Howe v. DMV

Filed 7/23/07 Howe v. DMV CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Dzintra I. Janavs, Judge. Affirmed.

Law Offices of Ronald A. Jackson and Ronald A. Jackson for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Michael E. Whitaker and Patricia A. Nevonen, Deputy Attorneys General for Defendant and Respondent.

INTRODUCTION

James Robert Howe appeals from the judgment of the trial court denying his petition for writ of administrative mandate that challenged the one-year suspension of his driving privilege imposed by the California Department of Motor Vehicles (the Department). The suspension was occasioned by a determination that on August 21, 2005, Howe had a blood alcohol content (BAC) exceeding the legal limit of .08 percent while driving a motor vehicle. (Veh. Code,  13559.) Howe contends that he carried his burden at the administrative hearing to rebut the presumption that his BAC was over the legal limit. (Veh. Code,  23521, subd. (b).) We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The fatal accident

On a clear, dry August day around 4:40 in the afternoon, Howe lost control of his motorcycle on Vasquez Canyon Road and hit a utility pole. His wife was ejected from the back of the motorcycle and died at the scene. Howe sustained nonfatal injuries.

Officer Patrick of the California Highway Patrol interviewed Howe at the hospital. Howe admitted he was the driver. Officer Patrick noted that Howes breath smelled of alcohol, his speech was slurred, and his eyes were watery. Howe stated he had consumed a 16-ounce bottle of Bud Light beer at 9:30 that morning while at a swap meet, and that was the only alcohol he had had that day. Because of Howes injuries, the only field sobriety test that he could perform was the Preliminary Alcohol Screening (PAS) device. This test resulted in two, weak manually-trapped samples measuring .068 percent and .070 percent at 6:57 p.m. and 6:59 p.m., respectively. Based on these results, Officer Patrick determined that he had probable cause to believe Howe had been driving a motor vehicle while under the influence of alcohol. Officer Patrick arrested Howe at 7:00 p.m.

At 7:05 p.m. that same night, the Highway Patrol drew Howes blood for a chemical BAC test. That test showed that Howe had a BAC of .08 percent. The Department suspended his license pursuant to Vehicle Code section 13353.2.

Officer Patrick found a receipt in Howes wallet from Don Cuco Restaurant in Canyon Country dated August 21, 2005, at 12:49 p.m. Independent witnesses told Officer Patrick that Howe had consumed three 20‑ounce schooners of beer with his lunch, approximately three hours before the accident.

2. The administrative hearing

The Department held an administrative hearing into the suspension of Howes license on December 8, 2005. The hearing officer admitted into evidence the following exhibits introduced by the Department:  Officer Patricks sworn statement, including the probable cause section, dated August 21, 2005, the Driving Under the Influence Arrest Investigation Report, the Traffic Collision Report, including the Narrative Supplement, and blood alcohol test results.

Howe presented evidence of the Calibration Log for the PAS device and the testimony of two witnesses. Howes forensic toxicologist Jay Williams opined about the PAS results. Although it is a field sobriety test, Williams called the PAS a chemical test. Williams testified that the PAS samples taken from Howe were valid. He testified that the PAS device used in this case was an AlcoSensor IV black dot, which was approved to be used for post-arrest chemical tests in counties outside of Los Angeles County. Because of a lack of foundation concerning the calibration of the PAS device used on Howe, the hearing officer did not move its logs into evidence; but he stated the logs would be considered. After reviewing the PAS documents, Williams opined that at the time of the accident, Howes BAC was not yet 0.68 percent and was rising. Williams stated, the results tell you that they [Howes blood alcohol levels] werent [0.8 percent or higher] at the time of the accident. Williams opinion was based on the fact that we have two tests that were done and verified by calibration and maintenance records that show two values and scientifically when you look back and you calculate what it was at a previous time its got to be less than .068. Williams did not consider Howes drinking pattern that day.

