Filed 11/5/14 Gildsdorf v. Department of 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



BENJAMIN A. GILDSDORF,

         Plaintiff and Appellant,                                        E058683

v.                                                                       (Super.Ct.No. INC1208972)

DEPARTMENT OF MOTOR VEHICLES,                                            OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge.

Affirmed.

         Law Offices of Kenneth C. Gregory and Kenneth C. Gregory, for Plaintiff and

Appellant.

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

Attorney General, Chris A. Knudsen, and Terry R. Price, Deputy Attorneys General, for

Defendant and Respondent.




                                                             1
       At about 1:00 a.m. on October 12, 2012, Benjamin A. Gilsdorf1 was found passed

out in his truck blocking a driveway of a business with the engine still running.

Gilsdorf’s blood alcohol content (BAC) was tested one hour later and determined to be at

0.17 percent. After an administrative hearing, the Department of Motor Vehicles (the

Department) suspended his driver’s license, finding he had driven a motor vehicle while

having a BAC of 0.08 percent or more within the meaning of Vehicle Code section

13353.2, subdivision (a)(1). The trial court denied Gilsdorf’s petition for writ of mandate

challenging the suspension.

       Gilsdorf appeals the suspension. He argues that (1) admission of the blood

analysis report was error because it was prepared one week after the blood was tested; (2)

admission of the unsworn police report was error; and (3) reliance on the three-hour

presumption that he had a BAC of 0.08 percent or higher when he was driving was error

because there was no evidence of driving or the time he was driving.2

       We affirm the trial court’s order upholding the Department’s suspension of

Gilsdorf’s license.


       1       He is also referred to in the record as “Gildsdorf” but he insists the correct
spelling is Gilsdorf.

       2       Vehicle Code section 23152, subdivision (b), states, “[I]t is a rebuttable
presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her
blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight,
of alcohol in his or her blood at the time of the performance of a chemical test within
three hours after the driving.”



                                              2
                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

       According to the sworn police report submitted on a DS-367 form, to which

Gilsdorf has no objection on appeal, on October 12, 2012, at 1:12 a.m., Officer Mabanag

of the Indio Police Department responded to the location of 46920 Jefferson Street in

Indio. It was reported that a pickup truck was blocking the driveway of one of the

businesses. When Officer Mabanag arrived, he found Gilsdorf asleep behind the steering

wheel. Officer Mabanag reported that Gildsdorf had been asleep for about one hour. The

engine was still running. Officer Mabanag woke up Gilsdorf. He had bloodshot, watery

eyes. There was a strong odor of alcohol coming from the truck, his breath and his

person. Gilsdorf’s speech was slurred and his balance was poor. Gilsdorf was arrested

for driving with a BAC of 0.08 percent or higher which resulted in an automatic

suspension of his license.

       Gilsdorf requested an administrative per se hearing to contest the suspension of his

license. The hearing was conducted on November 20, 2012. The hearing officer had the

dual role of representing the Department and deciding the matter. Gilsdorf was

represented by counsel. At the hearing, the Department marked Exhibit 1, which was

Officer Mabanag’s sworn statement, as outlined, ante. Exhibit 2 was a police report

completed by Officer Mabanag one week after the incident. Exhibit 3 was a forensic




                                            3
alcohol analysis report (forensic report) prepared by Riverside Laboratory which found

Gilsdorf’s BAC was 0.17 percent.3

       Gilsdorf’s counsel objected to the admission of the exhibits. Gilsdorf’s counsel

objected to Exhibit 2 on “hearsay” and “foundational” grounds. Counsel noted that the

report was written on October 19, 2012, but the arrest was made on October 12, 2012.

He argued, “the requirements of Evidence Code 1280 timeliness is the subject should be

able to - - the (inaudible) was made at or near the time of the accusation or event.”

Counsel relied upon Glatman v. Valverde (2006) 146 Cal.App.4th 700 (Glatman) and

argued, “So the arrest report being seven days, seven days - - so written seven days after

the fact is untimely, and it’s not admissible pursuant to 1280 in Glatman v. Valverde.”

