Filed 6/11/15 Joseph v. Dept. Motor Vehicles CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



JASON LAWRENCE JOSEPH,

         Plaintiff and Respondent,                                       E059062

v.                                                                       (Super.Ct.No. CIVDS1211667)

DEPARTMENT OF MOTOR VEHICLES,                                            OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.

Reversed.

         Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney

General, and Michael E. Whitaker and Michael J. Hui, Deputy Attorneys General, for

Defendant and Appellant.

         Rodney Gould for Plaintiff and Respondent.

         Defendant and appellant Department of Motor Vehicles (DMV) suspended the

driving privileges of plaintiff and respondent Jason Lawrence Joseph for violating

Vehicle Code section 23136, which prohibits a person under the age of 21 from driving a
                                                             1
vehicle with a blood-alcohol concentration (BAC) of 0.01 percent or greater, as measured

by a preliminary alcohol screening (PAS) test or other chemical test. The officer who

pulled Joseph over administered two PAS tests. The first indicated a BAC of 0.771

percent; the second indicated a BAC of 0.081 percent.

       An administrative hearing officer upheld the suspension, a decision that Joseph

challenged in the trial court by petition for writ of mandate. The trial court granted

Joseph’s petition, finding among other things that the disparity between the results

yielded by the two PAS tests rendered both inherently unreliable.

       DMV contends on appeal that the trial court’s ruling was an abuse of discretion.

We agree, and therefore reverse the trial court’s decision to grant the petition for writ of

mandate.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

       On the evening of August 14, 2012, at approximately 11:24 p.m., a police officer

pulled Joseph over after observing him driving the wrong way on a one-way street. On

that date, Joseph was under the age of 21. The officer observed Joseph’s eyes to be

bloodshot and watery, and detected a mild odor of alcohol emitting from his breath and

person. Joseph told the officer that he had not been drinking.




                                              2
       The officer administered two PAS tests.1 The first, administered at 11:30 p.m.,

indicated a BAC of 0.771 percent. The second, performed with a different machine of

the same type 15 minutes later, indicated a BAC of 0.081 percent.

       Joseph was cited for violating Vehicle Code section 23136 by driving a vehicle

while under 21 years of age and with a BAC of 0.01 percent or greater, driving the wrong

direction on a one way street, and for not having proof of insurance. He was also served

with an “Administrative Per Se Suspension/Revocation Order And Temporary Driver

License” (APS order) based on the results of the PAS tests. The APS order notified

Joseph that his driving privileges would be suspended for one year or revoked for two or

three years, effective 30 days from the issue date of the APS order, and informed him of

his right to challenge the suspension by requesting a hearing.

       Joseph requested a hearing to review the suspension of his driving privileges, as

allowed under the terms of the APS order and Vehicle Code section 13558. (Veh. Code,

§ 13558, subd. (a) [“Any person, who has received a notice of an order of suspension or

revocation of the person’s privilege to operate a motor vehicle . . . may request a hearing

on the matter . . . .”].) At the hearing, on September 26, 2012, a calibration officer—not

the officer who pulled defendant over—testified that both of the machines used to


       1 “A PAS device is a breath-testing instrument used to determine either the
presence or concentration of alcohol in a person’s blood. . . . A PAS test is differentiated
from mandated chemical testing of a suspect’s blood-alcohol level (BAL) after a lawful
arrest under the implied consent law.” (People v. Bury (1996) 41 Cal.App.4th 1194,
1198.) A PAS test is a “field sobriety test,” which does not satisfy a driver’s obligation
to submit to a blood, breath or urine test under the implied consent law. (Veh. Code,
§ 23612, subds. (h), (i).)

                                             3
administer PAS tests were working properly. The calibration officer acknowledged that

the 0.771 percent result on the first PAS test seemed implausible, stating that the highest

result he had previously heard of was “probably a .3 something.” He proposed three

possibilities for what caused the anomalous result: the machine not working properly, the

test not being administered properly, or the officer who administered the test making a

mistake when recording the result. He conceded, however, that the theory of a mistake in

recording the result did not adequately account for the 1 in the third position after the

decimal point.

