Filed 9/23/26 Howard v. Dept. of Motor Vehicles CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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has not been certified for publication or or dered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BRENT MICHAEL HOWARD, D085484
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2024-
00022158-CU-WM-NC)
DEPARTMENT OF MOTOR
VEHICLES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Steven K. Berenson, Commissioner. Reversed.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney
General, Katharine A. Tremblay and Rhea G. Mariano, Deputy Attorneys
General, for Defendant and Appellant.
Joseph K. Seipel for Plaintiff and Respondent.
Brent Michael Howard was arrested on suspicion of driving under the
influence. Because he refused to consent to chemical testing of his blood or
breath, the Department of Motor Vehicles notified him it would suspend his
driver’s license. Howard requested an “administrative per se” (APS) hearing
to challenge the suspension. At the APS hearing, the hearing officer
introduced and admitted documents provided by the DMV and then
confirmed the suspension.
Howard filed a petition for writ of mandamus, arguing the APS hearing
procedure violated his due process rights because, in his view, the hearing
officer improperly acted as an advocate for the DMV as well as a trier of fact.
The superior court granted his petition, set aside the DMV’s decision, and
reinstated Howard’s driving privileges.
The DMV appeals the superior court’s order. It asserts the APS
procedure followed in this case did not offend due process. We agree the
hearing officer did not act as an advocate for the DMV or otherwise
participate in a procedure that created a constitutionally unacceptable risk of
bias. Accordingly, we reverse.
I.
In October 2023, Howard crashed his car and a sheriff’s deputy
arrested him on suspicion of driving under the influence of alcohol. Howard
performed poorly on standardized field sobriety tests and refused to
voluntarily submit to a breathalyzer or other chemical test. After securing a
warrant, the sheriff’s department obtained a blood sample from Howard.
A.
Howard requested an APS hearing. Prior to the hearing, T. Hartman-
Cole, a DMV employee, sent a request to the San Diego Sheriff’s Office to
obtain the deputy’s sworn statement, breath and blood test results, and the
arrest report. The DMV’s driver safety branch chief subpoenaed the body-
worn camera footage and Hartman-Cole signed the declaration in support of
the subpoena.
2
Hartman-Cole forwarded seven categories of documents to Howard.
Because the subpoenaed body-worn camera videos had not been received by
December 20, 2023—the day before the scheduled hearing—the DMV
verbally requested to continue the hearing. The hearing officer granted the
request, citing “[d]ue process” as the reason. There is no indication Howard
objected to the continuance.
On December 22, 2023, Hartman-Cole provided Howard with a copy of
the video footage.
In January 2024, Howard submitted a written objection to the hearing
officer. He argued the DMV’s hearing procedure violated the ruling in
California DUI Lawyers Association v. Department of Motor Vehicles (2022)
77 Cal.App.5th 517, which enjoined the DMV from having its hearing officers
advocate for the DMV in addition to serving as factfinders. If the DMV
proceeded as anticipated, it would violate Howard’s due process right to an
impartial trier of fact. Accordingly, Howard demanded that, in addition to
the hearing officer, the DMV provide a separate advocate whose duties would
include proffering and introducing evidence. Howard did not otherwise object
to any of the documents received from law enforcement, the body-worn
camera footage, or the hearing officer’s decision to continue the hearing.
On March 19, 2024, the hearing officer convened a hearing and stated
that she would be “acting as a neutral factfinder” who was “prohibited from
and will not act as an advocate for the DMV or law enforcement.” Howard
did not appear for the hearing. At Howard’s attorney’s request, the hearing
officer confirmed that she would be introducing evidence given to the DMV by
law enforcement and that it was a contested two-party matter.
Howard’s attorney restated his concern that, by presenting evidence on
behalf of the DMV in a contested matter, the hearing officer was acting as an
3
advocate for the DMV in violation of California DUI Lawyers. Counsel
declined to further participate in the hearing for fear of violating a court
order.
The hearing officer overruled counsel’s objection and proceeded without
his participation. She then introduced and moved into evidence
eight exhibits, including the deputy’s sworn statement and arrest report, the
collision report, Howard’s driving record, and the body-worn camera footage.
In a written decision, the hearing officer upheld the suspension of
Howard’s driving privilege for one year.
B.
Howard filed a petition for writ of mandamus in the superior court. He
argued the suspension of his driver’s license violated due process and caused
irreparable harm because his job required weekly driving. He also asserted
the DMV exceeded its jurisdiction by disregarding the injunction imposed by
California DUI Lawyers and abused its discretion in deciding against him.
The DMV opposed the petition.
