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Robert Richard Krilich v. George Valverde

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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