Filed 4/12/21 Fail v. Department of Motor Vehicles CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JAMES C. FAIL,

Plaintiff and Appellant,

v.

DEPARTMENT OF MOTOR 

VEHICLES,

Defendant and Respondent.

 D076364

 (Super. Ct. No. ECU000781)

APPEAL from a judgment of the Superior Court of Imperial County, 

L. Brooks Anderholt, Judge. Affirmed.

Law Offices of Robert A. Espinosa, Espinosa Espinosa & Farias, Robert 

A. Espinosa, and Daniel R. Espinosa for Plaintiff and Appellant.

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

Attorney General, Jodi L. Cleesattle and Celine M. Cooper, Deputy Attorneys 

General, for Defendant and Respondent.
2

I.

INTRODUCTION

After being arrested for driving under the influence and driving with a 

blood alcohol content of .08 percent or more (Veh. Code, § 23152, subds. (a), 

(b)),1 James C. Fail filed a petition for writ of mandate in the trial court 

seeking to overturn the suspension of his driver’s license by the Department 

of Motor Vehicles (Department). The trial court denied the petition, ruling 

that the Department properly suspended Fail’s driver’s license pursuant to 

the administrative per se law (§ 13353.2 et seq.).2 On appeal, Fail claims 

that there is “no substantial, competent evidence to support the necessary 

facts for a suspension.” (Boldface & capitalization omitted.) We affirm the 

judgment.

1 Unless otherwise specified, all subsequent statutory references are to 

the Vehicle Code.

Section 23152 provides in relevant part:

“(a) It is unlawful for a person who is under the influence of 

any alcoholic beverage to drive a vehicle.

“(b) It is unlawful for a person who has 0.08 percent or 

more, by weight, of alcohol in his or her blood to drive a 

vehicle.”

2 As described in greater detail in part III.A.1, post, “Under California’s 

‘administrative per se’ law, the [Department] must suspend the driving 

privilege of a person who was driving a motor vehicle with a blood-alcohol 

level of 0.08 percent or more.” (Delgado v. Department of Motor Vehicles

(2020) 50 Cal.App.5th 572, 576.)
3

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Fail’s arrest

At approximately 10:50 p.m. on February 3, 2018, California Highway 

Patrol Officer E. Soltero Jr. was on patrol in his vehicle when he noticed a 

sedan with its tail lights not functioning properly traveling near him. Officer 

Soltero initiated a traffic stop. After stopping the vehicle, Officer Soltero 

approached the vehicle and spoke with the driver, later identified as Fail.

While speaking with Fail, Officer Soltero observed that Fail’s eyes were 

red and watery and that he smelled of alcohol. Fail admitted to having 

consumed three or four Heineken Lights before driving.

Officer Soltero directed Fail to exit his vehicle and asked him a series of 

field sobriety test questions. When Officer Soltero asked Fail when he had 

stopped drinking, Fail responded that he did not know. Officer Soltero also 

had Fail perform a series of field sobriety tests. Fail performed 

unsatisfactorily on the tests. Fail also refused to take a preliminary alcohol 

screening test.

At 11:14 p.m., Officer Soltero placed Fail under arrest for driving under 

the influence. (§ 23152, subd. (a).) After arresting Fail, Officer Soltero 

administered two blood alcohol breath tests. The first sample, taken from 

Fail at 11:18 p.m., gave a reading of 0.08 percent blood alcohol content. The

second sample, taken three minutes after the first sample, provided an 

identical reading.

Officer Soltero arrested Fail for the additional offense of driving with a 

blood alcohol level of .08 or more (§ 23152, subd. (b)), and issued a notice 

suspending Fail’s driver’s license pursuant to the administrative per se law 

(§ 13353.2 et seq.).
4

B. The administrative per se hearing

Fail requested an administrative hearing to contest the suspension of 

his driver’s license. At the hearing, a hearing officer admitted documentary 

evidence pertaining to Fail’s arrest, including Officer Soltero’s sworn 

statement and investigative report.

Fail offered the expert opinion testimony of Okorie Okorocha, a forensic 

toxicologist. Okorocha stated that in his opinion, Fail’s blood alcohol level at 

the time he was driving and at the time of the test was below .08 percent and 

that it was at “a maximum of a .07 [percent].” Okorocha stated that this was 

so because Fail was in the “absorptive phase” of alcohol consumption and 

because the device used to measure Fail’s breath was “reading high.” Fail 

also introduced in evidence a document that contained a record of various 

“accuracy checks” that were performed on the device used to measure Fail’s 

blood alcohol content on certain days over a period of approximately two

months around the time of Fail’s arrest.3

In rebuttal, the Department presented expert testimony from Jennifer 

Dernoncourt, a Senior Criminologist at the Department of Justice Crime Lab 

in Riverside. As discussed in greater detail in III.D.3.a.i, post, Dernoncourt 

testified concerning the device used to test Fail’s breath.

