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face="Times New Roman">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opinion has not been certified for publication or ordered published for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
face="Times New Roman">DOMINIC
ERNESTO MADRID,
face="Times New Roman">
face="Times New Roman"> Plaintiff and Appellant,
face="Times New Roman">
face="Times New Roman">v.
face="Times New Roman">
face="Times New Roman">DEPARTMENT
OF MOTOR
face="Times New Roman">VEHICLES
et al.,
face="Times New Roman">
face="Times New Roman"> Defendants and Respondents.
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman"> E056373
face="Times New Roman">
face="Times New Roman"> (Super.Ct.No. RIC1115862)
face="Times New Roman">
face="Times New Roman"> OPINION
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APPEAL from the Superior Court of
County. Ronald L.
Taylor, Judge. (Retired judge of the
Riverside Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
face="Times New Roman">Bartell & Hensel, Donald J. Hensel and Lara J. Gressley for
Plaintiff and Appellant.
face="Times New Roman">Kamala D. Harris, Attorney General, Alicia M. B. Fowler,
Assistant Attorney General, Chris A. Knudsen and Jodi L. Cleesattle, Deputy
Attorneys General, for Defendants and Respondents.
Plaintiff and appellant Dominic
Ernesto Madrid (Madrid) filed a petition for writ
of review and mandamus to set aside a decision by the
Department) suspending his driver’s license.
The trial court denied the petition and Madrid appeals.
The case presents two issues of the interpretation
of drunk driving laws. The first issue
is which party has the duty to obtain and disclose the name of the phlebotomist
who drew Madrid’s blood under Vehicle Code
section 23158, subdivision (a), and which party has the duty to produce the
phlebotomist for cross-examination at the administrative hearing. The second issue is the applicability of the
collateral estoppel doctrine, when Madrid pled guilty to the drunk
driving charge after the DMV suspension hearing.
face="Times New Roman">On May 8, 2011, at 12:33 a.m., a Hemet police officer arrested
Madrid for misdemeanor violations of Vehicle Code sections 23152, subdivision (a)
(driving under the influence) (DUI) and 23152, subdivision (b) (DUI with a
blood-alcohol level over 0.08%).
a.m. The result was an ethyl blood-alcohol content
(B.A.C.) of 0.20 percent. The test
results were reported by an employee of Bio-Tox Laboratories on May 17, 2011. The analyst
certified that she is a qualified person and that the analysis was performed
subject to the provisions of Title 17 of the California Code of Regulations
(hereafter Title 17).
face="Times New Roman">The arresting officer completed an administrative per se
suspension and driver’s license revocation order. Madrid requested an administrative
hearing to review the order of license suspension pursuant to Vehicle Code
section 13558.
face="Times New Roman">A DMV administrative per se hearing “is limited to three
issues: (1) whether the arresting
officer had reasonable cause to believe the driver was driving under the
influence of alcohol; (2) whether the driver was lawfully arrested; and (3)
whether the driver had a blood-alcohol level of .08 percent or more. [Citations.]â€
(Petricka v. Department of Motor Vehicles (2001)
89 Cal.App.4th 1341, 1345 (Pedricka); see
also Veh. Code, § 13353.2.) The administrative
per se hearing was held on August 23,
2011. The hearing officer found that there was
sufficient evidence to find for the Department on all three issues. The hearing officer therefore reimposed the
suspension of Madrid’s driver’s license.
face="Times New Roman">The only issue here was the blood-alcohol test. The hearing officer found: “As based on the lack of sufficient evidence
to rebut the chemical test results, it is hereby determined that [Madrid] submitted to and completed
a chemical test of his blood, with a result of 0.20% B.A.C. at 12:57
a.m.
on 5/8/11.†A further
finding states: “Counsel’s presentation,
which consisted of arguments and objections, was given its proper weight and
consideration before this decision was rendered. However, the DMV’s evidence was not
rebutted. The identity of the
phlebotomist is irrelevant because counsel presented no affirmative evidence to
show that the phlebotomist was not properly qualified to obtain blood samples.â€
face="Times New Roman">On September 29, 2011, Madrid filed a petition for writ of review
and mandamus pursuant to Vehicle Code section 13559 and Code of Civil Procedure
section 1094.5. The petition was based
on objections made at the hearing.
Specifically, Madrid contends that he was deprived of his statutory and
constitutional rights because the Department failed to provide him the name of
the phlebotomist, as required by Vehicle Code section 23158, subdivision (c).
Without the name of the phlebotomist, Madrid
contends that he was unable to subpoena the person for the administrative
hearing. In other words, he could not present
affirmative evidence regarding the qualifications and methods used by the
phlebotomist because the Department found the information to be irrelevant, and
failed to supply it in discovery.
face="Times New Roman">The petition was heard on March 23 and April 6, 2012. At the commencement of the hearing, the trial
court announced its tentative decision.
