Filed 7/31/14 Pekin v. Valverde CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


GULDIN PEKIN,                                                        B247358

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BS136504)
         v.

GEORGE VALVERDE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
James C. Chalfant, Judge. Reversed.
         Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney
General, Michael E. Whitaker and Leah C. Gershon, Deputy Attorneys General, for
Defendant and Appellant.
         Michael L. Schultz for Plaintiff and Respondent.
                                        _________________________
                                     INTRODUCTION
       The Department of Motor Vehicles (the DMV) appeals from the judgment of the
trial court granting the petition of Guldin Pekin for writ of mandate (Code Civ. Proc.,
§ 1094.5) and directing the DMV to revoke its suspension of her driving privilege for one
year based on her failure to complete a chemical test. The issue is whether the evidence
supports the trial court’s finding the arresting peace officer abused his discretion in
determining Pekin “fail[ed] to complete, a chemical test” pursuant to Vehicle Code
section 13353.1 We reverse.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. The arrest and testing
       We examine the record according to the usual rules of appellate review. (Lake v.
Reed (1997) 16 Cal.4th 448, 456-457.) On July 9, 2011, California Highway Patrol
Officers Sapp and Olsen stopped Pekin on suspicion of driving under the influence of
alcohol after she weaved out of her lane on the Hollywood Freeway and forced another
car to take evasive action to avoid a collision. Officer Sapp concluded Pekin was
intoxicated based on a “strong” smell of alcohol emitting from the vehicle and on
observing Pekin’s bloodshot and watery eyes, and slurred and soft speech. Pekin
admitted having consumed a beer. After giving Pekin the standard admonishment,
Officer Sapp administered a preliminary alcohol screening devise (PAS) test. Although
Officer Sapp instructed Pekin “3-4 times” that she must blow continuously to complete
the test, she never complied. Instead, Pekin “would put her lips on the tip of the mouth
piece and would give a quick puff of air then start sucking in air and then would stop.”
The officer’s written statement indicates that Pekin “failed to perform [the] field sobriety
tests as explained.” Three manual PAS samples from Pekin showed results of
.105 percent, .080 percent, and .101 percent.



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

                                              2
       Officer Sapp arrested Pekin for driving under the influence of alcohol and
transported her to the 77th Street Jail for chemical testing. At first Pekin “was not willing
to complete a chemical test.” Officer Sapp advised her of the implied consent law and
that her driving privileges would be suspended or revoked if she refused or failed to
complete a required chemical test. Pekin opted for the breath test. The officer told Pekin
that if she were not able to complete the test, it would be marked as a “refusal,” and she
would have to complete a blood test. Officer Sapp testified Pekin “was advised of
implied consent. Okay? At that time she didn’t want to do anything. Okay? I read her
the back of the DS 367 advising her that she was going to lose her license. [¶] . . . [¶] At
that time she says, okay, I’ll do a breath test.”
       Officer Sapp informs drivers that they must blow into the chemical machine
“anywhere from four to seven seconds” to complete the test. The so-called EC/IR usage
log for the breath test machine indicates, and Pekin testified, that she blew into the breath
machine three times. The first time, Pekin blew 130 cc of air over .37 seconds. The
second time, she blew 853 cc for 1.52 seconds. There are no data for the third blow. The
log indicates as the “End of Test Status: Test refused.” Pekin testified that when she tried
to blow, the officer stated, “okay, okay, it’s not working out.” She “begg[ed] to” try
“again . . . So I did – I did three blows in a pretty short time.” He testified, “she put her
mouth on the mouthpiece. She would give a quick little, and then would either stop
blowing [or] suck in air, which causes the machine to stop, ultimately unable to provide
two sufficient samples.” In between tries, he would instruct her about her breaths.
Officer Sapp testified “[s]he didn’t complete the breath test.” Pekin “would not blow into
the machine.”
       Officer Sapp spoke to his sergeant who told Sapp to indicate Pekin’s results as
“refusal” “because [Pekin] was unable to complete the chemical test.” Officer Sapp
instructed Pekin “multiple times” that she would need to complete a blood test or he
would mark her as a “refusal.” According to the arrest report, after being asked multiple
times, Pekin responded, “ ‘I won’t do blood, I don’t like needles.’ ” (Italics added.)


