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Court of Appeal, First District, Division 5, California.

Javier Palomino GONZALEZ, Petitioner, v. The MUNICIPAL COURT for the Bay Judicial District of Contra Costa County, Respondent; The PEOPLE of the State of California, Real Party in Interest.

No. A037986.

Decided: November 19, 1987

Jeffrey C. Bradley, Deputy Public Defender, Richmond, for petitioner. No appearance for respondent. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., David H. Rose, Deputy Atty. Gen., for real party in interest.

In this case we address a facet of the collateral estoppel effect of administrative proceedings in subsequent criminal prosecutions.   The issue before us is whether a ruling in a driver's favor in an administrative proceeding of the Department of Motor Vehicles (DMV or Department) should be accorded collateral estoppel in a subsequent criminal prosecution for driving under the influence.   We conclude that under controlling authority, People v. Sims (1982) 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321, the answer is yes.

Petitioner Javier Palomino Gonzalez is currently charged in respondent municipal court with driving under the influence of alcohol.  (Veh.Code, § 23152.)   One issue in the criminal case is whether Gonzalez refused to submit to a chemical test of his blood, within the meaning of Vehicle Code section 13353.   A driver's refusal of a chemical test is admissible at trial on the issue of guilt, and may lead to imprisonment and suspension or revocation of license.  (Veh.Code, §§ 23157, subds. (a)(1), (a)(4);  23159.)   In a prior administrative proceeding, a DMV hearing officer determined that Gonzalez did not refuse the test.   Consequently, Gonzalez moved the municipal court to accord the prior administrative determination collateral estoppel effect, to preclude the People from relitigating the refusal issue.   The municipal court denied the motion, and the superior court denied a petition for writ of mandate.   Gonzalez now invokes our power of discretionary “second-tier” writ review under Code of Civil Procedure section 904.1, subdivision (a)(4).


Following Gonzalez's arrest for driving under the influence, the DMV commenced license suspension proceedings based on the arresting officer's report of the alleged test refusal.  (See Veh.Code, § 13353, subd. (a).)  The DMV ordered that Gonzalez's license be suspended, after which Gonzalez challenged the Department order by requesting a formal administrative hearing before a Department hearing officer.  (Veh.Code, §§ 13353, subds. (a), (b), (c);  14107.)   Formal hearings are conducted by a referee or hearing board chosen by the Director of the Department and are subject to certain notice requirements.   The hearing officer may receive sworn testimony and documentary evidence, and a verbatim record is authorized.1  (Veh.Code, §§ 14107, 14108.)

The scope of Gonzalez's hearing was the resolution of four questions:  Whether the arresting officer had reasonable cause to believe Gonzalez had been driving under the influence;  whether Gonzalez was lawfully arrested;  whether the arresting officer had properly admonished Gonzalez of the consequences of refusal to submit to a chemical test, as described in Vehicle Code section 13353;  and whether Gonzalez did in fact refuse a test.  (See Veh.Code, § 13353, subd. (b).)  Gonzalez and the arresting officer testified to the facts surrounding the arrest and the alleged refusal.   The hearing officer evaluated the conflicting testimony and concluded the facts as testified to by Gonzalez “were more credible and accurate”;  that there was “no firm evidence” that Gonzalez was properly admonished pursuant to Vehicle Code section 13353;  and that Gonzalez “did not refuse to submit to” a chemical test.   Accordingly, the hearing officer set aside the Department's suspension order.

The decision of the hearing officer was subject to further review at the highest level of the Department.   The Director of DMV, personally or through a designee, is empowered to adopt or reject a decision of a hearing officer after a formal hearing and may substitute his/her own decision or remand the matter to a different hearing officer.  (Veh.Code, § 14110;  see McGraw v. Department of Motor Vehicles (1985) 165 Cal.App.3d 490, 492–494, 211 Cal.Rptr. 620).   The director's review is analogous to the provision of the Administrative Procedure Act for internal review by the agency of the decisions of its hearing officers.  (Id., at p. 494, 211 Cal.Rptr. 620;  see Gov.Code, § 11517, subd. (c);  Compton College Federation of Teachers v. Compton Community College Dist. (1980) 108 Cal.App.3d 437, 442, 166 Cal.Rptr. 595).   No such review was conducted, however, and the decision became final.

