Sumner v. Gutierrez

Filed 11/30/05 Sumner v. Gutierrez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CURT SUMNER, Plaintiff and Respondent, v. CHON GUTIERREZ, as Director, etc., Defendant and Appellant.

G034917 (Super. Ct. No. 04CC06956) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Corey S. Cramin, Judge. Reversed and remanded with directions.

Bill Lockyer, Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Elizabeth Hong and Michael G. Witmer, Deputy Attorneys General, for Defendant and Appellant.

Robert K. Weinberg for Plaintiff and Respondent

* * *

The Department of Motor Vehicles (DMV) challenges a judgment granting a writ of mandate overturning its suspension of Curt Sumner’s driving privileges. DMV contends no substantial evidence supports the writ because the record shows the Orange County Sheriff-Coroner Department’s Forensic Science Services laboratory (the crime lab, or lab) complied with its blood-alcohol testing protocols, contrary to Sumner’s assertion below. We agree, and therefore reverse the judgment. Consequently, we decline as moot DMV’s further invitation to announce a rule stating that noncompliance with “local,” internal crime lab protocols has no effect on the “official duty” (Evid. Code, § 664) presumption of compliance with statewide blood-alcohol testing regulations under title 17 of the California Code of Regulations.

I

FACTUAL AND PROCEDURAL BACKGROUND

At 11:45 p.m. on September 20, 2003, Newport Beach Police Officer D. Andelin responded to a report of a red BMW stalled in a traffic lane. Andelin contacted Sumner near the BMW; Sumner claimed his driveshaft broke during a right turn, sending the vehicle into the center median. The vehicle’s left rear tire was flat, the rim was damaged, and a skid mark extended from the median to the car. Sumner smelled strongly of alcohol. Andelin observed Sumner’s eyes were bloodshot and watery and his speech slurred. The officer administered several field sobriety tests which Sumner performed “very poorly.” Andelin arrested Sumner, who responded, “[F]uck you,” to the officer’s questions.

Andelin transported Sumner to the police department. There, offered a choice between a breath test and a blood test, Sumner elected the latter. A technician drew Sumner’s blood and dispatched it to the crime lab for testing. Because Andelin suspected the blood test would disclose a blood-alcohol content of .08 percent or more, by weight, he issued Sumner notice of an administrative per se suspension of his license. (See Veh. Code, §§ 13353.2, 13382.)

Sumner timely sought a DMV hearing to challenge the suspension. He objected to Andelin’s arrest report, another officer’s investigative report regarding Sumner’s collision with the median, and the crime lab’s Forensic Alcohol Examination Report (BAC report). Sumner argued the documents had not been authenticated, among other failings. The hearing officer overruled the objections. According to the BAC report, analyst Howard performed the first test on Sumner’s blood, disclosing a blood alcohol concentration of .227 percent, and analyst Gardner performed the second test, showing a .219 concentration. The BAC report listed the average of the two tests as a “Final Blood Alcohol result” of .22 percent, nearly three times the legal limit. (Veh. Code, § 13353.2.)

Sumner introduced the crime lab’s manual documenting its method of forensic alcohol analysis of blood samples, or Blood Alcohol Method. (See Cal. Code Regs., tit. 17, § 1220, subd. (b) [“Each licensed forensic alcohol laboratory shall have on file with the Department [of Health Services] detailed, up-to-date written descriptions of each method it uses for forensic alcohol analysis”].) The manual reveals the testing of blood samples for blood-alcohol content is largely an automated process using a gas chromatography device, with analysts testing a “run” of several samples at a time. The blood samples must be diluted before they are tested.

An appendix to the manual provides that a “technical review” must be performed for each run, requiring the “reviewer” to “inspect and approve the chromatography and inspect the run summary to ensure that all calibrators, standards and controls meet the specifications set forth in the Blood Alcohol Method.” Each technical review, typically one-page long, thus includes a “run summary” listing the blood samples tested in the run and various calibration, standards, and control data. In short, the lab’s protocols consist of three steps: (1) blood-alcohol analysis conducted by a run of diluted blood samples through the chromatography device; (2) preparation of a run summary; and (3) a technical review of the run summary. Section 7.1 of the appendix states, “The technical review must be performed by an analyst other than the one who diluted and analyzed the run.”

