Filed 2/26/98
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
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RICHARD MANNING, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. |
G016679 (Super. Ct. No. 722598) MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING; NO CHANGE IN JUDGMENT |
It is hereby ORDERED that the published opinion filed on February 11, 1998, is hereby modified as follows. On page 3, add the following footnote 3 at the end of the last sentence of the second full paragraph after the word "inadmissible":
"The Attorney General filed a petition for rehearing in which he asserts we misapplied the rebuttable presumption of Evidence Code section 664. That section provides, ‘It is presumed that official duty has been regularly performed.’ He insists that under section 664 the DMV is entitled to a rebuttable presumption that the forensic trainee was properly supervised in the absence of evidence to the contrary. But there is evidence, indeed substantial evidence, to the contrary.
"First, the computer printout itself shows the urine sample analyzed by the laboratory could not have been Manning’s. It would be a sad day indeed if, as the Attorney General seems to urge, the rebuttable presumption of Evidence Code section 664 could overcome a patently flawed test result and ascribe to one licensee the results of another licensee’s chemical test.
"Second, a trainee is not qualified to perform forensic analysis. While the regulations permit a supervised trainee, as part of his or her education, to perform forensic analysis (Cal. Code Regs., tit. 17, § 1216, subd. (a)(1)(A)), nothing in the regulations qualifies a trainee to vouch for the accuracy of the results. That remains the responsibility of a forensic analyst. Stated another way, a trainee has no official duty to report test results. Because a trainee has no official duty to report forensic test results, his or her test results are not entitled to the presumption that official duty was performed. (See Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 78-79 [presumption based on belief that public officer who has official duty to make an accurate statement will do so].)"
This modification does not effect a change in judgment. The petition for rehearing is DENIED.
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SILLS, P. J.
WE CONCUR:
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CROSBY, J.
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RYLAARSDAM, J.