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Robert Richard Krilich v. George Valverde

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)


November 9, 2011

ROBERT RICHARD KRILICH, PLAINTIFF AND APPELLANT,
v.
GEORGE VALVERDE, AS DIRECTOR OF DEPARTMENT OF MOTOR VEHICLES, ETC., DEFENDANT AND RESPONDENT.

(Super. Ct. No. SC20100022)

The opinion of the court was delivered by: Hull , Acting P. J.

Krilich v. Valverde

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The Department of Motor Vehicles (DMV) suspended the driver's license of plaintiff Robert Richard Krilich after his arrest for drunk driving. Plaintiff sought to set the suspension aside, but the trial court denied his petition for relief. On appeal, plaintiff contends his writ petition should have been granted because (1) the suspension notice was not signed and therefore a nullity, and (2) there was insufficient evidence that plaintiff met the threshold of a 0.08 percent blood alcohol level because the officers did not follow proper procedures in obtaining defendant's breath sample. Neither claim has merit, and we therefore affirm.

FACTS AND PROCEEDINGS

On the night of July 25, 2009, South Lake Tahoe Police Officer Donald Poole received a report of a car driving recklessly. As he came upon the car, the driver rolled through a stop sign and Poole pulled him over. It was 10:59 p.m. Plaintiff got out of the car and walked toward Poole while resting his arm on the car for balance. Poole noticed a strong smell of alcohol, and plaintiff said he had wine with dinner a few hours earlier. Poole administered some field sobriety tests. Plaintiff's speech was slurred, and he swayed, had difficulty focusing, and could not follow Poole's moving finger. At 11:10 p.m., the officer placed plaintiff under arrest for operating a vehicle while under the influence of alcohol.

Officer Poole's patrol car did not have a caged area, so plaintiff was placed in another officer's car and taken to jail. Poole stated that plaintiff was not alone at any point, other than perhaps the few seconds when the other officer walked to the driver's seat after securing defendant in the backseat. Poole also drove to the station, and arrived moments after plaintiff.

Once there, Poole administered a breath test to plaintiff. The test at 11:20 p.m. recorded a blood alcohol content of 0.10, as did a second test at 11:27 p.m.

Officer Poole gave defendant an "administrative per se suspension/revocation order" and temporary driver license. This notice informed defendant that he had 10 days to request a hearing to show that the suspension/revocation was not justified and it outlined relevant information for such a hearing.

Four days later, on July 29, 2009, plaintiff requested a hearing and asked for discovery.

The hearing was scheduled for August 26, 2009. At that time, plaintiff asserted that the order of suspension/revocation was a nullity because Officer Poole had not signed it. The hearing officer had not seen the unsigned copy; the copy she had was signed. She continued the hearing for a month in order to subpoena Officer Poole.

At that hearing, plaintiff again asserted that the notice was a nullity because it was unsigned, and he had not received the requisite notice from the DMV. The hearing officer overruled the objection, and Officer Poole testified, describing his stop of plaintiff's car, the subsequent field test, transportation to the jail, and breath test. Poole stated he had not transported defendant because his patrol car did not have a caged area; instead, Officer Heather Carlquist drove defendant to the station. A report from Officer Poole's partner also identified Officer Carlquist as the transporting officer.

The hearing officer continued the matter to subpoena Officer Carlquist and determine her role in the incident. However, when Officer Carlquist appeared at the next hearing date, she testified that she had not been at work on the date in question.

Plaintiff moved to exclude the breath test results because there was no evidence that officers had defendant "under continuous observation for at least fifteen minutes prior to the collection of the breath sample," as required by California Code of Regulations, title 17, section 1219.3, discussed at length later in this opinion. (References to "section 1219.3" are to this provision; further references to "title 17" are to title 17 of the California Code of Regulations.) The hearing officer denied the motion.

Plaintiff presented testimony from expert witness Jeff Zehnder, a forensic toxicologist. Zehnder testified that the regulations require a 15-minute, direct, continuous and face-to-face observation of a driver. He also testified that Lasix, a diuretic prescribed to plaintiff, can cause a higher blood alcohol level, although that can be lowered by drinking water. He testified that plaintiff had just told him that he had taken two doses of Lasix on the day of the incident, one in the morning and the second at 5:00 or 6:00 p.m. He did not conduct any independent examinations of plaintiff to study the effect of Lasix on plaintiff's blood alcohol content.

Plaintiff also introduced a letter from his physician, stating that plaintiff suffered from congestive heart failure and had been advised to increase his Lasix dosage for the first few days in Lake Tahoe because of the altitude. The physician also wrote that because Lasix rids the body of extra fluid, blood can be concentrated and "a quantity of alcohol may be registered as misleadingly elevated. Indeed, it may even be as high as a 25% elevation from the doses of Lasix that [plaintiff] was suggested to take."

