Monday, May 12, 2008

Odor of Alcohol insufficient to support Under 21 License Suspension Action without proper California DUI PAS foundation + proper calibration proof

California DUI attorney news

May 12, 2008

Filed 7/6/05 Nazerian v. Gourley CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MILAD F. NAZERIAN,
Plaintiff and Appellant,
v.
STEVEN GOURLEY, as Director, etc.,
Defendant and Respondent.
2d Civil No. B174066
(Super. Ct. No. 1131394)
(Santa Barbara County)
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.)1 We
reverse and remand with instructions.
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)
1 All statutory references are to the Vehicle Code.
2
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 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 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."
3
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 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,
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
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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 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 "[i]t'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 evidence was
5
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.2
The DMV opposed appellant's petition, arguing that Corporal Bowman's
testimony 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
2 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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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 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.)
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 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
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competent and qualified. (People v. Williams (2002) 28 Cal.4th 408, 417; 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.3 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 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.
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. 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
3 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.
8
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 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, a level below that required by section 23136.
9
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." 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
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consent law. (See §§ 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.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
YEGAN, J.
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James W. Brown, Judge
Superior Court County of Santa Barbara
______________________________
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 General, for Defendant and Respondent.

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