Chemical breath tests are unreliable when officer does not observe driver continuously for 15 minutes when administering the test

Summary: The Department of Motor Vehicles (DMV) suspended  Myers’s driver’s license for  four months for driving with a blood-alcohol concentration (BAC) of 0.08 percent or more. (Veh. Code, § 13353.2.)  Myers appealed the suspension and an administrative per se (APS) hearing was held. An administrative hearing officer (AHO) upheld the suspension, concluding that the arresting officer complied with all laws and regulations, requiring a 15-minute period of continuous observation before administering a chemical breath test (Cal. Code Regs., tit. 17, § 1221.1 (title 17)).

The trial court overturned the suspension and granted Myers’s petition for writ of mandate on the ground that the observation period under title 17 was not satisfied based on video evidence from an arresting officer’s body worn camera. On appeal, the DMV contends (1) the court erred in concluding the video evidence rebutted the presumption that the arresting officer complied with the 15-minute observation period before administering the first chemical breath test; and (2) even assuming the officer did not comply with title 17, Myers did not establish the violation resulted in an inaccurate test result because other evidence of intoxication corroborated the chemical breath test. The Court of Appeal affirmed.

Procedural Background

On October 5, 2023, Myers was arrested for driving under the influence of alcohol. The arresting officer issued Myers a Suspension Order and Temporary Driver License, suspending his driver’s license effective 30 days after October 5, 2023.

On October 31, 2024, the trial court issued a peremptory writ of mandate ordering the DMV to set aside and revoke their order suspending Myers’s driving privilege.

Facts

On October 5, 2023, at 11:22 p.m., Officer Kyle Goodrich was on foot patrol in Pismo Beach. Goodrich observed a car driving the wrong way on a one-way street in violation of section 21657. Goodrich shined his light at the driver, Myers, and advised him to pull over to the side of the road.

Goodrich believed Myers was impaired and asked him to step out of the car. Myers performed poorly on field sobriety tests (the one-legged stand and the walk and turn). Myers also completed another horizonal gaze nystagmus test and did not pass. Preliminary alcohol screening (PAS) tests indicated that Myers had a BAC of 0.160 percent at 11:39 p.m. and 0.162 percent at 11:42 p.m.4 Goodrich arrested Myers at approximately 11:43 p.m. for driving while under the influence of alcohol.

Two chemical breath tests were administered at the police station. Myers’s first chemical breath test resulted in a 0.15 percent BAC at approximately 12:04 a.m. The second chemical breath test resulted in a 0.16 percent BAC at 12:08 a.m.

Goodrich stated that he had continuously observed Myers for 15 minutes and certified he complied with title 17, section 1221.1, subdivision (b)(1) and did not observe Myers ingest any fluids, eat, smoke, or vomit prior to administering the test.

APS Hearing and Decision

On February 7, 2024, an APS hearing was held. The AHO explained that there were three issues for the hearing: (1) did Goodrich have reasonable cause to believe that Myers was driving under the influence in violation of sections 23152 or 23153; (2) was Myers lawfully arrested; and (3) was Myers driving with a BAC of 0.08 percent or more. The exhibits included Goodrich’s sworn driving under the influence arrest investigation report (form DS 367), Myers’s chemical breath test results, Goodrich’s arrest report and supplemental report, and Myers’s driving record.

Myers’s counsel objected on the grounds that it was a due process violation under both the California and United States Constitutions to have a single hearing officer act as both the presenter of evidence and as the trier of fact. He further objected on the basis that the hearing officer could not act as an advocate for the DMV, and the exhibits themselves should be the only evidence relied upon. Counsel made several objections based on the accuracy and reliability of the exhibits. He also made hearsay and lack of foundation objections to the exhibits. The AHO overruled all objections and admitted the exhibits into evidence.

Myers’s counsel introduced video footage from Goodrich and Pullen’s body-worn cameras on the night of the arrest and argued the video evidence showed a violation of the 15-minute continuous observation period.

The AHO determined that Myers was lawfully stopped, that reasonable cause existed for Myers’s arrest, and that Myers drove with a BAC of 0.08 percent or more. The AHO found “counsel did not provide any evidence to indicate there was a [t]itle 17 violation.” The AHO decided the chemical breath test results were admissible “based on the lack of sufficient evidence to rebut the [breath] test results ….” The AHO noted that the DMV’s evidence contained a signed certification (DS 367) indicating the chemical breath test was administered in compliance with the 15-minute observation rule and title 17. (Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”].)

Petition for Writ of Mandate and the Trial Court’s Ruling

On February 26, 2024, Myers filed a petition for writ of mandate through which he sought to set aside the suspension of his license. (Veh. Code, § 13559, subd. (a); Code Civ. Proc., § 1094.5.)

Myers argued that Goodrich did not comply with title 17. He maintained the presumption was rebutted by the video evidence from Goodrich and Pullen’s body-worn cameras, which showed that Goodrich did not observe Myers for a continuous 15-minute period before administering the first chemical breath test. Myers argued that because the DMV did not meet its burden to establish the reliability of the chemical breath tests, the court should issue the writ of mandate setting aside the suspension of his driver’s license.

