Lauren Stallard vs Steve Gordon

Case Number

25CV02254

Case Type

Hearing Date / Time

Fri, 12/05/2025 - 10:00

Nature of Proceedings

Petition for Judicial Review

Tentative Ruling

For the reasons set forth below, petitioner Lauren Stallard’s petition for writ of administrative mandate is granted. The matter is remanded to the department of motor vehicles with instructions to vacate the order of suspension of Stallard’s driver’s license.

Background:

This action commenced on April 14, 2025, by the filing of the petition for writ of administrative mandate by petitioner Lauren Stallard against respondent Steve Gordon, Director, California Department of Motor Vehicles (DMV).

As alleged in the petition:

On August 9, 2024, at approximately 11:35 p.m. CHP Officer Martinez observed a grey Toyota truck traveling southbound on Carrillo Street near the northbound onramp to highway 101, in Santa Barbara. (Petition, ¶ 5 & Exh. A.) The Toyota was traveling without its headlights on so Martinez attempted to get in position to make as traffic enforcement stop. (Id. at ¶ 6 & Exh. A.) Martinez also observed the Toyota weaving within its lane. (Ibid.) Martinez activated his forward facing emergency lights and stopped the Toyota near Hope Avenue and Calle Real. (Ibid.)

Martinez contacted Stallard, who was driving the Toyota, and Stallard told Martinez that she had just left Elsie’s Tavern in downtown Santa Barbara, where she had only one beer at 6:30 p.m. (Petition, ¶ 7 & Exh. A.) During that contact, Martinez performed a cursory check of Stallard’s eyes, which revealed signs of possible impairment. (Ibid.)

Martinez asked Stallard several pre-field sobriety test (FST) questions and asked Stallard to submit to a standardized FST battery, including a test for horizontal gaze nystagmus, a “walk & turn,” a “one-leg stand,” and a preliminary alcohol screening (PAS). (Petition, ¶ 8 & Exh. A.)

During the PAS, Stallard provided two breath samples, with one at 11:54 p.m. showing blood alcohol content (BAC) results of 0.077 percent, and one at 11:56 p.m. showing BAC results of 0.081 percent. (Petition, ¶ 8 & Exh. A.)

Based on Stallard’s red/watery eyes, odor of an alcoholic beverage, unsteady gait, slurred speech, FST performance, PAS results, and driving, Martinez made the determination that Stallard had been operating a motor vehicle while under the influence of alcohol. (Petition, ¶ 9 & Exh. A.) At 11:57 p.m., Martinez arrested Stallard for violating Vehicle Code section 23152, subdivision (a) and told Stallard that she was required to submit to a chemical test of her blood or breath, and Stallard elected to submit to a breath test. (Id. at ¶ 10 & Exh. A.) Stallard provided two breath samples with both indicating BAC of 0.08 percent. (Ibid.) Martinez booked Stallard into Santa Barbara County Jail immediately thereafter. (Ibid.)

Following Stallard’s arrest, DMV revoked Stallard’s driving privilege. (Petition, ¶ 11 & Exh. B.) After Stallard requested an Administrative Per Se hearing (the “hearing”), DMV issued Stallard a temporary driver’s license and stayed its revocation of her driving privilege pending the hearing. (Id. at ¶ 12.)

On March 14, 2025, DMV driver safety hearing officer Kyle Rupp (“AHO” or “Rupp”) held the hearing to determine whether: (1) Martinez had reasonable cause to believe that Stallard had been driving a motor vehicle in violation of Vehicle Code sections 23136, 23140, 23152, 23153, or 23154; (2) Martinez lawfully arrested Stallard; and (3) Stallard was driving a motor vehicle with a BAC of 0.08 percent or more. (Petition, ¶ 13 & Exh. C.)

At the hearing, Rupp admitted into evidence Martinez’s sworn officer statement, Martinez’s investigative report, Stallard’s Drager Alcotest 7510 breath card analysis, and Stallard’s driving record. (Petition, ¶ 14.) Rupp also admitted a breath alcohol subject report, PEBT operator training record, Martinez’s certificate of training, PAS result 21200120, and allowed Ronald L. Moore, a forensic toxicologist, to testify on Stallard’s behalf. (Ibid.)

