Petricka v. Dept. of Motor Vehicles
| Decision Date | 18 June 2001 |
| Citation | 107 Cal.Rptr.2d 909,89 Cal.App.4th 1341 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 1 Dist. 2001) JAMES A. PETRICKA, Petitioner and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Respondent and Appellant. A090302 FIRST APPELLATE DISTRICT, DIVISION ONE Filed |
Trial Judge: The Honorable William A. McKinstry
Attorneys: Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, David Chaney, Senior Assistant Attorney General, Damon M. Connolly, Supervising Deputy Attorney General, Miguel A. Neri, Supervising Deputy Attorney General, Lyn Harlan, Deputy Attorney General (Attorneys for Appellant/Respondent - Dept. of Motor Vehicles)
Allan Gorelick, Thomas W. McDonnell (Attorneys for Respondent/Petitioner - James A. Petricka)
CERTIFIED FOR PUBLICATION
Respondent James Petricka was arrested for driving under the influence of alcohol (Veh. Code, 23152). A chemical test of his blood revealed a blood alcohol level of .15 percent. Appellant Department of Motor Vehicles (DMV) suspended Petricka's driver's license after an administrative hearing. Petricka sought judicial review of the suspension by a petition for writ of mandate, in which he argued that the DMV had failed to prove that his blood sample had been properly collected according to applicable law. The DMV argued that the presumption of Evidence Code section 664, that an "official duty has been regularly performed," combined with other evidence provided sufficient evidence that Petricka's blood was properly collected. The superior court rejected that argument and granted the writ. The DMV argues that the trial court erred. We agree and reverse because the evidence supports the conclusion that the officer carried out his official duty to comply with the applicable Vehicle Code sections which required him to obtain an accurate blood alcohol result for evidentiary use at the hearing.
The facts are taken from the record of the administrative hearing.
On December 19, 1998, at 3:50 a.m., California Highway Patrol Officer Rauch saw Petricka speeding and driving on the right shoulder of the road. Rauch stopped Petricka and noticed that his speech was slurred, his gait was unsteady, and his eyes were watery and bloodshot. Petricka smelled of alcohol and failed a field sobriety test.
Just after 4 a.m., Officer Rauch arrested Petricka for driving under the influence of alcohol. Rauch also served Petricka with a DMV Order of Suspension of his driver's license pursuant to Vehicle Code section 13352.2. The suspension order was based on Rauch's reasonable belief that Petricka had been driving with a blood alcohol level of .08 percent or higher, the statutory definition of intoxication.
Petricka submitted to a blood test; apparently blood was drawn at 4:50 a.m.1 A toxicology laboratory conducted a chemical test of Petricka's blood and determined that his blood alcohol level was .15 percent.
Pursuant to Vehicle Code section 13558, subdivision (a), Petricka requested an administrative hearing to review the order of license suspension. Such a hearing is limited to three issues: (1) whether the arresting officer had reasonable cause to believe the driver was driving under the influence of alcohol; (2) whether the driver was lawfully arrested; and (3) whether the driver had a blood alcohol level of .08 percent or more. (Veh. Code, 13558, subd. (c)(2); see 13557, subd. (b)(2).) Petricka, through counsel, stipulated to the first two issues, and the hearing proceeded only on the third.
The DMV introduced four documents as exhibits. The two which concern us are Exhibit 1, Rauch's sworn Officer Statement (Form DS 367) setting forth the circumstances of the traffic stop and arrest, and Exhibit 2, the lab report of the blood test results. The lab report, from the Institute of Forensic Sciences in Oakland, indicates that a sample of Petricka's blood was submitted by Officer Rauch and that a chemical test showed a .15 percent blood alcohol level. Alcohol Analyst Catalina F. Sundita signed the report. Above Sundita's signature is a certification, under penalty of perjury, that Sundita performed the blood analysis in the regular course of her duties, that she is qualified to perform the analysis under Title 17 of the California Code of Regulations (Title 17), and that her equipment was in proper working order at the time of the analysis.
Petricka's counsel objected to the lab report and to that portion of the Officer Statement that indicated that a blood test was performed. The basis of the objection was the failure of the DMV to show that the blood sample was taken by a person authorized to do so by Vehicle Code section 23158, and was taken with the proper procedures to guard against contamination in the manner prescribed by section 1219.1 of Title 17.
