Filed 2/11/98

Appeal from a judgment of the Superior Court of Orange County, David Rinaldi, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Daniel E. Lungren, Attorney General, Silvia M. Diaz, Dana T. Cartozian and David Tiede, Deputy Attorneys General, for Defendant and Appellant.

Virginia L. Landry for Plaintiff and Respondent.

* * *

Richard J. Manning was arrested for driving under the influence of alcohol and submitted to a urine test. The forensic report from the Orange County Sheriff-Coroner Department crime laboratory showed he had a blood alcohol concentration above the legal limit of 0.08 percent. Following an administrative per se hearing, the Department of Motor Vehicles (DMV) suspended his driving privilege for driving with a blood alcohol concentration in excess of the legal limit.

Lake held that "a forensic laboratory report need not be sworn as a condition of admission into evidence at an administrative per se review hearing. So long as the forensic laboratory report complies with other statutory requirements, it becomes an ‘official record’ of the DMV and, though unsworn, is admissible in the administrative review hearing . . . ." (Lake v. Reed, supra, 16 Cal.4th  at p. 467.) Lake stated that its "conclusion is consistent with the relaxation of evidentiary rules applicable in administrative hearings. A report prepared by a forensic laboratory properly licensed by the State of California (see tit. 17, Cal. Code Regs., § 1215 et seq.), though unsworn, ‘is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs’ (Gov. Code, § 11513, subd. (c)) . . . ." (Ibid.)

At the administrative per se hearing Manning objected to the admission of the forensic report on various evidentiary grounds. Relevant to this appeal, he pointed out that the first forensic test was supposedly performed by Debra Eck, a forensic alcohol supervisor, on October 25, 1993. However, the computer printout states the urine sample was not submitted to the laboratory until the following day, October 26. The DMV did not offer any evidence to rebut Manning’s claim, and thus the question is whether a forensic report, which discloses a patent physical impossibility on its face, "‘is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.’" (Lake v. Reed, supra, 16 Cal.4th  at p. 467.) We don’t think so. Even in the relaxed evidentiary world of administrative per se hearings, a forensic report must reflect some relationship with the physical world we know.

Manning then pointed out that a second test was performed several days later by a forensic alcohol analyst trainee, Qui Dang. A trainee is "a person employed by a forensic alcohol laboratory for the purpose of receiving comprehensive practical experience and instruction in the technical procedures of forensic alcohol analysis under the supervision of a forensic alcohol supervisor or forensic alcohol analyst." (Cal. Code Regs., tit. 17, § 1215.1, subd. (h).) While a forensic trainee "may perform forensic alcohol analysis" he or she may do so "only under the supervision of a forensic alcohol supervisor or forensic alcohol analyst." (Cal. Code Regs., tit. 17, § 1216, subd. (a)(1)(A).) Nothing in the forensic report submitted here indicates Dang was properly supervised when she performed the test. Consequently, she was not qualified to perform the test and her test results are also inadmissible.

Lake tells us that in driver’s license suspension cases, the reviewing courts should draw "all logical and reasonable inferences in the trial court’s favor." (Lake v. Reed, supra, 16 Cal.4th at p. 467, citation omitted.) The superior court found the forensic report to be inadmissible. Given that the forensic analyst signed a report stating she performed a forensic alcohol test before the urine sample ever made it to the laboratory, and the forensic trainee was not supervised when she performed her test, the court’s finding is amply supported by the record.

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

____________________________

SILLS, P. J.

WE CONCUR:

___________________________

CROSBY, J.

___________________________

RYLAARSDAM, J.