Filed 5/26/16 Bakir v. Shiomoto CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


ONUR BAKIR,                                                          H040714
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 1-13-CV250330)

             v.

JEAN SHIOMOTO, as Chief Deputy
Director, etc.,

         Defendant and Appellant.



         After Onur Bakir (driver) was stopped for speeding at 2:17 a.m., his blood alcohol
was measured at 0.087 percent at 2:33 a.m. and 0.088 percent at 2:35 a.m. by a
preliminary alcohol screening (screening) test and at 0.08 percent at 3:28 and 3:30 a.m.
by a breath machine. Driver stipulated to the accuracy of the screening results during an
administrative license revocation proceeding. A Department of Motor Vehicles (DMV)
hearing officer concluded in light of this evidence and expert testimony that the
concentration of alcohol in driver’s blood when he was driving “was at or above 0.08%.”
However, the trial court granted driver’s mandate petition and ordered the DMV to set
aside its order suspending driver’s driving privilege after independently weighing the
evidence and accepting what it called the “unequivocal” opinion of an expert that driver’s
blood alcohol “was less than .08% at the time of driving.” The director of the DMV has
filed an appeal, essentially questioning the sufficiency of the evidence to support the trial
court’s ruling. Being unable to substitute our evaluation of the evidence for the trial
court’s, we will affirm the order.
I. EVIDENCE AT ADMINISTRATIVE HEARING
       Because the trial court focused on the meaning of the blood alcohol tests, it is
unnecessary to review the other evidence in detail.
       An officer stopped driver about 2:17 a.m. after observing him driving down the
highway in a Volkswagen at speeds reaching 92 m.p.h. When stopped, driver, who was
205 pounds and an inch over six feet tall, said he had consumed three glasses of vodka
and tonic at a bar between 10:30 p.m. and 1:15 a.m. after having chicken and potatoes for
dinner. Driver’s demeanor was calm and his speech was normal, but he smelled of
alcohol and his eyes were glassy, though not bloodshot.
       Driver agreed to perform field sobriety tests (field tests), but was unable to track
the stimulus for the horizontal gaze nystagmus test. On the one leg stand tests, he put his
foot down on the count of 1,014 on the first test and between 1,025 and 1,026 on the
second test. He counted off 30 seconds when 60 had elapsed. During the Romberg time
estimation test, it took driver 40 seconds to estimate that 30 seconds had passed, during
which he had eyelid tremors and swayed about one inch from side to side.
       Two screening tests indicated driver’s blood alcohol was 0.087 percent at 2:33
a.m. and 0.088 two minutes later. The officer arrested driver and transported him.
Breath tests at 3:28 and 3:30 a.m. recorded driver’s blood alcohol as 0.08 percent.
       The administrative hearing officer accepted Kenneth Mark and Alice King as
experts on the metabolism of blood alcohol and the mechanics of blood testing. On
behalf of driver, Mark testified that based on the instrument measurements, “it is quite
likely that [driver’s blood alcohol] was less than a .08 percent” when he was stopped at
2:17 a.m. “[R]easonably, the actual alcohol content at the time of driving was a .07.” He
explained:



                                              2
       “Since the blood alcohol level will decline over time at a rate of roughly a
.016 percent per hour, if there were no alcohol being absorbed between the time of
the [screening] test and the time of the evidential test, the blood alcohol level
would have declined to a .07 percent, but it did not. It remained the same between
the time of the two tests, which indicates that there was alcohol being absorbed
into the bloodstream during that timeframe.”
       “If there were alcohol in the stomach at the time of the [screening] test, that
necessarily would have meant that there had been—been more alcohol in the
stomach at the time of the traffic stop, which meant that the blood alcohol level
would have increased from the time of the traffic stop to the time of the
[screening] test and would have continued to increase after the time of the
[screening] test and then that alcohol would have been burned off and the blood
alcohol level would have declined to the time of the evidential test.”
       “[A] way of visualizing this is there is a curve (inaudible) increases from
the time of driving at 2:17 through the time of the [screening] test at 2:33 and
2:35, peaking thereafter and then declining to the time of the evidential test at 3:28
and 3:30, so what we have is a curve.”
       If the initial measurements after the stop reflected a steadily decreasing blood
alcohol, then his blood alcohol would have been lower an hour later, unless he kept
drinking after he was arrested.
       King testified that the blood alcohol measurements were too high to corroborate
driver’s account of having three drinks of vodka between 10:30 p.m. and 1:15 a.m.
Based on driver’s account, his blood alcohol should have been 0.02 to 0.03 percent by




