APPEAL from a judgment of the Superior Court of Los Angeles County. Ann I. Jones, Judge. (Los Angeles County Super. Ct. No. SS019974)
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PUBLICATION
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.
On 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 Department 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.*fn1
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
DMV lodged the administrative record with the court, and the court thereafter set a briefing schedule and trial date for appellant's petition. In the interim, the court refused to let appellant copy the lodged record. Claiming that not having a hearing transcript hamstrung his ability to establish his petition's assertion that Patrolman Dalton's DMV hearing testimony proved that appellant did not refuse to take a chemical test, appellant did not file an opening brief in support of his petition. Instead, and in order to expedite his appeal, appellant filed a request for dismissal of his petition with prejudice one day before the scheduled bench trial of his petition. At the next day's hearing, the court accepted appellant's request to dismiss. The court stated, appellant "has not come to court, nor has he reviewed the file . . . . I see no ground shown for his failure to pay for [a copy of] the administrative record, nor do I find he has any right to have that record scanned and otherwise made available to him." The court took the hearing off calendar, and the clerk entered a dismissal with prejudice. This appeal followed.
To the extent that resolution of this appeal depends on statutory interpretation applied to undisputed facts, we independently review the trial court's refusal to order DMV to provide appellant a free copy of the administrative hearing transcript. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
DMV alternatively asserts that the abuse-of-discretion standard of review applies to the court's order refusing to compel DMV's production of the transcript. Whether or not DMV is correct, its assertion does not advance DMV's cause. Here, the court did not exercise discretion because it concluded it had no authority to order DMV to provide a free transcript. Failure to exercise discretion is itself an abuse of discretion. (Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 1180; Dubois v. Corroon & Black Corp. (1993) 12 Cal.App.4th 1689, 1696; Gardner v. Superior Court (1986) 182 Cal.App.3d 335.) In short, the trial court either correctly held that it lacked authority to order DMV to provide a free copy of the transcript, in which case the court did not err regardless of the standard of review, or else the trial court mistook its authority, in which case it abused its discretion.