Wendt v. Borucki
Filed
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Mono)
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MARK ERNEST WENDT, Plaintiff and Appellant, v. JOAN BORUCKI, as Director, etc., et al., Defendants and Respondents. | C051959 (Super. Ct. No. 15571) |
Mark Wendt appeals from denial of his petition for a writ of mandate to set aside the decision of the California Department of Motor Vehicles (the Department) suspending his driving privilege for one year. He contends the Department failed to carry its burden of proof to establish by a preponderance of the evidence that he was driving with a blood alcohol concentration (
FACTS
On the morning of
When the officer made contact with the driver, Mark Wendt, he noticed Wendt's eyes were red and watery and there was the distinct odor of alcohol in the SUV. After the officer told Wendt the odor was on his person, Wendt admitted he had drank several glasses of wine the night before. Murphy asked Wendt to perform a series of field sobriety tests, which he performed poorly. Two preliminary alcohol screening tests showed a BAC of .08 percent.
Murphy arrested Wendt for driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). He advised Wendt of the implied consent law and asked which chemical test he preferred. Wendt chose a blood test. A blood sample was taken and sent to the Department of Justice (DOJ) for analysis.
About two weeks later, the DOJ reported the blood sample contained .08 percent alcohol. Wendt had an analysis of the blood sample conducted by a private laboratory in early May. It found a BAC of .07 percent.
The differing test results were presented at the administrative per se hearing. The hearing officer found the initial test had â€