DMV license suspension upheld where blood collection for BAC test did not comply with regulations

Phillips v. Gordon (Cal. Ct. App., Nov. 29, 2023, No. A165289) 2023 WL 8266154, at *1–2

Summary: Phillips appealed from the trial court’s denial of her petition for review of an order of the Department of Motor Vehicles (DMV) suspending her driver’s license for driving with a blood-alcohol concentration (BAC) of 0.08 percent or more. Phillips argues the trial court erred because the DMV failed to provide sufficient evidence of the reliability of the way in which her blood was collected for the BAC test. She contends she rebutted the presumption that the certified phlebotomy technician (CPT) drew her blood in a proper manner by showing that the CPT was not supervised and the procedure she followed was not approved as required by applicable regulations and statutes. The Court of Appeal agreed that Phillips rebutted the presumption of reliability but affirmed the trial court’s order because evidence introduced at the hearing nonetheless established the reliability of the manner of collection of Phillips’ blood.

Background:One night in September 2020, around 11:23 p.m., a California Highway Patrol officer pulled Phillips over and arrested her for driving under the influence in violation of Vehicle Code section 23152, subdivision (a). The officer’s partner took Phillips to a facility in Burlingame and requested a phlebotomist.

A phlebotomist, Ramos, employed by Bay Area Phlebotomy and Laboratory Services, arrived and drew two vials of blood from a vein in Phillips’ right arm. The officer gave Phillips a notice informing her that the DMV would suspend or revoke her privilege to drive a car within 30 days because of her arrest for driving under the influence.

The county lab measured Phillips’ BAC at 0.110 percent, +/-0.004 percent. The lab report states, “Based on the information provided, the collected sample appears to be compliant with Title 17.” Title 17, sections 1215 to 1222.1 of the California Code of Regulations, governs the operation of forensic alcohol laboratories and collection of evidence. (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 142, 7 Cal.Rptr.2d 818 (Davenport).)

Regulations governing the collection of blood for purposes of BAC tests require certain actions to be performed by a “physician and surgeon, physician assistant, clinical laboratory bioanalyst, registered nurse, or clinical laboratory scientist.” (Veh. Code, § 23158, subd. (g); see also id., subd. (e); title 17, § 1219.1, subd. (a).)

At an administrative hearing, the DMV hearing officer offered into evidence the lab test report and the arresting officer’s investigation report. Phillips objected to the lab report and asserted her own evidence would rebut the presumption under Evidence Code section 664 that the blood was properly collected and argued the certification on the lab report was insufficient on its own to establish the test’s scientific reliability. The hearing officer admitted the documents into evidence.

Phillips called the president and chief executive officer of Bay Area Phlebotomy and Laboratory Services who testified that Ramos was only a CPT, not a licensed physician and surgeon, registered nurse, licensed vocational nurse, licensed clinical laboratory scientist, licensed clinical laboratory bioanalyst, certified paramedic, or licensed physician assistant. Ramos was allowed to draw blood for the company, after passing a written competency exam for the company and a supervisor, who was also a CPT, observed her draw blood.

Violation of regulations

A licensed physician and surgeon had not approved the company’s policies and procedures that Ramos followed to draw blood. (Tit. 17, § 1219.1, subd. (a) [requiring compliance with Veh. Code, § 23158]; Veh. Code, § 23158, subd. (e).)
A qualified person had not reviewed and verified Ramos’ competency to draw blood for alcohol testing purposes before she was first allowed to draw blood for those purposes without direct supervision. (Veh. Code, § 23158, subds. (e) & (g).)
A qualified person had not reviewed and verified Ramos’ work at least once a month to ensure compliance with policies, procedures, and regulations.
No qualified individual was accessible for consultation within 30 minutes when Ramos drew Phillips’ blood. (Ibid.)

Phillips argued these four violations rebutted the presumption under Evidence Code section 664 that the collection of her blood was properly performed, making the blood test result inadmissible without some foundational evidence of scientific reliability. The hearing officer rejected Phillips’ argument because Ramos was a certified phlebotomist and found a preponderance of the evidence supported all of the required elements for suspending Phillips’ license. The hearing officer therefore ordered the suspension of Phillips’ driving privilege.

Phillips filed in the trial court a petition for review of the DMV’s order. The trial court denied the petition, concluding that even assuming Phillips had established the violations she alleged, Gerwig v. Gordon (2021) 61 Cal.App.5th 59, 275 Cal.Rptr.3d 359 (Gerwig) had already concluded that such violations did not rebut the presumption that the blood test was properly performed.

Administrative DMV Hearings

Administrative DMV hearings are informal and governed by the Administrative Procedure Act, and do not “require the full panoply of the Evidence Code provisions used in criminal and civil trials.” (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348 (Petricka).) The only issues to be decided at such a hearing are “whether the arresting officer had reasonable cause to believe [the accused] was driving, whether she was arrested for an enumerated offense, and whether she was driving with 0.08 percent BAC or higher.” (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1207–1208.) “If the DMV hearing officer finds these three statutory prerequisites proved by a preponderance of the evidence, the accused’s driver’s license will be suspended for four months if the driver has had a clean driving record [citation].” At the administrative hearing the DMV typically satisfies its burden of proving the driver had a BAC of 0.08 percent or higher with “two documents: the sworn statement of the arresting officer and a forensic lab report documenting the results of a chemical test of the driver’s blood.” (Petricka, at p. 1348.)

The foundational requirement of reliability for the admission of test results like a BAC lab report requires either compliance with title 17 or provide evidence of the foundational elements of (1) properly functioning equipment, (2) a properly administered test or collection procedures, and (3) a competent and qualified operator. The DMV need not submit evidence of such compliance and may instead rely on the presumption in Evidence Code section 664. (Petricka, at pp. 1348, 1350, 107 Cal.Rptr.2d 909; Davenport, at p. 144, 7 Cal.Rptr.2d 818.)

Evidence Code section 664 states, “It is presumed that official duty has been regularly performed.” Under this statute, at an administrative hearing, the forensic laboratory or technician collecting evidence for testing is presumed to have complied with the governing regulations.

Phillips argued that because the testimony established violations of Vehicle Code section 23158, subdivisions (e) and (g), she rebutted the Evidence Code section 664 presumption that Ramos’ blood collection complied with title 17, and thus for her blood test results to be admissible, the DMV had to submit evidence that (1) the blood collection equipment was properly functioning, (2) the blood was properly collected, and (3) Ramos was competent and qualified. She argued that the DMV failed to do this and concludes that the test result was inadmissible and the remaining evidence does not show she was driving with a BAC above 0.08 percent.

Phillips argued that her proof of those violations rebutted the presumption that her blood sample was collected in accordance with title 17. This shifted the burden back to the DMV to provide evidence of the foundational elements of (1) proper equipment, (2) proper collection procedures, and (3) a competent and qualified collector.

Here there was substantial evidence that Ramos was qualified and competent to draw Phillips’ blood, notwithstanding her lack of title 17-compliant supervision, and did so using the proper equipment and following the prescribed procedures. Phillips focused solely on rebutting the presumption of compliance with title 17 and offered no evidence or impeachment to suggest that Ramos’ collection of Phillips’ blood was unreliable in any way. The record therefore demonstrates as a matter of law that the collection and testing of Phillips’ blood was reliable, and the trial court was correct to deny Phillips’ petition seeking to direct the DMV to rescind and set aside the order suspending her driver’s license.

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