The opinion
Filed 4/4/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ERIC BEAN KNUDSEN,
F085992
Plaintiff and Appellant,
(Kern Super. Ct.
v. No. BCV-22-100422)
DEPARTMENT OF MOTOR VEHICLES et al.,
OPINION
Defendants and Respondents.
APPEAL from an order of the Superior Court of Kern County. Thomas S. Clark,
Judge.
Middlebrook & Associates, Richard O. Middlebrook, and Gabrielle A. Burnett for
Plaintiff and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Gary S. Balekjian, and Kaprisha
L. Vallecillo, Deputy Attorneys General, for Defendants and Respondents.
-ooOoo-
This appeal involves the suspension of plaintiff and appellant Eric Bean Knudsen’s
(“Knudsen”) driver’s license from an administrative per se (APS) hearing. A hearing
officer for respondent Department of Motor Vehicles (“DMV”) concluded that Knudsen
had driven his car with a blood-alcohol content (BAC) of 0.08 percent or greater.
Knudsen challenged the hearing officer’s decision through a writ of mandate in the Kern
County Superior Court. The writ of mandate was denied, and the suspension sustained,
by the trial court. Here, Knudsen argues in part that his state and federal due process
rights were violated because the hearing officer who conducted the APS hearing was not
constitutionally impartial.
In part, California DUI Lawyers Assn. v. DMV (2022) 77 Cal.App.5th 517, 532–
533 (DUI Lawyers) held that an administrative public hearing officer who acts as both an
advocate and adjudicator violates a driver’s due process right to an impartial adjudicator.
However, the issue of how to resolve a driver’s due process challenge to an APS hearing
following DUI Lawyers has not been addressed by California courts. As we explain
below, we conclude that to resolve such a challenge, it is first necessary to determine
whether a particular driver’s due process right to an impartial adjudicator was violated.
Consistent with DUI Lawyers, that determination is made by assessing the administrative
record and the revocation decision to see if the public hearing officer actually acted as
both an adjudicator and an advocate, or merely acted as an adjudicator and a collector
and developer of evidence. If the relevant documents demonstrate that the public hearing
officer did not act as an advocate, then the driver’s due process right to an impartial
adjudicator was not violated, and the constitutional issue is resolved. If the relevant
documents demonstrate that a public hearing officer actually acted as an advocate, then
the driver’s due process right to an impartial adjudicator is violated. In the latter
circumstance, because we conclude that a violation of the due process right to an
impartial adjudicator is a structural error, then the driver is entitled to a new APS hearing
before a constitutionally impartial adjudicator.
Here, we conclude that the public hearing officer acted as both an adjudicator and
an advocate, which entitles Knudsen to a new APS hearing. Therefore, we will reverse
and remand for a new APS hearing.1
1 Knudsen requests that we take judicial notice of the Second District’s docket for
DUI Lawyers, supra, 77 Cal.App.5th 517 in order to show the vast body of evidence
before that court. Because we cannot conclude that the information in the Second
2.
PROCEDURAL BACKGROUND
On June 14, 2021, Knudsen was arrested for violation of Vehicle Code
section 23152, subdivision (a) (driving under the influence of alcohol).2
On February 4, 2022, an APS hearing pursuant to section 13557 was conducted.
On February 8, 2022, the APS public hearing officer found that Knudsen had been
lawfully arrested and had driven with a BAC of 0.08 percent or greater. As a result,
Knudsen’s license was suspended pursuant to sections 13353.2 and 13353.3.
On February 22, 2022, Knudsen filed a writ of mandate with the Kern County
Superior Court to challenge the suspension determination.
On March 1, 2023, the trial court denied the writ of mandate and concluded that
the weight of the evidence supported the suspension.
On March 28, 2023, Knudsen filed a notice of appeal.
FACTUAL BACKGROUND
In June 2021, at around 3:30 p.m. in Santa Cruz County, California Highway
Patrol (CHP) Officer Metildi was dispatched to investigate a report of a man sitting in a
car on the side of the road who had been attacked by his intoxicated wife. When Metildi
arrived on scene, he saw Knudsen sitting in a running car parked on the shoulder of the
road, a little girl (Knudsen’s daughter) in the backseat of the car, and a woman
(Knudsen’s wife) standing outside the car. Metildi smelled alcohol on Knudsen and
observed that Knudsen’s eyes were red and watery, but Knudsen’s speech was normal.
Knudsen stated that he had been drinking from about 9:00 a.m. to 2:30 p.m., had
consumed four beers, and had started to drive at 3:00 p.m. Knudsen said that he was on
District’s docket is necessary, helpful, or sufficiently relevant to resolution of this appeal,
we deny Knudsen’s request for judicial notice. (See Abatti v. Imperial Irrigation Dist.
(2020) 52 Cal.App.5th 236, 249, fn. 6; Center for Community Action & Environmental
Justice v. City of Moreno Valley (2018) 26 Cal.App.5th 689, 695, fn. 4.)
2 Unless otherwise noted, all further undesignated statutory references are to the
Vehicle Code.
3.
his way home to Concord, California. Metildi then administered four field sobriety tests.
Although Knudsen passed the “walk and turn” test, he performed poorly on the
“horizontal gaze nystagmus,” “one leg stand,” and “modified Romberg balance” tests.
Metildi then administered two preliminary alcohol screening (PAS) tests at 4:37 p.m. and
4:39 p.m., which yielded BAC results of 0.86 percent and 0.84 percent, respectively. In
light of Knudsen’s poor performance on the field sobriety tests, the PAS results, and his
admission of driving prior to Metildi’s arrival, Metildi placed Knudsen under arrest for
violation of section 23152, subdivision (a). Metildi then administered two evidentiary
breath tests (on a different device from the one he took the PAS tests) at 4:45 p.m. and
4:48 p.m., which yielded BAC results of 0.09 percent and 0.09 percent.
