California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 30-2012-00549559, Robert J. Moss, Judge.
Law Offices of Chad R. Maddox and Chad R. Maddox for Petitioner.
Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Kenneth C. Jones, and Kevin K. Hosn, Deputy Attorneys General, for Defendant and Respondent.
Plaintiff Ashley Coffey was arrested for driving under the influence. An hour after she was pulled over, she took a breathalyzer test. The test result was 0.08 percent blood-alcohol content (BAC). A few minutes later she took another test resulting in a 0.09 percent BAC. Twenty-five minutes later she took a blood test resulting in 0.095 percent BAC. The Department of Motor Vehicles (DMV) suspended Coffey’s license after conducting an Administrative Per Se (APS) hearing. The trial court denied a petition for a writ of mandate. On appeal, Coffey contends the uncontradicted expert testimony at the APS hearing demonstrated her BAC was rising throughout the three tests and thus below 0.08 percent at the time she was driving.
We affirm. Our review is limited to determining whether the trial court’s judgment is supported by substantial evidence. Coffey’s BAC test results, though they indicate a pattern of rising blood alcohol on their face, were within the margin of error of each other. Thus they were indicative of rising BAC, but not conclusive. In ascertaining whether Coffey’s BAC was at least 0.08 percent at the time of driving, the trial court properly looked to circumstantial evidence. The evidence of Coffey’s erratic driving, failed field-sobriety tests (FST’s), and objective indications of intoxication are substantial evidence that Coffey had a BAC equal to or greater than 0.08 percent at the time of driving.
At 1:32 a.m. a California Highway Patrol officer observed Coffey’s car weaving in and out of lanes on the freeway. The officer positioned his vehicle behind Coffey’s and activated the emergency lights. Rather than pull over to the right, Coffey began veering to the left, eventually changing from the number two lane to the number one lane. The officer then activated his siren in an attempt to get Coffey to yield to the right, but Coffey began to veer further to the left into the carpool lane. The officer then used his vehicle’s public address system to advise Coffey to pull over to the right. Coffey eventually slowed down and pulled over. Upon making contact, the officer immediately noticed a strong odor of alcohol emitting from Coffey’s vehicle. Coffey denied having consumed alcohol.
A second officer arrived to perform FST’s. He immediately smelled the odor of alcohol emitting from Coffey’s person and observed Coffey’s red, watery eyes. In performing the horizontal gaze nystagmus test, Coffey displayed a lack of smooth pursuit in both eyes. In performing the walk and turn test, Coffey missed the heel-to-toe on five of the nine steps, turned clockwise instead of counter-clockwise, and used both feet to turn instead of one. And in performing the Romberg test, Coffey swayed slightly in all directions, her eyes trembled, and she estimated 30 seconds at 37 seconds. The officer concluded Coffey failed the FST’s and placed her under arrest at 2:00 a.m.
At 2:28 a.m., Coffey performed a breathalyzer test with a result of 0.08 percent BAC. At 2:31 a.m., she took another breathalyzer test with a result of 0.09 percent. At 2:55 a.m., she took blood tests with results of 0.095 percent and 0.096 percent.
After the arrest, the DMV issued an APS suspension order and held an evidentiary hearing where Coffey was represented by counsel. The exhibits admitted into evidence were the arresting officer’s sworn statement (DMV form DS-367), the officer’s arrest report, and a supplemental arrest report. These exhibits detailed the circumstances recited above.
The only witness to testify was Coffey’s expert. Coffey’s expert opined that Coffey’s BAC was below 0.08 percent at the time of driving based on two independent theories.
First, the expert contended the breathalyzer tests were within the margin of error of below 0.08 percent, and the consensus among experts in the field is that the “fair” result is to give the driver the benefit of the margin of error. The margin of error for breathalyzer tests is 0.02 percent and for blood tests is 0.01 percent. As a result the expert deemed a 0.08 percent to be a 0.06 percent.
The expert’s second theory was that the test results indicated a pattern of rising blood alcohol, and that, given that pattern, Coffey’s BAC must have been below 0.08 percent at the time of driving. The expert agreed with the statement, “the only way she wouldn’t be rising would be that if she was coming down, and then her and the officer after the stop enjoyed some alcoholic beverages together, and then rose from that point.” The hearing officer cross-examined the expert by noting that, given his earlier testimony regarding the margin of error, it is possible the actual BAC levels were not rising. The hearing officer stated, “[T]aking into consideration your margin of error issue..., could it have been in reverse to a.09 on the first breath ...