Hernandez v. Gutierrez (114 Cal. App. 4th 168, 2003)

Opinion

ARONSON, J.

The Department of Motor Vehicles (DMV) challenges a judgment granting a writ of mandate overturning its suspension of Richard Vigil Hernandez’s driver’s license. Because the peace officer who observed Hernandez for the requisite period prior to a breath-alcohol test was not a certified intoxilyzer operator, the trial court concluded the test results were inadmissible at the license suspension hearing. We hold the results were admissible under the official duty presumption. (Evid. Code, § 664.) As we discuss below in the published portion of this opinion, the regulatory requirement that a breath test subject not regurgitate, vomit, eat, smoke, or ingest alcohol or any other fluid for at least 15 minutes before the collection of a breath sample (Cal. Code Regs., tit. 17, § 1219.3) does not require the officer observing the subject, as opposed to the person who eventually administers the breath test, to be certified in the use of the breath test device. In the unpublished section of the opinion, we conclude the regulation does not require the observing officer to maintain uninterrupted visual contact with the subject in order to satisfy section 1219.3’s “continuous observation” requirement. We therefore reverse and remand for the trial court to enter a new and different judgment denying Hernandez’s writ petition.

I

FACTS AND PROCEDURAL BACKGROUND

On May 11, 2001, around 9:15 p.m., Huntington Beach Police Officer David Roberts responded to a report of a reckless driver in a red Corvette on Pacific Coast Highway. Roberts located the Corvette and observed it swerving and nearly striking the center median. Roberts stopped the car. The driver, Hernandez, had bloodshot, watery eyes, and a flushed face. An odor of alcohol emanated from inside the Corvette. Asked to step out of the car, Hernandez walked with an unsteady gait and his speech was slurred. He told Roberts he had consumed two 12-ounce beers between 6:30 p.m. and 9:10 p.m. Hernandez failed a series of field sobriety tests, and was placed under arrest.

At the police station, Hernandez chose to take a breath test. Before the test, Roberts kept Hernandez under observation for 21 minutes. Roberts stood just outside the holding cell. Occasionally, Roberts glanced down to complete some paperwork while Hernandez remained in the cell, some five feet away. Roberts did not see, hear, or smell Hernandez eat, drink, smoke, belch, burp, regurgitate, or vomit. Jail detention officer Backstrom joined Roberts in observing Hernandez the last six minutes before the breath test. Backstrom, a certified intoxilyzer operator, administered the breath test. Before doing so, he asked Hernandez if he had vomited, regurgitated, belched, or burped, and Hernandez said “no.” The breath test revealed a blood-alcohol concentration of .13 percent at 10:09 p.m. and .12 percent at 10:11 p.m. Roberts issued Hernandez notice his license would be suspended in 30 days for driving with a blood-alcohol concentration greater than .08 percent. (Veh. Code, § 13353.2.)

Hernandez called Roberts to testify at the ensuing license suspension hearing. Roberts admitted he was not certified to operate the intoxilyzer device used to determine Hernandez’s blood-alcohol concentration. DMV introduced the breath test results, which were recorded on an “Information & Precautionary Checklist” form used by Roberts and Backstrom at the time of the test.

The form included the following language: “OBSERVATION [j[] Subject must be under continuous observation from at least 15 minutes prior to the first breath sample until the final breath sample is collected. During this time, he/she must not drink any alcoholic beverage or other fluid, eat, or smoke anything and must not vomit, regurgitate, belch or burp. If any of the above occurs, the test must be discontinued and the observation restarted or the subject must choose another chemical test.” Below this language was the heading, “OFFICER’S STATEMENT (If Officer is not Operator)” and Roberts’s signed statement he “observed the above listed subject from 2150 [hours] until 2211 [hours]. During that time, he/she did not drink any alcoholic beverage or other fluid, eat or smoke anything, nor did he/she vomit, regurgitate, belch, or burp.” Backstrom’s signed “OPERATOR’S STATEMENT” was identical, except he observed Hernandez from 10:05 p.m. to 10:11 p.m.

Hernandez objected to the breath test results on the grounds Roberts was not qualified to conduct the observation period. The hearing officer admitted the results because Backstrom, not Roberts, administered the breath test. Since the evidence showed Hernandez’s blood alcohol concentration exceeded .08 percent, the hearing officer suspended his license and, upon internal review, DMV concurred with this decision. The trial court subsequently granted Hernandez’s petition for a writ of mandamus to set aside the suspension, and DMV now appeals.

II

DISCUSSION

(2) Title 17 establishes the procedures for determining “the concentration of ethyl alcohol in samples of blood, breath, urine, or tissue of persons involved in traffic accidents or traffic violations.” (§ 1215.1(b).) Law enforcement officials conducting breath tests must adhere to title 17. (Health & Saf. Code, § 100715.) Breath test results are admissible in license suspension and revocation proceedings “upon a showing of either compliance with title 17 or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator . . . .” (People v. Williams (2002) 28 Cal.4th 408, 417 [21 Cal.Rptr.2d 854, 49 P.3d 203], italics added.) When DMV proceeds by the former route, as here, it enjoys the benefit of the official duty presumption under Evidence Code section 664. That section “creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. [Citations.] . . . The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence.” (Shannon v. Gourley (2002) 103 Cal.App.4th 60, 64-65 [26 Cal.Rptr.2d 327].)

The question presented by this appeal is whether Hernandez rebutted the presumption of compliance with title 17. The trial court concluded Hernandez did so by showing Roberts was not a certified breath test instrument operator. Whether title 17 requires a certified operator to observe the subject before administering a breath test is a question of regulatory interpretation. “ ‘The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law . . . .’ ” (Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 93 [30 Cal.Rptr. 321, 550 P.2d 593]; Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1234-1235 [30 Cal.Rptr.2d 209] (Manriquez).) “In interpreting regulations, the court seeks to ascertain the intent of the agency issuing the regulation by giving effect to the usual meaning of the language used so as to effectuate the purpose of the law, and by avoiding an interpretation which renders any language mere surplus-age.” (Modern Paint & Body Supply, Inc. v. State Bd. of Equalization (2001) 87 Cal.App.4th 703, 708 [104 Cal.Rptr.2d 784].)

A. Title 17

Title 17 distinguishes between the collection and handling of breath samples and their analysis. The procedures related to the former are found in article 5, Collection and Handling of Samples (§§ 1219, 1219.1-1219.3) while those for the latter are in article 7, Requirements for Breath Alcohol Analysis (§§ 1221, 1221.1-1221.5). The word “operator” is found only in article 7, indicating only tasks described in that article require operator certification.

As defined in article 7, an operator “shall be a forensic alcohol supervisor, forensic alcohol analyst, forensic alcohol analyst trainee or a person who has completed successfully the training described under section 1221.4[, subd.] (a)(3) and who may be called upon to operate a breath testing instrument in the performance of his duties.” (§ 1221.4, subd. (a)(5).) Title 17 defines “Breath Alcohol Analysis” as the “analysis of a sample of a person’s expired breath, using a breath testing instrument designed for this puipose, in order to determine the concentration of ethyl alcohol in the person’s blood.” (§ 1215.1, subd. (c).) Certain tasks in this analysis may be performed only by an operator, including the operation of breath testing instruments. (§ 1221.4, subd. (a)(5).) And only operators may perform the requisite, periodic accuracy check on these instruments. (§ 1221.4, subd. (a)(2)(A)(l).)

Operators must be trained in the use of breath test instruments. The training is described in section 1221.4, subdivision (a)(3): “Breath alcohol analysis shall be performed only with instruments for which the operators have received training, such training to include at minimum the following schedule of subjects: [