In her statement of findings and decision, the hearing officer concluded that plaintiff had driven with a blood alcohol level of greater than 0.08 percent and she therefore suspended plaintiff's driver's license. She ruled that any violation of section 1219.3 went to the weight of the evidence, not its admissibility. She further found that Zehnder's testimony was based on uncorroborated hearsay, and that there was no evidence as to whether plaintiff adhered to the recommended dosage of Lasix, or whether plaintiff consumed water in a quantity that might have offset any effects of this medication.

Plaintiff filed a petition for writ relief, asserting that (1) the notification of suspension/revocation was a nullity because Officer Poole did not sign the form and (2) there was insufficient evidence that plaintiff met the threshold of 0.08 percent blood alcohol level because the officers did not have plaintiff under continuous observation for 15 minutes before the breath test as required by section 1219.3.

The trial court denied the petition and this appeal followed.

DISCUSSION

I

License Suspension Procedures and Standard of Review

When an individual is arrested for driving under the influence and has a prohibited blood-alcohol level, the arresting officer or DMV serves the person with a notice of order of suspension. (Veh. Code, § 13353.2, subd. (b), (c).) This notice states the effective date the individual's license will be suspended, gives the reasons and statutory grounds for suspension, and explains the right to seek an administrative hearing. (Veh. Code, § 13353.2, subd. (c).) "'The DMV automatically reviews the suspension order to determine, by a preponderance of the evidence, whether: (1) the arresting officer had reasonable cause to believe the person was driving [under the influence]; (2) the person was placed under arrest; and (3) the person was driving with 0.08 percent or more, by weight, of alcohol in the blood. [Citation.] The determination is based upon the officer's report and any evidence accompanying the report. [Citation.] The person may request a hearing with the DMV limited to these issues, at which additional evidence may be presented." (Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 167.)

An administrative hearing before DMV "'does not require the full panoply of the Evidence Code provisions used in criminal and civil trials.' [Citation.] In this hearing, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. [Citations.] The DMV may satisfy its burden via the presumption of Evidence Code section 664. [Citation.] 'Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. . . . The recorded test results are presumptively valid and the DMV is not required to present additional foundation evidence. [Citation.]' [Citation.] With this presumption, the officer's sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test." [Citations.]

"Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. [Citations.] 'The licensee must show, "through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed . . . ." [Citation.] Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation.'" (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232-1233.)

"A person whose license suspension is upheld may seek judicial review of an adverse decision by way of petition for writ of administrative mandate. [Citations.] Review is strictly limited to the record of the administrative hearing; the trial court may not consider any other evidence. [Citation.] 'The superior court uses its independent judgment to review DMV hearing decisions which suspend driver's licenses. [Citation.] Under this standard of review, the court must independently weigh the evidence and may make its own findings. [Citation.] It must set aside the administrative decision where the agency's findings are not supported "by the weight of the evidence." [Citation.]' [Citation.]" (Dyer v. Department of Motor Vehicles, supra, 163 Cal.App.4th at pp. 167-168.)

On appeal, we review the record to determine whether substantial evidence supports the trial court's findings, and we resolve all evidentiary conflicts and draw all reasonable inferences in favor of the trial court's decision. However, we exercise de novo review of the trial court's legal determinations. (Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176, 1184.)

II

Notice

Plaintiff contends the suspension of his license is invalid because the order of suspension was not signed by Officer Poole and is therefore a nullity. Plaintiff cites no authority to support his claim.

When a chemical test confirms that an adult arrestee has a blood alcohol level of 0.08 percent or more, Vehicle Code section 13382, subdivision (a) requires the arresting officer, acting on behalf of DMV, to serve a "notice of order of suspension or revocation of the person's privilege to operate a motor vehicle personally on the arrested person."

Officer Poole completed the requisite form and served it on plaintiff. Plaintiff readily admitted being served with this document, but asserts that the lack of signature nullifies the notice.

Plaintiff offers no authority to support his theory and we are aware of none. In fact, we can only conclude that the lack of signature was of no consequence. Plaintiff admitted having notice of the charges against him and this notice advised him of hearing procedures. Plaintiff acted on this knowledge by hiring an attorney who requested an administrative hearing and discovery only four days after the arrest. In this request, the attorney referenced information contained in the notice, including an identifying description of Officer Poole and the details of his client's arrest "for having completed a chemical test with a blood alcohol concentration of .08 percent or more."

Plaintiff's complaints of lack of notice are meritless.

III

Substantial Evidence

Plaintiff contends that the officers' failure to keep him under continuous observation for 15 minutes before taking his breath sample negated the test results and left no substantial evidence that his blood alcohol level exceeded legal limits. We disagree.

Section 1219.3, relating to breath alcohol analysis, states in relevant part that "[t]he breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked."

Noncompliance with this provision goes to the weight of the evidence, not its admissibility, and tests results may nonetheless be admitted if general foundational requirements are met. (People v. Williams (2002) 28 Cal.4th 408, 414, 417.)

