Monday, December 17, 2007

Cop makes mistake in under 21 California DUI / DMV case

California DUI attorney - Under 21 win

MILAD F. NAZERIAN, Plaintiff and Appellant, v. STEVEN GOURLEY, as Director, etc., Defendant and Respondent.


Civil No. B174066


COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX

2005 Cal. App. Unpub. LEXIS 5891


July 6, 2005
PRIOR HISTORY: Superior Court of Santa Barbara County. No. 1131394. James W. Brown, Judge.

CORE TERMS: driver, license, alcohol, calibration, suspension, blood alcohol, zero, concentration, margin of error, hearing officer, tolerance, driving, sworn, foundational, machine, tested, log, measured, saliva, hundred percent, administered, screening, allowable, training, replied, admissible, independent recollection, alcohol concentration, sworn statement, working order

COUNSEL: Law Office of Lee A. McCoy, Lee A. McCoy for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Silvia M. Diaz, Lead Supervising Deputy Attorney General, Dana T. Cartozian, Deputy Attorney Gen., for Defendant and Respondent.

JUDGES: COFFEE, J.; GILBERT, P.J., YEGAN, J. concurred.
OPINION BY: COFFEE

OPINION: Milad F. Nazerian appeals from the denial of his petition for a writ of mandamus which challenged the suspension of his driver's license for driving with a blood alcohol concentration of 0.01 percent or greater. (Veh. Code, § 23136.) n1 We reverse and remand with instructions.

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n1 All statutory references are to the Vehicle Code.

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Procedural and Factual Background

On May 10, 2003, at 2:01 a.m., Officer H. Williams of the Santa Barbara County Sheriff's Department stopped the vehicle driven by appellant after hearing the sound of amplified music coming from the vehicle more than 100 feet away, in violation of section 27007. Officer Williams detected an odor of alcohol on appellant, who was under the age of 21. The officer administered two preliminary alcohol screening (PAS) tests to appellant at 2:20 a.m. and 2:23 a.m., determined that appellant had violated section 23136 (the "zero tolerance law"), and issued an administrative order suspending his license based on the PAS test results.

Thereafter, appellant challenged the suspension of his license before the Department of Motor Vehicles (DMV). At the DMV hearing, the hearing officer admitted into evidence, among other documents, Officer Williams' sworn police report on form DS 367m, stating that he obtained the PAS test results in the regular course of his duties, administered the test in accordance with the manufacturer's guidelines and instructions, had received training on the proper operation of the device and administration of the test, and that [*3] the device was functioning properly at the time of the test. The officer's report, as explained below, erroneously recorded the PAS test results as 0.12 percent and 0.13 percent.

The hearing officer conducted the hearing by telephone, calling Officer Williams as the first witness. Officer Williams testified that he had received training in the academy on conducting DUI investigations for individuals under the age of 21 and took a 40-hour training class in April of 2001. In response to the hearing officer's question as to whether he was certified by his department to use the AlcoSensor IV, Officer Williams stated: "I don't know if I was specifically certified, but yes, I was authorized to do DUI investigations." The hearing officer clarified that he was using the term "certification" in a general manner, and then asked the officer if he was "expected to conduct DUI investigations as a normal part of [his] daily job routine." Officer Williams replied that he was expected to do so.

Officer Williams did not have a copy of his sworn DS 367m report with him when he testified by telephone. With admirable candor, he informed the hearing officer that he did not have an independent recollection [*4] of his investigation of appellant. The hearing officer inquired whether the officer could remember exactly what the PAS test results were that evening. The officer replied, "No. I have a very poor memory at this time."

During cross-examination, Officer Williams testified that he cited appellant for violating the zero tolerance law because his blood alcohol concentration (BAC) was not high enough to charge him with drunk driving. Appellant questioned the officer as to whether he had made a transcription error on his sworn DS 367m report in recording the PAS test results. Again with admirable candor, the officer acknowledged that he had made a mistake in recording the PAS test results, writing 0.12 percent and 0.13 percent instead of 0.012 percent and 0.013 percent. He testified the accurate results were 0.012 percent and 0.013 percent. Later, in response to the hearing officer's question as to whether he was "[one] hundred percent sure of the blood alcohol concentration," the officer replied, "Well, if there's a discrepancy in the report, then I couldn't say I'm [one] hundred percent sure because it sounds to me like I did make an error on that." The hearing officer then asked [*5] the officer if he was "[one] hundred percent sure [he had] made an error?" The officer replied that it sounded like he had "made a mistake."