The Department hearing officer issued a decision upholding the 

suspension of Fail’s driver’s license. The hearing officer found that Officer 

Soltero had reasonable cause to believe that Fail was driving a motor vehicle 

while under the influence of alcohol; Fail was lawfully arrested; and Fail was 

driving with .08 percent or more blood alcohol level.

3 We discuss in detail the results of those tests in part III.D, post.
5

C. Fail’s writ petition

Fail filed a petition for writ of administrative mandate in the trial court 

in which he argued that there was no reasonable cause for Officer Soltero to 

believe that Fail had been driving in violation of section 23152, that Fail was 

unlawfully arrested and that there was not substantial evidence that Fail’s 

blood alcohol content was “over a .08 at the time of the stop or at the time of 

the test.”

After briefing and a hearing, the trial court denied Fail’s petition. In 

its statement of decision, the trial court found that Fail’s stop and arrest were 

lawful and that Fail had driven with a prohibited blood alcohol content of 

.08 percent or more. The court entered a judgment denying the petition.

D. The appeal

Fail appeals the judgment.

III.

DISCUSSION

There is substantial evidence in the record to support the trial court’s findings

with respect to the Department’s suspension of Fail’s driver’s license

Fail contends that there is no substantial and competent evidence in 

the record sufficient to support the Department’s suspension of his driver’s 

license pursuant to the administrative per se law (§ 13353.2 et seq.).

A. Governing law and standard of review

1. Administrative per se proceedings

In Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1207–1208 (Coffey), the 

Supreme Court summarized 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 
6

or her blood, must have driving privileges suspended prior to an actual 

conviction for a criminal offense’ ” (Coffey, supra, at p. 1207), as follows:

“Pursuant to the administrative per se law, ‘[a]fter 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 [citations].’ [Citation.] A driver served with such a 

suspension notice is entitled to a hearing on request 

[citation], at which the only issues to be decided . . . are 

whether the arresting officer had reasonable cause to 

believe she was driving, whether she was arrested for an 

enumerated offense,[4] and whether she was driving with 

0.08 percent [blood alcohol content] or higher [citation]. 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 suspended . . . .” (Id.

at pp. 1207–1208.)

2. Writ proceedings challenging the Department’s suspension decision

The Coffey court explained that a driver whose license is suspended 

pursuant to the administrative per se law may file a petition for writ of 

mandate seeking to overturn the suspension:

“A driver whose license has been suspended under the 

administrative per se law can seek review of the 

[Department’s] decision by seeking a writ of mandate in the 

trial court. ‘In ruling on an application for a writ of 

mandate following an order of suspension or revocation, a 

4 Although not expressly stated in the Coffey court’s summary of the 

administrative per se law, it is well established that it is the Department’s 

burden to prove that the officer had reasonable cause to believe that the 

driver was driving in violation of certain Vehicle Code sections, including, 

section 23152, and that the officer lawfully arrested the driver. (See, e.g.,

Gananian v. Zolin (1995) 33 Cal.App.4th 634, 638; see § 13557, subd. 

(b)(3)(A), (B), & (C).)
7

trial court is required to determine, based on its 

independent judgment, “ ‘whether the weight of the 

evidence supported the administrative decision.’ ” ’

[Citation.]” (Coffey, supra, 60 Cal.4th at p. 1217.)

3. Standard of review

The Coffey court also explained the limited scope of appellate review 

that applies to substantial evidence challenges following the denial of a 

petition for writ of mandate seeking to overturn the Department 

administrative hearing officer’s decision:

“Following the trial court’s denial of the writ, the scope of 

our review on appeal is limited: ‘[W]e “need only review the 

record to determine whether the trial court’s findings are 

supported by substantial evidence.” [Citation.] “ ‘We must 

resolve all evidentiary conflicts and draw all legitimate and 

reasonable inferences in favor of the trial court’s decision.

[Citations.] Where the evidence supports more than one 

inference, we may not substitute our deductions for the 

trial court’s. [Citation.] We may overturn the trial court’s 

factual findings only if the evidence before the trial court is 

insufficient as a matter of law to sustain those findings.’ ” ’

[Citation.]” (Coffey, supra, 60 Cal.4th at p. 1217.)5

5 While Fail contends that this court “examine[s] the findings made by 

the agency itself to determine whether they were supported by substantial 

evidence, rather than limiting [itself] to a review of the trial court’s findings,” 

the law is clear and settled that this court reviews the trial court’s factual 

findings. (See, e.g., Coffey, supra, 60 Cal.4th at p. 1217; Lake v. Reed (1997) 

16 Cal.4th 448, 457 [“On appeal, we ‘need only review the record to determine 

whether the trial court’s findings are supported by substantial evidence’ ”

(italics added)]; Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052, 1069 

[same].)
8

B. There is substantial evidence to support the trial court’s finding that 

Officer Soltero had reasonable cause to believe that Fail had driven in 

violation of section 23152

Fail contends that Officer Soltero did not have reasonable cause to 

believe that Fail had violated section 23152.

