Filed 7/7/17; pub. order 7/28/17 (see end of opn.)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



MATTHEW D. MURPHEY,                                      D069557

         Plaintiff and Respondent,

         v.                                              (Super. Ct. No. 37-2015-00017429-
                                                         CU-WM-CTL)
JEAN SHIOMOTO, as Director, etc.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County,

Lisa Schall, Judge. Reversed and remanded with directions.

         Kamala D. Harris and Xavier Becerra, Attorneys General, Chris A. Knudsen,

Assistant Attorney General, Christine Mersten and Connie A. Broussard, Deputy

Attorneys General, for Defendant and Appellant.

         White & Amundson, Daniel M. White; Gregor Law Offices and T. Steven Gregor

for Plaintiff and Respondent.
                                              I.

                                        INTRODUCTION

       In this appeal, we consider whether the trial court erred in granting a petition for

writ of administrative mandate ordering the Department of Motor Vehicles (the

Department) to rescind an order suspending the driver's license of a person arrested for

driving under the influence (Veh. Code, § 23152, subd. (a))1 and awarding attorney fees

and costs to the person. We reverse the trial court's order granting the writ petition and

awarding attorney fees and costs and remand the matter to the trial court with directions

to deny the petition in its entirety.

                                             II.

                    FACTUAL AND PROCEDURAL BACKGROUND

A. The arrest and driver's license suspension

       California Highway Patrol Officer M. Oka2 arrested respondent Matthew D.

Murphey for driving under the influence (§ 23152, subd. (a)). The Department issued an

order suspending Murphey's driver's license pursuant to the administrative per se law

(§ 13353.2).3 Murphey requested an administrative hearing in order to challenge the


1      Unless otherwise specified, all subsequent statutory references are to the Vehicle
Code.
2      Officer Oka's first name does not appear in the record.
3      "The administrative per se procedure is the means by which the Department
suspends or revokes a motorist's driver's license for driving under the influence or for
refusing to submit to a chemical test under the implied consent law. 'The procedure is
called "administrative per se" because it does not impose criminal penalties, but simply
suspends a person's driver's license as an administrative matter upon a showing the
person was arrested for driving with a certain blood-alcohol concentration, without
                                              2
suspension. A Department hearing officer held a hearing and issued a written order

upholding the suspension. In her order, the hearing officer found that Murphey had

driven with a blood alcohol content of .08 percent or higher, as required to sustain the

suspension.4

B. Murphey's petition for writ of administrative mandate

       Murphey filed a petition for writ of administrative mandate against Jean Shiomoto,

in her capacity as Director of the Department, requesting that the trial court direct the

Department to rescind the orders suspending his license.5 In his petition, Murphey

contended that the suspension was invalid because it was not supported by evidence in

the administrative record. Specifically, Murphey maintained that the hearing officer

erred in relying on Officer Oka's sworn report (DS 367)6 and Officer Oka's unsworn

arrest report (collectively "the Reports") because the Reports contained "physical

impossibilities," concerning the time that Murphey's blood was drawn for a blood alcohol

test and the time that he was booked into jail. Murphey argued that these

additional evidence of impairment.' " (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85,
98.)
4       The hearing officer also found two additional elements needed to sustain the
suspension, namely, that Officer Oka had reasonable cause to believe that Murphey was
driving a motor vehicle in violation of one of various Vehicle Code provisions (including
§ 23152) and that Murphey had been lawfully arrested.
5       While this appeal was pending, Murphey filed an unopposed motion to correct the
caption of this appeal. Murphey contended that the trial court's order granting his writ
petition incorrectly named the Department as a party. Murphey requested that we correct
the caption to reflect Shiomoto in her capacity as Director of the Department as the
proper appellant. We correct the caption to reflect the proper appellant. However, we
refer to Shiomoto as "the Department" for ease of reference throughout this opinion.
6       The sworn report is a filled out form issued by the Department. "DS 367" refers to
the form number.
                                              3
"impossibilities" rendered the Reports "unreliable and insufficient to sustain the

suspension of [his] driver's license." Murphey also claimed that he was entitled to an

award of attorney fees and costs due to the Department's "arbitrary and capricious

decision."

       The Department filed a return to the petition and a brief in opposition. In its

opposition, the Department argued that the undisputed evidence that the Department

offered at the administrative hearing established each element necessary under the

administrative per se law to suspend Murphey's license. The Department also argued that

there was no basis for finding that Murphey had not driven with a prohibited blood

alcohol level, "[n]otwithstanding the presence of some error about the precise times of

the blood draw and jail booking." Finally, the Department maintained that Murphey's

request for attorney fees lacked merit. Murphey filed a reply brief.

       The trial court held a hearing on the writ petition. After hearing argument from

counsel, the court stated that it would grant the petition for writ of mandate and award

Murphey attorney fees and costs.