It found that the petition should be denied on collateral estoppel
grounds. The tentative finding was based
on the fact that, after the administrative hearing, Madrid pled guilty to the
charges as part of a plea bargain. The
trial court found that the final judgment in the criminal case was entitled to
be given collateral estoppel effect in this case. It therefore found that the crimes charged had
been admitted and that Madrid could not challenge “the DMV findings on issues
subsumed by his conviction.†Madrid’s counsel
then pointed out that the issue had not been raised by the Department, and
asked time for further briefing. The
request was granted.
face="Times New Roman">Counsel then argued that Madrid had made timely requests for
the name of the phlebotomist, and the Department failed to provide the person’s
name. Counsel contended that, without
the person’s name, he was effectively prevented from calling the person as a
witness. Madrid’s counsel was therefore
prevented from examining or cross-examining the person to determine if that
person was qualified to make a blood draw, or if that person followed proper
procedures in making the blood draw, and to determine Title 17 compliance. Counsel stated that the hearing officer found
the name irrelevant but still allowed the blood evidence to be admitted,
despite Vehicle Code section 23158, subdivision (c).
face="Times New Roman">On April 6, 2012, the hearing resumed after the receipt of
briefing on the collateral estoppel issue.
Madrid argued that a guilty plea in a criminal case cannot be used to
support a claim of collateral estoppel in a civil action, particularly when the
guilty plea is given retroactive effect to decide the issues raised and decided
at the administrative hearing. After
further discussion of the cases, the trial court disagreed, and the petition
was denied on collateral estoppel
grounds.
name="_ftnref2" title="">face="Times New Roman">[2]
VEHICLE
CODE SECTION 23158
Vehicle Code section 23158,
subdivision (a), provides, in relevant part: “Notwithstanding any other provision of law,
only a licensed physician and surgeon, registered nurse, licensed vocational
nurse, duly licensed clinical laboratory scientist or clinical laboratory bioanalyst,
a person who has been issued a ‘certified phlebotomy technician’ certificate
pursuant to Section 1246 of the Business and Professions Code, unlicensed
laboratory personnel regulated pursuant to Sections 1242, 1242.5 and 1246 of
the Business and Professions Code, or certified paramedic acting at the request
of a peace officer may withdraw blood for the purpose of determining the
alcoholic content therein.â€
face="Times New Roman">Vehicle Code section 23158, subdivision (c), provides: “Upon the request of the person tested, full
information concerning the test taken at the direction of the peace officer
shall be made available to the person or the person’s attorney.â€
face="Times New Roman">Since only designated persons are qualified to draw blood, Madrid
argues that he had a right, at the hearing, to examine the person regarding
their qualifications and compliance with required blood draw procedures. He argues that he could not subpoena the
person or challenge their qualifications at the hearing without learning their
identity.
face="Times New Roman">Prior to the hearing, Madrid’s counsel repeatedly requested
that the Department provide the name of the person who had conducted the blood
draw. He also filed a brief, which fully
stated his objection. The name of the
phlebotomist was not included in the laboratory report or the police report in
our record. Accordingly, the Department
failed to provide the information because it did not have it. The hearing officer felt that the information
was irrelevant because Madrid had not presented any evidence at the hearing to
show that the phlebotomist was not qualified or competent.
clearly relevant to the only issue at the hearing. (Parris v. Zolin (1996)
12 Cal.4th 839, 853.)
face="Times New Roman">Madrid therefore relies on Vehicle Code section 23158,
subdivision (c), and argues that the Department failed to provide the requisite
“full information†in discovery. In
essence, he argues that the Department was “attempting to shift the burden of
finding out that information to us when 23158(c) affirmatively places that obligation
upon the Department.â€
face="Times New Roman">Accordingly, Madrid concludes that his objections to the
admission of the blood test results contained in the laboratory report should
have been sustained because the Department was not entitled to use the results
at the hearing.
face="Times New Roman">The Department relies on the presumption that official duty
has been regularly performed. (Evid. Code,
§ 664.) It also relies on
Cal.App.4th 1341. In that case, Petricka
argued that “the DMV had failed to establish evidence that the blood sample was
properly collected, handled and preserved by a qualified person, as required by
law. Petricka argued that the
presumption of Evidence Code section 664 did not establish that the proper
procedures were followed, by a person with proper qualifications, when his
blood was drawn.†(Petricka,
at p. 1347.) “The DMV countered that the
Evidence Code presumption established that the blood was properly collected by
a qualified person, and that it was incumbent upon Petricka to overcome the
presumption. The DMV argued that
Petricka had not succeeded in overcoming the presumption because he had
introduced no evidence disputing the validity of the procedures used to collect
his blood, and made no showing that they violated Title 17.†(Ibid.)
face="Times New Roman">The appellate court in Petricka agreed
with the DMV: “The general rule
fashioned by these and other cases is that Evidence Code section 664, which
affects the burden of proof, can satisfy the DMV’s burden of proving that
appropriate procedures have been properly performed. Once a prima facie case is made, the burden
then shifts to the driver to show improper performance, either by
cross-examination of the arresting officer or by the introduction of
affirmative evidence. [Citations.] Such a showing cannot rest on speculation,
but must demonstrate a reasonable basis for an inference that the procedures
were not properly followed. [Citation.]â€
(Petricka,
face="Times New Roman">We agree that the Evidence Code section 664 presumption
applied here and that Madrid was required to present evidence to rebut the
presumption by showing that improper procedures were used. (Manriquez,
at this point because the name of the person who conducted the blood draw was
unknown and Petricka made a specific demand for discovery. (Petricka,
procedures which would have provided the name of the person who drew the blood.
