Tuesday, September 11, 2007

DMV's alcohol report must be made at or near time of analysis

California DMV / DMV defense lawyer news:

For a California DUI blood test report to be admissible, even a 1 day lapse between the analysis and the report may be insufficient for the "at or near" requirement. There was no foundation to establish the lab report was produced by someone copying the actual results of the analysis.

California DUI / DMV defense attorney Ron Jackson did an excellent job here:

Filed 12/12/06 Certified for publication 1/10/07 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRENT ALLEN GLATMAN,
Plaintiff and Respondent,
v.
GEORGE VALVERDE, as Director, etc.,
et al.,
Defendants and Appellants.
G036880
(Super. Ct. No. 05CC10862)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Derek W.
Hunt, Judge. Affirmed.
Law Offices of Ronald A. Jackson and Ronald A. Jackson for Respondent.
Bill Lockyer, Attorney General, Jacob A. Applesmith, Assistant Attorney
General, Elizabeth Hong and Celine M. Cooper, Deputy Attorneys General, for
Appellants.
2
The Department of Motor Vehicles (DMV), George Valverde, DMV
director, and R. Sammartino, a DMV hearing officer (collectively, appellants), appeal
after a superior court judge issued a writ commanding the DMV to set aside its
suspension of Brent Allen Glatman’s driver’s license. Appellants contend the court erred
by finding the results of Glatman’s blood test were not timely recorded, as required by
Evidence Code section 1280, subdivision (b). 1 We affirm.
FACTS
On July 24, 2005, Officer J. Baggs stopped Glatman for speeding on
Pacific Coast Highway and observed Glatman exhibited “red watery eyes, slurred speech,
unsteady gait, [and] a strong odor of an alcoholic beverage.” Glatman stated “he had
consumed 4-5 bottles of beer.” He failed several field sobriety tests administered by
Baggs and was arrested by Baggs pursuant to Vehicle Code section 23152, subdivision
(a) (driving under the influence of alcohol). Glatman surrendered his driver’s license to
Baggs and was notified he could request a hearing to challenge the suspension of his
license.
A forensic alcohol examination report (the Forensic Report) prepared by
the Sheriff-Coroner Department’s Forensic Science Services on August 1, 2005, reflected
the following: At 12:30 a.m. on July 25, one hour after Glatman’s arrest, his blood was
drawn for a blood-alcohol concentration (BAC) test. That same day a forensic analyst at
1 All statutory references are to the Evidence Code unless otherwise stated.
Section 1280 provides: “Evidence of a writing made as a record of an act, condition, or
event is not made inadmissible by the hearsay rule when offered in any civil or criminal
proceeding to prove the act, condition, or event if all of the following applies: (a) The
writing was made by and within the scope of duty of a public employee. (b) The writing
was made at or near the time of the act, condition, or event. (c) The sources of
information and method and time of preparation were such as to indicate its
trustworthiness.”
3
the sheriff-coroner’s department analyzed the blood sample and determined Glatman’s
BAC was 0.137. The next day another sheriff-coroner’s forensic analyst analyzed the
sample and determined Glatman’s BAC was 0.135. The two analysts certified these test
results by their signatures dated August 1, 2005, on the Forensic Report, one week after
Glatman’s blood was drawn.
In September 2005, at an administrative per se hearing held before a DMV
hearing officer, Glatman’s counsel objected to the admission into evidence of the
Forensic Report on hearsay and other grounds. Under section 1280’s hearsay exception
for records made by public employees, the Forensic Report was admissible if, among
other requirements, “[t]he writing was made at or near the time of the act, condition, or
event,” as required by subdivision (b) of that section. Glatman’s counsel argued, inter
alia, that suspension of Glatman’s license was unjustified because his BAC tests were not
recorded at or near the time of the blood analysis. The hearing officer suspended
Glatman’s license for one year, finding, inter alia, the certification of the blood test
results was timely.
Glatman petitioned the superior court for a writ of mandate. At the hearing
on the petition, the DMV relied on two reports to establish Glatman’s BAC was greater
than the statutory requisite of .08 percent for driving under the influence of alcohol: (1)
the Forensic Report; and (2) the field sobriety test report of breath tests (preliminary
alcohol screen tests) administered by Officer Baggs showing Glatman’s BAC was 0.132
and 0.122. The court stated the Forensic Report was untimely and the field sobriety test
report might be inadmissible. The court directed the parties to further brief the issue.
After considering the supplemental briefing, the court granted the petition and issued the
writ commanding the DMV to set aside its suspension of Glatman’s license.
4
DISCUSSION
The Court did not Err in Finding the Forensic Report was Untimely
Appellants contend the court erred in concluding Glatman’s blood test
results were not recorded at or near the time of the analysis of his blood sample. They
