Judge Joel R Wohlfeil, Case Number: 37-2022-00042214-CU-WM-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2022-00042214-CU-WM-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 05, 2024

06/07/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Writ of Mandate Hearing on Petition 37-2022-00042214-CU-WM-CTL BONE VS DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLES [IMAGED] CAUSAL DOCUMENT/DATE FILED: Petition for Writ of Mandate, 10/20/2022

The Petition (ROA # 1, 19, 22) of Petitioner Jon Matthew Bone ('Petitioner' or 'Bone') for writ of mandate objecting to the findings and decisions of the Department of Motor Vehicles ('DMV') Safety Officer T. Leota ('Leota') regarding the September 16, 2022 ruling - suspending the Petitioner's driving privilege for one year, is DENIED.

This ruling is based on the analysis set forth below.

Standard of Review When a person petitions for a writ of mandate following an order of suspension or revocation, 'a trial court is required to determine, based on its independent judgment, 'whether the weight of the evidence supported the administrative decision.'' Lake v. Reed (1997) 16 Cal. 4th 448, 456, 457 (citation omitted -- affirming denial of request to set aside suspension of driver's license, noting that its decision will 'render it easier for the DMV to sustain an administrative suspension of a person's driver's license').

'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.' Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.

Background Facts At 12:41 a.m. on November 20, 2021, Officer Del Rio of the California Highway Patrol observed a vehicle driven by then 19-year-old Petitioner fail to stop at a four-way intersection that was controlled by a posted 'STOP' sign.

After stopping the vehicle and making contact with Petitioner, Officer Del Rio observed signs of intoxication, including the odor of alcohol, and Petitioner's bloodshot and watery eyes. Officer Del Rio then administered a field sobriety test, which Petitioner failed. Petitioner then admitted he had consumed two beers earlier that evening.

Officer Del Rio had Petitioner blow into a Preliminary Alcohol Screening Device('PAS'). This blow achieved a result showing Petitioner's blood alcohol level ('BAC') was at 0.046. This is above the lawful limit of 0.01 for an individual driving under the age of 21.

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3101047 CASE NUMBER: CASE TITLE: BONE VS DIRECTOR OF THE DEPARTMENT OF MOTOR 37-2022-00042214-CU-WM-CTL Officer Del Rio placed Petitioner under arrest at 12:54 a.m. for violation of Vehicle Code Section 23136(a) for driving with a prohibited blood alcohol content in violation of California's 'zero tolerance' law for drivers under the age of 21.

As a result of this investigation and arrest, Respondent Department of Motor Vehicles suspended Petitioner's driving privilege for one year.

On August 31, 2022, an administrative hearing was held before Hearing Officer T. Leota. Petitioner was represented by counsel at the hearing.

On September 15, 2022, the Hearing Officer issued a decision upholding the suspension.

PAS Advisement Petitioner argues the suspension is invalid because Officer Del Rio failed to read a PAS advisement.

This argument is not persuasive.

Vehicle Code section 23136(c) provides that drivers 21 and under are deemed to have consented to PAS testing by operation of law if they are suspected of drinking and driving. It is undisputed that Officer Del Rio appropriately suspected Petitioner of driving under the influence based on his observation of signs of intoxication. Given this adequate reasonable cause and Petitioner's age, no advisement was required prior to administering the PAS testing to Petitioner.

Petitioner cites section 23612 in support of this argument. However, section 23136 applies because Petitioner was under the age of 21 years.

Title 17 Requirements Petitioner argues the PAS breath test results are not admissible because of an inadequate showing of compliance with Title 17 regulations. Specifically, Petitioner argues evidence presented at the administrative hearing demonstrates the improper administration of the PAS test and an unqualified operator: 'The operator of the PAS machine did not properly administer the test and this implies that the operator was not qualified to perform the test.' Opening Brief at page 8, lines 12 - 13. Petitioner lists three shortcomings: (a) two tests must be given to eliminate anomalous results; (b) Officer Del Rio failed to give the required advisement; and (c) Officer Del Rio failed to observe Petitioner before the PAS test was given. This argument is not persuasive.

The PAS test has been approved as a reliable method of measuring the presence of alcohol in a minor's blood under the zero tolerance law. People v. Bury (1996) 41 Cal. App. 4th 1194, 1201.

This opinion continues: 'He also did not challenge Ventura County's compliance with state law. (Health & Saf. Code, � 436.52; Cal. Code Regs., tit. 17, � 1215 et seq.) In this regard, a distinction is made in California between breath-testing devices which determine the concentration of alcohol in the blood versus devices which simply determine the presence of alcohol in the blood. The title 17 regulations (Cal. Code Regs., tit. 17, �� 1215-1222.2) have been held to be inapplicable to breath testing equipment utilized to detect the presence of alcohol in a person's blood. (Coniglio v. Department of Motor Vehicles, supra, 39 Cal. App. 4th 666, citing � 23136, subd. (c)(1) [zero tolerance law]; 72 Ops. Cal. Atty. Gen., supra, at pp. 230 - 231.) These regulations are applicable to PAS devices used by law enforcement to preliminarily measure the concentration of alcohol in a suspect's blood prior to arrest. (72 Ops. Cal. Atty. Gen., supra, at pp. 226, 230 - 232; Imachi v. Department of Motor Vehicles (1992) 2 Cal. App. 4th 809, 816.) Here, the Alco-Sensor device employed by Officer Leon determined, via the machine's digital display, the numerical concentration of alcohol in appellant's blood.' Calendar No.: Event ID: TENTATIVE RULINGS

3101047 CASE NUMBER: CASE TITLE: BONE VS DIRECTOR OF THE DEPARTMENT OF MOTOR 37-2022-00042214-CU-WM-CTL Id. at 1202 (emphasis added, footnotes omitted).

As discussed above, California's 'zero tolerance' law for drivers under the age of 21 applies such that the PAS test was used to detect the presence of alcohol in the blood, not its concentration. As a result, and pursuant to the authority cited above, the Title 17 regulations do not apply.

The alternative general foundational prerequisites for admissibility of testing results are: (a) the particular apparatus utilized was in proper working order, (b) the test used was properly administered, and (c) the operator was competent and qualified. People v. Adams (1976) 59 Cal. App. 3d 559, 561.

As reflected in the administrative record, Officer Gabaldon's testimony along with the evidence submitted in connection with this testimony establish the first element. The PAS device (Lifeloc FC20, SN # ending in 097) was properly calibrated and in good working order.

In addition, Officer Del Rio's sworn statement in the DS-367, the arrest report and his testimony during the administrative hearing satisfies the second prong. He conducted the test in accordance with his training, and the device manufacturer's guidelines and instructions.

The administrative record also supports the third element. This evidence demonstrates that Officer Del Rio had been trained on using the Lifeloc FC20 PAS device.

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3101047