Judge Curtis A. Kin, Case Number: 23STCP01180, Date: 2024-04-16 Tentative Ruling

Petitioner Lily Yang petitions for a writ of mandate directing respondent Steven Gordon, Director of the California Department of Motor Vehicles (“Department” or “DMV”) to set aside an order suspending petitioner’s driving privileges.

On October 1, 2022, at 2:56 a.m., Deputy Valenti of the Santa Barbara County Sheriff’s Office was on routine patrol in a marked patrol vehicle in Isla Vista with passenger Deputy Harrington. (AR 15.) Deputy Valenti observed petitioner Lily Yang’s vehicle crossing over and/or straddling the double yellow lines. (AR 16; see Veh. Code § 21460(a) [driver shall not drive to left of double parallel solid yellow lines].) Deputy Valenti also observed petitioner’s vehicle failing to stop at the limit line at a stop sign. (AR 16; see Veh. Code § 22450(a) [driver approaching stop sign shall stop at limit line].)

Deputy Valenti stopped and approached petitioner’s vehicle. (AR 16.) Petitioner rolled down her left front window. (AR 16.) Deputy Valenti asked for petitioner’s license, registration, and proof of insurance, all of which petitioner provided. (AR 16.) Deputy Valenti detected the odor of an alcoholic beverage coming from inside the vehicle and noticed petitioner’s eyes were slightly bloodshot. (AR 16.) After observing several objective signs of intoxication, Deputy Valenti directed petitioner to exit the car and walk to the east sidewalk for field sobriety tests (“FSTs”). (AR 16.) When petitioner exited the vehicle and walked ahead of Deputy Valenti, she seemed off-balance. (AR 16.)

Deputy Valenti asked petitioner the pre-FST questions. (AR 16.) Deputy Valenti smelled the odor of alcohol on petitioner’s breath, but petitioner denied having consumed alcohol. (AR 16.) Deputy Valenti then asked petitioner to perform several FSTs. (AR 16.) Petitioner did not perform the tests as explained and demonstrated. (AR 16.) Deputy Valenti asked petitioner to complete a preliminary alcohol screening (“PAS”) test. (AR 16.) The PAS test result was .039% blood-alcohol concentration (“BAC”). (AR 16-17.) Petitioner was 20 years of age at the time of the stop. (AR 15.) During the FSTs, Deputy Valenti asked petitioner about the stop sign violation; petitioner said she did not notice the stop sign. (AR 16.)

Deputy Valenti completed a citation for violations of Vehicle Code sections 22450 and 23126. (AR 10, 16; see Vehicle Code § 23136 [unlawful for person under 21 years of age who has a BAC of 0.01% or greater to drive a vehicle].) Deputy Valenti issued a DS-367 notice of suspension. (AR 8, 16.) Petitioner ordered an Uber and was released. (AR 16.) Petitioner’s vehicle was towed. (AR 16.)

In the sworn DS-367 form, Deputy Valenti certified under penalty of perjury under the laws of the State of California: (1) that he obtained the PAS test results in the regular course of his duties; (2) that he used the PAS Model, Alcotest 7510, serial number ARBJ-0294, manufactured by Drager; (3) that he administered the PAS test properly in accordance with the manufacturer’s guidelines and instructions; (4) that he has received training on the proper operation of the device and administration of the PAS test and is competent and qualified to operate the device; and (5) that the device was functioning properly at the time of the test. (AR 8.)

The administrative hearing took place on January 10, 2023. (AR 20.) Hearing Officer Bates introduced four exhibits into evidence: (1) Under Age 21 Officer’s Statement (DS-367); (2) Report of Offense with the Santa Barbara County Sheriff’s Office; (3) PAS breath test; and (4) petitioner’s driving record print-out. (AR 22-24.) Petitioner objected to all four exhibits as hearsay or lacking foundation. (AR 24.) All exhibits were admitted into evidence over petitioner’s objections. (AR 24-25.)

Petitioner’s counsel argued that the PAS test should not be considered because the officer failed to comply with Title 17 regulations. (AR 25-27.) No witnesses were called, and petitioner presented no evidence. (AR 20-27.)

