No Value: Frondarina, Lyndsey Marie vs. Gordon, Steve

On September 26, 2023 a No Value was filed involving a dispute between Lyndsey Marie Frondarina, and Department Of Motor Vehicles, Steve Gordon, for Writ of Mandate Unlimited (02) in the District Court of Monterey County.

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RoB BONTA
Attorney General of California
KELSEY LINNETT
Supervising Deputy Attorney General
JOEL KosH
Deputy Attorney General
State Bar No. 326595
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550
Telephone: (510) 879-0002
Fax: (510) 622-2270
E-mail: joel.kosh@doj.ca.gov
Attorneys for Respondent
Steve Gordon, Director for the Department of Motor
Vehicles for the State of California

SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF MONTEREY
11

13
LYNDSEY MARIE FRONDARINA, Case No. 23CV003135
14
Petitioner. > MEMORANDUM IN OPPOSITION TO
15 PETITION FOR WRIT OF
ADMINISTRATIVE MANDAMUS BY
16 RESPONDENT STEVE GORDON,
DIRECTOR FOR THE DEPARTMENT
17 STEVE GORDON, Director, Department of OF MOTOR VEHICLES FOR THE
Motor Vehicles, STATE OF CALIFORNIA
18
Respondent. Date: May 3, 2024
19 Time: 8:30 a.m.
Dept: 15
20 Judge: Hon. Thomas W. Wills
Action Filed: September 26, 2023
21

Opposition Brief (23CV032366)
TABLE OF CONTENTS

Page
Introduction
Statement of Facts
I Frondarina Is Arrested for Driving Under the Influence and Valid Breath
Tests Showed a BAC of at Least 0.08, Resulting in a Suspension of Her
Driver’s License.
IL The DMV Conducts an Administrative Hearing, Admitting into Evidence
the Arrest Paperwork.
Til. The Administrative Decision Finds That Officer Santiago Reasonably
Believed That Frondarina Was Operating a Motor Vehicle Under the
Influence of Alcohol, Was Lawfully Arrested, and Was Driving the
Vehicle with a BAC of at Least 0.08. .........
Standard of Review
10
Argument
11 I Frondarina Fails to Meet Her Burden to Show That the Hearing Procedure
Resulted in Any Due Process Violation.
12
A Frondarina Waived Any Due Proce: Challenge, Including One
13 Based on the Application of CDLA. 10
B Hearing Officer Lartigue Acted as a Factfinder and Not as an
14 Advocate, ....c.eceeeseseeeseseeeseeee 10
15 Frondarina Cannot Demonstrate Prejudice Based on the Use of a
Single Hearing Officer. .......0... 12
16 II The DMV Properly Suspended Frondarina’s Driving Privilege. 13
17 A The DMV Is Required to Immediately Suspend the Driving
Privilege of a Person Lawfully Arrested for Driving Under the
18 Influence Whose Chemical Test Results Show a Prohibited BAC 13
Frondarina’s Chemical Tests Are Valid and Show She Had a BAC
19 of at Least 0.08 14
20 Conclusion 16

Opposition Brief (23CV032366)
TABLE OF AUTHORITIES

Page
CASES

Arthur v. Department of Motor Vehicles
(2010) 184 Cal.App.4th 1199
California DUI Lawyers Assn. v. Department of Motor Vehicles
(2022) 77 Cal.App.Sth 517 10, 11, 12
California Water Impact Network v. Newhall County Water Dist.
(2008) 161 Cal.App.4th 1464 10

Coffey v. Shiomoto
(2015) 60 Cal.4th 1198 13, 16
10
Gananian v. Zolin
11
(1995) 33 Cal.App.4th 634 14
12
In re Marriage of Minkin
13 (2017) 11 Cal.App.Sth 939 10

14 MacDonald v. Gutierrez
(2004) 32 Cal.4th 150 (MacDonald) 12, 14
15
Malaga County Water Dist. v. Central Valley Regional Water Quality Control Bd.
16 (2020) 58 Cal.App.sth 418 12
17
Manriquez v. Gourley
18 (2003) 105 Cal.App.4th 1227 . 15

19 Milligan v. Hearing Aid Dispensers Examining Comm.
(1983) 142 Cal. App.3d 1002... 10
20
People v. McNeal
21 (2009) 46 Cal.4th 1183 15
22
Poland v. Department of Motor Vehicles
23 (1995) 34 Cal.App.4th 1128 11