                                              3
3:20 a.m.1 The breath test they employed was accurate within 0.01 percent, so the 0.08
test result meant that driver’s blood alcohol at 3:20 a.m. was between 0.07 and 0.09
percent.2 Based on that measurement, assuming that driver had fully absorbed all of the
alcohol and had eliminated it at a normal rate between 0.015 and 0.018 percent per hour,
his blood alcohol would have been about 0.08 to 0.09 percent at the time of driving.
       King was unable to account for the screening test results. She questioned their
accuracy.3 On cross-examination, King stated that the blood alcohol results of breath
tests cannot be compared with screening tests because they use different technologies.
She was unable to extrapolate the blood alcohol at the time of driving from the results of
the screening and breath tests without also knowing driver’s drinking pattern and what
food was in his stomach, as food affects the rate of absorption. She was unable to say
whether driver’s blood alcohol was rising or falling during either test. She did
acknowledge that blood alcohol has been known to rise. As the trial court noted, King
eventually agreed that, “if there is the absence of that constant rate of elimination over the
course of an hour, that is an indication that the blood alcohol level was rising and
plateaued over that hour.”




       1
         Although the administrative hearing officer posited that the breath tests occurred
at 3:28 and 3:30 a.m., King repeatedly referred to the breath test as occurring at 3:20 a.m.
       2
          Part of King’s testimony was: “if you really want to—get technical about it, you
don’t have a (inaudible) on the breath result. So I don’t know (inaudible) of .081 or .089
(inaudible) for an example (inaudible) blood alcohol is eliminating at .01 something,
that’s very close.” The parties understand her to have said that because the third digit of
the breath tests was not recorded, a 0.08 result meant anything from 0.080 to 0.089.
       3
          When asked by the hearing officer about the screening test, King answered, “I
can testify to—the results that we get (inaudible) using our instrumentation. I can—I
don’t know how accurate the [screening] device—I know—it’s pretty accurate, but I
couldn’t tell you exactly how accurate it is.”




                                              4
                                       II. DISCUSSION
       A. STANDARDS OF REVIEW
       Due to the importance of a driver’s license, a trial court independently determines
whether an administrative license revocation is supported by the weight of the evidence.
(Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 398; Lake v. Reed
(1997) 16 Cal.4th 448, 456-457 (Lake); Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1217
(Coffey); Code Civ. Proc, § 1094.5, subd. (c).) The trial court ordinarily determines the
credibility of any expert witness. (Coffey, supra, at p. 1218; contra, Borger v.
Department of Motor Vehicles (2011) 192 Cal.App.4th 1118, 1122 (Borger).)
       “[T]he scope of our review on appeal is limited: ‘[W]e “need only review
the record to determine whether the trial court's 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, quoting Lake, supra, 16 Cal.4th at p. 457.)
       B. SUFFICIENCY OF EXPERT TESTIMONY
       By statute, there “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.” (Veh. Code,
§ 23152, subd. (b).) This presumption of blood alcohol remaining constant has been
applied in administrative license suspension proceedings conducted by the DMV. (See
Coffey, supra, 60 Cal.4th at p. 1208, and cases there cited.) This presumption shifts the
burden of producing evidence of blood alcohol to the driver. (Id. at p. 1209.) If a driver


