Opinion
A098597.
7-15-2003
ELEAZAR GARCIA, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.
The Department of Motor Vehicles (DMV) appeals from a judgment granting a petition for writ of mandate setting aside its suspension of Eleazar Garcias drivers license for driving under the influence of alcohol. The suspension was based on a DMV lab report indicating Garcias blood-alcohol level. In issuing the writ, the court deemed that lab report inadmissible hearsay. The DMV asserts that the "official records" exception to the hearsay rule found in Evidence Code section 1280 and section 664s presumption that official duty has been regularly performed, combine to allow admission of the lab report. We disagree and affirm the judgment.
I. BACKGROUND
Law enforcement detained Garcia at 6:01 p.m. on May 31, 2001, for driving at excessive speed and failure to yield immediately. Arrested after exhibiting signs of intoxication, Garcia submitted to a "blood test" at 6:35 p.m. A "Senior Criminalist" at the Department of Justice Bureau of Forensic Services analyzed Garcias blood sample on June 6, 2001. The criminalists "Forensic Alcohol Analysis Report" indicated that Garcias blood contained "0.16% (W/V) alcohol," twice the legal limit.
The DMV held an administrative hearing on July 17, 2001, to determine whether it should suspend Garcias drivers license. At the hearing, the DMV submitted the criminalists report to satisfy its burden of showing that Garcia was driving with a blood-alcohol level of 0.08% or higher. Garcia unsuccessfully objected on hearsay grounds to admission of the report. The DMV suspended his license on August 11, 2001. Garcia then filed a petition for a writ of mandate to set aside the suspension, renewing his hearsay objection to the lab report. The court agreed that the report was inadmissible, and issued the writ.
II. DISCUSSION
In an administrative proceeding, hearsay evidence " shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. " (Lake v. Reed (1997) 16 Cal.4th 448, 458, 940 P.2d 311, quoting Gov. Code, § 11513, subd. (c).) Therefore, as hearsay, a forensic alcohol analysis may provide proof of ones blood alcohol level at a DMV administrative hearing only if it falls within one of the exceptions to the general rule excluding such evidence. (Shea v. Department of Motor Vehicles (1998) 62 Cal.App.4th 1057, 1059.) The DMV contends that the lab report here falls under the exception codified in section 1280, which makes admissible evidence otherwise excluded by the hearsay rule where the writing (a) "was made by and within the scope of duty of a public employee," (b) "at or near the time of the act, condition, or event," and (c) "the sources of information and method and time of preparation were such as to indicate its trustworthiness." ( § 1280, subds. (a)-(c).) The DMV challenges the courts conclusion that the lab report here was not "made by and within the scope of duty of a public employee."
As the proponent of the lab report, the burden of "establishing the necessary foundation for its admission" belongs to the DMV. (Shea v. Department of Motor Vehicles, supra, 62 Cal.App.4th at p. 1059.) Section 664 states that "it is presumed that official duty has been regularly performed." The DMV argues section 664 satisfies its burden by creating a presumption that the criminalist performed his official duties "in a manner that complied with all relevant laws and regulations." The DMV contends this presumption then shifted the burden to Garcia to show that the lab report was not "made by and within the scope and duty of a public employee." The Court of Appeal for the Sixth Appellate District recently rejected this argument, on identical facts, in Furman v. Department of Motor Vehicles (2002) 100 Cal.App.4th 416. We agree with the result in Furman.
Courts have allowed section 664s presumption to satisfy the foundational requirements for the official records exception. (Furman v. Department of Motor Vehicles, supra, 100 Cal.App.4th at p. 422.) However, it must be shown that " "an official dutyexists to make an accurate statement." (People v. Martinez (2000) 22 Cal.4th 106, 130, fn. 8, 990 P.2d 563, italics added.) In other words, an individual must have an "official duty" to perform a task before he or she can be presumed to have performed it regularly. (Furman v. Department of Motor Vehicles, supra, at p. 422.) Therefore, if the criminalist had an "official duty" to analyze blood alcohol levels, section 664 would create a presumption that the report "satisfies the foundational requirements of the official records exception." (People v. Martinez, supra, at p. 125.)
The DMV here offered no evidence that performing blood alcohol tests is an "official duty" of criminalists. Additionally, as noted by the Furman court, the "Criminalist" title does not carry with it an inference that its holder "had an official duty to perform and record the results of a forensic alcohol analysis." (Furman v. Department of Motor Vehicles, supra, 100 Cal.App.4th at p. 422.) This is true because title 17 of the California Code of Regulations, which sets forth the procedures and requirements for forensic alcohol testing, "expressly specifies those who are authorized to perform forensic alcohol analysis." (Furman, at p. 422.) "Forensic alcohol analysis shall be performed only by persons who meet the qualifications set forth in these regulations for forensic alcohol supervisors, forensic alcohol analysts, or forensic alcohol analyst trainees [working under the supervision of a forensic alcohol supervisor or forensic alcohol analyst]." (Cal. Code Regs., tit. 17, § 1216.) Therefore, while title 17 does not necessarily preclude a criminalist from having the official duty of performing forensic alcohol analysis, it does not support an inference of such a duty. Quite simply, the DMV needed to provide something more than the signature of a criminalist to support the proposition that section 1280 is applicable because its lab report was prepared according to an official duty. (Furman v. Department of Motor Vehicles, supra, at p. 423.)
