Gibb v. DMV
Filed 8/14/13 Gibb v. DMV CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
SEAN ERIK GIBB,
Plaintiff and Respondent,
v.
DEPARTMENT
OF MOTOR VEHICLES,
Defendant and Appellant.
A137117
(Contra
Costa County
Super. Ct.
No. N12-0525)
Vehicle
Code section 23136,
name="_ftnref1" title="">[1]
the “zero tolerance law,†makes it unlawful for a person under the age of 21 to
drive a vehicle with any measurable blood alcohol concentration (BAC).
was stopped by police while driving. An
officer administered preliminary alcohol screening (PAS) breath tests, which
showed that Gibb’s blood alcohol level was well in excess of the measurable
threshold of .01 percent. The
officer temporarily suspended Gibb’s driver’s license and reported the matter
to the Department of Motor Vehicles (Department or DMV). (§§ 13380, subd. (a); 13388,
subd. (b).) Gibb requested a DMV
administrative hearing on the license suspension, and the hearing officer
reimposed the suspension.
Gibb
petitioned for a writ of mandate to
overturn the license suspension, arguing that no admissible evidence was
presented on the reliability of the blood alcohol test results and the
officer’s sworn statement certifying the results was insufficient to establish
reliability. The trial court granted the
petition, and the Department appeals. We
reverse.
I. Background
On September 5, 2011, Gibb was arrested
by Danville police for driving
under the influence of alcohol while under the age of 21. His driver’s license was immediately
suspended, and he was given a temporary driver’s license pending the outcome of
an administrative hearing to
determine whether he was driving in violation of section 23136.
The
arresting officer, Danville Police Officer Michael Jimenez, prepared a sworn
statement on the suspension on DMV form DS 367M (“Under Age 21 Officer’s
Statementâ€; hereafter Sworn Statement), as required under section 13380.
pulled the vehicle over for an extinguished tail light shortly after midnight.
He observed that the driver, Gibb, had bloodshot or watery eyes and
slurred speech and smelled of alcohol.
Gibb submitted to PAS breath tests,
which detected a BAC of .088 percent at 12:22 a.m.
and of .074 percent at 12:37 a.m.
On the
Sworn Statement, Jimenez certified under penalty of perjury that all
information in the statement was true and correct. He further certified with respect to the test
results “that (1) I obtained the above PAS test results in the regular
course of my duties, (2) I used PAS Model . . . 968/AlcoSensor
PST, Serial # 29968, Manufactured by Intoximeters, Inc., (3) I
administered this PAS test properly in accordance with the manufacturer’s
guidelines and instructions, (4) I have received training on the proper
operation of this device and administration of the PAS test and am competent
and qualified to operate the device, and (5) the device was functioning
properly at the time of the test.â€
Gibb
obtained counsel and requested a DMV administrative hearing to contest the
license suspension.
The Administrative Hearing
At the February 15, 2012 administrative
hearing, the Department introduced the Sworn Statement and calibration records
regarding the PAS device that was used to test Gibb, which were subpoenaed from
the Danville Police Department. Gibb’s
hearsay and lack of foundation objections to these exhibits were overruled.
Gibb
specifically asked that any officers testifying against him be physically
present at the hearing and expressly withheld his consent to testimony by
telephone. Nevertheless, the DMV hearing
officer allowed the Danville Police Department’s PAS calibration officer, Seth
Culver, to appear by telephone “due to the officer only giving testimony to the
calibration of the AlcoSensor test and the serial number listed,
. . . as to whether or not the machine was in proper working order
. . . at the time the machine was used with Mr. Gibb.†Culver testified that he had received training
in calibration and maintenance of PAS devices in March 2011, and was
specifically trained in the AlcoSensor IV Intoximeter model that was used to
test Gibb. Referring to information in
the PAS log that had been admitted in evidence and that he had prepared, Culver
testified that the PAS device used to test Gibb was in proper working order at
the time that test was administered.
