Opinion
D057532
12-09-2011
CARA LYN MARIE GRECO, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2010-00086798-CU-WM-CTL)
APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed.
The Department of Motor Vehicles (DMV) suspended Cara Greco's driving privileges for four months based on blood test results showing she drove with a blood alcohol level of .11 percent. (Veh. Code, § 13353.2(a)(1).) Greco unsuccessfully challenged the suspension at the administrative level and by a writ petition in the superior court. She appeals from the judgment denying her writ petition.
All further statutory references are to the Vehicle Code unless otherwise specified. For ease of reference, when referring to the Vehicle Code, we shall place subdivision letters in parenthesis without including the word "subdivision."
Greco raises two contentions. First, Greco contends there was insufficient evidence that she drove with an elevated blood alcohol level because the laboratory report contained an erroneous arrest date. The contention is without merit. Substantial evidence supports the superior court's finding that the erroneous date was a clerical error and the laboratory report was otherwise accurate and reliable.
Second, Greco contends the court erred in refusing to reinstate her license based on the criminal court's dismissal of a criminal charge alleging she drove with a blood alcohol level of .08 percent or more (§ 23152(b)). Greco relies on section 13353.2(e), which requires the DMV to reinstate driving privileges if the person was "acquitted" of criminal charges under section 23152(b). Section 13353.2(e) is inapplicable here. Under well-settled law, the court's dismissal of Greco's section 23152(b) charge was not equivalent to an acquittal under section 13353.2(e).
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 27, 2008 at about 8:35 p.m., California Highway Patrol (CHP) Officer Harvey stopped Greco for unsafe driving on the freeway. When talking with Greco, Officer Harvey observed symptoms of intoxication, including bloodshot and watery eyes, the odor of an alcoholic beverage, and slurred speech. After Greco performed unsatisfactorily on several field sobriety tests, Officer Harvey arrested Greco for driving under the influence.
Officer Harvey then took Greco to the Sonoma County jail where a paramedic withdrew a vial of blood from Greco's left arm at 9:23 p.m. Later that evening, Officer Harvey prepared a report on a DMV form and signed the report under penalty of perjury. After describing Greco's objective symptoms of intoxication, Officer Harvey stated: "I advised [Greco] of [the implied consent law]. She chose to take a blood test. I transported Greco to the Sonoma County Jail where she submitted to a blood test. . . . Paramedic Heyniger withdrew a vial of blood from the subject's left arm. . . . Greco was [then] booked [into] the Sonoma County Jail . . . ."
The next day, Officer Harvey prepared a five-page arrest report, in which he similarly described Greco's intoxication symptoms and the blood draw from Greco's arm. In his report, Officer Harvey stated that Greco's blood sample was placed in the "CHP evidence locker" and then "forwarded to [the Department of Justice]." The arrest report states the identification on the blood sample was "Greco, Cara."
About one week later, on December 4, a senior criminalist from the California Department of Justice, Bureau of Forensic Services (DOJ) prepared a report of Greco's blood sample (Forensic Analysis report). The Forensic Analysis report stated the analysis of Greco's blood sample, completed the day before, showed Greco's blood sample contained .11 percent alcohol. The report accurately identified "CARA LYN MARIE GRECO" as the subject of the blood sample and correctly identified her driver's license number. The report also contained the same agency case number that was on the arrest report prepared by Officer Harvey and on Greco's arrest citation. However, the Forensic Analysis report misidentified the "offense date" as "11/26/2008," which is one day before the actual offense date of November 27, 2008. (Capitalization omitted.)
The Forensic Analysis report also stated the DOJ received two items of evidence from the CHP office: (1) "One evidence envelope containing one tube of blood from the subject [identified as CARA LYN MARIE GRECO]"; and (2) "One tube of blood from the subject [identified as CARA LYN MARIE GRECO]." The report was signed under penalty of perjury by the senior criminalist, who stated he is employed by the DOJ, the equipment used in the analysis was in proper working order, and the laboratory met the state regulatory guidelines pertaining to forensic alcohol analysis.
Based on the Forensic Analysis report, the DMV notified Greco her license would be suspended for four months. Greco challenged the suspension and requested a DMV hearing.
Meanwhile, criminal charges were brought against Greco for violating sections 23152(a) and 23152(b). Section 23152(a) prohibits a person from operating a vehicle if the person's ability to operate the vehicle has been impaired by alcohol or drugs; whereas section 23152(b) prohibits a person from driving with a specified concentration of alcohol in the body. After a trial, the jury acquitted Greco of the section 23152(a) charge, but could not reach a verdict on the section 23152(b) charge. The section 23152(b) charge was then dismissed.
