Robertson v. Zolin

California Court of Appeal Apr 3, 1996 No. G015350Published

Before: Sonenshine

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Holding. The court held that the trial court properly granted a writ of mandate to reinstate a driver's license because the licensee successfully rebutted the presumption of reliability of breath test results by showing that official testing standards were not observed, and the DMV failed to meet its burden to prove the tests were reliable despite those deviations.

Issues

Whether the trial court's finding that official breath testing standards were not observed is supported by substantial evidence.
Whether the DMV met its burden to prove the reliability of breath test results after the licensee presented evidence of procedural irregularities.
Whether hearsay evidence used to supplement other evidence in an administrative hearing satisfies the requirements of Government Code section 11513.

Disposition. affirmed

Quotations verified verbatim against the opinion

“But once the driver shows “that official standards were in any respect not observed, the burden shifts to the [DMV] to prove that the test was reliable despite the violation.”

“While these facts do not affirmatively establish the test results were unreliable, they constitute sufficient evidence to support the trial court’s finding official testing standards were not observed.”

Opinion

SONENSHINE, J.

The Department of Motor Vehicles (DMV) appeals a judgment granting a petition for a writ of mandate ordering it to revoke its

[150]

suspension of Michael David Robertson’s license for driving while intoxicated. We affirm.

On April 12, 1993, at 1:20 a.m., Irvine Police Officer J. M. Gunderson stopped Robertson for driving his truck “against a red light.” Gunderson noticed Robertson’s eyes were bloodshot and he smelled of alcohol beverages. After testing his coordination skills, Gunderson arrested Robertson and administered a breath test.

The first test was given at 2:19 a.m. and showed Robertson’s blood-alcohol content (BAG) was .18 percent. However, the second test, given a minute later, registered “.XX.” At 2:22 a.m., a third test was given, producing another reading of .18 percent. At that point, Gunderson confiscated Robertson’s license and issued him a temporary driving permit.

At the administrative review hearing, the DMV submitted, inter alia, Gunderson’s sworn statement, which included the breath test results. In turn, Robertson introduced a computer-generated document entitled “ADAMS Inquiry,” reflecting various information about the tests. The document also contained a signed and dated handwritten notation which read, “OCSD-Lab regards results with .XX (Mouth Ale Flag) invalid tests. This test is

not

valid.” (Original italics.) Despite this, the hearing officer ordered Robertson’s license suspended for four months.

In his petition for mandamus relief, Robertson argued the ADAMS Inquiry notation undermined the presumed reliability of the test results. After taking the matter under submission, the trial court agreed: “Petitioner challenged the reliability of the blood alcohol test results. The burden then fell to the DMV to establish the validity of the test results in order to uphold the license suspension. The DMV chose to accept the [ADAMS Inquiry] printout into evidence and do nothing to refute Petitioner’s contention. [U The writ is granted. Petitioner’s driver’s license to be reinstated.”

Robertson v. Zolin

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SONENSHINE, J.

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