Filed 2/19/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

WILLIAM LEE GERWIG, JR.,

Plaintiff and Appellant,

v.

STEVE GORDON, as Director, etc.,

Defendant and Respondent.

 D076921

 (Super. Ct. No. 37-2018-00039834-

 CU-WM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Frederic L. Link, Judge. Affirmed.

A. P. Zmurkiewicz for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant 

Attorney General, Celine M. Cooper and Elizabeth Vann, Deputy Attorneys 

General, for Defendant and Respondent.

When the Department of Motor Vehicles (DMV) holds an 

administrative hearing to consider whether to suspend a driver’s license, 

certain relaxed evidentiary standards govern. The DMV can usually support 

its case by relying on an Evidence Code presumption that chemical blood 

tests were properly conducted, and the results are thus reliable. As a matter 

of first impression, we conclude that licensees rebut that presumption only 

when they cast doubt on the integrity of the test. It is not enough to show a 
2

violation of governing regulations that has only a tenuous connection to the 

accuracy of the results. Here, because plaintiff proved a regulatory violation 

with only an indirect and speculative relationship to the manner in which the 

blood test was conducted, and thus the reliability of the test results, we 

affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff William Lee Gerwig crashed into the back of another vehicle 

at an intersection. He was thrown from his motorcycle and landed on the 

asphalt. California Highway Patrol Officer Jacob Rebelo responded to the 

scene and spoke with Gerwig while he was receiving medical attention. 

Based on his lethargic responses, the smell of alcohol, and his inability to 

recall the collision details, Rebelo suspected Gerwig was intoxicated. Gerwig 

also admitted he had some wine prior to driving. Rebelo arrested Gerwig for 

violating Vehicle Code section 23152—driving under the influence of alcohol 

(DUI)—and watched while state-certified phlebotomist Francisco Moreno 

collected two vials of blood using a nonalcoholic swab to clean the site. 

Rebelo took the vials himself and entered them into evidence. Test results 

from Gerwig’s blood draw showed a blood-alcohol concentration (BAC) of 

.25 percent. 

Rebelo seized Gerwig’s license and gave him notice that the DMV 

would conduct a review and could suspend his driving privileges. As he was 

entitled to do, Gerwig requested a hearing on the matter. (Veh. Code, 

§§ 13558 & 14100.) At that proceeding, the DMV submitted Rebelo’s report 

and the lab report with the BAC test results. Gerwig objected on 

foundational, hearsay and authentication grounds, but the hearing officer 

admitted the evidence over the objections. 
3

Gerwig’s counsel then called an employee of Specimen Specialists of 

America, Inc. (SSI), the company that dispatched phlebotomist Moreno to 

draw Gerwig’s blood. Through the employee’s testimony, counsel 

demonstrated that certain SSI procedures were out of compliance with state 

regulations that govern blood test procedures. In particular, Moreno was 

functionally unsupervised and the manual that SSI provided for 

phlebotomists had not been approved by a physician and surgeon. 

These deficiencies violate certain regulations. Blood samples must be 

collected in compliance with Vehicle Code section 23158.1 (Cal. Code Regs., 

tit. 17, § 1219.1 (hereafter title 17).) Section 23158 specifies the supervision 

requirements for certified phlebotomy technicians in subdivisions (e) and (g).

Of particular relevance here, the statute calls for phlebotomists to operate 

under procedures and policies approved by a physician and surgeon (id., 

subd. (e)), and to be supervised by individuals with certain credentials who 

review the phlebotomist’s work on a monthly and annual basis (id., subd. (g)). 

Either that supervisor or another qualified individual must also be available 

to consult with the phlebotomist within 30 minutes while the phlebotomist is 

working. (Ibid.)

After eliciting testimony to demonstrate these procedural failings, 

counsel argued that the test results could not be relied on due to SSI’s

regulatory violations. In her findings of fact, the hearing officer agreed there 

was a title 172 violation, but still relied on the lab report to conclude that 

1 Undesignated statutory references are to the Vehicle Code.

2 “Title 17 establishes the procedures for determining ‘the concentration 

of ethyl alcohol in samples of blood, breath, urine, or tissue of persons 

involved in traffic accidents or traffic violations.’ ” (Hernandez v. Gutierrez

(2003) 114 Cal.App.4th 168, 172; Cal. Code Regs., tit. 17, §§ 1215‒1222.2.)
4

Gerwig drove with a BAC at or above .08 percent. Since there was no 

evidence to suggest that Moreno was unqualified or that there was some 

particular problem with the blood test, she found no reason to doubt its 

accuracy. 

