Filed 5/20/20; Certified for Publication 6/15/20 (order attached)




        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                        DIVISION FOUR


 DALLANA DELGADO,
            Plaintiffs and Respondent,
                                                          A156708
 v.
 CALIFORNIA DEPARTMENT OF                                 (Contra Costa County
 MOTOR VEHICLES,                                          Super. Ct. No. N18-1849)
            Defendant and Appellant.


        The Department of Motor Vehicles (DMV) suspended Dallana Delgado’s
driver’s license for driving with a blood-alcohol level of 0.08 percent or more.
(Veh. Code., § 13353.2.) 1 After an administrative hearing officer upheld the
suspension, Delgado petitioned the trial court for a writ of mandate,
contending she had presented evidence showing the police officer who
administered the chemical test was not properly trained in using the test
equipment. The trial court granted the writ, concluding Delgado’s evidence
rebutted the presumption that the test was performed properly. We disagree
with the trial court, and therefore reverse the judgment.




        1   All undesignated statutory references are to the Vehicle Code.

                                                   1
             FACTUAL AND PROCEDURAL BACKGROUND
      Officer Walker of the Concord Police Department responded to a report
of a hit and run collision at 2:15 a.m. on October 2, 2016. At the scene, he
was told a vehicle involved in the collision had fled to a loading dock area.
When he found the vehicle, Delgado was standing by the driver’s door and
another person was at the passenger’s side door. Delgado acknowledged that
she had been driving the car during the collision, that she had had “ ‘[a]t
least two, maybe three’ ” beers during the evening, and that she was still
feeling the effects of the alcohol. Delgado showed signs of intoxication: her
breath smelled of alcohol; she had bloodshot, watery eyes; her speech was
slurred; her responses were delayed; and her upper body swayed. Her field
sobriety tests were consistent with intoxication. Delgado later admitted she
had gone to a bar with her companion around 9:30 the previous evening and
had three or four beers, consuming the last one at about 11:00 p.m. When
they left the bar, she drove the car because her companion had drunk too
much alcohol to drive safely, and as she drove, she failed to see a red light
and got into the collision.
      After Officer Walker arrested Delgado, he administered two breath
tests for alcohol on a Draeger machine. Both showed a blood-alcohol level of
0.15 percent, nearly twice the legal limit. In his statement, Walker certified
under penalty of perjury that he was “qualified to operate this equipment and
that the test was administered pursuant to the requirements of Title 17 of
the California Code of Regulations.” Walker signed a checklist setting out
instructions for carrying out the test on the machine, a Draeger AlcoTest
7110 MK III C.
      The DMV held a hearing on whether Delgado’s driving privileges
should be suspended. The hearing was continued several times, some of the



                                        2
continuances at Delgado’s request. At the continued July 12, 2018 hearing,
Walker did not appear in response to the DMV’s subpoena; the record does
not reveal the reason for his absence.
      Delgado subpoenaed records from the Contra Costa County
Criminalistics Laboratory (CCC Laboratory) seeking, inter alia, “a copy of the
certificate of training or authorization evidencing the qualification of [Officer
Walker] as operator of the AlcoTest 7110 breath testing machine.” In
response, the custodian of records for CCC Laboratory stated, “[W]e found no
training record for Officer Daniel Walker.” The packet of information also
indicated that if a search for a training record yielded no result, a request for
more information could be submitted to the CCC Laboratory. The CCC
Laboratory’s response was admitted into evidence at the administrative
hearing.
      The hearing officer ordered Delgado’s license suspended for four
months, finding by a preponderance of the evidence that Delgado was driving
with a blood-alcohol level at or above 0.08 percent. In particular, as pertinent
here, the officer found that the CCC Laboratory’s affidavit did not show
Officer Walker was not trained to operate the alcohol test equipment, and
that Delgado had failed to rebut the presumption that Officer Walker carried
out his official duty properly.
      Delgado then petitioned the trial court for a writ of mandate,
contending that the evidence she submitted rebutted the presumption that
the test was administered properly and that she was deprived of the right to
confront and cross-examine Officer Walker because the DMV did not enforce
its subpoena. The trial court granted the petition, concluding the CCC
Laboratory’s affidavit was sufficient evidence that Officer Walker was not