                                               5
produces evidence supporting a finding that the driver’s blood alcohol was under 0.08
percent, “ ‘the presumption disappears’ [citation] and ‘has no further effect.’ ” (Id. at
p. 1210; cf. People v. Beltran (2007) 157 Cal.App.4th 235, 247 (Beltran) [prejudicial
error to instruct jury about permissive inference when experts agreed blood alcohol was
rising at time of first screening test].)
       The trial court found driver’s evidence sufficient to rebut the chemical test results.
On appeal the DMV renews its contention that Mark’s testimony was too speculative to
rebut this statutory presumption and did not account for “a sudden spike in [driver’s
blood alcohol] . . . within minutes of the traffic stop.” But it did not take an expert to
establish that driver’s blood alcohol first increased and then decreased after he drank
alcoholic beverages. It is common knowledge that the intoxicating effect of an alcoholic
beverage is not instantaneous, but increases after consumption and then diminishes over
time after consumption ends. (Evid. Code, § 452, subd. (g); People v. Mueller (1914)
168 Cal. 526, 528 [court took judicial notice that wine contains alcohol and “is
intoxicating when taken into the stomach”]; In re Martin (1962) 58 Cal.2d 509, 512 [“It
is a matter of common knowledge that the intoxicating effect of alcohol diminishes with
the passage of time . . .”].)4 Driver’s expert Mark testified consistently with common


       4
          Indeed, the California Supreme Court appears willing to take judicial notice of
the following as scientific principles. “After ingestion and absorption through the
stomach walls and the intestines, ethyl alcohol enters the blood and eventually travels via
the carotid arteries to the brain, where it causes intoxication and resulting mental and
physical impairment. [Citations.] At the same time that absorption of alcohol occurs,
elimination also commences through excretion and metabolization. ‘When a person’s
body is absorbing alcohol faster than he or she is eliminating it, the concentration of
alcohol in the blood will continue to rise. . . . The concentration will reach its peak, and it
will achieve a plateau, at the time when elimination and absorption are occurring at about
the same rate. [¶] [Thereafter,] [w]hen the person . . . slows down ingestion to the point
where the body is eliminating alcohol more quickly than absorbing it, the body enters
what has generally been referred to as the post-absorptive phase. During this period of
                                                                                  (Continued)

                                              6
knowledge that when alcohol is consumed, blood alcohol levels will first rise and then
fall. This scientific principle explained why driver’s blood alcohol measured virtually the
same in tests performed 55 minutes apart. Mark’s testimony was substantial evidence
rebutting the presumption in Vehicle Code section 23512, subdivision (b) that a tested
blood alcohol has remained constant over time.
       The Supreme Court reached the same conclusion in Coffey, which was decided
after the close of briefing in this case. In Coffey, the breath tests showed a driver’s blood
alcohol to be 0.08 percent 56 minutes after she stopped driving and 0.09 percent three
minutes later. 83 minutes after she stopped, a blood test established a blood alcohol of
0.095 percent. (Coffey, supra, 60 Cal.4th at p. 1205.) An expert named Williams
testified that these ever-increasing test results were consistent with the driver’s blood
alcohol rising from a point below 0.08 percent when stopped. (Ibid..) The Supreme
Court found at page 1211: “Williams’s testimony was sufficient to rebut the presumption
that plaintiff’s [blood alcohol] was at least 0.08 percent at the time she was driving.
Williams was qualified as an expert in the field and his testimony was clear and direct. If
believed, his evidence would have justified a conclusion that plaintiff’s [blood alcohol]
was rising at the time of her chemical tests and was thus quite possibly below the 0.08
percent threshold at the time she had been driving.”
       In our case, the trial court accepted similar expert extrapolation as establishing that
driver’s blood alcohol was below 0.08 percent when he was stopped.5 Applying


time, the concentration of alcohol in the blood decreases.’” (People v. Vangelder (2013)
58 Cal.4th 1, 14.) DMV relies on this passage.
       5
           The DMV relies heavily on Borger, supra, 192 Cal.App.4th 1118. In that case
the trial court accepted an expert’s testimony “that all ‘Intoxilyzer 5000’ machines have
an inherent margin-of-error of plus or minus .02 percent.” (Id. at pp. 1120-1121.) The
appellate court found this testimony too “speculative” to amount to substantial evidence.
(Id. at p. 1122.) According to Borger, accepting this testimony “would, in essence,
                                                                                 (Continued)