Gerwig sought writ review.3 Before the trial court, his counsel 

developed his legal argument in further detail: (1) in order to rely on the 

blood test, the DMV was required to lay a foundation for its admission at the 

hearing; (2) to do so it could rely on the presumption of Evidence Code section 

664, which posits official duties are properly performed, but only if the 

presumption was not rebutted;4 (3) Gerwig rebutted the presumption by 

showing violations of title 17; (4) after that, the DMV was obligated to 

provide an alternative basis for the test’s foundation; and (5) because it did 

not, it was improper for the hearing officer to rely on the test results. 

Although the trial court agreed that some aspects of title 17 were not 

3 Gerwig sued Jean Shiomoto in her official capacity as Director of the 

DMV and also named the Department. Although it appears to be a relatively 

common one, the addition of the DMV as a party was an error. (See City of 

Anaheim v. Bosler (2019) 42 Cal.App.5th 603, 606 [naming the Department of 

Finance in addition to the director was redundant]; City of Brentwood v. 

Campbell (2015) 237 Cal.App.4th 488, 492, fn. 3 [only the director was a

properly named party]; Stockton v. Department of Employment (1944) 25 

Cal.2d 264, 273 [explaining that a director’s authority to carry out the actions 

of his or her department makes the director the only necessary defendant in a 

suit].) Because Steve Gordon is the current director of the DMV, we list him 

as the proper defendant and respondent in this appeal. (See Ortega v. 

Johnson (2020) 57 Cal.App.5th 552, 556, fn. 1.) We refer to the DMV 

throughout as a convenient shorthand for Steve Gordon in his official 

capacity. (See Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052, 1056, fn. 5.)

4 Evidence Code section 664 provides in relevant part: “It is presumed 

that official duty has been regularly performed.” We refer to this section 

throughout when we reference the Evidence Code presumption.
5

complied with, it denied Gerwig relief on that basis since “[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.” 

DISCUSSION

Gerwig believes the trial court missed the point of his legal argument. 

He insists he had no obligation to show the test itself was unreliable, but 

rather that the DMV was required to demonstrate the contrary—that the 

results could still be trusted—after it lost the benefit of the Evidence Code 

presumption (which he rebutted by highlighting the title 17 violations). 

Although he couches his argument in more granular terms, the key question 

raised by Gerwig’s appeal is whether any violation of the regulations 

governing blood tests is enough to rebut the presumption. Before addressing

this further, we must explain in greater detail how the DMV hearings work 

and the evidentiary standards that govern them.

1. Background: Administrative Per Se Hearings

The DMV has authority to suspend the license of a motorist over the 

age of 21 who drives with a blood alcohol percentage of 0.08 or more under a 

statutory scheme commonly known as the “ ‘administrative per se’ ” law. 

(Lake v. Reed (1997) 16 Cal.4th 448, 454 (Lake); Veh. Code, § 13353.2 et seq.) 

The law was adopted to mitigate the danger posed by motorists who have 

already been arrested for DUI but have not yet been convicted. Because the 

criminal process is often protracted, this interim period can be lengthy and 

the concomitant risk to the public significant. (Lake, at p. 454.) 

Administrative suspensions also address situations where the motorist 

pleads to a lesser offense. (See, e.g., Coffey v. Shiomoto (2015) 60 Cal.4th 
6

1198, 1205 (Coffey) [Plaintiff was charged with DUI but was “allowed to plead 

to a ‘wet reckless,’ ” a misdemeanor reckless driving offense].)

When the DMV proposes to suspend a license based on a DUI arrest 

and a chemical test result, the licensee can request an administrative 

hearing. (§ 13353.2, subd. (c).) At the hearing, “the DMV is required to 

suspend a person’s driving privilege if it determines by a preponderance of 

the evidence that (1) a peace officer had reasonable cause to believe that the 

person had been driving a motor vehicle under the influence of alcohol or 

drugs, (2) the person was placed under arrest, and (3) the person was driving 

with ‘ “0.08 percent or more, by weight, of alcohol in his or her blood.” ’ 

[Citation] The DMV bears the burden of proof.” (Molenda v. Department of 

Motor Vehicles (2009) 172 Cal.App.4th 974, 985 (Molenda).)