       The arresting officer did not testify at the hearing; he was not subpoenaed to

testify. His observations and the results of the PAS tests he administered were submitted

to the DMV, and admitted into evidence at the hearing, on an “Under Age 21 Officer’s

Statement” form, often referred to by the parties by the form’s number, DS 367M.

       Joseph called an expert witness, who characterized himself as “a DUI expert

witness, or forensic alcohol consultant.” The expert added a fourth possibility regarding

the cause of the anomalous first PAS test result: “mouth alcohol” contamination, that is,

“the situation where there’s alcohol in the mouth that got there from some source other

than deep lung air,” such as medications, breath spray, or a “gastric event where vapors

from the stomach can come up.” In the expert’s opinion, neither PAS test could be

considered reliable; the first because of the “unbelievable” result, the second because the

result was “not corroborated.” The expert also posited that when the officer obtained the

new machine for the second test, there must have been some “interruption of

observation” of the defendant. The expert suggested that during that interruption, “the

                                              4
person could have burped or belched,” thereby replenishing the level of mouth alcohol,

and raising “a lot of question marks” about the reliability of the test for purposes of

measuring BAC.

       In a written order issued October 8, 2012, the hearing officer found the

preponderance of the evidence supported the suspension of defendant’s driving

privileges, and re-imposed the suspension of defendant’s driving privileges.

       Joseph challenged the hearing officer’s decision by means of petition for writ of

mandate, filed November 2, 2012, which was heard by the trial court on April 26, 2013.

The trial court, exercising its independent judgment, disagreed with the hearing officer,

and granted Joseph’s petition. Judgment was entered on May 13, 2013.

                                      II. DISCUSSION

A. Standard of Review.

       “In ruling on [Joseph’s] petition for writ of mandate, the trial court was required to

determine, by exercising its independent judgment, whether the hearing officer’s decision

was supported by the weight of the evidence. [Citations.] ‘When the trial court is

authorized to exercise independent judgment on the evidence, on appeal [we] need only

review the record to determine whether substantial evidence supports the trial court’s

findings. [Citations.]’ [Citations.]” (Baker v. Gourley (2000) 81 Cal.App.4th 1167,

1172 (Gourley) [Fourth Dist., Div. Two].) However, when a party challenges on appeal a

ruling that it failed to carry a burden of proof, the substantial evidence standard is

inappropriate, and “‘the question for a reviewing court becomes whether the evidence

compels a finding in favor of the appellant as a matter of law. [Citations.]’” (Sonic

                                              5
Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-

466.) We review rulings regarding admissibility of evidence for abuse of discretion, that

is, “‘whether or not the trial court exceeded the bounds of reason, all of the circumstances

before it being considered.’” (Molenda v. Department of Motor Vehicles (2009) 172

Cal.App.4th 974, 986.)

B. Analysis.

       The DMV contends that the trial court abused its discretion by determining that

the written statement by the arresting officer did not fall within the public records

exception to the hearsay rule (Evid. Code, § 1280), and by finding both PAS test results

to be “inherently unreliable,” and therefore inadmissible under People v. Adams (1976)

59 Cal.App.3d 559 (Adams). We agree, and therefore reverse.

       1. Overview of Statutory Scheme

       Joseph’s license was suspended pursuant to Vehicle Code section 23136, which is

part of an administrative suspension procedure, whereby a person who is determined to

have been driving with a prohibited amount of alcohol in his or her blood has driving

privileges suspended without the need for a conviction for a criminal offense. (Lake v.

Reed (1997) 16 Cal.4th 448, 454.) “‘[T]he express legislative purposes of the

administrative suspension procedure are: (1) to provide safety to persons using the

highways by quickly suspending the driving privilege of persons who drive with

excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a

prompt administrative review of the suspension; and (3) to place no restriction on the

ability of a prosecutor to pursue related criminal actions.’” (Ibid.)

