Opinion
D071855
03-19-2018
ZAIN JAWED, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents,
Law Office of A. P. Zmurkiewicz and A. P. Zmurkiewicz for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, and Celine M. Cooper, Deputy Attorney General, for Defendants and Respondents.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on March 19, 2018, be modified as follows:
On page 8, the last paragraph continuing to page 9 and beginning "In his reply brief" is deleted and the following paragraph is inserted in its place:
In his reply brief, Jawed argued that the superior court used the wrong legal standard when it ruled that the foundational requirements for admission of the PAS device test results had been satisfied. We noted that this argument would ordinarily be forfeited because it did not appear in his opening brief. We then addressed
the argument on its merits. In a petition for rehearing, Jawed asserted that this argument appeared at pages 34 to 38 of his opening brief. To the extent Jawed's opening brief could be construed as making this argument, we note that each point in a brief must appear separately under an appropriate heading or subheading "summarizing the point" (Cal. Rules of Court, rule 8.204(a)(1)(B)) and that arguments not listed under a separate heading or subheading, such as the one made by Jawed, can be deemed forfeited. (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 377, fn. 3 [To the extent Dinslage's opening brief contains arguments not set out under distinct headings, we decline to entertain them."]; Consolidated Irrig. Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 [appellant "forfeited the argument by violating the rule that requires each point be presented under a separate heading"].)
There is no change in the judgment.
Appellant's petition for rehearing is denied.
NARES, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00034977-CU-WM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Tamila E. Ipema, Judge. Affirmed. Law Office of A. P. Zmurkiewicz and A. P. Zmurkiewicz for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, and Celine M. Cooper, Deputy Attorney General, for Defendants and Respondents.
Zain Jawed appeals the denial of his writ petition to set aside a Department of Motor Vehicles (DMV) administrative decision suspending his driver's license for driving with alcohol in his system while on probation for driving under the influence of alcohol (DUI). (Veh. Code, § 23154, subd. (a).) Jawed contends that at the administrative hearing the DMV failed to lay a proper foundation for admitting into evidence the results of the preliminary alcohol screening (PAS) test administered to him, and the evidence otherwise failed to establish that he had a blood-alcohol concentration (BAC) of 0.01 percent or greater. We conclude that the DMV laid a sufficient foundation for admission of the PAS test and affirm the judgment.
Undesignated statutory references are to the Vehicle Code.
Jawed also asserts that he is entitled to an award of attorney fees under Government Code section 800 because the administrative hearing officer's determination that his driver's license be suspended was the result of arbitrary or capricious action or conduct. Because we reject Jawed's claim of error, we need not address his argument that he is entitled to an award of attorney fees and costs under Government Code section 800.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013 Jawed's driver's license was suspended after he was arrested for DUI. In 2014 Jawed was convicted of driving with a BAC of 0.08 percent or more (§ 23152, subd. (b)) and placed on probation for five years.
On June 23, 2016, Officer John White of the San Diego Police Department and his partner contacted Jawed who was sitting in the passenger seat of a vehicle that did not have a front license plate and was illegally parked in front of a fire hydrant. Jawed admitted to Officer White that he had been drinking. Officer White conducted a records check and determined that Jawed was on DUI probation. Officer White issued Jawed a citation for parking in front of a fire hydrant.
About 10 minutes later, Officer Curtis Bryant stopped Jawed's vehicle because it lacked a front license plate. Officer Bryant contacted dispatch, and Officer White and his partner responded. Officer White observed that Jawed had bloodshot and watery eyes and smelled of alcohol. Officer White administered field sobriety tests to Jawed, but Jawed did not show any signs of impairment in those tests.
Officer White administered two PAS tests to Jawed using an Alco-Sensor IV. The first test, taken at 1:55 a.m., showed a 0.070 percent BAC. Two minutes later, a second test showed a 0.068 percent BAC. Officer White cited Jawed for violating his DUI probation. Officer White also served Jawed with an administrative per se suspension order notifying Jawed that his driving privilege had been suspended for driving with a blood alcohol content of 0.01 percent or higher while on DUI probation and issuing Jawed a temporary driver's license.
After an evidentiary hearing, an administrative hearing officer overruled Jawed's hearsay, lack of foundation and lack of authentication objections and admitted the San Diego Police Department PAS calibration/accuracy check records (accuracy records) showing monthly calibration testing of the PAS device used by Officer White on Jawed. After hearing the evidence, the hearing officer determined that Jawed's driving privilege should be suspended for driving with a BAC of 0.01 percent or more while on DUI probation. Jawed filed this action challenging the DMV's suspension of his driving privilege. The trial court denied Jawed's petition for writ of mandate finding, among other things, that a proper foundation had been laid for admission of the PAS test results. Jawed timely appealed the judgment entered in favor of the DMV.
