Hadsell v. Valverde







Filed 9/19/11 Hadsell v. Valverde CA2/7




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

DAWN HADSELL, Plaintiff and Appellant, v. GEORGE VALVERDE, as Director, etc., Defendant and Respondent.

B228394 (Los Angeles County Super. Ct. No. BS124873)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert O’Brien, Judge. Affirmed.
Law Offices of Chad R. Maddox and Chad R. Maddox, for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Senior Assistant Attorney General, Jerald L. Mosley and Mark Schreiber, Deputy Attorneys General, for Defendant and Respondent.
_______________

Dawn Hadsell appeals from the denial of her petition for a writ of administrative mandamus challenging the suspension of her driver’s license by the California Department of Motor Vehicles (DMV) for driving with a blood alcohol concentration (BAC) at or above 0.08 percent. Hadsell contends the superior court’s findings are not supported by the evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 11:20 p.m. on October 24, 2009, Manhattan Beach Police Officer B. Cavallone saw Hadsell back into a parked vehicle while attempting to park her own car. Upon approaching Hadsell, Cavallone smelled the odor of alcohol on her breath. He also observed the presence of horizontal gaze nystagmus (HGN).^[1] Officer Will Peterson arrived to assist Cavallone two minutes later. At 11:23 p.m. Peterson initiated a driving-under-the-influence (DUI) investigation. While speaking with Hadsell, he, too, smelled alcohol on her breath. Peterson also noticed the presence of HGN and observed that Hadsell’s pupils were constricted and her eyes watery and bloodshot.
Officer Peterson asked Hadsell a series of standard DUI investigative questions. Asked how much she had had to drink, Hadsell answered, “Nothing.” Hadsell said she had just come from dinner but had not had anything to drink with her meal. Asked if she had taken any drugs that day, Hadsell responded she had taken various self-prescribed homeopathic drugs. Asked if she had any medical conditions, Hadsell reported she had a tumor in the rear of her right jaw and hepatitis C. Throughout questioning, Hadsell repeatedly told Peterson she would not take a preliminary alcohol screening test or submit to any field sobriety tests. She explained her tumor interfered with her equilibrium and might affect the results of the tests. Although Peterson told Hadsell he would take her medical condition into consideration, she still declined to submit to any of the tests.
Based on Hadsell’s objective symptoms of intoxication and her involvement in the minor traffic collision, Officer Peterson placed Hadsell under arrest at 12:28 a.m. for violation of Vehicle Code section 23152, subdivision (a), driving a vehicle while under the influence of alcohol. Hadsell was taken to a hospital where her blood was drawn at approximately 1:12 a.m. The Los Angeles County Sheriff’s Department subsequently tested Hadsell’s blood sample and found a blood alcohol concentration (BAC) of 0.11 percent. On November 25, 2009 the DMV suspended Hadsell’s driver’s license pursuant to Vehicle Code section 13353.2, subdivision (a)(1), for driving a vehicle with a blood alcohol level at or above 0.08 percent.^[2]
On February 3, 2010 Hadsell challenged the suspension of her driver’s license at an administrative hearing. (Veh. Code, § 13558, subd. (a).) To establish Hadsell’s BAC was 0.08 percent or more at the time she was driving, the DMV presented Hadsell’s chemical test results and Officer Peterson’s sworn police report detailing his observations at the time of the arrest. The DMV also relied on the rebuttable presumption “that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.” (Veh. Code, § 23152, subd. (b), 3d par.)^[3]
To refute that evidence Hadsell’s expert witness, Henry S. Greenberg, a forensic alcohol analyst, opined Hadsell’s BAC was rising through the time of the blood test and, therefore, was below the legal limit at the time she was actually driving her car. Greenberg explained Hadsell’s BAC had to be either rising or falling at the time of driving because a plateau in the BAC level lasts for at most 60 minutes after the last drink has been ingested—far less time than had elapsed between Hadsell’s arrest and the time her blood was drawn at the hospital. Thus, at the time she was driving and then arrested, Hadsell’s BAC had to be either higher than 0.11 percent and falling (he opined it would have to be approximately 0.14 or 0.15 percent to fall to 0.11 percent in two hours), or lower than 0.11 and rising.