In subsequent criminal proceedings, Gonzalez argued that the DMV refusal ruling was entitled to collateral estoppel effect.   In both lower courts, Gonzalez contended that all the elements of collateral estoppel were present and that the doctrine extended to administrative proceedings by virtue of the Sims decision.   In both courts, the People conceded that the issue of refusal was identical in both proceedings and had been actually and necessarily litigated in the DMV hearing;  nevertheless the People maintained that neither Sims nor sound public policy supported Gonzalez's position.


 The three standard prerequisites of collateral estoppel are found in this case.   The refusal issue sought to be litigated in the second criminal action is identical to the one litigated in the first administrative action.   The first action has proceeded to a final judgment on the merits.   The district attorney, against whom the doctrine of collateral estoppel is now advanced, is in privity with a party to the first action, the Department.  (People v. Sims, supra, 32 Cal.3d at p. 484, 186 Cal.Rptr. 77, 651 P.2d 321;  Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 604, 25 Cal.Rptr. 559, 375 P.2d 439;  Lockwood v. Superior Court (1984) 160 Cal.App.3d 667, 671, 206 Cal.Rptr. 785).   The pivotal issue is whether the doctrine of collateral estoppel, normally applicable between two judicial proceedings, may apply between a prior administrative proceeding and a subsequent criminal prosecution.2

 In People v. Sims, supra, the Supreme Court observed that “[m]uch uncertainty and confusion exist in the case law as to whether the decisions of an administrative agency may ever collaterally estop a later action.”  (32 Cal.3d at p. 477, 186 Cal.Rptr. 77, 651 P.2d 321).   At issue in Sims was whether a decision of the Department of Social Services (DSS), at a hearing where the county welfare department unsuccessfully attempted to prove fraudulent acceptance of overpayments, could collaterally estop a subsequent criminal prosecution for welfare fraud.   The Supreme Court, relying on United States v. Utah Constr. Co. (1966) 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642, concluded that an administrative agency's determination of issues may have collateral estoppel effect in a later criminal action under certain circumstances.   The administrative agency must have acted “ ‘in a judicial capacity and resolve[d] disputed issues of fact ․ which the parties have had an adequate opportunity to litigate․’ ”  (Italics deleted.)  (People v. Sims, supra, 32 Cal.3d at p. 479, 186 Cal.Rptr. 77, 651 P.2d 321, quoting United States v. Utah Constr. Co., supra, 384 U.S. at p. 422, 86 S.Ct. at 1560).  Sims read Utah Constr. Co. and cognate federal cases as establishing a three-prong test of judicial capacity, resolution of disputed facts and adequate litigation opportunity.  (Ibid.)

Sims adopted the federal test for “judicial capacity,” which amounts to a search for “factors indicating that the administrative proceedings and determination possessed a ‘ “judicial” character.’ ”  (Id., 32 Cal.3d at p. 479, 186 Cal.Rptr. 77, 651 P.2d 321, quoting Shell Chem. Co., Div. of Shell Oil Co. v. Teamsters L.U. No. 676 (D.N.J.1973) 353 F.Supp. 480, 485.)   Sims listed such factors as whether the administrative hearing was a “judicial-like adversary proceeding”;  whether the proceeding allowed testimony of witnesses under oath and in the usual manner of a trial;  and whether the agency determination involved the adjudicatory application of a rule to a single set of facts.   The Supreme Court reviewed the DSS hearing procedure and noted the hearing was conducted before an impartial hearing officer, that all parties had the right to subpoena witnesses and present sworn testimony and documentary evidence, and that the DSS maintained a verbatim record of the proceedings.  (Id., 32 Cal.3d at pp. 479–480, 186 Cal.Rptr. 77, 651 P.2d 321).   The hearing officer's decision was adjudicatory in nature, applying a rule to a specific set of facts rather than formulating a policy rule to be applied to all future cases.  (Id., at p. 480, 186 Cal.Rptr. 77, 651 P.2d 321;  see Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34–35, fn. 2, 112 Cal.Rptr. 805, 520 P.2d 29).   The decision had to be in writing with a statement of reasons.  (See People v. Sims, supra, 32 Cal.3d at p. 480, 186 Cal.Rptr. 77, 651 P.2d 321).   The court also noted that after the hearing officer's decision had been adopted by the DSS director, the county had the right to seek rehearing before the agency and judicial review in superior court.  (Ibid.)