       The court subsequently issued a written order granting Murphey's writ petition and

awarding him attorney fees and costs. The court's order states in relevant part:

             "The court, having considered the papers filed both in support of and
             in opposition to the Petition, the administrative record lodged with
             the court, the files and records in this action, as well as the
             arguments of counsel and having exercised its independent judgment
             on the evidence, has determined and ruled that the Petition is granted
             because the administrative findings and decision are not supported
             by the record in this matter."



                                               4
C. The appeal

       The Department appeals the trial court's order granting Murphey's writ petition

and awarding attorney fees and costs.

                                            III.

                                        DISCUSSION

A. The trial court erred in granting Murphey's petition for writ of administrative
   mandate

       The Department claims that the trial court erred in granting Murphey's petition for

writ of administrative mandate. The Department's primary contention is that the trial

court erred in determining that the Reports were inadmissible. The Department further

argues that because the Reports were admissible, and because the undisputed evidence

established all of the elements necessary to support the suspension of Murphey's driver's

license, including that Murphey drove with a blood alcohol level of .08 percent or higher,

the trial court erred in granting Murphey's petition directing the Department to rescind the

suspension.

       1. Governing law

              a. Administrative per se proceedings

       In Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1207–1208 (Coffey), the Supreme

Court reviewed California's administrative per se law (§ 13353.2, et seq.), " 'under which

a person arrested for driving under the influence of alcohol, and who is determined to

have a prohibited amount of alcohol in his or her blood, must have driving privileges




                                             5
suspended prior to an actual conviction for a criminal offense.' " (Coffey, supra, at p.

1207.) The Coffey court summarized the administrative per se law as follows:

          "Pursuant to the administrative per se law, '[a]fter either the arresting
          officer or the [Department] serves a person with a "notice of an order
          of suspension or revocation of the person's [driver's license]," the
          [Department] automatically reviews the merits of the suspension or
          revocation. [Citation.] The standard of review is preponderance of
          the evidence [citation], and the department bears the burden of proof
          [citations].' [Citation.] A driver served with such a suspension
          notice is entitled to a hearing on request [citation], at which the only
          issues to be decided . . . are whether the arresting officer had
          reasonable cause to believe she was driving, whether she was
          arrested for an enumerated offense, and whether she was driving
          with 0.08 percent [blood alcohol content] or higher [citation]. If the
          [Department] hearing officer finds these three statutory prerequisites
          proved by a preponderance of the evidence, the accused's driver's
          license will be suspended . . . ."7 (Id. at pp. 1207–1208, italics
          added.)

              b. The rebuttable presumption that a person drove with a prohibited blood
                 alcohol level

       Section 23152, subdivision (b) provides:

          "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."

       "Although the statutory language speaks in terms of a 'prosecution,' several Courts

of Appeal have held this presumption is not limited to criminal prosecutions but also



7       In a footnote omitted from the quotation by way of the first ellipses, the Coffey
court explained that "[s]omewhat different rules apply to those under 21 years of age
[citation], those driving commercial vehicles [citation], and those on probation for prior
drunk driving convictions [citation]." (Coffey, supra, 60 Cal.4th at p. 1208, fn. 9.)
                                             6
applies in administrative license suspension proceedings." (Coffey, supra, 60 Cal.4th at

p. 1208.) This court is among the courts that have so held. (See Jackson v. Department

of Motor Vehicles (1994) 22 Cal.App.4th 730, 740 (Jackson).) Although the Supreme

Court has not decided the issue (see Coffey, supra, 60 Cal.4th 1198), we follow Court of

Appeal precedent concluding that the rebuttable presumption codified in section 23152,

subdivision (a) applies to administrative per se proceedings because neither party makes

any argument to the contrary.

      2. Factual and procedural background

             a. The relevant evidence

      The administrative record8 contains Officer Oka's sworn report (DS 367), which is

mandated by section 13380. (See pt. II, ante.) The sworn report lists Murphey's name

near the top of the form. The form then states the following preprinted information:

          "On __________ at _____ AM/PM in (City and County)________
          CA, the above named driver was: □ Driving: □ observed by this
          officer"

      Officer Oka filled in "3/1/15" and "2:50" in the appropriate blanks and circled

AM. Officer Oka then wrote "SAN DIEGO, SAN DIEGO" in the appropriate spaces and

checked boxes next to the words "Driving" and "observed by this officer."


8       Murphey contends that the administrative record that the Department lodged in
this court does not contain the actual documents that were lodged with the trial court.
Specifically, Murphey contends that the documents lodged with this court contain
highlighting and annotations that were not on the documents in the administrative record
in the trial court. Nevertheless, Murphey states that he "does not object" to the
Department's alleged failure to provide the proper record before this court. Accordingly,
we assume for purposes of this decision that the Department has provided an adequate
record to permit this court to review its claims on appeal.
                                            7
       The form also contains the following preprinted information:

"Blood Test Results       □ Blood Test on _________________________ AM/PM"9
                                               DATE       TIME

       Officer Oka checked the box next to "Blood Test," wrote "3/1/15" and "3:57" in

the appropriate spaces, and circled AM. Officer Oka signed the form under penalty of

perjury on March 1, 2015.

