Filed 2/18/22 Bracamontes v. Dept. of Motor V ehicles 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ALFREDO BRACAMONTES,

Plaintiff and Appellant,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Respondent. D078298

(Super. Ct. No. 37

- 2019

- 00043754

- CU

- WM

- CTL )

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 W hang Mott, Deputy Attorneys General, for Defendant and Respondent.

Alfred o Bracamontes appeals from a judgment denying his petition for

writ of mandate to set aside an order of the Department of Motor Vehicles
(D MV ) suspending hi s driving privileges for four months under Vehicle Code2

sections 13353.2 and 13353.3, subdivision (b)(1) for driving a vehicle when he

had more than .0 8 percent by weight of alcohol in his blood

. Bracamontes contends the administrative hearing officer wrongly excluded documents and testimony showing the phlebotomist who dr e w his blood was not properly evaluated and supervised under the applicable

statut es and regulat i o ns , including Vehicle Cod e section 23 158 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
rebutt ed , and his blood test results were inadmissible because they lack ed a proper foundation of scientific reliability.

T his court’s recent decision in Gerwig v. Gordon (2021) 61 Cal.App.5th

59 ( Gerwig ) involved similar fact s and controls this case . Accordingly, we
decline Bracamontes ’s request to “reject the test or tests enunciated in
Gerwig

. ” 1 (See Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9 [“Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior decisions from another panel of the same undivided district or from the same

division

. ”]

. )

1 In full, Bracamontes argues: “ Adoption of the test or tests enunciated in Gerwig will, in most if not all cases, require licensees to call experts

— physicians, registered nurses, licensed clinical bioanalysts, or licensed clinical scientists

— at DMV hearings to revi ew and opine on, as the Gerwig court put it, ‘ errors of practice or procedure by the officer or the phlebotomist with respect to the collection ’ of blood samples. [Citation

. ] It will require licensees to call laboratory experts to review and opine on ‘ er rors of practice or procedure . . . with respect to the [laboratory] testing ’ of blood samples. [Citation

. ] The burden thus imposed on licensees will require ‘ the marshalling of complex scientific evidence, ’

. . . and will substantially

‘ increase the ris k of an erroneous deprivation ’ of a driver’s license, a right that has been described as an ‘ important right to every person who has obtained such a license, ’ the suspension or revocation of which ‘ may have profound and obvious effects ’ on a per son’s ‘ life situation. ’ ”3 FACTUAL AND PROCEDURAL BACKGROUND

S hortly after midnight on April 22, 2019, a California Highway Patrol

officer observed Bracamontes weaving in and out of freeway traffic lanes and varying his driving speed

. The o fficer initiated a traffic stop and observed

that Bracamontes showed “ obvious signs and symptoms of intoxicat ion ”

based on h is slurred speech
, odor of alcohol

, and red and watery eyes

. The

o fficer saw two l ight beers in the vehicle’s cup holder s

. Bracamo ntes

admitted he had consumed three beers before driving.

The o fficer conduct ed field sobriety test s , and concluded Bracamontes ’s

poor test results were “consistent with a person being under the influence of

an alcohol ic beverage

. ” O n p reliminary breath tests, Bracamontes’s blood

alcohol content (BAC) registered 0 .191 percent at 12:27 a.m. and 0.189
percent at 12:29 a.m

. B ased on the above information, the of ficer arrest ed

Bracamontes for driving under the influence of alcohol in violat ion of Vehicle

Code section 23152. Specimen Specialists of America Inc. (SSI)

, a company that contracts

with the San Diego County Sheriff’s Department

, sent a c ertified p hlebotomy

t echnician , to dr a w Bracamontes’s blood at the San Diego County j ail. At

1:38 a.m. , h i s BAC was 0.189 percent

. T he administrative hearing officer admitted into evidence , over
Bracamontes’ s object ion s, official records relating to Bracamontes’s driving,
arrest, and BAC, including the o ffice r ’ s sworn statement and arrest report,

Bracamontes ’s driving record, and the t oxicology r eport.
C laim ing the phlebotomist was unsupervised by SSI, Bracamontes sought to introduce into evidence three subpoenas he had issued to SSI

, documents responsive to the subpoenas
, and the testimony of some SSI personnel. His counsel argu ed th e evidence and testimon y would “all go to4

establishing that the requirements of Vehicle Code section 23158, which go to the drawing, collection and handling of the blood sample

. . . [ w ere] violated in a number of respects ” regarding “the foundation for admissibility of the

blood test results.” The hearing officer de clin ed to admit thos e records or permit the testimony on timeliness and relevancy ground s

. The h earing o fficer upheld Bracamontes ’s license suspension, finding probable cause existed to determine he was driving a motor vehicle under the influence of alcohol, he was lawfully arrested, and he drove with a BAC in

excess of 0 .08 percent

. S he rejected Bracamonte s ’s argument s that the blood

test results were inadmissible because of statutory and regulatory violations regarding the phlebotomist’s supervision

. Bracamontes filed a petition for writ of mandate in the superior court
, arguin g the excluded d ocuments and testimony would have established

violations of statutes and regulations relating to the drawing, collecting, handling, and testing of his blood, and rebutted the Evidence Code section 664 presumption . Bracamontes argu ed that without the blood test results, the hearing officer ’ s dete rm ination that he was driving a motor vehicle when

he had a BAC of 0.08 percent or more would be unsupported by the record

evidence

. The trial court denied the writ petition on grounds the administrative

record con tained significant evidence supporting the license revocation and thus the weight of the evidence established Bracamontes was driving under

the influence of alcohol. The court added that even if the proffered evidence and testimony had been admitted, t hey would affect only the weight of the blood test evidence, not its overall admissibility. Further, Bracamontes did not introduce any evidence creating a reasonable inference that the blood test5

was scientifically unreliable

, or that the blood sample was im properly

collected or handled.

