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Superior Court of Orange County, No. 30-2012-00549559, Robert J. Moss, Judge. Court of Court of Appeal, Fourth Appellate District, Division Three, No. G047562.
Law Offices of Chad R. Maddox and Chad R. Maddox for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Kenneth C. Jones and Kevin K. Hosn, Deputy Attorneys General, for Defendant and Respondent.
Opinion by Werdegar, J., with Cantil-Sakauye, C.J., Chin, Corrigan, Cuellar, and Kruger, JJ., concurring. Concurring Opinion by Liu, J., concurring.
[185 Cal.Rptr.3d 541] [345 P.3d 898]
A California Highway Patrol officer stopped a car driven by plaintiff Ashley Jourdan Coffey after he observed her driving erratically. Four subsequent chemical tests revealed her blood-alcohol concentration (BAC) ranged from 0.08 to 0.096 percent. The officer then confiscated plaintiff's driver's license and served her with a notice that her license would be suspended pursuant to Vehicle Code section 13382.  In an administrative hearing to review the suspension, plaintiff's expert witness opined that her BAC was rising at the time of the chemical tests, suggesting her BAC was below the 0.08 percent threshold at the time plaintiff was driving. Both the Department of Motor Vehicles (DMV) hearing officer and the trial court discounted the expert's testimony in part by relying on arrest reports, which described the physical manifestations of plaintiff's intoxication, such as her general appearance, erratic driving, poor performance on field sobriety tests, and the strong odor of alcohol she projected.
We decide in this case whether the trial court erred by considering, in addition to the results of breath and blood tests, other circumstantial evidence of intoxication to conclude by a preponderance of the evidence that plaintiff drove with a BAC at or above 0.08 percent. As we explain, we conclude the trial court did not err.
On November 13, 2011, at 1:32 in the morning, Sergeant Martin of the California Highway Patrol was traveling southbound on State Route 55 in Orange County when he saw a car traveling 60 miles per hour, swerving erratically from side to side. From the number four, or right-hand, lane, the car [345 P.3d 899] swerved one foot to the left into the number three lane before correcting. It then twice swerved one to two feet to the right, onto the highway's shoulder. Sergeant Martin positioned his patrol vehicle behind the car and activated his emergency lights, whereupon the car slowly moved left across the highway into the number one lane. When Martin activated his siren, the car veered even further left, into the carpool lane. Only when Sergeant Martin used his public address system and directed the driver to pull to the right did the car eventually comply.
Upon making contact with the driver of the vehicle, plaintiff Ashley Coffey, Sergeant Martin noticed her eyes were red and a strong odor of alcohol emanated from her car. Officer White arrived to provide backup and confirmed these observations. To both officers she denied having consumed any alcoholic beverages, offering the rather implausible story that she had just turned 21 years old, had been in a bar, but had not herself consumed any alcoholic beverages. The officers then had plaintiff perform various field sobriety tests. Plaintiff failed the horizontal gaze nystagmus test, " display[ing] a lack of smooth pursuit in both eyes."  Asked to complete the " walk-and-turn test," in which she was asked to walk heel to toe for nine steps, turn counterclockwise, and then walk back heel to toe, " she missed heel to toe on five of those nine steps by 2-4 inches on each step. When she reached [185 Cal.Rptr.3d 542] step nine, ... she turned clockwise instead of counter clockwise as instructed. ... [She] used both feet to make the turn instead of keeping her front foot in place" and on the return similarly " missed heel to toe three of the steps by 2-4 inches." 
Plaintiff did somewhat better on the " one-leg stand" test,  standing on one foot and [345 P.3d 900] counting out loud beginning with 1,001; the test was terminated when she reached 1,022 after 30 seconds. On the Romberg test,  " [s]he swayed slightly in all directions from center by 1-2 inches" and " estimated 30 seconds at 37 actual seconds." Plaintiff refused to perform a preliminary alcohol screening, or PAS. 
