Solisdecastelli v. Superior Court CA2/2 ( 2023 )

Filed 2/8/23 Solisdecastelli v. Superior Court CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JUAN MANUEL B317021
SOLISDECASTELLI,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 20STCP03438)
v.
SUPERIOR COURT OF LOS
ANGELES COUNTY,
Defendant and
Respondent,
STEVE GORDON, as Director,
etc.,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Markelz Law Group and Christopher Markelz for Plaintiff
and Appellant.
No appearance for Defendant and Respondent.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant
Attorney General, Nancy G. James and Lorinda D. Franco,
Deputy Attorneys General, for Real Party in Interest and
Respondent.
******
Juan Manuel Solisdecastelli (appellant) appeals from a
trial court judgment denying his petition for writ of mandate
challenging the Department of Motor Vehicle’s (DMV) suspension
of his noncommercial driver’s license and disqualification of his
commercial driver’s license.1 Following a DMV administrative
per se (APS) hearing, appellant filed a writ petition in the
superior court. Appellant appeals from the trial court’s denial of
the petition, arguing that the DMV violated his due process
rights by carrying out the APS hearing in a proceeding deemed
unconstitutional in California DUI Lawyers Assn. v. Department
of Motor Vehicles (2022) 77 Cal.App.5th 517 (California DUI
Lawyers) and that substantial evidence did not support the trial
court’s findings. We find no reversible error and affirm the
judgment.
FACTUAL BACKGROUND
At approximately 12:45 a.m. on December 21, 2019, Los
Angeles County Sheriff’s Deputy Treadway observed a Toyota
1 Respondent Steven Gordon is the director of the DMV and
was named in this lawsuit in his official capacity.
2
driving directly in front of him on the 101 freeway. The Toyota
swerved into the lane to its left, then swerved into the lane to its
right, before swerving back into its original travel lane. Deputy
Treadway conducted a traffic stop of the vehicle for violation of
Vehicle Code section 21658, which requires that a vehicle be
driven in a single lane until movement from the lane can safely
be made.
Appellant was the driver and sole occupant of the vehicle.
Deputy Treadwell smelled a strong odor of alcohol on appellant’s
breath. Deputy Treadway observed appellant’s slurred speech
and bloodshot, watery eyes. Appellant displayed unsteady
coordination and a swaying movement upon exiting the vehicle.
Appellant told Deputy Treadway that he drank two 20-ounce
beers between 8:00 p.m. and 9:00 p.m.
Deputy Treadway conducted a series of field sobriety tests
on which appellant performed poorly. Appellant’s eyes jerked
during the horizontal gaze nystagmus test. During the walk and
turn test, appellant stopped walking after taking just three steps
during the first part of the test, then could not keep his balance.
During the one leg stand test, appellant swayed, hopped up and
down and put down his left foot three times. During the finger to
nose tests, appellant touched his upper lip instead of his nose
four out of six times.
Deputy Treadway administered two preliminary alcohol
screening (PAS) tests. He used a Lifeloc FC20 Breath Alcohol
Tester. The first screening took place at 1:04 a.m. and recorded a
result of 0.1631 percent blood alcohol concentration (BAC). The
second test, taken at 1:06 a.m., recorded a result of 0.1591
percent BAC.
3
Deputy Treadway concluded that appellant was driving
under the influence of alcohol and arrested him at approximately
1:06 a.m.
For the evidentiary chemical breath test, a DataMaster
DMT Intoximeter No. 300110 was used. Deputy Treadway
administered the tests. Appellant’s two breath tests taken at
1:43 a.m. and 1:46 a.m. each yielded results of 0.19 percent BAC.
PROCEDURAL HISTORY
APS Hearing
The APS hearing was on June 9, 2020, July 16, 2020,
August 24, 2020, and September 30, 2020.2 The hearing officer
began the hearing setting forth the issues to be determined at the
hearing. The issues were: “Did the peace officer have reasonable
cause to believe the [appellant] was driving a motor vehicle in
violation of Section 23152 or Section 23153 of the California
Vehicle Code; was the [appellant] lawfully arrested; was the
[appellant] driving a motor vehicle with 0.08 percent BAC or
more by weight of alcohol?” Admitted into evidence was Deputy
Treadway’s written sworn statement, the arrest report and
appellant’s driving record. The hearing officer also admitted into
evidence three exhibits offered by appellant: a Federal Register
2 “‘“Under the administrative per se law, the DMV must
immediately suspend the driver’s license of a person who is
driving with .08 percent or more, by weight, of alcohol in his or
her blood. ([Veh. Code,] § 13353.2, subd. (a)(1).) The procedure is
called ‘administrative per se’ because it does not impose criminal
penalties, but simply suspends a person’s driver’s license as an
administrative matter upon a showing the person was arrested
for driving with a certain blood-alcohol concentration . . . .”’”
