Patel v. Shiomoto
Filed 5/30/13 Patel v. Shiomoto CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
CHIRAG B.
PATEL,
Plaintiff and Respondent,
v.
JEAN
SHIOMOTO, as CHIEF DEPUTY DIRECTOR, etc.
Defendant and Appellant.
A136228
(Alameda
County
Super. Ct.
No. RG12616999)
On April 2, 2011,
petitioner Chirag Patel, who was already on probation for reckless driving
stemming from a prior drunk driving arrest, was again arrested for driving
under the influence of alcohol. He
submitted to a blood test, which showed a blood-alcohol content (BAC) of 0.13
percent. Following an administrative per
se hearing, the Department of Motor Vehicles (DMV) suspended his driver’s
license.
Patel filed a petition for writ of mandate in the superior
court to set aside the suspension. The
trial court found that the forensic alcohol report lacked trustworthiness and
that there were chain of custody
problems with Patel’s blood sample such that its integrity was
questionable. It thus concluded that the
DMV had failed to satisfy its burden of proof, and granted the petition.
The DMV appeals. We
conclude that the trial court’s findings were unsupported by substantial
evidence, and we reverse.
BACKGROUND
According
to the arrest report of Livermore Police Officer Sean Mariconi, on April 2, 2011
at 1:57 a.m., he was traveling eastbound on First Street in Livermore when he
noticed a silver Scion traveling eastbound in the right lane. The car caught his attention because it was
traveling below the posted speed limit.
As he watched, the car drifted to the right, crossing over the white
line into the bicycle lane. It then
moved back into the traffic lane before again drifting to the right, traveling
approximately 30 feet with both right tires in the bicycle lane. Officer Mariconi initiated a traffic stop,
and the Scion driver pulled over.
Patel was driving the Scion, with Brandon Mailho in the
passenger seat. Officer Mariconi asked
Patel where he was coming from, and he responded that he had just gone downtown
to pick up Mailho. The officer noticed
that Patel’s eyes were bloodshot and watery, and he detected an odor of alcohol
on Patel’s breath. He asked Patel if he
had been drinking, and Patel denied that he had been. Mailho volunteered that it must have been
coming from him because he was drunk.
Officer Mariconi had Patel exit the car for further
evaluation. He asked Patel when he had
last consumed alcohol, and Patel admitted he had had “2 beers†“about 2 or 3
hours ago.†When asked he if had been
drinking anything else, Patel responded, “2 Crown and Cokes.â€
Officer Mariconi had Patel perform a series of standardized
field sobriety tests. During the tests,
Officer Oto arrived to assist. Patel
performed poorly on each test. Officer
Mariconi also checked Patel for horizontal gaze nystagmus, which was present in
both eyes. He then asked Patel to take a
preliminary alcohol screening (PAS) test, which he took twice, registering a
BAC of 0.129 and 0.116 percent, respectively.
In light of Officer Mariconi’s observations of Patel, his
performance on the field sobriety tests, and the PAS test results, the officer
arrested him for drunk driving and confiscated his driver’s license. Then, as described in Officer Mariconi’s
arrest report, “Officer Oto took custody of Patel and transported him to Santa
Rita Jail. At the jail, Certified
Phlebotomy Technician Adriana Hamm from VBS Services, drew two vials of blood
from Patel at 0250 hours. Technician
Hamm turned the vials over to Officer Oto who later placed them into the
toxicology safe for lab testing.â€
PER SE HEARING
Administrative Per Se Procedure
Patel’s drunk driving arrest led to an administrative per
se hearing, the background and procedure of which we had occasion to discuss in
Brown v. Valverde (2010)
183 Cal.App.4th 1531, 1536-1538:
“When a driver is arrested for driving under the influence and is
determined to have a prohibited blood-alcohol content (BAC), the arresting
officer or the DMV serves the driver with a ‘notice of [an] order of suspension
or revocation’ of his or her driver’s license, advising that the suspension
will become effective 30 days from the date of service. (Veh. Code, §§ 13353.2, subds. (b) & (c),
13353.3, subd. (a).) The notice explains
the driver’s right to an administrative hearing before the effective date of
the suspension if the driver requests a hearing within 10 days of receipt of
the notice. (Id.,
§§ 13353.2, subd. (c), 13558, subd. (b).)
“After the driver is served with the notice, the DMV automatically
reviews the merits of the suspension to determine whether the peace officer had
reasonable cause to believe that the driver had been driving a motor vehicle
under the influence of alcohol, the driver was placed under arrest, and the
driver had a BAC of 0.08 percent or more at the time he or she was
driving. (Veh. Code, §§ 13558, subd.
(c)(2), 13557, subd. (b)(2).) This
determination must be made prior to the effective date of the suspension,
although the DMV may dispense with the automatic review if the driver requests
a hearing. (Id., § 13557,
subds. (c), (e).)
“The administrative per se hearing is presided over by either the
director of the DMV, a hearing board, or in the usual case . . . a
hearing officer. (Veh. Code, § 14104.2,
subd. (a) [“ ‘Any hearing shall be conducted by the director or by a
hearing officer or hearing board appointed by him or her from officers or
employees of the [DMV].’ â€]; [citations].)
Hearing officers are typically DMV employees who need not have any legal
training whatever. . . .