       The administrative record also contains Officer Oka's unsworn arrest report. The

arrest report indicates that the incident took place at 2:50 a.m. on March 1, 2015. In a

portion of the report entitled "CHEMICAL TEST INFORMATION," under the headings

"TYPE OF TEST" and "TIME," Officer Oka checked a box next to the word "Blood,"

and typed "0357." Under "LOCATION WHERE TEST WAS CONDUCTED," the

words "SAN DIEGO CHP" are typed. The report also indicates that "PHLEBOTOMIST

DAVID CATO" was the person who took the blood sample.

       In a narrative portion of the form, Officer Oka stated the following concerning

Murphey's arrest and the draw of Murphey's blood for a blood test:

          "Murphey was placed under arrest at approximately 0300 hours. I
          advised Murphey of implied consent and [he] elected to take the
          blood test. My partner and I transported Murphey to the San Diego
          CHP Office for the blood test. At 0357 hours I watched certified
          Phlebotomist David Cato draw two vials of human blood from start
          to finish from Murphey's right arm. Upon completion of the blood
          draw I received possession of the blood packet with the two vials
          and it remained in my possession until it was booked into the CHP
          San Diego Area Office for evidence. Murphey was subsequently


9     Although the Department's form refers to a "[b]lood [t]est" (italics added), it is
undisputed that this time is intended to refer to the time of a blood draw for a
subsequently conducted blood test.
                                             8
          transported to the San Diego Sheriff's Central Jail for booking.
          Admin[istrative] per se procedures were followed."

       The arrest report also states the following. In a box labeled "WHERE

BOOKED/CONFINED," the words "San Diego Co. Jail" are typed. In an adjacent box

labeled "DATE/TIME," "03/01/2015 0355" are typed, indicating that a law enforcement

officer booked Murphey into the jail at 3:55 a.m. In a nearby box, the form also has the

word "TIME" printed with "0401" typed next to it, and information pertaining to an "ID"

and "LOG." Although not clear from the arrest report, Murphey contends that this latter

information indicates that Murphey was issued an "inmate bracelet" at the jail at

4:01 a.m. We assume for purposes of this decision that Murphey is correct. The

unsworn arrest report indicates that Officer Oka prepared the report on March 1, 2015

and that a Sergeant J. Aboy reviewed the report the following day.

       Finally, the administrative record contains a laboratory report indicating that

Murphey's blood alcohol level from the March 1, 2015 incident was .16.

              b. The introduction of the evidence at the administrative hearing

       The Department offered Officer Oka's sworn report, Officer Oka's unsworn arrest

report, and the laboratory report in evidence at the administrative per se hearing.

Murphey10 objected to the introduction of each document on the ground that each

document was hearsay. Murphey also specifically contended that none of the documents

were admissible pursuant to the public employee records exception to the hearsay rule




10     Murphey appeared in propria persona at the administrative hearing.
                                             9
contained in Evidence Code section 1280.11 The hearing officer overruled all of

Murphey's objections and admitted each of the documents in evidence. The hearing

officer relied on the Reports in determining that Murphey had driven with a blood alcohol

content of .08 percent or higher.12

              c. Proceedings concerning the evidence in the trial court and the trial
                 court's ruling granting Murphey's writ petition

       In his brief in support of his writ petition, Murphey argued that the Reports were

"unreliable and inadmissible," and that "physical and temporal impossibilities in the

record establish that the Department failed to meet its initial burden of proof."

(Formatting omitted.) The People filed an opposition in which they argued that

"Murphey has not presented the Court with any reason to conclude his blood draw was

made more than three hours after the time he was driving," and that the "slight time

variances" in the arrest report did not support granting the writ petition.

       The trial court held a hearing at which counsel for the Department argued that the

"plainly admissible sworn and unsworn arrest reports" supported denying the petition.

Murphey's counsel argued that the Department was required to "establish[ ] the time of



11      The hearing transcript for the administrative hearing also indicates that Murphey
filed a legal brief in support of his evidentiary objections. Although that report is not
contained in the administrative record lodged on appeal, Murphey states in his brief that
he "does not seek augmentation of the record" to include that brief, and presents no
argument that the absence of the brief in the record renders the record inadequate to
review the Department's appeal.
12      As noted previously (see pt. II.A, ante), the hearing officer also found that Officer
Oka had reasonable cause to believe that Murphey was driving a motor vehicle in
violation of one of various Vehicle Code provisions (including § 23152) and that
Murphey had been lawfully placed under arrest.
                                             10
the blood draw," and that the Department could not meet its burden to establish this fact

because of the "physical impossibilities" in the arrest report.

       Near the end of the hearing, the court stated the following:

           "I think in this case the hearing officer did not have sufficient weight
           of evidence to in fact order the suspension. I think that you cannot
           extrapolate simply from other evidence and presume when we have
           the introduction of the report writing that is always arguably argued
           to be valid and accurate in these hearings. This one was really a
           disparity from the ones I have seen where there are I think scrivener
           errors. This is a key part of any report taking that should have been
           considerably more detailed and it wasn't."