Moore has a B.S. in Biology, a J.D., and a M.S. in Forensic Toxicology. For 18 years, Moore was a Forensic Scientist with the Orange County Sheriff’s Department in Orange County, CA. During this time, Moore worked in Toxicology, Controlled Substances, Firearms & Toolmarks, and Crime Scene Investigation. When Moore retired, he was the supervisor of the crime lab’s Forensic Alcohol Section, which performed all the blood/urine alcohol analysis for Orange County. Moore has trained peace officers how to conduct both pre-arrest and post arrest breath alcohol testing. He has also testified in over 800 criminal trials and hundreds of DMV APS hearings on behalf of both the DMV and individual respondents. He is a standardized FST instructor and an Assistant Chromatography Instructor for the American Chemical Society. He also has over 20 publications in this field and has given over one-hundred legal and scientific conference presentations. (Petition, ¶ 15.)

Moore testified that based on his review of Martinez’s sworn officer’s statement, the investigative report, and Stallard’s PAS results, he believed that Stallard clearly had a BAC of less than 0.08 percent while operating her motor vehicle. (Petition, ¶ 16.)

Rupp questioned Moore and asked him to explain his reasoning for the opinion that Stallard had a BAC of less than 0.08 percent while operating her motor vehicle, and Moore replied: “[T]he way blood alcohol concentration typically works when you’re drinking is it goes up while you’re drinking, continues going up after you finish drinking until you reach a peak, and then you’re coming back down. So for it to go from a .07 to an .08, and then stay at an .08 indicates that you were on the way up, reaching a peak or about that same time, a little bit later, but you go .07, .08, and then because the agencies that you employ in this particular case don’t bother to keep the third digit on the evidential devices, which they’re perfectly capable of doing, we’re left not knowing if that third and fourth breath test could have been easily 0.089, which would clearly show they were going up. But we have to allow for that possibility. So, you’ve got at least a .07. And there’s, there’s no legal or scientific reason to believe the .07 versus the .08, one’s better than the other. They’re both equally good. And she blew an .07 at a time closer to the time of driving, and .08s at every time after that. So, I think it’s clear, both scientifically and reasonably—logically—that she was under 0.08 at the time prior to the PAS test. That’s how blood alcohol concentrations work.” (Petition, ¶ 17.)

Rupp asked Moore to explain the difference between a PAS test and an evidentiary test, and Moore explained that there was no difference between the two in this case. (Petition, ¶ 18.) Rupp asked Moore about the number of “clues” Stallard exhibited during each of the FSTs and Moore confirmed that the number of clues exhibited by Stallard was consistent with having a BAC over 0.08 percent. (Id. at ¶ 19.) During redirect examination, Moore opined that Stallard’s performance on the FSTs was not entitled to much weight “[b]ecause there are a variety of things that can cause someone to perform poorly on field sobriety tests, so you can’t conclude with the kind of certainty you can with the chemical test, whether that person’s over 0.08 or under. The chemical tests actually define for us what the person’s BAC is, and therefore we follow those. The field sobriety tests are there for an officer to decide whether to further the investigation or not. [He] furthered the investigation in this case, and got chemical test results that would tell us that she’s right on the bubble at the time that the PAS test goes on. But before that, she definitely would have been under because one of her past tests was under.” (Id. at ¶ 20.)

On March 17, 2025, DMV issued a notification of findings and decision wherein Rupp “determined that the preponderance of the evidence in this case supports that [Stallard] was driving a motor vehicle at the time that the concentration of alcohol in [her] blood was at or above 0.08%.” (Petition, ¶ 21 & Exh. C.) Rupp also noted that he gave “little weight” to Moore’s testimony because it was “too speculative to support the contention that [Stallard’s] BAC was below .08% at the time of driving.” (Ibid.) Based on Rupp’s findings, DMV reimposed its suspension of Stallard’s driving privilege. (Ibid.)

On July 10, 2025, DMV filed its response to the writ, essentially admitting all the “factual background” and hearing allegations contained in paragraphs 5 through 21.