(California DUI Lawyers, supra, 77 Cal.App.5th at p. 525.)
4
notice pertaining to performance criteria and methods for testing
evidential breath test devices that measure alcohol content; an
article authored by appellant’s expert Okorie Okorocha; and
Okorocha’s May 19, 2020 declaration in which he concluded
appellant’s BAC was approximately 0.05 percent at the time of
the PAS test and 0.06 percent at the time of the evidential test
since appellant was in the absorption phase and his blood alcohol
level was still rising.
Appellant was allowed to present his case.
Okorocha testimony
Appellant called his expert Okorocha, a forensic
toxicologist, who opined that appellant was driving with a BAC
below 0.08 percent and that the chemical breath test results were
inaccurate. Okorocha testified:
“So, he was pulled over at 12:45 a.m. on
December 21st, 2019. And he was later given a
preliminary breath test, preliminary alcohol
screening test, at 1:04 and 1:06. So that’s—there’s a
20-minute gap there that he had to absorb.
“Also, I believe he indicated that he had been
drinking up until, I believe, it was 40 minutes before
he was pulled over. But either way, we note that the
PAS results that he had was a 1.5—0.15 and later,
about 40 minutes later, he had a BAC of 0.19. So this
is a text book definition of rising blood alcohol.”
Okorocha explained that the rising blood alcohol was
significant because it meant appellant was in the absorption
phase, during which breathalyzers read falsely high by two to
three times. Okorocha opined during this phase, a 0.03 reads as
a 0.09 and a 0.05 reads as a 0.15 and a 0.06 reads as a 0.18.
Okorocha relied on several resources, including scientific journal
articles, which explain that “you have to wait two hours after the
5
person is finished drinking to do a breath test to get an accurate
result.” Okorocha stated that it was widely accepted that “the
breath test reads falsely high during the absorption phase.”
Okorocha added that since appellant’s PAS test, conducted 40
minutes before his evidential test, was significantly lower,
appellant had to be in the absorptive phase.
The hearing officer asked Okorocha to identify the evidence
that reflected appellant had stopped drinking 40 minutes before
he was stopped. Okorocha first said it was the police report, but
then was unable to locate the evidence. When asked if his
opinion would change based on the information in the police
report that appellant stopped drinking at 9:00 p.m., Okorocha
stated:
“[I]f that’s true, so be it, but it would have zero effect
on my opinion. Because we know conclusively that
he was absorbing and rising, and that’s the only issue
in this case. Even if he said he never drank in his
life, or he said he drank a gallon of whiskey two
minutes ago, it wouldn’t matter. His BAC was going
up regardless.”
Okorocha testified that there was not an average
absorption rate, and that it can take up to five hours for someone
to fully absorb.
Neither Deputy Treadway’s sworn statement nor the
sheriff’s report reflected that appellant had stopped drinking 40
minutes before he was pulled over.
Treadway testimony
Appellant called and examined Deputy Treadway as a
witness. Deputy Treadway was trained in DUI investigations
and field sobriety testing. At 12:45 a.m. on December 21, 2019,
Deputy Treadway stopped appellant after observing appellant
failing to maintain his lane of travel. After pulling over
6
appellant, Deputy Treadway observed appellant’s bloodshot and
watery eyes and signs of alcohol impairment. Deputy Treadway
administered five field sobriety tests. He determined that
appellant was impaired based on the totality of the
circumstances, testifying that the clues were consistent in
suggesting appellant was impaired.
Apodaca testimony
Juan Apodaca, a senior criminologist for the Forensic
Alcohol Section of the Los Angeles County Sheriff’s Department,
opined that appellant’s BAC was higher than 0.08 percent at the
time appellant was driving. Apodaca explained that he used the
process of retrograde extrapolation, which is a calculation to
determine what a person’s BAC could have been at an earlier
time based on an evidentiary blood or breath test. Apodaca
calculated that appellant’s BAC at the time of driving was
anywhere between 0.19 percent and 0.21 percent, but likely
closer to 0.21 percent. Apodaca’s calculation was based on
appellant’s time of drinking, time of driving, timing and results of
the evidentiary chemical breath tests, and appellant’s testimony
that he drank two beers. Apodaca thought it impossible that
appellant’s BAC was lower than 0.19 percent at the time of
driving, since his last drink was at 9:00 p.m., as by the time he
was driving at 12:45 a.m., he was already eliminating the alcohol
or plateauing.
