Bell v. Department of Motor Vehicles, A056920

• Decision Date: 30 November 1992
• Docket Number: No. A056920,A056920
• Citation: 11 Cal.App.4th 304,13 Cal.Rptr.2d 830
• Court: California Court of Appeals Court of Appeals
• Parties: Michael A. BELL, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Page 830

13 Cal.Rptr.2d 830

11 Cal.App.4th 304

Michael A. BELL, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

No. A056920.

Court of Appeal, First District, Division 3, California.

Nov. 30, 1992.

Rehearing Denied Dec. 23, 1992.

Review Denied March 18, 1993.

Daniel E. Lungren, Atty. Gen., Henry G. Ullerich, Asst. Atty. Gen., Cathy Christian, Larry G. Raskin, Jose R. Guerrero and S. Michele Inan, Deputy Attys. Gen., Sacramento, for defendant and appellant.

Thomas Knutsen, and Knutsen & Smithwick, Newark, for plaintiff and respondent.

CHIN, Associate Justice.

The Department of Motor Vehicles (DMV) appeals from a judgment granting respondent Michael A. Bell's petition for a writ of mandate and ordering the DMV to set aside the suspension of Bell's driving privilege. It contends that substantial evidence does not support the trial court's decision to overturn the suspension order. We agree. Therefore, we reverse and direct the trial court to deny Bell's petition.

FACTUAL AND PROCEDURAL BACKGROUND

While on patrol, California Highway Patrol (CHP) Officer J. Perez and another officer observed Bell "come out of a club" and drive away with the car windows down and music playing at a level such that Perez could hear it from a distance of 100 feet. Perez stopped the vehicle and informed Bell that he had violated Vehicle Code section 27007, which limits the level at which a driver may play a vehicle's sound system during the vehicle's operation. ¹

During the stop, Perez observed that Bell had bloodshot eyes, slurred speech, and an odor of alcohol on his breath. Perez then conducted field sobriety tests, which Bell failed. Therefore, at approximately 2:05 a.m. on August 14, 1991, Perez arrested Bell for driving under the influence of alcohol in violation of section 23152, subdivision (a) or (b).

At the Santa Rita jail, Perez administered intoxilyzer tests to Bell at 2:36 a.m. to determine Bell's blood alcohol concentration (BAC). The test results indicated BAC's of 0.10 and 0.09 percent respectively. Perez therefore issued an administrative per se order of suspension under section 13353.2, which requires the DMV to suspend the driving privilege of anyone who drives with a BAC of 0.08 percent or more.

Pursuant to Bell's request, the DMV held an administrative hearing regarding the suspension. The DMV submitted Perez's statement, a copy of the intoxilyzer printout, the administrative per se order of suspension, and a printout of Bell's driving record. Bell testified at the hearing that he had had difficulty with the balancing portion of the field sobriety test because of a preexisting leg injury. He believed that he had passed the other portions of the field examination. On this record, the DMV upheld the suspension.

Bell petitioned for a writ of mandate. The trial court granted the petition, finding insufficient evidence of Bell's BAC at the time of driving. It therefore entered judgment ordering that a peremptory writ issue. The DMV now appeals.

DISCUSSION

The trial court's task in this case was to determine, using its independent judgment, whether the weight of the evidence supported the administrative decision. (Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 545, 7 Cal.Rptr.2d 10.) Our task on appeal is to determine "whether the evidence reveals substantial support, contradicted or uncontradicted, for the trial court's conclusion that the weight of the evidence does not" support the DMV's suspension order. (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72-73, 64 Cal.Rptr. 785, 435 P.2d 553.) In making this determination, we must draw all legitimate and reasonable inferences in favor of the trial court's decision. (Id., at p. 72, 64 Cal.Rptr. 785, 435 P.2d 553; Kerrigan v. Fair Employment Practice Com. (1979) 91 Cal.App.3d 43, 52, 154 Cal.Rptr. 29.)