Vehicle Code section 23158, subdivision (a), provides that only certain listed medical, paramedic, or laboratory personnel may withdraw blood for the chemical testing of a suspected drunk driver. Section 1219 of Title 17 provides that Section 1219.1 provides for specific blood collection procedures, including the requirements that blood be taken "by venipuncture from living individuals" (subd. (a)); that alcohol not be used to clean the skin at the site of the venipuncture (subd. (c)); that no reusable equipment be cleaned with alcohol (subd. (d)); that the blood be mixed with an anticoagulant and a preservative (subd. (e)(2)); that the blood be placed in a clean, dry container closed by an inert stopper (subd. (e)); and that such a container must not have been cleaned with alcohol (subd. (e)(1)).
Counsel argued that by failing to introduce evidence of proper blood collection procedures, the DMV had failed to meet its burden of proof.2 Counsel presented no evidence. Petricka was present at the hearing but did not testify.
The hearing officer made detailed findings of fact regarding Petricka's arrest and objective signs of intoxication, and found that he was lawfully arrested based on reasonable cause. In Finding of Fact No. 5, the hearing officer found that Petricka The hearing officer found that the DMV's prima facie case against Petricka "remains uncontroverted" because "[c]ounsel did not present evidence or testimony to rebut" the only contested issue, i.e., whether Petricka was driving with a blood alcohol of .08 percent or more. The hearing officer concluded that Petricka was in fact driving under the influence of alcohol, and issued an order upholding his license suspension.
Petricka challenged the suspension order by a petition for writ of mandate. The petition alleged that the DMV had failed to establish evidence that the blood sample was properly collected, handled and preserved by a qualified person, as required by law. Petricka argued that the presumption of Evidence Code section 664 did not establish that the proper procedures were followed, by a person with proper qualifications, when his blood was drawn.
The DMV countered that the Evidence Code presumption established that the blood was properly collected by a qualified person, and that it was incumbent upon Petricka to overcome the presumption. The DMV argued that Petricka had not succeeded in overcoming the presumption because he had introduced no evidence disputing the validity of the procedures used to collect his blood, and made no showing that they violated Title 17.
The trial court granted the mandate petition and directed the DMV to set aside the order suspending Petricka's license. The court ruled that the DMV hearing officer's Finding of Fact No. 5 was "unsupported by adequate evidence." The trial court apparently concluded that Petricka's objections to the Officer Statement and lab report were sufficient to overcome the Evidence Code presumption and require the DMV to introduce affirmative evidence of proper blood collection procedures. The premise of the trial court's ruling seems to be that, in the absence of such evidence, the DMV had failed to show a properly collected blood sample, guarded against contamination by a qualified person, and thus had failed to establish the reliability of the chemical test of Petricka's blood.
The DMV contends that the blood collection procedures are presumed proper under Evidence Code section 664, and that it was incumbent upon Petricka to show the procedures were not properly performed. We agree for the following reasons.
We begin by noting the informal nature of an administrative DMV hearing which does not require the full panoply of the Evidence Code provisions used in criminal and civil trials. Such hearings are governed by the Administrative Procedure Act. (Gov. Code, 11501, subd. (b); Veh. Code, 14112, subd. (a).) The DMV bears the burden of proof that a driver was operating a vehicle with a blood alcohol of .08 percent or higher. (Santos, supra, 5 Cal.App.4th at p. 549.) But where, as here, the driver submits to a blood test, that burden is typically satisfied by two documents: the sworn statement of the arresting officer and a forensic lab report documenting the results of a chemical test of the driver's blood. (See Lake, supra, 16 Cal.4th at p. 451.)
The forensic lab report need not be sworn, because of the "relaxation of evidentiary rules applicable in administrative hearings." (Lake, supra, 16 Cal.4th at p. 467.) Such a report, prepared by a properly licensed lab, "is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs" and is thus admissible under...
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Petricka v. Department of Motor
.... 107 Cal.Rptr.2d 909. 89 Cal.App.4th 1341. James A. PETRICKA, Plaintiff and Respondent,. v. DEPARTMENT OF MOTOR VEHICLES", Defendant and Appellant. No. A090302. Court of Appeal, First District, Division 1. June 18, 2001. [107 Cal.Rptr.2d 910]. [89 Cal.App.4th 1344]. \xC2"...Neri, Supervising Deputy Attorney General, Lyn Harlan, Deputy Attorney General, Attorneys for Appellant/Defendant—Dept. of Motor Vehicles. Allan Gorelick, Thomas W. McDonnell, Attorneys for Respondent/Plaintiff— James A. Petricka. ......