The superior court heard oral argument. The record does not include a
transcript of the proceedings, a statement of decision, or a settled statement.
But the court’s November 14, 2024 order granting the writ petition with
prejudice directed the DMV to set aside its decision and reinstate Howard’s
driving privileges.
II.
A trial court ruling on an application for a writ of mandate following an
order of suspension or revocation must use its independent judgment to
determine whether the weight of the evidence supports the administrative
decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) Normally on appeal, we
would “‘review the record to determine whether the trial court’s findings are
4
supported by substantial evidence.’” (Id. at p. 457.) But where the appeal
stems from the trial court’s ruling on a legal question, we exercise
independent judgment. (Bussard v. Department of Motor Vehicles (2008)
164 Cal.App.4th 858, 863.) Here, Howard challenges the procedural fairness
of his APS hearing, which also “‘is reviewed de novo on appeal because the
ultimate determination of procedural fairness amounts to a question of law.’”
(Hall v. Superior Court (2016) 3 Cal.App.5th 792, 808.)
A.
Before moving to the merits of this appeal, we address two threshold
procedural issues.
First, Howard contends the DMV did not present an adequate record to
demonstrate error because it did not provide a transcript from the trial court,
a statement of decision, or a settled statement. He explains that where the
appeal is made on the judgment roll, meaning it is based only on a clerk’s
transcript, “[t]he sufficiency of the evidence to support the findings is not
open to review.” (Wheelright v. County of Marin (1970) 2 Cal.3d 448, 454.)
Rather, the court infers the trial court made the factual findings necessary to
support the judgment under the doctrine of implied findings. (Ramirez v.
Superior Court (2023) 88 Cal.App.5th 1313, 1334.)
Although that is generally true, Howard did not ask the trial court to
make independent factual findings. Rather, he invited the court to find as a
matter of law that the hearing officer violated his due process rights by
“present[ing] the DMV’s case, and then decid[ing] the case.” The DMV
repeatedly highlighted this fact in its opposition, noting “[t]his was a case
where there were no factual disputes to resolve” and Howard “makes no
arguments as to the evidence whatsoever.” Howard did not refute these
statements in his reply. His writ petition asserted only that the DMV abused
5
its discretion by not proceeding in the manner required by law. (See Code
Civ. Proc., § 1094.5(b).) In granting the petition and setting aside the DMV’s
decision to suspend Howard’s driver’s license, the court necessarily agreed
with this argument.
We are further persuaded this is not a case requiring us to make
implied findings because, in proceedings governed by the Vehicle Code, the
trial court’s review “shall be on the record of the hearing and the court shall
not consider other evidence.” (Veh. Code, § 13559(a); see also Armondo v.
Department of Motor Vehicles (1993) 15 Cal.App.4th 1174, 1180.) Thus, not
only was the trial court not asked to make factual findings; it could not take
additional evidence. For these reasons, we need not infer the court made
factual findings on issues not presented in the briefing. Rather, we are
tasked with reviewing the administrative record and determining de novo
whether the DMV violated Howard’s due process rights by having one
hearing officer introduce evidence on behalf of the DMV, rule on the
admissibility of such evidence, and then adjudicate the hearing.
Second, Howard contends the hearing officer abused her discretion in
granting a continuance under Government Code section 11524 to await the
body-worn camera footage. Although the record lacks evidence of the
superior court proceedings, Howard agrees with the DMV that the court
expressed concern about the hearing officer’s continuance of the hearing in
this case. Because the superior court then granted the writ, Howard argues
we must presume the oral proceedings during the writ hearing revealed facts
that conclusively established an abuse of discretion.
We disagree. Howard did not argue in his briefing below, as he does
here, that the DMV violated Government Code section 11524 by not
requesting a continuance within 10 working days of when it reasonably
6
should have discovered the need for it. Rather, the only concern he expressed
about the continuance related to the due process argument. We will not
presume the trial court resolved the matter on an issue it was not asked to
decide. Howard also doubly forfeited this issue by not (1) objecting after the
hearing officer granted the continuance or during the administrative hearing
and (2) asserting it in the superior court. (Ramirez, 88 Cal.App.5th at
p. 1336.) Nor did he file a protective cross-appeal to assert the issue here.
Therefore, we decline to further consider it.
B.
Turning to the merits, the DMV argues it is not a due process violation
for the hearing officer to introduce and develop the evidence before deciding
whether a violation occurred. We agree.