       As for Exhibit Number 3, Gilsdorf’s counsel objected on “hearsay” and

“foundation” grounds. He argued the test on Gilsdorf’s blood was untimely because the

forensic report showed that the day of the analysis of the blood was on October 23, 2012,

but the report was prepared on October 31. It was hearsay because it was untimely

prepared. Counsel additionally argued that it was not admissible as follows: “There’s no

evidence that the person that took this test - - on the bottle labeled is Aaron Marshall as

the criminalist who’s qualified to examine the blood and render a report as to the alcohol

level in the blood. [¶] Under Title 17 only specific people can give an exam, and that

would be forensic alcohol analysis, or forensic alcohol supervisor. There is no evidence




       3      The contents of these exhibits will be discussed in more detail, post.


                                              4
that a technician is qualified to render the report. Therefore, it lacks foundation, and it’s

also inadmissible.”

       The hearing officer did not rule on the objections at that time but took the issue

under submission. No sworn testimony was presented. Gilsdorf’s counsel also argued

there was no evidence that Gilsdorf was driving because there was no evidence of

volitional movement of the vehicle.

       On November 29, 2012, the hearing officer issued her findings. The findings of

fact as to driving were that Gilsdorf admitted to Officer Mabanag that he had been

driving and based on his high BAC, the three-hour presumption of driving under Vehicle

Code section 23152, subdivision (b) had not been rebutted.4 The hearing officer found as

to the chemical test, “As based on the lack of sufficient evidence to rebut the chemical

test results, it is hereby determined that [Gilsdorf] submitted to and completed a chemical

test of his blood, with a result of 0.17% B.A.C. at 01:51 AM on 10/12/12.” The hearing

officer also noted that Gilsdorf did not present any affirmative evidence that he was not

driving within the three hours. It concluded, “The Department may reasonably infer the

time of driving from the facts in evidence. In that, [Gilsdorf] was found leaning up [sic]

the driver’s window asleep, the vehicle park [sic] blocking the exit of the Valley Animal

Clinic, the engine was running and [Gilsdorf] stated he was tired, just resting and would

be driving home soon. It is reasonable to infer the time between driving, and the arrival

of the officer, was very short. Additionally, there is no evidence showing delay from the

       4      The finding of fact that defendant had admitted driving was erroneous as
the police report clearly states that Gilsdorf denied he was driving.


                                              5
time of the dispatch call, to the time of the chemical test; therefore, the three hour

presumption has not been rebutted.”

       Gilsdorf challenged the decision by filing a petition for writ of mandate on

December 21, 2012. He again argued that the documents presented were hearsay and

lacked foundation. Once again he argued that there was no evidence as to either the fact

or time of driving, the unsworn statement of Officer Mabanag should not have been

admitted, and the BAC results should have been excluded.

       A hearing on the petition was conducted in the trial court on April 8, 2013. The

trial court initially expressed concern that the evidence of driving was “vague” and it was

unclear if driving occurred three hours prior to the chemical test. The trial court then

noted that it had not realized that the engine in the truck was still running when Officer

Mabanag arrived at the scene. The trial court noted that “[b]ecause how long would the

engine run? Wouldn’t you sort of run out of gas after a while? And that does tend to

support the inference that there had been driving not long before.” Gilsdorf’s counsel

argued that the hearing officer chose to take the shortcut that there was a three-hour

presumption of driving. However, counsel argued that the Department could not prevail

on the presumption without meeting the statutory prerequisite that the time of driving was

established.

       Counsel for the Department argued that circumstantial evidence supported that

Gilsdorf was driving with a BAC of 0.08 percent or higher. Gilsdorf’s counsel argued

that there was no evidence of dissipation of the alcohol presented by the Department.




                                              6
The trial court responded that it was not a reasonable inference that he had less than a

0.08 percent BAC when driving when two hours later he had a 0.17 percent BAC.

       The trial court denied the petition for writ of mandate as will be discussed in more

detail, post. Judgment was entered on May 7, 2013.

                                             II

                      RELEVANT LAW AND STANDARD OF REVIEW

       “[A] person arrested for driving under the influence of alcohol, and who is

determined to have a prohibited amount of alcohol in his or her blood, must have driving

privileges suspended prior to an actual conviction for a criminal offense.” (Lake v. Reed

(1997) 16 Cal.4th 448, 454 (Lake).) The statutory procedure for such a suspension prior

to a criminal conviction is called the “‘administrative per se’” law. (Ibid.) The licensee

may request an administrative hearing on the merits of the suspension. (Veh. Code, §

13558, subd. (a).)