       Shortly thereafter, the court issued its final ruling, stating:

           "I am going to grant the writ of mandate. I am not going to remand
           it [to the Department for the taking of additional evidence]. I do
           believe that the opinion that was rendered by the hearing officer was
           evidence -- there was elements of it showing [an] arbitrary decision-
           making process. [Murphey is] the prevailing party now and you are
           entitled to your fees and costs."

       3. The trial court abused its discretion in determining that the Reports were
          inadmissible

       The Department contends that the trial court erred in determining that Officer

Oka's sworn and unsworn reports were inadmissible.13 We apply the abuse of discretion



13      It is not entirely clear that the trial court ruled that the Reports were inadmissible
and granted the writ petition on this basis, or whether the trial court merely concluded
that, even if the Reports were admissible, the weight of the evidence did not support the
administrative decision. (See pt. III.A.2.c, ante [quoting ruling].) In light of this lack of
clarity, we consider whether the order may be affirmed on either ground. (See Thompson
v. Asimos (2016) 6 Cal.App.5th 970, 981 [" 'A judgment or order of a lower court is
presumed to be correct on appeal, and all intendments and presumptions are indulged in
favor of its correctness' "].) In this section, we assume that the trial court intended to rule
that the Reports were inadmissible, and consider whether the court committed reversible
error in so ruling. In part III.A.3, post, we consider whether the court erred in concluding
                                               11
standard of review to this claim. (See, e.g., Miyamoto v. Department of Motor Vehicles

(2009) 176 Cal.App.4th 1210, 1217 (Miyamoto) [abuse of discretion standard or review

applies to appellant's challenge to trial court's evidentiary ruling in action seeking petition

for writ of administrative mandate seeking to overturn the Department's suspension of

party's driver's license after administrative per se hearing]; Lee v. Valverde (2009) 178

Cal.App.4th 1069, 1075 [same].)14

              a. Relevant evidentiary rules

                     i. Evidentiary rules applicable in administrative per se hearings

       In Miyamoto, supra, 176 Cal.App.4th at pages 1216–1217, the court outlined the

rules governing the admissibility of evidence in administrative per se proceedings:

          "The rules governing the evidence available for use in [Department]
          administrative per se hearings 'are set forth in . . . the Vehicle Code,
          commencing with section 14100. (§ 14100, subd. (a).) Two
          provisions are especially relevant. First, . . . section 14104.7 states
          in pertinent part: "At any hearing, the department shall consider its
          official records and may receive sworn testimony." . . . Second, for
          all matters not specifically covered by . . . the Vehicle Code . . .
          section 14112 incorporates the provisions of the Administrative
          Procedures Act governing administrative hearings generally. (Gov.
          Code, § 11500 et seq. . . .)' [Citation.]



that, even assuming the Reports were admissible, the weight of the evidence did not
support the administrative decision.
14      The parties disagree as to the appropriate standard of review to be applied. This
disagreement appears to stem from the lack of clarity with respect to the precise nature of
the trial court's ruling. (See fn. 13, ante.) As explained in footnote 13, we consider both
possible bases for the trial court's ruling. In this part, we apply the abuse of discretion
standard of review to our review of the trial court's implied determination that the
Reports were inadmissible. As explained in part III.A.3, post, we apply the substantial
evidence standard of review in determining whether the court erred in concluding that the
weight of the evidence did not support the hearing officer's decision.
                                              12
           "Government Code section 11513 addresses the admissibility of
           evidence generally in administrative hearings. [Citation.] It
           provides in relevant part: '(c) The hearing need not be conducted
           according to technical rules relating to evidence and witnesses,
           except as hereinafter provided. 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.' (Gov. Code, § 11513, subds. (c),
           (d).)" (Italics omitted.)

       Section 13380, subdivision (a) mandates that "[i]f a peace officer. . . arrests any

person for a violation of Section . . . 23152 . . . the peace officer shall immediately

forward to the department a sworn report of all information relevant to the enforcement

action, including information that adequately identifies the person, a statement of the

officer's grounds for belief that the person violated Section . . . 23152 . . . , [and] a report

of the results of any chemical tests that were conducted on the person." Section 13380,

subdivision (b) provides, "The peace officer's sworn report shall be made on forms

furnished or approved by the department."

       Where an officer files a sworn statement with the Department, the officer's

unsworn arrest report is admissible at the administrative per se hearing to supplement the

sworn report. "[I]t is consistent with the relaxed evidentiary standards of an

administrative per se hearing that technical omissions of proof can be corrected by an

unsworn report filed by the arresting officer." (MacDonald v. Gutierrez (2004) 32

Cal.4th 150, 159.)


                                               13
                     ii. The public employee record exception to the hearsay rule

       Evidence Code section 1280 provides:

          "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."

