Opinion
H032141
9-5-2008
TRENT JOSEPH LINDGREN, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.
Not to be Published
The Department of Motor Vehicles (DMV) suspended Trent Joseph Lindgrens license to drive for violating the "Zero Tolerance Law" by driving a motor vehicle with a blood-alcohol content (BAC) of 0.01 percent when under the age of 21. (Veh. Code, § 23136.) He appeals the denial of his petition for writ of mandate. We affirm.
Unless noted, all statutory references are to the Vehicle Code.
Facts and Procedural History
On March 11, 2006, at approximately 1:55 a.m., California Highway Patrol Officer J. Smith, while in his patrol car, saw appellant driving towards him. Appellant was in an SUV. Officer Smith noticed that appellant was not wearing a seat belt. Officer Smith turned his patrol vehicle around and followed appellants vehicle. Officer Smith could see that appellant was still not wearing a seat belt. Officer Smith stopped appellants vehicle and made contact with appellant through the open passenger side window of the SUV. Appellant was still not wearing a seat belt. As appellant spoke, Officer Smith smelled a strong odor of alcohol coming from within appellants vehicle. Appellant denied drinking any alcohol. At Officer Smiths request, appellant got out of his vehicle at which time Officer Smith noticed that appellant was unsteady on his feet. As Officer Smith questioned appellant he noticed that appellants speech was slow and slurred. Further, appellants eyes were red and watery. Officer Smith asked appellant how much he had had to drink. Appellant admitted to drinking two beers. Appellant was unable to properly perform a series of field sobriety tests as explained and demonstrated by Officer Smith.
Officer Smith administered two Preliminary Alcohol Screening (PAS) tests, obtaining results of .151 percent and .156 percent BAC respectively. Officer Smith arrested appellant for violating section 23152, subdivision (a) (driving under the influence of alcohol). Officer Smith took appellant to Dominican Hospital where Officer Smith informed appellant of the implied consent law pursuant to section 23612. Appellant consented to a breath test. The results of the two tests that were administered by Officer Smith were .14 percent and .14 percent BAC respectively. Officer Smith issued an Administrative Per Se Suspension/Revocation Order and Temporary Driver License.
Appellant appealed the license suspension before the DMV. At the DMV hearing, Officer Smiths arrest report (referred to later as the unsworn report), an "Under Age 21 Officers Statement" (referred to as the DS-367 or sworn report) of the breath test results, a printout of appellants driving record, and a photocopy of appellants driver license indicating that he was under 21 years of age when arrested, were received into evidence. The hearing officer overruled appellants objections concerning the admissibility and sufficiency of the exhibits.
At the hearing, Officer Smith testified to essentially the same facts that were in his unsworn report. Furthermore, he testified to the circumstances under which he administered the breath tests at Dominican Hospital, which according to his testimony were administered pursuant to "title 17" requirements, as well as to the fact that he was trained to administer the test.
Officer Smiths sworn report contained details of appellants name, address, driver license number, the date and time when appellant was driving, date of birth, gender, height, and weight. Boxes were checked indicating that Officer Smith had observed appellant driving and that appellant admitted to driving. In addition, the box entitled "PRELIMINARY ALCOHOL SCREENING TEST 0.01% OR MORE BLOOD ALCOHOL CONCENTRATION (BAC)" indicated the results of the breath tests administered to appellant at Dominican Hospital. Further, Officer Smith signed the breath test machine operators certification. However, none of the boxes entitled "OBJECTIVE SYMPOMS of intoxication" were checked. The third page of the sworn report contains a notation that states "SEE ATTACHED ARREST REPORT. [¶] DRIVER WAS STOPPED FOR NOT WEARING A SEATBELT."