24 Richardson v. Perales
(1971) 402 U.S. 389 11
25
Roze v. Department of Motor Vehicles
26 (2006) 141 Cal.App.4th 1176
27 Snelgrove v. Department of Motor Vehicles
28 (1987) 194 Cal.App.3d 1364 14

Opposition Brief (23CV032366)
TABLE OF AUTHORITIES
(continued)
Page
Southern Cal. Underground Contractors, Inc. v. City of San Diego
(2003) 108 Cal.App.4th 533 . 10, 12
Today’s Fresh Start, Inc. v. Los Angeles County Office of Education
(2013) 57 Cal.4th 197 11

Troppman v. Valverde
(2007) 40 Cal.4th 1121 13

STATUTES

Code of Civil Procedure
§ 1094.5 cece 5,8
10 § 1094.5, subd. (b) .
11
Evidence Code
12 § 664... 9
§ 1280. 14
13
Government Code
14 § 6103.5 eee ecceeceeseseeseseeeseseeseseeseseseesesesessseessesseesssesssasseeassesesisscssassesesscseeassesesseseeacseseaeseenees 16

15 Vehicle Code
§ 13353.2 eee 7, 8, 13
16
§ 13353.2, subd. (a)(1) 13, 15
17 § 13380 11
§ 13557 11
18 § 13557 bd. (a) 13
§ 13557, su bd. (b)(3)
19 § 13558. 7, 13
§ 14104.7 11
20
§ 23152 13
21 § 23152, su (a)
§ 23612. 11
22 § 23612, subd. (a) 13

23 OTHER AUTHORITIES

24 California Code of Regulations Title 17
25 § 1221.2, subd. (a)(1) 15
§ 220A ceeccessseeee
26

28
4
Type Footer Info Here 2 («Matter Primary Court Case #»)
INTRODUCTION

Petitioner Lyndsey Marie Frondarina drove while intoxicated, and following her arrest,

chemical tests showed that she had a prohibited blood-alcohol content (“BAC”). Therefore, the

respondent Steve Gordon, Director for the Department of Motor Vehicles for the State of

California sued herein as “Steve Gordon, Director, Department of Motor Vehicles” (“DMV”)

properly suspended her driver’s license as authorized by Vehicle Code section 13353.2.

Frondarina filed a petition for a writ of administrative mandamus under Code of Civil

Procedure section 1094.5 (the “Petition”) to compel the DMV to set aside her suspension. As a

threshold issue, she argues that the administrative hearing violated her due process rights because

10 the hearing officer was allegedly biased. However, she cannot meet her burden because the

11 hearing officer properly served as a factfinder, not an advocate. Additionally, she has not

12 established actual prejudice because she has not shown that the hearing’s outcome would have

13 been different if the hearing officer followed a different procedure. On the merits, she argues that

14 the DMV was wrong in sustaining the suspension of her license because the evidence does not

15 support the finding that Frondarina had a prohibited BAC at the time of driving. But the

16 undisputed evidence at the administrative hearing established that Officer Santiago reasonably

17 believed that she had been driving under the influence because Officer Santiago saw her swerving

18 her vehicle and occupying more than one lane simultaneously while driving, and observed

19 objective signs of her intoxication. Because Frondarina submitted to valid chemical tests that

20 showed a BAC of at least 0.08, the DMV appropriately suspended her license.

21 The Court should deny the Petition because the weight of the evidence supports the

22 administrative finding that Officer Santiago had reasonable cause for Frondarina’s arrest, she was

23 lawfully arrested, and she was driving a motor vehicle with at least 0.08 BAC. Accordingly, the

24 Court should deny the Petition and enter judgment in the DMV’s favor.

Opposition Brief (23CV032366)
STATEMENT OF FACTS

FRONDARINA IS ARRESTED FOR DRIVING UNDER THE INFLUENCE AND VALID
BREATH TESTS SHOWED A BAC OF AT LEAST 0.08, RESULTING IN A SUSPENSION OF
HER DRIVER’S LICENSE.
On December 18, 2022, at approximately 2:03 a.m., Officer Santiago of the Greenfield

Police Department! observed Frondarina swerving and driving her Jeep SUV in multiple lanes

while driving it on Highway 101 Southbound. (Administrative Record (“AR”) 7, 10, 13.)? Officer

