Filed 7/7/1 7 ; pub. order 7/ 28/17 (see end o f opn .)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MATTHEW D. MURPHEY, Plaintiff and Respondent ,

v. JEAN SHIOMOTO, as Director, etc., Defendant and Appellant. D069557

(Super. Ct. No. 37

- 2015

- 00017429

- CU

- WM

- CTL)

APPEAL from an order of the Superior Court of San Diego County,

Lisa Schall, Judge. Reversed and remanded with direction s.
Kamala D. Harris and Xavier Becerra , Attorney s General, Chris A. Knudsen, Assistant Attorney General, Christine Mersten and Connie A. Broussard , Deputy Attorneys General, for Defendant and Appellant

. White & Amundson, Daniel M. White; Gregor Law Offic es and T. Steven Gregor

for Plaintiff and Respondent

.2 I.

INTRODUCTION In this appeal, we consider whether the trial court erred in granting a petition for writ of administrative mandate ordering the Department of Motor Vehicles (the Department) to rescind an order suspending the driver ' s license of a person arrested for driving under the influence ( Veh. Code, § 23152, subd. (a)) 1 and awarding attorney fees and costs to the person. We reverse the trial court ' s order granting the writ petition and awarding attorney fees and costs and remand the matter to the trial court with directions to deny the petition in its entirety.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The arrest and driver ' s license suspension California Highway Patrol Officer M. Oka 2 arrested respondent Matthew D. Murphey for driving under the influence (§ 23152, subd. (a)). The Department issued an order suspending Murphey ' s driver ' s license pursuant to t he administrative per se law
(§ 13353.2). 3 Murphey requested an administrative hearing in order to challenge the

1 Unless otherwise spec ified, all subsequent statutory references are to the Vehicle Code. 2 Officer Oka ' s first name does not appear in the record. 3 " The administrative per se procedure is the means by which the Department suspends or revokes a motorist ' s driver ' s license fo r driving under the influence or for refusing to submit to a chemical test under the implied consent law. ' The procedure is called " administrative per se " because it does not impose criminal penalties, but simply suspends a person ' s driver ' s license as an administrative matter upon a showing the person was arrested for driving with a certain blood

- alcohol concentration, without3

suspension. A Department hearing officer held a hearing and issued a written order upholding the suspension. In her order, the hearing officer found that Murphey had driven with a blood alcohol content of .08 percent or higher, as required to sustain the suspension. 4

B. Murphey '

s petition for writ of administrative mandate Murphey filed a petition for writ of administrative mandate against Jean Shiomoto, in her capacity as Director of the Department, requesting that the trial court direct the Department to rescind the orders suspending his license. 5 In his petition, Murphey contended that the suspension was invalid because it was not supported by evidenc e in

the administrative record. Specifically, Murphey maintained that the hearing officer erred in relying on Officer Oka ' s sworn report (DS 367) 6 and Officer Oka ' s unsworn arrest report (collectively " the Reports " ) because the Reports contai ned " physical impossibilities, " concerning the time that Murphey ' s blood was drawn for a blood alcohol test and the time that he was booked into jail. Murphey argued that these additional evidence of impairment. ' " ( Espinoza v. Shiomoto ( 2017) 10 Cal. App.5th 85, 98 .) 4 The hearing officer also found two additional elements needed to sustain the suspension, namely, that Officer Oka had reasonable cause to believe that Murphey was driving a motor vehicle in violation of one of various Vehicle Code provisions (including § 23152) and that Murphey had been law fully arrested. 5 While this appeal was pending, Murphey filed an unopposed motion to correct the caption of this appeal. Murphey contended that the trial court ' s order granting his writ petition incorrectly named the Department as a party. Murphey req uested that we correct the caption to reflect Shiomoto in her capacity as Director of the Department as the proper appellant. We correct the caption to reflect the proper appellant. However, we refer to Shiomoto as " the Department " for ease of reference throughout this opinion. 6 The sworn report is a filled out form issued by the Department. " DS 367 " refers to the form number.4

" impossibilities " rendered the Reports " unreliable and insufficient to sustain the suspension of [his ] driver ' s license. " Murphey also claimed that he was entitled to an award of attorney fees and costs due to the Department ' s " arbi trary and capricious

decision. " The Department filed a return to the petition and a brie f in opposition. In its opposition, the Department argued that the undisputed evidence that the De partment offered at the administrative hearing established each element necessary under the administrative per se la w to suspend Murphey ' s license. The Department also argued that there was no basis for finding that Murphey had not driven with a prohibite d blood alcohol level, " [n]otwithstanding the presence of some error about the precise times of

the blood draw and jail booking. " Finally, the Department maintained that Murphey ' s request for attorney f

ees lacked merit. Murphey filed a reply brief.