“ ‘Reasonable cause . . . [is] such a state of facts as would lead a man of 

ordinary care and prudence to believe and conscientiously entertain an 

honest and strong suspicion that the person is guilty of a crime.’ ” (Cantrell 

v. Zolin (1994) 23 Cal.App.4th 128, 133 [discussing “reasonable cause” 

element in administrative per se hearing].)

Fail argues that Officer Soltero did not have reasonable cause to 

believe that he had violated section 23152 because, according to Fail, Officer 

Soltero formed his opinion that Fail was intoxicated solely on the basis of 

Fail’s bloodshot and watery eyes and the odor of alcohol on Fail’s breath and 

emanating from the interior of Fail’s vehicle. Specifically, Fail argues:

“At the time [Officer] Soltero arrested Fail, he had no 

reasonable cause to believe [Fail] was [driving under the 

influence] in violation of section 23152 . . . . Even though 

[Officer] Soltero had observed Fail walking, driving, 

parking, speaking; had detected the odor of alcohol; and, 

even though [Fail] refused to submit to a voluntary PAS 

[preliminary alcohol screening] test [Officer Soltero] could 

not have not formed an opinion about [Fail’s] sobriety 

strictly by [Fail’s] alleged bloodshot watery eyes and odor of 

alcohol, as [Officer Soltero] did here.” (Italics added.)

Fail’s argument is without merit. In his investigation report, Officer 

Soltero noted that, at approximately 10:50 p.m., he observed a vehicle 

traveling with its “tail lights not functioning properly.” After stopping the 

vehicle, Officer Soltero approached the driver, Fail, and spoke with him.
9

According to Officer Soltero, while speaking with Fail, he “observed 

objective signs and symptoms of impairment and detected a strong odor of an 

alcoholic beverage emitting from both within [Fail’s vehicle] and [Fail’s] 

breath.” Officer Soltero further stated that Fail admitted having “consumed 

3 or 4 Heineken [L]ights.” In addition, Officer Soltero stated that Fail “was 

unable to perform” a series of field sobriety tests and Soltero outlined Fail’s 

performance on those tests. Finally, Officer Soltero stated:

“Based on Fail’s objective signs and symptoms of alcohol 

consumption, his driving, his statements, his [field sobriety 

tests] and my training and experience, I placed Fail under 

arrest for [violating section] 23152[, subdivision](a) . . . .”

The trial court relied on this evidence in finding that Officer Soltero 

had “probable cause[6] . . . to arrest [Fail].”

It is clear from the record that Officer Soltero did not form his opinion 

that Fail was intoxicated solely on the basis of Fail’s bloodshot and watery 

eyes and the odor of alcohol on Fail’s breath and inside his vehicle. Rather, 

he formed that opinion on the basis of all of the evidence described above, 

including Fail’s admission to having consumed three or four beers and his 

failing a series of field sobriety tests. This evidence constitutes substantial 

evidence to support the trial court’s finding that Officer Soltero had 

6 Reasonable cause and probable cause are synonymous. (See People v. 

Mower (2002) 28 Cal.4th 457, 473.)
10

reasonable/probable cause7 to believe that Fail had driven in violation of 

section 23152.8

C. There is substantial evidence to support the trial court’s finding that

Officer Soltero lawfully arrested Fail

Fail contends that his arrest was not lawful. Although the precise 

basis of Fail’s claim is not entirely clear from his brief, Fail references his 

unsatisfactory performance on the field sobriety tests, and argues “[a] search 

is not made legal by what it turns up.” Fail thus appears to contend that his 

arrest was unlawful because Officer Soltero illegally administered the field 

sobriety tests.

An officer may conduct a brief investigation into a driver’s sobriety 

based upon reasonable suspicion of his intoxication. (See Brierton v. 

Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 509 (Brierton).) 

“Reasonable suspicion that criminal conduct has occurred does not require 

that an officer observe all elements of criminal conduct; rather, it requires 

7 We discuss the distinct legal concept of reasonable suspicion in part 

III.C, post.

8 In contending that Officer Soltero did not have reasonable cause to 

believe that Fail had violated section 23152, Fail argues that, in conducting 

the field sobriety tests, Officer Soltero violated “GO [California Highway 

Patrol General Order] 100.61 to place a citizen out of view of the MVARS 

[mobile video audio recording system].” Fail does not make any argument as 

to how this alleged failure impacts the application of the administrative per 

se law. Accordingly, we disregard the contention. (See, e.g., Benach v. 

County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach) [“ ‘Issues do 

not have a life of their own: If they are not raised or supported by argument 

or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place 

to construct theories or arguments to undermine the judgment and defeat the 

presumption of correctness. When an appellant fails to raise a point, or 

asserts it but fails to support it with reasoned argument and citations to 

authority, we treat the point as waived”].)
11

that officer to be able to ‘point to specific articulable facts that, considered in 

light of the totality of the circumstances, provide some objective 

manifestation that the person detained may be involved in criminal 

activity.’ ” (Ibid.)

