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A motorist whose vehicle hit a bicyclist on a Clairemont Mesa street Monday was arrested on suspicion of San Diego DUI - driving under the influence, San Diego DUI attorneys are told.

The San Diego DUI accident occurred about 10:30 a.m. on Balboa Avenue, near Charger Boulevard and Interstate 805, according to San Diego DUI criminal defense attorneys.

Medics took the bicyclist to a hospital to treat for head injuries that initially were considered serious but later were downgraded to minor, according to San Diego DUI drunk driving attorneys.

San Diego DUI officers arrested the motorist, 42-year-old Jeffrey Althoff, on suspicion of driving under the influence of alcohol or drugs, per San Diego DUI criminal defense lawyers.

Police closed down the eastbound lanes of Balboa Avenue for about an hour to allow for investigations.

San Diego California DUI Criminal Defense Lawyer or visit.

San Diego DUI attorneys are told as a result of this weekends extra Driving Under the Influence patrols, an additional six drivers were arrested for driving under the influence. Two of these individuals were on probation for prior DUI offenses.

Victor Hugo Barajas (3-8-83), of Temecula, was on probation for a felony DUI conviction stemming from an injury collision 4 1/2 years ago on SR-78 near Sycamore Avenue in Vista. Deputies stopped him Friday evening after observing him roll through a stop sign in Vista. It was determined he was on court probation for the prior DUI offense for a five year period through August of this year.

The second subject on probation was Christopher Lopez (2-18-88) of Murietta. Lopez was stopped after he was observed weaving out of his lane. Lopez was previously arrested in September 2008 for another DUI offense and was on court probation also. Lopez also had an outstanding warrant for his arrest on the same matter. While Barajas bailed out, Lopez remains in custody as of Monday morning. Both subjects had bail set at $17,500 due to their previous offenses.

Additionally, there were no reported DUI involved collisions this weekend in the City of Vista.

The operation has been funded through a grant obtained through the California State Office of Traffic Safety (OTS), as a result of a year long traffic safety grant awarded last year to the San Diego Sheriff’s Department.

As a result of this funding, and additional eighteen drunk drivers have been arrested and taken off the streets in the month of March alone in Vista. Deputies encourage residents to call 911 if they observe someone they believe to be under the influence driving.



The Roseville Police Department will conduct a DUI saturation patrol Friday evening, April 3. The department is putting additional officers on the streets to patrol for drunken and drug-impaired drivers.

Roseville Police Chief Mike Blair said, "Far too many people are being injured in Roseville because of impaired driving, and it's outrageous. Drunken driving is totally preventable. If you're going to drink, plan ahead for a sober ride home. You can choose a designated driver, call a taxi or call a sober friend for a ride home. If you ignore these warnings and get behind the wheel, you stand a very good chance of going to jail.”

The Roseville Police Department is investigating an increased number of DUI-related traffic collisions. The department investigated 35 alcohol or drug-related collisions during the months of January and February, a 67 percent increase over the same period last year. During that two-month period, one person was killed and 23 injured due to impaired driving.

The Roseville Police Department is battling the problem with increased nightly DUI enforcement, DUI and driver’s license checkpoints, saturation patrols, and DUI warrant sweeps. In January and February, Roseville officers arrested a total of 173 suspected drunk drivers.

Funding for Roseville’s DUI enforcement efforts is provided by a $100,000 grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration.

County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as a "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.

