Bocanegra v. Dept. of Motor Vehicles CA5

Filed 11/6/26 Bocanegra v. Dept. of Motor Vehicles CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT ALEX BOCANEGRA, F089990 Plaintiff and Appellant, (Super. Ct. No. BCV-24-101487) v. DEPARTMENT OF MOTOR VEHICLES et al., OPINION Defendants and Respondents. APPEAL from an order of the Superior Court of Kern County. Gregory A. Pulskamp, Judge. Middlebrook & Associates, Richard O. Middlebrook and Gabrielle Burnett for Plaintiff and Appellant. Rob Bonta, Attorney General, Chris A. Knudsen and Kenneth C. Jones, Deputy Attorneys General, for Defendants and Respondents. -ooOoo-  This appeal involves the suspension of appellant Alex Bocanegra’s driver’s license following an administrative per se (APS) hearing. An administrative hearing officer (AHO) for respondent Department of Motor Vehicles (DMV) concluded that suspension was appropriate because Bocanegra had refused to voluntarily submit to a chemical test to determine his blood-alcohol content (BAC). The AHO’s decision was subsequently upheld by the Kern County Superior Court. In this appeal, Bocanegra contends that: (1) the court erred by finding he had been properly admonished regarding the consequences of refusing to submit to a BAC chemical test; and (2) his due process rights were violated because the AHO acted as an advocate for the DMV and the adjudicator. We affirm. APS SYSTEM In California, if a driver refuses to submit to chemical tests that determine BAC, the DMV is required to suspend the driver’s license. (Veh. Code, 1 §§ 13353, subds. (a), (d), 23140; Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 99.) However, drivers have a right to an administrative hearing, that is an APS hearing, in order to challenge the suspension. (§ 13558, subd. (a); Hall v. Superior Court (2016) 3 Cal.App.5th 792, 804 (Hall).) At the APS hearing, an AHO must determine whether: (1) the arresting officer had reasonable cause to believe the driver was driving under the influence; (2) the driver was lawfully arrested; (3) the driver was properly advised of the consequences of failing to submit to or complete a BAC chemical test; and (4) the driver refused to submit to or complete the BAC chemical test. (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1131; Clarke v. Gordon (2024) 104 Cal.App.5th 1267, 1271, fn. 2 (Clarke); Hall, at p. 804.) The Legislature crafted the APS laws to protect the public during the time lag that often occurs between an arrest and a conviction for driving while intoxicated or with a prohibited BAC. (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155.) As a result, APS hearings are intended to be expedited (Lake v. Reed (1997) 16 Cal.4th 448, 455, 1 Unless otherwise noted, all further statutory references are to the Vehicle Code. 2. fn. 2 (Lake)), and the rules governing the admissibility of evidence are relaxed. (McDonald, at p. 159.) The DMV bears the burden of demonstrating all facts necessary to support a suspension. (Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536; Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 388.) Since April 2022, the DMV has been enjoined from requiring that AHO’s at APS hearings act as both the adjudicator and the DMV’s advocate. (California DUI Lawyers Association v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, 530–533, 538 (CDLA).) The injunction was necessary because DMV policy mandated that AHO’s act as both the adjudicator and the DMV’s advocate, which created a constitutionally intolerable probability of bias and thus, deprived drivers of their due process right to a constitutionally impartial adjudicator. (Id. at pp. 526, 532–533 & fn. 5.) PROCEDURAL BACKGROUND On January 2, 2024, at 11:15 p.m., Bocanegra was arrested for violation of section 23152, subdivision (a) (driving under the influence of alcohol). Bocanegra refused to submit to a BAC chemical test, which resulted in the suspension of his license pursuant to section 13353. On January 4, 2024, Bocanegra requested an APS hearing under section 13558. On January 8, 2024, the DMV sent Bocanegra notice of the APS hearing date and time. The notice also explained that the APS hearing would “be conducted by a Hearing Officer [who] will develop the facts and render a final decision on your matter but does not advocate on behalf of the [DMV]. The Hearing Officer will ensure that all relevant evidence is considered. The Hearing Officer will examine and admit the DMV’s official records, [as] well as the official records of the agency that arrested you.” APS Hearing On April 3, 2024, an APS hearing was conducted pursuant to section 13557. At the hearing, the