As noted in part III.B, ante, Officer Soltero stated in his investigation 

report, “While speaking with Fail, I observed objective signs and symptoms of 

impairment and detected a strong odor of an alcoholic beverage emitting from 

both within [Fail’s vehicle] and [Fail’s] exhaled breath.” Officer Soltero also 

stated that Fail admitted having consumed three or four beers and that, 

based on these observations and Fail’s admission, he decided to administer a 

series of field sobriety tests. The trial court found that Officer Soltero’s 

“observation of red, watery eyes, the smell of alcohol, and [Fail’s] admission 

that [he] had been drinking are enough for a reasonable officer to find 

reasonable suspicion to conduct field sobriety tests.”

Evidence that Officer Soltero observed Fail’s bloodshot and watery 

eyes, smelled alcohol on Fail’s breath, and heard Fail’s admission to drinking 

constitutes substantial evidence supporting the trial court’s finding that 

Officer Soltero had a reasonable suspicion that Fail might be driving under 

the influence. (Brierton, supra, 130 Cal.App.4th at p. 509.) Therefore, to the 

extent Fail’s claim of an unlawful arrest is based on Officer Soltero having

illegally conducted field sobriety tests, we reject his claim.

In addition to contending that Officer Soltero acted illegally in 

subjecting him to field sobriety tests, Fail contends, “The arrest was strictly 

made because [Officer Soltero] observed (1) bloodshot, watery eyes and 

(2) [Fail] had an odor of alcoholic beverage, neither of which are illegal.”9

9 To the extent that Fail’s brief may be read as arguing that his arrest 

was unlawful because Officer Soltero arrested him before administering field 
12

Fail argues further, “The arrest predicated upon the aforementioned

conditions was illegal and without probable cause.” We are unpersuaded. As 

explained above, there is substantial evidence in the record to support a 

finding that Officer Soltero had reasonable suspicion to investigate Fail’s 

sobriety by administering the field sobriety tests. Further, as we stated in 

part III.B, ante, the results of those tests, together with Officer Soltero’s 

other observations on the night of the incident and Fail’s admission to having 

consumed three or four beers, amounted to probable cause to arrest Fail for 

driving under the influence in violation of section 23152, subdivision (a).10

Accordingly, we conclude that there was substantial evidence to 

support the trial court’s finding that Officer Soltero lawfully arrested Fail.

D. There is substantial evidence to support the trial court’s finding that Fail 

drove with a blood alcohol content of .08 percent or more

Fail contends that, notwithstanding that he registered a .08 percent 

blood alcohol content on two chemical breath tests, defense expert Okorocha’s 

sobriety tests, we disagree. Officer Soltero’s investigative report expressly 

states that he arrested Fail after Fail’s unsatisfactory performance of field 

sobriety tests. In addition, Fail does not appear to challenge the lawfulness 

of Officer Soltero’s initial stop, which the officer stated in his investigative 

report was premised on his observation that Fail’s vehicle’s “tail lights [were] 

not functioning properly, a violation of [section] 24252[, subdivision] (a).” 

Further, as stated in the text, Fail’s detention after the stop, but prior to his 

arrest, was based on the officer’s reasonable suspicion that Fail was driving 

under the influence. In other words, Officer Soltero legally detained Fail in 

order to conduct field sobriety tests, and Soltero’s administration of those 

tests did not transform Fail’s detention into an arrest.

10 As noted in part II.A, ante, after arresting Fail, Officer Soltero 

administered blood alcohol breath tests. The results of those tests provided 

Officer Soltero with probable cause to arrest Fail for the additional offense of 

driving with a blood alcohol content of .08 percent or more in violation of 

section 23152, subdivision (b).
13

testimony established that Fail had a blood alcohol content of less than 

.08 percent while driving. Fail offers two arguments in support of this 

contention. First, he notes that Okorocha testified that the scientific 

literature establishes that breath blood alcohol tests provide an inflated 

reading of a subject’s blood alcohol content during the “absorptive phase” of 

alcohol consumption. Fail argues further that Okorocha testified that Fail 

was in the absorptive phase at the time Fail registered the .08 percent blood 

alcohol content readings and that his true blood alcohol content was 

necessarily lower. Second, Fail contends that Okorocha’s testimony, when 

considered together with a testing report for the device used to measure Fail’s 

breath, established that the device inaccurately registered Fail’s blood alcohol 

content and that his true blood alcohol content at the time of the test was 

below .08 percent.

We first discuss the evidence in the record supporting the trial court’s 

finding that Fail had driven with a blood alcohol content of .08 percent or 

more. Next, we consider each of Fail’s arguments in support of his claim that 

Okorocha’s testimony established that Fail had not driven with a blood 

alcohol content of .08 percent or more.