       "Assuming satisfaction of the exception's other requirements, '[t]he

trustworthiness requirement . . . is established by a showing that [a police officer's]

written report is based upon the observations of public employees who have a duty to

observe the facts and report and record them correctly.' " (Gananian v. Zolin (1995) 33

Cal.App.4th 634, 640 (Gananian), fn. omitted [stating that a police officer's sworn report

qualifies as an admissible public record under Evidence Code section 1280 in an

administrative per se proceeding even to the extent that it reports a second officer's

observations because the second officer "was acting pursuant to his duty as a police

officer to observe the facts and report them correctly" (Gananian, supra, at p. 641)].)

                     iii. The presumption in favor of the performance of an official duty

       Evidence Code section 664 provides:

          "It is presumed that official duty has been regularly performed."

       In an administrative per se proceeding, "An officer's statement relating firsthand

observations meets [the criteria outlined in Evidence Code section 1280] and ' "the

statutory presumption of duty regularly performed (Evid. Code, § 664) shifts the


                                             14
foundational, method-of-preparation burden in this situation," ' requiring the licensee to

show that the officer failed in his or her duty to observe and correctly report the events

described in the statement." (Santos v. Department of Motor Vehicles (1992) 5

Cal.App.4th 537, 547 (Santos); accord Morgenstern v. Department of Motor Vehicles

(2003) 111 Cal.App.4th 366, 373 (Morgenstern) ["Where it is applicable, the

presumption [in Evidence Code section 664] shifts the burden of proof to the party

against whom it operates to establish the nonexistence of the presumed fact"].)

              b. Application

       The Department contends that the Reports were admissible pursuant to the public

employee record exception to the hearsay rule. (See Evid. Code, § 1280.) There is no

dispute that the Reports were "made by and within the scope of duty of a public

employee" (Evid. Code, § 1280, subd. (a)), and were "made at or near the time of the act,

condition, or event" (Evid. Code, §1280, subd. (b)).

       With respect to the final element necessary to establish the admissibility of the

Reports pursuant to the exception, whether the "sources of information and method and

time of preparation were such as to indicate its trustworthiness" (Evid. Code, §1280,

subd. (c)), the Reports were based on Officer Oka's personal observations,15 the

statements were recorded on official forms, and the statements were drafted near the time


15     We reject Murphey's circular contention that the " 'sources of information,' for the
statements in the Reports about the time of the blood draw are Officer Oka's recitation of
times and places." (Italics added.) The "sources of information" (Evid. Code, § 1280,
subd. (c)) for the statements in the Reports are not the statements themselves (as
Murphey appears to contend), but rather, as we state in the text, Officer Oka's personal
observations.
                                             15
of the events in question. Thus, the Reports were presumptively admissible. (See

Gananian, supra, 33 Cal.App.4th at p. 642 [" ' "[t]he trustworthiness requirement [of

Evidence Code section 1280] . . . is established by a showing that [a police officer's]

written report is based upon the observations of public employees who have a duty to

observe the facts and report and record them correctly" ' "]; Santos, supra, 5 Cal.App.4th

at p. 547 [stating that an officer's statement based upon personal observations satisfies

Evidence Code section 1280 and the statutory presumption of duty regularly performed

(Evid. Code, § 664) shifts the burden to a licensee to demonstrate that the officer failed in

his duty to observe and correctly report events in the statement].)16

       The trial court appears to have agreed with Murphey that the Reports were

inadmissible because they were untrustworthy. In his brief in the trial court, Murphey

contended that the Reports were "unreliable and inadmissible" because the physical

distance between the Central Jail and the CHP station demonstrated that statements in the

unsworn arrest report that Murphey was booked into jail at 3:55 a.m., his blood was

drawn at the CHP Station at 3:57 a.m., and he received an ID bracelet from the jail at

4:01 a.m. could not be accurate.17 For the following reasons, the trial court abused its

discretion in implicitly accepting this argument.




16     It is undisputed that Murphey presented no other evidence at the administrative
hearing upon which the trial court could have reasonably determined that the presumption
in favor of admissibility had been rebutted.
17     Although Murphey does not cite to anything in the record establishing the location
of the Central Jail or the CHP Station, we assume for purposes of this decision that
Murphey is correct that it would be physically impossible for him to be booked into the
                                             16
       Most fundamentally, any inaccuracy in the arrest report as to the time that

Murphey was booked into jail (or had his blood drawn) was not material with respect to

any of the elements that the Department was required to establish at the administrative

per se hearing. Specifically, any such inaccuracy did not provide any reasonable basis for

determining that Murphey's blood was not drawn within three hours of him having

driven, and therefore, did not undermine the presumption that he had driven with a

prohibited blood alcohol content (§ 23152, subd. (b)). More specifically, it is

unreasonable to determine that any error with respect to the exact times that Murphey

was booked into jail or had his blood drawn rendered the report untrustworthy with

respect to whether Murphey's blood was drawn within three hours of him driving,

because the times stated in the arrest report with respect to the booking and blood draw

both were well within three hours of Officer Oka having witnessed Murphey driving.18

Thus, the Reports constituted evidence that Murphey "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 . . . driving," and thus established "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." (§ 23152, subd. (b).)




