Filed 5/30/13 Patel v. Shiomoto CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


CHIRAG B. PATEL,
         Plaintiff and Respondent,
v.
JEAN SHIOMOTO, as CHIEF DEPUTY                                       A136228
DIRECTOR, etc.
                                                                     (Alameda County
         Defendant and Appellant.                                    Super. Ct. No. RG12616999)



         On April 2, 2011, petitioner Chirag Patel, who was already on probation for
reckless driving stemming from a prior drunk driving arrest, was again arrested for
driving under the influence of alcohol. He submitted to a blood test, which showed a
blood-alcohol content (BAC) of 0.13 percent. Following an administrative per se
hearing, the Department of Motor Vehicles (DMV) suspended his driver’s license.
         Patel filed a petition for writ of mandate in the superior court to set aside the
suspension. The trial court found that the forensic alcohol report lacked trustworthiness
and that there were chain of custody problems with Patel’s blood sample such that its
integrity was questionable. It thus concluded that the DMV had failed to satisfy its
burden of proof, and granted the petition.
         The DMV appeals. We conclude that the trial court’s findings were unsupported
by substantial evidence, and we reverse.




                                                             1
                              FACTUAL BACKGROUND
       According to the arrest report of Livermore Police Officer Sean Mariconi, on
April 2, 2011 at 1:57 a.m., he was traveling eastbound on First Street in Livermore when
he noticed a silver Scion traveling eastbound in the right lane. The car caught his
attention because it was traveling below the posted speed limit. As he watched, the car
drifted to the right, crossing over the white line into the bicycle lane. It then moved back
into the traffic lane before again drifting to the right, traveling approximately 30 feet with
both right tires in the bicycle lane. Officer Mariconi initiated a traffic stop, and the Scion
driver pulled over.
       Patel was driving the Scion, with Brandon Mailho in the passenger seat. Officer
Mariconi asked Patel where he was coming from, and he responded that he had just gone
downtown to pick up Mailho. The officer noticed that Patel’s eyes were bloodshot and
watery, and he detected an odor of alcohol on Patel’s breath. He asked Patel if he had
been drinking, and Patel denied that he had been. Mailho volunteered that it must have
been coming from him because he was drunk.
       Officer Mariconi had Patel exit the car for further evaluation. He asked Patel
when he had last consumed alcohol, and Patel admitted he had had “2 beers” “about 2 or
3 hours ago.” When asked he if had been drinking anything else, Patel responded, “2
Crown and Cokes.”
       Officer Mariconi had Patel perform a series of standardized field sobriety tests.
During the tests, Officer Oto arrived to assist. Patel performed poorly on each test.
Officer Mariconi also checked Patel for horizontal gaze nystagmus, which was present in
both eyes. He then asked Patel to take a preliminary alcohol screening (PAS) test, which
he took twice, registering a BAC of 0.129 and 0.116 percent, respectively.
       In light of Officer Mariconi’s observations of Patel, his performance on the field
sobriety tests, and the PAS test results, the officer arrested him for drunk driving and
confiscated his driver’s license. Then, as described in Officer Mariconi’s arrest report,
“Officer Oto took custody of Patel and transported him to Santa Rita Jail. At the jail,
Certified Phlebotomy Technician Adriana Hamm from VBS Services, drew two vials of


                                              2
blood from Patel at 0250 hours. Technician Hamm turned the vials over to Officer Oto
who later placed them into the toxicology safe for lab testing.”
                           ADMINISTRATIVE PER SE HEARING
       The Administrative Per Se Procedure
       Patel’s drunk driving arrest led to an administrative per se hearing, the background
and procedure of which we had occasion to discuss in Brown v. Valverde (2010)
183 Cal.App.4th 1531, 1536-1538:
       “When a driver is arrested for driving under the influence and is determined to
have a prohibited blood-alcohol content (BAC), the arresting officer or the DMV serves
the driver with a ‘notice of [an] order of suspension or revocation’ of his or her driver’s
license, advising that the suspension will become effective 30 days from the date of
service. (Veh. Code, §§ 13353.2, subds. (b) & (c), 13353.3, subd. (a).) The notice
explains the driver’s right to an administrative hearing before the effective date of the
suspension if the driver requests a hearing within 10 days of receipt of the notice. (Id.,
§§ 13353.2, subd. (c), 13558, subd. (b).)
       “After the driver is served with the notice, the DMV automatically reviews the
merits of the suspension to determine whether the peace officer had reasonable cause to
believe that the driver had been driving a motor vehicle under the influence of alcohol,
the driver was placed under arrest, and the driver had a BAC of 0.08 percent or more at
the time he or she was driving. (Veh. Code, §§ 13558, subd. (c)(2), 13557, subd. (b)(2).)
This determination must be made prior to the effective date of the suspension, although
the DMV may dispense with the automatic review if the driver requests a hearing. (Id.,
§ 13557, subds. (c), (e).)
       “The administrative per se hearing is presided over by either the director of the
DMV, a hearing board, or in the usual case . . . a hearing officer. (Veh. Code, § 14104.2,
subd. (a) [“ ‘Any hearing shall be conducted by the director or by a hearing officer or
hearing board appointed by him or her from officers or employees of the [DMV].’ ”];
[citations].) Hearing officers are typically DMV employees who need not have any legal
training whatever. . . .


