Opinion
NOT TO BE PUBLISHED
Santa Cruz County, Super. Ct. No. CV156561
The superior court issued a writ of mandate overturning the administrative decision of appellant Department of Motor Vehicles (the DMV) to suspend respondent James Wesley Force’s driving privilege. The hearing officer at the administrative hearing had sustained Force’s objection to the admission of preliminary alcohol screening (PAS) test results to show Force’s blood alcohol level but had overruled his objection to the admission of and reliance on a document purporting to be a record of a forensic alcohol analysis (hereafter the RFAA). The superior court concluded that the RFAA was not admissible and sufficient to support the hearing officer’s finding and that the PAS test results could not be utilized to support the finding.
The DMV appeals from the superior court’s ruling and argues that, although the RFAA was not admissible under Evidence Code section 1280, it was nevertheless admissible under Vehicle Code section 23612, subdivision (g)(2) to support the hearing officer’s finding. Alternatively, the DMV asserts that the superior court should have found that the hearing officer’s finding was supported by the PAS test results. This court recently decided these same issues on similar facts in Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974 (Molenda). We agree with Molenda and on that basis affirm the judgment.
I. Factual and Procedural Background
In the early morning hours of April 12, 2006, Force’s pickup truck was observed drifting into the bike lane and proceeding in the bike lane for 100 feet. An officer stopped Force’s vehicle, and Force displayed objective symptoms of alcohol intoxication. The officer administered a PAS test to Force 17 minutes after Force’s detention, and a second PAS test two minutes later. These tests showed blood alcohol levels of.094 percent and.096 percent. Force was placed under arrest, and he submitted to a blood test 40 minutes after the vehicle stop.
The administrative hearing was held on January 18, 2007. At the hearing, the DMV introduced the RFAA, which was entitled “Forensic Alcohol Analysis.” The RFAA stated that Force’s blood sample had been received on April 17 and thereafter found to contain.11 percent alcohol. The RFAA read: “DATE ANALYSIS COMPLETE: 4/24/2006 [¶] DATE OF REPORT: 4/28/2006.” It was signed by Gregory L. Avilez, “Senior Criminalist.” The bottom of the RFAA bore a stamp that had been signed by a DMV employee and dated May 17, 2006. This stamp read: “I certify, under the penalty of perjury, under the laws of the State of California, that this is a true and correct copy of the forensic laboratory report that I retrieved on the date indicated below from the Department of Justice Laboratory Information Management System (LIMS) data base [sic] system. Copy prepared at Department of Motor Vehicles, San Jose, California.”
At the administrative hearing, Force’s attorney objected to admission of and reliance upon the RFAA due to the fact that the RFAA was not prepared “at or near” the time of the analysis. He based his objection on Downer v. Zolin (1995) 34 Cal.App.4th 578. The hearing officer overruled that objection. However, the hearing officer sustained Force’s attorney’s objection to the admission of the PAS test results to show Force’s blood alcohol level. The hearing officer stated that he would use the PAS tests only to “show[] presence of alcohol and I do not use PAS number to prove the fact of the matter.” The hearing officer found that Force was driving with a.08 percent or higher blood alcohol level. In February 2007, the DMV suspended Force’s driving privilege.
On March 13, 2007, Force filed a petition for a writ of mandate and requested a temporary stay. He asserted that the RFAA was inadequate to establish his blood alcohol level because it was inadmissible hearsay that did not come within Evidence Code section 1280. Force’s contention was premised on the fact that the analysis was completed on April 24, 2006, but the RFAA was not prepared until April 28, 2006, which was not at or near the time of the analysis within the meaning of Evidence Code section 1280.
The superior court issued an order to show cause and granted Force’s request for a temporary stay of the suspension of his driving privilege. The DMV claimed that the RFAA was admissible under both Evidence Code section 1280 and Vehicle Code section 23612, subdivision (g)(2) and under Government Code section 11513, subdivision (d) “to supplement and explain the PAS test results.” It also argued that the PAS test results were sufficient to support the hearing officer’s finding.
