Cross Examination of the DUI Cop. Felipe Plascencia Law Office of Felipe Plascencia Whittier Blvd., 2 nd Floor Whittier, CA 90603

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1 Cross Examination of the DUI Cop Prepared by: Felipe Plascencia Law Office of Felipe Plascencia Whittier Blvd., 2 nd Floor Whittier, CA (888) 9HELP-DUI ( ) (562) TEL (562) FAX duiwarrior@roadrunner.com Felipe Plascencia has been a criminal defense attorney since 1994 shortly after graduating from Loyola Law School in Los Angeles. In 1996, he joined the Los Angeles Public Defender s Office and set a record for the doing and winning the most DUI jury trials while working as a public defender. He left the office to continue his private practice in March of In November 2003, Mr. Plascencia was certified on Basic Science of Evidential Breath Alcohol Testing by the manufacturer of breath testing instruments in Mansfield, Ohio. He was certified in the theory of science of evidential alcohol testing, including alcohol and human physiology, practical issues, theory and operation of infrared breath alcohol testing, field and laboratory applications. He was deemed qualified to operate, perform essential diagnostic verifications and calibration of breath testing instruments. He is certified to operate and calibrate the Alco Sensor IV Preliminary Alcohol Screening device (PAS) and owns two instruments. He was also National Highway Traffic Safety Administration (NHTSA)-certified in the student course in May 2000 in Dallas, Texas and was NHTSA certified as a field sobriety instructor in December 2000 in Nashville, Tennessee. He holds two certificates of completion for the Robert F. Borkenstein Course on Alcohol, Drugs, and Highway Safety: Testing, Research, and Litigation based out of Indiana University at Bloomington, one in December 2001, and one in May He is the only lawyer in the country to receive two certificates from Indiana University. He is the only California lawyer who has been accepted as a member of the International Association for Chemical Testing (IACT). He is a board member of the California DUI Lawyers Association and Specialist Member, Criminal Courts Bar Association and vice-president of the American Association of DUI Trial Lawyers. He is a member of the National College for DUI defense. He was a Keynote speaker at a statewide DUI seminar in Madison Wisconsin and also spoke at Oklahoma City DUI seminar. He has lectured at the California Public Defenders Association in Monterey, Sacramento and San Diego, California and the California DUI Lawyers Association. He lectured at Loyola Law School in 2004 through 2011, at the Mexican-American Bar Association s Annual DUI Seminar. He spoke at the Whittier Bar Association and the LA County Bar Association. He is a frequent speaker for the Lorman DUI seminars in California and for the California Association of Criminal Justice (CACJ). Mr. Plasencia is known for his aggressive style of defending people accused of DUI and is recognized by his peers as a premier DUI defense attorney. 1

2 HAVE TH PROPER MENTAL ATTITUDE WHEN YOU BEGIN YOUR TRIAL. CONSIDER THE QUOTE BELOW WHEN YOU START TO DOUBT HOW FAR YOU SHOULD GO IN CROSS EXAMINING THE D.A. WITNESSES. Our Duty is to defend at any cost. The Supreme Court has stated that defense attorneys can do just about anything to win their case. The following quote from U.S. vs. Wade makes this point. Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. U.S. v. Wade, 399 U.S. 218 (1967)(Justice White). 2

3 DUI CROSS-EXAMINATION REGARDING FIELD SOBRIETY TESTS. Try giving the cop a taste of his/her own medicine on the issue of divided attention. The following tests are designed to make the cop fail. Modified One Leg Stand/Rhomberg: Have the cop put his feet together, hands to his side, look straight, lift one leg 6 off the ground, tilt the head back, close his/her eyes and estimate thirty seconds. He/she will never be able to count for more than 10 seconds before falling over. Giving Your COP a Divided Attention Test in Front of the Jury (I stole this from Bubba Head.) "With the black marker, please draw the roadway and all crossing streets, plus the lane configuration, including a North arrow. Then, draw my client's car in blue, using an arrow to show which way it was facing. Then, put all police vehicles in red, also with a red arrow indicating which way the cars were facing. Finally, use the green pen to draw the location of the field tests, including use of arrows in green to show where and how the field tests were oriented. Mark all street names in red, and draw and label for the jury any adjacent businesses or residences in blue." Never once has one been able to do this without major errors or asking for a repeat of the instructions. CROSS EXAMINATION- ARRESTING OFFICER 1. POLICE REPORT a. You wrote an arrest report. b. When did you complete it? c. Took notes. d. You destroyed your notes. e. If there are some mistakes, you can you use the following questios to marry the cop to the report. Below you will find a copy of a DMV transcript wherein I cross-examined a CHP officer. The cross-examination would be the same as if he was in court. 3

