(Santa Cruz County Super. Ct. No. CV156054). Honorable Robert B. Atack.
The opinion of the court was delivered by: McAdams, J.
CERTIFIED FOR PUBLICATION
After respondent Sandra Molenda was arrested for driving under the influence of alcohol, the arresting officer issued an administrative order suspending her driving privilege. After an administrative hearing, the Department of Motor Vehicles (DMV) upheld the suspension of Molenda's driving privilege. Molenda petitioned the superior court for a writ of mandate, challenging the DMV's order on the ground that the forensic laboratory report of her blood test results, which the DMV used to prove that Molenda was under the influence, was hearsay and did not meet the requirements of Evidence Code section 1280, the public employee records exception to the hearsay rule. The court held that the laboratory report of the blood test results did not meet the requirements of the public employee records exception to the hearsay rule because the report was not "made at or near the time of" the testing as required by Evidence Code section 1280, subdivision (b). The court also excluded the evidence of Molenda's preliminary alcohol screening (PAS) test results because the foundational facts necessary for their admission had not been established. The court concluded that there was insufficient evidence to support the DMV's finding that Molenda was driving with a blood alcohol level of .08 percent or more and granted the writ.
The DMV appeals, arguing that the trial court erred in excluding the lab report of Molenda's blood test results because the report was admissible under Vehicle Code section 23612, subdivision (g)(2), which the DMV contends prevails over both Evidence Code section 1280 and Government Code section 11513, subdivision (d), the statute that governs the admissibility of hearsay evidence in administrative proceedings. The DMV also argues that the court erred when it refused to consider the PAS test results. We hold that the blood test results were not admissible under Evidence Code section 1280 or Vehicle Code section 23612 and that under the circumstances of this case, the DMV may not rely on the presumptions in Evidence Code section 664 to establish the foundation necessary for the admission of the PAS test results. We therefore conclude the trial court did not abuse its discretion when it excluded the lab report of the blood test results or when it excluded the breath test results that were obtained using a PAS device. We shall therefore affirm the trial court's judgment.
On August 17, 2006,*fn1 California Highway Patrol (CHP) officers responded to the scene of a single-vehicle rollover accident near the entrance ramp from State Park Drive to southbound Highway 1 in Santa Cruz County.
Officer Geddes was the first officer on the scene. When he arrived, he found a Dodge Durango on its wheels in the median between the on-ramp and the highway. Molenda, who was alone in the car, was seated in the driver's seat, trying to start the engine. Because of the damage to the Durango, Officer Geddes instructed Molenda to get out of the car through the rear door. Officer Geddes observed signs of intoxication and smelled a strong odor of alcohol on Molenda.
Officers Barry and Lloyd were dispatched at approximately 11:35 p.m.; they arrived on the scene at either 11:40 or 11:48 p.m. When they arrived, Molenda was outside the car. Molenda admitted to Officer Barry that she had been driving and that she had lost control and crashed. Officer Barry observed signs of intoxication and smelled a strong odor of alcohol on her breath. Molenda also admitted drinking wine with dinner. Officer Barry conducted field sobriety tests, which Molenda failed. He tested Molenda with a PAS device at 12:01 and 12:03 a.m., which produced readings of 0.183 percent and 0.172 percent blood alcohol content. Officer Barry determined that Molenda had been driving under the influence (DUI) of an alcoholic beverage and arrested her. Officer Barry issued an administrative order suspending Molenda's driver's license on the ground that she had 0.08 percent or more of alcohol in her blood and Molenda surrendered her license to him at the scene.
Molenda was transported by ambulance to Dominican Hospital. Officer Barry advised her of the implied consent law and she agreed to provide a blood sample. Molenda's blood was drawn by a hospital lab technician at 12:47 a.m. on August 18th. Officer Barry placed the blood sample "into CHP evidence for analysis by the DOJ [Department of Justice] crime lab." Molenda was subsequently transported and booked into jail.
The DOJ Bureau of Forensic Services laboratory (Lab) received the blood sample on August 21st. The Lab completed its analysis on September 1st; its report was dated September 8th. According to the Lab's report, Molenda's blood alcohol level was "0.17%."
I. Administrative Per Se Hearing
Molenda requested an administrative hearing regarding the suspension of her driver's license. The hearing was conducted by telephone on November 20th. Molenda was represented by counsel, but did not appear at the hearing.
Officer Barry testified regarding his observations at the scene. With regard to the blood alcohol testing, Officer Barry testified that he administered the PAS test and that it showed the presence of alcohol. The hearing officer did not ask Officer Barry for the numerical results of the PAS test. Officer Barry also stated that he arrested Molenda and that after he admonished her regarding the implied consent law, she chose a blood test.
The hearing officer introduced and received the following documents into evidence: Officer Barry's sworn statement on a DMV DS 367 form, Officer Barry's unsworn investigation report on CHP forms, the suspension order, the declaration of the lab technician who took the blood sample, the Lab report, an unsworn traffic collision report prepared by Officer Lloyd, the notice of the hearing, a temporary license issued to Molenda, the DMV's request for discovery, and Molenda's driving record.