The applicable statutes allow for the use of either a "preliminary alcohol screening test" or some "other chemical test" to determine whether the BAC of a person under the age of 21 is 0.01 percent or greater. (§§13353.2, subd. (a)(2); 23136, subd, (a).) It appears that in superior court the DMV abandoned any reliance on the PAS test results administered by Officer Smith shortly after he stopped appellant. Accordingly, here we are concerned with the breath test results from the test administered by Officer Smith at 2:30 a.m. and 2:33 a.m. on March 11, 2006, at Dominican Hospital.
The breath test certification states "I certify under penalty of perjury under the laws of the State of California, that the above breath test sample results were obtained in the regular course of my duties. I further certify that I am qualified to operate this equipment and that the test was administered pursuant to the requirements of Title 17 of the California Code of Regulations."
Officer Smiths unsworn report contained all the details of the stop and arrest including the reason for the stop (not wearing a seat belt), Officer Smiths observations regarding appellants objective symptoms of intoxication, the field sobriety tests administered to appellant and the results of the breath test administered at Dominican Hospital.
Appellant introduced into evidence documentary evidence consisting of Bureau of Forensic Services of the Department of Justice breath alcohol reports of the test records, accuracy checks, and maintenance of the breath alcohol analysis machine (hereafter breath test machine) used to obtain appellants breath samples at Dominican Hospital. The records reflected that during all relevant time periods, both before and after appellants breath tests performed at Dominican Hospital, starting from February 15, 2006, through April 15, 2006, only one accuracy test was performed each time the breath test machine was checked for accuracy on and between those dates.
In a written decision, the hearing officer imposed the suspension of appellants driver license for violation of the Zero Tolerance Law. (§ 23136, subd. (a).)
Appellant filed a petition for writ of mandate, which the trial court denied.
Neither of the parties requested a statement of decision. However, when the court announced its tentative decision, Judge Burdick stated his belief that Officer Smiths sworn and unsworn reports taken together provided a sufficient basis for the hearing officer to reach the determination that appellant was operating a vehicle while under the influence of alcohol.
On appeal, appellant raises two issues. First appellant contends that Officer Smiths sworn statement was "so fatally insufficient on its face" that the DMV "had no choice but to terminate all proceedings to suspend" appellants driving privilege. Accordingly, it was error for the superior court not to grant appellants petition for writ of mandate. Second, because the DMV offered no independent evidence indicating that the breath tests results were accurate there was insufficient evidence in the record to support a finding that he was given a valid breath test.
Standard of Review
"In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, `"whether the weight of the evidence supported the administrative decision." [Citations.]" (Lake v. Reed (1997) 16 Cal.4th 448, 456-457.) "On appeal, we `need only review the record to determine whether the trial courts findings are supported by substantial evidence." (Id. at p. 457.)
Discussion
Officer Smiths Unsworn Statement
As our Supreme Court explained in Lake v. Reed, supra, 16 Cal.4th 448 (Lake), "[u]nder administrative per se laws, `when a person is arrested for driving under the influence and is determined to have a prohibited blood-alcohol level, the arresting officer or the DMV serves the person with a "notice of the order of suspension." (§§ 13353.2, subds. (b) & (c), [13382].) The notice informs the person that his or her drivers license will be suspended [30] days from the date of service, states the reason and statutory grounds for the suspension, and explains the persons right to seek an administrative hearing. (§§ 13353.2, subd. (c), 13353.3, subd. (a).) If the arresting officer serves the notice, the officer also confiscates the persons drivers license and issues a [30-day] temporary license. [Citations.] [Citation.]" (Id. at p. 455, fns omitted.)
Thereafter, relevant here, section 13380 requires that the arresting officer "shall immediately forward to the department a sworn report of all information relevant to the enforcement action, including information that adequately identifies the person, a statement of the officers grounds for belief the person violated Section . . . 23152 . . . , a report of the results of any chemical tests that were conducted on the person . . . , a copy of any notice to appear under which the person was released from custody, and, if immediately available, a copy of the complaint filed with the court." (§ 13380, subd. (a).)
