APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Reversed. (Super. Ct. No. CIVSS705311).
The opinion of the court was delivered by: Miller J.
CERTIFIED FOR PUBLICATION
Plaintiff and respondent Ronald Alan Lee was arrested for driving under the influence (Veh. Code, §§ 23152, 23153)*fn1 and had his driver‟s license suspended. Lee requested an administrative per se hearing in order to challenge his license suspension. The hearing officer upheld the suspension. Lee filed a petition for writ of mandate in the superior court seeking an order setting aside the suspension of his license. The superior court granted the petition ruling that the document establishing that Lee was driving with a blood alcohol concentration (BAC) of 0.08 percent or higher was inadmissible hearsay and improperly admitted at the hearing below.
On appeal, George Valverde, as Director of the Department of Motor Vehicles (the Department), contends that the trial court erred in concluding that the forensic report was not admissible under Evidence Code section 1280 (the public records exception). Lee replies that the court correctly determined that the forensic report was inadmissible and, hence, properly issued a writ of mandate ordering the Department to set aside its order suspending his driving privileges. We hold that the superior court abused its discretion in determining that the forensic report was inadmissible hearsay. We, therefore, reverse the judgment below.
FACTUAL AND PROCEDURAL HISTORY
On May 14, 2007, around 2:25 a.m., an officer observed Lee driving his vehicle approximately 60 miles an hour on a street with a posted speed limit of 35 miles an hour. The officer conducted a traffic stop. After approaching the vehicle, the officer "smelled the strong odor of an alcoholic beverage emitting from within the vehicle and noticed [Lee‟s] eyes were bloodshot and watery." The officer asked Lee if he had had anything to drink. Lee replied that he drank one shot of vodka at his bar. While speaking with Lee, the officer smelled the odor of alcohol on his breath. A check of Lee‟s license revealed that it had been suspended for his refusal to submit to a chemical test for driving under the influence on a prior occasion.
The officer requested that Lee perform a series of field sobriety tests, all of which Lee either failed or refused to execute. The officer arrested Lee for a violation of section 23152, subdivision (a), driving under the influence. The officer transported Lee to jail. Around 3:42 a.m., the officer observed a technician obtain a blood sample from Lee‟s right arm. The sample was sealed and placed in an evidence locker.*fn2 The officer revoked Lee‟s driver‟s license, which Lee surrendered to him. Lee requested an administrative per se hearing regarding the suspension of his driver‟s license.
At the administrative per se hearing, Lee stipulated that the officer had reasonable cause to believe Lee had been driving a motor vehicle in violation of sections 23152 or 23153 and that he had been lawfully arrested. Thus, the only contested issue at the hearing was whether Lee had been driving with a BAC of 0.08 percent or higher. Among other exhibits, the Department introduced into evidence the officer‟s sworn DS-367 statement with attachments, including the arrest report (exhibit No. 1), and a San Bernardino County Sheriff‟s Department Scientific Investigation Report regarding a test of Lee‟s blood sample taken on the evening of his arrest, which reflected a BAC of 0.20 percent (exhibit No. 2). Exhibit No. 2 bears a centered heading reading "San Bernardino County Sheriff‟s Department Scientific Investigation Division." Immediately underneath the heading is a right-aligned date reading, "Tuesday, June 19, 2007." Underneath that date, the exhibit reads, "Report on the Receipt and Examination for Ethyl Alcohol." The substance of the report indicates that analyst Beverly White "analyzed and reported" Lee‟s blood sample as showing a 0.20 percent BAC on May 30, 2007. The document bears a signed certification stamp dated June 19, 2007.*fn3
Lee objected to the admission of exhibit No. 2 on the ground that it constituted inadmissible hearsay. Specifically, Lee contended that the document did not meet the qualification for the public records exception to the hearsay rule, which requires that the record be made at or near the time of the event, because the blood sample was tested on May 30, 2007, but the report was dated June 19, 2007. (Evid. Code, § 1280.) Lee noted that while the report reflected that the analyst had "Analyzed and Reported" the sample on May 30, 2007, "the report that has been submitted to the DMV is not the report of May 30, 2007, and so the report of May 30, 2007, is totally irrelevant and immaterial. The report that we have here is a report that was made on June 19th. Presumably the person that is certified at the bottom [as] the Crime Lab person, has certified that this is a true and exact copy and that the copying was done on June 19, so apparently this report was prepared and copied on the same date." Lee conceded that the Department "could have copied [the] report that was made on May 30th, which would have been admissible. However, [Evidence Code s]section 1280 doesn‟t say because some report was made [at] some place [that was] at/or near the time of the event . . . [that] would be admissible, that any report prepared thereafter" reflecting the same information would be admissible.*fn4
Lee furthermore noted that "[w]e don‟t have [an] explanation as to why a new report was prepared." Lee cited and argued Glatman v. Valverde (2006) 146 Cal.App.4th 700 (Glatman) in support of his position.
Before ruling on Lee‟s evidentiary objection, the hearing officer elected to take the testimony of the arresting officer. As to his cause for stopping the vehicle, the officer‟s testimony was substantially in accord with his arrest report. Lee‟s counsel interrupted the officer‟s testimony to note that counsel had stipulated to any issues requiring the officer‟s testimony as to the remainder of the events of that evening. In fact, after the officer established the circumstances surrounding the preparation of his report (exhibit No. 1), Lee‟s counsel noted, "this was one of the best reports I‟d ever read and I said I think [the officer] dotted all the I‟s and crossed all the T‟s and I can‟t figure out why [he is] here today."
The hearing officer then noted Lee‟s objection to exhibit No. 2, but overruled it and received it into evidence. Lee‟s counsel queried whether the hearing officer was admitting the exhibit under the official record exception to the hearsay rule or was admitting it despite finding that it was hearsay evidence coming under no evidentiary exception. If the latter, counsel argued that "no finding can be based entirely on hearsay. So . . . since the only record we have is this Forensic Alcohol Report, Exhibit #2 that if that report is hearsay, the finding of a blood alcohol above [0.08 percent] cannot be made entirely on hearsay. . . ."
In the hearing officer‟s findings of fact, she overruled Lee‟s objection to the admission of exhibit 2: "Counsel conten[ds] that the chemical test result does not meet the provisions of Evidence Code [section] 1280. More specifically, Counsel believe[s] that the document does not meet the "at or near the time of the event‟ provision because the document‟s printed and certified date is after the analysis was completed. However, Counsel‟s argument is unpersuasive, the certified date on this document merely represents that the document is a certified copy of the original document on file with the lab. The blood sample was analyzed and reported on 05-30-2007. In this case, the information is the analyzed blood alcohol results from an arrest for driving under the influence after noticing the objective symptoms of intoxication and [Lee‟s] own admission of alcohol consumption, the chemical blood test being drawn within three hours from the time of driving. . . . The chemical test result does meet the foundational requirements detailed within Section 1280 of the Evidence Code, and is admissible in the Administrative proceeding." The ...