Bracamontes v. Dept. of Motor Vehicles CA4/1

California Court of Appeal Feb 18, 2022 No. D078298Unpublished

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Holding. The court held that a licensee must present evidence creating a reasonable inference that a blood test is scientifically unreliable to rebut the Evidence Code section 664 presumption of official duty, as mere evidence of regulatory violations regarding phlebotomist supervision is insufficient.

Issues

Whether a licensee can rebut the Evidence Code section 664 presumption by showing regulatory violations regarding phlebotomist supervision without evidence of scientific unreliability.
Whether the DMV met its burden of proof to suspend driving privileges based on blood alcohol content.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The licensee must present some evidence that the demonstrated violation gives rise to a reasonable inference that the test results are unreliable.”

“The fact that a phlebotomist is “functionally unsupervised” is “too tenuous to cast doubt on the reliability of the blood test results.””

Filed 2/18/22 Bracamontes v. Dept. of Motor Vehicles CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ALFREDO BRACAMONTES, D078298

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2019-00043754-CU-WM-CTL) DEPARTMENT OF MOTOR VEHICLES,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed. A.P. Zmurkiewicz for Plaintiff and Appellant. Rob Bonta, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Celine M. Cooper and Vanessa Whang Mott, Deputy Attorneys General, for Defendant and Respondent. Alfredo Bracamontes appeals from a judgment denying his petition for writ of mandate to set aside an order of the Department of Motor Vehicles (DMV) suspending his driving privileges for four months under Vehicle Code

sections 13353.2 and 13353.3, subdivision (b)(1) for driving a vehicle when he had more than .08 percent by weight of alcohol in his blood. Bracamontes contends the administrative hearing officer wrongly excluded documents and testimony showing the phlebotomist who drew his blood was not properly evaluated and supervised under the applicable statutes and regulations, including Vehicle Code section 23158 and California Code of Regulations, title 17, section 1215 et seq.; therefore, the Evidence Code section 664 presumption that official duty was regularly performed was rebutted, and his blood test results were inadmissible because they lacked a proper foundation of scientific reliability. This court’s recent decision in Gerwig v. Gordon (2021) 61 Cal.App.5th 59 (Gerwig) involved similar facts and controls this case. Accordingly, we decline Bracamontes’s request to “reject the test or tests enunciated in

Bracamontes v. Dept. of Motor Vehicles CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ALFREDO BRACAMONTES, D078298

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