The superior court rejected the DMV’s arguments. It concluded that the RFAA was inadmissible under Evidence Code section 1280 and therefore could not, under Government Code section 11513, subdivision (d), provide the sole support for the DMV’s finding that Force had a.08 percent or higher blood alcohol level. The superior court found that “the record at the administrative hearing below is insufficient for me to consider the PAS test result given the ruling in the Coniglio case and also given the fact that the hearing officer did not consider that evidence and sustained the objection as to the admissibility of that evidence below and it would be inappropriate for me to consider it now.” The superior court issued a peremptory writ of mandate setting aside the DMV’s suspension of Force’s driving privilege. The DMV filed a timely notice of appeal.
Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666.
II. Analysis
This case is essentially on all fours with Molenda. Molenda was administered two PAS tests, two minutes apart, which showed that she had a blood alcohol level above.08 percent. (Molenda, supra, 172 Cal.App.4th at p. 983.) The report on the analysis of her blood sample (the report) stated that the analysis was completed on September 1, but the report was dated September 8. (Molenda, at p. 983.) At the administrative hearing, Molenda’s counsel’s objection to the PAS test results was sustained as to the blood alcohol level. Her counsel objected to the report on the ground that it did not come within Evidence Code section 1280. His objection was overruled. Molenda’s writ petition was granted on the same grounds as Force’s writ petition was granted. (Molenda, at pp. 984-985.)
On appeal, the DMV did not contend that the report was admissible under Evidence Code section 1280, but instead that the report was admissible and sufficient to support the hearing officer’s finding under Vehicle Code section 23612, subdivision (g)(2). The DMV also argued that the PAS test results were sufficient to support the hearing officer’s finding. (Molenda, supra, 172 Cal.App.4th at pp. 986, 989.)
This court thoroughly analyzed and rejected these contentions. First, it concluded that the report was not admissible under Vehicle Code section 23612, subdivision (g)(2). “We conclude that while Vehicle Code section 23612, subdivision (g)(2) provides that the DMV may receive or retrieve evidence of a licensee’s blood alcohol test results directly from a government forensic lab database and that such evidence is the best available evidence of the test results, the statute does not preclude the opponent of the evidence from challenging the document or other record on other exclusionary grounds, including hearsay. [¶] Nothing in the language of Vehicle Code section 23612, subdivision (g)(2) suggests that it was intended to operate as an exception to the hearsay rule.” (Molenda, supra, 172 Cal.App.4th at p. 997.) The DMV makes the same argument here as it did in Molenda. We agree with Molenda’s analysis and therefore reject the DMV’s contention. Consequently, the RFAA could not support the hearing officer’s finding that Force’s blood alcohol level was.08 percent or higher.
In Molenda, this court also considered and rejected the DMV’s contention that the PAS test results were sufficient to support the hearing officer’s finding even though the hearing officer had excluded those test results. The DMV had not established a proper foundation for the admission of the PAS test results because there was no evidence of the type of device that had been used or of the training of the officer who had administered the PAS tests. (Molenda, supra, 172 Cal.App.4th at pp. 1000-1001.) The DMV attempted to rely on the Evidence Code section 664 presumption to obviate the need to establish a foundation, but this court rejected that attempt for two reasons. First, the officer had not included the PAS test results in his sworn report or certified those results. (Molenda, at p. 1004.) Second, because the hearing officer had sustained Molenda’s counsel’s foundational objection to the PAS test results at the administrative hearing, Molenda had reasonably relied on that ruling and presented no evidence challenging the reliability of the PAS tests. (Molenda, at pp. 1004-1005.)
The DMV makes the same contentions here that it did in Molenda, and we apply the same analysis applied in Molenda. The DMV failed to establish a proper foundation for the admission of the PAS test results at the administrative hearing because it produced no evidence of the type of device used or the officer’s training in using the device. Nor could the DMV rely on the Evidence Code section 664 presumption. As in Molenda, the PAS test results were not included in the officer’s sworn report nor did he certify those results. And, as in Molenda, Force’s failure to present evidence challenging the reliability of the PAS tests at the administrative hearing was due to his reasonable reliance on the hearing officer’s ruling upholding his foundational objection to the PAS test results.
As both of the issues raised by the DMV were resolved against it by this court in Molenda, and we agree with the analysis and conclusions in Molenda, we uphold the superior court’s decision.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.