Thursday, June 4, 2020
Court of Appeal:
Superior Court Ordered to Grant Writ Requiring the State Agency Not to Put a Hold on Driving Privileges Based on Failure-to-Appear Unless the Motorist Willfully Breached a Written Pledge to Show Up
By a MetNews Staff Writer
The Department of Motor Vehicles is acting unlawfully in automatically suspending the licenses of motorists who have failed to appear on traffic citations in the absence of a judicial determination that they made a written promise to appear and willfully violated that pledge, the First District Court of Appeal has held, ordering that a writ of mandate be issued by the trial court forbidding the practice.
Justice Mark B. Simons of Div. Five wrote the opinion, filed Tuesday. It countermands a decision of Alameda Superior Court Judge Ioana Petrous who found that the DMV is proceeding appropriately in yanking licenses merely upon notice of a failure to appear, and without a conviction of the misdemeanor statute.
The case involves the interplay between two Vehicle Code sections.
Sec. 13365(a) provides that “[u]pon receipt of notification of a violation of subdivision (a) of Section 40508, the department shall take the following action” which is to “suspend the driving privilege of the person.” Sec. 40508(a) says that “[a] person willfully violating his or her written promise to appear…is guilty of a misdemeanor.”
“The parties dispute whether section 13365(a) requires the DMV to receive notification of a violation of the Misdemeanor Statute before it suspends a license following a failure to appear. The issue is easily resolved.”
He pointed out that the “plain language” of §13365(a) requires “notification of a violation of” §40508 before the DMV is authorized to suspend a license.
“To find no such notification required would render this statutory language a nullity,” Simon remarked.
Violation of §40508(a), he noted, requires two elements that go beyond simply not showing up in court: that a written promise to appear was made—as it would not have been if a citation was mailed following the motorist having been caught on camera speeding—and that the failure was willful.
‘Myriad of Explanations’
Addressing the willfulness requirement, the justice said:
“Plaintiffs argue that in some cases courts will have evidence of a lack of willfulness, for example, when a person ‘called the court clerk with a valid explanation for a non-willful failure to appear.’ In such cases, depending on the nature of the explanation and any other relevant facts, the trial court may determine the failure to appear was not willful.”
Simon said in a footnote that “[n]o purpose would be served by an effort to speculate about and then analyze the myriad of explanations a party might provide to a court regarding a failure to attend a required court date.” He did point, however, to an Advisory Committee comment to a rule of court relating to civil assessments for failing to pay or appear which says:
“Circumstances that indicate good cause may include, but are not limited to, the defendant’s hospitalization, incapacitation, or incarceration; military duty required of the defendant; death or hospitalization of the defendant’s dependent or immediate family member; caregiver responsibility for a sick or disabled dependent or immediate family member of the defendant; or an extraordinary reason, beyond the defendant’s control, that prevented the defendant from making an appearance or payment on or before the date listed on the notice to appear.”
Instructions on Remand
The opinion remands the case to the Alameda Superior Court with these instructions:
“[T]o (1) enter an order granting Plaintiffs’ petition for writ of mandate that is consistent with this opinion, (2) conduct a hearing and provide the parties with the opportunity to present their views and, if necessary, evidence concerning how the DMV should be instructed to come into compliance with Vehicle Code section 13365, including what constitutes a reasonable timeframe for compliance, and then, (3) provide the DMV with specific instructions on what it must do in what timeframe to comply with the writ. Plaintiffs are awarded their costs on appeal.”
The case is Hernandez v. Department of Motor Vehicles, 2020 S.O.S. 2571.
Two appellants were represented by Thomas V. Loran III and Sydney A. Ward of Pillsbury Winthrop Shaw Pittman, as well as by the USC Gould School of Law and five public interest law firms.
The case started out with a somewhat different focus. Four plaintiffs contended that where a motorist is financially unable to pay the fine for a traffic violation, the failure to pay or to appear is not willful.
The complaint, filed Oct. 25, 2016, declares:
“[T]he DMV has legal authority to suspend driver’s licenses of people who fail to pay traffic tickets or fail lo appear in court to contest traffic tickets only if such persons willfully failed to pay the traffic fine, or willfully failed to appear on the traffic ticket. In fact, the DMV has a practice of suspending the driver’s licenses of people who did not willfully fail to pay or appear—many thousands of whom have lost driving privileges simply because they were too poor to pay the fines. The DMV’s practices exceed its authority under the California Vehicle Code, violate the due process and equal protection rights of traffic defendants, and cause serious harm to hundreds of thousands of low-income Californians.”
The issues were narrowed by the Court of Appeal which issued an order on March 5 restricting oral argument to specified matters—those which were discussed in Simmons’s opinion.
Allegations of Complaint
The lead plaintiff, Guillermo Hernandez, it was averred, received a ticket in 2013 for not having a valid registration and having failed to update information on his driver’s license. It was recited that he came to court twice to pay the ticket but was told it was not in “the system”; lost his business that year and lacked finances; had $400 in fees and civil assessments added to the $500 fine based on failing to pay the ticket or to appear; and had a renewal of his license denied by the DMV when he applied for it.
“[T]he DMV suspended Mr. Hernandez’s license under Vehicle Code Section 13365 despite the absence of any opportunity to show good cause for failure to pay and despite the absence of any valid finding by the court that he had willfully failed to pay or willfully failed to appear, as required by Vehicle Code Section 40508,” the pleading sets forth, adding:
“Mr. Hernandez was never informed that he had a right to ask the court for an ‘ability to pay’ determination, nor did the court ever conduct such a hearing or assess whether Mr. Hernandez’s failure to pay was willful.”
Hernandez and plaintiff Beverly Tucker were the appellants. Tucker sued solely as a taxpayer.
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