Special Fee Shifting Statute: Plaintiff DUI Accused Was Properly Granted Attorney’s Fees Of $3,640 Because DMV’s Determination Was Arbitrary And Capricious After Suspension Order Was Stayed And Then Vacated, In A 2-1 Opinion By The Fifth District

Plaintiff Additionally Entitled To Fees On Appeal, Subject To The Applicable $7,500 Cap.

            Isenberg v. Dept. of Motor Vehicles, Case No. F082435 (5^th Dist. July 22, 2022) (unpublished) is an interesting 2-1 opinion by the Fifth District on the propriety of a $3,640 attorney’s fees award to a prevailing plaintiff in a DUI suspension matter before the DMV.  It also is a must read for DUI criminal/administrative practitioners on the topics of the “rising blood-level defense” and rebuttal to the three-hour presumption under the Vehicle Code.

            What happened here is that a plaintiff whose driver’s license was suspended for an alleged DUI incident happened to get the suspension stayed and eventually vacated through a civil writ proceeding before the superior court, with the vacatur of the order occurring because plaintiff was criminally acquitted of charges.  Government Code section 800 is a fee-shifting provision which allows a prevailing party to obtain fees at the rate of $100 per hour and capped at $7,500 for an arbitrary and capricious administrative proceeding decision.  The superior court awarded $3,640 after determining plaintiff prevailed and the DMV’s decision was arbitrary and capricious given its ultimate concession that plaintiff had rebutted the three-hour presumption under the Vehicle Code.

            The Fifth District was divided in affirming, by a 2-1 vote.  It determined plaintiff did achieve her litigation result in getting the driver’s license suspension revoked.  The real issue devolved into whether the DMV’s determination was arbitrary and capricious.  The majority determined it was given that the .08 BAC presumption was rebutted by plaintiff’s expert based on a “rising blood-level defense.”  However, the dissent viewed the DMV hearing officer determination differently, meaning that plaintiff did not rebut evidence still showing alcohol level above the limit even if the presumption disappeared because it was rebutted.  In the end, the fee award was affirmed, with the majority indicating that plaintiff could seek appellate fees for winning yet again subject to the $7,500 cap of Government Code section 800.