Stallard, arguing that Rupp exhibited bias by taking an adversarial role and that the evidence does not support Rupp’s determination that Stallard was operating her vehicle with a BAC of at least 0.08 percent, seeks to set aside Stallard’s license suspension.

DMV opposes the writ, arguing that the DMV met its burden to demonstrate Stallard had a BAC of 0.08 percent or higher, that Moore failed to rebut that presumption, that circumstantial evidence supports the DMV’s findings, and that Rupp did not act as an advocate or with bias.

Analysis:

“[W]ithin 30 days of the issuance of the notice of determination of the department sustaining an order of suspension or revocation of the person’s privilege to operate a motor vehicle after the hearing pursuant to Section 13558, the person may file a petition for review of the order in the court of competent jurisdiction in the person’s county of residence. The filing of a petition for judicial review shall not stay the order of suspension or revocation. The review shall be on the record of the hearing and the court shall not consider other evidence. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence in the record, the court may order the department to rescind the order of suspension or revocation and return, or reissue a new license to, the person.” (Veh. Code, § 13559, subd. (a).)

The DMV issued its notification of findings and decision on March 17, 2025, and Stallard filed her writ on April 14, 2025. As such, the writ is timely.

“Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. (Code Civ. Proc., § 1094.5, subd. (a).)

“The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)

“Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).)

Both parties agree that the court exercises its independent judgment when ruling on the present writ.

            Reasonable Cause and Lawful Arrest

As noted above, the three determinations that were to be made at the hearing were whether: (1) Martinez had reasonable cause to believe that Stallard had been driving a motor vehicle in violation of Vehicle Code sections 23136, 23140, 23152, 23153, or 23154; (2) Martinez lawfully arrested Stallard; and (3) Stallard was driving a motor vehicle with a BAC of 0.08 percent or more. The DMV must prove all three factors by a preponderance of the evidence. (see Veh. Code, § 13557, subd. (b)(3).)

There is no dispute that DMV met its burden of establishing that Martinez had reasonable cause to believe that Stallard had been driving a motor vehicle in violation of the Vehicle Code and lawfully arrested Stallard. The only dispute here is whether DMV met its burden, by a preponderance of the evidence, that Stallard was driving her motor vehicle with a BAC of 0.08 percent or more.

            Moore’s Testimony as an Expert

DMV argues that there was no finding that Moore was an expert and therefore “his opinion carries no more weight than that of a lay person,” and that Stallard has waived her right to have Moore admitted as an expert. (Opp., p. 13, ll. 13-19.) DMV is incorrect in their assertion.

“[A] hearing under the Administrative Procedure Act (APA) “ ‘need not be conducted according to technical rules relating to evidence and witnesses,’ ” unless expressly required by the Act. [Citations.] In particular, the APA, unlike the Code of Civil Procedure, does not prohibit a witness from providing expert opinion testimony on the ground the proponent of the testimony did not timely exchange with the opposing party certain information about the witness. [Citation.] Instead, in administrative hearings “ ‘[a]ny relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.’ ” (Miller v. Department of Real Estate (2022) 84 Cal.App.5th 141, 154.)

At the hearing, Moore testified regarding his qualifications (AR 51-52) and his Curriculum Vitae is in the administrative record at pages 159-169. Moore is a highly qualified forensic toxicologist with decades of experience. He will be recognized as an expert in his field and, as such, will be permitted to express his expert opinions. Those opinions will be afforded the evidentiary weight that is appropriate.

            Bias or Unacceptable Risk of Bias

Stallard’s first argument is that AHO Rupp impermissibly acted as both advocate and adjudicator.

“In part, California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, 532–533 (DUI Lawyers) held that an administrative public hearing officer who acts as both an advocate and adjudicator violates a driver’s due process right to an impartial adjudicator. However, the issue of how to resolve a driver’s due process challenge to an APS hearing following DUI Lawyers has not been addressed by California courts. As we explain below, we conclude that to resolve such a challenge, it is first necessary to determine whether a particular driver’s due process right to an impartial adjudicator was violated. Consistent with DUI Lawyers, that determination is made by assessing the administrative record and the revocation decision to see if the public hearing officer actually acted as both an adjudicator and an advocate, or merely acted as an adjudicator and a collector and developer of evidence. If the relevant documents demonstrate that the public hearing officer did not act as an advocate, then the driver’s due process right to an impartial adjudicator was not violated, and the constitutional issue is resolved. If the relevant documents demonstrate that a public hearing officer actually acted as an advocate, then the driver’s due process right to an impartial adjudicator is violated.” (Knudsen v. Department of Motor Vehicles (2024) 101 Cal.App.5th 186, 193 (Knudsen).)

