ARCONTI v. ZOLIN

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Court of Appeal, Fourth District, Division 3, California.

Thomas Ben ARCONTI, Plaintiff and Respondent, v. Frank S. ZOLIN, Director of the Department of Motor Vehicles, Defendant and Appellant.

No. G015958.

Decided: March 24, 1995

Daniel E. Lungren, Atty. Gen., Henry G. Ullerich, Sr. Asst. Atty. Gen., Martin H. Milas, Supervising Deputy Atty. Gen., and Thomas Scheerer, Deputy Atty. Gen., for defendant and appellant. Ronald A. Jackson, Ventura, for plaintiff and respondent.

OPINION

The Department of Motor Vehicles (DMV) appeals a judgment granting a petition for a writ of mandate ordering the DMV to revoke its suspension of Thomas Ben Arconti's license for driving while intoxicated.   We find the laboratory report used to establish Arconti's blood-alcohol concentration (BAC) was insufficient to justify the suspension.   Accordingly, we affirm.

I

On November 14, 1993, at 11:30 p.m., Officer Cooney stopped Arconti in Ventura County for speeding and “using all lanes.”  (Veh.Code, §§ 22349, 23103.)   Because Arconti appeared intoxicated, Cooney arrested him and issued an administrative per se order of suspension with a temporary driver's permit.   (Veh.Code, §§ 23152, 13353.2, 23158.5.)   Arconti submitted to a blood test at 12:35 a.m. on November 15.

Three weeks later, Lesley Cox and Norm Fort prepared a lab report of Arconti's blood test results on behalf of the Ventura County Sheriff's Department.   The report does not explain how or when Arconti's blood was tested, but it does reflect a BAC of “0.17% By WT.”  (See appen. A for a photocopy of the report post, at p. 693.)   A separate declaration from Fort accompanies the report, in which he certifies (1) the blood analysis was performed during the regular course of business, (2) qualified personnel performed the analysis pursuant to state regulations, and (3) the testing equipment was in proper working order during the analysis.  (See appen. B for a photocopy of the declaration post, at p. 694.)   The declaration is dated October 1, 1992.

The DMV upheld Arconti's license suspension, despite his foundational objections to the lab report.   Arconti then petitioned for mandamus relief, arguing again the report was inadmissible hearsay.1  The superior court granted the petition, concluding the DMV's “findings and decision are not supported by substantial evidence.”   This appeal followed.

II

The DMV impliedly concedes the lab report, if inadmissible hearsay, would be insufficient per se to support the administrative finding.  (See Gov.Code, § 11513, subd. (c).)  However, the DMV asserts the report falls within the official record exception to the hearsay rule and therefore constitutes sufficient evidence to uphold the DMV's order.   For reasons explained below, we find the report lacks the requisite indicia of trustworthiness necessary for admission as an official record.

A writing is admissible under the official record exception to the hearsay rule if it was made (1) as a record of an act, condition, or event, (2) by and within the scope of a public employee's duty, (3) at or near the time of the act, condition, or event, and (4) the sources of information and method and time of preparation were such as to indicate its trustworthiness.   (Evid.Code, § 1280.)

 These foundational requirements are presumably satisfied when the writing is prepared as part of a public officer's duty.  (See Evid.Code, § 664;  People v. Dunlap (1993) 18 Cal.App.4th 1468, 1477, 23 Cal.Rptr.2d 204;  Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1374–1375, 240 Cal.Rptr. 281;  Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 77–78, 179 Cal.Rptr. 379.) 2  But the presumption is overcome when the surrounding circumstances indicate the writing is untrustworthy.   In that situation, the proponent of the writing must supply independent evidence of reliability.  (Davenport v. Department of Motor Vehicles, supra, 6 Cal.App.4th at p. 144, 7 Cal.Rptr.2d 818;  see, e.g., Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 7 Cal.Rptr.2d 10 [lab report insufficient to uphold license suspension where it failed to reflect time blood sample was collected or analyzed];  Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 3 Cal.Rptr.2d 478 [hearsay within officer's report insufficient to uphold license suspension];  Coombs v. Pierce (1991) 1 Cal.App.4th 568, 2 Cal.Rptr.2d 249 [lab report insufficient to uphold license suspension where evidence indicated laboratory was not licensed to use the apparatus at issue].)