Sims concluded that the second and third prongs were satisfied because the agency hearing resolved the disputed fact question whether Ms. Sims had fraudulently accepted welfare benefits to which she was not entitled and because both parties to the dispute, Ms. Sims and the county, had had the full opportunity to fully litigate their respective positions before the hearing officer reached a decision.  (Id., at pp. 481–482, 186 Cal.Rptr. 77, 651 P.2d 321).   The court concluded that the administrative hearing conducted by the welfare department had collateral estoppel effect on the attempted relitigation of overpayments in the subsequent criminal proceeding.3

The Sims decision is not free from ambiguity.   While on the one hand the case seems to state a broad rule according collateral estoppel effect to any full-blown administrative hearing which functions as a “mini-trial” on fact issues, the precise scope of the ruling and its impact on the many varieties of administrative hearings in California are unclear.   This problem is exacerbated by an implicit, and perhaps unavoidable, element of circularity in the definition of “judicial capacity”:  an administrative hearing is of a judicial nature if it bears the hallmarks of judicial nature.   Nevertheless, we are bound by Sims, and, notwithstanding significant distinctions between the hearings of the DSS and those of the DMV, we are compelled to accord the latter collateral estoppel effect in the case before us.

All three prongs of the Sims/Utah Constr. Co. test appear to be satisfied in this case.   First, the DMV acted in a judicial capacity.   The hearing was conducted in an impartial manner in the fashion of an adversary proceeding.   The hearing officer accepted testimony on contested fact issues from opposing parties, Gonzalez and the arresting police officer.   As noted, ante, the subpoena power was presumably available.   A verbatim record was maintained.   The hearing officer applied set rules to a specific set of facts which he found to exist, as opposed to creating rules to apply to future fact patterns.   His decision was issued in writing.   Furthermore, the DMV, in the person of its director, had the opportunity to review the decision and set it aside.

Second, the DMV hearing resolved a contested issue of fact properly before it.   Third, although the structure of the DMV hearing differs from that present in Sims, we conclude the parties before the hearing officer had an adequate opportunity to fully litigate their claims.   We acknowledge that the welfare hearing in Sims bore a more formal adversarial structure than the DMV hearing below:  the county, seeking a finding of fraud, was squared off against the welfare recipient before a hearing officer of the DSS, a state agency, to whom each faction presented its case.   Although the DSS hearing officer was employed by the state agency having overall supervisory authority over county welfare departments (see Welf. & Inst. Code, § 10600;  also Ross v. Superior Court (1977) 19 Cal.3d 899, 906–907, 141 Cal.Rptr. 133, 569 P.2d 727), the hearing officer was not directly connected with the agency opposing the welfare recipient.   In Gonzalez's case, the hearing officer was a DMV employee.   Nevertheless, the adversarial character of the hearing was retained:  the People, in the person of a law enforcement officer, pressed the facts in what can only be a prosecutorial fashion.   The facts were subject to proof requirements and to counteraction by Gonzalez.   The hearing officer was empowered to rule against the People—and in a sense against his own agency—and in fact did so, subject to the director's power of review.   Although the hearing was not a formal trial it cannot be seriously doubted that the parties each had a full opportunity to litigate the facts surrounding Gonzalez's alleged refusal.

Focusing on the first prong of the Sims test, the Attorney General argues that DMV hearings are not judicial proceedings, and cites Beamon v. Dept. of Motor Vehicles (1960) 180 Cal.App.2d 200, 4 Cal.Rptr. 396.  Beamon did not involve collateral estoppel, but resolved a separation-of-powers challenge to DMV license revocation proceedings:  “It is well established that state-wide agencies empowered to revoke licenses ․ are not exercising judicial power as that phrase is used in the Constitution conferring judicial power on the courts․”  (Id., at p. 205, 4 Cal.Rptr. 396, italics added.)   It is a truism that an administrative agency is not a judicial body;  the question for Sims purposes is whether the agency acts in a quasi-judicial capacity.   Beamon is thus inapposite.  “The fact that statewide and local administrative agencies are prohibited from exercising ‘judicial power’ by the California Constitution does not mean that agency proceedings and determinations may never be judicial in nature.”  (People v. Sims, supra, 32 Cal.3d at p. 479, fn. 8, 186 Cal.Rptr. 77, 651 P.2d 321).

