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Khouja v. State11/7/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Suffering from severe macular degeneration, on June 18, 1999, 71- year-old Albertinah Mkhize failed the road test for renewal of her driver's license. The Department of Motor Vehicles (DMV) examiner allowed her to drive home. Later that afternoon Mkhize collided with the decedent, infant Yusef Khouja, as his mother pushed him in a stroller through a marked crosswalk.
Respondent State of California obtained summary judgment on the suit of the infant's family for wrongful death and bystander injuries against the state and others. The trial court ruled that the mandatory duty to refrain from issuing or renewing a driver's license imposed on the DMV by Vehicle Code section 12805, subdivision (d) is only triggered by a determination, "by examination or other evidence," that the driver is unable safely to operate a motor vehicle. (Ibid.) Finding that DMV had not made such a determination, the trial court further ruled that the licensing immunity of Government Code section 818.4 sheltered DMV from liability. These rulings are correct; accordingly, we affirm the summary judgment.
I. BACKGROUND
A. Responsibilities of DMV
The Legislature has empowered DMV to determine the licensure of drivers in this state. (§§ 12800-12819.) Although a driver's license is a protected property interest, under certain circumstances the state may regulate the use of the driving privilege to protect the public's safety interest. (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 139.)
The field operations division of DMV is responsible for licensing drivers. The driver safety division operates a comprehensive program to ensure effective postlicensing control. This division determines whether to take action with respect to a driver's license based on a physical or mental condition. Intervention usually is triggered by referral to DMV by family members, physicians, the courts, law enforcement officers, or a DMV employee. DMV may revoke (§ 13101) or suspend (§ 13102) the license or impose conditions and restrictions (e.g., §§ 13352.4, 13352.5).
DMV has compiled various policies and procedures in a DMV licensing manual. One such policy requires referral to a vision specialist when the applicant's visual acuity does not meet DMV standards as determined by DMV visual screening. The specialist provides detailed information about the applicant's vision to the DMV by way of a "Report of Vision Examination (DL 62)." It is the applicant's responsibility to present the completed DL 62 form to DMV, at which time the examiner follows detailed procedures to determine whether to issue a license and under what conditions.
Additionally, in February 1999 DMV published the in-house "Guidelines for Actions Against the Driving Privilege Based on Physical and Mental Conditions" (hereafter Guidelines) for the driver safety staff. The purpose of the Guidelines is to assist staff in ascertaining whether to take action against a referred licensee with a physical or mental condition and, if so, what action to take. The Guidelines chart various vision conditions, complete with definitions; range of severity; stability and functional impairments; and coupled with a potential range of postlicensing actions which the driver safety staff can take upon a licensee. The Guidelines are not used by field operations st
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