A decision was issued by the Department on January 13, 2023. (AR 5.) Based on a preponderance of the evidence, the Department concluded: (1) that the peace officer had reasonable cause to believe that petitioner had been driving in violation of Vehicle Code section 23136; (2) that petitioner was lawfully arrested or detained; and (3) that petitioner was driving a motor vehicle while under 21 with a BAC of 0.01% or greater measured by a PAS or other chemical test. (AR 5.) The hearing officer considered petitioner’s arguments but deemed them to be without merit because petitioner did not offer any evidence in support of her arguments or to rebut the Department’s case. (AR 4.)

The Department imposed a one-year license suspension, effective January 22, 2023, through January 21, 2024. (AR 6.)

On April 14, 2023, petitioner Lily Yang filed a Verified Petition for Writ of Mandate. On October 2, 2023, respondent Steven Gordon, Director of the California Department of Motor Vehicles filed an Answer.

On August 8, 2023, the Court denied petitioner’s ex parte application for a stay of license suspension on the ground that a stay would be against the public interest.

A memorandum of points and authorities was attached to the petition filed on April 14, 2023. On March 20, 2024, respondent filed an opposition. Petitioner did not file a reply. The Court has received the administrative record lodged by petitioner.

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).) “[T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.)

When a driver petitions for a writ of mandate following an order suspending her driver’s license, the trial court is required to determine, based on its independent judgment, whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal.App.4th 860, 868.) However, “[i]n 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.” (Fukuda, 20 Cal.4th at 817, internal quotations omitted.)

“Evidence Code section 664, which presumes that an official duty has been regularly performed, has been widely applied to DMV administrative hearings.” (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.) “[I]n an administrative hearing, ‘[a]ny 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....’ [Citations.] ‘A police officers report, even if unsworn, constitutes ‘the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs….’” (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-159.)

Under the zero tolerance law set forth in Vehicle Code section § 23136(a),[1] driving a vehicle with a blood-alcohol concentration of 0.01% or greater while under 21 years of age is unlawful. (Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 673.) The BAC is measured by a preliminary alcohol screening test or other chemical test. (§ 23136(a).)

“Once a licensee is cited for violating the zero tolerance law, the DMV must then review the officer's sworn report and make a determination of the facts requiring suspension. This ruling is final unless the licensee timely requests a hearing pursuant to section 13558.” (Coniglio, 39 Cal.App.4th at 673, citing § 13557.) “Upon the licensee's timely request, the DMV must hold an administrative hearing at which the evidence is not limited to that presented at the prior administrative review.” (Coniglio, 39 Cal.App.4th at 673-74, citing § 13558(b).)

At the hearing, the Department determines whether (1) the peace officer had reasonable cause to believe that the person was driving in violation of section 23136, (2) the driver was lawfully arrested or detained, and (3) the driver was under 21 years of age with a BAC of 0.01% or greater as measured by a PAS or other chemical test. (§ 13557(b)(3).)

Petitioner seeks to set aside the administrative decision of the Department to suspend her driving privileges. Relying on Coniglio, petitioner contends that the results of the PAS were inadmissible during the administrative hearing, because the Department did not establish the accuracy and reliability of the PAS device.

While a PAS device may be used to determine the presence of alcohol in the blood, it must be proven that the particular PAS device used was reliable. (Coniglio, 39 Cal.App.4th at 681.) “An officer’s sworn statement that, when tested, a licensee's PAS test showed the presence of alcohol in the licensee's blood is legally sufficient evidence ‘if and only if there is a basis for believing that the test which [detected] blood alcohol was reliable.’ [Citation.]” (Ibid.) To admit PAS test results as evidence of a zero tolerance law violation, the Department has the burden to show that “‘(1) the particular apparatus utilized was in proper working order, (2) the test used was properly administered, and (3) the operator was competent and qualified.’” (Id. at 681-82, quoting People v. Adams (1976) 59 Cal.App.3d 559, 561.)