       An administrative hearing before the Department “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.) At the administrative

hearing, the Department “shall consider its official records and may receive sworn

testimony.” (Veh. Code, § 14104.7.) Government Code section 11513 addresses the

admission of evidence generally in administrative hearings. (Lake, supra, 16 Cal.4th at p.

458; Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 987.) That

section provides in pertinent part as follows: “The hearing need not be conducted

according to technical rules relating to evidence and witnesses, except as hereinafter


                                             7
provided. Any 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. An objection is

timely if made before submission of the case or on reconsideration.” (Id. at subd. (d).)

         “In this hearing, the DMV bears the burden of proving by a preponderance of the

evidence certain facts, including that the driver was operating a vehicle with a blood-

alcohol level of 0.08 percent or higher. [Citations.]” (Manriquez v. Gourley (2003) 105

Cal.App.4th 1227, 1232; see also Lake, supra, 16 Cal.4th at pp. 455-456, 463 [in order to

sustain an order of suspension, the Department must prove at the hearing, by a

preponderance of the evidence that (1) the peace officer had reasonable cause to believe

that the licensee had been driving a motor vehicle with a BAC of 0.08 percent or more;

(2) the licensee was placed under arrest; and (3) the licensee was driving a motor vehicle

when he or she had 0.08 percent or greater BAC].) “The DMV may satisfy its burden via

the presumption of Evidence Code section 664.5 [Citation.]” (Manriquez, supra, at p.

1232.)



         5   Evidence Code section 664 states that “[i]t is presumed that official duty
has been regularly performed.”


                                              8
       Vehicle Code section 13559, subdivision (a) allows the licensee to file for review

in the superior court if he is unsuccessful at the administrative hearing. In reviewing the

matter, “If the court finds that the [D]epartment exceeded its constitutional or statutory

authority, made an erroneous interpretation of the law, acted in an arbitrary and

capricious manner, or made a determination which is not supported by the evidence in the

record, the court may order the [D]epartment to rescind the order of suspension or

revocation and return, or reissue a new license to, the person.” (Ibid.) The “court is

required to determine, based on its independent judgment, ‘“whether the weight of the

evidence supported the administrative decision.”’ [Citation.]” (Lake, supra, 16 Cal.4th

at pp. 456-457.) “The administrative findings come before the superior court with a

‘strong presumption of correctness,’ and the burden rests on the petitioner to establish

administrative error. [Citation.]” (Hildebrand v. Department of Motor Vehicles (2007)

152 Cal.App.4th 1562, 1568.)

       On appeal, we review the record to determine whether the trial court’s findings are

supported by substantial evidence. (Lake, supra, 16 Cal.4th at p. 457.) We resolve all

evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the

trial court’s decision. (Ibid.) Where the evidence supports more than one inference, we

do not substitute our judgment for the trial court’s. (Ibid.) We may overturn the trial

court’s factual findings only if the evidence before the trial court is insufficient as a

matter of law to sustain those findings. (Ibid.)




                                               9
                                             III

                                  FORENSIC REPORT

       Gilsdorf first contends that admission of the forensic report showing he had a

BAC of 0.17 percent should have been excluded because (1) the report was not

admissible as a public record under Evidence Code section 1280 because it was not

created at or near the time of the event; and (2) it was not performed by a person qualified

under Title 17 of the California Code of Regulations.

       A.     Additional Factual Background

       According to the forensic report, the blood sample was received by Riverside

Laboratory on October 17, 2012. The “DATE ANALYSIS COMPLETE” was

“10/23/2012.” The “DATE OF REPORT” was “10/31/2012.” It was signed by Aaron

Marshall who was a “criminalist.” The report provided a result that Gilsdorf had a BAC

of 0.17 percent. The report included the following declaration: “I, the undersigned,

declare under penalty of perjury. (1) I am employed by the State of California,

Department of Justice, Bureau of Forensic Services (BFS); (2) I am qualified to engage in

forensic alcohol analysis as a Forensic Alcohol Supervisor, Analyst, or as a Trainee under

supervision pursuant to Title 17 of the CA Code of Regulations;6 (3) I performed an




       6       “Title 17 establishes the procedures for determining ‘the concentration of
ethyl alcohol in samples of blood, breath, urine, or tissue of persons involved in traffic
accidents or traffic violations.’” (Hernandez v. Gutierrez (2003) 114 Cal.App.4th 168,
172.)