                                              3
       “The sole task of the hearing officer is to determine whether the arresting officer
had reasonable cause to believe the person was driving [under the influence of alcohol],
the driver was arrested, and the person was driving with a BAC of 0.08 percent or higher.
If the hearing officer determines that the evidence establishes these three facts by a
preponderance of the evidence, the license will be suspended. [Citations.]”
       “The procedure is civil in nature and is independent from the criminal prosecution
that might ultimately result in the imposition of penalties through the criminal justice
system. [Fns. omitted.]”
       Burdens of Proof at the Administrative Per Se Hearing
       At the administrative per se hearing, the DMV bears the burden of proving by a
preponderance of the evidence that (1) the peace officer had reasonable cause to believe
the driver had been driving a motor vehicle while under the influence of alcohol; (2) the
driver was placed under arrested; and (3) the driver had 0.08 percent or more, by weight,
of alcohol in his or her blood. (Lake v. Reed (1997) 16 Cal.4th 448, 455-456; Veh. Code,
§ 13557, subd. (b)(1), § 13558, subd. (c)(1).)
       Where, as here, the driver submits to a blood test, the DMV usually satisfies its
burden by introducing two documents: the arresting officer’s sworn statement on DMV
form DS 3671 and a forensic alcohol report documenting the results of a chemical test of
the driver’s blood. (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th
1341, 1348 (Petricka).) Although the DS 367 statement and forensic report are hearsay,
they are admissible under the public employee records exception to the hearsay rule,
provided they meet the foundational requirements of Evidence Code section 1280,2 which
sets forth the exception. (Lake v. Reed, supra, 16 Cal.4th at p. 467; Shea v. Department
of Motor Vehicles (1998) 62 Cal.App.4th 1057, 1059; Furman v. Department of Motor
Vehicles (2002) 100 Cal.App.4th 416, 421; Imachi v. Department of Motor Vehicles

       1
        This statement is typically referred to as the officer’s DS 367 statement, a
designation we shall use here.
       2
        All subsequent statutory references are to the Evidence Code, except where
otherwise noted.


                                              4
(1992) 2 Cal.App.4th 809, 815.) Section 1280 requires that the “writing was made by
and within the scope of duty of a public employee,” it was “made at or near the time of
the act, condition, or event” recorded, and the “sources of information and method and
time of preparation were such to indicate its trustworthiness.”3
       Significantly, once the section 1280 foundational requirements are met, section
664’s presumption that official duties have been regularly performed attaches. Under this
rebuttable presumption, it is presumed “ ‘that blood-alcohol test results recorded on
official forms were obtained by following the regulations and guidelines of title 17. . . .
The recorded test results are presumptively valid and the DMV is not required to present
additional foundational evidence. [Citation.]’ ” (Manriquez v. Gourley (2003)
105 Cal.App.4th 1227, 1232-1233; see also Morgenstern v. Department of Motor
Vehicles (2003) 111 Cal.App.4th 366, 373; Shannon v. Gourley (2002) 103 Cal.App.4th
60, 65; Petricka, supra, 89 Cal.App.4th at p. 1348.)
       Once the DMV establishes its prima facie case, the burden shifts to the driver to
produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift
the burden of proof back to the DMV. (Manriquez v. Gourley, supra, 105 Cal.App.4th at
pp. 1232-1233.) “ ‘The licensee must show, “through cross-examination of the officer or
by the introduction of affirmative evidence, that official standards were in any respect not
observed . . . .” [Citation.] Once such showing has been made, the burden shifts to the
DMV to prove that the test was reliable despite the violation.’ ” (Id. at p. 1233.) The
licensee’s “showing cannot rest on speculation, but must demonstrate a reasonable basis
for an inference that the procedures were not properly followed.” (Petricka, supra,
89 Cal.App.4th at p. 1348.)


       3
          Section 1280 provides, in full: “Evidence of a writing made as a record of an
act, condition, or event is not made inadmissible by the hearsay rule when offered in any
civil or criminal proceeding to prove the act, condition, or event if all of the following
applies: [¶] (a) The writing was made by and within the scope of duty of a public
employee. [¶] (b) The writing was made at or near the time of the act, condition, or
event. [¶] (c) The sources of information and method and time of preparation were such
as to indicate its trustworthiness.”

                                              5
       In general, the rules regarding admissibility of evidence in administrative per se
hearings are “relaxed.” (Lake v. Reed, supra, 16 Cal.4th at p. 467.) As set forth in
Government Code section 11513, subdivision (c) and (d): “(c) The hearing need not be
conducted according to technical rules relating to evidence and witnesses. . . . 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. [¶] (d) Hearsay evidence may be used for
the purpose of supplementing or explaining other evidence but shall not be sufficient in
itself to support a finding unless it would be admissible over objection in civil actions.”
       The Administrative Per Se Hearing
       The administrative per se hearing in this matter convened on December 28, 2011,
presided over by Hearing Officer Y. Li. It began with Hearing Officer Li introducing the
following documents on behalf of the DMV: Officer Mariconi’s DS 367 statement
executed under penalty of perjury (Exhibit 1); the forensic alcohol report from Central
Valley Toxicology (CVT) (Exhibit 2); a declaration and determination of probable cause
for a warrantless arrest, also executed under penalty of perjury by Officer Mariconi
(Exhibit 3); Officer Mariconi’s four-page arrest report (Exhibit 4); and an October 6,
2011 printout of Patel’s driving record (Exhibit 5).4
       Patel’s counsel objected to the admission of the documents on hearsay and lack of
foundation grounds. Hearing Officer Li overruled the objections and moved the exhibits
into evidence.
       Officer Mariconi’s DS 367 statement attested as follows: “On 04/02/11 at 0157
hours, I was on patrol driving marked LPD unit 14 eastbound on First St. near
Portola Ave. I noticed a silver Scion (CA license 6BAV402) also traveling eastbound in
the right (#2) lane. The vehicle caught my attention because it was traveling at about

       4
         The driving record showed that at the time of his April 2, 2011 arrest, Patel was
on probation for reckless driving stemming from a June 10, 2009 arrest for driving under
the influence.