“The sole task of the hearing officer is to determine whether the
arresting officer had reasonable cause to believe the person was driving [under
the influence of alcohol], the driver was arrested, and the person was driving
with a BAC of 0.08 percent or higher. If
the hearing officer determines that the evidence establishes these three facts
by a preponderance of the evidence, the license will be suspended. [Citations.]â€
“The procedure is civil in nature and is independent from the
ultimately result in the imposition of penalties through the criminal justice
system. [Fns. omitted.]â€
the Administrative Per Se Hearing
At the administrative per se hearing, the DMV bears the burden of
proving by a preponderance of the evidence that (1) the peace officer had reasonable cause to believe the driver had been driving
a motor vehicle while under the influence of alcohol; (2) the driver was
placed under arrested; and (3) the driver had 0.08 percent or more, by weight,
of alcohol in his or her blood. (
§ 13558, subd. (c)(1).)
Where, as here, the driver submits to a blood test, the DMV
usually satisfies its burden by introducing two documents: the arresting officer’s sworn statement on
DMV form DS 367
title="">[1]
and a forensic alcohol report documenting the results of a chemical test of the
driver’s blood. (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th
1341, 1348 (Petricka).) Although the DS 367 statement and forensic
report are hearsay, they are admissible under the public employee records
exception to the hearsay rule, provided they meet the foundational requirements
of Evidence Code section 1280,
name="_ftnref2" title="">[2] which sets forth the
exception. (Lake v. Reed, supra, 16 Cal.4th at p. 467; Shea v. Department of Motor Vehicles (1998) 62 Cal.App.4th
1057, 1059; Furman v. Department of Motor
Vehicles (2002) 100 Cal.App.4th 416, 421; Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809,
815.) Section 1280 requires that the
“writing was made by and within the
scope of duty of a public employee,†it was “made at or near the time of
the act, condition, or event†recorded, and the “sources of information and
method and time of preparation were such to indicate its trustworthiness.â€
Significantly, once the section 1280 foundational
requirements are met, section 664’s presumption that official duties have been
regularly performed attaches. Under this
rebuttable presumption, it is presumed “ ‘that blood‑alcohol
test results recorded on official forms were obtained by following the
regulations and guidelines of title 17. . . . The recorded test
results are presumptively valid and the DMV is not required to present
additional foundational evidence.
[Citation.]’ †(Manriquez
v. Gourley (2003) 105 Cal.App.4th 1227, 1232-1233; see also
Department of Motor Vehicles (2003) 111
Cal.App.4th 366, 373; Shannon v. Gourley (2002)
103 Cal.App.4th 60, 65; Petricka, supra, 89
Cal.App.4th at p. 1348.)
Once the DMV establishes its prima facie case, the burden shifts
to the driver to produce affirmative evidence of the nonexistence of the
presumed facts sufficient to shift the burden of proof back to the DMV. (Manriquez
v. Gourley, supra, 105 Cal.App.4th at pp. 1232-1233.) “ ‘The licensee must show, “through
cross-examination of the officer or by the introduction of affirmative
evidence, that official standards were in any respect not observed . . . .†[Citation.]
Once such showing has been made, the burden shifts to the DMV to prove
that the test was reliable despite the violation.’ †(Id.
at p. 1233.) The licensee’s “showing
cannot rest on speculation, but must demonstrate a reasonable basis for an
inference that the procedures were not properly followed.†(Petricka,
supra, 89 Cal.App.4th at p. 1348.)
In general, the rules regarding admissibility of evidence in
administrative per se hearings are “relaxed.â€
(Lake
v. Reed, supra, 16 Cal.4th at p.
467.) As set forth in Government Code
section 11513, subdivision (c) and (d):
“(c) The hearing need not be conducted according to technical rules
relating to evidence and witnesses. . . . Any relevant evidence shall be admitted if it
is the sort of evidence on which responsible persons are accustomed to rely in
the conduct of serious affairs, regardless of the existence of any common law
or statutory rule which might make improper the admission of the evidence over
objection in civil actions. [¶] (d)
Hearsay evidence may be used for the purpose of supplementing or explaining
other evidence but shall not be sufficient in itself to support a finding
unless it would be admissible over objection in civil actions.â€
Administrative Per Se Hearing
The administrative per se hearing in this matter convened
on December 28, 2011, presided over by Hearing Officer Y. Li. It began with Hearing Officer Li introducing
the following documents on behalf of the DMV:
Officer Mariconi’s DS 367 statement executed under penalty of
perjury (Exhibit 1); the forensic alcohol report from Central Valley Toxicology
(CVT) (Exhibit 2); a declaration and determination of probable cause for a
warrantless arrest, also executed under penalty of perjury by Officer Mariconi
(Exhibit 3); Officer Mariconi’s four-page arrest report (Exhibit 4); and
an October 6, 2011 printout of Patel’s driving record (Exhibit 5).
Patel’s counsel objected to the admission of the documents
on hearsay and lack of foundation grounds.
Hearing Officer Li overruled the objections and moved the exhibits into
evidence.
