APPEAL from a judgment of the Superior Court of Madera County. Charles A. Wieland, Judge. (Super. Ct. No. SCV007720)
The opinion of the court was delivered by: Franson, J.
CERTIFIED FOR PUBLICATION
This case involves interpreting a provision of the California Code of Regulations pertaining to procedures used in the breath alcohol analysis of persons suspected of driving under the influence of alcohol in violation of Vehicle Code sections 23152 or 23153. California Code of Regulations, title 17, section 1221.4, includes required procedures for the determining the accuracy of instruments used in breath alcohol testing. These procedures include a "periodic analysis of a reference sample of known alcohol concentration" (Cal. Code Regs., tit. 17, § 1221.4, subd. (a)(2)(A)) to be conducted in a specified manner. Subdivision (a)(2)(B) of California Code of Regulations, title 17, section 1221.4, provides that "[f]or the purposes of such determinations of accuracy, 'periodic' means either a period of time not exceeding 10 days or following the testing of every 150 subjects, whichever comes sooner."
In this case respondent Paul Allen Lane (Lane) underwent a breath alcohol analysis less than five hours after the testing instrument, known as an "Alcotest 7410," was determined to be accurate in an analysis of a "reference sample" done on January 2, 2010. Lane's breath test registered his blood alcohol level at .19% at 12:19 a.m. and .20% at 12:25 a.m. on January 3, 2010. The Alcotest 7410 instrument used in Lane's testing had its next accuracy test on January 13, 2010, 11 days after its January 2, 2010, accuracy test. After the California Department of Motor Vehicles (the Department) determined at an administrative hearing that Lane had been driving a motor vehicle with a concentration of alcohol in his blood at or above .08% and suspended Lane's driving privilege, Lane petitioned the superior court pursuant to Vehicle Code section 13559 for judicial review of the order of suspension. The superior court ruled that because the next accuracy test on the testing instrument was performed more than 10 days after the January 2 test, the Department was not entitled to a presumption that the Alcotest 7410 testing instrument worked as intended when it was used to test Lane on January 3. The court granted Lane's petition for a writ of mandate directing the Department to reinstate Lane's driving privilege.
The Department has appealed. It contends, as it did in the superior court, that although the testing instrument may have been out of compliance with California Code of Regulations, title 17, section 1221.4, subdivision (a)(2)(B) after the 10-day period expired at the end of January 12, 2010, the testing instrument was not out of compliance with the regulation on January 3, when Lane was tested. Therefore, the Department is entitled to a presumption that blood alcohol tests recorded on official forms were obtained by following the regulations and guidelines of title 17 of the California Code of Regulations.*fn1 As we shall explain, we agree with the Department and reverse the order of the superior court granting Lane's petition for writ of mandate.
Because the evidence presented at the administrative hearing, and subsequently to the superior court, is best understood with knowledge of the procedures governing the administrative hearing and the subsequent appellate review of the Department's administrative decision, we will first restate the legal principles applicable to the administrative hearing and to its subsequent appellate review. We will then summarize the evidence presented to the Department and to the court, and explain why the application of those legal principles leads to our conclusion that the superior court erred in granting Lane's petition.
ADMINISTRATIVE PROCEDURE AND APPELLATE REVIEW
The well-settled law applicable to this case is cogently summarized in Manriquez v. Gourley (2003) 105 Cal.App.4th 1227:
"We begin with a brief overview of the burdens of proof in an administrative [Department of Motor Vehicles (DMV)] hearing, which '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. [Citation.]' 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. [Citations.] ... The recorded test results are presumptively valid and the DMV is not required to present additional foundational 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.' [Citations.]
"'In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, "'whether the weight of the evidence supported the administrative decision.'"' [Citation.] Even exercising its independent judgment, the trial court still 'must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.' [Citation.]
"On appeal, this court ordinarily reviews the record to determine whether the trial court's findings are supported by substantial evidence. [Citation.] But where, as here, the determinative question is one of statutory or regulatory interpretation, an issue of law, we may exercise our independent judgment. ...