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       Vehicle Code section 23136 provides, among other things, 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.” (Veh. Code, § 23136, subd. (a).) Section 23136 is a “zero tolerance

law” designed to penalize the presence of alcohol in the blood of anyone under the age of

21 who operates a motor vehicle. (Coniglio v. Department of Motor Vehicles (1995) 39

Cal.App.4th 666, 677 (Coniglio), abrogated on other grounds as recognized by Molenda,

supra, 172 Cal.App.4th at p. 999, fn. 6.) “[B]y setting the prohibited blood-alcohol level

at the lowest detectable amount, [section 23136] penalizes the consumption of alcohol,

contemporaneous with the driving of an automobile.” (In re Jennifer S. (2009) 179

Cal.App.4th 64, 72 (Jennifer S.).) “[T]he goal of section 23136 was to enhance public

safety, and indirectly, to discourage minors from consuming any alcohol before driving.”

(Bobus v. Department of Motor Vehicles (2004) 125 Cal.App.4th 680, 685 (italics

added).) A zero tolerance law violation is subject only to civil penalties, to be

administered by the DMV. (Coniglio, supra, at p. 673.)

       A peace officer who has reasonable cause to believe that a person is in violation of

Vehicle Code section 23136 must ask that person to take a PAS test to determine the

presence of alcohol in the person. (Veh. Code, § 13388, subd. (a).) If the person

complies and the test reveals a BAC of 0.01 percent or greater, the officer must serve the

person with a notice of order of suspension of the person’s driving privilege, confiscate

the person’s driver’s license, issue a temporary license, and send the DMV a “sworn

report of all information relevant to the enforcement action . . . .” (Veh. Code, §§ 13380,

                                             7
subd. (a); 13388, subd. (b).) The sworn statement must be made on official DMV forms.

(Veh. Code, § 13380, subd. (b).)

       At an administrative hearing challenging a suspension, the DMV bears the burden

of proof. (Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536.) The

evidentiary standards, however, are somewhat relaxed. An administrative hearing before

the DMV “does not require the full panoply of the Evidence Code provisions used in

criminal and civil trials.” (Petricka v. Department of Motor Vehicles (2001) 89

Cal.App.4th 1341, 1348.) In most respects, Government Code section 11513, which

applies to administrative hearings generally, governs the admission of evidence. (Lake v.

Reed, supra, 16 Cal.4th at p. 458.) Except as specifically provided, “[a]ny relevant

evidence shall be admitted if it is the sort of evidence on which responsible persons are

accustomed to rely in the conduct of serious affairs, regardless of the existence of any

common law or statutory rule which might make improper the admission of the evidence

over objection in civil actions. (Gov. Code, § 11513, subd. (c).) “Hearsay evidence may

be used for the purpose of supplementing or explaining other evidence but over timely

objection shall not be sufficient in itself to support a finding unless it would be

admissible over objection in civil actions.” (Id., subd. (d).)

       2. The Arresting Officer’s Sworn Statement Was Admissible Pursuant to an

Exception to the Hearsay Rule.

       Evidence Code section 1280 provides an exception to the hearsay rule for public

employee records meeting certain requirements. Section 1280 provides that written

hearsay evidence is admissible if “(a) the writing was made by and within the scope of

                                              8
duty of a public employee; (b) the writing was made at or near the time of the event, and;

(c) the sources of information and the method and time of its preparation were such as to

indicate its trustworthiness.” (McNary v. Department of Motor Vehicles (1996) 45

Cal.App.4th 688, 695; see Evid. Code, § 1280.) Evidence Code section 664 creates “a

rebuttable presumption that an official duty has been regularly performed.” (Gourley,

supra, 81 Cal.App.4th at p. 1172; see Evid. Code, § 664.) Thus, “once the DMV presents

competent evidence in the form of documents contemplated in the statutory scheme to

establish its prima facie case, the licensee must produce competent affirmative evidence

of the nonexistence of the presumed facts sufficient to shift the burden of proof back to

the DMV.” (Gourley, supra, at p. 1172; see Jackson v. Department of Motor Vehicles

(1994) 22 Cal.App.4th 730, 739 (Jackson) [licensee must show officer “failed in his duty

to observe and report correctly the event described”].)