Officer Mariconi’s DS 367 statement attested as
follows: “On 04/02/11 at 0157 hours, I
was on patrol driving marked LPD unit 14 eastbound on First St. near
Portola Ave. I noticed a silver
Scion (CA license 6BAV402) also traveling eastbound in the right (#2)
lane. The vehicle caught my attention
because it was traveling at about 35 mph, below the posted speed limit of
40 mph. I watched the vehicle as I [
right side tires crossing over the solid white line dividing the bicycle lane
from the traffic lane (a violation of 21658(a) VC). The Scion moved back into the traffic lane
and continued eastbound. As the Scion
passed Trevarno Rd. the vehicle drifted to the right again, and traveled for
about 30 feet with both right side tires on the bicycle lane. I initialed [sic] a traffic enforcement stop on the vehicle for the
violation. The Scion made a right turn
onto N. Mines Rd. and stopped on the right side of the roadway. [¶] I contacted the driver of the Scion,
Chirag Patel. When I was speaking with
Patel, I noticed that his eyes were bloodshot, watery and there was an odor of
an alcoholic beverage on his breath. I
had Patel perform a series of standardized field sobriety tests (SFSTs) and he
consented to a PAS test. When he
performed the SFSTs, Patel showed signs of impairment. Based on my observations of Patel, his
performance on the SFSTs and the results of the PAS test, I believe that he was
driving his vehicle while under the influence of alcohol. I placed him under arrest for a violation
23152(a) VC.â€
The one-page forensic alcohol report showed that on April
6, 2011, Patel’s blood sample was delivered by Tricor, a delivery service, to
CVT, where it was received by Bill Posey.
An analysis performed and recorded that same day confirmed a BAC of 0.13
percent. Analyst supervisor Alan
D. Barbour signed the report on April 11, 2011, with the following
certification: “I certify, under penalty
of perjury, that this is a true and correct copy of results of the analysis on
blood or urine obtained during the regular course of my duties. I further certify, that I am Department of
Health Services approved Forensic Alcohol Supervisor or Forensic Alcohol
Analyst and that equipment used for analysis was in proper working order and
recording of results was done at the time of analysis using the method
specified under California Forensic Alcohol License 04061.â€
The hearing then shifted to Patel, whose counsel offered
the following exhibits, which Hearing Officer Li marked for
identification: a seven-page hearing
brief dated July 26, 2011 (Exhibit A); a 18-page packet of documents produced
by CVT pursuant to a subpoena served by Patel (Exhibit B); the curriculum vitae
of Jeffrey L. Zehnder, laboratory director and founder of Drug Detection
Laboratory (DDL) (Exhibit C); a blood analysis report from DDL (Exhibit D); and
a revised hearing brief dated December 28, 2011 (Exhibit E).
Following the identification of the documents, Patel put on
forensic toxicologist Zehnder, who the hearing officer recognized as an expert.
analysis of Patel’s blood sample, which showed a BAC of 0.10 percent, compared
to CVT’s result of 0.13 percent. He also
testified that DDL’s test indicated a sodium fluoride level of four milligrams
per milliliter, which was below the industry standard of 10 milligrams per
milliliter. He explained that fluoride
is a preservative that reduces the possibility of microbial production of alcohol
if microbes are present and also inhibits enzymes that can break alcohol
down. It is used, according to Zehnder,
to “preserve the integrity of the sample.â€
He confirmed, however, that the level of sodium fluoride in the sample
was not a violation of Title 17.
name="_ftnref6" title="">[6]
Zehnder also suggested that the results of CVT’s analysis
were compromised. This was so, he
opined, because the baseline of the chromatogram was “hilly†rather than flat,
suggesting a problem with the chromotograph.
He speculated that it had a dirty injector, a column that was “getting a
little long in the tooth,†or “garbage in the blood.†He explained that DDL’s analysis was
performed using the “head space†method, which he claimed eliminated the possibility
of contamination. He acknowledged,
however, that CVT’s maintenance log indicated that CVT replaced the injector,
injection port liner, and septum once a week.
Patel’s counsel then turned to a retest CVT performed on
April 16, which showed a BAC of less than 0.13.
According to Zehnder, the drop in BAC from CVT’s first analysis to its
second and to DDL’s test could indicate problems with CVT’s initial
analysis. He admitted, however, that the
variances could also have been due to storage techniques or oxidation that
occurred each time the sample was opened to perform a test.
Following Zehnder’s testimony, the hearing officer moved
two of Patel’s exhibits—the documents CVT produced in response to Patel’s
subpoena and DDL’s laboratory report—into evidence. Patel’s counsel then gave his closing
argument.
On January 13, 2012, Hearing Officer Li issued his
“Administrative Per Se—.08 BAC Notification of Findings and
Decision.†He found that Officer
Mariconi had probable cause to stop Patel, and Patel had displayed objective
symptoms of intoxication including bloodshot and watery eyes, the odor of
alcoholic beverage, unsatisfactory field sobriety tests, PAS results indicating
intoxication, and an admission of alcohol consumption. He further found that Officer Mariconi had
reasonable cause to believe that Patel was driving under the influence of
alcohol and the arrest was lawful.
Finally, concluding that there was a “lack of sufficient evidence to
rebut the chemical test results,†he found that Patel had a BAC of 0.13
percent.
Hearing Officer Li rejected the arguments Patel’s counsel
had presented during his closing argument.
As to a contention that the blood analysis performed by CVT was
unreliable because the chromatograph’s “dirty baseline†suggested contamination
of the sample, the hearing officer concluded that Zehnder’s testimony in that
regard went “towards the weight of the evidence . . . .†He found that the
preponderance of the evidence indicated that Patel was driving with a 0.08
percent BAC or greater, citing DDL’s own forensic alcohol report showing a BAC
of 0.10 percent. Hearing Officer Li also
rejected the suggestion that the varying BAC results indicated unreliability in
the testing, citing Zehnder’s testimony that it may instead have been due to
oxidation that occurred each time the sample was opened.
