1 Filed 5/30/13 Patel v. Shiomoto CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CHIRAG B. PATEL, Plaintiff and Respondent,

v. JEAN SHIOMOTO, as CHIEF DEPUTY DIRECTOR, etc. Defendant and Appellant. A136228
(Alameda County Super. Ct. No. RG12616999)

On April 2, 2011, petitione r Chirag Patel, who was already on probation for reckless driving stemming from a prior drunk driving arrest, was again arrested for driving under the influence of alcohol. He submitted to a blood test, which showed a blood-alcohol content (BAC) of 0.13 percent. Following an administrative per se hearing, the Department of Motor Vehicles (DMV) suspended his driver’s license. Patel filed a petition for writ of mandate in the superior court to set aside the suspension. The trial court f ound that the forensic alcohol report lacked trustworthiness and that there were chain of custody problem s with Patel’s blood sample such that its integrity was questionable. It thus conclu ded that the DMV had failed to satisfy its burden of proof, and gr anted the petition. The DMV appeals. We conclude that th e trial court’s findings were unsupported by substantial evidence, and we reverse.2 FACTUAL BACKGROUND According to the arrest report of Live rmore Police Officer Sean Mariconi, on April 2, 2011 at 1:57 a.m., he was traveling ea stbound on First Street in Livermore when he noticed a silver Scion traveling eastbou nd in the right lane. The car caught his attention because it was traveling below the po sted speed limit. As he watched, the car drifted to the right, crossing over the white line into the bicycle lane. It then moved back into the traffic lane before again drifting to the right, traveling approximately 30 feet with both right tires in the bicycle lane. Officer Mariconi initiated a traffic stop, and the Scion driver pulled over. Patel was driving the Scion, with Brando n Mailho in the passenger seat. Officer Mariconi asked Patel where he was coming from, and he responded that he had just gone downtown to pick up Mailho. The officer noticed that Pate l’s eyes were bloodshot and watery, and he detected an odor of alcohol on Patel’s breath. He asked Patel if he had been drinking, and Patel denied that he had been. Mailho vo lunteered that it must have been coming from him because he was drunk.
Officer Mariconi had Patel exit the car fo r further evaluation. He asked Patel
when he had last consumed al cohol, and Patel admitted he ha d had “2 beers” “about 2 or 3 hours ago.” When asked he if had been drinking anything else, Patel responded, “2
Crown and Cokes.” Officer Mariconi had Patel perform a series of standardized field sobriety tests. During the tests, Officer Oto arrived to assist . Patel performed poorly on each test.
Officer Mariconi also checked Patel for horizontal gaze nys tagmus, which was present in both eyes. He then asked Patel to take a pr eliminary alcohol screening (PAS) test, which he took twice, registering a BAC of 0. 129 and 0.116 percent, respectively. In light of Officer Mariconi ’s observations of Patel, his performance on the field sobriety tests, and the PAS test results, th e officer arrested him for drunk driving and confiscated his driver’s license. Then, as de scribed in Officer Mariconi’s arrest report, “Officer Oto took custody of Pate l and transported him to Santa Rita Jail. At the jail, Certified Phlebotomy Technici an Adriana Hamm from VBS Se rvices, drew two vials of3 blood from Patel at 0250 hours. Technician Hamm turned the vial s over to Officer Oto who later placed them into the toxi cology safe for lab testing.”
ADMINISTRATIVE PER SE HEARING
The Administrative Per Se Procedure Patel’s drunk driving arrest le d to an administrative per se hearing, the background and procedure of which we had occasion to discuss in Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1536-1538: “When a driver is arrested for driving un der the influence and is determined to have a prohibited blood-alcohol content (BAC ), the arresting officer or the DMV serves the driver with a ‘notice of [an] order of su spension or revocation’ of his or her driver’s license, advising that the suspension will be come effective 30 days from the date of service. (Veh. Code, §§ 133 53.2, subds. (b) & (c), 1335 3.3, subd. (a).) The notice explains the driver’s right to an administra tive hearing before the effective date of the suspension if the driver reque sts a hearing within 10 days of receipt of the notice. ( Id
., §§ 13353.2, subd. (c), 13558, subd. (b).)
“After the driver is serv ed with the notice, the DM V automatically reviews the merits of the suspension to determine whether the peace o fficer had reasonable cause to
believe that the driver had b een driving a motor vehicle unde r the influence of alcohol, the driver was placed under arrest, and the driv er had a BAC of 0.08 percent or more at the time he or she was driving. (Veh. Code, §§ 13558, subd. (c)(2), 13557, subd. (b)(2).) This determination must be made prior to th e effective date of th e suspension, although the DMV may dispense with the automatic revi ew if the driver requests a hearing. ( Id
., § 13557, subds. (c), (e).) “The administrative per se hearing is presid ed over by either the director of the DMV, a hearing board, or in the usual case . . . a hearing officer. (Veh. Code, § 14104.2, subd. (a) [“ ‘Any hearing sha ll be conducted by the director or by a hearing officer or hearing board appointed by him or her from officers or employees of the [DMV].’ ”]; [citations].) Hearing officers are typically DMV employees who need not have any legal training whatever. . . .4 “The sole task of the hearing officer is to determine whether the arresting officer had reasonable cause to believe the person was driving [under the influence of alcohol], the driver was arrested, and the person was dr iving with a BAC of 0. 08 percent or higher. If the hearing officer determin es that the evidence establ ishes these three facts by a preponderance of the evidence, the licen se will be suspended. [Citations.]” “The procedure is civil in nature and is independent from the criminal prosecution that might ultimately result in the imposition of penalties through the criminal justice system. [Fns. omitted.]”
Burdens of Proof at the Admi nistrative Per Se Hearing At the administrative per se hearing, the DMV bears the burden of proving by a preponderance of the evidence that (1) the peace officer ha d reasonable cause to believe the driver had been driving a motor vehicle while under the influence of alcohol; (2) the driver was placed under arrested; and (3) the dr iver had 0.08 percen t or more, by weight, of alcohol in his or her blood. ( Lake v. Reed (1997) 16 Cal.4th 448, 45 5-456; Veh. Code, § 13557, subd. (b)(1), § 13558, subd. (c)(1).) Where, as here, the driver submits to a blood test, the DMV usually satisfies its burden by introducing two documents: the arresting officer’s sw orn statement on DMV
form DS 367 1 and a forensic alcohol report documenti ng 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 ).) Although the DS 367 statement and forensic report are hearsay, they are admissible under the public empl oyee records exception to the hearsay rule, provided they meet the foundational requi rements of Evidence Code section 1280, 2 which sets forth the exception. ( Lake v. Reed, supra, 16 Cal.4th at p. 467; Shea v. Department of Motor Vehicles (1998) 62 Cal.App.4th 1057, 1059; Furman v. Department of Motor
Vehicles (2002) 100 Cal.App.4th 416, 421; Imachi v. Department of Motor Vehicles