Section 23152(a) states: "It is unlawful for any person who is under the influence of any alcoholic beverage or drug . . . to drive a vehicle." Section 23152(b) states: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. . . ."
Three months later, an administrative hearing was held on Greco's challenge to the driver's license suspension. At the hearing, the DMV presented documentary evidence to support the suspension, including: (1) Officer Harvey's sworn statement on the DMV form; (2) Officer Harvey's arrest report; and (3) the Forensic Analysis report. Greco's attorney objected to the admission of the Forensic Analysis report, arguing there was an insufficient chain of custody because the report identified the wrong offense date. The hearing officer overruled the objection. Greco's counsel then indicated he would not be presenting any affirmative evidence, but argued the suspension was invalid because the wrong offense date created doubt as to whether the blood alcohol test was performed on Greco's blood.
After taking the matter under submission, the hearing officer upheld the suspension. The hearing officer found the evidence established each of the elements required for a driver's license suspension, including that Greco was driving a motor vehicle with a blood alcohol concentration of at least .08 percent.
Greco then petitioned for a writ of mandate in the superior court, challenging the hearing officer's factual finding that Greco had a blood alcohol level of at least .08 at the time of the arrest. She argued that because the wrong date was on the Forensic Analysis report, the DMV did not meet its burden to show her blood alcohol level. Greco also argued the suspension was improper because she was essentially acquitted of the section 23152(b) criminal charge and thus fell within an exception set forth in section 13353.2(e). In support of this argument, Greco presented her counsel's letter to the DMV stating she was acquitted of the section 23152(a) charge and "the jury was dead locked [sic] ten to two for acquittal on the 23152 (b) count."
After a hearing, the trial court entered a judgment denying the petition and reimposing the four-month suspension. The trial court found the wrong date on the Forensic Analysis report was a "clerical error" and concluded Greco's acquittal argument was without merit based on settled California law.
Greco appeals.
DISCUSSION
I. Sufficiency of the Evidence
Greco contends the court erred in relying on the Forensic Analysis report to conclude she had an elevated blood alcohol level.
A. Governing Law and Review Standards
Under section 13353.2(a)(1), the DMV "shall" suspend the driving privilege of an adult who operated a vehicle with a blood alcohol level of .08 percent or more. The driver then has a right to challenge the suspension at an administrative hearing. (Lake v. Reed (1997) 16 Cal.4th 448, 456 (Lake).) At the hearing, the DMV has the burden to show by a preponderance of the evidence: (1) the arresting officer had reasonable cause to believe the person was driving; (2) the person was arrested; and (3) the person was driving with a blood alcohol level of at least .08 percent. (§ 13557(b)(2); Lake, supra, 16 Cal.4th at p. 456; Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232 (Manriquez).)
To meet its initial burden, the DMV may rely on documentary evidence and invoke the Evidence Code section 664 presumption. (Manriquez, supra, 105 Cal.App.4th at pp. 1232-1234.) " 'Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the [applicable] regulations and guidelines . . . . [Citations.] . . . The recorded test results are presumptively valid and the DMV is not required to present [testimony] or additional [documentary] evidence.' " (Id. at p. 1232; Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64-65.)
Once the DMV establishes its prima facie case by presenting an official document showing the driver's blood alcohol level, "the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. [Citations.] 'The licensee must show, "through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed. . . ." [Citation.] Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation.' " (Manriquez, supra, 105 Cal.App.4th at p. 1233.)
A driver challenges a hearing officer's determination by filing a writ of mandate petition in the superior court. (See § 13559.) In ruling on the petition, the superior court must determine, based on the exercise of its independent judgment, whether the weight of the evidence supports the administrative decision. (Lake, supra, 16 Cal.4th at p. 456.) " 'In exercising its independent judgment, 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.' [Citation.]" (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 73, 82.)
On appeal, we apply a substantial evidence review to the trial court's findings. (Lake, supra, 16 Cal.4th at p. 457.) We resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision. (Ibid.) '' ' ''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. [Citation.]'' ' '' (Ibid.)
B. Analysis
On appeal, Greco raises a sufficiency of the evidence challenge to the trial court's finding that she drove with a blood alcohol content of .08 percent or higher. Specifically, Greco argues the DMV could not rely on the Evidence Code section 664 presumption to establish her blood alcohol level because there was an incorrect arrest date on the Forensic Analysis report. This argument is without merit.