Based on the officers' observations of plaintiff and her poor performance on the [185 Cal.Rptr.3d 543] field sobriety tests, they placed her under arrest at 2:00 a.m. Officer White advised her of the implied consent law  and she chose to perform a breath test, although she failed several times to provide an adequate breath sample and had to be retested multiple times. At 2:28 a.m., 56 minutes after she was stopped by Sergeant Martin, her breath test registered a BAC of 0.08 percent. Three minutes later, at 2:31 a.m., her second breath test measured a BAC of 0.09 percent. Police then transported plaintiff to the Orange County jail, where she elected to have her blood drawn. The blood draw occurred at 2:55 a.m., one hour 23 minutes after plaintiff was pulled over by Sergeant Martin. The first test of the blood sample showed a BAC of 0.095 percent; the second measured 0.096 percent. As a result of these chemical test results, Officer White confiscated plaintiff's driver's license and issued her an " administrative per se suspension/revocation order" and temporary driver's license. (See § 13382; see also Lake v. Reed (1997) 16 Cal.4th 448, 454-455 [65 Cal.Rptr.2d 860, 940 P.2d 311] ( Lake ).)
Plaintiff, charged with drunk driving (§ 23152), was allowed to plead to a " wet reckless" (§ § 23103 [misdemeanor reckless driving], 23103.5 [prosecutorial statement that alcohol was involved]; see People v. Claire (1991) 229 Cal.App.3d 647, 650 & fn. 2 [280 Cal.Rptr. 269]), but requested a hearing before the DMV to challenge her license suspension (§ 13558).
At the ensuing administrative hearing, the DMV hearing officer had before her the " Officer's Sworn Statement" form, Officer White's arrest report and the supplemental reports of Sergeant Martin and Officer White. In addition to considering these documents, the hearing officer heard telephonic testimony from Jay Williams, a forensic toxicologist with extensive experience, who testified for plaintiff. Williams noted the result of plaintiff's first breath test was 0.08 percent, the second test three minutes later was 0.09 percent, and her blood sample taken about 20 minutes later tested at 0.095 and 0.096 percent. According to Williams, these results suggested the alcohol level in plaintiff's body was rising at the time of the tests and, given the totality of the circumstances, were consistent with plaintiff's BAC being below 0.08 percent at 1:32 a.m. when she was first pulled over by Sergeant Martin.
The DMV hearing officer rejected Williams's testimony regarding a rising BAC, explaining in her ruling that the witness's two conclusions--first, that plaintiff's BAC [345 P.3d 901] was rising at the time she was pulled over, and second, that it may accordingly be deduced that her BAC was below 0.08 percent when she was driving--were not supported by reliable evidence, were " too speculative to support the contention," and were " based on a subjective interpretation of the evidence." In addition, Williams's conclusions were " insufficient to rebut the official duty presumption," which in this context we take to be a [185 Cal.Rptr.3d 544] reference to the presumption the chemical test results were valid.  The hearing officer reached this conclusion, she explained, because Williams had not himself examined the breath-analyzing device used in the case, offered no opinion whether it was in working order, conducted no scientific tests himself, and " did not show that any other experts in the scientific community had reached similar conclusions." Finally, the hearing officer specifically found credible Officer White's recordation of the " events as they occur[red]," which we assume meant White's observations of plaintiff's appearance and her performance on field sobriety tests. Accordingly, the hearing officer concluded plaintiff's license suspension was proper because the state had shown by a preponderance of the evidence that she had been driving with a BAC of 0.08 percent or higher.
Plaintiff filed a petition for a writ of mandate with the trial court to challenge the DMV hearing officer's decision. After first noting that section 23152, subdivision (b) makes it a rebuttable presumption that a person was driving with a BAC of 0.08 percent or higher if so tested at that level or higher within three hours of driving (see Discussion, post ), the trial court denied the writ, explaining that " [e]ven assuming that petitioner Coffey rebutted [this] presumption ..., there was sufficient evidence based on the blood-alcohol tests and the other circumstantial evidence based on the assessment, ...