Opinion
E033122.
11-7-2003
ROBERT BRUCE CALLAN, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.
Bill Lockyer, Attorney General, Dennis W. Dawson, Supervising Deputy Attorney General, and Kathryn M. Megli, Deputy Attorney General, for Defendant and Appellant. Law Offices of J. Spencer Wagstaff and J. Spencer Wagstaff for Plaintiff and Respondent.
The Department of Motor Vehicles (DMV) appeals from a judgment granting Robert Bruce Callans (Callan) petition for a writ of mandate and ordering the DMV to set aside the suspension of Callans driving privilege. It contends that substantial evidence does not support the trial courts decision to overturn the suspension order. As discussed below, we disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 3, 2001, at 2:04 a.m., Upland Police Officer J. Stanley saw a white Camaro southbound on Grove Avenue traveling at 65 m.p.h. in a posted 40 m.p.h. zone. The Camaro passed a white Ford pickup on the right side forcing the pickup to brake to avoid a collision. Officer Stanley stopped the Camaro. When the officer began speaking to the driver, later identified as Callan, he smelled an odor on the drivers breath. Callans speech was slurred and he admitted consuming a pitcher of beer. The officer noted other objective signs of intoxication, including bloodshot, watery eyes and an unsteady gait. Callan failed a series of field sobriety (FS) tests and agreed to take preliminary alcohol screening (PAS) tests, which indicated that his BAC was .094 and .096 at 2:25 a.m. and 2:27 a.m., respectively. Based on the observation of driving, objective signs of intoxication, failed FS tests and PAS tests indicating a BAC greater than . 08 percent, and an admission of drinking, Officer Stanley determined that Callan was driving while under the influence of alcohol and arrested him for a violation of Vehicle Code section 23152, subdivisions (a) and (b).[] Callan chose a blood test, administered at 3:08 a.m. with BAC results of .12 percent. His drivers license was confiscated and he was issued a temporary license.
Callan exercised his statutory rights and requested an administrative review hearing which convened on February 20 and March 19, 2002. At the administrative hearing, the DMV introduced into evidence Officer Stanleys sworn report on DMV form DS 367, the Forensic Alcohol Examination Report, the APS Suspension Order, and Callans driving record printout. DMV also offered the testimony of Officer Stanley and Laura Perez-Munoz, the technician who tested Callans blood.
Callan offered the testimony of Daryl Clardy, an expert. Mr. Clardy has testified in numerous APS proceedings. In preparation for his testimony in this case, he reviewed the DS 367 form, the arrest report, and the BAC results. He did not speak with Callan or otherwise determine the size of the pitcher of beer or the amount of alcohol Callan consumed on the night he was arrested. By relying on the blood test results and the PAS test indicators, Mr. Clardy opined the highest BAC level which Callan could have reached at the time he was observed driving was .078.
In support of his opinion, Mr. Clardy testified that he relied on the "measured absorption rate" and acknowledged that he did not consider when Callan last consumed alcohol before he was stopped. When asked what factors could change his opinion that Callans BAC was no more than .078 when driving, Mr. Clardy only mentioned the presence of saliva as potentially impacting the outcome of the PAS tests. Nonetheless, he testified that it did not affect his opinion that Callans BAC was no higher than .078 when stopped by Officer Stanley.
On April 5, 2002, the hearing officer issued the Administrative Per Se Notification of Findings and Decision determining: (1) Officer Stanley had reasonable cause to believe Callan was driving a vehicle while under the influence of alcohol; (2) he was lawfully arrested and (3) he was driving a vehicle with .08 percent or more by weight of alcohol in his blood. The hearing officer rejected Mr. Clardys testimony as "overly speculative, in that: He presented hearsay testimony to events that he was not present to observe." Accordingly, a suspension of Callans drivers license was reimposed.
On May 9, 2002, Callan filed a petition for a writ of mandate (Code Civ. Proc., § 1094.5) to set aside the suspension. He claimed that the DMV hearing officer abused her discretion by rejecting the proffered expert testimony from Mr. Clardy regarding the rising BAC.