Addressing a contention by Patel that there was no evidence
the blood draw was conducted in a medically approved manner, Hearing Officer Li
determined “DMV Exhibit 4 indicates [Patel’s] blood was drawn by a Certified
Phlebotomy Technician. In the absence of
evidence to indicate the blood was not drawn in an approved manner, [Patel’s]
contention is found without merit.†He
likewise rejected Patel’s contention that there was an insufficient amount of
sodium fluoride in the sample, citing Zehnder’s testimony that the amount of
preservative complied with Title 17, and that his arrest was unlawful because
there was no evidence that the bike lane into which he weaved was lawfully
established.
The findings concluded with the decision to re-impose the
suspension of Patel’s driver’s license.
Administrative Mandate
On February 14, 2012, Patel filed a petition for writ of
administrative mandate, seeking to set aside the suspension. The petition fundamentally argued that the
evidence showed Patel was lawfully driving his car at the time he was stopped
and Officer Mariconi did not observe him commit a crime or infraction. The petition also argued that the DMV failed
to lay a proper evidentiary foundation establishing the reliability of the
blood-alcohol test. Finally, it argued
that the hearing violated Patel’s due process rights because Hearing Officer Li
both presented the evidence at the hearing and ruled upon its admissibility.
The DMV’s opposition argued that Officer Mariconi had
reasonable cause to believe that Patel was driving under the influence; he
lawfully initiated the traffic stop leading to Patel’s arrest; the DMV’s
documentary evidence was entitled to the official duty presumption under
section 664 and supported the hearing officer’s findings; and Patel was
afforded due process.
The matter came on for hearing on May 24, 2012. Patel began by reiterating the same issues
raised in closing argument at the administrative per se hearing and in the
petition for writ of mandate. Namely, he
contended that he had been deprived of due process because Hearing Officer Li
served as both prosecutor and judge; that the blood analysis was inaccurate
because, as his expert Zehnder had testified, there were contaminants in the
sample; and that his stop was unlawful because there was no foundational
evidence establishing that the bicycle lane into which he swerved complied with
the Streets and Highways Code. For the
first time, Patel also argued that the integrity of the blood sample was
compromised because the chain of custody evidence was inadequate and that the
CVT forensic alcohol report was inadmissible because it was not made at or near
the time of the analysis, as required by section 1280.
By order dated June 26, 2012, the trial court granted
Patel’s petition. It observed that the
DMV bore the initial burden of establishing that a driver was operating a
vehicle with a blood-alcohol level of 0.08 percent or higher, a burden, the
court noted, typically satisfied by the arresting officer’s DS 367 statement
and a forensic laboratory report documenting the results of the driver’s blood
test. Based on these documents, the
hearing officer had found that the DMV met its burden of showing that Patel was
driving with a BAC of 0.13 percent, and that Patel failed to present sufficient
evidence to rebut the chemical test results.
Exercising its independent judgment, however, the trial court found
“that there was not substantial evidence to support the hearing officer’s findings
in light of the record as a whole.â€
As pertinent here, the trial court’s order stated:
“The court finds there is insufficient evidence in the
record to support a chain of custody as to the blood samples taken from [Patel]
such that the court can find that the integrity of the blood sample was
maintained. ‘In most cases it will be
the arresting officer who will . . . either give the test or take the suspect
to a facility where a test can be administered.’ [Citation.]
Even if the test is administered by another officer, the arresting
officer still has a duty to make certain that the testing procedures satisfy
statutory and regulatory requirements.
[Citation.] Arresting Officer
Marconi here completed both the DS 367 report and Arrest Report. [Citation.]
It was Officer Oto though, that transported [Patel] to Santa Rita Jail
for his blood draw, which was taken at 2:50 a.m. on April 2, 2011, and Officer
Oto that then took the vials from Certified Phlebotomy Technician Adriana
Hamm. [Citation.] Officer Mariconi’s April 2, 2011 report
states that ‘Technician Hamm turned the vials over to Officer Oto who later
placed them into the toxicology safe for lab testing.’ [Citation.]
Thus, Officer Mariconi was neither present at the blood draw nor does it
appear he was ever in possession of the vials.
The record is also absent as to whether Officer Oto then forwarded the
vials from the toxicology safe to CVT for testing. [Citation.]
The record only shows that the vials were delivered by Tricor to CVT on
April 6, 2011, which is 4 days after the blood samples were taken. [Citation.]
Given Officer Mariconi’s lack of personal knowledge combined with this
lack of evidence regarding maintaining the integrity of the blood samples, the
court cannot find that there is an evidentiary presumption that applies to the
handling of the blood samples.
“In addition to the above issue, the forensic alcohol
report likewise appears to be unreliable.
A blood test performed by a licensed forensic laboratory on behalf of a
law enforcement agency is also admissible based on the public employee records
exception to the hearsay rule.
[Citation.] A forensic alcohol
report is admissible at an administrative hearing however, only ‘if it complies
with the requirements governing the admission of evidence.’ [Citation.]
Such admissibility is found where the test results were put into
evidence through the certified laboratory report of the alcohol analyst who personally
performed the test. [Citation.] The requisite indicia of trustworthiness is
based on the fact that the analyst was reporting firsthand observations as well
as by the presumption of official duty regularly performed. [Citation.]