Santiago pulled Frondarina over. (AR 13.) She came to a stop north of the Correctional Training

Facility exit. (/bid.) When Officer Santiago asked Frondarina whether she had been drinking, she

told him she had one glass of wine. Frondarina’s eyes were red and glossy eyes, and she smelled

10 of alcohol. (AR 7, 13.) Officer Santiago conducted the horizontal gaze nystagmus sobriety test,

11 which Frondarina failed—her eyes did not track smoothly and she had sustained nystagmus at

12 maximum deviation in her eyes. (AR 13.) Officer Santiago told Frondarina that he suspected that

13 she had consumed more than one glass of wine; in response, she stated that she had three glasses

14 of wine. (/bid.) She refused to surrender keys to her SUV and was arrested. (AR 13-14.)

15 Officer Santiago took Frondarina to a safer location away from the highway to conduct

16 more field sobriety tests. (AR 14-15.) Frondarina performed poorly and had difficulty

17 maintaining balance. (/bid.)

18 Officer Santiago asked Frondarina if she would submit to a chemical tests, and she chose

19 a breath test. (AR 15.) At 2:57 a.m., she took a breath test, which showed a BAC of 0.11. (Jbid.)

20 At 3:00 a.m., she took another breath test, which showed a BAC of 0.14. (/bid.) At 3:08 a.m., she

21 took a third breath test, which showed a BAC of 0.05. (/bid.) That test was invalid because she

22 struggled to give a full exhale, which meant that the testing machine could not get an accurate

23 reading of the BAC. (/bid.) At 3:12 a.m., she took a fourth breath test, which showed a BAC of

25
' The Administrative Record does not provide Officer Santiago’s first name.
26 ? Frondarina lodged the Administrative Record without Bates Stamping it. The DMV will
separately lodge Frondarina’s Notice of Lodging and Administrative Record with Bates Stamps
27 for easier review. Page numbers are as they appear in the entire lodged document, i.e., Page | is
Frondarina’s caption page, Page 2 is the certification page, and subsequent numbers refer to the
28 documented record.
6
Opposition Brief (23CV032366)
0.13. (AR 7, 15.) At 3:15 a.m., she took a fifth breath test and it showed a BAC of 0.05. (/bid.) At

3:18 a.m., she took a sixth breath test, which showed a BAC of 0.12. (Ibid.)

Frondarina was processed for driving under the influence in violation of Vehicle Code

section 23152, subdivision (a) and released. (AR 15.)

As authorized by Vehicle Code section 13353.2, following the arrest, Frondarina received

a Suspension/Revocation Order, which suspended her driver’s license after 30 days from

issuance, but granted her a right to request an administrative hearing within 10 days. (AR 11.)

IL. THE DMV CONDUCTS AN ADMINISTRATIVE HEARING, ADMITTING INTO EVIDENCE
THE ARREST PAPERWORK.
Frondarina requested an administrative hearing, which Hearing Officer Lartigue?
10
conducted on July 28, 2023. (AR 3-6 [hearing decision], 19-38 [hearing transcript].) Hearing
11
Officer Lartigue examined three issues: (1) whether the arresting officer had reasonable cause to
12
believe that Frondarina was driving a motor vehicle in violation of laws prohibiting drunk
13
driving; (2) whether Frondarina was lawfully arrested; and (3) whether Frondarina driving a
14
motor vehicle with a prohibited BAC, here if it was at least 0.008. (AR 4, 21; see also Veh. Code,
15
§§ 13557, subd. (b)(3), 13558.)
16
Hearing Officer Lartigue admitted the following into evidence: (1) DS-367, i.e., Officer
17
Santiago’s statement (AR 7-12); (2) Greenfield Police Department arrest report (AR 13-15);
18
(3) Frondarina’s driving record (AR 16-17). (AR 21-23 [exhibits marked for identification], 23-
19
24 [admitted into evidence].) Frondarina objected to the DS-367 and the arrest report on the
20
grounds of hearsay. (AR 23.) Hearing Officer Lartigue overruled these objections. (AR 23-24.)
21
At the hearing, Frondarina argued that Officer Santiago did not have probable cause for
22
her arrest because he arrested her before he conducted the complete DUI investigation. (AR 25.)
23
She also argued that there was not sufficient evidence that she had a BAC of at least 0.08 because
24
Officer Santiago’s arrest report did not indicate all of the breath tests done as shown in the body
25
camera video, the results collected were invalid under California Code of Regulations title 17,
26
section 1221.4 because they were not within 0.02 of each other, and the machine was
27