                                               3
Finally, Officer Sapp wrote that Pekin “refused all chemical tests” and recommended that
the City Attorney file charges against Pekin for driving under the influence of alcohol.
       Pekin’s expert, forensic toxicologist Darrell Oliver Clardy, explained that the
breath machine either prints out a mouth-alcohol level or indicates insufficient breath. To
record a refusal to blow, the officer running the machine must press a button, which shuts
down the instrument. Clardy testified that “[t]he instrument would have taken another
test, and she [Pekin] would have kept blowing. Because she went from 130 to 853 [ccs in
volume of air]. The third test very reasonably would have been a good test [of another
driver], as the test just above [on the EC/IR log] indicates.” (Italics added.) Asked why
the machine indicated three tests were done but only two revealed data, Clardy opined
“I’m not sure what’s exactly going on. We have – something’s going on.” The log
“gives an indication of an electronic malfunction on the instrument at the time.” (Italics
added.) He explained that “often the software is written [so that] if the officer pushes the
button . . . to stop the test, then it would just say test refused.” Clardy surmised, if
Officer Sapp had not pressed the “refused” button, the machine would have logged an
insufficient sample. Clardy opined that the officer denied Pekin the opportunity to blow
more than twice. Pekin also submitted letters from her dentist and her Botox doctor who
stated that Pekin has a fear of needles.
       2. Administrative hearing and Pekin’s writ petition
       The administrative hearing officer found that Pekin was given a choice of
chemical tests and chose a breath test but was unable to complete it. Officer Sapp then
offered Pekin the blood test but Pekin explained she did not like needles, which response
the Officer Sapp deemed a “refusal” to submit to the blood test. The hearing officer was
unpersuaded by Pekin’s claim that she suffered from a needle phobia justifying her
refusal to submit to the blood test. The DMV imposed a one-year suspension of Pekin’s
driving privileges. Pekin’s petition for writ of mandate ensued.
       3. The trial court’s ruling
       The trial court found Pekin did not demonstrate she was incapable of submitting to
a blood test and she never communicated to the officer that a needle phobia rendered her

                                               4
incapable of taking a blood test. (§ 23612, subd. (a)(2)(A).) Pekin told the officer only
that she “did not like” needles and “could not handle them.” Pekin called no medical
expert to explain that she was psychologically unable to summit to a blood test. As Pekin
undergoes Botox treatments, which utilize needles, the court found Pekin was merely
afraid of needles. Thus, Pekin failed to establish that a blood test was unavailable, with
the result, the court found, Pekin “refused to submit to a blood test.”
       However, the court found Pekin did not refuse to undergo a breath test, and did not
fail to complete that test. The court concluded instead that Officer Sapp did not expect
Pekin to complete the breath test. The officer appeared to the court to be in a hurry to
finish the breath test and move on to the blood test. The court agreed with Pekin’s expert
Clardy and ruled that Officer Sapp abused his discretion by cutting off Pekin’s attempts
to take the breath test given the increasing volume of Pekin’s second attempt and the
higher number of attempts other arrestees recorded. The court found Officer Sapp acted
hastily in terminating the breath test. Finding no evidence that Pekin was deliberately
trying to evade the test, the court ruled, Pekin thus did not fail to complete the test; rather
Officer Sapp did not permit her to perform it. The trial court granted the petition for writ
of mandate and ordered the DMV to set aside its suspension of Pekin’s driving privileges.
The DMV filed its timely appeal.
                                      CONTENTIONS
       The DMV contends there is no substantial evidence to support the trial court’s
finding Officer Sapp abused his discretion in terminating the breath test after concluding
Pekin failed to complete it.
                                        DISCUSSION
       1. Standard of review
       For the purpose of determining the appropriate standard of judicial review of an
administrative decision to suspend or revoke a driver’s license, the license is a
“fundamental right.” (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d
392, 398.) Under Code of Civil Procedure section 1094.5, the trial court examines the
administrative record for errors of law and exercises its independent judgment to