Because Hadsell had denied she had anything to drink when questioned by Officer Peterson and there was no other evidence of a drinking pattern—that is, how much alcohol Hadsell had consumed or the time at which she ingested her last drink—to support his opinion of her BAC at the time of driving, Greenberg relied on his evaluation of Cavallone’s and Peterson’s observations as reflected in the arrest report. Specifically, Greenberg noted neither officer reported Hadsell had exhibited an unsteady gait or slurred speech; in fact, the arrest report indicated her standing and balance were normal. Greenberg also emphasized that Hadsell’s car had only tapped the parked vehicle; no damage resulted. This suggested to Greenberg Hadsell was either minimally impaired or not impaired at all. Considering all this information, Greenberg testified Hadsell’s behavior at the time of driving coincided with a 0.04 to a 0.06 percent BAC, with a rising BAC level, not a 0.14 percent BAC that was falling.^[4] The DMV did not present any additional evidence to contradict Greenberg’s expert testimony.
In a written decision issued five days after the conclusion of the evidentiary hearing, the DMV hearing officer found Officer Peterson had reasonable cause to believe that Hadsell had been driving a vehicle in violation of Vehicle Code section 23152; Hadsell was lawfully arrested; and she was driving at a time when she had 0.08 percent or more by weight of alcohol in her blood. The hearing officer concluded there was a lack of sufficient evidence to rebut the chemical test results, specifically finding Greenberg’s testimony that Hadsell’s blood alcohol level was rising at the time of driving was “unfounded and without merit.” The hearing officer explained, “[T]o make that case one would have to at least know when someone began and finished consuming alcohol, among other things to establish a drinking pattern . . . .” Hadsell’s driving privileges were suspended.
Hadsell petitioned the superior court for a writ of administrative mandamus, challenging the ruling. The superior court reviewed the evidence submitted at the administrative hearing and, exercising its independent judgment, denied the writ, expressly finding “Mr. Greenberg’s testimony is too speculative in the crucial areas, e.g. the rising BAC theory.”
CONTENTIONS
Hadsell contends her expert’s testimony concerning rising BAC rebutted the three-hour statutory presumption her blood alcohol level at the time of driving was 0.08 percent or more; the superior court erred in concluding that testimony was too speculative; and, absent additional evidence from the DMV, the decision to suspend her license was not supported by the weight of the evidence.
DISCUSSION
1. Standard of Review
In reviewing an administrative decision substantially affecting a fundamental vested right, the superior court examines the administrative record and exercises its independent judgment to determine if the weight of the evidence supports the findings upon which the agency’s decision is based or if errors of law were committed by the administrative tribunal. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457; McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129.) “[T]he ‘right to drive’ [is] ‘fundamental’ for purposes of selecting the standard of judicial review of the administrative decision to suspend the driver’s license.” (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 397; see Lake, at p. 456 [independent judgment standard of review applies to judicial review of administrative suspension or revocation of driver’s license].)
On appeal we must sustain the trial court’s factual findings if supported by substantial evidence. (Lake v. Reed, supra, 16 Cal.4th at p. 457; Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902; Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 967, fn. 1; Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 545.) “‘“We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.”’” (Lake, at p. 457.)
2. The Superior Court’s Findings Are Supported by Substantial Evidence
a. Governing law
The DMV must suspend an individual’s driver’s license as an administrative matter if it determines the person was lawfully arrested and was driving a motor vehicle with a BAC of 0.08 percent or higher. (Veh. Code, § 13353.2, subd. (a)(1).) As discussed, Vehicle Code section 23152, subdivision (b), establishes a rebuttable presumption a person’s BAC at the time of driving was at least 0.08 percent if a chemical test given within three hours of the driving shows a BAC of at least 0.08 percent. (See Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 391 [three-hour presumption of Veh. Code, § 23152, subd. (b), applies to DMV hearings]; Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 314 [same].) If evidence is introduced that rebuts the statutory three-hour presumption, the trier of fact must determine the existence or nonexistence of the presumed fact—here, whether Hadsell had a BAC of at least 0.08 percent at the time of driving—from the evidence introduced and without regard to the presumption. (See Evid. Code, § 604;^[5] see also CALCRIM No. 2111.^[6])
b. The DMV presented sufficient evidence to support a finding Hadsell was driving with a BAC of at least 0.08 percent