                                             10
analysis of the material described above during the regular course of my duties according

to approved laboratory procedures; (4) The recording of the analytical results was done at

the time the analysis was performed and included creation of contemporaneous

documentation; (5) Any opinions, interpretations, or conclusions in this report are based

upon data in the associated laboratory case record; (6) This laboratory report has been

prepared and retained by BFS in the normal course of business according to BFS’s

regular practices and procedures. This Laboratory is accredited by American Society of

Crime Laboratory Directors/Laboratory Accreditation Board.”

       The hearing officer ruled as to the BAC test, “As based on the lack of sufficient

evidence to rebut the chemical test results, it is hereby determined that Respondent

submitted to and completed a chemical test of his blood, with a result of 0.17% B.A.C. at

1:51 AM on 10/12/12.” The trial court did not address the admissibility of the report but

relied on it in upholding the suspension.

       B.      Analysis

       Gilsdorf contends the report was inadmissible because it did not qualify as an

exception under Evidence Code section 1280.

       Evidence Code section 1280 makes admissible a writing made to record an act,

condition or event if the writing “was made by and within the scope of duty of a public

employee,” “at or near the time of the act, condition, or event,” and “[t]he sources of

information and method and time of preparation were such as to indicate its

trustworthiness.” It is clear that a forensic laboratory report falls within the public




                                              11
employees’ record exception to the hearsay rule under Evidence Code section 1280.

(Lake, supra, 16 Cal.4th at p. 467.)

       “’Evidence Code section 664 creates a rebuttable presumption that blood-alcohol

test results recorded on official forms were obtained by following the regulations and

guidelines of title 17. [Citations.] . . . The recorded test results are presumptively valid

and the DMV is not required to present additional foundational evidence. [Citation.]’

[Citation.]” (Manriquez v. Gourley, supra, 105 Cal.App.4th at pp. 1232-1233.)

       Gilsdorf insists that the forensic report did not meet the prong that it was made “at

or near the time of the act.” However, this ignores Marshall’s declaration under penalty

of perjury that the results of the blood analysis were documented at the time analysis was

completed. Gilsdorf provided no affirmative evidence to dispute this declaration.

Moreover, to the extent that there is a possible conflict in the document, we resolve all

evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the

trial court’s decision. (Lake, supra, 16 Cal.4th at pp. 456-457.) Here we accept

Marshall’s declaration made under penalty of perjury that she documented the test results

at the time of the analysis. It is reasonable to infer that the report was later made based

on that documentation. In other words, she performed her official duty and the

presumption under Evidence Code section 664 applies.

       Gilsdorf relies upon Glatman v. Valverde, supra, 146 Cal.App.4th 700. In

Glatman, a motorist’s blood sample was analyzed two times by different analysts. (Id. at

p. 702.) Both analysts signed the alcohol analysis report, which was dated one week after

the first test was done. (Ibid.) The motorist argued the report was untimely prepared.


                                             12
The Department argued that the analysts entered the test results into the laboratory’s

computer database shortly after completing each test and that the preparation of the report

one week later simply involved retrieving the data from the database. (Id. at p. 703.) The

appellate court disagreed and observed that the record was silent regarding the procedures

that the analysts used to record their test results. Further, there was no evidence that the

test results were recorded in a computer database or anywhere else before the report was

prepared. (Id. at p. 704.) The court held that the case presented a “‘danger of inaccuracy

by lapse of memory,’ [citation]” and held that the trial court did not abuse its discretion

when it found that the forensic report was not prepared at or near the time of the recorded

event. (Ibid.)

       Here, unlike in Glatman, it is reasonably inferred that the results were recorded or

documented at the time of the test and were memorialized in the report several days later.

Marshall attested that “[t]he recording of the analytical results was done at the time the

analysis was performed and included creation of contemporaneous documentation.” It is

reasonably inferred the report was made by transferring that documentation to the report.