The officers sworn report "shall be made on forms furnished or approved by the department." (§13380, subd. (b).) In addition, the officer "shall immediately forward a copy of the completed notice of order of suspension form, and any drivers license taken into possession . . . with the report required by Section 13380, to the department." (§ 13382, subd. (c).)
Preliminarily, under Section 13353.2 the DMV "shall immediately" suspend a persons privilege to operate a motor vehicle if "[t]he person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test." (§ 13353.2, subd. (a)(2).) The determination that this is the case is based solely on the report of the police officer submitted pursuant to Section 13380. (§ 13353.2, subd. (d).)
Section 23136, subdivision (a) provides that "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." Violation of the Zero Tolerance Law subjects the licensee only to civil penalties, to be administered by the DMV through specified civil administrative procedures. (Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 682.) Evidentiary standards are somewhat relaxed because the process is administrative. (Ibid.)
In Lake, supra, 16 Cal.4th 448, the California Supreme Court was asked to determine whether, "in an `administrative per se review hearing, the DMV presents sufficient evidence to show the individual arrested was driving the motor vehicle, when the only evidence that satisfies an exception to the hearsay rule is contained in an unsworn police report." (Id. at pp. 451-452.) Some of the information contained in the sworn report would not have been admissible over an objection in a civil action, and thus insufficient to sustain or support an administrative finding against the licensee. (Id. at pp. 458-459.)
The DMV offered two pieces of evidence to prove that Lake was driving: the arresting officers sworn report forwarded to the DMV under section 23185.2 [now section 13380]; and an unsworn report from another officer. This unsworn report related Lakes admission that he was driving, as well as statements of another witness, who also stated that Lake was driving. In addition, attached to the unsworn report were the unsworn statements of two other witnesses. (Id. at pp. 458-459.) Thus, as to whether Lake was driving, the only information in the DS 367 was hearsay. (Id. at p. 459.)
After lengthy consideration of the statutory scheme concerning the "administrative per se" laws, the Supreme Court held that in the DMVs administrative review hearing of the license suspension the evidence needed to justify the suspension could come from an unsworn statement of a non-arresting officer. (Id. at pp. 462, 467.)
In MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155 (MacDonald ), our Supreme Court summarized the statutory framework of the administrative per se law. Briefly, we reiterate the relevant portions of the courts discussion: "Under the administrative per se law, the DMV must immediately suspend the drivers license of a person who is driving with .08 percent or more, by weight, of alcohol in his or her blood. [Citation.] The procedure is called `administrative per se because it does not impose criminal penalties, but simply suspends a persons drivers license as an administrative matter upon a showing the person was arrested for driving with a certain blood-alcohol concentration, without additional evidence of impairment. [Citation.] The 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 criminal actions. [Citations.]" "[W]hen a person is arrested for driving under the influence and is determined to have a prohibited blood-alcohol concentration, the arresting officer or the DMV serves the person with a notice of order of suspension. [Citations.] The notice informs the driver the license suspension will be effective 30 days from the date of service, states the reason and statutory grounds for the suspension, and explains the drivers right to seek an administrative hearing. [Citations.] [¶] After the arresting officer serves a driver with the notice of order of license suspension, the DMV conducts an automatic internal review of the merits of the suspension. [Citations.] In its review, the DMV considers the sworn report submitted by the peace officer and any other evidence accompanying the report. [Citation.]" (MacDonald, supra, 32 Cal.4th at pp. 155-156.)
"In addition to the automatic internal review, the driver may request a hearing, in which case the DMV holds a contested review hearing on its decision to suspend a license. [Citation.] `The rules potentially governing the evidence available for use in such hearings are set forth in division 6, chapter 3, article 3 of the Vehicle Code, commencing with section 14100. [Citation.] Two provisions are especially relevant. First, section 14104.7 states in pertinent part: "At any hearing, the department shall consider its official records and may receive sworn testimony." Second, for all matters not specifically covered by division 6, chapter 3, article 3 of the Vehicle Code, section 14112 incorporates the provisions of the Administrative Procedures Act governing administrative hearings generally. [Citation.] [¶] Government Code section 11513 addresses the admissibility of evidence in administrative hearings. It states in relevant part: `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. [Citation.]" (MacDonald, supra, 32 Cal.4th at p. 156.)
