Burge v. Department of Motor Vehicles, A053672

• Citation: 7 Cal.Rptr.2d 5,5 Cal.App.4th 384
• Decision Date: 09 April 1992
• Docket Number: No. A053672,A053672
• Court: California Court of Appeals
• Parties: Jack Edward BURGE, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants.

Page 5

7 Cal.Rptr.2d 5

5 Cal.App.4th 384

Jack Edward BURGE, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants.

No. A053672.

Court of Appeal, First District, Division 1, California.

April 9, 1992.

As Modified on Denial of Rehearing

May 5, 1992.

Review Denied June 25, 1992.

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

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., N. Eugene Hill, Sr. Asst. Atty. Gen., Henry G. Ullerich, Asst. Atty. Gen., Jose R. Guerrero, Supv. Deputy Atty. Gen., Kerry Weisel, Deputy Atty. Gen., Oakland, for defendants and appellants.

STEIN, Associate Justice.

The Department of Motor Vehicles (DMV) issued an order suspending the driver's license of Jack Edward Burge on the grounds that Burge had driven with a blood-alcohol concentration greater than .08 percent. Burge challenged that order at a DMV administrative hearing. The hearing officer determined that the evidence supported the order and upheld the suspension. Burge thereafter petitioned the superior court for a writ of mandate directing the DMV to set aside its order. The writ was granted, and the DMV appeals. Finding that the trial court's decision was not supported by substantial evidence (see Coombs v. Pierce (1991) 1 Cal.App.4th 568, 576, 2 Cal.Rptr.2d 249), we will reverse.

This appeal concerns the type of evidence which may be relied upon by a hearing officer considering if a DMV's order of suspension was properly issued. At issue here is the hearsay statement of the police officer who arrested Burge and a printout record of the intoxilyzer test administered to him. Questions relating to the use of such evidence at DMV hearings have been the subject of recent cases, and certain principles have been developed.

First, the DMV has the evidentiary burden of justifying its order of suspension. (Coombs v. Pierce, supra, 1 Cal.App.4th at pp. 580-581, 2 Cal.Rptr.2d 249, citing Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536, 189 Cal.Rptr. 512, 658 P.2d 1313.) Second, the hearsay statement of a public employee, such as the statement of a police officer, or the tester's written report of the results of a blood-alcohol test, is admissible at the hearing, and is sufficient in and of itself to support a finding, if it meets the criteria of a public employee business record (Evid.Code, § 1280). (Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 813-815, 3 Cal.Rptr.2d 478.) This principle arises from the provisions of Government Code section 11513 providing that hearsay evidence may provide the sole supporting evidence for a finding, if such evidence would be admissible over objection in a civil action. A police officer's hearsay statement, submitted in accordance with Vehicle Code section 13353 (sometimes called a DL 367 statement as it is executed on DMV Form DL 367) ordinarily meets the criteria for the public employee business record exception to the hearsay rule: (1) that the statement be made by and within the scope of duty of a public employee at or near the time of the act, condition or event, and (2) that the sources of information and method and time of preparation are such as to indicate the statement's trustworthiness. (Imachi v. Department of Motor Vehicles, supra, 2 Cal.App.4th at pp. 814-815, 3 Cal.Rptr.2d 478, citing Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1374-1376, 240 Cal.Rptr. 281.) Such a statement, therefore, would be admissible in a civil action and accordingly is sufficient evidence to support a finding. Similarly, the written report of the results of a blood-alcohol test, prepared on behalf of law enforcement agencies by a licensed laboratory, ordinarily meets the criteria for a public employee business record and provides sufficient support for a finding that a licensee's blood-alcohol concentration was as stated in the report. (Imachi, supra, 2 Cal.App. 4th at pp. 816-817, 3 Cal.Rptr.2d 478.) Public employee business records, however, are admissible in civil actions only to the extent that they report the employee's firsthand knowledge. These statements, therefore, may form the sole basis for suspension of a driver's license only if made from firsthand observation. (Id. at p. 817, 3 Cal.Rptr.2d 478.)

In addition, tests performed by authorized laboratories are presumptively valid; i.e., the DMV need not present foundational evidence that the test apparatus was in working order, the test was properly administered and the operator competent and qualified. Once a report of such a test is admitted, the burden passes to the party challenging it to show that the test was in some way flawed. (Imachi v. Department of Motor Vehicles, supra, 2 Cal.App.4th at pp. 816-817, 3 Cal.Rptr.2d 478.) ¹ Finally, the principles set forth in People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 and Frye v. United States (D.C.Cir.1923) 293 F. 1013, requiring foundational evidence as to the general acceptance of a new scientific method of proof, are inapplicable to well-accepted methods of testing blood-alcohol. ( Imachi, supra, 2 Cal.App.4th at p. 817, fn. 6, 3 Cal.Rptr.2d 478.)

Under these principles, the superior court erred in finding that the evidence did not support the order of suspension. The only evidence submitted at the DMV hearing, by either party, was documentary evidence submitted by the DMV. This evidence included the DL 367 statement of the arresting officer, M. Boyle. That evidence, admissible in a civil action as a public employee business record, and uncontradicted by Burge, established that the officer had observed Burge tailgating another vehicle, that Burge exhibited bloodshot and watery eyes, an odor of alcohol and slurred speech, and that his performance on the field sobriety tests was poor.

The DMV also introduced an intoxilyzer test result reporting that Burge's blood-alcohol concentration had been tested at .12. The test record was signed by Officer Boyle as the operator, and was printed "Alameda County Sheriff's Department Criminalistics Laboratory." This record, accordingly, is exactly the type of report found admissible by the court in Imachi. ² It meets the criteria of a public employee business record, it is subscribed by a person having firsthand knowledge of the matters stated therein and, absent challenge by Burge, it was unnecessary for the DMV to lay a foundation for its admission. ³

It follows that the DMV's evidence established the presumption that Burge's blood-alcohol concentration exceeded permissible limits. As Burge introduced no evidence contradicting the presumption that the tests had been properly performed, the hearing officer, and the superior court, had to accept that presumption as true.

Burge argues that the evidence is insufficient because, as it does not include a statement of the time of the test, it does not establish that his blood-alcohol concentration exceeded .08 percent at the time that he was driving. The argument is without merit. Officer Boyle's statement was that Burge had been arrested on December 7, 1990, at 11:01 p.m. The intoxilyzer test record indicates that the test was given by the same officer on December 7, 1990. The record also reports that Burge was first observed at 11:01 and that he was observed for 15 minutes before the test was given. It follows that the test was given within 45 minutes of Burge's arrest (i.e., a test given more than our hour after Burge was first observed would have been given on December 8). Accordingly, there is evidence of the time of the test. In addition, there was evidence that Burge exhibited all the indicia of significant intoxication at the time that he was...