The trial court held a hearing on the writ petition. After hearing argument from counsel, the court stated that it would grant the petition for writ of mandate and award Murphey attorney fees and c osts. The court subsequently issued a written order granting Murphey ' s writ petition and awarding him attorney fees and costs. The court ' s order states in relevant part:

" The court, having consider ed the papers filed both in support of and in opposition to the Petition, the administrative record lodged with the cou rt, the files and records in this action, as well as the arguments of counsel and having exercised its independent judgment on the evidence , has determined and ruled that the Petition is granted because the admin istrative findings and decision are not supp ort ed by the record in this matter. "5

C. The appeal The Department appeals the trial court ' s order granting Murphey ' s writ petition and awarding attorney fees and costs.

III.

DISCUSSION

A. The trial court erred in granting Murphey ' s petition for writ of administrative mandate The Department claims that the trial court erred in granting Murphey ' s petition for

writ of administrative mandate

. The Department ' s primary contention is that the trial court erred in determining that the Reports were inadmis sible

. The Department further argues that because the Reports were admissible, and because the undisputed evidence established all of the elements necessary to support the suspension of Murphey ' s driver ' s license, including that Murphey drove with a blood alcohol level of .08 percent or higher, the trial court erred in granting Murphey ' s petition directing the Department to rescind the

suspen sion.

1. Governing law

a. Administrative per se proceedings

In Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 12 07

– 12 08 ( Coffey ), the Supreme

Court reviewed California ' s administrative per se law (§ 13353.2, et seq.), " ' under which a person arrested for driving under the influence of alcohol, and who is determined to have a prohibited amount of alcohol in his or he r blood, must have driving privileges6

suspended prior to an actual conviction for a criminal offense. ' " ( Coffey , supra , at p. 1207.) The Coffey court summarized the admini strative per se law as follows:

" Pursuant to the administrative per se law, ' [a]ft er either the arresting officer or the [Department] serves a person with a " notice of an order of suspension or revocation of the person ' s [driver ' s license], " the [Department] automatically reviews the merits of the suspension or revocation. [Citation.] The standard of review is preponderance of the evidence [citation], and the department bears the burden of proof [citation s ]

. ' [Citation.] A driver served with such a suspension notice is entitled to a hearing on request [citation], at which the only is sues to be decided . . . are whether the arresting officer had reasonable cause to believe she was driving, whether she was arrested for an enumerated offense, and whether she was driving with 0.08 percent [blood alcohol content] or higher [ c itation]

. If the [Department] hearing officer finds these three statutory prerequisites proved by a preponderance of the evidence, the accused ' s driver ' s license will be su spended . . . . " 7 ( Id. at pp. 1207

– 1208, i talics added.)

b. The rebuttable presumption that a person drove with a prohibited blood alcohol level

Section 2 31 52, subdivision (b) provides:

" In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving. "

" Although the statutory language speaks in term s of a ' prosecution, ' several Courts of Appeal have held this presumption is not limited to criminal prosecutions but also

7 In a footnote omitted from the quotation by way of the first ellipses, the Coffey court explained that " [s] omewhat different rules apply to those under 21 years of age [citation] , those driving commercial vehicles [citation] , and those on probation for prior drunk driving convictions [citation]

. " ( Coffey , supra , 60 Cal.4th at p. 1208 , fn. 9.)7

applies in administrative license suspension proceedings. " ( Coffey , supra , 60 Cal.4th at p. 1208.) This court is among the courts t hat have so held. (See Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 740 ( Jackson ).) Although the Supreme Court has not decided the issue (see Coffey , supra , 60 Cal.4th 1198), we follow Court of Appeal precedent concluding that the r ebuttable presumption codified in section 2 31 52, subdivision (a) applies to administrative per se proceedings because neither party makes any argument to the contrary.

2. Factual and procedural background

a. The relevant evidence

The administrative record 8 contains Officer Oka ' s sworn report (DS 367), which is mandated by section 13380. (See pt. I I, ante .) The sworn report lists Murphey ' s name near the top of th e form. The for m then states the following pre printed information:

" On __________ at _

____ AM/PM in (City and County)

________ CA, the above named driver was: □ Driving : □ observed by this officer "

Officer Oka filled in " 3/1/15 " and " 2:50 " in the appro priate blanks and circled

AM. Officer Oka then wrote " S AN DIEGO, S AN DIEGO " in the appropriate spaces and

checked boxes next to the words " Driving " and " observed by this officer. "

8 Murphey contends that the admin istrative record that the Department lodged in this court does not contain the actual documents that were lodged with the trial court. Specifically, Murphey contends that the documents lodged with this court contain highlighting and annotations that were not on the documents in the administrative record in the trial court. Nevertheless, Murphey states that he " does not object " to the Department ' s alleged failure to provide the proper record before this court. Accordingly, we assume for purposes of this d ecision that the Department has provided an adequate record to permit this court to review its claims on appeal.8

The form also contains the following pre printed information:

" Blood Test Results □ Blood Test on _________________________ AM/PM " 9 DATE TIME

Officer Oka checked the box next to " Blood Test, " wrote " 3/1/15 " and " 3:57 " in the appr opriate spaces, and circled AM. Officer Oka signed the form under penalty of

per jury on March 1, 2015.