AHO explained the issues to be decided and that he would be “acting as a neutral factfind[er],” he was “prohibited from and will not act as an advocate for the DMV or law enforcement,” and his “role [was] to review the evidence provided, ask 3. clarifying questions of witnesses if necessary, and make legal rulings and determinations under the relevant statutes if necessary.” The AHO offered four exhibits: the DS-367 form, 2 the arrest report, the traffic collision report, and the DMV’s driver record printout. Bocanegra’s counsel made an unspecified general “objection” to the arrest report and the traffic collision report, which were overruled, and the AHO admitted all four documents. Bocanegra’s counsel moved into evidence bodycam videos 3 of the encounter between Bocanegra and law enforcement and then gave a closing statement. Counsel argued in part that the bodycam videos showed the encounter was used by law enforcement as part of a training exercise, but the videos never show a proper admonishment regarding implied consent and the consequences of refusing to submit to a chemical test. Instead, the videos show an officer interjecting himself into the questioning of Bocanegra by giving an incomplete admonishment. Counsel averred that because the bodycam videos revealed that Bocanegra was never properly admonished regarding the consequences of refusing to submit to a BAC chemical test, his refusal was uninformed and not an actual refusal for purposes of section 13353. The matter was then submitted for decision. AHO’s Decision On April 10, 2024, the AHO issued a written decision that upheld the DMV’s administrative suspension of Bocanegra’s license, which was to last from April 26, 2024, to April 25, 2025. The AHO found that Bocanegra had been lawfully arrested, had been properly admonished about the consequences of failing to consent to a BAC chemical 2 A DS-367 is a sworn DMV form that is used by law enforcement in connection with DUI cases. (Doe v. Department of Motor Vehicles (2024) 102 Cal.App.5th 1004, 1014.) 3 Bocanegra’s attorney referred to the videos as being “MVARS” recordings. “MVARS” means “mobile video and audio recording systems” (People v. Pickard (2017) 15 Cal.App.5th Supp. 12, 14, fn. 1), and is generally associated with law enforcement videos (see King v. State of California (2015) 242 Cal.App.4th 265, 270). The record in this appeal, however, contains video footage from individual police officers’ body cameras, and the parties refer to this evidence as “bodycam videos.” Given the record before us, we will follow the parties and characterize the video footage as coming from the “bodycams” of individual officers. 4. test, and had refused to consent to a BAC chemical test. With respect to whether Bocanegra had been properly admonished as required by the implied consent law, the AHO explained: “The evidence submitted for review includes the DS-367 form and Exhibit A, [the bodycam videos]. According to the DS-367 form, the arresting officer attested that the full admonition, as stipulated by California’s implied consent law, was read to [Bocanegra]. [Bocanegra] explicitly declined to submit to a breath or blood test when asked. Exhibit A, the video [footage], contains extensive dialogue with [Bocanegra], however, critical portions of this dialogue are inaudible. Notably, at the 23:10 mark of the video, an audible exchange occurs where the officer explicitly asks [Bocanegra] if [he] refuse[d] to perform any test, to which [Bocanegra] answers no. The officer then informs [Bocanegra] that [his] license could be suspended for such refusal, yet [Bocanegra] maintains [his] refusal. “The evidence provided, specifically the DS-367 form and Exhibit A, supports the conclusion that [Bocanegra] was made aware of the refusal consequences. While the video’s inaudible portions introduce a degree of ambiguity, the explicit question from the officer regarding refusal and the subsequent clarification of potential license suspension sufficiently demonstrates that [Bocanegra] was adequately informed. “The claim presented by [Bocanegra’s counsel] is determined to be without merit. [Bocanegra’s] refusal, despite being informed of the consequences, substantiates the charges as presented.” Post-Decision Events On April 30, 2024, Bocanegra filed an administrative petition for writ of mandate with the Kern County Superior Court to challenge the suspension determination. On December 18, 2024, the trial court denied the writ. The court denied the writ because “the hearing officer did not appear to engage in impermissible advocacy and [Bocanegra] did not overcome the legal presumptions favoring [the DMV]. The administrative findings were supported by the weight of the evidence.” On May 19, 2025, the DMV issued an order of revocation. The order informed Bocanegra that his license would be revoked from May 23, 2025, to May 2, 2027. 