28 3 The Administrative Record does not provide Hearing Officer Lartigue’s first name.
7
Opposition Brief (23CV032366)
malfunctioning providing a beeping sound throughout the testing as shown in the body camera

video. (AR 25-33.) Frondarina claimed that the body-worn camera video corroborated her

arguments, but she never introduced the video into evidence even though she had the opportunity

to do so. (AR 25-37; see also AR 37 [submission of case].)

Ti. THE ADMINISTRATIVE DECISION FINDS THAT OFFICER SANTIAGO REASONABLY
BELIEVED THAT FRONDARINA WAS OPERATING A MOTOR VEHICLE UNDER THE
INFLUENCE OF ALCOHOL, WAS LAWFULLY ARRESTED, AND WAS DRIVING THE
VEHICLE WITH A BAC OF AT LEAST 0.08.
In a written decision, Hearing Officer Lartigue found that: (1) Officer Santiago had

reasonable cause to believe that Frondarina was driving a motor vehicle under the influence of

alcohol; (2) Frondarina was lawfully arrested; and (3) Frondarina was driving a motor vehicle
10
when she had a BAC of at least 0.08. (AR 3-5.)
11
Hearing Officer Lartigue reached these conclusions because: (1) Officer Santiago
12
observed Frondarina weaving her vehicle out of its lane and Frondarina’s objective symptoms of
13
intoxication, including bloodshot/watery eyes, odor of alcoholic beverage, and unsteady gait (AR
14
3-4); (2) explicit statements in the documentary evidence showed that Frondarina was driving
15
under the influence and therefore properly arrested on that basis (AR 4); and (3) Frondarina
16
submitted to multiple chemical tests, including one showing a BAC of 0.13 at 3:12 a.m. and
17
another showing a BAC of 0.12 at 3:18 a.m. (ibid.).
18
Based on these findings, the DMV properly suspended her driver’s license for one year as
19
authorized by Vehicle Code section 13353.2. (AR 4.)
20
STANDARD OF REVIEW
21
The Petition seeks review of the administrative decision under Code of Civil Procedure
22
section 1094.5, and the issues for review under this statute are: “whether the respondent has
23
proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there
24
was any prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of
25
discretion is established if the respondent has not proceeded in the manner required by law, the
26
decision is not supported by the findings, or the findings are not supported by the evidence. (/bid.)
27

Opposition Brief (23CV032366)
In reviewing this administrative action, the Court must exercise its independent judgment,

determining whether the weight of the evidence supports the administrative decision. (Arthur v.

Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1204-1205.) Though this Court acts

as a trier of act, the administrative findings “are entitled to ‘a strong presumption of correctness,”

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.’” (/d. at p. 1205, citing

Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Evid. Code, § 664 [“It is presumed

that official duty has been regularly performed.”].)

The party seeking relief from an administrative decision under the independent judgment

10 standard of review has the burden of persuasion to establish that the evidence does not support the

11 administrative findings, even though the agency had the burden of persuasion during the

12 administrative proceeding. (See Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th

13 1176, 1183.)

14 ARGUMENT
15 As a preliminary matter, Frondarina fails to meet her burden to show that the hearing

16 resulted in any due process violation because Hearing Officer Lartigue properly served as a

17 neutral factfinder and the hearing process did not result in any prejudice. After setting aside that

18 due process challenge, the Court should affirm the suspension of Frondarina’s license because the

19 evidence supports the finding that Frondarina had a BAC of at least 0.08 while driving. Because

20 the weight of the evidence supports a finding that Frondarina was driving under the influence and

21 the other statutory prerequisites to sustain the suspension, the Court must deny the Petition.

22 I FRONDARINA FAILS TO MEET HER BURDEN TO SHOW THAT THE HEARING
PROCEDURE RESULTED IN ANY DUE PROCESS VIOLATION.
23
Frondarina makes a due process challenge to the hearing procedure, but this attack is
24
waived and has no merit. She seems to argue that Hearing Officer Lartigue improperly served as
25
both the adjudicator and advocate, but does not make any specific arguments that the hearing
26
procedure is unconstitutional. (Opening Brief 5:9-12, 18-20.) As explained below, this argument
27
is waived, and in any event, fails because it misconstrues the holding and application of
28
9
Opposition Brief (23CV032366)
California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.Sth 517

(CDLA), including because she cannot show that she suffered prejudice.