1 This statement is typically referred to as the officer’s DS 367 statement, a designation we shall use here.

2 All subsequent statutory references are to the Evidence Code, except where otherwise noted.5 (1992) 2 Cal.App.4th 809, 815.) Section 12 80 requires that the “writing was made by and within the scope of duty of a public employee,” it was “made at or near the time of the act, condition, or event” recorded, and the “sources of information and method and time of preparation were such to indicate its trustworthiness.” 3 Significantly, once the section 1280 foun dational requirements are met, section 664’s presumption that official duties have be en regularly performed attaches. Under this rebuttable presumption, it is presumed “ ‘tha t blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. . . . The recorded test results are presumptively valid and the DMV is not required to present
additional foundational eviden ce. [Citation.]’ ” ( Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232-1233; see also Morgenstern v. Department of Motor
Vehicles (2003) 111 Cal.App.4th 366, 373; Shannon v. Gourley (2002) 103 Cal.App.4th 60, 65; Petricka, supra, 89 Cal.App.4th at p. 1348.) Once the DMV establishes its prima facie ca se, the burden shifts to the driver to produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. ( Manriquez v. Gourley, supra, 105 Cal.App.4th at pp. 1232-1233.) “ ‘The licens ee must show, “through cross-ex amination of the officer or by the introduction of affirmativ e evidence, that official sta ndards were in any respect not observed . . . .” [Citation.] Once such show ing has been made, the burden shifts to the DMV to prove that the test was re liable despite the violation.’ ” ( Id. at p. 1233.) The licensee’s “showing cannot rest on speculati on, but must demonstrate a reasonable basis
for an inference that th e procedures were not properly followed.” ( Petricka, supra, 89 Cal.App.4th at p. 1348.)

3 Section 1280 provides, in full: “Eviden ce of a writing made as a record of an act, condition, or event is not made inadmissi ble 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 an d within the scope 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 pr eparation were such as to indicate its trustworthiness.”6 In general, the rules regarding admissibility of evidence in administrative per se hearings are “relaxed.” ( Lake v. Reed, supra, 16 Cal.4th at p. 467.) As set forth in Government Code section 11513, subdivision (c) and (d): “( c) The hearing need not be conducted according to technica l rules relating to evidence and witnesses. . . . Any
relevant evidence shall be admitted 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 ru le which might make improper the admission of the evidence over objection 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 unle ss it would be admissible over objection in civil actions.” The Administrative Per Se Hearing The administrative per se hearing in this matter convened on December 28, 2011, presided over by Hearing Officer Y. Li. It began with Hearing Officer Li introducing the following documents on behalf of the DMV: Officer Mariconi’s DS 367 statement executed under penalty of perj ury (Exhibit 1); the forensic alcohol report from Central Valley Toxicology (CVT) (Exhib it 2); a declaration and dete rmination of probable cause for a warrantless arrest, also executed under penalty of pe rjury by Officer Mariconi (Exhibit 3); Officer Mariconi’s four-page arrest report (Exhibit 4); and an October 6, 2011 printout of Patel’s driving record (Exhibit 5). 4 Patel’s counsel objected to the admission of the documents on hearsay and lack of foundation grounds. Hearing Officer Li overr uled the objections and moved the exhibits
into evidence.
Officer Mariconi’s DS 367 statement atte sted as follows: “On 04/02/11 at 0157 hours, I was on patrol driving marked LPD unit 14 eastbound on First St. near Portola Ave. I noticed a silver Scion (CA lic ense 6BAV402) also traveling eastbound in the right (#2) lane. The vehicle caught my attention because it was traveling at about