The requirement of an impartial adjudicator is violated if the adjudicator is actually biased or operates under a constitutionally intolerable probability of bias. (Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737; Knudsen, supra, at p. 198.) A violation of the due process right to an impartial adjudicator is a structural error that is not subject to a harm analysis. (Clarke v. Gordon (2024) 104 Cal.App.5th 1267, 1277 (Clarke); Knudsen, supra, at p. 206.)

Combining the roles of adjudicator and advocate into a single person is a violation of the due process right to an impartial adjudicator because it creates a constitutionally intolerable probability of bias. (Kazelka v. Department of Motor Vehicles (2025) 109 Cal.App.5th 1239, 1255 (Kazelka); Knudsen, supra, 101 Cal.App.5th at p. 199; DUI Lawyers, supra, 77 Cal.App.5th at p. 532.) Whether a hearing officer at an administrative per se hearing unconstitutionally acted as an advocate is determined by examining the record, hearing transcripts, and the hearing officer’s decision to see if the hearing officer engaged in advocacy. (Kazelka, supra, at p. 1255; Clarke, supra, 104 Cal.App.5th at p. 1275; Knudsen, supra, at pp. 206–207.)

At the hearing, Stallard’s counsel asked questions of Moore, including the following, and received the responses indicated (AR 50-54):

Q: “Thank you, Mr. Moore. How are you employed?”

A: “Private Forensic Toxicologist.”

[Moore then stated his qualifications, including relevant education, training experience, employment, research, publications, and history of testifying.]

Q: “And are you familiar with the [INAUDIBLE], the driving privileges of Lauren Stallard having to do with an event.”

A: “Yes, I am.”

Q: “OK. And do you have an opinion as to whether or not Miss Staller BAC level was- was at or below or above 0.08% or greater at the time of driving?”

A: “”I believe in this case that it’s clear that she was under point 0.08, at the time she was driving.”

Q: “And can you please state the basis for your opinion?”

A: “Having reviewed the police report, the D367 and the breath testing results from both the past and the evidential tests, as well as the calibration records for both instruments; I find that based on the .07 PAS test, followed by a 0.8 pass test followed by 0.8, evidential tests later on that it was clear in this case that she was under point at the time she was driving.”

Q: “OK. And I just wanna be clearer about what incident we’re talking about. Does this was this an August 9th incident in the occurring in Santa Barbara? Is that the incident you’re referring to?”

A: “Yes, it is.”

Following the questioning by Stallard’s counsel, AHO Rupp asked the following questions and received the following answers:

Q: “Now, as far as so you, you were looking at the- the- the PAS test that was given in at the .077 and a .081 for the- the other tests that you were looking at?”

A: “Yes.”

Q: “And as far as how do you, how do you indicate that she was below it with when we have three tests that are .08. All within a 10-minute time, within a 10-minute time frame?”

A: “Well, your two sets.”

Q: “I’m just, you know, roughly.”

A: “OK, well, let me refresh your memory. I’m sure you already heard this many- many times, but the way blood alcohol concentration typically works when you’re drinking as it goes up while you’re drinking continues going up after you finish drinking until you reach a peak and then you come back down. So, for it to go from an 07 to an 08 and then stay at an 08 indicates that you were on the way up reaching a peak for about that same time a little bit later, but you go 07/08. And then because the agencies that you employed in this particular case don’t bother to keep the 3rd digit on the eventual devices, which they’re perfectly capable of doing.