San Diego DUI Criminal Defense Lawyer

Filed 3/27/09
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
SANDRA LORRAINE MOLENDA,
Plaintiff and Respondent,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Appellant.
H032196
(Santa Cruz County
Super. Ct. No. CV156054)
After respondent Sandra Molenda was arrested for driving under the influence of alcohol, the arresting officer issued an administrative order suspending her driving privilege. After an administrative hearing, the Department of Motor Vehicles (DMV) upheld the suspension of Molenda’s driving privilege. Molenda petitioned the superior court for a writ of mandate, challenging the DMV’s order on the ground that the forensic laboratory report of her blood test results, which the DMV used to prove that Molenda was under the influence, was hearsay and did not meet the requirements of Evidence Code section 1280, the public employee records exception to the hearsay rule. The court held that the laboratory report of the blood test results did not meet the requirements of the public employee records exception to the hearsay rule because the report was not “made at or near the time of” the testing as required by Evidence Code section 1280, subdivision (b). The court also excluded the evidence of Molenda’s preliminary alcohol screening (PAS) test results because the foundational facts necessary for their admission had not been established. The court concluded that there was insufficient evidence to
support the DMV’s finding that Molenda was driving with a blood alcohol level of .08 percent or more and granted the writ.
The DMV appeals, arguing that the trial court erred in excluding the lab report of Molenda’s blood test results because the report was admissible under Vehicle Code section 23612, subdivision (g)(2), which the DMV contends prevails over both Evidence Code section 1280 and Government Code section 11513, subdivision (d), the statute that governs the admissibility of hearsay evidence in administrative proceedings. The DMV also argues that the court erred when it refused to consider the PAS test results. We hold that the blood test results were not admissible under Evidence Code section 1280 or Vehicle Code section 23612 and that under the circumstances of this case, the DMV may not rely on the presumptions in Evidence Code section 664 to establish the foundation necessary for the admission of the PAS test results. We therefore conclude the trial court did not abuse its discretion when it excluded the lab report of the blood test results or when it excluded the breath test results that were obtained using a PAS device. We shall therefore affirm the trial court’s judgment.
FACTS
On August 17, 2006,1 California Highway Patrol (CHP) officers responded to the scene of a single-vehicle rollover accident near the entrance ramp from State Park Drive to southbound Highway 1 in Santa Cruz County.
Officer Geddes was the first officer on the scene. When he arrived, he found a Dodge Durango on its wheels in the median between the on-ramp and the highway. Molenda, who was alone in the car, was seated in the driver’s seat, trying to start the engine. Because of the damage to the Durango, Officer Geddes instructed Molenda to
1 All further date references are to the year 2006.
2
get out of the car through the rear door. Officer Geddes observed signs of intoxication and smelled a strong odor of alcohol on Molenda.
Officers Barry and Lloyd were dispatched at approximately 11:35 p.m.; they arrived on the scene at either 11:40 or 11:48 p.m. When they arrived, Molenda was outside the car. Molenda admitted to Officer Barry that she had been driving and that she had lost control and crashed. Officer Barry observed signs of intoxication and smelled a strong odor of alcohol on her breath. Molenda also admitted drinking wine with dinner. Officer Barry conducted field sobriety tests, which Molenda failed. He tested Molenda with a PAS device at 12:01 and 12:03 a.m., which produced readings of 0.183 percent and 0.172 percent blood alcohol content. Officer Barry determined that Molenda had been driving under the influence (DUI) of an alcoholic beverage and arrested her. Officer Barry issued an administrative order suspending Molenda’s driver’s license on the ground that she had 0.08 percent or more of alcohol in her blood and Molenda surrendered her license to him at the scene.
Molenda was transported by ambulance to Dominican Hospital. Officer Barry advised her of the implied consent law and she agreed to provide a blood sample. Molenda’s blood was drawn by a hospital lab technician at 12:47 a.m. on August 18th. Officer Barry placed the blood sample “into CHP evidence for analysis by the DOJ [Department of Justice] crime lab.” Molenda was subsequently transported and booked into jail.
The DOJ Bureau of Forensic Services laboratory (Lab) received the blood sample on August 21st. The Lab completed its analysis on September 1st; its report was dated September 8th. According to the Lab’s report, Molenda’s blood alcohol level was “0.17%.”
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PROCEDURAL HISTORY
I. Administrative Per Se Hearing
Molenda requested an administrative hearing regarding the suspension of her driver’s license. The hearing was conducted by telephone on November 20th. Molenda was represented by counsel, but did not appear at the hearing.
Officer Barry testified regarding his observations at the scene. With regard to the blood alcohol testing, Officer Barry testified that he administered the PAS test and that it showed the presence of alcohol. The hearing officer did not ask Officer Barry for the numerical results of the PAS test. Officer Barry also stated that he arrested Molenda and that after he admonished her regarding the implied consent law, she chose a blood test.
The hearing officer introduced and received the following documents into evidence: Officer Barry’s sworn statement on a DMV DS 367 form, Officer Barry’s unsworn investigation report on CHP forms, the suspension order, the declaration of the lab technician who took the blood sample, the Lab report, an unsworn traffic collision report prepared by Officer Lloyd, the notice of the hearing, a temporary license issued to Molenda, the DMV’s request for discovery, and Molenda’s driving record.
Molenda’s counsel objected to any evidence of Molenda’s blood alcohol level as a result of the testing with the PAS device on the grounds that 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 (Coniglio) which held that PAS devices are not subject to the compliance standards set forth in California Code of Regulations, title 17, sections 1215-1222.2 (hereafter Title 17). The hearing officer sustained both objections and stated that he would not consider the PAS test results for numerical proof of Molenda’s blood alcohol level. However, he did consider the PAS test results to the extent that they confirmed the presence of alcohol and supported the officer’s conclusion that Molenda was intoxicated.
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Citing Downer v. Zolin (1995) 34 Cal.App.4th 578 (Downer), disapproved on other grounds in Lake v. Reed (1997) 16 Cal.4th 448, 465, footnote 10 (Lake), Molenda also objected to the admissibility and sufficiency of the blood test results. Her counsel argued that since the report was completed one week after the Lab tested the blood sample, the report did not meet one of the foundational requirements of Evidence Code section 1280, the public employee records exception to the hearsay rule, since the report was not prepared “at or near the time” of the reported event. (Evid. Code, § 1280, subd. (b).) The hearing officer took the objection under submission.
The hearing officer determined that the blood test results were admissible. With regard to Molenda’s objection, the hearing officer held that this case was distinguishable from Downer because the report in Downer was not dated and thus did not indicate when it was prepared, while the report in this case was dated. The hearing officer noted that no evidence had been “submitted to show that the blood result is invalid” or that “the chain of custody was broken” and concluded that “seven days is at or near the time of the analysis.” The hearing officer upheld the four-month suspension of Molenda’s driver’s license.
II. Petition for Writ of Mandate in the Superior Court
Molenda petitioned the superior court for a writ of mandate to set aside the suspension. In her petition, Molenda argued that the Lab report was not admissible under the public employee records exception to the hearsay rule (Evid. Code § 1280) because it was not prepared at or near the time of the testing and consequently, there was no admissible evidence that established her blood alcohol level.
The DMV opposed the petition, arguing that the admissibility and sufficiency of the Lab report was governed by Vehicle Code section 23612, subdivision (g)(2), which as the more particular statute prevails over both Evidence Code section 1280 and Government Code section 11513. The DMV also argued that even if the Lab report was
5
not admissible, the PAS test results were admissible and sufficient by themselves to establish Molenda’s blood alcohol level.
The trial court excluded the PAS test results because the foundational facts necessary for their admission had not been established. Citing Glatman v. Valverde (2006) 146 Cal.App.4th 700, the court also held that the delay in preparing the report of the blood test results rendered the Lab report inadmissible. The court therefore concluded that there was insufficient evidence to support the DMV’s finding that Molenda was driving with a blood alcohol level of .08 percent or more. The court granted the writ, ordered the DMV to set aside its order suspending Molenda’s license, and ordered that Molenda’s driving privilege be reinstated. The DMV appeals.
DISCUSSION
In a DMV administrative 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.’ ” (Lake, supra, 16 Cal.4th at p. 456.) The DMV bears the burden of proof. (Id. at p. 455.)
Molenda contends that there was insufficient evidence to support a finding that she was driving with a blood alcohol level over 0.08 percent, since the Lab report was inadmissible hearsay and the hearing officer had ruled that the PAS test results were inadmissible. The DMV contends that the Lab report, although hearsay, was admissible under Vehicle Code section 23612, subdivision (g)(2), and was sufficient by itself to support the DMV’s finding that Molenda was driving with a blood alcohol level in excess of 0.08 percent. The DMV also contends that even if the Lab report was inadmissible,
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the PAS test results were admissible and sufficient by themselves to support the DMV’s finding.
I. Standards of Review
Generally, when ruling on a petition for a writ of mandate challenging an order suspending a driver’s license, a trial court exercises its independent judgment to determine “ ‘ “whether the weight of the evidence supported the administrative decision.” ’ ” (Lake, supra, 16 Cal.4th at pp. 456-457.) On appeal, we review the record to determine whether the trial court’s findings are supported by substantial evidence. (Id. at p. 457.)
However, when the appellant challenges a court’s evidentiary ruling, a different standard of review applies. Generally, we review the trial court’s rulings regarding the admissibility of evidence under the deferential abuse of discretion standard. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) “[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.” (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
Specifically, we review the trial court’s ruling that the Lab report did not meet the requirements of Evidence Code section 1280 for an abuse of discretion. “A trial court has broad discretion in determining whether a party has established [the] foundational requirements [of Evidence Code section 1280]. [Citation.] Its ruling on admissibility ‘implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary. (Evid. Code, § 402, subd. (c).)’ [Citation.] A reviewing court may overturn the trial court’s exercise of discretion ‘ “only
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upon a clear showing of abuse.” ’ ” (People v. Martinez (2000) 22 Cal.4th 106, 120 (Martinez), citing People v. Williams (1997) 16 Cal.4th 153, 196.)
To the extent that the issues presented here require us to interpret one or more statutes, we apply the de novo standard of review. Since the interpretation of a statute presents questions of law, appellate courts independently determine the meaning of a statute and are not bound by the trial court’s interpretation. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; In re Clarissa H. (2003) 105 Cal.App.4th 120, 125.)
II. Admissibility of Forensic Lab Report Regarding Blood Test Results
A. General Rules Governing Admissibility of Evidence in DMV Proceedings
The rules governing the evidence available for use in DMV administrative per se hearings “are set forth in division 6, chapter 3, article 3 of the Vehicle Code, commencing with section 14100. (§ 14100, subd. (a).) Two provisions are especially relevant. First, [Vehicle Code] section 14104.7 states in pertinent part: ‘At any hearing, the department shall consider its official records and may receive sworn testimony.’ (Italics added.) Second, for all matters not specifically covered by … the Vehicle Code [provisions, Vehicle Code] section 14112 incorporates the provisions of the Administrative Procedures Act governing administrative hearings generally. (Gov. Code, § 11500 et seq.; see also, id., § 11501, subd. (b)(41) [Administrative Procedures Act applies to DMV].)” (Lake, supra, 16 Cal.4th at p. 458.)
Government Code section 11513 addresses the admissibility of evidence generally in administrative hearings. (Lake, supra, 16 Cal.4th at p. 458.) It provides in relevant part: “(c) The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or
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statutory rule which might make improper the admission of the evidence over objection in civil actions. [¶] (d) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but . . . shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” (Gov. Code, § 11513, subds. (c) & (d).) Under subdivision (d) of the statute, a forensic lab report, although hearsay, may be used to supplement or explain other evidence. But it shall not be sufficient in itself to support a finding unless it would be admissible over a hearsay objection in a civil action. Thus, to support a finding by itself, the forensic lab report must fall within an exception to the hearsay rule.
In Lake, the California Supreme Court held that despite their hearsay nature, blood and urine test reports prepared by government forensic laboratories are admissible in DMV administrative review hearings as official records under the public employee records exception to the hearsay rule, provided they meet the requirements of Evidence Code section 1280, which sets forth the exception. (Lake, supra, 16 Cal.4th at p. 467.) This is true even when the forensic reports are not certified under penalty of perjury.2 (Ibid.)
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
2 The court in Lake explained, “A report prepared by a forensic laboratory properly licensed by the State of California (see tit. 17, Cal. Code Regs., § 1215 et seq.), though unsworn, ‘is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs’ (Gov. Code, § 11513, subd. (c)), and the admission of such evidence will facilitate the immediate removal of dangerous drivers from the road. The Legislature could reasonably have concluded that the formality of having forensic alcohol analysts swear under penalty of perjury to the accuracy of their test results, while unquestionably providing an additional layer of confidence the [blood alcohol] evidence is correct, could be dispensed with in administrative hearings at which no criminal penalties will be imposed.” (Lake, supra, 16 Cal.4th at p. 467.) 9
following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” As this court stated in Furman v. Department of Motor Vehicles (2002) 100 Cal.App.4th 416, to come within the hearsay exception in Evidence Code section 1280, a forensic laboratory report must “(1) be a record made by a public employee with a duty to perform, and record the result of, a forensic alcohol analysis, (2) have been made at or near the time of completion of the analysis, and (3) have been made under circumstances that reflected that it was trustworthy.” (Furman, at p. 421.)
The DMV acknowledges that to be sufficient by itself to support a finding regarding a licensee’s blood alcohol level, a forensic lab report must meet the requirements of an exception to the hearsay rule and that, ordinarily, that exception is found in Evidence Code section 1280, the public employee records exception. The DMV contends, however, that the Lab report was admissible and sufficient by itself to support the hearing officer’s finding regarding Molenda’s blood alcohol level under Vehicle Code section 23612, subdivision (g)(2) and that consequently, the court erred in excluding the report under Evidence Code section 1280.
Vehicle Code section 23612, subdivision (g) provides in relevant part: “(1) . . . If the person submitted to a blood or urine test, the peace officer shall forward the results immediately to the appropriate forensic laboratory. The forensic laboratory shall forward the results of the chemical tests to the department within 15 calendar days of the date of the arrest. [¶] (2)(A) Notwithstanding any other provision of law, a document containing data prepared and maintained in the governmental forensic laboratory computerized database system that is electronically transmitted or retrieved through public or private computer networks to or by the department is the best available evidence of the chemical test results in all administrative proceedings conducted by the department. In addition,
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any other official record that is maintained in the governmental forensic laboratory, relates to a chemical test analysis prepared and maintained in the governmental forensic laboratory computerized database system, and is electronically transmitted and retrieved through a public or private computer network to or by the department is admissible as evidence in the department’s administrative proceedings. In order to be admissible as evidence in administrative proceedings, a document described in this subparagraph shall bear a certification by the employee of the department who retrieved the document certifying that the information was received or retrieved directly from the computerized database system of a governmental forensic laboratory and that the document accurately reflects the data received or retrieved.” (Italics added.) The word “department” in the statute refers to the DMV. (Veh. Code, § 290.)
B. Admissibility of Forensic Lab Blood Test Results Under Evidence Code Section 1280
Molenda contends the trial court did not abuse its discretion when it excluded the Lab report of the blood test results because the Lab’s report was not completed “at or near the time of the act, condition or event” reported (the analysis of the blood sample) and therefore did not comply with the requirement for admission as a official record under Evidence Code section 1280, subdivision (b). Without expressly conceding the point, the DMV seems to agree that the report was not admissible under Evidence Code section 1280.
“ ‘How soon a writing must be made after the act or event is a matter of degree and calls for the exercise of reasonable judgment on the part of the trial judge.’ ” (Martinez, supra, 22 Cal.4th at p. 128, fn. 7.) “[T]he timeliness requirement ‘is not to be judged … by arbitrary or artificial time limits, measured by hours or days or even weeks.’ [Citation.] Rather, ‘account must be taken of practical considerations,’ including ‘the nature of the information recorded’ and ‘the immutable reliability of the sources from which [the information was] drawn.’ [Citation.] ‘Whether an entry made subsequent to
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the transaction has been made within a sufficient time to render it within the [hearsay] exception depends upon whether the time span between the transaction and the entry was so great as to suggest a danger of inaccuracy by lapse of memory.’ ” (Id. at p. 128, italics added.) In Martinez, the court held that the DOJ’s “entry into CLETS [California Law Enforcement Telecommunications System] of criminal information it receives does not depend on memory, but simply involves a transfer of information from one form of storage—the disposition reports—to another—the CLETS database. Under these circumstances, the [DOJ]’s statutory recording duties are sufficiently specific to support the trial court’s discretionary determination that the CLETS printout met the timeliness requirement of the official records exception.” (Ibid.)
