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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

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 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 
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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 

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 review 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 ‘errors 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 risk 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 person’s ‘life situation.’ ” 
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FACTUAL AND PROCEDURAL BACKGROUND

Shortly 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 officer initiated a traffic stop and observed 

that Bracamontes showed “obvious signs and symptoms of intoxication”

based on his slurred speech, odor of alcohol, and red and watery eyes. The

officer saw two light beers in the vehicle’s cup holders. Bracamontes

admitted he had consumed three beers before driving.

The officer conducted field sobriety tests, and concluded Bracamontes’s 

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

an alcoholic beverage.” On preliminary 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. Based on the above information,the officer arrested 

Bracamontes for driving under the influence of alcohol in violation 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 certified phlebotomy 

technician, to draw Bracamontes’s blood at the San Diego County jail. At

1:38 a.m., his BAC was 0.189 percent.

The administrative hearing officer admitted into evidence, over 

Bracamontes’s objections, official records relating to Bracamontes’s driving, 

arrest, and BAC, including the officer’s sworn statement and arrest report, 

Bracamontes’s driving record, and the toxicology report.

Claiming 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 argued the evidence and testimony would “all go to 
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establishing that the requirements of Vehicle Code section 23158, which go to 

the drawing, collection and handling of the blood sample . . . [were] violated 

in a number of respects” regarding “the foundation for admissibility of the 

blood test results.” The hearing officer declined to admit those records or 

permit the testimony on timeliness and relevancy grounds. 

The hearing officer 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. She rejected Bracamontes’s arguments 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,

arguing the excluded documents 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 argued that without the blood test results, 

the hearing officer’s determination 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 contained 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, they 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 test 
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was scientifically unreliable, or that the blood sample was improperly 

collected or handled.

DISCUSSION

In Gerwig, the appellant had demonstrated through an SSI employee’s 

testimony, that certain SSI procedures were out of compliance with state 

regulations governing blood test procedures. In particular, the phlebotomist

was functionally unsupervised and the manual that SSI provided for 

phlebotomists had not been approved by a physician and surgeon. The 

hearing officer agreed there were regulatory violations, but still relied on the 

laboratory report to conclude appellant drove with a BAC at or above 0.08 

percent. On writ review, although 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, we 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. 66.) We concluded: “While an unsupervised phlebotomist 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,the 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.) 
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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 demonstrated 

violation gives rise to a reasonable inference that the test results are 

unreliable.” (Gerwig, at p. 72.)

Here, we conclude substantial evidence supported 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 officer’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 concedes 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 blood. (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 the 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

presumption as he did not present any evidence that the phlebotomist was 

not licensed or improperly drew his blood. He also did not produce any 
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evidence indicating that the regional laboratory did not properly analyze his 

blood sample. The phlebotomist here was licensed, and no evidence showed

that she erred in taking Bracamontes’s blood sample. (Gerwig, supra, 61 

Cal.App.5th at pp. 68-69, 72.)

Even 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 is 

“functionally unsupervised” is “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.