APS SYSTEM
In California, the DMV must immediately suspend the driver’s license of a person who is
driving with BAC of 0.08 percent. (§ 13353.2, subd. (a)(1).) However, drivers have a right to an
administrative hearing before the suspension of a license takes effect. At the hearing, which is
known as an APS hearing, a public hearing officer determines: whether an arresting officer had
reasonable cause to believe the driver was driving, whether the driver was lawfully arrested, and
whether the driver was driving with a BAC of 0.08 percent or greater. (Evans v. Gordon (2019)
41 Cal.App.5th 1094, 1101.) The Legislature crafted the APS laws to address the time lag that
often occurs between an arrest and a conviction for driving while intoxicated or with a
prohibited blood-alcohol concentration. (MacDonald v. Gutierrez (2004) 32 Cal.4th 150,
155.) “[A]rrestees who would eventually be convicted of an intoxication-related driving
offense were permitted to continue driving and, possibly, endangering the public.” (Ibid.)
Additionally, arrestees “with extremely high blood-alcohol concentration levels at the
time of arrest could escape license suspension or revocation by plea bargaining to lesser
crimes or entering pretrial diversion. Thus, by providing for an administrative license
suspension prior to the criminal proceeding, the law affords the public added protection.”
(Ibid.)
4.
DISCUSSION
I. Forfeiture of Constitutional Error
A. Parties’ Arguments
The DMV argues that, because Knudsen did not object or raise the issue of his due
process right to an impartial adjudicator at the APS hearing, he has forfeited the issue.
Knudsen responds, among other things, that an objection would have been “fruitless” and
futile.
B. Analysis
The DMV is correct that claims or constitutional issues not raised in earlier civil or
administrative proceedings are generally forfeited. (See In re Marriage of Minkin (2017)
11 Cal.App.5th 939, 958; Southern Cal. Underground Contractors, Inc. v. City of San
Diego (2003) 108 Cal.App.4th 533, 549.) However, appellate courts also have
traditionally excused parties for failing to raise an issue below where an objection would
have been futile. (See People v. Gomez (2018) 6 Cal.5th 243, 286–287; In re S.F. (2023)
91 Cal.App.5th 696, 725; Teacher v. California Western School of Law (2022)
77 Cal.App.5th 111, 129; In re Valerie A. (2007) 152 Cal.App.4th 987, 1001.) Further,
appellate courts have the discretion to consider a pure question of law involving
undisputed facts even if the question was not raised below. (Fort Bragg Unified School
Dist. v. Colonial American Casualty & Surety Co. (2011) 194 Cal.App.4th 891, 907 (Fort
Bragg); Mito v. Temple Recycling Center Corp. (2010) 187 Cal.App.4th 276, 279 (Mito).)
In this case, we do not believe that the forfeiture rule should be applied. First, the
issue of whether Knudsen’s due process rights were violated involves only the undisputed
facts of the record below and raises a question of law. (Linton v. DeSoto Cab Co., Inc.
(2017) 15 Cal.App.5th 1208, 1215; Hall v. Superior Court (2016) 3 Cal.App.5th 792, 808
(Hall).) As such, we may consider the issue. (Fort Bragg, supra, 194 Cal.App.4th at
p. 907; Mito, supra, 187 Cal.App.4th at p. 279.) Second, at the time of Knudsen’s APS
hearing, the DMV had been actively defending litigation in DUI Lawyers in which due
5.
process challenges were being made to the DMV’s APS system and policies. (DUI
Lawyers, supra, 77 Cal.App.5th at pp. 526–528.) Given the DMV’s defense of its
policies during active litigation at the time of Knudsen’s APS hearing, we do not see any
reasonable chance of the public hearing officer/DMV doing anything other than
overruling an objection. Thus, an objection to the constitutionality of the APS system
would have been futile.
II. Nature of the Constitutional Error in DUI Lawyers
A. Parties’ Arguments
Knudsen argues that DUI Lawyers found that the structure of the APS hearing
violated due process because the public hearing officer acts as both an advocate and an
adjudicator. Knudsen argues that because DUI Lawyers found a structural error, and
because that error was present at his hearing, the APS decision must be reversed without
regard to harm.
The DMV responds that actual bias and prejudice are necessary to reverse a
judgment based on a due process violation. Indeed, Knudsen cannot demonstrate actual
bias or prejudice because the record reflects that the public hearing officer admitted
evidence without objection and permitted Knudsen to admit the evidence and call the
witnesses that he wanted. Further, the structural error doctrine should not be imposed in
this case. The three factors from Weaver v. Massachusetts (2017) 582 U.S. 286 that have
been adopted by the California Supreme Court to consider whether the structural error
doctrine should be applied in noncriminal cases weigh against finding a structural error.
First, the APS system is designed to ensure a correct nonerroneous result is reached.
Second, the entire record of the APS system is present, which permits review for
substantial evidence, errors, and harmlessness without the need for speculation. Third,
there was nothing fundamentally unfair about Knudsen’s APS hearing, and finding that
there was structural error would exact a particularly steep cost. Specifically, there are
100,000 citations for driving with a BAC over 0.08 percent. Of those 100,000 citations,
6.
40,000 result in an APS hearing. Finding structural error could result in dangerous
drivers getting back on the road, contrary to the legislative purpose behind the APS
system.
We do not fully agree with the analysis of either Knudsen or the DMV.
B. Relevant Case Law
1. Due Process Right to Impartial Adjudicator in an Agency
Hearing
“Where due process requires an administrative hearing, the individual has the right
to a tribunal ‘which meets at least the currently prevailing standards of impartiality.’ ”
(Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657; see Hackethal v.
California Medical Assn. (1982) 138 Cal.App.3d 435, 442; Blinder v. Tom (1986)
181 Cal.App.3d 283, 295.) An impartial adjudicator, even in the agency setting, is an
“irreducible minimum” requirement of due process. (Today’s Fresh Start, Inc. v. Los
Angeles County Office of Education (2013) 57 Cal.4th 197, 212 (Today’s Fresh Start).)
The currently prevailing standards of impartiality recognize that the right to an impartial,
nonbiased adjudicator is violated in one of two ways, through either (1) actual bias, or
(2) a constitutionally intolerable probability of bias. (Morongo Band of Mission Indians
v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737 (Morongo Band); see
Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. 868, 883–884 (Caperton); Today’s
Fresh Start, at pp. 219, 221; see also Williams v. Pennsylvania (2016) 579 U.S. 1, 4, 14
(Williams); Withrow v. Larkin (1975) 421 U.S. 35, 47, 55 (Withrow).) To demonstrate a
due process violation of the right to an impartial adjudicator, the complaining party must
lay a specific foundation that is supported by specific evidence that demonstrates either
actual bias or a constitutionally intolerable probability of bias. (Todays’ Fresh Start, at
p. 221; Morongo Band, at p. 741.)