                                         3
properly trained and shifted the burden to the DMV to show the test results
were reliable.
      The DMV moved for reconsideration, submitting evidence that Walker
had been trained on a Draeger machine—albeit with a different model
number—in another county where he had previously worked. The trial court
denied the motion for reconsideration.
                                    DISCUSSION
      Under California’s “administrative per se” law, the DMV must suspend
the driving privilege of a person who was driving a motor vehicle with a
blood-alcohol level of 0.08 percent or more. (§ 13353.2, subd. (a); McKinney v.
Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 522–523, 526
(McKinney).) The licensee has a right to an administrative hearing, and the
hearing officer’s decision is subject to judicial review. (§§ 13558, 13559;
McKinney, at p. 523.) The trial court exercises its independent judgment to
determine whether the administrative decision was supported by the weight
of the evidence. (Baker v. Gourley (2000) 81 Cal.App.4th 1167, 1172 (Baker).)
On appeal, we determine whether substantial evidence supports the trial
court’s findings. (Ibid.; accord Coombs v. Pierce (1991) 1 Cal.App.4th 568,
576.) To the extent the question is one of statutory or regulatory
interpretation, we exercise our independent judgment. (Manriquez v.
Gourley (2003) 105 Cal.App.4th 1227, 1233 (Manriquez).)
      An administrative hearing in this context involves shifting burdens of
proof. The DMV bears the initial burden of proving by a preponderance of
the evidence that the licensee was driving with a blood-alcohol level of 0.08
percent or higher. (Manriquez, supra, 105 Cal.App.4th at p. 1232.)
“ ‘Procedurally, it is a fairly simple matter for the DMV to introduce the
necessary foundational evidence. Evidence Code section 664 creates a



                                         4
rebuttable presumption that blood-alcohol test results recorded on official
forms were obtained by following the regulations and guidelines of title 17,”
and the test results are presumptively valid. (Manriquez, at p. 1232.) Thus,
“the officer’s sworn statement that the breath-testing device recorded a
certain blood-alcohol level is sufficient to establish the foundation, even
without testimony at the hearing establishing the reliability of the test.”
(Id. at p. 1233.) To establish that test results are reliable, it must be shown
that the apparatus was in proper working order, the test was properly
administered, and the operator was competent and qualified. (Davenport v.
Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 140 (Davenport).)
      Once the DMV meets this initial burden to establish a prima facie case,
the driver may rebut the presumption with “affirmative evidence of the
nonexistence of the presumed facts sufficient to shift the burden of proof back
to the DMV.” (Manriquez, supra, 105 Cal.App.4th at p. 1233.) This burden
may be met by showing, “through cross-examination of the officer or by the
introduction of affirmative evidence, that official standards were in any
respect not observed.” (Davenport, supra, 6 Cal.App.4th at p. 144.) The
licensee may subpoena the officer and anyone else having relevant
knowledge, as well as relevant documents. (Id. at pp. 144–145.) The driver’s
showing “cannot rest on speculation, but must demonstrate a reasonable
basis for an inference that the procedures were not properly followed.”
(Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348
(Petricka).) If the driver meets that burden, the burden shifts back to the
DMV to prove the test was reliable despite the violation. (Davenport, at
p. 144.)
      There is no dispute that the DMV met its initial burden by submitting
the pertinent reports. In particular, Officer Walker stated under penalty of



                                        5
perjury that he was qualified to operate the testing equipment and the test
was administered according to the applicable regulations. The question,
rather, is whether the trial court properly found the CCC Laboratory’s
affidavit sufficient to show that Officer Walker was not qualified to
administer the test, thus returning the burden to the DMV.
      We conclude substantial evidence does not support this finding. The
affidavit shows nothing more than that the CCC Laboratory did not have a
record of Officer Walker’s training. Delgado points to regulations that
require operators to be trained in “[p]rocedures of analysis for the specific
breath alcohol testing instrument used by the agency” (Cal. Code Regs.,
tit. 17, § 1221.2, subd. (a)(3)(B)(i)); for records to “be kept for each instrument
at a forensic alcohol laboratory showing compliance with this Section” (Cal.
Code Regs., tit. 17, § 1221.2, subd. (a)(6)(A)); and for forensic laboratories to
maintain records documenting their compliance with the applicable
regulations (Cal. Code Regs., tit. 17, § 1222). But neither Delgado's
evidentiary showing nor these regulations indicate that if Walker had been
trained in the testing device at any point in his career, the CCC Laboratory—
rather than another laboratory—would have had a record of it. With nothing
to fill that evidentiary gap, there is no “reasonable basis for an inference that
the procedures were not properly followed.” (Petricka, supra, 89 Cal.App.4th
at p. 1348.)
      Delgado was not prevented from attempting to fill that gap. Officer
Walker himself could have been examined to determine whether he was
properly trained to operate the testing equipment. Delgado had a right to
compel his attendance (Monaghan v. Department of Motor Vehicles (1995) 35
Cal.App.4th 1621, 1625–1626), and if she required his testimony to show he
was not properly trained in the testing device, it was incumbent upon her to



