Lead Opinion
Opinion
A California Highway Patrol officer stopped a car driven by plaintiff Ashley Jourdan Coffey after he observed her driving erratically. Four subsequent chemical tests revealed her blood-alcohol concentration (BAC) ranged from 0.08 to 0.096 percent. The officer then confiscated plaintiff’s driver’s license and served her with a notice that her license would be suspended pursuant to Vehicle Code section 13382.
We decide in this case whether the trial court erred by considering, in addition to the results of breath and blood tests, other circumstantial evidence of intoxication to conclude by a preponderance of the evidence that plaintiff drove with a BAC at or above 0.08 percent. As we explain, we conclude the trial court did not err.
On November 13, 2011, at 1:32 in the morning, Sergeant Martin of the California Highway Patrol was traveling southbound on State Route 55 in Orange County when he saw a car traveling 60 miles per hour, swerving erratically from side to side. From the number four, or right-hand, lane, the car swerved one foot to the left into the number three lane before correcting. It then twice swerved one to two feet to the right, onto the highway’s shoulder. Sergeant Martin positioned his patrol vehicle behind the car and activated his emergency lights, whereupon the car slowly moved left across the highway into the number one lane. When Martin activated his siren, the car veered even further left, into the carpool lane. Only when Sergeant Martin used his public address system and directed the driver to pull to the right did the car eventually comply.
Upon making contact with the driver of the vehicle, plaintiff Ashley Coffey, Sergeant Martin noticed her eyes were red and a strong odor of alcohol emanated from her car. Officer White arrived to provide backup and confirmed these observations. To both officers she denied having consumed any alcoholic beverages, offering the rather implausible story that she had just turned 21 years old, had been in a bar, but had not herself consumed any alcoholic beverages. The officers then had plaintiff perform various field sobriety tests. Plaintiff failed the horizontal gaze nystagmus test, “displaying] a lack of smooth pursuit in both eyes.”
Plaintiff, charged with drunk driving (§ 23152), was allowed to plead to a “wet reckless” (§§ 23103 [misdemeanor reckless driving], 23103.5 [prosecutorial statement that alcohol was involved]; see People v. Claire (1991) 229 Cal.App.3d 647, 650 & fn. 2 [280 Cal.Rptr. 269]), but requested a hearing before the DMV to challenge her license suspension (§ 13558).
At the ensuing administrative hearing, the DMV hearing officer had before her the “Officer’s Sworn Statement” form, Officer White’s arrest report and the supplemental reports of Sergeant Martin and Officer White. In addition to considering these documents, the hearing officer heard telephonic testimony from Jay Williams, a forensic toxicologist with extensive experience, who testified for plaintiff. Williams noted the result of plaintiff’s first breath test was 0.08 percent, the second test three minutes later was 0.09 percent, and her blood sample taken about 20 minutes later tested at 0.095 and 0.096 percent. According to Williams, these results suggested the alcohol level in plaintiff’s body was rising at the time of the tests and, given the totality of the circumstances, were consistent with plaintiff’s BAC being below 0.08 percent at 1:32 a.m. when she was first pulled over by Sergeant Martin.
Plaintiff filed a petition for a writ of mandate with the trial court to challenge the DMV hearing officer’s decision. After first noting that section 23152, subdivision (b) makes it a rebuttable presumption that a person was driving with a BAC of 0.08 percent or higher if so tested at that level or higher within three hours of driving (see Discussion, post), the trial court denied the writ, explaining that “[ejven assuming that petitioner Coffey rebutted [this] presumption . . . , there was sufficient evidence based on the blood-alcohol tests and the other circumstantial evidence based on the assessment, observations and tests by the arresting officers at the scene to support the DMV hearing officer’s decision under the weight of the evidence.” (Italics added.)