Sumner also introduced the lab’s technical reviews of the two runs that included a test of his blood. Each review contained a “Prepared by” and a “Reviewed by” signature line. The records showed Gardner both prepared and reviewed the summary of the run performed by Howard on Sumner’s first blood sample, yielding the .227 percent result. The summary of the run performed by Gardner on Sumner’s second sample, yielding the .219 result, was prepared by Gardner, and reviewed and signed by another analyst. Sumner argued Gardner’s signature on both the “Prepared by” and “Reviewed by” signature lines on the first technical review showed the lab violated its own protocols. The hearing officer made no specific determination whether the lab had adhered to its procedures, but instead simply concluded the lab results constituted “trustworthy” evidence showing Sumner’s blood alcohol concentration exceeded .08 percent. The officer therefore upheld DMV’s suspension of Sumner’s license.

Sumner timely filed a petition in the trial court for a writ of mandate to overturn the suspension. In the petition, Sumner complained the hearing officer erroneously permitted admission of the BAC report, Andelin’s arrest report, and the collision report. At the hearing on the petition, the trial court queried, “Is it disputed Gardner ran and checked, I think it’s her own sample run or his own sample run, is that fact disputed here?” Counsel for DMV responded, “It appears to be the case in terms of the documentation.” The trial court granted Sumner’s petition, but DMV’s request for a statement of decision went unanswered. (Code Civ. Proc., § 632.) DMV now appeals.

II

DISCUSSION

DMV challenges the sufficiency of the evidence to support the trial court’s decision to overturn the suspension of Sumner’s driving privileges, arguing the record shows Gardner did not violate the crime lab’s protocols by both preparing and reviewing a run summary. We agree. DMV persuasively demonstrates the decision in favor of Sumner rests on a misunderstanding. DMV explains the “Prepared by” and “Reviewed by” signatures on Gardner’s technical review meant she prepared the first run summary and reviewed it. In contrast, Sumner managed to persuade the trial court that Gardner’s two signatures meant she “Prepared” and ran the actual run itself (even though Howard marked the first run with his initials) — and “Reviewed” her own run in violation of section 7.1 of the lab manual appendix. No substantial evidence supports this conclusion, and we therefore must reverse.

In ruling on a driver’s mandamus petition (Veh. Code, § 13559; Code Civ. Proc., § 1094.5, subd. (c)), the trial court exercises its independent judgment on the administrative record to determine whether the weight of the evidence supports the hearing officer’s license suspension decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456 (Lake).) “Even exercising its independent judgment, the trial court still ‘must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.’ [Citation.]” (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233 (Manriquez).) We review the trial court’s judgment for substantial evidence. (Bobus v. Department of Motor Vehicles (2004) 125 Cal.App.4th 680, 684 (Bobus).) To the extent documentary evidence such as the lab’s manual must be interpreted, our review is de novo. (Cf. Hernandez v. Gutierrez (2003) 114 Cal.App.4th 168, 172 [interpretation of regulations and statutes is question of law]; see Romo v. Y-3 Holdings, Inc. (2001) 87 Cal.App.4th 1153, 1158 [interpretation of a written document where extrinsic evidence is unnecessary is a question of law].)

Here, the evidence is susceptible to only one interpretation: Howard, not Gardner, performed the run that Gardner reviewed. Section 4.11 of the manual describes the lab’s “blood alcohol naming scheme,” i.e., “XXXMMDDYYYY#,” in which “XXX is the analyst[’s] initials, MM is the two-number month designation (e.g. 01 for January, 11 for October), DD is the day of the month the sequence is run, YYYY is the 4-digit year, and # is the letter corresponding to the analyst’s run number for the day (e.g. A for 1st, B for 2nd, etc.).” (Italics added.) All of the tests in the run summary “Prepared by” and “Reviewed by” Gardner on September 23, 2003 contain Howard’s initials, not Gardner’s, e.g., “rlh09222003D001,” “rlh09222003D002,” etc. The obvious explanation is that Howard performed the run on September 22, and Gardner prepared the run summary and reviewed it the next day.