                                              6
35 mph, below the posted speed limit of 40 mph. I watched the vehicle as I [sic] drifted
to the right, with both right side tires crossing over the solid white line dividing the
bicycle lane from the traffic lane (a violation of 21658(a) VC). The Scion moved back
into the traffic lane and continued eastbound. As the Scion passed Trevarno Rd. the
vehicle drifted to the right again, and traveled for about 30 feet with both right side tires
on the bicycle lane. I initialed [sic] a traffic enforcement stop on the vehicle for the
violation. The Scion made a right turn onto N. Mines Rd. and stopped on the right side
of the roadway. [¶] I contacted the driver of the Scion, Chirag Patel. When I was
speaking with Patel, I noticed that his eyes were bloodshot, watery and there was an odor
of an alcoholic beverage on his breath. I had Patel perform a series of standardized field
sobriety tests (SFSTs) and he consented to a PAS test. When he performed the SFSTs,
Patel showed signs of impairment. Based on my observations of Patel, his performance
on the SFSTs and the results of the PAS test, I believe that he was driving his vehicle
while under the influence of alcohol. I placed him under arrest for a violation 23152(a)
VC.”
       The one-page forensic alcohol report showed that on April 6, 2011, Patel’s blood
sample was delivered by Tricor, a delivery service, to CVT, where it was received by Bill
Posey. An analysis performed and recorded that same day confirmed a BAC of 0.13
percent. Analyst supervisor Alan D. Barbour signed the report on April 11, 2011, with
the following certification: “I certify, under penalty of perjury, that this is a true and
correct copy of results of the analysis on blood or urine obtained during the regular
course of my duties. I further certify, that I am Department of Health Services approved
Forensic Alcohol Supervisor or Forensic Alcohol Analyst and that equipment used for
analysis was in proper working order and recording of results was done at the time of
analysis using the method specified under California Forensic Alcohol License 04061.”
       The hearing then shifted to Patel, whose counsel offered the following exhibits,
which Hearing Officer Li marked for identification: a seven-page hearing brief dated
July 26, 2011 (Exhibit A); a 18-page packet of documents produced by CVT pursuant to
a subpoena served by Patel (Exhibit B); the curriculum vitae of Jeffrey L. Zehnder,


                                               7
laboratory director and founder of Drug Detection Laboratory (DDL) (Exhibit C); a blood
analysis report from DDL (Exhibit D); and a revised hearing brief dated December 28,
2011 (Exhibit E).
       Following the identification of the documents, Patel put on forensic toxicologist
Zehnder, who the hearing officer recognized as an expert.5 Zehnder testified that DDL
had performed an analysis of Patel’s blood sample, which showed a BAC of 0.10 percent,
compared to CVT’s result of 0.13 percent. He also testified that DDL’s test indicated a
sodium fluoride level of four milligrams per milliliter, which was below the industry
standard of 10 milligrams per milliliter. He explained that fluoride is a preservative that
reduces the possibility of microbial production of alcohol if microbes are present and also
inhibits enzymes that can break alcohol down. It is used, according to Zehnder, to
“preserve the integrity of the sample.” He confirmed, however, that the level of sodium
fluoride in the sample was not a violation of Title 17.6
       Zehnder also suggested that the results of CVT’s analysis were compromised.
This was so, he opined, because the baseline of the chromatogram was “hilly” rather than
flat, suggesting a problem with the chromotograph. He speculated that it had a dirty
injector, a column that was “getting a little long in the tooth,” or “garbage in the blood.”
He explained that DDL’s analysis was performed using the “head space” method, which
he claimed eliminated the possibility of contamination. He acknowledged, however, that



       5
         Zehnder had a bachelor’s degree in forensic science, with a chemistry teaching
minor. He had worked as a forensic toxicologist for over 36 years. He had qualified as
an expert in more than 2,000 cases regarding forensic toxicology, alcohol and drug
testing, alcohol metabolism, and the effects of alcohol and drugs on psychomotor
function skills in state and federal courts throughout California and Nevada, and he had
testified in more than 2,000 in administrative per se hearings.
       6
         “Title 17 establishes 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, quoting Cal. Code Regs., tit. 17, § 1215.1, subd. (b); see also Imachi v. Department
of Motor Vehicles, supra, 2 Cal.App.4th at p. 816.)


                                              8
CVT’s maintenance log indicated that CVT replaced the injector, injection port liner, and
septum once a week.
       Patel’s counsel then turned to a retest CVT performed on April 16, which showed
a BAC of less than 0.13. According to Zehnder, the drop in BAC from CVT’s first
analysis to its second and to DDL’s test could indicate problems with CVT’s initial
analysis. He admitted, however, that the variances could also have been due to storage
techniques or oxidation that occurred each time the sample was opened to perform a test.
       Following Zehnder’s testimony, the hearing officer moved two of Patel’s
exhibits—the documents CVT produced in response to Patel’s subpoena and DDL’s
laboratory report—into evidence. Patel’s counsel then gave his closing argument.
       On January 13, 2012, Hearing Officer Li issued his “Administrative Per Se—
.08 BAC Notification of Findings and Decision.” He found that Officer Mariconi had
probable cause to stop Patel, and Patel had displayed objective symptoms of intoxication
including bloodshot and watery eyes, the odor of alcoholic beverage, unsatisfactory field
sobriety tests, PAS results indicating intoxication, and an admission of alcohol
consumption. He further found that Officer Mariconi had reasonable cause to believe
that Patel was driving under the influence of alcohol and the arrest was lawful. Finally,
concluding that there was a “lack of sufficient evidence to rebut the chemical test
results,” he found that Patel had a BAC of 0.13 percent.
       Hearing Officer Li rejected the arguments Patel’s counsel had presented during his
closing argument. As to a contention that the blood analysis performed by CVT was
unreliable because the chromatograph’s “dirty baseline” suggested contamination of the
sample, the hearing officer concluded that Zehnder’s testimony in that regard went
“towards the weight of the evidence . . . .” He found that the preponderance of the
evidence indicated that Patel was driving with a 0.08 percent BAC or greater, citing
DDL’s own forensic alcohol report showing a BAC of 0.10 percent. Hearing Officer Li
also rejected the suggestion that the varying BAC results indicated unreliability in the
testing, citing Zehnder’s testimony that it may instead have been due to oxidation that
occurred each time the sample was opened.


