Filed 2/17/16 Bernard v. Department of Motor Vehicles CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                        (Lassen)
                                                            ----




JASON L. BERNARD,                                                                       C078256

                   Plaintiff and Appellant,                                   (Super. Ct. No. 57635)

         v.

DEPARTMENT OF MOTOR VEHICLES,

                   Defendant and Respondent.




         Plaintiff and appellant Jason L. Bernard contests the trial court’s denial of his
petition for writ of mandate, in which he sought an order directing defendant and
respondent Department of Motor Vehicles (DMV) to set aside its decision suspending
Bernard’s driver’s license. Though the parties’ arguments center on the rebuttable
presumption set forth in Vehicle Code section 23152, subdivision (b)1 that Bernard had
driven with a blood-alcohol content (BAC) of 0.08 percent or higher based on his


1 Undesignated statutory references are to the Vehicle Code.



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subsequent breath test results showing a 0.12 percent BAC, we conclude that regardless
whether the presumption applied or was rebutted, there is substantial evidence to support
the trial court’s denial of Bernard’s petition for writ of mandate. Thus, we will affirm the
judgment.

                 FACTUAL AND PROCEDURAL BACKGROUND

       On September 24, 2012, at approximately 3:25 p.m., Officer Thabiti Mwalozi
arrested Bernard on suspicion of driving under the influence (DUI) of alcohol and with a
BAC of 0.08 percent or higher, and suspended Bernard’s driver’s license. Bernard
sought an administrative hearing with the DMV to challenge the license suspension.
Evidence submitted at the October 26, 2012 administrative hearing included testimony
from Mwalozi and Bernard, as well as the arrest report and statement made by Mwalozi,
the administrative per se suspension order, and the results of Bernard’s breath tests
administered by Mwalozi.

       This evidence showed that Officer Mwalozi had responded to a report that a man
was slumped over the wheel of a white sport utility vehicle, and had found Bernard
asleep in the driver’s seat of the vehicle, which was stopped on the wrong side of the road
against a sloped embankment. When Mwalozi approached the vehicle, he noticed an
open beer can in the center console, removed the key from the ignition (the ignition was
not on), and awakened Bernard. Mwalozi noted that Bernard’s breath smelled of alcohol,
that his eyes were red and watery, and that his speech was slow and slurred. Bernard
informed Mwalozi that he had taken half an Ambien (prescription sleep aid) at
approximately 1:30 p.m., drank two 24-ounce cans of beer at a nearby trailhead within an
hour and a half of Mwalozi contacting him, and attempted to drive home. He did not
remember how he came to be parked where Mwalozi located him. Bernard agreed to
perform field coordination tests and exited his vehicle. He walked unsteadily, and
performed poorly on some of the field tests. Bernard also submitted to two breath tests at


                                             2
approximately 3:30 p.m., both of which revealed his BAC was 0.12 percent. Based on
Bernard’s elevated BAC, Mwalozi suspended Bernard’s driver’s license. (§ 13353.2,
subds. (a)-(b).)

       Bernard testified that he had taken the half an Ambien at about 12:30 p.m. and had
tried to go to sleep, but when he could not, he got up at approximately 1:00 or 1:15 p.m.,
went to the local mini-market, where he bought two 20-ounce cans of beer, drove to the
parking lot at the nearby trailhead, and drank three-quarters of one beer.2 He started to
“feel weird” from “more than just alcohol,” and only then remembered he had taken the
Ambien, so he attempted to drive home. He drove about 100 yards, realized he could not
drive, pulled over, turned off his car, and fell asleep. It was about an hour later when
Officer Mwalozi contacted Bernard. Bernard also testified he had previously undergone
gastric bypass surgery, and believed it had caused the alcohol to be absorbed into his
system more rapidly. The hearing officer challenged Bernard as to the effect of Ambien
on the absorption of alcohol, but Bernard presented no evidence in that regard. The
DMV upheld the suspension of Bernard’s license.