The Attorney General also argues that DMV hearings cannot be awarded collateral estoppel effect because they are informal and involve relaxed standards of proof and admissibility of evidence.   We are referred to Chamblin v. Municipal Court (1982) 130 Cal.App.3d 115, 181 Cal.Rptr. 636, which denied collateral estoppel effect to probation revocation hearings because their informality prevented “full and fair litigation” of complicity in the alleged criminal acts.  Chamblin was decided six months before Sims, which indicates that informality alone does not preclude according collateral estoppel effect to administrative proceedings.   The welfare hearing in Sims required only a preponderance standard of proof, and “was not conducted according to the rules of evidence applicable to judicial proceedings”;  these heralds of informality are not barriers to application of collateral estoppel and do not preclude a determination that the issues decided by the administrative agency have been “fully litigated” for purposes of collateral estoppel.  (People v. Sims, supra, 32 Cal.3d at pp. 479–480, 481, 485, 186 Cal.Rptr. 77, 651 P.2d 321).

The Attorney General advances a policy argument why Sims should not apply to Department proceedings.   He notes, quite correctly, that the DMV hearings are designed for expeditious resolution of driving privilege matters arising from the commission of traffic and related criminal offenses.   The Attorney General cites Justice Mosk's comments in In re Dennis B. (1976) 18 Cal.3d 687, 695, 135 Cal.Rptr. 82, 557 P.2d 514, concerning “the state's substantial interest in maintaining the summary nature of minor motor vehicle violation proceedings.”   Granting collateral estoppel effect in driving-under-the-influence cases would, in the opinion of the Attorney General, involve the district attorney in licensing proceedings involving errant drivers, and would convert the hearings into formal trials and replace the streamlined efficiency of the current proceedings with more cumbersome mechanisms.

We appreciate the concerns of the People but do not share their estimation of the impact of our holding.   We note first that Dennis B. was a Penal Code section 654 case, and involved the effect of a prosecution for a minor traffic infraction on a subsequent criminal proceeding for a related, but more serious, offense.   In ruling the infraction to have no bar on the criminal prosecution, the court found it would be unwarranted to require district attorneys to “[comb] through 3 million infractions each year to find those few that might additionally involve more serious offenses.”  (Id., at p. 695, 135 Cal.Rptr. 82, 557 P.2d 514, fn. omitted.)

This case deals not with the faceless common infraction but a high profile misdemeanor (which may be aggravated to a felony) of substantial public disapprobation.   Unlike the traffic offense at issue in Dennis B., administrative hearings in driving-under-the-influence cases would very frequently lead to criminal prosecution.   It does not seem altogether unreasonable to require some level of communication between the arresting officer, the DMV and the prosecutor, particularly in this day of computerized recordkeeping.   The district attorney may monitor DMV refusal hearings, or he/she may do nothing and accept collateral estoppel in the instance when a driver prevails.

In any case, the Sims decision compels our ruling in favor of Gonzalez.   Absent the Sims holding, we might have reached the opposite result.   Whether the result we reach is ultimately appropriate may have to be addressed by the Supreme Court, should it revisit Sims, or by the Legislature.   Given the harsh penalties and substantial social stigma attached to driving under the influence, the Legislature could well add additional elements of formality to the proceedings with little sacrifice of speed and efficiency.   If it is true, as the People argue, that the district attorney is barred from attending the hearing to represent the People, the Legislature could provide for such representation.4

 The Attorney General also argues that collateral estoppel is precluded by virtue of Vehicle Code section 40807, which provides that “[n]o record of any action taken by the department against a person's privilege to operate a motor vehicle, nor any testimony regarding the proceedings at, or concerning, or produced at, any hearing held in connection with such action, shall be admissible as evidence in any court in any criminal action.”   The Attorney General contends this statute forbids consideration of DMV actions in later criminal prosecutions.   The legislative history of this provision, which we have been provided, contemplates an adverse DMV action after a driver testifies at the DMV hearing;  the statute was designed to prevent the testimony from being introduced against the driver in a later criminal trial.   Moreover, a favorable DMV action is not “an action ․ against” a driving privilege, and the statute involves the admissibility of record evidence, not the applicability of the legal doctrine of issue-precluding collateral estoppel.   For these reasons, we conclude the reliance on the statute is misplaced.


