Bracamontes v. Dept. of Motor Vehicles CA4/1 ( 2022 )

Filed 2/18/22 Bracamontes v. Dept. of Motor Vehicles CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALFREDO BRACAMONTES, D078298
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2019-00043754-CU-WM-CTL)
DEPARTMENT OF MOTOR
VEHICLES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Affirmed.
A.P. Zmurkiewicz for Plaintiff and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Senior Assistant
Attorney General, Celine M. Cooper and Vanessa Whang Mott, Deputy
Attorneys General, for Defendant and Respondent.
Alfredo Bracamontes appeals from a judgment denying his petition for
writ of mandate to set aside an order of the Department of Motor Vehicles
(DMV) suspending his driving privileges for four months under Vehicle Code
sections 13353.2 and 13353.3, subdivision (b)(1) for driving a vehicle when he
had more than .08 percent by weight of alcohol in his blood.
Bracamontes contends the administrative hearing officer wrongly
excluded documents and testimony showing the phlebotomist who drew his
blood was not properly evaluated and supervised under the applicable
statutes and regulations, including Vehicle Code section 23158 and California
Code of Regulations, title 17, section 1215 et seq.; therefore, the Evidence
Code section 664 presumption that official duty was regularly performed was
rebutted, and his blood test results were inadmissible because they lacked a
proper foundation of scientific reliability.
This court’s recent decision in Gerwig v. Gordon (2021) 61 Cal.App.5th
59 (Gerwig) involved similar facts and controls this case. Accordingly, we
decline Bracamontes’s request to “reject the test or tests enunciated in
Gerwig.”1 (See Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9 [“Absent a
compelling reason, the Courts of Appeal are normally loath to overrule prior
decisions from another panel of the same undivided district or from the same
division.”].)
1 In full, Bracamontes argues: “Adoption of the test or tests enunciated
in Gerwig will, in most if not all cases, require licensees to call experts—
physicians, registered nurses, licensed clinical bioanalysts, or licensed clinical
scientists—at DMV hearings to review and opine on, as the Gerwig court put
it, ‘errors of practice or procedure by the officer or the phlebotomist with
respect to the collection’ of blood samples. [Citation.] It will require licensees
to call laboratory experts to review and opine on ‘errors of practice or
procedure . . . with respect to the [laboratory] testing’ of blood samples.
[Citation.] The burden thus imposed on licensees will require ‘the
marshalling of complex scientific evidence,’ . . . and will substantially
‘increase the risk of an erroneous deprivation’ of a driver’s license, a right
that has been described as an ‘important right to every person who has
obtained such a license,’ the suspension or revocation of which ‘may have
profound and obvious effects’ on a person’s ‘life situation.’ ”
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FACTUAL AND PROCEDURAL BACKGROUND
Shortly after midnight on April 22, 2019, a California Highway Patrol
officer observed Bracamontes weaving in and out of freeway traffic lanes and
varying his driving speed. The officer initiated a traffic stop and observed
that Bracamontes showed “obvious signs and symptoms of intoxication”
based on his slurred speech, odor of alcohol, and red and watery eyes. The
officer saw two light beers in the vehicle’s cup holders. Bracamontes
admitted he had consumed three beers before driving.
The officer conducted field sobriety tests, and concluded Bracamontes’s
poor test results were “consistent with a person being under the influence of
an alcoholic beverage.” On preliminary breath tests, Bracamontes’s blood
alcohol content (BAC) registered 0.191 percent at 12:27 a.m. and 0.189
percent at 12:29 a.m. Based on the above information, the officer arrested
Bracamontes for driving under the influence of alcohol in violation of Vehicle
Code section 23152.
Specimen Specialists of America Inc. (SSI), a company that contracts
with the San Diego County Sheriff’s Department, sent a certified phlebotomy
technician, to draw Bracamontes’s blood at the San Diego County jail. At
1:38 a.m., his BAC was 0.189 percent.
The administrative hearing officer admitted into evidence, over
Bracamontes’s objections, official records relating to Bracamontes’s driving,
arrest, and BAC, including the officer’s sworn statement and arrest report,
Bracamontes’s driving record, and the toxicology report.
Claiming the phlebotomist was unsupervised by SSI, Bracamontes
sought to introduce into evidence three subpoenas he had issued to SSI,
documents responsive to the subpoenas, and the testimony of some SSI
personnel. His counsel argued the evidence and testimony would “all go to
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establishing that the requirements of Vehicle Code section 23158, which go to
the drawing, collection and handling of the blood sample . . . [were] violated
in a number of respects” regarding “the foundation for admissibility of the
blood test results.” The hearing officer declined to admit those records or
permit the testimony on timeliness and relevancy grounds.