1. Evidence that Fail drove with a blood alcohol content of .08 percent

or more

a. Governing law

Section 23152, 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.”
14

“Although the statutory language speaks in terms of a ‘prosecution,’ 

several Courts of Appeal have held this presumption is not limited to 

criminal prosecutions but also applies in administrative license suspension 

proceedings.” (Coffey, supra, 60 Cal.4th at p. 1208.) This court is among the 

courts that have so held. (See Jackson v. Department of Motor Vehicles

(1994) 22 Cal.App.4th 730, 740.)

While the Supreme Court has not definitively determined whether the 

presumption applies in administrative per se hearings (Coffey, supra, 

60 Cal.4th at p. 1209), the law is clear that, if a defendant offers evidence 

sufficient to rebut the presumption, the Department is required to prove a 

driver’s blood alcohol content at the time she was driving without resort to 

the statutory presumption. (Id. at p. 1211.)

In attempting to carrying that burden, the Department may rely on 

evidence that gave rise to the statutory presumption in the first place (Coffey, 

supra, 60 Cal.4th at p. 1209)11—namely, chemical test evidence—as well as 

11 The Coffey court explained the operation of the rebuttable presumption 

contained in section 23152, subdivision (b) as follows:

“A rebuttable presumption requires the trier of fact, given a 

showing of the preliminary fact (here, that a chemical test 

result showed plaintiff had a [blood alcohol content] of 0.08 

percent or more within three hours of driving), to assume 

the existence of the presumed fact (here, that plaintiff had 

been driving with a prohibited [blood alcohol content]) 

‘unless and until evidence is introduced which would

support a finding of its nonexistence, in which case the trier 

of fact shall determine the existence or nonexistence of the 

presumed fact from the evidence and without regard to the 

presumption.’ [Citation.] In other words, if evidence 

sufficient to negate the presumed fact is presented, the 

‘presumption disappears’ [citation] and ‘has no further 

effect’ [citation], although ‘inferences may nevertheless be 

drawn from the same circumstances that gave rise to the
15

other circumstantial evidence of a defendant’s intoxication, including an 

officer’s observations of a driver and the driver’s performance on field sobriety 

tests. (Id. at pp. 1217–1218, disapproving Brenner v. Department of Motor 

Vehicles (2010) 189 Cal.App.4th 365 (Brenner).)

b. Application

The record contains evidence of the results of two chemical breath tests

that Officer Soltero administered on Fail within approximately 30 minutes of 

the traffic stop. Both tests registered a .08 percent blood alcohol content.

Even assuming that Fail rebutted the statutory presumption pertaining to 

driving with a prohibited blood alcohol content contained in section 23152, 

subdivision (b) by presenting expert testimony that Fail’s true blood alcohol 

content was lower than that registered by the tests,12 the trial court could 

still find that Fail had driven with a prohibited blood alcohol content based 

on the results of the chemical breath tests administered by Officer Soltero. 

(Coffey, supra, 60 Cal.4th at p. 1209 [even in cases in which the defendant 

rebuts a statutory presumption “ ‘inferences may nevertheless be drawn from 

presumption in the first place’ [citations].” (Coffey, supra, 

60 Cal.4th at pp. 1209–1210.)

12 Even assuming that Fail presented evidence that was legally sufficient

to rebut the section 23152, subdivision (b) presumption, the trial court was 

not required to find that evidence to be credible. (See Coffey, supra, 

60 Cal.4th at p. 1211 [stating that driver provided expert testimony that 

sufficiently rebutted assumed section 23152, subdivision (b) presumption 

because “if believed, [expert] evidence would have justified a conclusion that 

plaintiff’s [blood alcohol content] was rising at the time of her chemical tests 

and was thus quite possibly below the 0.08 percent threshold at the time she 

had been driving” (italics added)].)

We discuss the grounds on which the trial court could have reasonably 

refused to credit expert testimony offered by the defense that Fail had not 

driven with a blood alcohol content of .08 percent or more in addressing Fail’s 

contentions in parts III.D.2 and III.D.3, post.
16

the same circumstances that gave rise to the presumption in the first 

place’ ”].)

In addition, the Department presented circumstantial evidence of Fail’s 

intoxication that supported the trial court’s finding that Fail had driven with 

a prohibited blood alcohol content. That evidence included Officer Soltero’s 

observations of Fail as having bloodshot and watery eyes and smelling of 

alcohol, Fail’s admission to have consumed three or four beers, and Fail’s 

inadequate performance on the field sobriety tests. (See Coffey, supra, 

60 Cal.4th at pp. 1212–1216.)

2. The trial court was not required to credit Okorocha’s testimony that 

Fail was in the absorptive phase of alcohol consumption at the time 

that he was driving and that his true blood alcohol content was 

therefore less than .08 percent

Fail contends that Okorocha’s testimony demonstrated that Fail was in 

the absorptive phase of alcohol consumption at the time that he was driving,

and that his true blood alcohol content was therefore less than .08 percent.

a. Factual and procedural background

i. Evidence at the administrative per se hearing

As noted in part II.B, ante, at the administrative per se hearing, the 

Department introduced in evidence Officer Soltero’s investigative report. In 

the report, Officer Soltero indicated that Fail had admitted drinking four 

Heineken Lights13 and that Fail stated that he had started drinking at 

6:00 p.m. In a box labeled, “Time Stopped,” pertaining to the time the subject 

had stopped drinking, Officer Soltero wrote that Fail had stated, “I don’t 

know.”

