Thursday, March 26, 2026
Page 3
Court of Appeal:
Validity of DMV Hearing Does Not Turn on Advocacy Inquiry
Opinion Says Cases Addressing Whether Due Process Rights Were Violated by Asking Whether Hearing Officer Took on Role of Advocate Miss Mark, Only Question Is Whether Process Poses Unacceptable Risk of Bias
By Kimber Cooley, associate editor
Div. Five of the First District Court of Appeal has rejected the view that a California Department of Motor Vehicles hearing violated a petitioner’s due process rights because the presiding administrative officer ruled on evidentiary objections relating to documents that the same adjudicator moved to introduce.
Saying that the petitioner “frame[d] the constitutional issue incorrectly” by focusing on whether the hearing officer acted as an advocate for the department in the proceedings, Justice Gordon B. Burns, writing for the court, opined that, “[p]roperly framed, the question presented is whether the combination of functions poses an unacceptable risk of bias.”
In Tuesday’s opinion, joined in by Presiding Justice Teri L. Jackson and Justice Danny Y. Chou, Burns offered a critique of recent cases dealing with the administrative hearing process overseeing licensure to drive in California, saying:
“[W]e believe that some of these cases conflict with our Supreme Court’s precedent by employing an appearance of bias standard for assessing an adjudicator’s impartiality and by overlooking the presumption of impartiality that courts afford to adjudicators.”
New Wrinkle
The decision presents a new wrinkle in the jurisprudence surrounding the department’s adjudicatory process, under which hearing officers are empowered to introduce evidence, rule on objections, and sit as a neutral trier of fact. In 2022, Div. Four of this district announced, in the California DUI Lawyers Assn. v. Department of Motor Vehicles case, that it offends due process for the same employee to act as both an advocate and adjudicator in such proceedings.
Last year, the California Supreme Court granted review over the 2025 decision by Div. One of the Fourth District Court of Appeal in Romane v. Department of Motor Vehicles.
That court, following case law interpreting the California DUI Lawyers rule, analyzed a due process challenge by assessing the adjudicator’s behavior and held that “where…a hearing officer merely introduces the documents that law enforcement duly forwarded to the [Department of Motor Vehicles],…the officer is merely collecting and developing evidence, not advocating” for the department.
Tuesday’s decision cites the Romane opinion as one example where “case law has taken a wrong turn” by looking at the appearance of bias purportedly inherent in having an adjudicator fill multiple roles.
Suspension of License
Challenging the suspension of his driver’s license was Pengfei Chi, who suffered the penalty after he allegedly rebuffed requests to submit to blood-alcohol testing following an arrest for drunk driving in 2022. Vehicle Code §13353 provides for the temporary loss of the privilege to operate a motor vehicle, which may be challenged by way of an administrative hearing, upon such a refusal.
Chi challenged the suspension at a hearing held in February 2024, asserting that he did not understand the officers’ request because English was not his native language. After a department adjudicator sustained the agency’s action, Chi filed a petition for writ of mandate.
On Nov. 21, 2024, Alameda Superior Court Judge Michael M. Markman denied Chi’s petition.
Due Process Principles
Burns remarked:
“[T]he due process standard is more limited than statutes and ethical rules that are designed to prevent bias or the appearance of bias….Due process establishes a constitutional floor, not a uniform standard….While an appearance of bias may violate a statute…, it does not violate the due process clause.”
Adding that “[t]he controlling principle for determining unconstitutional bias rests on the general concept that an adjudicator must remain disinterested in the outcome of the case,” he opined:
“Unless an adjudicator has a financial interest, the adjudicator is presumed to be impartial, and the burden of establishing bias rests on the party that claims it….Unless the party offers [proof] of…circumstances, demonstrating an unacceptable risk of bias, an adjudicator is presumed to be capable of judging the case fairly.”
Adversarial Mode
Saying that “[t]he constitution does not require agencies to use the adversarial trial mode,” he reasoned that “[d]ue process thus allows the government flexibility to combine investigator, prosecutor, and adjudicator functions within a single agency.” He commented:
“Courts have sometimes found due process violations where an agency combined prosecutor and adjudicator functions in ways that posed an unacceptable risk of bias….When a prosecutor is the adjudicator, for example, a risk of bias stems from the fact that a single person sits in judgment of her own prosecution….Similarly, when a prosecutor advises an adjudicator, there is a risk that the prosecutor will give the adjudicator advice that is skewed toward the prosecutor’s position….But, in general, there is no magic formula.”
The jurist continued:
“When it comes to structures that combine investigator and adjudicator functions, our Supreme Court has consistently rejected due process challenges….Agencies may dispense with partisan advocates, leaving to the adjudicator the task of both developing the facts and making a final decision.”
Combination of Roles
Applying those principles, he said:
“[Chi] never explains, even theoretically, how the particular combination of roles that he highlights—the hearing officer’s introduction of relevant evidence and ruling on objections—presents an unacceptable risk of bias…. Essentially, Chi is complaining that the administrative 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….Having presented no evidence of an unacceptable risk of bias, Chi has failed to rebut the constitutional presumption that the hearing officer was unbiased.”
Asserting that Romane and other cases erred in “assess[ing] the hearing officer’s behavior to determine whether he or she acted like an advocate,” he declared that “this new due process test turns on how the reviewing court categorizes, or labels, the hearing officer’s actions—i.e., either advocacy or not advocacy.”
Contradicts Precedent
Arguing that “we believe that [this] approach contradicts our Supreme Court precedent,” he commented:
“[T]he focus is on appearances rather than disqualifying interests. The court scrutinizes the adjudicator’s actions and characterizes them as advocacy or not advocacy. If it looks like advocacy, the implication is that the adjudicator appeared to favor the department. But the court never identifies…any circumstances that would tempt an average adjudicator to favor the department….The department instructs its hearing officers not to favor either side. [This] test effectively discards the presumption of ‘honesty and integrity in those serving as adjudicators.’ ”
Burns added:
“Adjudicators need some latitude to do their jobs….Under the test [adopted in the wake of the California DUI Lawyers decision], however, adjudicators will be constantly looking over their shoulders, afraid of doing or saying something that might be interpreted as advocacy.”
The case is Chi v. Department of Motor Vehicles, A172237.
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