Gerwig v. Gordon ( 2021 )

Filed 2/19/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
WILLIAM LEE GERWIG, JR., D076921
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-00039834-
CU-WM-CTL)
STEVE GORDON, as Director, etc.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Frederic L. Link, Judge. Affirmed.
A. P. Zmurkiewicz for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant
Attorney General, Celine M. Cooper and Elizabeth Vann, Deputy Attorneys
General, for Defendant and Respondent.
When the Department of Motor Vehicles (DMV) holds an
administrative hearing to consider whether to suspend a driver’s license,
certain relaxed evidentiary standards govern. The DMV can usually support
its case by relying on an Evidence Code presumption that chemical blood
tests were properly conducted, and the results are thus reliable. As a matter
of first impression, we conclude that licensees rebut that presumption only
when they cast doubt on the integrity of the test. It is not enough to show a
violation of governing regulations that has only a tenuous connection to the
accuracy of the results. Here, because plaintiff proved a regulatory violation
with only an indirect and speculative relationship to the manner in which the
blood test was conducted, and thus the reliability of the test results, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff William Lee Gerwig crashed into the back of another vehicle
at an intersection. He was thrown from his motorcycle and landed on the
asphalt. California Highway Patrol Officer Jacob Rebelo responded to the
scene and spoke with Gerwig while he was receiving medical attention.
Based on his lethargic responses, the smell of alcohol, and his inability to
recall the collision details, Rebelo suspected Gerwig was intoxicated. Gerwig
also admitted he had some wine prior to driving. Rebelo arrested Gerwig for
violating Vehicle Code section 23152—driving under the influence of alcohol
(DUI)—and watched while state-certified phlebotomist Francisco Moreno
collected two vials of blood using a nonalcoholic swab to clean the site.
Rebelo took the vials himself and entered them into evidence. Test results
from Gerwig’s blood draw showed a blood-alcohol concentration (BAC) of
.25 percent.
Rebelo seized Gerwig’s license and gave him notice that the DMV
would conduct a review and could suspend his driving privileges. As he was
entitled to do, Gerwig requested a hearing on the matter. (Veh. Code,
§§ 13558 & 14100.) At that proceeding, the DMV submitted Rebelo’s report
and the lab report with the BAC test results. Gerwig objected on
foundational, hearsay and authentication grounds, but the hearing officer
admitted the evidence over the objections.
2
Gerwig’s counsel then called an employee of Specimen Specialists of
America, Inc. (SSI), the company that dispatched phlebotomist Moreno to
draw Gerwig’s blood. Through the employee’s testimony, counsel
demonstrated that certain SSI procedures were out of compliance with state
regulations that govern blood test procedures. In particular, Moreno was
functionally unsupervised and the manual that SSI provided for
phlebotomists had not been approved by a physician and surgeon.
These deficiencies violate certain regulations. Blood samples must be
collected in compliance with Vehicle Code section 23158.1 (Cal. Code Regs.,
tit. 17, § 1219.1 (hereafter title 17).) Section 23158 specifies the supervision
requirements for certified phlebotomy technicians in subdivisions (e) and (g).
Of particular relevance here, the statute calls for phlebotomists to operate
under procedures and policies approved by a physician and surgeon (id.,
subd. (e)), and to be supervised by individuals with certain credentials who
review the phlebotomist’s work on a monthly and annual basis (id., subd. (g)).
Either that supervisor or another qualified individual must also be available
to consult with the phlebotomist within 30 minutes while the phlebotomist is
working. (Ibid.)
After eliciting testimony to demonstrate these procedural failings,
counsel argued that the test results could not be relied on due to SSI’s
regulatory violations. In her findings of fact, the hearing officer agreed there
was a title 172 violation, but still relied on the lab report to conclude that
1 Undesignated statutory references are to the Vehicle Code.
2 “Title 17 establishes the procedures for determining ‘the concentration
of ethyl alcohol in samples of blood, breath, urine, or tissue of persons
involved in traffic accidents or traffic violations.’ ” (Hernandez v. Gutierrez
(2003) 114 Cal.App.4th 168, 172; Cal. Code Regs., tit. 17, §§ 1215‒1222.2.)
3
Gerwig drove with a BAC at or above .08 percent. Since there was no
evidence to suggest that Moreno was unqualified or that there was some
particular problem with the blood test, she found no reason to doubt its
accuracy.