While driving is a privilege afforded by the issuance of a license by the state
(People v. Linares (2003) 105 Cal.App.4th 1196, 1199), once a driver’s license is issued,
7.
the driver has a property right in the license, and the license cannot be revoked or
suspended unless certain constitutional due process protections are followed. (Bell v.
Burson (1971) 402 U.S. 535, 539 [explaining that procedural due process requirements
limit the power to terminate an entitlement such as a driver’s license irrespective of
“whether the entitlement is denominated a ‘right’ or a ‘privilege’ ”]; DUI Lawyers, supra,
77 Cal.App.5th at p. 524.) The due process protection of an impartial adjudicator is one
such due process protection that applies when the government attempts to suspend or
revoke a driver’s license. (DUI Lawyers, at p. 524.)
2. DUI Lawyers
The Second District recently addressed the requirement of an impartial adjudicator
within the APS hearing context. DUI Lawyers involved a challenge to a DMV policy that
required the same DMV employee to, among other things, act as both an adjudicator and
an advocate. (DUI Lawyers, supra, 77 Cal.App.5th at p. 526.) DUI Lawyers reviewed
several California cases that had examined the due process implications of overlapping
functions within an agency. (Id. at p. 531.) From its review, DUI Lawyers concluded
that case law supported the following proposition:
“Although procedural fairness does not prohibit the combination of the
advocacy and adjudicatory functions within a single administrative agency,
tasking the same individual with both roles violates the minimum
constitutional standards of due process. The irreconcilable conflict between
advocating for the agency on one hand, and being an impartial decision
maker on the other, presents a “ ‘particular combination of circumstances
creating an unacceptable risk of bias.’ ” (Today’s Fresh Start, supra,
57 Cal.4th at p. 221, quoting Morongo Band … [, supra,] 45 Cal.4th [at
p. 741.)” (Id. at 532.)
Of note, DUI Lawyers acknowledged that an agency could have a single
individual perform multiple functions, such as collecting and developing evidence and
acting as an adjudicator, without violating the constitutional right to due process. (DUI
Lawyers, supra, 77 Cal.App.5th at p. 533, fn. 5.) The constitutional problem arose only
8.
from the public hearing officer acting as advocate and adjudicator. (Ibid.) Because the
DMV acknowledged that it “is a party to an APS hearing, the hearing is adversarial, and
the hearing officer’s role involves both advocating on behalf of the DMV and acting as
fact finder,” this created a constitutionally intolerable risk of bias by the hearing officers
against the drivers. (Id. at p. 532.) That is, the policy implemented by the DMV violated
the due process right to an impartial adjudicator. (Id. at pp. 532–533, 535.) To remedy
this unconstitutional practice, DUI Lawyers held section 14112, subdivision (b) to be
unconstitutional “to the extent it permits the DMV to combine the advocacy and
adjudicatory roles in a single APS hearing officer” (DUI Lawyers, at p. 533, fn. omitted)
and imposed an injunction permanently enjoining the DMV “from having its APS hearing
officers function as advocates for the position of the DMV in addition to being finders of
fact in the same adversarial proceeding.” (Id. at p. 538.)3
Although DUI Lawyers used the term “structure” to describe contentions relating
to the APS hearing system (DUI Lawyers, supra, 77 Cal.App.5th at p. 530), it did not
actually hold that the error was a structural error. Indeed, DUI Lawyers did not discuss
whether the constitutional violation at issue constituted a structural error or was instead
subject to a harmless error analysis. DUI Lawyers simply found that the taxpayers before
it had demonstrated an unconstitutional practice that needed to be corrected.
3 On July 20, 2022, the California Supreme Court issued the following order:
“The request for an order directing depublication of the opinion in the above-entitled
appeal is denied. The court declines to review this matter on its own motion. The matter
is now final.” (California DUI Lawyers Assn. v. California Department of Motor
Vehicles (July 20, 2022) 2022 Cal. LEXIS 4094.) Therefore, since July 20, 2022, DUI
Lawyers’s injunction against the DMV, as well as the rationale behind that injunction,
have been final and operative.
9.
3. Federal and State Authority on Absence of Impartial
Adjudicator
a. California Supreme Court
In the criminal context, our Supreme Court has explained that “[e]stablishing a
violation of this right [to an impartial adjudicator] requires ‘an objective assessment of
the circumstances in the particular case’ and ‘ “ ‘the probability of actual bias on the part
of the judge or decisionmaker [that] is too high to be constitutionally tolerable.’ ” ’ ”
(People v. Nieves (2021) 11 Cal.5th 404, 498, citing People v. Freeman (2010) 47 Cal.4th
993, 996 and Rippo v. Baker (2017) 580 U.S. 285, 287 (Rippo)4.) Nieves explained that
the “ ‘controlling principle’ of unconstitutional bias rests on a ‘general concept of
interests’ that may prevent adjudicators from remaining ‘disinterested in the conviction or
acquittal of those accused.” ’ ” (Id. at p. 499, quoting Caperton, supra, 556 U.S. at
pp. 878, 880.) “Though traditionally focused on pecuniary influences … the high court
has explained that there may be a disqualifying interest in the outcome of criminal
proceedings that ‘rests on the relationship between the judge and the defendant.’ ”
(Nieves, at p. 499, citing Caperton, at p. 881.) Nieves framed the question before it as
whether the trial judge’s comments “reflect a constitutionally intolerable possibility that
he harbored an interest in the outcome of defendant’s trial.” (Nieves, at p. 499.) Nieves
reviewed comments made by the trial court and found that the comments did not “raise
an objective likelihood that [the judge] was actually biased against the defendant.”
(Ibid.) “Accordingly, we find no structural error, and will assess the court’s misconduct
for prejudice.” (Ibid.) It is apparent from Nieves’s analysis that if the
probability/likelihood of bias was too high, then there would have been structural error
and no assessment of prejudice or harmlessness. (See id. at pp. 498–499.)
