Thursday, March 20, 2008

Need evidence recording was done at or near time of blood test analysis in California DUI - DMV cases

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Filed 2/19/08 Sullivan v. Valverde CA2/6

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARK FRANCIS SULLIVAN, JR.,
Plaintiff and Appellant,

v.

GEORGE VALVERDE, as Director, etc.,

Defendant and Respondent.
2d Civil No. B193938
(Super. Ct. No. CIV 240286)

(Ventura County)


The Department of Motor Vehicles (DMV) suspended the driver's license of Mark Francis Sullivan, Jr. following his arrest for driving with a blood alcohol concentration (BAC) of .08 percent or more. (Veh. Code, § 13353.2, subd. (a)(1).)1 He appeals from the denial of his petition for a writ of mandate to vacate the suspension. We affirm.

FACTS AND PROCEDURAL HISTORY

California Highway Patrol Officer Alcantar was on duty in Ventura County after midnight. While traveling westbound on Thousand Oaks Boulevard, he observed appellant driving a Chevrolet Camaro approximately 10 car lengths ahead in the No. 1 lane. Alcantar watched as the Camaro drifted towards the right side of the roadway where it straddled the broken white lines between the No. 1 and No. 2 lanes for approximately five seconds, before changing into the No. 2 lane. Approximately four seconds later, the Camaro drifted slowly towards the left side of the roadway where it straddled the broken white lines between the No. 1 and No. 2 lanes for approximately six seconds. Alcantar then conducted an enforcement stop.

Alcantar approached the car and smelled a strong alcoholic odor. He asked how much alcohol appellant had consumed, and he answered "nothing." His speech seemed to be slurred and his eyes were red and watery. Alcantar asked appellant to step out of the car, and noticed that his gait was unsteady.

After conducting a series of field sobriety tests, Alcantar concluded that appellant was under the influence of alcohol and placed him under arrest for violation of section 23152, subdivision (a). Among the tests performed was a Horizontal Gaze Nystagmus in which appellant "displayed [a] lack of smooth pursuit, early onset, with sustained and distinct nystagmus at maximum deviation." While performing the Romberg Stand, appellant opened his eyes 17 seconds into the test and estimated 29 seconds to be 30 seconds. On the Romberg, the one-legged stand and the walk and turn, appellant swayed from side to side one to two inches from his center mass.

Alcantar informed appellant of "implied consent" (§ 23612) and appellant requested a blood test. He was driven to the hospital where he provided a sample. An analysis of his blood revealed a BAC of .12 percent.

The DMV held an Administrative Per Se hearing regarding the suspension of appellant's license and issued findings that he had been driving with a BAC of .08 percent or more; Officer Alcantar had reasonable cause to stop him; and the arrest was lawful. His license was suspended for four months. Appellant challenged his suspension through a petition for writ of administrative mandate in the superior court. At the hearing on the writ petition, he argued that the suspension should be vacated because (1) Officer Alcantar lacked reasonable cause to make a traffic stop, and (2) the results of the blood test were unreliable and inadmissible.

The trial court rejected these arguments and denied the petition stating, "The court finds that there was reasonable suspicion for Officer Alcantar to detain [appellant] to ascertain whether he was driving under the influence of alcohol. The weaving observed by the arresting officer was sufficient basis for any reasonable person to suspect that a crime may have been occurring. The detention of petitioner was reasonable and lawful." The court found that the laboratory report was properly received into evidence.

DISCUSSION

Legality of Arrest

On appeal, we determine whether the trial court's factual findings were supported by substantial evidence and independently review its legal determinations. (Lake v. Reed (1997) 16 Cal.4th 448, 457.) The DMV may only suspend a driver's license for driving under the influence if the person was placed under lawful arrest. (§ 13557, subd. (b)(2); Gikas v. Zolin (1993) 6 Cal.4th 841, 847.) "Even if the circumstances are as consistent with lawful activity as with criminal activity, the officer may still rightly 'inquire into such circumstances "in the proper discharge of the officer's duties."' [Citation.] "'The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.'"" (Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476-477.)

Appellant argues that his arrest was unlawful because Alcantar lacked reasonable cause to make a vehicle stop. He claims he did nothing more than straddle a lane line, and cautiously change lanes. Appellant asserts that there was no indication in the reports that he was speeding or driving erratically. His argument is without merit. It was not necessary for Alcantar to observe such behavior before making a stop. He was entitled to inquire into the circumstances of appellant's driving pattern in the proper discharge of his duties.

The trial court did not err when it ruled that appellant was properly detained and that his arrest was lawful.

Blood Alcohol Test

Appellant argues that the license suspension must be vacated because the forensic alcohol analysis report did not satisfy the foundational requirements of the official records hearsay exception under Evidence Code section 1280.

Section 1280 provides a hearsay exception for a writing when it is (a) made by and within the scope of duty of a public employee; (b) made at or near the time of the act, condition or event; and (c) the source of information and method and time of preparation were such as to indicate its trustworthiness. Appellant argues that prongs (b) and (c) were not met--the report was not made "at or near" the time his blood was tested; and the report was not trustworthy because it failed to identify the individual who performed the analysis.

Appellant was arrested on January 7, 2006. His blood sample was tested by the Ventura County Sheriff's Department Crime Laboratory. Their report reflected that the sample was received on January 10, and tested on January 11. In fine print on the bottom left hand corner of the page was a notation that the report was approved and released on January 24, 2006.