Corporal Bowman testified that he has been the PAS coordinating officer of the sheriff's department for the last two years. During that time, he has tested all of the PAS machines on a consistent basis and has never noted any test that has been out of compliance. He testified that the particular PAS device used on appellant had not tested outside the allowable standard within the past six months. He explained that the PAS device has an acceptable range of error of plus or minus 0.01 percent. Each time he calibrates a device, he conducts two tests and records two readings. If the device being tested provides a reading outside the allowable range of 0.01, the device is deemed out of compliance. The results of his calibration testing were reflected on a calibration log which was admitted into evidence. He testified that the "dry gas column" on the calibration log reflects the control sample and the "read column" reflects the actual reading given by the device being tested.

Appellant presented the expert testimony of Darrell Clardy, a toxicologist, [*6] who holds bachelors' degrees in chemistry and biochemistry, and a master's degree in science and biological physics. Clardy previously worked for the Orange County Sheriff's Department for 10 years and was licensed by the state as a forensic alcohol supervisor.

Clardy testified that he is familiar with the PAS testing device, the AlcoSensor IV. He stated it reads about a 0.01 percent high due to the way it calculates the alcohol concentration. He stated, "there's also evaporation of alcohol from the saliva that adds to a breath sample coming from the lungs, because alcohol's distributed through all the water of the body. And when you are measuring breath alcohol from the lungs, there's an additional component that comes from the saliva that is not related to the alveolar alcohol concentration. And a breath concentration is elevated by approximately a .01 percent due to evaporation from the saliva."

Clardy further testified that, in appellant's case, "given the fact that the measured results most reasonably are in the area of a .01 percent, his true alcohol concentration would be between a zero zero [0.00] and a zero one [0.01]. He'd be less than a .01. It would probably be a [*7] little bit greater than a zero zero [0.00]." He added that he could not say with any degree of scientific certainty that the blood alcohol was over a .01. Given the way it measures breath alcohol and the impact of the saliva, he opined that "it's very certain that it was not a .01."

At the conclusion of the testimony, appellant argued the DMV had not met its burden of demonstrating that the PAS device was in proper working order, the test was properly administered, and the operator was competent and qualified. Appellant also argued the inherent rate of error of the device precluded a finding that he was driving with a BAC of 0.01 percent or more. He argued there was no legal basis for the suspension of his driving privilege.

The hearing officer suspended appellant's driver's license for one year, finding that the officer had reasonable cause to believe appellant had been driving a vehicle with a BAC of 0.01 percent or more as measured by the PAS tests.

Appellant then filed a petition for a writ of mandamus in the trial court, arguing that the hearing officer abused his discretion by admitting the PAS results without a sufficient showing of reliability. He also contended the [*8] evidence was insufficient to establish a violation of the zero tolerance law. He argued the uncontroverted expert testimony established that an AlcoSensor IV PAS device is scientifically incapable of measuring an exact blood alcohol level due to the additive effect of saliva and the manner in which the machine calculates blood alcohol concentration. He added that the margin of error of the device rendered the results of 0.012 percent and 0.013 percent meaningless for purposes of finding a violation of the zero tolerance law. n2

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n2 Appellant noted that the National Highway Traffic Safety Administration (NHTSA) of the United States Department of Transportation has adopted a 0.02 percent BAC as the zero tolerance threshold. (NHTSA, "Model Specifications for Evidential Breath Testing Devices," 49 Fed.Reg. 48854-48872 (Dec. 14, 1984), cited in Coniglio v. DMV (1995) 39 Cal.App.4th 666, 677, fn. 8 (Coniglio).)


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The DMV opposed appellant's petition, arguing that Corporal Bowman's testimony [*9] and Officer Williams' sworn statement and testimony satisfied the foundational elements required for admission of the PAS test results.