The trial court found the incorrect date was a clerical error and the error did not show any irregularity in the testing or the chain of custody procedures. The court's finding was supported by the evidence. In the Forensic Analysis report, the criminologist identified specific and accurate information about Greco, including her full name, the arrest report number, and her driver's license number. The only basis for the criminologist's knowledge of these detailed facts would have been Greco's identifying information on the blood sample tube and/or its envelope. Additionally, the arrest report to which the lab report refers contains specific information showing that Greco's blood was drawn within 40 minutes of her arrest and that the evidence was identified with Greco's name, placed in the "CHP evidence locker," and then "forwarded to DOJ." These facts provide sufficient information to show a proper chain of custody that the tested blood came from Greco's blood draw. (See Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 390.)
Once the court concluded (based on substantial evidence) that the arrest date on the Forensic Analysis report was a clerical error, the trial court had a reasonable basis to conclude the DMV met its initial burden to produce a foundational showing necessary for the admission of the blood-alcohol tests. Because Greco did not submit any evidence to rebut this presumption the court properly found in the DMV's favor on this issue.
We reject Greco's argument that the Evidence Code section 664 presumption is inapplicable if there is any incorrect information on the laboratory report, regardless of the nature of the discrepancy. The key issue is whether the claimed inaccuracy affects the reliability and trustworthiness of the report. Here, the trial court had a substantial basis to conclude the clerical error did not affect the accuracy of the reported results.
In this regard, the decisions cited by Greco are factually inapposite. (See, e.g., Robertson v. Zolin (1996) 44 Cal.App.4th 147 (Robertson); Coombs v. Pierce (1991) 1 Cal.App.4th 568 (Coombs).) For example, in Robertson, the DMV produced a computer generated document reflecting information about three breath tests administered by the arresting officer. (Robertson, supra, at p. 150.) The printout contained a handwritten notation from a laboratory technician that the test was " 'not valid.' " (Ibid.) The trial court made a factual finding that the notation cast doubt on the reliability of the tests and thus found an insufficient basis to uphold the suspension. (Id. at pp. 150-153.) The appellate court found substantial evidence to support this conclusion, explaining that although the handwritten notation and other related facts "did not affirmatively establish the test results were unreliable, they constitute sufficient evidence to support the trial court's finding official testing standards were not observed." (Id. at p. 153.)
In Coombs, the plaintiff produced evidence showing the laboratory was not authorized to utilize the breath test equipment that produced the blood alcohol result, and the DMV did not dispute this evidence. (Coombs, supra, 1 Cal.App.4th at pp. 580-581.) Additionally, none of the other prerequisites for breathalyzer test reliability were reflected on the report. (Id. at p. 580.) On this record, the court found the plaintiff rebutted the inference that the test was properly administered, requiring the DMV to introduce independent evidence of reliability. (Id. at pp. 576-581.)
This case is different from Robertson and Coombs because the Forensic Analysis report affirmatively showed the laboratory complied with official testing standards and chain of custody requirements, and the court found the erroneous information about the arrest date did not undermine this showing. As an appellate court, we do not reweigh the evidence; our task is to determine whether sufficient evidence supports the trial court's finding. (Lake, supra, 16 Cal.4th at p. 457.)
We also reject Greco's argument that the Forensic Analysis report was inadmissible hearsay. A DMV hearing on a license suspension "need not be conducted according to technical rules relating to evidence and witnesses . . . . Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs . . . ." (Gov. Code, § 11513, subd. (c); MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 156; Lake, supra, 16 Cal.4th at p. 458.) Under this rule, numerous courts have upheld the admissibility of a report from a licensed forensic laboratory if the report was signed by a person with firsthand knowledge and was prepared at or near the time the test was performed. (See Burge v. Department of Motor Vehicles, supra, 5 Cal.App.4th at p. 390.) The court here did not abuse its discretion in finding the information in the report met these standards and was trustworthy and reliable.
II. Acquittal Issue
Greco next contends the court erred in refusing to reinstate her license based on the court's dismissal of the section 23152(b) charge after her criminal trial. Greco relies on section 13353.2(e).
Section 13353.2(e) states: "If a person is acquitted of criminal charges relating to a determination of facts under [section 13352.2(a)], the [DMV] shall immediately reinstate the person's privilege to operate a motor vehicle if the [DMV] has suspended it administratively . . . ." The facts considered in suspending a license under section 13353.2(a) include: (1) whether the person was driving a motor vehicle; and (2) whether the person was driving with a blood alcohol content of .08 percent or more. (§§ 13353.2(a), 13557(b)(2), 13558(c)(2).) Section 23152(b) provides: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle."
It is settled that under section 13353.2(e) when a person is "acquitted" of section 23152(b) charges, the DMV must reinstate driving privileges. (Claxton v. Zolin (1992) 8 Cal.App.4th 553, 561 (Claxton).) However, when a person is acquitted of section 23152(a), the acquittal does not trigger a reinstatement because section 23152(a) does not require a particular blood alcohol level. (See Claxton, supra, 8 Cal.App.4th at p. 560; Helmandollar v. Department of Motor Vehicles (1992) 7 Cal.App.4th 52, 54-57; see also Gikas v. Zolin (1993) 6 Cal.4th 841, 855-856 (Gikas).)
