Yordamlis v. Zolin

• Decision Date: 09 December 1992
• Docket Number: No. A056728,A056728
• Citation: 11 Cal.App.4th 655,14 Cal.Rptr.2d 225
• Parties: Steven William YORDAMLIS, Plaintiff and Respondent, v. Frank S. ZOLIN, as Director, etc., Defendant and Appellant.
• Court: California Court of Appeals

Page 225

14 Cal.Rptr.2d 225

11 Cal.App.4th 655

Steven William YORDAMLIS, Plaintiff and Respondent, v.Frank S. ZOLIN, as Director, etc., Defendant and Appellant.

No. A056728.

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

Dec. 9, 1992.

Rehearing Denied Jan. 5, 1993.

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., Henry G. Ullerich, Asst. Atty. Gen., Jose R. Guerrero, Supervising Deputy Atty. Gen., S. Michele Inan, Deputy Atty. Gen., Oakland, for defendant and appellant.

No appearance for plaintiff and respondent.

CHIN, Associate Justice.

INTRODUCTION

Frank S. Zolin, as Director of the Department of Motor Vehicles(DMV), appeals from a judgment granting a peremptory writ of mandate setting aside the suspension of respondentSteven William Yordamlis's driving privilege.The DMV contends that substantial evidence does not support the trial court's decision to overturn the suspension.We disagree.Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 1991, Officer Bhatnagar of the Fremont Police Department observed Yordamlis driving erratically.After pulling Yordamlis over, Bhatnagar observed that Yordamlis smelled of alcohol and had bloodshot/watery eyes, slurred speech, and an unsteady gait.

Bhatnagar arrested Yordamlis at approximately 7:15 p.m. for violation of Vehicle Code section 23152. ¹ Yordamlis elected to submit to a blood test.Based on his belief that the blood test would show a blood alcohol concentration (BAC) of more than 0.08 percent, Bhatnagar issued Yordamlis an administrative per se order of suspension pursuant to section 13353.2, which requires suspension of the driving privilege of anyone driving with a BAC of 0.08 percent or more.Subsequent analysis of the blood sample revealed a BAC of 0.17 percent.

At the ensuing administrative hearing that Yordamlis requested, the DMV submitted Bhatnagar's sworn statement, the administrative per se suspension order, the laboratory report of the blood test results, a supplemental sworn statement of another officer that also reported the blood test results, and Yordamlis's driving record.Yordamlis objected to admission of the sworn statements and the laboratory report, arguing in part that the DMV had failed to present admissible evidence of the trustworthiness and reliability of the test results and of a nexus between the time he was driving and the time he gave the blood sample.Yordamlis did not testify and presented no evidence.On this record, the administrative hearing officer upheld the suspension.

Pursuant to Code of Civil Procedure section 1094.5, Yordamlis petitioned for a writ of mandate.The superior court found that the DMV's "fundamental finding" regarding Yordamlis's "blood alcohol content at the time of driving" was "not supported by the evidence."It therefore granted the writ.The DMV now appeals.²

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.)"[U]nder the independent judgment rule, the trial court must weigh the evidence and make its own determination as to whether the administrative findings are sustained."(Petrucci v. Board of Medical Examiners(1975)45 Cal.App.3d 83, 87, 117 Cal.Rptr. 735.)The trial court has " ' "the ultimate power of decision...." ' "(Yakov v. Board of Medical Examiners(1968)68 Cal.2d 67, 72, 64 Cal.Rptr. 785, 435 P.2d 553.)

Accordingly, on appeal, we review the trial court's decision as we would review any other civil appeal.(Merrill v. Department of Motor Vehicles(1969)71 Cal.2d 907, 915, 80 Cal.Rptr. 89, 458 P.2d 33.)Thus, we"review the record to determine whether the trial court's findings are supported by substantial evidence.[Citations.]"(Bixby v. Pierno(1971)4 Cal.3d 130, 143, fn. 10, 93 Cal.Rptr. 234, 481 P.2d 242.)We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision.(Yakov v. Board of Medical Examiners, supra, 68 Cal.2d 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.)Where the evidence supports more than one inference, we may not substitute our deductions for the trial court's.(Yakov, supra, 68 Cal.2d at p. 72, 64 Cal.Rptr. 785, 435 P.2d 553.)We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.(Merrill, supra, 71 Cal.2d at p. 915, 80 Cal.Rptr. 89, 458 P.2d 33.)