Following a hearing, the trial court denied appellant's petition, noting that "it is a close case." The court concluded the testimony of the two officers and the sworn statement of Officer Williams provided an adequate basis for believing the PAS test results were reliable and that appellant was driving with a BAC of 0.01 percent or greater.

On September 22, 2004, this court granted appellant's motion to stay the suspension of his driver's license pending this appeal.
Discussion

Appellant contends the suspension of his license must be set aside because insufficient evidence was presented in support of the finding that he was driving a motor vehicle with a BAC of 0.01 percent or greater. He argues the trial court and DMV erred by admitting the PAS test results without a proper foundation, and the uncontradicted evidence showed that the PAS device was incapable of functioning at the sensitivity level required to establish a violation of the zero tolerance law based on a blood alcohol reading of 0.01 percent.

In ruling on an application for [*10] a writ of mandate following an order of suspension, the trial court 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, 456-457.) On appeal, we review the record to determine whether the trial court's findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the trial court's decision. We independently review the trial court's legal determinations. (Ibid.; Thompson v. Department of Motor Vehicles (1980) 107 Cal. App. 3d 354, 358, 165 Cal. Rptr. 626.)

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, supra, 39 Cal.App.4th at p. 682.) Because [*11] the process is administrative, the evidentiary standards are somewhat relaxed. (Ibid.)

"It is permissible for the state to resort to summary suspension proceedings to regulate the use of the driving privilege and to protect the public against its abuse. . . . However, a driver's license is still a protectible property interest. . . . The considerations 'justifying summary proceedings are not so great as to allow the suspension of a license absent a showing by substantial competent evidence of facts supporting the suspension.'" (Coniglio, supra, 39 Cal.App.4th at p. 682, citations omitted.)

An officer's sworn statement that, when tested, a licensee's BAC was at a particular level is admissible, legally sufficient evidence that the BAC was indeed at that level if and only if there is a basis for believing that the device that measured blood alcohol was reliable. The foundational requirements for establishing the reliability of such test results consist of a showing that (1) the apparatus utilized was in proper working order; (2) the test was properly administered; and (3) the operator was competent and qualified. (People v. Williams (2002) 28 Cal.4th 408, 417; [*12] Conigilio, supra, 39 Cal.App.4th at p. 684.) It is the DMV's burden to show that the PAS test meets these general foundational requirements. (Coniglio, at p. 684.)

In the present case, the officer testified that he made a mistake in recording the PAS test results on his sworn report. The DMV does not contend the officer's sworn report, which erroneously lists the results as 0.12 percent and 0.13 percent, is admissible on the issue of the level of appellant's BAC.

As for the officer's oral testimony that the correct results of appellant's PAS tests were 0.012 percent and 0.013 percent, we conclude the foundational requirements for admitting this testimony are missing as well. n3 Although he testified that the correct results were 0.012 percent and 0.013 percent, it is clear from a reading of his entire testimony that he meant the results were "most likely" 0.012 percent and 0.013 percent. He testified that he had no independent recollection of his investigation of appellant, he could not remember the exact results of the PAS test, and he was not "[one] hundred percent sure" of appellant's BAC. His lack of independent recollection of the investigation and [*13] the PAS test results prevents the DMV from satisfying the second foundational element above, which includes as part of the proper administration of the test accurate reporting of the results.

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n3 The Attorney General contends that Corporal Bowman's testimony established that the machine was in working order, and the remaining two foundational elements (the proper administration of the test and the competence of the operator) were established by Officer Williams' testimony and his sworn report stating that he administered the PAS test in accordance with the manufacturer's guidelines and instructions, he had received training on the proper operation of the device and administration of the PAS test, and was competent and qualified to operate the device.

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Even assuming the officer's testimony was admissible to show that appellant's actual PAS test results were 0.012 percent and 0.013 percent, we would nevertheless conclude that this evidence was insufficient to show that appellant's BAC was 0.01 percent or greater. [*14] Both the DMV's expert and the defense expert agreed the PAS device operates with a margin of error of plus or minus 0.01 percent. The defense expert (Clardy) testified that the PAS device typically renders results on the high side because of the way it detects blood alcohol. In his opinion, given the margin of error and the way the machine calculates the BAC, appellant's BAC was most likely between 0.00 and 0.01 percent, not 0.01 percent or greater. Significantly, the calibration log relied upon by Corporal Bowman to establish the reliability of the PAS device used on appellant corroborates Clardy's testimony.