In Downer, a motorist’s urine sample was analyzed twice, by two different analysts in the government forensic lab. There were no signatures near the statement of certification and there was a factual issue regarding whether the analysts’ report was dated. (Downer, supra, 34 Cal.App.4th at p. 580.) The appellate court concluded that the superior court had not erred when it found that the report was undated and observed that there was “no other information which the trial court could rely on to deduce its date of preparation.” (Id. at p. 582.) The court held that the “absence of evidence showing the report was made at or near the time of the reported event renders this report inadmissible hearsay under Evidence Code section 1280.” (Ibid.)
In a footnote, the court discussed the evidence relating to the factual question whether the report was dated and concluded “we cannot say the court’s factual finding was clearly erroneous. But even if it were, a report prepared nearly a week after the forensic tests were completed does not fall within the statutory requirement that the report be prepared ‘at or near the time’ of the reported event. (Evid. Code, § 1280.)” (Downer, supra, 34 Cal.App.4th at p. 582, fn. 5.) Since the court upheld the trial court’s finding that the report was undated, the latter conclusion is dictum.
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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. (Ibid.) The DMV 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 and 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. (Id. at p. 704.) The 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.” (Id. at pp. 704, 705.) The court concluded that the trial court had not abused its discretion in finding that the forensic report was not prepared at or near the time of the recorded event. (Id. at p. 706.)
In our view, this case is distinguishable from Martinez and similar to Glatman. As in Glatman, there is no evidence the test result was entered into a computer database or recorded in any manner prior to the preparation of the written report, which was done one week after the analysis was completed. The report states that “[i]nformation regarding the examination and conclusions are entered into and are maintained within the DOJ Laboratory Information Management System (LIMS) database.” However, it does not state when the test results were entered into the database. Moreover, the record is silent regarding the lab’s policies and procedures for recording test results.
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Furthermore, we cannot presume the test results were timely recorded under Evidence Code section 664,3 the presumption that an official duty has been regularly performed, since no statute or regulation imposes a timeliness duty with regard to the recording of test results that could be presumed to have been met. (Glatman, supra, 146 Cal.App.4th at p. 705.)
For these reasons, we conclude that the trial court did not abuse its discretion when it held that the Lab report was inadmissible because it was not prepared at or near the time of the recorded event, as required by Evidence Code section 1280, subdivision (b).
C.
Admissibility of Blood Test Results Under Vehicle Code Section 23612
1. The Parties’ Contentions Regarding Vehicle Code Section 23612
The DMV argues that by adopting Vehicle Code section 23612, “the Legislature intended to clear away any obstacles presented by Evidence Code section 1280 so that the DOJ lab reports would be sufficient in DMV administrative proceedings to establish a driver’s [blood alcohol level].” It contends that the only reason for adding subdivision (g)(2) to Vehicle Code section 23612 “was to ensure that the DOJ lab reports would be sufficient to support findings in DMV administrative proceedings under Government Code section 11513(d), notwithstanding the foundational requirements of Evidence Code section 1280.” The DMV asserts that the only requirement that the Legislature imposed for the use of a forensic lab report by the DMV is that the report bear a certification from the DMV employee who retrieved the report from the DOJ’s computer as set forth in Vehicle Code section 23612, subdivision (g)(2)(A). The DMV also contends that that requirement was met in this case and that the Lab report was therefore both admissible
3 Evidence Code section 664 provides in relevant part: “It is presumed that official duty has been regularly performed.”
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and sufficient to support the hearing officer’s finding that Molenda’s blood alcohol level exceeded the legal limit.
At oral argument, the DMV argued that Vehicle Code section 23612, subdivision (g)(2) prevails over Evidence Code section 1280, Government Code section 11513, and the entire Evidence Code.
Molenda argues that Vehicle Code section 23612 was designed “to avoid any ‘best evidence’ objections to the admission of laboratory reports that are already in a computerized data base” and is not “any type of exception to the official records exception to the hearsay rule in section 1280 of the Evidence Code . . . .” She contends that Vehicle Code section 23612, subdivision (g)(2) merely pertains to the admission of a certain type of evidence at an administrative hearing and does not state rules pertaining to the sufficiency of that evidence to support an administrative finding.
2. Rules of Statutory Construction
As noted above, the interpretation of statutes presents questions of law that are subject to our independent review on appeal. (In re Clarissa H., supra, 105 Cal.App.4th at p. 125.)
“ ‘A fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ ” (Phelps v. Stostad (1997) 16 Cal.4th 23, 32.) First and foremost, we look for that purpose in the actual language of the statute. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763.) If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998.) If the meaning of the words is not clear, we may refer to various extrinsic aids, including the history of the statute, to determine the intent of the Legislature. (Kaiser Foundation Health Plan, Inc. v. Lifeguard, Inc. (1993) 18 Cal.App.4th 1753, 1762.) Finally, if neither the words of the statute nor its legislative history reveal a clear meaning, we apply
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reason and practicality, and interpret the statute in accord with common sense and justice, and to avoid an absurd result. (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1240.)
When interpreting a statute, we consider the statutory language in the context of the entire statute and the statutory scheme of which it is a part. (Phelps v. Stostad, supra, 16 Cal.4th at p. 32.) We give effect to statutes according to the usual, ordinary import of the language employed in framing them. If possible, we give significance to every word, phrase, sentence and part of an act pursuant to its legislative purpose. (Ibid.) “When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear. [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.” (Ibid., internal quotation marks omitted.)
Finally, a “more specific statute controls over a more general one” touching on the same subject. (Lake, supra, 16 Cal.4th at p. 464; Department of Industrial Relations v. Fidelity Roof Co. (1997) 60 Cal.App.4th 411, 426.)
3. Analysis
Vehicle Code section 23612 is located in Article 1, Chapter 4 of Division 11.5 of the Vehicle Code, which sets forth general provisions related to procedures for handling DUI cases. It is part of California’s implied consent law. (People v. Wilson (2003) 114 Cal.App.4th 953, 960 (Wilson).) The immediate purposes of the implied consent law are: (1) “ ‘to obtain the best evidence of blood alcohol content at the time of the arrest of a person who is reasonably believed to be driving while intoxicated’ ” before the evidence becomes unavailable due to the passage of time (ibid.) and (2) to provide incentive for voluntary submission to chemical tests thereby eliminating the potential for violence inherent in forcible testing (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d
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70, 77). The ultimate purpose of the law is to deter motorists from drinking and driving. (Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757.)
Based on the plain language of the statute, subdivision (g)(2)(A) of Vehicle Code section 23612 has a narrow purpose, which is to permit the electronic transmission or retrieval of information regarding blood alcohol testing done by governmental forensic laboratories directly from the laboratories’ databases to the DMV. Subdivision (g)(1) of the statute requires government forensic labs to forward the results of blood alcohol testing to the DMV. Subdivision (g)(2) of the statute applies to a narrow group of documents. It refers to two types of documents: (1) documents “containing data prepared and maintained in the governmental forensic laboratory computerized database system” and (2) “any other official record that is maintained in the governmental forensic laboratory [that] relates to a chemical test analysis prepared and maintained in the governmental forensic laboratory computerized database system.” (Veh. Code, § 23612, subd. (g)(2)(A).) Subdivision (g)(2) of section 23612 contains another limitation. It applies to documents and records that are “electronically transmitted or retrieved through public or private computer networks to or by the” DMV. (Veh. Code, § 23612, subd. (g)(2)(A).) Such documents and records are admissible in DMV administrative proceedings if certified by the employee of the DMV who retrieved the document that the information was “received or retrieved directly from” the lab’s computerized database system and that it “accurately reflects the data received or retrieved” from the database. (Veh. Code, § 23612, subd. (g)(2)(A).) The clear import of these provisions is to permit government forensic laboratories to send documents to the DMV electronically and to permit the DMV to receive or retrieve information regarding blood alcohol testing done by governmental forensic laboratories directly from the laboratories’ computerized databases.
Moreover, the statute provides that a document that contains data that was “prepared and maintained” in the lab’s “computerized database system and is
17
electronically transmitted or retrieved” through computer networks is the “best available evidence” of the lab’s chemical test results in an administrative proceeding conducted by the DMV. (Veh. Code, § 23612, subd. (g)(2)(A).) In our view, the phrase “best available evidence” refers to the admissibility of the evidence under the secondary evidence rule,4 which provides that the “content of a writing may be proved by otherwise admissible secondary evidence” unless the court determines either that “[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion” or that “admission of the secondary evidence would be unfair.” (Evid. Code, § 1521, subd. (a), italics added.)
The secondary evidence rule permits the introduction of “ ‘otherwise admissible secondary evidence’ to prove the contents of a writing.” (Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1108.) “It does not excuse the proponent [of the evidence] from complying with other rules of evidence, most notably the hearsay rule.” (Ibid., citing Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1070, fn. 2.) A writing that passes muster under the secondary evidence rule is not necessarily admissible. The writing “still may be inadmissible because of other exclusionary rules of evidence, such as hearsay, opinion, privilege, or irrelevancy.” (1 Jefferson, supra, § 31.20, p. 685 (rev. 3/06) citing Pajaro Valley, supra, 128 Cal.App.4th 1093.)
4 California’s best evidence rule (former Evid. Code, § 1500) was repealed in 1999 (Stats. 1998, c. 100, § 1, p. 471, operative Jan. 1, 1999) and was replaced by the secondary evidence rule. (See 29B, pt. 4, West’s Ann. Evid. Code (2009 supp.) foll. § 1500, p. 114.) The phrase “best evidence rule” was used to describe a rule of evidence that was set forth in former section 1500 that provided that the content of an original of a writing could be proved only by the original of the writing itself, unless a statute provided that secondary evidence such as a copy of the writing or oral testimony was admissible to prove the content of the writing. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 1997) Writings § 31.8, p. 680.)
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Without any analysis or explanation, the DMV argues that the use of the phrase “[n]otwithstanding any other provision of law” in Vehicle Code section 23612, subdivision (g)(2) indicates that the Legislature intended that the statute prevail over the provisions of Evidence Code section 1280, Government Code section 11513, and the entire Evidence Code.
In People v. DeLaCruz (1993) 20 Cal.App.4th 955, 963, the court explained that the language “notwithstanding other provisions of law” in Penal Code section 12403.7 is “term of art” that “has been read as an express legislative intent to have the specific statute control despite the existence of other law which might otherwise govern.” (Accord People v. Franklin (1997) 57 Cal.App.4th 68, 73-74 [interpreting Pen. Code § 667, subds. (c), (d), and (f)(1)].) In California Housing Finance Agency v. E.R. Fairway Associates I (1995) 37 Cal.App.4th 1508, 1515-1516, the court explained: “The introductory phrase of [Health and Safety Code] section 51205(f), ‘[n]otwithstanding any other provision of law,’ qualifies the operative language of the section entitling the prevailing party to recover ‘costs and reasonable attorney’s fees.’ Thus ‘any other provision of law’ relating to costs, to the extent contrary to or inconsistent with [Health and Safety Code] section 51205(f), is subordinated to the latter provision.” The phrase has been interpreted as referring to both statutory and decisional law. (People v. Tillman (1999) 73 Cal.App.4th 771, 784-785.)
Although the introductory phrase “[n]otwithstanding any other provision of law” is broad, it is not unlimited. As in California Housing, the phrase “[n]otwithstanding any other provision of law” in Vehicle Code section 23612, subdivision (g)(2) qualifies only the operative language of the statute. Vehicle Code section 23612, subdivision (g)(2) permits the DMV to electronically receive and retrieve documents that are maintained in government forensic lab computerized databases and addresses the foundational problem presented by using copies of reports that are stored electronically in such databases. Any other provision of law relating to those matters is subordinated to Vehicle Code section
19
23612, subdivision (g)(2) in an administrative per se hearing before the DMV. The statute does not address the public employee records exception or any other exception to the hearsay rule (Evid. Code, § 1280) or the admissibility of evidence generally in administrative proceedings. We therefore reject the DMV’s contention that Vehicle Code section 23612, subdivision (g)(2) prevails over Evidence Code section 1280, other provisions of the Evidence Code, and Government Code section 11513, subdivision (d).
The court rejected a similar DMV argument in Carlton v. Department of Motor Vehicles (1988) 203 Cal.App.3d 1428 (Carlton). In Carlton, the DMV suspended a licensee’s license, placed him on probation, and stayed the suspension, on the condition the licensee remain free from accident responsibility. (Id. at p. 1431.) After the licensee was involved in a second accident, the DMV revoked probation and suspended his license. The only evidence supporting its decision was a computerized transcript of a police report that indicated that, in the police officer’s opinion, the licensee was “most responsible” for the accident. (Id. at pp. 1431-1432.) The hearing officer admitted the evidence over the licensee’s hearsay objection. The trial court concluded that the computerized transcript of the police report was insufficient to support the DMV’s finding and granted the licensee’s petition for writ of mandate. The appellate court agreed and affirmed the trial court’s judgment. (Ibid.)
In Carlton, the DMV relied on the following language from Vehicle Code section 1806, which governs the DMV’s filing and recording of traffic accident reports and permits electronic recording and storage of such reports: “Notwithstanding any other provision of law, the recorded facts from any electronic recording and storage device maintained by the department shall constitute evidence of the facts in any administrative actions instituted by the department.” The DMV argued that Vehicle Code section 1806 authorized the use of peace officer reports to create a prima facie showing of responsibility for an accident for purposes of revoking probation. (Carlton, supra, 203 Cal.App.3d at p. 1433.) The court disagreed, explaining: “That section merely provides
20
accident reports can be maintained and recorded in computerized form and the facts in such form shall constitute evidence in administrative actions. Nowhere in the statute is there any suggestion it is intended to supersede the ‘emphatic’ legislative mandate against sole reliance on hearsay evidence” in Government Code section 11513, subdivision (d). (Ibid.) The court explained that “ ‘[t]he mere admissibility of evidence [at an administrative hearing] does not confer the status of “sufficiency” to support a finding absent other competent evidence’ ” and that the most likely purpose of this provision in “Vehicle Code section 1806 was to avoid objections to the computerized record of the report under the best evidence rule.” (Id. at pp. 1433-1434.) Thus, the holding in Carlton supports our analysis of Vehicle Code section 23612, subdivision (g)(2) in this case.
If computer printouts are offered for the truth of the matter asserted, they must qualify under some hearsay exception. (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 797.) “California cases have held computer printouts admissible when they fit within a hearsay exception as business records (People v. Lugashi (1988) 205 Cal.App.3d 632, 641-642 . . .) or official records (People v. Martinez (2000) 22 Cal.4th 106, 126 . . .).” (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1448.)
We conclude that while Vehicle Code section 23612, subdivision (g)(2) provides that the DMV may receive or retrieve evidence of a licensee’s blood alcohol test results directly from a government forensic lab database and that such evidence is the best available evidence of the test results, the statute does not preclude the opponent of the evidence from challenging the document or other record on other exclusionary grounds, including hearsay.
Nothing in the language of Vehicle Code section 23612, subdivision (g)(2) suggests that it was intended to operate as an exception to the hearsay rule. Where the Legislature has intended that a statute operate as an exception to the hearsay rule, it has expressly told us so. (See e.g., Evid. Code, §§ 1220-1360.) “The hearsay rule is a rule of
21
exclusion . . . , but its exceptions are not rules of admission. All of the sections of the Evidence Code specifying hearsay exceptions provide that the particular statement ‘is not made inadmissible by the hearsay rule.’ In other words, a statement within a hearsay exception satisfies the hearsay rule, but it may be objectionable under other exclusionary rules, such as the opinion rule, the Secondary Evidence Rule, or a claim of privilege.” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 8, pp. 686-687.)
Since we are able to resolve the issue presented based on the plain language of the statute, we need not address the DMV’s arguments based on the legislative history of Vehicle Code section 23612, subdivision (g)(2). However, even if it were necessary to look beyond the plain language of the statute and consider the legislative history, we would reach the same conclusion. Upon enacting Vehicle Code section 23162, subdivision (g)(2) in 1999, the Legislature stated: “This bill would provide that any document containing data prepared and maintained in the governmental forensic laboratory computerized data base system that is electronically transmitted or retrieved through public or private computer networks to or by the department is the best available evidence of the chemical test results in all administrative proceedings conducted by the department. The bill provide[s] that, in order to be admissible as evidence in an administrative proceeding, a document described in the paragraph shall bear a certification by the employee . . . who retrieved the document . . . .” (Stats.1999, c. 854, § 1, p. 4873.) “This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: [¶] The Department of Justice is implementing a system that electronically transmits forensic blood alcohol laboratory test results to local law enforcement and state agencies. The Department of Motor Vehicles may be precluded under current law from using electronic reports when conducting administrative hearings for driving-under-the-influence violations. [¶] In order to avoid the possibility that the Department of Motor Vehicles