The hearing officer upheld Bracamontes’s license suspension, finding
probable cause existed to determine he was driving a motor vehicle under the
influence of alcohol, he was lawfully arrested, and he drove with a BAC in
excess of 0.08 percent. She rejected Bracamontes’s arguments that the blood
test results were inadmissible because of statutory and regulatory violations
regarding the phlebotomist’s supervision.
Bracamontes filed a petition for writ of mandate in the superior court,
arguing the excluded documents and testimony would have established
violations of statutes and regulations relating to the drawing, collecting,
handling, and testing of his blood, and rebutted the Evidence Code section
664 presumption. Bracamontes argued that without the blood test results,
the hearing officer’s determination that he was driving a motor vehicle when
he had a BAC of 0.08 percent or more would be unsupported by the record
evidence.
The trial court denied the writ petition on grounds the administrative
record contained significant evidence supporting the license revocation and
thus the weight of the evidence established Bracamontes was driving under
the influence of alcohol. The court added that even if the proffered evidence
and testimony had been admitted, they would affect only the weight of the
blood test evidence, not its overall admissibility. Further, Bracamontes did
not introduce any evidence creating a reasonable inference that the blood test
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was scientifically unreliable, or that the blood sample was improperly
collected or handled.
DISCUSSION
In Gerwig, the appellant had demonstrated through an SSI employee’s
testimony, that certain SSI procedures were out of compliance with state
regulations governing blood test procedures. In particular, the phlebotomist
was functionally unsupervised and the manual that SSI provided for
phlebotomists had not been approved by a physician and surgeon. The
hearing officer agreed there were regulatory violations, but still relied on the
laboratory report to conclude appellant drove with a BAC at or above 0.08
percent. On writ review, although the trial court agreed there were statutory
violations, it denied appellant relief because “ ‘[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.’ ” (Gerwig, supra, 61 Cal.App.5th at p. 64.)
In Gerwig, we specifically addressed the issue presented here: whether
any violation of the regulations governing blood tests is enough to rebut the
Evidence Code section 664 presumption.2 (Gerwig, supra, 61 Cal.App.5th at
p. 66.) We concluded: “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 [appellant’s] blood draw presented a problem the lackluster
2 In this context, the Evidence Code section 664 presumption “ ‘ “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, section 1219.1] [and] recorded test results are
presumptively valid [such that] the DMV is not required to present additional
foundational evidence.” ’ ” (Gerwig, supra, 61 Cal.App.5th at p. 66.)
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supervision structure at SSI left [the phlebotomist] ill equipped to address.”
(Gerwig, supra, 61 Cal.App.5th at p. 71.) We held: “In line with the general
principle that the licensee’s attempt to rebut the Evidence Code presumption
‘ “cannot rest on speculation,” ’ . . . showing any violation of [California Code
of Regulations, title 17, section 1219.1] is not sufficient in and of itself.
[Citations.] The licensee must present some evidence that the demonstrated
violation gives rise to a reasonable inference that the test results are
unreliable.” (Gerwig, at p. 72.)
Here, we conclude substantial evidence supported the conclusion that
Bracamontes drove with a BAC of 0.08 percent or greater. Specifically, the
DMV met its initial burden of establishing that Bracamontes’s BAC was 0.08
percent or more by submitting the officer’s reports documenting the results of
his breath analysis and field sobriety tests, and the certified lab report of the
blood alcohol test. (Gerwig, supra, 61 Cal.App.5th at p. 65; accord, Petricka v.
Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1350.)
Bracamontes concedes the DMV may meet its burden of proving by a
preponderance of the evidence that he had a BAC of 0.08 percent or more by
merely submitting the sworn statement of the arresting officer and the
results of a chemical test of the driver’s blood. (Gerwig, supra, 61
Cal.App.5th at p. 65 [“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.’ ”].)
Bracamontes failed to rebut the Evidence Code section 664
presumption as he did not present any evidence that the phlebotomist was
not licensed or improperly drew his blood. He also did not produce any
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evidence indicating that the regional laboratory did not properly analyze his
blood sample. The phlebotomist here was licensed, and no evidence showed
that she erred in taking Bracamontes’s blood sample. (Gerwig, supra, 61
Cal.App.5th at pp. 68-69, 72.)
Even assuming the hearing officer erred in not admitting the evidence
and testimony Bracamontes proffered, the trial court did not err in ruling
that the SSI evidence would not change the outcome of the administrative
hearing. As we concluded in Gerwig, the fact that a phlebotomist is
“functionally unsupervised” is “too tenuous to cast doubt on the reliability of
the blood test results.” (Gerwig, supra, 61 Cal.App.5th at p. 69.)
DISPOSITION
The judgment is affirmed. Bracamontes is to bear costs on appeal.
O’ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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