In response, the DMV argued that the evidence established the requisite elements to render the three-hour presumption applicable. Section 23152, subdivision (b), in relevant part, provides: "In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving." Callan was stopped at 2:04 a.m., and his blood draw was completed at 3:08 a.m. Thus, the DMV argued that the presumption applied.
On August 20, 2002, at the hearing on the writ, the trial court issued its finding that the DMV hearing officer abused her discretion by failing to consider the expert opinion of Mr. Clardy. Specifically, the court concluded that "[b]ased on the failure of the hearing officer to properly apply the unobjectionable expert testimony of Mr. Clardy to rebut the 3-hour presumption under Ev. Code § 604, the weight of the evidence does not support the required finding of a BAC of .08% while driving and so the court grants the petition for writ of mandate and orders the DMV to set aside the departments order of license suspension." The DMV now appeals.
STANDARD OF REVIEW
In ruling on Callans petition for writ of mandate, the trial court had to determine, exercising its independent judgment, whether the hearing officers decision was supported by the weight of the evidence. (§ 13559; Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 309; McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 523.) "Our task on appeal is to determine `whether the evidence reveals substantial support, contradicted or uncontradicted, for the trial courts conclusion that the weight of the evidence does not support the DMVs suspension order. [Citation.] In making this determination, we must draw all legitimate and reasonable inferences in favor of the trial courts decision. [Citations.]" (Bell v. Department of Motor Vehicles, supra, 11 Cal.App.4th 304, 309.)
THE TRIAL COURTS FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE
In an attempt to challenge the trial courts findings, the DMV claims that Mr. Clardys testimony did not rebut the presumption because (1) he did not adequately address or even consider Callans drinking pattern, i.e., the amount of alcohol consumed or how quickly the alcohol was consumed; (2) his testimony erroneously assumed the PAS results were accurate; and (3) his opinion (Callans FS test performance was "fairly well") is at odds with Officer Stanleys opinion. We reject the DMVs claims for the following reasons.
Pursuant to section 23152, subdivision (b), there exists a rebuttable presumption that when a chemical test performed within three hours of driving shows a blood alcohol content of 0.08 percent or more, the driver had a BAC of 0.08 percent or more at the time of driving. "A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (a).) The presumption may be either conclusive or rebuttable. Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof. (Evid. Code, § 601.) "`A presumption affecting the burden of producing evidence requires the ultimate fact to be found from proof of the predicate facts in the absence of other evidence. If contrary evidence is introduced then the presumption has no further effect and the matter must be determined on the evidence presented. [Citation.]" (In re Heather B. (1992) 9 Cal.App.4th 535, 561; Evid. Code, § 604.)
Here, Callans blood was drawn and tested within three hours of driving. The results of the test indicated a 0.12 percent BAC. Accordingly, it was proper to presume that Callan was driving with a BAC of 0.08 percent. However, such presumption was rebuttable.
In order to rebut the presumption that he was driving with a BAC of 0.08 percent, Callan offered the expert testimony of Mr. Clardy. In forming his opinion, Mr. Clardy relied on the chemical test results which were offered into evidence by the DMV. Using the test results of Callans blood drawn at 3:08 a.m. and the PAS test results at 2:25 a.m. and 2:27 a.m., Mr. Clardy determined that Callans BAC was rising from the time he was stopped. By extrapolating the results over a timeline, he opined that the maximum BAC level at the time that Callan was driving was .078 percent.
Although the DMV challenges Mr. Clardys reliance on the PAS results, contending that he erroneously assumed they were accurate, we, like the trial court, reject this challenge. Mr. Clardy was an expert. "`An expert may generally base his opinion on any "matter" known to him, including hearsay not otherwise admissible, which may "reasonably . . . be relied upon" for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them." (People v. Carpenter (1997) 15 Cal.4th 312, 403.) An expert may rely upon the scientific tests performed by other experts. (Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 863.) Here, the test results were admitted into evidence in support of the DMVs reason for suspending Callans driving license. Thus, they were likewise available for use by Callans expert, Mr. Clardy, who used the information to support his opinion which rebutted the section 23152, subdivision (b), presumption.