5.  On June 13, 2025, Bocanegra filed a notice of appeal that challenged the trial court’s denial of his writ of mandate. FACTUAL BACKGROUND On January 2, 2024, Bocanegra was on Pico Boulevard in Los Angeles when he rear-ended a vehicle that was stopped at a red light. Several Los Angeles Police Department officers responded to the collision, including officers Major and Miller. 4 When Major approached Bocanegra, he observed that Bocanegra’s eyes were red and watery, Bocanegra was swaying back and forth, and Bocanegra’s speech was slurred. Bodycam Footage 5 Bodycams captured the interactions with Bocanegra and the various police officers. The bodycam videos end at the latest at 11:24 p.m. In general, the bodycams capture officers attempting to speak with and ask Bocanegra questions, officers handcuffing Bocanegra, and Bocanegra behaving in an uncooperative and often belligerent manner. In part, Bocanegra refused to answer questions, refused to perform tests, swore at the officers, and said he wanted to take a “swing” at an officer. Bocanegra’s words sounded thick and somewhat slurred. As relevant to this appeal, bodycam footage from Miller revealed that, at approximately 11:10 p.m., Bocanegra was informed that the officers were conducting a DUI investigation. Miller then asked Bocanegra, “Are you willing to answer his questions or perform any tests?” After Bocanegra responded, “F[***] no,” Miller replied, “Okay. You understand in the state of California if you refuse your license can be automatically suspended. When you get your license, you agree to these tests at any time.” Bocanegra gave an inaudible response, to which Miller asked whether Bocanegra 4 Bocanegra asserts without contradiction from the DMV that Miller was a training officer and Major was in training. 5 The parties have submitted bodycam footage from several officers. We have reviewed all the footage submitted. Because we find the bodycam footage from Miller to be the most relevant, our opinion draws primarily from Miller’s bodycam. 6. was lying when he got his license. After Bocanegra asked repeatedly whether Miller was serious, Major attempted to ask Bocanegra additional questions from a checklist, and Miller walked away to speak with another officer. Miller commented to the other officer that Bocanegra was likely “going to be a refusal,” Bocanegra had refused to submit to tests despite affirmations made in the licensing process, and Bocanegra had very watery blood-shot eyes. The other officer responded in part that there were new procedures for procuring a warrant before obtaining a blood test. Miller and the other officer later commented on Bocanegra’s behavior, and agreed that, for Bocanegra’s safety “and everything,” Bocanegra would be taken to the station where officers could attempt to administer field sobriety tests. Miller walked back to Bocanegra and several other officers. Bocanegra made a comment about wanting “to take a swing” at one of the officers, which caused the officers in the group to laugh and Bocanegra to become more agitated. Miller told Bocanegra to calm down and then spoke to Major. Miller told Major that once a receipt from the tow truck was obtained, Bocanegra would be taken to a patrol vehicle and, if Bocanegra wanted to do tests at the police station, he could. Bocanegra was placed in Miller’s patrol vehicle, and Miller and his partner began to drive to the police station at 11:17 p.m. The bodycam video does not indicate that the patrol vehicle’s lights or sirens were engaged. Miller told Bocanegra about being able to prove that he was not drunk and being able to walk out of the police station, but then changed the subject after Bocanegra made an inaudible response. The patrol vehicle arrived at the police station, and Bocanegra entered the station at 11:22 p.m. The bodycam video ended seconds later. DISCUSSION I. DUE PROCESS A. Parties’ Arguments Bocanegra contends in part that his due process rights were violated because the AHO acted in the dual capacity of advocate for the DMV and adjudicator. Bocanegra 7. argues that due process requires a separation of functions in administrative hearings like the APS hearing in this case. Bocanegra also argues that the Administrative Procedures Act forbids an AHO from acting in the dual roles of adjudicator and advocate. Despite these constitutional and statutory prohibitions, Bocanegra avers that because the AHO is the DMV’s representative at the APS hearing, introduces and admits evidence, and then issues a decision on behalf of the DMV, it is apparent the AHO acts in the prohibited dual capacity of advocate and adjudicator. 