                                             9
       Addressing a contention by Patel that there was no evidence the blood draw was
conducted in a medically approved manner, Hearing Officer Li determined “DMV
Exhibit 4 indicates [Patel’s] blood was drawn by a Certified Phlebotomy Technician. In
the absence of evidence to indicate the blood was not drawn in an approved manner,
[Patel’s] contention is found without merit.” He likewise rejected Patel’s contention that
there was an insufficient amount of sodium fluoride in the sample, citing Zehnder’s
testimony that the amount of preservative complied with Title 17, and that his arrest was
unlawful because there was no evidence that the bike lane into which he weaved was
lawfully established.
       The findings concluded with the decision to re-impose the suspension of Patel’s
driver’s license.
       The Petition for Administrative Mandate
       On February 14, 2012, Patel filed a petition for writ of administrative mandate,
seeking to set aside the suspension. The petition fundamentally argued that the evidence
showed Patel was lawfully driving his car at the time he was stopped and Officer
Mariconi did not observe him commit a crime or infraction. The petition also argued that
the DMV failed to lay a proper evidentiary foundation establishing the reliability of the
blood-alcohol test. Finally, it argued that the hearing violated Patel’s due process rights
because Hearing Officer Li both presented the evidence at the hearing and ruled upon its
admissibility.
       The DMV’s opposition argued that Officer Mariconi had reasonable cause to
believe that Patel was driving under the influence; he lawfully initiated the traffic stop
leading to Patel’s arrest; the DMV’s documentary evidence was entitled to the official
duty presumption under section 664 and supported the hearing officer’s findings; and
Patel was afforded due process.
       The matter came on for hearing on May 24, 2012. Patel began by reiterating the
same issues raised in closing argument at the administrative per se hearing and in the
petition for writ of mandate. Namely, he contended that he had been deprived of due
process because Hearing Officer Li served as both prosecutor and judge; that the blood


                                             10
analysis was inaccurate because, as his expert Zehnder had testified, there were
contaminants in the sample; and that his stop was unlawful because there was no
foundational evidence establishing that the bicycle lane into which he swerved complied
with the Streets and Highways Code. For the first time, Patel also argued that the
integrity of the blood sample was compromised because the chain of custody evidence
was inadequate and that the CVT forensic alcohol report was inadmissible because it was
not made at or near the time of the analysis, as required by section 1280.
       By order dated June 26, 2012, the trial court granted Patel’s petition. It observed
that the DMV bore the initial burden of establishing that a driver was operating a vehicle
with a blood-alcohol level of 0.08 percent or higher, a burden, the court noted, typically
satisfied by the arresting officer’s DS 367 statement and a forensic laboratory report
documenting the results of the driver’s blood test. Based on these documents, the hearing
officer had found that the DMV met its burden of showing that Patel was driving with a
BAC of 0.13 percent, and that Patel failed to present sufficient evidence to rebut the
chemical test results. Exercising its independent judgment, however, the trial court found
“that there was not substantial evidence to support the hearing officer’s findings in light
of the record as a whole.”
       As pertinent here, the trial court’s order stated:
       “The court finds there is insufficient evidence in the record to support a chain of
custody as to the blood samples taken from [Patel] such that the court can find that the
integrity of the blood sample was maintained. ‘In most cases it will be the arresting
officer who will . . . either give the test or take the suspect to a facility where a test can be
administered.’ [Citation.] Even if the test is administered by another officer, the
arresting officer still has a duty to make certain that the testing procedures satisfy
statutory and regulatory requirements. [Citation.] Arresting Officer Marconi here
completed both the DS 367 report and Arrest Report. [Citation.] It was Officer Oto
though, that transported [Patel] to Santa Rita Jail for his blood draw, which was taken at
2:50 a.m. on April 2, 2011, and Officer Oto that then took the vials from Certified
Phlebotomy Technician Adriana Hamm. [Citation.] Officer Mariconi’s April 2, 2011


                                               11
report states that ‘Technician Hamm turned the vials over to Officer Oto who later placed
them into the toxicology safe for lab testing.’ [Citation.] Thus, Officer Mariconi was
neither present at the blood draw nor does it appear he was ever in possession of the vials.
The record is also absent as to whether Officer Oto then forwarded the vials from the
toxicology safe to CVT for testing. [Citation.] The record only shows that the vials were
delivered by Tricor to CVT on April 6, 2011, which is 4 days after the blood samples
were taken. [Citation.] Given Officer Mariconi’s lack of personal knowledge combined
with this lack of evidence regarding maintaining the integrity of the blood samples, the
court cannot find that there is an evidentiary presumption that applies to the handling of
the blood samples.
       “In addition to the above issue, the forensic alcohol report likewise appears to be
unreliable. A blood test performed by a licensed forensic laboratory on behalf of a law
enforcement agency is also admissible based on the public employee records exception to
the hearsay rule. [Citation.] A forensic alcohol report is admissible at an administrative
hearing however, only ‘if it complies with the requirements governing the admission of
evidence.’ [Citation.] Such admissibility is found where the test results were put into
evidence through the certified laboratory report of the alcohol analyst who personally
performed the test. [Citation.] The requisite indicia of trustworthiness is based on the
fact that the analyst was reporting firsthand observations as well as by the presumption of
official duty regularly performed. [Citation.] Where blood test results were not reported
by the analyst but by the arresting officer that merely attested that he reviewed the results,
that part of the officer’s report regarding the result of the blood-alcohol test—the sole
proof of the licensee’s blood-alcohol content—was found to be inadmissible hearsay.
[Citation.]
       “The blood test results in this case were not placed into evidence through the
certified laboratory report of the analyst that performed the test. The record shows that
the laboratory testing was done by an unidentified analyst with the initials ‘JEC’ on
April 6, 2011. [Citation.] The results were then certified by Analyst Supervisor Alan D.
Barbour (‘Barbour’) on April 11, 2011. [Citation.] Mr. Barbour certifies the results