These hearings operate with relaxed evidentiary standards. 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.” (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 

1348 (Petricka); see also Lake, supra, 16 Cal.4th at p. 467 for a discussion of 

evidentiary standards at DMV hearings.) This expedited process, which 

circumvents the authentication, foundation, and hearsay concerns that often 

accompany evidentiary submissions, is possible because the DMV routinely 

invokes Evidence Code section 664, which “ ‘creates a rebuttable presumption 

that blood-alcohol test results recorded on official forms were obtained by 

following the regulations and guidelines of title 17 [and] recorded test results 

are presumptively valid [such that] the DMV is not required to present 

additional foundational evidence.’ ” (Manriquez v. Gourley (2003) 105 
7

Cal.App.4th 1227, 1232; Evid. Code, § 664.) The presumption can, of course,

be challenged by a licensee at the hearing, as in this case. If the presumption 

is rebutted, “ ‘the burden shifts to the DMV to prove that the test was reliable 

despite the violation.’ ” (Roze v. Department of Motor Vehicles (2006) 141 

Cal.App.4th 1176, 1183.)

When a motorist’s license is suspended at a DMV hearing, the licensee 

can petition for writ review in the Superior Court. The trial court reviews the 

DMV decision, typically made by a hearing officer (§ 14104.2, subd. (a)), to 

independently determine “ ‘ “whether the weight of the evidence supported 

the administrative decision.” ’ ” (Lake, supra, 16 Cal.4th at p. 456.) On an 

appeal challenging the trial court’s conclusions as to the weight of the 

evidence, “we ‘need only review the record to determine whether the trial 

court’s findings are supported by substantial evidence.’ ” (Id. at p. 457.) 

Insofar as the trial court’s decision involves an interpretation of law, our 

standard of review is de novo. (Molenda, supra, 172 Cal.App.4th at p. 986.)

These evidentiary principles and standards of review are clear enough 

from the well-developed caselaw governing DMV administrative hearings. 

And here we accept the adequately supported factual finding that SSI’s 

noncompliance with certain Vehicle Code requirements violated title 17. 

(Cal. Code Regs., tit. 17, § 1219.1.) What remains unclear is whether a 

licensee who shows the kind of title 17 violation at issue in this case—

something that does not bear directly on the reliability of a test result—has 

successfully rebutted the Evidence Code presumption.

2. To Rebut the Evidence Code Presumption, the Licensee Must Present 

Evidence of a Title 17 Violation That Bears Some Reasonable Relation 

to the Reliability of the Test Results.

In Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133

(Davenport), the appellate court considered whether due process principles 
8

were offended by the DMV’s use of the Evidence Code presumption to

establish the reliability of chemical blood alcohol test results, particularly 

because such a procedure burdens the licensee with rebutting the 

presumption. The court held that a licensee’s due process rights were not 

violated by this approach, since DMV hearings are “altogether distinct from 

criminal trials, in which the accused is endowed with an overriding 

presumption of innocence.” (Id. at p. 144.) The court noted that the licensee 

has an opportunity to be heard at the hearing, and can subpoena individuals 

and obtain records to rebut the presumption. It concluded that allowing the 

DMV to rely on the Evidence Code presumption strikes an appropriate 

balance between any “hardship to the licensee” and “the urgent public need 

for an efficient and cost-effective means of removing from the public 

roadways the menace posed” by those who drive while intoxicated. (Id. at 

p. 145.)

Nestled in this portion of the court’s due process analysis is a sentence 

that can fairly be read to support Gerwig’s position. After explaining the 

Evidence Code presumption, the Davenport court wrote, “If the licensee 

shows, through cross-examination of the officer or by the introduction of 

affirmative evidence, 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.” (Davenport, supra, 6 Cal.App.4th at p. 144, italics added.) Relying 

on the “in any respect” clause, Gerwig contends that any evidence of a failure 

to follow regulatory requirements is enough to rebut the presumption and 

require the DMV to prove the reliability of the test results. (Ibid.) We must 

decide whether this “in any respect” language was meant to dispense with 

any requirement that the regulatory violation have a reasonable connection 

to the reliability question.
9

a. The focus and scope of the Davenport decision

We begin by observing that the context of Davenport’s “in any respect” 

language undermines the interpretation suggested by Gerwig. Immediately 

before this pronouncement, the opinion explained that “what is actually 

presumed under Evidence Code 664 is compliance with statutory and 

regulatory standards, which in turn gives rise to an inference of reliability.” 