4 The driving record showed that at the time of his April 2, 2011 arrest, Patel was on probation for reckless driving stemming from a June 10, 2009 arre st for driving under the influence.7 35 mph, below the posted speed limit of 40 mph. I watched the vehicle as I [ sic ] drifted to the right, with both right side tires crossing over the solid white line dividing the bicycle lane from the traffic lane (a viola tion of 21658(a) VC). The Scion moved back
into the traffic lane and continued eastbo und. As the Scion passed Trevarno Rd. the vehicle drifted to the right again, and traveled for about 30 feet with both right side tires on the bicycle lane. I initialed [ sic ] a traffic enforcement st op on the vehicle for the
violation. The Scion made a right turn onto N. Mines Rd. and stopped on the right side of the roadway. [¶] I contact ed the driver of the Scion, Chirag Patel. When I was speaking with Patel, I noticed th at his eyes were bloodshot, watery and there was an odor of an alcoholic beverage on his breath. I ha d Patel perform a series of standardized field sobriety tests (SFSTs) and he consented to a PAS test. When he performed the SFSTs, Patel showed signs of impair ment. Based on my observations of Patel, his performance on the SFSTs and the results of the PAS test, I believe that he was driving his vehicle while under the influence of alcohol. I placed him under arrest for a violation 23152(a)
VC.” The one-page forensic alcohol report show ed that on April 6, 2011, Patel’s blood sample was delivered by Tricor, a delivery serv ice, to CVT, where it was received by Bill Posey. An analysis perform ed and recorded that same day confirmed a BAC of 0.13 percent. Analyst supervisor Alan D. Barb our signed the report on April 11, 2011, with the following certification: “I certify, under pe nalty of perjury, that this is a true and correct copy of results of the analysis on blood or urine obtain ed during the regular course of my duties. I further certify, that I am Department of He alth Services approved Forensic Alcohol Supervisor or Forensic Al cohol Analyst and that equipment used for analysis was in proper working order and re cording of results was done at the time of analysis using the method specified under Ca lifornia Forensic Alcohol License 04061.” The hearing then shifted to Patel, whos e counsel offered the following exhibits, which Hearing Officer Li mark ed for identification: a se ven-page heari ng brief dated July 26, 2011 (Exhibit A); a 18-page packet of documents produced by CVT pursuant to a subpoena served by Patel (Exhibit B); th e curriculum vitae of Jeffrey L. Zehnder,8 laboratory director and founde r of Drug Detection Laboratory (DDL) (Exhibit C); a blood analysis report from DDL (Exhibit D); and a revised hearing brief dated December 28, 2011 (Exhibit E). Following the identification of the documen ts, Patel put on forensic toxicologist Zehnder, who the hearing officer recognized as an expert. 5 Zehnder testified that DDL had performed an analysis of Patel’s blood sample, which showed a BAC of 0.10 percent, compared to CVT’s result of 0.13 percent. He also testified that DDL’s test indicated a sodium fluoride level of four milligrams per milliliter, which wa s below the industry standard of 10 milligrams per milliliter. He e xplained that fluoride is a preservative that reduces the possibility of microbial production of alcohol if microbes are present and also inhibits enzymes that can break alcohol down . It is used, according to Zehnder, to “preserve the integrity of the sample.” He confirmed, however, that the level of sodium fluoride in the sample was not a violation of Title 17. 6 Zehnder also suggested that the results of CVT’s analysis were compromised. This was so, he opined, because the baseline of the chromatogram wa s “hilly” rather than flat, suggesting a problem with the chromotogr aph. He speculated that it had a dirty injector, a column that was “getting a little long in the tooth,” or “garbage in the blood.” He explained that DDL’s analysis was perfo rmed using the “head space” method, which he claimed eliminated the possibility of cont amination. He acknowledged, however, that

5 Zehnder had a bachelor’s degree in fore nsic science, with a chemistry teaching minor. He had worked as a forensic toxicolo gist for over 36 years. He had qualified as an expert in more than 2,000 cases rega rding forensic toxicology, alcohol and drug testing, alcohol metabolism, and the eff ects of alcohol and drugs on psychomotor function skills in state and fede ral courts throughout Califo rnia and Nevada , and he had testified in more than 2,000 in administrative per se hearings.

