Opinion
G037090
12-6-2006
CRAIG HITCHMAN, Plaintiff and Appellant, v. GEORGE VALVERDE, as Director, etc., Defendant and Respondent.
Law Offices of David E. Swanson and David E. Swanson for Plaintiff and Appellant. Bill Lockyer, Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Laura Lee Gold, Stephen A. Mesi and Gary S. Balekjian, Deputy Attorneys General, for Defendant and Respondent.
INTRODUCTION
Craig Hitchman appeals from the trial courts denial of his petition for writ of mandate. Hitchman had sought to set aside the Department of Motor Vehicless (DMV) suspension of his driving privilege for one year, after a hearing officer found Hitchman drove a motor vehicle when he had a blood alcohol level of .08 percent or higher in violation of Vehicle Code section 23152, subdivision (b). (All further statutory references are to the Vehicle Code.) The hearing officer at the administrative per se hearing and the trial court on review of the hearing officers decision both found that Hitchmans expert witnesss testimony regarding Hitchmans blood alcohol level at the time he was driving his vehicle was speculative and thus insufficient to rebut the presumption set forth in section 23152, subdivision (b). Hitchman contends the finding that the experts testimony was speculative is not supported by substantial evidence. We disagree and affirm.
BACKGROUND
I.
Hitchmans Arrest for Driving with a Blood Alcohol Level of .08 Percent or Higher
The following facts are gleaned from California Highway Patrol (CHP) Officer B. Parkss reports entitled "Age 21 and Older Officers Statement," "Driving Under the Influence Arrest—Investigation Report," and the Los Angeles County Sheriffs Departments "Certification of Blood Alcohol Results." All three documents were provided to the hearing officer at the administrative per se hearing.
On June 28, 2005 at approximately 11:55 p.m., Officer B. Parks, who was riding in a patrol car driven by CHP Officer J. Farner, saw Hitchmans vehicle in the number two lane of the westbound side of the Interstate 10 freeway. Parks observed Hitchmans vehicle "having a hard time maintaining its lane position" and watched as "it drifted in and out of the #2 lane, crossing over the delineators th[at] divide the #2 lane with the #1 and # 3 lanes." Parks saw the "vehicles tires drift[] approximately 1 to 2 feet into the #1 and #3 lanes on 3 separate occasions." Farner activated the forward red lights of the patrol car, but there was no immediate response from the vehicle. Farner then activated the patrol cars "full Code-3 lights," and, after about 10 seconds, Hitchmans vehicle slowed and began to yield to the right. Parks used the patrol cars public address system to advise Hitchman to exit the freeway. Hitchman complied and stopped his vehicle after exiting the freeway.
Parks contacted Hitchman through the open drivers side window. Parks smelled the "distinct odor of an alcoholic beverage coming from within the vehicle." When asked whether he drank an alcoholic beverage before driving, Hitchman stated, "`I had a couple of cocktails." Parks told Hitchman that "because of his driving and the fact [Parks] could smell the odor of an alcoholic beverage coming from within the vehicle [Parks] wanted him to answer some questions and perform some Field Sobriety Tests." Hitchman agreed and was cooperative. As Hitchman stepped out of his vehicle and walked toward the curb, Parks noticed he was unsteady on his feet and appeared to sway as he walked. Parks observed, "[a]s Hitchman stood before me, I could smell the distinct odor of an alcoholic beverage coming from his person, I noticed that his eyes were red and watery and his speech was slurred." Hitchman told Parks he had two cocktails earlier that night, between 7:00 p.m. and 9:00 p.m. Hitchman said he did not feel the effects of the drinks.
Parks noticed Hitchmans pupils were unequal in size. Parks further observed, "Hitchman failed to follow simple instructions and displayed signs of impairment while performing the FST[s] [field sobriety tests]. Based on his inability to follow simple instructions, his signs of impairment while performing the FST[s], his objective signs of intoxication and his driving, I determined that Hitchman was under the influence of an alcoholic beverage and was unable to safely operate a motor vehicle." Parks arrested Hitchman; Hitchman submitted to a blood test at 12:55 a.m. The chemical test showed Hitchmans blood alcohol level at .089 percent.
II.
Administrative Per Se Hearing
An administrative per se hearing regarding Hitchmans driving privileges was held in October 2005. The scope of the hearing was limited to three issues: (1) did Parks have reasonable cause to believe Hitchman was driving a vehicle in violation of section 23152 or 23153; (2) was Hitchman lawfully arrested; and (3) was Hitchman driving a vehicle when he had a .08 percent or more by weight of alcohol in his blood.
