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Eusse-Gil v. Department of Motor Vehicles5/11/2004
After an administrative hearing at the Department of Motor Vehicles (DMV), the driver's license of petitioner Andrea Eusse-Gil was suspended on November 22, 2002, for driving with a 0.14 blood alcohol as shown by a blood test. Her driving privilege was reinstated when the Santa Cruz County Superior Court granted a writ of mandate. The DMV appeals, contending that the trial court erred in finding the report of the blood test had been inadmissible at the administrative hearing.
FACTS
About 1:30 a.m. on September 5, 2002, California Highway Patrol officers stopped Eusse-Gil for driving 50 miles an hour in a 35 mile per hour zone. After field sobriety tests and two preliminary blood alcohol screening tests, Eusse-Gil was arrested. She later elected to take a blood test. Senior Criminalist Adam Lutz found Eusse-Gil's blood alcohol content to be 0.14 percent, almost twice the 0.08 legal limit. (Veh.Code, § 23152, subd. (b).)
The DMV suspended Eusse-Gil's license pursuant to the "administrative per se" procedure (Veh.Code, § 13353.3, subd. (a); MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155), for driving a motor vehicle with a blood alcohol level of 0.08 percent or more. She requested a hearing from the DMV. At the hearing on November 8, 2002, Eusse-Gil's attorney interposed an unsuccessful hearsay objection to the blood alcohol report which was signed by Senior Criminalist Adam Lutz, and to the Department of Health Services (Department) list of forensic alcohol analysts licensed to perform analyses at the lab which tested Eusse-Gil's blood. That list did not name Adam Lutz but did list a John Adam Lutz as a licensed forensic alcohol analyst. The hearing officer suspended Eusse-Gil's driving privilege.
Eusse-Gil petitioned for a writ of mandate in the superior court. She argued that the "Adam Lutz [ ] Senior Criminalist" who signed the forensic alcohol analysis report was not qualified to perform the analysis because he was not the "John Adam Lutz" whose name appeared on the Department's "List of Persons Qualified to Perform Forensic Alcohol Analysis." The DMV opposition proclaimed that John Adam Lutz and Adam Lutz were the same person, that the Department's record showing that John Adam Lutz was a qualified analyst was admissible, and that in any event, hearsay may be properly relied on in an administrative hearing to supplement other evidence.
The trial court concluded, however: "Furman[ [FN1]] case governs. The blood alcohol test results are not admissible since there was no proper foundation laid for their admission. The forensic alcohol report is admissible only if the public employee preparing the record is one defined in the regulations. Here the DMV relied on another document, the list of persons to satisfy this requirement. However, that document was not properly admitted since the requirements to be admissible as a public record were not met...." Judgment for Eusse-Gil was entered and her driving privilege reinstated. This appeal ensued.
FN1. Furman v. Department of Motor Vehicles (2002) 100 Cal.App.4th 416 (Furman ).
ISSUES ON APPEAL
*2 The DMV claims the court erred when it excluded the Department's report, first, because it was admissible under Evidence Code section 1280 (hereafter section 1280), and second, because even if hearsay, it was properly admitted into evidence and relied upon to supplement other evidence of intoxication.
STANDARD OF REVIEW
A superior court reviews a DMV driver's license suspension or revocation under the independent judgment standard. (Lake v. Reed (1997) 16 Cal.4th 448, 456- 457.) Although the superior court's factual findings must be upheld on appeal if supported by substantial evidence (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270), an appel
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