When asked if the variations from the PAS tests taken
before the evidentiary breath tests changed his opinion, Apodaca
said they did not. He explained that for variations to be
significant, the results must come from the same instrument.
Apodaca explained that there could be variation between
different instruments, and thus it was not troubling to him that
the two machines measured appellant’s BAC differently.
7
Part of Apodaca’s duties of employment as a criminologist
was to maintain the working order of the DataMaster DMT
device. He reviewed the data record in appellant’s case, the PAS
record, the maintenance record and the instrument usage record,
and determined that the breathalyzer used to conduct appellant’s
chemical breath tests was calibrated and properly functioning.
APS hearing decision
The hearing officer issued a “Notification of Findings and
Decision” on October 16, 2020, finding that Deputy Treadway
carried out a lawful arrest based on the totality of circumstances
including appellant’s swerving out of his lane of travel, bloodshot
and watery eyes, unsteady gaze, poor performance on field
sobriety tests, the odor of alcohol, appellant’s admission to having
consumed alcohol, and the PAS test results.
The hearing officer found that the testimony of appellant’s
expert, Okorocha, was not credible, noting that Okorocha
testified that appellant’s BAC was rising based in part on the fact
that appellant had been drinking up until 40 minutes before he
was pulled over, without support for that information being
identified. Thus, Okorocha’s opinion on appellant’s drinking
pattern was not based on the evidence. When asked whether
appellant’s statement that he stopped drinking at 9:00 p.m.
would have had an effect on his opinion, Okorocha observed, “it
would have zero effect on my opinion. Because we know
conclusively that he was absorbing and rising . . . .” The hearing
officer declined to credit this opinion.
The hearing officer also found that Okorocha’s testimony
was inconsistent, noting he testified on direct examination that
alcohol can be fully absorbed two hours after a person stops
drinking, while on cross-examination he testified it can take up to
five hours to fully absorb the alcohol.
8
The hearing officer credited the rebuttal testimony of
Apodaca, who used a retrograde extrapolation calculation to
estimate that appellant’s BAC at the time of driving was between
0.19 percent and 0.21 percent. The hearing officer concluded
there was sufficient evidence that appellant’s BAC was 0.08
percent or higher at the time of driving.
On October 16, 2020, the DMV re-imposed the suspension
of appellant’s driving privileges effective October 25, 2020,
through February 24, 2021. Based on the same facts and
decision, the DMV issued an order of disqualification, which
disqualified appellant from being a licensed commercial driver
effective October 26, 2020, through October 25, 2021.
Writ proceedings
On October 21, 2020, appellant filed a petition for writ of
mandate seeking to set aside the DMV’s suspension and
disqualification orders. The matter was heard on October 1,
2021, and taken under submission.
On October 4, 2021, the trial court issued a written ruling
denying appellant’s petition. The court incorporated by reference
its 10-page order denying petition for peremptory writ of
mandamus, which set forth the standard requiring the court to
“exercise its independent judgment to determine whether the
weight of the evidence supports the administrative decision.”
(Citing Morgenstern v. Department of Motor Vehicles (2003) 111
Cal.App.4th 366, 372 (Morgenstern).) The court noted that it had
the “power and responsibility” to weigh the evidence and make its
own credibility determinations. The court quoted Fukuda v. City
of Angels (1999) 20 Cal.4th 805, 817 (Fukuda), for the proposition
that “[i]n exercising its independent judgment, a trial court must
afford a strong presumption of correctness concerning the
administrative findings, and the party challenging the
9
administrative decision bears the burden of convincing the court
that the administrative findings are contrary to the weight of the
evidence.”
The court noted that Vehicle Code section 23152,
subdivision (b) provides a “rebuttable presumption” that a person
had 0.08 percent or more, by weight, of alcohol in his or her blood
at the time of driving “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.” The trial court found that Okorocha’s testimony
rebutted the presumption found in Vehicle Code section 23152,
subdivision (b). Thus, the DMV was required to prove appellant’s
BAC at the time of driving without the benefit of the
presumption.