We’re left not knowing if that third the set of the 3rd and 4th breath tests could have been easily .089, which would clearly show they were going up. But you know we have to allow for that possibility. So, you’ve got at least a 07 and there’s- there’s no legal or scientific reason to believe the 07 versus the 08 ones better. The other, they’re both equally good, and she blew an 07 at a time closer to the time of driving and oh, eights and every time after that. So, I think it’s clear both scientifically and reasonably logically, that she was under .08 at the time prior to the PAS tests. That’s how breath alcohol concentrations work.”

Q: “Now this individual indicates that they haven’t drank any alcohol in almost 3 hours. Would somebody still be rising at the time, or would they be actually dropping them with their BAC?”

A: “Well, I have found in over 32 years of doing this that a lot of times people mistake their drinking patterns because she also didn’t have enough alcohol that she reported consuming to reach that blood alcohol level based on what she said she took. So, I generally tend to give people self-reported drinking patterns a little bit of suspicion and I prefer to rely on the valid scientific evidence that is in the department’s records.”

Q: “Is there a variance in with the breath test when- when you do, when you, when you do a test with those? Is there like a variance of a .01 or something in between samples often or?”

A: “Well, there is but DMV case law doesn’t allow us to consider that.”

Q: “What? What is? What is the stand? What? What’s the capability of- of a variance with the testing?”

A: “Well, you have to ask the individual manufacturers what they’re reporting. But typically, in my experience at a 99% confidence limit, we’d expect something around a .01. Which means her 07 could have been as low as an 06 something.”

Q: “And what could it be on the opposite direction?”

A: “An 08 something.”

. . .

Q: “I mean this would it be at .87 because it’s 0.77 or would it be in an 0.67? Is that what you’re talking about the variance?” [Note: This question and the corresponding answer have obvious typographical errors on the reporter’s transcript. For example, based on the context, the numbers should be .087, .077, and .067 respectively.]

A: “Well it could be an 0.[0]67. It could be an 0.[0]87, but as I said prior DMV case law says that the variance is not for consideration. We don’t give it any consideration because there’s not a reason for believing one side or the other of the variance. It’s plus or minus either side. Either side is equally likely. And therefore, you can’t, unless you have a demonstrated calibration bias. Decide which side to believe, so we generally accept the numbers for what they are, unless there’s some reason to adjust them for like I said, a calibration bias, which we’re not alleging in this case.”

Q: “What’s the difference between a PAS test and an evidentiary test? What’s the difference between those two?”

A: “Well, it’s primarily a legal difference. PAS tests fall under a different set or don’t actually fall under Title 17, whereas the evidential tests are required to have a 15-minute observation period required to have two tests with two-minute wait between them, to be on an instrument that’s on the conforming products list of the Federal Register. Now the SC20 is an instrument that’s on the Federal Register, and this test was done after 15 minutes of contact. And it did have two tests 2 minutes apart. So, the PAS test in this case seems to have qualified with all the things that Title 17 were required, even though it’s not required to.”

. . .

Q: “Sure. And now, as far as did you, did you review the field sobriety tests that that the individual conducted?”

A: “I did.”

Q: “Do you have any opinions on those as far as how- how they were performed?”

A: “Well, each of the tests exhibited the criteria that . . .”

Q: “What?”

A: “Are you gonna you let me finish?

Q: “Oh yeah, I was going to say, like the guys going to say and start off if you wanted to with the [Horizontal Gaze Nystagmus] H[G]N, because that’s the first one they had on the report.”

A: “OK. Yeah. H[G]N was 6 out of 6 clues consistent with the B[A]C over .[0]8/”

[More then testified that the FST results were consistent with having a BAC of 0.08 or higher.]

On redirect examination, Stallard’s counsel asked the following questions and received the following answers from Moore:

Q: “Let me just- let me just, follow up if I may, on that. You, Mr. Moore, as far as the [PAS] test goes and the field sobriety tests, which would you assign more weight in reaching your opinion?”

A: “Oh, definitely. It’s the chemical tests.”

Q: “Why is that?”

A: “Because there are a variety of things that can cause someone to perform poorly on field sobriety test, so you can’t conclude with the kind of certainty you can with the chemical test, whether that person’s over .08 or under. The chemical tests actually defined for us, what the person’s BAC is, and therefore we follow those and you know the- the- the fields of my tests are there for an officer to decide whether to further the investigation or not. We furthered the investigation in this case and got chemical test results to tell us that, you know, she’s right on the bubble at the time that the PAS test goes on, but before that she definitely would have been under because one of her PAS tests was under.”