The Court of Appeal affirmed. In determining whether the trial court’s decision was supported by substantial evidence, the appellate court opined
Discussion
A. Background
The DMV suspended plaintiff’s license to drive pursuant to the “administrative per se” law, “under which a person arrested for driving under the influence of alcohol, and who is determined to have a prohibited amount of alcohol in his or her blood, must have driving privileges suspended prior to an actual conviction for a criminal offense.” (Lake, supra, 16 Cal.4th at p. 454.) As we explained in that case, “ ‘[t]he express legislative purposes of the administrative suspension procedure are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions.’ ” (Ibid.) “[T]he administrative per se laws were deemed necessary due to the time lag that often occurs between an arrest and a conviction for driving while intoxicated or with a prohibited BAC. During this interim period, arrestees who could eventually be convicted of an intoxication-related driving offense were permitted to continue driving and, possibly, endangering the public thereby. Moreover, without administrative per se laws, persons with extremely high BAC levels at the time of arrest could escape license suspension or revocation by plea bargaining to lesser crimes or entering pretrial diversion. Thus, by providing for an administrative license suspension prior to the criminal proceeding, the law affords the public added protection.” (Id. at pp. 454-455.)
Pursuant to the administrative per se law, “[a]fter either the arresting officer or the DMV serves a person with a ‘notice of an order of suspension or revocation of the person’s [driver’s license],’ the DMV automatically reviews the merits of the suspension or revocation. [Citation.] The standard of review is preponderance of the evidence [citation], and the department bears the burden of proof [citations].” (Lake, supra, 16 Cal.4th at p. 455.) A driver served with such a suspension notice is entitled to a hearing on request (§ 13558, subd. (a)), at which the only issues to be decided for drivers such
B. The Rebuttable Presumption in Section 23152
We first address whether the presumption created by section 23152, subdivision (b) controls this case. That provision states in part: “In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle 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.” Although the statutory language speaks in terms of a “prosecution,” several Courts of Appeal have held this presumption is not limited to criminal prosecutions but also applies in administrative license suspension proceedings. (See Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 236 [54 Cal.Rptr.2d 634], citing Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 740, fn. 9 [27 Cal.Rptr.2d 712], and Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 310-313 [13 Cal.Rptr.2d 830].)
Extending the reach of section 23152, subdivision (b)’s evidentiary presumption to administrative per se proceedings would be consistent with the legislative history of that provision. The need for the presumption “arose from the absence in ‘[e]xisting law’ of any ‘provision for the delay involved between the time a person is arrested for [driving under the influence] and when the chemical test for BAC is actually administered,’ of any ‘means to determine a person’s BAC at the time the person is actually driving the car,’ or of any ‘mention of time parameters for the administering of chemical tests and for their admission as [admissible] evidence into a court of law.’ (Health & Welf. Agency, Dept. of Alcohol & Drug Programs, Enrolled Bill Rep. for Sen. Bill No. 745 (1981-1982 Reg. Sess.) Sept. 1982, original italics.) Thus, in enacting the presumption, the Legislature intended (1) to ‘diminish the arguments that ha[d] arisen when extrapolating the [BAC] at the time of the test back to the time of the driving’ (Bus. & Transportation Agency, DMV, Enrolled Bill Rep. for Sen. Bill No. 745 (1981-1982 Reg. Sess.) Sept. 1982),
Consistent with the previously cited Court of Appeal cases, both parties assume section 23152’s presumption applies in administrative per se hearings. We need not resolve that question, however, because even were the presumption applicable, it was rebutted in this case. An explanation of how the presumption operates can be found in the Evidence Code. Section 601 of that code provides: “A presumption is either conclusive or rebuttable. Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof.” Vehicle Code section 23152, subdivision (b), by its terms, creates a rebuttable presumption, and we agree with the parties that it establishes a presumption affecting the burden of producing evidence, not the burden of proof. A statute transferring the burden of proof to a driver facing a criminal charge of drunk driving would raise serious constitutional questions (see Ulster County Court v. Allen (1979) 442 U.S. 140, 157 [60 L.Ed.2d 777, 99 S.Ct. 2213] [a permissive presumption is constitutional if, among other things, it “does not shift the burden of proof’]; see also People v. Gamache (2010) 48 Cal.4th 347, 376 [106 Cal.Rptr.3d 771, 227 P.3d 342] [rejecting claim that jury instruction “impermissibly alters the burden of proof,” explaining the “instruction does not establish an unconstitutional mandatory presumption in favor of guilt [citation] or otherwise shift or lower the prosecution’s burden of establishing guilt beyond a reasonable doubt”]), and although those concerns are inapplicable here because it is an administrative per se proceeding, neither party argues for a different construction. (See People v. Dubon (2001) 90 Cal.App.4th 944, 953 [108 Cal.Rptr.2d 914] [“When a presumption is established to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, it is a presumption affecting the burden of producing evidence.”].)