The hearing
officer reimposed the license suspension based on the following relevant
findings: “As based on the lack of
sufficient evidence to rebut the chemical test results, it is hereby determined
that [Gibb] submitted to and completed a [PAS] test of his breath, with results
of .088% B.A.C. at 12:22 AM on 9/05/11 and .074% B.A.C. at 12:37 AM on
9/05/11. [¶] . . . [¶] Officer Culver testified based upon the
calibration log, his training and experience the device used on 9/5/11 (#29968)
was in proper working order. [¶] The [D]epartment concludes substantial
evidence and reasonable inferences support the finding while driving [Gibb] had
a blood-alcohol level of at least .01%.
Absent evidence to the contrary, [r]e-imposing the suspension is
warranted.â€
The Writ Proceeding
Gibb filed
a petition for writ of mandate in the superior court, seeking judicial review
of the administrative decision. He
argued that Culver’s testimony should be stricken because he had never
consented to Culver’s testifying by telephone and that without Culver’s
testimony there was insufficient evidence to support the suspension, as there
was no foundation for admission of the breath test evidence. The Department agreed it was improper to
allow Culver to testify by telephone without Gibb’s consent, but argued the
test results were admissible even without Culver’s testimony.
The court
granted the writ petition. Citing
(1995) 39 Cal.App.4th 666 (Coniglio),
the court ruled that Culver’s testimony had to be stricken and “there was no
other evidence establishing the reliability of the particular PAS device used
in this case. [¶] An officer’s sworn statement that, when tested, a licensee’s
PAS test showed the presence of alcohol in the licensee’s blood is legally
sufficient evidence if and only there is a basis for believing that the test
which detected blood alcohol was reliable.
(Davenport v. Department of Motor
Vehicles (1992) 6 Cal.App.4th 133, 140 [(Davenport)].)â€
II. Discussion
A. Timeliness
of Appeal
As a
preliminary matter, we reject Gibb’s argument that the Department’s appeal
should be dismissed as untimely.
The court
filed its written, signed order granting the petition for writ of mandate on
July 16, 2012. The order is
entitled “Notice of Decision,†it bears a file stamp, and it includes a
“Certificate of Service by Mail†indicating it was served on the parties by the
deputy clerk of the court on July 16.
On August 3, the court filed an “Order and Judgment,†which
reiterated that the petition was granted and also set forth the court’s award
of attorney fees and costs. The August 3
order bears a file stamp, but does not show that it was served on any
party. (The record includes a proof of
service of the proposed order, which
was served on the Attorney General’s office by Gibb on July 20.) The Department filed a notice of appeal on
November 16.
California
Rules of Court, rule 8.104
name="_ftnref5" title="">[5]
provides, as relevant here, that “a notice of appeal must be filed on or before
the earliest of:
“(A) 60
days after the superior court clerk serves on the party filing the notice of
appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy
of the judgment, showing the date either was served;
“(B) 60
days after the party filing the notice of
appeal serves or is served by a party with a document entitled ‘Notice of
Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof
of service; or
“(C) 180
days after entry of judgment.â€
(Rule 8.104(a)(1).) As used
in subdivision (a), “ ‘judgment’ includes an appealable order if the
appeal is from an appealable order.â€
(Rule 8.104(e).)
Gibb argues
the appeal is untimely because the Department “did not file a Notice of Appeal
within 60 days from the date [it] was served with either the Order of Notice of
Decision or the Order and Judgment.†He
does not specify which provisions of rule 8.104(a)(1) allegedly apply here
and thus fails to account for the requirements of the rule. Under rule 8.104(a)(1)(A) and (B), a
60-day appeal period is triggered only if the clerk or another party serves “a
document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the
judgment.†The July 16, 2012
“Notice of Decision†does not qualify as a judgment within the meaning of rule
8.104(a) because, as an order granting a petition for a writ of mandate, it was
not an immediately appealable order.
(See Code Civ. Proc., § 904.1; rule 8.104(e).) The August 3 order was a judgment within
the meaning of the rule, but nothing in the record indicates that either the
clerk or a party served a file-stamped copy of this judgment or a notice of
entry of the judgment on or after August 3. All the record discloses is that Gibb had
served the Department with the proposed order
on July 20. To the extent Gibb
intends to argue that some combination of these documents collectively
satisfied the requirements of rule 8.104(a)(1)(A) or (B), we reject the
argument as unsupported by legal authority.
(See Alan v. American Honda Motor
Co., Inc. (2007) 40 Cal.4th 894, 905 [rule 8.104(a)(1) requires a
single document that is sufficient in itself to satisfy all of the rule’s
conditions].)