       Here, the sworn statement of the arresting officer is admissible evidence under

Evidence Code sections 1280 and 664. (See, e.g., Imachi v. Department of Motor

Vehicles (1992) 2 Cal.App.4th 809, 815.) The officer had a duty to make the writing.

(See Veh. Code, § 13380, subd. (a) [requiring peace officer to submit to the DMV a

sworn report of “all information relevant to the enforcement action” after service of

notice of suspension pursuant to Veh. Code, § 13388].) The report was signed and dated

August 15, 2012; Joseph was pulled over shortly before midnight on August 14, 2012.

And there is nothing in evidence that suggests the officer “failed in his duty to observe

and report correctly the event described.” (See Jackson, supra, 22 Cal.App.4th at p. 739.)

Although Joseph has contested the reliability of the PAS tests described in the report, he

                                             9
has not argued that the results themselves, or the other relevant events, were inaccurately

reported in the officer’s statement.2 Thus, all of the elements of the public records

exception to the hearsay rule are satisfied, and to the extent the trial court found the

arresting officer’s sworn statement barred by the hearsay rule, that finding was erroneous

as a matter of law.

       3. The Result of the Second PAS Test Was Admissible.

       Having concluded that the arresting officer’s sworn statement was admissible

evidence, we turn to the question of whether the PAS test results described therein were

admissible. Even where an officer’s sworn statement is “admissible and competent

evidence under an exception to the hearsay rule . . . [e]ach matter sworn to must itself be

supported by an adequate foundation of personal knowledge by the officer and any other

appropriate guarantee of reliability, or that matter is not admissible and cannot be relied

upon.” (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 140

(Davenport).)

       The regulations promulgated for forensic alcohol analysis in sections 1215 through

1222.2 of title 17 of the California Code of Regulations (title 17 regulations) “establish a

       2  The trial court found no “reasonable basis” in the record to support the notion
that the 0.771 percent result for the first PAS test was the result of a “scrivener’s error.”
That factual finding is supported by substantial evidence; the result was recorded as 0.771
percent in more than one place on the arresting officer’s statement and the calibration
officer conceded in his testimony at the administrative hearing that the presence of the
third digit after the decimal point is unexplained by the scrivener’s error theory. This
factual finding, in the absence of any other affirmative evidence the officer failed in his
duty to accurately report the results he obtained from the PAS tests, compels the
conclusion that defendant failed to make any showing of the nonexistence of presumed
facts.

                                              10
standard for the competency of the results of blood-alcohol tests.” (Davenport, supra, 6

Cal.App.4th at p. 142.) The title 17 regulations, however, “apply to PAS tests that

determine the concentration of alcohol in the blood but not those that determine only its

presence.” (People v. Williams (2002) 28 Cal.4th 408, 414, fn. 2 (Williams).) For

purposes of determining whether a person has violated Vehicle Code section 23136, the

PAS test is administered to determine the presence of alcohol, not its precise

concentration in the blood. (See Coniglio, supra, 39 Cal.App.4th at p. 677.) Here,

therefore, the PAS tests administered by the arresting officer are “admissible upon a

showing of either compliance with the regulations set forth in Title 17 or the foundational

elements described in Adams, supra, 59 Cal.App.3d at p. 561, which include: (1)

properly functioning equipment, (2) a properly administered test, and (3) a qualified

operator.” (Molenda, supra, 172 Cal.App.4th at p. 1000.)