6 “Title 17 establishes procedures for de termining ‘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, quoting Cal. Code Regs., tit. 17, § 1215.1, subd. (b); see also Imachi v. Department of Motor Vehicles, supra, 2 Cal.App.4th at p. 816.)9 CVT’s maintenance log indicated that CVT repl aced the injector, injection port liner, and septum once a week.
Patel’s counsel then turned to a retest CVT performed on April 16, which showed a BAC of less than 0.13. According to Ze hnder, the drop in BAC from CVT’s first analysis to its second and to DDL’s test could indicate problems with CVT’s initial analysis. He admitted, howeve r, that the variances could also have been due to storage techniques or oxidation that occurred each time the sample was opene d to perform a test. Following Zehnder’s testimony, the he aring officer moved two of Patel’s exhibits—the documents CVT produced in response to Patel’s subpoena and DDL’s laboratory report—into evidence. Patel’s c ounsel then gave his closing argument. On January 13, 2012, Hear ing Officer Li issued hi s “Administrative Per Se—
.08 BAC Notification of Findin gs and Decision.” He found that Officer Mariconi had probable cause to stop Patel, and Patel had displayed objective symptoms of intoxication including bloodshot and watery eyes, the odor of alcoholic beverage, unsatisfactory field sobriety tests, PAS results indicating in toxication, and an admission of alcohol consumption. He further found that Office r Mariconi had reasonable cause to believe that Patel was driving under the influence of alcohol and the arrest was lawful. Finally, concluding that there was a “lack of suffici ent evidence to rebut the chemical test results,” he found that Patel had a BAC of 0.13 percent. Hearing Officer Li rejected the arguments Patel’s counsel had presented during his closing argument. As to a contention that the blood analysis performed by CVT was
unreliable because the chromato graph’s “dirty baseline” sugg ested contamination of the sample, the hearing officer concluded that Zehnder’s testimony in that regard went “towards the weight of the evidence . . . .” He found that the preponderance of the
evidence indicated that Patel was driving with a 0.08 pe rcent BAC or greater, citing DDL’s own forensic alcohol report showing a BAC of 0.10 percent. Hearing Officer Li also rejected the suggestion that the varyin g BAC results indicated unreliability in the testing, citing Zehnder’s testimony that it may instead have been du e to oxidation that
occurred each time the sample was opened.10 Addressing a contention by Patel that th ere was no evidence the blood draw was conducted in a medically a pproved manner, Hearing Offi cer Li determined “DMV Exhibit 4 indicates [Patel’s] blood was drawn by a Certified Ph lebotomy Technician. In
the absence of evidence to indicate the blood was not dr awn in an approved manner, [Patel’s] contention is found w ithout merit.” He likewise reje cted Patel’s contention that
there was an insufficient amount of sodium fluoride in the sample, citing Zehnder’s testimony that the amount of pr eservative complied with Title 17, and that his arrest was
unlawful because there was no evidence that th e bike lane into which he weaved was lawfully established. The findings concluded with the decision to re-impose the suspension of Patel’s
driver’s license.
The Petition for Administrative Mandate On February 14, 2012, Pate l filed a petition for writ of administrative mandate, seeking to set aside the suspension. The pe tition fundamentally argu ed that the evidence showed Patel was lawfully driving his ca r at the time he was stopped and Officer
Mariconi did not observe him commit a crime or infraction. The petition also argued that the DMV failed to lay a proper evidentiary foundation establishing the reliability of the blood-alcohol test. Finally, it argued that th e hearing violated Patel’s due process rights because Hearing Officer Li both presented the evidence at the hearing and ruled upon its admissibility. The DMV’s opposition argued that Officer Mariconi had reasonable cause to believe that Patel was driving under the infl uence; he lawfully initiated the traffic stop leading to Patel’s arrest; the DMV’s documen tary evidence was entitled to the official duty presumption under section 664 and sup ported the hearing officer’s findings; and
Patel was afforded due process. The matter came on for hearing on May 24, 2012. Patel began by reiterating the same issues raised in closing argument at the administrative per se hearing and in the petition for writ of mandate. Namely, he cont ended that he had be en deprived of due process because Hearing Officer Li served as both prosecutor and judge; that the blood11 analysis was inaccurate because, as his e xpert Zehnder had testified, there were contaminants in the sample; and that hi s stop was unlawful because there was no
foundational evidence es tablishing that the bicycle lane into which he swerved complied with the Streets and Highways Code. For the first time, Patel also argued that the integrity of the blood sample was compromised because the chain of custody evidence was inadequate and that the CVT forensic al cohol report was inadmissible because it was
not made at or near the time of the an alysis, as required by section 1280. By order dated June 26, 2012, the trial court grante d Patel’s petition. It observed
that the DMV bore the initial burden of estab lishing that a driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher, a burden, the court noted, typically satisfied by the arresting officer’s DS 36 7 statement and a forensic laboratory report documenting the results of the driver’s blood test. Based on these documents, the hearing
officer had found that the DMV met its burden of showing that Patel was driving with a BAC of 0.13 percent, and that Patel failed to present sufficient evidence to rebut the
chemical test results. Exerci sing its independent judgment, however, the trial court found
“that there was not substantial evidence to su pport the hearing officer’s findings in light
of the record as a whole.” As pertinent here, the trial court’s order stated:
“The court finds there is in sufficient evidence in the re cord to support a chain of custody as to the blood samples taken from [P atel] such that the court can find that the integrity of the blood sample was maintained. ‘In most ca ses it will be the arresting officer who will . . . either give the test or ta ke the suspect to a fac ility where a test can be administered.’ [Citation.] Even if the te st is administered by another officer, the arresting officer still has a duty to make ce rtain that the testing procedures satisfy statutory and regulatory requirements. [C itation.] Arresting Officer Marconi here completed both the DS 367 report and Arrest Report. [Citation.] It was Officer Oto though, that transported [Patel ] to Santa Rita Jail for his bl ood draw, which was taken at 2:50 a.m. on April 2, 2011, and Officer Ot o that then took the vials from Certified Phlebotomy Technician Adrian a Hamm. [Citation.] Officer Mariconi’s April 2, 201112 report states that ‘Technician Hamm turned th e vials over to Officer Oto who later placed them into the toxicology safe for lab testi ng.’ [Citation.] Thus, Officer Mariconi was neither present at the blood draw nor does it a ppear he was ever in possession of the vials.
The record is also ab sent as to whether Officer Oto th en forwarded the vials from the toxicology safe to CVT for testing. [Citation. ] The record only shows that the vials were delivered by Tricor to CVT on April 6, 20 11, which is 4 days after the blood samples were taken. [Citation.] Given Officer Mari coni’s lack of personal knowledge combined
with this lack of evidence re garding maintaining the integrity of the blood samples, the court cannot find that there is an evidentiary presumption that applies to the handling of the blood samples. “In addition to the above issue, the forens ic alcohol report lik ewise appears to be unreliable. A blood test performed by a licen sed forensic laboratory on behalf of a law enforcement agency is also ad missible based on the public employee records exception to the hearsay rule. [Citation.] A forensic alcohol report is admissible at an administrative hearing however, only ‘if it complies with the requirements governing the admission of evidence.’ [Citation.] Such admissibility is fo und where the test re sults were put into evidence through the certified laboratory repo rt of the alcohol analyst who personally performed the test. [Citation.] The requisite indicia of trustworthiness is based on the fact that the analyst was reporting firsthand ob servations as well as by the presumption of official duty regularly performed. [Citation.] Where blood test results were not reported by the analyst but by the arresting officer that me rely attested that he reviewed the results, that part of the officer’s report regarding th e result of the blood-alcohol test—the sole proof of the licensee’s blood-alcohol content— was found to be inadmissible hearsay. [Citation.]
“The blood test results in this case were not placed into eviden ce through the certified laboratory report of the analyst that performed the test. Th e record shows that the laboratory testing was done by an unidentified an alyst with the initials ‘JEC’ on April 6, 2011. [Citation.] The results were then certified by Analys t Supervisor Alan D. Barbour (‘Barbour’) on April 11, 2011. [C itation.] Mr. Barbour certifies the results13 under penalty of perjury, stating that the re sults were obtained during the regular course of his duties and that the equipment used fo r analysis was in proper working order and recording of results was done at the time of analysis. [Citation.]
“It is unclear how Mr. Barbour can certif y that the equipment was proper and the recordings were done at the time of analysis , when the testing was done by ‘JEC’ and not
Mr. Barbour himself. This lack of foundatio n is further compounded by the fact that the records shows [ sic ] the results were certified on April 11, 2011, 5 days after the testing was done. It would appear to the court that this testing was therefore not performed in Mr. Barbour’s regular course of duties, nor can it be said that the certified laboratory results were prepared at or near the time of testing, such that the evidentiary presumption should apply. The court also finds that ba sed on its independent review of the record,
there was sufficient evidence to rebut that the presumption u nder Evidence Code sections 664 and 1280 apply [ sic ] to the laboratory results, and therefore the hearing officer
should have shifted the burde n back to the DMV to estab lish the admissibility of these reports.”
The trial court remanded the matter to the DMV to set aside its findings and
decision and “for reconsiderati on of this case in light of th e court’s opinion, and further hearing consistent with this order, if necessary.” Judgment was entered on July 31, 2012, and the DMV timely appealed.
DISCUSSION
Standard of Review The rules that pertain are well settled, as confirmed in the leading case of Lake v. Reed, supra, 16 Cal.4th 448. First, as to the rules governing the trial court, “In ruling on an application for a writ of mandate followi ng an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, ‘ “whether the weight of the evidence supported the administrative decision.” ’ ” ( Id. at p. 456.) But even with that independent judgment, “the trial court still ‘must afford a strong presumption of correctness concerning th e administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the14 administrative findings are contrary to the weight of the evidence.’ ” ( Manriquez v. Gourley, supra, 105 Cal.App.4th at p. 1233, quoting Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) As to the rules governing us, Lake v. Reed, supra, 16 Cal.4th 448 further confirms that “[o]n appeal, we ‘need only review the r ecord to determine whet her the trial court’s findings are supported by substantial evidence .’ [Citations.] ‘ “We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where th e evidence supports more than one inference, we may not substitute our deduc tions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the ev idence before the tria l court is insufficient
as a matter of law to sustain those findi ngs. [Citation.]” ’ [Citation.]” ( Id. at p. 457; accord, Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176, 1184.) We review the trial court’s evidentiary rulings for abuse of discretion. ( Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 986 ( Molenda ).) “ ‘[T]he appropriate test of abuse of discreti on is whether or not the trial court exceeded the bounds of reason, all of the circumstance s before it being considered.’ [Citation.] Appellate courts will disturb discretionary trial court rulings onl y upon a showing of a
clear case of abuse and a mi scarriage of justice.” ( Ibid .) The Trial Court’s Finding That the DMV Failed to Satisfy It s Initial Burden of Proof Is Unsupported By Substantial Evidence. As noted above, at the administrative per se hearing, the DMV’s burden was threefold. It was required to demonstrate th at: (1) Officer Mariconi had reasonable cause to believe that Patel was driving a vehicle under the influence; (2) Patel was lawfully arrested; and (3) Patel was driving his car with a blood-alcohol level of 0.08 percent or greater. ( Lake v. Reed, supra, 16 Cal.4th at pp. 455-456; Veh. Code, § 13557, subd. (b), § 13558, subd. (c)(1).) Where th e driver submits to a blood test, as Patel did here, the DMV usually satisfies its burden by introducing two docum ents: the arresting officer’s
sworn DS 367 statement and a forensic laboratory report documenting the results of a chemical blood test. ( Petricka, supra, 89 Cal.App.4th at p. 1348.) The DMV introduced15 these documents at the hearing over the objection of Patel’s counsel. While the trial court expressed no concerns over the hearing office r’s decision to admit the DS 367 statement, it found that the laboratory report lacked relia bility. Although the co urt did not expressly put it in these terms, the ruli ng amounted to an evidentiary determination that the report did not meet the foundational requirements of section 1280 and thus sh ould not have been
admitted. As noted, we review the trial court’s ev identiary rulings for abuse of discretion ( Molenda, supra, 172 Cal.App.4th at p. 986), and we conclude this discretion was
abused. As previously indicated, under secti on 1280 the forensic alcohol report was admissible if it was made by and within the scope of duty of a public employee, was made at or near the time of the act, cond ition, or event recorded, and the sources of
information and method and tim e of preparation suggested that it was trustworthy. (§ 1280.) The trial court took excepti on with the first and second foundational requirements. We address them in turn. We can easily dispose of the trial court’s concern as to the first requirement. The court concluded that the report was not prepar ed by and within the scope of duty of a public employee because the report was swor n by Analyst Supervisor Barbour, while the analysis was apparently conducted by “JEC.” Thus, according to the court, it appeared the “testing was therefore not performed in Mr. Barbour’s regular course of duties . . . .” In fact, the report makes no reference to “J EC.” The court’s speculation that “JEC” conducted the analysis is draw n from records in the packet CV T produced in response to Patel’s subpoena. In the forensic alcohol re port itself, Barbour attested that he was a “Department of Health Services approved Fo rensic Alcohol Supervisor or Forensic Alcohol Analyst” and that the results of th e analysis were obtained during the regular16 course of his duties. The court’s speculatio n regarding “JEC” was insufficient to negate Barbour’s certification, and the first foundational requirement was satisfied. 7 Turning to the second foundational requirement—that the “writing was made at or near the time of the act, condition, or event” recorded—the trial c ourt concluded that the forensic alcohol report did not satisfy this requirement because although the analysis was conducted on April 6, Barbour di d not certify the results until April 11, five days later. This conclusion is contrary to applicable case law. It has been widely recognized that “ ‘[h ]ow soon a writing must be made after the
act or event is a matter of de gree and calls for the exercise of reasonable judgment on the part of the trial judge.’ ” ( People v. Martinez (2000) 22 Cal.4th 106, 128, fn. 7, italics omitted.) As the Martinez court went on to explain, “[T] he timeliness requirement ‘is not to be judged . . . by arbitrary or artificial time limits, measured by hours or days or even weeks.’ [Citation.] Rather, ‘account must be taken of practical considerations,’ including ‘the nature of the information recorded’ and ‘the immutable reliability of the sources from which [the inform ation was] drawn.’ [Citation.] ‘Whether an entry made subsequent to the transaction has been made within a suffic ient time to render it within the [hearsay] exception depends upon whether the tim e span between the transaction and the entry was so great as to suggest a dange r of inaccuracy by lapse of memory.’ ” ( Id. at p. 128.) Multiple cases have considered th e timeliness requirement in the context of a forensic alcohol analysis, but they do not avail Patel.
In Downer v. Zolin (1995) 34 Cal.App.4th 578, disa pproved on other grounds in Lake v. Reed, supra, 16 Cal.4th 448, 465, 467, footnote 11, a laboratory report of the analysis of a driver’s urine sa mple lacked a signature near th e statement of certification, and it was questionable whether the report was da ted. Concluding that the trial court had not erred in finding the report undated, the C ourt of Appeal held that “[t]he absence of