Because the
record does not show that either subdivision (A) or (B) of
rule 8.104(a)(1) applies, the 180-day time period of subdivision (C)
governs and the appeal is timely.
B. The
Petition for Writ of Mandate
The
Department argues that the trial court erred in issuing a writ requiring the
Department to restore Gibb’s license. We
agree.
1.
The driver’s license suspension scheme, often
referred to as the administrative per se law, requires a person who is
determined to have been driving with a prohibited amount of alcohol in his or
her blood to have driving privileges suspended without the need for an actual
conviction for a criminal offense. (Lake
v. Reed (1997) 16 Cal.4th 448, 454 (Lake).) “ ‘[T]he express legislative purposes of
the administrative suspension procedure are:
(1) to provide safety to persons using the highways by quickly
suspending the driving privilege of persons who drive with excessive
blood-alcohol levels; (2) to guard against erroneous deprivation by
providing a prompt administrative review of the suspension; and (3) to
place no restriction on the ability of a prosecutor to pursue related
[Citation.]†(Id. at
p. 454.)
The zero
tolerance law is designed to penalize the presence of alcohol in the blood of
anyone under the age of 21 who operates a motor vehicle. (Coniglio, supra, 39 Cal.App.4th
at p. 673; see also In re Jennifer
S. (2009) 179 Cal.App.4th 64, 72 [by setting prohibited blood alcohol level
at “the lowest detectable amount, [section 23136] penalizes the consumption of
alcohol, contemporaneous with the driving of an automobileâ€].) “[T]he goal of section 23136 is to
enhance public safety, and indirectly, to discourage young people from
consuming any alcohol before
driving.†(Bobus v. Department of
Motor Vehicles (2004) 125 Cal.App.4th 680, 685, italics added.) A zero tolerance law violation is subject
only to civil penalties, to be administered by the DMV through the administrative
per se procedures. (Coniglio, at p. 673.)
A peace
officer who has reasonable cause to believe that a person is in violation of
section 23136 must ask that person to take a PAS test to determine the
presence of alcohol in the person.
(§ 13388, subd. (a).)
If the person complies and the test reveals a BAC of 0.01 percent
or greater, the officer must serve the person with a notice of order of
suspension of the person’s driving privilege, confiscate the person’s driving
license, issue a temporary license, and send the DMV a “sworn report of all
information relevant to the enforcement action, including information that
adequately identifies the person, a statement of the officer’s grounds for
belief that the person violated Section 23136, . . . [and] a
report of the results of any chemical tests that were conducted on the person
. . . .†(§§ 13380,
subd. (a); 13388, subd. (b).)
The sworn statement must be made on official DMV forms. (§ 13380, subd. (b).)
The DMV
next conducts an internal administrative review process. (§§ 13353.2, 13557.) If a license suspension is imposed following
this review, the licensee may request an administrative hearing on the matter. (§§ 13557, subd. (b)(4); 13558,
subd. (a); 14100, subd. (a).)
At the hearing, the Department bears the burden of proving by a
preponderance of the evidence the following:
“(A) The peace officer had reasonable cause to believe that the
person had been driving a motor vehicle in violation of Section 23136
. . . . [¶] (B) The
person was . . . lawfully detained. [¶] (C) The person was
driving a motor vehicle . . . [¶] (iii) [w]hen the person was
under 21 years of age and had a [BAC] of 0.01 percent or greater, as
measured by a preliminary alcohol screening test, or other chemical
test . . . .â€
(§§ 13557, subd. (b)(3), 13558, subd. (c)(2);
1001, 1005.)
Since the
process is administrative, the evidentiary standards are somewhat relaxed. An administrative hearing before the DMV
“does not require the full panoply of the Evidence Code provisions used in
criminal and civil trials.†(Petricka
v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348 (
“shall consider its official records and may receive sworn testimony.†(§ 14104.7.) In other respects, Government Code section
11513, which applies to administrative hearings generally, governs the
admission of evidence. (§ 14112,
subd. (a); Lake, supra, 16
Cal.4th at p. 458; Molenda v. Department of Motor Vehicles (2009)
172 Cal.App.4th 974, 987.) “The hearing
need not be conducted according to technical rules relating to evidence and
witnesses, except as hereinafter provided.