(Davenport, supra, 6 Cal.App.4th at p. 144.) Given that the court had in 

mind this “inference of reliability,” it seems unlikely that in its very next pen 

strokes it meant to do away with any nexus between reliability and how the 

presumption can be rebutted. Furthermore, as the DMV points out, the 

question before the court in Davenport was not the threshold showing 

required to rebut the Evidence Code presumption. Thus, the “in any respect” 

comment is explanatory dicta. The DMV goes on to argue that implicit in 

Davenport’s explanation is that the “official standards” to which the court 

refers are regulations that bear some reasonable relation to the reliability of 

the test results. To buttress this interpretation, it discusses the two cases 

cited in Davenport to support the quoted statement, emphasizing that neither 

involved a violation of title 17 bearing no reasonable relationship to the 

accuracy of the chemical test. It maintains that the examples chosen by the 

Davenport court impose a necessary limitation on the otherwise broad 

language.

We agree that these two cases lend more support to the DMV’s position 

than to Gerwig’s. In Coombs v. Pierce (1991) 1 Cal.App.4th 568 (Coombs), the 

arresting officer utilized a Kern County breath testing machine to determine

the licensee’s blood alcohol percentage. At his DMV hearing, the licensee

Coombs demonstrated that the county was not licensed to use the particular 

instrument with which his breath sample was tested. (Id. at p. 577.) 
10

Although he argued the results were consequently incompetent, the hearing 

officer relied on them anyway. (Ibid.) The reviewing trial court affirmed his 

license suspension, finding sufficient evidence of the device’s reliability from 

its inclusion on a federal register of products generally approved for breath 

alcohol analysis. In reversing, the appellate court highlighted that the 

register “fail[ed] to provide the missing foundational proof” because it was 

“a far cry from showing that the listed models are deemed reliable wherever 

utilized”—or, more particularly, that it was used reliably in Kern County or 

in the licensee’s case. (Id. at p. 578.) 

We do not read Coombs as supporting the proposition that any violation 

of governing regulations is enough to rebut the Evidence Code presumption. 

To the contrary, the court’s concern that an entity without a license to use a 

particular device could misuse it, yielding inaccurate results, is implicit in its 

analysis. It is also clear from the summary at the end of the opinion that the 

court thought the license issue actually called the reliability of the test

results into question. Appellant Coombs cast doubt on the test’s validity 

when he demonstrated the laboratory was not licensed and authorized to use 

the device, but did so anyway to conduct the very test that was at issue in the 

hearing. (Coombs, supra, 1 Cal.App.4th at p. 581.) The nexus between his 

showing and the test’s reliability lies there.

Gerwig suggests there is a nexus between approved procedures, 

appropriate supervision, and the proper conduct of a blood draw.5 Of course, 

5 Although we understand Gerwig’s position on this point, it is simply 

not the case that every requirement in title 17 relates directly to the 

reliability of a chemical blood test. The regulations span a broad range, and 

some provisions—such as those mandating that the blood draw site and the 

outside of the collection vial never be cleaned with alcoholic swabs—are 

patently connected to the test’s reliability. (Cal. Code Regs., tit. 17, § 1219.1, 

subds. (b) and (d)(1).) Others are not. For example, part of the Vehicle Code 
11

on some indirect level he is correct, just as one could say that good nutrition 

and adequate rest are important to a phlebotomist’s job performance. But 

such factors, without more, are too tenuous to cast doubt on the reliability of 

the blood test results.

The second case cited in Davenport—People v. Adams (1976) 59 

Cal.App.3d 559 (Adams)—is further afield. It did not involve a violation of 

title 17 in the context of a DMV hearing. Rather, it considered whether

breath test results were inadmissible at trial after the defendant 

demonstrated the laboratory’s noncompliance with title 17 maintenance 

procedures involving calibration for the devices. (Adams, at p. 563.) In a 

holding expressly approved of in People v. Williams (2002) 28 Cal.4th 408

(Williams),6 the Adams court determined that regulatory noncompliance did 

incorporated into title 17 requires phlebotomists to always carry an 

identification card (ID). (Veh. Code, § 23158, subd. (f).) If a certified 

technician left her ID at home inadvertently while answering a midnight call, 

that violation cannot be seriously contended to have affected the blood draw. 

Another section on proper training for those who administer breath tests 

mandates that successful students receive a certificate with their name, ID or 

badge number, their agency, and their instructor. (Cal. Code Regs., tit. 17, 

§ 1221.2.) If a clerical error resulted in the certificate misreporting some of 

this information for an otherwise properly trained operator, we cannot 

imagine how that would bear on the reliability of the tests the operator 

conducts.