4 Using a short question style of cross-examination allows you to keep control of the witness and forces him or her to give you mostly yes and no answers. Of course, there are areas where you need to ask questions that require more than a yes or a no. For example, you may need to learn distances, time frames, or whether there were other witnesses. Cross-Examination/ Marrying cop to the report HO: Hearing Officer FP: Felipe Plascencia PO: CHP Officer Berg FP: I notice that you have something in your hand at this time. PO: Yes sir. FP: You have the entire arrest report before you. PO: Yes sir. FP: You have a four-page document which is page one of three of your DUI investigation report and your checklist. PO: Yes sir. FP: You have something else in your hand. PO: Another report. FP: Oh, okay, unrelated. And in that report you have one through five with the checklist. PO: Yes sir. FP: I am going to ask you at this time to turn them over. PO: Ok. FP: If you need to refer to them I will ask you if you would like to reflect your recollection. At this time we want you to testify from memory. PO: All right. 4

5 FP: You went to the academy. PO: Yes sir. FP: Six months. PO: Yes sir. FP: 40 hours of DUI training. PO: Yes sir. FP: About a week. PO: Yes. FP: Out of the 40 hours, how many of the hours were dedicated specifically to FST s? PO: I would say approximately 20 hours sir. FP: How many hours specifically dedicated to pre-fst questions? PO: About ten hours sir. FP: How many hours were dedicated specifically to noticing or jotting down objective symptoms of intoxication? PO: Approximately 10 hours sir. FP: That takes us to forty. Is there anything else that you remember. PO: No. FP: Now, in the academy you took some important courses. PO: Yes sir. FP: Some more important that others. PO: Yes. FP: One of the courses was report writing. PO: Yes sir. 5

6 FP: That was a very important course. PO: Yes sir. FP: They taught you to write truthful reports. PO: Yes sir. FP: Accurate reports. PO: Yes sir. FP: Write them as soon as possible. PO: Yes sir. FP: And you know why that is right? PO: Yes sir. FP: Because you want to write stuff down when it is fresh in your mind. PO: Yes sir. FP: And if you don t do that you might have trouble remembering. PO: Yes sir. FP: And you knew that that report could be used either in court or that the DMV. PO: Yes sir. FP: That the Hearing Officer might rely on it. PO: Yes sir. FP: That a prosecutor might rely on it. PO: Yes sir. FP: The defense attorney may might rely on it. PO: Yes sir. FP: And you would need to rely on it to refresh your recollection. 6

7 PO: Yes sir. FP: And you were taught to put all the important information in the report. PO: Yes sir. FP: And when I say important information, it is the information that would establish the elements of the arrest. PO: Yes sir. FP: Because if you don t, you may be charged for making a false arrest. PO: Yes sir. FP: Now, in this case you wrote an arrest report. PO: Yes sir. FP: You also wrote a traffic collision report. PO: Yes sir. FP: And it is an official police report. PO: Yes sir. FP: And when I say report I am referring to both the arrest report and the traffic collision report. PO: Yes sir. FP: And if I am going to make a distinction, I will refer to one or the other so that we could understand what we are talking about, do you understand? PO: Yes sir. FP: Now lets talk about the reports in this case. FP: In this case, the report was truthful? PO: Yes sir. FP: Was accurate. 7

8 PO: Yes sir. FP: It contained all the relevant information. PO: Yes sir. FP: You wrote it right after it happened. PO: Yes sir. FP: Did you write it the same day within hours or one hour, two hour PO: The next day sir. Etc., etc., 8