The court found that Okorocha’s testimony was entitled to
little, if any, weight, describing it as “incomplete and therefore
unpersuasive.” The court explained that Okorocha’s testimony
“appear[ed] to be based upon an incorrect understanding of the
underlying facts.” For example, Okorocha’s opinion of appellant’s
rising BAC does not explain the reduction in BAC from the first
PAS test to the second PAS test, although the tests were only two
minutes apart. These tests did not show a rising BAC, but the
opposite. More importantly, the court noted that Okorocha based
his opinion on his mistaken understanding that appellant had
stopped drinking only 40 minutes before being stopped by Deputy
Treadway. However, the only evidence concerning the time
appellant stopped drinking was from appellant himself, who said
that he stopped drinking three hours and 45 minutes prior to
being stopped by Deputy Treadway and more than four hours
before his PAS tests. The court found Okorocha’s response to this
discrepancy insufficient and ultimately undermined the value of
10
his opinion. The court also found Okorocha’s response to be “at
odds with his testimony accurate testing requires a two-hour
delay between drinking and testing.”
The court then explained that based on all the evidence in
the record, the DMV’s decision was supported by the weight of
the evidence. The court pointed to Deputy Treadway’s
observations of appellant’s driving behavior and objective signs of
intoxication; appellant’s admission to drinking two 20-ounce
beers before driving; his poor performance on the field sobriety
tests and the fact that all four breath tests taken by appellant
showed a BAC of greater than 0.08 percent.
The court also found Apodaca’s testimony to be credible,
placing appellant’s BAC between 0.19 percent and 0.21 percent at
the time he was driving.
Notice of appeal
On December 9, 2021, appellant filed a notice of appeal
from the order denying his petition for writ of mandate.
DISCUSSION
I. Applicable law and standard of review
The trial court was required to exercise its independent
judgment to determine whether the weight of the evidence
supported the DMV’s decision. (Morgenstern, supra, 111
Cal.App.4th at p. 372.) In exercising its independent judgment,
the trial court correctly afforded “a strong presumption of
correctness concerning the administrative findings.” (Fukuda,
supra, 20 Cal.4th at p. 817.)3
3 We reject appellant’s argument that the trial court erred in
applying the presumption of correctness concerning the
administrative findings. The cases cited by appellant do not so
11
On appeal from a trial court’s decision on a petition for writ
of mandate, we are bound to uphold the decision if it is supported
by substantial evidence. (Coffey, supra, 60 Cal.4th at p. 1217.)
Under this standard, we “resolve all conflicts in favor of the
DMV, as the party prevailing in the superior court, and give it
the benefit of all reasonable inferences in support of the
judgment.” (Hildebrand v. Department of Motor Vehicles (2007)
152 Cal.App.4th 1562, 1568.) “‘“‘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.’”’”
(Ibid.) However, we exercise de novo review of legal issues.
(Morgenstern, supra, 111 Cal.App.4th at p. 372.)
II. Effect of California DUI Lawyers
On April 15, 2022, Division Four of this court rendered its
opinion in California DUI Lawyers. The California DUI Lawyers
court held that the DMV’s APS hearing structure violates the
California and federal due process rights of drivers by combining
the advocacy and adjudicatory roles into a single DMV employee.
(California DUI Lawyers, supra, 77 Cal.App.5th at p. 531.) The
California DUI Lawyers decision explained that at a DMV APS
hearing, such as the one in which appellant participated, “the
DMV mandates that the hearing officers simultaneously act as
hold. (See Coffey v. Shiomoto (2015) 60 Cal.4th 1198 (Coffey);
Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d
392; Lake v. Reed (1997) 16 Cal.4th 448.) Fukuda made it clear
that “a trial court must afford a strong presumption of
correctness concerning the administrative findings, and the party
challenging the administrative decision bears the burden of
convincing the court that the administrative findings are
contrary to the weight of the evidence.” (Fukuda, supra, 20
Cal.4th at p. 817.)
12
advocates for the DMV and as triers of fact. The DMV also
authorizes its managers to change hearing officers’ decisions, or
order the hearing officers to change their decisions, without
notice to the driver.” (Id. at p. 523.) Based on these practices,
the California DUI lawyers’ association sued the DMV and its
director for injunctive and declaratory relief, alleging that “both
the lack of a neutral hearing officer, and the ex parte
communications between DMV managers and hearing officers,
violate drivers’ rights to procedural due process . . . .” (Ibid.)
The California DUI Lawyers court found that the APS
hearing officer’s dual roles as advocate and adjudicator creates an
unacceptable risk of bias by combining the advocacy and
adjudicatory roles into a single DMV employee. (California DUI
Lawyers, supra, 77 Cal.App.5th at p. 530.) The court cited
several cases that stand for the proposition that “[a]lthough
procedural fairness does not prohibit the combination of the
advocacy and adjudicatory functions within a single
administrative agency, tasking the same individual with both
roles violates the minimum constitutional standards of due
process.” (Id. at p. 532.) The California DUI Lawyers court
ordered the trial court to modify its judgment to state “the DMV
is permanently enjoined and restrained from having its APS
hearing officers function as advocates for the position of the DMV
in addition to being finders of fact in the same adversarial
proceeding.” (Id. at p. 538.)