(Glatman, supra, 146 Cal.App.4th at p. 705 [“[A]n inference may be drawn only if the

‘proposed conclusion is a reasonable, logical, and nonspeculative deduction from the

facts proved.’ [Citation.]”].)

       Gilsdorf additionally claims that the forensic alcohol report should have been

excluded because Marshall was not qualified to conduct the test. This claim is equally

unavailing. Gilsdorf, relying on Furman v. Department of Motor Vehicles (2002) 100




                                             13
Cal.App.4th 416 (Furman), claims that a criminalist is not qualified to conduct forensic

alcohol analysis.

       ‘“Forensic alcohol analysis shall be performed only by persons who meet the

qualifications set forth in these regulations for forensic alcohol supervisors, forensic

alcohol analysts, or forensic alcohol analyst trainees [working under the supervision of a

forensic alcohol supervisor or forensic alcohol analyst].’ [Citation.]” (Furman, supra,

100 Cal.App.4th at p. 423, italics omitted.) In Furman, the court held that a

“Criminalist” title does not carry with it an inference that its holder “has an ‘official duty’

to perform and record the results of a forensic alcohol analysis,” based on the exclusion

of criminalists from title 17. (Furman, at p. 422.) The court concluded that without

proof that the person was qualified under title 17 the report was not admissible under

Evidence Code section 1280. (Id. at p. 423.)

       However, Furman does not stand for the proposition that title 17 precludes a

criminalist from having the official duty of performing forensic alcohol analysis. In

Furman, there was no additional evidence other than that the person signed the report and

stated that she was a “criminalist.” (Furman, supra, 100 Cal.App.4th at p. 419.) On the

other hand, here, Marshall attested that “I am qualified to engage in forensic alcohol

analysis as a Forensic Alcohol Supervisor, Analyst, or as a Trainee under supervision

pursuant to Title 17 of the CA Code of Regulations; . . .” This was sufficient to show that

in addition to being a criminalist, she met the qualifications of a forensic alcohol analyst,

supervisor or trainee under supervision. As such, the presumption under Evidence Code

section 664 that the analyst performed his or her official duty in preparing the report


                                              14
applied and it was admissible under Evidence Code section 1280. The hearing officer

and trial court properly considered the forensic alcohol analysis report.

                                             IV

                             UNSWORN POLICE REPORT

       Gilsdorf also contends that Exhibit 2, the unsworn statement of Officer Mabanag,

was improperly admitted at the hearing. Similar to the previous argument, he claims that

since the report was prepared one week after the incident occurred, it was not admissible

as a public employee record under Evidence Code section 1280.

       Vehicle Code section 13380, subdivision (a) provides that an arresting officer

must submit to the Department a sworn report of “all information relevant to the

enforcement action.” Vehicle Code section 13557, subdivision (a) directs the

Department to take into account in deciding to suspend a person’s license the sworn

report and “any other evidence accompanying the report.”

       In MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 159, the court concluded that

under the above-mentioned statutory scheme, the Department could consider the arresting

officer’s sworn and unsworn reports at the suspension hearing. It concluded, “‘A police

officer’s report, even if unsworn, constitutes “the sort of evidence on which responsible

persons are accustomed to rely in the conduct of serious affairs.’” [Citation.] Again, too,

we must not lose sight of the reason for the ‘slight relaxation of the rules of evidence




                                             15
applicable to an administrative per se review hearing[.]’7 . . . [¶][S]o long as a sworn

report is filed, it is consistent with the relaxed evidentiary standards of an administrative

per se hearing that technical omissions of proof can be corrected by an unsworn report

filed by the arresting officer.” (Id. at p. 159.)

       Moreover, the Department may use hearsay evidence “for the purpose of

supplementing or explaining other evidence. . . .” (Gov.Code, § 11513, subd. (d).) As

such, the unsworn report prepared by Officer Mabanag and admitted at the hearing was

admissible to help explain the sworn statement.

       Gilsdorf’s argument relies on his assumption that the unsworn report must also be

admissible under Evidence Code section 1280 (which he claims it was not) despite

Vehicle Code section 13557, subdivision (a) and Government Code section 11513,

subdivision (d). The unsworn report was sufficiently timely as to qualify under Evidence

Code section 1280.