6 The DMV relies on the Williams opinion to support its position, but the

case helps the DMV no more than Adams helps Gerwig. Just as in Adams, 

Williams considered whether regulatory noncompliance regarding a breath 

test justified a new exclusionary rule at trial and concluded it did not. 

(Williams, supra, 28 Cal.4th at p. 415.) In its analysis, it noted that 

prosecutors can show their evidence is reliable either by demonstrating 

“compliance with the title 17 regulations or independent proof of [] three 

elements,” specifically, “(1) the reliability of the instrument, (2) the proper 

administration of the test, and (3) the competence of the operator.” 

(Williams, at p. 414, adopting the factors described in Adams, supra, 59 
12

not mandate a new exclusionary rule. Although following regulations 

provided a “simplified method” for admitting test results, the People could 

alternatively show their evidence was competent by “qualify[ing] the 

personnel involved in the test, the accuracy of the equipment used and the 

reliability of the method followed.” (Adams, at p. 567.) And if the evidence 

was admitted that way, the defendant was “entitled to attempt to discredit 

the results by showing that noncompliance affected their validity.” (Ibid.)

Adams thus rejected the argument that regulatory noncompliance makes test 

results inadmissible at trial—and did not comment on the precise issue 

before us. But its rationale, including its commentary on the defendant’s 

right to discredit the results, puts emphasis on the nexus between the 

regulatory violation and the test’s reliability. Under Adams, a defendant who 

has unearthed some evidence of regulatory noncompliance can use that to 

attack test results—but the persuasive power of the attack will depend on 

how the noncompliance affected the test.

In short, Davenport’s statement in dicta that a regulatory violation “in 

any respect” is sufficient to rebut the Evidence Code presumption is followed 

by case citations that do not mandate a rigid and technical reading of this 

language. And even if we were to accept the statement as authoritative, it is 

at best unclear whether it was intended to eliminate any required nexus 

between the violation and the accuracy of the test results. We therefore look 

to other cases involving title 17 violations at DMV hearings, and find the

Cal.App.3d at p. 567.) Although the Williams decision discussed evidentiary 

reliability in general, it did so in the context of a trial, with the full 

evidentiary submission standards that accompany those proceedings. The 

Williams court did not comment on what type of title 17 violation would be 

necessary to rebut the Evidence Code presumption at a DMV administrative 

hearing.
13

caselaw is concerned with whether the licensee demonstrated there was a

reason to doubt the reliability of the test.

b. Other relevant caselaw confirms that the claimed regulatory 

violation must relate to the reliability of the test results.

We find some guidance for the question before us in other cases that

have considered similar arguments. Of foundational importance to our task 

is the decision in Petricka, supra, 89 Cal.App.4th 1341. There, the licensee 

objected to the admission of the officer’s sworn statement and his blood test 

results at his administrative hearing, but (unlike this case) submitted no 

evidence challenging the test results or demonstrating noncompliance with 

title 17. (Petricka, at p. 1346.) Petricka’s reliance on his objection alone to 

undermine the Evidence Code presumption convinced the trial court, but not 

the court of appeal. The reviewing court stated that the presumption 

“applie[d] and satisfied the DMV’s initial burden of proof,” adding that “[t]he 

burden then shifted to Petricka to show that the officer did not carry out his 

official duties, including that proper procedures for blood collection were not 

followed.” (Id. at p. 1350, italics added.) Here, the title 17 violations argued 

by Gerwig and found by the hearing officer do not show any errors of practice 

or procedure by the officer or the phlebotomist with respect to the collection 

or testing of Gerwig’s blood sample.

Similarly supportive of our conclusion is the reasoning of two cases in 

which the appellate court concluded that the licensee had successfully 

rebutted the Evidence Code presumption and shifted the burden back to the 

DMV to prove the reliability of the test results. Freitas v. Shiomoto (2016) 

3 Cal.App.5th 294 (Freitas) and Najera v. Shiomoto (2015) 241 Cal.App.4th 

173 (Najera), both relied on by Gerwig, involved the same laboratory error: 

potential misuse of a dual chamber gas chromatography device. The 

licensees called the same expert witness in both cases. She testified that 
14

their lab results, which recorded readings from only one chamber of the

machine, indicated the lab was relying on one data point (from a single 

chamber) when it needed to compare two (from both chambers) to yield 

accurate results. In both cases, the court of appeal concluded that the

witness rebutted the Evidence Code presumption and shifted the burden 

back to the DMV to show the results were reliable despite the missing data 

from the device’s second chamber. (Freitas, at p. 303; Najera, at p. 184.) 

