DUI Tests and Evidence Code § 664 Presumptions
Anyone who has been through a DUI admin per se hearing at the California Department of Motor Vehicles is frustratingly familiar with how the DMV accepts hearsay as evidence under Government Code § 11513 and Evidence Code § 664 when a blood alcohol test result is stated on what appears to be an official form.
The blood alcohol test results are not hearsay because they are just measurements from a machine and the machine cannot be cross-examined. In other words, only people can make hearsay statements; machines cannot. People v. Leon (2015) 61 Cal.4th 569, 603.
However, someone must operate the machine that measures the breath alcohol content and if the person doing so is not properly trained or qualified to do so, the results may be less reliable. If this is so, defendant may be able to exclude such results and successfully retain one’s driving privileges at a DMV admin per se hearing.
The Gist of this Article: Evidence Code § 664 creates a rebuttable presumption that records are reliable, but that presumption can be rebutted by the opposing party and this shifts the burden back to the party seeking to admit the records to show the records are reliable. The following case summary exemplifies how this must be done.
This was obviously well understood by Dallana Delgado, but not well enough. We therefore present the following summary of a recent First Appellate Court published opinion as a cautionary tale to our readers, but also as a suggestion of how to avoid her errors.
On October 2, 2016, Officer Walker of the Concord Police Department responded to a report of a hit and run collision. When he arrived at the scene, he was told the suspect had left the scene, but parked at a nearby loading dock area.
Walker then drove over to the loading dock and spoke with Ms. Dallana Delgado, who acknowledged she had been involved in the collision and that she had consumed “at least two, maybe three” beers earlier in the evening. She then was asked to perform some field sobriety tests at the scene and was arrested.
DMV SignWalker then took her to the Concord police station, where she submitted to two breath tests on a Draeger machine. Walker operated the machine. The results showed Delgado’s breath was measured at a blood-alcohol level of 0.15%. In a statement on the police report, Walker certified under penalty of perjury that he was “qualified to operate this equipment and that the test was administered pursuant to the requirements of Title 17 of the California Code of Regulations.” This was signed on the DS-367, also known as the Age 21 and Older Officer’s Statement.
Delgado then subpoenaed records, through her counsel, from the Contra Costa Criminalistics Laboratory (CCC Laboratory) seeking “a copy of the certificate of training or authorization evidencing the qualifications of Officer Walker as an operator of the AlcoTest 7110 breath testing machine.” In response, the lab stated, “we found no training record for Officer Daniel Walker.”
The DMV then subpoenaed Walker to appear at Delgado’s DMV Hearing.
The DMV then held the DMV Hearing and Walker did not appear. The DMV suspended Delgado’s license anyways.
Delgado then petitioned the trial court for a writ of mandate, contending that the evidence submitted rebutted the presumption the test was performed properly and that she was deprived of her right to confront and cross-examine Officer Walker because the DMV did not enforce its subpoena.
The trial court granted the petition, concluding the CCC Laboratory’s affidavit was sufficient evidence that Officer Walker was not properly trained and shifted the burden to the DMV to show the test results were reliable.
The DMV then moved for reconsideration, submitting evidence that Walker had been trained on a Draeger machine - albeit with a different model number – in another county where he had previously worked. The trial court denied the motion for reconsideration.
The DMV then appealed the ruling to the First Appellate District Court of Appeal. It explained that Evidence Code § 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 and the test results are presumptively valid. Manriquez v. Gourley (2003) 105 Cal.App. 4th 1227, 1232.
To establish that the test results are reliable, it must be shown that the apparatus was in proper working order; the test was properly administered, and the operator was competent and qualified.” Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 140.
Once the DMV meets this initial burden to establish a prima facie case, the driver may rebut the presumption with “affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV.” Manriquez, supra, 105 Cal.App.4th at 1233. This burden may be met by showing “through cross-examination of the officer, or by the introduction of affirmative evidence, that official standards were in any respect not observed.” Davenport, supra, at 144.
In the case of Ms. Delgado, the First Appellate District found that the DMV met its prima facie burden by submitting the official reports of Delgado’s BAC. Delgado’s document from the DMV did not shift the burden back to the DMV because it did not show Walker was not qualified to administer the test. The affidavit showed only that CCC Laboratory did not have records of Walker’s training.
What Delgado failed to show is that no laboratory had Walker’s training record and that such laboratories would have had it. Without that evidence, there was not enough to rebut the presumption that procedures were properly followed by Walker. Delgado could have subpoenaed the officer to show up and sought a continuance so Walker could appear.
We offer this summary as a bit of a warning and a suggestion that subpoenaing the officer to appear at the hearing with his certification or documents showing he is properly trained may be wise.
The citation for the First Appellate District Court ruling discussed above is Dallana Delgado v. Department of Motor Vehicles (1st App. Dist., 2020) 50 Cal. App. 5th 572, 263 Cal. Rptr. 3d 657.
For more information about witness qualification criteria, please click on the following articles:
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