Willis v. Borucki

Filed 7/27/06 Willis v. Borucki CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Michael Paul Willis appeals a judgment which denied his petition for writ of mandate to review a decision of the Department of Motor Vehicles (DMV) which suspended his driver's license. We conclude, among other things, that substantial evidence support's the trial court's finding that Willis, who was under 21, was unlawfully driving a vehicle with a blood-alcohol concentration (BAC) greater than 0.01 percent. (Veh. Code, § 23136, subd. (a)) We affirm.

FACTS

California Highway Patrol (CHP) Officers Miller and Medina stopped Willis' vehicle because he was speeding. Medina "could smell the odor associated with an alcoholic beverage . . . from the inside of the vehicle . . . ." Willis, who was 18 years of age, told Miller that he "had a couple of beers at a friend's house." Miller smelled alcohol on Willis' breath and noticed "that his eyes were watery" and his pupils were "dilated."

Miller administered a Preliminary Alcohol Screening (PAS) test. The test result showed Willis had a ".039 % BAC." Miller advised Willis of his rights under the implied consent law and Willis selected a breath test. A half an hour later at the CHP station Miller administered two "Chemical breath" tests. Both showed readings of .03 percent BAC.

After Willis' arrest, the DMV notified him that his "privilege to operate a motor vehicle will be suspended" because he was "under 21 years of age when detained or arrested for driving with a blood alcohol concentration of 0.01 % or more . . . ."

Willis requested an administrative hearing before the DMV to challenge that action. The hearing officer admitted into evidence officer Miller's declaration, arrest reports and the breath test results.

Willis did not attend the hearing, but his counsel called Dewayne Beckner, an expert on blood alcohol testing. Beckner testified that breath tests by themselves are not reliable enough to determine whether a person has a BAC of 0.01 or more. He claimed a blood test must be performed before that determination may be made. The Hearing officer asked Beckner whether he had any evidence to show that the testing devices were not performing properly or that the results for Willis were unreliable. Beckner said he had "no such information."

The hearing officer ruled that the evidence supported the DMV's action and that Beckner's testimony would be given "little weight."

Willis filed a petition for writ of mandate. The trial court denied the petition. It said that based on its "independent judgment of the evidence" Willis' "BAC was .01 or greater as measure[d] by the PAS." It found that Beckner's testimony "was speculative and did not rebut" the DMV's evidence.

DISCUSSION

I. Substantial Evidence

Willis contends there is no substantial evidence to support the trial court's finding that he was unlawfully driving with a BAC of at least 0.01 percent. We disagree.

"In ruling on an application for a writ of mandate following an order of suspension . . . a trial court is required to determine . . . '"whether the weight of the evidence supported the administrative decision."'" (Lake v. Reed (1997) 16 Cal.4th 448, 456.) "On appeal, we 'need only review the record to determine whether the trial court's findings are supported by substantial evidence.'" (Id., at p. 457.) We view the evidence in the light most favorable to the judgment and draw all reasonable inferences to support it. (Ibid.)

Here the trial court found that the DMV properly suspended Willis' license because he "was under 21 years of age and his BAC was .01 or greater as measure[d] by the PAS [test]." "[I]t is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening [PAS] test or other chemical test, to drive a vehicle. [Italics Added.]" (Veh. Code, § 23136, subd. (a).) The DMV must suspend the driving privileges for those who violate this statute. (Foster v. Snyder (1999) 76 Cal.App.4th 264, 269.)

Willis contends there was insufficient evidence to admit the breath tests the DMV relied on. We disagree. The CHP had sufficient grounds to test Willis' breath as he admitted he had been drinking and showed signs of intoxication. Willis selected a breath test. "[B]reath test results are admissible upon a showing of either compliance with title 17 [of the California Code of Regulations] or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator . . . ." (People v. Williams (2002) 28 Cal.4th 408, 417.)

In his declaration officer Miller said he administered the PAS test "in accordance with the manufacturer's guidelines," he was trained on that device, qualified to operate it, the device was "functioning properly at the time of the test" and the result was ".039 % BAC." He said: 1) he was qualified to operate the breath testing device for the subsequent two tests which showed identical readings of .03 and 2) those tests were administered "pursuant to the requirements of Title 17 . . . ." His reports regarding these tests were made near the time of these events and "in the regular course of [his] duties." The test results were properly admitted. (People v. Williams, supra, 28 Cal.4th at p. 417; Lake v. Reed, supra, 16 Cal.4th at p. 467.)

Willis contends the judgment should be reversed because the trial court improperly rejected the testimony of his expert. We disagree. Here the administrative hearing officer and the trial court did not find Beckner to be credible. The credibility of expert witnesses is a matter for the trier of fact. (Biren v. Equality Emergency Medical Group, Inc. (2002) 102 Cal.App.4th 125, 139.) Beckner claimed the DMV should have relied on blood tests because, in his view, PAS tests and breath tests alone are unreliable. But "the PAS test has been approved as a reliable method of measuring the presence of alcohol in a minor's blood . . . ." (People v. Bury (1996) 41 Cal.App.4th 1194, 1201.) Its use is authorized by statute. (Veh. Code, § 23136, subd. (a).) Using breath testing to determine alcohol content is a well established scientifically reliable and accurate procedure. (Bury, at p, 1201.)

Moreover, Beckner admitted that he could not say that the test results in this case were unreliable or that the devices were not functioning properly. All three tests showed results well above the 0.01 limit and Willis admitted he had been drinking. There was no abuse of discretion.

The judgment is affirmed. Costs awarded to respondents.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

James W. Brown, Judge

Superior Court County of Santa Barbara

______________________________

Ronald A. Jackson for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Silvia M. Diaz, Lead Supervising Deputy Attorney General, Elizabeth Hong, Supervising Deputy Attorney General, for Defendant and Respondent.

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