6 The DMV contends that Bocanegra’s due process rights were not violated. The DMV argues that the APO is presumed to be impartial and there is no evidence to rebut that presumption. The DMV asserts that the record shows Bocanegra’s counsel was permitted to present her case without interruption and the AHO merely collected, developed, and admitted evidence, which are not the acts of an advocate. B. Legal Standard Challenges to the procedural fairness of an administrative hearing present a question of law that is reviewed de novo on appeal. (Romane v. Department of Motor Vehicles (2025) 110 Cal.App.5th 1002, 1016, review granted Aug. 13, 2025, S291093 6 Bocanegra also spills a great deal of ink explaining why he thinks that our opinion in Knudsen v. Department of Motor Vehicles (2024) 101 Cal.App.5th 186 (Knudsen), a case which established the framework for determining whether a pre-CDLA APS hearing violated a driver’s constitutional right to an impartial adjudicator, was wrongly decided. Specifically, Bocanegra argues that Knudsen “perverted” the holding of CDLA, “turn[ed] black letter law upside down,” improperly relied on a footnote in CDLA that was dicta, and failed to properly evaluate controlling law on the issue of due process. Bocanegra then requests that we disavow Knudsen and create a split of authority both with other appellate districts and within our own district. Despite his obvious displeasure with Knudsen and its progeny, Bocanegra cites no appellate court case that has accepted even one of his criticisms. Because we are unpersuaded by his arguments, we decline Bocanegra’s invitation to disavow Knudsen. 8. (Romane); 7 Knudsen, supra, 101 Cal.App.5th at p. 210.) An irreducible minimum of the federal and California constitutional rights to due process is that an impartial adjudicator must preside over a hearing. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212 (Today’s Fresh Start); Knudsen, at pp. 197–198.) The requirement of an impartial adjudicator is violated if the adjudicator is actually biased or operates under a constitutionally intolerable probability of bias. (Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737; Knudsen, at p. 198.) Combining the roles of adjudicator and advocate into a single person is a violation of the due process right to an impartial adjudicator because it creates a constitutionally intolerable probability of bias. (Kazelka v. Department of Motor Vehicles (2025) 109 Cal.App.5th 1239, 1255 (Kazelka); Knudsen, at p. 199; CDLA, supra, 77 Cal.App.5th at p. 532.) A violation of the due process right to an impartial adjudicator is a structural error that is not subject to a harm analysis. (Clarke, supra, 104 Cal.App.5th at p. 1277; Knudsen, at p. 206.) The complaining party has the burden of demonstrating a due process violation based on the absence of a constitutionally impartial adjudicator by “com[ing] forward with ‘specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias.’ ” (Today’s Fresh Start, at p. 221.) C. Analysis It is the driver’s burden to show through specific evidence and argument, and without a presumption that an AHO followed a policy that required him or her to be the 7 Bocanegra asserts that our Supreme Court has determined Romane conflicts with CDLA based on the grant of review in Romane. As part of the grant of review, the Supreme Court stated: “Pending review, the opinion of the Court of Appeal … may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion … to choose between sides of any such conflict.” (Romane v. Department of Motor Vehicles (2025) 335 Cal.Rptr.3d 275, 275– 276.) Notably, the plain language of this grant of review does not mention CDLA, does not state that a conflict actually exists, and permits citation to Romane for its persuasive value only, irrespective of any actual or potential conflict with published authority. We cannot agree that the Supreme Court has determined Romane conflicts with CDLA. 9. DMV’s advocate, 8 that an AHO was not constitutionally impartial. (See Today’s Fresh Start, supra, 57 Cal.4th at p. 221; cf. Knudsen, supra, 101 Cal.App.5th at pp. 206–207.) “Otherwise, the presumption that agency adjudicators are people of ‘ “conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances” ’ will stand unrebutted.” (Today’s Fresh Start, at pp. 221–222.) Bocanegra has not met his burden. At Bocanegra’s APS hearing, the AHO explained what issues would be decided