Shea v. Department of Motor Vehicles

[1059]

Opinion

SILLS, P. J.

Thomas Jeremiah Shea was arrested for driving under the influence of alcohol and submitted to a blood test. The Department of Motor Vehicles (DMV) suspended his driver’s license because the forensic report admitted at the administrative per se hearing indicated he had a blood-alcohol concentration exceeding the legal limit of 0.08 percent. The trial court, however, set aside his suspension, finding the tests were performed by unsupervised, and thus unqualified, forensic analyst trainees.

A forensic alcohol report becomes an official record of the DMV, and thus admissible at an administrative per se hearing, if it complies with the requirements governing the admission of evidence.

(Lake

v.

Reed

(1997) 16 Cal.4th 448, 467 [65 Cal.Rptr.2d 860, 940 P.2d 311].) This includes hearsay. Although a forensic report is hearsay, it falls within the public employees record exception to the hearsay rule if the proponent of the report (here, the DMV) establishes the necessary foundation for its admission. (Ibid.; see

People

v.

Ramos

(1997) 15 Cal.4th 1133, 1177 [64 Cal.Rptr.2d 892, 938 P.2d 950].) The public employees record exception is found in Evidence Code section 1280. Under it, hearsay may be admitted if the writing was made “by and within the scope of duty of a public employee,” “at or near the time of the act, condition, or event,” and the “sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1280, subds. (a)-(c); see

Lake

v.

Reed, supra,

16 Cal.4th at p. 467.)

Here, the forensic report was prepared by the Orange County Sheriff-Coroner Department crime laboratory. According to the computer printout, Qui T. Dang and Scott Munroe performed the tests and signed the report. However, on the list supplied by the county’s department of health services and submitted to the state, Dang and Munroe are classified as forensic alcohol analyst “trainees.” A forensic alcohol analyst trainee is defined in the code of regulations as “a person employed by a forensic alcohol laboratory for the purpose of receiving comprehensive practical experience and instruction in the technical procedures of forensic alcohol analysis under the supervision of a forensic alcohol supervisor or forensic alcohol analyst.” (Cal. Code Regs., tit. 17, § 1215.1, subd. (h).) While a trainee “may perform forensic analysis,” he or she may do so “only under the supervision of a forensic alcohol supervisor or forensic alcohol analyst.” (Cal. Code Regs., tit. 17, § 1216, subd. (a)(1)(A).) Because a trainee is not allowed to perform forensic analysis except when supervised, a trainee cannot be acting “by and within the scope of duty of a public employee” when he or she is not being supervised. Accordingly, a forensic alcohol report prepared by an unsupervised trainee could not fall within the public employee exception to the hearsay rule. (Evid. Code, § 1280.)