Gerwig sought writ review.3 Before the trial court, his counsel
developed his legal argument in further detail: (1) in order to rely on the
blood test, the DMV was required to lay a foundation for its admission at the
hearing; (2) to do so it could rely on the presumption of Evidence Code section
664, which posits official duties are properly performed, but only if the
presumption was not rebutted;4 (3) Gerwig rebutted the presumption by
showing violations of title 17; (4) after that, the DMV was obligated to
provide an alternative basis for the test’s foundation; and (5) because it did
not, it was improper for the hearing officer to rely on the test results.
Although the trial court agreed that some aspects of title 17 were not
3 Gerwig sued Jean Shiomoto in her official capacity as Director of the
DMV and also named the Department. Although it appears to be a relatively
common one, the addition of the DMV as a party was an error. (See City of
Anaheim v. Bosler (2019) 42 Cal.App.5th 603, 606 [naming the Department of
Finance in addition to the director was redundant]; City of Brentwood v.
Campbell (2015) 237 Cal.App.4th 488, 492, fn. 3 [only the director was a
properly named party]; Stockton v. Department of Employment (1944) 25
Cal.2d 264, 273 [explaining that a director’s authority to carry out the actions
of his or her department makes the director the only necessary defendant in a
suit].) Because Steve Gordon is the current director of the DMV, we list him
as the proper defendant and respondent in this appeal. (See Ortega v.
Johnson (2020) 57 Cal.App.5th 552, 556, fn. 1.) We refer to the DMV
throughout as a convenient shorthand for Steve Gordon in his official
capacity. (See Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052, 1056, fn. 5.)
4 Evidence Code section 664 provides in relevant part: “It is presumed
that official duty has been regularly performed.” We refer to this section
throughout when we reference the Evidence Code presumption.
4
complied with, it denied Gerwig relief on that basis since “[t]here was no
argument here whatsoever that the test in this case was unreliable; that the
machine it tested was unreliable; that the vials that were used were
unreliable. Nothing.”
DISCUSSION
Gerwig believes the trial court missed the point of his legal argument.
He insists he had no obligation to show the test itself was unreliable, but
rather that the DMV was required to demonstrate the contrary—that the
results could still be trusted—after it lost the benefit of the Evidence Code
presumption (which he rebutted by highlighting the title 17 violations).
Although he couches his argument in more granular terms, the key question
raised by Gerwig’s appeal is whether any violation of the regulations
governing blood tests is enough to rebut the presumption. Before addressing
this further, we must explain in greater detail how the DMV hearings work
and the evidentiary standards that govern them.
1. Background: Administrative Per Se Hearings
The DMV has authority to suspend the license of a motorist over the
age of 21 who drives with a blood alcohol percentage of 0.08 or more under a
statutory scheme commonly known as the “ ‘administrative per se’ ” law.
(Lake v. Reed (1997) 16 Cal.4th 448, 454 (Lake); Veh. Code, § 13353.2 et seq.)
The law was adopted to mitigate the danger posed by motorists who have
already been arrested for DUI but have not yet been convicted. Because the
criminal process is often protracted, this interim period can be lengthy and
the concomitant risk to the public significant. (Lake, at p. 454.)
Administrative suspensions also address situations where the motorist
pleads to a lesser offense. (See, e.g., Coffey v. Shiomoto (2015) 60 Cal.4th
5
1198, 1205 (Coffey) [Plaintiff was charged with DUI but was “allowed to plead
to a ‘wet reckless,’ ” a misdemeanor reckless driving offense].)
When the DMV proposes to suspend a license based on a DUI arrest
and a chemical test result, the licensee can request an administrative
hearing. (§ 13353.2, subd. (c).) At the hearing, “the DMV is required to
suspend a person’s driving privilege if it determines by a preponderance of
the evidence that (1) a peace officer had reasonable cause to believe that the
person had been driving a motor vehicle under the influence of alcohol or
drugs, (2) the person was placed under arrest, and (3) the person was driving
with ‘ “0.08 percent or more, by weight, of alcohol in his or her blood.” ’
[Citation] The DMV bears the burden of proof.” (Molenda v. Department of
Motor Vehicles (2009) 172 Cal.App.4th 974, 985 (Molenda).)