and explained that he would be “acting as a neutral factfind[er].” The AHO advised that he was “prohibited from and will not act as an advocate for the DMV or law enforcement,” and was to “review the evidence provided, ask clarifying questions of witnesses if necessary, and make legal rulings and determinations under the relevant statutes [as] necessary.” This was consistent with both the CDLA injunction and the description of the AHO’s role in the DMV’s pre-hearing notice to Bocanegra. The AHO then offered and admitted four records into evidence as exhibits, including the sworn DS-367 form, and Bocanegra’s counsel objected to the arrest report and the traffic collision report. However, because counsel merely stated she “objected” to the two reports without specifying any grounds for her objection, the objection was properly overruled. (People v. Jackson (2016) 1 Cal.5th 269, 366.) No witnesses were called or examined. Bocanegra’s counsel was permitted to make her arguments without objection or interruption and was able to successfully move the bodycam videos of the encounter 8 We note Knudsen placed the burden on the DMV to establish that an AHO did not act as an advocate. (Knudsen, supra, 101 Cal.App.5th at p. 207.) Knudsen did so because, at the time of the APS hearing at issue in that case, the DMV had a policy that expressly required AHOs to act as the DMV’s advocate and it is presumed that a government agency follows its policies. (Knudsen, at pp. 206–207; CDLA, supra, 77 Cal.App.5th at pp. 526, 532–533 & fn. 5.) Since the CDLA injunction in 2022 that enjoined this policy had been in place for two years by the time of Bocanegra’s APS hearing, the DMV was no longer operating under a policy that required AHOs to act as advocates. (Chi v. Department of Motor Vehicles (2026) 119 Cal.App.5th 473, 478– 479, review granted May 13, 2026 S296201 (Chi).) Without the express policy requiring an AHO to act as an advocate, there is no longer a basis to place a burden on the DMV to show its AHOs did not act as advocates. (Cf. Knudsen, at pp. 206–207.) 10. into evidence without objection. After Bocanegra’s counsel concluded her arguments, the hearing ended. Further, there are no clear mischaracterizations of evidence in the AHO’s decision that would indicate advocacy. (Cf. Knudsen, supra, 101 Cal.App.5th at pp. 210–213 [explaining why the AHO’s actions demonstrated that the AHO had unconstitutionally acted as the DMV’s advocate].) Accordingly, there are no acts of advocacy discernable from this record. Bocanegra argues that because the AHO is the only DMV representative at the APS hearing, the AHO cannot be anything other than the DMV’s advocate. There are two related and implied premises to this argument, both of which are infirm. First, the argument assumes that an AHO cannot both adjudicate and collect and develop evidence in a neutral fashion. However, it is well established that a government agency may constitutionally permit a single person within that agency to act as both an adjudicator and as a collector and developer of evidence in the same proceeding. (Today’s Fresh Start, supra, 57 Cal.4th at p. 220; Romane, supra, 110 Cal.App.5th at pp. 1014–1015; Kazelka, supra, 109 Cal.App.5th at p. 1255; Knudsen, supra, 101 Cal.App.5th at p. 199; CDLA, supra, 77 Cal.App.5th at p. 533, fn. 5.) That is precisely what the AHO did in this case. Second, Bocanegra’s argument implicitly posits that an APS hearing must follow an adversarial trial model by having a separate designated prosecutor. However, it is well established that administrative agencies are not required to import the full adversarial trial model into all administrative contexts. (Today’s Fresh Start, supra, 57 Cal.4th at pp. 214, 220; Chi, supra, 119 Cal.App.5th at p. 482, 484 [“Essentially, Chi is complaining that the [APS] hearing does not follow the adversarial trial model, where the advocates introduce evidence and a judge rules on objections. That train left the station decades ago.”].) Again, it is universally agreed that the DMV may charge the same AHO with both adjudicating the matter and collecting and developing evidence at the APS hearing. (Chi, at p. 484; Romane, supra, 110 Cal.App.5th at p. 1021; Kazelka, supra, 109 Cal.App.5th at p. 1255; Clarke, supra, 104 Cal.App.5th at p. 1275–1276; Knudsen, 11. supra, 101 Cal.App.5th at p. 207; CDLA, supra, 77 Cal.App.5th at p. 533, fn. 5 [“CDLA concedes the DMV may task the same person with both collecting and developing the evidence and rendering a final decision. [Citation.] He or she must refrain, however, from advocating on behalf of the DMV as the [DMV policy] currently mandates ….”].) 