22
may not be able to apply appropriate sanctions to the driving privileges of all persons who exceed the legal blood-alcohol limits while operating motor vehicles at the earliest possible time, it is necessary that this act take effect immediately.” (Id. at § 3, p. 4876.) Nothing in this language suggests that Vehicle Code section 23612, subdivision (g)(2) was intended to prevail over Evidence Code section 1280.
The DMV quotes language from the third reading analysis of the legislation at issue, which states: “ ‘Laboratory reports are admitted into evidence in [DMV administrative per se] hearings pursuant to the Evidence Code. Evidence is generally required to be in writing, made at or near the time of the act, and the sources(s) of the information and method and time of preparation must be trustworthy. Because the use of ‘digital signatures’ used in the new DOJ system is not mentioned, there is a potential to create authentication and foundation problems in [DMV] hearings. [¶] This proposal would provide authorization … to accept and use electronic or facsimile chemical test results in all administrative proceedings conducted by the department. [¶] Without this urgency measure, DOJ would have to continue to support a secondary system for DMV’s use based on lab results in printed form.’ ”5 (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1282 (1999-2000 Reg. Sess.) as amended April 29, 1999, p. 5, italics added.) That the analysis mentioned the requirements of Evidence Code section 1280 in the italicized language does not support the conclusion that the proposed legislation was intended to abrogate the requirements of Evidence Code section 1280, as the DMV contends. The legislative history the DMV cites supports the conclusion that the Legislature was concerned about the foundational problems presented by the electronic retrieval of testing results from the DOJ’s new computers.
For these reasons, we reject the DMV’s contention that by adopting Vehicle Code section 23612, subdivision (g)(2) the Legislature intended to clear away any obstacles
5 The DMV first raised this point at oral argument before the trial court.
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presented by the application of Evidence Code section 1280’s foundational requirements to the evidence of blood alcohol test results from government forensic laboratories.
III. Admissibility of Evidence of PAS Test Results
The DMV contends the trial court erred when it excluded and refused to consider the PAS test results.
A. Procedural Background
In the administrative per se hearing, Molenda’s counsel objected to the admission of any evidence that referred to the results of the PAS testing on the grounds that there was no foundation to support the accuracy of the readings and under the authority of Coniglio, supra, 39 Cal.App.4th 666.6 The DMV hearing officer sustained both objections and stated that he would not consider the PAS test results for numerical proof of Molenda’s blood alcohol level. However, he did consider the PAS test results to the extent that they confirmed the presence of alcohol and supported the officer’s preliminary conclusion that Molenda was intoxicated.7
6 In Coniglio, this court stated that PAS devices, which are aimed at detecting the presence of alcohol, are not subject to the compliance standards set forth in Title 17. (Coniglio, supra, 39 Cal.App.4th at pp. 677-681.) Subsequently, the California Supreme Court stated: “As the Court of Appeal explained in [People v. Bury (1996) 41 Cal.App.4th 1194, 1202] title 17 regulations apply to PAS tests that determine the concentration of alcohol in the blood but not those that determine only its presence. [Citation.] The Bury court properly rejected as dicta the finding in Coniglio . . . that title 17 never applies to PAS tests.” (People v. Williams (2002) 28 Cal.4th 408, 414, fn. 2 (Williams).)
7 After the hearing officer asked whether Molenda had any objections to the documents that had been placed in evidence, the following discussion ensued:
“COUNSEL DUDLEY: [W]ith regard to the extent that any of the reports contain reference to a specific alcohol level as a result of the Preliminary Alcohol Screening Device, I would object to those portions of the documents being received into evidence and used as evidence of the specific alcohol level, since there has been no foundational evidence as to the accuracy of the actual (overlapping)
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In opposition to Molenda’s petition for writ of mandate, the DMV argued that the PAS test results were admissible to establish Molenda’s blood alcohol content. It argued that the PAS test results met the foundational requirements of Title 17 and that the trial court was not bound by the hearing officer’s “mistaken ruling” excluding the PAS test results. In response, Molenda renewed her objections to the PAS evidence.
At the hearing on the writ petition, the trial court ruled that “Vehicle Code Section 13559[8] and the foundational facts necessary before the PAS test could be considered were never established” and refused to consider the evidence of the PAS test results.
B. General Rules Regarding the Admissibility of the PAS Test Results
As noted previously, we review the trial court’s rulings regarding the admissibility of evidence, including the PAS test results, under the deferential abuse of discretion standard. (City of Ripon v. Sweetin, supra, 100 Cal.App.4th at p. 900; Williams, supra, 28 Cal.4th at pp. 417-418 [admissibility of PAS test results].)
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
“HEARING OFFICER TRUONG: Objection is sustained.
“COUNSEL DUDLEY: And also the uh, Preliminary Alcohol Screening device. I object under Coniglio . . . v. [DMV] case 39 Cal.App.4th page 666.
“HEARING OFFICER TRUONG: Objection sustained. I will not use – the Department will not consider any PAS results as the – for numerical proof of the blood alcohol.”
Molenda also made other objections to the documentary evidence.
8 Vehicle Code section 13559 sets forth procedural rules governing the trial court’s review of a DMV order following an administrative per se hearing. It provides in relevant part: “The review shall be on the record of the hearing and the court shall not consider other evidence. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence in the record, the court may order the department to rescind the order of suspension or revocation and return, or reissue a new license to, the person.” 25
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. (Williams, supra, 28 Cal.4th at pp. 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. (Id. at p. 416.) For example, in Williams, the court concluded that although the evidence of the PAS testing performed in that case did not meet the Title 17 foundational requirements, the test results were reliable and admissible under the Adams foundational requirements. (Id. at pp. 417-418.)
Title 17 contains various regulations relating to the analysis of blood, breath, or urine samples to determine the alcohol content of the samples. (Title 17, §§ 1215-1222.2) With regard to breath samples, the Title 17 regulations address the collection and handling of the samples (Title 17, §§ 1219, 1219.3) and set forth standards governing the instruments and accessories that may be used to obtain and test the samples. (Title 17, §§ 1221.1, subd. (a), 1221.2, subd. (a), 1221.3.) The regulations also set forth procedures for administering breath tests, for determining the accuracy of the testing devices, for training persons who operate the devices, for record keeping related to the accuracy testing, and for expressing analytical results. (Title 17, §§ 1221.4, 1221.5.)
In this case, there was evidence that Officer Barry complied with Title 17’s standards for administering the test.9 On the other hand, there was no evidence regarding
9 As required by Title 17, Officer Barry obtained “two separate breath samples which resulted in determinations of blood alcohol concentrations which do not differ from each other by more than 0.02 grams per 100 milliliters.” (Title 17, § 1221.4, subd. (a)(1).) Although contested, there was evidence that Officer Barry observed Molenda for 15 minutes prior to obtaining the breath tests. (Title 17, § 1219.3.) The record does not disclose what time Officer Geddes arrived on scene. Officers Barry and Lloyd were dispatched at approximately 11:35 p.m. Officer Barry testified that he arrived on scene at 11:40 p.m. His partner, Officer Lloyd, prepared a written report indicating that he and Officer Barry arrived “at approximately” 11:48 p.m. Officer Barry performed the PAS breath tests at 12:01 a.m. and 12:03 a.m. 26
the type of device used to conduct the PAS testing, other than a serial number for the device. There was no information regarding the manufacturer, make, or model of the device. The record is also silent regarding the extent of Officer Barry’s training on the PAS device and the extent of any testing done to confirm the accuracy of the device. Thus, the evidence here did not meet the foundational requirements of Title 17.
For these same reasons, the evidence does not meet the foundational requirements described in Adams, to wit: (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator. (Williams, supra, 28 Cal.4th at p. 417.) Again, while there was evidence regarding the administration of the test, there was no evidence regarding the type of device used, Officer Barry’s qualifications to operate the PAS device, or whether the device was functioning properly.
C. Applicability of Evidence Code Section 664 Presumption
DMV contends that since it relied on the foundational requirements of Title 17, it enjoyed the benefit of the official duty presumption in Evidence Code section 664, which creates a rebuttable presumption that test results recorded on official forms were obtained by following the guidelines of Title 17. The DMV contends that the evidence in combination with the presumption establishes the necessary foundation for admission of the PAS test results. In other words, the DMV contends the presumption of an official duty regularly performed supplied the missing foundational elements.
We begin with a brief overview of the burdens of proof in a DMV administrative hearing. In such hearings, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. (Veh. Code, §§ 13557, subd. (b)(2)(C)(i), 13558, subd. (c)(2); Lake, supra, 16 Cal.4th at pp. 456, 463; Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.) The DMV may satisfy its burden using the presumption of section 664 of the Evidence Code. (Petricka, supra, at p. 1348.)
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“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.” (Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64-65.) With this presumption, an officer’s sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test. (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 140-141 (Davenport).)
“Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. [Citations.] ‘The licensee must show, “through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed . . . .” [Citation.] Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation.’ ” (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233.)
Citing Coniglio, supra, 39 Cal.App.4th at pages 677-678 and 683, Molenda argues that the DMV was not entitled to rely on the presumption in Evidence Code section 664 because there was no evidence that the device used in this case was a Title 17 instrument. Molenda’s reliance on Coniglio is misplaced. In Coniglio, this court held that the DMV was not entitled to rely on the Evidence Code section 664 presumption because the Title 17 regulations did not apply to the PAS test. We reasoned that since there were “no ‘governing statutes or regulations’ regulating the testing and reliability of the PAS test,” the court could not presume that the PAS test results were reliable and held that the DMV
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had the burden to show the PAS test met the foundation requirements of Adams. (Id. at pp. 683-684.)
After we decided Coniglio, the California Supreme Court held that Title 17 regulations apply to PAS tests that determine the concentration of alcohol in the blood but not those that determine only its presence. (Williams, supra, 28 Cal.4th at p. 414, fn. 2.) Since the PAS test in this case determined both the presence of alcohol and the concentration of alcohol, under Williams, Title 17 applies to the PAS test at issue here. Thus, under the authority set forth above, the DMV may be able to rely on the presumption of an official duty regularly performed to satisfy the missing foundation elements. However, as we explain below, other factors preclude use of the presumption in this case.
To determine whether the presumption of Evidence Code section 664 applies under the circumstances of this case, we review Davenport, one of the first cases to apply the presumption. In Davenport, no evidence was adduced at the DMV hearing that established the reliability of the breath test that was administered to the licensee. On the other hand, the licensee “presented no evidence that the test was not reliable, either by cross-examining the officer as to his qualifications, his manner of administering the test, and the condition of the machine, or by offering his own evidence on any of those matters.” (Davenport, supra, 6 Cal.App.4th at p. 140.) The licensee contended that under that state of the evidence, the breath test results were unreliable to prove his blood alcohol content.
The Davenport court concluded that “the presumption of official duty regularly performed (Evid. Code, § 664) supplies sufficient indicia of the trustworthiness of blood- alcohol test results to justify reliance upon such results to support a license suspension, subject to a showing by the licensee that the test was not performed in compliance with statutory requirements.” (Davenport, supra, 6 Cal.App.4th at p. 141.) “[W]here it is established that the matters reported are the direct observations and within the personal
29
knowledge of the reporting officer, a sworn 367 report[10] introduced at a [DMV administrative per se hearing] is presumed trustworthy, based upon the officer’s duty under [Vehicle Code] sections 13353 and 23158.2 to report the facts of an arrest for drunk driving and an incident blood-alcohol test.” (Id. at p. 143.) The court explained that the Evidence Code section 664 presumption “places upon the licensee against whom a 367 report is offered the burden of proof as to the nonexistence of the foundational trustworthiness of the report as a whole, and in particular, the nonexistence of the foundational reliability of tests upon which the report is partly based.” (Ibid.) The court concluded that “due process is not offended where an officer’s sworn report of the results of blood-alcohol tests administered by the officer to a licensee is admitted into evidence and relied upon to find that the licensee was in actual control of a vehicle” while having a blood alcohol level in excess of the legal limits and that due process is not violated “if the licensee’s driving privilege is suspended or revoked based upon such finding.” (Id. at p. 145.)
The Davenport court also observed that the licensee did not allege he was denied an opportunity to contest the reliability of the test offered against him. “Indeed, he made no effort to contest it.” (Davenport, supra, 6 Cal.App.4th at p. 145.) The court held “under these circumstances, the hearing officer properly relied upon the statutory presumption that the test was properly administered by a trained officer, using properly functioning equipment. Based upon the presumption, the hearing officer could properly and reasonably conclude that the test results were reliable.” (Ibid.)
10 As the Davenport court observed, former Vehicle Code “[s]ection 23158.2, subdivision (b) require[d] the [DMV] to furnish or approve forms for the sworn reports of information required by [former Vehicle Code] section 23158.2, subdivision (a), which information is relevant to license suspensions . . . .’ ” (Davenport, supra, at p. 138, fn. 2.) These same requirements are now found in Vehicle Code section 13380. At the time of Molenda’s arrest, the form was designated a “DS 367” form. We shall hereafter refer to this report form as the “367 form.”
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This case is distinguishable from Davenport in several respects. First, the breath test in Davenport was a “breath-to-blood-alcohol” test, administered after the licensee was arrested. (Davenport, supra, 6 Cal.App.4th at p. 138.) The breath test in this case was a PAS test, which is not the functional equivalent of a postarrest breath test. (Wilson, supra, 114 Cal.App.4th at p. 960.)
Second, the results of the breath test in Davenport were reported in the officer’s sworn report on a 367 form and the court relied on the sworn report to provide the foundation. (Davenport, supra, 6 Cal.App.4th at pp. 137-138.) The 367 form in this case contains a paragraph where the operator of the breath test device certifies “under penalty of perjury” that the “breath test sample results were obtained in the regular course of [the officer’s] duties,” that the officer is “qualified to operate this equipment,” and that “the test was administered pursuant to the requirements of Title 17 . . . .” Unlike the officer in Davenport, Officer Barry did not enter the PAS test results on the 367 form. More importantly, he did not sign the certification on the 367 form. Instead, Officer Barry 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. Officer Barry did include the PAS test results in his unsworn investigative report, which was appended to the 367 form. However, that report did not contain the certification from the 367 form that provided the necessary foundation.
Third, in Davenport, as in this case, the licensee objected to the admission of the breath test results in the administrative hearing on the grounds that they did not comply with the foundation requirements of Adams. (Davenport, supra, 6 Cal.App.4th at p. 138.) However, unlike this case, the hearing officer in Davenport overruled the objection and took official notice of the police officer’s sworn statement on the 367 form. (Ibid.) In contrast, the hearing officer in this case sustained Molenda’s objection and stated that he would not consider the PAS test results for numerical proof of Molenda’s blood alcohol
31
level. The Davenport court noted that the licensee did not claim he was denied an opportunity to contest the reliability of the test offered against him and made no effort to contest it. The court concluded that under the circumstances of that case, the hearing officer properly relied on the presumption that the test was properly administered by a trained officer, using properly functioning equipment. (Davenport, supra, 6 Cal.App.4th at p. 145.) In contrast, Molenda objected to the admission of the PAS test results on foundational grounds. After the hearing officer sustained her objection, Molenda relied on that ruling and did not present evidence challenging the reliability of the PAS test. For these reasons, we conclude that under the circumstances of this case, which are different from the circumstances in Davenport, 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. In light of our conclusion, we hold that the trial court did not abuse its discretion when it excluded and refused to consider evidence of the PAS test results.
DISPOSITION
The judgment is affirmed.
____________________________________________
McAdams, J.
WE CONCUR:
________________________________
Bamattre-Manoukian, Acting P.J.
________________________________
Duffy, J.
32
33
Molenda v. Department of Motor Vehicles
H032196
Trial Court:
Santa Cruz County Superior Court
Superior Court No. CV156054
Trial Judge:
Honorable Robert B. Atack
Attorneys for Appellant:
Edmund G. Brown Jr.
Attorney General
David Chaney
Chief Assistant Attorney General
Jacob A. Appelsmith
Senior Assistant Attorney General
Miguel A. Neri
Fiel D. Tigno
Supervising Deputy Attorneys General
Robert Andrew Harkness
Supervising Deputy Attorney General
Attorney for Respondent:
Page, Salisbury & Dudley
Arthur Dudley