The laboratory report was signed by Eileen Boyd, Forensic Alcohol Supervisor. She declared under penalty of perjury that the blood analysis "was performed during the regular course of my duties, . . . I am a licensed FORENSIC ALCOHOL SUPERVISOR . . . I am qualified to perform these analyses pursuant to title 17 of the California Code of Regulations, and that the equipment used in arriving at the results was in proper working order at the time this analysis was performed and that the recording of the analysis was done at the time of the analysis."

The trial court determined that the laboratory report was properly admitted by the administrative hearing officer. We review the trial court's ruling on a timeliness requirement under section 1280, subdivision (b) for an abuse of discretion. (People v. Martinez (2000) 22 Cal.4th 106, 119-120; see also Glatman v. Valverde (2006) 146 Cal.App.4th 700, 703 & fn. 2.) Where "there is a laboratory report of chemical test results, the burden is on the licensee to demonstrate the test was not properly performed." (Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1933.)

Appellant speculates that the language in the report suggests that the test could have been performed by another person and approved by Ms. Boyd after the fact. He contends that, if the report was properly admitted, there must nevertheless be a foundational document prepared after the initial testing before the January 24, 2006 report was issued, because it is unlikely a forensic examiner could recall the results of various tests performed over a two-week period. He claims the burden was on the DMV to produce that foundational document, if one existed.

Relying on Glatman, appellant argues that the BAC was not timely recorded because two weeks had elapsed between Ms. Boyd's testing of the sample and the release of the report. In Glatman, the trial court found that a laboratory analysis that was recorded five days after the testing did not satisfy the requirement that the recording of the lab test was made "at or near the time" the analysis was conducted, and should have been excluded by the hearing officer. (Glatman v. Valverde, supra, 146 Cal.App.4th at p. 706.)

Glatman, however, concerned a computer printout which showed no reference to the date the tests results were entered into the computer database, and was silent as to the requisite recordation procedures. (Glatman v. Valverde, supra, 146 Cal.App.4th at p. 704.) Here, the laboratory report indicated the date the sample was received and tested. It contained Ms. Boyd's statement under penalty of perjury that the she was qualified to perform the test, the equipment was in working order, and "the recording of the analysis was done at the time of the analysis." The fine print at the bottom of the page indicating the approval and release date of the document is not determinative of the date the BAC analysis was performed and recorded.

There is no bright line test for determining when a writing must be made under Evidence Code section 1280. "[T]he timeliness requirement 'is not to be judged . . . by arbitrary or artificial time limits, measured by hours or days or even weeks.'" (People v. Martinez, supra, 22 Cal.4th at p. 128.) Where, as here, the results of the blood test are certified by a licensed forensic alcohol supervisor, we presume that her official duty was regularly performed. (Evid. Code, § 664.) The presumption under Evidence Code section 664 shifted to appellant the burden of producing evidence at the DMV hearing that the tests were not properly performed or reported accurately. (Martinez, at p. 125.) California courts have applied the Evidence Code 664 presumption of regular performance of official duty in finding that proffered evidence satisfies the foundational requirements of the official records exception. (Martinez, at p. 125; Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 141-143.)

Appellant offered no evidence to show that the laboratory was not licensed under title 17 of the California Code of Regulations or that it was not authorized to conduct the blood test in question. There is no basis for appellant's argument that there was a two-week interval between the date of the analysis and the date of the report. Both the trial court and the DMV could properly rely on the rebuttable presumption that an official duty was regularly performed as a basis for finding that the method of analysis and preparation of the report satisfied Evidence Code section 1280, subdivisions (b) and (c).

The report was properly received into evidence and supported the decision to suspend appellant's driving privileges.

Vehicle Code Section 21658

Appellant asserts there was no basis for the enforcement stop because he did not violate section 21658, governing unsafe lane changes.2 He argues that the statute does not prohibit "lane straddling" and there is no evidence to support the finding of the administrative hearing officer that he was "weaving" between the lanes. Appellant claims that the only evidence of "weaving" was the administrative hearing officer's finding to this effect.

We reject appellant's arguments for several reasons. He was not stopped for a suspected violation of section 21658, but because he appeared to be under the influence of alcohol. (§ 23152, subd. (a).) No allegation was made that he was arrested for making unsafe lane changes. Secondly, there was sufficient evidence to support the finding that he was "weaving." Page one of the administrative decision lists the evidentiary basis for its findings on the objective symptoms of intoxication. One item of evidence was the officer's sworn statement in which Alcantar stated that he observed appellant "weaving out of the No. 1 and No. 2 lanes . . . ."

Appellant claims that the DMV "did not address the ambiguity in, or interpretation of [section] 21658," and asks us to determine the type of conduct prohibited by the statute. We decline his invitation to engage in statutory construction. The application of section 21658 is wholly irrelevant to the facts before us. In light of our conclusions, we need not address appellant's remaining arguments.

Request for Judicial Notice

Appellant filed a request for judicial notice of 22 documents, most of which are either duplicative of the administrative record, or irrelevant. Among them was a letter from the DMV denying as untimely his request for a rehearing. We cannot consider appellant's arguments regarding this document because it is based upon events that occurred in the superior court after the administrative law judge issued its decision. His request for judicial notice is therefore denied.

The judgment is affirmed. Costs on appeal are awarded to respondent.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.




James P. Cloninger, Judge

Superior Court County of Ventura

______________________________

Sullivan Taketa LLP, Mark F. Sullivan, Lascher & Lascher, Alfred Vargas, for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Silvia M. Diaz, Supervising Deputy Attorney General, Gabrielle H. Brumbach, Deputy Attorney General, for Defendant and Respondent.



1 All further statutory references are to the Vehicle Code, unless otherwise stated.



2 Vehicle Code section 21658 provides, "Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: [¶] (a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety."


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.