(Ibid.) “‘Upon the request of the person tested, full
information concerning the test taken at the direction of the peace officer
shall be made available to the person or the person’s attorney.’ [Citation.]
Upon such a request, the DMV would have been obligated to identify the
blood drawer, and Petricka could then have invoked a statutory subpoena power
to obtain his or her testimony at the administrative hearing. [Citations.]
If Petricka had requested a subpoena, had it served and paid the
appropriate fee, he would have had an ‘“absolute rightâ€â€™ to compel the
attendance of the drawer of his blood. [Citations.]â€
(Ibid.)
face="Times New Roman">Continuing its parallel to the facts of this case, the DMV in
Petricka failed to comply with the
discovery request. The appellate court
said: “But there is no evidence that, in
the wake of the DMV’s failure to disclose, counsel petitioned the superior
court for discovery compliance under Government Code section 11507.7. Furthermore, counsel made no complaint about
a lack of discovery at the administrative hearing, did not request a continuance
[citation], and did not ask that the hearing officer issue a subpoena [citation].
take such steps as these to secure the attendance of desired witnesses. [Citation.]†(Petricka,
relied on Vehicle Code section 14104.5.
That section states that, prior to a hearing, the hearing officer
person subpoenaed is required.
face="Times New Roman">The Petricka court
also relied on Monaghan v. Department of Motor Vehicles
(1995) 35 Cal.App.4th 1621 (Monaghan). Prior to his administrative hearing, Monaghan
specifically requested the name of the person who conducted the blood test. (Id. at p. 1624.) At the hearing, Monaghan objected to the DMV’s
documentary evidence “on the ground that the DMV failed to produce the authors
of those documents for cross-examination despite his request.†(Ibid.) The court then reviewed the statutory steps
necessary to compel attendance of witnesses and concluded: “These statutes afford a licensee ‘an absolute
right to compel’ the attendance of witnesses ‘if he requests a [subpoena], has
it served and pays the statutory fee. [Citations.]’ [Citation.]†(Id. at p. 1626.)
face="Times New Roman">The Monaghan court
went on to hold that it is the licensee’s burden to secure the attendance of
the witness. (Monaghan,
after being served with a subpoena by [the] DMV, or after the DMV has given
less formal assurances to the licensee that the [witness] will be present, the
licensee must ask for a continuance to secure the [witness’s] attendance
or any objection to his nonappearance is waived.’ [Citations.]†(Ibid.) The Monaghan court
cited Nick v. Department of Motor Vehicles (1993)
12 Cal.App.4th 1407, 1417: “‘A defendant
may not complain of the absence of a witness unless he had made a showing of
due diligence to obtain the attendance of the witness.’ [Citation.]â€
(See also Monaghan, at
p. 1626.)
face="Times New Roman">We therefore must conclude that, even though the name of the
phlebotomist was not disclosed, a request for discovery without a request for
the issuance of a subpoena, was insufficient.
In the words of Petricka, “[i]t
is incumbent upon the driver to take such steps as these to secure the attendance
of desired witnesses. [Citation.]†(Petricka,
face="Times New Roman">Under Vehicle Code section 23158, subdivision (c), the
Department had the clear statutory duty to provide “full informationâ€
concerning the test. But, under the
cases discussed ante, when the Department fails
to do so, the licensee must do more than protest and object at the
hearing. He or she must request the
issuance of a subpoena or a continuance of the hearing. Madrid failed to take this additional step to
require the phlebotomist to appear at the hearing for cross-examination on his
or her qualifications and compliance with the requirements for a proper blood
draw. Since he failed to do so, and did
not introduce any other evidence, he did not rebut the presumption that
official duty was properly performed, and the trial court properly denied the petition.
face="Times New Roman">The trial court’s judgment denying the petition for writ of review
and mandamus is affirmed. Each party
shall bear their own costs.
face="Times New Roman">NOT TO BE PUBLISHED IN OFFICIAL REPORTS
face="Times New Roman">McKINSTER
face="Times New Roman"> Acting P. J.
We concur:
KING
J.
MILLER
J.
name="_ftn1" title="">
face="Times New Roman">face="Times New Roman">[1]
On December 21, 2012, the Attorney General filed a request that we take
judicial notice of the misdemeanor complaint, the traffic citation, and the
misdemeanor plea form. No opposition was
filed, although Madrid opposes the request in his reply brief. By order filed January 17, 2013, we reserved
consideration of the request with this appeal.
We now grant the request for judicial notice. (Evid. Code, §§ 452, subd. (d), 452.5, 459.)
“On appeal, this court ordinarily reviews the record to determine
whether the trial court’s findings are supported by substantial evidence. [Citation.]
But where, as here, the determinative question is one of statutory or
regulatory interpretation, an issue of law, we may exercise our independent
judgment. [Citations.]†(Manriquez v. Gourley
(2003) 105 Cal.App.4th 1227, 1233 (Manriguez).)