       Thereafter, the district attorney declined to file criminal charges for DUI against
Bernard, concluding “[t]here was not enough evidence to support a finding that [Bernard]
was actually ‘driving’ the vehicle.” Instead, Bernard was charged with public
intoxication. Based on the dismissal of charges for DUI, Bernard was statutorily entitled
to and sought a new administrative hearing with the DMV to challenge the suspension of
his license. (§ 13353.2, subds. (e)-(f).)

       At the second administrative hearing, which began on May 9 and reconvened on
June 10, 2013, Officer Mwalozi was not available to testify, but the hearing officer

2 Bernard apparently discovered that one beer can was unopened and that one-quarter of
the other beer remained in the opened can when he went to retrieve his car from the
towing company the day after his arrest.


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admitted into evidence the entire transcript of the October 26, 2012 hearing, including
both Mwalozi’s and Bernard’s testimony, as well as the suspension order and arrest
report reflecting the objective symptoms of intoxication Mwalozi observed, and
Bernard’s breath test results. Bernard provided further testimony at the hearing. On this
occasion, he testified he had been sitting in his car in the parked position for more than
two hours before Mwalozi contacted him (he denied having testified at the prior hearing
that he had been parked for one hour), he had left work at 12:30 p.m., he did not drink
any more once he was parked next to the embankment, and he had consumed only part of
one beer (now testifying it was two-thirds of one can). He acknowledged that he had
driven his car to where it was parked after drinking, but because he made the decision to
pull over, park the car, and sleep, he did not believe he was intoxicated at the time.
Following the hearing, the DMV sustained the suspension of Bernard’s driver’s license.
The hearing officer also noted that Mwalozi’s testimony was credible and that Bernard’s
testimony was given “[l]ittle weight” because it “was inconsistent with statements made
at or near the time of the event” and at the prior hearing.

       Bernard subsequently petitioned the trial court for a writ of mandate, seeking an
order directing the DMV to set aside its administrative decisions suspending Bernard’s
driver’s license and to remove any reference to Bernard having driven with a BAC of
0.08 percent or higher. Bernard contended that the DMV’s findings that Officer Mwalozi
had reasonable cause to believe Bernard had driven under the influence and that Bernard
had driven with a BAC of 0.08 percent or higher were not supported by the evidence. He
also argued the DMV was relying on the rebuttable presumption set forth in section
23152, but that he had rebutted the presumption with his testimony. The DMV argued
the evidence presented at the hearings, including Bernard’s testimony, supported the
administrative suspension of Bernard’s license because it showed he was inebriated and
that he had admitted to drinking and then driving.



                                              4
        The trial court found that though Bernard argued he had rebutted the presumption
by testifying he took half an Ambien and had previously had gastric bypass surgery, he
did not present any expert testimony on what effect the Ambien or gastric bypass would
have with regard to blood-alcohol absorption, and thus he had not successfully rebutted
the presumption. The trial court further found Bernard had not rebutted the presumption
by testifying at the hearing that he had consumed only two-thirds to three-quarters of a
20-ounce beer when he had previously admitted drinking two full 24-ounce beers, and it
also declined to accept Bernard’s theory, unsupported by any expert testimony, that in the
course of the one and a half to two and a half hours between the consumption of the
alcohol and the breath test there had been a rise in his blood-alcohol level without any
dissipation or elimination. Therefore, the trial court denied Bernard’s petition for writ of
mandate, finding “[i]t was not unreasonable for the hearing officer to determine . . . that
[Bernard] was in excess, or a 0.08 [BAC percent] or higher, at or about the time that he
drove . . . .”

                                       DISCUSSION

        On appeal, Bernard contends the trial court erred in denying his petition for writ of
mandate. He claims the trial court should have ordered the DMV to vacate its
administrative findings because he presented evidence to rebut the statutory presumption
codified in section 23152, subdivision (b),3 and that there was no evidence other than the
statutory presumption to support a finding that he had driven with a BAC of 0.08 percent
or higher. The DMV argues Bernard’s testimony did not rebut the presumption, and,
even if it did, there was substantial evidence to support a finding that Bernard drove with

3 Section 23152, subdivision (b) provides, in relevant part, “In any prosecution under
this subdivision, it 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.”