Hitchman testified that on June 28, 2005, he drank a martini at 7:30 p.m. He said he had a second martini at 8:30 p.m. and started drinking a third martini around 9:40 p.m. He stated he ate "[a] lot of food" while he was drinking his second and third martinis; he finished eating around 10:20 p.m. About 10:40 p.m., Hitchman began drinking another drink that he was told was high-grade, high quality vodka over ice. He finished that drink around 11:30 p.m. He then got into his car and was driving home when he was stopped by Parks and Farner.
Dewayne Beckner testified as an expert witness on Hitchmans behalf. Before his retirement from the sheriffs department, Beckner had managed the laboratory that conducted the chemical test on Hitchmans blood. Beckner stated that the laboratory used head space gas chromatography, which has an analytical uncertainty factor of plus or minus .005, to test the blood alcohol level of Hitchmans blood. Beckner testified, "[i]n reality this means that anyone who achieves a .08 is just as likely to be a .075 or a .085. And one would actually have to speculate where the true level lies. In other words we have a very precise determination of a substance that has uncertainty that goes beyond the precision of the, of the measurement. So all we can say is at the time that the blood was drawn, Mr. Hitchmans blood alcohol level at that point was somewhere between a .075 [and] a .085. No one will ever know for sure where it lies." He was certain that the chemical test itself was otherwise accurate.
Beckner also testified that Hitchmans blood alcohol level had been rising after he was stopped but before his blood was drawn. Beckner testified that "alcohol concentrations do not remain stable in the human body. They are in a constant state of change. They are either going up or they are coming down, and if you are apprehended by the police within a reasonably short period of time after you have stopped drinking, and especially if you have been eating, your blood alcohol level at the time you are apprehended will be lower than it will be when you are finally chemically tested. . . . Conversely, if you stopped drinking hours prior to the apprehension, most likely your blood alcohol level will be higher at the time of driving than it will be at the time you are . . . tested or blood is extracted from you." Beckner stated, "I also know that . . . if Mr. Hitchman stopped drinking as he has indicated here, there is no way that last drink would be absorbed into his body until about an hour or maybe even more after he stopped drinking." He further stated, "the last drink especially had no chance of, to be absorbed. Based on the amount of food that he has consumed, . . . its going to take probably an hour and a half or maybe even longer for that drink to be absorbed."
Beckner stated Hickmans blood alcohol level at the time he was driving was most likely .06 percent. He based that estimate on (1) the assumption the .08 percent blood alcohol level was "the end point of his blood alcohol concentration," (2) how much Hitchman said he ate and drank, and (3) Hitchmans weight. He opined Hitchmans testimony "is all very consistent and very truthful testimony about what one would drink over [a] period of this time and ultimately achieve a .08."
Beckner added, "you cannot look at field sobriety tests and performance and establish a relationship with a specific blood alcohol level. But you can look at them and see if [it] is more consistent with impairment or consistent with sobriety. I think they are more consistent with sobriety. They werent performed perfectly, but some of these tests were done quite well, and to me, it is consistent with someone who would have a very low blood alcohol level." He stated, "I am thinking less than .08 because most people are impaired at .08, and he showed some very good performance on a lot of these tests." Beckner did not conduct any independent tests on Hitchman, stating "it wouldnt do me any good to do so because . . . achieving a blood alcohol level after consuming [a] substantial amount of food is a wide variable. He could repeat this process on another day and get a totally different blood alcohol level."
Following the consideration of documents submitted by the DMV, Hitchmans testimony, and Beckners testimony, the hearing officer made findings of fact that were recorded in the notification of findings and decision. The hearing officer found there was probable cause to stop Hitchman, Parks had reasonable cause to believe Hitchman was driving a motor vehicle while under the influence of alcohol, Hitchman had been lawfully arrested, and the blood chemical test results showed Hitchman had a blood alcohol level of .08 percent. The hearing officer further found that "based on the lack of sufficient evidence to rebut the chemical test results, it is hereby determined that [Hitchman] submitted to and completed a chemical test of his blood, with a result of 0.08% B.A.C. [blood alcohol concentration] at 12:55 AM on 6/29/05."
The hearing officer stated Beckners expert testimony "was presented [and] considered" but "since it was all speculative [and] not based on known or reliable sources, it is given very minimal weight." The hearing officer further stated Beckners testimony "was overly speculative, in that: he stated one would have to actually speculate where the true level lies. His opinion was the BAC was between .075%-.085%, at time of the draw, assuming the chemical test was accurate. Alcohol concentration do[es] not remain stable in the body. He stated he did not conduct an independent study that could validate his opinion of .06% at time of driving. He offered no formula as to how he formed the opinion of .06% at time of driving. The sources of information he used to form his opinion are unknown and unreliable, thereby making the totality of his testimony all speculation." The hearing officer also noted Hitchman testified against his own interest and was therefore deemed credible because he admitted to not being truthful with Parks by stating he had two drinks, he had good recall of the events, and his demeanor was professional.