San Diego California DUI attorneys report five people are in custody following a San Diego California DUI warrant sweep in Chula Vista.

All five people arrested throughout the day Monday were convicted San Diego California DUI drivers who did not complete the terms of their probation or violated orders to appear in court, according to San Diego California lawyers. The suspects were taken to San Diego County Jail, San Diego California drunk driving attorneys said. Their names were not immediately released.

Teenagers are often warned about the dangers of drinking and driving, but rarely do they see the consequences play out in person.

In front of dozens of High School students, a Superior Court Judge held a real hearing for a 25-year-old Watsonville woman charged with driving while having a blood-alcohol content three times the legal limit.

Inside the auditorium, the judge sentenced Keema Morrison, who pleaded guilty, to pay more than $2,000 in fines and serve four days in County Jail and five years on probation.

"You were very lucky in this case," the judge told defendant, adding that she could have seriously injured herself or others. "I wish you luck, but know this is going to follow you for some time."

The person volunteered to have her case heard as part of the Real DUI Court in Schools program planned by the court administration and county Office of Education.

In a 2007 California Health Kids Survey, 44 percent of Santa Cruz County youth reported having had five or more drinks in a two-hour time span sometime during the previous month. Nearly a third reported driving under the influence and 40 percent reported riding in a vehicle driven by someone who had been drinking.

The California DUI driver was arrested in August after a California Highway Patrol observed her vehicle across lanes on southbound Highway 1. Authorities said she later admitted to drinking two 24-ounce bottles .

San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge: San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

California DUI attorneys and San Diego California drunk driving defense lawyers are told a man currently on leave from his duties as a Clearlake Police officer was arrested earlier this week on charges of driving under the influence and possession of a firearm.



Michael William Hansen, 24, of Oroville was arrested Monday following a traffic stop on Highway 20, according to a report from the California Highway Patrol's Williams office.



Just before midnight on Monday the Colusa County Sheriff's Office notified Williams CHP officers of a possible drunk driver on Highway 20 west of King Road near Williams, the CHP reported.



CHP officers responded from Williams and arrived on scene to find a Colusa County Sheriff's deputy had stopped Hansen, who had been traveling westbound, because his vehicle didn't have a rear license plate light.



The CHP report said that, after making the stop, the deputy contacted Hansen and observed signs of alleged alcohol intoxication.



CHP officers subsequently conducted field sobriety tests on Hansen and arrested him for allegedly driving under the influence of alcohol.



The sheriff's deputy who pulled Hansen over searched the vehicle and found several firearms and a small amount of marijuana, according to the report. Hansen had a prescription from his doctor for the marijuana.



Hansen was transported to the Colusa County Jail, where he was booked on charges of driving under the influence and possession of a firearm, the CHP reported.



Jail records indicated that Hansen was released on his own recognizance following his booking, and was not required to post bail.



Clearlake Police Chief Allan McClain said Hansen is a city employee, but “has no peace officer standing at this point.”



McClain, who said he was limited by what he could say because of personnel matters, said Hansen had been on leave for some time prior to the arrest on Monday.



Hansen, who has commuted to his Clearlake job from his home in Oroville, was involved in a fatal shooting last June, as Lake County News has reported.



He shot 63-year-old David Vestal to death after Vestal allegedly confronted Hansen and other police officers with a .410 shotgun. Police were responding to a report of a fight at York's Mobile Home Park.



A District Attorney's Office report issued in February concluded that Hansen's actions were justified.



In February, Vestal's daughter, Shavon, filed a $32 million lawsuit in federal court over the shooting. The suit names Hansen, McClain, the city of Clearlake and Clearlake Police.



Shavon Vestal's attorney, Don Anderson of Lakeport, said he hasn't yet received the district attorney's report on the shooting. The case alleges that David Vestal had no shotgun based on four independent witness statements, as well as statements from Shavon Vestal and her boyfriend.



Anderson said he understands a shotgun was recovered at the scene, “somewhere near” David Vestal's body.



He said he doesn't anticipate Hansen's arrest becoming an issue in the civil lawsuit, “but strange things happen so you never know.”



District Attorney Jon Hopkins confirmed officials found a shotgun at the scene.


San Diego Drunk Driving Defense Resource Center:

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you.

San Diego DUI attorneys are told a California drunk driver who killed a popular young Cal State student last month was sentenced Wednesday morning to six years in state prison.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you. Francisco Santo pleaded no contest to vehicular manslaughter arising out of a California DUI in the Feb. 8 death of Noemi Perez, 18.

The CHP said Santo, 22, was driving on East Bear Mountain Boulevard near Vineland Road west of Arvin around 7 p.m. that Sunday when he crossed into opposing traffic and hit a car driven by Francisco Becerra. Both cars careened out of control. Santo’s car then struck Perez's vehicle, killing her instantly.

Santo tried to flee, California DUI officers said. After was arrested for California DUI, federal official placed an immigration hold on him.

He had faced a 10-year sentence but, on the day his preliminary hearing was scheduled, Judge Colette Humphrey offered him the California DUI plea deal that led to the six-year term. Santo accepted the California DUI deal and pleaded no contest to California DUI et.al. that day.

Prosecutor Cole McKnight said he wanted the full 10-year term allowed by California DUI law.

Friends remembered Perez as a loving friend, hard-working student and all-around athelete. She was a graduate of Arvin High School, where she held several athletic records. She was a mathematics major at California State University, Bakersfield.

San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge

San Diego DUI attorneys report a former California Highway Patrol officer was charged Tuesday with perjury, conspiracy to obstruct justice and accepting a bribe for allegedly fixing a speeding ticket in exchange for sexual favors.

Abram Anthony Carabajal was scheduled to be arraigned on the felony counts this afternoon at the Vista Courthouse.

Carabajal, 51, pulled over Shirin Zarrindej for speeding on March 12 of last year and, at some point, developed a relationship with her, the San Diego County District Attorney's Office alleges.

The Oceanside resident testified under oath last July that he was not served with a subpoena, so the speeding case against Zarrindej, 47, was dismissed, according to Paul Levikow of the D.A.'s office.

Levikow said Carabajal and Zarrindej were seen walking arm-in-arm to a room at the Guesthouse Inn in Oceanside right after the court appearance. The woman later conceded the two had sex, he said.

Zarrindej faces the same charges and is scheduled to make her initial court appearance on April 13.

Carabajal resigned from the CHP during the investigation, San Diego DUI lawyers are told.

San Diego DUI attorneys are told a California police detective entered a no contest plea this month to a misdemeanor charge of California DUI - driving under the influence.

The California DUI plea stemmed from a January arrest in Merced.

Detective Hector Ortiz was fined $1,750 and sentenced to 36 months informal probation after entering his plea in Merced County Superior Court on March 11. He was also sentenced to 48 hours in jail, with one day credit. In addition to his sentence, he was also required to complete a program for California DUI offenders. Deputy District Attorney Rita Patel said Ortiz, 46, had already enrolled in and completed most of that program before entering his California DUI plea.

Ortiz was arrested by two California Highway Patrol officers on Jan. 10, after they pulled over his pickup truck for a vehicle code violation around 2:15 a.m. on Yosemite Avenue west of R Street. The officers reported smelling alcohol after talking with Ortiz.

After being given a California DUI field sobriety test, the California DUI officers determined that he was under the influence. According to California DUI attorney's review of court papers, Ortiz's blood alcohol content on his first test registered 0.13 percent, while the second test was 0.14 percent. The state's California DUI legal limit to drive is 0.08 percent.

Merced police said Ortiz was placed on leave the day after the incident yet he is still employed as a domestic violence investigator with the department.

How can you know if you found a qualified San Diego California DUI Lawyer for yourself?

Various types of lawyers handle San Diego drunk driving cases, including public defenders, general practitioners, criminal defense lawyers, and DUI Specialist attorneys.

Some excellent questions to begin asking when searching for a San Diego California DUI lawyer are:

What are his California DUI attorney's qualifications?

Is he a Specialist member of the California DUI Lawyers Association?

How long has he been a member of the National College for DUI Defense?

Does he teach other attorneys in San Diego how to handle DUI cases?

Is he a Contributing Editor to the Bible for California DUI Defense - California Drunk Driving Law?

Was he recently asked to be a Contributing Editor/Author to the hottest best selling DUI book: Attacking and Defending Drunk Driving Tests?

Does he maintain a library of DUI materials, books, manuals, studies, memos, points & authorities and documents solely designed to help a person accused of a San Diego County DUI?

How much of his practice is DUI Defense?

Is he quick and thorough when responding to emailed questions or concerns?

Whether or not you ultimately end up hiring a San Diego California DUI & DMV Defense Lawyer Specialist with 25 years of experience, it is a smart idea to look closely at the credentials of a California DUI Lawyer Specialist in this highly complex field.

You can read more - Why use San Diego County's Specialist in DUI and DMV Law

San Diego DUI attorneys and San Diego DUI defense lawyers report a man suspected of a San Diego DUI - drunk driving crashed his pickup truck into a neighbor's house, creating a gaping hole that revealed a small marijuana farm inside.

San Diego police got a search warrant after the Sunday afternoon crash and confiscated more than 20 pot plants.

Police Sgt. David Jennings said no one was inside the house and no one was injured.

Neighbors told officers the residents of the damaged house were on a ski trip.

San Diego's DUI & DMV online consultation
San Diego Drunk Driving Defense Resource Center:San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you.

San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge:

San Diego DUI attorneys report that a 27-year-old woman who was the passenger in a car that crashed into a Carlsbad lagoon two days ago has died.

Ocean Beach resident Amy Lopez died Friday morning at Tri-City Medical Center, where she has remained on a ventilator since Thursday's early-morning crash, according to San Diego DUI officials.

Lopez was allegedly not wearing a seat belt at the time of the crash, and she was the only passenger in a car allegedly driven by Alicia Biggs, 22, of San Diego, according to San Diego DUI lawyers .

Biggs' 1996 Toyota Tacoma allegedly veered off northbound Interstate 5 near Tamarack Avenue in a crash shortly after 2 a.m. Thursday, per San Diego drunk driving lawyers.

Lopez was found floating face-down in the lagoon, and Carlsbad police pulled her to the shore and started cardiopulmonary resuscitation. Biggs swam to shore and described her injuries as moderate. Both women were taken to Tri-City Medical Center. Biggs will be charged with felony San Diego DUI / drunk driving.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

San Diego DUI Lawyer Rick Mueller is a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as a "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.

San Diego DUI attorneys & San Diego drunk driving lawyers hear a Mr. Howard, who is looking to run for City Council next year, has filed suit against the city over a 2007 drunken-driving arrest.

Howard, 29, was arrested in November 2007 on a DUI charge in connection with a solo car accident in San Diego. It was the second time in three months that Howard had been arrested for DUI. Howard said in an interview that in both cases, other people were driving his car.

Howard was never prosecuted. The City Attorney's Office never received paperwork from the Police Department regarding the first arrest and dropped the case relating to the November arrest.

Last year, Howard sued the city, state and the officers involved in the second arrest, saying they intentionally manipulated witness statements to arrest and jail Howard. Representing himself, Howard sought damages for false imprisonment, battery, assault, intentional infliction of emotional distress, and violation of his civil rights.

Reached on Wednesday, Howard said he had changed his mind about suing the city and was planning to drop the lawsuit. "I don't want to cost the taxpayers any money," he said.

Howard has announced his intent to run for the District 8 seat being vacated next year by Council President Ben Hueso, who is running for state Assembly.

Howard served as Hueso's campaign treasurer during Hueso's first run for council in early 2006 and worked as a council representative in Hueso's office from January 2006 to August 2007. He also ran Stephen Whitburn's campaign in District 3 last year.

Howard said he did not think the arrests would work against him in a campaign since he was cleared of all charges.

"It's kind of a moot point because the second one was dropped (and) the first one was never charged, so I don't see how that would be an issue," he said. "My record's clean. I have no convictions, nothing."

The arrest that prompted Howard's lawsuit stemmed from a Nov. 18, 2007, accident in which a BMW was found abandoned, partially blocking the roadway, after apparently hitting a concrete barrier on the Interstate 5 off ramp to 19th Street, according to a California Highway Patrol report. The car, which had a cracked left axle and crumpled fender, was registered to Howard. His license had been suspended from his earlier DUI arrest.

San Diego police found Howard at his home about a block from the crash site, according to police reports. Police said they heard him shouting to his roommates not to let the police in and he smelled strongly of alcohol and mumbled. According to a police report, Howard initially denied owning a car and said he had been asleep all night.

Police said Howard was wearing jeans and a gray tank top, but said they saw a red bandana nearby. A witness had said the driver was a black man wearing a red bandana around his neck and a tan shirt.

Based on those details and the fact that Howard was the only person in the house who was a black man, as the witness described, police detained Howard. A breath test showed Howard's blood alcohol content was 0.15, well above the legal limit of 0.08.

The CHP officer recommended Howard be charged with DUI, hit and run and driving on a suspended license. The case against Howard was dismissed in November 2008 after the City Attorney's Office decided not to prosecute.

Coburn didn't know why the case was dropped, noting that it was a decision made under the previous administration. But she said such cases are sometimes dismissed if attorneys believe when reviewing a case that they can't prove charges beyond a reasonable doubt.

Howard filed suit last year against the CHP officers and San Diego police officers involved in his arrest, as well as the state and city, which he said had failed to supervise and control the officers. In his initial complaint, Howard said he was seeking more than $1 million in damages.

Howard said the officers lied and misrepresented the statements of a witness, Barbara Wood, who talked to the driver after the crash.

In an administrative hearing on the decision to suspend Howard's license, Wood testified that after seeing Howard in a police cruiser, she told police, "That's not the man." She said she told police the driver was fairer-skinned, had longer hair and wore different clothes.

In the CHP report, the officer said Wood "advised she could not be sure if Howard was the driver only because she thought the driver had longer hair."

In an interview Wednesday, Howard said his roommate had taken the car while he was out.

"I usually let them borrow my car," Howard said. "He wasn't responsible, I guess."

Howard said he took a cab home that night. He said he never told police that his roommate was driving the car because he didn't have to.

"It's my Fifth Amendment right," he said. "I don't have to say anything, it's not my job."

As for the police statements that Howard was the only black man living in his house, Howard noted that his roommates were Brazilian and dark skinned, which may have led to the witness description.