These rules of appellate review apply even where the evidence in the administrative record is undisputed, if that evidence is "subject to conflicting inferences with respect to the crucial issue.In such a casethe trial court, if authorized ... to exercise its independent judgment on the evidence, may draw its own inferences from the evidence in the record, and if the inferences so drawn are supported by substantial evidence, they are binding on the reviewing court.[Citations.]"(Interstate Brands v. Unemployment Ins. Appeals Bd.(1980)26 Cal.3d 770, 774, fn. 2, 163 Cal.Rptr. 619, 608 P.2d 707.)³

Having reviewed the record, we cannot say that the trial court erred as a matter of law in finding the DMV's evidence insufficient to establish that Yordamlis's BAC at the time of driving was 0.08 percent or more.The DMV submitted evidence that Yordamlis was driving erratically, smelled of alcohol, and had bloodshot/watery eyes, slurred speech, and an unsteady gait.It also submitted the laboratory report showing that a blood sample the laboratory received three days after Yordamlis's arrest had a BAC of 0.17 percent.However, the DMV submitted no evidence to establish when Yordamlis gave the tested blood sample.On this record, the trial court reasonably could have determined that Yordamlis's BAC at the time of driving was lower.Therefore, we must affirm its decision.⁴

We reject the DMV's contention that, under sections 23152, subdivision (b), and23153, subdivision (b), we must presume that Yordamlis's BAC "was in excess of .08 percent while driving [because] a chemical test taken within three hours indicated a level of .08 percent or more."By their express terms, those presumptions apply only if the chemical test was performed "within three hours after the driving."( §§ 23152, subd. (b),23153, subd. (b).)As we have already stated, there is no evidence that Yordamlis gave the tested blood sample within three hours of driving.Therefore, the presumptions do not apply.⁵

We also reject the DMV's attempt to rely on the presumption that an "official duty has been regularly performed ..."(Evid.Code, § 664) to establish that Yordamlis gave the blood sample within three hours of driving.The DMV's argument depends on section 23157, subdivision (a), under which a driver "is deemed" to have given consent to a chemical test that is "incidental to a lawful arrest...."In Davenport v. Department of Motor Vehicles(1992)6 Cal.App.4th 133, 142, footnote 4, 7 Cal.Rptr.2d 818, the court held that this section imposes on an officer a duty "to administer the test or have it administered by another."However, we find nothing in the language of this section that "imposes any particular time requirement that can be assumed to have been met pursuant to the presumption codified by Evidence Code section 664."(Santos v. Department of Motor Vehicles, supra, 5 Cal.App.4th at p. 550, fn. 10, 7 Cal.Rptr.2d 10[rejecting similar argument premised upon regulation requiring drawing of blood sample " 'as soon as feasible' "].)⁶

Nor do we agree with the DMV that, even if Yordamlis gave the blood sample more than three hours after driving, we must reverse because "the Department hearing referee would have been entitled to rely upon the observation of California's appellate courts that 'the greater the elapse of time the greater the benefit to the defendant, as the alcohol in his system becomes dissipated by the normal bodily processes.'[Citations.]"Appellate courts have also observed that a person's BAC rises for a period of time after drinking, and that a subsequently administered blood test therefore may reflect a BAC higher than the BAC at the time of driving.⁷(Santos v. Department of Motor Vehicles, supra, 5 Cal.App.4th at p. 548, 7 Cal.Rptr.2d 10.)The DMV submitted no evidence to establish that a 0.17 percent BAC reading from a blood sample taken more than three hours after alcohol consumption is necessarily inconsistent with a BAC of less than 0.08 percent at the time of driving.(Id., at p. 549, fn. 8, 7 Cal.Rptr.2d 10.)Therefore, we cannot say that the trial court's determination is in error.

Finally, we do not agree that the evidence regarding the manner in which Yordamlis drove, his behavior, or his physical condition requires a different result.We recognize that some courts have stated that such facts are both relevant and admissible as circumstantial evidence that a driver's BAC was above the legal limit at the time of driving.(Burg v. Municipal Court(1983)35 Cal.3d 257, 266, fn. 10, 198 Cal.Rptr. 145, 673 P.2d 732;McKinney v. Department of Motor Vehicles(1992)5 Cal.App.4th 519, 526, fn. 6, 7 Cal.Rptr.2d 18;People v. Randolph(1989)213 Cal.App.3d Supp. 1, 6-7, 262 Cal.Rptr. 378.)However, nothing in the record establishes that Yordamlis's conduct is necessarily inconsistent with a BAC of less than 0.08 percent.On the contrary, the Legislature based its decision in 1989 to lower the legal limit from 0.10 percent to 0.08 percent on "medical and driving demonstration studies [that] revealed that most people are impaired at a BAC of 0.05 percent or greater."(Cal. Highway Patrol, Enrolled Bill Rep. for Sen. BillNo. 408 (1989-1990 Reg. Sess.)Sept. 1989, emphasis added.)⁸Thus,...