9 After you marry him to the report, you can proceed with your cross examination. 2. DRIVING: a. WEAVING: i. You never asked him why he was weaving/swerving. ii. Did you know if changing the radio iii. Talking on the phone iv. Looking back at you which caused him to weave v. Talking to passengers vi. (only weaved 3 times in 2 miles? That is pretty good! vii. If weaving caused by alcohol, would expect consistent weaving. b. SPEEDING: i. You have ticketed many, many, many people for speeding. a. Rarely have been under the influence. ii. One reasonable interpretation is that the person was not focusing on speed. iii. Not in the top 20 clues for detecting under the influence of alcohol. iv. Not in NHTSA Manual or CHP manual v. Takes more skill to drive a car if speeding. c. REACTION TO LIGHS: i. Reacted to lights in a normal fashion. ii. Did not ignore your lights. iii. Began to slow down iv. Properly slowed down. v. Did not brake erratically vi. Exited freeway on first exit vii. Used his signal viii. Came to stop sign/red light. ix. Stopped properly x. Stopped behind the limit line xi. Properly accelerated xii. Pulled over adequately xiii. Did not hit the curb xiv. Did not park too far from the curb xv. Stopped just like a sober person would under similar circumstances. 3. FIRST CONTACT: a. Appeared to understand your questions. 9

10 b. You did not think he was under the influence when pulled him over. c. You still had doubt. 4. ODOR OF ALCOHOL: i. Smelled it right away ii. Was very strong iii. Could smell it from a couple feet iv. Smelled it on his breath v. Smelled it when he got out vi. Was strong when answering Pre-FST questions. vii. Was strong during FST s. viii. Was strong while inside patrol car. ix. Was still strong when inside station. x. STRONG ODOR USUALLY MEANS RECENT DRINKING. a. If Drank bear 3 hours ago, will hardly smell it. b. If drank beer 1 minute ago, will have a strong odor. c. Strong odor does not tell you how much they drank d. Only tells you they recently stopped drinking. b. Asked for license i. Reached for wallet ii. Got his wallet iii. Pulled out his wallet iv. Opened his wallet v. No difficulty grabbing his wallet vi. No difficulty opening his wallet vii. Pulled out his license. viii. Did not fumble through his wallet ix. Did not pull out a credit card or other cards. x. Properly pulled out his license. xi. Did not drop it on the floor board. xii. Properly handed you the license. c. Asked for his registration i. Got through same as above. d. Asked for his proof of insurance. i. Go through same as above. 5. EXITING CAR: a. He opened the door. b. Did not brace self with seat. c. Did not brace self with door. 10

11 d. Did not stagger out. e. Did not stumble out. f. Exited like a sober person would under similar circumstance. 6. SPEECH a. Never heard him speak before. b. Slightly slurred some words c. Which words did he slur? d. His speech was not slow. e. He did not mumble. f. Was not incoherent. g. Speech was not thick and heavy. h. You could understand everything he told you. i. He did not have to repeat his answers. j. Did you record his speech? k. No way of knowing for sure what his speech sounded like. 7. EYES a. If red eyes, say they were not blood shoot. b. If blood shot say: i. One reasonable interpretation is that were red bc late at night. ii. You heard of late night flights. iii. There they refer to them as a red eye bc people will have red eyes for being up late. iv. There are many reasons why eyes get red other than alcohol. 8. PUPILS a. Were not dilated. b. Normal in size. c. You can t control the size of your pupils. 9. UNSTEADY GAIT: a. when got out of car, you directed him to sidewalk. * He started walking. * Walked to the sidewalk. * He walked fine. 10. APPEARNCE: a. Face: i. No red face ii. Not flushed 11

12 iii. Not sweaty iv. Looked normal 11. FSTS a. Know difference between FST s and SFST s? i. SFST= a. Horizontal Gaze Nystagmus (HGN) b. Walk and Turn (WT) c. One Leg Stand (OLS) ii. FST s a. Romberg b. Finger Count c. Hand Pat d. Alphabet e. Finger to Nose 12. PRE FST QUESTIONS: i. DID NOT HAVE TO ANSWER ANY QUESTI0NS. ii. But he did. b. He appeared to understand all of your questions. c. He immediately responded to your questions. d. He gave you the corresponding answer to each and every question. e. WE CAN AGREE THAT HIS MENTAL ABILITIES APPEARED TO BE FINE. f. YOU DID NOT FORM THE OPINION THAT HE WAS UNDER THE INFLUENCE. g. YOU WERE LOOKING TO REACH THE LEVEL OF PROBABLE CAUSE TO ARREST. 13. DID NOT HAVE TO DO ANY FIELD SOBRIETY EXERCISES. a. But he did. You have to give the jury something that shows how ridiculous this FST are. The following questions can be used to drive the point home. 14. Do you have a driver s license? 15. You had to take a test to get one, just like everyone else. 16. You have to get 70% right. 17. Applicants have to take a driving test. 18. You took a driving test? 19. Where you required to stand on one foot before you got your license? 20. Did the DMV employee walk you to the car for the driving test? 21. Did you have to walk heel to toe to get to your car? 22. There were painted lines in the parking lot. 12