       With respect to the first test administered by the arresting officer, there was some

evidence that the Adams factors were satisfied; the calibration officer testified that the

machine used was working properly, and the arresting officer certified in a sworn

statement that he administered the test properly, and that he had been trained in the

operation of the testing device and administration of the PAS test.3 Furthermore, the


       3 Joseph objects that the arresting officer’s certification that he was “‘competent
and qualified’” to use the PAS testing device is a “boilerplate averment,” amounting to an
inadmissible legal conclusion, and insufficient to satisfy the third element of the Adams
analysis. This argument—arguably not raised with sufficient specificity below to avoid
waiver on appeal—ignores that the officer’s report to the DMV is statutorily required to
be made on official DMV forms. (Veh. Code, § 13380, subd. (b).) Furthermore, Joseph
presented no evidence tending to show the arresting officer lacked the necessary training
                                                                  [footnote continued on next page]

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statutory presumption that an official duty is regularly performed, codified at Evidence

Code section 664, applies with respect to the officer’s administration of the PAS test.4

(See McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 525-526

(McKinney) [“Given the statutory presumption that official duty has been regularly

performed (Evid. Code, § 664), the burden was on the person challenging the result . . . to

show that there was some irregularity in the administration of the test such as would

bring into question the reliability of the [blood alcohol level] readings.”]; Veh. Code,

§ 23136, subd. (c)(2) [requiring testing to be administered by peace officer having

reasonable cause to believe person had violated Veh. Code, § 23136, subd. (a)].)

        Here, however, there is affirmative evidence in the record tending to rebut the

statutory presumption that the first PAS test was “regularly performed” (Evid. Code,

§ 664), thereby undermining the DMV’s foundational showing. Both the calibration

officer and Joseph’s expert witness agreed that the 0.771 percent result was likely


[footnote continued from previous page]

and qualifications to perform the PAS test properly. He chose not to subpoena the
arresting officer so as to examine him regarding his training and qualifications, and he
offered no other affirmative proof tending to impeach the arresting officer’s training or
qualifications. As such, Joseph fails to overcome the presumption that the officer
“regularly performed” his official duty to obtain the appropriate training and
qualifications to administer the PAS test properly, a duty that may be inferred from the
explicit statutory requirement that a peace officer administer the test under certain
circumstances. (Evid. Code, § 664; Veh. Code, § 23136, subd. (c)(2).)

        4 Joseph’s argument that his due process rights are violated by requiring him to
rebut a presumption of reliability where title 17 regulations do not apply to the
administration of the PAS test is without merit. (See Davenport, supra, 6 Cal.App.4th at
p. 144 [“due process does not require the Department to have the initial burden of
establishing the reliability of chemical tests offered into evidence against the licensee”].)

                                             12
inaccurate. A reasonable inference derived from such a test result—combined with the

circumstance that the test subject was neither dead nor comatose—is that either the

testing machine malfunctioned or the arresting officer made a mistake in administering

the PAS test.5 The trial court therefore did not abuse its discretion by concluding that the

Adams factors were not satisfied with respect to the first PAS test, even if it could not be

determined definitively whether it was a glitch in the testing machine or an error in

administering the test that was the cause of the anomalous result.

       The record requires a different conclusion, however, with respect to the second

PAS test. The second test was conducted with a different machine than the first test.

Nothing about the result obtained—0.081 percent BAC—is implausible on its face. The

record reveals no affirmative evidence that the second testing machine was not

functioning properly, that the second test was not properly administered, or that the

arresting officer was not a “qualified operator” in the meaning of the third prong of the

Adams analysis. (Adams, supra, 59 Cal.App.3d at p. 561; see McKinney, supra, 5

Cal.App.4th at p. 525.) Joseph therefore has shown no irregularity in the administration

of the second PAS test such as would bring its reliability into question.

       Joseph’s expert witness proposed that the result of the second test, too, might have

been the result of mouth alcohol contamination, rather than a true reflection of BAC. The

expert conceded, however, that “15 minutes is usually enough time for [mouth] alcohol to


       5 Contrary to the trial court’s comment at oral argument, nothing about a single
anomalous result suggests that the officer who conducted the test was not trained and
qualified to administer the test, as required by the third prong of the Adams analysis.