Molenda's counsel objected to any evidence of Molenda's blood alcohol level as a result of the testing with the PAS device on the grounds that there was no foundation to support the accuracy of the readings and under the authority of Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 677-681 (Coniglio) which held that PAS devices are not subject to the compliance standards set forth in California Code of Regulations, title 17, sections 1215-1222.2 (hereafter Title 17). The hearing officer sustained both objections and stated that he would not consider the PAS test results for numerical proof of Molenda's blood alcohol level. However, he did consider the PAS test results to the extent that they confirmed the presence of alcohol and supported the officer's conclusion that Molenda was intoxicated.
Citing Downer v. Zolin (1995) 34 Cal.App.4th 578 (Downer), disapproved on other grounds in Lake v. Reed (1997) 16 Cal.4th 448, 465, footnote 10 (Lake), Molenda also objected to the admissibility and sufficiency of the blood test results. Her counsel argued that since the report was completed one week after the Lab tested the blood sample, the report did not meet one of the foundational requirements of Evidence Code section 1280, the public employee records exception to the hearsay rule, since the report was not prepared "at or near the time" of the reported event. (Evid. Code, § 1280, subd. (b).) The hearing officer took the objection under submission.
The hearing officer determined that the blood test results were admissible. With regard to Molenda's objection, the hearing officer held that this case was distinguishable from Downer because the report in Downer was not dated and thus did not indicate when it was prepared, while the report in this case was dated. The hearing officer noted that no evidence had been "submitted to show that the blood result is invalid" or that "the chain of custody was broken" and concluded that "seven days is at or near the time of the analysis." The hearing officer upheld the four-month suspension of Molenda's driver's license.
II. Petition for Writ of Mandate in the Superior Court
Molenda petitioned the superior court for a writ of mandate to set aside the suspension. In her petition, Molenda argued that the Lab report was not admissible under the public employee records exception to the hearsay rule (Evid. Code § 1280) because it was not prepared at or near the time of the testing and consequently, there was no admissible evidence that established her blood alcohol level.
The DMV opposed the petition, arguing that the admissibility and sufficiency of the Lab report was governed by Vehicle Code section 23612, subdivision (g)(2), which as the more particular statute prevails over both Evidence Code section 1280 and Government Code section 11513. The DMV also argued that even if the Lab report was not admissible, the PAS test results were admissible and sufficient by themselves to establish Molenda's blood alcohol level.
The trial court excluded the PAS test results because the foundational facts necessary for their admission had not been established. Citing Glatman v. Valverde (2006) 146 Cal.App.4th 700, the court also held that the delay in preparing the report of the blood test results rendered the Lab report inadmissible. The court therefore concluded that there was insufficient evidence to support the DMV's finding that Molenda was driving with a blood alcohol level of .08 percent or more. The court granted the writ, ordered the DMV to set aside its order suspending Molenda's license, and ordered that Molenda's driving privilege be reinstated. The DMV appeals.
In a DMV administrative hearing, the DMV is required to suspend a person's driving privilege if it determines by a preponderance of the evidence that (1) a peace officer had reasonable cause to believe that the person had been driving a motor vehicle under the influence of alcohol or drugs, (2) the person was placed under arrest, and (3) the person was driving with " '0.08 percent or more, by weight, of alcohol in his or her blood.' " (Lake, supra, 16 Cal.4th at p. 456.) The DMV bears the burden of proof. (Id. at p. 455.)
Molenda contends that there was insufficient evidence to support a finding that she was driving with a blood alcohol level over 0.08 percent, since the Lab report was inadmissible hearsay and the hearing officer had ruled that the PAS test results were inadmissible. The DMV contends that the Lab report, although hearsay, was admissible under Vehicle Code section 23612, subdivision (g)(2), and was sufficient by itself to support the DMV's finding that Molenda was driving with a blood alcohol level in excess of 0.08 percent. The DMV also contends that even if the Lab report was inadmissible, the PAS test results were admissible and sufficient by themselves to support the DMV's finding.
Generally, when ruling on a petition for a writ of mandate challenging an order suspending a driver's license, a trial court exercises its independent judgment to determine " ' "whether the weight of the evidence supported the administrative decision." ' " (Lake, supra, 16 Cal.4th at pp. 456-457.) On appeal, we review the record to determine whether the trial court's findings are supported by substantial evidence. (Id. at p. 457.)
However, when the appellant challenges a court's evidentiary ruling, a different standard of review applies. Generally, we review the trial court's rulings regarding the admissibility of evidence under the deferential abuse of discretion standard. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) "[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
Specifically, we review the trial court's ruling that the Lab report did not meet the requirements of Evidence Code section 1280 for an abuse of discretion. "A trial court has broad discretion in determining whether a party has established [the] foundational requirements [of Evidence Code section 1280]. [Citation.] Its ruling on admissibility 'implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary. (Evid. Code, § 402, subd. (c).)' [Citation.] A reviewing court may overturn the trial court's exercise of discretion ' "only upon a clear showing of abuse." ' " (People v. Martinez (2000) 22 Cal.4th 106, 120 (Martinez), citing People v. Williams (1997) 16 Cal.4th 153, 196.)
To the extent that the issues presented here require us to interpret one or more statutes, we apply the de novo standard of review. Since the interpretation of a statute presents questions of law, appellate courts independently determine the meaning of a statute and are not bound by the trial court's interpretation. (People ex rel. Lockyer v. Shamrock ...