 The Attorney General argues further that collateral estoppel should not attach to administrative hearings involving the policing of licensing standards.   He relies upon People v. Demery (1980) 104 Cal.App.3d 548, 163 Cal.Rptr. 814, which Sims distinguished and did not disapprove.   The Demery court held that a decision of the State Board of Medical Quality Assurance was not binding on a subsequent criminal prosecution.  Sims read Demery to preclude collateral estoppel because the objective of the administrative hearing was “merely to police licensing requirements rather than make determinations of guilt or innocence of criminal charges.”  (People v. Sims, supra, 32 Cal.3d at p. 483, fn. 13, 186 Cal.Rptr. 77, 651 P.2d 321;  see People v. Demery, supra, 104 Cal.App.3d at pp. 560–561, 163 Cal.Rptr. 814).  Sims appeared to distinguish a licensing hearing from a welfare hearing whose “function ․ was virtually identical to [a] criminal trial” because the object of the hearing was to “determine whether respondent had obtained welfare to which she was not entitled.”  (People v. Sims, supra, at p. 483, fn. 13, 186 Cal.Rptr. 77, 651 P.2d 321).

We do not find Demery persuasive.   The case makes an artificial distinction between proving facts to show “guilt or innocence” or proving facts to show a license violation.   The same facts may be involved in both determinations, yet the mere fact that the behavior at issue happens to be subject to a licensing requirement would preclude application of collateral estoppel.   The presence or absence of a licensing requirement should not determine whether a criminal defendant is to be extended the benefit of the collateral estoppel doctrine.   Furthermore, we are not persuaded that Sims cites Demery with apparent approval.   The court's discussion of Demery, expressed entirely within a footnote, reads as a rejection of an argument expressed specifically to that case without a necessary approval of its holding.   Without a clearer indication we are not bound to conclude Demery is anything more than a decision of a Court of Appeal we are not obligated to follow.

Even if the Supreme Court has adopted Demery, however, we are of the view that its reasoning does not apply to the case before us.   The administrative determination here involved more than a simple policing of a licensing standard.   The fact of refusal is central to the question of criminal guilt or innocence.   A test refusal is admissible in a driving-under-the-influence prosecution as an implied admission of guilt.  (See 1 Witkin, Cal. Evidence (3d ed. 1986) § 664, subd. (i), p. 650;  see also South Dakota v. Neville (1983) 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 [admission of refusal does not violate privilege against self-incrimination].)  Thus, the operative fact of refusal in Gonzalez's administrative proceeding bears directly on the question of guilt and cannot be governed by Demery.

We hold only that the People may not relitigate the issue of refusal, not that they are prevented from any further prosecution of Gonzalez for driving under the influence or another appropriate offense.   Let a peremptory writ of mandate issue commanding respondent municipal court to vacate its order denying Gonzalez's motion for application of the doctrine of collateral estoppel, and to enter in its place and stead a new and different order granting said motion, consistent with the views expressed in this opinion.   The stay of proceedings heretofore imposed shall remain in effect until the finality of this opinion.


1.   The subpoena power is also available.   Subpoenas may issue as a matter of course in informal hearings (Veh.Code, § 14104.5), and courts have assumed the subpoena process would be available for formal hearings (see Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536, 189 Cal.Rptr. 512, 658 P.2d 1313), at least to the extent that the driver may subpoena the arresting officer (Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1376, 240 Cal.Rptr. 281).

2.   We note that the Attorney General's return to the alternative writ appears to argue that the district attorney is not in privity with the DMV.   An argument in derogation of privity is inconsistent with the position of the People in both lower courts, where the People essentially conceded that the elements of collateral estoppel are present but argued the doctrine should not be invoked between administrative and criminal proceedings.   The district attorney and the DMV are in privity as two arms of the same government.  (See Buttimer v. Alexis (1983) 146 Cal.App.3d 754, 760, 194 Cal.Rptr. 603;  see also Shackelton v. Department of Motor Vehicles (1975) 46 Cal.App.3d 327, 331, 119 Cal.Rptr. 921).

3.   In so doing, the court held that the county welfare department and the district attorney were in privity as agents of the same government.  (People v. Sims, supra, 32 Cal.3d at p. 487, 186 Cal.Rptr. 77, 651 P.2d 321;  see fn. 2, ante.)

4.   The Attorney General asserts the People are barred from DMV hearings, and promised to establish that fact with exhibits to be filed in this court.   Such proof has not been provided.   The Attorney General asked us to take judicial notice of portions of the DMV driver improvement manual, but neglected to provide us with copies of the text thereof.  (See Evid.Code, § 453, subd. (b).)

LOW, Presiding Justice.

KING and HANING, JJ., concur.

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