Both the United States Supreme Court and the California Supreme
Court have identified the requirement of an impartial adjudicator over a
hearing as one of the “irreducible minimums” of due process. (Today’s Fresh
Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197,
212.) The due process right to “a fair tribunal” requires “one in which the
judge or other decision maker is free of bias for or against a party.” (Morongo
Band of Mission Indians v. State Water Resources Control Bd. (2009)
45 Cal.4th 731, 737.) This right is violated when a party provides “proof of
actual bias” or shows “‘the probability of actual bias on the part of the judge
or decisionmaker is too high to be constitutionally tolerable.’” (Ibid.)
Whether an intolerably high risk of actual bias exists is assessed under an
objective standard. (Today’s Fresh Start, at p. 216.)
At the same time, our high court has recognized that “administrative
hearings need not be conducted with the same rigor demanded of judicial
proceedings.” (Today’s Fresh Start, 57 Cal.4th at p. 214.) “[A]n
7
administrative procedure in which the same individual or entity is charged
both with developing the facts and rendering a final decision, and separate
adversarial advocates are dispensed with,” has been deemed “‘inquisitorial
rather than adversarial.’” (Id. at p. 220.) “‘[T]he case law, both federal and
state, generally rejects the idea that the combination [of] judging [and]
investigating functions is a denial of due process.’” (Withrow v. Larkin (1975)
421 U.S. 35, 52; Today’s Fresh Start, 57 Cal.4th at p. 221.)
California DUI Lawyers concluded the DMV’s APS structure, as it was
then structured, created an unacceptable risk of bias and ran afoul of the due
process guarantee of a fair tribunal because it allowed one individual to
advocate for the DMV as well as adjudicate. (California DUI Lawyers,
77 Cal.App.5th at pp. 530, 532.) It defined “advocating” on the DMV’s behalf
as “present[ing] the DMV’s case and ‘promot[ing] driver safety,’ with no
corresponding duty to present any evidence that would support the position
of the driver at the hearing.” (Id. at p. 533, fn. 5.) The California DUI
Lawyers Association conceded, however, that under Today’s Fresh Start, “the
DMV may task the same person with both collecting and developing the
evidence and rendering a final decision.” (Ibid.)
Since then, appellate opinions have diverged as to the legal framework
they applied in reviewing challenges to the DMV’s APS procedure. One line
of cases, consistent with California DUI Lawyers, focused on “assessing the
administrative record and the revocation decision to see if the public hearing
officer actually acted as both an adjudicator and an advocate, or merely acted
as an adjudicator and a collector and developer of evidence.” (Knudsen v.
Department of Motor Vehicles (2024) 101 Cal.App.5th 186, 193.) In those
cases, if the evidence demonstrated the hearing officer acted as an advocate,
the court would find “the driver’s due process right to an impartial
8
adjudicator [was] violated.” (See ibid.; Clarke v. Gordon (2024)
104 Cal.App.5th 1267, 1270, Kazelka v. Department of Motor Vehicles (2025)
109 Cal.App.5th 1239, 1255; Romane v. Department of Motor Vehicles (2025)
110 Cal.App.5th 1002, 1018–1020.)
Chi v. Department of Motor Vehicles (2026) 119 Cal.App.5th 473
recently opined that these cases took “a wrong turn.” (Id. at p. 484.) In Chi’s
view, the prior decisions contradict Supreme Court precedent by focusing on
the appearance of bias versus actual disqualifying interests. (Id. at p. 486.)
If the hearing officer’s action “looks like advocacy, the implication is that the
adjudicator appeared to favor” the DMV even though, as Chi points out, the
reviewing court “never identifies, or analyzes evidence of, any circumstances
that would tempt an average adjudicator to favor the department.” (Ibid.)
Chi would find a due process violation only in the context of “‘extreme facts’”
showing a disqualifying interest such as a financial interest in the outcome, a
personal prejudice against a party, or a personal grudge against a party
based on a history of conflict. (Id. at pp. 480–481.)
Our Supreme Court granted review of Romane to consider “[u]nder
what circumstances . . . an [APS] hearing officer’s relationship with the
Department of Motor Vehicles (DMV) violate[s] a driver’s due process right to
an impartial adjudicator by creating an unacceptable risk of bias during a
DMV driver’s license suspension hearing.” (Romane v. Department of Motor
Vehicles, S291093, Supreme Ct. Mins., Aug. 13, 2025.) The court likewise
granted review of Chi pending consideration of Romane. (Chi v. Department
of Motor Vehicles, S296201, Supreme Ct. Mins., May 13, 2026.)