       ‘““How soon a writing must be made after the act or event is a matter of degree

and calls for the exercise of reasonable judgment on the part of the trial judge.’”

[Citation.] ‘[T]he timeliness requirement “is not to be judged . . . by arbitrary or artificial

time limits, measured by hours or days or even weeks.”’ [Citation.] Rather, “account

must be taken of practical considerations,” including “the nature of the information

recorded” and “the immutable reliability of the sources from which [the information was]

drawn.” [Citation.] “Whether an entry made subsequent to the transaction has been

       7     The purpose is to immediately protect the public from the potential that the
motorist may again drive drunk. (Lake, supra, 16 Cal.4th at p. 462.)


                                               16
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.”’ [Citation.]” (Molenda v. Department of

Motor Vehicles, supra, 172 Cal.App.4th at p. 989.)

       Here, the unsworn statement prepared by Officer Mabanag on October 19, 2012,

closely mirrored the sworn statement prepared on October 12, 2012. There was no

danger of inaccuracy by lapse of memory based on the similarity to the sworn statement

and it was completed within a week of the incident. Accordingly, the hearing officer and

trial court properly considered Officer Mabanag’s unsworn police report.

                                             V

                             PRESUMPTION OF DRIVING

       Gilsdorf finally contends that the hearing officer erroneously relied on the three-

hour presumption of driving with a BAC of over 0.08 percent pursuant to Vehicle Code

section 23152, subdivision (b) because the time of driving was not adequately

established.

       A.      Additional Factual Background

       It was undisputed that Officer Mabanag did not observe Gilsdorf driving the truck.

At the hearing, the Department relied upon the sworn and unsworn statements of Officer

Mabanag to support that he was driving and the time of driving. According to the

reports, Officer Mabanag was dispatched to 46920 Jefferson Street at 12:44 a.m. because

a witness had called to report that a man was passed out in his vehicle which was

blocking an exit. The witness indicated that the man had been in the truck for about an


                                            17
hour and told the reporting person he was taking a nap. Officer Mabanag arrived and

found the truck was blocking the exit of the Valley Animal Clinic. Gilsdorf was leaning

against the window. The engine on the truck was running and the truck was faced toward

the exit. Officer Mabanag had to knock loudly on the window for several seconds in

order to get Gilsdorf to wake up. Gilsdorf told him he was tired and that he was just

resting. He was planning to drive home soon.

       Gilsdorf told Officer Mabanag that he had drank beers at a location in Indio and

another in Cathedral City. When asked if he was driving, he responded that he felt he

was being “entrapped” to admit he was driving. He denied that he had been driving but

did not explain how his truck got to the parking lot of the Valley Animal Clinic. Gilsdorf

was arrested at 1:12 a.m. A nurse drew his blood at 1:51 a.m. Hence, the time period

according to the documents was that at 12:44 a.m., Officer Mabanag was dispatched to

the location; a witness stated Gilsdorf had been at the location for about one hour; his

blood was drawn at 1:51 a.m.

       The hearing officer concluded that a preponderance of the evidence established

that Gilsdorf had been driving with a BAC higher than 0.08 percent. The hearing officer

concluded, “The Department may reasonably infer the time of driving from the facts in

evidence. In that, [Gilsdorf] was found leaning up [sic] the driver’s window asleep, the

vehicle park [sic] blocking the exit of the Valley Animal Clinic, the engine was running

and [Gilsdorf] stated he was tired, just resting and would be driving home soon. It is

reasonable to infer the time between driving, and the arrival of the officer, was very short.




                                             18
Additionally, there is no evidence showing delay from the time of the dispatch call, to the

time of the chemical test; therefore, the three hour presumption has not been rebutted.”

       In upholding the findings, the trial court found, “As [Gilsdorf] correctly argues at

the start of his opening brief, the Court must independently evaluate the evidence . . .

