California DMV Caselaw
Ahmed v. DMV
California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.
Court of Appeal, Fourth District, Division 3, California.
Viquar AHMED, Plaintiff and Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.
No. G034150.
(Super.Ct.No. 02CC12483).
Oct. 19, 2005.
Appeal from a judgment of the Superior Court of Orange County, John M. Watson, Judge. Affirmed.
Viquar Ahmed in pro. per., for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Elizabeth Hong and Celine M. Cooper, Deputy Attorneys General, for Defendant and Respondent.
OPINION
MOORE, J.
*1 The superior court did not err when it denied the petition for writ of mandate of appellant Viquar Ahmed. We affirm.
I
FACTS
A citizen reported appellant's erratic driving to the police. Police Officer J. Nigro of the Orange Police Department responded and followed appellant. Nigro observed appellant straddling between traffic lanes, and issued a notice of priority reexamination to appellant. When appellant failed to complete a priority reexamination, his driving privileges were suspended. Several months later, after appellant's visual acuity was tested and did not meet minimum standards, he was ordered to surrender his driver's license.
The Department of Motor Vehicles (DMV) gave three driving tests to appellant. He failed all of them.
Appellant filed a petition for writ of mandate in the superior court. His petition was denied. In his brief, appellant accuses almost everyone involved with the DMV as well as the superior court judge with appalling conduct.
II
DISCUSSION
Vehicle Code section 21061
Appellant argues the notice for priority examination was invalid because it did not comply with Vehicle Code section 21061. (All statutory references are to the Vehicle Code unless otherwise indicated.) He claims the police must write the nature of the illness or injury or impairment in the notice requesting reexamination.
Section 21061, subdivision (a) provides a traffic officer “may issue a notice of reexamination to any person who violates any provision of this division and who, at the time of the violation, exhibits evidence of incapacity to the traffic officer which leads the traffic officer to reasonably believe that the person is incapable of operating a motor vehicle in a manner so as not to present a clear or potential danger of risk of injury to that person or others if that person is permitted to resume operation of a motor vehicle.” Subdivision (b) states that ‘ “evidence of incapacity’ means evidence, other than violations of this division, of serious physical injury or illness or mental impairment or disorientation which is apparent to the traffic officer and which presents a clear or potential danger or risk of injury to the person or others if that person is permitted to resume operation of a motor vehicle.”
Nothing in the statute requires the officer to note the nature of an illness, injury or impairment. The test is the reasonable belief of the officer. In this case, appellant's visual impairment is strong evidence the officer held such a reasonable belief.
Sections 13950-13952
Appellant next contends suspension of his driving privileges was unlawful because the notice of suspension did not comply with sections 13950 through 13952. His argument is these sections provide that a notice of suspension must advise a driver of a right to a hearing, and his notice was invalid because it contained no such advisement.
Section 13950 states whenever the department determines grounds for reexamination are true and proposes to revoke or suspend a person's driving privileges, notice and opportunity to be heard shall be given before such revocation or suspension. Section 13951 requires the department to give notice and provide an opportunity to be heard when it proposes to refuse to issue or renew a driver's license. Section 13952 sets forth the contents of the statement it should give when notifying a person of the right to a hearing.
*2 The notification of suspension sent to appellant stated: “This action is taken under § 12819 of the Vehicle Code (VC) because the records of this department show that you did not appear, or failed to complete a PRIORITY REEXAMINATION requested by Orange County Police Department on June 29, 2000.[¶] This action will remain in effect until you complete the reexamination.”
Section 12819 mandates that, unless the person issued a notice of reexamination requests such within five working days, “the department shall peremptorily suspend the driving privilege of the person until the person has completed the reexamination and the department has taken the action prescribed....” Under the circumstances here, where appellant, did not request reexamination within five days of notice by Nigro, he cannot successfully claim he was unfairly deprived of notice and an opportunity to be heard.