Where blood test results were not reported by the analyst but by the
arresting officer that merely attested that he reviewed the results, that part
of the officer’s report regarding the result of the blood-alcohol test—the sole
proof of the licensee’s blood-alcohol content—was found to be inadmissible
hearsay. [Citation.]
“The blood test results in this case were not placed into
evidence through the certified laboratory report of the analyst that performed
the test. The record shows that the
laboratory testing was done by an unidentified analyst with the initials ‘JEC’
on April 6, 2011. [Citation.] The results were then certified by Analyst
Supervisor Alan D. Barbour (‘Barbour’) on April 11, 2011. [Citation.]
Mr. Barbour certifies the results under penalty of perjury, stating that
the results were obtained during the regular course of his duties and that the
equipment used for analysis was in proper working order and recording of
results was done at the time of analysis.
[Citation.]
“It is unclear how Mr. Barbour can certify that the
equipment was proper and the recordings were done at the time of analysis, when
the testing was done by ‘JEC’ and not Mr. Barbour himself. This lack of foundation is further compounded
by the fact that the records shows [sic]
the results were certified on April 11, 2011, 5 days after the testing was
done. It would appear to the court that
this testing was therefore not performed in Mr. Barbour’s regular course of
duties, nor can it be said that the certified laboratory results were prepared
at or near the time of testing, such that the evidentiary presumption should
apply. The court also finds that based
on its independent review of the record, there was sufficient evidence to rebut
that the presumption under Evidence Code sections 664 and 1280 apply [
therefore the hearing officer should have shifted the burden back to the DMV to
establish the admissibility of these reports.â€
The trial court remanded the matter to the DMV to set aside
its findings and decision and “for reconsideration of this case in light of the
court’s opinion, and further hearing consistent with this order, if necessary.â€
Judgment was entered on July 31, 2012, and the DMV timely
appealed.
Review
The rules that pertain are well settled, as confirmed in
the leading case of Lake v. Reed, supra, 16
Cal.4th 448. First, as to the rules
governing the trial court, “In ruling on an application for a writ of mandate
following an order of suspension or revocation, a trial court is required to
determine, based on its independent judgment, ‘ “whether the weight of the
evidence supported the administrative decision.†’ †(Id.
at p. 456.) But even with that
independent judgment, “the trial court still ‘must afford a strong presumption
of correctness concerning the administrative findings, and the party
challenging the administrative decision bears the burden of convincing the
court that the administrative findings are contrary to the weight of the
evidence.’ †(Manriquez v. Gourley, supra, 105 Cal.App.4th at p. 1233, quoting
20 Cal.4th 805, 817.)
As to the rules governing us, Lake v. Reed, supra, 16 Cal.4th 448 further confirms that “[o]n appeal, we ‘need only review the
record to determine whether the trial court’s findings are supported by
substantial evidence.’ [Citations.] ‘ “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.
[Citation.]†’
[Citation.]†(
141 Cal.App.4th 1176, 1184.)
We review the trial court’s evidentiary rulings for abuse
of discretion. (Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th
974, 986 (Molenda).) “ ‘[T]he appropriate test of abuse of
discretion is whether or not the trial court exceeded the bounds of reason, all
of the circumstances before it being considered.’ [Citation.]
Appellate courts will disturb discretionary trial court rulings only
upon a showing of a clear case of abuse and a
The Trial Court’s Finding That the DMV Failed to Satisfy
Its Initial Burden of Proof Is Unsupported By Substantial Evidence.
As noted above, at the administrative per se hearing, the
DMV’s burden was threefold. It was
required to demonstrate that: (1)
Officer Mariconi had reasonable cause to believe that Patel was driving a
vehicle under the influence; (2) Patel was lawfully arrested; and (3) Patel was
driving his car with a blood-alcohol level of 0.08 percent or greater. (Lake
v. Reed, supra, 16 Cal.4th at pp. 455-456; Veh. Code, § 13557, subd. (b),
§ 13558, subd. (c)(1).) Where the
driver submits to a blood test, as Patel did here, the DMV usually satisfies
its burden by introducing two documents:
the arresting officer’s sworn DS 367 statement and a forensic laboratory
report documenting the results of a chemical blood test. (Petricka,
supra, 89 Cal.App.4th at p. 1348.)
The DMV introduced these documents at the hearing over the objection of
Patel’s counsel. While the trial court
expressed no concerns over the hearing officer’s decision to admit the DS 367
statement, it found that the laboratory report lacked reliability. Although the court did not expressly put it
in these terms, the ruling amounted to an evidentiary determination that the
report did not meet the foundational requirements of section 1280 and thus
should not have been admitted.
As noted, we review the trial court’s evidentiary rulings
for abuse of discretion (Molenda, supra,
172 Cal.App.4th at p. 986), and we conclude this discretion was abused.
As previously indicated, under section 1280 the forensic
alcohol report was admissible if it was made by and within the scope of duty of
a public employee, was made at or near the time of the act, condition, or event
recorded, and the sources of information and method and time of preparation
suggested that it was trustworthy.
(§ 1280.) The trial court
took exception with the first and second foundational requirements. We address them in turn.