By presenting the DS-367 Under Age 21 Officer’s Statement form signed by Deputy Valenti (AR 8, 22), the Department met its burden to demonstrate the reliability of the PAS test administered to petitioner. Deputy Valenti certified under penalty of perjury that he obtained the PAS test results from petitioner in the regular course of his duties and that the PAS test revealed that petitioner had a BAC of 0.039% (AR 8.) With respect to the three requirements to admit PAS test results, as set forth above, Deputy Valenti also certified under penalty of perjury: (1) that the PAS device he used to obtain petitioner’s BAC was functioning properly at the time of the test; (2) that he properly administered the PAS test in accordance with the manufacturer's guidelines and instructions; and (3) that he received training in how to use the PAS device and he was competent and qualified to operate the device. (AR 8.)

Under Evidence Code § 664, “[i]t is presumed that official duty has been regularly performed.” Because Deputy Valenti’s averments were based on his direct observations and personal knowledge, the DS-367 form is presumed trustworthy based on his statutory duty to report the facts of a blood alcohol test. (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 143.) Further, under Evidence Code § 664, law enforcement agencies and their officers are presumed to have complied with statutory and regulatory standards, thus leading to an inference that the PAS test was reliable. (Id. at 144.) The standards include Title 17 of the California Code of Regulations, which sets forth regulations for forensic alcohol analysis and standards for the competency of blood alcohol test results. (Id. at 142.)

In Coniglio, however, the Court of Appeal found that Title 17 regulations do not apply to PAS tests, thereby leaving the testing and reliability of PAS tests ungoverned by any statutes or regulations. (Coniglio, 39 Cal.App.4th at 683.) Consequently, the Coniglio court found the “official duty” presumption under Evidence Code § 664 to be inapplicable. Petitioner appears to rely on this holding in asserting that the DS-367 form is insufficient to demonstrate the three requirements to admit a PAS test are satisfied.[2]

However, after Coniglio was decided, the California Supreme Court found that PAS breath test results are admissible “upon a showing of either compliance with title 17 or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator….” (People v. Williams (2002) 28 Cal.4th 408, 417, footnote admitted, emphasis added.) The high court thus rejected the holding in Coniglio that Title 17 never applies to PAS tests. (Id. at 414, fn. 2.) Instead, the high court confirmed that “title 17 regulations apply to PAS tests that determine the concentration of alcohol in the blood but not those that determine only its presence.” (Ibid.)

In this case, the PAS test administered to petitioner indicated the concentration of blood alcohol. (AR 8 [.039%].) Accordingly, Title 17 applies to the PAS test at issue here, and the DMV may rely on the Evidence Code § 664 “official duty” presumption that the Santa Barbara Sheriff’s Office and Deputy Valenti complied with Title 17, thereby giving rise to the inference that the PAS test administered to petitioner was admissible. (Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 1002; Davenport, 6 Cal.App.4th at 144.) “[T]he [§ 664] presumption attaches once the DMV presents competent evidence (through presentation of the documents contemplated in the statutory scheme) in support of its prima facie case.” (Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 373.) For the reasons stated above, admission of the DS-367 form into evidence triggered the “official duty” presumption.

The burden shifted to petitioner to “produce competent affirmative evidence that the applicable standards were not observed in order to rebut the presumption” that Deputy Valenti properly administered the PAS test using properly operating equipment. (Ibid.) Despite having had the opportunity to subpoena Deputy Valenti or documents relevant to the reliability of the PAS test results (Davenport, 6 Cal.App.4th at 144-45), petitioner presented no evidence during the administrative hearing to rebut the presumption that the PAS test results were reliable and properly obtained. Accordingly, petitioner fails to establish that the PAS test was inadmissible.

For the foregoing reasons, petitioner is not entitled to the revocation of the suspension of her driving privileges or any award of attorney fees under Government Code § 800.

The petition for writ of mandate is DENIED. Pursuant to Local Rule 3.231(n), respondent Steven Gordon, Director of the California Department of Motor Vehicles shall prepare, serve, and ultimately file a proposed judgment.

Respondent as a public agency shall recover costs pursuant to Government Code § 6103.5.

[1] All statutory references are to the Vehicle Code unless otherwise stated.

[2] See Petition at 13:8-12 (“This certification is attempting to circumvent the ruling in Coniglio by having the officer certify that the prerequisites of admissibility of the tests are met simply by virtue of having the officer sign the statement. The certification cannot be used in this manner as it will excuse the DMV from having to establish its burden when proving the admissibility of PAS testing evidence”).