In MacDonald, supra, 32 Cal.4th at page 159, the court concluded that under the statutory scheme the DMV can consider the arresting officers sworn and unsworn reports. "`A police officers report, even if unsworn, constitutes "the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs." [Citation.] Again, too, we must not lose sight of the reason for the `slight relaxation of the rules of evidence applicable to an administrative per se review hearing[.] . . . [¶] [S]o long as a sworn report is filed, it is consistent with the relaxed evidentiary standards of an administrative per se hearing that technical omissions of proof can be corrected by an unsworn report filed by the arresting officer."
As noted, appellant contends that Officer Smiths sworn statement was so fatally insufficient on its face that the DMV hearing officer should have terminated the proceedings.
In MacDonald, supra, 32 Cal.4th at page 159, our Supreme Court concluded: "Section 13380 provides the arresting officers sworn report will contain `all information relevant to the enforcement action. Therefore, the Legislature clearly anticipates the sworn report will contain all or nearly all of the information necessary to remove the offenders license. In light of this legislative intent, the sworn report cannot be wholly devoid of relevant information." (Italics added.)
Relying on the above stated paragraph from MacDonald, appellant argues that Officer Smiths sworn report is "wholly and completely devoid of any information whatsoever setting forth the officers grounds for the belief, prior to the giving of any chemical test, that [appellant] had violated the provisions of section 23136 of the Vehicle Code (i.e., was driving a vehicle with a blood alcohol concentration of 0.01 percent or more) or had violated the provisions of section 23152 of the Vehicle [Code] (i.e., was driving under the influence of alcohol). Specifically, the officers sworn report contains no information whatsoever that [appellant] had any objective symptoms of intoxication such as bloodshot/watery eyes, odor of alcoholic beverage, unsteady gait or slurred speech. Additionally, the officers sworn report contains no information that [appellant] had inadequately performed field sobriety tests."
In MacDonald, supra, 32 Cal.4th at page 154, our Supreme Court set forth the details concerning the arresting officers reports. Specifically, the court noted the following. "On the date of the incident, the arresting officer completed a sworn report on DMV form 367. With respect to the facts and circumstances which led to the stop, he wrote: `OBS, S/V [subject vehicle] DRIVING W/B 101 DESOTO TO TOPANGA WEAVING SIDE TO SIDE IN W-1 LANE-STOP MADE. [¶] On the same date, the officer completed a `Driving Under the Influence Arrest/Investigation Report (CHP form 202) and the narrative/supplement report (CHP form 556)."
The MacDonald court referred to these last two reports as the unsworn reports (MacDonald, supra, 32 Cal.4th at p. 154) and summarized what they contained as follows. "A California Highway Patrol (CHP) officer observed Daniel L. MacDonald, who was driving in the No. 5 lane on a freeway, encroach two feet into the No. 4 lane, and then slowly drift five feet onto the shoulder. When the officer stopped MacDonald, he observed that MacDonalds eyes were red and watery, his speech thick and slurred, and an odor of alcohol was emanating from his breath. MacDonald admitted he had been drinking. He failed several standard field sobriety tests, and upon being transported to a police station, his blood-alcohol concentration twice tested at .11 percent." (Id. at p. 153.)
We find the facts of this case to be virtually identical to those in MacDonald. The sworn report in MacDonald contained little relevant information other than the reason for the stop. (MacDonald, supra, 32 Cal.4th at p. 154.) All the details concerning MacDonalds symptoms of alcohol intoxication, admissions of drinking and administration of field sobriety tests were set forth in the unsworn report. (Id. at pp. 153-154.) Our Supreme Court still found the sworn report complied with "the intent and spirit" of the administrative per se law. (Id. at p. 154.)