A rebuttable presumption requires the trier of fact, given a showing of the preliminary fact (here, that a chemical test result showed plaintiff had a BAC of 0.08 percent or more within three hours of driving), to assume the existence of the presumed fact (here, that plaintiff had been driving with a prohibited BAC) “unless and until evidence is introduced which would
Assuming the results of her breath and blood tests gave rise to a presumption she was driving with a BAC of 0.08 percent or more, plaintiff argues the testimony of her expert witness, Jay Williams, supplied the necessary contrary evidence sufficient to rebut the presumption. By contrast, the DMV argues Williams’s testimony was insufficient, arguing that evidence necessary to rebut the presumption must be substantial, i.e., “ ‘reasonable in nature, credible, and of solid value; it must actually be “substantial” proof of the essentials which the law requires in a particular case.’ ” Asserting the DMV hearing officer’s refusal to credit Williams’s views shows his testimony was insubstantial, the DMV argues his testimony was accordingly insufficient to rebut the statutory presumption.
The DMV misapprehends Evidence Code section 604. That section provides that evidence is sufficient to rebut a presumption if it “would support a finding of [the] nonexistence of’ the presumed fact. (Italics added.) The most reasonable meaning of this phrase is that if the predicate facts are found, Vehicle Code section 23152’s presumption will apply unless the driver presents evidence which, if believed, “would support a finding of [the] nonexistence of’ (Evid. Code, § 604) the presumed fact. This plain meaning of the statutory language is supported by the Assembly Committee on Judiciary’s comment on Evidence Code section 604, which states: “Such a presumption is merely a preliminary assumption in the absence of contrary evidence, i.e., evidence sufficient to sustain a finding of the nonexistence of the presumed fact. If contrary evidence is introduced, the trier of fact must weigh the inferences arising from the facts that gave rise to the presumption against the contrary evidence and resolve the conflict. For example, if a party proves that a letter was mailed, the trier of fact is required to find that the letter was received in the absence of any believable contrary evidence. However, if the adverse party denies receipt, the presumption is gone from the case. The trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the letter was received.” (Assem. Com. on Judiciary com., reprinted at 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 604, p. 59.)
C. The Circumstantial Evidence of Plaintiff’s Intoxication Was Relevant and Thus Admissible
Having found the statutory presumption in section 23152, subdivision (b), even if applicable, does not control this case, we turn to the main issue presented here: Did the DMV hearing officer properly admit and consider non-chemical-test evidence to reach her conclusion that plaintiff was driving with at least a 0.08 percent BAC?*
The crime of drunk driving is set forth in section 23152 and can be established in two ways: Subdivision (a) states that “[i]t is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” To prove a violation under subdivision (a), the People must present evidence the driver’s alcohol consumption impaired his or her ability to drive. (People v. McNeal (2009) 46 Cal.4th 1183, 1197 [96 Cal.Rptr.3d 261, 210 P.3d 420].) Section 23152, subdivision (b) offers an alternative method of proof; it states that “[i]t is unlawful for a person who has 0.0.8 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” To prove a criminal violation under subdivision (b), the People need not prove the accused’s driving ability was impaired or diminished, but only that the driver’s BAC reached or exceeded the prohibited level at the time the accused was driving.
Plaintiff argues reliance on the non-chemical-test circumstantial evidence was improper because such evidence cannot by itself establish whether her BAC was 0.08 percent, higher than 0.08 percent, or lower than that level. She cites to scientific evidence showing that physical manifestations of alcohol intoxication can occur at levels much lower than a BAC of 0.08 percent and that observable physical symptoms correlate poorly to actual BAC levels. She also argues that one study has shown that poor performance on field sobriety tests has a low correlation to whether a driver’s BAC is over 0.08 percent. (Hlastala et al., Statistical Evaluation of Standardized. Field Sobriety Tests (May 2005) 50 J. Forensic Science, No. 3, p. 662.)
