(San Mateo County Super. Ct. No. 482568) Trial Judge: Honorable Barbara J. Mallach.
The opinion of the court was delivered by: Siggins, J.
CERTIFIED FOR PUBLICATION
This appeal challenges the trial court's determination that the Department of Motor Vehicles (the DMV, or the Department) failed to meet its burden of proving plaintiff Derek Brenner was driving with a blood alcohol content of .08 or more when he was stopped by law enforcement officers. We find no error, and affirm.
I. Arrest and Blood Alcohol Tests
The relevant facts are undisputed. Near midnight on December 30, 2008, Officer Matt Gilliam of the California Highway Patrol stopped plaintiff after observing his erratic driving. Plaintiff's eyes were bloodshot, his speech was slow, and he smelled of alcohol. He performed poorly on a series of field sobriety tests. Three preliminary alcohol screening (PAS) tests taken over a five-minute interval measured his blood alcohol content (BAC) at .080, .053, and .085 percent.
Plaintiff was arrested and submitted to a breath test. Two samples, taken at 12:42 a.m. and 12:45 a.m., respectively, gave identical readings of .08 percent BAC. Before and between the two tests Officer Gilliam tested the device with an air blank that registered 0.00 BAC.
II. Administrative Hearing
Plaintiff requested an administrative hearing pursuant to Vehicle Code section 13558 to contest the suspension of his driver's license. At the hearing, Officer Gilliam testified about his observations of plaintiff's driving, his field sobriety and PAS tests, and his BAC tests. The hearing officer admitted Officer Gilliam's sworn report regarding plaintiff's breath test results and the arrest report, which included plaintiff's PAS results and a printout of his BAC test results.*fn1
In response, plaintiff submitted maintenance records for the instrument used to test his breath and expert testimony from forensic toxicologist Kenneth Mark to explain that the calibration records showed, at the time of plaintiff's breath test, the device was producing readings higher for alcohol content by .002 percent than a calibrated sample. Although the deviation was within the variances allowable for breath-testing instruments under state regulations, Mark testified plaintiff's actual BAC was less than the .08 shown on his BAC results.
The DMV hearing officer suspended plaintiff's license. The hearing officer rejected plaintiff's contention that the breath test results were inflated "based on the following inference by the trier of fact: Ken Mark testified the calibration records indicate the breath machine was in compliance with Title 17 and the expected values were within tolerances. The testimony of Ken Mark indicating the machine was reading high by .002 is not sufficient enough to establish respondent's BAC was .07% because the third digit on the breath test results is truncated. Greater weight is given to the breath test results indicating respondent's BAC was .08%."
III. Trial Court Proceedings
Plaintiff challenged the DMV decision by a petition for writ of administrative mandate seeking to set aside his suspension. He argued, inter alia, that the calibration records and expert testimony were sufficient to rebut the presumptive correctness of BAC test results recorded by officials, and that the DMV failed to prove by a preponderance of the evidence that he was driving with a BAC of .08 or higher.
The DMV responded that plaintiff provided no evidence to rebut its showing that the arresting officer administered the test in accordance with all statutory requirements. It contended the calibration records were insufficient rebuttal evidence because correcting plaintiff's test results for the .002 percent variance identified by plaintiff's expert would bring his test results under the legal limit only if his actual BAC were .080 or .081 percent. If plaintiff had a BAC of .082 percent to 0.089 percent, his corrected test result would still yield a BAC of .08 percent or greater.*fn2 Thus, since there was an 80 percent probability that plaintiff's BAC was at least .08 percent and only a 20 percent ...