California Highway Patrol Officer Getzelman also testified on Howes behalf. He testified that the PAS device was accurate. He explained that the PAS is a field sobriety test as opposed to a chemical test. The PAS checks whether there is alcohol in the blood system. In the absence of a chemical test, the PAS is used to substantiate a specific level of alcohol in the blood. However, the PAS is not designated as a chemical test; it is only a field sobriety test.[1]

Thereafter, the Department notified Howe that his privilege to operate a motor vehicle was suspended effective December 22, 2005, for one year based on the finding that the Department had demonstrated that Howe had been driving with a BAC of .08 percent. Of relevance, the hearing officer found that Williams testimony was too speculative to support Howes contention that the PAS test results were more valid than the 7:05 p.m. chemical test. Los Angeles County does not rely on the PAS as a chemical test. Also, the hearing officer observed, Williams did not consider Howes drinking pattern. The hearing officer found Officer Getzelmans testimony to be creditable that the PAS was in working order when used to detect the presence of alcohol and the PAS is a field sobriety test. The hearing officer rejected Howes contention that his BAC was not as high as .08 percent while he was driving but was rising because no foundation was laid concerning the calibration of the PAS device used on Howe.

3. Howes petition for writ of administrative mandate

Howe filed his petition for writ of mandate on February 9, 2006. The court denied Howes petition, ruling that the Vehicle Code section 23152, subdivision (b) presumption that a driver who tests at .08 percent or above BAC within three hours after driving is deemed to have been under the influence of alcohol at the time of driving was not successfully rebutted. Mr. Williams opinion on BAC ignored Petitioners drinking pattern and relied upon PAS scores not used as a chemical test in Los Angeles County and a chemical test done less than 10 minutes after the last PAS was tested [sic], and it was properly discounted. Howe filed his timely appeal.

CONTENTIONS

Howe contends that Williams testimony at the hearing based on the PAS results showing Howes BAC was below .08 percent at the time of driving shifted the burden to the Department to prove an illegal BAC level, and that the Department did not thereafter carry its burden.

DISCUSSION

1. Standard of review

 The Departments determination is . . . subject to judicial review. [Citation.] The trial court must conduct its review on the record of the hearing and may not consider other evidence. [Citation.]  (Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 672.) The trial courts task in this case was to determine, using its independent judgment, whether the weight of the evidence supported the administrative decision. [Citation.] (Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 309, italics added.) On appeal, we must determine whether the evidence reveals substantial support -- contradicted or not ‑‑ for the trial courts conclusion that the weight of the evidence supported the Departments suspension order. (Ibid.) In making this determination, we must draw all legitimate and reasonable inferences in favor of the trial courts decision. [Citations.] (Ibid.)

2. The evidence supports the trial courts ruling

Under the administrative per se law, the hearing officer is bound to uphold a suspension if he or she finds by a preponderance of the evidence that (1) the arresting officer had reasonable cause to believe Howe was driving under the influence of alcohol; (2) Howe was placed under arrest; and (3) his BAC was at least .08 percent when he was driving. (McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 526.)

Here, the first two elements were indisputably satisfied by the Departments showing. As for the third element, Vehicle Code section 23152, subdivision (b) reads in relevant part, In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.[2] (Italics added.)

The Department submitted evidence that Howes blood was drawn within three hours after he was driving. Howe did not dispute that his blood was drawn within three hours after driving and was tested in compliance with the requirements of Title 17 of the California Code of Regulations, and that the blood chemical test was reliable. Thus, the Department was entitled to the presumption of Vehicle Code section 23152, subdivision (b).

The burden shifted to Howe to rebut the presumption. Toward that end, Howe argued that his BAC level was below .08 percent when he was driving his vehicle, as evidenced by the PAS results, and it later rose to the legal threshold by the time of the blood alcohol test. Howe bases this contention on Williams expert testimony. Williams noted that the PAS results, obtained at 6:57 and 6:59 p.m., eight, and six minutes, respectively, before Howes blood was drawn for the chemical test, showed Howes BAC to be .068 percent and .070 percent, respectively. Williams opined that Howes blood alcohol level was rising and so it was not possible for Howes BAC to be .068 percent or higher at the time he was actually driving.