"She describes anyone under the sun who was there," Howard said. "She was a bad witness."

Indeed, it's undisputed that Wood saw Howard at least twice -- at the DMV hearing and when he was in police custody. But Wood said at one point that Howard, who was present at the hearing, didn't look like the man she saw in the squad car, though that man was undeniably Howard.

The CHP documents, police statements and DMV hearing transcript were filed with the court as part of another lawsuit Howard filed seeking to overturn the state's decision to suspend his license. Howard dropped that suit in June 2008 after he says he settled with the DMV.

Howard had previously been arrested for DUI on Sept. 2, 2007. There was limited public information available because the San Diego Police Department doesn't typically discuss cases that are more than 60 days old, say San Diego DUI police. However, DMV records indicate Howard had a blood alcohol content of 0.12 when he was arrested.

Howard said police apparently received a call about the car, which he said was being driven by a friend while Howard was asleep in the car. By the time police approached them, Howard said the car was parked and the friend was no longer behind the wheel.

Howard said the police asked who owned the car, but not who was driving. Howard said his friend, who spoke limited English, didn't volunteer the information. Howard said he invoked his Fifth Amendment right because he felt uncomfortable telling the police he wasn't driving.

"I didn't feel like they were going to believe anything we'd say," Howard said.

Asked about the likelihood of two false DUI arrests in such a short time period, Howard said he had simply been "in the wrong place at the wrong time." Wrong place wrong time can happen anytime.

San Diego DUI Lawyer Rick Mueller is a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as a "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.

San Diego DUI attorneys report the Coachella Police Department will conduct a DUI and driver's license checkpoint on Friday.

The California DUI checkpoint will be held between 7 p.m. and 2 a.m. but the California DUI location was not disclosed.

The California DUI operation is funded through a California DUI grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration.

California DUI checkpoints are designed to identify offenders and to educate the public on the dangers of California DUI - impaired driving, according to California DUI lawyers at SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM"
San Diego DUI Defense Resource Center:

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

San Diego DUI attorneys report an alleged San Diego DUI drunk driver crashed into a Carlsbad lagoon Wednesday, and a 27-year-old passenger found floating face down was fighting for her life, San Diego DUI attorneys are told.

A 1996 Toyota Tacoma driven by 22-year-old Alicia Biggs of San Diego veered off northbound Interstate 5 near Tamarack Avenue in a crash reported shortly after 2 a.m., San Diego DUI attorneys said.

Amy Lopez was found floating face down in the lagoon, and Carlsbad police pulled her to shore and started cardiopulmonary resuscitation, according to San Diego DUI lawyers.

Biggs swam to shore, Newbury said, describing her injuries as moderate.

Both women were taken to Tri-City Medical Center, where Newbury said Lopez, also of San Diego, was listed in critical condition.

Biggs is suspected of drunken driving and will be charged with felony San Diego DUI - driving under the influence when she is released from the hospital.

San Diego Drunk Driving Defense Resource Center

San Diego DUI lawyers report DUI Saturation Patrol Results


Law Enforcement Urges Motorists to Drive Responsibly this St. Patrick’s Day

Designate a Sober Driver Before the Party Begins

San Diego, CA – San Diego County Law Enforcement is urging the public to help keep the streets safe this St. Patrick’s Day by drinking responsibly and designating a sober driver before heading to a local celebration or pub.

Statistics from the National Highway Traffic Safety Administration show that over the past five years, 851 people lost their lives in motor vehicles crashes during the St. Patrick’s Day holiday. In 2007, alcohol attributed to 1,489 deaths in California with 30,641 injured, many still suffering with life long disabilities

San Diego County Law Enforcement Agencies will be sending special DUI saturation patrols out Tuesday night to stop and arrest those who drink and drive.

“St. Patrick’s Day is supposed to be a time to celebrate Irish heritage and gather with friends, but it can quickly end in tragedy due to impaired driving,” said Sheriff Bill Kolender. “If you plan on drinking, don’t rely on luck to keep you safe or to keep you out of trouble. Be responsible and take appropriate precautions.”

Sheriff Kolender recommends the following tips:

• Plan a safe way home before your celebrations begin

• If you plan to get a ride home with someone else, designate a sober driver before any drinking begins

• If you’re impaired, use a taxi, call a sober friend or family member, or use public transportation so you are sure to get home safely

• If you happen to see a drunk driver on the road, don’t hesitate – Call 9-1-1

• If you know someone who is about to drive their car or ride their motorcycle while impaired, take their keys and help them make other arrangements to get to where they are going safely

“Driving impaired or riding with someone who is impaired is an extremely risky and dangerous thing to do,” said Christopher J. Murphy, Director of the California Office of Traffic Safety. “If you plan on using alcohol, plan ahead with a sober driver. And remember, friends don’t let friends drive drunk.”


Report Drunk Drivers. Call 911

The La Mesa Police Department conducted a St. Patrick’s Day DUI Saturation Patrol in the City of La Mesa. The detail was operational for eight (8) hours.

Thirty-seven (37) cars were stopped and eleven (11) suspected drunk drivers were further evaluated for driving under the influence of alcohol and/or drugs. Of those drivers that were evaluated, two (2) were arrested for DUI.

One (1) suspect was arrested and released on a citation for being in possession of less than an ounce of Marijuana. One (1) subject was arrested for being drunk in public when she was stopped prior to getting into a car.

In addition to the arrests, four (4) citations were issued for vehicle code violations.

This detail is another reminder from the La Mesa Police Department that driving under the influence of alcohol will not be tolerated.

Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.


San Diego's DUI & DMV online consultation San Diego Drunk Driving Defense Resource Center:
San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you. San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge: San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.
FREE SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM"
San Diego DUI Defense Resource Center:

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.
San Diego DUI Lawyer Rick Mueller is a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as a "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California. San Diego DUI Criminal Defense Lawyer list

San Diego DUI defense attorneys report the false call in Lindsay Lohan's DUI case.

Lindsay Lohan's arrest warrant has been dismissed by a California judge after she was determined to be in full compliance with the terms of her probation for driving under the influence.

Los Angeles cops issued a $50,000 warrant for the actress’ arrest on Friday in relation to her 2007 DUI conviction, which saw her sentenced to 24 hours in jail. Lohan was also ordered to perform 10 days of community service and enter an 18-month alcohol education program.

Her latest legal woe was sparked after a director of her alcohol education class told the court the actress had missed three sessions in a 21-day period, violating the terms of her three-year probation.

The 22-year-old's lawyer Shawn Chapman blamed the warrant on a "miscommunication," and at a brief hearing in Beverly Hills on Monday, Chapman explained Lohan "had been in one program but left that program" for another due to a "personality conflict."

The actress, who was arrested twice in 2007 on DUI charges, did not appear in court.

The judge ordered Lohan to show new proof of enrollment in a program by April 3

San Diego DUI Lawyer List - San Diego DMV Attorney Choices

San Diego DUI lawyers and San Diego DUI attorneys are asked what you must do within 10 days of being arrested

10. If you need to save your driver's license or privileges, your attorney has only ten (10) calendar days to contact DMV!



Do not schedule yourself. If you contact DMV to schedule a date conflicting with your attorney's calendar, DMV will not reschedule and you may not get the attorney of your choice. There is no rush as long as your attorney contacts DMV by the 10th day from your arrest.



9. The ten (10) day time limit is computed from the Issue date of the SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE. If time is running out or you are late, contact an attorney ASAP.



8. This ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE is the California DMV paper which you should have received.



7. Even if you did not receive this DMV paper, the California DMV will probably take action against your driving privileges.



6. Even if you have a license from another state, and even if the officer did not take your license, that state may also take action against your driving privileges.



5. This TEMPORARY DRIVER LICENSE ENDORSEMENT is valid for only thirty (30) days from the issue date.



If a DMV hearing is requested within ten (10) days, your DMV TEMPORARY will be extended & there will be a stay (delay) of any suspension until the outcome of your DMV hearing is determined.



4. Do not confuse this initial 30 day TEMPORARY DRIVER LICENSE with your court date!

The DMV and criminal proceedings are separate and independent. The outcome of one almost never affects the other. Sometimes the officer or the DMV paper confuses or misleads you to believe that the TEMPORARY DRIVER LICENSE is good "until the court date". If there are approximately thirty (30) days from your arrest date to your court date, this may just be a dangerous coincidence. There usually are months before your DMV hearing takes place.



3. There are three (3) issues at the hearing if you completed a chemical test. (See reverse side of DMV paper.)



Issues are whether the officer had probable cause to stop or contact you or whether the chemical test evidence is beatable.



2. The DMV has the burden of proof to prevail on all three (3) issues. If DMV meets the burden of proof on two (2) issues, you win!



1. All a DMV attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!






Click on below sites for more information or to contact a San Diego DUI Lawyer who can help

San Diego DUI defense lawyers report California DUI authorities are planning to crack down hard on drunk drivers this St. Patrick's Day.

The California Highway Patrol says they will "be out in force" over the weekend in an effort to take California DUI intoxicated drivers off the streets and highways throughout the state.

"We want people to enjoy themselves and have a good time, but safety on the roadways is everyone's responsibility," CHP Commissioner Joe Farrow said in a statement. "If you are going to be drinking, make sure you have a designated driver who will not be consuming alcohol to get you home safely."

The CHP says that the number of California DUI alcohol-related crashes has risen over the past decade, from 1,233 in 2000 to 1,489 in 2007. Fifty people were hurt on St. Patrick's Day last year.

Motorists can call 911 to report unsafe and California DUI or intoxicated drivers.

San Diego DUI Defense Attorneys and San Diego Drunk Driving Criminal Lawyers are told California DUI Police will hold a California DUI sobriety and driver's license checkpoint tonight, California DUI officials said.

The California DUI operation will be held during evening hours at an undisclosed location within the city, Azusa police Cpl. Dean Brewer said in a written statement.

The primary purpose for the California DUI checkpoint will be to detect and arrest drunk drivers, but driver's license violations will also be enforced.

The California DUI checkpoint is being funded by a California DUI grant from the California Office of Traffic Safety, San Diego California DUI criminal attorneys are told.

San Diego DUI defense attorneys report that on Friday night, March 6, approximately 24 officers from a variety of law enforcement agencies throughout San Diego County converged on Fallbrook to conduct the first-ever “zero tolerance” San Diego DUI alcohol enforcement operation here.

In two-officer teams, the San Diego DUI detail focused on cracking down on alcohol-related crimes and violations by scouring the Fallbrook area from 8 p.m. to 2 a.m. for drunk drivers and incidences of public drunkenness.

“I’m extremely pleased with the results of the alcohol enforcement operation conducted in the Fallbrook area,” said Lt. Phil Brust, who assumes control of the Sheriff’s Fallbrook Substation this week upon Lt. Alex Dominguez’ retirement. “We successfully took a number of suspected drunk drivers off our streets and potentially saved lives in the process.”

During the operation’s timeframe, officers performed 109 traffic stops, administered 26 field sobriety tests, issued 25 citations, impounded nine vehicles and arrested eight people for San Diego DUI driving under the influence (DUI). The majority of DUI arrests were made on South Mission Road and SR76. In addition, two individuals were arrested for felony DUI probation violations during the operation.

“Our mission going in was to provide an increased police presence in the community and target impaired drivers,” said Brust.

When individuals were found to be in violation of the law, they were taken to the Fallbrook Substation, where a Sheriff’s Mobile Command and Transportation Unit were located to process arrests.

“We have an Intoximeter [breathalyzer] inside the mobile command unit,” said Brust, explaining that when a citizen is brought in they are instructed to blow twice into the machine. Both blood alcohol readings are recorded and become evidence if charges are levied. If a citizen refuses an Intoximeter test, there is an alternative.

“We have a phlebotomist on call to conduct blood tests,” explained Corporal Jason A. King.

Funding for the special San Diego DUI alcohol-related operation was made possible by the Avoid Grant through the California Office of Traffic Safety.

Cpl. Jason King, who is in charge of San Diego County’s portion of the grant, said each San Diego DUI alcohol enforcement detail, like the one conducted in Fallbrook, costs between $10,000 and $12,000.

“It’s well worth it, when you are talking about the possible loss of life and/or serious injury that can result from drunk drivers,” King said.

Sgt. Dave Gilmore, who led the March 6 operation for the Fallbrook Sheriff’s Substation, said he was pleased the San Diego DUI Avoid Grant funds were available for use in the community and said more alcohol enforcement can be expected in the near future here.

Agencies that participated in the Fallbrook San Diego DUI operation included the San Diego County Sheriff’s Department; California Highway Patrol; city police departments from San Diego, Oceanside, Carlsbad, La Mesa, Escondido and Coronado; and officers from California State Parks and the San Diego County Probation Department.

“These agencies and others are committed to keeping the streets of San Diego County safe for all of us,” Brust tells San Diego DUI lawyers.

San Diego DUI Defense Resource Center

San Diego DUI lawyers believe Chris Rock's brother Tony has been charged with a California DUI / drunk driving.

The Los Angeles City Attorney has filed two DUI charges -- driving under the influence and driving with a .08 blood alcohol level or higher.

After his arrest, Rock purportedly mentioned to some he had been drinking Patron and then driving on the 101 Freeway.

Rock, also a comedian in his own right, allegedly mocked his arrest and indicated he would skip the alcohol course.

In other California DUI news, a California DUI grant from the California Office of Traffic Safety will pay for California DUI sobriety and driver's license checkpoints in Turlock on Friday.