We agree with the DMV that the record does not contain substantial evidence to support the trial court's decision. The evidence the DMV submitted at the hearing established the following: (1) after stopping Bell for driving in violation of section 27007, Perez observed that Bell had bloodshot eyes, slurred speech, and an odor of alcohol on his breath; (2) Bell failed the field sobriety tests Perez administered; (3) Perez arrested Bell at approximately 2:05 a.m.; and (4) approximately one-half hour later, Perez administered to Bell two intoxilyzer tests, which showed BAC's of 0.10 and 0.09 percent respectively. This evidence warranted application of section 23152, subdivision (b), which establishes a rebuttable presumption that a person's BAC at the time of driving was at least 0.08 percent if a chemical test given within three hours of the driving shows a BAC of at least 0.08 percent. Bell submitted no evidence to rebut the presumption. Therefore, the DMV properly suspended Bell's driving privilege.

The trial court premised its contrary conclusion on two grounds that our appellate courts have since rejected. The trial court first found that suspension was improper because the DMV failed to produce evidence regarding the accuracy and reliability of the intoxilyzer tests or Perez's qualifications for administering the tests. It is now well established, however, that Perez's signed report of the results of the intoxilyzer tests that he personally administered to Bell were admissible as proof of Bell's BAC without any further foundational showing, absent Bell's submission of evidence to cast doubt on those test results. (See Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 140-143, 7 Cal.Rptr.2d 818; Santos v. Department of Motor Vehicles, supra, 5 Cal.App.4th at pp. 542, 546-548, 7 Cal.Rptr.2d 10; Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 390, 7 Cal.Rptr.2d 5.)

The trial court also found that section 23152, subdivision (b), does not apply in administrative hearings. That subdivision provides in relevant part: "(b) ... [p] In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving." Emphasizing the phrase, "In any prosecution under this subdivision," Bell argued that the presumption "is, on its own terms inapplicable to Admin Per Se hearings." In granting the petition, the trial court agreed with Bell.

In Burge v. Department of Motor Vehicles, supra, 5 Cal.App.4th at page 391, 7 Cal.Rptr.2d 5, Division One of this district held to the contrary. The Burge court reasoned that "[s]uch a construction would ... be contrary to the evident purpose of the Legislature in creating the presumption": to obviate the need for independent proof of a driver's BAC at the time of driving in recognition of the "fact that breath tests taken within three hours after driving accurately reflect [BAC] during driving...." (Ibid.) It then applied the rules of statutory construction that require courts to give a statute a reasonable construction consistent with the Legislature's apparent purpose and intent and to look beyond the literal words of a statute when plain meaning leads to unreasonable results inconsistent with the Legislature's purpose. (Ibid., citing Webster v. Superior Court (1988) 46 Cal.3d 338, 344, 250 Cal.Rptr. 268, 758 P.2d 596; Love v. Superior Court (1990) 226 Cal.App.3d 736, 745, 276 Cal.Rptr. 660.) Therefore, it held "that the presumption of section 23152 applies to DMV hearings...." (Burge, supra, 5 Cal.App.4th at p. 391, 7 Cal.Rptr.2d 5.)

Unlike the dissent, we reject Bell's contention that Burge is incorrect. Bell complains that Webster v. Superior Court, supra 46 Cal.3d 338, 250 Cal.Rptr. 268, 758 P.2d 596, and Love v. Superior Court, supra, 226 Cal.App.3d 736, 276 Cal.Rptr. 660, the cases on which Burge relied for principles of statutory construction, do not establish that a court "may ignore the plain meaning of a statute," or "add words of significance to a statute under the guise of legislative intent." However, it has long been the rule in California that "[t]he literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers. [Citations.]" (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281.) A statute's "[w]ords or clauses may be enlarged or restricted to effectuate the [Legislature's] intention or to harmonize them with other expressed provisions." (In re Haines (1925) 195 Cal. 605, 613 .) " '... [T]he primary rule of statutory construction, to which every other rule as to interpretation of particular terms must yield, is that the intention of the legislature must be ascertained if possible, and, when once ascertained, will be given effect, even though it may not be consistent with the strict letter of the statute....' " (Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 802, 151 P.2d 505.) Thus, "[i]n the analysis of statutes for the purpose of finding the legislative intent, regard is to be had not so much to the exact phraseology in which the intent has been expressed as to the general tenor and scope of the entire scheme embodied in the enactments. [Citation.]" (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 639, 122 P.2d 526.)

We think that Burge correctly determined that refusal to apply the presumption in administrative hearings would be contrary to the Legislature's purpose and intent. The stated need for the presumption arose from the absence in "[e]xisting law" of any "provision for the delay involved between the time a person is arrested for a DUI and when the chemical test for BAC is actually administered," of any "means to determine a person's BAC at the time the person is...