Although plaintiff's expert witness testified that "continuous observation" under section 1219.3 requires direct, face-to-face observation, the law contains no such requirement. "[C]ontinuous observation for purposes of compliance with [section] 1219.3 does not mean an officer must keep his or her eyes focused on the subject for an uninterrupted 15-minute period. Observation is not limited to perception by sight; an officer may perceive a subject has eaten, drank, smoked, vomited or regurgitated by sound or smell and the perception by senses other than sight can be sufficient to comply with the regulation. Further, the regulation should be interpreted with reference to its purpose, which is to determine whether the test subject has smoked, ingested food or drink, or suffered physical symptoms that would adversely affect the test results. [Citation.] . . . [U]ninterrupted eye contact is not necessary (and may not always be sufficient by itself) to determine whether the proscribed events have occurred, so long as the officer remains present with the subject and able by the use of all of his or her senses to make that determination." (Manriquez v. Gourley, supra, 105 Cal.App.4th at pp. 1235-1236.) "[C]ontinuous observation within the meaning of [section 1219.3] does not require direct and unbroken eye contact for the 15-minute period as long as other means of uninterrupted observation are adequate." (Id. at p. 1238.)

Nor does the observation have to be made by one person. "So long as the observation of the subject is 'continuous' for at least 15 minutes, the regulation is satisfied. We see no reason why two or more observers who--much like runners in a relay race--observe the subject in succession over a period of at least 15 minutes preceding the breath test cannot be deemed to have conducted the 'continuous observation' regulation 1219.3 requires." (Taxara v. Gutierrez (2003) 114 Cal.App.4th 945, 950.) "Two or more observers, acting in succession, can ensure the subject did not ingest food or drink, regurgitate, vomit, or smoke in the 15 minutes before the test, just as easily as a single observer." (Id. at p. 951.)

In denying plaintiff's writ petition, the trial court concluded that although the 15-minutes requirement was not met, this noncompliance went to the weight of the evidence, not its admissibility. The court explained: "[Plaintiff] was arrested at 11:10 PM and the test was administered at 11:20 PM so Poole did not observe [plaintiff] continuously for fifteen minutes as prescribed by Title 17 [citation]. [Plaintiff] was not left alone from the time he was placed in Officer Carlquist's car to be transported to jail through the administration of the breath test [citation]. [¶] . . . Other than the fact that the observation was short of fifteen minutes by some undetermined period, there is no evidence whatever that there was anything wrong with the test. . . . With no other indication of error, the Court cannot conclude that the hearing officer abused her discretion in making her finding."

Neither the administrative hearing office nor the trial court calculated the time correctly. Officer Poole stopped plaintiff at 10:59 p.m. and administered field sobriety tests. While plaintiff was not arrested until 11:10 p.m., he was under the continuous observation of Officer Poole from just before 11:00 p.m., when he was stopped, until he was placed in the patrol car of the transporting officer. He remained under the continuous observation of that officer for the ride to the station. When Poole arrived, he took charge of plaintiff again and administered the first breath test at 11:20. Plaintiff was under continuous observation from 10:59 p.m. to 11:20 p.m., more than meeting the 15-minute requirement of section 1219.3.

Even if we were to conclude otherwise, plaintiff's claim of error falls short. Plaintiff did not challenge the accuracy of the testing equipment or Officer Poole's qualifications to run the equipment. Although plaintiff introduced evidence that Lasix can affect blood alcohol levels, he did not present evidence that he took the medication as prescribed. He also did not present any evidence of his water consumption to address his own witness's admission that hydration can counteract the effects of Lasix on blood alcohol level.

Plaintiff relies on Roze v. Department of Motor Vehicles, supra, 141 Cal.App.4th 1176, a case readily distinguishable from the one before us. In Roze, an arresting officer conducted preliminary alcohol screening (PAS) tests for the sole purpose of determining whether there was alcohol in the driver's system; he did not intend that the results be used as proof of actual blood alcohol level. (Id. at pp. 1179, 1181.) Contrary to proper procedures, the PAS tests were performed nine minutes after the driver spit out a piece of gum at the officer's direction. (Id. at pp. 1179, 1180.) Another officer testified that a PAS test could give a false positive under these circumstances. (Id. at pp. 1180-1181.) Under these circumstances, the trial court could reasonably conclude that "the PAS test was not a sufficiently reliable reading of [the driver's] actual blood-alcohol concentration based on the manner in which it was conducted and the absence of title 17 compliance. The PAS test is not the scientific equivalent of a post-arrest blood, breath or urine test, and due to questions about its reliability, the Legislature does not treat it as the functional equivalent of the mandatory blood-alcohol level test

. . . ." (Id. at p. 1189.)

Unlike Roze, this case does not involve PAS tests and there is no evidence of anything that might have contaminated plaintiff's blood alcohol level samples.

In short, there was ample evidence that plaintiff's blood alcohol level exceeded legal limits, warranting the suspension of his driver's license.

DISPOSITION

The judgment is affirmed.

We concur: ROBIE , J. MAURO , J.

20111109

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