4 Rippo quoted Withrow, supra, 421 U.S. 35 for the proposition that “[r]ecusal is
required when, objectively speaking, ‘the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally tolerable.’ ” (Rippo, supra,
580 U.S. at p. 287.)
10.
b. Federal Authority
In the criminal and habeas corpus contexts,5 the federal courts have often
expressed the rule that structural error occurs when there is a constitutionally intolerable
risk or probability of judicial bias. The United States Supreme Court has found “an
unconstitutional failure to recuse constitutes structural error,” (Williams, supra, 579 U.S.
at p. 4) and that recusal is constitutionally required “when the likelihood of bias on the
part of the judge ‘ “is too high to be constitutionally tolerable” ’ ” (id. at p. 14, discussing
in part Withrow, supra, 421 U.S. at p. 47; see also U.S. v. Liggins (6th Cir. 2023) 76 F.4th
500, 505).
The Sixth Circuit has noted that “judicial bias is a structural defect both when
actual and when merely unconstitutionally probable ….” (Coley v. Bagley (6th Cir. 2013)
706 F.3d 741, 750.)
The Ninth Circuit has held that an appearance of bias may be too high and thus,
violates due process when, among other things, a trial judge was “ ‘part of the accusatory
process.’ ” (Greenway v. Schriro (9th Cir. 2011) 653 F.3d 790, 806, citing In re
Murchison (1955) 349 U.S. 133, 137.) The Ninth Circuit also noted that cases in which
due process was violated without actual bias seemed to involve either “some direct,
personal relationship of the judge to the case, or with one of the parties, before the
judge.” (Greenway v. Schriro, at p. 807.) Although the Ninth Circuit found insufficient
judicial bias or probability of judicial bias in the case before it, it faulted the state court
for applying a harmless error analysis “because when a defendant’s right to have his case
5 We acknowledge that there are distinctions between the liberty interest in a
driver’s license and the liberty interest in a criminal defendant’s freedom. As discussed
later, and as acknowledged in In re Christopher L. (2022) 12 Cal.5th 1063
(Christopher L.), structural errors from the criminal law are not to be automatically
applied in noncriminal law contexts.
11.
tried by an impartial judge is compromised, there is structural error that requires
automatic reversal.” (Id. at p. 805.)
c. California Appellate Authority
In Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81
(Nightlife Partners), the remedy for a hearing conducted without a neutral adjudicator
(due to overlapping roles of adjudicator and advocate) was a new hearing conducted by a
new officer and permitting the hearing officer to be advised by someone who had not
served as the city’s advocate in the case. (Id. at pp. 94, 97–98.) There was no discussion
regarding harmless error. (Ibid.)
In Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, a writ sought to prevent
the county counsel who had been acting as an advocate for the county from also advising
the county personnel board; the writ was filed prior to a hearing by the personnel board.
(Id. at p. 1578.) As in Nightlife Partners, Howitt acknowledged that the neutrality of the
adjudicator was endangered because county counsel would be acting as an advocate and
an advisor to the adjudicator. (Howitt v. Superior Court, at pp. 1585–1586.) However, in
terms of a remedy, Howitt denied the writ without prejudice in order for the county to
demonstrate effective screening measures by county counsel. (Id. at pp. 1586–1587.)
“Needless to say, if county counsel cannot demonstrate an effective screening procedure
in this case, the renewed petition should be granted.” (Id. at p. 1587.) Howitt did not
suggest that the absence of a proper screening mechanism would then somehow make a
harmless error analysis appropriate.
In Applebaum v. Board of Directors, supra, 104 Cal.App.3d 648, a doctor alleged,
among other things, that revocation of his privileges at a hospital was improper because
the adjudicatory board was not impartial. (Id. at pp. 654.) The trial court and the Court
of Appeal agreed that the hospital adjudicatory board was not impartial because the board
included the instigator of the charges against the physician, as well as other individuals
who had overlapping membership in a committee that had made an initial determination
12.
against the physician. (Id. at pp. 655, 659–660.) The Court of Appeal affirmed
reinstatement of the physician’s privileges pending a proper administrative hearing. (Id.
at p. 661.) There was no discussion of harmless error from the absence of an impartial
adjudicator. (Id. at pp. 659–661.)
Finally, in Hall v. Superior Court, supra, 3 Cal.App.5th 372, an APS hearing was
found to involve an intolerable probability of bias from a DMV hearing officer. (Id. at
p. 810.) The remedy for this due process violation was a new hearing before an impartial
adjudicator. (Ibid.) There was no discussion concerning harmless error.
4. Christopher L.
In Christopher L., supra, 12 Cal.5th 1063, our Supreme Court found no structural
error, and instead applied a harmless error analysis, when a statutory right to notice and
counsel was violated in a child dependency proceeding. (Id. at p. 1069.) Christopher L.
noted that structural errors are generally found in the criminal context and that structural
error analysis should not be imported “ ‘wholesale, or unthinkingly’ ” from criminal
cases into other contexts. (Id. at p. 1074.) Christopher L. then examined the three
rationales for finding structural error that were identified in Weaver v. Massachusetts,
supra, 582 U.S. 286. (Christopher L., at pp. 1077–1082.) The three rationales are: (1) if
the right at issue is designed to protect the defendant from erroneous conviction instead
of protecting another interest; (2) the effects of the error are simply too hard to measure;
and (3) the error always results in fundamental unfairness. (Id. at p. 1077.)
As applied to this case, it is well established that drivers have a liberty interest in
their drivers’ licenses. (Bell v. Burson, supra, 402 U.S. at p. 539.) Considering the
protected interest in a driver’s license, as well as the hardship that could easily arise from
the deprivation of the license, it appears that an insufficiently neutral adjudicator meets at
least two of the three Weaver rationales, if not all three. First, the requirement of a
neutral adjudicator serves a critical interest in providing society with confidence that
adjudications concerning important entitlements and liberty interests are made on proper,
13.
objectively reasonable, and neutral grounds.6 (Cf. Turkington v. Municipal Court of San
Francisco (1948) 85 Cal.App.2d 631, 639 [in the context of statutory requirements for
recusal noting that “[i]t is most important that the decisions of courts should be afforded
the respect and confidence of the community, but, in order to warrant such respect and
confidence, it is fundamental that such decisions should be above the suspicion that they
were rendered by a judge who was biased and prejudiced and had an interest in the
litigation”].) Second, the presence of a biased adjudicator permeates the entirety of the
proceedings, which makes it impossible to truly understand the harm that may have
resulted. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309–310 [“The entire conduct
of the trial from beginning to end is obviously affected by … the presence on the bench
of a judge who is not impartial”]; Hall, supra, 3 Cal.App.5th at pp. 810–811.) The APS
hearing officer is the officer charged with conducting the hearing, admitting evidence,
addressing objections, weighing evidence, and making the ultimate determination as to
whether a driver’s license will be suspended for driving with a BAC over 0.08 percent.