Driving tests
Appellant next argues special driving tests for reexamination are not permitted “when millions of new driver's license applicants are given a ten-minute driving test and licensed regardless of age-a doctor's certificate is a proper alternative.” He further states the “DMV falsely states that Cal.Code of Reg., Title 13, Section 100.01 permits special test” and “[t]he DMV's counsel is a liar when she stated that ‘specials' are permitted pursuant to Cal.Code of Reg., Title 13, Section 100.01.”
In fact, the DMV acted properly. It is permitted to reschedule a reexamination at the “need of the department.” (Cal.Code Regs., tit. 13, § 100.01, subd. (b).)
Remand
Appellant claims when a record of administrative hearing is not available, the writ should be issued or the case should be remanded to the agency. He argues that the DMV destroyed the record of its proceedings. He relies on Chavez v. Civil Service Com. (1978) 86 Cal.App.3d 324 to support his position that either the writ should have been issued or the matter should have been remanded to the agency.
Tape recordings of proceedings on July 7, 2000, an interview on October 12, 2000 and a telephone hearing on January 16, 2001 were purged by the DMV pursuant to its usual procedure. At an October 8, 2002 hearing before a DMV hearing officer, appellant disputed the previous reexamination. At the conclusion of the hearing, appellant was permitted another driving test.
Appellant was given a third driving test by a third examiner. The examiner noted: “Mr. Ahmed did not demonstrate the ability to drive safely. The following critical error was observed: [¶] When entering merging lane to go into freeway, he came to almost a complete stop, vehicle behind us had to suddenly brake and I had to verbally assist him to ‘go’ to avoid a potential collision. There was a red signal light to the left of us that did not affect our lane. [¶] Dangerous Maneuver. [¶] Critical Driving Error.” The examiner concluded appellant's driving was unsatisfactory. After his third driving test, appellant was permitted another hearing. This time he attempted to rebut the results of the third test.
*3 Chavez v. Civil Service Com., supra, 86 Cal.App.3d 324, does state a plaintiff is entitled to have the entire record of the administrative proceedings presented to the court for review. ( Id . at p. 332.) But in the instant situation, the DMV started the process anew by affording appellant another opportunity to pass the driving test and challenge the results of the new test. It was not until 15 months after that third hearing that the court denied appellant's writ. Thus, even though some DMV records were destroyed and unavailable to appellant, it makes no difference because the DMV permitted appellant to retest.
Discovery
Next appellant contends discovery should have been permitted. He claims he was denied discovery “under false statements and non-existent statutes.” He contends the judge “is a liar and a crook when he stated in his minute order that the motion to compel answers to interrogatories does not comply with C.C.P. Section 2030(1). C.C.P. Section 2030(1) does not even exist.”
Appellant's brief does not direct this court to the underlying discovery requests or responses. It does not direct us to any motion to compel or any response thereto. Nor does it tell us whether or not such documents even exist.
“Production of a record insufficient to show whether the trial court was right or wrong is not the equivalent of demonstrating error [citation].” ( Crummer v. Zalk (1967) 248 Cal.App.2d 794, 796.) It is the burden of the party challenging an order on appeal to provide an adequate record to assess error. ( Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Because appellant has failed to furnish an adequate record of the discovery proceedings, the appeal must be decided against him on this issue.
Findings
According to appellant, “[t]here are no ‘findings' because findings were apparently concocted by DMV's counsel.” He points out the findings were not signed by the DMV officer and “[t]here is no way to determine, from the record, whether the findings were prepared by the DMV hearing officer.”
Appellant cites no authority to support his position that findings are void unless signed. Therefore, the point is waived. ( McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Nor does he cite any portion of the record to support his argument the DMV's findings were concocted by anyone, and we are unable to locate any support for his argument in the record. It is the obligation of an appellant to provide an adequate record for review. ( Dawson v. Toledano (2003) 109 Cal.App.4th 387, 402.) Accordingly we deem this portion of the appeal waived, too
III
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.