                                               5
determine whether the weight of the evidence supported the administrative decision.
(Lake v. Reed, supra, 16 Cal.4th at pp. 456-457.) “ ‘In making that determination, the
trial court had to “weigh the evidence and make its own determination as to whether the
administrative findings [should be] sustained.” [Citation.]’ [Citation.] ‘In exercising its
independent judgment, a trial court must afford a strong presumption of correctness
concerning the administrative findings, and the party challenging the administrative
decision bears the burden of convincing the court that the administrative findings are
contrary to the weight of the evidence.’ [Citation.]” (Garcia v. Department of Motor
Vehicles (2010) 185 Cal.App.4th 73, 82.) On appeal, we determine whether the trial
court’s findings are supported by substantial evidence. (Ibid.)
       2. The implied consent law
       As part of its effort to combat the problem of drunk driving,2 the Legislature
enacted section 23612, the implied consent law. (Smith v. Department of Motor Vehicles
(1986) 179 Cal.App.3d 368, 373 (Smith).) The implied consent law provides that “a
person lawfully arrested for driving a motor vehicle while under the influence of alcohol
impliedly consents to submit to a chemical test, by breath or blood, to determine his or
her blood-alcohol level while driving the vehicle.” (White v. Department of Motor
Vehicles (2011) 196 Cal.App.4th 794, 798 (White).) “If the person arrested either is
incapable, or states that he or she is incapable, of completing the chosen test, the person
shall submit to the remaining test.” (§ 23612, subd. (a)(2)(A).) “ ‘The implied consent
law is intended “to obtain the best evidence of blood alcohol content at the time of the
arrest” [citation] by means of securing “the civil cooperation of all persons privileged to
drive” . . . .’ [Citation.]” (Smith, supra, at pp. 373 -374, italics omitted.)
       The DMV is required to suspend or revoke a person’s driving privilege if the
person “refuses the officer’s request to submit to, or fails to complete, a chemical test or
tests pursuant to Section 23612” and the officer had reasonable cause to believe the
2
       In California it is unlawful for a person to drive under the influence of any
alcoholic beverage or to drive with 0.08 percent or more of alcohol by weight in his or
her blood. (§ 23152, subds. (a) & (b).)

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person had been driving a motor vehicle in violation of sections 23152 or 23153.
(§ 13353, subd. (a), italics added.)3
       The DMV challenges the trial court’s determination that the weight of the
evidence showed Pekin did not fail to complete the chemical breath test but that Officer
Sapp prematurely terminated it. (§ 13557, subd. (b)(1)(C).) The DMV does not find
fault with the court’s finding Pekin failed to submit to a blood test. Rather, the DMV
contends there is no evidence to support the finding that Officer Sapp abused his
discretion in deciding that the chemical breath test would not work. The DMV asserts
that the weight of evidence shows Pekin engaged in a course of conduct that exhibited
gamesmanship, which conduct justified Officer Sapp’s determination, in his discretion,
that the breath test was not going to provide a useful result. We agree.
       Law enforcement officers have discretion to decide the feasibility of a chemical
test under section 13353 by exercising prudent judgment and common sense. (Smith,
supra, 179 Cal.App.3d at pp. 374-375.)
       The trial court’s finding that Officer Sapp abused his discretion was based on
Clardy’s testimony about his conclusion that Officer Sapp acted hastily by terminating
the test and that had the officer allowed Pekin more tries, she would have blown a
sufficient amount of air. The court was influenced by Clardy’s explanation about the
increased volume in Pekin’s second attempt and the higher number of other arrestees’
recorded attempts. However, expert testimony does not constitute substantial evidence
when based on conclusions or assumptions not supported by evidence, or on matters not
reasonably relied upon by other experts, or on speculative or conjectural factors. (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770; People

3
       Section 13353, subdivision (a) reads, “If a person refuses the officer’s request to
submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon
receipt of the officer’s sworn statement that the officer had reasonable cause to believe
the person had been driving a motor vehicle in violation of Section 23140, 23152, or
23153, and that the person had refused to submit to, or did not complete, the test or tests
after being requested by the officer, the department shall do one of the following: [¶] (1)
Suspend the person’s privilege to operate a motor vehicle for a period of one year. . . .”

