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Khouja v. State11/7/2002
aff involved in administering driving tests or making other licensing decisions within that division.
B. Licensure of Driver Mkhize
Born in May 1928, Mkhize first received a California driver's license in 1971. Around 1995 she failed a visual acuity test. Optometrist Thomas King examined Mkhize on October 23, 1995. Reporting on the DL 62 form, King noted that she had severe macular degeneration in the left eye and cataracts in both eyes. The prognosis was potentially progressive. King did not indicate on the form that he had given Mkhize any advice about driving. Dr. Denny, Mkhize's ophthalmologist, found her vision to be monocular (left eye had lost central vision) and advised her to return in a year.
In May 1997, DMV employee Herbert Wa recommended a one-year issuance. Nonetheless, her license was renewed in July for a two-year term.
On March 16, 1999, Mkhize was involved in an accident. There were no injuries and no citation was issued.
Mkhize's license was subject to renewal on her birthday of May 4, 1999. She began the renewal application process that month and failed the standard vision examination. Her vision was not measurable and thus she was required to go through the DL 62 process again. Optometrist King gave the same diagnosis of severe macular degeneration in the left eye and cataracts in both eyes; again indicated a prognosis of "potentially progressive"; and estimated that Mkhize should be reevaluated in two years. He checked the "No advice given" box. The date of the examination was March 18, 1999.
Upon presenting the completed DL 62 form on June 3, 1999, Mkhize was issued a temporary license with an expiration date of June 18, 1999. Under departmental policies, when, as was the case here, the DL 62 form is accepted by a field representative and shows that vision is 20/67 or better, the driver is entitled to a temporary license until a driving test can be scheduled.
Mkhize returned to the DMV for the scheduled road test on June 18, 1999. Under departmental procedures, the driver presents the DL 62 form to the examiner at that time. Examiner Ann Fanucchi declared that she received Mkhize's form and that it did not bar Mkhize from driving. Mkhize failed the road test. She backed up looking over her right shoulder the entire time; turned right from the DMV parking lot into the far right lane instead of the immediate right lane; and finally, entering a left-turn pocket lane she drove straight across instead of turning left. No pedestrians or oncoming vehicles were in the vicinity. Fanucchi immediately failed Mkhize because she "went straight from a designated left-turn lane." She described this as a "common error." Janis Saxon, assistant deputy director of the field operation division, stated that this was a "flagrant violation" in DMV terminology. The error could be dangerous, but in and of itself did not indicate a dangerous lack of skill.
Fanucchi directed Mkhize to return to the DMV parking lot. Per the DMV licensing manual, an applicant generally gets three chances to pass the road test. When the driver fails but can improve his or her driving skills, the examiner so informs the customer and gives him or her the score sheet. Customers applying for renewal may be issued a temporary license instead of an instruction permit "if the failure does not indicate a hazardous condition. If the driving skills are deemed hazardous, issue an instruction permit." Where the customer is "unable to safely operate a motor vehicle due to a dangerous lack of skill," the examiner can immediately revoke the license under the authority of section 13953. A "dangerous lack of skill" is shown upon the immediate failure o
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