The DMV argued Myers’s argument was speculative and that title 17 does not require the officer to have his eyes on the motorist for the entire 15-minute period. Rather, the purpose is to ensure reliability of breath test results by requiring the motorist to “ ‘not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.’ ”

The trial court found that Myers successfully rebutted the presumption of duty regularly performed under Evidence Code section 664 through video evidence, which showed Goodrich did not continuously observe Myers for the 15-minute observation period required under title 17. The court relied on Evans v. Gordon (2019) 41 Cal.App.5th 1094 (Evans) and noted that while the DMV was “not required to prove continuous eyeball observation, the video does establish that, at times, [Goodrich] was not even in the vicinity and could not have been providing the [t]itle 17 mandated observation.” The court further reasoned that unlike Evans, Goodrich did not testify, and no other evidence was presented to counter the video. Thus, the court ruled that the chemical breath tests should not have been admitted. The DMV failed to meet its burden of proving Myers was driving with a BAC of 0.08 percent or above. The court granted the writ of mandate overturning the administrative decision to suspend Myers’s driving privilege.

APS Hearing Procedure

License suspensions are governed by an administrative procedure called the “administrative per se” law.The DMV must immediately suspend the driver’s license of a motorist who is driving with a BAC of 0.08 percent or more. (§ 13353.2, subd. (a)(1);  Motorists have a right to request an APS hearing before the suspension of their driving privilege occurs, which is separate from the DMV’s automatic internal review, and the hearing is usually held before an AHO. At the APS hearing, an AHO determines whether an arresting officer had reasonable cause to believe the driver was driving, whether the driver was lawfully arrested, and whether the driver was driving with a BAC of 0.08 percent or more. If the AHO finds that the issues were proven by a preponderance of the evidence, the driver’s license of the motorist will be suspended for a period of four months if the motorist’s driving record is clean. (

At an APS hearing, the AHO “shall consider its official records and may receive sworn testimony” as evidence. (§ 14104.7.) The “technical rules relating to evidence” do not apply at an APS hearing, and the AHO “shall admit any relevant evidence that ‘is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.’ ”

Breath Test Results

Breath test results on official forms may be admitted during an APS hearing and may be considered as proof by a preponderance of the evidence that a motorist was driving with a BAC of 0.08 percent or more. Title 17 regulate the collection and testing of breath samples for determination of alcohol concentration. (Tit. 17, § 1215 et seq.) Evidence Code section 664 creates a rebuttable presumption that an “official duty has been regularly performed.” Evidence Code section 1280 establishes a hearsay exception for records made by public employees. The recorded chemical blood-alcohol test results on official forms are presumptively valid, obtained following the regulations and guidelines of title 17, and the DMV is not required to present additional evidence.

Once the DMV presents evidence to establish a prima facie case, the burden shifts to the motorist to produce affirmative evidence of improper performance.

Under title 17, there is a requirement that “[t]he breath sample shall be collected only after [15] continuous minutes during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.” (Tit. 17, § 1221.1(b)(1); Evans, supra, 41 Cal.App.5th at pp. 1102–1103.) Noncompliance with title 17 “goes only to the weight of the evidence, not its admissibility.” (People v. Williams (2002) 28 Cal.4th 408, 414.)

While an officer is not required to have “direct and unbroken eye contact for the 15-minute period,” the officer must be in the vicinity and use “other means of uninterrupted observation” to determine whether the motorist ate, drank, smoked, regurgitated, or vomited.  This was not done here.

Substantial evidence supports the trial court’s finding that the video evidence rebutted the presumption by showing Myers was not continuously observed for 15 minutes before obtaining the first chemical breath test.

Reliability of the Test Results

The DMV argues there is no evidence showing the chemical breath test results were unreliable. The DMV therefore maintains that even if there was technical noncompliance with a regulatory standard, the test results should be admitted because there is nothing to rebut the presumption of reliability. The DMV cites Gerwig v. Gordon (2021) 61 Cal.App.5th 59, 71 (Gerwig) for the proposition that the reliability of the test is the key concern when rebutting the Evidence Code presumption.

Myers presented video evidence from body worn camera footage of his arrest that showed Goodrich left him alone in his patrol car on two occasions during the approximate 15-minute period of continuous observation. The burden then shifted to the DMV to prove the test was reliable despite this violation. The DMV failed to meet their burden. Because the testing standards were not followed, the trial court could reasonably question the accuracy of Myers’s test results when weighing the evidence presented.

The trial court did not abuse its discretion in excluding the chemical breath test results.

In sum, the trial court’s finding was supported by substantial evidence showing Myers rebutted the presumption that the chemical breath test results were reliable. Because the video evidence showed Goodrich failed to continuously observe Myers for 15 continuous minutes to ensure he had not ingested food or drink, smoked, or regurgitated before administering the first chemical breath test, and the DMV offered no further evidence indicating that the results were reliable despite noncompliance with title 17, the trial court properly granted Myers’s petition for a writ of mandate.

The trial court’s order is affirmed. Costs on appeal are awarded to Myers.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.