Filed 9/27/19 Greathouse v. California Dept. of Motor Vehicles CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

SEAN GREATHOUSE,

Plaintiff and Appellant,

v.

CALIFORNIA DEPARTMENT OF MOTOR VEHICLES,

Defendant and Respondent.

A154947

(Marin County

Super. Ct. No. CIV1704119)

MEMORANDUM OPINION

In this appeal from the trial court’s denial of his petition for a writ of administrative mandamus, appellant Sean Greathouse argues that the court erred in upholding the suspension of his driver’s license by the Department of Motor Vehicles (DMV) when, after a blood draw following his arrest for driving under the influence, his blood alcohol content (BAC) tested at .17 percent, more than twice the legal limit.

The test was done by the Santa Rosa crime lab of the California Department of Justice (DOJ). Greathouse challenged the suspension at an administrative hearing, presenting expert testimony from toxicologist Okorie Okorocha, who opined that the test results were unreliable because (1) his blood sample was sent by regular mail to DOJ, it took seven days for the mail to arrive, and as a result of unknown and uncontrolled temperature conditions en route, fermentation of the sample likely occurred, which produced a much higher measurement of alcohol content than was present when the sample was taken, and (2) the DOJ crime lab used a single column gas chromatograph, because, without using a second column to confirm the reading generated by the first column, the potential for error is high. The Administrative Law Judge upheld the suspension of Greathouse’s driving privileges.

Greathouse then filed his petition of a writ of administrative mandamus in Superior Court. The court denied writ relief, accepting a competing expert opinion from a DOJ analyst, Ms. Rosenfeld, and specifically finding Mr. Okorocha’s opinion to be lacking in credibility.

Greathouse concedes the DMV met its initial burden to establish its prima facie case. (See Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232 (Manriquez) [“ ‘Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence’ ”].) Where the driver submits to a blood test, that burden is typically satisfied by two documents: the sworn statement of the arresting officer and a forensic laboratory report documenting the results of a chemical test of the driver’s blood. (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348 (Petricka).) A report, prepared by a properly licensed laboratory, “ ‘is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affair and is thus admissible under the Administrative Procedure Act.’ ” (Ibid.)

Moreover, because the blood analysis in this case was performed by the DOJ’s forensic laboratory, the chemical test is presumed to have complied with the requirements under Title 17 of the California Code of Regulations (Title 17), which sets forth standards to which the DOJ lab adheres. It is undisputed that the laboratory was licensed and complied with Title 17. The regulatory scheme under Title 17 provides the acceptable standards for forensic BAC analysis. “By establishing record-keeping (§ 1222.1), training (§ 1216.1), and quality control (§§ 1220.2–1220.3) requirements, the regulatory scheme is intended to provide assurance that test results will be scientifically valid.” (Hosek v. Superior Court (1992) 10 Cal.App.4th 605, 611 (Hosek).) For example, section 1220.1(a)(2) requires that forensic laboratories test blood samples by a method “capable for the analysis of ethyl alcohol with specificity which is adequate and appropriate for traffic law enforcement.” (Freitas v. Shiomoto (2016) 3 Cal.App.5th 294, 301.) Compliance with regulations provides “ample assurance of reliability.” (Hosek, at p. 611.) Thus, the DMV satisfied its initial burden by submitting evidence from the DOJ laboratory establishing Greathouse’s blood was tested in compliance with Title 17.

Under Evidence Code section 664, which sets up a presumption that official duty has been lawfully performed, Greathouse had the burden of overcoming a presumption that the DOJ laboratory criminalist properly performed his official duty in testing Greathouse’s BAC. Substantial evidence in the record supports the trial court’s determination that he failed to rebut that presumption here. “From the moment of arrest, the procedures for blood collection and testing are comprehensive and interrelated, and bristle with mandatory official duties.” (Petricka, supra, 89 Cal.App.4th at p. 1349.) “The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence.” (Shannon v. Gourley (2002) 103 Cal.App.4th 60, 65; accord Manriquez, supra, 105 Cal.App.4th at p. 1232.)

