5DCA Oral Argument - 2025/12/04 - Dec 04, 2025
argument5DCA Oral Argument - 2025/12/04
California Fifth District Court of Appeal
7h 12m
4 chapters
transcribed 1 day ago
official recording ↗
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What procedural steps does the court follow at the start of the oral argument?
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Bye.
district now in session good morning nice to see everyone please be seated let's call the first of three matters or several matters this morning the kenny versus department of motor vehicles please state your appearances
good morning honors richard middlebrook on behalf of mr
kent Good morning, Your Honors. On behalf of the Respondent Department of Motor Vehicles. Thank you. You both requested 30 minutes, I believe. Did you wish to reserve some portion of that time?
Yes, Your Honor. I'd like to reserve 15 minutes. And I don't think I'll be able to use all of this this time and entertain the court even further than I have in the past.
OK. That's perfect. do have a timer on the podium so you can refer to that and that will work out nicely as you probably imagine we are familiar with the case and we just ask that you keep that in mind during your argument and with that said please proceed thank you may please
the court thank you for having me back again i'm sure you're delighted to see me back on similar issues that we just decided
We're always delighted
to see
people and a full audience. It's good.
This gives the court at this particular panel the opportunity to see a case that it wanted to see in the Ryman case it just decided. In this case, all we're asking the court to do is to follow its prior decisions in Knutson, Ryman, the other appellate courts in Clark, Romaine, Each of the courts said the same thing. In each of those cases, we looked to whether or not there was actual advocacy. And advocacy in this case is all over the place. Unlike Ryman, but very close to Knudsen, the hearing officer here engaged in actual overwhelming advocacy. This isn't a closed case like the Ryman case was, where you had issues involved where there was just admission of documents and a decision. That's all that existed in Ryman.
In Kinney, that's not true. This case was originally handled by Douglas Skelton, and the hearing was heard on September 29, 2022. There was a number of different issues in this case, one of which was the MVARS was subpoenaed by the hearing officer in this case. They went out, received the recording, subpoenaed that record, used that record, and based their decision on that record. The standard in this case is de novo as to whether there was a breadth refusal. It's also de novo as to the due process issues. We're not contesting the issue of whether Judge Barman's findings of fact were correct, only the facts to the law issue, which is de novo. In this case, both Knudson, Ryman, Clark, Romaine all said the same thing, that no due process violation unless the hearing officer advocates.
not just the role of advocate, but actually goes out and advocates. All those cases permitted routine intake of documents that were normally received and sent by law enforcement. But adversarial participation was not permitted. Here on August 3 of 2022, this was after the CDLA decision that took place on April 15 of 2022, The DMV issued a subpoenas justis tecum to the California Highway Patrol to supplement the documents they'd already received in requesting the mobile video audio recording device. In this case, hearing officer Bellotta performed adversarial questioning. Mr. Kinney testified, the appellant testified in this case, and we submitted in our opening brief the complete list of questioning that was done.
It was adversarial. It was to impeach. It was to sustain the elements necessary for refusal. They did everything this court in Knutson said they couldn't. They've done everything the Clark Court said they couldn't. They did it emphatically, and there's really no question as to that. The hearing officer was short, cut off answers to questions. When explanations were being provided by Mr. Kinney, the answers were, this is a yes or no question, answer yes or no. So there's really not the same problems. Then the hearing officer used the answers to those questions and the subpoena records, not the ones that were just given and sent from the California, from the original record, not the California Highway Patrol, I apologize.
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Chapters
4 chapters
1
What procedural steps does the court follow at the start of the oral argument?
0:00–33:40
2
How does counsel frame the central due‑process issue in the DMV case?
33:40–1:20:20
3
Why does the argument focus on whether the hearing officer engaged in advocacy?
1:20:20–1:59:46
4
What standard of review does each side request for the appellate court?
1:59:46–7:12:32