Unmentioned is that some studies have reached a contrary conclusion. For example, the National Highway Traffic Safety Administration (NHTSA) released the results of a study in 1998 that evaluated the accuracy of the standardized field sobriety test (SFST) battery at BACs below 0.10 percent. (Stuster & Bums, Final Rep. to NHTSA, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent (1998).) The NHTSA’s study found that the battery of SFSTs, which includes three of the tests
We are not here attempting to resolve the scientific debate over the use of SFSTs to predict BAC. As plaintiff acknowledges, the test for admissibility of evidence is not a strict one: As a general matter, evidence may be admitted if relevant (Evid. Code, § 350), and “ ‘[rjelevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action” (id., § 210). “ ‘ “The test of relevance is whether the evidence tends, ‘logically, naturally, and by reasonable inference’ to establish material facts (People v. Wilson (2006) 38 Cal.4th 1237, 1245 [45 Cal.Rptr.3d 73, 136 P.3d 864].) “The trial court has broad discretion to determine the relevance of evidence [citation], and we will not disturb the court’s exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner....” (People v. Jones (2013) 57 Cal.4th 899, 947 [161 Cal.Rptr.3d 295, 306 P.3d 1136].)
Past cases applying this standard have found circumstantial evidence of intoxication may be admissible when later-administered chemical tests show a BAC exceeding the legal limit. In Burg v. Municipal Court, supra, 35 Cal.3d 257 (Burg), decided at a time when the BAC threshold for drunk driving was 0.10 percent,
Plaintiff would distinguish Burg, supra, 35 Cal.3d 257, as a case involving a criminal drunk driving prosecution, not an administrative per se matter, but if non-chemical-test circumstantial evidence of intoxication may be admissible in a criminal case where the People’s burden of proof is beyond a reasonable doubt, we see no reason why such evidence would be categorically inadmissible in an administrative proceeding where the People’s burden of proof is only a preponderance of the evidence. Decisions in the Courts of Appeal support this conclusion. Thus, in McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519 [7 Cal.Rptr.2d 18], the Court of Appeal considered whether sufficient evidence supported the suspension of a driver’s license under the administrative per se law. Citing Burg, the McKinney court noted that administration of a chemical test (blood, breath or urine) “is not the only means of establishing that a driver’s [BAC] was .08 or more. [¶] . . . [B]oth parties are free to introduce circumstantial evidence bearing on whether the driver’s [BAC] exceeded the permissible level. [Citation.] ‘Evidence regarding the manner in which a defendant drove, performed field sobriety tests, and behaved is admissible and relevant as tending to establish that he did or did not have a 0.10 [now 0.08] [BAC] while driving.’ ” (McKinney, at p. 526, fn. 6; see Jackson v. Department of Motor Vehicles, supra, 22 Cal.App.4th at p. 741 [“circumstantial evidence other than chemical test results may properly be admitted to establish a driver had the proscribed level of blood-alcohol at the time of the offense”]; People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 7 [262 Cal.Rptr. 378] [same].)
Plaintiff argues Burg, supra, 35 Cal.3d 257, is unpersuasive because, apart from the single sentence referencing non-chemical-test circumstantial evidence, the opinion does not elaborate on the use of such evidence to prove a driver’s BAC. But Burg's citation to Fuenning v. Superior Court, supra, 139 Ariz. 590 [680 P.2d 121] (Fuenning), following that sentence is significant.