13 23. They did not have you walk heel to toe on the lines, right? 24. You were given an eye examination. 25. You had to look a chart. 26. They did not put a finger in front your face. 27. They did not move the finger back and forth. 28. They did not give you an HGN test. 29. You were given a written exam. 30. You were given a manual to study ahead of time. 31. You knew what you would be tested on. 32. When you gave Johnny the FST did you have him practice? 33. You gave him a bunch of instructions on each exercise at once. 34. You did not tell him what you were testing him on. 35. In fact, on the One Leg Stand you told him that if he put his foot down, he could pick it back up and continue counting. 36. But, you did not tell him that it would be used against him. 37. So, these FST s are not really tests, they are more like POP QUIZEZ. LETS TALK ABOUT THESE POP QUIZES FOR A MINUTE 38. HGN. 39. Can t fake angle of onset. How many inches was finger away from the face? 40. How many inches was tip of object moved to the side when angle was first seen? a. What is first thing you are suppose to do? i. (check for equal pupil tracking) ii. (equal pupil size) b. Check for lack of smooth pursuit i. (two seconds out and 2 seconds in, do it twice) c. Check for nystagmus at maximum deviation (exstremes) d. Check for Angle of onset prior to 45 degrees. i. You estimated the Angle? ii. Could have been at 45 degrees. (if at 45 degrees, your expert will say D is.05) e. This test is to confirm the presence of alcohol. f. He told you that he drank. g. You still did this. h. You did not believe him? i. There are many other causes of nystagmus. i. (see Schultz case attached p. last two pages of case) j. Marceline Burns declared not expert for HGN. k. HGN can occur at.04 or lower. i. (see State of New Mexico v. James Lasworth p. 8 and 9.) attached (see FST charts below) 13

14 HGN WALK AND TURN OLS ROMBERG FINGER TO NOSE HAND PAT. 14

15 HORIZONTAL GAZE NYSTAGMUS FINE - WRONG 1. STAND STRAIGHT 2. FEET TOGETHER 3. KEEP ARMS AT SIDE (NOT RAISE greater than 6 ) 4. KEEP HEAD STRAIGHT 5. DO NOT MOVE TRACKING 9. VERTICAL GAZE NYSTAGMUS SWAYS DURING YOUR HEAD 7. LOOK AT STIMULUS ONLY 8. HAS EQUAL PUPIL SIZE EQUAL PUPIL TEST 11. USES ARMS FOR BALANCE 12. LACK OF SMOOTH PURSUIT 13. STAGGERS OUT OF POSITION 14. NYSTAGMUST AT THE EXTREMES (50% OF POPULATION WILL SHOW SYMPTOMS WITH NO ALCOHOL IN THEIR SYSTEM.) 15. DOES NOT PAY ATTENTION DURING INSTRUCTIONS 16. STARTS TOO SOON 17. ANGLE OF ONSET VALIDITY WILL BE COMPROMISED IF NOT DONE IN A STANDARDIZED FASHION (NATIONAL HIGHWAY SAFETY ADMINISTRATION MANUAL) 15

16 WALK AND TURN TEST FINE - WRONG 1. STAND STILL 2. FEET TOGETHER 3. RIGHT FOOT OVER LEFT FOOT 4. HANDS TO YOUR SIDES DURING INSTRUCTIONS 5. KEEP ARMS AT SIDE 6. CAN T KEEP BALANCE DURING INSTRUCTIONS 7. WALK NINE STEPS FORWARD 8. WALK NINE STEPS BACK 9. MISSES HEEL TO TOE 10. SWAYS GREATER THAN 3 INCHES 11. RAISES ARMS FOR BALANCE 12. LOOSES BALANCE 13.COUNT EACH STEP OUT LOUD 14.STAGGERS OUT OF POSITION 15.TURN DONE IN SMALL STEPS 16.STEPS OFF LINE 17. TURNS IMPROPERLY 18. STOPS WHILE WALKING 16

