Berezin v. DMV

Filed 8/14/07 Berezin v. DMV CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

After finding the results of a blood-alcohol analysis unreliable, the trial court granted a writ of mandate setting aside the decision of the Department of Motor Vehicles (DMV) to suspend the driving privileges of Laura Ann Berezin. We agree with the DMV that the blood-alcohol analysis was sufficient to sustain Berezins suspension. Accordingly, we reverse the judgment and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND[1]

After 11:00 p.m., on February 2, 2006, Menlo Park Police Officer E. Estrada stopped Berezin because her car was missing a front license plate in violation of Vehicle Code section 5200, subdivision (a). Estrada told Berezin the reason she was stopped. The officer smelled alcohol on Berezins person, noticed her speech was slightly slurred, and observed that her eyes were bloodshot. According to the officer, Berezin admitted she had consumed three glasses of wine. Berezins performance of some standardized field sobriety tests was not satisfactory. The officer arrested Berezin for driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (b).

Officer Estrada took Berezin to a facility in San Carlos, where she submitted to a chemical blood test at 12:24 a.m. on February 3. Two blood samples were placed into the chemical evidence container. The San Mateo County Sheriffs Office forensic laboratory analyst determined that Berezins blood-alcohol concentration (BAC) was .12 percent.

Berezin contested the suspension of her drivers license at an administrative hearing. The DMV did not call any witness but relied on several exhibits, including Officer Estradas sworn DS-367 statement, the certified forensic laboratory report, and Officer Estradas arrest report. The hearing officer admitted into evidence the certified forensic laboratory report, over Berezins objections of hearsay, failure to meet the presumption of reliability, and lack of compliance with the requirements of Title 17 of the California Code of Regulations (hereinafter Title 17).

Berezin did not testify. She called as a witness forensic toxicologist Ken Mark, who opined that it could not be determined whether Berezins blood was collected in compliance with Title 17. The hearing officer sustained the suspension after concluding that Marks testimony was not supported by any evidence.

Berezin filed a petition for a writ of mandate in the trial court, which was opposed by the DMV. After considering the administrative record and the parties oral arguments, the trial court found that the DMV had failed to meet its burden of proving that the BAC analysis was reliable. The court granted the petition for a writ of mandate and directed the DMV to set aside its suspension order. The DMV timely appeals.

DISCUSSION

At a DMV administrative hearing involving a charge of driving under the influence of alcohol, the DMV bears the burden of proving that a driver was operating a vehicle with a BAC of .08 percent or more. (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348 (Petricka).) [W]here, as here, the driver submits to a blood test, that burden is typically satisfied by two documents: the sworn statement of the arresting officer and a forensic lab report documenting the results of a chemical test of the drivers blood. (Ibid., citing Lake v. Reed (1997) 16 Cal.4th 448, 451.) At issue here is the forensic laboratory report documenting Berezins BAC.

Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. [Citations.] Test results from authorized laboratories, performed by public employees within the scope of their duties, are admissible under the public employee records exception to the hearsay rule. [Citations.] The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence. [Citation.] (Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64-65.)

Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233; Baker v. Gourley (2000) 81 Cal.App.4th 1167, 1172.) The burden imposed upon the licensee of rebutting the presumption favoring the reliability of blood-alcohol tests does not entail the marshalling of complex scientific evidence. . . . [W]hat is directly presumed is not the actual reliability of the test. Although we have referred, as a convenient shorthand, to the presumed reliability of the test, what is actually presumed under Evidence Code 664 is compliance with statutory and regulatory standards, which in turn gives rise to an inference of reliability. If the licensee shows, through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed, the burden shifts to the [DMV] to prove that the test was reliable despite the violation. [Citations.] (Davenport v. Department of MotorVehicles (1992) 6 Cal.App.4th 133, 144.)

A driver whose license is suspended following a DMV administrative hearing may petition for writ of mandate. (Veh. Code,  13559, subd. (a); see Civ. Code Proc.,  1094.5, subd. (c).) In ruling on such petition, the trial court must exercise its independent judgment to determine whether the weight of the evidence supports the administrative officers decision. (Lake v. Reed, supra, 16 Cal.4th at p. 456.) However, [e]ven exercising its 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. [Citation.] (Manriquez v. Gourley, supra, 105 Cal.App.4th at p. 1233.)

On appeal, we review the record to determine whether the trial courts factual findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the trial courts decision. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) We exercise our independent judgment as to issues of law. (Manriquez v. Gourley, supra, 105 Cal.App.4th at p. 1233.)

The DMV met its burden of establishing Berezins BAC was .08 percent or more by submitting the certified forensic laboratory report showing a BAC of .12 percent. The foundational evidentiary fact that the blood was properly collected in accordance with Title 17 and Vehicle Code section 23158 is not a substantive component of the DMVs prima facie case. As such, that fact can be established by the Evidence Code presumption and is subject to rebuttal. (Petricka, supra, 89 Cal.App.4th at p. 1350.) In this case the DMV relied on the Evidence Code section 664 presumption to satisfy its burden that the blood was properly collected in accordance with Title 17 regulations and Vehicle Code section 23158.

Berezin sought to rebut the presumption of reliability by showing that her blood samples were not collected in compliance with Title 17. Title 17 establishes the procedures for determining the concentration of ethyl alcohol in samples of blood, breath, urine, or tissue of persons involved in traffic accidents or traffic violations. ([Cal. Code Regs., tit. 17,]  1215.1 [,subd.] (b).) (Hernandez v. Gutierrez (2003) 114 Cal.App.4th 168, 172.) The Title 17 standards for collecting blood require that the blood is to be collected by venipuncture . . . and only by persons authorized by section [23158] of the Vehicle Code (formerly section 13354); and the phlebotomist shall use a suitable aqueous disinfectant and not an alcohol or other volatile organic disinfectant to clean the drivers skin. (Cal. Code of Regs., tit. 17,  1219.1, subds. (a), (c).)

