Baker v. Gourley

• Decision Date: 29 June 2000
• Docket Number: No. E025915.,E025915.
• Citation: 81 Cal.App.4th 1167,97 Cal.Rptr.2d 451
• Court: California Court of Appeals Court of Appeals
• Parties: George Clifford BAKER, Plaintiff and Respondent, v. Steven GOURLEY, as Director, etc., Defendant and Appellant.

97 Cal.Rptr.2d 451

81 Cal.App.4th 1167

George Clifford BAKER, Plaintiff and Respondent, v. Steven GOURLEY, as Director, etc., Defendant and Appellant.

No. E025915.

Court of Appeal, Fourth District, Division 2.

June 29, 2000.

Review Denied August 30, 2000.

Bill Lockyer, Attorney General, Silvia M. Diaz, Supervising Deputy Attorney General, and Zachary D. Wechsler, Deputy Attorney General, for Defendant and Appellant.

Allen & Ehrle, Claremont, and T. Douglas Allen, for Plaintiff and Respondent.

OPINION

HOLLENHORST, Acting P.J.

The Director of the Department of Motor Vehicles (herein "DMV"), appeals from the judgment of the superior court granting George Clifford Baker's (herein "Baker") petition for alternative writ of mandamus requiring the DMV to set aside its order suspending Baker's driver's license.

PROCEDURAL BACKGROUND AND FACTS

On January 10, 1999, at approximately 1:47 a.m., Baker was observed by Officer Mark Wilson of the Upland Police Department, driving his truck 60 miles per hour in a 40 miles per hour speed limit zone. "The truck swerved when turning [and] straddled the # 1 [and] # 2 lanes of Central in violation of Vehicle Code, section] 21658[, subdivision (a) ]." After stopping Baker in his truck, Officer Wilson noticed objective symptoms of intoxication including bloodshot and watery eyes, the odor of an alcoholic beverage, an unsteady gait, slurred speech, impaired balance and coordination, and divided attention. Baker was placed under arrest at 2:09 a.m. He was issued a temporary driver's license pursuant to Vehicle Code sections 13353 and 13353.2. According to the County of San Bernardino Sheriffs Department Laboratory of Criminalistics, Blood Alcohol Report (herein "BA Report"), which is identified as "LRB # 99010233," Baker's blood sample was drawn in Officer Wilson's presence by technician Macias.

The bottom half of the BA Report is labeled "CHAIN OF POSSESSION OF SAMPLE." It indicates that Macias gave Baker's blood sample to Officer Wilson at 3:35 a.m. on January 11, 1999. The next entry indicates an individual named "Poles" retrieved the sample from storage locker "A-1" at 8:00 a.m.¹ Poles delivered Baker's blood sample to the laboratory on January 12, at 9:30 a.m.² The BA Report bears a notation indicating the "Seal [was] cut by: [initials unclear]," on January 12, 1999, at 9:50 a.m.³ There is an identification, "BA #" 122418 (herein referred to as BA 122418 or B122418) at the bottom of the page. There was, however, no evidence that the vial containing the blood sample was ever opened or that the sample ever left the custody and control of the laboratory where it was ultimately tested.

On January 18, 1999, Baker's blood sample was analyzed by a technician of the San Bernardino Sheriffs Department, Scientific Investigations Division, identified as "Schneider." Baker's blood-alcohol content (herein "BAC") is listed as 0.09 percent. Although Baker's name, LRB #99010233 and "kit #B122418" match those attached to Officer Wilson's report (and Chain of Possession of Sample document), Baker's date of birth is mistakenly listed as "03081959" instead of the correct date of "05081959."⁴

At the administrative hearing, the DMV admitted the following documentary evidence: exhibit 1-Officer Wilson's sworn statement; exhibit 2-DUI (driving under the influence) arrest/investigation report; exhibit 3-order of suspension with a temporary license endorsement; exhibit 4-Baker's driving record; exhibit 5-correspondence between Baker's counsel and the DMV; exhibit 6-Baker's application for a subpoena duces tecum and a copy of the subpoena duces tecum issued to the West Valley Crime Lab. Baker did not object to exhibits 3 through 6, inclusive. Instead, Baker's primary concern was with the chain of custody of the blood sample, exhibit 2. His expert, Henry S. Greenberg, reviewed the discovery given to him by Baker's counsel. Based on the documents he reviewed, Mr. Greenberg concluded that the DMV did not comply with the requirements of California Code of Regulations, title 17, article 5, section 1219 (herein sometimes referred to as "Title 17").