                                         6
take steps to secure it (see Petricka, supra, 89 Cal.App.4th at p. 1351). When
Officer Walker failed to appear in response to the DMV’s subpoena, Delgado
could have sought a continuance of the hearing and asked the hearing officer
to issue a subpoena on her behalf. (Snelgrove v. Department of Motor
Vehicles (1987) 194 Cal.App.3d 1364, 1376; Petricka, at p. 1351; Scott v.
Pierce (1990) 221 Cal.App.3d 654, 657 [“Even when the officer fails to appear
after being served with a subpoena by DMV . . . the licensee must ask for a
continuance to secure the officer’s attendance or any objection to his
nonappearance is waived”]; § 14104.5, subd. (a).) She failed to do so.
      We recognize that our standard of review for the trial court’s factual
findings is substantial evidence, and that in carrying out our review, we must
resolve all evidentiary conflicts and draw all reasonable inferences in favor of
the trial court’s decision. (Freitas v. Shiomoto (2016) 3 Cal.App.5th 294, 300
(Freitas).) But the inferences must be reasonable, and they cannot rest on
speculation. (Petricka, supra, 89 Cal.App.4th at p. 1348.) An appellant’s
burden under this standard is not impossible to meet: In Baker, the trial
court found a driver had shifted the burden to the DMV with expert
testimony that a blood sample’s seal had been cut six days before the sample
was tested. (Baker, supra, 81 Cal.App.4th at pp.1169–1172.) The appellate
court reversed, concluding there had been no showing that cutting the seal
six days before testing compromised the integrity of the sample or that
official standards were not observed. (Id. at pp. 1173–1174.) The record
showed “no more than a mere possibility that the integrity of the sample was
not maintained,” and “[s]uch speculation [was] insufficient to support a
reasonable inference” that the sample was compromised. (Id. at p. 1174.)
Similarly here, the absence of training records for Officer Walker at the CCC
Laboratory does not, in itself, constitute substantial evidence to support a



                                       7
reasonable inference that he was not properly trained in the use of the
testing device.
      For a contrary conclusion, Delgado relies on Freitas, supra,
3 Cal.App.5th 294, and Najera v. Shiomoto (2015) 241 Cal.App.4th 173. Both
of these cases concluded the presumption that test results were reliable had
been rebutted by expert testimony that blood test data collected from only
one column of a gas chromatograph does not establish the concentration of
alcohol without confirmation by data from a second column. (Freitas, at
pp. 301–303, Najera, at pp. 181–182.) Delgado also relies on Shea v.
Department of Motor Vehicles (1998) 62 Cal.App.4th 1057, which held that a
forensic alcohol report based on tests performed by unsupervised trainees
was not admissible as an official record of the DMV: Because trainees were
allowed to perform forensic analysis only when supervised, an unsupervised
trainee was not acting within the scope of a public employee’s duty. (Id. at
p. 1059.) Thus, in each of these cases, unlike the one before us, there was
affirmative evidence that the test was not conducted or reported properly.
No such evidence exists here.
      We conclude, therefore, that the burden did not shift to the DMV to
show that official standards were not observed. We need not consider the
DMV’s additional argument that the other signs of Delgado’s intoxication
support the hearing officer’s ruling.
                                   DISPOSITION
      The judgment is reversed. In the interests of justice, the parties shall
bear their own costs on appeal.




                                        8
                                                                   _________________________
                                                                   TUCHER, J.


WE CONCUR:


_________________________
STREETER, Acting P. J.


_________________________
BROWN, J.




Delgado v. California Department of Motor Vehicles (A156708)




                                                               9
                       CERTIFIED FOR PUBLICATION

      IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FIRST APPELLATE DISTRICT

                                DIVISION FOUR


DALLANA DELGADO,
          Plaintiffs and Respondent,          A156708

v.                                            (Contra Costa County
CALIFORNIA DEPARTMENT OF                      Super. Ct. No. N18-1849)
MOTOR VEHICLES,
                                              ORDER FOR PUBLICATION
          Defendant and Appellant.


BY THE COURT *:
      The written opinion which was filed on May 20, 2020 has now been
certified for publication pursuant to rule 8.1105(b) of the California Rules of
Court, and it ordered published in the official reports.




Date:________________________          ___________________________ Acting P. J.




      *Streeter, Acting P.J., Tucher, J., and Brown, J. participated in the
decision.

                                         1
Trial Court:                                  Contra Costa County Superior Court

Trial Judge:                                  Hon. Charles S. Treat

Counsel for Appellant:                        Xavier Becerra, Attorney General; Chris A. Knudsen,
                                              Senior Assistant Attorney General; Miguel A Neri,
                                              Fiel D. Tigno, Supervising Deputy Attorneys General;
                                              Christopher D. Beatty, Deputy Attorney General

Counsel for Respondents:                      Knutsen Law Office, Thomas Knutsen




Delgado v. California Department of Motor Vehicles (A156708)



                                                               2