A FRONDARINA WAIVED ANY DUE PROCESS CHALLENGE, INCLUDING ONE
BASED ON THE APPLICATION OF CDLA.
As a threshold matter, Frondarina cannot now for the first time make a due process

challenge to the hearing. She did not question the hearing procedure until she filed her Petition.

(See generally AR 19-38 [hearing transcript]; see also AR 20 [specifying Hearing Officer

Lartigue’s specific role].) Constitutional issues not raised in earlier civil proceedings are generally

forfeited. (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 958.) This rule applies to due

process challenges regarding administrative proceedings. (Southern Cal. Underground
10
Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549 (Southern Cal.); see also
11
Milligan v. Hearing Aid Dispensers Examining Comm. (1983) 142 Cal.App.3d 1002, 1008 [“It
12
was never contemplated that a party to an administrative hearing should withhold any defense
13
then available to him or make only a perfunctory or ‘skeleton’ showing in the hearing and
14
thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court.”] citing
15
Bohn v. Watson (1954) 130 Cal.App.2d 24, 37.) Frondarina’s failure to raise any due process
16
issue based on CDLA or the hearing officer’s dual role waives this argument because she did not
17
exhaust administrative remedies, which is a “jurisdictional prerequisite to judicial review.”
18
(California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464,
19
1489.)
20
Accordingly, the Court does not need to reach the merits of the due process argument
21
because Frondarina did not raise this issue in the administrative proceeding.
22
B HEARING OFFICER LARTIGUE ACTED AS A FACTFINDER AND NOT AS AN
23 ADVOCATE.
24 Even on the merits, Frondarina’s due process argument is based on misrepresenting

25 Hearing Officer Lartigue’s involvement in this case and an overly expansive reading of CDLA.

26 Under CDLA, Hearing Officer Lartigue can and did serve as a factfinder without violating

27 Frondarina’s due process rights, properly presenting the official documents routinely admitted at

28 DMV administrative per se hearings and rendering a decision.
10
Opposition Brief (23CV032366)
Frondarina wants this Court to extend CDLA so that one DMV representative at the

administrative hearing—regardless of the actual role—is a violation of due process per se. But

CDLA recognized that “the DMV may task the same person with both collecting and developing

the evidence and rendering a final decision” and noted that the petitioner conceded as much.

(CDLA, supra, 77 Cal.App.Sth at p. 533, fn. 5, citing Today’s Fresh Start, Inc. v. Los Angeles

County Office of Education (2013) 57 Cal.4th 197, 220 (Today's Fresh Start).) Here, Hearing

Officer Lartigue collected and considered certain evidence, including the (1) DS-367, i.e., Officer

Santiago’s statement (AR 7-12); (2) Greenfield Police Department arrest report (AR 13-15);

(3) Frondarina’s driving record (AR 16-17). (AR 21-23 [exhibits marked for identification], 23-

10 24 [admitted into evidence].) Hearing Officer Lartigue’s combined role as the judge and presenter

11 of evidence in this administrative hearing, as statutorily required (see Veh. Code, § 13557), does

12 not violate due process. (Today's Fresh Start, supra, 57 Cal.4th at pp. 220-221; Poland v.

13 Department of Motor Vehicles (1995) 34 Cal.App.4th 1128, 1135; see also Richardson v. Perales

14 (1971) 402 U.S. 389, 408-410 [social security examiner’s role as investigator who gathers

15 evidence and decision maker does not violate due process because rather than acting as counsel,

16 he develops facts].) The Court of Appeal in Poland declined to assume that merely because the

17 hearing officer presented evidence and decided the case that the hearing was fundamentally

18 unfair. Instead, a motorist must show some unfairness to establish a due process violation.