Third, it has been recognized that having an insufficiently neutral adjudicator adversely
affects the fairness of the proceedings in a fundamental way. (Neder v. United States
(1999) 527 U.S. 1, 9 [“Unlike such defects as the complete deprivation of counsel or trial
before a biased judge, an instruction that omits an element of the offense does not
necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence”].) With respect to both courts and agencies, a “ ‘fair trial
in a fair tribunal is a basic requirement of due process,’ ” which is not only why “a biased
6 It could be argued that the presence of an impartial adjudicator also is meant to
ensure that an erroneous adjudication does not occur. (Cf. Christopher L., supra,
12 Cal.5th at p. 1077 (noting that the first Weaver rationale was neutral because multiple
rationales, including guarding against erroneous adjudications, were at play.) However,
the presence of a neutral decisionmaker does not necessarily ensure that mistakes or
errors are not made, it simply ensures that the adjudicator will attempt to decide the
matter fairly and without giving one side an automatic advantage.
14.
decisionmaker is constitutionally unacceptable,” but also why “ ‘our system of law has
always endeavored to prevent even the probability of unfairness.’ ” (Withrow, supra,
421 U.S. at p. 47.) Therefore, it can hardly be considered fundamentally fair to have the
individual tasked with making ultimate determinations concerning an individual’s
important liberty interests fail to be constitutionally impartial.7
Given these considerations, we cannot conclude that Christopher L. or Weaver can
be read as supporting the absence of an impartial adjudicator as anything other than a
structural error. To hold otherwise would mean that a constitutionally impartial
adjudicator is not truly an “irreducible minimum” requirement of due process. (Today’s
Fresh Start, supra, 57 Cal.4th at p. 212).
5. Other Cases Cited by DMV
a. Southern Cal. Underground Contractors
The DMV relies on Southern Cal. Underground Contractors, Inc. v. City of San
Diego, supra, 108 Cal.App.4th 533 to argue that a possibility or appearance of bias is not
enough to warrant reversal, rather, actual bias must be demonstrated. Southern Cal.
Underground addressed, among other things, the issue of whether the appellant was
afforded an unbiased adjudicator where the adjudicator was the city council, the city was
both prosecutor and adjudicator, and the city was a defendant in a separate suit by the
appellant for money damages. (Id. at pp. 548–549.) The Fourth District concluded that
there was not a due process violation. (Ibid.) In relevant part, Southern Cal.
Underground explained:
“[A] party claiming that the decision maker was biased must show actual
bias, rather than the appearance of bias, to establish a fair hearing violation.
7 Christopher L.’s “steep cost” language was specifically dependent on the finding
that the violation before it did not routinely result in a constitutional violation or
unfairness. (In re Christopher L., supra, 12 Cal.5th at p. 1081.) That violation was the
absence of a parent and counsel, not the absence of a constitutionally impartial
adjudicator. (Id. at p. 1069.)
15.
(Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 791–
794 .….) ‘[B]ias in an administrative hearing context can never be implied,
and the mere suggestion or appearance of bias is not sufficient. [Citation.]
It is also well established that a party is not denied an impartial adjudicator
merely because an administrative entity performs both the functions of
prosecutor and judge. [Citation.] Overlapping investigatory, prosecutorial
and adjudicatory functions do not necessarily deny a fair hearing and are
common before most administrative boards. [Citations.]’ (Hongsathavij v.
Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1142.)”
(Id. at p. 549.)
The relevance of Southern Cal. Underground, however, is questionable. Southern
Cal. Underground was decided before our Supreme Court issued opinions in Today’s
Fresh Start and Morongo Band. As shown above, those two cases clearly hold that a due
process right to an impartial adjudicator applies in an administrative agency setting and
that the right is violated by showing either actual bias or a constitutionally intolerable
risk/probability of bias by the adjudicator. (Today’s Fresh Start, supra, 57 Cal.4th at
pp. 219, 221; Morongo Band, supra, 45 Cal.4th at pp. 737, 741.) Therefore, Southern
Cal. Underground’s observation that “a party claiming that the decision maker was
biased must show actual bias, rather than the appearance of bias, to establish a fair
hearing violation,” is no longer a fully accurate statement of the law. If there is a
constitutionally intolerable probability of bias, the constitution is violated irrespective of
whether actual bias exists. (See Caperton, supra, 556 U.S. at pp. 883–884; Today’s Fresh
Start, at pp. 219, 221; Morongo Band, at pp. 737, 741.)
b. Due Process Cases
The DMV correctly cites five state appellate cases for the proposition that a party
asserting a due process violation must demonstrate that without the violation of due
process, there is “a reasonable probability of a more favorable result.” However, there
are many different ways that due process may be violated. Each of the five cases deals
16.
with a unique due process error, but none involve the due process right to an impartial
adjudicator.8
C. Conclusion
1. Structural Error
California and federal cases either expressly recognize or appear to assume that
the violation of the due process right to an impartial adjudicator, be it through a showing
of actual bias or through a showing that a constitutionally intolerable probability/risk of
bias exists, is deemed a structural error that requires reversal without regard to the
sufficiency of the evidence or the possibility of a harmless error analysis. (E.g. Williams,
supra, 579 U.S. at pp. 4, 14; Coley v. Bagley, supra, 706 F.3d at p. 750; Greenway v.
Schriro, supra, 653 F.3d at pp. 805–806; People v. Nieves, supra, 11 Cal.5th at pp. 498–
499; Hall, supra, 3 Cal.App.5th at pp. 810–811; Nightlife Partners, supra,
108 Cal.App.4th at pp. 94, 97–98; Applebaum v. Board of Directors, supra,
104 Cal.App.3d at pp. 659–661.) An impartial adjudicator is a foundational and
irreducible minimum requirement for due process (Today’s Fresh Start, supra, 57 Cal.4th
at p. 212), and the presence of an adjudicator who is not constitutionally impartial is
recognized to be fundamentally unfair. (Neder v. United States, supra, 527 U.S. at p. 9.)