The administrative record also contains Officer Oka ' s unsworn arrest report. The arrest report indi cates that the incident took pla ce at 2:50 a

. m
. on March 1, 2015. In a portion of the report entitled " CHEMICAL TEST INFORMATION, " under the headings

" TYPE OF TEST " and " TIME, " Officer Oka checked a box next to the word " Bloo d, " and typed " 0357. " Under " LOCATION WHERE TEST WAS CONDUCTED, " the

wo rds " S AN DIEGO CHP " are typed. The report also indicates that " P HLEBOTOMIST

DAVID CATO " was the person who took the blood sample. In a narrative portion of the form, Officer Oka stated the following concerning

Mu rphey ' s arrest and the draw of Murphey ' s blood for a blood test:

" Murphey was placed under arrest at approximately 0300 hours. I advised Murphey of implied consent and [he] elected to take the blood test. My partner and I transported Murphey to the San D iego CHP Office for the blood test. At 0357 hours I watched certified Phlebotomist David Cato draw two vials of human blood from start to finish from Murphey ' s right arm. Upon completion of the blood draw I received possession of the blood packet with th e two vials and it remained in my possession until it was booked into the CHP San Diego Area Office for evidence. Murphey was subsequently

9 Although the Department ' s form refers to a " [ b ] lood [ t ] est " (italics added) , it is undisputed that this time is intend ed to refer to the tim e of a blood draw for a subsequently conducted blood test.9

transported to the San Diego Sheriff ' s Central Jail for booking. Admin[istrative] per se procedures were followed. " The arrest report also states the following. In a box labeled " WHERE BOOKED/CONFINED, " the words " San Diego Co. Jail " are typed. In an adjacent box

labeled " DATE/TIME, " " 0 3/ 0 1/2015 0355 " are typed, indicating that a law enforcement

officer booked Mur phey into the jail at 3:55 a.m. In a nearby box, the form also has the

word " TIME " printed with " 0401 " typed next to it, and information pertaining to an " ID "

and " LOG. " Although not clear from the arrest report, Murphey contends that this latter

informa tion indicates that Murphey was issued an " inmate bracelet " at the jail at

4:01 a.m. We assume for purposes of this decision that Murphey is correct. The unsworn arrest report indicates that Officer Oka prepared the report on March 1, 2015

and that a Ser geant J. Aboy reviewe d the report the following day. Finally, the administrative record contains a laboratory report indicating that Murphey ' s blood alcohol level from the March 1, 2015 incident was .16.

b. The introduction of the evidence at the admi nistrative hearing The Department offered Officer Oka ' s sworn report, Officer Oka ' s unsworn arrest report, and the laboratory report in evidence at the administ rative per se hearing. Murphey 10 objected to the introduction of each document on the ground th at each document was hearsay. Murphey also specifically contended that none of the documents were admissible pursuant to the public employee records exception to the hearsay rule

10 Murphey appeared in propria persona at the administrative hearing.10

contained in Evidence Code section 1280. 11 The hearing officer overruled all of Murphey ' s objections and admitted eac h of the documents in evidence. The hearing officer relied on the Reports in determining that Murphey had driven with a blood alcohol content of .08 percent or higher. 12

c. Proceedings concerning the evidence in the trial court and the trial court ' s ruling granting Murphey ' s writ petition In his brief in support of his writ petition, Murphey argued that the Reports were

" unreliable and inadmissible, " and that " physical and temporal impossibilities in the

reco rd establish that the Department failed to meet its initial burden o f proof. " (Formatting omitted.) The People filed an opposition in which they argued that

" Murphey has not presented the Court with any reason to conclude his blood draw was

made more tha n three hours after the time he was driving, " and that the " slight time

v ariances " in the arrest report did not supp ort granting the writ petition. The trial court held a hearing at which counsel for the Department argued that the

" plainly admissible swor n and unsworn arrest reports " s upported denying the petition. Murphey ' s counsel argued that the Department was required to " establish[ ] the time of

11 The hearing transcript for the administrative hearing also indicates that Murphey filed a legal brief in support of his evid entiary objections. Although that report is not contained in the administrative record lodged on appeal, Murphey states in his brief that he " does not seek augmentation of the record " to include that brief, and presents no argument that the absence of the brief in the record renders the record inadequate to review the Department ' s appeal. 12 As noted previously (see pt. II.A, ante ), the hearing officer also found that Officer Oka had reasonable cause to believe that Murphey was driving a motor vehicle in
v iolation of one of various Vehicle Code provisions (including § 23152) and that Murphey had been lawfully placed under arrest.11

the blood draw, " and that the Department could not meet its burden to establish this fact

because of the " physical impossi bilities " in the arrest report. Near the end of the hearing, the court stated the following:

" I think in this case the hearing officer did not have sufficient weight of evidence to in fact order the suspension. I think that you cannot ext rapolate simply from other evidence and presume when we have the introduction of the report writing that is always arguably argued to be valid and accurate in these hearings. This one was really a disparity from the ones I have seen where there are I thin k scrivener errors. This is a key part of any report taking that should have been considerably more detailed and it wasn ' t. " Shortly thereafter, the court issued its final ruling, stating:

" I am going to grant the writ of mandate. I am not going to rem and it [to the Department for the taking of additional evidence]. I do believe that the opinion that was rendered by the hearing officer was evidence

-- there was elements of it showing [an] arbitrary decision

making process. [Murphey is] the prevailing party now and you are entitled to your fees and costs. "

3. The trial court abused its discretion in determining that the Reports were inadmissible The Department contends that the trial court erred in determining that Officer

Oka ' s sworn and unswo rn reports were inadmissible. 13 We apply the abuse of discretion

13 It is not entirely clear that the trial court ruled that the Reports were inadmissible and granted the writ petition on this b asis, or whether the trial court merely concluded that, even if the Reports were admissible, the weight of the evidence did not support the administrative decision. (See p t

. III. A.2.c , ante [quoting ruling].) In light of this lack of clarity, we consider whether the order may be affirmed on either ground. (See Thompson v. Asimos (2016) 6 Cal.App.5th 970, 98 1 [ " ' A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its corr ectness ' " ].) In this section, we assume that the trial court intended to rule that the Reports were inadmissible, and consider whether the court committed reversible error in so ruling. In part III.A.3, post , we consider whether the court erred in concl uding12

standard of review to this claim. (See, e.g., Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1217 ( Miyamoto ) [abuse of discretion standard or review applies to appella nt ' s challenge to trial court ' s evidentiary ruling in action seeking petition for writ of administrative mandate seeking to overturn the Department ' s suspension of
party ' s driver ' s license after administrative per se hearing]; Lee v. Valverde (2009) 178

Ca l.App.4th 1069, 1075 [same].) 14

a. Relevant evidentiary rules

i. Evidentiary rules applicable in administrative per se hearings

In Miyamoto , supra , 176 Cal.App.4th at pages 1216

– 1217 , the court outlined the rules governing the admissibility of evi dence in adm inistrative per se proceedings:

" The rules governing the evidence available for use in [Department] administrative per se hearings ' are set forth in . . . the Vehicle Code, commencing with section 14100. (§ 14100, subd. (a).) Two provisions a re especially relevant. First, . . . section 14104.7 states in pertinent part: " At any hearing, the department shall consider its official records and may receive sworn testimony

. " . . . Second, for all matters not specifically covered by . . . the Vehicl e Code . . . section 14112 incorporates the provisions of the Administrative Procedures Act governing administrative hearings generally. (Gov. Code, § 11500 et seq. . . .) ' [Citation.]

that, even assuming the Reports were admissible, the weight of the evidence did not support the administrative decision. 14 The parties disagree as to the appropriate standard of review to be applied. This disagreement appears to stem from the lack of clarity with respect to the precise nature of the trial court ' s ruling. (See fn. 13, ante .) As explained in footnote 13, we consider both possible bases for the trial court ' s ruling. In this part, we apply the abuse of discretion standard of review t o our review of the trial court ' s implied determination that the Reports were inadmissible. As explained in part III.A.3, post , we apply the substantial evidence standard of review in determining whether the court erred in concluding that the weight of th e evidence did not support the hearing officer ' s decision

.13

" Government Code section 11513 addresses the admissibility of eviden ce generally in administrative hearings. [Citation.] It provides in relevant part: ' (c) The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be adm itted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence ov er objectio n in civil actions. [¶] (d) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but .

. . shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. ' (Gov. C ode, § 11513, subds. (c) , (d).) " (Italics omitted.) Section 13380, subdivision (a) mandates that " [i] f a peace officer. . . arrests any person for a violation of Section . . . 23152 . . . the peace officer shall immediately forward to the department a s worn report of all information relevant to the enforcement action, including information that adequately identifies the person, a statement of the

officer ' s grounds for belief that the person violated Section . . . 23152 . . . , [and] a report

of the resul ts of any chemical tests that were conducted on the person. " Section 13380, subdivision (b) provides, " The peace officer ' s sworn report shall be made on forms furnished or approved by the department. " Where an officer files a sworn statement with the Dep artment, the officer ' s unsworn arrest report is admissible at the administrative per se hearing to supplement the
sworn report. " [I]t is consistent with the relaxed evidentiary standards of an administrative per se hearing that technical omissions of proo f can be corrected by an unsworn report filed by the arresting officer. " ( MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 159.)14 ii. The public employee record exception to the hearsay rule Evidence Code section 1280 provides:

" Evidence of a writing ma de as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the sc ope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness. "