19 Frondarina has not established any unfairness. Hearing Officer Lartigue merely served the

20 statutory role by considering relevant evidence at the hearing and ruling on objections. Here,

21 Hearing Officer Lartigue submitted and admitted into evidence official law enforcement

22 documents including most notably the sworn statement and the arrest report. A peace officer

23 making an arrest for drunk driving must immediately forward to the DMV “a sworn report of all

24 information relevant to the enforcement action.” (Veh. Code, § 13380.) The DMV “shall consider

25 the sworn report submitted by the peace officer pursuant to Section 23612 or 13380 and any other

26 evidence accompanying the report.” (/d., § 13557.) “At any hearing, the department shall

27 consider its official records and may receive sworn testimony.” (/d., § 14104.7.) Hearing Officer

28 Lartigue allowed Frondarina to make objections and offer her own evidence. Frondarina objected
11
Opposition Brief (23CV032366)
to the admissibility of the sworn statement and arrest paperwork on the grounds of hearsay, but

Hearing Officer Lartigue properly overruled the objections as further explained below in

Argument II.B. In any event, as established in MacDonald v. Gutierrez (2004) 32 Cal.4th 150,

158-159 (MacDonald), admitting documents into evidence is a routine action that is not

“advocating” for the DMV. Therefore, Hearing Officer Lartigue was a factfinder, not an

advocate.

Cc. FRONDARINA CANNOT DEMONSTRATE PREJUDICE BASED ON THE USE OF A
SINGLE HEARING OFFICER.
Even if Frondarina did not waive the due process argument and even if, for the sake of

argument, Hearing Officer Lartigue acted as an advocate, Frondarina still fails to identify actual
10
harm she suffered. The possibility of bias alone is not enough to warrant reversal ofa decision.
11
(Southern Cal., supra, 108 Cal.App.4th at p. 549.) Frondarina must show that there was an actual
12
bias or prejudice to establish a due process violation. (See e.g., Malaga County Water Dist. v.
13
Central Valley Regional Water Quality Control Bd. (2020) 58 Cal.App.5th 418, 481.)
14
Here, Frondarina cannot show an actual bias or that she was prejudiced by Hearing
15
Officer Lartigue’s actions. The record shows that the administrative hearing was proper. Hearing
16
Officer Lartigue dispassionately developed the facts, and Frondarina had a full and fair
17
opportunity to challenge the evidence presented and present her own evidence and arguments.
18
She cannot simply cite CDLA to establish a due process violation exists without identifying the
19
specific bias or prejudice that occurred. Moreover, Frondarina has not shown how a different
20
process would have changed the results. She must show that she would have achieved a better
21
result under a different procedure. She has not done so.
22
Accordingly, even if Frondarina had shown that Hearing Officer Lartigue acted as an
23
advocate, she does not establish any prejudice to support the existence of a due process violation.
24

28
12
Opposition Brief (23CV032366)
Il. THE DMV PROPERLY SUSPENDED FRONDARINA’S DRIVING PRIVILEGE.

A THE DMV Is REQUIRED TO IMMEDIATELY SUSPEND THE DRIVING PRIVILEGE
OF A PERSON LAWFULLY ARRESTED FOR DRIVING UNDER THE INFLUENCE
WHOSE CHEMICAL TEST RESULTS SHOW A PROHIBITED BAC.
Vehicle Code section 23152 states that it is a crime to drive a vehicle either (a) under the

influence of alcohol or (b) with a BAC of at least 0.08% by weight. Under California’s implied

consent law, a person who is lawfully arrested for driving under the influence is deemed to have

given consent to chemical testing of the person’s blood or breath to determine BAC. (Veh. Code,

§ 23612, subd. (a).) The implied consent law’s purpose was to: (1) obtain the best evidence of

BAC while ensuring cooperation of the person arrested, and (2) inhibit driving under the

10 influence. (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1133.)

11 Vehicle Code section 13353.2 requires the DMV to immediately suspend a person’s

12 driving privilege under many circumstances, including if the DMV determines that the person

13 was over the age of 21 and driving a motor vehicle with a BAC of at least 0.08. (Veh. Code,

14 § 13353.2, subd. (a)(1).) The Legislature enacted this law, also known as the “administrative per

15 se” law, to mitigate the danger posed by people who have driven with excessive BAC levels,

16 while accounting for the delay that occurs between an arrest and a conviction for driving while

17 intoxicated. (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1207 (Coffey).) The law also provides
18 for a prompt administrative review for affected drivers. (/bid.)