17 ONE LEG STAND FINE - WRONG 1. STAND STRAIGHT 2. FEET TOGETHER 3. KEEP ARMS AT SIDE (NOT RAISE greater than 6 ) 4. STAND ON ONE LEG 5. KEEP OTHER LEG STRAIGHT 6. FOOT POINTED FORWARD 7. FOOT PARALLEL TO GROUND 8. LIFT APPROX 6 OFF THE GROUND 9. COUNT OUT LOUD IN THIS MANNER 1001, 1002 AND SO ON UNTIL I SAY STOP (30 SECONDS) 10. SWAYS WHILE BALANCING (GREATER THAN 2 ) 11. USES ARMS FOR BALANCE (RAISES GREATER THAN 6 ) 12. STAGGERS OUT OF POSITION 13. KEEPS PUTTING FOOT DOWN 14. LOOSES BALANCE 15. DOES NOT PAY ATTENTION DURING INSTRUCTIONS 16. HOPS 17. STARTS TOO SOON 18. SHUFFLES FEET 19.TEST STOPPED FOR SUBJECT S SAFETY 17

18 ROMBERG BALANCE FINE - WRONG 1. STAND STRAIGHT 2. FEET TOGETHER 3. HANDS TO YOUR SIDE 4. TIL HEAD BACK 5. CLOSE YOUR EYES 6. BRINGS HEAD FORWARD 7. COUNT SILENTLY IN YOUR HEAD 8. KEEP ARMS AT SIDE (NOT RAISE greater than 6 ) 9. ESTIMATE 30 SEC. - (can be 10 under or 10 over). 10.SWAYS GREATER THAN 2 INCHES 11.USES ARMS FOR BALANCE 12.LOOSES BALANCE 13.DOES NOT PAY ATTENTION DURING INSTRUCTIONS 14.STAGGERS OUT OF POSITION 15.STARTS TOO SOON 16.RIGID MUSCLE TONE 17.RAPID EYE LID FLUTTERS 18.UNDERSTANDS INSTRUCTIONS 19.TEST STOPPED FOR SUBJECT S SAFETY 18

19 FINGER TO NOSE FINE - WRONG 1. STAND STRAIGHT 2. FEET TOGETHER 3. TIL HEAD BACK 4. CLOSE YOUR EYES 5. KEEP ARMS AT SIDE 6. MAKE A FIST AND POINT WITH YOUR INDEX FINGER 7. TOUCH THE TIP OF NOSE SIX TIMES 8. SWAYS GREATER THAN 2 INCHES 9. USES ARMS FOR BALANCE 10. LOOSES BALANCE 11. DOES NOT PAY ATTENTION DURING INSTRUCTIONS 12.STAGGERS OUT OF POSITION 13.RIGID MUSCLE TONE 14..EYE LID FLUTTERS 15.USES WRONG HAND 16. STARTS TOO SOON 17.DOES NOT RETURN HAND 18.OPENS EYES 19.TEST SOPPED FOR SUBJECT S SAFETY 19

20 41. PAS TEST: a. It is only a field sobriety test. b. Tell us exactly what you told him. (could should say the following or close to it. i. V.C (i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person's obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person's blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person's right to refuse to take the preliminary alcohol screening test. c. Breath Machines measures Breath Alcohol not Blood Alcohol. (Ask your own expert this: Breath Machines overestimate true blood alcohol levels if breath test is done during the absorptive phase. And Retrograde extrapolation can only be used if you are 100% sure the test subject is in the post absorptive phase. 1. You used same mouth piece for both samples. a. (Suppose to change mouth piece after each sample on PAS) i. Why? BC can contaminate sample. 2. Does the PAS have a slope detector? 3. Do you know what it is? a. (Slope detector is designed to detect mouth alcohol). 4. How many minutes are you suppose to wait between samples? a. (have to wait two minutes between samples.) 5. Is that is the CHP manual and/or the PAS manual? 6. If have strong odor, must you be more careful with PAS. 7. There a grater chance of mouth alcohol? 8. What is a Thermister? i. (A thermistor in the manifold monitors breath flow and allows sampling of deep lung breath p7. of PAS manual) They usually do not know. Then I point out that it will read anything with alcohol such as wonder bread, bagels or pizza.) ii. The intoximeters manuals for the Alc Sens IV says: Intoximeters recommends that external accuracy checks and calibrations be performed using a dry gas standard approved for use by both NHTSA 20