                                              5
a BAC in excess of 0.08 percent. Assuming without deciding that the rebuttable
presumption applied,4 we agree with the DMV that even if Bernard successfully rebutted
the statutory presumption, there was nevertheless sufficient evidence to support the
finding that Bernard had driven with a BAC of 0.08 percent or higher.

       To affirm the administrative per se suspension of Bernard’s driver’s license
pursuant to section 13382 for DUI or with a BAC of 0.08 percent or higher, the
administrative hearing officer had to find the DMV had shown, by a preponderance of the
evidence, that (1) the arresting officer had reasonable cause to believe Bernard had been
driving, (2) Bernard was arrested for an enumerated offense, i.e., DUI or with a BAC of
0.08 percent or higher, and (3) Bernard drove with a BAC of 0.08 percent or higher.
(§§ 13557-13558, 23152; Coffey, supra, 60 Cal.4th at pp. 1207-1208.) When Bernard
challenged the DMV’s administrative decision in the trial court by petition for writ of
mandate, the trial court had “to determine, based on its independent judgment, whether
the weight of the evidence supported the administrative decision.” (Hildebrand v.
Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1567-1568 (Hildebrand).)
The trial court strongly presumes the administrative findings are correct, and it is the
petitioner’s burden to establish the administrative hearing officer abused his or her
discretion. (Id. at p. 1568.)

       Our subsequent review of the trial court’s denial of a driver’s writ petition is
limited: “ ‘[W]e “need only review the record to determine whether the trial court’s



4 We note initially that it has not been decided whether this presumption applies in
administrative per se suspension hearings such as the one at issue here. (Coffey v.
Shiomoto (2015) 60 Cal.4th 1198, 1208-1209 (Coffey).) Both parties appear to assume it
does apply, and Coffey deduces in dicta that the legislative history of section 23152
would support application of the presumption in such hearings. (Coffey, at pp. 1208-
1209.) Nonetheless, based on our conclusion that there is substantial evidence to support
the trial court’s findings, regardless of the presumption, we do not decide the issue.


                                              6
findings are supported by substantial evidence.” [Citation.] “ ‘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.’ ” ’ ” (Coffey, supra, 60 Cal.4th at p. 1217.)
If the only issue involved turned on the interpretation of statute or regulation, we would
not be bound by the trial court’s conclusions, but where, as here, “the superior court
analyzed the record, made credibility determinations, and applied the law to the facts as
established in that manner . . . , we should give the trial court appropriate deference with
respect to its views on whether the administrative findings were supported by the weight
of the evidence.” (Hildebrand, supra, 152 Cal.App.4th at p. 1568.)

       Bernard does not dispute there was substantial evidence to support the
administrative finding that Officer Mwalozi had reasonable cause to believe he had been
driving or that he was arrested for one of the statutorily enumerated offenses. Nor does
he dispute that the rebuttable presumption of section 23152, subdivision (b) applied, for
his breath test showed his BAC was 0.12 percent and he testified he had driven within
three hours prior to the completion of the breath tests.5 Rather, he contends he rebutted
the presumption based on his testimony that he had consumed only a portion of one beer,
he did not believe he was feeling the effects of intoxication but of the Ambien when he
was driving, he believed his gastric bypass procedure had altered his alcohol absorption,




5 Section 23152, subdivision (b) provides, in relevant part, “In any prosecution under
this subdivision, it 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.”


                                               7
and there was not enough time between his consumption of the alcohol and driving the
car for his BAC to be sufficiently elevated.

       To rebut the section 23152 presumption, the driver need only “present[] evidence
which, if believed, ‘would support a finding of [the] nonexistence of’ [citation] the
presumed fact,” i.e., that the driver had a BAC of 0.08 percent or higher when he or she
was driving. (Coffey, supra, 60 Cal.4th at p. 1210.) This evidence must be “sufficient to
negate the presumed fact,” i.e., that Bernard drove with an elevated BAC. (Id. at
pp. 1209-1210.) If the presumption is rebutted, “the trier of fact must weigh the
inferences arising from the facts that gave rise to the presumption against the contrary
evidence and resolve the conflict.” (Id. at p. 1210.) Thus, though the presumption
disappears, the facts that permitted the presumption to be used in the first place may still
be considered in determining whether the driver had an elevated BAC when he or she
was driving. (Id. at pp. 1210, 1216.)