19 The DMV must sustain the suspension if a preponderance of the evidence proves that:

20 (1) the peace officer had reasonable cause to believe that the person had been driving a motor

21 vehicle under the influence; (2) the person was lawfully arrested; (3) the person was driving a

22 motor vehicle with a prohibited BAC, e.g., at least 0.08 if the person is over the age of 21. (Veh.

23 Code, § 13557, subds. (a), (b)(3).) Vehicle Code section 13558 permits an administrative hearing

24 to challenge the suspension.

28
13
Opposition Brief (23CV032366)
B FRONDARINA’S CHEMICAL TESTS ARE VALID AND SHOW SHE HAD A BAC OF
AT LEAST 0.08.
Hearing Officer Lartigue properly found that the weight of the evidence established that

Frondarina was driving with a prohibited BAC despite her arguments that the supporting evidence

is inadmissible and breath tests were inaccurate.

First, Hearing Officer Lartigue properly overruled her hearsay objections to the sworn

statement and arrest paperwork. It is well settled that all these documents are admissible at

administrative hearings and may be introduced into evidence without authenticating testimony. In

Gananian v. Zolin (1995) 33 Cal.App.4th 634, 636, 639-640, the Court of Appeal held that an
arresting officer’s sworn statement was admissible under the public employee record exception to
10
the hearsay rule at an administrative hearing, like the present one, where the DMV relied
11
exclusively on documentary evidence. The Gananian court reasoned that one of the purposes of
12
the exception is to eliminate the need to call witnesses involved in the preparation of the record
13
and to substitute the record of the transaction instead. (/d. at p. 639.) The hearing officer and the
14
court are entitled to presume that the officer acted pursuant to his duty as a peace officer to
15
observe facts and report them correctly. (/d. at p. 641; Evid. Code § 1280; see also Snelgrove v.
16
Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1374 [sworn statement properly
17
admitted into evidence without officer’s testimony].) It is also well settled that where the sworn
18
report is filed, an unsworn arrest report is also admissible and may provide evidence in addition to
19
that contained in the sworn report. (MacDonald, supra, 32 Cal.4th at pp. 158-159.) This result is
20
consonant with the “slight relaxation of the rules of evidence applicable to an administrative per
21
se review hearing.” (/d. at p. 159, citing Lake v. Reed (1997) 16 Cal.4th 448, 462 (Lake).) Also,
22
even unsworn police reports constitute the sort of evidence upon which responsible persons are
23
accustomed to rely in the conduct of serious affairs. (Jbid.) The arrest paperwork here can be
24
considered to supplement the DS-367 because the DS-367 is a sworn and signed report.
25
Accordingly, Hearing Officer Lartigue properly admitted Officer Santiago’s sworn statement and
26
arrest report into evidence at the administrative hearing.
27

28
14
Opposition Brief (23CV032366)
Relying on this evidence, Hearing Officer Lartigue properly found that Frondarina had a

prohibited BAC while driving. Frondarina submitted to multiple chemical tests showing a BAC

of at least 0.08, including a BAC of 0.13 at 3:12 a.m. and a BAC of 0.12 at 3:18 a.m. (AR 7, 15.)

This evidence is sufficient to show that the DMV appropriately suspended her driver’s license.

(Veh. Code, § 13353.2, subd. (a)(1).)
Next, Frondarina’s argument that the breath tests were inaccurate is without merit. As an

initial matter, Frondarina cannot rebut the presumption that the tests were accurate. A chemical

test will be presumed to have been properly administered with properly operating equipment.

(Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232-1233.) Here, the DS-367 contained a
10 certification indicating the breath test was administered in compliance with Title 17 of the

11 California Code of Regulations. (AR 7 [certification below breath test results].) Frondarina

12 offered no evidence of her own to rebut this presumption. Although at the administrative hearing

13 she refers to the body camera video, she did not offer it into evidence even though she had the

14 opportunity to do so. (AR 25-37; see also AR 37 [submission of case].) She also cannot claim that

15 one test result showing a BAC that was below 0.08 was better or more accurate than four others

16 showing a BAC at 0.11 or above, particularly when that one test had insufficient breath to

17 measure. The Supreme Court has previously rejected this type of argument about accuracy, noting

18 that breath machines underestimate the BAC. (People v. McNeal (2009) 46 Cal.4th 1183, 1192-

19 1193.) Therefore, the four higher results, which were consistent with each other, should be

20 presumed to be more accurate than the outlier result. Frondarina further incorrectly argues that the

21 BAC results higher than 0.05 cannot be considered because of non-compliance with Title 17 of

22 the California Code of Regulations. Title 17 requires that breath tests used to determine BAC be

23 performed with certain approved models, including that two separate breath samples be taken

24 which result in readings that do not differ by more than 0.02 grams per 210 liters per breath. (Cal.