21 and Intoximters. Alternatively, wet bath simulators which have been approved for use by NHTSA and Intoximters can be utilized with properly certified and maintained ethanol solutions."(p13) 9. Did you use a check list before administering the PAS? i. (Did cop use a check list. If one is required for Datamaster, why not use one for PAS. (I then say: You did not use one because this was not the real breath test required by law.) 42. Going to bathroom. a. Client did not go to bathroom from point of contact to time of booking. i. Alcohol is a diuretic increases need to go to the bathroom ii. If needed X amount of beers to be.17, then how could he avoid bathroom? 43. BREATH TEST a. Arrested Johnny. b. Put cuffs on him. c. Placed in inside patrol car. d. Closed the door. e. You got inside. f. Did not talk to him while driving. (See Manriquez case p. 16) i. Want to establish cop did not do proper observation) g. Entered police station. h. Parked car. i. You exited car j. Went to the trunk. k. Johnny inside car l. Doors were closed m. Windows were closed n. You put away your gun o. You were in the trunk area for about a minute p. You came back to the car. q. Opened door. r. Got Johnny out. s. He had no difficulty getting out t. No difficulty walking to station u. Was still in cuffs v. Went to breath testing room. w. You typed in some information. x. Gave him the breath test. y. Had him booked. You could have stapled your notes to your report. Instead, you destroyed your notes. 21

22 This case outlines procedures for the 15 minute observation period. Here, cop kept looking at subject through rear view mirror and kept talking to him. That is usually not done by cops CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA JAIME CORDOVA MANRIQUEZ, D Plaintiff and Respondent, v. (Super. Ct. No. GIC776015) STEVEN GOURLEY, as Director, etc., Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Thomas C. Hendrix, Judge. Reversed. Bill Lockyer, Attorney General, Dennis W. Dawson and Kathryn M. Megli, Deputy Attorneys General, for Defendant and Appellant. John T. Burke for Plaintiff and Respondent. The Department of Motor Vehicles (DMV) suspended Jaime Manriquez's driver's license for driving with 0.08 percent or more of alcohol in his blood. (Veh. Code, ) An administrative hearing officer upheld the suspension, determining the arresting officer complied with state regulations requiring a 15-minute period of continuous observation before administering a breath test (Cal. Code Regs., tit. 17, , hereafter regulation ).1 The trial court granted Manriquez's ensuing petition for writ of mandate on the ground the observation criterion was not satisfied. On appeal, the DMV 1 Regulation provides: "A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the 22

