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San Diego DUI Focus on APS hearings and Hearsay Evidence

by | Feb 20, 2014 | Firm News |

The Law Office of Mark Deniz has the privilege of working with some of the best young legal minds in San Diego.  One of these persons is Alyssa Frazier.  Alyssa is a law student at Thomas Jefferson School of Law.  She is on the law review and one of the top of her class. She has an intense desire to help people.   She was invited to write on subjects that she comes across while working with the firm.

Today, she is writing about APS DMV hearings and Hearsay Evidence.


APS Hearings and Hearsay Evidence

When a person is
arrested for a DUI, the arresting officer will issue them a notice letting them
know to make an appointment with the DMV to request an Administrative Per Se
(APS) hearing. During the APS hearing, the court will look at evidence and
determine whether the accused’s driver’s license should be suspended. In some
circumstances, hearsay evidence may also be used.

Hearsay evidence
is an out of court statement used to prove truth of the matter asserted. An APS
hearing has a looser evidentiary standard. One example would be a forensic
report by the phlebotomist stating the BAC of the driver. This is usually
admissible under a hearsay exception if the report was made directly after the
BAC level was taken. However, if the report was not made directly after taking
the BAC, it may not be reliable if it there has been a lapse of time because
there is a danger of inaccuracy. It is unsure where the line is, how long is
too long, but the court tends to say that even if recorded in something else
first, such as in a journal even before report made, this would be enough show
the information was not inaccurate.

However, if the
information was not recorded somewhere prior to being recorded in the report,
then it is up to the Judge’s discretion to determine whether the time between
taking the information and recording it in the report was long enough to render
the information unreliable do to danger of inaccuracy. In Glateman v.
, the court determined that 1 week period between the taking of
Glateman’s BAC and the recording of the information into the report was too
much of a time lapse, and rendered the information in danger of inaccuracy. Glatman
v. Valverde
, 146 Cal. App. 4th 700, 703, 53 Cal. Rptr. 3d 319,320 (2006).
Therefore, there are some instances where hearsay evidence may be used, but in
this instance, it is at the Judge’s discretion to determine whether the
information should be allowed in.

Glatman v.

53 Cal.Rptr.3d 319

146 Cal.App.4th 700



The Department of Motor Vehicles (DMV), George Valverde, DMV
director, and R. Sammartino, a DMV hearing officer (collectively, appellants),
appeal after a superior court judge issued a writ commanding 320*320 the DMV to
set aside its suspension of Brent Allen Glatman’s driver’s license. Appellants
contend the court erred by finding the results of Glatman’s blood test were not
timely recorded, as required by Evidence Code section 1280, subdivision (b).1
We affirm.


On July 24, 2005, Officer J. Baggs stopped Glatman for
speeding on Pacific Coast Highway and observed Glatman exhibited “red watery
eyes, slurred speech, unsteady gait, [and] a strong odor of an alcoholic
beverage.” Glatman stated “he had consumed 4-5 bottles of beer.” He failed
several field sobriety tests administered by Baggs and was arrested by Baggs
pursuant to Vehicle Code section 23152, subdivision (a) (driving under the
influence of alcohol). Glatman surrendered his driver’s license to Baggs and
was notified he could request a hearing to challenge the suspension of his

A forensic alcohol examination report (the Forensic Report)
prepared by the Sheriff-Coroner Department’s Forensic Science Services on
August 1, 2005, reflected the following: At 12:30 a.m. on July 25, one hour
after Glatman’s arrest, his blood was drawn for a blood-alcohol concentration
(BAC) test. That same day a forensic analyst at the sheriff-coroner’s
department analyzed the blood sample and determined Glatman’s BAC was 0.137.
The next day another sheriff-coroner’s forensic analyst analyzed the sample and
determined Glatman’s BAC was 0.135. The two analysts certified these test
results by their signatures dated August 1, 2005, on the Forensic Report, one
week after Glatman’s blood was drawn.

In September 2005, at an administrative per se hearing held
before a DMV hearing officer, Glatman’s counsel objected to the admission into
evidence of the Forensic Report on hearsay and other grounds. Under section
1280′s hearsay exception for records made by public employees, the Forensic
Report was admissible if, among other requirements, “[t]he writing was made at
or near the time of the act, condition, or event,” as required by subdivision
(b) of that section. Glatman’s counsel argued, inter alia, that suspension of
Glatman’s license was unjustified because his BAC tests were not recorded at or
near the time of the blood analysis. The hearing officer suspended Glatman’s
license for one year, finding, inter alia, the certification of the blood test
results was timely.

Glatman petitioned the superior court for a writ of mandate.
At the hearing on the petition, the DMV relied on two reports to establish
Glatman’s BAC was greater than the statutory requisite of .08 percent for
driving under the influence of alcohol: (1) the Forensic Report; and (2) the
field sobriety test report of breath tests (preliminary alcohol screen tests)
administered by Officer Baggs showing Glatman’s BAC was 0.132 and 0.122. The
court stated the Forensic Report was untimely and the field sobriety test
report might be inadmissible. The court directed the parties to further brief
the issue. After considering the supplemental briefing, the court granted the
petition and issued 321*321 the writ commanding the DMV to set aside its suspension
of Glatman’s license.