In both MacDonald and the Lake case, the Supreme Court determined that officers unsworn reports were admissible because the documents were deemed to be "`"the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs." [Citations.]" (MacDonald, supra, 32 Cal.4th at p. 159; Lake, supra, 16 Cal.4th at p. 461.) In both cases, the court focused on section 13557, which "provides that the DMV `shall consider the sworn report submitted by the peace officer . . . and any other evidence accompanying the report . . . . " (See MacDonald, supra, 32 Cal.4th at p. 158.)
In the administrative hearing setting, Officer Smiths unsworn reports were admissible as "the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs." (Gov. Code, § 11513; see also MacDonald, supra, 32 Cal.4th at p. 159.) In conjunction with Officer Smiths sworn statement, the unsworn report constituted substantial evidence to support the trial courts implied finding that appellant was driving under the influence of alcohol when he was arrested by Officer Smith. (Id. at pp. 153, 154.)
Nevertheless, appellant argues that in order for the DMV to suspend the driving privilege of a person under the age of 21 years on the grounds that such a person was driving a motor vehicle with a BAC of 0.01 percent or more in violation of the provisions of section 13353.2, the DMV must prove the following by a preponderance of the evidence: 1) the person was under the age of 21 years; 2) the person was driving a motor vehicle while having a BAC of 0.01 percent or more; and 3) either the officer had reasonable cause to believe that the person had been driving a motor vehicle while under the influence of an alcoholic beverage and the person was placed under lawful arrest or the officer had reasonable cause to believe that the person had been driving a motor vehicle with a BAC of 0.01 percent or more and the person had been lawfully detained.
As noted, when an arresting officer determines that a person is driving with a prohibited BAC, the officer serves a notice that the persons driving privilege is suspended effective in 30 days. (§ 13353.3, subd. (a).) The determination that a person was driving with a prohibited BAC is made solely on the DS 367. (§ 13353.2, subd. (d).) Pursuant to section 13557, the DMV "shall" conduct a review of this determination and "shall" consider the arresting officers sworn report and any other evidence accompanying the report. (§ 13557, subd. (a).) The DMV is required to make its determination "before the effective date of the order of suspension or revocation" (§ 13557, subd. (c).) The department may dispense with such automatic review if the driver requests a hearing. (§ 13557, subd. (e).)
The notice of suspension informs the person that they have 10 days in which to request an administrative hearing. (§ 14100, subd. (a).) A request for an administrative hearing does not stay the suspension or revocation of a persons drivers license, unless the DMV receives the request for a hearing on or before 10 days after the person receives the notice of the order of suspension. (§ 13558, subds. (d) and (e).) If the DMV does not conduct a hearing and make a determination before the effective date of the order of suspension, the DMV "shall" stay the effective date of the order of suspension or revocation pending the determination. (§ 13558, subd. (e).) In appellants case the suspension of his license was stayed pending the administrative hearing that he requested.
Appellants license was not suspended until December 28, 2006.
Relevant here, section 13558, subdivision (c)(2) provides that the only issues at the hearing on an order of suspension pursuant to section 13353.2 "shall be those facts listed in paragraph (2) of subdivision (b) of section 13557." In turn section 13557, subdivision (b)(2) lists the following facts: "(A) That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section . . . 23152 . . . . [¶] (B) That the person was placed under arrest . . . . [¶] (C) That the person was driving a motor vehicle under any of the following circumstances: [¶] (iii) When the person was under the age of 21 years and had a blood-alcohol concentration of 0.01 percent or greater as measured by a preliminary alcohol screening test . . . ." Any evidence at the hearing shall not be limited to the evidence presented at an administrative review pursuant to section 13557. (§ 13558, subd. (b).) Consequently, "the universe of potentially available evidence is enlarged." (Lak e, supra, 16 Cal.4th at p. 458.)