Central Jail at 3:55 a.m., for his blood to be drawn at the CHP Station at 3:57 a.m., and
for him to have an identification bracelet issued at the Central Jail at 4:01 a.m.
18     As noted previously, the arrest report stated that Officer Oka observed Murphey
driving at approximately 2:50 a.m. and that Murphey was booked into jail an hour and
five minutes later, at 3:55 a.m., and that his blood was drawn an hour and seven minutes
after he was seen driving at 3:57 a.m.
                                             17
       This is not a case in which the reported booking time and blood draw time were

near the three-hour time window referred to in section 23152, subdivision (b). If that

were the case, and if it were physically impossible for both times to be exactly accurate,

an argument could be made that such inaccuracy would make it reasonable for a trial

court to exercise its discretion in excluding the report.19 However, in this case, even

assuming that Murphey is correct that it would be "physically impossible" for Murphey

to have been booked into the Central Jail at 3:55 a.m. and had his blood drawn at the

CHP Station two minutes later at 3:57 a.m., such impossibility suggests only that Officer

Oka may have actually observed Murphey's blood being drawn slightly earlier or slightly

later than 3:57 a.m. (approximately an hour and ten minutes after having observed him

drive). It is unreasonable to determine that the arrest report is inadmissible on the ground

that the error with respect to the recording of the exact times that these two events

occurred in the arrest report demonstrates that the actual time that Officer Oka observed

the blood draw may actually have been more than three hours after the observation of

driving (i.e., after 5:50 a.m.).

       This is particularly true since the narrative portion of Officer Oka's arrest report

makes clear that Officer Oka observed Murphey having his blood drawn before Murphey


19     A counter argument would be that any such inaccuracies go to the weight, rather
than the admissibility of the Reports. (See Santos, supra, 5 Cal.App.4th at p. 549
["While the absence of evidence of the time [licensee's] blood sample was taken did not
render the test result inadmissible, without such evidence the Department simply could
not meet its burden of proof"].) However, we need not decide this question in this case
because there is no evidence from which a reasonable person could find that the testing
occurred more than three hours after Murphey had driven.

                                             18
was transported to the jail. It was thus unreasonable for the trial court to have implicitly

determined that the arrest report is untrustworthy with respect to whether Officer Oka

observed Murphey having his blood drawn within three hours of having seen Murphey

drive (§ 23152, subd. (b)), given that the arrest report indicates that Murphey was booked

into jail approximately an hour and five minutes after driving and that his blood was

drawn before being taken to jail. It was even more unreasonable to determine that the

sworn report, which states that the blood test occurred at 3:57 a.m. and has no

information suggesting any inaccuracy with respect to this time, was also inadmissible.20

       The unreasonableness of the trial court's determination that the Reports were

inadmissible is further supported by the fact that case law is clear that the Department

need not establish the exact time that a chemical test is administered as long as it may

reasonably be inferred that the test was administered within three hours of the licensee

having driven. (See Jackson, supra, 22 Cal.App.4th at p. 740 ["Although there was no

direct evidence of the time of driving, reasonable inferences supported a finding the

chemical test indicating a blood-alcohol level of .08 percent was performed within three

hours of Jackson's driving and thus invoked the statutory presumption"]; Burge v.

Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 390 (Burge) [evidence in

administrative record supported determination that intoxilyzer test was given within an

hour of first observation of driver despite the fact that Department's evidence did not

contain an express statement as to the time test was given].) In this case, for the reasons


20   It also bears emphasizing that the sworn and unsworn report both indicated that
Murphey was driving at 2:50 a.m. and had his blood drawn at 3:57 a.m.
                                             19
stated above, the only reasonable finding based on the evidence in the record is that the

blood draw occurred within three hours of Murphey having driven.

       None of the cases that Murphey cites in his brief supports a different result.

Manning v. Department of Motor Vehicles (1998) 61 Cal.App.4th 273 (Manning), on

which Murphey principally relies, involved an error that was of an entirely different

magnitude from the error involved in this case. In Manning, the Court of Appeal stated

that an error on a laboratory report was so significant that "the logical inference is the test

results are someone else's, not Manning's." (Id. at p. 275, fn. 2, italics added.) The

Manning court described the error as follows:

          "At the administrative per se hearing Manning objected to the
          admission of the forensic report on various evidentiary grounds.
          Relevant to this appeal, he pointed out that the . . . forensic test was
          supposedly performed by Debra Eck, a forensic alcohol supervisor,
          on October 25, 1993. However, the computer printout states the
          urine sample was not submitted to the laboratory until the following
          day, October 26. The DMV did not offer any evidence to rebut
          Manning's claim, and thus the question is whether a forensic report,
          which discloses a patent physical impossibility on its face, ' "is the
          sort of evidence on which responsible persons are accustomed to
          rely in the conduct of serious affairs." ' [Citation.] We don't think
          so. Even in the relaxed evidentiary world of administrative per se
          hearings, a forensic report must reflect some relationship with the
          physical world we know." (Id. at p. 275.)