7 We also note that the trial court mis understood the requirem ent to be that the analysis was conducted within the scope of Barbour’s duties. In fact, as is clear from the language of section 1280, the requirement is that “[t]he writing was made by and within the scope of duty of a public employee.” (Italics added.)17 evidence showing the report was made at or n ear the time of the reported event” rendered it inadmissible hearsay un der section 1280. ( Downer v. Zolin, supra, 34 Cal.App.4th at p. 582.) In dictum, and as relevant here, the court went on to state that “a report prepared nearly a week after the forensic tests were completed does not fall within the statutory requirement that the report be prepared ‘at or near the time’ of the reported event.” ( Id. at p. 582, fn. 5.)
In Glatman v. Valverde (2006) 146 Cal.App. 4th 700, a motorist suspected of driving under the influence ha d his blood drawn just after midnight on July 25, 2005. That same day, a forensic an alyst analyzed the sample. Th e sample was then analyzed again the next day by a different analyst. Th e two analysts certified the test results on a forensic report dated August 1, one week after the first analysis was conducted. ( Glatman v. Valverde, supra, 146 Cal.App.4th at p. 703.) At the administrative hearing, the hearing officer rejected the driver’s argument that the report was inadmissible
because the test results were not recorded at or near the time of the blood analysis. ( Ibid. ) The driver petitioned th e superior court for a writ of mandate. ( Glatman v. Valverde, supra, 146 Cal.App.4th at p. 703.) The co urt held that the forensic report did not satisfy Evidence Code sec tion 1280’s second foundational requirement and was thus inadmissible. After also rejecting the offi cer’s report of the driver’s PAS results, the court granted the petition and issued a writ commanding the DMV to set aside the license suspension. ( Ibid. ) On the DMV’s appeal, the Court of Appeal affirmed. It held that the trial court did not abuse its discretion in finding that th e forensic report was not made “at or [near] the time of the event,” since it was prepared a week after the analysis was performed. ( Glatman v. Valverde, supra, 146 Cal.App.4th at p. 704.) Citing People v. Martinez,