Appellant states that his APS hearing took place under the
same system California DUI Lawyers held violates due process.
As at all APS hearings, the hearing officer stated the issues,
introduced the DMV’s evidence, ruled on evidentiary objections to
evidence, and cross-examined appellant’s witness. There was no
other DMV employee involved in the hearing process. The DMV
13
does not dispute that appellant’s proceeding took place under the
same procedures held unconstitutional in California DUI
Lawyers.
A. Retroactivity
Appellant encourages this court to hold that California
DUI Lawyers should be applied retroactively to this matter.4
Appellant cites People v. Carrera (1989) 49 Cal.3d 291, 327 for
the general rules regarding retroactive application of new
standards:
“‘Whether a judicial decision establishing new . . .
standards is to be given retroactive effect is
customarily determined by weighing the following
factors: [“](a) the purpose to be served by the new
standards, (b) the extent of reliance by law
enforcement authorities on the old standards, and (c)
the effect on the administration of justice of
retroactive application of the new standards.”
[Citations.] . . . Decisions have generally been made
fully retroactive only where the right vindicated is
one which is essential to the integrity of the fact-
finding process. On the other hand, retroactivity is
not customarily required when the interest to be
vindicated is one which is merely collateral to a fair
determination of guilt or innocence.’”
Appellant argues that due to the hearing officer’s dual role
of advocate for the DMV and trier of fact, the integrity of the fact-
4 The DMV argues that appellant has waived any challenge
premised on the officer’s dual role examined in California DUI
Lawyers. We decline to find waiver, as California DUI Lawyers
created an unforeseen change in the law. (See People v. Perez
(2020) 9 Cal.5th 1, 10 [“[A] defendant need not predict
subsequent substantive changes in law in order to preserve
objections.”].)
14
finding process was compromised. Thus, appellant argues, this
court should give full retroactive effect to the California DUI
Lawyers decision.
Appellant relies on Volkswagen of America v. New Motor
Vehicle Board (July 18, 1985, A012279) [1985 Cal.App.
Unpub.Lexis 1] (nonpub. opn.) (Volkswagen). Volkswagen is not a
published case and therefore we may not rely on it as binding
authority.5 Regardless, we note that the case is distinguishable.
Volkswagen involved the appellant’s contention that “the
statutory scheme providing a lopsided representation on the
[DMV’s New Motor Vehicle] Board for the new motor vehicle
dealers without any representation for the manufacturers is
constitutionally defective and deprives the manufacturer-
litigants of an impartial tribunal.” (Id. at p. 2.) The tribunal in
question had nine members. Four of the members were required
to be new car dealers, and the remaining five members were
required to be of the general public, with no provision whatsoever
for manufacturers to also be represented on the Board. (Id. at
pp. 4-5.) The Volkswagen court agreed that the disparity of
representation created a likelihood of bias, pointing out that
recent cases had held the contested portions of the statute to be
constitutionally infirm. The Volkswagen court determined that
the recent decisions must be given retroactive effect because they
went “to the heart of the fact-finding process.” (Id. at p. 6.)
5 According to the case docket, an order granting publication
was dated August 23, 1985, which would have been beyond the
30-day jurisdiction following the opinion of July 18, 1985. On
September 3, 1985, a letter was sent to the Supreme Court
recommending publication of the opinion. However, the Supreme
Court denied it on December 26, 1985.
15
Volkswagen is factually distinguishable in that the car
dealers on the board possessed a pecuniary interest in the
franchise disputes. (Volkswagen, supra, A012279 [1985 Cal.App.
Unpub.Lexis at p. 5].) Thus, the car dealers had “a right in the
decision-making process despite their financial interest in the
outcome of that process.” (Id. at p. 4.) When the factfinder has a
pecuniary interest in the outcome of the proceedings, bias is
assumed. The Supreme Court has held that “it certainly violates
the Fourteenth Amendment and deprives a defendant . . . of due
process of law to subject his liberty or property to the judgment of
a court, the judge of which has a direct, personal, substantial
pecuniary interest in reaching a conclusion against him in his
case.” (Tumey v. State of Ohio (1927) 273 U.S. 510, 523.) This is
not the situation in the DMV cases, where there is no contention
that the hearing officer has a pecuniary interest in the matter.
Further, the Volkswagen court recognized that there are
exceptions to the general rule of retroactivity where
“consideration of fairness or public policy militate against full
retroactivity.” (Volkswagen, supra, A012279 [1985 Cal.App.