Here, even if the statutory presumption does not apply because of the lack of evidence

that [Gilsdorf] was driving within three hours before his blood was drawn, there is still

considerable evidence that [Gilsdorf]’s blood alcohol content was greater than .08 when

he was driving. As [Gilsdorf]’s counsel argued at the hearing on the petition, it is

possible that [Gilsdorf] consumed a great deal of alcohol just before he was driving and

that his blood alcohol level, although rising, had not yet passed .08 before he stopped at

the location the citizen reported him to be napping. However, given that he apparently

had nothing to drink for over two hours before his blood was drawn and that his blood

alcohol level was .17 when drawn, this possibility is only theoretical. The only

reasonable interpretation of the evidence is that [Gilsdorf]’s blood alcohol level was

higher — probably much higher — than .08 when he was driving. Accordingly, the

petition is denied.”

       B.     Analysis

       Vehicle Code section 23152, subdivision (b) provides that when a chemical test is

performed within three hours of driving and it shows a BAC of 0.08 percent or greater,

there is a rebuttable presumption that the licensee had a 0.08 percent or more BAC at the

time of driving. In Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304

(Bell), the court explained the legislative intent behind the section 23152, subdivision (b)


                                             19
presumption: “[I]n enacting the presumption, the Legislature intended (1) to ‘diminish

the arguments that ha[d] arisen when extrapolating the [BAC] at the time of the test back

to the time of the driving’ [citation], (2) ‘to close a potential loophole in the current law,

whereby a person . . . could claim that he or she had consumed . . . alcohol which had not

yet been absorbed into the bloodstream while the person was operating the vehicle, but

which later raised the blood alcohol level’ [citation], and (3) ‘to recognize that alcohol

concentrations dissipate over time, so that a person whose blood alcohol levels exceed the

permissible concentrations at the time of the test, was likely to have had unlawfully high

blood alcohol levels when driving’ [citation].” (Bell, at p. 311.)

       The effect of a presumption affecting the burden of producing evidence is to

require the “trier of fact to assume the existence of the presumed fact unless and until

evidence is introduced to support a finding of its nonexistence — in which event the trier

of fact determines the existence or nonexistence of the fact from the evidence and without

regard to the presumption.” (Evid. Code, § 604.) In other words, when met with

“contradictory evidence,” the presumption “disappears.” (Craig v. Brown & Root, Inc.

(2000) 84 Cal.App.4th 416, 421.)

       “In everyday usage of the phrase, ‘to drive a vehicle,’ is understood as requiring

evidence of volitional movement of a vehicle” based on numerous dictionary definitions

for “drive” that required movement. (Mercer v. Department of Motor Vehicles (1991) 53

Cal.3d 753, 763 & fn. 5.) As previously stated, “an inference may be drawn only if the

‘proposed conclusion is a reasonable, logical, and nonspeculative deduction from the

facts proved.’ [Citation.]” (Glatman, supra, 146 Cal.App.4th at p. 705.) The element of


                                              20
driving can be established through circumstantial evidence. (People v. Garcia (1989)

214 Cal.App.3d Supp. 1, 4.)

       People v. Wilson (1985) 176 Cal.App.3d. Supp. 1 is instructive as to whether

defendant drove and parked his vehicle blocking the Valley Animal Clinic driveway. In

that case, the defendant was found behind the wheel of his vehicle asleep, with the engine

running, parked on the freeway. The back portion of his car was partially blocking one of

the lanes of the freeway. (Id. at p. 3.) When the defendant exited the car, he had slurred

speech and had bloodshot, watery eyes. The defendant admitted drinking earlier in the

night but claimed he had stopped. Only after his car overheated on the freeway, did he

start to drink more beers but never drove after drinking these beers. (Id. at pp. 4-5.) The

defendant contended on appeal to the superior court that the evidence was insufficient to

support that he had been driving. The court found there was circumstantial evidence that

supported that he had been driving. This evidence included that parking on the freeway

in lanes “was not a normal parking place or position for a vehicle to be stopped” and the

“vehicle did not simply materialize at that location. Obviously someone drove it there.”

(Id. at p. 8.) The court also relied on the fact that defendant was the driver because he

was the sole occupant in the car; he never said anyone else had driven the vehicle; and

the vehicle belonged to the defendant. Finally, the court found there was abundant

evidence that defendant had been drinking prior to his stopping the vehicle on the

freeway. (Ibid.)