supra, 22 Cal.4th at p. 128, the court stated that the case presented a “ ‘danger of inaccuracy by lapse of memory.’ ” ( Ibid .) It rejected the DMV’s argument that given the number of tests performed each day, it was unreasonable to infer that the analyst attempted to memorize the re sults and then record them from memory a week later. According to the DMV, the on ly reasonable inference was th at the laboratory had policies18 and procedures in place to ensu re that the results were reco rded when the analysis was conducted. ( Id. at pp. 704-705.) The court disagree d, stating, “[A]n inference may be drawn only if the ‘proposed conclusion is a reasonable, logical, and nonspeculative deduction from the facts proved.’ [Citation.] Here, the record is silent as to the department’s recordation policies and proced ures, an automatic recording capability of the testing equipment used, an d the average number of tests performed by an analyst each day.” ( Id. at p. 705.)
In Molenda, supra, 172 Cal.App.4th at pp. 982-983, late on the evening of August 17, 2006, a car was involved in a single-vehic le rollover accident. The responding officers determined the driver was under the influence of alcohol and arrested her. Shortly after midnight on August 18, she submitted to a blood test. ( Id. at p. 983.) The laboratory received the blood sample on August 21, completed its analysis on September 1, and recorded the results in a report dated September 8. ( Ibid. ) In the administrative per se hearing, the driver objected to the admissibility of the toxicology report, complaining that it did not meet the foundational requirements of section 1280 because it was not prepared “at or near the time” of the reported event. ( Molenda, supra, 172 Cal.App.4th at p. 9 84.) The hearing officer disagreed, finding that “ ‘seven days is at or near the time of anal ysis’ ” and upholding the license suspension. ( Id. at pp. 984-985.) The driver filed a petition for writ of mandate to set aside the suspension. ( Molenda, supra, 172 Cal.App.4th at p. 985.) The superior court granted the petition, holding that the delay in preparing the toxico logy report rendered th e report inadmissible. ( Ibid. ) The Court of Appeal affirmed. ( Molenda, supra, 172 Cal.App.4th at p. 982.) It stated that, as in Glatman v. Valverde, supra, 146 Cal.App.4th 700, there was no
evidence the test result was r ecorded prior to the preparati on of the written report, which was done one week after the analysis. As su ch, there was no evidence it was prepared at
or near the time of the record ed event, and the trial court was within its discretion to exclude it. ( Id . at p. 991.)19 These cases instruct that while there is no fixed number of days that constitutes “at or near the time of analysis,” seven days do es not satisfy the requirement where there are
no indicia that the test results were record ed contemporaneously with the analysis and later transferred to a sworn report. But in this case, the time la pse between the April 6 analysis and the April 11 report was only five days. We are aware of no authority—and Patel cites none—finding that a lapse of five days under any given circumstances defeats the “at or near the time of analys is” requirement of section 1280. More significantly, the eviden ce before Hearing Officer Li established that there was no “danger of inaccuracy by lapse of memo ry.” The CVT report itself stated that the ethyl alcohol analysis was “performed and recorded on: 04/06/11.” (Italics added.) The packet of CVT documents Patel introduced further confirmed that the data was contemporaneously recorded with the analysis. Amon g these records were two worksheets, for lack of a bette r word, that recorded the data generated by Patel’s blood analysis. They were dated April 6 and time-stamped 10:58:27 a.m. and 11:04:10 a.m.— just minutes after the analysis was co mmenced at 10:54:25 a.m. and 11:00:08 a.m., respectively. Likewise, another document entitled “Forensic Alcohol Log,” also dated April 6, reported data from the worksheets a nd identified Patel’s BAC of 0.13 percent. It thus cannot be said that there was a “dange r of inaccuracy from me mory lapse” when the
results were recorded within minutes of the tests being conducted. In light of the foregoing, we conclude th at the forensic alcohol report satisfied section 1280’s foundational requirements and was thus admissible. It was an abuse of
discretion for the trial court to have concluded otherwise. The forensic alcohol report and Officer Mariconi’s DS 367 statement together
established that the officer had reasonable ca use to believe Patel was driving under the influence, Patel was properly arrested, and he had a BAC of 0.13 percent. Based on section 664, then, the DMV was entitled to a pr esumption that the blood test results were obtained in compliance with the regulations and guid elines of Title 17. ( Shannon v. Gourley, supra, 103 Cal.App.4th 60, 64.) This shifte d the burden to Patel to introduce evidence establishing otherwise.20 Patel Failed to Introduce Sufficient Evidence Rebutting the DMV’s Prima Facie Case While the trial court primarily held that the DMV did not satisfy its initial burden of proof and was thus not entitled to the section 664 presumptio n, it held, in the alternative, that even if th e DMV satisfied its initial burden, thereby shifting the burden to Patel, “there was sufficient ev idence to rebut that the pres umption under Evidence Code section 664 and 1280 apply to the laborator y results, and therefore the hearing officer
should have shifted the burde n back to the DMV to estab lish the admissibility of these reports.” Again, this conclusion is unsupported by substantial evidence. First, the trial court found that the forens ic alcohol report was unreliable. Aside from the timing issues—which we have alrea dy rejected—the court was concerned that
someone with the initials “JEC” apparently conducted the anal ysis, while forensic alcohol supervisor Barbour certified the report. 8 It thus found it “unclear how Mr. Barbour can certify that the equipment was proper and the recordings we re done at the time of the analysis, when the testing was done by ‘JEC’ and not by Mr. Barbour himself.” The flaw in this argument, however, is that it is founded on mere speculation because Patel made no effort to develop this evid ence at the hearing. The CVT worksheets identified the “Acq. Operator” as “JEC,” but we do not know the significan ce of this notation. Patel did not subpoena “JEC” or Barb our to testify at the hearing. He elicited no evidence or testimony regarding the respective roles of “J EC” or Barbour in conducting the forensic analysis. And based on the CVT records, it is possible that Barbour had personal knowledge of all that he certified. Furthermore, even assuming arguendo ther e was evidence establishing that “JEC” conducted the analysis, su ch evidence would not automatically render the report unreliable. Citing Petricka, supra, 89 Cal.App.4th at p. 1351, the trial court was apparently under the mistaken belief that the forensic alcohol report could only be