13 In the narrative portion of the report, Officer Soltero stated that Fail 

admitted drinking “3 or 4” Heineken Lights.
17

At the hearing, Fail’s counsel asked Okorocha whether he could “tell us 

a little bit about breath testing . . . and what the reliability is as it relates to a 

breath test that is done in the absorptive phase.” Okorocha responded:

“When you’re absorbing alcohol, the breath test reads 

falsely high, which is because when alcohol is absorbed into 

the bloodstream, it first goes into the arterial system. 

However, . . . we measure impairment based on what’s in 

the veins or the venous system. The breath that comes out 

of the mouth and into the device comes from . . . the 

airways, and the blood that lines the airways is arterial. So 

while you’re absorbing, the arterial is always higher.

“And so when you’re absorbing, you’re always going to read 

higher on the breath than you normally would on the blood. 

And the scientific literature indicates that you can read 

falsely high by two to three times or even higher.”

Fail’s counsel then asked Okorocha about whether Fail “was 

absorptive.” Okorocha stated:

“[W]e can’t go by the timing because he said he didn’t know 

when he finished drinking, but the police report indicates 

that [Fail] had the odor of an alcoholic beverage. If he had 

the odor of an alcoholic beverage, that means the alcohol is

still in your stomach because that’s where breath odors

come from. Kind of like if somebody has a garlic dinner 

and burps, you can smell it because it’s coming up from the 

stomach.

“If it’s fully absorbed, it would be all in his blood stream 

and there would be nothing to smell. So if we know he has 

the odor of an alcoholic beverage, the alcohol is still in his 

stomach. And if the alcohol is still in your stomach, you’re 

still absorbing.”

Fail’s counsel also asked Okorocha the following question concerning 

the timing of Fail’s drinking and his blood alcohol content:
18

“If [Fail] had a last drink within a half hour of his stopping, 

would you say that his blood-alcohol was rising?”

Okorocha responded, “Absolutely.”

Okorocha also stated that eating generally causes the absorption phase 

to last longer.

The hearing officer also asked several questions concerning Okorocha’s 

absorption theory, including the following:

“So my question I guess would be with an unknown if there 

is indeed an unknown drinking pattern as far as the last --

the time of the last drink, can you formulate an opinion of 

how much alcohol remained in Mr. Fail’s system at that 

time?”

Okorocha responded, “I can’t say how much was in his stomach at the 

time.”

ii. The trial court’s statement of decision

In its statement of decision, the trial court found that Okorocha’s 

testimony concerning the absorptive phase of alcohol consumption was 

unpersuasive. The court noted that Officer Soltero’s investigative report 

indicated “that [Fail’s] answer to when he stopped drinking was ‘I don’t 

know’ . . . .” The trial court also noted that “[n]o testimony was given at [the] 

hearing about when [Fail] stopped drinking . . . .” The court reasoned, 

“Without evidence showing [Fail] was in the absorptive phase at the time of 

the test, any evidence regarding falsely high readings during the absorptive 

phase is irrelevant.”

b. Application

The law is clear that a trial court is not required to accept a defense 

expert’s testimony at an administrative per se hearing “at face value.” 

(Coffey, supra, 60 Cal.4th at p. 1218; see also Morgenstern v. Department of 
19

Motor Vehicles (2003) 111 Cal.App.4th 366, 372 [stating that in writ 

proceedings reviewing administrative per se hearings the trial court “makes 

its own determination about the credibility of the witnesses”].)

The Department presented evidence that Fail acknowledged having 

started drinking at 6:00 p.m., approximately five hours prior to being stopped 

by Officer Soltero. The Department also presented evidence that Fail stated 

on the night of the incident that he did not know when he had stopped 

drinking. In addition, Fail did not present any evidence at the 

administrative per se hearing as to either when he had stopped drinking or 

his pattern of drinking on the evening in question. Further, the trial court 

could have reasonably found that Okorocha’s testimony that the odor of 

alcohol on Fail’s breath demonstrated that Fail was in the absorptive phase 

of alcohol consumption was speculative. The trial court could therefore have 

also reasonably refused to credit Okorocha’s testimony that Fail’s blood 

alcohol tests did not reflect his true blood alcohol content because he was in 

the absorptive phase of alcohol consumption.