The hearing officer concluded, "it is determined that the preponderance of evidence in this case supports that [Hitchman] was driving a motor vehicle at the time that the concentration of alcohol in his blood was at or above 0.08%." Hitchmans driving privilege was suspended for one year.
III.
Writ Petition
Hitchman filed a petition for an alternative writ of mandamus ordering the DMV to set aside and revoke the suspension of his driving privilege. Hitchman argued he submitted evidence in the form of expert testimony that his blood alcohol level was rising at the time of driving—and was actually below . 08 percent at the time he was stopped by the officers. He argued that evidence shifted the burden of proof regarding blood alcohol level back to the DMV, requiring it to produce additional evidence to establish Hitchmans blood alcohol level at the time of driving was .08 percent or more. But, he argues, the DMV did not do so.
The trial court denied Hitchmans petition, stating "[t]here is substantial evidence supporting the findings of the hearing officer, and the findings support the decision. The hearing officers finding that the expert testimony was speculative was supported by the evidence, and the hearing officer was entitled to disregard it. [Citation.] The petitioner failed to rebut the presumption of [section] 23152[, subdivision] (b). Therefore, in exercising its independent judgment, the Court denies the Petition for Writ of Mandate." Judgment denying Hitchmans petition for writ of mandate was entered; Hitchman appealed.
STANDARDS OF REVIEW
The trial court exercises its "`independent judgment" in the "judicial review of administrative decisions of the [DMV] which suspend a drivers license . . . ." (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 394.) "In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
"After the trial court has exercised its independent judgment upon the weight of the evidence, an appellate court need only review the record to determine whether the trial courts findings are supported by substantial evidence." (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10.) "`"`In reviewing the evidence . . . all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible . . . . When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court."" (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72.)
DISCUSSION
"It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." (§ 23152, subd. (b).) The DMV must "immediately suspend the privilege of any person to operate a motor vehicle" if the person was "driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood." (§ 13353.2, subd. (a)(1).)
Section 23152, subdivision (b) further provides, "[i]n 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." The appellate court in Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 144 explained the presumption is rebutted "[i]f the licensee shows, through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed," and the burden shifts to the DMV "to prove that the test was reliable despite the violation."
The rebuttable presumption set forth in section 23152, subdivision (b) applies not only to criminal proceedings, but also to administrative hearings. (Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 312 ["application of the presumption in administrative hearings is necessary to effectuate the Legislatures express intent in enacting the administrative per se statutes"].)
Here, Hitchman does not argue any official standards with regard to the chemical testing of his blood were unobserved. Instead, Hitchman contends he rebutted the presumption that his blood alcohol level was .08 percent at the time he was driving by producing Beckners expert testimony showing: (1) the chemical test performed on Hitchmans blood has a margin of error of plus or minus .005; and (2) Hitchmans blood alcohol level must have been less than .08 percent at the time he was stopped by the officers in light of Hitchmans testimony regarding what, how much, and when he drank alcohol that night. Hitchman contends the hearing officer erred by finding the experts testimony "`overly speculative" and insufficient to rebut the presumption of section 23152, subdivision (b).
The question presented, therefore, is whether substantial evidence supported the trial courts conclusion the hearing officer correctly found the experts testimony speculative. First, it does not matter whether Beckners testimony that the chemical test has an analytical uncertainty factor of plus or minus .005 was speculative. Even if his testimony on that point had been accepted, it would show Hitchmans blood alcohol level was at least .084 percent because the chemical test results showed a blood alcohol level of .089 percent.
Second, we agree substantial evidence shows that Beckners testimony stating Hitchmans blood alcohol level was less than .08 percent and most likely .06 percent was speculative, and that the hearing officer was justified in giving it "very minimal weight." (See Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58 [how much weight an expert opinion should be given is determined by the trier of fact, who may reject it if in his or her judgment the reasons given for it were unsound]; Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 ["[w]here an expert bases his conclusion . . . upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value"].)
Beckner explained his opinion that Hitchmans blood alcohol level was less than .08 percent and most likely .06 percent at the time he was stopped was based on the assumption that . 08 percent was the end point of Hitchmans blood alcohol level, how much alcohol Hitchman drank that night, how much he ate, and his weight. Beckner did not explain how he calculated a .06 percent blood alcohol level based on those qualitative factors.