8 Title 17 defines a “Forensic Alcohol Su pervisor” as “a person employed by a forensic alcohol laboratory wh o can be responsible for all aspects of the performance of forensic alcohol analysis and for the s upervision of personne l who perform such analysis.” (Cal. Code Regs ., tit. 17, §§ 1215.1, subd. (f).)21 certified by the analyst who personally perf ormed the test. But that is not what Petricka held, and we are aware of no other authorit y so holding. If supervisor Barbour had personal knowledge of what he was certifying—e.g., that in supervising “JEC,” he oversaw the analysis, confirmed that the equipment was in proper working order, and supervised the recording of the results—we can perceive no reason why his certification would be inadequate. 9 In addition to the reliability concerns with the forensic alcohol report, the trial court concluded the integrity of Patel’s blood sample was compromised because there
was insufficient evidence showing a chain of custody. It described these concerns as follows: “Arresting Officer Mariconi here completed both the DS 367 report and Arrest Report. [Citation.] It was Officer Oto though , that transported [Patel] to Santa Rita Jail for his blood draw, which was taken at 2:50 a.m. on April 2, 2011, and Officer Oto that
then took the vials from Cer tified Phlebotomy Technician Adriana Hamm. [Citation.] Officer Mariconi’s April 2, 2011 report stat es that ‘Technician Hamm turned the vials over to Officer Oto who later placed them in to the toxicology safe for lab testing.’ [Citation.] Thus, Officer Mariconi was neith er present at the blood draw nor does it appear he was ever in possession of the vials. The record is also absent as to whether
Officer Oto then forwarded th e vials from the toxicology sa fe to CVT for testing. [Citation.] The record only shows that the vi als were delivered by Tricor to CVT on April 6, 2011, which is 4 days after the blood samples were taken. [Citation.] Given Officer Mariconi’s lack of personal knowled ge combined with this lack of evidence regarding maintaining the integr ity of the blood samples, the court cannot find that there is an evidentiary presumption that applies to the handling of the blood samples.” The trial court’s conclusion that evidence regard ing the chain of cust ody was sufficient to rebut the section 664 presumption was unsupported by substantial evidence.