Marks testimony was based on his review of a discovery packet from the [DMV], which included the arresting officers report and the forensic laboratory analysis report. He noted that (a) the arresting officers report did not indicate the phlebotomists name or qualifications; (b) the laboratory report noted that the phlebotomist had not marked the disinfectant check box on the evidence envelope; and (c) there was no phlebotomist check list. According to Mark, in the absence of the missing information, we have possibly an unqualified person drawing a blood sample, not following proper technique because proper technique includes checking off the proper disinfectant, and therefore, it was not proper to conclude that the sample was properly collected. Mark conceded normally there was a presumption that the blood was properly collected in compliance with Title 17. But, according to Mark, in this case the entire procedure was not followed because part of that procedure includes checking off on the envelope the type of disinfectant, so that would shift the burden to [the DMV to] show that [the sample] was otherwise properly collected.

The trial court concluded that Marks expert testimony was sufficient affirmative evidence to rebut the Evidence Code section 664 presumption of reliability, shifted the burden to the DMV to submit additional evidence pertaining to the blood collection, and in the absence of such testimony, the test results could not be relied on to prove Berezins BAC was .08 percent or more. We disagree with the trial courts conclusions.

The trial courts reliance on Marks testimony as a expert witness was incorrect. Expert evidence is really an argument of an expert to the court, and is valuable only in regard to the proof of the facts and the validity of the reasons advanced for the conclusions. [Citation.] The weight to be given to the opinion of an expert depends on the reasons he assigns to support that opinion. [Citations.] (People v. Martin (1948) 87 Cal.App.2d 581, 584.)

Officer Estrada is presumed to have performed his duty correctly by having Berezins blood samples drawn by a qualified phlebotomist, and the phlebotomist is presumed to have drawn the blood sample in compliance with Title 17. Mark identified no regulation, or any other authority, that required the phlebotomists name and qualifications to be listed in the arresting officers report. If Berezin wanted to challenge the phlebotomists qualifications and whether proper procedures had been followed to collect her blood, she could have availed herself of statutory discovery procedures that would have obligated the DMV to identify the phlebotomist, and required the phlebotomist to testify at the administrative hearing. (Petricka, supra, 89 Cal.App.4th at p. 1351.)

Similarly, Marks assertions concerning the phlebotomists responsibilities have no basis in the applicable regulations. (See Cal. Code of Regs., tit. 17,  1219.1.) Title 17 does not require the phlebotomist to mark a disinfectant check box on the evidence envelope containing the blood samples or to maintain a check list. (Cf. Baker v. Gourley, supra, 81 Cal.App.4th at p. 1174 [Title 17 does not require chain of custody document].) Nor does Title 17 require the forensic laboratory analyst to certify as part of the analysis report that the phlebotomist has complied with Title 17, as Berezin contends.[2]

Coombs v. Pierce (1991) 1 Cal.App.4th 568 (Coombs), Baker v. Gourley (2002) 98 Cal.App.4th 1263 (Baker), and Shea v. Department of Motor Vehicles (1998) 62 Cal.App.4th 1057 (Shea), do not support the courts decision that Marks testimony was sufficient. In those cases, the drivers presented evidence that the forensic laboratories had not complied with statewide regulations that might have impacted the test results. (See Coombs, supra, 1 Cal.App.4th at p. 581 [laboratory was not licensed or authorized to use machine that produced test results]; Baker, supra, 98 Cal.App.4th at p. 1265 [uncontroverted expert testimony that laboratory used new procedures to analyze blood that could result in a false high result]; Shea, supra, 62 Cal.App.4th at p. 1059 [laboratory tests were performed by unsupervised, and thus unqualified, forensic analyst trainees].)

At best, Marks testimony regarding the information not revealed in the DMV documents raises no more than a mere possibility that the blood sample may not have been properly collected by a qualified phlebotomist in compliance with Title 17. (Baker v. Gourley, supra, 81 Cal.App.4th at p. 1174.) Such speculation is insufficient to support a reasonable inference that the results obtained were unreliable. (Ibid.) Because the burden did not shift to the DMV to produce independent evidence regarding the blood collection, its reliance on the Evidence Code section 664 presumption that the blood had been properly collected by a qualified person in compliance with Title 17 was sufficient to prove that Berezins BAC was .12 percent. The trial courts contrary determination is not supported by substantial evidence, and accordingly, the judgment must be reversed.

The parties also present arguments pertaining to Berezins other challenges raised in her petition, which were not addressed by the trial court. Because the trial court has not yet exercised its independent judgment pertaining to those contentions, we do not consider them at this time. On remand, the trial court shall consider the parties remaining arguments. We express no opinion on the merits of those contentions.

DISPOSITION

The judgment is reversed and the case is remanded to the trial court for further proceedings. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.276(a)(4).)

_________________________

McGuiness, P.J.

We concur:

_________________________

Siggins, J.

_________________________

Horner, J.*

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[1] The facts are taken from the record of the administrative hearing.

[2] Berezin also argues that the purported failures of the forensic analyst and phlebotomist violated the forensic laboratorys internal procedures. At oral argument, Berezin noted Title 17 required the forensic laboratory to file its internal procedures with the State Department of Health Services. (See Cal. Code of Regs., tit. 17,  1220.) However, our review is limited to the administrative record that was before the trial court for its independent review. The forensic laboratorys filed internal procedures are not part of that record. Therefore, we do not consider Berezins argument.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.