DISCUSSION

In Gerwig , the appellant had demonstrated t hrough an SSI employee ’ s testimony, that certain SSI procedures were out of compliance with state regulations govern ing blood test procedures. In particular, the phlebot omist

was f unctionally unsupervised and the manual that SSI provided for phlebotomists had not been approved by a physician and surgeon. T he hearing officer agreed there w ere regulatory violation s , but still relied on the

lab oratory report to conclude app ellant drove with a BAC at or above 0 .08
percent. On writ review, a lthough the trial court agreed there were statutory

violations , it denied appellant relief because “ ‘ [t]here was no argument here
whatsoever that the test in this case was unreliable; that the machine it
tested was unreliable; that the vials that were used were unreliable. Nothing. ’ ” ( Gerwig

, supra , 61 Cal.App.5th at p. 64

. )

In Gerwig , w e specifically addressed the issue presented here: whether

any violation of the regulations governing blood tests is enough to rebut the

Evidence Code section 664 presumption

. 2 ( Gerwig, supra, 61 Cal.App.5th at

p. 6 6.) We concluded: “While an unsupervised phlebotom ist could make a mistake, so too could a properly supervised one. There is nothing here to suggest a mistake was made, nor is there any indication that the particular
circumstance of [appellant ’ s ] blood draw presented a problem the lackluster

2 In this context
, t he Evidence Code section 664 presumption “ ‘ “creates a rebuttable presumption that blood

- alcohol test results recorded on official forms were obtained by following the regulations and guidelines of [California Code of Regulations, title 17, section 1219.1] [and] recorded test results are presumptively valid [such that] the DMV is not required to present additional foundational evidence.” ’ ” ( Gerwig, supra, 61 Cal.App.5th at p. 66.)6

supervision structure at SSI left [the phlebotomist] ill equipped to address.” ( Gerwig, supra, 61 Cal.App.5th at p. 71.) We held : “ In line with the general principle that the licensee ’ s attempt to rebut the Evidence Code presumption

‘ “ cannot rest on speculation, ” ’

. . . showing any violation of [California Code of Regulations, title 17 , section 1219.1] is not sufficient in and of itself. [Citations

. ] The licensee must present some evidence that the demon strated violation gives rise to a reasonable inference that the test results are

unreliable. ” ( Gerwig, at p. 72.)
Here, w e conclude substantial evidence support ed the conclusion that

Bracamontes drove with a BAC of 0 .08 percent or greater. Specifically, the DMV met its initial burden of establishing that Bracamontes ’s BAC was 0.08
percent or more by submitting the o fficer’s reports documenting the results of his breath analysis and field sobriety tests, and the certified lab report of the

blood alcohol test. ( Gerwig, supra, 61 Cal.App.5th at p. 65; accord, Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1350

. )

Bracamontes concede s the DMV may meet its burden of proving by a preponderance of the evidence that he had a BAC of 0 .08 percent or more by merely submitting the sworn statement of the arresting officer and the

results of a chemical test of the driver’s bl ood. ( Gerwig, supra, 61 Cal.App.5th at p. 65 [“ Although the DMV bears the burden of proof, it can usually prove up a prima facie case with relative ease when a blood sample
was taken from the licensee by submitting two documents: ‘ the sworn

statement of t he arresting officer and a forensic lab report documenting the

results of a chemical test of the driver ’ s blood

. ’ ” ]. )

Bracamontes failed to rebut the Evidence Code section 664

p resumption as h e did not present any evidence that the phlebotomist was not licensed or improperly drew his blood. He also did not produce any7

evidence indicating that the regional laboratory did not properly analyze his blood sample. The phlebotomist h ere wa s licensed, and no evidence showed

that she erred in tak ing Bracamontes’s blood sample. ( Gerwig

, supra , 61 Cal.App.5th at pp. 68

- 69, 72.)

E ven assuming the hearing officer erred in not admitting the evidence and testimony Bracamontes proffered , the trial court did not err in ruling

that the SSI evidence would not change the outcome of the administrative hearing. As we concluded in Gerwig, the fact that a phlebotomist i s “functionally unsupervised” i s “too tenuous to cast doubt on the reliability of the blood test results.” ( Gerwig, supra , 61 Cal.App.5th at p. 69.)

DISPOSITION The judgment is affirmed. Bracamontes is to bear costs on appeal.

O ’ ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.