California DMV Caselaw
Coelho v. Valverde
John Andrew COELHO, Plaintiff and Appellant,
v.
George VALVERDE, as Director, etc., Defendant and Respondent.
No. F048545.
(Super.Ct.No. 04CECG03677).
July 11, 2006.
APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Pena, Jr., Judge.
W. Scott Quinlan and Richard P. Berman for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Barbara J. Seidman and Ashante L. Norton, Deputy Attorneys General, for Defendant and Respondent.
OPINION
THE COURT.FN*
FN* Before Levy, Acting P.J., Cornell, J. and Dawson, J.
*1 Appellant John Andrew Coelho was arrested for driving under the influence of alcohol (DUI) on September 14, 2004, after he was discovered in the driver's seat of a vehicle that had run off the road and into a vineyard. California Highway Patrol Officer E. Halvorson took him to University Medical Center, in Fresno, where a blood sample was taken by Mark Delgado. In his report, Officer Halvorson listed Delgado as a “lab tech.” The California Department of Justice (DOJ) later performed a chemical analysis of appellant's blood sample, which indicated a 0.26 percent blood-alcohol content (BAC).
Officer Halvorson issued his sworn statement which, along with a driver's license suspension per se order and chemical test results, caused the respondent Department of Motor Vehicles (DMV) to conduct an administrative review and to sustain the license suspension order. (Veh.Code,FN1 §§ 13557, subd. (b)(2), 13353.2.)
FN1. Unless otherwise noted, all statutory references are to the Vehicle Code.
Appellant then requested an administrative per se hearing, to be conducted pursuant to section 13558 and subject to judicial review pursuant to section 13559. The hearing was held on November 16, 2004. Respondent introduced nine exhibits at the hearing, including Officer Halvorson's sworn report (see § 13380), the DOJ blood-alcohol analysis lab report, and Officer Halvorson's traffic collision report.
Appellant objected to the admission of the DOJ lab report on the basis of lack of relevance and foundation, arguing “no Title 17 compliance with the taking of a test.” The hearing officer overruled the objection and admitted the BAC lab results into evidence. Appellant offered no evidence at the hearing.
The hearing officer issued findings and a decision against appellant on December 9, 2004. Thereafter, the DMV upheld the order suspending appellant's license.
Appellant sought review by filing a petition for writ of mandate in the trial court. (§ 13559.) The lower court denied the petition by order dated July 7, 2005, and appellant filed a timely notice of appeal.
STANDARD OF REVIEW
“The review shall be on the record of the hearing and the court shall not consider other evidence. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence in the record, the court may order the department to rescind the order of suspension or revocation and return, or reissue a new license to, the person.” (§ 13559, subd. (a).)
On appeal, the scope of review is limited to determining whether the trial court's findings are supported by substantial evidence. ( Lake v. Reed (1997) 16 Cal.4th 448, 457.) The appellate court must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision. ( Ibid.)
DISCUSSION
The DOJ BAC lab test results were admitted against appellant pursuant to Evidence Code section 1280, the official records exception to the hearsay rule, and it was respondent's burden to show that the foundational requirements of Evidence Code section 1280 were met. ( Furman v. Department of Motor Vehicles (2002) 100 Cal.App.4th 416, 421.)
*2 Appellant contends respondent failed to make such a showing because the only evidence presented on the subject demonstrated that appellant's blood was drawn, on the night of his arrest, by a “lab tech.”
A. Section 23158 and Title 17
Section 23158 and the California Department of Health Services regulations (Cal.Code Regs., tit. 17) outline the statutory and regulatory requirements regarding collection, preservation, and testing procedures for blood samples in DUI cases. (§ 23158; Cal.Code Regs., tit. 17, § 1215 et seq.) Section 23158 sets forth the list of medical personnel authorized to perform blood draws for purposes of determining blood-alcohol content:
“(a) [O]nly 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.”
Title 17 of the California Code of Regulations, which sets forth the procedures and requirements for forensic alcohol testing, specifies those who are authorized to perform forensic alcohol analysis. ( Furman v. Department of Motor Vehicle, supra, 100 Cal.App.4th at p. 422.) Forensic alcohol analysis shall be performed only by persons who meet the qualifications set forth in these regulations for forensic alcohol supervisors, forensic alcohol analysts, or forensic alcohol analyst trainees (working under the supervision of a forensic alcohol supervisor or forensic alcohol analyst). (Cal.Code Regs., tit. 17, § 1216, subd. (a).)