These hearings operate with relaxed evidentiary standards. Although
the DMV bears the burden of proof, it can usually prove up a prima facie case
with relative ease when a blood sample was taken from the licensee by
submitting 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.” (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341,
1348 (Petricka); see also Lake, supra, 16 Cal.4th at p. 467 for a discussion of
evidentiary standards at DMV hearings.) This expedited process, which
circumvents the authentication, foundation, and hearsay concerns that often
accompany evidentiary submissions, is possible because the DMV routinely
invokes Evidence Code section 664, which “ ‘creates a rebuttable presumption
that blood-alcohol test results recorded on official forms were obtained by
following the regulations and guidelines of title 17 [and] recorded test results
are presumptively valid [such that] the DMV is not required to present
additional foundational evidence.’ ” (Manriquez v. Gourley (2003) 105
6
Cal.App.4th 1227, 1232; Evid. Code, § 664.) The presumption can, of course,
be challenged by a licensee at the hearing, as in this case. If the presumption
is rebutted, “ ‘the burden shifts to the DMV to prove that the test was reliable
despite the violation.’ ” (Roze v. Department of Motor Vehicles (2006) 141
Cal.App.4th 1176, 1183.)
When a motorist’s license is suspended at a DMV hearing, the licensee
can petition for writ review in the Superior Court. The trial court reviews the
DMV decision, typically made by a hearing officer (§ 14104.2, subd. (a)), to
independently determine “ ‘ “whether the weight of the evidence supported
the administrative decision.” ’ ” (Lake, supra, 16 Cal.4th at p. 456.) On an
appeal challenging the trial court’s conclusions as to the weight of the
evidence, “we ‘need only review the record to determine whether the trial
court’s findings are supported by substantial evidence.’ ” (Id. at p. 457.)
Insofar as the trial court’s decision involves an interpretation of law, our
standard of review is de novo. (Molenda, supra, 172 Cal.App.4th at p. 986.)
These evidentiary principles and standards of review are clear enough
from the well-developed caselaw governing DMV administrative hearings.
And here we accept the adequately supported factual finding that SSI’s
noncompliance with certain Vehicle Code requirements violated title 17.
(Cal. Code Regs., tit. 17, § 1219.1.) What remains unclear is whether a
licensee who shows the kind of title 17 violation at issue in this case—
something that does not bear directly on the reliability of a test result—has
successfully rebutted the Evidence Code presumption.
2. To Rebut the Evidence Code Presumption, the Licensee Must Present
Evidence of a Title 17 Violation That Bears Some Reasonable Relation
to the Reliability of the Test Results.
In Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133(Davenport), the appellate court considered whether due process principles
7
were offended by the DMV’s use of the Evidence Code presumption to
establish the reliability of chemical blood alcohol test results, particularly
because such a procedure burdens the licensee with rebutting the
presumption. The court held that a licensee’s due process rights were not
violated by this approach, since DMV hearings are “altogether distinct from
criminal trials, in which the accused is endowed with an overriding
presumption of innocence.” (Id. at p. 144.) The court noted that the licensee
has an opportunity to be heard at the hearing, and can subpoena individuals
and obtain records to rebut the presumption. It concluded that allowing the
DMV to rely on the Evidence Code presumption strikes an appropriate
balance between any “hardship to the licensee” and “the urgent public need
for an efficient and cost-effective means of removing from the public
roadways the menace posed” by those who drive while intoxicated. (Id. at
p. 145.)
Nestled in this portion of the court’s due process analysis is a sentence
that can fairly be read to support Gerwig’s position. After explaining the
Evidence Code presumption, the Davenport court wrote, “If the licensee
shows, through cross-examination of the officer or by the introduction of
affirmative evidence, that official standards were in any respect not observed,
the burden shifts to the [DMV] to prove that the test was reliable despite the
violation.” (Davenport, supra, 6 Cal.App.4th at p. 144, italics added.) Relying
on the “in any respect” clause, Gerwig contends that any evidence of a failure
to follow regulatory requirements is enough to rebut the presumption and
require the DMV to prove the reliability of the test results. (Ibid.) We must
decide whether this “in any respect” language was meant to dispense with
any requirement that the regulatory violation have a reasonable connection
to the reliability question.
8
a. The focus and scope of the Davenport decision
We begin by observing that the context of Davenport’s “in any respect”
language undermines the interpretation suggested by Gerwig. Immediately
before this pronouncement, the opinion explained that “what is actually
presumed under Evidence Code 664 is compliance with statutory and
regulatory standards, which in turn gives rise to an inference of reliability.”