Notably, section 7.1 only precludes an analyst from reviewing the run he or she has performed; nothing in the manual prohibits the reviewer from preparing the run summary. (See Lab Appendix, section 7.1 [“The technical review must be performed by an analyst other than the one who diluted and analyzed the run”].) Section 6.5 describes how “preparing” the run summary is merely a matter of a few, ministerial keyboard clicks: navigating on a computer to the directory of the analyst who performed the run and retrieving the run data. A prohibition on the reviewer preparing a run summary would serve no purpose once one understands, as explained in section 6.7.1, that “[t]his information cannot be edited.” In other words, because the reviewer pulls the data from the analyst’s directory without any editing opportunity, section 7.1’s quality control purpose is not implicated. In any event, the determinative aspect of the foregoing review is that no evidence in the record supports Sumner’s winning argument below that Gardner reviewed her own run in violation of section 7.1.[1]

Sumner defends the judgment on the ground that the analysis above, as recited in the DMV’s opening brief, constitutes “new evidence never considered by the trial court.” To the contrary, the lab’s manual, the technical review bearing Gardner’s two signatures, and the rest of the administrative record were before the trial court for its independent review. No new evidence has been introduced on appeal. We note Sumner does not contend DMV is estopped from explaining the evidence as it has on appeal, or that some admission or stipulation by DMV compels affirmance. Such arguments would not carry the day, in any event, as we discuss below. True, DMV’s trial counsel apparently misunderstood the manual’s procedures, responding, “It appears to be the case in terms of the documentation,” to the trial court’s query whether Gardner ran and checked her own sample.

But as DMV points out, counsel’s statement to the trial court does not constitute a stipulation or an admission. (See 1 Witkin, Cal. Procedure (4th ed. 1997) Attorneys, § 309, p. 376 [noting cases disapproving “the giving up of substantial rights by casual, hasty or improvident oral concession[s] of counsel”].) And the element of scienter is lacking for judicial estoppel. (See Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App.4th 995, 1019 [noting doctrine is usually limited to cases where party actively misrepresents or conceals facts].) Moreover, an attorney’s statements are not evidence (see, e.g., Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090-1091), and the parties were entitled to the court’s independent judgment pursuant to the principles of mandamus review. (Lake, supra, 16 Cal.4th at p. 456; Manriquez, supra, 105 Cal.App.4th at p. 1233; Bobus, supra, 125 Cal.App.4th at p. 684; cf. In re Richard K. (1994) 25 Cal.App.4th 580, 588-589 [“it is not uncommon in dependency proceedings for a parent to ‘submit’ on a social services report. . . . [¶] . . . In other words, the parent acquiesces to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion”].) Additionally, fairness requires we decline to preclude DMV from clarifying its position because the trial court did not file the requested statement of decision, which would have afforded DMV the opportunity to correct counsel’s misapprehension. In any event, even if estoppel applied, our de novo review of the lab manual would yield the same conclusion advocated by DMV.

Here, the trial court understandably relied on DMV’s failure to rebut Sumner’s position, and thereby avoided an unaided slog through the administrative record. Nevertheless, we must reverse for the simple reason that no evidence supports the judgment. We are aware, as Sumner reiterates, that if the evidence is “subject to conflicting inferences with respect to the crucial issue,” the inferences drawn by the trial court “are binding on the reviewing court.” (Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 774, fn. 2.) But as discussed, no evidence supports the conclusion Gardner, rather than Howard, performed the run that Gardner reviewed. Absent violation of the crime lab’s protocols, no basis exists for mandamus.