Unpub.Lexis at p. 5].)
One such exception exists where a party properly relies on
settled legal authority. “‘Although as a general rule judicial
decisions are to be given retroactive effect [citation], there is a
recognized exception when a judicial decision changes a settled
rule on which the parties below have relied.’” (Claxton v. Waters
(2004) 34 Cal.4th 367, 378.) Considerations relevant to this
determination are the “‘“reasonableness of the parties’ reliance on
the former rule, the nature of the change as substantive or
procedural, retroactivity’s effect on the administration of justice,
and the purposes to be served by the new rule.”’” (Id. at pp. 378-
379.)
16
The DMV argues that the considerations of fairness and
justice dictate against a finding of retroactive application in this
case, explaining that the APS procedure has been in effect for
more than 30 years to determine whether to temporarily suspend
a driver’s license following an arrest for drunk driving.
(Anderson v. Cozens (1976) 60 Cal.App.3d 130, 140 [noting that
“it is now well settled that the statutory scheme and procedures
employed by the DMV . . . satisfy procedural due process
requirements”]; Finley v. Orr (1968) 262 Cal.App.2d 656, 666
[rejecting the argument that petitioner was denied a fair hearing
because the DMV acted as both the accuser and the judge].) In
1995, an appellate court expressly held that the hearing officer’s
role as “an employee of the Department and a proponent of
evidence” did not violate due process. (Poland v. Department of
Motor Vehicles (1995) 34 Cal.App.4th 1128, 1134-1135.) Thus,
the DMV argues, it properly relied on settled authority
supporting the constitutionality of the APS process.
The DMV explains that the Legislature created the APS
procedure to address “the time lag that often occurs between an
arrest and a conviction for driving while intoxicated or with a
prohibited blood-alcohol concentration.” (MacDonald v. Gutierrez
(2004) 32 Cal.4th 150, 155.) This expedited administrative
procedure keeps “arrestees who would eventually be convicted of
an intoxication-related driving offense” off the road in the interim
period and prevents them from “escap[ing] license suspension or
revocation by plea bargaining to lesser crimes or entering pretrial
diversion.” (Ibid.) The DMV asserts that the APS system was
working well to keep our roads safer by taking drunk drivers off
the road.
The DMV makes a compelling argument that California
DUI Lawyers should not be applied retroactively based on public
17
policy and the potential for public harm. However, we find that
we need not decide whether to apply California DUI Lawyers
retroactively, as any constitutional error would be harmless in
this case.
B. Harmless error
Typically, a party that has established error “must
demonstrate there is a reasonable probability that in the absence
of the error he or she would have obtained a more favorable
result.” (People v. Anzalone (2013) 56 Cal.4th 545, 553.)
However, “‘“under the California constitutional harmless-error
provision some errors . . . are not susceptible to the ‘ordinary’ or
‘generally applicable’ harmless-error analysis.”’” (Ibid.) In the
context of criminal law, such errors “‘“all involve fundamental
‘structural defects’ in the judicial proceedings.”’” (Ibid; see F.P. v.
Monier (2017) 3 Cal.5th 1099, 1108.) Examples of such structural
error requiring automatic reversal include complete denial of
counsel; biased trial judge; racial discrimination in selection of
jury; denial of self-representation at trial; denial of public trial;
and defective reasonable-doubt instructions. (Washington v.
Recuenco (2006) 548 U.S. 212, 218, fn. 2.) However, “[t]here is a
strong presumption that any error falls within the trial error
category, and it will be the rare case where a constitutional
violation will not be subject to harmless error analysis.”
(Anzalone, supra, at p. 554; see Monier, supra, at p. 1108.) This
is also true in the context of administrative proceedings. (Malaga
County Water Dist. v. Central Valley Regional Water Quality
Control Bd. (2020) 58 Cal.App.5th 418, 445 [noting that due
process violations in the administrative law context “are, absent
exceptional circumstances, subject to a harmless error analysis
when a violation is found”].)
18
While bias of a trial judge may be considered structural
error in some circumstances, we note that appellant is not
claiming actual bias in this matter. Instead, appellant argues
that the dual role of the hearing officer created the theoretical
possibility of bias in the hearing. In the administrative context,
“a party claiming that the decision maker was biased must show
actual bias, rather than the appearance of bias, to establish a fair
hearing violation.” (Southern Cal. Underground Contractors, Inc.
v. City of San Diego (2003) 108 Cal.App.4th 533, 549.) The
Southern court explained, “‘[B]ias in an administrative hearing
context can never be implied, and the mere suggestion or
appearance of bias is not sufficient.’” (Ibid.) Because appellant is
not claiming actual bias, any constitutional error is subject to the
harmless error analysis.