Any relevant evidence shall be admitted if it is the sort of evidence on
which responsible persons are accustomed to rely in the conduct of serious
affairs, regardless of the existence of any common law or statutory rule which
might make improper the admission of the evidence over objection in civil
actions. [¶] . . . Hearsay evidence may be used for the purpose of
supplementing or explaining other evidence but over timely objection shall not
be sufficient in itself to support a finding unless it would be admissible over
objection in civil actions.†(Gov. Code,
§ 11513, subds. (c), (d).)
As noted,
the Department bears the burden of proof at the hearing. (Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536; Santos
v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 549.) Since a driver’s license is a protectable
property interest, there must be a showing by “substantial competent evidence
of facts supporting the suspension.†(Davenport,
supra, 6 Cal.App.4th at p. 139.)
If a
suspension is upheld by the hearing officer, the driver may file a petition for
review of the hearing officer’s decision in the superior court. (§ 13559, subd. (a).) “If the court finds that the [D]epartment
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 [D]epartment to rescind the order of suspension or revocation and
return, or reissue a new license to, the person.†(Ibid.) Under the sufficiency of the evidence prong,
the “court is required to determine, based on its independent judgment,
‘ “whether the weight of the evidence supported the administrative
decision.†’ [Citation.]†(Lake,
supra, 16 Cal.4th at pp. 456–457.)
The court may not consider any evidence outside the record of the
hearing. (§ 13559,
subd. (a).) “The administrative
findings come before the superior court with a ‘strong presumption of
correctness,’ and the burden rests on the petitioner to establish administrative
error. [Citation.]†(Hildebrand v. Department of Motor
Vehicles (2007) 152 Cal.App.4th 1562, 1568 (Hildebrand).)
On appeal
of a trial court’s sufficiency of the evidence determination, “we ‘need only
review the record to determine whether the trial court’s findings are supported
by substantial evidence.’
[Citation.] ‘ “We must
resolve all evidentiary conflicts and draw all legitimate and reasonable
inferences in favor of the trial court’s decision. [Citations.]
Where the evidence supports more than one inference, we may not
substitute our deductions for the trial court’s. [Citation.]
We may overturn the trial court’s factual findings only if the evidence
before the trial court is insufficient as a matter of law to sustain those
findings. [Citation.]†’ [Citation.]â€
(Lake, supra, 16 Cal.4th at
p. 457.) We review the trial
court’s evidentiary rulings for abuse of discretion. (Miyamoto
v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1217.)
2.
Evidence.
The
Department does not dispute that the hearing officer erroneously admitted
Culver’s telephonic testimony and agrees that the testimony must be disregarded
in determining whether the Department met its burden of proof.
remaining evidence admitted at the hearing was competent and admissible and was
sufficient to establish the Department’s prima facie case, particularly in the
absence of any contrary evidence presented by Gibb. We agree.
Here, the
competent evidence before the administrative hearing officer, and before the
trial court, relating to Gibb’s consumption of alcohol consisted entirely of
the Sworn Statement. Gibb objected to
introduction of the Sworn Statement as hearsay.
But, “[i]n proceedings to suspend or revoke a driver’s license, the
facts necessary to justify suspension can be established by the use of the
sworn statement of the arresting officer, attesting to matters within the
officer’s personal knowledge, even though the officer does not personally
appear and the licensee offers contrary proof.
[Citations.]†(
pp. 139–140.)
a.
The Sworn
Statement falls within the official public records exception to the hearsay
rule. (Evid. Code, § 1280;
634, 639 (Gananian).) This exception makes admissible a writing
made to record an act, condition or event if the writing “was made by and
within the scope of duty of a public employee,†“at or near the time of the
act, condition, or event,†and “[t]he sources of information and method and
time of preparation were such as to indicate its trustworthiness.†(Evid.Code, § 1280.) “An officer’s Vehicle Code section 13353
statement meets these criteria because it is made by a public employee within
the scope of his or her duty and at or near the time of the event and the
source of information—[here,] the officer’s firsthand observations—indicate
trustworthiness. [Citations.]†(Imachi v. Department of Motor Vehicles
(1992) 2 Cal.App.4th 809, 815 (Imachi).)