                                             12
under penalty of perjury, stating that the results were obtained during the regular course
of his duties and that the equipment used for analysis was in proper working order and
recording of results was done at the time of analysis. [Citation.]
       “It is unclear how Mr. Barbour can certify that the equipment was proper and the
recordings were done at the time of analysis, when the testing was done by ‘JEC’ and not
Mr. Barbour himself. This lack of foundation is further compounded by the fact that the
records shows [sic] the results were certified on April 11, 2011, 5 days after the testing
was done. It would appear to the court that this testing was therefore not performed in
Mr. Barbour’s regular course of duties, nor can it be said that the certified laboratory
results were prepared at or near the time of testing, such that the evidentiary presumption
should apply. The court also finds that based on its independent review of the record,
there was sufficient evidence to rebut that the presumption under Evidence Code sections
664 and 1280 apply [sic] to the laboratory results, and therefore the hearing officer
should have shifted the burden back to the DMV to establish the admissibility of these
reports.”
       The trial court remanded the matter to the DMV to set aside its findings and
decision and “for reconsideration of this case in light of the court’s opinion, and further
hearing consistent with this order, if necessary.”
       Judgment was entered on July 31, 2012, and the DMV timely appealed.
                                      DISCUSSION
       Standard of Review
       The rules that pertain are well settled, as confirmed in the leading case of Lake v.
Reed, supra, 16 Cal.4th 448. First, as to the rules governing the trial court, “In ruling on
an application for a writ of mandate following an order of suspension or revocation, a
trial court is required to determine, based on its independent judgment, ‘ “whether the
weight of the evidence supported the administrative decision.” ’ ” (Id. at p. 456.) But
even with that independent judgment, “the trial court still ‘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


                                             13
administrative findings are contrary to the weight of the evidence.’ ” (Manriquez v.
Gourley, supra, 105 Cal.App.4th at p. 1233, quoting Fukuda v. City of Angels (1999)
20 Cal.4th 805, 817.)
       As to the rules governing us, Lake v. Reed, supra, 16 Cal.4th 448 further confirms
that “[o]n appeal, we ‘need only review the record to determine whether the trial court’s
findings are supported by substantial evidence.’ [Citations.] ‘ “We must resolve all
evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the
trial court’s decision. [Citations.] Where the evidence supports more than one inference,
we may not substitute our deductions for the trial court’s. [Citation.] 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. [Citation.]” ’ [Citation.]” (Id. at p. 457;
accord, Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176, 1184.)
       We review the trial court’s evidentiary rulings for abuse of discretion.
(Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 986 (Molenda).)
“ ‘[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded
the bounds of reason, all of the circumstances before it being considered.’ [Citation.]
Appellate courts will disturb discretionary trial court rulings only upon a showing of a
clear case of abuse and a miscarriage of justice.” (Ibid.)
       The Trial Court’s Finding That the DMV Failed to Satisfy Its Initial Burden
       of Proof Is Unsupported By Substantial Evidence.
       As noted above, at the administrative per se hearing, the DMV’s burden was
threefold. It was required to demonstrate that: (1) Officer Mariconi had reasonable cause
to believe that Patel was driving a vehicle under the influence; (2) Patel was lawfully
arrested; and (3) Patel was driving his car with a blood-alcohol level of 0.08 percent or
greater. (Lake v. Reed, supra, 16 Cal.4th at pp. 455-456; Veh. Code, § 13557, subd. (b),
§ 13558, subd. (c)(1).) Where the driver submits to a blood test, as Patel did here, the
DMV usually satisfies its burden by introducing two documents: the arresting officer’s
sworn DS 367 statement and a forensic laboratory report documenting the results of a
chemical blood test. (Petricka, supra, 89 Cal.App.4th at p. 1348.) The DMV introduced


                                               14
these documents at the hearing over the objection of Patel’s counsel. While the trial court
expressed no concerns over the hearing officer’s decision to admit the DS 367 statement,
it found that the laboratory report lacked reliability. Although the court did not expressly
put it in these terms, the ruling amounted to an evidentiary determination that the report
did not meet the foundational requirements of section 1280 and thus should not have been
admitted.
       As noted, we review the trial court’s evidentiary rulings for abuse of discretion
(Molenda, supra, 172 Cal.App.4th at p. 986), and we conclude this discretion was
abused.
       As previously indicated, under section 1280 the forensic alcohol report was
admissible if it was made by and within the scope of duty of a public employee, was
made at or near the time of the act, condition, or event recorded, and the sources of
information and method and time of preparation suggested that it was trustworthy.
(§ 1280.) The trial court took exception with the first and second foundational
requirements. We address them in turn.
       We can easily dispose of the trial court’s concern as to the first requirement. The
court concluded that the report was not prepared by and within the scope of duty of a
public employee because the report was sworn by Analyst Supervisor Barbour, while the
analysis was apparently conducted by “JEC.” Thus, according to the court, it appeared
the “testing was therefore not performed in Mr. Barbour’s regular course of duties . . . .”
In fact, the report makes no reference to “JEC.” The court’s speculation that “JEC”
conducted the analysis is drawn from records in the packet CVT produced in response to
Patel’s subpoena. In the forensic alcohol report itself, Barbour attested that he was a
“Department of Health Services approved Forensic Alcohol Supervisor or Forensic
Alcohol Analyst” and that the results of the analysis were obtained during the regular




