Manriquez v. Gourley

• Decision Date: 31 January 2003
• Docket Number: No. D039757.,D039757.
• Parties: Jaime Cordova MANRIQUEZ, Plaintiff and Respondent, v. Steven GOURLEY, as Director, etc., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

130 Cal.Rptr.2d 209

105 Cal.App.4th 1227

Jaime Cordova MANRIQUEZ, Plaintiff and Respondent, v. Steven GOURLEY, as Director, etc., Defendant and Appellant.

No. D039757.

Court of Appeal, Fourth District, Division 1.

January 31, 2003.

Bill Lockyer, Attorney General, Dennis W. Dawson and Kathryn M. Megli, Deputy Attorneys General, for Defendant and Appellant.

John T. Burke for Plaintiff and Respondent.

O'ROURKE, J.

The Department of Motor Vehicles (DMV) suspended Jaime Cordova Manriquez's driver's license for driving with 0.08 percent or more of alcohol in his blood. (Veh.Code, § 13353.2.) An administrative hearing officer upheld the suspension, determining the arresting officer complied with state regulations requiring a 15-minute period of continuous observation before administering a breath test (Cal.Code Regs., tit. 17, § 1219.3, hereafter regulation 1219.3).¹ The trial court granted Manriquez's ensuing petition for writ of mandate on the ground the observation criterion was not satisfied. On appeal, the DMV contends (1) the trial court erred by concluding the officer's observation of Manriquez did not comply with the regulation; and (2) even if the officer did not comply, Manriquez did not establish the violation resulted in an inaccurate test result.

We conclude the trial court based its ruling on an incorrect interpretation of the regulation setting forth the continuous observation requirement and, as a result, erred by concluding Manriquez's evidence was sufficient to rebut the presumption the arresting officer properly performed the breath test. We therefore reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At 12:01 a.m. on August 18, 2001, California Highway Patrol (CHP) Officer Timothy Fenton stopped Manriquez after noticing his Plymouth weaving in the number 3 lane of northbound Interstate 5. When he contacted Manriquez through the car's front passenger window, Officer Fenton observed indications of alcohol intoxication including bloodshot eyes and an odor of alcoholic beverage from the car's interior. Based on his administration of a series of field sobriety tests, the officer concluded Manriquez was under the influence of alcohol and at 12:17 a.m. arrested him for violation of Vehicle Code section 23152, subdivision (a).

Officer Fenton transported Manriquez to the San Diego County jail where Manriquez took a breath test that showed blood-alcohol level results of 0.11 at both 12:54 a.m. and 12:59 a.m. The officer issued an order suspending Manriquez's driver's license.

Manriquez sought an administrative hearing, at which the DMV offered, and the hearing officer admitted over hearsay objections, Officer Fenton's sworn statement in which he certified "under penalty of perjury under the laws of the State of California, that the above breath test sample results were obtained in the regular course of my duties" and he was "qualified to operate this equipment and that the test was administered pursuant to the requirements of Title 17 of the California Code of Regulations." The hearing officer also admitted, over the same objections, a precautionary checklist and results of the breath test, and Fenton's unsworn arrest/investigation report. At the hearing, Officer Fenton testified that about two minutes after he arrested Manriquez (approximately 12:19 a.m.), he placed him in the back of the patrol car, then called and waited for a tow truck. During that time, Officer Fenton remained in the patrol car, talking to Manriquez and doing paperwork. After Manriquez's car was released to the tow truck driver at 12:35 a.m., Officer Fenton drove Manriquez to the jail, where the breath test began at 12:51 a.m. According to Officer Fenton, before administering the test, he asked Manriquez if he had burped in the last 20 minutes; Manriquez responded he had not. The officer explained he conducted the required 15-minute observation period before the breath test while Manriquez was seated in his patrol car on the right side of the rear passenger seat; Officer Fenton talked to him and looked at him in his rearview mirror as he was driving to the jail. Officer Fenton testified Manriquez did not eat, drink, smoke or vomit while in the patrol car.