Accordingly, at the "contested" administrative hearing the DMV could properly rely on the sworn testimony of Officer Smith (that he smelled the odor of alcohol on appellant; that appellant had bloodshot watery eyes and slurred speech) and Officer Smiths unsworn report, to establish that the officer had reasonable cause to believe that appellant was driving a motor vehicle in violation of section 23152.
Since appellants driver license was not suspended until after the contested administrative hearing, the fact that Officer Smiths sworn report did not contain all the information relevant to the enforcement action does not become an issue. As noted, this is because at the contested hearing the hearing officer can supplement the sworn report with sworn testimony and Officer Smiths personal observations of appellants objective symptoms of intoxication as detailed in his unsworn report.
Officer Smiths sworn report adequately identified appellant and contained the results of the chemical tests that were conducted on him.
In short, Officer Smiths sworn report and unsworn arrest report state that appellant was driving without a seat belt. The fact that appellant was driving without a seat belt gave Officer Smith cause to stop appellant. Driving without a seat belt is a violation of section 27315, subdivision (d)(1). "[A] law enforcement officer may, consistent with the Fourth Amendment, briefly detain a vehicle if the objective facts indicate that the vehicle has violated a traffic law." (People v. White (2001) 93 Cal.App.4th 1022, 1025.)
Thereafter, once a vehicle has been lawfully detained for a traffic violation, a police officer may order the driver to exit the vehicle without any articulable justification. (Maryland v. Wilson (1997) 519 U.S. 408, 410 .) Subsequently, appellant admitted drinking, failed several field sobriety tests, and had bloodshot/watery eyes, and an odor of alcohol. The observations of appellants condition, and appellants admission that he had been drinking gave the officer reasonable cause to arrest for driving under the influence (DUI). Probable "[c]ause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 410.) Here the evidence shows that the arresting officer had reasonable cause to believe appellant was DUI. Officer Smiths sworn report and sworn testimony at the administrative hearing shows appellant was under 21 years of age while driving and that his BAC was .14 percent.
Accordingly, all the requirements of section 13557 are met. Given our conclusion, it is not necessary to address the DMVs position that the unsworn report was admissible because the sworn report expressly incorporated it by reference. Nevertheless, we must turn to appellants second argument, which in essence is that there was insufficient evidence that he was driving with a BAC of 0.01 percent or greater.
Insufficient Evidence and Title 17
In this part, title 17 means California Code of Regulations, title 17 and all section references are to title 17.
"Title 17 establishes procedures for determining `the concentration of ethyl alcohol in samples of blood, breath, urine, or tissue of persons involved in traffic accidents or traffic violations. (§ 1215.1 [, subd.] (b). ) Law enforcement officials conducting breath tests must adhere to title 17. (Health & Saf.Code, § 100715.)" (Hernandez v. Gutierrez (2003) 114 Cal.App.4th 168, 172.) Among several other requirements, title 17 sets forth standards for assessing the accuracy of machines used to analyze blood alcohol levels. (§ 1221.4.) At periodic intervals, a reference sample of known alcohol concentration must be tested by a qualified operator and provide a result "within accuracy and precision limits of plus or minus 0.01 grams % of the true value." (§ 1221.4, subd. (a)(2)(A). ) The regulations define "periodic" as "either a period of time not exceeding 10 days or following the testing of every 150 subjects, whichever comes sooner." (§ 1221.4, subd. (a)(2)(B).)
However, it is well settled that noncompliance with title 17 goes only to the weight to be given to test results, not to their admissibility. (People v. Adams (1976) 59 Cal.App.3d 559, 567.)
Generally, breath test results are admissible in license suspension and revocation proceedings "upon a showing of either compliance with title 17 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, italics added.) "When DMV proceeds by the former route, as here, it enjoys the benefit of the official duty presumption under Evidence Code section 664. That section `creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. [Citations.] . . . The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence. [Citation.]" (Hernandez v. Gutierrez,supra, 114 Cal.App.4th at p. 172.)
"Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. [Citations.] `The licensee must show, "through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed . . . ." [Citation.] Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation. " (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232-1233.)
Appellant contends that pursuant to the provisions of section 1220.2 two accuracy tests are required each time a breath test machine is tested for accuracy. Appellant asserts that the uncontradicted evidence pertaining to the records of accuracy tests of the breath test machine used to test his BAC shows that before and after his test there was only one accuracy test done during each accuracy check. Accordingly, appellant argues that because there was a serious title 17 violation the DMV lost the benefit of the official duty presumption. Further, appellant asserts that because the DMV did not produce any affirmative evidence that the machine was reliable, there was insufficient evidence in the record to support a finding that appellant was given a valid breath test.
Section 1220.2 entitled "Standards of Procedure" provides "(a) Methods for forensic alcohol analysis shall meet the following standards of procedure: [¶] (1) The method shall be calibrated with standards which are water solutions of alcohol. [¶] (A) Such alcohol solutions are secondary standards. [¶] (B) Each forensic alcohol laboratory shall establish the concentration of each lot of secondary alcohol standards it uses, whether prepared or acquired, by an oxidimetric method which employs a primary standard, such as United States National Bureau of Standards potassium dichromate; [¶] (2) The procedure shall include blank and secondary alcohol standard samples at least once each day that samples are subjected to forensic alcohol analysis. [¶] (A) The blank and secondary alcohol standard samples shall be taken through all steps of the method used for forensic alcohol analysis of samples. [¶] (3) The procedure shall also include analysis of quality control reference samples as described in Section 1220.3 and shall include at least duplicate analyses of samples for forensic alcohol analysis. [¶] (A) A quality control reference sample shall not be taken from the same lot of alcohol solution which is used as a secondary alcohol standard. [¶] (4) Alcohols or other volatile organic solvents shall not be used to wash or rinse glassware and instruments used for alcohol analysis; [¶] (5) All instruments used for alcohol analysis shall be in good working order and routinely checked for accuracy and precision."
Preliminarily, we observe that the DMV disputes that title 17 requires that duplicate accuracy checks be performed each time a breath test machine is tested for accuracy. The DMV points out that the section of title 17 to which appellant cites for his argument that duplicate accuracy tests are required (section 1220.2) is found in article 6 of title 17. The DMV argues that article 6 does not apply to breath test machines.
Even if this court assumed for the sake of argument that duplicate tests are required each time a breath test machine is checked for accuracy, the failure to perform one of two accuracy tests does not cast doubt on the reliability of the machine used in appellants case.
Appellant provided the evidence necessary to establish that the breath test machine was functioning properly. The accuracy check records that appellant submitted in evidence show that the machine used to test his breath was consistently accurate. Between February 16 and March 10, 2006, the machine was tested 4 times for accuracy. The machine measured the content of a reference sample of .100 percent alcohol concentration at .093 percent (February 16) .093 percent (February 24) .092 percent (March 2) and .091 percent (March 10). All of which were within the title 17s requirement of 0.01 grams percent of the true value. (§1221.4, subd. (a)(2)(A).) The accuracy test conducted on March 16, 2006, which was after appellants test, also recorded that the machine was reading low giving a result of .094 percent, again within title 17 standards. Thus, both before and after appellants test the machine met title 17 standards. In fact the machine operated to appellants benefit because it was reading .006 to .009 low.
Officer Smiths testimony provided the evidence that the breath test was administered correctly and that he was a qualified operator. Accordingly, all the foundational requirements for admissibility were met.
Our task is to search for evidence or draw inferences from the evidence supporting the trial courts implied determination that the breath test results in this case were sufficiently reliable to support the hearing officers finding. As detailed above, the record contains evidence from which the trial court could legitimately conclude that noncompliance with title 17 requirements did not undermine the reliability of appellants breath test results. Having found such evidence, we are bound to uphold the trial courts determination.
Disposition
The judgment is affirmed.
We concur:
RUSHING, P. J.
PREMO, J.