Plaintiff argues Fuenning is neither controlling nor even on point because it did not address the issue before us in the instant case. Although Fuenning is an Arizona case and thus admittedly not controlling here (see Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1018 [47 Cal.Rptr.2d 478, 906 P.2d 440]), it persuasively explains why circumstantial evidence of intoxication, while not dispositive, may be relevant and thus admissible
The administrative per se scheme in section 13382 is triggered by a chemical test result showing a BAC of 0.08 percent or more, and we do not here confront a case in which the DMV failed to present such test results; indeed, the DMV produced the results of four such tests. In other words, neither the DMV hearing officer nor the trial court considered circumstantial evidence of intoxication in the absence of any chemical test results. Although we find non-chemical-test evidence of plaintiff’s intoxication may be relevant and thus admissible in the typical administrative per se proceeding triggered by a BAC of 0.08 percent or more to help connect those test results to a driver’s BAC at the time she was driving (subject, of course, to the hearing officer’s routine exercise of discretion), we would in any event affirm the hearing officer’s decision in this case because the non-chemical-test evidence was admissible to rebut plaintiff’s proffered defense that her BAC was low at the time she was driving and only later rose to exceed the legal limit. Her expert, Jay Williams, testified that, in his opinion, the four chemical test results indicated plaintiff’s BAC was rising at the time of the tests; from that supposition, he further deduced that plaintiff’s BAC was below the 0.08 percent threshold at the time she was driving. Even assuming that non-chemical-test evidence cannot by itself prove a driver’s exact BAC at the moment the driver is stopped by a police officer, in this case plaintiff’s erratic driving, outward appearance of substantial intoxication, implausible story of having just turned 21 years old, and having come from a bar without having imbibed alcohol at all, and her failure on multiple field sobriety tests, together tend to rebut Williams’s theory of a rising BAC and corroborate the BAC test results. For example, plaintiff’s extremely erratic driving, observed by Sergeant Martin from before the moment he first made contact with her, suggests she was quite intoxicated from that early point in the timeline and tends to refute the expert’s speculation that her BAC was low at the time she was driving, but rose to 0.08 percent and above only after she was stopped. Whether the circumstantial evidence of plaintiff’s intoxication was admitted to bolster the results of the chemical tests or merely to rebut plaintiff’s defense of a rising BAC, the hearing officer did not act in “an arbitrary, capricious or patently absurd manner” and thus did not abuse her broad discretion. (People v. Jones, supra, 57 Cal.4th at p. 947.)
Brenner v. Department of Motor Vehicles (2010) 189 Cal.App.4th 365 [116 Cal.Rptr.3d 716], cited by plaintiff, does not warrant a contrary result. In that case, an expert examined the maintenance records for the device used to measure the driver’s breath and opined that it produced
Having concluded the DMV hearing officer properly admitted the circumstantial, nontest evidence of plaintiff’s intoxication, we also conclude substantial evidence supported the trial court’s decision to deny writ relief, thereby sustaining the DMV hearing officer’s decision to suspend plaintiff’s license to drive. A driver whose license has been suspended under the administrative per se law can seek review of the DMV’s decision by seeking a writ of mandate in the trial court. “In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, ‘ “whether the weight of the evidence supported the administrative decision.” ’ ” (Lake, supra, 16 Cal.4th at p. 456.) Following the trial court’s denial of the writ, the scope of our review on appeal is limited: “[W]e ‘need only review the record to determine whether the trial court’s findings are supported by substantial evidence.’ [Citation.] ‘ “We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial'court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] 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.” ’ ” (Lake, supra, at p. 457.)
Applying this standard, we have no trouble concluding substantial evidence supported the trial court’s ruling, for it acted well within its
Conclusion
The judgment of the Court of Appeal is affirmed.
Cantil-Sakauye, C. J., Chin, J., Corrigan, J., Cuéllar, J., and Kruger, J., concurred.
All statutory references are to the Vehicle Code unless otherwise stated.
“ ‘Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotary. [Citation.] An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. [Citation.] Some investigators believe alcohol intoxication increases the frequency and amplitude of HGN and causes HGN to occur at a smaller angle of deviation from the forward direction.’ ” (People v. Leahy (1994) 8 Cal.4th 587, 592 [34 Cal.Rptr.2d 663, 882 P.2d 321].)
The “ ‘walk-and-tum 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.” (U.S. v. Stanton (9th Cir. 2007) 501 F.3d 1093, 1100.)
“Officers administering the Walk-and-Turn test observe the suspect’s performance for eight clues:
“• can’t balance during instructions;
“• starts too soon;
*1204 “• stops while walking;
“• doesn’t touch heel-to-toe;
“• steps off line;
“• uses arms to balance;
“• loses balance on turn or turns incorrectly; and,
“• takes the wrong number of steps.”
(Utah Prosecution Council, Driving Under the Influence Prosecution Manual (2007) ch. 8, p. 8 <http://www.sentencing.utah.gov/ProsecutionManual/chapter8.pdf> [as of Apr. 6, 2015] (Utah Prosecution Manual).) “Original research shows that if a suspect exhibits two or more of the clues, or cannot complete the test, the suspect’s BAC is likely to be above 0.10 [percent]. This criterion has been shown to be accurate 68 percent of the time.” (Ibid.)
In the “[o]ne-leg stand” test, after listening to the instructions, “the subject must raise one leg, either leg, with the foot approximately six inches off the ground, keeping raised foot parallel to the ground. While looking at the elevated foot, count out loud in the following manner:
“ ‘[0]ne thousand and one’, ‘one thousand and two’, ‘one thousand and three’ until told to stop. This divides the subject’s attention between balancing (standing on one foot) and small muscle control (counting out loud).