Manriquez presented the testimony of Ron Rockwell, a former deputy sheriff, who testified it was impossible for an officer driving a vehicle to continuously observe someone who was seated in the vehicle's back seat. Although Rockwell admitted he was not present at the scene and could not testify definitively whether Officer Fenton's observation satisfied state requirements, in Rockwell's opinion and experience, the right side of the back seat was the worst position for the 15-minute viewing period. Rockwell testified that if he had been responsible for complying with the 15-minute rule, he would have "k[ept] an eye" on Manriquez for an additional 15-minute period after his arrival at the jail. Manriquez did not testify.

The administrative hearing officer reimposed Manriquez's driver's license suspension. The hearing officer determined Officer Fenton had reasonable cause to believe Manriquez was driving a motor vehicle while under the influence of alcohol; that Manriquez was lawfully arrested for a violation of Vehicle Code section 23152; and he was driving a vehicle while he had 0.08 percent or more by weight of alcohol in his blood. In reaching these conclusions, the hearing officer noted the DMVs evidence contained a certification indicating the breath test was administered in compliance with title 17 of the California Code of Regulations, including the 15-minute observation rule. The hearing officer found Rockwell's testimony regarding the adequacy of Officer Fenton's 15-minute observation period was subjective, too speculative, and insufficient to rebut the statutory presumption of duty regularly performed. (Evid.Code, § 664 ["It is presumed that official duty has been regularly performed"].)

Manriquez petitioned the superior court for a writ of administrative mandate. He argued the hearing officer erred when she found Officer Fenton complied with the 15-minute observation requirement, and that the official duty presumption was rebutted by Officer Fenton's testimony that he was driving the vehicle, which established it was "absolutely impossible" for him to have complied with the requirement. Manriquez argued that because the department did not meet its burden to establish the reliability of the breath test, the court was required to issue the writ of mandate and set aside the DMVs order suspending his driving privileges.

The trial court found it was impossible for Officer Fenton to have continuously observed Manriquez in compliance with regulation 1219.3 and concluded, as a result, Manriquez had rebutted the presumption of duty regularly performed. It granted a writ overturning the administrative decision to suspend Manriquez's driving privilege. The DMV appeals.

DISCUSSION

I. Administrative Per Se Procedure and Standard of Appellate Review

We begin with a brief overview of the burdens of proof in an administrative DMV hearing, which "does not require the full panoply of the Evidence Code provisions used in criminal and civil trials." (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348, 107 Cal. Rptr.2d 909.) In this hearing, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. (Veh.Code, §§ 13557, subd. (b)(2)(C)(i), 13558, subd. (c)(2); Lake v. Reed (1997) 16 Cal.4th 448, 456, 463, 65 Cal.Rptr.2d 860, 940 P.2d 311; Petricka v. Department of Motor Vehicles, at p. 1348, 107 Cal.Rptr.2d 909, citing Santos v. Department of Motor Vehicles (1992) 5 Cal. App.4th 537, 549, 7 Cal.Rptr.2d 10.) The DMV may satisfy its burden via the presumption of Evidence Code section 664. (Petricka v. Department of Motor Vehicles, at p. 1348, 107 Cal.Rptr.2d 909.) "Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. [Citations.] ... The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence. [Citation.]" (Shannon v. Gourley (2002) 103 Cal. App.4th 60, 64-65 126 Cal.Rptr.2d 327.) With this presumption, the officer's sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test. (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 140-141, 7 Cal. Rptr.2d 818; Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1366, 240 Cal.Rptr. 281.)

Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. (Baker v. Gourley (2000) 81 Cal.App.4th 1167,1172, 97 Cal.Rptr .2d 451; cf. Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 739, 27 Cal.Rptr.2d 712; Davenport v. Department of Motor Vehicles, supra, 6 Cal. App.4th at p. 144, 7 Cal.Rptr.2d 818.) "The licensee must show, `through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed ....' [Citation.] Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation." (Baker v. Gourley, 81 Cal.App.4th at pp. 1172-1173, 97 Cal. Rptr .2d 451, quoting Davenport v. Department of Motor Vehicles, supra, 6 Cal. App.4th at p. 144, 7 Cal.Rptr .2d 818; Robertson v. Zolin (1...