Under the harmless error standard, appellant must
establish that there was a “reasonable probability of a more
favorable result.” (Margarito v. State Athletic Com. (2010) 189
Cal.App.4th 159, 173.) We find that appellant has failed to
demonstrate that he would have obtained a different result under
a different procedure. There is no suggestion that the hearing
officer engaged in any biased conduct. Instead, the record shows
that the officer elicited testimony, asked straightforward
questions, and provided appellant ample opportunity to present
his case. In addition, the hearing officer’s decision shows that
she considered all the parties’ properly admitted evidence and
came to a reasonable conclusion based on her careful
consideration of that evidence. As set forth below, the evidence
overwhelmingly supports the hearing officer’s conclusion that
appellant was driving with a BAC of 0.08 percent or higher.
19
III. Substantial evidence supports the trial court’s
findings
In a case where expert testimony rebuts the presumption in
Vehicle Code section 23152, subdivision (b) that a driver had a
BAC at the time of driving of 0.08 percent or higher, the DMV
must prove the driver’s BAC at the time of driving without
resorting to the presumption. (Coffey, supra, 60 Cal.4th at
pp. 1210-1211.) Substantial evidence supports the trial court’s
factual findings that the DMV proved that appellant’s BAC was
greater than 0.08 percent without the benefit of the presumption.
Four breath tests were administered after appellant was
stopped. The first two yielded results of 0.1591 percent and
0.1631 percent. The second two, administered approximately 40
minutes later, yielded results of 0.19 percent. All four breath
tests yielded results well over 0.08 percent. Fact finders may rely
on breath tests, the validity of which has been accepted for many
years. (McKinney v. Department of Motor Vehicles (1992) 5
Cal.App.4th 519, 525.) This evidence alone constitutes
substantial evidence that appellant was driving with a prohibited
BAC level.
The trial court was also entitled to rely on the
corroborating evidence of Deputy Treadway. (Coffey, supra, 60
Cal.4th at p. 1216 [finding “circumstantial evidence that plaintiff
was weaving erratically all over the roadway, smelled strongly of
alcohol, and failed a battery of field sobriety tests may bolster
chemical test results showing that [a driver] had attained or
exceeded [the 0.08 percent] BAC level”].)6 Deputy Treadway
6 We reject appellant’s argument that “the trial court should
not have inferred the DMV relied on anything other than the
three-hour presumption.” The DMV’s decision sets forth the
20
observed appellant swerving in and out of lanes. Upon stopping
appellant, Deputy Treadway observed that appellant had
bloodshot and watery eyes, a strong odor of alcohol, and unsteady
coordination. Appellant also failed multiple field sobriety tests,
which Deputy Treadway documented contemporaneously.
Appellant’s eyes jerked and started to bounce around during the
horizontal nystagmus test. During another test, appellant
inaccurately measured the passage of 30 seconds. During the
walk and turn test, appellant stopped walking after just three
steps during the first part of the test, and then could not keep his
balance.7 During the one leg stand test, appellant swayed,
hopped to regain balance, lost his balance and put down his left
foot three times during the test.8 And during the finger to nose
“objective symptoms” of intoxication noted by Deputy Treadway
and the agency’s conclusion broadly stated: “Based on the
preceding it is determined that the preponderance of evidence in
this case supports that [appellant] was driving a motor vehicle at
the time that the concentration of alcohol in his blood was at or
above 0.08%.” There is no indication that the DMV disregarded
Deputy Treadway’s observations in reaching its conclusion that
appellant was driving with a BAC of 0.08 percent or greater.
Contrary to appellant’s arguments, there is no indication that the
trial court misinterpreted the DMV decision.
7 As the Coffey court noted, the “‘“walk-and-turn test”’ is
significant because it tests ‘“many of the same skills needed for
driving,” such as small muscle control, information processing,
reaction, balance, coordination, and short-term memory.’”
(Coffey, supra, 60 Cal.4th at p. 1203, fn. 3.) Research shows that
if a suspect performs poorly on this test, “‘the suspect’s BAC is
likely to be above 0.10 [percent].’” (Ibid.)
8 As the Coffey court noted, “‘research shows that,’” when the
suspect shows two or more clues during the one-leg stand test
21
tests, appellant touched his upper lip instead of his nose four out
of six times. Finally, appellant admitted to drinking two 20-
ounce beers before driving. Deputy Treadway’s testimony
provided substantial evidence corroborating the four results of
the breath tests.