                                              7
deferential review to the trial court’s evidentiary findings, we conclude that Mark’s
testimony amounted to substantial evidence in support of the trial court’s ruling.
       3. CIRCUMSTANTIAL EVIDENCE OF BLOOD ALCOHOL CONCENTRATION
       The DMV also renews its contention that the totality of circumstantial evidence
established that driver’s blood alcohol was at least 0.08 percent while driving.
       Coffey, supra, 60 Cal.4th 1198 has reaffirmed that circumstantial evidence is
admissible in driver’s license revocation proceedings “to help connect . . . test results to a
driver’s [blood alcohol] at the time she was driving” and also “to rebut [the driver’s]
proffered defense that her [blood alcohol] was low at the time she was driving and only
later rose to exceed the legal limit.” (Id. at p. 1216.) “Even assuming that non-chemical-
test evidence cannot by itself prove a driver’s exact [blood alcohol] at the moment the
driver is stopped by a police officer, in this case plaintiff’s erratic driving, outward
appearance of substantial intoxication, implausible story of having just turned 21 years
old, and was coming from a bar without having imbibed alcohol at all, and her failure on
multiple field sobriety tests, together tend to rebut [expert] Williams’s theory of a rising
[blood alcohol] and corroborate the [blood alcohol] test results. (Ibid.) “Having
concluded the DMV hearing officer properly admitted the circumstantial, nontest
evidence of plaintiff’s intoxication, we also conclude substantial evidence supported the
trial court’s decision to deny writ relief, thereby sustaining the DMV hearing officer’s



rewrite [Vehicle Code] section 13353.2, subdivision (a)(1)” (id. at p. 1123), “change the
California Code of Regulations, title 17, article 7, sections 1221 through 1221.5” (id. at
p. 1122), “ ‘overrule’ every ‘Intoxilyzer 5000’ reported result unless it is .10 or more”
(ibid.), and “effectively remove this breath testing device from the Department of Motor
Vehicle’s ‘approved instrument’ list.” (Ibid.)
       We note that the DMV expert in our case attributed a .01 percent margin of error
to breath test machines and could not vouch for the accuracy of screening tests. Unlike
the DMV’s expert, driver’s expert was willing to accept the test results as accurate.




                                               8
decision to suspend plaintiff’s license to drive. (Id. at p. 1217.) “[The hearing officer
and the trial court] [b]oth reasonably relied on circumstantial evidence of plaintiff's
intoxication—her general appearance, the odor of alcohol about her person, her erratic
driving, and her failed field sobriety tests—to support the accuracy of the chemical test
results . . . .” (Id. at p. 1218.) The driver in Coffey was “swerving erratically from side to
side” on the highway. (Id. at p. 1203.) When stopped, her eyes were red and she denied
consuming any alcohol despite having come from a bar after just turning 21. (Ibid.)
       Here the DMV renews its claim that driver “performed poorly” on the field tests.
Driver points out that the arresting officer did not offer an opinion about the field test
results. As in Coffey, the trial court could have relied on circumstantial evidence of
driver’s performance on the field tests to reach a different conclusion about his blood
alcohol while driving. However, the trial court apparently did not attach the same
significance to this evidence that the trial court did in Coffey. In that case there was more
circumstantial evidence of intoxication.
       In the words of Yordamlis v. Zolin (1992) 11 Cal.App.4th 655, “Having reviewed
the record, we cannot say that the trial court erred as a matter of law in finding the
DMV’s evidence insufficient to establish that [driver’s blood alcohol] at the time of
driving was 0.08 percent or more.” (Id. at p. 660.) In that case, “[t]he DMV submitted
evidence that Yordamlis was driving erratically, smelled of alcohol, and had
bloodshot/watery eyes, slurred speech, and an unsteady gait” and a blood sample taken at
an unknown time recorded a blood alcohol of 0.17 percent. (Ibid.) A majority noted that
“nothing in the record establishes that Yordlamis’s conduct is necessarily inconsistent
with a [blood alcohol] of less than 0.08 percent.” (Id. at p. 662.)
       In the absence of expert testimony correlating exact blood alcohol percentages
with performance results on field tests (cf. Beltran, supra, 157 Cal.App.4th 235, 246,
fn. 10), the trial court was entitled to discount those equivocal results and the equivocal
testimony of the DMV’s expert in favor of the testimony of driver’s expert. Resolving

                                              9
evidentiary conflicts in favor the trial court’s decision, we conclude it was supported by
substantial evidence.
                                    III.   DISPOSITION

       The order is affirmed.




                                             10
                                        ______________________________________
                                                   RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




Bakir v. Shiomoto, as Chief Deputy Director, etc.
H040714




                                          11