For purposes of resolving the instant appeal, we conclude the DMV’s
actions did not violate due process under either line of authority. The
evidence shows the hearing officer introduced and admitted law enforcement
9
evidence that had been requested by other DMV employees. Such an
inquisitorial function has long been authorized under federal and state due
process law (see Withrow, 421 U.S. at p. 52; Today’s Fresh, 57 Cal.4th at
pp. 220–221), as conceded by counsel for the driver in California DUI
Lawyers, 77 Cal.App.5th at p. 533, fn. 5. Howard’s attempt to recast these
actions as advocacy is not supported by existing authority.
The question then is whether Howard otherwise pointed to objective
evidence of an intolerably high risk of bias. (See Today’s Fresh, 57 Cal.4th at
p. 216.) Howard argued below that the hearing officer “advocated for the
DMV in requesting to continue the matter because she wanted to be able to
introduce the subpoenaed [body-worn camera] footage at the hearing, and
then acted as a factfinder by granting her continuance request.” The
continuance decision form indicates only that the request was made verbally
by the DMV, so it is not evident it was made by the hearing officer. But even
assuming it was, Howard has not persuaded us this action, or the hearing
officer’s decision to grant the request, violated due process.
These actions do not meet either standard. As we acknowledged in
Romane, the law enforcement officer’s sworn statement and arrest report are
routinely admitted into evidence at APS hearings. (Romane, 110 Cal.App.5th
at p. 1018.) Where, as here, the sworn report does not contain all the
relevant information, the unsworn arrest report is also appropriately
considered to satisfy Vehicle Code section 13380’s requirement that the
arresting officer’s sworn report contain “‘all information relevant to the
enforcement action.’” (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158–
159, italics omitted.) And in this case, the arrest report referenced the body-
worn camera footage. DMV employees, not the hearing officer, subpoenaed
the videos. Thus, the hearing officer merely postponed the hearing to await
10
relevant evidence that had already been requested. Under Romane, we
conclude this constitutes collecting the evidence and developing the facts.
Howard provides no authority for his apparent assertion that due
process only allows the hearing officer to collect evidence the hearing officer
is legally required to consider under the Vehicle Code. Yet the law governing
administrative proceedings provides otherwise, explaining that “[a]ny
relevant evidence shall be admitted if it is the sort of evidence on which
responsible persons are accustomed to rely in the conduct of serious affairs.”
(Gov. Code, § 11513(c).)
More importantly, given it provides an objective depiction of what
occurred, body-worn camera footage is not inherently biased. In fact, in
Romane, the driver offered the body-worn camera footage into evidence, not
the DMV. (Romane, 110 Cal.App.5th at p. 1019.) As a result, it is not
evident the hearing officer’s actions fall under California DUI Lawyer’s
definition of advocating because body-worn camera footage may be “evidence
that would support the position of the driver at the hearing.” (California DUI
Lawyers, 77 Cal.App.5th at p. 533, fn. 5.)
Although Howard argues most of the videos here were prejudicial, he
does not explain how or why they were so prejudicial as to offend due process.
He also forfeited this argument by not making it at the APS hearing or in his
writ briefing. We are thus not convinced that any aspect of the hearing
officer’s procedural handling of the case veered into constitutionally
prohibited advocacy.
We reach the same conclusion under the standard applied in Chi.
Howard provided no “specific circumstances” of an unacceptable risk of bias
to undermine the default “presumption of ‘honesty and integrity in those
serving as adjudicators.’” (Chi, 119 Cal.App.5th at pp. 481, 484, 486.)
11
Specifically, the record contains no evidence the hearing officer had a
financial interest in the outcome of the case, a personal prejudice relating to
people with Howard’s characteristics, or a personal grudge against Howard.
(Id. at pp. 480–481; see also People v. Nieves (2021) 11 Cal.5th 404, 499.)
There also is no evidence that allowing the hearing officer to collect and
develop the evidence before adjudicating the matter incentivized her to favor
the department. (See Chi, at p. 484.) And because body-worn camera footage
could favor either party, allowing the hearing officer to await and admit it
does not objectively present a circumstance creating an unacceptable risk of
bias. Even if the evidence favored the DMV, that alone, without evidence of
some additional disqualifying interest, does not undermine the presumption
that the hearing officer adjudicated with honesty and integrity.
Accordingly, we conclude the procedure the hearing officer employed
during the APS hearing in this case falls short of the “extreme facts” that
offend due process. (Nieves, 11 Cal.5th at p. 499.)
12
III.
We reverse with directions to the superior court to vacate the order
granting Howard’s petition for writ of mandate and instead enter a new order
denying it. The DMV is entitled to its costs on appeal.
CASTILLO, Acting P. J.
WE CONCUR:
RUBIN, J.
BERMÚDEZ, J.
13