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May 7, 2008

Baker v. Gourley (2002) , Cal.App.4th


John Baker was arrested for drunk driving and had his driver’s license
suspended. He challenged the suspension in an administrative hearing
conducted by the DMV. At the hearing Baker presented uncontroverted
evidence that the Orange County crime lab which analyzed his blood
sample had not complied with state regulations requiring such labs to
have new alcohol testing procedures on file with the state Department
of Health Services. fn. 1 The new procedures used by the lab involved
a larger glass vial and more sodium fluoride as a preservative. At the
administrative hearing, there was uncontroverted expert testimony to
the effect that the combination could result in a false high. The DMV
did nothing to show that the test was otherwise reliable. Even so, the
DMV refused to reinstate Baker’s license.

Baker then sought relief in the trial court. He brought a petition for
a writ of mandate, seeking an order requiring the reinstatement of the
license. The petition was denied by the trial judge, based on
circumstantial evidence other than the suspect blood test.
Specifically, at the time of his arrest Baker had exhibited an
unsteady gait, bloodshot eyes, slurred speech, a smell of alcohol, and
there was a port wine stain on his clothing.

This non-chemical test evidence is important because, given the crime
lab’s failure to comply with the state regulations, the burden then
shifted to the DMV to show that the test was still reliable. (See
Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133 ,
144 [“If the licensee shows . . . that official standards were in any
respect not observed, the burden shifts to the [DMV] to prove that the
test was reliable despite the violation.”].) Having failed to carry
that burden, the upshot is that the DMV had no substantial evidence
with which to conclude that Baker’s blood alcohol level was .08
percent or greater at a time while he was driving.

That is, unless the unsteady gait, the bloodshot eyes, the slurred
speech, the odor of alcohol and the wine stain could, by themselves ,
suffice to establish that Baker had .08 or greater blood-alcohol while
he was driving.

The case thus quickly devolves to this question: Can a given amount of
blood-alcohol level be established without a valid chemical test by
evidence of behavior or indicia typically associated with
intoxication, such as, like here, slurred speech, bloodshot eyes, or
an unsteady gait? The DMV claims that McKinney v. Department of Motor
Vehicles (1992) 5 Cal.App.4th 519 and Jackson v. Department of Motor
Vehicles (1994) 22 Cal.App.4th 730 provide an affirmative answer to
the question.

No. They don’t. There is language in both cases which can be read for
the proposition that circumstantial evidence apart from a chemical
test might establish a given blood-alcohol level, but that language is
not only dicta, but unsupported dicta. In the Jackson case, in fact,
one of the authorities cited by the court would require the opposite


The McKinney case arose out of the “sloppy draftsmanship” of a DMV
form used by arresting officers. (See McKinney, supra , 5 Cal.App.4th
at p. 523.) The form merely asked the officer to say that at such and
such a date and time, he or she “had reasonable cause to believe” that
a certain driver “was arrested” for driving under the influence. (
Ibid .) The court noted that by focusing on the time of the arrest ,
the form omitted any material as to the time the motorist was driving
under the influence. As the McKinney court pointed out, the form was
illogical: An arresting officer certainly knows when he or she made
the arrest. (See ibid .) What the form should have asked the officer
to state is that at such and such a time, the officer had “reasonable
cause to believe the driver ‘was’ driving under the influence of
alcohol.” ( Id . at p. 524.)

Seizing on the deficiency of the form, the arrested motorist in
McKinney argued that there was no evidence that his blood alcohol
level was .08 at the time he was driving , even though a subsequent
chemical test, an intoxilyzer, conducted less than an hour and
one-half later, showed two blood alcohol readings of .128 and .129. (
McKinney, supra , 5 Cal.App.4th at pp. 521-522.)

Most of the opinion was taken up establishing the point that the DMV
hearing officer could validly infer from the motorist’s condition at
the time of his arrest that he had more than .08 alcohol in his blood
at the time he was driving . (See McKinney, supra , 5 Cal.App.4th at
pp. 523-524.) The second part of the opinion tackled the issue of
whether the DMV had the burden of establishing the admissibility of
the chemical test under the “Kelly-Frye” standard. (See id . at p.

The passage which supports the DMV’s position here is found in the
third part of the opinion in the last substantive paragraph. (See
McKinney, supra , 5 Cal.App.4th at p. 526.) There, the court noted
that one of the elements necessary for the suspension of the license
is that the motorist’s blood alcohol level be at least .08. The court
then declared, without further analysis, that the element was
“abundantly established, both by the breathalyzer test readings and
the arresting officer’s personal observations.” ( Ibid .)

The declaration would be have nothing more than an ipse dixit had the
court not appended to it a three-paragraph footnote. The footnote
began with this one-sentence paragraph: “While a chemical test result
is usually relied upon by the hearing officer as decisive, we point
out that it is not the only means of establishing that a driver’s BAL
was .08 or more.” ( McKinney, supra , 5 Cal.App.4th at p. 526, fn. 6.)

Next followed this sentence, impliedly offered as support for the
preceding sentence: “As our Supreme Court has noted, what the
Legislature has prohibited is driving a vehicle with a blood-alcohol
rate over the prescribed limit, not driving when a chemical test shows
it to be over the limit.” ( Ibid ., original emphasis.) That
statement, of course, is otherwise unremarkable.

The next sentence, however, then leapt to this conclusion: “Thus, both
parties are free to introduce circumstantial evidence bearing on
whether the driver’s BAL exceeded the permissible level.” ( McKinney,
supra , 5 Cal.App.4th at p. 526, fn. 6.) For this statement the
McKinney court cited Burg v. Municipal Court (1983) 35 Cal.3d 257 ,
266, footnote 10.

Burg was a Supreme Court tour de force opinion written in response to
a challenge to California’s having adopted the “‘Scandinavian model'”
of drunk driving law. (See Burg, supra , 35 Cal.3d at p. 263.)
California had recently defined its penal drunk driving law in terms
of having a certain blood alcohol level and the defendant in Burg
argued that the law was unconstitutionally vague. His theory was that
a motorist usually cannot know precisely how much alcohol is in his or
her blood. (See id . at p. 261.)

The Burg court, of course, rejected the defendant’s void-for-vagueness
idea. Footnote 10 in Burg , relied on by the McKinney court, was
itself the tag end of a passage the gravamen of which was a refutation
of the defendant’s contention that the state had unconstitutionally
created a presumption of guilt. (See Burg, supra , 35 Cal.3d at pp.
264-266.) The Burg court refuted the contention by saying, in the
text, that the prosecution still had to prove, at the time a motorist
was driving, his or her blood alcohol exceeded the defined amount. (
Id . at p. 265.) Footnote 10 was appended after that comment. ( Burg,
supr a, 35 Cal.3d at pp. 265-266, & p. 266, fn. 10.)

Burg footnote 10 opened with the point, noted above, that what the law
actually prohibits is driving with blood alcohol at or above a certain
point, not driving “when a subsequent test shows a level of 0.10 or

Then came the sentence that the McKinney court presumably relied on
for the proposition that “both parties are free to introduce
circumstantial evidence bearing on whether the driver’s BAL exceeded
the permissible level.” It read: “Circumstantial evidence will
generally be necessary to establish the requisite blood-alcohol level
called for by the statute.” ( Burg, supra , 35 Cal.3d at p. 266, fn.

However, the “circumstantial evidence” that the court was referring to
clearly contemplated chemical tests as well as other evidence. The
Burg court’s next sentence was: “A test for the proportion of alcohol
in the blood will, obviously, be the usual type of circumstantial
evidence, but of course the test is not conclusive: the defendant
remains free to challenge the accuracy of the test result , the manner
in which it was administered, and by whom. [Citations.]” ( Ibid .,
emphasis added.) The paragraph ended with a sentence that emphasized
the relationship between chemical test evidence and non-chemical test
evidence: “Of course, both parties may also adduce other
circumstantial evidence tending to establish that the defendant did or
did not have a 0.10 percent blood-alcohol level while driving.” (
Ibid. , emphasis added.)

That sentence, in turn, was supported by a citation to Fuenning v.
Superior Court (Ariz. 1983) 680 P.2d 121, 130. The passage from
Fuenning to which the Burg court referred was, however, not a
discussion of whether non-chemical test circumstantial evidence could
establish a given blood-alcohol level. Rather, the defendant in
Fuenning had argued that such circumstantial evidence was totally
irrelevant to a determination of blood-alcohol level. The Fuenning
court was determined to debunk that idea.

In that context, the Fuenning court had this to say (which it said in
the main text, not a footnote): “In each case in which a violation of
[the subsection of the statute precluding driving with .10 blood
alcohol] is charged, the state will present evidence of the test and
the issue will be whether the test results were an accurate
measurement of the defendant’s BAC at the time of arrest. Typically,
defendants will attack the margin of error, the conversion rate, the
calibration of the test instrument, the technique used by the
operator, the absorption and detoxification factors, etc. Evidence of
the defendant’s conduct and behavior — good or bad — will be
relevant to the jury’s determination of whether the test results are
an accurate measurement of alcohol concentration at the time of the
conduct charged.” ( Fuenning, supra , 680 P.2d at p. 130, emphasis

In short, Fuenning’s discussion was predicated on the existence of a
chemical test. The court simply rebutted the notion that the trier of
fact should be limited to the test.

Three conclusions necessarily emerge from our exploration of the
McKinney , its explanatory footnote, the authorities mentioned in that
footnote, and the authorities cited by those authorities. The first is
that the McKinney court never actually held that circumstantial
evidence absent a chemical test of some sort was sufficient to
establish a given blood alcohol level. The court was, strictly
speaking, only concerned with the question of whether non-chemical
test circumstantial evidence might be used to establish the perfectly
commonsense notion that if a driver had X amount of alcohol in his
blood at the time of his arrest, the driver also had X amount of
alcohol when he was driving. fn. 2

The next conclusion is that anything that the McKinney court said or
implied about the establishment of blood alcohol level in the absence
of a chemical test was unnecessary to the result, i.e., dicta. The
McKinney court needed only to have addressed whether such evidence
could corroborate a chemical test (which is an easy question — the
answer to that is obviously yes).

The third conclusion is that any dicta in McKinney concerning the
establishment of blood alcohol level in the absence of a chemical test
(e.g., that a chemical test “is not the only means of establishing
that a driver’s BAL was .08 or more”) was unsupported by the
authorities it cited. It is reasonably clear from both Burg and
Fuenning that their concern was also the obvious need to use
non-chemical test circumstantial evidence to corroborate or bolster
the accuracy of a chemical test. Neither case purported to hold or say
anything to the effect that a given blood alcohol level could be
established merely on the basis of circumstantial evidence without a
valid blood test.

The language in McKinney which might be read for the idea that
non-chemical test evidence alone will suffice is an example of the
tendency of ideas to become distorted when they are paraphrased from
one court to another. As we said in In re Marriage of Schaffer (1999)
69 Cal.App.4th 801 , 811, footnote 7: “Judges must always be aware of
the tendency of the common law to be like the child’s birthday game
where a few words are whispered into the ear of one person who then
repeats them to the next and so on until the words have made their way
round the table and it is finally discovered that they have been
mangled beyond all recognition.” McKinney didn’t exactly mangle Burg
and Fuenning , but loose language in the opinion would impliedly
extract from those cases a proposition that wasn’t in them.


Seventeen volumes of the California Appellate Reporter, Fourth Series
after McKinney , another division of the Court of Appeal handed down
Jackson v. Department of Motor Vehicles, supra , 22 Cal.App.4th 730 ,
which also contained a statement which might be read for the idea that
circumstantial evidence sans chemical test could suffice to establish
a proscribed blood alcohol level.

The Jackson case followed much the same pattern as McKinney . That is,
the motorist asserted there was insufficient evidence his blood level
was .08 or greater at the time he was driving . (See Jackson, supra ,
22 Cal.App.4th at pp. 740-741.) The contention was based on a one and
three-quarter-hour time lapse between the report of the accident
leading to the arrest (ironically, the motorist wasn’t at fault — he
had been rear-ended at a stoplight) and the actual administration of a
breath test yielding a .08 reading.

Given the additional, non-chemical test evidence of intoxication —
bloodshot watery eyes, slurred speech, odor of alcohol, unsteady gait
— the contention, said the court, was nonsense. (See Jackson, supra ,
22 Cal.App.4th at p. 741.)

Again, the court relied on the reasonable inferences to be drawn. The
test was performed less than two hours after the accident had been
reported, there was nothing to indicate that more than one hour had
elapsed from the actual time of the accident to the report of it, and
therefore the statutory presumption that a chemical test administered
within three hours “after the driving” shows the blood alcohol at the
time of driving (see Veh. Code, § 23152, subd. (b)) had gone
unrebutted, and it had therefore been established that the blood
alcohol at the time of driving was .08 or greater. ( Jackson, supra ,
22 Cal.App.4th at p. 741.)

Then, as in McKinney , came some dicta to bolster the conclusion. “We
also note,” said the Jackson court, “circumstantial evidence other
than chemical test results may properly be admitted to establish a
driver had the proscribed level of blood-alcohol at the time of the
offense.” ( Jackson, supra , 22 Cal.App.4th at p. 741.) For that
proposition, the Jackson court cited footnotes in three authorities:
footnote 10 in Burg , which we have already discussed, footnote 6 in
McKinney , which we have also already discussed, and footnote 7 in
Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809 , 817.

Imachi , ironically enough, not only didn’t support the proposition
for which it was cited, it went in the opposite direction. In Imachi ,
the breath test itself showed only a .07 reading. (See Imachi, supra ,
2 Cal.App.4th at p. 813.) There was no evidence that the motorist had
.08 alcohol or more in his blood, except for an officer’s supplemental
declaration “which reported test results showing a blood-alcohol
concentration of .08 percent.” ( Id . at p. 812.)

That wasn’t enough, said the Imachi court. (See Imachi, supra , 2
Cal.App.4th at p. 817 [“The problem in the present case is that the
blood test results were put in evidence only through the hearsay
statement of the officer.”].) In the text the court ruled: The
“hearsay within the statement could not be the sole basis for the
suspension of the appellant’s driver’s license.” ( Id. , emphasis

It was its rejection of the officer’s hearsay as the “sole basis” for
suspension to which the Imachi court appended footnote 7, which the
Jackson court in turn cited for the proposition that “circumstantial
evidence other than chemical test results may properly be admitted to
establish a driver had the proscribed level of blood-alcohol at the
time of the offense.” ( Jackson, supra , 22 Cal.App.4th at p. 741.)

But Imachi footnote 7 said no such thing. It began with this sentence:
” Respondent [the DMV] notes that circumstantial evidence other than
chemical test results is admissible to establish that a driver had the
proscribed level of blood alcohol at the time of the offense,” and
then cited the same footnote 10 in Burg cited by McKinney . ( Imachi,
supra , 2 Cal.App.4th at p. 817.)

Obviously that sentence doesn’t help the DMV’s position here. Every
first-week law student should be taught that restatements of
assertions by litigants within an opinion do not represent the
deliberative process of the court.

Imachi footnote 7 next described the officer’s statement to the effect
the motorist had exhibited the usual symptoms (unsteady gait, watery
eyes etcetera). The court then juxtaposed the officer’s statement with
the next sentence, to the effect that the DMV was not contending the
disputed blood test was admissible on the theory that it was “only
used ‘for the purpose of supplementing or explaining other evidence.'”
The appellate court next stated: “Where, as here, an objective test
scientifically establishing the proscribed blood-alcohol level is
improperly considered, an appellate court cannot assume the trial
court did not rely solely upon it.” Given the statute precluding “sole
reliance on hearsay evidence” (i.e., Gov. Code, § 11513) and “the fact
that the test result was clearly the critical piece of evidence
establishing that appellant’s blood-alcohol concentration exceeded the
legal limit, no such contention would be persuasive.” ( Imachi, supra
, 2 Cal.App.4th at p. 817.)

While Imachi’s footnote 7 is perhaps not the easiest legal writing to
follow, basically it made the point that if the DMV had argued that
reliance on the officer’s statement was permissible to show .08
blood-alcohol, it would have lost.

The same conclusions emerge from our analysis of Jackson that emerged
from our analysis of McKinney . First, Jackson’s statement that
“circumstantial evidence other than chemical test results may properly
be admitted to establish a driver had the proscribed level of
blood-alcohol at the time of the offense,” was not as tightly written
as the court might have wanted: The Jackson court was focused, like
the McKinney court, on the question of whether a blood alcohol test
administered sometime after arrest could properly show a given blood
alcohol level while driving. ( Of course non-chemical test evidence is
available on that point, because it is a reasonable inference that a
driver who is acting drunk at the time of arrest has a higher blood
alcohol at that time than at the time of the actual administration of
the chemical test.)

Second, to the degree that the statement is construed to mean that
non-chemical test evidence can alone support a blood-alcohol
concentration, it was dicta. Jackson was never required to confront
that question.

Third, to the degree that the statement is construed to mean that
non-chemical test evidence can alone support a blood-alcohol
concentration, it was unsupported dicta. The citation to the McKinney
footnote was only as strong as the McKinney footnote itself, the Burg
footnote did not say that at all, and the Imachi footnote actually
went in the opposite direction.

Thinking Through the Problem

Neither McKinney nor Jackson directly confronted the problem of
whether circumstantial evidence without a valid chemical test could
support a finding that a motorist was driving with a given alcohol
level. Imachi came the closest to directly addressing the issue,
because the case involved no valid chemical test, only an officer’s
hearsay statement of what he thought the test result was. Most telling
there, the motorist won.

Here, Baker’s license was suspended under the so-called Admin Per Se
law (Veh. Code, § 13353.2), and the whole point of that law is the
“per se” part. It is focused entirely on blood-alcohol level. Section
13353.2, subdivision (a) provides: “The department shall immediately
suspend the privilege of any person to operate a motor vehicle for any
one of the following reasons” and then follows only two reasons: “(1)
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,” and “(2)
The person was under 21 years of age and had a blood-alcohol
concentration of 0.01 percent or greater, as measured by a preliminary
alcohol screening test, or other chemical test.” Missing among the
listed reasons is substantive intoxication, independent of
blood-alcohol level, as is provided for in the criminal drunk driving
laws. (Cf. Veh. Code, § 23152, subd. (a) [“It is unlawful for any
person who is under the influence of any alcoholic beverage or drug,
or under the combined influence of any alcoholic beverage and drug, to
drive a vehicle.”].)

Because the admin per se law is wholly pegged to a given blood-alcohol
level, it follows that circumstantial evidence without a valid
chemical test is insufficient to suspend a license. After all, the
usual symptoms of substantive intoxication — slurred speech, blood
shot eyes, etcetera — can manifest themselves at a blood-alcohol
level below .08. (See Burg, supra , 35 Cal.3d at pp. 267-268 [noting
that vision and reaction time impairments can occur below a .08
blood-alcohol level].) We are aware of no body of scientific evidence
to the effect that such symptoms as slurred speech, bloodshot eyes, or
even port wine stains, automatically correlate with .08 or greater
blood-alcohol. In fact, as contact lens wearers know, bloodshot eyes
may have nothing to do with drinking. Thus to allow such symptoms to
establish a blood alcohol level without a valid chemical test is to
add to the admin per se statute what isn’t there. (See Code Civ.
Proc., § 1859 [judges are not to add or subtract to statutes].)

The trial court therefore erred in concluding the DMV had sufficient
evidence to suspend Baker’s license based only on the evidence of
substantive intoxication in the face of the department’s failure to
carry its burden of demonstrating that the blood test was reliable.

The judgment of the trial court in denying the requested writ of
mandate is therefore reversed, with directions to enter a new order
granting the requested writ. Baker shall also recover his costs on

Given that there was evidence of substantive intoxication, however, it
would be unseemly, as we have concluded in similar cases, to sanction
the DMV for presenting a frivolous defense. Any reasonable attorney
could easily have gotten lost in the labyrinth of footnotes concealed
within the McKinney and Jackson dicta.

O’Leary, J., and Aronson, J., concurred.

­ FN 1. Section 1220 of Title 17 of the California Code of Regulations
states in pertinent part, “(a) All laboratory methods used for
forensic alcohol analysis shall be subject to standards set forth in
this Article. [¶] (b) Each licensed forensic alcohol laboratory shall
have on file with the Department [of Health Services] detailed,
up-to-date written descriptions of each method it uses for forensic
alcohol analysis.” It is not clear whether this regulation impliedly
requires approval of any new testing procedures, but that issue is
outside the purview of this opinion.

­ FN 2. A corollary to this commonsense point is that non-chemical
test circumstantial evidence can shed light on whether the margin of
error in a chemical test makes any difference. (See People v. Randolph
(1989) 213 Cal.App.3d Supp. 1, 5-8 (such evidence was available to
refute idea that a test reading of .10, when that was the limit, did
not show actual .10 blood-alcohol given a margin of error of 0.010

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