YG v. CHP
Filed 8/28/08 YG v. CHP CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
YG, Plaintiff and Appellant, v. CALIFORNIA HIGHWAY PATROL, Defendant and Respondent. | G039289 (Super. Ct. No. 07CC00948) O P I N I O N |
Appeal from an order of the Superior Court of Orange County, Frederick Paul Horn, Judge. Affirmed.
YG, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Celine M. Cooper and Gary S. Balekjian, Deputy Attorneys General, for Defendant and Respondent.
* * *
Plaintiff YG appeals from an order denying a petition for writ of mandate wherein he claimed a breathalyzer was improperly calibrated. The court denied the petition on several grounds: (1) the action was untimely; (2) there was improper service and an improper party; (3) failure to exhaust administrative remedies or lay a foundation for evidence submitted; (4) and lack of an administrative record. Plaintiff challenges each of those grounds. Finding no error, we affirm.
Initially we note that the record is woefully inadequate. Although there is a reporters transcript of the hearing on the petition, the clerks transcript contains nothing more than those items automatically included in any case. This alone is a sufficient basis for us to affirm. [W]hen an appellant claims error occurred in the trial court, he must present a record disclosing the error relied upon and enabling an appellate court to review and correct it. He has the burden of producing a record which overcomes the presumption of validity favoring a judgment or order. [Citations.] (Weiss v. Brentwood Sav. & Loan Assn. (1970) 4 Cal.App.3d 738, 746; see Cal. Rules of Court, rule 8.120.) But defendant California Highway Patrol did augment the record with the petition and its attachments.
In the petition plaintiff alleged that after he was detained, one of defendants officers administer a breathalyzer test using a specified device, which showed a blood alcohol concentration of 0.09 percent. As a result plaintiff was arrested for driving under the influence of alcohol. Plaintiff alleged the breathalyzer was improperly calibrated and the incorrect reading was used as evidence against him in his criminal action and proceedings before the Department of Motor Vehicles and affected [his] personal records. Plaintiff prayed that defendant be ordered to acknowledge formally that the breathalyzer results were invalid and that the information be deleted from the police report pertaining to his case. He also submitted 14 pages of evidence that the readings of the [breathalyzer] are invalid. (Bold, underscoring, and capitalization omitted.)
At the continued hearing on the petition, one ground for denial was plaintiffs failure to serve the petition on defendant. The record contains no evidence of service. Plaintiff cites to the register of actions in support of his assertion that the petition was served on May 17, the same date the petition was filed. But the register does not confirm that. Rather, it shows a proof of service filed on June 5, and the augmented transcript contains a copy of a notice of hearing with a proof of service filed that date. There is nothing showing the actual petition was served on defendant. Therefore, as the trial court ruled, it had no jurisdiction over defendant. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1463.) On that basis, we affirm the order.
Even on the merits, plaintiff could not prevail. He pleaded guilty to driving under the influence of alcohol. This was an admission of all the elements of that offense. (People v. Palacios (1997) 56 Cal.App.4th 252, 257 [guilty plea admits every element of crime, including all allegations and factors comprising the charge contained in the pleading].) One element of that crime requires proof that plaintiff was under the influence of alcohol. (People v. Martinez (2007) 156 Cal.App.4th 851, 855.)
Under section 23152 . . . the question whether the accused was under the influence of intoxicating liquor is a question of fact to be determined by the court or jury from all the proven circumstances of the case . . . . [Citations.] (McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 687.) One of the circumstances to consider here was plaintiffs blood alcohol level higher than that permitted by law. Vehicle Code section 23610, subdivision (a)(1) provides that in any action arising from allegations of driving while intoxicated in violation of Vehicle Code section 23152, subdivision (a), to which defendant pleaded guilty, the amount of alcohol in the persons blood at the time of the test as shown by chemical analysis of that persons . . . breath . . . shall give rise to the following presumption[] affecting the burden of proof: [] . . . [] . . . If there was at that time 0.08 percent or more, by weight, of alcohol in the persons blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.
Vehicle Code section 23610, subdivision (a)(2), that states there is no presumption when the blood alcohol content is 0.05 percent or more but less than 0.08, does not apply because here the blood alcohol composition was 0.09 percent. Further, that plaintiff did not plead guilty to another count specifically alleging driving with a blood alcohol level of 0.08 percent or higher and causing death or injury is beside the point.
The effect of the guilty plea is an admission that the 0.09 percent blood alcohol level as measured by the breathalyzer was correct. Had plaintiff wanted to challenge the accuracy of the breathalyzer, the time to do it was when he entered the plea. He may not now in this action attack its validity.
Because we affirm on these grounds, we have no need to discuss any of the other grounds on which the trial court relied or any other arguments made by plaintiff.
The order is affirmed.
RYLAARSDAM, J.
WE CONCUR:
SILLS, P. J.
ARONSON, J.
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