       Here, the evidence established that a citizen reported that “the person in the

vehicle had been in the truck for about an hour and told the reporting person he was


                                             21
taking a nap.”8 Officer Mabanag was called to investigate the report of the person

sleeping in his car. When he arrived, Gilsdorf was asleep behind the wheel and the

engine was running. He was blocking the driveway of a business. There was no

affirmative evidence that someone else drove Gilsdorf to the location and parked him in

this position which was not “normal.” (People v. Wilson, supra, 176 Cal.App.4th at p. 8.)

Gilsdorf admitted he had been drinking beers in Indio and Cathedral City and provided

no explanation as to how he got to those locations. It was reasonable to infer that

Gilsdorf drove to the Valley Animal Clinic and parked; his car did not “simply

materialize” at the location. (Ibid.)

       Moreover, for purposes of the three-hour presumption of Vehicle Code section

23152, subdivision (b), the evidence presented established the chemical test was

completed within three hours of driving.

       In Bell, supra, 11 Cal.App.4th 304, the defendant argued the presumption under

Vehicle Code section 23152, subdivision (b) had not been established. There, the

statements of the officers provided that the officer observed the defendant leaving a club

and drive with the radio at an illegal level. The statements also supported that he was

       8      Here the citizen’s report was hearsay without an exception which is
required upon objection pursuant to Government Code section 11513, subdivision (d).
(See Lake v. Reed, supra, 16 Cal.4th at p. 461 [witness reports are hearsay but could be
considered to explain other properly admitted, e.g. non-hearsay, evidence that proved a
fact.) However, Gilsdorf has never argued that the citizen report was hearsay. Rather, he
argued at the hearing that the entire unsworn police report was hearsay and did not apply
under the exception in Evidence Code section 1280 due to its untimeliness. On appeal he
has not made an argument that the report he had been in his truck for one hour was
hearsay. As such, he did not make a timely objection as required by Government Code
section 11513, subdivision (d).


                                            22
arrested at 2:05 a.m., and the intoxilyzer test was administered at 2:36 a.m. The

defendant argued there was no evidence establishing the time between the officer first

observing him leave the club and the time he was arrested to support the three-hour

presumption. (Bell, at p. 314.) The appellate court rejected this argument, finding that

“in order to find the presumption inapplicable, we must conclude that the officers waited

almost two and one-half hours after observing [defendant] leave the club and drive . . .

Such an inference would not be reasonable or legitimate. [Citation.]” (Bell, at pp. 314-

315.)

        Here, as stated, the citizen reported that Gilsdorf was blocking the driveway of a

business and had been at the location for about one hour. The exact time that the report

was received was not conclusively established. However, it was reasonable to infer from

the evidence that it was a short period of time between the time that the call was received

and the time that Officer Mabanag was dispatched to the scene at 12:44 a.m. Since the

vehicle was blocking the driveway of a business establishment and Gilsdorf was passed

out, it is reasonable to infer that once the call was received, the dispatcher immediately

contacted Officer Mabanag to respond. (See Evid. Code, § 664 [public agencies are

presumed to regularly perform their official duty].) It was not reasonable to infer that the

dispatcher waited for over an hour to dispatch Officer Mabanag. (Bell, supra, 11

Cal.App.4th at pp. 314-315.) Since the citizen reported Gilsdorf had been at the location

for one hour, Office Mabanag was dispatched at 12:44 a.m., and the chemical test was

taken at 1:51 a.m., this was sufficient evidence that the chemical test was administered

within three hours of Gilsdorf driving.


                                             23
       Based on the foregoing evidence, the Department established the presumption that

Gilsdorf had been driving his vehicle within three hours of the chemical test. His BAC

was 0.17 percent, far exceeding the required 0.08 percent or more required at the time of

driving. Once the presumption was established, Gilsdorf had to present evidence to rebut

the presumption. (Manriquez v. Gourley, supra, 105 Cal.App.4th at p. 1233.) He

presented no evidence rebutting the presumption. As such, the finding of the hearing

officer that Gilsdorf was driving with a BAC over 0.08 percent was supported by the

evidence.

                                           VI

                                     DISPOSITION

       The judgment is affirmed. The Department shall recover its costs on appeal. (Cal.

Rules of Court, rule 8.891(a)(1).)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                              RICHLI
                                                                              Acting P. J.

We concur:


KING
                          J.


MILLER
                          J.




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