The trustworthiness of the officer’s statements is bolstered by the
evidentiary presumption that official duties are regularly performed. (Evid. Code, § 664.) “[T]he essential ‘circumstantial probability
of trustworthiness’ justifying the common law exception to the hearsay rule for
official statements ‘is related in its thought to the presumption that public
officers do their duty. When it is a
part of the duty of a public officer to make a statement as to a fact
coming within his official cognizance, the great probability is that he does
his duty and makes a correct statement . . . . The fundamental circumstance is that an official
duty exists to make an accurate statement, and that this special and weighty
duty will usually suffice as a motive to incite the officer to its fulfillment.
. . . It is the influence of the official duty, broadly considered,
which is taken as the sufficient element of trustworthiness, justifying the
acceptance of the hearsay statement.’
[Citation.]†(
127 Cal.App.3d 72, 78–79.) Under
sections 13353 and 13380, officers have a duty to report accurately the facts
of an arrest for drunk driving and the results of an incident blood-alcohol
test. (Davenport, supra, 6
Cal.App.4th at p. 143, citing § 13353 & former
§ 23158.2.) “ ‘[T]he statutory
presumption of duty regularly performed (Evid.Code, § 664) shifts the
foundational, method-of-preparation burden in this situation,’ requiring the
licensee to show that the officer failed in his or her duty to observe and
correctly report the events described in the statement. [Citations.]â€
(Imachi, supra, 2
Cal.App.4th at p. 815, citing Snelgrove
v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1375 (
Gourley (2003) 105
Cal.App.4th 1227, 1232 (Manriquez); Baker v. Gourley (2000)
81 Cal.App.4th 1167, 1172.)
name="_ftnref7" title="">[7]
b. Foundation
The fact
that an officer’s sworn statement falls within a hearsay exception does not
mean, however, that every matter in the sworn statement is admissible and
legally sufficient to support a finding.
“Each matter sworn to must itself be supported by an adequate foundation
of personal knowledge by the officer and any other appropriate guarantee of
reliability, or that matter is not admissible and cannot be relied upon. [Citations.]â€
(Davenport, supra, 6 Cal.App.4th at p. 140.)
Gibb
challenges the sufficiency of the foundational evidence for the PAS test
results in the absence of Culver’s calibration testimony. He insists the Sworn Statement cannot
establish an adequate foundation because Jimenez “did not calibrate the machine
nor did he have any personal knowledge of whether the machine was maintained,
in good working order, accurate or reliable.â€
The trial court, in granting the writ of mandate, agreed that without
Culver’s testimony “there was no other evidence establishing the reliability of
the particular PAS device used in this case.â€
We
agree the Department must lay a proper foundation for BAC test results it
presents at an administrative hearing.
To show the test results meet minimum standards of reliability, the
Department must submit proof of “(1) properly functioning equipment, (2) a
properly administered test, and (3) a qualified operator.†(People
v. Williams (2002) 28 Cal.4th 408, 417 (Williams).)
When
the test results are offered to establish a particular BAC level, it is well
established that an officer’s section 13353 sworn statement reporting the
test results, and certifying that the results were obtained consistent with the
requirements of California Code of Regulations title 17,
such a foundation. “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, 65; see also Williams, supra, 28 Cal.4th at pp. 416–417; see Regs.,
§ 1215 et seq.; Taxara v. Gutierrez
(2003) 114 Cal.App.4th 945, 949; Manriquez, supra, 105 Cal.App.4th
at pp. 1232–1233.) The presumption
arises from the official duty of law enforcement personnel to comply with
regulations that govern the conduct of blood alcohol tests used in this context
(Title 17) and the regulations’ assurance of reliability. (See Davenport,
supra, 6 Cal.App.4th at pp. 140–142 & fn. 4; see also
pp. 1347–1348 [official duty presumption supplies foundation for test
results absent contrary evidence]; Morgenstern
v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 374
[same]; Hernandez v. Gutierrez (2003)
114 Cal.App.4th 168, 172 [same].)
However, certification of Title 17 compliance is not the only method to
establish the necessary foundation. If
reliability of the result is otherwise established (by proof of the three
foundational elements identified in Williams),
noncompliance with certain Title 17 regulations goes to the weight, rather
than the admissibility, of the evidence.