Likewise, we reject the DMVs claim that Mr. Clardys opinion is not to be trusted because he did not adequately address or even consider Callans drinking pattern, i.e., the amount of alcohol consumed or how quickly the alcohol was consumed. Referring to the expert testimony in Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, the DMV criticizes Mr. Clardys testimony in this case. However, the Santos case is factually distinguishable from this case. In Santos, the expert did not know when Santoss blood was drawn and there were no PAS test results. Without knowing the time blood was drawn, the expert testified that there would be no way to determine what Santoss BAC was at an earlier time. (Id. at p. 543.) He explained that the effect of a given amount of alcohol varies depending on the weight of the subject, whether the subject had eaten, and what time he or she was stopped after having consumed alcohol. (Ibid.) Here, Mr. Clardy did not consider Callans drinking pattern. Instead, he considered the PAS test and blood test results, and the time the tests were taken, in reaching his opinion. We find nothing improper with Mr. Clardys reliance on such test results. The DMV has not offered, nor have we found, any authority which required Mr. Clardy to consider Callans drinking pattern in formulating his opinion.
Finally, the DMV criticizes Mr. Clardy for his opinion that Callans FS test performance was "fairly well." It notes that such opinion is at odds with Officer Stanleys opinion. Mr. Clardy testified as follows: "Im looking in, for example, the Leg Lift, the Heel To Toe. [A]ccording to the National Highway Traffic Safety Administration standards, he did fairly well. He didnt do perfect, but he did well. Hes . . . in the area where hed be . . . below a .10, but probably at the highest, an . 06 or .07. And his performance on the Sway (SIC) for example, on the Modified Position of Attention, he swayed front to rear. Alcohol causes (INAUDIBLE) to sway side to side. He only sees a front to rear sway and so if, if alcohols present, itd have to be at a low level, based on that. Below the level where a person would be impaired (SIC). The Finger to Nose Test, the touches arent exactly perfect, but they[] . . . appear to be within a finger width of the tip of the nose, which is consistent with alcohol-free people (SIC). So the overall performance on the field sobriety tests (INAUDIBLE) indicative of low levels of alcohol." In contrast to Mr. Clardys opinion, Officer Stanley opined that Callan was driving under the influence. However, the fact that Mr. Clardy provided an opinion which differed from Officer Stanleys does not mean that Mr. Clardys opinion must be rejected. It means that Mr. Clardy has offered evidence to rebut the section 23152, subdivision (b), presumption.
The determination of whether or not Callan was driving with a BAC of 0.08 percent or more is made based on circumstantial evidence, i.e., the results of Callans FS and blood tests. Given the results of his blood test, it was presumed that his BAC was 0.08 percent at the time he was driving. However, a presumption is not evidence (Evid. Code, § 600, subd. (a)) and that presumption disappeared when Mr. Clardy testified and provided another way to interpret Callans blood test in light of his prior PAS test results. Thus, in order to sustain the suspension of Callans driving privilege, the trial court had to determine that the weight of the evidence supported a finding that Callans BAC at the time he was driving was 0.08 percent or more. (Bell v. Department of Motor Vehicles, supra, 11 Cal.App.4th 304, 309.) Given the conflicting evidence (the officers interpretation of Callans FS tests versus Mr. Clardys opinion of the FS test results), the court concluded that "a finding by a preponderance of the evidence that Callan was driving a motor vehicle when he had 0.08 percent or more, by weight, of alcohol in his blood per Vehicle Code § 13558(c)(2) is impossible." Our job is to determine if there was substantial support for the trial courts conclusion. There was. We agree and find substantial evidence to support the trial courts decision.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J. and KING J. --------------- Notes: All further statutory references are to the Vehicle Code unless otherwise indicated.