To rebut the presumption that his BAC test results are valid, Greathouse needed to produce “competent affirmative evidence” that official duties or official testing standards were not followed so as to shift the burden of proof back to the DMV. (Baker v. Gourley (2000) 81 Cal.App.4th 1167, 1172 (Baker); see Manriquez, supra, 105 Cal.App.4th at p. 1232; Evid. Code, § 606.) The trial court was within its discretion to reject Mr. Okorocha’s testimony as insufficient to rebut that Evidence Code 664 presumption and, accordingly, to conclude that Greathouse failed to show that his blood test report was unreliable. As in Baker, supra, 81 Cal.App.4th 1167, where an appellate court held that expert testimony offered to challenge a license suspension about the handling of the blood sample was based on mere speculation, Mr. Okorocha’s testimony about degradation of the sample at issue here during its mailing was logical, but necessarily based on a considerable degree of conjecture.

“Where an expert bases his conclusions upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value.” (Borger v. Department of Motor Vehicles (2011) 192 Cal.App.4th 1118, 1122.) California courts recognize that chemical tests performed under Title 17 standards are accurate. (See McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 525.) Thus, absent an affirmative showing that test results were invalid, a forensic report establishing blood test results is typically determinative of the issue of a motorist’s BAC content. (See Petricka, supra, 89 Cal.App.4th at p. 1348 [“Such a showing cannot rest on speculation”].)

There was no evidence that the DOJ’s handling of Greathouse’s blood sample was out of compliance with Title 17. Even though Mr. Okorocha may have preferred that samples be refrigerated, he could not point to any evidence that Greathouse’s blood sample was compromised or tainted. Further, other states’ courts have endorsed the blood sample mail-in procedures used in this case. (See Moberg v. Municipality of Anchorage (Alaska Ct.App. 2007) 152 P.3d 1170, 1174 [refrigeration not necessary when transporting sample]; Goodman v. Florida Department of Law Enforcement (Fla. 2018) 238 So.3d 102, 110 [same].) While this out-of-state authority is necessarily based on the regulatory regimes governing the handling of blood test samples in those states—and we take no view of whether that is or ought to be the law in California—the fact that there is authority outside of California expressly approving the mail-in practice that DMV defends here confirms that, on this record, the trial court was not outside the bounds of reason in declining to credit Mr. Okorocha’s testimony on acceptability of DOJ’s mail-in procedures.

Wholly apart from his critique of the handling and transport of his blood sample, Greathouse, citing Najera v. Shiomoto (2015) 241 Cal.App.4th 173, insists that the trial court failed to appreciate that the use of single-column chromatography for blood testing in DMV cases has been recognized to be unreliable. But in this case, unlike in Najera, where the DMV failed to offer anything in rebuttal to expert testimony criticizing single-column chromatography as unreliable, the DMV presented the testimony of Ms. Rosenfeld, who testified that single-column chromatography machines are still a reliable method to test BAC levels for the purposes of traffic law enforcement .

While conceding that chromatography technology has improved and there are now better tools available, Ms. Rosenfeld explained that there is not a significant difference between single-column and dual-column gas chromatograph machines in terms of testing reliability. She said all of these machines quantify BAC levels the same way. She additionally confirmed that the DOJ uses appropriate scientific methods to ensure accurate test results from their single-column machines. And she stated that these quality-check methods are deployed on each blood test, including performing a resolution standard to guarantee that single-column machines are truly separating and quantifying alcohol molecules, as opposed to other molecules. She also testified the DOJ ran the blood tests twice on Greathouse’s sample to confirm the accuracy of the results.

In addition, there was significant circumstantial evidence that corroborates the accuracy of the DOJ’s BAC test results. Greathouse drove unsafely, which caused a vehicle collision; the arresting officer noticed that Greathouse exhibited objective signs of intoxication such as a strong odor of alcohol and an unsteady gait; Greathouse admitted to drinking multiple beers that evening; and he failed three field-sobriety tests. Thus there was ample evidence of intoxication sufficient to support a finding that Greathouse drove in excess of the legal limit. (Coffey v. Shiomoto, (2015) 60 Cal.4th 1198, 1216 [non-chemical test circumstantial evidence, including motorist’s erratic driving and outward appearance of substantial intoxication, was relevant to rebut motorist’s expert’s testimony].)

We cannot say that the trial judge abused its discretion in crediting the DMV’s expert, while declining to credit Greathouse’s expert.

DISPOSITION

Affirmed. Costs to respondent.

 

_________________________

STREETER, Acting P.J.

WE CONCUR:

_________________________

TUCHER, J.

_________________________

BROWN, J.

A154947/Greathouse v. Cal. Dept. of Motor Vehicles