(Williams, supra, 28 Cal.4th
The
Attorney General contends, erroneously, that Jimenez’s certification and
official recordation of the PAS test results provided prima facie proof of
“both [T]itle 17 compliance and the alternative . . . criteriaâ€
and that the PAS results “enjoy[] the presumption of reliability that flows
from the application of Evidence Code sections 660, 664 and 1280.†The DS 367M form provides for
certification of PAS results and/or for “Chemical Test†results, but only the
chemical test results section includes certification of Title 17
compliance by the “Breath Test Machine Operator.†Jimenez completed only the PAS section of the
form.
In that PAS
certification, Jimenez identified the model and serial number of the machine
used, and affirmatively certified under penalty of perjury that he had
“received training on the proper operation of this [PAS] device and
administration of the PAS test and am competent and qualified to operate the
device;†and that he had “administered this PAS test properly in accordance
with the manufacturer’s guidelines and instructions.†Both statements concern matters within his
personal knowledge, and neither was contradicted or rebutted by other evidence. Since he had a duty to properly administer
the test, the Evidence Code section 664 presumption of official duty regularly
performed applied. Jimenez thus
established at least prima facie that a “qualified operator†had performed a
“properly administered test,†and Gibb failed to show otherwise.
Jimenez further
certified that the PAS device was “functioning properly at the time of the
test.†Only the foundation for this last
statement is truly subject to challenge, and only on this point is Culver’s
proffered testimony relevant. The issue
then is whether testimony as to calibration
(i.e. accuracy) of the PAS device is essential to a finding of reliability,
when the actual operator’s uncontroverted certification otherwise provides
evidence that the device was “functioning properly.†We believe not, at least in circumstances
where the quantitative content result is not the determinative issue for the
license suspension.
There
is a distinction between breath-testing devices that determine the concentration
of alcohol in the blood versus devices that simply determine the presence
of alcohol in the blood. (People v.
Bury (1996) 41 Cal.App.4th 1194, 1202.)
Title 17 regulations, which require that instruments testing for
BAC be routinely checked for accuracy and precision (Regs., § 1220.2,
subd. (a)(5)), “apply to PAS tests that determine the concentration
of alcohol in the blood but not those that determine only its presence.†(Williams, supra, 28 Cal.4th at
p. 414, fn. 2 [rejecting as dicta the statement in
applies to PAS tests].)
name="_ftnref10" title="">[10] It is the presence
of measurable alcohol in the system of a person under 21 that triggers the
license suspension penalties under section 23136.
The
Legislature has expressly designated the PAS test as a means of measuring and
proving whether a driver under age 21 has a BAC of 0.01 percent or
greater. (§§ 23136, subds. (a)
& (b), 13388, subd. (a), 13353.2, subd. (a)(2).) Section 13388 in fact requires an
officer to use a PAS test device if one is immediately available. “By designating the PAS test as the proper
testing device, and by keeping .01 as the threshold blood-alcohol level,
the Legislature made clear that the zero tolerance law meant just that—zero
tolerance. To this end, the Legislature
directed that the PAS test be used to detect the presence of alcohol, rather than a particular quantification.†(Coniglio, supra, 39 Cal.App.4th at
p. 676, italics added.) “Given the
Legislature’s repeated reference to the PAS test within the zero tolerance law,
and its repeated direction that the device be used to measure the presence of
alcohol in the blood, rather than a particular [BAC], we conclude that the
Legislature has found the PAS test to be a reliable method for enforcing the
zero tolerance law.†(
If the PAS
test itself is deemed to be a reliable method of detecting the presence of blood alcohol, what then is required to
establish that the PAS device was “functioning properly†at the time the test
was administered? Jimenez certified that
it was. Certainly he had personal
knowledge based on his own observations that the machine was operable, and when
Jimenez used it “properly in accordance with the manufacturer’s guidelines and
instructions†it generated test results well in excess of the .01 percent
measurable threshold. Jimenez also
reported that he observed that Gibb had bloodshot and watery eyes, an odor of
alcoholic beverage on his person, and slurred speech, providing circumstantial
corroboration and another “appropriate guarantee†(Davenport, supra, 6 Cal.App.4th
at p. 140) that the machine was in fact operating properly in measuring
the presence of alcohol.
