Reset A A Font size: Print

Court of Appeal, Third District, California.

David Michael PARRIS, Plaintiff and Respondent, v. Frank S. ZOLIN, as Director, etc., Defendant and Appellant.

No. C017404.

Decided: March 29, 1995

Daniel E. Lungren, Atty. Gen., Henry G. Ullerich, Sr. Asst. Atty. Gen., Steven L. Simas, Deputy Atty. Gen., for defendant and appellant. Charles A. Pacheco and S. Alexandria Jo, Sacramento, for plaintiff and respondent.

Government Code section 11525 provides that upon failure of a subpoenaed witness to appear at an administrative hearing, “the agency shall certify the facts to the superior court in and for the county where the proceedings are held.”   In its review of the administrative order suspending plaintiff's driver's license (Veh.Code, § 13359), the superior court concluded Government Code section 11525 required defendant, the Director of the Department of Motor Vehicles (DMV), not only to “certify the facts” to the superior court, but also to initiate and prosecute proceedings in that court to compel compliance with the subpoena.   Because the DMV failed to initiate those proceedings, the court entered judgment setting aside the order suspending plaintiff's driver's license and awarded plaintiff attorney fees.

We conclude Government Code section 11525 means exactly what it says—“the agency shall certify the facts to the superior court”—and nothing more.   We shall therefore reverse.


Plaintiff was arrested for operating a motor vehicle while under the influence of an intoxicant.  (Veh.Code, § 23152.)   The arresting officer had observed plaintiff's vehicle “weaving” on the highway and, when the officer stopped plaintiff, he observed that plaintiff demonstrated symptoms of being under the influence, to wit, bloodshot or watery eyes, slurred speech, and an odor of alcohol.   The officer served plaintiff with a notice of suspension of his driver's license.  (Veh.Code, §§ 13353.2, 23158.5.)   A sample of plaintiff's blood was taken and tested, revealing a blood alcohol level of .12 percent.

Plaintiff requested a hearing before the DMV.  (Veh.Code, § 13558, subd. (a).)  Before the hearing, plaintiff requested and the DMV issued a subpoena for the Department of Justice criminalist who analyzed plaintiff's blood sample.   Plaintiff's counsel served the subpoena on the Department of Justice and contemporaneously tendered a witness fee of $150.  (Gov.Code, § 68097.2.)   Counsel was given a receipt for the fee and the fee was immediately returned to him.

At the hearing, the arresting officer's sworn report was received in evidence (Veh.Code, §§ 23158.2, 14104.7) as was a document reciting the results of plaintiff's blood test.  (Veh.Code, § 14104.7.)   Copies of the subpoena served on the Department of Justice and a receipt acknowledging service were also received.   No witness appeared in response to the subpoena.

Plaintiff requested that the hearing officer “take the necessary steps ․ under Government Code Section 11525 ․ to have the criminalist held in contempt of this proceeding,” or alternatively, set the license suspension aside.   The hearing officer instead offered to assist plaintiff “in the filing for a motion to compel” the criminalist's attendance, explaining that a transcription of the hearing and any papers necessary for a motion to compel would be made available, but it would be counsel's responsibility then to file the motion in superior court.   Responding to counsel's inquiry, the hearing officer stated the DMV would not assume the costs of the enforcement proceeding such as the superior court filing fee or plaintiff's attorney fees related thereto.   Counsel asserted enforcement of the subpoena was the obligation of the DMV and that it would impose “a financial burden” on plaintiff were he required to assume that obligation.   Counsel then “decline[d] ․ [the] DMV's offer to file a motion to compel [sic ] because that's, properly, the job of [the DMV] ․ and, or the State of California.”   The hearing officer issued a decision upholding the license suspension.

 A decision by the DMV following an administrative hearing may be reviewed by the superior court and will be set aside when the agency has “exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence in the record․”  (Veh.Code, § 13559.)

Plaintiff petitioned the superior court for review of the administrative decision, seeking to have the license suspension set aside.   The superior court entered judgment granting the requested relief, including an award of $740 in costs and attorney fees pursuant to Government Code section 800.   The court ordered the proceeding remanded to the hearing officer for enforcement of the subpoena and reconsideration.   The DMV appeals.


 Vehicle Code section 13353.2 requires the DMV immediately to suspend the driver's license of any person who drives a motor vehicle with a blood alcohol level of .08 or above.  (Peretto v. Department of Motor Vehicles (1991) 235 Cal.App.3d 449, 452, 1 Cal.Rptr.2d 392.)   The driver may request a prompt administrative hearing to review the suspension.

 DMV hearings are informal in nature.   The agency may consider its official records, including reports of arresting officers, and receive sworn testimony.  (Veh.Code, § 14104.7;  McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 526, 7 Cal.Rptr.2d 18.)