" Assuming satisfaction of t he exception ' s other requirements, ' [t]he trustworthiness requirement . . . is established by a showing that [a police officer ' s] written report is based upon the observations of public employees who have a duty to observe the facts and report and record t hem correctly. ' " ( Gananian v. Zolin (1995) 33 Cal.App.4th 634, 640 ( Gananian ), fn. omitted [stating that a police officer ' s sworn report qualifies as an admissible public record under Evidence Code section 1280 in an administrative per se proceeding even to the extent that it reports a second officer ' s
observations because the second officer " was acting pursuant to his duty as a police officer to observe the facts and report them correctly " ( Gananian , supra , at p. 641)].)

iii. The presumption in favo r of the performance of an official duty Evidence Code section 664 provides:

" It is presumed that official duty has been regularly performed. " In an administrative per se proceeding, " An officer ' s statement relating firsthand observations meets [the crit eria outlined in Evidence Code section 1280] and ' " the statutory presumption of duty regularly performed (Evid. Code, § 664) shifts the15

foundational, method

- of

- preparation burden in this situation, " ' requiring the licensee to

show that the officer failed in his or her duty to observe and correctly report the events

described in the statement. " ( Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 547 ( Santos ) ; accord Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 373 ( Morgenstern ) [ " Where it is applicable, the presumption [in Evidence Code section 664] shifts the burden of proof to the party against whom it operates to establish the nonexistence of the presumed fact " ].)

b. Application The Department contends that the Reports were admissible pursuant to the public employee record exception to the hearsay rule. (See Evid. Code, § 1280.) There is no dispute that the Reports were " made by and within the scope of duty of a public employee " (Evid. Code, § 1280, subd. ( a)) , and were " made at or near the time of the act, condition, or event " (Evid. Code, §1280, subd. (b)). With respect to the final element necessary to establish the admissibility of the Reports pursuant to the exception, whether the " sources of informati on and method and time of preparation were such as to indicate its trustworthiness " (Evid. Code, §1280, subd. (c)), the Reports were based on Officer Oka ' s personal observations, 15 the statements were recorded on official forms, and the statements were draf ted near the time

15 We reject Murphey ' s circular contention that the " ' sources of information, ' for the statements in the Reports about the time of the blood draw are Officer Oka ' s recitation of times and places

. " (Italics added.) The " sources of information " (Evid. Code, § 1280, subd

. (c)) for the statements in the Reports are not the statements themselves (as Murphey appears to contend), but rather, as we state in the text, Officer Oka ' s personal observations.16

of the events in question. Thus, the Reports were presumptively admissible. (See

Gananian , supra , 33 Cal.App.4th at p. 64 2 [ " ' " [t]he trustworthiness requirement [of Evidence Code section 1280] . . . is established by a showing that [a police officer ' s] written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly " ' " ]; Santos , supra , 5 Cal.App.4th at p. 547 [stating that an officer ' s statement based upon per sonal observations satisfies Evidence Code section 1280 and the statutory presumption of duty regularly performed (Evid. Code, § 664) shifts the burden to a licensee to demonstrate that the officer failed in his duty to observe and correctly report events in the statement].) 16 The trial court appears to have agreed with Murphey that the Reports were

inadmissible because the y were untrustworthy. In his brief in the trial court, Murphey contended that the Reports were " unrel iable and inadmissible " because th e physical

distance between the Central Jail and the CHP station demonstrated that statements in the unsworn arrest report that Murphey was booked into jail at 3:55 a.m., his blood was

drawn at the CHP Station at 3:57 a.m., and he received an ID bracelet f rom the jail at

4:01 a.m. could not be accurate. 17 For the following reasons, the trial court abused its discretion in implicitly accepting this argument.

16 It is undisputed that Murphey presented no other evidence at the administrative hearing upon which the trial court could have reasonably determined that the presumption in favor of admissibility had been rebutted. 17 Although Murphey does not cite to an ything in the record establishing the location of the Central Jail or the CHP Station, we assume for purposes of this decision that Murphey is correct that it would be physically impossible for him to be booked into the17

Most fundamentally, any inaccuracy in the arrest report as to the time that Murphey was booked into jail (or had his blood drawn) was not material with respect to any of the elements that the Department was required to establish at the administrative per se hearing. Specifically, any such inaccuracy did not provide any reasonable basis for determining t hat Murphey ' s blood was not drawn within three hours of him having driven, and therefore, did not undermine the presumption that he had driven with a proh ibited blood alcohol content (§ 23152, subd. (b)). More specifically, it is

unreasonable to determine that any error with respect to the exact times that Murphey was booked into jail or had his blood drawn rendered the report untrustworthy with respect to whether Murphey ' s blood was drawn within three hours of him driving,

because the times stated in the arrest report with respect to the booking and blood draw

both were well within three hours of Officer Oka having witnessed Murphey driving. 18 Thus, the Reports constituted evidence that Murphey " had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test

within three hours after . . . driving, " and thus established " a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle. " (§ 23152, subd. (b).)

