DMV may use blood test results to suspend licenses even if there is a violation of  blood test regulations

WILLIAM LEE GERWIG, JR., Plaintiff and Appellant, v. STEVE GORDON, as Director, etc., Defendant and Respondent. (Cal. Ct. App., Feb. 19, 2021, No. D076921) 2021 WL 650274

 Summary: When the Department of Motor Vehicles (DMV) holds an administrative hearing to consider whether to suspend a driver’s license, it can usually support its case by relying on an Evidence Code presumption that chemical blood tests were properly conducted, and the results are thus reliable. Here, the Court of Appeal concluded that licensees rebut that presumption only when they cast doubt on the integrity of the test. A violation of governing regulations that has only a tenuous connection to the accuracy of the results is not enough. Here,  plaintiff proved a regulatory violation with only an indirect and speculative relationship to the manner in which the blood test was conducted, and to the reliability of the test results. The Court affirmed.


 Plaintiff William Lee Gerwig, driving a motorcycle, crashed into the back of another vehicle at an intersection. California Highway Patrol Officer Jacob Rebelo responded to the scene and suspected Gerwig was intoxicated. Gerwig also admitted he had some wine prior to driving. Rebelo arrested Gerwig for violating Vehicle Code section 23152—driving under the influence of alcohol (DUI)—and watched while state-certified phlebotomist Francisco Moreno collected two vials of blood using a nonalcoholic swab to clean the site. Rebelo took the vials himself and entered them into evidence. Test results from Gerwig’s blood draw showed a blood-alcohol concentration (BAC) of .25 percent.

DMV Hearing and violation of state blood test regulations

 Rebelo seized Gerwig’s license and gave him notice that the DMV would conduct a review and could suspend his driving privileges. Gerwig requested a hearing on the matter. (Veh. Code, §§ 13558 & 14100.) At that proceeding, the DMV submitted Rebelo’s report and the lab report with the BAC test results. Gerwig objected on foundational, hearsay and authentication grounds, but the hearing officer admitted the evidence over the objections.

Gerwig’s counsel then called an employee of Specimen Specialists of America, Inc. (SSI), the company that dispatched phlebotomist Moreno to draw Gerwig’s blood. Counsel demonstrated that certain SSI procedures were out of compliance with state regulations that govern blood test procedures. In particular, Moreno was functionally unsupervised and the manual that SSI provided for phlebotomists had not been approved by a physician and surgeon.

These deficiencies violate certain regulations. Blood samples must be collected in compliance with Vehicle Code section 23158.1 (Cal. Code Regs., tit. 17, § 1219.1 (hereafter title 17).) Section 23158 specifies the supervision requirements for certified phlebotomy technicians in subdivisions (e) and (g). The statute calls for phlebotomists to operate under procedures and policies approved by a physician and surgeon (id., subd. (e)), and to be supervised by individuals with certain credentials who review the phlebotomist’s work on a monthly and annual basis (id., subd. (g)). Either that supervisor or another qualified individual must also be available to consult with the phlebotomist within 30 minutes while the phlebotomist is working. (Ibid.)

The hearing officer agreed there was a title 172 violation, but still relied on the lab report to conclude that Gerwig drove with a BAC at or above .08 percent. Since there was no evidence to suggest that Moreno was unqualified or that there was some particular problem with the blood test, she found no reason to doubt its accuracy.

Gerwig sought writ review.


Key issue raised by Gerwig’s appeal is whether any violation of the regulations governing blood tests is enough to rebut the presumption.

 Administrative Per Se Hearings

The DMV has authority to suspend the license of a motorist over the age of 21 who drives with a blood alcohol percentage of 0.08 or more under a statutory scheme commonly known as the “ ‘administrative per se’ ” law. (Lake v. Reed (1997) 16 Cal.4th 448, 454 (Lake); Veh. Code, § 13353.2 et seq.) The law was adopted to mitigate the danger posed by motorists who have already been arrested for DUI but have not yet been convicted.

At the hearing, “the DMV is required to suspend a person’s driving privilege if it determines by a preponderance of the evidence that (1) a peace officer had reasonable cause to believe that the person had been driving a motor vehicle under the influence of alcohol or drugs, (2) the person was placed under arrest, and (3) the person was driving with ‘ “0.08 percent or more, by weight, of alcohol in his or her blood.” ’ [Citation] The DMV bears the burden of proof.” (Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 985 (Molenda).)

These hearings operate with relaxed evidentiary standards. Although the DMV bears the burden of proof, it can usually prove up a prima facie case with relative ease when a blood sample was taken from the licensee by submitting 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 v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348 (Petricka) This expedited process, which circumvents the authentication, foundation, and hearsay concerns that often accompany evidentiary submissions, is possible because the DMV routinely invokes Evidence Code section 664, which “ ‘creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17 [and] recorded test results are presumptively valid [such that] the DMV is not required to present additional foundational evidence.’ ” (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232; Evid. Code, § 664.) The presumption can, of course, be challenged by a licensee at the hearing, as in this case. If the presumption is rebutted, “ ‘the burden shifts to the DMV to prove that the test was reliable despite the violation.’ ” (Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176, 1183.)

To Rebut the Evidence Code Presumption, the Licensee Must Present Evidence of a Title 17 Violation That Bears Some Reasonable Relation to the Reliability of the Test Results.

In Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133 (Davenport), the appellate court considered whether due process principles were offended by the DMV’s use of the Evidence Code presumption to establish the reliability of chemical blood alcohol test results, particularly because such a procedure burdens the licensee with rebutting the presumption. The court held that a licensee’s due process rights were not violated by this approach, since DMV hearings are “altogether distinct from criminal trials, in which the accused is endowed with an overriding presumption of innocence.” (Id. at p. 144.) The court noted that the licensee has an opportunity to be heard at the hearing, and can subpoena individuals and obtain records to rebut the presumption. It concluded that allowing the DMV to rely on the Evidence Code presumption strikes an appropriate balance between any “hardship to the licensee” and “the urgent public need for an efficient and cost-effective means of removing from the public roadways the menace posed” by those who drive while intoxicated. (Id. at p. 145.)

The court’s due process analysis  contains a sentence that can fairly be read to support Gerwig’s position. After explaining the Evidence Code presumption, the Davenport court wrote, “If the licensee shows, through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed, the burden shifts to the [DMV] to prove that the test was reliable despite the violation.” (Davenport, supra, 6 Cal.App.4th at p. 144, italics added.) Relying on the “in any respect” clause, Gerwig contends that anyevidence of a failure to follow regulatory requirements is enough to rebut the presumption and require the DMV to prove the reliability of the test results. (Ibid.) We must decide whether this “in any respect” language was meant to dispense with any requirement that the regulatory violation have a reasonable connection to the reliability question.

Here, the type of title 17 violation highlighted by Gerwig “shows no more than a mere possibility that the integrity of the sample was not maintained. Such speculation is insufficient to support a reasonable inference that the integrity of the sample was, in fact, compromised.” (Baker, supra, 81 Cal.App.4th at p. 1174.) In line with the general principle that the licensee’s attempt to rebut the Evidence Code presumption “ ‘cannot rest on speculation,’ ” the Court concluded that showing any violation of title 17 is not sufficient in and of itself. (Delgado, supra, 50 Cal.App.5th at p. 577; Petricka, supra, 89 Cal.App.4th at p. 1348.) The licensee must present some evidence that the demonstrated violation gives rise to a reasonable inference that the test results are unreliable.


The order denying the petition for writ of mandate is affirmed.


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