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ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567-1568.)
Clardy’s testimony that Pekin’s next attempt “very reasonably would have been a good
test” is utterly speculative and is unsupported by the evidence that showed Pekin failed to
blow for a sustained period, three times in the field and three times at the 77th Street Jail.
It does not necessarily follow from the increasing length of Pekin’s second effort at the
police station that her next attempt would have been sufficient. As support for this
conclusion, Clardy pointed to the test given to the driver prior to Pekin, which test is
certainly not evidence of what Pekin would do. Clardy then contradicted his own
testimony that the machine would have taken another sufficient sample by surmising that
the reason Pekin’s last attempt did not register on the log was a malfunction with the
machine. “It is axiomatic that taking a breath test requires a machine that is
operative. . . . It would have been futile to continue to take further samples on that
machine as it was not functioning properly.” (Gobin v. Alexis (1984) 153 Cal.App.3d
641, 649.) Clardy’s opinion that Officer Sapp abused his discretion by denying Pekin the
opportunity to blow more than twice conflicts with Pekin’s testimony and the log’s
indication, that Pekin blew three times. Absent Clardy’s speculative, unsupported, and
contradictory testimony, there is simply no evidence to justify the trial court’s conclusion
that the weight of the evidence showed that Officer Sapp abused his discretion by
concluding the test was not working.
       Without Clardy’s testimony, there is no evidence to support the trial court’s
determination that the weight of the evidence contradicted the findings of the
administrative hearing officer. Garcia v. Department of Motor Vehicles, supra,
185 Cal.App.4th 73, is instructive. There, the driver engaged in stalling tactics to reduce
his blood alcohol content by staring at the machine and changing his mind about which
test to take. (Id. at p. 78.) The officer advised the driver that he needed to comply with
testing or his conduct would be considered a refusal and he would lose his license for a
year. (Ibid.) The officer told the driver to place his lips on the mouthpiece of the breath
machine and blow strongly and steadily until the machine beeped. The driver claimed
not to comprehend the directions. The officer instructed the driver three more times, after

                                               8
which the driver put his lips on the mouthpiece and blew for about one and a half seconds
before stopping. The driver was given one more time to comply, but simply stared at the
mouthpiece. (Ibid.) The officer deemed the driver’s lack of cooperation to be a refusal to
take a chemical test. (Ibid.) The administrative hearing officer agreed. (Id. at p. 79.)
The trial court upheld the ruling and the appellate court affirmed, stating the driver
“failed to complete the breath test after being repeatedly warned that his failure to do so
would constitute a refusal. The record shows that Garcia tried ineffectually to blow once
and then refused or declined to try any further. The trial court did not find that Garcia
was ‘incapable, or state[d] that he . . . [was] incapable, of completing the chosen
test . . . .’ (§ 23612, subd. (a)(2)(A).) The trial court did not find credible Garcia’s
testimony that he was unable to complete the test because of nausea.” (Id. at p. 83;
accord, White, supra, 196 Cal.App.4th at pp. 797, 798 & 800 [where phlebotomist was
repeatedly unsuccessful in drawing blood, driver requested that the technician stop and
then refused the breath test. Held driver failed to complete a chemical test.].) These
authorities convince us the circumstances here are susceptible of one conclusion namely
that Officer Sapp exercised his discretion in concluding that Pekin was not going to
provide workable results with the breath test.
       The record shows the officer repeatedly instructed Pekin on how to use the breath
test machine and each time she ineffectually blew into the mouthpiece. Pekin failed to
properly blow at least six times, thrice at the scene of her arrest where she nonetheless
recorded blood alcohol levels above the legal limit, and three times at the police station.
She begged for, and he allowed her, a third attempt at the police station, although he did
not remember that attempt by the time of the hearing. There is no evidence other than
speculation that a fourth attempt would have produced a satisfactory volume of air,
whereas Officer Sapp testified he had concluded she would not blow into the mouthpiece
long enough to register a result. “Compliance with the provisions of the implied consent
statute requires that the arrestee complete, not merely attempt, one of the . . . possible
tests.” (Gobin v. Alexis, supra, 153 Cal.App.3d at p. 649.) It was not Pekin’s failure to
produce a measurable breath sample that Officer Sapp labeled as a failure to complete a

                                               9
chemical test; it was her refusal to then submit to the blood test -- about which there is no
dispute -- that triggered the notice of suspension. (See Fitzpatrick v. Department of
Motor Vehicles (1993) 13 Cal.App.4th 1771, 1775 [failure to comply with implied
consent law resulted not from failure to produce measurable breath sample but later
refusal to submit to blood test].) As a matter of law, the weight of the evidence does not
support a finding contrary to that of the administrative hearing officer.
                                      DISPOSITION
       The judgment is reversed. Appellant to recover costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  ALDRICH, J.
We concur:




              KLEIN, P. J.




              KITCHING, J.




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