25 Code Regs., tit. 17, § 1221.2, subd. (a)(1).) Here, there were multiple breath tests, giving BAC

26 results of 0.05 (twice), 0.11, 0.12, 0.13, and 0.14. (AR 7, 15.) Officer Santiago’s reliance on the

27 BAC results of 0.12 and 0.13 is consistent with Title 17. Title 17 does not require honoring only

28 test results that are identical. In any event, asking this Court to rely only on the 0.05 results would
15
Opposition Brief (23CV032366)
ignore the circumstances behind the 0.05 results and the four tests showing a BAC of at least

0.11. The arrest report explained that the 0.05 results were inaccurate because Frondarina did not

blow properly into the machine. (AR 15.) Hearing Officer Lartigue could not properly rely on the

0.05 results. Further, relying on the 0.05 results would be unreasonable because there are four

other results and they all comply with Title 17.

Finally, circumstantial evidence supports the finding that Frondarina was driving with a

BAC of at least 0.08. Officer Santiago saw her driving while occupying multiple lanes on the

highway. (AR 7, 10, 13.) Once speaking with Officer Santiago, she admitted to drinking a glass

of wine and later admitted drinking three glasses of wine. (AR 13.) Officer Santiago observed

10 objective signs of intoxication, including red, glossy eyes and a moderate odor of an alcoholic

11 beverage. (AR 7, 13.) She performed poorly on multiple field sobriety tests. (AR 13-15.) This

12 non-chemical test evidence is sufficient under the law to support a finding that Frondarina was

13 driving with a BAC of at least 0.08. (Coffey, supra, 60 Cal.4th 1211-1216, 1218.)
14 Accordingly, the evidence is sufficient to satisfy the statutory prerequisites to sustain the

15 suspension and the Court must deny the Petition.

16 CONCLUSION
17 Frondarina does not meet her burden to show that the hearing procedure resulted in any

18 due process violation. Additionally, the weight of the evidence supports the administrative

19 finding that Officer Santiago had reasonable cause to believe that Frondarina was driving a motor

20 vehicle under the influence of alcohol, Frondarina was lawfully arrested, and Frondarina was

21 driving with a BAC of at least 0.08 based on valid chemical tests. Accordingly, the Court should

22 deny the Petition, grant judgment in the DMV’s favor, and order Frondarina to pay costs required

23 by Government Code section 6103.5.

24 [Signature Page Follows]

28
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Opposition Brief (23CV032366)
1 Dated: April 3, 2024 Respectfully submitted,

RoB BONTA
Attorney General of California
KELSEY LINNETT
Supervising Deputy Attorney General

JOEL KosH
Deputy Attorney General
Attorneys for Respondent
Steve Gordon, Director for the Department
of Motor Vehicles for the State of
California

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Opposition Brief (23CV032366)
DECLARATION OF SERVICE BY E-MAIL

Case Name: Lyndsey Marie Frondarina v. Steve Gordon, Director of Department of Motor
Vehicles
No.: 23CV003135

I declare:

Iam employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member’s direction this service is made. I am 18 years of age or
older and not a party to this matter; my business address is: 1515 Clay Street, 20th Floor, P.O.
Box 70550, Oakland, CA 94612-0550.

On April 3, 2024, I served the attached:

MEMORANDUM IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE
MANDAMUS BY RESPONDENT STEVE GORDON, DIRECTOR FOR THE
DEPARTMENT OF MOTOR VEHICLES FOR THE STATE OF CALIFORNIA
by transmitting a true copy via electronic mail, addressed as follows:

Via email only
The Crawford Law Firm, Inc.,
Attn: Phillip J. Crawford
132 W Gabilan St, Ste 204
Salinas, CA 93901-2660
picrawford.esq@gmail.com

I declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on April 3,
2024, at Oakland, California.

Lupita Hernandez
Declarant

0K2023900361
91769464.docx

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September 26, 2023

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