Q: “And as far as grading of field sobriety test course, we’re not getting into the thick of that, but I mean, we’re talking about a- a degree of subjectivity that you would not necessarily see with a- an instrument like a- a breath instrument?”

A: “Right, there is quite a bit of subjectivity to the field [sobriety] test. There is the definition of objectivity in the chemical tests.”

As part of the findings and decision, AHO Rupp opined:

“Counsel contends: That [Stallard’s] BAC was below .08% at the time of driving. Determination: The contention is deemed without merit based on the following inference by the trier of fact: The testimony of R. Moore is too speculative to support the contention. Mr. Moore testified that [Stallard’s] performance on all the field sobriety tests conducted were consistent with a person over .08% BAC. Respondent completed a Preliminary Alcohol Screening Test (PAS). The PAS device is merely to detect alcohol presence. Mr. Moore stated he does not take into consideration respondent’s own admissions made that she had not consumed any alcohol in over 2 1/2 hours.” (AR 5) Rupp also found: “Little weight is given to the testimony of the respondent’s expert R. Moore in that: His testimony was too speculative to support the contention that the respondent’s BAC was below .08% at the time of driving.” (Ibid.)

AHO Rupp does not provide any reasonable explanation as to why he found Moore’s testimony “speculative.”

While there is no dispute that Rupp is permitted to ask witnesses follow-up questions, Stallard argues that the manner in which Rupp questioned Moore is what demonstrates that Rupp was acting as both advocate and adjudicator. The court agrees. Despite being told that a variance with the PAS device is something that cannot be taken into account at the hearing, because of current case law, Rupp continued to press Moore on the issue. And, in doing so, appeared to be most concerned with discrediting the results of the first PAS results of 0.077 percent, sometimes even becoming slightly combative. This, combined with the complete disregard of Moore’s testimony (the only witness), leads to the conclusion that Rupp violated Stallard’s Constitutional Due Process rights by acting as both advocate and adjudicator.

            Weight of the Evidence

“It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

“For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

“In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.” (Veh. Code, § 23152, subd. (b), italics added.)

“An administrative hearing in this context involves shifting burdens of proof. The DMV bears the initial burden of proving by a preponderance of the evidence that the licensee was driving with a blood-alcohol level of 0.08 percent or higher. [Citation.] “ ‘ “Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17,” ’ and the test results are presumptively valid.’ ” [Citation.] Thus, “ ‘the officer’s sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test.’ ” [Citation.]” (Delgado v. Department of Motor Vehicles (2020) 50 Cal.App.5th 572, 577.)

Here, there is no dispute that Stallard’s BAC test results showed that her BAC was 0.08 percent within three hours after driving. As such, there is a rebuttable presumption that Stallard was operating her vehicle in violation of Vehicle Code section 23152, subdivision (b). What Stallard argued at the hearing, through Moore, is that the first test having registered a BAC of 0.077, and subsequent tests registering a BAC of 0.081, 0.08, and 0.08, respectively, shows that at the time she was operating her motor vehicle she did not have a BAC of 0.08 or above. Moore adequately described the concept of rising blood alcohol level and there were no challenges to the accuracy of the PAS test. The basis of Moore’s testimony regarding rising blood alcohol was sound and has been accepted in many other cases. There was no evidence before Rupp that the results of the first test were inaccurate. The 0.077 PAS results are presumed correct, as is the reliability of the PAS test, because the results are included in the sworn officer statement of Martinez. (AR 8.)

DMV is correct that other, circumstantial, evidence may be considered when determining whether a person is operating a motor vehicle with a BAC of 0.08 or greater. As noted above, Martinez states in his report that he observed Stallard driving with her headlights off and weaving within her lane. (AR 17.) Upon pulling Stallard over, Martinez performed a “cursory check” of Stallard’s eyes and observed “signs of possible impairment (Lack of smooth pursuit.).” (AR 18.) Upon administering the FSTs, Martinez noted clues indicating intoxication. (AR 18-20.)