Interestingly, Freitas analyzed the lab mistake as noncompliance with state 

regulations, which mandate that “blood-testing method[s] must be capable of 

alcohol analysis adequate for enforcing the law”—a requirement that single

chamber gas chromatography can never meet. (Freitas, at p. 302; Cal. Code 

Regs., tit. 17, § 1220.1, subd. (a)(2).) Najera did not consider the lab’s

mistake a violation of title 17, but the result was the same; because the 

second chamber issue made reliance on the blood test dubious, the DMV 

failed to satisfy its burden of proving that the test results were accurate. 

This varied analysis of substantially the same laboratory problem highlights 

that the reliability of the test is the paramount concern in rebutting the 

Evidence Code presumption.7

7 The caselaw is further scattered with comments that emphasize 

substantive reliability in analyzing the import of regulatory violations. (See 

Baker, supra, 81 Cal.App.4th at p. 1174 [“ ‘[T]he purported “flaw” does not 

break the chain of custody at all, there can be no reasonable basis for 

inferring that the blood sample was somehow contaminated or tainted.’ ”];

Delgado v. Department of Motor Vehicles (2020) 50 Cal.App.5th 572, 579

(Delgado) [“[In other cases] there was affirmative evidence that the test was 

not conducted or reported properly. No such evidence exists here.”]; Imachi v. 

Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 817 [“Accordingly, 

faced with a report of chemical test results, the burden would be on the 

licensee to demonstrate that the test was not properly performed.”]; Coffey, 

supra, 60 Cal.4th at p. 1206, fn. 8. [“[T]est results are presumptively valid.”]; 

McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 525
15

Gerwig attempts to analogize his case to Freitas by positing that a 

phlebotomist can be improperly “used,” just like a dual chamber gas 

chromatography device, if he or she is not properly supervised. But this 

forced comparison breaks down precisely due to the difference in reliability. 

The dual chamber device in Freitas and Najera gave demonstrably inaccurate 

readings when it was not used as intended. In contrast, the phlebotomist in 

this case (Moreno) is a person who presumably conducts blood draws, which 

he is trained to do, in the same way regardless of the general supervision he 

receives. 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 

Gerwig’s blood draw presented a problem the lackluster supervision structure 

at SSI left Moreno ill equipped to address.8

In summary, although a literal reading of a single sentence in 

Davenport’s dicta might facially support Gerwig’s argument, the caselaw 

weighs heavily in favor of the DMV’s position. We decline to read this 

[“Given the statutory presumption that official duty has been regularly 

performed (Evid. Code, § 664), the burden was on the person challenging the 

result [] to show that there was some irregularity in the administration of the 

test such as would bring into question the reliability of the [blood alcohol 

level] readings.”]; Morgenstern v. Department of Motor Vehicles (2003) 111 

Cal.App.4th 366, 374 [“[T]he flaw in this argument is that it appears to 

assume the focus of Evidence Code section 664 is on the officer’s duty to fill 

out the form DS 367, rather than the officer’s performance of his duties to 

properly conduct the breath test with properly functioning equipment.”].)

8 The result might be different if, for example, the phlebotomist testified 

that he tried unsuccessfully to reach a supervisor by phone to ask a question 

concerning Gerwig’s blood draw. (See § 23158, subd. (g) [A supervisor “shall 

be accessible to the location where the technician is working to provide 

onsite, telephone, or electronic consultation, within 30 minutes when 

needed.”].)
16

sentence in isolation, ignoring the surrounding caselaw that gives it 

necessary context and meaning. Here, the type of title 17 violation 

highlighted by Gerwig “shows no more than a mere possibility that the 

integrity of the sample was not maintained. Such speculation is insufficient 

to support a reasonable inference that the integrity of the sample was, in fact, 

compromised.” (Baker, supra, 81 Cal.App.4th at p. 1174.) In line with the 

general principle that the licensee’s attempt to rebut the Evidence Code 

presumption “ ‘cannot rest on speculation,’ ” we conclude that showing any 

violation of title 17 is not sufficient in and of itself. (Delgado, supra, 50 

Cal.App.5th at p. 577; Petricka, supra, 89 Cal.App.4th at p. 1348.) The 

licensee must present some evidence that the demonstrated violation gives

rise to a reasonable inference that the test results are unreliable.

DISPOSITION

The order denying the petition for writ of mandate is affirmed. Gerwig 

will bear costs on appeal.

DATO, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.