California DMV Caselaw
Berglund v. DMV
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
GRAYSON BERGLUND,
Plaintiff and Appellant,
v.
THE DIRECTOR OF THE
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Respondent.
B161918
(Los Angeles County
Super. Ct. No. BS074700)
APPEAL from a judgment of the Superior Court of Los Angeles
County, David P. Yaffe, Judge. Affirmed.
Todd E. Marsh for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Andrea Hoch, Chief Assistant
Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Elizabeth
Hong and Michelle Logan-Stern, Deputy Attorneys General, for Plaintiff and
Respondent.
Plaintiff Grayson Berglund appeals from a trial court judgment denying appellant’s petition for writ of administrative mandamus brought under Code of Civil Procedure section 1094.5 and Vehicle Code section 13559.1 Appellant contests the suspension of his driving privileges by respondent, the California Department of Motor Vehicles (DMV), for driving under the influence. We first note that appellant has failed to set forth a summary of significant facts in his opening brief, in violation of California Rules of Court, rule 14(a)(2)(C). Notwithstanding the violation, rather than exercising our authority under California Rules of Court, rule 14(e)(2) to order the brief returned for corrections and refiling, or to strike the brief with leave to file a new brief, we exercise our discretion under rule 14(e)(2)(C) to disregard the noncompliance. We conclude that the trial court’s judgment is supported by substantial evidence, and accordingly affirm.
FACTS
In August 2001, appellant was stopped by a law enforcement officer, who suspected that appellant was driving under the influence of alcohol. The officer observed that appellant had bloodshot and watery eyes, emitted the odor of an alcoholic beverage, and rendered slurred speech. After appellant failed several field sobriety tests, he was arrested and a blood sample revealed a blood alcohol content of .10. The officer issued appellant an administrative per se suspension and a temporary driver’s license. Appellant appealed his driver’s license suspension and on February 5,
2002, respondent conducted a hearing. Appellant admitted that he had drunk Vehicle Code section 13559 authorizes a driver whose license was suspended to file a petition for review of the suspension. alcoholic beverages soon before his arrest. The respondent submitted the arresting officer’s DS-367 sworn statement reflecting the blood alcohol test result of .10. Dewayne Beckner testified as an expert witness on appellant’s behalf. In 1998 he retired from his position as a supervising criminalist with the Los Angeles County Sheriff’s Department Crime Lab. Up until his retirement, Beckner was in charge of the blood alcohol testing section of the lab. He was partly responsible for designing a supervisor log on alcohol test results from an Intox machine that was used to test appellant’s sobriety. He designed the log to comply
with regulations that require periodic testing of breath machines for accuracy. Beckner opined that the log containing appellant’s test result did not comply with the regulations because it did not identify the person who performed the machine accuracy checks. According to Beckner, “many years ago,” unqualified personnel performed alcohol tests. The administrative hearing officer concluded that appellant failed to present competent evidence that the testing machine was not in working order when appellant’s blood alcohol was tested. He issued an administrative per se Notification of Findings and Decision sustaining the suspension of appellant’s license. Appellant petitioned the trial court for a writ of mandate pursuant to Code of Civil Procedure section 1094.5 and Vehicle Code section 13559. The trial court denied the petition, and subsequently entered a judgment thereon.
DISCUSSION
Appellant argues that respondent failed to provide sufficient evidence that the chemical test was valid, and that the trial court misapplied Evidence Code section 664. Appellant’s failure to summarize the facts in his opening brief “results in a waiver of evidentiary claims. [Citation.]” (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.) Nevertheless, we review the record on the merits. Where, as here, a trial court “is required to exercise its independent
judgment upon the record of an administrative proceeding, the scope of review on appeal is limited. An appellate court must sustain the superior court’s findings if substantial evidence supports them. [Citation.]” (Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 321.) Appellant argues that the crime lab which performed the machine alcohol test did not comply with section 1221.4, subdivision (a)(6) of title 17 of the California Code of Regulations because an unqualified employee may have performed the test, and that respondent offered no evidence that the test results were reliable. Subdivision (a)(6) of section 1221.4 requires records to be kept for each instrument used for breach alcohol analysis, and the records are “to show the frequency of determination of accuracy and the identity of the person performing the determination of accuracy.”
Appellant’s arguments misconstrue the burdens of proof assigned to each party. To meet its burden of proof, the DMV may rely on the rebuttable presumption set forth in Evidence Code section 664 that the alcohol test result was obtained in compliance with statutory and regulatory requirements. (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 137.) “This presumption affects the burden of proof (Evid. Code, § 660) and in the absence of contradictory evidence is alone sufficient to support a finding.” (Id. at p. 137.) The expert retained by appellant merely opined that the test may have been performed by an inaccurate machine because the log did not identify the person who checked the machine for accuracy. This evidence, at best, was speculative and is insufficient to rebut the presumption. (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.)
DISPOSITION
The judgment is affirmed.