9 None of these cases suggest that a different conclusion should be reached because the AHO is the DMV’s representative and the only other party present besides the driver/the driver’s counsel. Indeed, one court has expressly held that the omission of a separately designated prosecutor does not “ ‘transmute the [AHO] into prosecutor’ or violate due process.” (Chi, at p. 483.) To the extent that Bocanegra contends the AHO’s acts of offering and admitting evidence are the acts of an advocate, we disagree. The AHO in this case admitted documents that were forwarded to the DMV by law enforcement. Such documents generally establish a prima facie case for license suspension and are routinely admitted and considered in APS hearings. (See Lake, supra, 16 Cal.4th at p. 451; Gerwig v. Gordon (2021) 61 Cal.App.5th 59, 65–66; Romane, supra, 110 Cal.App.5th at pp. 1016– 1017.) When an AHO in an APS hearing introduces and admits “the documents that law enforcement duly forward[] to the DMV, which are routinely admitted into evidence at 9 Bocanegra claims without explanation that CDLA’s footnote five is the lowest form of dicta and should be ignored. We disagree. “Dicta” involves “ ‘observations and statements unnecessary to the appellate court’s resolution of the case.’ ” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158.) Footnote five addressed an express argument made by the DMV in support of the DMV policy at issue. (CDLA, supra, 77 Cal.App.5th at p. 533, fn. 5.) Footnote five was also appended to a sentence that read: “[S]ection 14112, subdivision (b) is unconstitutional to the extent it permits the DMV to combine the advocacy and adjudicatory roles in a single APS hearing officer.” (CDLA, at p. 533.) Footnote five appears to clarify and emphasize that section 14112, subdivision (b) was unconstitutional only to the extent that it permitted a single individual to act as both adjudicator and advocate; other roles or functions could be combined in the same individual, such as adjudicator and collector and developer of evidence. This clarification not only explained the nature of CDLA’s holding, but also aided in the proceedings on remand. Because footnote five was “ ‘responsive to the issues raised on appeal and … intended to guide the parties and the trial court [on remand],’ ” CDLA’s footnote five is not dicta, let alone the lowest form of dicta. (Sonic-Calabasas A, at p. 1158; see Leider v. Lewis (2017) 2 Cal.5th 1121, 1134.) 12. APS hearings, the [AHO] is merely collecting and developing evidence, not advocating for the DMV.” (Romane, supra, 110 Cal.App.5th at p. 1018.) In sum, given the conduct of the AHO, as well as the operative CDLA injunction and the pre-hearing and in-hearing advisements regarding the AHO’s functions and roles, Bocanegra has not shown that the AHO acted as an advocate for the DMV or that his due process right to a constitutionally impartial adjudicator was violated. (Today’s Fresh Start, supra, 57 Cal.4th at p. 221; Romane, supra, 110 Cal.App.5th at pp. 1016–1021 [finding no due process violation where the AHO merely admitted evidence]; see also Chi, supra, 119 Cal.App.5th at pp. 481, 483; cf. Knudsen, supra, 101 Cal.App.5th at pp. 210–213 [finding a due process violation where the AHO mischaracterized evidence, made legal errors that benefitted the DMV, and asked questions that were inconsistent with developing testimony].) II. IMPLIED CONSENT ADMONISHMENT A. Parties’ Arguments Bocanegra contends that the weight of the evidence did not show he received an adequate implied consent admonition. Bocanegra argues that the bodycam videos do not show he was told that he would lose his license or the length of time that he would lose his license if he refused to perform a BAC chemical test. Bocanegra claims that the AHO’s decision relied on the bodycam videos to conclude that he was told he could lose his license, which is a legally insufficient admonition. In the absence of an adequate admonition, Bocanegra avers that he did not “refuse” to take a BAC chemical test for purposes of the implied consent law. The DMV responds that the trial court correctly found Bocanegra was properly admonished before refusing to perform BAC chemical tests. The DMV argues that Bocanegra improperly focuses on the bodycam videos to the exclusion of other evidence. The DMV points out that the DS-367 form and the arrest report both show that Miller properly admonished Bocanegra at 11:30 p.m. and that Bocanegra refused to perform any BAC chemical tests. The DMV avers that the arrest report and the DS-367 form 13. constitute substantial evidence that Bocanegra was properly