Based on the finding that Williams testimony was speculative and hence to be disregarded, both the Departments hearing officer and the trial court found that Howe had not presented evidence sufficient to rebut the Vehicle Code section 23152, subdivision (b) presumption. The hearing officer and the trial court were entitled to give Williams opinion the weight to which they felt it to be entitled. (Winn v. Board of Pension Commissioners (1983) 149 Cal.App.3d 532, 543.)

The trial court explained its reasons for disregarding Williams opinion. It explained that Williams based his opinions on the PAS results only, which tests are not used as chemical tests in Los Angeles County. The Departments witness, Officer Getzelman testified that the PAS device was designated as a Field Sobriety Test to evaluate the presence of alcohol, not as a chemical test to determine BAC. Officer Getzelmans testimony is confirmed by Vehicle Code section 23612, which states that a PAS test is a field sobriety test and may be used as an investigatory tool, but is not a substitute for a chemical test.[3] We also note, no foundation was laid about the calibration of the PAS device used on Howe, and so its logs were never moved into evidence.

Also, Williams did not consider the evidence that Howe had consumed the 16‑ounce beer in the morning, plus at least 60 ounces of beer about three hours and 40 minutes before the accident. Most important, Williams ignored the chemical test done six to eight minutes after the PAS which showed a BAC of .08 percent. Substantial evidence supports the trial courts and the hearing officers conclusion that Williams testimony should be disregarded. Consequently, the record supports the finding that Howe did not present substantial, credible evidence to rebut the Vehicle Code section 23152, subdivision (b) presumption and so the weight of the evidence supports the Departments suspension order.

Even without the benefit of the presumption, the weight of the evidence favors the Departments ruling.[4] Although chemical tests are relied on by hearing officers as decisive, they are not the only means of establishing that the licensee was driving with a BAC of .08 percent or more. (McKinney v. Department of Motor Vehicles, supra, 5 Cal.App.4th at p. 527, fn. 6.) In addition to the chemical test,  [e]vidence regarding the manner in which a defendant drove, performed field sobriety tests, and behaved is admissible and relevant as tending to establish that he did or did not have a 0.10 [now 0.08] BAL while driving. [Citation.] (Id. at p. 526, fn. 6.)

Here, in addition to the chemical BAC result of .08 percent, the hearing officer had the evidence showing that when Officer Patrick responded to the call of an accident on August 21, 2005, he smelled alcohol on Howes breath, Howes eyes were blurry and his speech slurred. Howe admitted to Officer Patrick that he had consumed alcohol, but lied about the amount. The weight of the evidence supports the hearing officers findings and the trial courts ruling.

DISPOSITION

The judgment is affirmed. Each party to bear its own costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] According to People v. Bury, A PAS test is simply another form of field sobriety testing . . . .  (41 Cal.App.4th 1194, 1204.) Here, the jury was properly instructed according to CALJIC No. 12.61 that it could infer appellant was intoxicated if a chemical analysis of his blood, breath or urine showed a [blood-alcohol level] BAL of at least .08 percent. (Id. at p. 1206, fn. omitted.) People v. Bury held that former Vehicle Code section 23612 concerning chemical, blood, urine, and breath tests was enacted to aid the prosecution of driving under the influence cases and not to exclude the admissibility of PAS evidence. PAS evidence may be relevant, not only to establish cause to arrest, but as tending to prove the essential element of the offense of drunk driving -- the accuseds intoxication. [Citations.] (People v. Bury, supra, at pp. 1205-1206.)

[2] Vehicle Code section 23152 reads more fully:  (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. [] (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. [] For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a persons blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. [] In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

[3] Vehicle Code section 23612, subdivisions (h) and (i) read in relevant part:  (h) A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool.

(i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The persons obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that persons blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the persons right to refuse to take the preliminary alcohol screening test. (Veh. Code,  23612, subds. (h) & (i), italics added; accord People v. Bury, supra, 41 Cal.App.4th at p. 1203.)

[4] Howe contends that the hearing officer incorrectly concluded that the presumption under Vehicle Code section 23152, subdivision (b) was one affecting the burden of proof where it should have been one affecting the burden of producing evidence. However, we need not reach this question because, as explained, Howes expert witness failed to present evidence that rebuts either kind of presumption and even absent the presumption, the weight of the evidence supports the Departments finding.