Hadsell argues the superior court (like the administrative hearing officer) incorrectly ruled her expert’s testimony was too speculative to be given any weight and that testimony adequately rebutted the Vehicle Code’s three-hour presumption. She then contends, once the presumption was rebutted by her expert, the DMV was required to present additional evidence to support the finding she was driving with a BAC of at least 0.08 percent. Because the DMV failed to do so, she insists, the suspension of her license was improper.
Hadsell’s contention the DMV must produce additional evidence once the statutory three-hour presumption has been rebutted misapprehends the applicable law. As our colleagues in Division One of this court explained in Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421, “Although the presumption disappears where, as here, it is met with contradictory evidence, inferences may nevertheless be drawn from the same circumstances that gave rise to the presumption in the first place.” (Id. at p. 421; see Evid. Code § 604.) In other words, the disappearance of the presumption is effectively moot when the foundational facts established by the party with the burden of proof are sufficient to support the trial court’s finding. (Craig, at p. 421.) In addition, as was reiterated in People v. Beltran (2007) 157 Cal.App.4th 235, 242, permissive inferences, which are drawn from proof of the basic facts, do not shift or alter the prosecution’s burden of production. (Id. at p. 242.) They leave the trier of fact free to draw or reject the inference. (Ibid.; see People v. Thompson (2006) 38 Cal.4th 811, 826.) Thus, where there is substantial evidence in the record, even if it is contradicted by other evidence, the trial court’s decision must be affirmed; and this court need consider no other issues. (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501.)
Accordingly, even if Hadsell is correct that her expert’s testimony was sufficiently credible to rebut that statutory presumption based on the results of a chemical test performed within three hours of her driving, substantial evidence in the administrative record supports the superior court’s conclusion her BAC was at least 0.08 percent at the time she hit the parked car. Specifically, even without the presumption, an inference of her BAC at the relevant time may be drawn from the results of the blood test (actually performed less than two hours after her accident). That inference combined with her symptoms of intoxication as reflected in Officer Peterson’s report—bloodshot eyes, constricted pupils, the odor of alcohol on her breath and the presence of HGN—were more than enough to uphold the suspension of her license. (See People v. Beltran, supra, 157 Cal.App.4th at p. 242.) Greenberg’s contrary testimony, even if admissible and minimally credible, does not require a reversal.
Hadsell attempts to avoid this result by noting in her reply brief there is no language in the minute order denying the writ petition that expressly states the superior court found the statutory presumption had been rebutted, but, despite the lack of a presumption, concluded the weight of the evidence still supported the finding her BAC was 0.08 percent or more at the time of driving. The finding Greenberg’s testimony “is too speculative in the crucial areas, e.g. the rising BAC theory,” she contends, suggests only that the court “impliedly supported DMV’s erroneous conclusion that the presumption was not rebutted.”
Hadsell has the doctrine of implied findings backward. That doctrine requires the appellate court to infer the superior court made all factual findings necessary to support the judgment. (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58; see In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.” (Fladeboe, at p. 58.) Hadsell had the right to request a statement of decision (Code Civ. Proc., § 632),^[7] and it was then her obligation to bring any ambiguities or omissions in the court’s decision to its attention. (Code Civ. Proc., § 634.) Having failed to do so, we properly infer the superior court made any implied factual findings necessary to support the judgment.^[8] (See Gately v. Cloverdale Unified School Dist. (2007) 156 Cal.App.4th 487, 496 [although trial court did not address issue raised in petition for writ of mandate, because petitioner failed to object to this omission, appellate court presumes on appeal all factual findings necessary to support the judgment and defers to these implied factual determination if supported by substantial evidence]; see also In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1134 [under Code Civ. Proc., §§ 632, 634, “the party must state any objection to the statement in order to avoid an implied finding on appeal in favor of the prevailing party”].)
In sum, whether viewed as express or implied, substantial evidence supports the superior court’s finding that Hadsell was driving with a BAC of 0.08 percent or more.
DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.


PERLUSS, P. J.


We concur:


ZELON, J.



JACKSON, J.








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