Because the evidence shows the crime lab complied with its protocols, we decline DMV’s further invitation to announce a rule stating that noncompliance with internal protocols of “local” crime labs has no effect on the “official duty” presumption of compliance (Evid. Code, § 664) with statewide blood-alcohol testing regulations under title 17.

DMV argues the rule is necessary to avoid distorting “a uniform, swift and certain statewide system of deterrence” under title 17 “with a patchwork of local rules, loop holes and legal dodges.” Sumner counters that the lab’s protocols assure the quality control required by title 17. (See, e.g., Cal. Code Regs., §§ 1220, subd. (b) [lab must file with Department of Health Services “descriptions of each method it uses for forensic alcohol analysis” and “Each such description shall include the calibration procedures and the quality control program for the method”]; 1219 [“The identity and integrity of the samples shall be maintained through collection to analysis and reporting” (italics added)].) Sumner observes that applying the official duty presumption in the face of noncompliance would mean a “lab’s standards could be violated with impunity, stripping them of any consequence.” DMV answers with a specific example not implicated in this appeal, but nonetheless illustrative, “noting that while section 1220.3, subdivision (4) requires ‘at least one sample of the quality control reference material shall be analyzed with each set of samples analyzed for the purpose of forensic alcohol analysis,’ the Laboratory Manual specifies that ‘two samples of quality control reference material are analyzed with each set of blood samples.’ By Sumner’s logic, this means [t]itle 17 would be violated if the lab used only one sample of the quality control reference material, even though that is what the regulation specifically requires.” (Original italics.)

We leave this imbroglio for another day. As we have discussed above, the issue of noncompliance is not posed by the present appeal, and it exceeds our purview to resolve hypothetical questions. (See, e.g., 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 320, p. 359.) We therefore express no opinion on DMV’s request for a rule regarding noncompliance with lab protocols.

Finally, Sumner argues DMV failed to establish the authenticity of the purported copy of the BAC report reviewed by the hearing officer. Sumner attacks the report because, under the official duty presumption, it enabled the hearing officer to conclude his blood-alcohol concentration exceeded .08 percent without testimony showing the reliability of the report’s .22 percent figure. (See Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64-65 [explaining official duty presumption].) We have no way of knowing whether the BAC report reviewed at the hearing was an original or a copy.

In either case, whether an original or a copy, we reject Sumner’s challenge to the BAC report for the simple reason that our Supreme Court has concluded “blood and urine test results may be admitted in a DMV administrative hearing despite a lack of certification under penalty of perjury.” (Lake, supra, 16 Cal.4th at p. 467.) Lake emphasized that the rules regarding the admissibility of evidence in administrative per se hearings are ‘relaxed.’ (Ibid.) Relevant evidence is admissible in those hearings if it “‘is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs[.]’” (Ibid., citing Gov. Code, § 11513, subd. (c).) In Lake, the court concluded a forensic alcohol report is precisely the type of evidence upon which responsible people are accustomed to rely. The court thus approved its admission into evidence, despite the licensee’s objection that “it was an unauthenticated photocopy of the original report” and unsworn. (Lake, supra, 16 Cal.4th at p. 453.) If the Supreme Court found no problem with an unauthenticated photocopy of a forensic report in Lake, then neither do we here.

III DISPOSITION

The judgment of the trial court granting Sumner’s petition for a writ of mandate to reinstate his driver’s license is reversed. The matter is remanded with directions to the trial court to enter a new and different judgment denying the writ petition. DMV is entitled to its costs for this appeal. (Cal. Rules of Court, rule 27.)

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.

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[1] We observe that while the absence of expert testimony explaining the manual has no effect in this case because the manual is unambiguous, it may be in a petitioner’s or DMV’s interest to present such testimony at the administrative hearing in future cases. An ambiguous manual will not be subject to de novo review; rather, we defer to any reasonable construction found by the trier of fact. (Cf. Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956 [articulating this principle in context of a written contract].)