                                             13
dissipate completely.”6 Here, there was a 15-minute interval between the administration

of the first and second PAS tests. The expert proposed Joseph “could have burped or

belched in the middle of that 15 [minute] observation period, and then you’ve replenished

some of that alcohol.” But there is precisely zero evidence—the expert’s speculation as

to what might have happened is not evidence— either that Joseph did “burp or belch”

during those 15 minutes, or that the officer’s observation of Joseph during the 15 minutes

was interrupted in any way, so as to allow such an event to occur without the officer

noticing.7 At most, Joseph’s expert’s testimony raises a possibility, based on speculation,

that the result of the second PAS test was the product of mouth alcohol, rather than a true

indication of BAC. Possibilities and speculation, however, are insufficient to rebut the

DMV’s foundational showing regarding the PAS test, for purposes of the Adams analysis.

(See Gourley, supra, 81 Cal.App.4th at p. 1174 [“mere possibility” that integrity of a

sample was compromised, raised by petitioner’s expert, insufficient to undermine

foundational trustworthiness of blood sample taken for forensic alcohol analysis].)

       Joseph’s expert also made much of his view that to have “scientific confidence” in

the results of a PAS test, two test results that “agree with each other” must be obtained.

       6Title 17 requires a 15-minute observation period prior to the collection of breath
samples. (See Cal. Code Regs., tit. 17, § 1219.3.)

       7   Moreover, if the alcohol in Joseph’s mouth was “replenished” from a burp or
belch during the period between the first and second PAS tests, that would tend to
indicate that he had in fact consumed alcohol previous to being pulled over, rather than
the first, anomalous result being from some innocuous possible source of mouth alcohol,
such as a breath spray. As noted, Vehicle Code section 23136 “penalizes the
consumption of alcohol, contemporaneous with the driving of an automobile.”
(Jennifer S., supra, 179 Cal.App.4th at p. 72.)

                                             14
The expert pointed out that the standards of procedure set by the title 17 regulations

require breath alcohol analysis to include analysis of two separate breath samples, and the

testing results “have to agree to within .02 of each other for it to be a valid test.” (See

Cal. Code Regs., tit. 17, § 1221.4.) As noted, however, the procedures required by title

17 do not apply to the administration of a PAS test in the circumstances of this case.

(Williams, supra, 28 Cal.4th 408, 414, fn. 2.) And it is not our role to second guess the

Legislature’s determination that a single PAS test is a sufficiently reliable indicator of the

presence of alcohol for purposes of enforcing the zero tolerance law codified in Vehicle

Code section 23136, regardless of whether such a result would be worthy of “scientific

confidence” for other purposes. (See Veh. Code, § 23136, subd. (b) [setting BAC limit

for purposes of the section at “0.01 percent or greater, as measured by a preliminary

alcohol screening test . . . .”].)

       In sum, given the absence of any nonspeculative, affirmative evidence

undermining the DMV’s foundational showing, the second PAS test was admissible

evidence, and the trial court abused its discretion by determining otherwise.

       4. The Trial Court’s Judgment in Favor of Joseph Must Be Reversed.

       The uncontroverted, admissible evidence presented by the DMV established that

Joseph was under the age of 21, and driving a vehicle with a BAC of greater than 0.01

percent as measured by a PAS test, thereby satisfying all the elements of a violation of

Vehicle Code section 23136. Put another way: No substantial evidence in the record

supports a finding that any of the elements of a section 23136 violation were not satisfied.



                                              15
The record therefore compelled a finding in favor of the DMV as a matter of law at the

administrative hearing, and the trial court erred by reversing the hearing officer’s ruling.

                                       III. DISPOSITION

       The trial court’s judgment granting Joseph’s petition for writ of mandate is

reversed. The trial court is directed to issue a new order denying the petition and

reinstating the DMV’s suspension order. Joseph shall pay DMV’s costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                         Acting P. J.
We concur:

       MILLER
                                  J.

       CODRINGTON
                                  J.




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