Compliance with the above regulations “establishes both a foundation for admission of test results into evidence in any proceeding and a basis for finding such results to be legally sufficient evidence to support the requisite findings in such proceeding.” ( Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 142.) Here, respondent offered evidence establishing the requisite foundational showing necessary for admission of the blood-alcohol results. During the administrative per se hearing, respondent introduced, inter alia, the officer's sworn report, the “Driving Under the Influence Arrest-Investigation Report,” and the DOJ lab report indicating appellant's BAC at the time of arrest was 0.26 percent.
“Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence.” ( Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64.) Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the applicable statutory regulations and guidelines. ( Shannon v. Gourley, supra, at pp. 64-65.)
*3 In matters dealing with license suspensions, the presumption of reliability is usually established with the DMV's introduction of the officer's sworn report and the forensic lab report documenting the chemical test results. ( Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.) Once the DMV has made its prima facie case of reliability, “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 .” ( Ibid.) The driver's showing “cannot rest on speculation, but must demonstrate a reasonable basis for an inference that the procedures were not properly followed.” ( Ibid.)
B. The Burden to Rebut the DMV's Prima Facie Case
Appellant contends, however, that the burden to rebut the presumption of Evidence Code section 664 did not shift to him in this case because respondent's own evidence, Officer Halvorson's DUI investigation report, itself rebutted the presumption by indicating appellant's blood was drawn by a lab technician, not one of the medical personnel authorized for blood draws by section 23158. According to appellant, “[w]hen the DMV's evidence raises a question as to whether the person drawing blood was qualified to perform an official duty, the DMV must produce additional evidence that answers the question raised. [¶] ... [¶][T]he DMV could not, absent further evidence, invoke any presumption to satisfy the requirements of Evidence Code section 1280.”
In support, appellant relies on Furman v. Department of Motor Vehicles, supra, 100 Cal.App.4th 416. There the document presented by the DMV to establish the driver's BAC, and admitted over hearsay objection, was signed by “Marianne Perhach ... Criminalist.” ( Id. at p. 419.) A “criminalist” is not one of those designated by title 17 of the California Code of Regulations to perform forensic blood-alcohol analysis.FN2 Because the DMV presented no evidence to show that the criminalist qualified as appropriately authorized, the DMV failed to demonstrate it was entitled to the official duty presumption of Evidence Code section 664 and, thus, also failed to establish the foundational requirements of the official records hearsay exception of Evidence Code section 1280. ( Furman v. Department of Motor Vehicles, supra, at pp. 421-422; see also Shea v. Department of Motor Vehicles (1998) 62 Cal.App.4th 1057, 1060-1061; cf. Shannon v. Gourley, supra, 103 Cal.App.4th at p. 63.)
FN2. Title 17 of the California Code of Regulations, section 1216, authorizes only forensic alcohol supervisors, forensic alcohol analysts, or forensic alcohol analyst trainees to make the analysis. ( Furman v. Department of Motor Vehicles, supra, 100 Cal.App.4th at pp. 422-423.)
Like respondent, however, we believe this case is more closely analogous to Petricka v. Department of Motor Vehicles, supra, 89 Cal.App.4th 1341. There the documents submitted against the driver at the administrative per se hearing did not identify, by either name or title, the person who had drawn the driver's blood for blood-alcohol analysis. The driver objected to admission of the BAC evidence, as does appellant here, on the basis the DMV failed to show an authorized person drew his blood and thus failed to make its prima facie showing that the BAC results satisfied the requirements of Evidence Code section 664. The Petricka court rejected this argument on the basis it was presumed pursuant to Evidence Code section 664 that the arresting officer had performed his official duty correctly and had used an authorized person to perform the blood draw. ( Petricka v. Department of Motor Vehicles, supra, at pp. 1349-1350.)
*4 Appellant argues this case is not controlled by Petricka because here the DMV's own evidence affirmatively raised the question whether the blood draw was done by an authorized person. We disagree. Officer Halvorson is presumed to have performed his duty correctly, and his passing reference to a “lab tech” does nothing to rebut this presumption. Appellant had the opportunity to offer evidence to rebut the presumption but did not do so.
DISPOSITION
The judgment is affirmed.