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Welch v. Gourley6/18/2004
The superior court issued a writ of mandate directing appellant Department of Motor Vehicles (the DMV) to set aside its suspension of respondent Raymond Lawrence Welch's driving privilege and to reinstate that driving privilege. The court found that the documentary evidence introduced to prove Welch's blood-alcohol content (BAC) was inadmissible hearsay and, therefore, that there was insufficient evidence to support the suspension. We affirm the judgment.
BACKGROUND
On July 25, 2002, at approximately 9:52 p.m., California Highway Patrol (CHP) Officer J. Smith was advised by dispatch to respond to Rio Del Mar Boulevard at Meadowlark Lane to assist CHP Officer W. Myers with a driving under the influence (DUI) investigation. Upon Smith's arrival, Myers told Smith that, as he was patrolling northbound on Rio Del Mar Boulevard at 9:45 p.m., he observed Welch's car traveling at a high rate of speed. Myers said that he had paced Welch's car at 40 miles per hour (mph) in a 25 mph zone, and that Welch ran through a stop sign at 35 mph without stopping. Myers said that he then stopped Welch, who displayed objective symptoms of drug intoxication.
Officer Smith contacted Welch in the driver's seat of Welch's car, explained why he was there, and asked Welch to step out of the car and to walk back to his patrol car. Smith noticed that Welch was unsteady on his feet, that his eyes were red and watery, and that his speech was slightly slurred. Smith asked Welch how much he had to drink that night and Welch replied, "2 Bourbon and waters." Smith asked Welch to perform a series of field sobriety tests (FSTs), which he explained and demonstrated, and Welch was unable to perform the FSTs. Based on the reported observations of Myers, Welch's objective symptoms of alcohol intoxication, and Welch's overall poor performance on the FSTs, Smith formed the opinion that Welch was driving under the influence of alcohol and arrested Welch for violating Vehicle Code section 23152, subdivision (a). [FN1] Welch was transported to a hospital where he chose to submit to a blood test. Smith observed a licensed lab technologist take a sample of Welch's blood.
FN1. "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle." (Veh.Code, § 23152, subd. (a).)
Officer Smith issued Welch an administrative per se suspension order, and Welch surrendered his license and was issued a temporary license. On September 23, 2002, the DMV held an administrative hearing to review Welch's license suspension. At the hearing, the DMV introduced 10 documentary exhibits, but the hearing officer sustained Welch's objections to exhibits 4, 6, and 7. [FN2] Pertinent to our discussion here are exhibits 3 and 5. Exhibit 3 is titled "Forensic Alcohol Analysis," and purports to record the results of an analysis of Welch's blood sample at "0.09% (W/V) alcohol." The report is signed by "Adam Lutz [ ] Senior Criminalist," who states: "If called as a witness, I would testify that I am employed by the State of California Department of Justice and conducted examinations and formed conclusions as stated in the report.... I, the undersigned, declare this information is true and correct under penalty of perjury."
FN2. Exhibit 4 was a declaration purportedly completed by the laboratory technologist who drew Welch's blood sample. Exhibit 6 was a "Driving Under the Influence Arrest--Investigation Report." Exhibit 7 was a photocopy of Welch's driver's license and "Notice to Appear." The hearing officer sustained Welch's objections to admission of these documents because they were not provided in discovery.
*2 Exhibit 5 is a typewritten document titled "List of Pers
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