(Davenport, supra, 6 Cal.App.4th at p. 144.) Given that the court had in
mind this “inference of reliability,” it seems unlikely that in its very next pen
strokes it meant to do away with any nexus between reliability and how the
presumption can be rebutted. Furthermore, as the DMV points out, the
question before the court in Davenport was not the threshold showing
required to rebut the Evidence Code presumption. Thus, the “in any respect”
comment is explanatory dicta. The DMV goes on to argue that implicit in
Davenport’s explanation is that the “official standards” to which the court
refers are regulations that bear some reasonable relation to the reliability of
the test results. To buttress this interpretation, it discusses the two cases
cited in Davenport to support the quoted statement, emphasizing that neither
involved a violation of title 17 bearing no reasonable relationship to the
accuracy of the chemical test. It maintains that the examples chosen by the
Davenport court impose a necessary limitation on the otherwise broad
language.
We agree that these two cases lend more support to the DMV’s position
than to Gerwig’s. In Coombs v. Pierce (1991) 1 Cal.App.4th 568 (Coombs), the
arresting officer utilized a Kern County breath testing machine to determine
the licensee’s blood alcohol percentage. At his DMV hearing, the licensee
Coombs demonstrated that the county was not licensed to use the particular
instrument with which his breath sample was tested. (Id. at p. 577.)
9
Although he argued the results were consequently incompetent, the hearing
officer relied on them anyway. (Ibid.) The reviewing trial court affirmed his
license suspension, finding sufficient evidence of the device’s reliability from
its inclusion on a federal register of products generally approved for breath
alcohol analysis. In reversing, the appellate court highlighted that the
register “fail[ed] to provide the missing foundational proof” because it was
“a far cry from showing that the listed models are deemed reliable wherever
utilized”—or, more particularly, that it was used reliably in Kern County or
in the licensee’s case. (Id. at p. 578.)
We do not read Coombs as supporting the proposition that any violation
of governing regulations is enough to rebut the Evidence Code presumption.
To the contrary, the court’s concern that an entity without a license to use a
particular device could misuse it, yielding inaccurate results, is implicit in its
analysis. It is also clear from the summary at the end of the opinion that the
court thought the license issue actually called the reliability of the test
results into question. Appellant Coombs cast doubt on the test’s validity
when he demonstrated the laboratory was not licensed and authorized to use
the device, but did so anyway to conduct the very test that was at issue in the
hearing. (Coombs, supra, 1 Cal.App.4th at p. 581.) The nexus between his
showing and the test’s reliability lies there.
Gerwig suggests there is a nexus between approved procedures,
appropriate supervision, and the proper conduct of a blood draw. 5 Of course,
5 Although we understand Gerwig’s position on this point, it is simply
not the case that every requirement in title 17 relates directly to the
reliability of a chemical blood test. The regulations span a broad range, and
some provisions—such as those mandating that the blood draw site and the
outside of the collection vial never be cleaned with alcoholic swabs—are
patently connected to the test’s reliability. (Cal. Code Regs., tit. 17, § 1219.1,
subds. (b) and (d)(1).) Others are not. For example, part of the Vehicle Code
10
on some indirect level he is correct, just as one could say that good nutrition
and adequate rest are important to a phlebotomist’s job performance. But
such factors, without more, are too tenuous to cast doubt on the reliability of
the blood test results.
The second case cited in Davenport—People v. Adams (1976) 59
Cal.App.3d 559 (Adams)—is further afield. It did not involve a violation of
title 17 in the context of a DMV hearing. Rather, it considered whether
breath test results were inadmissible at trial after the defendant
demonstrated the laboratory’s noncompliance with title 17 maintenance
procedures involving calibration for the devices. (Adams, at p. 563.) In a
holding expressly approved of in People v. Williams (2002) 28 Cal.4th 408(Williams),6 the Adams court determined that regulatory noncompliance did
incorporated into title 17 requires phlebotomists to always carry an
identification card (ID). (Veh. Code, § 23158, subd. (f).) If a certified
technician left her ID at home inadvertently while answering a midnight call,
that violation cannot be seriously contended to have affected the blood draw.
Another section on proper training for those who administer breath tests
mandates that successful students receive a certificate with their name, ID or
badge number, their agency, and their instructor. (Cal. Code Regs., tit. 17,
§ 1221.2.) If a clerical error resulted in the certificate misreporting some of
this information for an otherwise properly trained operator, we cannot
imagine how that would bear on the reliability of the tests the operator
conducts.
