DMV Hearings: Challenging DUI Blood Test Procedure

In September 2020, in San Mateo County, at about 11:20 p.m., a CHP officer pulled over Ms. Savannah Phillips and later arrested her for DUI. The officer’s partner took Ms. Phillips to a facility in Burlingame and requested a phlebotomist for a blood draw.

A certified phlebotomy technician (CPT) named Yasmin Ramos, employed by Bay Area Phlebotomy and Laboratory Services, arrived and at 1:07 a.m., Ramos took a needle out of a sealed package, cleaned Ms. Phillips’ arm with a non-alcoholic antiseptic wipe, and drew two vials of blood from a vein in Ms. Phillips’ arm.

The San Mateo County lab measured Ms. Phillips’ blood alcohol content (BAC) at 0.110 percent, plus or minus 0.004 percent.

At Ms. Phillips’ DMV hearing, she called one witness, Salustiano Ribiero, the president and chief executive officer of Bay Area Phlebotomy and Laboratory Services, the company Ms. Ramos worked for.

Mr. Ribiero testified that Ms. Ramos was only a CPT, not a licensed physician or surgeon, registered nurse, licensed vocational nurse, licensed clinical laboratory scientist, licensed clinical laboratory bioanalyst, certified paramedic or licensed physician assistant. This was relevant because regulations concerning the collection of blood for the purposes of BAC tests require certain actions to be performed by such individuals. Vehicle Code § 23158(g), see also Vehicle Code § 23158(e), Title 17 § 1219.1(a).

Mr. Ribiero testified that Ms. Ramos’ conduct violated many regulations. First, a licensed physician and surgeon had not approved of the company’s policies and procedures that Ms. Ramos followed to draw blood. Title 17 § 1219.1(a) (requiring compliance with Vehicle Code § 23158(e)). Second, a qualified person had not reviewed and verified Ms. Ramos’ competency to draw blood for alcohol testing purposes before she was allowed to draw blood for those purposes without direct supervision, a violation of Vehicle Code §§ 23158(e), (g). Third, a qualified person had not reviewed and verified Ms. Ramos’ work at least once a month to ensure compliance with policies, procedures, and regulations. Id. Finally, no qualified individual was accessible for consultation within 30 minute when Ms. Ramos drew Ms. Phillips’ blood. Id.

The DMV did not contest any of these violations.

Ms. Phillips then argued at her DMV hearing that these four violations rebutted the presumption under Evidence Code § 664 that the collection of her blood was properly performed, making the blood test result inadmissible without some foundational evidence of scientific reliability.

The DMV hearing officer then rejected Ms. Phillips’ argument because Ms. Ramos was a certified phlebotomist and found a preponderance of the evidence supported all the required elements for suspending Ms. Phillips’ license.

Ms. Phillips then filed in the trial court a petition for review of the DMV order suspending her license, renewing her argument about the lack of foundational evidence of the reliability of the blood collection. The trial court denied the petition, concluding that even assuming Ms. Phillips had established the violations she alleged, Gerwig v. Gordon (2021) 61 Cal. App. 5th 59 had already concluded that such violations did not rebut the presumption that the blood test was properly performed.

Ms. Phillips the appealed the trial court’s order to the California Court of Appeal for the First Appellate District in San Francisco. She contended that she rebutted the Evidence Code § 664 presumption that the CPT drew her blood in a proper manner.

The First Appellate District agreed with Ms. Phillips that she rebutted the presumption of reliability, but affirmed the trial court order because evidence introduced at the hearing nonetheless established the reliability of the manner of collection of Ms. Phillips’ blood.

The court explained that under People v. Williams (2002) 28 Cal. 4th 408, 417, full compliance with Title 17 is not required and the People can obtain admission of evidence through other indicia of reliability. Here, the court agreed that the DMV “did not supply much foundational evidence here,” but noted that Ms. Phillips herself did so since she introduced an exhibit that contained several forms Ms. Ramos completed when she drew Ms. Phillips’ blood, including a checklist that she and the CHP officer initialed as successive steps in the process were completed, and certain records from her employer showing she had been a CPT for almost 12 years.

The First Appellate District, moreover, explained that Gerwig, supra, improperly treated supervision requirements as not relating to reliability issues, when clearly the Legislature created the CPT certification requirements because of concerns that training and certification may not sufficiently guarantee test reliability. Here, the CPT’s authority and duty pursuant to the statute was to draw blood only under supervision and pursuant to properly approved procedure. She did not do so, so the DMV could not rely upon the presumption that she properly performed her official duty. However, evidence otherwise established that the manner in which the blood was collected and tested was properly reliable.

We obviously do not like this opinion, but it does contain hints as to how a defense attorney could have presented Ms. Phillips’ case better. Specifically, a defense attorney need not introduce checklists, training records and anything that suggests the CPT is methodical, experienced and well trained. The expert could have probably testified to the same opinions without such documentation, which inadvertently helped lay a foundation for the DMV.