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AUSTIN v. VALVERDE
211 Cal.App.4th 546 (2012)
149 Cal. Rptr. 3d 755
RONALD M. AUSTIN, Plaintiff and Appellant,
v.
GEORGE VALVERDE, as Director, etc., et al., Defendants and Respondents.
No. B237968.
Court of Appeals of California, Second District, Division Eight.
November 30, 2012.
OPINIONRUBIN, Acting P. J. — Ronald M. Austin appeals from the court's dismissal of his petition for writ of mandate ordering the Director of the Department of Motor Vehicles (DMV) to set aside DMV's suspension of his driver's license for refusing to submit to a chemical test of his blood-alcohol concentration (BAC). We remand for further proceedings in the trial court to permit appellant to prosecute his petition with the assistance of a copy of the transcript from the DMV administrative hearing that led to suspension of his license. FACTS AND PROCEEDINGSOn July 4, 2010, California Highway Patrolman T. Dalton arrested appellant for suspected drunk driving. Patrolman Dalton transported appellant to Ventura County Medical Center for a chemical test of appellant's BAC. Appellant alleges a dispute developed at the medical center between him and the patrolman about the types of chemical tests available to measure his BAC. Appellant expressed a preference for a urine test, but the patrolman informed him a urine test was not an "option." Accordingly, appellant submitted to a blood test. The administrative record contains what appears to be a report from the Ventura County Sheriff's Office forensic laboratory stating appellant's BAC was 0.22 percent in a blood sample drawn less than one hour after his arrest.
Seven weeks later on August 26, 2010, DMV convened an administrative hearing on whether to suspend appellant's license for refusing to submit to a chemical test of his BAC. At the hearing's conclusion, DMV suspended appellant's license for one year effective September 29, 2010, because appellant "refused to submit to or failed to complete a chemical test requested by a peace officer." A month later (shortly before his suspension was to take effect), appellant filed a petition for writ of mandate seeking an order directing respondent George Valverde in his capacity as DMV's director to set aside the suspension, or to show cause for refusing to do so. Appellant's petition alleged that when Patrolman Dalton directed appellant to submit to a chemical test or face suspension of his license, appellant agreed to what he understood was the patrolman's offer of a urine test. But, the petition further alleged, when Patrolman Dalton withdrew the offer of a urine test, appellant acquiesced without physical resistance to a blood test. Appellant filed with his petition an application for waiver of court fees and costs, which the court granted.Appellant requested that DMV prepare the administrative record.1 Contending that he needed a copy of the administrative hearing transcript to prosecute his petition, appellant asked that DMV provide him a free copy of the transcript based on his in forma pauperis status. DMV refused. Accordingly, appellant filed with the trial court a motion to compel production of the transcript. DMV opposed the motion, arguing that the law required DMV only to prepare the record, not to give a free copy of it to appellant. At the hearing on appellant's motion, the court ordered DMV to lodge the record, including the administrative hearing transcript, with the court. The court denied, however, appellant's request that DMV provide a free copy of the transcript to him. The court ruled, "[DMV] has the obligation to prepare the transcript[, but a fee waiver] doesn't require [DMV] provide copies of the transcript directly to [appellant]."
1. See Government Code section 11523 (administrative agency shall prepare administrative record upon petitioner's request and (in a typical case) petitioner's payment of cost of preparation). The parties dispute the details and chronology of appellant's request that DMV prepare the record, and whether appellant gave DMV a copy of the fee-and-cost-waiver order. (See Cal. Code Regs., tit. 1, § 1038, subd. (f) ["A party seeking a waiver of fees and costs to prepare the record for the purpose of judicial review under Code of Civil Procedure section 1094.5 who has been declared in forma pauperis ... shall submit a valid order issued by the Superior Court." (citation omitted)].) Be that as it may, this dispute is immaterial to this appeal because appellant acknowledges that DMV prepared and lodged the administrative record with the court without charging appellant.
2. Since 1982, the cross-reference to statutes and court rules has changed to reflect renumbering of the cross-referenced statutes. (Compare Historical and Statutory Notes, 18B West's Ann. Code Civ. Proc. (2007 ed.) foll. § 1094.5, p. 290 with Historical and Statutory Notes, 18B West's Ann. Code Civ. Proc. (2012 supp.) foll. § 1094.5, p. 40.)
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