Turlock police will distribute educational pamphlets to drivers as they pass through the California DUI checkpoint.

Drivers suspected of California DUI driving under the influence will be arrested. Drivers must present their driver's license, and police will check seat belt compliance.



San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge:
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San Diego DUI lawyers report that a man with a history of DUI / drunk driving convictions pleaded not guilty Wednesday to five felony charges, including second-degree murder, for allegedly plowing into a 24-year-old woman in a Pacific Beach crosswalk.

Alan Lester Mabrey, 45, was ordered held on $2 million bail. San Diego DUI Deputy District Attorney Patty Herian told Judge David Szumowski that Mabrey was intoxicated when he made a left turn from Reed Avenue onto Mission Boulevard about 8 p.m. last Saturday and plowed into Emily Cathleen Dowdy, causing what turned out to be fatal head injuries.

Mabrey's blood-alcohol level was measured at .22 percent, nearly three times the legal limit for operating a motor vehicle. A passenger in Mabrey's truck got out to help the victim, but Mabrey took off on foot and was spotted about an hour later at a nearby Burger King restaurant, the San Diego DUI prosecutor said.

Mabrey arrived in San Diego only a couple of days prior to the accident and and has no known ties to the area, San Diego DUI attorneys heard the DA tell the judge.

She alleged the defendant was a flight risk and a danger to the community, noting Mabrey has a 2006 false imprisonment conviction from Colorado and five drunken driving convictions dating back to 1992 from Texas.

Herian said Mabrey spent five years in prison for his latest DUI from 1999.

The victim's mother said her only daughter had a great impact on the Pacific Beach community since relocating from Florida two years ago.

"We are going to fight until the day we die to change the (drunken driving) laws ... to change the sentencing criteria for these people," Ellie Dowdy told reporters outside court.

"Five times? Two felony DUIs? Five years in jail? Do you know how totally reprehensible that is?" the mother said. "Do you know how filthy and immoral that is, that we smile and smirk and turn our faces away from things like this? I'm telling you, something has to be done."

The victim's liver was donated to two people, including a teenager who had a week to live, her mother was heard saying, according to San Diego DUI defense lawyers.

San Diego's DUI & DMV online consultation San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge

San Diego DUI attorneys & San Diego drunk driving lawyers report that on March 6, 2009, the Escondido Police Department and the San Diego County Probation DUI team conducted a court sting operation at the Vista Court facility. The purpose of this San Diego county detail was to detect and arrest drivers who were seen driving away from the San Diego county Court in violation of their felony DUI probation status.

The following San Diego county activity resulted from this detail:

• 1- Subject arrest for a probation violation. He was drunk when he reported to his San Diego county probation officer.
• 3- San Diego county drivers were arrested for violating the conditions of their felony DUI probation when they were observed driving away from their probation appointment. All three drivers were notified of their suspended driving status prior to leaving the Court. The San Diego county drivers are being held on a no-bail probation violation.

Additionally, all three San Diego county drivers were issued a citation for driving on a suspended driver license and their vehicles were impounded for 30 days.

This Court Sting operation was held in conjunction with the San Diego County Probation Department’s DUI Enforcement Team.

Funding for this San Diego county program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.

DUI & DMV online consultation San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you.

San Diego DUI Lawyers are told 2 traffic accidents involving five vehicles on the Interstate 5 early Saturday morning led to an arrest on suspicion of California DUI, the transportation of four people to the hospital and lane closures, said California Highway Patrol Officer Ben Ellis.

A sedan and a tractor trailer collided on the southbound I-5 just south of Templin Highway near Castaic at 6:03 a.m., San Diego DUI Lawyers believe.

About two minutes later, the first accident led to a second collision involving a pick-up truck, an SUV, another sedan and tractor trailer already at the site, according to information given to San Diego DUI attorneys.

Officers arrested the male driver of the sedan in the first collision on suspicion of driving under the influence of alcohol. The suspect was injured in the second collision because he stepped out of his vehicle after the first collision, San Diego DUI Lawyers say.

The suspect was transported to Henry Mayo Newhall Memorial Hospital, along with the driver of the second sedan and two passengers in that vehicle, per San Diego DUI Lawyers.

CHP officers shut down the third and fourth lanes for about an hour. The first and second lanes were closed only five to 10 minutes after the crash.

Authorities do not know what directly caused the accident.



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San Diego DUI Attorneys with useful assistance are told that a 34-year-old Los Angeles Police Department officer pleaded not guilty to three felony counts this week for allegedly driving his Hummer over two people and leaving the scene of the alleged California DUI / drunk driving crime.

Los Angeles Superior Court Judge Kristi Lousteau ordered William Skett to return to court March 23 for preliminary hearings in the California DUI / drunk driving case.

Skett, 34, pleaded not guilty Wednesday to California DUI / drunk driving - driving under the influence, DUI causing injury and leaving the scene, all felonies.

Skett allegedly backed his Hummer into a man and a woman in a Saugus parking lot. Skett saw the victims lying on the ground and allegedly fled, leaving his Hummer behind.

"Apparently he just backed over the people and left," sheriff's Lt. Tom Bryski said.

He said Skett was arrested at home after Santa Clarita Valley sheriff's deputies looked up the registration of the offending vehicle.

The woman hit by the Hummer suffered multiple broken ribs and collapsed lung. The man hit by the SUV suffered minor cuts and bruises.

Deputies found the abandoned Hummer on the night of the incident and arrested Skett at his home.

If convicted of these California DUI / drunk driving charges, Skett faces up to seven years and eight months in prison.

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San Diego DUI defense attorneys & San Diego drunk driving criminal lawyers at www.SanDiegoDUI.com/blood.html are told that criminal defense attorneys across the Inland area have begun receiving notices that a lab technician who tested evidence in cases against their clients admitted to lying "hundreds of times" about the tests he conducted while working in another state.

The letters from the Riverside County district attorney's office also say Aaron Layton, 30, who worked for Riverside-based Bio-Tox Laboratories, was a registered sex offender but did not tell authorities here about his criminal background.

The district attorney's office was not aware of Layton's background for two years, a period when he worked on about 3,000 misdemeanor and felony cases for Riverside County authorities alone, according to court records. It's unclear how many cases he may have worked on in other Southern California counties and other states.

The Riverside County public defender's office has received notices regarding about 50 cases, Riverside County Supervising Public Defender Christine Voss said. The district attorney's office reported that Layton testified 15 times in criminal cases, she said.

Authorities have not found any evidence that Layton mishandled any blood samples or lied about lab work for Riverside County while he worked at Bio-Tox.

Layton has not returned calls seeking comment.

Prosecutors and defense attorneys say Bio-Tox is complying with the investigation and retesting samples for pending cases at no cost to Riverside County.

Cases Retested

In a statement Thursday, Bio-Tox business manager Tracey Stangarone said the lab has retested almost 500 cases since late January and found all results to be consistent with the original results.

"We do not anticipate any change and continue to work with the district attorney and public defender offices on this investigation, " Stangarone said.

A background check completed in December uncovered polygraph records from the Police Department in Columbus, Ohio, where Layton applied for a job in 2003. During the polygraph exam, Layton admitted that he failed to conduct required tests, falsified reports and committed perjury while working for a lab in Denver in 2000 and 2001, according to the letter.

The district attorney's office is reviewing each of the cases Layton may have been associated with. They include cases in which suspects have already been convicted, as well as pending alcohol-related murder cases.

Defense attorneys in those cases are being notified, and convictions could be challenged. The district attorney's office said prosecutors will call different Bio-Tox experts to testify.

Attorneys are required by law to report any information they are aware of that would compromise the credibility of a witness who may be called to testify.

Authorities in Riverside, San Bernardino and San Diego counties contract with Bio-Tox to have blood tested for drugs and alcohol in criminal cases. The results of those tests are used by the district attorney's office to prosecute suspects.

Riverside County district attorney's officials said the office began issuing letters last week to all other prosecutorial agencies that have Bio-Tox contracts.

The district attorney's office began investigating Layton on Dec. 23 after the public defender's office requested a background check. The public defender's office was notified that same day of his criminal record.

Layton was convicted in 2004 of sexual assault on a 13-year-old boy in Manitou Springs, Colo., that occurred when Layton was 17, according to the letter. He was arrested again in Colorado Springs in 2007 for failing to register as a sex offender and will remain on probation until this November, the letter states.

In 2000 and 2001, Layton worked for Forensic Laboratories in Denver. He was terminated for customer service issues, according to his former employer.

When Layton applied for a job with the Columbus Police Department in 2003, he failed an initial polygraph test and made a series of admissions during a second test, according to the letter. Among those admissions:

Layton told the polygraph operator that while conducting a marijuana test for the Arapahoe County Probation Department in Colorado, he got an initial positive result but skipped a required second test, then lied about it in his report. He also said he "committed perjury" when he testified about the test in court.

Layton said this action was not unique -- while working for Forensic Laboratories he "never conducted confirmatory tests and he falsified his reports 'hundreds of times.' "

He said while working at the Colorado lab, he would forge his supervisor's signature and notary stamp on affidavits involving evidence and procedural results.

The district attorney's office notified Bio-Tox on Jan. 21 that prosecutors would not be able to use the results of any test Layton conducted or use him as a future witness, but did not indicate the reason.

District attorney's officials said Bio-Tox was not aware of the investigation into Layton or his background until the lab was subpoenaed Feb. 19.

The statement from Bio-Tox expressed confidence in Layton's work in Riverside County.

"Our work experience with Mr. Layton was that he was reliable and knowledgeable of his work," Stangarone said. "While we are deeply disappointed by this discovery, his history from years ago does not match the type of employee he has (been) while at Bio-Tox."

Riverside County Supervising Deputy District Attorney Elaina Bentley said prosecutors conduct background checks on people who may affect the outcome of a case if there is a question about their credibility.

District attorney's spokesman John Hall said his office has to rely on agencies that employ expert witnesses to ensure they are credible.

Voss, from the public defender's office, said the district attorney's office shouldn't delegate that duty to another agency, and the only way to learn if a witness is credible is to conduct a background check.

"They're cutting corners by not running (checks)," Voss said. "Either they choose not to or they're too busy. Either way, it's their fault."

Bentley said the district attorney's office has done everything it is legally and ethically required to do as quickly as possible, including turning over information to defense counsel.

"In this case, the system in place did work and we made it available to defense counsel immediately after we became aware," Bentley said.

An evidence hearing related to Layton's involvement is scheduled for this morning. The public defender's office is requesting a list of cases be turned over where Layton was involved. Layton is subpoenaed to appear.

SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM"
San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

San Diego DUI criminal lawyers are often asked good drunk driving & dui questions about San Diego California:

One of the first questions that goes through a person's mind when they're charged with a San Diego DUI is:

What are the San Diego DUI penalties?

San Diego California DUI penalties are somewhat complex and a San Diego DUI sentence depends on many factors ("enhancements") such as:

- Any prior San Diego DUI convictions
- Refusing to submit to a chemical (breath or blood) test
- Whether or not the San Diego DUI led to injury or death
- Having a child or minor in the vehicle
- Driving 20 miles above a street's speed limit or 30 miles above freeway speed limit

If you are found guilty of any of the above listed enhancements, there are more severe San Diego DUI penalties.

If you are caught with a DUI in San Diego, there are basically two types of criminal charges. You could be charged with a DUI (Driving Under the Influence or be charged with driving with a blood-alcohol level at or greater than .08%. There's a chance you could be charged for both.

What happens to your drivers license?

Depending on your prior convictions, your driver's license could be suspended anywhere from 90 days to a year for a first or second offense. If it is your third or fourth offense you could have your license revoked for 3-4 years. The Department of Motor Vehicles and the courts in San Diego California each have their own separate penalties. It's best to seek legal help and talk to a San Diego DUI lawyer to help save your license.

Other punishments for a San Diego DUI include:

- Mandatory alcohol or drug programs
- Fines over $2,000
- MADD panel
- Public work program
- San Diego county jail
- Vehicle Impound
- Ignition Interlock Device
- Community service

As one can see from the San Diego California punishments listed above, a DUI or drunk driving in San Diego is not something you should take lightly. For some this is punishment enough to prevent them from making the same mistake in the future. However, for some lawmakers these penalties are not enough to combat drunk driving & DUI in San Diego. Many San Diego people are pushing for even more severe San Diego DUI penalties.


San Diego DUI, DMV & Drunk Driving Defense Resource Center:San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you.

San Diego DMV attorneys
and California DMV lawyers emphasize one must have a medical marijuana card to avoid a certain DMV action.

