Morgenstern

The Department of Motor Vehicles (the DMV) suspended Darrell Morgenstern’s license to drive following his arrest for driving under the influence of alcohol (DUI) based on results of a breath test showing that his blood-alcohol concentration (BAG) was in excess of the legal limit. The superior court granted Morgenstern’s petition for writ of administrative mandamus and ordered the DMV to set aside its suspension order because the arresting officer failed to sign the portion of the sworn arrest report certifying that he obtained Morgenstern’s breath test samples in the regular course of his duties, that he was qualified to operate the equipment, and that he administered the test in accordance with applicable regulations. The DMV appeals, arguing Evidence Code section 664 creates a presumption that the officer properly administered the breath test with properly operating equipment, which presumption was not rebutted here, or alternatively, that the officer’s sworn testimony at the hearing was sufficient to establish the foundational requirements for the reliability of the test results. We agree that the statutory presumption applies and, even if it did not, the DMV’s…