Although we thus agree with Furmans result, we are not persuaded by its dicta suggesting "Title 17 expressly rebuts any inference that a Criminalist has an official duty to perform a Forensic Alcohol Analysis. " (Furman v. Department of Motor Vehicles, supra, 100 Cal.App.4th at p. 422.) In fact, title 17 states only that those who perform the analysis must meet the qualifications of a forensic alcohol analyst, forensic alcohol supervisor, or trainee under supervision. (Cal. Code Regs., tit. 17, § 1216.) It does not, therefore, rebut any inferences regarding criminalists. Instead it simply does not provide any inferences regarding that job title.
The ultimate result in Furman, however, is well supported. In Shea v. Department of Motor Vehicles, supra, 62 Cal.App.4th 1057, a forensic alcohol analyst trainee signed a forensic alcohol analysis that lacked any indication of whether the trainee had been supervised. Under title 17 only a supervised trainee has an official duty to conduct the analysis. (Cal. Code Regs., tit. 17, § 1216.) Although no evidence indicated the trainee was not supervised-just as no evidence here indicates the criminalist did not have the requisite official duty-the court refused to allow the DMV to rely on section 1280s exception. (Shea v. Department of Motor Vehicles, supra, at p. 1061.) The same conclusion was reached on similar facts in Manning v. Department of Motor Vehicles (1998) 61 Cal.App.4th 273. Therefore, a requirement that a lab report either supports an inference on its face of preparation in accordance with official duty, or be supplemented with affirmative evidence indicating as much, imposes no unprecedented burdens on the DMV.
Nor does such a requirement impose any onerous burdens on the DMV. Indeed, the record contains a DMV form, unused in this case, wherein pre-printed language requires the test administrator to certify that "blood or urine analysis was performed during the regular course of [his or her] duties."
The DMV primarily relies on three cases in support of its contention that Furman "is contrary to well-established precedent." None support its position. Indeed, while Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348, exemplifies section 664s ability to "satisfy the DMVs burden of proving that appropriate procedures have been properly performed," the facts of that case differ from those in Furman and here in one important way. Specifically, Petricka involved the validity of a blood analysis performed by an alcohol analyst. That the analysis was part of the analysts "official duties" was not in controversy. Therefore, section 664 allowed a presumption that the analyst administered the test properly. (Petricka, at p. 1351.) The crux of the issue here, of course, is whether a criminalist had the official duty of conducting the analysis. For this reason Petricka is distinguishable.
The DMVs reliance on Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384 is similarly misplaced. The distinction is clear between the recognition in that case that "the DMV need not present foundational evidence that . . . the operator was competent and qualified" (id. at p. 389), and the requirement that the existence of an official duty be established before section 664s presumption takes hold. Simply put, one may be competent and qualified without having an official duty and vice versa.
Finally, the DMV clings to the statement in Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 141, that "an official duty is imposed upon law enforcement agencies and their officers and employees . . . to perform blood-alcohol analyses by methods devised to assure reliability." (Italics added.) According to the DMV, it follows that section 664 provides the foundation for section 1280s exception because it creates a presumption that the DMV performed its official duty regularly. The first flaw in this argument is the fact that the above quote is dicta not relevant to the Davenport courts holding. That case involved the validity of a blood alcohol test conducted by a police officer with a clear official duty. (Davenport, at p. 142.) As such, the presence of an official duty on the part of the agency as a whole did not factor into the courts decision. (Id. at p. 143.)
Moreover, section 664s presumption that a "public officer who has an official duty to make an accurate statement will do so" (Shea v. Department of Motor Vehicles, supra, 62 Cal.App.4th at p. 1061) has never been extended beyond public officers to include entire agencies. Section 1280 provides an exception to the hearsay rule only where "writings admitted into evidence under [it] bear indicia of trustworthiness." (Davenport v. Department of Motor Vehicles, supra, 6 Cal.App.4th at p. 143.) Courts have found the "trustworthiness" requirement satisfied by section 664s presumption of "regular performance of official duty" where "the writing is based upon the direct observations of a public employee who has a duty to observe the facts and report and record them correctly." (Davenport, at p. 143.) The logic behind this reasoning is that when an individual has an official duty " to make an accurate statement . . . this special and weighty duty will usually suffice as a motive to incite the officer to its fulfillment. " (Fisk v. Department of Motor Vehicles (1981) 127 Cal. App. 3d 72, 78-79, 179 Cal. Rptr. 379, quoting 5 Wigmore, Evidence (Chadbourn rev. ed. 1974) § 1632, p. 618.) In other words, because a public officer has an "official duty" to perform a task, " the great probability is that he does his duty and makes a correct statement. " (Ibid.) Were we to conclude that the same presumption holds for the entire agency, all actions within the scope of an agencys official duties would be presumed valid. No authority supports this broad notion. (See Furman v. Department of Motor Vehicles, supra, 100 Cal.App.4th at p. 416 [report inadmissible under sections 1280 and 664 despite agencys official duty]; Manning v. Department of Motor Vehicles, supra, 61 Cal.App.4th at p. 273 [same]; Shea v. Department of Motor Vehicles, supra, 62 Cal.App.4th at p. 1057 [same].)
III. CONCLUSION
The judgment is affirmed.
We concur: Sepulveda, J., and Rivera, J. --------------- Notes: All further statutory references are to the Evidence Code unless otherwise indicated.