(Santa Cruz County Super. Ct. No. CV157927). Trial Judge: The Honorable Paul P. Burdick.
The opinion of the court was delivered by: McAdams, J.
CERTIFIED FOR PUBLICATION
The Department of Motor Vehicles (DMV) appeals a judgment granting Martin Miyamoto‟s petition for writ of administrative mandamus and ordering the DMV to set aside its order suspending Miyamoto‟s driver‟s license after he was arrested for driving under the influence of alcohol. The trial court ruled that the forensic laboratory report (Lab Report) of Miyamoto‟s blood test results was inadmissible hearsay and that the Lab Report failed to meet the requirements of the public employee records exception to the hearsay rule (Evid. Code, § 1280)*fn1 because the DMV did not establish that the Lab Report was prepared at or near the time of the analysis of Miyamoto‟s blood sample.
The DMV argues that the trial court erred when it concluded that the Lab Report was inadmissible hearsay and asserts that, as a matter of law, the Lab Report was admissible under section 1280 because the Lab Report states that the test results were recorded at the time of the analysis. The DMV also contends that the court erred in finding in favor of Miyamoto because Miyamoto, not the DMV, had the burden of proof in the trial court. We conclude that the Lab Report was admissible under the public employee records exception to the hearsay rule and reverse the judgment of the trial court. Consequently, we need not reach the DMV‟s contention regarding the burden of proof.
On March 16, 2007, Morgan Hill Police Officer R. Krewson observed Miyamoto‟s car speeding and using a left turn lane as a passing lane. When Officer Krewson stopped Miyamoto, he observed signs of intoxication. Miyamoto said that he had consumed two beers. After Miyamoto performed poorly on field sobriety tests, Officer Krewson arrested him for driving under the influence (Veh. Code, § 23512, subd. (a)) and transported him to the Morgan Hill Police Department, where Miyamoto submitted to a blood test. Officer Krewson suspended Miyamoto‟s driving privilege and Miyamoto surrendered his driver‟s license.
A police department phlebotomy technician obtained two blood samples from Miyamoto and sent them to the Santa Clara County Crime Laboratory (Lab) for analysis. The Lab analyzed one of the samples on Friday, March 23, 2007. According to the Lab Report, Miyamoto‟s blood alcohol content was 0.16 percent, twice the legal limit (Veh. Code, § 23152, subd. (b)).
The Lab Report contained the following certification: "I, the undersigned certify under penalty of perjury that the above blood . . . analysis reported herein was performed during the regular course of my duties and is a true and correct representation of the results of my analysis. I further certify that I am a qualified . . . Forensic Alcohol Analyst (FAA) . . . employed by the Santa Clara County Crime Laboratory. The equipment used to perform the analysis was in proper working order at the time the analysis was performed and the recording of the analysis results was done at the time of the analysis. I further certify that the transfer of data for reporting purposes was performed electronically in accord with the laboratory‟s policies and procedures." The Lab Report was signed by "R. Desai, FAA." The signature line, which included a line for the analyst to enter the "Date of review/report," contained a handwritten date: "3/26/07." The Lab Report contained the name of the "reviewer," "Joyner." A box in the middle of the report indicated that the "Date Printed" was "4/26/2007."
I. Administrative Per Se Hearing and Hearing Officer's Decision
Miyamoto‟s administrative hearing was conducted on June 11, 2007. Miyamoto was represented by counsel, but did not personally attend the hearing. Neither party presented witnesses and there was no live testimony. At the hearing, Miyamoto‟s counsel stipulated that the arresting officer had reasonable cause to believe that Miyamoto was driving under the influence of alcohol and that Miyamoto was lawfully arrested. The only contested issue was whether Miyamoto was driving with a blood alcohol content of 0.08 percent or more.
Without objection, the hearing officer received five documents into evidence on behalf of the DMV: (1) Officer Krewson‟s sworn report on a DMV DS 367 form, (2) Officer Krewson‟s unsworn report on Morgan Hill Police Department forms, (3) the suspension order, (4) the declaration of the phlebotomist who drew the blood samples, and (5) Miyamoto‟s driving record.
The DMV also moved the Lab Report into evidence. However, Miyamoto objected to the admission of the Lab Report on two grounds. First, he acknowledged that the Lab Report, although hearsay, would generally be admissible if it appears to be trustworthy and meets the requirements of sections 1280, the public employee records exception to the hearsay rule. Miyamoto asserted that the Lab Report was untrustworthy (§ 1280, subd. (c)) because it was certified on March 26, 2007, "32" days before it was printed on April 26, 2007. Second, Miyamoto argued that the Lab Report was inadmissible because the Lab did not forward the report to the DMV within 15 days of the arrest as required by Vehicle Code section 23612, subdivision (g)(1).*fn2
At the administrative hearing, Miyamoto introduced and then objected to the admission of a separate report of the blood test results, which his counsel referred to as the "Query Lab Case Report" (QLCR), on the ground that it was inadmissible hearsay because it was not prepared "at or near the time of" the testing (§ 1280, subd. (b)). As Miyamoto acknowledges on appeal, although the QLCR was marked for identification and there was argument regarding the QLCR at the administrative hearing, Miyamoto‟s counsel stated that she was not moving the QLRC into evidence.
The DMV hearing officer overruled Miyamoto‟s objections to the Lab Report, determined that the Lab Report was admissible, found that Miyamoto was driving with a blood alcohol level of 0.08 percent or more, and upheld the suspension of Miyamoto‟s license. The hearing officer held that the Lab Report met the requirements of section 1280 because the ...