Specifically, Mr. Greenberg noted the blood sample was collected by a person named Macias on January 10, 1999, at 3:35 a.m. He interpreted the exhibit as indicating Officer Wilson witnessed the drawing of the sample. Mr. Greenberg testified that according to his review of the "CHAIN OF POSSESSION OF SAMPLE," an individual named "Poles" received the sample from locker A 1 on January 11, 1999, at approximately 8:00 a.m. "Poles delivered the sample to the crime lab 25 hours, 25 and a half hours after he or she received it on January 12th." Once the sample was in the laboratory, Mr. Greenberg testified someone (whose initials he could not read) opened a seal. However, he was unsure at exactly what time this was done.

Based upon the first two pages of exhibit 2, Mr. Greenberg concluded that analyst Schneider analyzed the sample on January 18, 1999, six days after the seal was cut. According to Mr. Greenberg, "[w]hat we have here is a breakdown in the chain of custody, the integrity, the whereabouts of the sample for the six days between the time the sample was opened, ... or where the evidence seal was broken, when [sic] the time Schneider analyzed it." Thus, Mr. Greenberg opined that "we have ... a document in violation of [title 17, s]ection 1219, general, which requires the ... maintenance of the integrity and chain of custody, from collection, through analysis, to reporting." After considering all the evidence introduced at the administrative hearing, the hearing officer found that the suspension of Baker's driver's license was proper.

Baker petitioned for judicial review under Vehicle Code section 13559. He contended the DMV's findings were not supported by the evidence because the testimony of Mr. Greenberg was sufficient to rebut the evidentiary presumption in Evidence Code section 664, such that the reliability of the blood alcohol test was called into question. At trial, the DMV disputed Baker's claim by arguing that Baker failed to produce any evidence which showed that the officers or laboratory employees deviated in any way from the regular performance of their official duties.

In response to the court's inquiry regarding the evidence that the seal had been cut, the DMV noted that "Title 17 does not require that ... a test be done within a certain time of the seal being cut. ... Once the sample is in the lab's possession, [it is] presume[d] it's been correctly handled unless the Petitioner can establish ... affirmative evidence showing otherwise." Baker replied that the "documents themselves establish there has been a violation of Title 17" because the six-day window between the cutting of the seal and the analysis interrupted the chain of custody and rebutted the presumption of regularity. Thus, Baker claimed that as long as he could show official standards were in any way violated, the burden shifts back to the DMV to explain why this six-day window did not corrupt the sample.

According to the DMV, Title 17 does not require a seal to be cut by the person performing the analysis. The DMV noted that the chain of custody document does not indicate whether the seal that was cut was the seal to the pouch carrying the sample or to the sample itself.⁵ Finally the DMV objected to Baker's characterization of Mr. Greenberg's testimony as "undisputed." Instead, the DMV faulted Mr. Greenberg's testimony as being a legal conclusion that Title 17 was violated despite the fact that he was unable to point to any specific violation of Title 17. Thus, the DMV contended that the presumption that the official business had been regularly performed was not rebutted; thus, the burden of proof remained with Baker. The trial court took the matter under submission.

On August 2, 1999, the trial court issued its ruling wherein it granted Baker's petition and entered judgment in his favor. The DMV appeals. Neither party disputes the facts. Instead, the sole issue on appeal is whether Mr. Greenberg's testimony rebutted the reliability of the blood alcohol test such that there was insufficient evidence to support the hearing officer's decision.

STANDARD OF REVIEW

In ruling on Baker's petition for writ of mandate, the trial court was required to determine, by exercising its independent judgment, whether the hearing officer's decision was supported by the weight of the evidence. (Code Civ.Proc., § 1094.5, subd. (c); Lake v. Reed (1997) 16 Cal.4th 448, 456, 65 Cal.Rptr.2d 860, 940 P.2d 311; McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 523, 7 Cal.Rptr.2d 18; Coombs v. Pierce (1991) 1 Cal.App.4th 568, 575-576, 2 Cal. Rptr.2d 249.) "When the trial court is authorized to exercise independent judgment on the evidence, on appeal [we] need only review the record to determine whether substantial evidence supports the trial court's findings. [Citations.]" (Coombs v. Pierce, supra, 1 Cal.App.4th at p. 576, 2 Cal.Rptr.2d 249; Lake v. Reed supra, 16 Cal.4th at p. 457, 65 Cal.Rptr.2d 860, 940 P.2d 311.)

THE EVIDENCE

According to Evidence Code section 664, there is a rebuttable presumption that an official duty has been regularly performed. For example, once the DMV presents competent evidence in the form of documents contemplated in the statutory scheme to establish its prima facie case, the licensee must produce competent affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. (Cf. Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 739, 27 Cal. Rptr.2d 712.) The licensee must...