assert the analysts entered the test results into a computer database soon after completing
each analysis, and argue the “preparation of the [Forensic Report] on August
1, 2005 . . . was simply the retrieval of the recorded information from the computer
database.” Appellants further contend that section 664 “establishes a presumption that
[Glatman’s] blood alcohol test result was recorded in compliance with official duties.”
We review for abuse of discretion the court’s ruling the Forensic Report did
not meet the timeliness requirement of section 1280, subdivision (b). “A trial court has
broad discretion in determining whether a party has established [the] foundational
requirements [of section 1280]. [Citation.] Its ruling on admissibility ‘implies whatever
finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not
applicable here, unnecessary. [Citation.]’ [Citation.] A reviewing court may overturn
the trial court’s exercise of discretion ‘“only upon a clear showing of abuse.”’” 2 (People
v. Martinez (2000) 22 Cal.4th 106, 119-120 (Martinez).)
Applying this standard of review, we conclude the court did not abuse its
discretion in finding the Forensic Report, prepared “a week later,” was not made “‘at or
[near] the time of the event.’”3 Although appellants assert the analysts promptly entered
2 When ruling on a writ petition challenging an order suspending a driver’s
license, a trial court exercises its independent judgment. (Lake v. Reed (1997) 16 Cal.4th
448, 457.) Generally, an appellate court reviews the trial court’s findings for substantial
evidence. (Ibid.) Here, however, appellants challenge the court’s section 1280 ruling;
the abuse of discretion standard of review therefore applies.
3 The court acknowledged Glatman’s reliance on our opinion in Downer v.
Zolin (1995) 34 Cal.App.4th 578 (Downer), where we stated in a footnote that “a report
prepared nearly a week after the forensic tests were completed does not fall within the
statutory requirement that the report be prepared ‘at or near the time’ of the reported
5
the test results into a computer database, the record contains no support for this assertion.
The computer printout in the clerk’s transcript is dated September 6, 2005, one month
after the date of the Forensic Report. The printout contains no reference to the date on
which the test results were entered into the computer database. Indeed the printout does
not even contain both test results but rather a single, rounded-off result. The record is
also silent as to the recordation procedures followed by the sheriff-coroner’s department.
In short, there is no evidence that Glatman’s test results were recorded in a computer
database (or anywhere else) prior to August 1.
Appellants quote our Supreme Court’s observation in Martinez, supra, 22
Cal.App.4th 106, “that the timeliness requirement ‘is not to be judged . . . by arbitrary or
artificial time limits, measured by hours or days or even weeks.’” (Id. at p. 128.) But the
Martinez court also stated: “‘Whether an entry made subsequent to the transaction has
been made within a sufficient time to render it within the [hearsay] exception depends
upon whether the time span between the transaction and the entry was so great as to
suggest a danger of inaccuracy by lapse of memory.’” (Ibid, italics added.) The
Martinez court held the DMV’s “entry into CLETS [California Law Enforcement
Telecommunications System] of criminal information it receives does not depend on
memory, but simply involves a transfer of information from one form of storage — the
disposition reports — to another — the CLETS database. Under these circumstances, the
Department’s statutory recording duties are sufficiently specific to support the trial
court’s discretionary determination that the CLETS printout met the timeliness
requirement of the official records exception.” (Ibid.)
In contrast, the instant case presents a “danger of inaccuracy by lapse of
memory.” (Martinez, supra, 22 Cal.4th at p. 128.) Appellants concede that, if the
analysts relied on memory, “even a lapse of one day could cast serious doubt about
whether such recordation was made sufficiently ‘at or near’ the time of testing to be
event.” (Id. at p. 582.) The court noted, however, that the Downer statement was dictum
and Downer “was later disapproved by our Supreme Court in other respects.”
6
deemed trustworthy.” But appellants argue that, given the number of tests an analyst
performs each day, it is unreasonable to infer the analyst would try to retain all the test
results in his or her head. The only reasonable inference, according to appellants, is that
“labs have policies and procedures in place to ensure the timely recordation of such
results by analysts.” But an inference may be drawn only if the “proposed conclusion is a
reasonable, logical, and nonspeculative deduction from the facts proved.” (S. C.
Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 539, fn. 12.) Here, the
record is silent as to the department’s recordation policies and procedures, any automatic
recording capability of the testing equipment used, and the average number of tests
performed by an analyst each day.
Appellants rely on Komizu v. Gourley (2002) 103 Cal.App.4th 1001, where