                                             15
course of his duties. The court’s speculation regarding “JEC” was insufficient to negate
Barbour’s certification, and the first foundational requirement was satisfied.7
       Turning to the second foundational requirement—that the “writing was made at or
near the time of the act, condition, or event” recorded—the trial court concluded that the
forensic alcohol report did not satisfy this requirement because although the analysis was
conducted on April 6, Barbour did not certify the results until April 11, five days later.
This conclusion is contrary to applicable case law.
       It has been widely recognized that “ ‘[h]ow 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.’ ” (People v. Martinez (2000) 22 Cal.4th 106, 128, fn. 7, italics
omitted.) As the Martinez court went on to explain, “[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 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.’ ” (Id. at
p. 128.) Multiple cases have considered the timeliness requirement in the context of a
forensic alcohol analysis, but they do not avail Patel.
       In Downer v. Zolin (1995) 34 Cal.App.4th 578, disapproved on other grounds in
Lake v. Reed, supra, 16 Cal.4th 448, 465, 467, footnote 11, a laboratory report of the
analysis of a driver’s urine sample lacked a signature near the statement of certification,
and it was questionable whether the report was dated. Concluding that the trial court had
not erred in finding the report undated, the Court of Appeal held that “[t]he absence of

       7
        We also note that the trial court misunderstood the requirement to be that the
analysis was conducted within the scope of Barbour’s duties. In fact, as is clear from the
language of section 1280, the requirement is that “[t]he writing was made by and within
the scope of duty of a public employee.” (Italics added.)


                                             16
evidence showing the report was made at or near the time of the reported event” rendered
it inadmissible hearsay under section 1280. (Downer v. Zolin, supra, 34 Cal.App.4th at
p. 582.) In dictum, and as relevant here, the court went on to state that “a report prepared
nearly a week after the forensic tests were completed does not fall within the statutory
requirement that the report be prepared ‘at or near the time’ of the reported event.” (Id. at
p. 582, fn. 5.)
       In Glatman v. Valverde (2006) 146 Cal.App.4th 700, a motorist suspected of
driving under the influence had his blood drawn just after midnight on July 25, 2005.
That same day, a forensic analyst analyzed the sample. The sample was then analyzed
again the next day by a different analyst. The two analysts certified the test results on a
forensic report dated August 1, one week after the first analysis was conducted.
(Glatman v. Valverde, supra, 146 Cal.App.4th at p. 703.) At the administrative hearing,
the hearing officer rejected the driver’s argument that the report was inadmissible
because the test results were not recorded at or near the time of the blood analysis. (Ibid.)
       The driver petitioned the superior court for a writ of mandate. (Glatman v.
Valverde, supra, 146 Cal.App.4th at p. 703.) The court held that the forensic report did
not satisfy Evidence Code section 1280’s second foundational requirement and was thus
inadmissible. After also rejecting the officer’s report of the driver’s PAS results, the
court granted the petition and issued a writ commanding the DMV to set aside the license
suspension. (Ibid.)
       On the DMV’s appeal, the Court of Appeal affirmed. It held that the trial court
did not abuse its discretion in finding that the forensic report was not made “at or [near]
the time of the event,” since it was prepared a week after the analysis was performed.
(Glatman v. Valverde, supra, 146 Cal.App.4th at p. 704.) Citing People v. Martinez,
supra, 22 Cal.4th at p. 128, the court stated that the case presented a “ ‘danger of
inaccuracy by lapse of memory.’ ” (Ibid.) It rejected the DMV’s argument that given the
number of tests performed each day, it was unreasonable to infer that the analyst
attempted to memorize the results and then record them from memory a week later.
According to the DMV, the only reasonable inference was that the laboratory had policies


                                             17
and procedures in place to ensure that the results were recorded when the analysis was
conducted. (Id. at pp. 704-705.) The court disagreed, stating, “[A]n inference may be
drawn only if the ‘proposed conclusion is a reasonable, logical, and nonspeculative
deduction from the facts proved.’ [Citation.] Here, the record is silent as to the
department’s recordation policies and procedures, an automatic recording capability of
the testing equipment used, and the average number of tests performed by an analyst each
day.” (Id. at p. 705.)
       In Molenda, supra, 172 Cal.App.4th at pp. 982-983, late on the evening of
August 17, 2006, a car was involved in a single-vehicle rollover accident. The
responding officers determined the driver was under the influence of alcohol and arrested
her. Shortly after midnight on August 18, she submitted to a blood test. (Id. at p. 983.)
The laboratory received the blood sample on August 21, completed its analysis on
September 1, and recorded the results in a report dated September 8. (Ibid.)
       In the administrative per se hearing, the driver objected to the admissibility of the
toxicology report, complaining that it did not meet the foundational requirements of
section 1280 because it was not prepared “at or near the time” of the reported event.
(Molenda, supra, 172 Cal.App.4th at p. 984.) The hearing officer disagreed, finding that
“ ‘seven days is at or near the time of analysis’ ” and upholding the license suspension.
(Id. at pp. 984-985.)
       The driver filed a petition for writ of mandate to set aside the suspension.
(Molenda, supra, 172 Cal.App.4th at p. 985.) The superior court granted the petition,
holding that the delay in preparing the toxicology report rendered the report inadmissible.
(Ibid.) The Court of Appeal affirmed. (Molenda, supra, 172 Cal.App.4th at p. 982.) It
stated that, as in Glatman v. Valverde, supra, 146 Cal.App.4th 700, there was no
evidence the test result was recorded prior to the preparation of the written report, which
was done one week after the analysis. As such, there was no evidence it was prepared at
or near the time of the recorded event, and the trial court was within its discretion to
exclude it. (Id. at p. 991.)