8 The five cases and due process issues involved are: (1) Malaga County Water
Dist. v. State Water Resources Control Bd. (2020) 58 Cal.App.5th 418, 445–446 (matter
remanded for further consideration where the due process violation involved the use of “a
void underground regulation to set hearing procedures”); (2) Hipsher v. Los Angeles
County Employees Retirement Assn. (2020) 58 Cal.App.5th 671, 702–703 (prejudice
found for the due process violation of failing to provide notice and the right to be heard);
(3) Margarito v. State Athletic Com. (2010) 189 Cal.App.4th 159, 172–173 (no prejudice
regarding alleged withholding of impeachment evidence); (4) In re Esmeralda S. (2008)
165 Cal.App.4th 84, 95 (no prejudice from appointment of guardian ad litem because
appointment did not prevent mother from raising issues on her own); and (5) Hinrichs v.
County of Orange (2004) 125 Cal.App.4th 921, 928 (no prejudice found from an
agency’s “failure to expressly inform [Hinrichs] of the name and rank of the officers
interrogating her, or of the nature of the investigation …”).
17.
Moreover, it is unknown how the harm from a constitutionally compromised adjudicator
can be assessed because, in the APS context, the public hearing officer must weigh
evidence, resolve conflicts, make assessments, findings, and rulings, and ultimately
render a judgement – the presence of a constitutionally intolerable risk permeates each of
these tasks. (Cf. Hall, at pp. 810–811.) Therefore, we conclude that the absence of a
constitutionally impartial adjudicator, through either the presence of actual bias or a
constitutionally intolerable probability of bias, at an APS hearing is a structural error.
2. Application to APS Hearing Appeals
DUI Lawyers did not address how its analysis and conclusions would necessarily
apply to a driver who challenges the revocation of his license from an APS hearing in
which DMV policy required the hearing officer to act as both adjudicator and advocate.
Indeed, no driver’s revocation was actually before the Second District in DUI Lawyers.
Rather, DUI Lawyers was brought as a taxpayer action against the DMV. A lawyers’
association alleged that the DMV was engaging in waste under Code of Civil Procedure
section 526a because it was expending funds on an APS system that violated drivers’
rights to procedural due process through a hearing officer who acted as both advocate and
adjudicator. (California DUI Lawyers Assn. v. Department of Motor Vehicles (2018)
20 Cal.App.5th 1247, 1251, 1253, 1259.) As a taxpayer challenge, California DUI
Lawyers Assn. applied constitutional principles to theoretical circumstances and with the
assumption and understanding that DMV policies would be fully executed and
implemented in every APS proceeding. That is, California DUI Lawyers Assn. assumed
that a hearing officer would actually act as an advocate in addition to acting as an
adjudicator, as required by policy. (See Evid. Code, § 664 [“It is presumed that official
duty has been regularly performed”]; cf. Ketchum v. California (1998) 62 Cal.App.4th
957, 964 [“The Legislature can presume that once a policy is adopted, it will be
followed”]; State Board of Education v. Honig (1993) 13 Cal.App.4th 720, 749
[presuming compliance with board procedures].)
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Nevertheless, in an actual case, it may be that a public hearing officer did not
actually act as an advocate despite the DMV’ stated policy. Considering that a prima
facie case, which establishes the necessary facts to revoke a license may often be
established through the submission of documents (Gerwig v. Gordon (2021)
61 Cal.App.5th 59, 65–66; Delgado v. DMV (2020) 50 Cal.App.5th 572, 577), scenarios
can easily be envisioned in which the hearing officer adjudicates without actually acting
as an advocate. In particular, as recognized by DUI Lawyers itself, the same agency
employee may collect and develop evidence and act as the adjudicator in a single case
without offending due process. (Cf. DUI Lawyers, supra, 77 Cal.App.5th at p. 533,
fn. 5.) As such, it is possible that in a particular case, the public hearing officer merely
collected and developed evidence and then rendered a decision without actually engaging
in advocacy or acting as an advocate. (Ibid.) Again, DUI Lawyers found that the due
process right to an impartial adjudicator was violated because a public hearing officer
who acts as both advocate and adjudicator creates a constitutionally intolerable risk of
bias. (DUI Lawyers, at p. 532.) If a hearing officer does not actually act as an advocate,
but instead merely collects and develops evidence and then renders a decision, then the
due process right to an impartial adjudicator would not be violated in a particular case
because the adjudicator did not actually act as an advocate. (Cf. id. at p. 533, fn. 5.) In
such a circumstance, constitutional due process protections are respected and
implemented, and the goals of public safety and minimizing the time that heavily
intoxicated drivers are permitted to travel the public highways are fulfilled.
In light of the above, we believe that the DMV should be given the opportunity to
show that a public hearing officer did not actually act as an advocate. Whether a hearing
officer actually acted as an advocate for the DMV should be determined by examining
the records and transcripts of the APS hearing, as well as the decision rendered by the
hearing officer. The analysis will necessarily depend on the unique facts of each hearing.
If the DMV can make a showing that the hearing officer did not actually act as an
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advocate, it will have also demonstrated that the due process violation identified in DUI
Lawyers did not actually occur. As a result, no constitutional error would be present, and
the merits of any other properly preserved issues may be addressed. If the DMV cannot
adequately demonstrate that a hearing officer did not actually act as an advocate, then the
due process violation identified in DUI Lawyers will have occurred.
III. Knudsen’s Due Process Rights
A. Arguments
The DMV argues that due process was not violated because the public hearing
officer did not act as an advocate. Instead, the hearing officer presented the official
documents that are routinely admitted in all APS hearings, asked only several clarifying
questions, permitted Knudsen to admit evidence and call witnesses, and then rendered a
decision. Thus, the hearing officer’s conduct shows that he merely acted as a developer
and presenter of the evidence and not as an advocate. We disagree with the DMV’s
assessment.
B. Additional Background
1. APS Hearing
At the APS hearing on February 4, 2022, the public hearing officer explained the
purpose of the hearing, presented, and admitted exhibits without objection, admitted all
exhibits requested by Knudsen, and permitted Knudsen to call the two witnesses he
requested.