Hitchmans testimony about what he drank and ate was far from precise or reliable. Hitchman testified that he did not prepare the three martinis or the vodka beverage he drank that night. He testified that he ate "[a] lot of food" as he drank his second and third martinis. Hitchman did not describe what he considered to be a lot of food. Beckner did not explain why he assumed Hitchmans .08 percent blood alcohol level should have been considered as the end point of his blood alcohol concentration that night. Beckner testified that if Hitchman had stopped drinking at 11:30 p.m., the last drink would not have absorbed into his body "until about an hour or maybe even more after he stopped drinking." Based on that statement, Hitchmans last drink would have been fully absorbed at 12:30 a.m., about 25 minutes before his blood was drawn. It would therefore follow from Beckners testimony that Hitchmans blood alcohol level was decreasing over the course of the 25 minutes leading up to the time his blood was drawn, thereby undermining Beckners use of the .08 percent blood alcohol level figure as the end point. Beckners use of the .08 percent blood alcohol level figure as the end point blood alcohol level was supported by his other testimony that "[b]ased on the amount of food that he has consumed, . . . its going to take probably an hour and a half or maybe even longer for that drink to be absorbed." As discussed ante, however, the record is not clear about the amount of food Hitchman consumed that night.
Because the record shows Beckners testimony was speculative, it was insufficient to rebut the presumption that Hitchmans blood alcohol level was .08 percent, pursuant to section 23152, subdivision (b). Hitchman did not produce any other evidence at the hearing to rebut the presumption. The order of suspension of his driving privilege was supported by the weight of the evidence.
Hitchman argues the hearing officer erred by concluding that the "rising blood alcohol defense" is speculative. Citing Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537 (Santos), he argues, "[c]ourts have repeatedly observed that . . . a persons blood alcohol level rises for a period of time after drinking, and that a subsequently administered blood test therefore may reflect a level higher than the actual level at the time of driving." But the record does not show that either the hearing officer or the trial court rejected Beckners testimony based on the conclusion the rising blood alcohol defense in general is speculative. The record shows the hearing officer determined Beckners testimony that Hitchmans blood alcohol level must have been under .08 percent at the time he was driving, based on the applicability of the rising blood alcohol defense, was speculative. The trial court determined the evidence supported the hearing officers conclusion.
In any event, Santos, supra, 5 Cal.App.4th 537, 548 is distinguishable from this case because, there, the DMV failed to produce evidence regarding the time Santoss blood sample was collected or analyzed. That omission "fatally undercut[] the [DMV]s argument that [Santos]s blood-alcohol level at the time of driving was proven by virtue of the rebuttable presumption stated in section 23152, subdivision (b)." (Id. at p. 549, fn. 8.) The Santos court summarized the experts testimony in that case as follows: "[B]lood-alcohol level rises for a period of time after a drink is consumed, so that a test administered shortly after consumption would reveal a lower blood-alcohol level than a test performed when the alcohol had reached its maximum level. Additionally, the effect of a given amount of alcohol varies depending on the subjects weight and amount of food consumed. Based on [Santos]s testimony regarding amounts and times of alcohol and food consumed, her expert testified that he believed her blood-alcohol level would have been less than 0.08 percent at the time of driving because at least the last drink she consumed would not yet have been absorbed." (Id. at p. 548; see also id. at pp. 543-544.)
Whether Santoss experts testimony was in any way speculative was not an issue before the court, and we therefore do not know the full extent of that experts testimony. In fact, the appellate court noted the trial court might not have relied on the experts opinion Santoss blood alcohol level was under . 08 percent in reaching its decision: "The [DMV] did not rebut [Santos]s evidence that the test results failed to prove her blood-alcohol level at the time of driving was 0.08 percent or higher and, in fact, that her blood alcohol level at the time of driving was less than 0.08 percent. Whether or not the trial court accepted this evidence to the point of believing [Santos]s blood-alcohol level was in fact lower than 0.08 percent at the time of driving, it is obvious that the laboratory test results failed to provide a piece of information critical to a determination of the level of alcohol in [Santos]s blood at the time of driving. While the absence of evidence of the time [Santos]s blood sample was taken did not render the test result inadmissible, without such evidence the [DMV] simply could not meet its burden of proof." (Santos, supra, 5 Cal.App.4th at p. 549, fn. omitted.)
We observe that in a footnote the Santos court stated in dicta, "even if [Santos]s blood was drawn within three hours of her arrest, the presumption stated in section 23152, subdivision (b), is a rebuttable one and [Santos] did offer evidence to rebut it." (Santos, supra, 5 Cal.App.4th at p. 549, fn. 8.) Presumably the appellate court is referring to the experts testimony which might not have suffered from the same defects as the expert testimony in the instant case.
Because we conclude the record supports the conclusion Beckners testimony was speculative, we do not need to decide whether expert testimony regarding rising blood alcohol levels is appropriate to rebut the presumption set forth in section 23152, subdivision (b).
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
We Concur:
RYLAARSDAM, Acting P. J.
ARONSON, J.