6 The DMV relies on the Williams opinion to support its position, but the
case helps the DMV no more than Adams helps Gerwig. Just as in Adams,
Williams considered whether regulatory noncompliance regarding a breath
test justified a new exclusionary rule at trial and concluded it did not.
(Williams, supra, 28 Cal.4th at p. 415.) In its analysis, it noted that
prosecutors can show their evidence is reliable either by demonstrating
“compliance with the title 17 regulations or independent proof of [] three
elements,” specifically, “(1) the reliability of the instrument, (2) the proper
administration of the test, and (3) the competence of the operator.”
(Williams, at p. 414, adopting the factors described in Adams, supra, 59
11
not mandate a new exclusionary rule. Although following regulations
provided a “simplified method” for admitting test results, the People could
alternatively show their evidence was competent by “qualify[ing] the
personnel involved in the test, the accuracy of the equipment used and the
reliability of the method followed.” (Adams, at p. 567.) And if the evidence
was admitted that way, the defendant was “entitled to attempt to discredit
the results by showing that noncompliance affected their validity.” (Ibid.)
Adams thus rejected the argument that regulatory noncompliance makes test
results inadmissible at trial—and did not comment on the precise issue
before us. But its rationale, including its commentary on the defendant’s
right to discredit the results, puts emphasis on the nexus between the
regulatory violation and the test’s reliability. Under Adams, a defendant who
has unearthed some evidence of regulatory noncompliance can use that to
attack test results—but the persuasive power of the attack will depend on
how the noncompliance affected the test.
In short, Davenport’s statement in dicta that a regulatory violation “in
any respect” is sufficient to rebut the Evidence Code presumption is followed
by case citations that do not mandate a rigid and technical reading of this
language. And even if we were to accept the statement as authoritative, it is
at best unclear whether it was intended to eliminate any required nexus
between the violation and the accuracy of the test results. We therefore look
to other cases involving title 17 violations at DMV hearings, and find the
Cal.App.3d at p. 567.) Although the Williams decision discussed evidentiary
reliability in general, it did so in the context of a trial, with the full
evidentiary submission standards that accompany those proceedings. The
Williams court did not comment on what type of title 17 violation would be
necessary to rebut the Evidence Code presumption at a DMV administrative
hearing.
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caselaw is concerned with whether the licensee demonstrated there was a
reason to doubt the reliability of the test.
b. Other relevant caselaw confirms that the claimed regulatory
violation must relate to the reliability of the test results.
We find some guidance for the question before us in other cases that
have considered similar arguments. Of foundational importance to our task
is the decision in Petricka, supra, 89 Cal.App.4th 1341. There, the licensee
objected to the admission of the officer’s sworn statement and his blood test
results at his administrative hearing, but (unlike this case) submitted no
evidence challenging the test results or demonstrating noncompliance with
title 17. (Petricka, at p. 1346.) Petricka’s reliance on his objection alone to
undermine the Evidence Code presumption convinced the trial court, but not
the court of appeal. The reviewing court stated that the presumption
“applie[d] and satisfied the DMV’s initial burden of proof,” adding that “[t]he
burden then shifted to Petricka to show that the officer did not carry out his
official duties, including that proper procedures for blood collection were not
followed.” (Id. at p. 1350, italics added.) Here, the title 17 violations argued
by Gerwig and found by the hearing officer do not show any errors of practice
or procedure by the officer or the phlebotomist with respect to the collection
or testing of Gerwig’s blood sample.
Similarly supportive of our conclusion is the reasoning of two cases in
which the appellate court concluded that the licensee had successfully
rebutted the Evidence Code presumption and shifted the burden back to the
DMV to prove the reliability of the test results. Freitas v. Shiomoto (2016)
3 Cal.App.5th 294 (Freitas) and Najera v. Shiomoto (2015) 241 Cal.App.4th
173 (Najera), both relied on by Gerwig, involved the same laboratory error:
potential misuse of a dual chamber gas chromatography device. The
licensees called the same expert witness in both cases. She testified that
13
their lab results, which recorded readings from only one chamber of the
machine, indicated the lab was relying on one data point (from a single
chamber) when it needed to compare two (from both chambers) to yield
accurate results. In both cases, the court of appeal concluded that the
witness rebutted the Evidence Code presumption and shifted the burden
back to the DMV to show the results were reliable despite the missing data
from the device’s second chamber. (Freitas, at p. 303; Najera, at p. 184.)