9 The trial court’s concerns with the relia bility of CVT’s forensic alcohol report were much ado about nothing anyhow, since Pa tel’s own alcohol analysis showed he had a BAC of 0.10 percent.22 First, as a general matter, deficiencies in chain of custody docu mentation go to the weight of the proffered evidence, not to the evidence’ s admissibility. ( People v. Catlin (2001) 26 Cal.4th 81, 134; People v. Diaz (1992) 3 Cal.4th 495, 559.) Here, even assuming arguendo that the chain of custody was inadequately documented, there was no evidence suggesting that Patel’s blood sample was compromised. There was no evidence that the vials were unlabeled or improperly labeled and, in fact, the record shows the opposite. There was no sugges tion that the vials were tampered with in any way. Additionally, the trial court’s rejection of Officer Mariconi’s account of the blood draw and subsequent handling of Patel’s bl ood sample due to his purported lack of personal knowledge was erroneous for two reas ons. First, in an administrative per se hearing, there is a “relaxa tion of evidentiary rules” ( Petricka, supra, 89 Cal.App.4th at p. 1348), and hearsay evidence is admissible to supplement or explain other evidence. (Gov. Code, § 11513, subd. (d); Lake v. Reed, supra, 16 Cal.4th at p. 458.) Second, the trial court’s conclusion th at Officer Mariconi lacked personal knowledge was again speculative. From Officer Mariconi’s desc ription in his report, it is entirely possible that he was present at the blood draw and when Officer Oto placed the sample in the toxicology safe. Patel could have attempted to show Officer Mariconi’s lack of personal knowledge at the hearing by subpoenaing Officers Mariconi or Oto or the phlebotomist, but he made no effort to develop the evidence. In sum, once the DMV satisfi ed its initial burden, the bu rden shifted to Patel to produce evidence demonstrating that the appl icable procedures were not properly performed. ( Manriquez v. Gourley, supra, 105 Cal.App.4th at pp. 1232-1233.) The trial court mistakenly believed that Patel merely had to “raise[] an issue as to the integrity of the blood draw [for] the burden [t o] shift[] back to the [DMV] . . . .” He was, however, required to do more than merely “raise an issue,” and his showing could not rest on speculation. ( Petricka, supra, 89 Cal.App.4th at p. 1348.) Bu t this is what his showing did and, for that reason, the trial court’s fi nding that Patel introduc ed sufficient evidence
to shift the burden back to the DMV was unsupported by substantial evidence.23 Patel’s Arguments in His Resp ondent’s Brief Lack Merit In his respondent’s brief, Patel reiterates the same arguments he made during the administrative per se hearing and in his pe tition for writ of mandate, none of which the trial court relied on in granting his writ petition. Specifically, he contends that his arrest
was unlawful because the DMV did not estab lish that the bicycle lane was lawfully created, and the DMV failed to lay a foundati on that his blood was drawn in compliance
with Title 17. Neither the hear ing officer nor the trial court ba sed its decision on either of these arguments, and we likewis e conclude they lack merit. Additionally, Patel argues that his due pr ocess rights were violated because the hearing officer presented and ruled on the admissibility of the DMV exhibits and because
Government Code section 11502 mandates th at administrative hearing officers be attorneys with at least five years experien ce. His cited authority does not support his arguments, however, and we conc lude the hearing was conducted in accordance with the established procedures.
DISPOSITION We conclude with the observation that, as California’s courts and Legislature have long recognized, drunk driving is an extremely dangerous offense. (See Helmandollar v. Department of Motor Vehicles (1992) 7 Cal.App.4th 52, 57 [“numerous, dangerous, and deadly risks associated with drinking and driving”]; Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [“The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across th e roads of California and the nation.”]; Taylor v. Superior Court (1979) 24 Cal.3d 890, 899[“Drunken drivers are extremely dangerous people.”]; People v. Duroncelay (1957) 48 Cal.2d 766, 772.) Patel does not appear to take these dangers to heart, as the drunk dr iving arrest spawning this matter was not his first. Despite this, the law wo uld require us to affirm the tr ial court’s decision reinstating
Patel’s driver’s license if the decision was su pported by substantial evidence. It was not,
and we therefore reverse.24 The case is remanded to the trial court with directions to enter an order denying Patel’s petition for writ of mandate and reinst ating the suspension order. The DMV shall recover its costs on appeal.

_ ____________ ____________ Richman, J.

We concur:

_____________ ____________ Haerle, Acting P.J.

_____________ ____________ Lambden, J.