Gibb
argues Coniglio, supra, 39
Cal.App.4th 666 is “controlling†and requires the Department to present
“testimony†establishing that the PAS device was in good working order. Coniglio
holds only that the Department cannot rely on the presumption of an
official duty regularly performed (Evid. Code, § 664) to establish a
foundation for PAS test results that are offered to prove a person under 21
drove while alcohol was present in his or her blood. However, nothing in Coniglio requires that live
testimony be presented to establish the necessary foundation, and as we have
discussed, the law is well settled otherwise.
Even in the absence of an evidentiary presumption as to the good working
order of the machine, we believe that Jimenez’s Sworn Statement was sufficient
under the circumstances to provide a prima facie foundation that the PAS device
reliably measured the presence of alcohol in Gibb’s system at the time of his arrest,
regardless of whether the device was shown to have accurately measured the
precise quantity of alcohol in Gibb’s system.
Gibb
argues the trial court was free to disregard the officer’s certification
“because the record shows that . . . Jimenez did not calibrate the
machine nor did he have any personal knowledge of whether the machine was
maintained, in good working order, accurate or reliable.†Gibb cites no record evidence to support this
statement; however, we presume he refers to Culver’s telephonic testimony
concerning the PAS accuracy logs maintained by the Danville Police
Department. Indeed, he writes, “In
reality, the only reason why . . . Jimenez may believe that the
device was functioning properly is because it is maintained by . . .
Culver.â€
Gibb
is wrong for three reasons. First, at
Gibb’s own request, Culver’s testimony was stricken from the record. Consequently, the court could not infer from
Culver’s testimony that Jimenez did not personally know whether the device was
working properly. Second, Culver’s
testimony did not demonstrate that Jimenez lacked personal knowledge that the
device was working properly, for the reasons stated ante. Third, even if we
assume that Jimenez relied on reports from Culver to certify that the device was
working properly, the certification would be admissible as an exception to the
hearsay rule because Culver had a duty to report his own observations
accurately. Statements in an official
record may satisfy the trustworthiness element of Evidence Code section 1280,
subdivision (c) even if they are not within the personal knowledge of the
public officer who prepared the report.
“[F]or the [official record hearsay] exception to apply, ‘[i]t is not
necessary that the person making the entry have personal knowledge of the
transaction. [Citations.]’ [Citation.]
Assuming satisfaction of the exception’s other requirements, ‘[t]he
trustworthiness requirement . . . is established by a showing that
the written report is based upon the observations of public employees who have
a duty to observe the facts and
report and record them correctly.’
[Citation.]†(
639–640, fn. omitted; see also McNary v.
Department of Motor Vehicles (1996) 45 Cal.App.4th 688, 694–695 [following
c. Sufficiency
of the Department’s Evidence
Because
the Sworn Statement was admissible as an official record and laid a proper
foundation for the PAS test results, the statement was competent evidence that
could be used to fulfill the Department’s burden of proof at the hearing. (Gov. Code, § 11513, subd. (c);
p. 639.) Despite the absence of
live testimony, “[t]he due process concern for cross-examination and
confrontation [i]s satisfied by the licensee’s ability to subpoena the officer
himself if desired.â€
name="_ftnref11" title="">[11] (Snelgrove,
supra, 194 Cal.App.3d at p. 1371 [describing holding of
(1981) 124 Cal.App.3d 99, 110]; see id.
at pp. 1375–1376 [agreeing with Burkhart’s
due process analysis].) Gibb presented
no evidence and does not contend that he was denied an opportunity to subpoena
witnesses in order to confront and cross-examine them. The Department accordingly satisfied its
burden of proof.
In
conclusion, the trial court’s implied ruling that Jimenez’s certification was
inadmissible evidence on the reliability of the PAS test was legally incorrect
and thus an abuse of discretion. It
follows that the court’s ruling that “there was no . . . evidence
establishing the reliability of the particular PAS device used in this caseâ€
was not supported by substantial evidence. We therefore reverse the court’s grant of the
petition for writ of mandate.
The
judgment granting the writ of mandate is reversed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Simons, J.
references are to the Vehicle Code unless otherwise indicated.
23152 and 23153, it 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 test or other chemical test, to drive a
vehicle.†(§ 23136,
subd. (a).)