Interestingly, Freitas analyzed the lab mistake as noncompliance with state
regulations, which mandate that “blood-testing method[s] must be capable of
alcohol analysis adequate for enforcing the law”—a requirement that single
chamber gas chromatography can never meet. (Freitas, at p. 302; Cal. Code
Regs., tit. 17, § 1220.1, subd. (a)(2).) Najera did not consider the lab’s
mistake a violation of title 17, but the result was the same; because the
second chamber issue made reliance on the blood test dubious, the DMV
failed to satisfy its burden of proving that the test results were accurate.
This varied analysis of substantially the same laboratory problem highlights
that the reliability of the test is the paramount concern in rebutting the
Evidence Code presumption.7
7 The caselaw is further scattered with comments that emphasize
substantive reliability in analyzing the import of regulatory violations. (See
Baker, supra, 81 Cal.App.4th at p. 1174 [“ ‘[T]he purported “flaw” does not
break the chain of custody at all, there can be no reasonable basis for
inferring that the blood sample was somehow contaminated or tainted.’ ”];
Delgado v. Department of Motor Vehicles (2020) 50 Cal.App.5th 572, 579
(Delgado) [“[In other cases] there was affirmative evidence that the test was
not conducted or reported properly. No such evidence exists here.”]; Imachi v.
Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 817 [“Accordingly,
faced with a report of chemical test results, the burden would be on the
licensee to demonstrate that the test was not properly performed.”]; Coffey,
supra, 60 Cal.4th at p. 1206, fn. 8. [“[T]est results are presumptively valid.”];
McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 525
14
Gerwig attempts to analogize his case to Freitas by positing that a
phlebotomist can be improperly “used,” just like a dual chamber gas
chromatography device, if he or she is not properly supervised. But this
forced comparison breaks down precisely due to the difference in reliability.
The dual chamber device in Freitas and Najera gave demonstrably inaccurate
readings when it was not used as intended. In contrast, the phlebotomist in
this case (Moreno) is a person who presumably conducts blood draws, which
he is trained to do, in the same way regardless of the general supervision he
receives. While an unsupervised phlebotomist could make a mistake, so too
could a properly supervised one. There is nothing here to suggest a mistake
was made, nor is there any indication that the particular circumstance of
Gerwig’s blood draw presented a problem the lackluster supervision structure
at SSI left Moreno ill equipped to address.8
In summary, although a literal reading of a single sentence in
Davenport’s dicta might facially support Gerwig’s argument, the caselaw
weighs heavily in favor of the DMV’s position. We decline to read this
[“Given the statutory presumption that official duty has been regularly
performed (Evid. Code, § 664), the burden was on the person challenging the
result [] to show that there was some irregularity in the administration of the
test such as would bring into question the reliability of the [blood alcohol
level] readings.”]; Morgenstern v. Department of Motor Vehicles (2003) 111
Cal.App.4th 366, 374 [“[T]he flaw in this argument is that it appears to
assume the focus of Evidence Code section 664 is on the officer’s duty to fill
out the form DS 367, rather than the officer’s performance of his duties to
properly conduct the breath test with properly functioning equipment.”].)
8 The result might be different if, for example, the phlebotomist testified
that he tried unsuccessfully to reach a supervisor by phone to ask a question
concerning Gerwig’s blood draw. (See § 23158, subd. (g) [A supervisor “shall
be accessible to the location where the technician is working to provide
onsite, telephone, or electronic consultation, within 30 minutes when
needed.”].)
15
sentence in isolation, ignoring the surrounding caselaw that gives it
necessary context and meaning. Here, the type of title 17 violation
highlighted by Gerwig “shows no more than a mere possibility that the
integrity of the sample was not maintained. Such speculation is insufficient
to support a reasonable inference that the integrity of the sample was, in fact,
compromised.” (Baker, supra, 81 Cal.App.4th at p. 1174.) In line with the
general principle that the licensee’s attempt to rebut the Evidence Code
presumption “ ‘cannot rest on speculation,’ ” we conclude that showing any
violation of title 17 is not sufficient in and of itself. (Delgado, supra, 50
Cal.App.5th at p. 577; Petricka, supra, 89 Cal.App.4th at p. 1348.) The
licensee must present some evidence that the demonstrated violation gives
rise to a reasonable inference that the test results are unreliable.
DISPOSITION
The order denying the petition for writ of mandate is affirmed. Gerwig
will bear costs on appeal.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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