 At the hearing, the DMV is required to prove by a preponderance of the evidence:  (1) the arresting officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Vehicle Code sections 23136, 23140, 23152, or 23153;  (2) the person was placed under arrest;  and (3) for licensees over 21 years old, the person was driving with a blood alcohol level of .08 percent or greater.  (Veh.Code, § 13558, subd. (c)(2).)

 DMV administrative hearings are governed by the provisions of Vehicle Code section 14100 et seq.  (Lacy v. Orr (1969) 276 Cal.App.2d 198, 201–202, 81 Cal.Rptr. 276.)   All matters not covered by those Vehicle Code provisions are governed, as far as applicable, by the adjudication procedures of the Administrative Procedure Act (APA) contained in Government Code sections 11500 et seq.  (Veh.Code, § 14112.)  Government Code section 11525 is a part of the APA.

 At the request of a party, the DMV is required to issue subpoenas or subpoenas duces tecum for the attendance of witnesses or the production of documents at the administrative hearing.  (Veh.Code, § 14104.5.)   Since the Vehicle Code does not specify the procedure to enforce a subpoena in the event a subpoenaed witness fails to appear, the matter is governed by the APA.

Government Code section 11525 (hereafter section 11525) provides:  “If any person in proceedings before an agency disobeys or resists any lawful order or refuses to respond to a [subpoena], or refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or is guilty of misconduct during a hearing or so near the place thereof as to obstruct the proceeding, the agency shall certify the facts to the superior court in and for the county where the proceedings are held.   The court shall thereupon issue an order directing the person to appear before the court and show cause why he should not be punished as for contempt.   The order and a copy of the certified statement shall be served on the person.   Thereafter the court shall have jurisdiction of the matter.   The same proceedings shall be had, the same penalties may be imposed and the person charged may purge himself of the contempt in the same way, as in the case of a person who has committed a contempt in the trial of a civil action before a superior court.”  (Italics added.)

The superior court concluded the DMV failed to comply with section 11525.   Relying on Fitzpatrick v. Department of Motor Vehicles (1993) 13 Cal.App.4th 1771, 17 Cal.Rptr.2d 110, the court concluded section 11525 requires the DMV not only to “certify the facts to the superior court” but to initiate and prosecute proceedings in that court to enforce the subpoena.

In Fitzpatrick, the plaintiff's driver's license was suspended for refusal to take a blood test.   The arresting officer was subpoenaed to attend the administrative hearing but failed to appear, and the matter was continued.   Further attempts to subpoena the officer, both by the plaintiff and by the DMV, were unsuccessful.   At a rescheduled hearing, the hearing officer indicated the arresting officer was “injured” and “indefinitely unavailable.”  (13 Cal.App.4th at p. 1773–1774, 17 Cal.Rptr.2d 110.)

Over the plaintiff's objection, the matter proceeded without the arresting officer's testimony.   The officer's sworn report was received in evidence and the license suspension was upheld.   The driver petitioned for review in the superior court, seeking to set aside the suspension.   The petition was denied.  (13 Cal.App.4th at p. 1774, 17 Cal.Rptr.2d 110.)

The Court of Appeal reversed.   The court concluded the plaintiff driver had been “denied his constitutional and statutory rights to confront and cross-examine the [officer]” because of the DMV's refusal to “enforce the subpoena under Government Code section 11525.”  (13 Cal.App.4th at p. 1777–1778, 17 Cal.Rptr.2d 110.) 1  The court rejected the DMV's argument the driver failed to exercise due diligence in securing the officer's attendance by “commencing proceedings himself in the superior court.”  (13 Cal.App.4th at p. 1777, 17 Cal.Rptr.2d 110.)   The court explained:  “We do not believe ․ that in a simple license suspension hearing, the driver should be required to make herculean efforts to enforce an ‘absolute right to compel [the arresting officer's] attendance’ especially where the DMV itself had subpoenaed the officer and he had failed to appear.   The attorney fees and filing fees involved in a separate mandamus proceeding when added to the $150 witness fee for a peace officer could well be prohibitive to the ordinary citizen seeking a fair hearing from a bureaucracy he already supports with his taxes and license fees.”  (Ibid.)

In Fitzpatrick, it does not appear the DMV certified or offered to certify the facts to the superior court as required by section 11525.   Moreover, the plaintiff driver was not afforded a reasonable opportunity to enforce the subpoena because it did not become clear until the continued hearing that the DMV, which had also subpoenaed the officer, would not enforce the subpoena and the hearing officer insisted on proceeding without the arresting officer.   Nevertheless, the court based its decision on broader premises:  that something more than “[certification of] the facts” is required to invoke the superior court's jurisdiction under section 11525 to order compliance with the subpoena, and that the entire burden of that proceeding is on the DMV.

 In our view the Fitzpatrick court's interpretation of section 11525 is not warranted by the plain language of the statute.   As has often been said, in matters of statutory construction our fundamental concern is legislative intent.  (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.)   In order to determine intent, we begin with the language of the statute itself.   (Ibid.)  If the language is clear, there is no need to resort to other indicia of intent;  there is no need for construction.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   However, “[l]iteral construction should not prevail if it is contrary to the legislative intent apparent in the statute.   The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.  [Citations.]”  (Ibid.)

