Coffey

FACTS

On November 13, 2011, 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. Upon making contact with the driver of the vehicle, plaintiff Ashley Coffey, Sergeant Martin noticed her eyes were red and a strong odor of alcohol emanated from her car. Officer White arrived to provide backup and confirmed these observations. To both officers she denied having consumed any alcoholic beverages, offering the rather…

Concurring. — I write separately to clarify the limited way in which evidence of behavioral impairment was relevant in this case to determining whether the driver’s blood-alcohol concentration (BAC) was 0.08 percent or higher at the time of arrest.

“ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Evidence that a driver’s behavior is not impaired tends to prove that her BAC was below 0.08 percent because we can rationally surmise, given the Legislature’s choice of the 0.08 percent BAC threshold, that a BAC of 0.08 percent is associated with an unsafe degree of impairment. But the converse is not true. Absent foundational evidence, a driver’s impairment does not generally tend to show that her BAC was 0.08 percent or higher because we have no way of correlating a specific type or degree of impairment with a particular BAC in a close case. The fact that 0.08 percent BAC is a threshold associated with an unsafe degree of impairment does not imply that no impairment occurs below that threshold. Without evidence that correlates particular…

A California Highway Patrol officer stopped a car driven by plaintiff Ashley Jourdan Coffey after he observed her driving erratically. Four subsequent chemical tests revealed her blood-alcohol concentration (BAC) ranged from 0.08 to 0.096 percent. The officer then confiscated plaintiff’s driver’s license and served her with a notice that her license would be suspended pursuant to Vehicle Code section 13382. 1 In an administrative hearing to review the suspension, plaintiff’s expert witness opined that her BAC was rising at the time of the chemical tests, suggesting her BAC was below the 0.08 percent threshold at the time plaintiff was driving. Both the Department of Motor Vehicles (DMV) hearing officer and the trial court discounted the expert’s testimony in part by relying on arrest reports, which described the physical manifestations of plaintiff’s intoxication, such as her general appearance, erratic driving, poor performance on field sobriety tests, and the strong odor of alcohol she projected.

We decide in this case whether the trial court erred by considering, in addition to the results of breath and blood tests, other circumstantial evidence of intoxication to…