       Here, Bernard testified he took half an Ambien at 12:30 p.m. (or later, depending
on which instance of testimony is credited), bought beer sometime after 1:15 p.m., drank
some amount of beer shortly thereafter (two-thirds to three-quarters of one 20-ounce
can), felt the combined effects of the Ambien and alcohol, and immediately drove about
100 yards before realizing he could not drive. His breath tests, which resulted in a BAC
of 0.12 percent, were conducted anywhere from one hour to more than two hours later.
He also testified he did not believe he was intoxicated when he drove because he made
the logical decision to pull over. He contends this evidence, if believed, supports the
logical conclusion that “the alcohol had not yet had time to assimilate into his system at
the time he moved his vehicle the 100 to 150 yards down the street from his initial
location at the . . . trailhead.” The trial court clearly disagreed, finding Bernard had not
rebutted the presumption because he had not presented any expert testimony as to the
effect of the Ambien or gastric bypass surgery on the rate at which Bernard would have


                                               8
absorbed the alcohol, his testimony was inconsistent with his prior statements, and his
theory would require the illogical conclusion that Bernard’s BAC had risen without any
dissipation or elimination during the period between his driving and the breath tests. We
need not decide the matter because, even assuming Bernard’s evidence would be
sufficient to rebut the statutory presumption, there was sufficient evidence in the absence
of the presumption to support the trial court’s denial of writ relief, thereby sustaining the
administrative decision to suspend Bernard’s license. (See Coffey, supra, 60 Cal.4th at
p. 1217-1218.)

       Contrary to Bernard’s apparent position, the DMV could consider all evidence
presented at the administrative hearing, including Bernard’s own testimony and prior
statements, to determine whether it had been proved by a preponderance of the evidence
that Bernard drove with an elevated BAC. (Coffey, supra, 60 Cal.4th at p. 1210.) The
DMV did not have to prove Bernard’s BAC at the time he drove with direct evidence.
(Id. at p. 1213 [“circumstantial evidence of intoxication may be admissible when later-
administered chemical tests show a BAC exceeding the legal limit”].) Nor did the DMV
have to disregard all of Bernard’s testimony merely because it discredited some as
inconsistent with his prior statements. (People v. Du Bont (1965) 235 Cal.App.2d 844,
849 [“trier of fact may reject any part of a witness’[s] testimony and give credence to
other portions”]; see Bruce v. Ullery (1962) 58 Cal.2d 702, 711 [“ ‘jury properly may
reject part of the testimony of a witness, though not directly contradicted, and combine
the accepted portions with bits of testimony or inferences from the testimony of other
witnesses thus weaving a cloth of truth out of selected available material’ ”].)

       Rather, the DMV (and the trial court) could consider the circumstantial evidence
presented. Specifically, Bernard’s admission to drinking two 24-ounce beers and to
subsequently driving, the location and placement of his vehicle, the smell of alcohol on
his breath, the physical indications of intoxication (red, watery eyes, slurred speech,


                                              9
staggering ambulation), the presence of an open can of beer in his vehicle, his BAC test
results of 0.12 percent, his claim that his gastric bypass caused him to absorb alcohol
more quickly than most, and his admission that he felt the combined effects of the alcohol
and Ambien while driving, constitute substantial evidence to support a finding by a
preponderance of the evidence that Bernard had driven with a BAC of 0.08 percent or
higher. Therefore, the trial court did not err in denying Bernard’s petition for writ of
mandate.

                                      DISPOSITION

       The judgment (order denying petition for writ of mandate) is affirmed. The DMV
shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)




                                                         BUTZ                  , J.



We concur:



      NICHOLSON             , Acting P. J.



      HULL                  , J.




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