 Section 11525 plainly states that upon the failure of a subpoenaed witness to attend a hearing, “The agency shall certify the facts to the superior court.”  Section 11525 does not state that the agency is required to petition the superior court for relief, as the Fitzpatrick court would require, or otherwise to assist the party seeking to compel the witness's attendance.   Although the DMV may petition the superior court for an order compelling attendance, it is not required to do so.  (Gov.Code, § 11187.)   So also, any party seeking to compel the witness's attendance may petition the superior court for such an order.  (Gilbert v. Superior Court (1987) 193 Cal.App.3d 161, 167, 238 Cal.Rptr. 220.)

As part of the APA, section 11525 applies not only to DMV license suspension proceedings but to a multitude of administrative proceedings involving over 60 state agencies, as diverse as the Air Resources Board, the Department of Consumer Affairs, the Department of Education, the Highway Patrol, and the Board of Psychology.  (Gov.Code, § 11501.)   The APA generally governs professional licensing hearings (see, e.g., Silva v. Superior Court (1993) 14 Cal.App.4th 562, 17 Cal.Rptr.2d 577 [license to practice medicine];  Governing Board v. Felt (1976) 55 Cal.App.3d 156, 127 Cal.Rptr. 381 [dismissal of a tenured teacher] ), but its application is much broader.   The APA has been applied in administrative hearings involving the application for a license to construct and operate a low-level radioactive waste disposal facility (California Radioactive Materials Mgmt. Forum v. Dept. of Health Services (1993) 15 Cal.App.4th 841, 19 Cal.Rptr.2d 357), an attempt by an automobile manufacturer to relocate a dealership over the protests of neighboring dealers (Chrysler Corp. v. New Motor Vehicle Bd. (1993) 12 Cal.App.4th 621, 15 Cal.Rptr.2d 771), a dispute over a company's certificate of authority to transact insurance business in the state (National Auto. & Cas. Ins. Co. v. Downey (1950) 98 Cal.App.2d 586, 220 P.2d 962) and a charge that a company is selling time-share memberships without a permit (Cal–Am Corp. v. Department of Real Estate (1980) 104 Cal.App.3d 453, 163 Cal.Rptr. 729).

Considering the broad spectrum of proceedings and litigants to which section 11525 applies, it defies reason to suppose the Legislature, without expressly saying so, intended the public to foot the bill to enforce compliance with subpoenas for witnesses whose testimony is sought by professional licensees and profit making enterprises.   Where the litigant is, for example, a multi-million dollar corporation seeking to relocate a franchise or to construct a waste disposal facility, the burden of compelling the attendance of a nonappearing witness hardly seems “herculean.”   In fact, as applied to the burden on any administrative litigant to enforce a subpoena, that description is grossly exaggerated.   Court fees may be waived upon a proper showing of indigency (Gov.Code, § 68511.3;  Cal. Rules of Court, rule 985), and the APA provides for the waiver of witness fees upon good cause shown (Nick v. Department of Motor Vehicles (1993) 12 Cal.App.4th 1407, 1417, 16 Cal.Rptr.2d 305).   While attorney fees incurred to enforce a subpoena may, as plaintiff asserts, constitute a “financial burden,” enforcement is an integral part of the proceedings plaintiff has elected to prosecute, with the assistance of retained counsel, to set aside the suspension of his driver's license.

To the extent the superior court's jurisdiction to “issue an order directing the person to appear before the court and show cause why he should not be punished as for contempt” (§ 11525) is not invoked by the agency's certification of the facts, a question we do not here address, the burden of initiating the necessary additional process falls upon the party seeking to compel the witness's appearance rather than upon the agency.


 When the Department of Justice criminalist failed to appear at the administrative hearing, the DMV offered to certify the facts to the superior court so that plaintiff could obtain an order compelling attendance of the subpoenaed witness.   Plaintiff declined the offer and the matter proceeded without the witness.   The DMV was required to do no more, and the decision to uphold the suspension of plaintiff's driver's license was therefore not an abuse of discretion.

Because we reverse the superior court's judgment setting aside the suspension of plaintiff's driver's license, the award of attorney fees cannot stand.   Government Code section 800 authorizes attorney fees only where a party “prevails” in the underlying action.  (Cf. Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1094, 271 Cal.Rptr. 44).

The judgment is reversed and the matter remanded to the superior court with directions to enter judgment denying plaintiff's petition for review.   The DMV is to recover its costs on appeal.


1.   The court cited no authority for the proposition the plaintiff driver was denied his constitutional right to confront and cross-examine witnesses.  (Cf. U.S. Const.Amend. VI [“in all criminal prosecutions ․”];  Cal. Const., Art. I, § 15 [“the defendant in a criminal cause ․”].)

PUGLIA, Presiding Justice.

SPARKS and SIMS, JJ., concur.