DISCUSSION
I. GENERAL LEGAL PRINCIPLES
Section 23154 makes it unlawful for an individual on probation for a violation of section 23152 or section 23153 to drive a motor vehicle "with a blood-alcohol concentration of 0.01 percent or greater, as measured by a [PAS] test or other chemical test." (§ 23154, subd. (a).) "[A] [PAS] test device is an instrument designed and used to measure the presence of alcohol in a person based on a breath sample." (§ 13389, subd. (c).) Additionally, a person on probation for a violation of section 23152 or section 23153 who drives a motor vehicle "is deemed to have given his or her consent to a [PAS] test or other chemical test for the purpose of determining the presence of alcohol in the person." (§ 23154, subd. (c)(1).)
The DMV is required to suspend the driving privilege of a person, on probation for a violation of section 23152 or section 23153, who operated a vehicle with a blood alcohol level of 0.01 percent or more. (§ 13353.2, subd. (a)(4).) At the time of violation, the officer takes possession of the individual's state-issued driver's license and issues the individual a notice of suspension and a temporary driver's license valid for 30 days from the date of the violation. (§ 13389, subd. (b)(2).)
The DMV automatically reviews the initial suspension decision or, if the driver so requests, conducts an administrative hearing on the suspension. (§§ 13557, subds. (a) & (e), 13558, subd. (a).) The DMV bears the burden of supporting a suspension and the suspension is upheld only if it determines by a preponderance of the evidence that the driver was lawfully detained, the officer had reasonable cause to believe the driver violated section 23154, and the driver had a blood-alcohol level of 0.01 percent or higher. (§§ 13557, subds. (a) & (b)(2), 13558, subd. (c)(2).) PAS tests are "admissible upon a showing of either compliance with title 17 [of the California Code of Regulations] or the foundational elements [described in People v. Adams (1976) 59 Cal.App.3d 559, 561 (Adams)] 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).)
Title 17 of the California Code of Regulations (hereafter Title 17) "establish[es] a standard for the competency of the results of blood-alcohol tests." (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 142 (Davenport).)
On a petition for a writ of mandate, a superior court reviewing a DMV order of suspension "is required to determine, based on its independent judgment, ' "whether the weight of the evidence supported the administrative decision." ' " (Lake v. Reed (1997) 16 Cal.4th 448, 456.) We review the trial court's ruling to determine " 'whether the evidence reveals substantial support, contradicted or uncontradicted, for the trial court's conclusion that the weight of the evidence does not' support DMV's suspension order. [Citation.] In making this determination, we must draw all legitimate and reasonable inferences in favor of the trial court's decision." (Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 309.) We review the trial court's evidentiary rulings under the deferential abuse of discretion standard (Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1217), but we exercise our independent judgment on questions of law. (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 82.)
II. ANALYSIS
Jawed contends that at the administrative hearing the DMV failed to lay a proper foundation for admitting into evidence the results of the PAS test administered to him, and that the evidence otherwise failed to establish that he had a BAC of 0.01 percent or greater. Specifically, he asserts that Officer White's testimony failed to establish the known alcohol concentration of the reference sample used to determine whether the PAS device was in proper working order. Without adequate knowledge of the alcohol concentration of the reference sample used to conduct the calibration checks of the device, Jawed contends "there can be and there was no showing that the PAS device used to test [his] breath was in proper working order."
Jawed does not contest that the evidence established the foundational requirements of a properly administered test and a competent operator as required under Adams, supra, 59 Cal.App.3d at page 561. His sole challenge is whether the PAS device worked properly and provided reliable results. Thus, we limit our discussion to this element.
At the hearing, Officer White testified that as part of the procedure to determine whether the PAS device was working accurately he attached it to an "GEBS tank" containing a reference sample of alcohol. The GEBS tank has a certification stating the value of the tank. Officer White did not bring the certificate to the hearing, did not know where it was, and had not viewed the certificate. Jawed contends that Officer White's unfamiliarity with the certification on the GEBS tank rendered the accuracy records inadmissible.