State officials have spelled out guidelines saying California drivers cannot lose their licenses just because they have a medical marijuana prescription.
A revised Department of Motor Vehicles training memo instructs agency staff to treat medical marijuana like any other prescription drug when considering whether to renew a driver's license.
Medical marijuana advocates released the memo this week and credited what they called changes in DMV policy to lawsuits filed by medical marijuana patients whose licenses were revoked.
A DMV spokesman said the revisions do not represent a new policy but merely put into writing practices already in place.
“There has been no change in DMV policy,” said department spokesman Steve Haskins. “We do not automatically revoke the licenses of those who have a prescription for medical marijuana.”
According to the memo, hearing officers determining whether to renew a driver's license should handle medicinal marijuana use approved by a physician like they would any prescription medication that could affect safe driving.
“The hearing officer should inquire as to the frequency of use, time of use, and the relationship to driving as they would with the use of other prescribed medications,” the memo says.
The memo still gives the DMV leeway to deny licenses to drivers addicted to drugs or alcohol.
Americans for Safe Access, a medical marijuana advocacy group, sued the DMV in November on behalf of Rose Johnson, 53, who said the agency refused to renew her license because she was a medical marijuana patient.
Her attorney, Joe Elford, said DMV documents cited Johnson's marijuana use as the reason for denying her a license, even though she had a clean driving record for 37 years. The group has asserted that similar situations have occurred in at least eight counties.
Johnson was not accused of driving while under the influence of marijuana, which is still a crime, Elford said.
The DMV declined to comment on Johnson's suit or whether it was connected to the timing of the revised guidelines.
Americans for Safe Access spokesman Kris Hermes said the group's attorneys had been in talks with the DMV over its medical marijuana policies.
“I don't think the DMV can get away with saying the policy is not a change,” Hermes said. “Clearly it has not been the case based on evidence from our experience.”
Johnson's license was reinstated in January, and she plans to drop her lawsuit, Hermes said.
Medical marijuana is legal in California under a voter-approved law passed in 1996

San Diego DUI Attorney Rick Mueller lectures lawyers about DMV at Strategies in Handling DUI & DMV Cases seminars, at the DUI & Drug Defense seminar at the San Diego Bar Building, at the North San Diego County Bar Association's Drunk Driving - DMV seminars, and at the Public Defender's Office DMV - DUI Training seminars. His DMV - DUI work is also featured in the Association of California Deuce Defenders' materials. Since 1983, San Diego California DUI / DMV Lawyer Rick Mueller has actively defended these cases.
San Diego DMV - DUI legal representation: 1-800-THE-LAW-DMV
(1-800-843-5293)



4660 La Jolla Village Drive, Suite 500

San Diego, CA 92122

(619) 218 - 2997 portable/voice mail




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San Diego DUI criminal defense lawyers and San Diego Drunk Driving attorneys report that a a Menifee man facing life in prison, who was on the lam for 18 years and even tried to mutilate his fingertips to evade identification, was arrested Wednesday.

Baldomero Johnny Diaz, 36, was living in Menifee with his wife and children under the assumed name Raul Huerta, and working for a construction company, said Orange County District Attorney spokeswoman Farrah Emami.

District Attorney's office investigators arrested him Wednesday morning on Newport Road near Interstate 215.

Diaz was convicted in 1990, when he was 17 and a gang member, of six counts of attempted murder in connection with a drive-by shooting in Santa Ana, a district attorney's office news release said.

Diaz and several other members of his gang got into an argument with rival gang members at a party on Oct. 22, 1989. After arming themselves, they drove through Santa Ana looking for their rivals and found them drinking in a parking lot. Diaz and his group fired at least 17 shots, injuring six people, then drove to a nearby park to celebrate, the release said.

Five minors, including Diaz, were prosecuted in connection with the shooting. Diaz was tried as an adult. Before he could be sentenced, Diaz escaped from an Orange County juvenile detention center through a hole cut in a fence. He was sentenced in absentia to life in prison.

A district attorney's office cold case review begun last month led to Diaz's arrest. Investigators learned that, over the past 18 years, Diaz had assumed numerous aliases, birthdates and Social Security numbers, which he used to acquire identification from the DMV.

In 2001 he was arrested and charged with soliciting a prostitute in San Diego County, and in 2006 with driving under the influence, Emami said.

A fingerprint analyst with the Orange County Sheriff's Department compared prints from the attempted murder case with those from the prostitution and DUI cases and concluded they all belonged to the same person.

The analyst also found that Diaz had tried to mutilate his fingertips in an attempt to avoid being identified through fingerprinting.


Depending on the location of your DUI arrest, San Diego County has four courts:

San Diego Court, 220 W. Broadway, San Diego, CA 92101

El Cajon Court, 250 E. Main St., El Cajon, CA 92020

North County Court, 325 S. Melrose Drive, Vista, CA 92083

South Bay Court, 500 3rd Ave., Chula Vista, CA 92010

Juvenile Court, 2851 Meadowlark Drive, San Diego, CA 92123
Attorney Rick Mueller specializes in DUI & DMV representation for all areas.

Different police departments and laboratories have different criminal DUI and DMV procedures unique to each area. Each criminal court has unique judges and prosecutors.

There is only one San Diego County DMV Office of Driver Safety. This office is the only DMV office where you can stop/stay suspension of your license and schedule an administrative per se license suspension hearing within 10 days of your DUI arrest.

Upon timely request by your DUI/DMV specialist, this office appoints a unique Driver Safety Officer to preside over your DMV administrative hearing. Attorney Rick Mueller is familiar with each of them and their DMV procedures, policies, rulings and decisions.

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San Diego DUI lawyers are asked how are restaurants and bars going to make it in this rough economy.

Thousands of the nation's bar and nightclub owners are in Las Vegas this week for their annual convention. There are all kinds of sessions, but if there's a theme running through this year's show, it's "how to prosper in hard times" or "driving beverage profits in a new economy."

Homespun wisdom and alcohol are in ample supply in the cavernous Las
Vegas Convention Center.
"The market is tough presently," says Francois Farah who owns the Purple
Moon Nightclub in Flint, Mich. "Very tough."
Farah is on the hunt for some cheap laser lighting (if there is such a thing), and
he pauses long enough to give a snapshot comparison of what tough means to
him.
"Oh I would say that business is down 10 to 20 percent," Farah says. "People
do not pay what they used to pay. So you have to reduce your prices for drink
prices, adjust to the market. So we give them more for their money."
But it's not like the hard times are universal.
"We're up about 15 percent over last year," says Del Valenti, who owns a tavern called Albert's on the Alley in
Garden City, Mich. "Yeah, our business is fine, and we're very economically priced, and people can afford to come
in, and they do."
More Americans Are Drinking At Home
So do people consume more alcohol in times of economic hardship, or more in times of prosperity? Per capita
alcohol consumption in the U.S. stays pretty flat. Whether it's in beer, wine or distilled liquor, Americans drink 2.5
gallons of alcohol a year on average, and that hasn't changed for the past few decades.
"When the economy's great, people drink. When the economy sucks, people drink," says Donna Hood Crecca, the
editorial director of nightclub.com, the trade show's publication. "This is America. People drank during Prohibition.
You know? They're gonna drink."
But Americans are drinking less out on the town these days. Sales of alcohol in bars and restaurants were down a bit
last year, but liquor store sales were slightly up. So, Americans are still drinking; they're just doing more of it at
home. And that, Crecca says, is a challenge to bar and nightclub owners.
"There is more competition and there's less expendable income," Crecca says. "So how do you get someone to come
spend it with you as opposed to somebody else?"
And then there's the vagaries of the hipster set.
"It's fad driven — you know the customer is fickle," Crecca says. "The 20-something crowd is really fickle. You know
they're gonna go with what's hot this week, and it may not be hot next week. And you have to figure out if you run
one of those places, how do you keep them coming back, and that's not easy."
Finding Funky Ways To Lure Drinkers
But the conventional wisdom seems to be that serving drinks is probably not enough. Workshop presenters discuss
text messaging, social networking, booking live music, karaoke. And the trade-show floor is a cacophony of video
games, steam machines, pulsing LED lights, writhing dancers in skimpy costumes.
And in the midst of the flicker and smoke, there's Robin Whincup, offering that old standby — the mechanical bull.
"You can't sell something like the mechanical bull, unless you can see it, ride it, touch it and smell it," Whincup says.
It smells like a mechanical bull should, though there is no doubt that the new mechanical bull smell would get a
little stale once it has been ridden by hordes of drunken bar patrons. Still, Whincup assures that the bull is a mob
magnet.
"It's just a great attraction. It brings the crowds in; it's very visual. People love it. It's very American," he says.
But so far, at least some of those in attendance haven't had to do much to attract clientele. Tom Seltzer, who owns
three bars in central Wisconsin, says the economic downturn has actually helped business.
"I've got a lot of guys in my area that are laid off from work and it actually helps me," Seltzer. "Seems like they have
nowhere else to go, so they actually hang out a lot more and drink a lot more. [There's] nothing else to do in
Wisconsin but drink."
Seltzer says if business does drop off, he might put on a polar plunge, where customers jump into the icy waters of a
nearby Wisconsin river and he serves drinks. Apparently, another bar owner tried that recently, and it made a big
splash.


San Diego DUI Defense Resource Center:

San Diego DUI criminal defense lawyers and San Diego Drunk Driving criminal defense attorneys report that The Marine Corps Times reported Lance Corporal Quintin Garza, 21, pleaded not guilty to San Diego California DUI charges stemming from a fatal New Year’s Day crash on a San Diego County road.

San Diego California DUI Prosecutors allege that Garza was driving through a winding stretch of El Camino Real near Rancho Santa Fe when his vehicle collided with a parked SUV owned by Gaudencio Reyes-Quintana. Reyes-Quintana’s vehicle was stuck in the mud, and California Highway Patrol officers believe that Reyes-Quintana was standing outside of the vehicle when Garza crashed.

Garza’s San Diego California DUI attorney pointed out the vicinity was foggy that night with areas of drizzle, which along with curvy roads and limited sight lines may have contributed to the car accident. Garza himself was unconscious when San Diego California DUI police officers arrived at the scene.

His vehicle, a Dodge Caliber, was found in a nearby swamp. San Diego county California DUI police believe Garza’s automobile went airborne after allegedly striking Reyes-Quintana’s immobilized SUV. Garza sustained light injuries in the auto accident and is being held in the Vista jail with bail set at $350,000.

San Diego's DUI & DMV online consultation
San Diego Drunk Driving Defense Resource Center:

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you.

San Diego DUI criminal defense attorneys at and San Diego drunk driving criminal defense lawyers are told about two recent San Diego DUI checkpoints:

On February 27, 2009, the Escondido Police Department conducted a San Diego drunk driving - DUI Sobriety / Driver’s License Checkpoint in the 200 block of E. Valley Pkwy from 6:15 PM until 12:10 AM. The emphasis of this San Diego drunk driving checkpoint was to detect intoxicated and unlicensed drivers as well as to provide a highly visible operation to deter DUI.

The following activity resulted from this San Diego drunk driving checkpoint:

• 2,175 vehicles entered the checkpoint westbound on Valley Pkwy
• 1,118 vehicles were screened in primary
• 98 vehicles were sent to secondary (drivers who could not produce a driver’s license or who were suspected of being under the influence of alcohol or drugs)
• 6 drivers were arrested for DUI
• 1 misdemeanor arrest for possession of marijuana
• 60 vehicles were impounded at this checkpoint, 15 drivers did not have auto insurance, 11 drivers had a suspended driver’s license, and 48 drivers did not have a driver’s license
• 67 citations were issued at this checkpoint

This San Diego drunk driving checkpoint operated in conjunction Mothers against Drunk Drivers, the San Diego County DUI Probation Team, the California Highway Patrol, and the North County Law Enforcement Traffic Safety Council.

Also, on February 28, 2009, Officers from the Chula Vista Police Department's DUI Enforcement Team conducted a DUI and Driver's license checkpoint on the 200 block of East Orange Avenue in Chula Vista. The San Diego DUI checkpoint operation began at approximately 9 pm and ended at approximately 2:30 am.

During the San Diego DUI checkpoint, 910 vehicles passed through the checkpoint and 413 vehicles were screened. Ten San Diego DUI field sobriety tests were administered and six drivers were arrested forSan Diego DUI - driving under the influence of alcohol and/or drugs. Twenty-six vehicles were impounded and thirty-seven citations were issued for various vehicle code violations.

This was considered a successful San Diego DUI /DL checkpoint. The Chula Vista Police Department's DUI Enforcement Team is continuing efforts to keep drivers in our community safe by deterring and detecting impaired drivers.

This San Diego DUI operation was made possible by a San Diego DUI grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration. Visit for more information.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.
San Diego DUI Lawyer Rick Mueller is a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as a "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California. San Diego DUI Criminal Defense Lawyer list:

San Diego DUI / DMV Defense attorneys report a 20-year-old woman was arrested Saturday night for drunk driving after two cars collided, sending one of the cars plowing into several pedestrians, San Diego DUI / DMV lawyers said.

A pizza delivery car was turning at the intersection of Coronado and Thermal in Nestor when a BMW, driven by suspected drunk driver Andrea Ramirez, 20, slammed into it, according to San Diego DUI / DMV Defense attorneys.

"After the collision, the car went to the right, and up onto the sidewalk and struck four or five pedestrians that were on the sidewalk," said Ron LeMaster with the San Diego Police Department.

One of the victims suffered what police said was a significant leg injury.

Ramirez was arrested for DUI. More charges could be filed when it's determined who was at fault, San Diego DUI / DMV Defense attorneys are told.

Click on below sites for more information or to contact a San Diego DUI Lawyer who can help

San Diego DUI criminal defense lawyers and San Diego Drunk Driving Criminal Defense Attorneys report that the Vacaville police made two arrests during a California DUI and driver's license check Friday night, according to California DUI police officials.

The California DUI checkpoint was conducted on Mason Street between Peabody Road and Depot Street. California DUI saturation patrols were also conducted throughout the city. The results were two arrests for California DUI, 10 vehicles towed and 20 citations issued. Arrested were two 32 year old persons, one from Vacaville, for suspicion of California DUI and another from El Sobrante, for suspicion of California DUI, possession of marijuana in a motor vehicle and probation violation, California DUI police said.

Funding for this California DUI operation was provided by a California DUI grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.

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San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you.
San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge:
San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.
FREE SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM"
San Diego DUI Defense Resource Center: