WRIT OF MANDATE HEARING
The Petition is DENIED.
Background
On February 8, 2025, Officer Fernandez observed that petitioner Brooke Gibson’s (“Petitioner’’) vehicle had a temporary license plate. (AR 003.) After conducting a record search, Officer Fernandez found that a permanent license plate had been assigned to the vehicle, justifying further investigation. (/d.) Officer Fernandez then observed Petitioner’s vehicle proceed through an intersection without stopping at a stop sign. (/d., AR 033.)
Petitioner was pulled over at 8:38 PM in Hercules, California. (AR 003.) Officer Miller was called to the scene to assist Officer Fernandez. (AR 034.) Officer Miller observed Petitioner and noted the odor of alcohol and the fact that Petitioner performed Field Sobriety Tests (FSTs) unsatisfactorily. (AR 003.)
When questioned about her alcohol consumption that evening, Petitioner admitted to consuming “a beer with her neighbor before she left her residence in San Anselmo.” (AR 026.) Officer Miller then administered FSTs on Petitioner, which she failed to successfully perform. (/d.) She failed to keep track of Officer Miller’s finger while he performed the Horizontal Gaze Nystagmus, despite affirming that she understood his directions. (/d.) Petitioner also failed to follow instructions while performing the walk and turn and one leg stand FSTs and moved her body in such a way as Officer Miller concluded she was intoxicated. (AR 026-028.)
Preliminary Alcohol Screening Tests (PAS) were conducted with results of 0.11% at 9:05 PM and 0.11% 9:10 PM. (AR 004, 010, 029.) After the PASs were conducted, Petitioner was arrested for driving while intoxicated. (AR 029.) Petitioner was placed in the back of the
officer’s vehicle. (d.) Next, Officer Miller inspected Petitioner’s vehicle. He “located a grocery bag on the passenger seat of the BMW. Inside the bag was a 19.2 fluid ounce can of Lagunitas IPA beer which was opened.” (AR 30.) He photographed the beer. (/d.) He then removed the can from the bag to see how much of the beer had been consumed. “The beer can was approximately 25% full ... [and the] beer was 6.2% alcohol per volume.” (/d.)
The officer noted that the “grocery bag was not wet and none of the contents inside the bag were wet, which meant none of the beer was spilled inside of the grocery bag.” Ud.) Officer Miller “recovered a receipt located in the grocery bag that shows the items were purchased on 02/08/2025 at 1950 hours, which was approximately 48 minutes prior to” the Petitioner being pulled over. (/d.) Petitioner told the officers at the time of her arrest that she had consumed cookies with the beer she drank with her neighbor and that she’d drank approximately 45 minutes to 1 hour before the stop. (AR 026.)
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At the police station, Petitioner completed a blood test with a result of 0.09% BAC at 10:28 PM. (AR 004, 014-017.)
Petitioner’s license was suspended, and she was informed of her right to appeal that suspension. (AR 012-13.) Petitioner timely appealed her suspension.
A hearing was held on June 19, 2025. (AR 003.) At the hearing, Petitioner testified that she “could have been finishing” dinner or “had just finished” dinner. (AR 049.) When asked what she ate, she responded that she “typically” makes rice, tofu, some kind of vegetable, etc., but did not clarify what she actually ate that evening. (/d.) Petitioner admitted to drinking one to two cans of beer and approximately ten to fifteen minutes later, driving to Safeway. (AR 050.) She then admitted to purchasing and consuming three quarters of a 20 oz beer at Safeway while her car was charging and prior to driving to Hercules, California. (AR 050-51.)
At the hearing, Petitioner offered expert testimony from forensic toxicologist, Stanley Dorrance, who utilized the Widmark Formula via computer calculations to conclude that Petitioner’s blood alcohol concentration at the time of driving was between 0.05% and 0.06%. (AR 052-55.) Mr. Dorrance obtained information from Petitioner about how much she ate and what she drank during the night in question, which he then used to make his calculations and come to his conclusions. (AR 053:19-25, 054:1-25; 055:1-8.) He opined that at the time she was stopped, her BAC would have been about.05 or.06% and then continued rising during the 30 minutes between then and when she was administered the PASs and the later blood sample. (AR 055:11- 25, 056:1-4.) He further stated that he agreed “with all of the chemical tests that have been performed.” (AR 056:7-8.)
On July 1, 2025, the Hearing Officer issued a written decision which found that the initial contact was lawful, the arrest was lawful, and that the “calculation or speculation as it relates to any BAC during the time of driving” did not overcome the presumption created by the timely blood test and therefore the Petitioner’s BAC was presumptively at.08% or higher at the time she was driving. (AR 003-4.) The suspension on Petitioner’s license was reinstated. (AR 003.)
Petitioner then filed this action, alleging that the Hearing Officer arbitrarily and capriciously, exceeded her authority, made an erroneous interpretation of the law, and made a determination
that is not supported by the evidence in the record. (Opening Brief, p. 6:5-8.) Specifically, Petitioner argues that the Hearing Officer erred in not finding Petitioner’s expert testimony sufficient to rebut the BAC presumption and that in failing to do so, the Hearing Officer was acting “as an advocate” for the DMV. (d., at p. 7:1-9.)
Legal Standard
Judicial review of a final decision or order of a DMV license suspension is governed by Vehicle Code section 13559(a) and Code of Civil Procedure section 1094.5.
Code of Civil Procedure section 1094.5, subdivision (a) vests authority in the court to review the validity of any final administrative order or decision made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal. The court's inquiry “shall extend to the questions of whether the respondent has proceeded without, or in excess of jurisdiction, whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” (Code Civ. Proc., §1094.5, subd. (b); Environmental Protection & info. Ctr. v. Cal. Dept of Forestry & Fire Protection (2008) 44 Cal.4th 459, 520-21.)
In matters involving the suspension or revocation of an individual's driving privileges, the trial court is required to determine based on its independent judgment whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456; Munro vy, Department of Motor Vehicles (2018) 21 Cal.App.5th 41, 46.) In exercising its independent judgment, the trial court makes its own determination whether the administrative findings were supported by the evidence. (Garcia v.
DMV (2010) 185 Cal.App.4th 73, 82.) The “trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (/bid.) The court's review is only of the administrative record, and no outside evidence. (Jbid.)
Discussion
The Hearing
Vehicle Code section 23152(b) states that “[i]t is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” According to Vehicle Code section 13353.2(a)(1), the DMV shall immediately suspend a person's driving privilege if “[t]he person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood.” Vehicle Code section 13557(b)(2) outlines the issues for an administrative review of an order of suspension or revocation: (1) whether the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154; (2) whether the person was placed under arrest or, if the alleged violation was of Section 23136, that the person was lawfully detained; and (3) whether the person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood.
During the administrative hearing, the Department has the burden of proving the facts necessary to support the suspension. (Daniels v. Dept. of Motor Vehicles (1983) 33 Cal.3d 532, 536.)
Vehicle Code section 23152(b) creates a rebuttable presumption that a person was driving with a BAC of.08 percent or higher if they are tested at that level or higher within three hours of driving. An explanation of how the presumption operates can be found in the Evidence Code. Section 601 provides: ““A presumption is either conclusive or rebuttable. Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof.” Vehicle Code section 23152, subdivision (b), by its terms, creates a rebuttable presumption affecting the burden of producing evidence, not the burden of proof. (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1209.)
A rebuttable presumption requires the trier of fact, given a showing of the preliminary fact (here, that a chemical test result showed Petitioner had a BAC of 0.08 percent or more within three hours of driving), to assume the existence of the presumed fact (here, that Petitioner was driving with a prohibited BAC) “unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Coffey, supra, citing Evid.
Code, § 604.) In other words, if evidence sufficient to negate the presumed fact is presented, the “presumption disappears” and “has no further effect,” although “inferences may nevertheless be drawn from the same circumstances that gave rise to the presumption in the first place” (Ud., 1209-10. Internal Citations Omitted.)
Petitioner’s Expert Failed to Rebut BAC Presumption
The only issue before this Court is whether it was established by a preponderance of the evidence that Petitioner drove with a BAC at or above.08. In this case, the results of the blood test administered to Petitioner establish a presumption that she was driving with a BAC of at least.08 percent and the burden thus shifts to Petitioner to rebut that presumption. (AR 004, 014-017.) She has failed to do so.
Neither the DMV nor the trial court is required to accept an expert’s testimony at face value. (Coffey, supra, 60 Cal.4"® at p. 1218.)
The Hearing Officer's Decision noted the speculative nature of Mr. Dorrance’s testimony. (AR 004.) This is supported by the record establishing that he relied on statements by Petitioner regarding the amount of alcohol she had consumed as well and the amount and type of food she had eaten that evening to generate his opinion. (AR 053:19-25, 054:1-25; 055:1-8.) Given the record of Petitioner’s changing statements regarding both of those items, including the contradictions between what she told the arresting officer, and her testimony at the administrative hearing, and apparent statements to Mr. Dorrance, it was logical to conclude that calculations relying on those changing statements were indeed questionable and speculative. Accordingly, the hearing officer concluded that Petitioner failed to rebut the presumption that she was driving with a BAC of at least.08 on the date in question.
This Court concurs. Mr. Dorrance’s opinions were based on the assumption that Petitioner truthfully recounted her alcohol consumption on the day in question and was therefore in the
absorptive phase of alcohol metabolism. (AR 053:19-25, 054:1-25; 055:1-8.) Petitioner’s testimony regarding the number of beers consumed, and when they were consumed, was materially inconsistent with her statements to officers at the time of the stop. (AR 049-51.) Similarly, her testimony regarding what she had eaten, and when, on the day in question, was also inconsistent with what she had told Officers at the time of the stop, in addition to being generalized and vague. As such, the Court agrees with the Hearing Officer's conclusion that the expert’s opinions assumed the truth of Petitioner’s revised version of events, and his testimony was therefore speculative and insufficient to rebut the presumption. The Hearing Officer’s conclusion regarding the speculative nature of Petitioner’s expert’s testimony does not indicate that the Officer was acting as an advocate for the DMV.
Further, even if Mr. Dorrance’s opinions were credited and the presumption disappeared, circumstantial evidence of Petitioner’s intoxication combined with the three test results were sufficient to establish by a preponderance of evidence that Petitioner’s BAC was at least.08 at the time she was stopped. (Coffey, supra, 60 Cal.4th at pp. 1216-1217.)
For example, when stopped, officers noted the smell of alcohol emanating from Petitioner. (AR 010, 025, 033.) The results of the field sobriety tests indicated difficulty in balance and following directions completely. (AR 026-28.) Such evidence bolstered and corroborated the results of the PASs and blood test. (AR 029-30.) Accordingly, the Court finds that the weight of the evidence presented at the administrative hearing supported the Department's Decision.
Based on the foregoing, the Petition is denied.
All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.
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