       In this case, in contrast, any mistake with respect to the precise moment that

Murphey was booked into jail (or when his blood was drawn) on the arrest report does

not support an inference that the test results do not pertain to Murphey or that the results

of the laboratory test are unreliable for any other reason. In short, Manning does not

support exclusion of the Reports.


                                              20
       In Santos, supra, 5 Cal.App.4th 537, a second case relied upon by Murphey, the

Court of Appeal concluded that there "was no basis for an inference that [a licensee's]

blood-alcohol level was 0.08 or more percent at the time of driving" because there was a

"complete absence of evidence as to when [licensee's] blood was drawn." (Id. at pp. 549–

550.) For the reasons described above, it is not reasonable to conclude that there was a

"complete absence of evidence" (ibid.) as to when Murphey's blood was drawn in this

case. On the contrary, both the sworn and unsworn reports expressly state that Murphey's

blood was drawn at 3:57 a.m. Any inaccuracies as to the precise time at which Murphey

was booked into jail or his blood was drawn were not material to the determination of

whether Murphey had a blood alcohol level that was 0.08 or more percent at the time of

driving because it is clear from the Reports that the jail booking and the blood draw both

occurred well within three hours of Officer Oka having observed Murphey driving.

       Accordingly, we conclude that the trial court committed reversible error in

determining that Officer Oka's sworn and unsworn reports were inadmissible. 21

       4. The trial court erred in finding that the weight of the evidence did not support
          the hearing officer's decision to uphold the suspension

       The Department contends that because the Reports were admissible, the

undisputed evidence established each element necessary to suspend Murphey's license.

We interpret this argument as a contention that, even assuming that the trial court ruled




21     It is clear that the trial court's error in determining that the Reports were
inadmissible requires reversal because the Reports were the critical evidence supporting
the hearing officer's decision upholding the suspension of Murphey's driver's license.
                                            21
that the Reports were admissible, the trial court erred in finding that the weight of the

evidence did not support the hearing officer's decision to uphold the suspension.22

               a. Governing law and standard of review

       In Morgenstern, supra, 111 Cal.App.4th at page 372, this court outlined the law

governing a driver's contention that the Department's suspension of his license is not

supported by the weight of the evidence:

           "Where, as here, the driver petitions for a writ of administrative
           mandate following an order of suspension, the superior court is
           required to determine, based on the exercise of its independent
           judgment, whether the weight of the evidence supports the
           administrative decision. [Citation.] In reviewing the administrative
           record, the court makes its own determination about the credibility
           of the witnesses. [Citation.]

           "On appeal, we review the record to determine whether the trial
           court's findings are supported by substantial evidence, resolving all
           evidentiary conflicts and drawing all legitimate and reasonable
           inferences in favor of the trial court's decision."

       Notwithstanding this "daunting"23 standard, numerous reviewing courts have

applied this standard of review in reversing a trial court's order granting a writ of

administrative mandate where the evidence that the Department offers is reliable and the



22      Although the Department's brief could have framed its appellate claim with greater
clarity, the trial court's order granting the writ petition is itself not entirely clear as to the
basis of the court's decision. (See fn. 13, ante.) We have framed the Department's
contention in accordance with our duty to indulge all presumptions in favor of the order
and to determine whether the order may be affirmed on any ground.
23      We quote from Murphey's brief. Although based on cases outside of the
administrative per se context, we agree with Murphey's contention that an application of
this standard of review requires us to determine whether " 'the evidence was so
overwhelmingly one-sided that no reasonable factfinder could find against the
[Department].' "
                                               22
licensee presents no contrary evidence. For example, in Morgenstern, this court

determined that the presumption in Evidence Code section 664 established the reliability

of breath test results introduced at an administrative per se hearing. (Morgenstern, supra,

111 Cal.App.4th at p. 377.) This court then concluded, "Because Morgenstern failed to

introduce evidence rebutting the presumption or contradicting the [Department's]

evidence, the [Department] properly suspended his driver's license and the trial court

erred in ordering the [Department] to vacate its suspension order." (Ibid.)

       Similarly, in McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th

519 (McKinney), the Court of Appeal reversed a trial court's judgment granting a writ of

mandate in a case in which the trial court "found that the administrative order was not

supported by the weight of the evidence because the hearing officer had no evidence of

the time that McKinney was observed driving the vehicle." (Id. at p. 523.) The

McKinney court reasoned:

          "The hearing officer was not constrained to consider only direct
          evidence but could draw inferences and deductions of fact from the
          facts before him. [Citation.] In the absence of any indication that
          there was a significant delay between the observation and the stop,
          and in view of the proximity between where the unusual driving was
          observed and the point where McKinney was stopped and arrested,
          the hearing officer could rationally infer that McKinney was driving
          in an inebriated condition shortly prior to the 2:25 a.m. arrest. The
          trial court erred in finding that, without the officer's express
          declaration as to the time of driving, there was insufficient evidence
          to support the suspension. Since this was the sole basis for the
          court's decision, the judgment must be reversed." (Id. at p. 524.)

