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Khouja v. State11/7/2002
e that a person is unfit to drive. The mandatory duty is triggered only upon that prior finding. The court in Trewin provided insight into the nature of that duty: "DMV has a mandatory duty to refuse to issue or renew a license if it has determined beforehand that the person is unable to safely operate a motor vehicle upon a highway . . . ." (Trewin v. State of California, supra, 150 Cal.App.3d at p. 981 [also holding that complaint by inference stated cause of action for violation of mandatory duty].) But, pursuant to the immunity of Government Code section 818.4, the state is not liable for issuing or renewing a license where DMV has made the discretionary determination that a driver can safely operate a vehicle. (People v. Superior Court (Wilson), supra, 18 Cal.App.4th at p. 37; see Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 642, 647.)
In People v. Superior Court (Wilson), supra, 18 Cal.App.4th 31, the reviewing court concluded there was no triable issue as to whether the DMV had made the requisite determination of inability to drive safely. There, the plaintiffs pointed to evidence that DMV had constructive notice that the driver was suffering from diabetes; the officer investigating his first accident determined the driver could not safely operate a vehicle; and the DMV failed to take administrative steps that would have led to discovery of the driver's medical condition. Such evidence was insufficient to establish a mandatory duty to revoke the license. (Id. at p. 38.) At most, the evidence implicated the department's discretionary duty to re-examine or further examine the driver, not the mandatory duty to revoke after making a determination that the driver could not safely operate a vehicle. (Id. at pp. 38-39.)
Likewise, there was no evidence here of a determination of unfitness to drive. Indeed, examiner Fanucchi testified that although she failed Mkhize, she did not find her unable to safely operate a vehicle. Mkhize's error in proceeding straight from a designated left- hand lane was common. Fanucchi explained that most people are nervous when they take the drive test, and " hat's probably why they do that. I don't know."
Moreover, there was no record of any determination of unfitness in the DMV records. The DL 62 forms on file did not advise that Mkhize should not drive or that her driving should be restricted in any way. Neither her treating optometrist nor ophthalmologist informed DMV that Mkhize could not drive safely.
Nonetheless, appellants assert that the DMV made the requisite determination because its own regulations require that drivers such as Mkhize pass an optometrist's vision test and a driving test. DMV procedures were followed. Mkhize failed the DMV's vision screening test, but she presented the requisite DL 62 form which affirmed her visual ability to drive. Renewal applicants are entitled to a temporary license when the vision specialist's report indicates their vision is 20/67 or better. Mkhize's DL 62 form showed a clinical measurement of 20/40 for "both eyes" with corrective lenses. Additionally, she failed the driving test, but department policies give applicants three chances to pass and renewal applicants will be issued a temporary license unless his or her driving skills are deemed hazardous.
Pointing to the date stamp of June 18, 1999 on the DL 62 form, appellants also protest that the temporary license was issued improperly on June 3, 1999, before receipt of the form. The date stamp is of no moment. The driver presents the DL 62 form twice, first to obtain the temporary license and second to take the road test. It is not date- stamped until accepted as the final part of the application, at which
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