CHP arrested Sandra Molenda for driving under the influence (DUI) of alcohol in Santa Cruz County. When the officer first arrived, he found Molenda alone in the car, seated in the driver’s seat, trying to start the engine.
The officer noticed signs of intoxication and smelled a strong odor of alcohol on Molenda.
Molenda admitted she had lost control and crashed.
Molenda also admitted drinking wine with dinner. Molenda failed field sobriety tests. Molenda blew into a breath testing machine called the Preliminary Alcohol Screening (PAS) device, which produced readings of 0.183 percent and 0.172 percent.
At the hospital, Molenda gave a sample of her blood to be tested for alcohol.
The crime lab received the blood sample on August 21st. The lab completed its analysis on September 1st; its report, dated September 8th, showed Molenda’s BAC was 0.17%.
THE DMV HEARING
Molenda requested a DMV Admin Per Se (APS) hearing.
At the hearing, the DMV hearing officer considered the: officer’s sworn statement on a DMV DS 367 form, an unsworn investigation report on CHP forms, the declaration of the lab tech who drew the blood sample, the Lab report, and an unsworn traffic collision report.
An officer testified he gave Molenda the PAS test and it showed the presence of alcohol. That is, alcohol was in Molenda’s system. However, the hearing officer did not ask the officer for the numerical results of the PAS test.
Molenda’s attorney objected to any evidence of Molenda’s BAC from the PAS device because there was no foundation to support the accuracy of the readings and under the authority of Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 677–681.
After the APS hearing, the Department of Motor Vehicles (DMV) upheld the suspension of Molenda’s driving privilege.
PETITION FOR WRIT OF MANDATE
Molenda filed a petition for a writ of mandate in the superior court, challenging the DMV’s decision. Molenda argued that the DMV hearing officer should not have admitted the lab report, which showed her blood test results, into evidence because it was hearsay, and it did not meet the requirements of the hearsay exception in Evidence Code section 1280.
The court agreed. It ruled the lab report did not meet the requirements of Evidence Code section 1280 because the report was not “made at or near the time of” the testing as required by subdivision (b), citing Glatman v. Valverde (2006) 146 Cal.App.4th 700.
The court also excluded the PAS test evidence because the foundational facts necessary for admission had not been established.
THE DMV APPEALS
Challenges to a court’s evidentiary ruling is reviewable under the deferential abuse of discretion standard.
LAB REPORT SHOULD NOT HAVE BEEN ADMITTED AT THE DMV HEARING
Evidence Code section 1280 provides: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:
(a) The writing was made by and within the scope of the duty of a public employee;
(b) The writing was made at or near the time of the act, condition, or event; and
(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
Molenda’s lawyer argued that because the lab report was completed one week after the lab tested Molenda’s blood, the report did not meet paragraph (b) of Evidence Code section 1280. The DMV hearing officer ruled that the blood test results were admissible, saying that “seven days is at or near the time of the analysis.”
The Molenda Court noted that in Glatman, “which was decided after the administrative hearing in this case, the motorist’s blood sample was analyzed on July 25, 2005, and analyzed a second time a day later. (Glatman, supra, 146 Cal.App.4th at p. 702.) Both analysts signed the report, which was dated August 1, 2005, one week after the first test was done.
The DMV in Glatman “argued that the analysts entered the test results into the lab’s computer database shortly after completing each test and that the preparation of the report one week later simply involved retrieving the data from the database. (Glatman, supra, 146 Cal.App.4th at p. 703.) The appellate court disagreed…”
The Glatman court also “observed that the record was silent regarding the procedures that the analysts used to record their test results and that there was no evidence that the test results were recorded in a computer database or anywhere else before the date the report was prepared.”
The Glatman court “held that the case presented a “‘danger of inaccuracy by lapse of memory’” and observed that “memory is subject to erosion with every day that passes.””
The Molenda court said its case is “similar to Glatman.” Furthermore, we cannot presume the test results were timely recorded under Evidence Code section 664.
DMV HEARING OFFICER SHOULD HAVE EXCLUDED PAS TEST EVIDENCE
The Molenda court noted, “the PAS breath test results were admissible upon a showing of either compliance with the regulations set forth in Title 17 or the foundational elements described in People v. Adams (1976) 59 Cal.App.3d 559, 561 (Adams), which include: (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator. (People v. Williams (2002) 28 Cal.4th 408, 414 417.) Title 17 compliance and the foundational requirements from Adams are distinct and independent means to support the admission of blood-alcohol test results.”
The Court of Appeal noted, “Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. [Citations.] … The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence.”
However, in this case, the officer “did not enter the PAS test results on the 367 form. More importantly, he did not sign the certification on the 367 form. Instead, he made a notation on the 367 form indicating that Molenda had submitted to a blood test. A reasonable inference from this evidence is that the officer intended to rely on the results of the blood test, not the PAS test.” The PAS test results were in the unsworn investigative report, which was appended to the 367.”
The Court of Appeal ruled that in this case “the DMV may not rely on the Evidence Code section 664 presumption to establish the foundation necessary for the admission of the PAS test results.”
Accordingly, the court did not abuse its discretion in excluding the lab report or the PAS test evidence.
This citation for this case is Molenda v. Department of Motor Vehicles (2009) 172 Cal. App. 4th 974.
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