We can easily dispose of the trial court’s concern as to
the first requirement. The court
concluded that the report was not prepared by and within the scope of duty of a
public employee because the report was sworn by Analyst Supervisor Barbour,
while the analysis was apparently conducted by “JEC.†Thus, according to the court, it appeared the
“testing was therefore not performed in Mr. Barbour’s regular course of duties . . . .†In fact, the report makes no reference to
“JEC.†The court’s speculation that
“JEC†conducted the analysis is drawn from records in the packet CVT produced
in response to Patel’s subpoena. In the
forensic alcohol report itself, Barbour attested that he was a “Department of
Health Services approved Forensic Alcohol Supervisor or Forensic Alcohol
Analyst†and that the results of the analysis were obtained during the regular
course of his duties. The court’s
speculation regarding “JEC†was insufficient to negate Barbour’s certification,
and the first foundational requirement was satisfied.
Turning to the second foundational requirement—that the
“writing was made at or near the time of the act, condition, or eventâ€
recorded—the trial court concluded that the forensic alcohol report did not
satisfy this requirement because although the analysis was conducted on April
6, Barbour did not certify the results until April 11, five days
later. This conclusion is contrary to
applicable case law.
It has been widely recognized that “ ‘[h]ow soon a
writing must be made after the act or event is a matter of degree and calls for
the exercise of reasonable judgment on the part of the trial
judge.’ †(People v. Martinez (2000) 22 Cal.4th 106, 128, fn. 7, italics
omitted.)
As the Martinez court went
on to explain, “[T]he timeliness requirement ‘is not to be judged
. . . by arbitrary or artificial time limits, measured by hours or
days or even weeks.’ [Citation.] Rather, ‘account must be taken of practical
considerations,’ including ‘the nature of the information recorded’ and ‘the
immutable reliability of the sources from which [the information was]
drawn.’ [Citation.] ‘Whether an entry made subsequent to the
transaction has been made within a sufficient time to render it within the
[hearsay] exception depends upon whether the time span between the transaction
and the entry was so great as to suggest a danger of inaccuracy by lapse of
memory.’ †(Id. at p. 128.) Multiple
cases have considered the timeliness requirement in the context of a forensic alcohol
analysis, but they do not avail Patel.
In Downer v. Zolin (1995)
34 Cal.App.4th 578, disapproved on other grounds in Lake v. Reed, supra, 16 Cal.4th 448, 465, 467, footnote 11, a
laboratory report of the analysis of a driver’s urine sample lacked a signature
near the statement of certification, and it was questionable whether the report
was dated. Concluding that the trial
court had not erred in finding the report undated, the Court of Appeal held
that “[t]he absence of evidence showing the report was made at or near the time
of the reported event†rendered it inadmissible hearsay under section
1280. (Downer v. Zolin, supra, 34 Cal.App.4th at p. 582.) In dictum, and as relevant here, the court
went on to state that “a report prepared nearly a week after the forensic tests
were completed does not fall within the statutory requirement that the report
be prepared ‘at or near the time’ of the reported event.†(Id.
at p. 582, fn. 5.)
In Glatman v.
Valverde (2006) 146 Cal.App.4th 700, a motorist suspected of driving under
the influence had his blood drawn just after midnight on July 25, 2005. That same day, a forensic analyst analyzed
the sample. The sample was then analyzed
again the next day by a different analyst.
The two analysts certified the test results on a forensic report dated
August 1, one week after the first analysis was conducted. (Glatman
v. Valverde, supra, 146 Cal.App.4th at p. 703.) At the administrative hearing, the hearing
officer rejected the driver’s argument that the report was inadmissible because
the test results were not recorded at or near the time of the blood
analysis. (Ibid.)
The driver petitioned the superior court for a writ of
mandate. (Glatman v. Valverde, supra, 146 Cal.App.4th at p. 703.) The court held that the forensic report did
not satisfy Evidence Code section 1280’s second foundational requirement and
was thus inadmissible. After also
rejecting the officer’s report of the driver’s PAS results, the court granted
the petition and issued a writ commanding the DMV to set aside the license
suspension. (Ibid.)
On the DMV’s appeal, the Court of Appeal affirmed. It held that the trial court did not abuse
its discretion in finding that the forensic report was not made “at or [near]
the time of the event,†since it was prepared a week after the analysis was
performed. (Glatman v. Valverde, supra, 146 Cal.App.4th at p. 704.) Citing People
v. Martinez, supra, 22 Cal.4th at p. 128, the court stated that the case
presented a “ ‘danger of inaccuracy by lapse of memory.’ †(Ibid.) It rejected the DMV’s argument that given the
number of tests performed each day, it was unreasonable to infer that the
analyst attempted to memorize the results and then record them from memory a
week later. According to the DMV, the
only reasonable inference was that the laboratory had policies and procedures
in place to ensure that the results were recorded when the analysis was
conducted. (Id. at pp. 704-705.) The
court disagreed, stating, “[A]n inference may be drawn only if the ‘proposed
conclusion is a reasonable, logical, and nonspeculative deduction from the
facts proved.’ [Citation.] Here, the record is silent as to the
department’s recordation policies and procedures, an automatic recording
capability of the testing equipment used, and the average number of tests
performed by an analyst each day.†(
In Molenda, supra, 172
Cal.App.4th at pp. 982-983, late on
the evening of August 17, 2006, a car was involved in a single-vehicle
rollover accident. The responding
officers determined the driver was under the influence of alcohol and arrested
her. Shortly after midnight on August
18, she submitted to a blood test. (
August 21, completed its analysis on September 1, and recorded the results
in a report dated September 8. (
In the administrative per se hearing, the driver objected
to the admissibility of the toxicology report, complaining that it did not meet
the foundational requirements of section 1280 because it was not prepared “at
or near the time†of the reported event.
