 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Burstein v. Gourley11/1/2001
As modified November 30, 2001. There is no change in the judgment.
RICHARD BURSTEIN, PLAINTIFF AND APPELLANT,
v.
STEVEN GOURLEY, AS DIRECTOR, ETC., DEFENDANT AND RESPONDENT.
Appeal from a judgment of the Superior Court of California, County of Orange, H. Warren Siegel, Judge. Reversed and remanded. (Super. Ct. No. 814729)
Law Offices of Barry T. Simons and Barry T. Simons for Plaintiff and Appellant. Bill Lockyer, Attorney General, Laura Lee Gold and Anne Hunter, Deputy Attorneys General, for Defendant and Respondent.
The opinion of the court was delivered by: Sills, P. J.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
OPINION
After his drunk driving arrest, the DMV sought to suspend Richard Burstein's license in an administrative hearing. At the hearing, Burstein presented evidence that the lab which performed the alcohol test was out of compliance with certain state regulations. The hearing officer rejected the contention, and Burstein then filed this writ proceeding in the superior court. The trial judge went outside of the administrative hearing to allow the DMV to show compliance.
We must be consistent in applying Vehicle Code section 13559. The statute plainly says, "The review shall be on the record of the hearing and the court shall not consider other evidence." (Emphasis added.) The statute is not a one-way street, which keeps a motorist from relying on material extrinsic to the hearing, but allows the DMV to do what a motorist can't.
Here, the trial court did consider other evidence, and therefore we must reverse. Coombs v. Pierce (1991) 1 Cal.App.4th 568, 576-578, is on point. Specifically, there the trial court erred in taking judicial notice of a page from the Federal Register, which indicated that a particular type of "intoximeter" was licensed by the state. The time to establish that fact, said the court, was at the administrative hearing, not in a court proceeding later. (See id. at p. 587.)
We need only note that the instant case involves the small irony that the DMV hearing officer at least thought of doing something to establish the reliability of the blood test: In early May, after Burstein submitted his evidence that the lab's new procedures had not been approved by the Department of Health Services, the hearing officer announced he would continue the hearing to allow the lab's supervising criminalist to respond. But when the hearing was reconvened in August, the hearing officer had not gotten around to having the criminalist subpoenaed, and took the matter under submission then and there. He ruled the same day, ordering a year's suspension.
Just because a lab is out of compliance with state regulations does not mean that its test results must be ignored in any administrative proceeding by the DMV to suspend or revoke a motorist's drivers license. The case law is clear that if a lab is shown to be out of compliance, the DMV has the burden of showing that any given blood test result is indeed reliable. (E.g., Robertson v. Zolin (1996) 44 Cal.App.4th 147, 150.) Because the DMV did nothing to carry that burden at the administrative hearing, this case must be reversed. The matter is remanded to the trial court to enter a new order revoking the license suspens
Page 1 2 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|