Expert Testimony Rebuts Presumption of Regulatory Compliance

Expert testimony attacking the scientific validity of evidence can rebut the presumption of regulatory compliance enjoyed by governmental bodies with statutory protections, the California Court of Appeal, 5th District, has ruled, reversing the trial court. 

In Freitas v. Shiomoto (Cal. Ct. App., 5th D., Sept. 14, 2016), the California Department of Motor Vehicles (DMV), suspended Joseph Freitas' drivers license after he was found to have been driving with a blood alcohol concentration (BAC) of 0.08% or more.

The suspension was upheld after an administrative hearing, and the trial court denied his petition to overturn the administrative ruling, based on the court's rejection of the expert witness testimony of Janine Arvizu, a chemist and a drug and alcohol testing expert witness.

At trial, Arvizu testified that the reported BAC results from the Kern Regional Crime Laboratory were based on data from only one column of the gas chromatograph, while the scientific standard required using both the first and second column to ensure valid results. While the crime lab setup the gas chromatograph with both columns and data from both columns was recorded and provided to Arvizu in discovery, the DMV provided no evidence that the data from the second column was used by the lab in its results.

The trial court ruled that Arvizu's evidence must be wrong because the consequence of accepting it would be that single-column gas chromatography would never be acceptable, even though, in the trial court found that the lab strictly complied with the applicable regulations.

The appellate court determined that opinion to be an error in the trial court's understanding of the regulations and Arvizu's testimony. Under the California Code of Regulations (Calif. Code Regs, tit. 17), the recorded BAC test results are presumed valid and "the DMV is not required to present additional foundational evidence." After the DMV has submitted the official test results, the burden of proof shifts to the driver to demonstrate that the test was not properly performed. If the driver does this, then the burden shifts back to the DMV to show that the results are reliable despite the facts presented by the driver.

If Arvizu's testimony was correct, the appellate court reasoned, then it established that single-column gas chromatography is not capable of determining the presence or the concentration of blood alcohol. Thus, single-column gas chromatography is never valid and cannot comply with the regulations. The DMV did not attempt to rebut Arvizu's testimony and nothing in the trial record supported the trial court's rejection of that testimony. To assume the lab employed the second column data would be "sheer speculation," the appellate court found.

The DMV had argued that the data from the second column could have been used by Arvizu to determine whether it supported the lab's BAC result, and testified to that. Alternatively, the DMV argued, she could have independently tested Freitas' blood samples. According to the DMV, since she failed to do either, her opinion was unsupported.

The DMV further argued that the trial court was required to presume the Department of Health Services had correctly evaluated the lab and found it in compliance. The court could not rely on expert testimony to find that the method used was not, in reality, capable of valid blood alcohol analysis.

The appellate court disagreed, finding the DMV's position to be "a presumption too far." Arvizu's testimony shifted the burden of evidence to the DMV, and the DMV did not rebut it.

The appellate court reversed the trial court judgment and directed the trial court to issue a writ ordering the DMV to set aside its order suspending Freitas' drivers license.