                                             18
       These cases instruct that while there is no fixed number of days that constitutes “at
or near the time of analysis,” seven days does not satisfy the requirement where there are
no indicia that the test results were recorded contemporaneously with the analysis and
later transferred to a sworn report. But in this case, the time lapse between the April 6
analysis and the April 11 report was only five days. We are aware of no authority—and
Patel cites none—finding that a lapse of five days under any given circumstances defeats
the “at or near the time of analysis” requirement of section 1280.
       More significantly, the evidence before Hearing Officer Li established that there
was no “danger of inaccuracy by lapse of memory.” The CVT report itself stated that the
ethyl alcohol analysis was “performed and recorded on: 04/06/11.” (Italics added.) The
packet of CVT documents Patel introduced further confirmed that the data was
contemporaneously recorded with the analysis. Among these records were two
worksheets, for lack of a better word, that recorded the data generated by Patel’s blood
analysis. They were dated April 6 and time-stamped 10:58:27 a.m. and 11:04:10 a.m.—
just minutes after the analysis was commenced at 10:54:25 a.m. and 11:00:08 a.m.,
respectively. Likewise, another document entitled “Forensic Alcohol Log,” also dated
April 6, reported data from the worksheets and identified Patel’s BAC of 0.13 percent. It
thus cannot be said that there was a “danger of inaccuracy from memory lapse” when the
results were recorded within minutes of the tests being conducted.
       In light of the foregoing, we conclude that the forensic alcohol report satisfied
section 1280’s foundational requirements and was thus admissible. It was an abuse of
discretion for the trial court to have concluded otherwise.
       The forensic alcohol report and Officer Mariconi’s DS 367 statement together
established that the officer had reasonable cause to believe Patel was driving under the
influence, Patel was properly arrested, and he had a BAC of 0.13 percent. Based on
section 664, then, the DMV was entitled to a presumption that the blood test results were
obtained in compliance with the regulations and guidelines of Title 17. (Shannon v.
Gourley, supra, 103 Cal.App.4th 60, 64.) This shifted the burden to Patel to introduce
evidence establishing otherwise.


                                             19
       Patel Failed to Introduce Sufficient Evidence Rebutting the DMV’s Prima
       Facie Case
       While the trial court primarily held that the DMV did not satisfy its initial burden
of proof and was thus not entitled to the section 664 presumption, it held, in the
alternative, that even if the DMV satisfied its initial burden, thereby shifting the burden to
Patel, “there was sufficient evidence to rebut that the presumption under Evidence Code
section 664 and 1280 apply to the laboratory results, and therefore the hearing officer
should have shifted the burden back to the DMV to establish the admissibility of these
reports.” Again, this conclusion is unsupported by substantial evidence.
       First, the trial court found that the forensic alcohol report was unreliable. Aside
from the timing issues—which we have already rejected—the court was concerned that
someone with the initials “JEC” apparently conducted the analysis, while forensic alcohol
supervisor Barbour certified the report.8 It thus found it “unclear how Mr. Barbour can
certify that the equipment was proper and the recordings were done at the time of the
analysis, when the testing was done by ‘JEC’ and not by Mr. Barbour himself.” The flaw
in this argument, however, is that it is founded on mere speculation because Patel made
no effort to develop this evidence at the hearing. The CVT worksheets identified the
“Acq. Operator” as “JEC,” but we do not know the significance of this notation. Patel
did not subpoena “JEC” or Barbour to testify at the hearing. He elicited no evidence or
testimony regarding the respective roles of “JEC” or Barbour in conducting the forensic
analysis. And based on the CVT records, it is possible that Barbour had personal
knowledge of all that he certified.
       Furthermore, even assuming arguendo there was evidence establishing that “JEC”
conducted the analysis, such evidence would not automatically render the report
unreliable. Citing Petricka, supra, 89 Cal.App.4th at p. 1351, the trial court was
apparently under the mistaken belief that the forensic alcohol report could only be

       8
         Title 17 defines a “Forensic Alcohol Supervisor” as “a person employed by a
forensic alcohol laboratory who can be responsible for all aspects of the performance of
forensic alcohol analysis and for the supervision of personnel who perform such
analysis.” (Cal. Code Regs., tit. 17, §§ 1215.1, subd. (f).)