The Court did not Err in Finding the Forensic Report was

Appellants contend the court erred in concluding Glatman’s
blood test results were not recorded at or near the time of the analysis of his
blood sample. They assert the analysts entered the test results into a computer
database soon after completing each analysis, and argue the “preparation of the
[Forensic Report] on August 1. 2005 … was simply the retrieval of the recorded
information from the computer database.” Appellants further contend that
section 664 “establishes a presumption that [Glatman’s] blood alcohol test
result was recorded in compliance with official duties.”

We review for abuse of discretion the court’s ruling the
Forensic Report did not meet the timeliness requirement of section 1280,
subdivision (b). “A trial court has broad discretion in determining whether a
party has established [the] foundational requirements [of section 1280].
[Citation.] Its ruling on admissibility `implies whatever finding of fact is
prerequisite thereto; a separate or formal finding is, with exceptions not
applicable here, unnecessary. [Citation.]‘ [Citation.] A reviewing court may
overturn the trial court’s exercise of discretion `”only upon a clear showing of
abuse.”‘”2 (People v. Martinez (2000) 22 Cal.4th 106, 119-120, 91
Cal.Rptr.2d 687, 990 P.2d 563 (Martinez).)

Applying this standard of review, we conclude the court did
not abuse its discretion in finding the Forensic Report, prepared “a week
later,” was not made “`at or [near] the time of the event.’”3 Although
appellants assert the analysts promptly entered the test results into a
computer database, the record contains no support for this assertion. The
computer printout in the clerk’s transcript is dated September 6, 2005, one
month after the date of the Forensic Report. The printout contains no reference
to the date on which the test results were entered into the computer database.
Indeed the printout does not even contain both test results but rather a
single, rounded-off result. The record is also silent as to the recordation
procedures followed by the sheriff-coroner’s department. In short, there is no
evidence that Glatman’s test results were recorded in a computer database (or
anywhere else) prior to August 1.

Appellants quote our Supreme Court’s observation in Martinez,
supra, 22 Cal.4th 106, 91 Cal.Rptr.2d 687, 990 P.2d 563, ”that the timeliness
requirement `is not to be judged … by arbitrary or artificial time limits,
measured by hours or days or even weeks.’” (Id. at p. 128, 91 Cal. 322*322
Rptr.2d 687, 990 P.2d 563.) But the Martinez court also stated:
“`Whether an entry made subsequent to the transaction has been made within a
sufficient time to render it within the [hearsay] exception depends upon
whether the time span between the transaction and the entry was so great as to
suggest a danger of inaccuracy by lapse of memory.‘” (Id, italics
added.) The Martinez court held the DMV’s “entry into CLETS [California
Law Enforcement Telecommunications System] of criminal information it receives
does not depend on memory, but simply involves a transfer of information from
one form of storage—the disposition reports—to another—the CLETS database.
Under these circumstances, the Department’s statutory recording duties are
sufficiently specific to support the trial court’s discretionary determination
that the CLETS printout met the timeliness requirement of the official records
exception.” (Ibid.)

In contrast, the instant case presents a “danger of inaccuracy
by lapse of memory.” (Martinez, supra, 22 Cal.4th at p. 128, 91
Cal.Rptr.2d 687, 990 P.2d 563.) Appellants concede that, if the analysts relied
on memory, “even a lapse of one day could cast serious doubt about whether such
recordation was made sufficiently `at or near’ the time of testing to be deemed
trustworthy.” But appellants argue that, given the number of tests an analyst
performs each day, it is unreasonable to infer the analyst would try to retain
all the test results in his or her head. The only reasonable inference,
according to appellants, is that “labs have policies and procedures in place to
ensure the timely recordation of such results by analysts.” But an inference
may be drawn only if the “proposed conclusion is a reasonable, logical, and
nonspeculative deduction from the facts proved.” (S.C. Anderson, Inc. v.
Bank of America
(1994) 24 Cal.App.4th 529, 539, fn. 12, 30 Cal.Rptr.2d
286.) Here, the record is spent as to the department’s recordation policies and
procedures, any automatic recording capability of the testing equipment used,
and the average number of tests performed by an analyst each day.

Appellants rely on Komizu v. Gourley (2002) 103
Cal.App.4th 1001, 127 Cal. Rptr.2d 229, where an appellate court upheld a trial
court’s finding that an alcohol analysis report was reliable because “the
wording of the report reflected a postponement, not in the recording of the
analysis, but merely in the typing of `a journal-type entry.’” (Id. at
p. 1007, 127 Cal.Rptr.2d 229.) Thus, Komizu involved a transfer of data
from one form of recordation to another (as in Martinez, supra, 22
Cal.4th 106, 91 Cal.Rptr.2d 687, 990 P.2d 563.). Here, in contrast, the
Forensic Report’s wording sheds no light on whether the test results were first
recorded on a date earlier than August 1.

And while appellants point out the Forensic Report was
prepared only five working days after the date of Glatman’s arrest, memory is
subject to erosion with every day that passes, whether working or nonworking.