Appellant was tested on May 10, 2003. The calibration log shows that in 10 out of 20 calibration tests conducted between January 5 and June 30, 2003, the PAS device used on appellant rendered readings that were 0.004 percent or more higher than the actual control sample. On two of those occasions within one month of appellant's test, on April 16 and May 27, 2003, the device read a full 0.01 percent too high. This means that 50 percent of the time, the device reported a BAC reading of 0.004 percent or more too high. In four other tests conducted during this same period, the [*15] device rendered readings that were 0.004 percent or more lower than the actual control sample. This means that 70 percent of the time (in 14 out of 20 tests), the device rendered readings that were inaccurate by 0.004 percent or more. In 13 out of 20 of the calibration tests (65 percent of the time), the device rendered readings that were 0.001 percent or more greater than the actual control sample. In only one out of the 20 calibration tests conducted during this period did the PAS device render a reading that matched the actual control sample.

Although the calibration log shows that the machine was operating within its allowable margin of error, because appellant's PAS test results were so close to 0.01, i.e., 0.012 percent and 0.013 percent, a reasonable trier of fact could not find by a preponderance of the evidence that his BAC was 0.01 percent or greater. The calibration log shows that it is equally likely that appellant's BAC was below 0.01 percent. Indeed, if appellant's PAS test results were too high by 0.004 percent or more, as in 50 percent of the calibration test readings, appellant's true BAC that evening would have been no greater than 0.008 percent or 0.009 percent, [*16] a level below that required by section 23136. We conclude, therefore, that the evidence was insufficient to support the suspension of his license.

The fact that the officer detected an odor of alcohol on appellant, as stated on the officer's sworn DS 367m report, does not assist respondent. Section 23136 requires more than a finding of the presence of alcohol. The statute requires a finding that the driver had a BAC of 0.01 percent or more. Here, as noted above, it is equally likely that appellant's BAC was below 0.01 percent.

Respondent argues that had the Legislature intended to allow the margin of error of the PAS device to be considered in determining whether a driver has violated the law, the zero tolerance law would have been drafted differently. Respondent argues: "Notably, the statute does not read 'a blood alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, after allowing for the instrument's margin of error.'" We are not persuaded. Section 23136, subdivision (b) requires the trier of fact to find that the person has been driving "with a blood-alcohol concentration of 0.01 percent or greater." [*17] Given the property interest implicated by the loss of a driver's license, this finding must be made by a preponderance of the evidence. If we accepted respondent's argument that the margin of error of the machine may never be considered in evaluating the evidence, it is conceivable that the results of a PAS test rendered by a device operating outside the allowable margin of error could be used to support a finding that the driver's BAC was 0.01 percent or greater. Respondent's argument would also deprive a driver of a valid defense to a citation for violating the statute.

We also observe that had the Legislature intended to allow the suspension of a driver's license when "the presence of alcohol" is detected by a preliminary alcohol screening test, it could have said so in section 23136, subdivision (b). Instead, the statute requires a finding that the driver had a BAC of 0.01 percent or greater. The Legislature expressly allows the provisions of section 23136 to be enforced through the use of the PAS test most likely because of the convenience of the tool for law enforcement officers in the field and because of the express exemption of PAS devices from the implied consent law. (See [*18] §§ 23612, subds. (h) & (i); 23136, subd. (c)(3).) We do not read the permissive use of this device in section 23136 as authority for allowing an inaccurate BAC reading to support the suspension of a driver's license. The fact that law enforcement may use the device does not relieve the DMV of its burden of showing that the driver was in fact driving with a BAC of 0.01 percent or greater.

The judgment is reversed and this case is remanded to the trial court with instructions to grant appellant's petition and issue a peremptory writ commanding the DMV to set aside its order suspending appellant's driver's license. Appellant shall recover his costs on appeal.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

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