The testimony of senior criminalist Apodaca also supported
the trial court’s conclusion. Apodaca gave his opinion that
appellant was driving with a BAC of approximately 0.19 percent
to 0.21 percent. He supported his opinion with analysis of the
timing and results of the four chemical breath tests, as well as
appellant’s own testimony that he had stopped drinking at
9:00 p.m. Apodaca explained that alcohol level tends to peak
somewhere between zero to 90 minutes after drinking, but then
begins to fall. After an individual has reached his or her peak,
the level of alcohol in the individual’s system will decrease by
0.02 percent every hour. Apodaca opined that because appellant
stated his last drink was at 9:00 p.m., by 12:45 a.m. when he was
stopped, he was likely already eliminating the alcohol. The trial
court was entitled to credit the testimony of Apodaca, as did the
agency. (Fukuda, supra, 20 Cal.4th at p. 819 [pointing out that
the Government Code “directs trial courts to give ‘great weight’ to
credibility determinations of state agency hearing officers,” even
under the independent review standard].)
The substantial evidence described above supports the trial
court’s conclusion that the weight of the evidence formed the
basis for the DMV’s decision. (Morgenstern, supra, 111
Cal.App.4th at p. 372.)
such as swaying, putting one foot down, or hopping, “‘it is likely
that the BAC is above 0.10 [percent].’” (Coffey, supra, 60 Cal.4th
at p. 1203, fn. 4).
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IV. Expert Testimony
Appellant contends that neither the testimony of Apodaca
nor the testimony of Deputy Treadway was reliable evidence of
appellant’s BAC. In short, appellant argues that the testimony of
his expert, Okorocha, was reliable and credible, while that of the
DMV’s expert, Apodaca, was not. Appellant is essentially asking
us to make a credibility determination, substituting our
judgment for that of the trial court—which we are not permitted
to do. (Daly v. Wallace (1965) 234 Cal.App.2d 689, 692 (Daly).)
We may only reject the testimony of a witness who has been
believed by the trial court if there is a “physical impossibility”
that the witness’s testimony is true, or the testimony is blatantly
false “without resorting to inferences or deductions.” (Ibid.)
“‘Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends.’” (Ibid.) These rules apply to
expert witnesses as well as lay witnesses. (Id. at p. 693.)
Appellant argues that Okorocha’s testimony met the three-
part test set forth in County Sanitation Dist. v. Watson Land Co.
(1993) 17 Cal.App.4th 1268, 1277, required to establish the
reliability of an expert’s opinion. The three parts of the test
require that the matter “‘be perceived by or personally known to
the witness or must be made known to him at or before the
hearing at which the opinion is expressed[;] of a type that
reasonably may be relied upon by experts in forming an opinion
upon the subject to which his testimony relates[; and] may not
[be based] upon any matter that is declared by the constitutional,
statutory, or decisional law of this State to be an improper basis
for an opinion.’” (Ibid.) Further, appellant argues, there was no
23
basis to detract from Okorocha’s testimony. However, both the
DMV hearing officer and the trial court clearly set forth their
reasons for finding Okorocha’s testimony to be inconsistent and
lacking credibility.9 We are not permitted to address issues of
credibility. (Daly, supra, 234 Cal.App.2d at p. 692.) Appellant
provides no authority suggesting that we may properly consider
his argument that the trial court erred in giving Okorocha’s
testimony little weight.
Appellant also argues that Apodaca’s testimony should not
have been given any weight, arguing that Apodaca tacitly agreed
with Okorocha’s decision to disregard appellant’s own reporting
of his drinking pattern; claimed no training regarding PAS
devices; provided an illogical response to a hypothetical; and
feigned knowledge of any research that establishes inaccurate
readings in breath testing devices during the absorption phase.
For the same reason we may not address the court’s credibility
determinations regarding Okorocha, we may not address its
credibility determinations regarding Apodaca.
9 As set forth in detail above, the trial court found
Okorocha’s testimony to lack credibility because it was based on
“an incorrect understanding of the underlying facts.” In addition,
the trial court noted that Okorocha’s testimony did not “account
for different test devices.” The DMV hearing officer also pointed
to Okorocha’s apparent misunderstanding of the underlying facts,
and noted that Okorocha testified inconsistently regarding how
long it takes for an individual to fully absorb alcohol after he
stops drinking.
24
The trial court’s decision on the petition for writ of mandate
is supported by substantial evidence.
DISPOSITION
The judgment is affirmed. Real party in interest is
awarded its costs of appeal.
________________________
CHAVEZ, Acting P. J.
We concur:
________________________
HOFFSTADT, J.
________________________
BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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