The first witness was CHP Officer Murphy who was responsible for monitoring
and calibrating the PAS device used by Officer Metildi on Knudsen. Murphy testified
that the device had been calibrated on June 11, 2021, and was found to be reading within
acceptable tolerance levels. Murphy explained a known sample containing 0.100 percent
alcohol was read by the PAS device as containing 0.107 percent alcohol, and the
acceptable tolerance levels were between 0.110 percent or 0.09 percent. The hearing
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officer only asked Murphy if he maintained the calibration checklist and if the checklist
had Murphy’s name on it, to which Murphy responded affirmatively.
The second witness was Ron Moore, a toxicologist with over 32 years of
experience who had testified in hundreds of DMV hearings and criminal trials. The
hearing officer accepted that Moore was a qualified expert. Moore reviewed the arrest
report/the officer’s statement and the PAS device’s calibration records. Based on the
review of these records (which had previously been admitted by the hearing officer),
Moore opined that “it’s apparent that [Knudsen] was under .08 at the time he was
driving.” Moore explained that the calibration record of June 11 showed the PAS device
was measuring 0.007 percent too high. Adjusting for this high bias would mean that the
PAS results of 0.086 percent and 0.084 percent would reflect an actual BAC in the
“07’s.”9 Also, following the PAS results, the two evidentiary results showed BACs of
0.09 percent and 0.09 percent, meaning that Knudsen’s BAC was rising. Given the 0.007
percent high bias of the PAS device and the rising BAC levels, Moore testified it was
clear Knudsen would be under 0.08 percent at the time of driving. Moore also noted that
Knudsen was not stopped for bad driving, had no slurred speech, and passed the walk and
turn field sobriety test. This information, combined with the chemical test readings, was
consistent with the finding that Knudsen drove with a BAC of less than 0.08 percent.
Moore explained that he accepted the accuracy of Officer Metildi’s observations, he did
not need any testimony from Knudsen, that there was no need for additional information,
he was not speculating, and that his opinion was objective and accepted the exhibits and
documents exactly as they were.
The hearing officer asked Moore several questions. As relevant to this case, the
hearing officer asked Moore if he conducted “any scientific study on this particular
9 We take this to mean that the two results would actually reflect BACs of 0.079
percent and 0.077 percent.
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individual.” Moore responded that he did not and that “[t]here’s no purpose in doing any
type of scientific study. I’m not alleging there’s anything unusual about him or that the
Department’s information is incorrect.” The following exchange then occurred:
“HEARING OFFICER OGAMBA: Apart from the no bad
driving or something, you know, the question that I have to ask is that, since
you’ve been testifying in this case, [Knudsen] indicated he drove at
3 o’clock, and how did you arrive to the point that he was not -- he was
under .08 while driving?
“MR. MOORE: Well … alcohol levels generally go up while
you’re drinking, and tend to go up for a period of time afterwards until you
reach your peak, and then they come back down. So it goes up, it reaches a
peak, and then it comes down. Looking at the chemical test results, they’re
still going up, so that means that prior to the time the chemical test the
alcohol level would be lower, and which it’s just a matter of math.
“HEARING OFFICER OGAMBA: Okay. So you say that
looking at the alcohol would still be going up. So you are not saying for
sure that you that is below .08? You’re saying that you could be below .08
while driving; is that correct?
“MR. MOORE: No, I’m quite confident he’s under .08 when
driving because he’s only at .084 when the PAS test is done about an hour
later, even an hour and a half later. So he has to be lower than that. Plus
there’s the fact that the PAS is reading about a .007 too high. So even
though the PAS readings to correctly interpreted as … being under .08.”
The hearing officer asked no further questions of Moore.
Knudsen’s counsel asked several follow up questions of Moore regarding the PAS
device’s calibration and then gave a closing statement. The hearing officer did not
respond, but instead took the matter under submission.
2. APS Decision
The hearing officer issued a decision that suspended Knudsen’s license for driving
with a BAC of 0.08 percent or more. In part, the decision discussed Moore’s testimony.
The decision noted that Moore’s opinion was based on DMV evidentiary documents and
that Moore did not perform any scientific studies on Knudsen. The decision stated,
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“Expert testified based on his opinion reviewing the department’s evidence and
respondent’s driving pattern, respondent more likely to [be] under [0.08 percent].” The
decision stated that little weight was given to the expert’s opinion, and more weight was
given to DMV documentary evidence that “establishes that the [Knudsen] was driving a
motor vehicle at the time he had 0.08% or more [BAC level]. The hearsay evidence
presented is insufficient to support the contention.” The decision twice stated that,
looking at the totality of the documentary evidence submitted, the three-hour presumption
was not rebutted.
C. Legal Standard
“ ‘A challenge to the procedural fairness of the administrative hearing is reviewed
de novo on appeal because the ultimate determination of procedural fairness amounts to a
question of law.’ ” (Hall, supra, 3 Cal.App.5th at p. 808.) As explained above, for
purposes of the constitutional violation identified by DUI Lawyers, supra,
77 Cal.App.5th 517 that is at issue in this case, we review to determine whether the DMV
has demonstrated that the public hearing officer acted as a collector and developer of
evidence and not as an advocate.
D. Discussion
There are several aspects of the APS hearing and the APS suspension decision that
lead us to conclude that the public hearing officer acted as an advocate.
First, the public hearing officer asked Moore if Moore had conducted any studies
on Knudsen. Moore had previously and clearly explained that the basis for his opinions
were strictly the documents that had been admitted by the hearing officer, specifically the
officer’s report and statement and the chemical test results. Given the clarity of Moore’s
testimony, the question does not appear to be legitimately developing Moore’s testimony.
Instead, by pointing out something that Moore did not do, it appears to be an attempt to
undermine Moore and cast doubt on his opinion. Moreover, it is unclear how the fact that
Moore failed to do tests or studies on Knudsen would be relevant to assessing Moore’s
23.
opinions. Moore’s opinions are based on DMV documents and generally accepted
scientific principles regarding testing for blood-alcohol concentration levels and how the
human body processes alcohol. Moore accepted the accuracy of the DMV’s documents
and clearly assumed that Knudsen processed alcohol in the typically understood and
normal manner. With that assumption, there was no need for Moore to conduct tests to
make sure that Knudsen’s metabolism and bodily functions aligned with generally
accepted scientific understandings.10
Second, the public hearing officer asked Moore if Moore was not saying for sure
that Knudsen was not driving with a BAC of 0.08 percent or more. We acknowledge that
the question in isolation could be viewed as an attempt to clarify or develop testimony.