an appellate court upheld a trial court’s finding that an alcohol analysis report was
reliable because “the wording of the report reflected a postponement, not in the recording
of the analysis, but merely in the typing of ‘a journal-type entry.’” (Id. at p. 1007.) Thus,
Komizu involved a transfer of data from one form of recordation to another (as in
Martinez, supra, 22 Cal.4th 106.). Here, in contrast, the Forensic Report’s wording sheds
no light on whether the test results were first recorded on a date earlier than August 1.
And while appellants point out the Forensic Report was prepared only five
working days after the date of Glatman’s arrest, memory is subject to erosion with every
day that passes, whether working or nonworking.
Alternatively, appellants contend section 664 creates a presumption the
analysts timely recorded the test results. Section 664 provides: “It is presumed that
official duty has been regularly performed.” Appellants argue that regulations
promulgated under Health and Safety Code section 100700 (governing laboratories
performing forensic alcohol analysis tests by or for law enforcement agencies) impose an
official duty on forensic analysts to properly record test results. But while those
regulations require laboratories to maintain records, they specify no deadlines or time
7
periods or timeliness requirements governing such recordation. In Yordamlis v. Zolin
(1992) 11 Cal.App.4th 655, the Court of Appeal rejected “the DMV’s attempt to rely on
the presumption that an ‘official duty has been regularly performed . . .’ (. . . § 664) to
establish that [motorist] gave the blood sample within three hours of driving.” (Id. at
p. 661.) The Yordamlis court found “nothing in the language of [Vehicle Code section
21357] that ‘imposes any particular time requirement that can be assumed to have been
met pursuant to the presumption codified by . . . section 664.’”4 (Id. at p. 661.)
Appellants rely on Davenport v. Department of Motor Vehicles (1992) 6
Cal.App.4th 133 (Davenport), where an appellate court recognized a section 664
presumption. (Davenport, at p. 139.) In Davenport, the licensee objected at the
administrative hearing to the admission of the arresting officer’s sworn statement on the
grounds “the document failed to establish that the breath test given to him was given in a
correct manner, that the machine used for the test was operating properly, or that the
officer who administered the test was properly trained.” (Id. at p. 138.) The hearing
officer sustained the order of suspension; the trial court denied the licensee’s petition to
set aside the order. (Id. at pp. 138-139.) The Court of Appeal affirmed the trial court’s
denial of the petition, and recognized a presumption under section 664 that chemical tests
“were administered in compliance with statutory and regulatory requirements.”
(Davenport, at p. 139.) Critical to the Davenport decision, however, were the existence
of a statute and regulations promulgated thereunder which imposed an official duty on
law enforcement officers “to perform blood-alcohol analyses by methods devised to
assure reliability.” (Id. at p. 141.) In another significant distinction from the instant case,
Davenport involved subdivision (c) of section 1280, which mandates that “sources of
information and method and time of preparation” of writings be trustworthy, not the
timeliness requirement of subdivision (b) of section 1280. (Id. at pp. 142-143.)
4 Nor does Vehicle Code section 23612’s mandate that blood test results be
sent to the DMV within 15 calendar days of the date of arrest have any bearing on
whether analysis results were timely recorded.
8
Finally, appellants argue the summary nature of administrative per se
hearings militate against requiring forensic analysts to testify. But there are other ways
of evidencing the prompt recordation of test results, short of analysts testifying — for
example, preparing a laboratory report soon after completing a test, or at least providing
evidence the analysts’ results were truly entered into the computer database immediately
and only printed out later.
The court did not abuse its discretion in finding the Forensic Report was
not prepared at or near the time of the recorded event, as required under section 1280,
subdivision (b). 5
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O’LEARY, J.
5 We need not address appellants’ further contention the court erred in
concluding the evidence did not support a finding Glatman drove with a BAC of at least
0.08 percent, because that contention is predicated on Appellants’ assumption the test
results in the Forensic Report were admissible.
Filed 1/10/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRENT ALLEN GLATMAN,
Plaintiff and Respondent,
v.
GEORGE VALVERDE, as Director, etc.,
et al.,
Defendants and Appellants.
G036880
(Super. Ct. No. 05CC10862)
O R D E R
Respondent has requested that our opinion, filed on December 12, 2006, be
certified for publication. It appears that our opinion meets the standards set forth in
California Rules of Court, rule 8.1105(c). The request is GRANTED. The opinion is
ordered published in the Official Reports.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O’LEARY, J.