Central Jail at 3:55 a.m., for his b lood to be drawn at the CHP Station at 3:57 a.m., and for him to have an identification bracelet issued at the Central Jail at 4:01 a.m. 18 As noted previously, the arrest report stated that Officer Oka observed Murphey driving at approximately 2:50 a.m. a nd that Murphey was booked into jail an hour and five minutes later, at 3:55 a.m., and that his blood was drawn an hour and seven minutes after he was seen driving at 3:57 a.m.18

This is not a case in which the reported booking time and blood draw time were

near the three

- hour time window referred to in section 23152, subdivision (b). If that were the case, and if it were physically impossible for both times to be exactly accurate, an argument could be made that such inaccuracy would make it reasonable for a trial court to exercise its discretion in excluding the report. 19 However, in this case, even assuming that Murphey is correct that it would b e " physically impossible " for Murphey

to have been booked into the Central Jail at 3:55 a.m. and had his blood drawn at the CHP Station two minutes later at 3:57 a.m., such impossibility suggests only that Officer Oka may have actually observed Murphey ' s b lood being drawn slightly earlier or slightly

later than 3:57 a.m. (approximately an hour and ten minutes after having observed him drive). It is unreasonable to determine that the arrest report is inadmissible on the ground that the error with respect to the recording of the exact times that these two events occurred in the arrest report demonstrates that the actual time that Officer Oka observed the blood draw may actually have been more than three hours after the observation of driving (i.e. , after 5:50 a.m .). This is particularly true since the narrative portion of Officer Oka ' s arrest report makes clear that Officer Oka observed Murphey having his blood drawn before Murphey

19 A counter argument would be that any such inaccuracies go to the weight, rat her than the admissibility of the R eports. (See Santos , supra , 5 Cal.App.4th at p. 549 [ " While the absence of evidence of the time [licensee ' s] blood sample was taken did not render the test result inadmissible, without such evidence the Department simply could not meet its burden of proof " ].) However, we need not decide this question in this case because there is no evidence from which a reasonable person could find that the testing occurred more than three hours after Murphey had driven.19

was transported to the jail. It was thus unreasonable for the trial court to have implicitly determined that the arrest report is untrustworthy with respect to whether Officer Oka observed Murphey having his blood drawn within three hours of having seen Murphey drive (§ 23 15 2, subd. (b)), given that the arrest report indicates that Murphey was booked into jail approximately an hour and five minutes after driving and that his blood was

drawn before being taken to jail. It was even more unreasonable to determine that the

sworn report, which states that the blood test occurred at 3:57 a.m. and has no information suggesting any inaccuracy with respect to this time, was also inadmissible. 20

The unreasonableness of the trial court ' s determination that the Reports were inadmissible is further supported by the fact that case law is clear th at the Department need not establish the exact time that a chemical test is administered as long as it may reasonably be inferred that the test was administered within three hours of the licensee having driven. (See Jackson , supra , 22 Cal.App.4th at p. 74 0 [ " Although there was no direct evidence of the time of driving, reasonable inferences supported a finding the chemical test indicating a blood

- alcohol level of .08 percent was performed within three

hours of Jackson ' s driving and thus invoked the statuto ry presumption " ]; Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 390 ( Burge ) [evidence in administrative record supported determination that intoxilyzer test was given within an hour of first observation of driver despite the fact that Dep artment ' s evidence did not contain an express statement as to the time test was given].) In this case, for the reasons

20 It also bear s emphasizing that the sworn and unsworn report both indicated that Murphey was driving at 2:50 a.m. and had his blood drawn at 3:57 a.m.20

stated above, the only reasonable finding based on the evidence in the record is that the

blood draw occurred within three hours of Murp hey having driven. None of the cases that Murphey cites in his brief supports a different result. Manning v. Department of Motor Vehicles (1998) 61 Cal.App.4th 273 ( Manning ) , on which Murphey principally relies, involved an error that was of an entirely different magnitude from the error involved in this case. In Manning , the Court of Appeal stated that an error on a laboratory report was so significant that " the logical inference is the test

results are someone else ' s, not Manning '

s. " ( Id. at p. 275, f

n. 2, italics added.) The Manning court described the error as follows:

" At the administrative per se hearing Manning objected to the admission of the forensic report on various evidentiary grounds. Relevant to this appeal, he pointed out that the . . . forensic test was supposedly performed by Debra Eck, a forensic alcohol supervisor, on October 25, 1993. However, the computer printout states the urine sample was not submitted to the laboratory until the following day, October 26. The DMV did not offer any evidence to rebut Manning ' s claim, and thus the question is whether a forensic report, which discloses a patent physical impossibility on its face, ' " is the sort of evidence on which responsible persons are accustomed to rely in the conduct of seriou s affairs. " ' [Citation.] We don ' t think so. Even in the relaxed evidentiary world of administrative per se hearings, a forensic report must reflect some relationship with the physical world we know. " ( Id. at p. 275.) In this case, in contrast, any m istake with respect to the precise moment that Murphey was booked into jail (or when his blood was drawn) on the arrest report does not support an inference that the test results do not pertain to Murphey or that the results of the laboratory test are unre liable for any other reason. In short, Manning does not

su pport exclusion of the Reports.21

In Santos , supra , 5 Cal.App.4th 5 37 , a second case relied upon by Murphey, the Court of Appeal concluded that there " was no basis for an inference that [a licensee ' s]

blood

- alcohol level was 0.08 or more percent at the time of driving " because there was a

" complete absence of evidence as to when [licensee ' s] blood was drawn. " ( Id. at pp. 549

– 5 50.) For the reasons described above, it is not reasonable to conclude th at there was a

" complete absence of evidence " ( ibid. ) as to when Murphey ' s blood was drawn in this case. On the contrary, both the sworn and unsworn reports expressly state that Murphey ' s blood was drawn at 3:57 a.m. Any inaccuracies as to the precise ti me at which Murphey was booked into jail or his blood was drawn were not material to the determination of whether Murphey had a blood alcohol level that was 0.08 or more percent at the time of driving because it is clear from the Reports that the jail book ing and the blood draw both

occurred well within three hours of Officer Oka h aving observed Murphey driving. Accordingly, we conclude that the trial court committed reversible error in determining that Officer Oka ' s sworn and unsworn reports were inadmiss ible. 21

4. The trial court erred in finding that the weight of the evidence did not support the hearing officer '

s decision to uphold the suspension The Department contends that because the Reports were admissible, the undisputed evidence establishe d each element necessary to suspend Murphey ' s license. We interpret this argument as a contention that, even assuming that the trial court ruled

21 I t is clear that the trial court ' s error in determining that the Reports were inadmissible requires reversal becaus e the Reports were the critical evidence supporting the hearing officer ' s decision upholding the suspension of Murphey ' s driver ' s license.22

that the Reports were admissible, the trial court erred in finding that the weight of the evidence did not sup port the hearing officer ' s decision to uphold the suspension. 22

a. Governing law and standard of review

In Morgenstern , supra , 111 Cal.App.4th at page 372, this court outlined the law governing a driver ' s contention that the Department ' s suspension of his license is not supported by the weight of the evidence:

" Where, as here, the driver petitions for a writ of administrative mandate following an order of suspension, the superior court is required to determine, based on the exercise of its independent j udgment, whether the weight of the evidence supports the administrative decision. [Citation.] In reviewing the administrative record, the court makes its own determination about the credibility of the witnesses. [Citation.]

" On appeal, we review the re cord to determine whether the trial court ' s findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the tri al court ' s decision. " Notwithstanding this " daunting " 23 standard, numerous reviewing courts have applied this standard of review in reversing a trial court ' s order granting a writ of administrative mandate where the evidence that the Department offers is reliable and the

22 Although the Department ' s brief could have framed its appellate claim with greater clarity, the trial court ' s orde r granting the writ petition is itself not entirely clear as to the basis of the court ' s decision. (See fn. 13, ante .) We have framed the Department ' s contention in accordance with our duty to indulge all presumptions in favor of the order and to determi ne whether the order may be affirmed on any ground. 23 We quote from Murphey ' s brief. Although based on cases outside of the administrative per se context, we agree with Murphey ' s contention that an application of this standard of review requires us to de termine whether " ' the evidence was so overwhelmingly one

- sided that no reasonable factfinder could find against the [Department]. ' "23

licensee presents no contrary evidence. For example, in Morgenstern , this court determined that the presumption in Evidence Code section 664 established the reliability of breath test results introduced at an administrative per se hearing. ( Morgenstern , supra , 111 Cal.App.4th at p. 377.) Thi s court then concluded, " Because Morgenstern failed to introduce evidence rebutting the presumption or contradicting the [Department ' s] evidence, the [Department] properly suspended his driver ' s license and the trial court erred in ordering the [Department ] to vacate its suspension order. " ( I bi d. ) Similarly, in McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519 ( McKinney ), the Court of Appeal reversed a trial court ' s judgment granting a writ of

mandate in a case in which the trial court " fo und that the administrative order was not supported by the weight of the evidence because the hearing officer had no evidence of the time that McKinney was observed driving the vehicle. " ( Id. at p. 523.) The McKinney court reasoned:

" The hearing officer was not constrained to consider only direct evidence but could draw inferences and deductions of fact from the facts before him. [Citation.] In the absence of any indication that there was a significant delay between the observation and the stop, and in view of the proximity between where the unusual driving was observed and the point where McKinney was stopped and arrested, the hearing officer could rationally infer that McKinney was driving in an inebriated condition shortly prior to the 2:25 a.m. arres t. The trial court erred in finding that, without the officer ' s express declaration as to the time of driving, there was insufficient evidence to support the suspension. Since this was the sole basis for the court ' s decision, the judgment must be reverse d. " ( Id. at p. 524.)