       In Burge, supra, 5 Cal.App.4th 384, the Court of Appeal applied the substantial

evidence standard of review (id. at p. 388), on facts extremely similar to those in this case


                                             23
in reversing a judgment granting a writ of mandate. The Burge court rejected a licensee's

contention that the Department presented insufficient evidence at the administrative per

se hearing to justify a suspension. (Id. at pp. 390–391.) The licensee had claimed that

the evidence supporting his suspension was insufficient because a police officer's sworn

statement did not include a statement as to the time an intoxilyzer test had been given and

thus did "not establish that [the licensee's] blood-alcohol concentration exceeded .08

percent at the time that he was driving." (Id. at p. 390.) As explained previously (see pt.

III.A.3.b, ante), the Burge court rejected this argument because there was evidence in the

administrative record that supported the determination that test was given within an hour

of the time that law enforcement officers first observed the licensee. (Id. at p. 390.)

After rejecting this argument, and concluding that that the presumption in section 23152,

subdivision (b) applied, the Burge court held that the trial court erred in granting a writ of

mandate on the ground that the Department had failed to carry its burden of proof:

          "The [Department] . . . made a prima facie showing at the
          administrative hearing that Burge had been driving with a blood-
          alcohol concentration in excess of .08. The burden then shifted to
          Burge to dispute that showing, if he could. Burge submitted no
          evidence. The superior court therefore was without basis to find that
          the [Department] had failed in its burden of proof." (Burge, supra,
          at p. 391.)

              b. Application

       As discussed in detail in part III.A.3, ante, the Department presented reliable and

trustworthy evidence that Murphey's blood was drawn within three hours of Murphey

having driven. The results of the blood test based on the blood taken from that draw

demonstrated that Murphey had a blood alcohol level of .16 (twice the limit specified in

                                             24
section 13352.2, subd. (a)).24 In addition, for the reasons stated in part III.A.3, ante, no

reasonable fact finder could find that any uncertainty with respect to the precise time that

Murphy's blood was drawn could have any material impact on whether he had been

driving with a blood alcohol level of .08 percent or higher. Further, Murphey did not

present any other evidence from which a reasonable fact finder could find that the

Department had not established that Murphey had been driving with a blood alcohol level

in excess of .08. Under these circumstances, the trial court "was without basis to find that

the [Department] had failed in its burden of proof." (Burge, supra, 5 Cal.App.4th at p.

391.)

        Accordingly, we conclude that the trial court erred in finding that the weight of the

evidence did not support the hearing officer's decision to uphold the suspension of

Murphey's driver's license.

B. The trial court's award of attorney fees and costs must be reversed

        The People contend that the trial court erred in awarding Murphey attorney fees

and costs.

        In its order granting Murphey's writ petition, the trial court determined that

Murphey was entitled to attorney fees pursuant to Government Code section 800 and

costs, as the prevailing party. Government Code section 800, subdivision (a)



24      Section 13353.2, subdivision (a) provides in relevant part:
             "The department shall immediately suspend the privilege of a person
             to operate a motor vehicle for any one of the following reasons:
             (1) The person was driving a motor vehicle when the person had
             0.08 percent or more, by weight, of alcohol in his or her blood."
                                              25
provides in relevant part, "In any civil action to appeal or review the award, finding, or

other determination of any administrative proceeding under this code or under any other

provision of state law . . . if it is shown that the award, finding, or other determination of

the proceeding was the result of arbitrary or capricious action or conduct by a public

entity or an officer thereof in his or her official capacity, the complainant if he or she

prevails in the civil action may collect from the public entity reasonable attorney's fees."

(Italics added.)

       In light of our reversal of the trial court's order granting the petition for writ of

administrative mandate, we necessarily must reverse the award of attorney fees and costs

because Murphey is no longer the prevailing party. 25

                                              IV.

                                       DISPOSITION

       The trial court's order granting Murphey's petition for writ of administrative

mandate and awarding attorney fees and costs is reversed. The matter is remanded to the

trial court with directions to deny the petition in its entirety. Murphey is to bear costs on

appeal.




25      Accordingly, we need not consider the Department's additional arguments in
support of reversal of the trial court's order awarding fees and costs. Nor need we
consider Murphey's contention that the hearing officer acted arbitrarily and capriciously
by stating that the blood draw occurred at 3:59 a.m. on March 2, 2015, rather than
3:57 a.m. on March 1, 2015 as stated in the Reports, and that such purported arbitrary
decision-making supports the attorney fees and costs award.
                                              26
                        AARON, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.




                   27
Filed 7/28/17
                           CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



MATTHEW D. MURPHEY,                           D069557

        Plaintiff and Respondent,

        v.                                    (Super. Ct. No. 37-2015-00017429-
                                              CU-WM-CTL)
JEAN SHIOMOTO, as Director, etc.,

        Defendant and Appellant.              ORDER GRANTING PUBLICATION



THE COURT:

       The opinion in this case filed July 7, 2017 was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a)
for publication is GRANTED.

       IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and

      ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page one of said opinion be deleted and the opinion herein be published in the Official
Reports.


                                                              MCCONNELL, P. J.

Copies to: All parties




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