In support of its argument, DMV cites to Coffey v. Shiomoto (2015) 60 Cal.4^th 1198 (Coffey). Coffey is easily distinguishable from the present case. In Coffey, “at 1:32 in the morning, Sergeant Martin of the California Highway Patrol was traveling southbound on State Route 55 in Orange County when he saw a car traveling 60 miles per hour, swerving erratically from side to side. From the number four, or right-hand, lane, the car swerved one foot to the left into the number three lane before correcting. It then twice swerved one to two feet to the right, onto the highway’s shoulder. Sergeant Martin positioned his patrol vehicle behind the car and activated his emergency lights, whereupon the car slowly moved left across the highway into the number one lane. When Martin activated his siren, the car veered even further left, into the carpool lane. Only when Sergeant Martin used his public address system and directed the driver to pull to the right did the car eventually comply.” (Id. at p. 1203.) The driver first refused to perform a PAS (Id. at p. 1204), then she “chose to perform a breath test, although she failed several times to provide an adequate breath sample and had to be retested multiple times. At 2:28 a.m., 56 minutes after she was stopped by Sergeant Martin, her breath test registered a BAC of 0.08 percent. Three minutes later, at 2:31 a.m., her second breath test measured a BAC of 0.09 percent. Police then transported plaintiff to the Orange County jail, where she elected to have her blood drawn. The blood draw occurred at 2:55 a.m., one hour 23 minutes after plaintiff was pulled over by Sergeant Martin. The first test of the blood sample showed a BAC of 0.095 percent; the second measured 0.096 percent.” (Id. at p. 1205.) There was no BAC test in Coffey that showed results of less than 0.08 percent. Despite the test results showing that the driver in Coffey had a BAC of over 0.08 percent, she had an expert at her administrative hearing testify that the test results were “consistent” with the driver being below the 0.08 limit at the time of driving because of rising BAC. (Id. at p. 1205.) The hearing officer found the expert’s testimony speculative. The court agrees that in Coffey, without the benefit of any results showing a BAC of less than 0.08 percent, the opinion was speculative. There was no objective evidence for the expert to opine that the driver was below the limit. Here, that is not the case.

Even though Stallard’s driving and performance on the FSTs were consistent with having a BAC of 0.08 or greater, Moore provided logical, and credible, testimony that FSTs can be affected by several external factors and are much less reliable than a chemical test. A chemical test eliminates subjectivity in determining BAC. The PAS test, performed closest to the time that Stallard was driving, objectively shows, with no objectively verifiable evidence to the contrary, that Stallard was under 0.08 at the time of driving. This rebuttal to the Vehicle Code section 23152, subdivision (b) presumption, was not overcome by any other circumstantial evidence by a preponderance of the evidence.

Despite AHO Rupp stating that Moore was speculating, it appears as though it was Rupp himself that was speculating that the first PAS results were somehow inaccurate. There was no evidence presented that could support a conclusion that the first PAS results of 0.077 percent were anything other than accurate.

Because Stallard rebutted the presumption of having a BAC of 0.08 percent, or greater, at the time of operating her vehicle, her writ of mandate will be granted, and DMV will be directed to vacate its order of suspension. While DMV argues that the proper result would be to remand the case back to the DMV for a further hearing, the court does not deem that appropriate. The court has independently reviewed all the evidence and there is nothing more for the DMV to do, other than to vacate its order of suspension.

In rendering this decision, the court makes no determination as to whether Stallard was operating her vehicle in violation of Vehicle Code section 23152 for purposes of criminal prosecution or violated any other laws. The court’s decision is purely based on the burden of proof for DMV administrative hearings, the legal standards for the suspension of Stallard’s driver’s license, the evidence presented, findings that Rupp acted as both an advocate and adjudicator, and that the weight of the evidence supports Stallard’s position that she did not have a BAC of 0.08 percent, or above, while operating her vehicle.

“A finding by the court after a review pursuant to this section shall have no collateral estoppel effect on a subsequent criminal prosecution and does not preclude litigation of those same facts in the criminal proceeding.” (Veh. Code, § 13559, subd. (b).)