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A Forensic Blood Test Report Not Admissible in California unless "made at or near time of analysis"

Written by: George Fredrick Mueller

Reputation Level 14

Posted over 2 years ago. Applies to California, 1 helpful vote, 0 comments

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DMV may not circumvent the Evidence Code by attempting to rely on the Vehicle Code or Preliminary Alcohol Screening Test (PAS) results-Molenda v. DMV

DMV may not argue that it is error in excluding the lab report of blood test results because the report was admissible under Vehicle Code section 23612, subdivision (g)(2), which the DMV contends prevails over both Evidence Code section 1280 and Government Code section 11513, subdivision (d), the statute that governs the admissibility of hearsay evidence in administrative proceedings. DMV cannot argue that even if the Lab report was not admissible, the PAS test results were admissible and sufficient by themselves to establish a driver's blood alcohol level. The trial court excludes the PAS test results when the foundational facts necessary for their admission are not established. Citing Glatman v. Valverde (2006), courts also hold that the delay in preparing the report of the blood test results renders the Lab report inadmissible. Molenda (2009) 172 Cal.App.4th 974 concluded there was insufficient evidence to support the DMV’s finding that Molenda was driving with .08% BAC.

A 4 day delay between the time of draw and analysis fails to meet the official records exception to the hearsay rule (Force v. DMV filed 5/28/09)

A Forensic Alcohol Analysis report which stated that Force’s blood sample had been received on April 17 and thereafter found to contain .11 percent alcohol. The report read: DATE ANALYSIS COMPLETE: 4/24/2006 DATE OF REPORT: 4/28/2006 DAYS OF DELAY: 4 It was signed by Gregory L. Avilez, Senior Criminalist. The bottom of the report bore a stamp that had been signed by a DMV employee and dated May 17, 2006. This stamp read: “I certify, under the penalty of perjury, under the laws of the State of California, that this is a true and correct copy of the forensic laboratory report that I retrieved on the date indicated below from the Department of Justice Laboratory Information Management System (LIMS) data base [sic] system. Copy prepared at Department of Motor Vehicles, San Jose, California.” The attorney objected to admission of the report due to the fact that it was not prepared “at or near” the time of the analysis, citing Downer v. Zolin (1995) 34 Cal.App.4th.

A 6 day delay between the time of draw and analysis fails to meet the official records exception to the hearsay rule (Patterson v. DMV filed 5/28/09)

A Forensic Alcohol Analysis report stated Patterson’s blood sample had been received on December 4, 2006 and thereafter found to contain .13 percent alcohol. The report read: DATE ANALYSIS COMPLETE: 12/21/2006 DATE OF REPORT: 12/27/2006 DAYS OF DELAY: 6 It was signed by Erol Ergun, “Criminalist.” The bottom of the report bore a stamp that had been signed by a DMV employee and dated January 5, 2007. This stamp read: “I certify, under the penalty of perjury, under the laws of the State of California, that this is a true and correct copy of the forensic laboratory report that I retrieved on the date indicated below from the Department of Justice Laboratory Information Management System (LIMS) data base [sic] system. Copy prepared at Department of Motor Vehicles, San Jose, California.” The attorney objected to admission of the report due to the fact that it was not prepared “at or near” the time of the analysis, citing Downer v. Zolin (1995) 34 Cal.App.4th 578.

DMV also can no longer rely on People v. Martinez, a completely distinguishable computer printout prior conviction rape case

DMV must stop trying to rely on People v. Martinez (2000) 22 Cal.4th 106 (a child rape case where the California Supreme Court discussed the admissibility of computer printouts of prior convictions over hearsay objections, and the application of Evidence Code section 1280) to admit a blood test report which is otherwise not made at or near time of analysis and in violation of Downer v. Zolin, supra, Molenda v. DMV, and Glatman v. DMV: 1) People v. Martinez does not apply to chemical test documents at DMV hearings. 2) Martinez is factually distinguishable. 3) Different laws apply to blood test report cases at DMV hearings. 4) Laboratory records are subject to different standards. Molenda distinguished itself from Martinez and similar to Glatman. As in Glatman, there is no evidence the test result was entered into a computer database or recorded in any manner prior to the preparation of the written report, which was done one week after the analysis was completed.

A 6 day delay is a "danger of inaccuracy by lapse of memory" & "memory is subject to erosion with every day that passes" [Glatman v. Valverde (2006)]

In Glatman, the motorist’s blood sample was analyzed on July 25, 2005, and analyzed a second time a day later. (Glatman (2006) 146 Cal.App.4th 700, 702.) Both analysts signed the report, which was dated August 1, 2005, one week after the first test was done. The DMV argued that the analysts entered the test results into the lab’s computer database shortly after completing each test and that the preparation of the report one week later simply involved retrieving the data from the database. (Glatman, supra, 146 Cal.App.4th at p. 703.) The court disagreed and observed that the record was silent regarding the procedures that the analysts used to record their test results and there was no evidence that the test results were recorded in a computer database or anywhere else before the date the report was prepared. The court held the case presented a “ danger of inaccuracy by lapse of memory" and observed that “memory is subject to erosion with every day that passes.” (pp. 704-705)

Additional Resources

California's bible for DUI defense, authored by Ed Kuwatch, Paul Burglin and Barry Simons, the book features some of San Diego County attorney Rick Mueller's hard work and shows Rick's attack on these blood test cases: Section 11:218 Form 11-8 is Rick's Downer/Blood Test Motion verbatim.

Molenda v. DMV (7 day delay too long) (2009) 172 Cal.App.4th 974

Force v. DMV (4 day delay too long) (filed 5/28/09)

Patterson v. DMV (6 day delay too long) (filed 5/28/09)