Alternatively, appellants contend section 664 creates a
presumption the analysts timely recorded the test results. Section 664
provides: “It is presumed that official duty has been regularly performed.”
Appellants argue that regulations promulgated under Health and Safety Code
section 100700 (governing laboratories performing forensic alcohol analysis
tests by or for law enforcement agencies) impose an official duty on forensic
analysts to properly record test results. But while those regulations require
laboratories to maintain records, they specify no deadlines or time periods or
timeliness requirements governing such recordation. In Yordamlis v. Zolin
(1992) 11 Cal.App.4th 655, 14 Cal. Rptr.2d 225, the Court of Appeal rejected
“the DMVs attempt to rely on the presumption 323*323 that an `official duty has
been regularly performed …’ (… § 664) to establish that [motorist] gave the
blood sample within three hours of driving.” (Id. at p. 661, 14
Cal.Rptr.2d 225.) The Yordamlis court found “nothing in the language of
[Vehicle Code section 21357] that `imposes any particular time requirement that
can be assumed to have been met pursuant to the presumption codified by …
section 664.’”4 (Id. at p. 661, 14 Cal. Rptr.2d 225.)

Appellants rely on Davenport v. Department of Motor
(1992) 6 Cal. App.4th 133, 7 Cal.Rptr.2d 818 (Davenport), where an
appellate court recognized a section 664 presumption. (Davenport, at p.
139, 7 Cal.Rptr.2d 818.) In Davenport, the licensee objected at the
administrative hearing to the admission of the arresting officer’s sworn
statement on the grounds “the document failed to establish that the breath test
given to him was given in a correct manner, that the machine used for the test
was operating properly, or that the officer who administered the test was
properly trained.” (Id. at p. 138, 7 Cal. Rptr.2d 818.) The hearing
officer sustained the order of suspension; the trial court denied the
licensee’s petition to set aside the order. (Id. at pp. 138-139, 7
Cal.Rptr.2d 818.) The Court of Appeal affirmed the trial court’s denial of the
petition, and recognized a presumption under section 664 that chemical tests
“were administered in compliance with statutory and regulatory requirements.” (Davenport,
at p. 139, 7 Cal.Rptr.2d 818.) Critical to the Davenport decision,
however, were the existence of a statute and regulations promulgated thereunder
which imposed an official duty on law enforcement officers “to perform
blood-alcohol analyses by methods devised to assure reliability.” (Id.
at p. 141, 7 Cal.Rptr.2d 818.) In another significant distinction from the
instant case, Davenport involved subdivision © of section 1280, which
mandates that “sources of information and method and time of preparation” of
writings be trustworthy, not the timeliness requirement of subdivision (b) of
section 1280. (Id. at pp. 142-143, 7 Cal.Rptr.2d 818.)

Finally, appellants argue the summary nature of
administrative per se hearings militate against requiring forensic analysts to
testify. But there are other ways of evidencing the prompt recordation of test
results, short of analysts testifying—for example, preparing a laboratory
report soon after completing a test, or at least providing evidence the
analysts’ results were truly entered into the computer database immediately and
only printed out later.

The court did not abuse its discretion in finding the
Forensic Report was not prepared at or near the time of the recorded event, as
required under section 1280, subdivision (b).5


The judgment is affirmed. Respondent shall recover his costs
on appeal.


1 All statutory references are to the Evidence Code unless
otherwise stated. Section 1280 provides: “Evidence of a writing made as a
record of an act, condition, or event is not made inadmissible by the hearsay
rule when offered in any civil or criminal proceeding to prove the act,
condition, or event if all of the following applies: (a) The writing was made
by and within the scope of duty of a public employee, (b) The writing was made
at or near the time of the act, condition, or event, © The sources of
information and method and time of preparation were such as to indicate its

2 When ruling on a writ petition challenging an order
suspending a driver’s license, a trial court exercises its independent
judgment. (Lake v. Reed (1997) 16 Cal.4th 448, 457, 65 Cal.Rptr.2d 860,
940 P.2d 311.) Generally, an appellate court reviews the trial court’s findings
for substantial evidence. (Id.) Here, however, appellants challenge the
court’s section 1280 ruling; the abuse of discretion standard of review
therefore applies.

3 The court acknowledged Glatman’s reliance on our opinion
in Downer v. Zolin (1995) 34 Cal.App.4th 578, 40 Cal.Rptr.2d 288
(Downer), where we stated in a footnote that “a report prepared nearly a week
after the forensic tests were completed does not fall within the statutory
requirement that the report be prepared `at or near the time’ of the reported
event.” (Id. at p. 582, 40 Cal.Rptr.2d 288.) The court noted, however,
that the Downer statement was dictum and Downer “was later disapproved by our
Supreme Court in other respects.”

4 Nor does Vehicle Code section 23612′s mandate that blood
test results be sent to the DMV within 15 calendar days of the date of arrest
have any bearing on whether analysis results were timely recorded.

[5] We need not address appellants’ further
contention the court erred in concluding the evidence did not support a finding
Glatman drove with a BAC of at least 0.08 percent, because that contention is
predicated on Appellants’ assumption the test results in the Forensic Report
were admissible.

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected]


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