3. Fail is not entitled to reversal on the ground that the trial court 

erred in failing to find that the device used to measure his blood 

alcohol content was inaccurate

Fail maintains that Okorocha’s testimony, when considered in 

connection with the accuracy testing report for the device used to measure 

Fail’s breath, demonstrated that Fail was driving with a blood alcohol 

content of less than .08 percent.

a. Factual and procedural background

i. The administrative per se hearing

At the administrative per se hearing, Fail offered in evidence a 

document titled “Breath Alcohol Subject Report.” The report recorded 

“Accuracy Check” results performed on the device used to measure Fail’s 
20

blood alcohol content from Fail’s breath.14 Specifically, the report contained 

the results of nine accuracy tests performed on the device on various days 

between January 4, 2018 and March 5, 2018.15 The results demonstrated 

that the device measured .003 percent higher than the expected value on two 

of nine tests; .002 percent higher than the expected value on one of the tests; 

.001 percent higher on three of the tests; and exactly at the expected value on 

three of the tests.16

At the hearing, Okorocha noted that the accuracy test performed 

nearest in time to Fail’s February 3, 2018 arrest,17 registered a result 

.002 percent higher than the expected value. Okorocha testified that Fail’s 

blood alcohol content would have been lower than .08 percent “if we account 

for the fact . . . that [the device] was reading high by a .001, .002.”

After Okorocha testified, and over Fail’s objection, the hearing officer 

continued the hearing to obtain testimony from a witness from the 

Department of Justice.18

14 The report identified the device by both model number (“Device Type”) 

and serial number (“Device Serial”).

15 As noted in part II.A, ante, Fail was arrested on February 3, 2018.

16 The device was tested by having the device measure a “gas value” of 

.100 percent of alcohol. Thus, the expected value was “.100” percent for each 

of the tests, and the device measured between .100 and .103 percent.

17 The accuracy test to which Okorocha was referring was performed on 

February 6, 2018.

18 On appeal Fail states, “No grounds for a continuance existed and is 

[sic] the very reason why these hearings allowing HO’s [hearing officers] to 

rule on their own motions and evidence is a fundamental due process 

violation.” However, Fail does not present any citation or reasoned argument 
21

At the continued hearing, criminologist Jennifer Dernoncourt testified 

that when used in “evidential test mode,” the device used to measure Fail’s 

blood alcohol content reports blood alcohol content in “two digits,” and it 

“truncates or cuts off the third digit.”19 On cross-examination, Dernoncourt 

discussed the accuracy test results to which Okorocha had previously 

testified. Dernoncourt explained that in “screening mode,” the device used to 

measure Fail’s blood alcohol content “is capable of going to the third digit.” 

Dernoncourt agreed that, during an accuracy check on February 6, 2018, the 

device measured two one-hundredths of a percent higher than the expected 

value. However, Dernoncourt explained that “[we] do not know,” whether 

Fail’s blood alcohol content was lower than .08 percent because “[i]t really 

would depend upon that third digit that’s unknown.”

ii. The trial court’s statement of decision

The trial court rejected Fail’s contention that he was entitled to 

reversal of the suspension of his driver’s license on the ground that the device 

used to measure his blood alcohol content was inaccurate. The trial court 

reasoned:

in support of this assertion. Thus, to the extent that Fail intends to claim 

that the hearing officer erred in continuing the hearing, we conclude that he 

has forfeited the argument. (See, e.g., Benach, supra, 149 Cal.App.4th at 

p. 852 [issues that are not properly raised on appeal are forfeited].)

19 Stated differently, in evidential mode, the device reports blood alcohol 

content to the second decimal point, as in “.08.”

Dernoncourt explained that such truncation is in accordance with 

California law, stating, “Title 17 has stated that you have to report to the two 

digits.” (See Cal. Code Regs., tit. 17, § 1220.4, subd. (b) [“Analytical results 

shall be reported to the second or third decimal place. When reporting to the

second decimal place, the digit in the third decimal place shall be deleted” 

(italics added).])
22

“[Fail] argues that the . . . device was reading slightly high 

on the [a]ccuracy [t]ests at the time of the stop, so the 

0.08 [percent] really should have been considered a

0.07 [percent]. At hearing on the writ, [Fail] cited 

Brenner . . . for the idea that a device showing high in 

calibration tests means that the 0.08 [percent] reading is 

inaccurate, (Brenner[, supra,] 189 Cal.App.4th 365). 

However, in that case the records indicated that the 

machine was consistently reading higher than the true 

values tested and the [Department] did not present any 

evidence to rebut the argument. The appellate court was 

bound to uphold the trial court’s decision if supported by 

substantial evidence. Here, the accuracy tests do not show 

the same consistent higher reading as in Brenner. The 

[a]ccuracy tests show that the device readings did fluctuate 

between .100 and .103 between 1/8/2018 and 3/5/2018, 

though the readings went up and down within that range. 