The problem is that prior to the hearing officer asking this question, Moore consistently
expressed his opinion without equivocation that Knudsen was not driving with a BAC
over 0.08 percent. Prior to the hearing officer’s question, Moore said it was “apparent”
and “clear” that Knudsen was not driving with a BAC over 0.08 percent. Indeed, Moore
answered the hearing officer in the negative and confirmed that he was “quite certain”
that Knudsen was driving with a BAC of under 0.08 percent. Given the clarity of
Moore’s testimony, the hearing officer’s question does not develop Moore’s testimony,
rather, it appears to be an attempt to change or mischaracterize Moore’s testimony.
Third, the public hearing officer’s decision notes and appears to rely on the fact
that Moore did not conduct a study on Knudsen as a basis to discount Moore’s testimony.
However, there is no significant interest served by identifying the fact, nor is the fact
relevant or an actual basis to discredit Moore’s testimony. As noted above, Moore
accepted the accuracy of the DMV’s documents and did not assert that Knudsen’s body
10 We note that Moore’s opinion related to whether Knudsen was driving with a
BAC of 0.08 percent or more; it was not related to whether Knudsen was inebriated or
under the influence of alcohol generally.
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chemistry was atypical. Nevertheless, the fact was brought out through the hearing
officer’s questioning and appears to have been a form of advocacy.
Fourth, the APS decision described Moore as testifying that Knudsen’s BAC was
“more likely” under 0.08 percent. That is inaccurate. As discussed above, Moore said
that it was “apparent” and “clear,” and that he was “quite certain” that Knudsen was
driving with a BAC of under 0.08 percent. Moore never testified as to the likelihood of
Knudsen driving with a BAC of under 0.08 percent, and Moore’s testimony cannot
legitimately be described as simply saying it was “more likely than not” that Knudsen
drove with a BAC of under 0.08 percent. The hearing officer’s wording downplays
Moore’s response that he was “quite certain” of his opinions. Therefore, the APS
decision mischaracterized the nature, and downplayed the certainty, of Moore’s opinion.
Fifth, the APS decision characterized Moore as presenting hearsay evidence. This
is incorrect. The pertinent testimony by Moore involved accurate descriptions of the
documents admitted by the public hearing officer, Moore’s description of scientific
principles, and Moore’s expert opinions. This testimony is consistent with typical expert
testimony. None of Moore’s testimony constitutes inadmissible hearsay.11 Additionally,
the hearing officer never raised any concerns regarding hearsay while Moore was
testifying. Raising the hearsay issue for the first time in the suspension notice/findings
did not give Knudsen an opportunity to address the issue.
Sixth, the hearing officer stated that Moore relied on Knudsen’s “driving pattern”
as a basis for his opinions. To the contrary, Moore did not discuss Knudsen’s “driving
pattern” in any way. Moore simply stated that Knudsen was not seized based on
observations of Knudsen’s driving.
11 “[A] hearsay statement is one in which a person makes a factual assertion out of
court and the proponent seeks to rely on the statement to prove that assertion is true.”
(People v. Sanchez (2016) 63 Cal.4th 665, 674; see also Evid. Code, § 1200, subd. (a).)
25.
Finally, the APS decision stated twice that the “three[-]hour presumption” had not
been rebutted.12 That is, the decision clearly relied on the three-hour presumption to
show that Knudsen had been driving with a BAC of 0.08 percent or greater. The problem
is that the presumption had been rebutted. Our Supreme Court, in Coffey v. Shiomoto,
supra, 60 Cal.4th at p. 1211, held that the “three[-]hour presumption” had been rebutted
by the testimony of a driver’s expert witness. Like Moore, the expert in Coffey opined
that escalating chemical tests results, combined with the scientifically understood pattern
of how the human body processes/metabolizes alcohol, rebutted the “three[-]hour
presumption” and, thus, caused the presumption to disappear from the case. (Id. at
pp. 1210–1211.) On this point, Coffey is indistinguishable from this case. Therefore, the
public hearing officer committed a clear error of law that significantly benefited the
DMV.
In sum, the record reflects inaccurate characterizations of important testimony,
questions that were inconsistent with developing testimony, and an error of law that
significantly benefited the DMV. We conclude that these considerations collectively
demonstrate that the public hearing officer acted as an advocate for the DMV.13 Because
12 By statute, there is presumption that a person had a BAC over 0.08 percent at
the time of driving if a chemical test taken within three hours of driving yields a BAC
over 0.08 percent. (See § 23152, subd. (b); Coffey v. Shiomoto (2015) 60 Cal.4th 1198,
1208.)
13 We emphasize that, as the adjudicator, the public hearing officer is entitled to
weigh and assess the testimony of all witnesses. As part of an assessment, the hearing
officer is not necessarily required to fully accept the testimony of any witness, including
an expert witness. In any given case, numerous reasons may legitimately exist to
discount or disregard the testimony of an expert witness, and those reasons will not
involve advocacy by the hearing officer. In this case, however, the totality of the seven
circumstances identified above demonstrate that the hearing officer was not merely
gathering and developing evidence nor neutrally assessing the expert’s credibility.
Rather, the circumstances demonstrate that the hearing officer’s conduct towards
Mr. Moore involved advocacy and, thus, a violation of Knudsen’s due process right to an
impartial adjudicator.
26.
the hearing officer acted as an advocate and adjudicator, Knudsen’s due process right to
an impartial adjudicator was violated. (DUI Lawyers, supra, 77 Cal.App.5th at pp. 532–
533.) As a result, Knudsen is entitled to a new APS hearing. (Hall, supra, 3 Cal.App.5th
at p. 810.)
DISPOSITION
The superior court’s order denying Knudsen’s petition is reversed. This matter is
remanded with instructions for the superior court to issue a writ of mandate directing the
DMV to vacate its decision and to conduct a new APS hearing before a new hearing
officer.
POOCHIGIAN, Acting P. J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
27.