend that there is no substantial evidence that
he refused to submit to the breath test. We are unpersuaded. The record
shows that Freedman did not follow the CHP officer’s repeated instructions.
First, he “attempted to forcibly spit/blow into the device which did not work.”
Then he “attempted short blows” which also did not work. This conduct is
more than sufficient to support the hearing officer’s finding that he refused
to submit to a breath test. (Garcia v. Department of Motor Vehicles (2010)
185 Cal.App.4th 73, 83 [ineffectually trying to blow into the device
established a refusal to submit].) And “[o]nce the driver refuses to take any
one of the three chemical tests, the law does not require that he later be
given one when he decides . . . he is ready to submit.” (Dunlap v.
Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 283.)
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III. DISPOSITION
The judgment is affirmed.
CHOU, J.
WE CONCUR.
JACKSON, P. J.
SIMONS, J.
A173607/ Freedman v. DMV
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