Also, the [Department] offered evidence of their own expert 

and the evidence given in the officer’s report to rebut the 

conclusion that [Fail’s blood alcohol content] was below 

0.08 [percent]. The Supreme Court of California has 

overruled Brenner, stating[,] ‘To the extent the court’s 

statement in Brenner . . . , supra, 189 Cal.App.4th 365, . . . 

may be taken to preclude consideration of non-chemicaltest evidence to bolster or corroborate chemical test results, 

we disapprove it.’ (Coffey[, supra,] 60 Cal.4th [at p.] 1217). 

This court finds that the evidence in the record bolsters and 

corroborates the chemical test results showing [Fail’s blood 

alcohol content] was 0.08 [percent].”

b. Application

Citing Brenner, supra, 189 Cal.App.4th 365, Fail argues that because 

the device used to measure his blood alcohol content was “reading high,” it 

cannot be shown that his blood alcohol content was .08 percent or more. We 

are unpersuaded—chiefly because, as the trial court noted in its statement of
23

decision, in Coffey, the Supreme Court disapproved Brenner on a critical 

point relevant to Fail’s claim.20

As discussed in part III.D.1.a, ante, in Coffey the Supreme Court held 

that circumstantial evidence of a defendant’s intoxication is admissible in an 

administrative per se hearing to either “bolster the results of the chemical 

tests or . . . to rebut plaintiff’s defense of a rising [blood alcohol content].” 

(Coffey, supra, 60 Cal.4th at p. 1216.) In reaching this conclusion, the Coffey

court discussed Brenner and specifically disapproved that decision insofar as 

Brenner could be understood to preclude the consideration of non-chemicaltest evidence to bolster or corroborate chemical test results:

“Brenner[, supra, 189 Cal.App.4th 365], cited by plaintiff, 

does not warrant a contrary result. In that case, an expert 

examined the maintenance records for the device used to 

measure the driver’s breath and opined that it produced

slightly elevated results. As the driver’s test results 

showed a [blood alcohol content] of 0.08 percent exactly, the 

expert opined the driver’s actual [blood alcohol content] was 

slightly below the legal limit. Because the trial court in

Brenner had granted the driver’s petition for a writ, the 

Court of Appeal was required to uphold that decision if 

supported by substantial evidence. By contrast, the instant 

case comes to us in the opposite procedural posture: The 

trial court here denied relief to plaintiff and we are bound 

to uphold that decision if supported by substantial 

evidence. To the extent the appellate court in Brenner

asserted that ‘the impressions of the officer may have a 

bearing on plaintiff’s level of impairment, [but] they have 

no bearing on the precise level of his [blood alcohol content]’

(id. at p. 373), the statement must be read in the context of 

the case: Because the chemical tests in Brenner were done 

on a miscalibrated device used to measure the [blood 

20 In his briefing in this court, Fail did not discuss Coffey or acknowledge 

that the Supreme Court has disapproved Brenner, notwithstanding that the 

trial court expressly noted the disapproval of Brenner in its statement of 

decision.
24

alcohol content] in a breath sample, no accurate chemical 

test results were presented. No such problem exists in the 

instant case; the [Department] presented the results of four 

chemical tests and, although plaintiff’s expert would have 

interpreted those results to conclude her [blood alcohol 

content] was rising, he did not testify they inaccurately 

measured her [blood alcohol content] at the time the tests 

were run. To the extent the court’s statement in

Brenner[, supra, 189 Cal.App.4th 365], may be taken to 

preclude consideration of non-chemical-test evidence to 

bolster or corroborate chemical test results, we disapprove 

it.” (Coffey, supra, at pp. 1216–1217.)

In this case, as in Coffey, the trial court denied Fail’s petition for writ of 

mandate and we are bound to uphold that decision if supported by 

substantial evidence. Further, under Coffey, the trial court could reasonably 

rely on evidence that corroborated Fail’s two .08 percent blood alcohol content 

test results, including Officer Soltero’s observations of Fail as having 

bloodshot, watery eyes and smelling of alcohol, Fail’s admission to have 

consumed three or four beers, and Fail’s poor performance on the field 

sobriety tests.

In addition, accuracy checks of the device used to measure Fail’s breath 

showed only slightly elevated readings on some, but not all, of the checks. 

Further, as Dernoncourt explained, in accordance with California law, the 

device used to measure Fail’s breath truncates the third decimal place when 

used in “evidential mode.” Thus, even assuming that the device was 

providing slightly elevated results (i.e., .001 to .003 percent high) on the night 

in question, the trial court could reasonably reject Okorocha’s implicit 

assumption that Fail’s blood alcohol level was less than .082 percent such 

that the elevated reading would have falsely indicated that Fail was driving 

with a blood alcohol content of .08 percent or more.
25

In light of this evidence, the trial court could also reasonably reject 

Fail’s contention that the alleged inaccuracy of the device used to measure 

his blood alcohol content demonstrated that his blood alcohol level was less 

than .08 percent. Accordingly, we conclude that Fail is not entitled to 

reversal on the ground that the trial court erred in failing to find that the 

device used to measure Fail’s blood alcohol content was inaccurate.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.