“The timing for a thirty-second period by the officer is an important part of the One-Leg Stand test. The original research has shown that many impaired subjects are able to stand on one leg for up to 25 seconds, but that few can do so for 30 seconds.
“One-Leg Stand is also administered and interpreted in a standardized manner. Officers carefully observe the suspect’s performance and look for four specific clues:
“• sways while balancing;
“• uses arms to balance;
“• hops;
“• puts foot down.
“Inability to complete the One-Leg Stand test occurs when the suspect:
“• puts the foot down three or more times, during the 30-second period;
“• cannot do the test.
“The original research shows that, when the suspect produces two or more clues or is unable to complete the test, it is likely that the BAC is above 0.10 [percent]. This criterion has been shown to be accurate 65 percent of the time.” (Utah Prosecution Manual, supra, ch. 8, at pp. 8-9 <http://www.sentencing.utah.gov/ProsecutionManual/chapter8.pdf> [as of Apr. 6, 2015].)
In the Romberg test, the driver is “asked to stand at attention, close his eyes, tilt his head back, and estimate the passage of 30 seconds.” (People v. Bejasa (2012) 205 Cal.App.4th 26, 33 [140 Cal.Rptr.3d 80].) The officer observes the driver’s “balance and his ability to accurately measure the passage of 30 seconds.” (Ibid.)
Pursuant to section 23612, subdivision (h), a PAS is an investigative tool used to determine whether there is reasonable cause for arrest. “[A] preliminary test is ‘distinguished from the chemical testing of a driver’s blood, breath or urine contemplated by the implied consent law [citation] which is administered after the driver is arrested, [and is] sometimes referred to as
“A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.” (§ 23612, subd. (a)(1)(A).) “The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and . . . [¶] . . . [¶] . . . suspension or revocation of the person’s privilege to operate a motor vehicle . . . .” (§ 23612, subds. (a)(1)(D), (e).)
Evidence Code section 664 provides in part: “It is presumed that official duty has been regularly performed.” Applied in this context, “Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of [California Code of Regulations] title 17. [Citations.] Test results from authorized laboratories, performed by public employees within the scope of their duties, are admissible under the public employee records exception to the hearsay rule. [Citations.] The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence. [Citation.] At this point, ‘faced with a report of chemical test results, the burden would be on the licensee to demonstrate that the test was not properly performed.’ ” (Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64-65 [126 Cal.Rptr.2d 327].)
Somewhat different rules apply to those under 21 years of age (§ 13557, subd. (b)(3)(C)(ii)), those driving commercial vehicles (id., subd. (b)(3)(C)(iv)), and those on probation for prior drunk driving convictions (id., subd. (b)(3)(C)(v)).
The Legislature might in the future wish to clarify whether it intends that the evidentiary presumption in section 23152 applies in administrative per se proceedings as well as in “prosecutions.”
Plaintiff notes the DMV hearing officer failed to submit to cross-examination so that it might be determined how she used the circumstantial evidence to reach her conclusion to reject the testimony of expert witness Jay Williams. This failure, she argues, violated her right to due process of law. Although it seems extremely dubious that plaintiff’s due process rights require the hearing officer to testify and submit to plaintiff’s cross-examination, the record in any event reveals no objection on this ground or request that the officer testify. Accordingly, plaintiff forfeited this claim.
We are not here concerned with the less typical administrative per se provisions applicable to underage or commercial drivers, or those on probation for drunk driving (see §§ 13353.2, subd. (a)(2) [person under 21 years old with a BAC of 0.01 percent or greater], 13353.2, subd. (a)(3) [person driving a vehicle requiring a commercial driver’s license with a BAC of 0.04 percent or greater], 13353.2, subd. (a)(4) [person on probation for drunk driving with a BAC of 0.01 percent or greater]), or to adults who refuse to submit to, or complete, a chemical test as requested by a law enforcement officer (§ 13353) or to underage drivers (§ 13388) or adults on probation for drunk driving (§ 13389) who refuse to submit to .a preliminary alcohol screening (§ 13353.1, subd. (a)).