                                             20
certified by the analyst who personally performed the test. But that is not what Petricka
held, and we are aware of no other authority so holding. If supervisor Barbour had
personal knowledge of what he was certifying—e.g., that in supervising “JEC,” he
oversaw the analysis, confirmed that the equipment was in proper working order, and
supervised the recording of the results—we can perceive no reason why his certification
would be inadequate.9
       In addition to the reliability concerns with the forensic alcohol report, the trial
court concluded the integrity of Patel’s blood sample was compromised because there
was insufficient evidence showing a chain of custody. It described these concerns as
follows: “Arresting Officer Mariconi here completed both the DS 367 report and Arrest
Report. [Citation.] It was Officer Oto though, that transported [Patel] to Santa Rita Jail
for his blood draw, which was taken at 2:50 a.m. on April 2, 2011, and Officer Oto that
then took the vials from Certified Phlebotomy Technician Adriana Hamm. [Citation.]
Officer Mariconi’s April 2, 2011 report states that ‘Technician Hamm turned the vials
over to Officer Oto who later placed them into the toxicology safe for lab testing.’
[Citation.] Thus, Officer Mariconi was neither present at the blood draw nor does it
appear he was ever in possession of the vials. The record is also absent as to whether
Officer Oto then forwarded the vials from the toxicology safe to CVT for testing.
[Citation.] The record only shows that the vials were delivered by Tricor to CVT on
April 6, 2011, which is 4 days after the blood samples were taken. [Citation.] Given
Officer Mariconi’s lack of personal knowledge combined with this lack of evidence
regarding maintaining the integrity of the blood samples, the court cannot find that there
is an evidentiary presumption that applies to the handling of the blood samples.” The
trial court’s conclusion that evidence regarding the chain of custody was sufficient to
rebut the section 664 presumption was unsupported by substantial evidence.



       9
       The trial court’s concerns with the reliability of CVT’s forensic alcohol report
were much ado about nothing anyhow, since Patel’s own alcohol analysis showed he had
a BAC of 0.10 percent.


                                              21
       First, as a general matter, deficiencies in chain of custody documentation go to the
weight of the proffered evidence, not to the evidence’s admissibility. (People v. Catlin
(2001) 26 Cal.4th 81, 134; People v. Diaz (1992) 3 Cal.4th 495, 559.) Here, even
assuming arguendo that the chain of custody was inadequately documented, there was no
evidence suggesting that Patel’s blood sample was compromised. There was no evidence
that the vials were unlabeled or improperly labeled and, in fact, the record shows the
opposite. There was no suggestion that the vials were tampered with in any way.
       Additionally, the trial court’s rejection of Officer Mariconi’s account of the blood
draw and subsequent handling of Patel’s blood sample due to his purported lack of
personal knowledge was erroneous for two reasons. First, in an administrative per se
hearing, there is a “relaxation of evidentiary rules” (Petricka, supra, 89 Cal.App.4th at
p. 1348), and hearsay evidence is admissible to supplement or explain other evidence.
(Gov. Code, § 11513, subd. (d); Lake v. Reed, supra, 16 Cal.4th at p. 458.)
       Second, the trial court’s conclusion that Officer Mariconi lacked personal
knowledge was again speculative. From Officer Mariconi’s description in his report, it is
entirely possible that he was present at the blood draw and when Officer Oto placed the
sample in the toxicology safe. Patel could have attempted to show Officer Mariconi’s
lack of personal knowledge at the hearing by subpoenaing Officers Mariconi or Oto or
the phlebotomist, but he made no effort to develop the evidence.
       In sum, once the DMV satisfied its initial burden, the burden shifted to Patel to
produce evidence demonstrating that the applicable procedures were not properly
performed. (Manriquez v. Gourley, supra, 105 Cal.App.4th at pp. 1232-1233.) The trial
court mistakenly believed that Patel merely had to “raise[] an issue as to the integrity of
the blood draw [for] the burden [to] shift[] back to the [DMV] . . . .” He was, however,
required to do more than merely “raise an issue,” and his showing could not rest on
speculation. (Petricka, supra, 89 Cal.App.4th at p. 1348.) But this is what his showing
did and, for that reason, the trial court’s finding that Patel introduced sufficient evidence
to shift the burden back to the DMV was unsupported by substantial evidence.



                                              22
       Patel’s Arguments in His Respondent’s Brief Lack Merit
       In his respondent’s brief, Patel reiterates the same arguments he made during the
administrative per se hearing and in his petition for writ of mandate, none of which the
trial court relied on in granting his writ petition. Specifically, he contends that his arrest
was unlawful because the DMV did not establish that the bicycle lane was lawfully
created, and the DMV failed to lay a foundation that his blood was drawn in compliance
with Title 17. Neither the hearing officer nor the trial court based its decision on either of
these arguments, and we likewise conclude they lack merit.
       Additionally, Patel argues that his due process rights were violated because the
hearing officer presented and ruled on the admissibility of the DMV exhibits and because
Government Code section 11502 mandates that administrative hearing officers be
attorneys with at least five years experience. His cited authority does not support his
arguments, however, and we conclude the hearing was conducted in accordance with the
established procedures.
                                       DISPOSITION
       We conclude with the observation that, as California’s courts and Legislature have
long recognized, drunk driving is an extremely dangerous offense. (See Helmandollar v.
Department of Motor Vehicles (1992) 7 Cal.App.4th 52, 57 [“numerous, dangerous, and
deadly risks associated with drinking and driving”]; Burg v. Municipal Court (1983)
35 Cal.3d 257, 262 [“The drunk driver cuts a wide swath of death, pain, grief, and untold
physical and emotional injury across the roads of California and the nation.”]; Taylor v.
Superior Court (1979) 24 Cal.3d 890, 899[“Drunken drivers are extremely dangerous
people.”]; People v. Duroncelay (1957) 48 Cal.2d 766, 772.) Patel does not appear to
take these dangers to heart, as the drunk driving arrest spawning this matter was not his
first. Despite this, the law would require us to affirm the trial court’s decision reinstating
Patel’s driver’s license if the decision was supported by substantial evidence. It was not,
and we therefore reverse.




                                              23
       The case is remanded to the trial court with directions to enter an order denying
Patel’s petition for writ of mandate and reinstating the suspension order. The DMV shall
recover its costs on appeal.

                                                 _________________________
                                                 Richman, J.


We concur:


_________________________
Haerle, Acting P.J.


_________________________
Lambden, J.




                                            24