(Molenda, supra, 172
Cal.App.4th at p. 984.) The hearing
officer disagreed, finding that “ ‘seven days is at or near the time of
analysis’ †and upholding the license suspension. (Id.
at pp. 984-985.)
The driver filed a petition for writ of mandate to set
aside the suspension. (
985.) The superior court granted the
petition, holding that the delay in preparing the toxicology report rendered
the report inadmissible. (
The Court of Appeal affirmed. (
982.) It stated that, as in
Cal.App.4th 700, there was no evidence the test result was recorded prior to
the preparation of the written report, which was done one week after the
analysis. As such, there was no evidence
it was prepared at or near the time of the recorded event, and the trial court
was within its discretion to exclude it.
(Id. at p. 991.)
These cases instruct that while there is no fixed number of
days that constitutes “at or near the time of analysis,†seven days does not
satisfy the requirement where there are no indicia that the test results were
recorded contemporaneously with the analysis and later transferred to a sworn
report. But in this case, the time lapse
between the April 6 analysis and the April 11 report was only five days. We are aware of no authority—and Patel cites
none—finding that a lapse of five days under any given circumstances defeats
the “at or near the time of analysis†requirement of section 1280.
More significantly, the evidence before Hearing Officer Li
established that there was no “danger of inaccuracy by lapse of memory.†The CVT report itself stated that the ethyl
alcohol analysis was “performed and recorded
on: 04/06/11.†(Italics added.) The packet of CVT documents Patel introduced
further confirmed that the data was contemporaneously recorded with the
analysis. Among these records were two
worksheets, for lack of a better word, that recorded the data generated by
Patel’s blood analysis. They were dated
April 6 and time-stamped 10:58:27 a.m. and 11:04:10 a.m.—just minutes after the
analysis was commenced at 10:54:25 a.m. and 11:00:08 a.m., respectively. Likewise, another document entitled “Forensic
Alcohol Log,†also dated April 6, reported data from the worksheets and
identified Patel’s BAC of 0.13 percent.
It thus cannot be said that there was a “danger of inaccuracy from
memory lapse†when the results were recorded within minutes of the tests being
conducted.
In light of the foregoing, we conclude that the forensic
alcohol report satisfied section 1280’s foundational requirements and was thus
admissible. It was an abuse of
discretion for the trial court to have concluded otherwise.
The forensic alcohol report and Officer Mariconi’s DS 367
statement together established that the officer had reasonable cause to believe
Patel was driving under the influence, Patel was properly arrested, and he had
a BAC of 0.13 percent. Based on section 664, then, the DMV was
entitled to a presumption that the blood test results were obtained in
compliance with the regulations and guidelines of Title 17. (Shannon
v. Gourley, supra, 103 Cal.App.4th 60, 64.)
This shifted the burden to Patel to introduce evidence establishing
otherwise.
Patel
Failed to Introduce Sufficient Evidence Rebutting the DMV’s Prima Facie Case
While the trial
court primarily held that the DMV did not satisfy its initial burden of proof
and was thus not entitled to the section 664 presumption, it held, in the
alternative, that even if the DMV satisfied its initial burden, thereby
shifting the burden to Patel, “there was sufficient evidence to rebut that the
presumption under Evidence Code section 664 and 1280 apply to the laboratory
results, and therefore the hearing officer should have shifted the burden back
to the DMV to establish the admissibility of these reports.†Again, this conclusion is unsupported by
substantial evidence.
First, the trial
court found that the forensic alcohol report was unreliable. Aside from the timing issues—which we have
already rejected—the court was concerned that someone with the initials “JECâ€
apparently conducted the analysis, while forensic alcohol supervisor Barbour
certified the report.
name="_ftnref8" title="">[8] It thus found it “unclear how
Mr. Barbour can certify that the equipment was proper and the recordings
were done at the time of the analysis, when the testing was done by ‘JEC’ and
not by Mr. Barbour himself.†The flaw in
this argument, however, is that it is founded on mere speculation because Patel
made no effort to develop this evidence at the hearing. The CVT worksheets identified the “Acq.
Operator†as “JEC,†but we do not know the significance of this notation. Patel did not subpoena “JEC†or Barbour to
testify at the hearing. He elicited no
evidence or testimony regarding the respective roles of “JEC†or Barbour in
conducting the forensic analysis. And based
on the CVT records, it is possible that Barbour had personal knowledge of all
that he certified.
Furthermore, even assuming arguendo there was evidence
establishing that “JEC†conducted the analysis, such evidence would not
automatically render the report unreliable.
Citing Petricka, supra,
89 Cal.App.4th at p. 1351, the trial court was apparently under the mistaken
belief that the forensic alcohol report could only be certified by the analyst
who personally performed the test. But
that is not what Petricka held, and
we are aware of no other authority so holding.
If supervisor Barbour had personal knowledge of what he was
certifying—e.g., that in supervising “JEC,†he oversaw the analysis, confirmed
that the equipment was in proper working order, and supervised the recording of
the results—we can perceive no reason why his certification would be
inadequate.
title="">[9]
In addition to the
reliability concerns with the forensic alcohol report, the trial court
concluded the integrity of Patel’s blood sample was compromised because there
was insufficient evidence showing a chain of custody. It described these concerns as follows: “Arresting Officer Mariconi here completed
both the DS 367 report and Arrest Report.
