Judge: James A. Mangione, Case: 37-2022-00002926-CU-PT-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 29, 2024

03/01/2024  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited  Petitions - Other Motion Hearing (Civil) 37-2022-00002926-CU-PT-CTL NELSON-MORRIS VS GORDON [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff Kim Nelson-Morris's Motion for an Award of Attorney's Fees is granted.

'In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code . . ., if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney's fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), if he or she is personally obligated to pay the fees in addition to any other relief granted or other costs awarded.' (Gov. Code, § 800(a).) Plaintiff seeks attorney's fees under this provision, arguing that the Department of Motor Vehicles Hearing Officer ('Officer') failed to present necessary evidence to lay the foundation of scientific reliability for admission of Plaintiff's breath test results. Courts have 'authorized admitting breath test evidence after a showing of (1) the reliability of the instrument, (2) the proper administration of the test, and (3) the competence of the operator. [Citation.] To meet these requirements, the evidence would be admitted upon either a showing of compliance with the title 17 regulations or independent proof of the three elements.' (People v. Williams (2002) 28 Cal.4th 408, 414.) Even for established scientific techniques, including breath tests, the party seeking to admit the evidence 'must demonstrate that correct scientific procedures were used in the particular case.' (Id. (quotation marks omitted).) Where the licensee can prove 'there was an official failure to comply with applicable statutory and regulatory requirements', the DMV is not entitled to the rebuttable presumption of reliability in Evidence Code § 664. (See Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 137.) Here, Plaintiff satisfied her burden of proof to show that there was an official failure to comply with title 17 based on the crime lab's failure to keep records showing compliance for each breath test instrument.

Therefore, the accuracy and reliability of the instrument could not be determined via compliance with title 17. As such, the Officer's decision to admit the breath test without making the required findings as to '(1) the reliability of the instrument, (2) the proper administration of the test, and (3) the competence of the operator' was arbitrary and capricious.

Plaintiff is awarded attorney's fees of $7,500 and costs of $857.50.

The minute order is the order of the Court.

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