admonished when he refused to perform a BAC chemical test. B. Additional Background The DS-367 form contains a separate section entitled, “CHEMICAL TEST ADMONITION.” This section contains eight separate paragraphs that inform a driver of California’s implied consent law, as well as the consequences of failing to submit to a BAC chemical test. This section has boxes to record a driver’s response to a request to submit to either a breath test or a blood test and a box to be filled out when the officer who gives the admonition is not the officer who submits the DS-367 form. In this case, the DS-367 form’s chemical test admonition section indicates that it was filled out on “1/2/24 at 2330 p.m.”; the driver responded “No” to a breath test and a blood test; and the admonition was given by a different officer, Miller. The DS-367 form was filled out by Major. Major’s arrest report also addresses the implied consent admonition. After Bocanegra was arrested and transported to a police station for pre-booking, the report states: “Officer Miller … read the Chemical Test Admonition to [Bocanegra]. [Bocanegra] refused to provide a Breath Test and he refused to provide a blood sample.” C. Legal Standards 1. Review of a Petition for Writ of Mandate “Code of Civil Procedure section 1094.5 governs judicial review of adjudicatory decisions by administrative agencies.” (Clarke, supra, 104 Cal.App.5th at p. 1275.) In ruling on a petition for writ of mandate following an order of license suspension, trial courts are to exercise their independent judgment and determine “ ‘ “whether the weight of the evidence supported the administrative decision.” ’ ” (Lake, supra, 16 Cal.4th at p. 456; Kazelka, supra, 109 Cal.App.5th at p. 1247.) On appeal, appellate courts review the record in order to determine whether the trial court’s findings are supported by substantial evidence. (Lake, at p. 457; Kazelka, at p. 1247.) As part of the substantial evidence review, courts resolve all evidentiary conflicts and draw all reasonable 14. inferences in favor of the trial court’s decision. (Lake, at p. 457; Freitas v. Shiomoto (2016) 3 Cal.App.5th 294, 300.) However, when the facts are undisputed, and the issue involves the proper application of a statute or administrative regulation, the question is one of law to which the appellate court applies its independent judgment. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517.) 2. Implied Consent Under the implied consent law of California, anyone who drives a motor vehicle and is arrested for driving under the influence is deemed to have consented to the performance of a breath or blood test to determine their BAC. (§ 23612, subd. (a)(1)(A); Troppman v. Valverde, supra, 40 Cal.4th at pp. 1129–1130; Romane, supra, 110 Cal.App.5th at p. 1008.) The implied consent law provides for noncriminal sanctions, such as the suspension of a driver’s license, for a driver’s refusal to submit to a BAC chemical test after being arrested for driving under the influence. (Clarke, supra, 104 Cal.App.5th at p. 1271, fn. 2; Hall, supra, 3 Cal.App.5th at p. 802; see also Troppman, at pp. 1129–1130.) A person arrested for driving under the influence must be told that his failure to submit to or complete a BAC chemical test will result in a fine, mandatory imprisonment upon conviction of driving under the influence, and the suspension or revocation of that person’s driver’s license. (§ 23612, subd. (a)(1)(D); Hall, supra, 3 Cal.App.5th at pp. 802–803.) “Courts have consistently required relatively strict compliance with the duty to admonish suspected drunk drivers about the consequences of refusing chemical testing.” (Munro v. Department of Motor Vehicles (2018) 21 Cal.App.5th 41, 47 (Munro).) This is because a “[p]roper warning of the consequence of [a refusal to submit to BAC chemical testing] is an element essential to the suspension of a driver’s license.” (Daly v. Department of Motor Vehicles (1986) 187 Cal.App.3d 257, 261; see also Hall, at p. 803.) If the police give a misleading admonition, or fail to advise the person that his driving privilege will be suspended or revoked if he refuses to submit to or complete a BAC chemical test, then the person’s driver’s license cannot be suspended despite the 15. person’s failure to submit to or complete a BAC chemical test. (Decker v. Department of Motor Vehicles (1972) 6 Cal.3d 903, 906 [reversing a license suspension when the driver was told that a refusal to take a BAC chemical test “could” result in the suspension of his license because the admonition given “misrepresented the legal significance of a refusal to take a chemical test by implying