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Pre-Hearing Brief

The issue here is that the blood was taken by someone who did not work for the government. That may be important because DMV might try and just look at the report. You can argue that the report should not be admitted if they could have brought a witness and therefore the report is hearsay. They might rebut by saying, in essence, the report is legit because it is a "public record", problem is that you need a public employee for that to work. What I am saying is that it may be possible to get the blood test thrown out if the phlebotomist (person who took the blood) did not come to the hearing and he or she worked for a private company, like most hospitals. The more people required to attend a case the less likely someone wants to bring that case against you. Here is a potential pre hearing brief on the subject.

Dear Hearing Officer __________,

    This letter will confirm that the Department has pursuant to my client’s request for a copy of all exhibits to be introduced at the hearing, supplied 22 pages, including only the following: A driving record printout, a request for a hearing, an arrest/incident report, an officer’s statement (DS-367) and the chemical test result.

    If your records show that any additional documents will be relied upon or admitted at the hearing please supply a copy of the document or documents forthwith. If additional documents are supplied, please continue the hearing provided a stay of the suspension is also imposed.

    The licensee also submits Points and Authorities in support of objections to all evidence and exhibits presented by the Department.

    It is respectfully requested that the hearing officer make specific rulings on each of the issues raised in the Points and Authorities and to rule on the admissibility of all the evidence. Thank you for your continued courtesy and cooperation.

Points and Authorities: Summary of Issues

    Not a public employee. The Affidavit of the Phlebotomist is inadmissible under Government Code 11513(d) because it is hearsay and it would not be admissible over objection in a civil action because it does not satisfy the “official records exception” to Evidence Code 1280(a); specifically the writing was not made by and within the scope of a public employee.
One reason the Courts have consistently let hearsay admitted in an administrative hearing is whether the level of hearsay is a public record by a public employee.  Evidence Code section 1280 is very clear.  A writing must be made by a “public employee” while within his or her “scope of duty”.   Furman vs. DMV (2002) 100 Cal.App.4th 416, is directly on point.   

    The department has no evidence to establish that the author, the phlebotomist, of the lab report, titled “Affidavit Blood Sample,” in this case was “public employee” performing an “official duty”.  To find that she was a “public employee” performing her “official duty”, based upon the lab report, is clearly wrong.  There is no evidence to suggest she is a public employee. There is no evidence to suggest that this Hospital is anything other than a private business. Also, the Department cannot conclude, based upon the evidence, that there may be some agreement between a public agency and a private company to outsource the lab work for the California Highway Patrol or the Alameda County Sheriff’s Department.  First, the record is void of even inferential evidence to show some agreement, and even if there was an explicit agreement, there is no case that stands for the proposition that a private company employee is a defacto “public employee” performing her “official duty” under any section of the Evidence Code.
Wrong blood.

    The Affidavit of the Phlebotomist is inadmissible under Government Code 11513(c) because the sample of blood referred to in her affidavit was obtained a day before the licensee was arrested and therefore it is not the sort of evidence on which a responsible person would rely on in the conduct of serious affairs.

    It appears from the evidence that a clinical laboratory phlebotomist at some Hospital, collected a blood sample on Friday and claimed it was the licensees but it appears from the evidence that she did not collect blood from the licensee until 24 hours later on Saturday.

    Government Code 11513(c) states “The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any 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 matters.”

    As stated above, the affidavit of the phlebotomist is hearsay and it does not fall within the “official records” exception because she was not a public employee. Due to the fact that there is a glaring inconsistency in the report it may not be relied upon by any responsible person because this is such a serious affair. The phlebotomist affidavit states that she took blood from the licensee at a time when that was impossible because he was not arrested yet; either she transcribed the date wrong or she got the name wrong; either way, this is no longer reliable. When the licensee can go to jail it is important to get the evidence right. Our contention is that the blood that was taken was from another person.

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