The only evidence in the record regarding Greco's criminal trial is: (1) a May 28, 2009 jury verdict in which the jury found Greco "Not Guilty" of violating section 23152(a); and (2) a letter from Greco's counsel to the hearing officer stating that "the jury was [deadlocked] ten to two for acquittal on the [section] 23152(b) count." (Italics added.) These facts are insufficient to show the acquittal exception was applicable.
The courts have consistently held that to establish the section 13353.2(e) acquittal exception based on a section 23152(b) favorable disposition, the driver must establish the favorable disposition was on the merits of the section 23152(b) charge. (See Gikas, supra, 6 Cal.4th at pp. 852-857; Mosier v. Department of Motor Vehicles (1993) 18 Cal.App.4th 420, 424-426; Snow v. Department of Motor Vehicles (1993) 17 Cal.App.4th 230, 233 (Snow); Claxton, supra, 8 Cal.App.4th at pp. 561-562; Agresti v. Department Motor Vehicles (1992) 5 Cal.App.4th 599, 604-607.)
In Snow, this court applied this rule to hold a dismissal of a section 23152(b) charge after the jury deadlocked on the charge was not an "acquittal" within the meaning of section 13353.2(e). (Snow, supra, 17 Cal.App.4th at pp. 232-233.) In Snow, a driver was charged with violating section 23152(a) and section 23152(b). (Snow, supra, at p. 232.) The jury was unable to reach a verdict and the court dismissed both charges under Penal Code section 1385. (Snow, supra, at p. 232.) The driver argued "the dismissal of the criminal charges was tantamount to an acquittal" and therefore she was entitled to reinstatement of her driving privileges under section 13353.2(e). (Snow, supra, at p. 232.) In rejecting this argument, we explained " '[t]he term "acquittal" [within the meaning of section 13353.2(e)] has been consistently held to refer to a disposition of a criminal case following an adjudication on the merits,' " and a dismissal after a jury is unable to reach a verdict does not establish an adjudication on the merits. (Id. at p. 233, italics added.) We noted that under Penal Code section 1385, a court has the authority to dismiss a charge regardless of the merit of the claim if the dismissal is "in the interest of justice." (Snow, supra, at p. 233; see People v. Hatch (2000) 22 Cal.4th 260, 273.)
Penal Code section 1385 states that a "judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."
Greco argues this case is distinguishable from Snow because the prosecutor in her case "actually requested" the dismissal of the section 23152(b) charge. There is no factual basis supporting this argument. The only evidence of the dismissal was Greco's counsel's letter which stated the section 23152(b) charge was dismissed after the jury deadlocked on the charge. This letter contains no information that the prosecutor requested the dismissal, nor is there any other evidence in the record supporting this fact. We therefore need not reach Greco's legal argument that when a court dismisses a charge under Penal Code section 1385 based on a prosecutor's request, the dismissal is necessarily a determination on the merits.
Even if we were to reach the argument, we would find it without legal merit. Greco offers no authority to show that a prosecuting attorney's request for a dismissal of a charge is necessarily equivalent to a factual determination on the merits. As with a court's dismissal on its own motion, a prosecutor can request a court to dismiss a claim for many reasons, not solely based on the prosecutor's view of the merits of the claim. In this regard, Greco's reliance on People v. Hatch, supra, 22 Cal.4th 260 is misplaced. Hatch held that when a court dismisses an action under Penal Code section 1385 "in the furtherance of justice," the dismissal "should not be construed as an acquittal for legal insufficiency" because the dismissal can be based on numerous reasons unrelated to whether a trier of fact would find the defendant guilty beyond a reasonable doubt. (Hatch, supra, at p. 273.) We reject Greco's argument that the rationale underlying this holding is inapplicable when a prosecutor requests the court to dismiss the charge.
At oral argument, Greco's counsel asserted it would be a better policy to treat a dismissal of criminal charges as equivalent to an acquittal under section 13353.2(e). He argued that because a criminal defendant has no control over whether there will be a retrial after a jury is deadlocked, it is unfair that the dismissal decision can be used to preclude the defendant from obtaining the benefits of section 13353.2(e). Greco's policy arguments should be directed to the Legislature, rather than the courts. Our role is to interpret the statutes as they are written, and not to weigh the policy implications of a particular law.
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DISPOSITION
Judgment affirmed.
HALLER, J. WE CONCUR:
MCCONNELL, P. J.
IRION, J.