that the [DMV] might decide not to suspend [the driver’s] license in spite of his refusal.”]; Hall, at p. 803.) Further, “[w]hen police give an incomplete admonition about the consequences of refusing [a BAC chemical test], the law limits the permissible sanction to the extent of actual notice.” (Elmore v. Gordon (2021) 73 Cal.App.5th 520, 523.) However, if a police officer corrects a prior misleading or incomplete admonition regarding the consequences of refusing to take a BAC chemical test, courts will generally find substantial compliance by the police officer and uphold a license suspension. (Munro, at p. 47, citing Ormonde v. Department of Motor Vehicles (1981) 117 Cal.App.3d 889, 892–893, Smith v. Department of Motor Vehicles (1969) 1 Cal.App.3d 499, 502–503, and Janusch v. Department of Motor Vehicles (1969) 276 Cal.App.2d 193, 194, 197.) Whether a driver “refused” to perform a BAC chemical test for purposes of the implied consent law is a question of fact. (Blitzstein v. Department of Motor Vehicles (1988) 199 Cal.App.3d 138, 141.) 3. Analysis We agree with Bocanegra that none of the bodycam videos demonstrate an adequate admonition for purposes of the implied consent law. The closest the videos come to showing a proper admonition is the footage identified by the AHO—when Miller spoke to Bocanegra around 11:10 p.m. at the accident scene. As quoted above, Miller said that Bocanegra had consented to perform “tests” at any time by virtue of obtaining a license and that the DMV can automatically suspend his license for failing to do so. Among other things, Miller did not mention breath or blood tests specifically, did not say that the DMV will suspend his license, and did not identify the duration of any suspension. (Cf. § 23612, subd. (a); Decker v. Department of Motor Vehicles, supra, 6 Cal.3d at p. 906; Hall, supra, 3 Cal.App.5th at pp. 802–803; Elmore v. Gordon, supra, 73 16. Cal.App.5th at p. 523.) If Miller’s statements to Bocanegra at the accident scene were the only admonitions in the record, we would grant Bocanegra relief. (See Decker, at p. 906; Munro, supra, 21 Cal.App.5th at p. 47; Hall, at p. 803; Elmore, at p. 523; Daly v. Department of Motor Vehicles (1986) 187 Cal.App.3d 257, 261.) However, these statements are not the only admonition reflected in the record. Both the DS-367 form and Major’s arrest report reflect that Miller read Bocanegra the implied consent admonition as printed on the DS-367 form at 11:30 p.m. at the police station. Bocanegra does not argue that the admonition in the DS-367 form was somehow improper, confusing, or insufficiently specific for purposes of the implied consent law, and we detect no such inadequacies. We presume that the officers regularly and correctly performed their official duties, 10 including the duties embodied within a sworn DS-367 form. (Myers v. Department of Motor Vehicles (2026) 120 Cal.App.5th 470, 481.) Because Bocanegra was properly admonished when Miller read him the DS-367 form’s implied consent admonition, Bocanegra received a legally sufficient admonition. (See Munro, supra, 21 Cal.App.5th at p. 47.) As a result, Bocanegra did refuse to perform a BAC chemical test for purposes of the implied consent law. Bocanegra focuses on the bodycam videos and the AHO’s description of the relevant interaction in Miller’s bodycam video to argue that he was not properly admonished. Bocanegra’s argument is too myopic. As quoted above, the AHO expressly identified and described both the bodycam videos and the DS-367 form. Before addressing the bodycam videos, the AHO stated that the DS-367 form indicated that 10 Evidence Code section 664 creates a presumption that government agents correctly perform their regular official duties. (See Evid. Code, § 664; Furman v. Department of Motor Vehicles (2002) 100 Cal.App.4th 416, 422.) Evidence Code section 664, along with Evidence Code section 1280, which provides a hearsay exception for records made by a public employee (Evid. Code, § 1280), together form the basis for admission of DS-367 forms during APS hearings and for the presumption that peace officers regularly performed their official duties in completing the DS-367 form. (See Furman, at p. 422; Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 142–143; see also Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052, 1063–1064.) 17. Bocanegra was given the full implied consent admonition. The AHO did not find that the DS-367 form’s admonition was not actually given at the police station or identify any flaws with the form’s admonition. The AHO also expressly cited to the DS-367 form first and the bodycam videos second in supp