[Citation.] It was Officer Oto
though, that transported [Patel] to Santa Rita Jail for his blood draw, which
was taken at 2:50 a.m. on April 2, 2011, and Officer
Oto that then took the vials from Certified Phlebotomy Technician Adriana
Hamm. [Citation.] Officer Mariconi’s April 2, 2011 report
states that ‘Technician Hamm turned the vials over to Officer Oto who later
placed them into the toxicology safe for lab testing.’ [Citation.]
Thus, Officer Mariconi was neither present at the blood draw nor does it
appear he was ever in possession of the vials.
The record is also absent as to whether Officer Oto then forwarded the
vials from the toxicology safe to CVT for testing. [Citation.]
The record only shows that the vials were delivered by Tricor to CVT on
April 6, 2011, which is 4 days after the blood samples were taken. [Citation.]
Given Officer Mariconi’s lack of personal knowledge combined with this
lack of evidence regarding maintaining the integrity of the blood samples, the
court cannot find that there is an evidentiary presumption that applies to the
handling of the blood samples.†The
trial court’s conclusion that evidence regarding the chain of custody was
sufficient to rebut the section 664 presumption was unsupported by substantial
evidence.
First, as a general matter, deficiencies in chain of
custody documentation go to the weight of the proffered evidence, not to the
evidence’s admissibility. (
134; People v. Diaz (1992) 3 Cal.4th
495, 559.) Here, even assuming arguendo
that the chain of custody was inadequately documented, there was no evidence
suggesting that Patel’s blood sample was compromised. There was no evidence that the vials were
unlabeled or improperly labeled and, in fact, the record shows the
opposite. There was no suggestion that
the vials were tampered with in any way.
Additionally, the
trial court’s rejection of Officer Mariconi’s account of the blood draw and
subsequent handling of Patel’s blood sample due to his purported
lack of personal knowledge was erroneous for two reasons. First, in an administrative per se
hearing, there is a “relaxation of evidentiary rules†(Petricka, supra, 89 Cal.App.4th at p. 1348), and hearsay
evidence is admissible to supplement or explain other evidence. (Gov. Code, § 11513, subd. (d);
p. 458.)
Second, the trial
court’s conclusion that Officer Mariconi lacked personal knowledge was again
speculative. From
Officer Mariconi’s description in his report, it is entirely possible that he
was present at the blood draw and when Officer Oto placed the sample in the
toxicology safe. Patel could have
attempted to show Officer Mariconi’s lack of personal knowledge at the hearing
by subpoenaing Officers Mariconi or Oto or the phlebotomist, but he made no
effort to develop the evidence.
In sum, once the
DMV satisfied its initial burden, the burden shifted to Patel to produce
evidence demonstrating that the applicable procedures were not properly
performed. (Manriquez v. Gourley, supra, 105 Cal.App.4th at pp.
1232-1233.) The trial court mistakenly
believed that Patel merely had to “raise[] an issue as to the integrity of the
blood draw [for] the burden [to] shift[] back to the
[DMV] . . . .†He
was, however, required to do more than merely “raise an issue,†and his showing
could not rest on speculation. (
p. 1348.) But this is what his showing
did and, for that reason, the trial court’s finding that Patel introduced
sufficient evidence to shift the burden back to the DMV was unsupported by
substantial evidence.
Patel’s Arguments in His Respondent’s Brief Lack Merit
In his respondent’s brief,
Patel reiterates the same arguments he made during the administrative per se
hearing and in his petition for writ of mandate, none of which the trial court
relied on in granting his writ petition.
Specifically, he contends that his arrest was unlawful because the DMV
did not establish that the bicycle lane was lawfully created, and the DMV
failed to lay a foundation that his blood was drawn in compliance with Title
17. Neither the hearing officer nor the
trial court based its decision on either of these arguments, and we likewise
conclude they lack merit.
Additionally,
Patel argues that his due process rights
were violated because the hearing officer presented and ruled on the admissibility
of the DMV exhibits and because Government Code section 11502 mandates that
administrative hearing officers be attorneys with at least five years
experience. His cited authority does not
support his arguments, however, and we conclude the hearing was conducted in
accordance with the established procedures.
We conclude with the observation that, as California’s
courts and Legislature have long recognized, drunk driving is an extremely
dangerous offense. (See
Vehicles (1992) 7 Cal.App.4th 52, 57 [“numerous, dangerous, and deadly
risks associated with drinking and drivingâ€]; Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [“The drunk
driver cuts a wide swath of death, pain, grief, and untold physical and emotional
injury across the roads of California and the nation.â€]; Taylor v. Superior Court (1979) 24 Cal.3d 890, 899[“Drunken drivers
are extremely dangerous people.â€]; People
v. Duroncelay (1957) 48 Cal.2d 766, 772.)
Patel does not appear to take these dangers to heart, as the drunk
driving arrest spawning this matter was not his first. Despite this, the law would require us to
affirm the trial court’s decision reinstating Patel’s driver’s license if the
decision was supported by substantial
evidence. It was not, and we
therefore reverse.
The case is
remanded to the trial court with directions to enter an order denying Patel’s
petition for writ of mandate and reinstating the suspension order. The DMV shall recover its costs on
appeal.
_________________________
Richman,
J.
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Lambden, J.
name="_ftn1" title="">[1]
This statement is typically referred to as the officer’s DS 367 statement, a
designation we shall use here.
name="_ftn2" title="">[2]
All subsequent statutory references are to the Evidence Code, except where
otherwise noted.