23 contends (1) the trial court erred by concluding the officer's observation of Manriquez did not comply with the regulation; and (2) even if the officer did not comply, Manriquez did not establish the violation resulted in an inaccurate test result. We conclude the trial court based its ruling on an incorrect interpretation of the regulation setting forth the continuous observation requirement and, as a result, erred by concluding Manriquez's evidence was sufficient to rebut the presumption the arresting officer properly performed the breath test. We therefore reverse the judgment. FACTUAL AND PROCEDURAL BACKGROUND At 12:01 a.m. on August 18, 2001, California Highway Patrol (CHP) Officer Timothy Fenton stopped Manriquez after noticing his Plymouth weaving in the number three lane of northbound Interstate 5. When he contacted Manriquez through the car's front passenger window, Officer Fenton observed indications of alcohol intoxication including bloodshot eyes and an odor of alcoholic beverage from the car's interior. Based on his administration of a series of field sobriety tests, the officer concluded Manriquez was under the influence of alcohol and at 12:17 a.m. arrested him for violation of Vehicle Code section 23152, subdivision (a). Officer Fenton transported Manriquez to the San Diego County jail where Manriquez took a breath test that showed blood alcohol level results of 0.11 at both 12:54 a.m. and 12:59 a.m. The officer issued an order suspending Manriquez's driver's license. Manriquez sought an administrative hearing at which the DMV offered, and the hearing officer admitted over hearsay objections, Officer Fenton's sworn statement in which he certified "under penalty of perjury under the laws of the State of California, that the above breath test sample results were obtained in the regular course of my duties" and he was "qualified to operate this equipment and that the test was administered pursuant to the requirements of Title 17 of the California Code of Regulations." The hearing officer also admitted, over the same objections, a precautionary checklist and results of the breath test, and Fenton's unsworn arrest/investigation report. At the hearing, Officer Fenton testified that about two minutes after he arrested Manriquez (approximately 12:19 a.m.), he placed him in the back of the patrol car, then called and waited for a tow truck. During that time, Officer Fenton remained in the patrol car, talking to Manriquez and doing paperwork. After Manriquez's car was released to the tow truck driver at 12:35 a.m., Officer Fenton drove Manriquez to the jail, where the breath test began at 12:51 a.m. According to Officer Fenton, before administering the test, he asked Manriquez if he had burped in the last 20 minutes; Manriquez responded he had not. The officer explained he conducted the required 15-minute observation period before the breath test while Manriquez was seated in his patrol car on the right side of the rear passenger seat; Officer Fenton talked to him and looked at him in his rear-view mirror as he was driving to the jail. Officer Fenton testified Manriquez did not eat, drink, smoke or vomit while in the patrol car. Manriquez presented the testimony of Ron Rockwell, a former deputy sheriff, who testified it was impossible for an officer driving a vehicle to continuously observe someone who was seated in the vehicle's back seat. Although Rockwell admitted he was not present at the scene and could not testify definitively whether Officer Fenton's observation satisfied state requirements, in Rockwell's opinion and experience, the right side of the back seat was the worst position for the 15- subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked." 23

24 minute viewing period. Rockwell testified that if he had been responsible for complying with the 15-minute rule, he would have "k[ept] an eye" on Manriquez for an additional 15-minute period after his arrival at the jail. Manriquez did not testify. The administrative hearing officer reimposed Manriquez's driver's license suspension. The hearing officer determined Officer Fenton had reasonable cause to believe Manriquez was driving a motor vehicle while under the influence of alcohol; that Manriquez was lawfully arrested for a violation of Vehicle Code section 23152; and he was driving a vehicle while he had 0.08 percent or more by weight of alcohol in his blood. In reaching its conclusions, the hearing officer noted the DMV's evidence contained a certification indicating the breath test was administered in compliance with title 17 of the California Code of Regulations, including the 15-minute observation rule. The hearing officer found Rockwell's testimony regarding the adequacy of Officer Fenton's 15-minute observation period was subjective, too speculative, and insufficient to rebut the statutory presumption of duty regularly performed. (Evid. Code, 664 ["It is presumed that official duty has been regularly performed"].) Manriquez petitioned the superior court for a writ of administrative mandate. He argued the hearing officer erred when she found Officer Fenton complied with the 15-minute observation requirement; that the official duty presumption was rebutted by Officer Fenton's testimony that he was driving the vehicle, which established it was "absolutely impossible" for him to have complied with the requirement. Manriquez argued that because the department did not meet its burden to establish the reliability of the breath test, the court was required to issue the writ of mandate and set aside the DMV's order suspending his driving privileges. The trial court found it was impossible for Officer Fenton to have continuously observed Manriquez in compliance with regulation and concluded, as a result, Manriquez had rebutted the presumption of duty regularly performed. It granted a writ overturning the administrative decision to suspend Manriquez's driving privilege. The DMV appeals. DISCUSSION I. Administrative Per Se Procedure and Standard of Appellate Review We begin with a brief overview of the burdens of proof in an administrative DMV hearing, which "does not require the full panoply of the Evidence Code provisions used in criminal and civil trials." (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1348.) In this hearing, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. (Veh. Code, 13557, subd. (b)(2)(c)(i), 13558, subd. (c)(2); Lake v. Reed (1997) 16 Cal.4th 448, 456, 463; Petricka v. Department of Motor Vehicles, at p. 1348, citing Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 549.) The DMV may satisfy its burden via the presumption of Evidence Code section 664. (Petricka v. Department of Motor Vehicles, at p ) "Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that bloodalcohol 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. [Citation.]" (Shannon v. Gourley (2002) 103 Cal.App.4th 60, ) With this presumption, the officer's sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test. (Davenport v. Department of Motor Vehicles (1992) 24