In Williams, our high court held that the trial court properly exercised its discretion in admitting test results of an Alco Sensor IV device, concluding that the accuracy of the device was verified by periodic testing with a standard 0.10 percent alcohol solution. (Williams, supra, 28 Cal.App.4th at pp. 412, 417.) Here, Officer White testified that it was his responsibility to ensure that an accuracy check is done on the PAS device every 30 days and that other officers assist him in performing the accuracy checks. Accuracy records show that the PAS device used by Officer White on Jawed had been tested every month from June 2013 through August 2016 against a reference sample with an established value of 0.08. For all but two tests, the PAS device tested below the reference sample. For the two tests where the PAS device tested above the reference sample, conducted in February 2014 and January 2015, the difference was 0.002 and 0.003.
Officer White used the PAS device on Jawed on June 23, 2016. The accuracy records show that PAC device had been tested for accuracy six days earlier and tested below the reference sample by 0.006. The PAC device was again tested for accuracy on July 14, 2016, and tested below the reference sample by 0.008. Thus, there is substantial evidence in the record showing that the PAS device used to conduct Jawed's PAS tests read low when his tests were conducted. Additionally, Jawed's first test yielded a result of 0.07 percent and his second test registered 0.068 percent, a difference of 0.002 percent. In Williams, our high court accepted an error margin of 0.01 or less. (Williams, supra, 28 Cal.App.4th at pp. 417-418.) Based on this evidence the trial court reasonably concluded that the PAS device was functioning properly and established that Jawed had a BAC of 0.01 percent or greater. Moreover, in the PAS certification Officer White stated under penalty of perjury that the PAS "device was functioning properly at the time of the test." This certification established at least a prima facie case that the PAS device functioned properly at the time of Jawed's test and Jawed failed to show otherwise. (Evid. Code, § 664 ["It is presumed that official duty has been regularly performed."].)
Officer White also reported his observation that Jawed smelled of alcohol, had bloodshot and watery eyes, and admitted that he had been drinking. The evidence provided circumstantial corroboration and another "appropriate guarantee" that the PAS device was in fact operating properly in measuring the existence of alcohol. (Davenport, supra, 6 Cal.App.4th at p. 140 [sworn officer declaration must "be supported by an adequate foundation of personal knowledge by the officer and any other appropriate guarantee of reliability"].)
Breath test results are admissible upon a showing of either compliance with Title 17 or the Adams foundational elements. (Williams, supra, 28 Cal.4th at p. 417.) Because the Adams foundation elements have been satisfied we need not address Jawed's arguments pertaining to Title 17.
In his reply brief, Jawed argues for the first time that the superior court used the wrong legal standard when it ruled that the foundational requirements for admission of the PAS device test results had been satisfied. Namely, the trial court stated that "[b]oth sections 13557 and 13353.2 require a [BAC] of 0.01 [percent] or greater and therefore only require the detection of the presence of alcohol." Ordinarily, we do not consider the merits of a claim raised for the first time in a reply brief absent a good reason for the failure to present the claim earlier. (Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1016.) Jawed made no attempt to justify raising this issue for the first time in his reply brief and the argument is forfeited. (People v. Zamudio (2008) 43 Cal.4th 327, 353-354.)
Nonetheless, we note that section 23154 is similar to section 23136. Section 23136 is described as a "zero tolerance law" that is designed to penalize the presence of alcohol in the blood of anyone under the age of 21 who operates a motor vehicle. (Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 673, abrogated on other grounds as recognized by Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 999, fn. 6; see also In re Jennifer S. (2009) 179 Cal.App.4th 64, 72 [by setting the prohibited blood-alcohol level at "the lowest detectable amount, [ ] section 23136 penalizes the consumption of alcohol, contemporaneous with the driving of an automobile"].) Section 23154 is another zero tolerance law that penalizes the presence of alcohol. (§ 23154, subd. (c)(1) ["[a] person who is on probation for a violation of Section 23152 or 23153 who drives a motor vehicle is deemed to have given his or her consent to a [PAS] test or other chemical test for the purpose of determining the presence of alcohol in the person"]; 13389, subd. (a) ["officer shall request that the person take a [PAS] test to determine the presence of alcohol in the person"].) Thus, we do not agree that the superior court used the wrong standard. Even if the court applied the wrong standard, the evidence shows Jawed tested well above the 0.01 statutory minimum.
Subdivision (a) of section 23136 provides, among other things, that "it is unlawful for a person under the age of 21 years who has a [BAC] of 0.01 percent or greater, as measured by a [PAS] test or other chemical test, to drive a vehicle." --------
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.