In Burge , supra , 5 Cal.App.4th 384, the Court of Appeal applied the substantial evidence standard of review ( id. at p. 388), on facts extremely similar to those in this case24

in reversing a judgment granting a writ of mandate. The B urge court rejected a licensee ' s contention that the Department presented insufficient evidence at the administrative per se hearing to justify a suspension. ( Id. at pp. 390

– 391.) The licensee had claimed that the evidence supporting his suspension was i nsufficient because a police officer ' s sworn statement did not include a statement as to the time an intoxilyzer test had been given and

thus did " not establish that [the licensee ' s] blood

- alcohol concentration exceeded .08 percent at the time that he was driving. " ( Id. at p. 390.) As explained previously (see pt.

II I .A.3.b, ante ), the Burge court rejected this argument because there was evidence in the administrative record that supported the determination that test was given within an hour

of the time t hat law enforcement officers first observed the licensee. ( Id. at p. 390.) After rejecting this argument, and concluding that that the presumption in section 23152, subdivision (b) applied, the Burge court held that the trial court erred in granting a wr it of mandate on the ground that the Department had failed to carry its burden of proof:

" The [Department] . . . made a prima facie showing at the administrative hearing that Burge had been driving with a blood

alcohol concentration in excess of .08. The burden then shifted to Burge to dispute that showing, if he could. Burge submitted no evidence. The superior court therefore was without basis to find that the [Department] had failed in its burden of proof. " ( Burge , supra , at p. 391.)

b

. Applicatio n As discussed in detail in part III.A.3, ante , the Department presented reliable and trustworthy evidence that Murphey ' s blood was drawn within three hours of Murphey having driven. The results of the blood test based on the blood taken from that draw

d emonstrated that Murphey had a blood alcohol level of .16 (twice the limit specified in25

section 13352.2, subd. (a)). 24 In addition, for the reasons stated in part III.A.3, ante , no reasonable fact finder could find that any uncertainty with respect to the precise time that Murphy ' s blood was drawn could have any material impact on whether he had been driving with a blood alcohol level of .08 percent or higher. Further, Murphey did not
present any other evidence from which a reasonable fact finder could fin d that the Department had not established that Murphe y had been driving with a blood alcohol level in excess of .08. Under these circumstances, the trial court " was without basis to find that the [Department] had failed in its burden of proof. " ( Burge , s upra , 5 Cal.App.4th at p. 391.) Accordingly, we conclude that the trial court erred in finding that the weight of the evidence did not support the hearing officer ' s decision to uphold the suspension of Murphey ' s driver ' s license.

B. The trial court '

s aw ard of attorney fees and costs must be reversed The People contend that the trial court erred in awarding M urphey attorney fees

and costs. In its order granting Murphey ' s writ petition, the trial court determined that

M urphey was entitled to attorney fee s pursuant to Government Code section 800 and

costs, as the prevailing party. Government Code section 800, subdivision (a)

24 Section 13353 .2 , subdivision (a) provides in relevant part:

" The department shall immediately suspend the privilege of a person to operate a motor vehicle for any one of the following reasons: (1) The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blo od. "26

provides in relevant part, " In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law

. . . if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereo f in his or her official capacity , the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney ' s fees. " (Italics added.) In light of our reversal of the trial court ' s order granting the petition for wr it of administrative mandate, we necessarily must reverse the award of attorney fees and costs because Murphey is no longer the prevailing party. 25

IV.

DISPOSITION

The trial court ' s order granting Murphey ' s petition for writ of administrative

mandate and a warding attorney fees and costs is reversed. The matter is remanded to the trial court with directions to deny the petition in its entirety. Murphey is to bear costs on appeal.

25 Accordingly, we need not consider the Department ' s additional arguments in support of reversal of the trial court ' s order awarding fees and costs. Nor need we consider Murphey ' s contention that the hearing officer acted arbitrarily and capriciousl y by stating that the blood draw occurred at 3:59 a.m. on March 2, 2015 , rather than 3:57 a.m. on March 1, 2015 as stated in the Reports, and that such purported arbitrary decision

- making supports the attorney fees and costs award.27 AARON, J.

WE CONCUR: McCONNELL, P. J.

D ATO, J.28

Filed 7/28/17 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MATTHEW D. MURPHEY, Plaintiff and Respondent,

v. JEAN SHIOMOTO, as Director, etc., Defendant and Appellant. D069557

(Super. Ct. No. 37

- 2015

- 00017429

- CU

- WM

- CTL)

ORDER GRANTING P UBLICATION

THE COURT: The opinion in this case filed July 7, 2017 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a) for publication is GRANTED. IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, r ule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Offic ial Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.

M C CONNELL, P. J. Copies to: All parties