The DMV relies on a string of cases which have upheld license suspensions based on documents prepared by public officers in the course of their duties.   In Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 388–390, 7 Cal.Rptr.2d 5, for instance, the court approved consideration of the arresting officer's sworn statement and a written report of the driver's blood-alcohol test results.   And in Davenport, supra, breath test results contained in the arresting officer's sworn report were deemed sufficient proof of the driver's excessive blood alcohol level.   (Davenport v. Department of Motor Vehicles, supra, 6 Cal.App.4th at pp. 139–143, 7 Cal.Rptr.2d 818;  see also Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 736–740, 27 Cal.Rptr.2d 712 [officer's unsworn arrest report admissible to prove licensee drove while intoxicated].)

 In each of these cases, the presumption of regularity went unchallenged by the licensee, and the method and time of preparation of the documents indicated trustworthiness.  (Jackson v. Department of Motor Vehicles, supra, 22 Cal.App.4th at pp. 738–740, 27 Cal.Rptr.2d 712;  Davenport v. Department of Motor Vehicles, supra, 6 Cal.App.4th at pp. 139–143, 7 Cal.Rptr.2d 818;  Burge v. Department of Motor Vehicles, supra, 5 Cal.App.4th at pp. 389–390, 7 Cal.Rptr.2d 5.)   Therefore, the DMV was not required to provide independent evidence of the foundational requirements for admitting the documents as official records.  (Ibid.)

As Arconti argued below, however, the present case is much different.   Unlike Burge, Davenport, and Jackson, there is no way of telling if the report here was made at or near the time of the reported event, i.e., the blood analysis.   All we know is Arconti was stopped at 11:30 p.m. on November 14, 1993, the sample time was “0035 HRS.,” and the report was prepared on December 7, 1993.   In addition, the report is neither sworn nor signed, and it fails to reflect the blood sample's chain of custody or how it was tested.

These deficiencies are not alleviated by Fort's accompanying declaration, in which he attests to the reliability of “the attached blood/urine analysis.”   Although Arconti's blood was not tested until late 1993, Fort's declaration was executed on October 1, 1992.   Obviously, Fort could not accurately attest to the testing procedures a year before the blood analysis occurred.  (See generally Code Civ.Proc., § 2015.5 [requirements for valid declaration].)

Because the presumption of regularity was solidly rebutted below, the DMV was required to supply independent proof of the lab report's trustworthiness.   Having failed to do so, the report cannot be considered sufficient evidence to support the DMV's finding Arconti's BAC was at least .08 percent.3

The judgment is affirmed.   Arconti shall recover his costs on appeal.

APPENDIX A

APPENDIX B

FOOTNOTES

1.   Pursuant to Vehicle Code section 13559, subdivision (a), Arconti filed his mandamus petition in Orange County, his county of residence.

2.   Put differently, the presumption public officials regularly perform their duties gives rise to an inference that official records are reliable.  (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 144, 7 Cal.Rptr.2d 818.)

3.   It is noteworthy Vehicle Code section 23158.2 requires the arresting officer to “immediately forward to the [DMV] a sworn report of all information relevant to the enforcement action, including [ ] a report of the results of any chemical tests which were conducted on the person [.]”  (Veh.Code, § 23158.2, subd. (a), italics added.)   In fact, the state-approved form for recording chemical test results (DS 367A) contains a provision requiring the lab technician to certify, under penalty of perjury, that the testing procedures were properly administered.   Completion of the certification provision ensures the significant interest of retaining a driver's license will not be infringed “absent a showing by substantial competent evidence of facts supporting a suspension.”   (Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536, 189 Cal.Rptr. 512, 658 P.2d 1313, see also Gikas v. Zolin (1993) 6 Cal.4th 841, 847, 25 Cal.Rptr.2d 500, 863 P.2d 745 [one reason for the administrative suspension procedure is to prevent erroneous license deprivations].)   Why Ventura County does not use the state-approved form is unclear.  (See Veh.Code, § 23158.2, subd. (b) [“The peace officer's sworn report shall be made on forms furnished or approved by the (DMV).”].)   But as this case illustrates, the state's objective in curtailing drunk driving is seriously undermined when individual counties depart from reliable, standardized testing protocol.

SONENSHINE, Associate Justice.

SILLS, P.J., and CROSBY, J., concur.