See former section 23152, subdivision (b), as amended by Statutes 1982, chapter 1337, section 1, page 4961. The administrative per se law was enacted several years later, in 1998. (See Stats. 1998, ch. 118, § 4, pp. 757-758.)
Fuenning was later superseded by statute on a different point of law. (See State ex rel. McDougall v. Superior Court (1995) 181 Ariz. 202, 205-206 [888 P.2d 1389, 1392-1393].) This subsequent history does not affect Fuenning's discussion of the admissibility of circumstantial evidence of intoxication.
To the extent plaintiff argues Fuenning, supra, 139 Ariz. 590, did not address the admissibility issue, she is simply incorrect.
Concurrence Opinion
Concurring. — I write separately to clarify the limited way in which evidence of behavioral impairment was relevant in this case to determining whether the driver’s blood-alcohol concentration (BAC) was 0.08 percent or higher at the time of arrest.
“ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Evidence that a driver’s behavior is not impaired tends to prove that her BAC was below 0.08 percent because we can rationally surmise, given the Legislature’s choice of the 0.08 percent BAC threshold, that a BAC of 0.08 percent is associated with an unsafe degree of impairment. But the converse is not true. Absent foundational evidence, a driver’s impairment does not generally tend to show that her BAC was 0.08 percent or higher because we have no way of correlating a specific type or degree of impairment with a particular BAC in a close case. The fact that 0.08 percent BAC is a threshold associated with an unsafe degree of impairment does not imply that no impairment occurs below that threshold. Without evidence that correlates particular behavioral impairments with particular BAC levels, signs of impairment do not generally establish that it is more likely a driver’s BAC is 0.08 percent as opposed to 0.06 or 0.07 percent. In other words, signs of impairment do not generally have a tendency in reason to prove a BAC of 0.08 percent or greater.
Today’s opinion properly refrains from suggesting that there is a correlation between evidence of impairment, including field sobriety test results, and a BAC of 0.08 percent or greater. The court cites a study commissioned by the National Highway Traffic Safety Administration (NHTSA) reporting that at least some field sobriety tests, properly administered, may accurately measure a BAC of 0.08 percent or greater. (Stuster & Burns, Final Rep. to NHTSA, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent (1998) p. i.) But today’s opinion is careful to express no view about the merits of these claims (maj. opn., ante, at pp. 1212-1213), and other courts have questioned them. In U.S. v. Horn (D.Md. 2002) 185 F.Supp.2d 530, for example, the court undertook an extensive review of expert testimony and academic literature critiquing an earlier NHTSA study and concluded that “presently there is insufficient data to support these claims of accuracy” of field sobriety tests in predicting BAC. (Id. at p. 556.)
This lack of correlation between evidence of impairment and BAC does not mean that such evidence is always irrelevant. As the New Mexico Supreme Court has explained, “behavioral evidence by itself cannot be sufficient to show the required nexus between a BAC test and an earlier BAC. It may, however, have limited relevance when the factors that underlie the shape of the concentration time curve [showing the level of alcohol absorption over time] are subject to conflicting testimony.” (State v. Day (2008) 143 N.M. 359 [176 P.3d 1091, 1100].)
That is precisely how such evidence is relevant in this case. The results of the four tests of Ashley Jourdan Coffey’s BAC indicated that it was rising, and the parties offer competing explanations. Coffey argues that her BAC was in fact rising and that her BAC must have been below 0.08 percent at the time of her arrest. By contrast, the Attorney General attributes the rising BAC test results to the test’s margin of error (which would explain the 0.01 percent rise within three minutes between the first and second breath tests) and to the fact that the last two tests were blood tests rather than breath tests and thus produced slightly different results. The Attorney General asserts that the testimony of Coffey’s expert, Jay Williams, lacked key findings to support a rising BAC theory, such as when Coffey had her last drink before getting behind the wheel, her food intake, her weight, and other factors. As the Department of Motor Vehicles (DMV) hearing officer concluded, Williams did not show that other experts in the scientific community had reached similar conclusions based on facts similar to those in this record.
Because the evidence of Coffey’s impairment was relevant in the limited way just described, and because the evidence is sufficient to support the determinations of the DMV hearing officer and the trial court that Coffey drove with a BAC at or above 0.08 percent, I concur in the judgment.
Appellant’s petition for a rehearing was denied May 20, 2015.