People v. Adams

• Decision Date: 28 June 1976
• Docket Number: Cr. 15259
• Citation: 131 Cal.Rptr. 190,59 Cal.App.3d 559
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Melba Rae ADAMS and Ray Ernest Adams, Defendants and Appellants.

Page 190

131 Cal.Rptr. 190

59 Cal.App.3d 559

PEOPLE of the State of California, Plaintiff and Respondent, v. Melba Rae ADAMS and Ray Ernest Adams, Defendants and Appellants.

Cr. 15259.

Court of Appeal, First District, Division 4, California.

June 28, 1976.

Hearing Denied Aug. 26, 1976.

Graham, Gordon & McFarlan, Kenneth S. McFarlan, San Rafael, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Charles R. B. Kirk, Deputy Atty. Gen., State of California, San Francisco, for plaintiff and respondent.

CALDECOTT, Presiding Justice.

The sole question presented by this appeal is whether the failure of the breath test to strictly comply with the calibration procedure of Aministrative Code section 1221.4(b) ¹ rendered the results of the test inadmissible in evidence against appellants, who were each charged with violation of Vehicle Code section 23102, subdivision (a). We conclude that it did not.

Breath tests to determine blood alcohol concentration have long been recognized by decisional law as scientifically valid in this state and elsewhere. (People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 421 P.2d 401; People v. Conterno, 170 Cal.App.2d Supp. 817, 823--825, 339 P.2d 968, and cases cited therein.) In general the foundational prerequisites for admissibility of testing results are that (1) the particular apparatus utilized was in proper working order, (2) the test used was properly administered, and (3) the operator was competent and qualified. (Cf. Lawrence v. City of Los Angeles, 53 Cal.App.2d 6, 8, 127 P.2d 931; see Donigan, Chemical Tests and the Law (2d ed. 1966) (passim); 2 Jones on Evidence (6th ed. 1972) § 14.37; Richardson, Modern Scientific Evidence (2d ed. 1974) §§ 13.10, 13.13a.)

Absent a controlling statute, the test results must be interpreted at the trial by an expert witness (Conterno, Supra, 170 Cal.App.2d Supp., at p. 824, 339 P.2d 968), under the general requirements for expert testimony. (Evid. Code, § 800 et seq.) However, California (and apparently all other states) has adopted statutory presumptions applicable to specified blood alcohol test results. (Veh. Code, § 23126.) Under the statute (added in 1969) 0.10 percent or more by weight of alcohol in the blood gives rise to the presumption that the person was under the influence of intoxicating liquor. (Veh. Code, § 23126, subd. (a)(3).)

Although breath tests for blood alcohol content were, as observed above, admissible by decisional law, in 1966, the Legislature enacted Vehicle Code section 13353, the so-called 'Implied Consent' law, which states in part: 'Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine . . ..' The courts have uniformly held that the enactment of this law does not affect the admissibility of the blood alcohol tests under earlier, established case law. (People v. Wren, 271 Cal.App.2d 788, 791--792, 76 Cal.Rptr. 673; People v. Fite, 267 Cal.App.2d 685, 690--691, 73 Cal.Rptr. 666; People v. Hanggi, 265 Cal.App.2d Supp. 969, 975, 70 Cal.Rptr. 540.)

In 1969, the Legislature added Chapter 5 of Division 1, Part 1, of the Health and Safety Code, sections 436.50 to 436.63. These sections primarily relate to promulgation of rules and regulations governing the testing by laboratories of alcohol concentration in the blood, and the licensing and control of laboratories performing such tests. Section 436.52 (as amended, effective July 1, 1973) states: 'The testing of breath samples by or for law enforcement agencies for purposes of determining the concentration of ethyl alcohol in the blood of persons involved in traffic accidents or in traffic violations shall be performed in accordance with regulations adopted by the State . . . Department of . . . Health.

'The rules and regulations shall establish the procedures to be used by law enforcement agencies in administering breath tests for the purposes of determining the concentration of ethyl alcohol in a person's blood. Such rules and regulations shall be adopted and published in accordance with the provisions of Chapter 4.5 (commencing with Section 11371) of Part 1 of Division 3 of Title 2 of the Government Code.' The 'shall' wording of the statute is clearly mandatory, according to the definition provided in the code itself. (Health & Saf. Code. § 16.)

Pursuant to this directive, the Department of health promulgated 'Requirements for Breath Alcohol Analysis.' (Admin.Code, tit. 17, §§ 1221--1221.5.) Section 1221 of these regulations states that '(t)he testing of breath samples by or for law enforcement agencies shall be performed in accordance with standards set forth in these regulations.' Various standards of performance are set forth in the ensuing sections. Section 1221.4 states: 'Procedures for breath alcohol analysis shall meet the following standards: (b) Maintenance of a breath testing instrument shall include the testing of unknown samples, either weekly or following every 100 tests of subjects, whichever comes sooner, by a usual operator of the instrument, and the reporting of the results to the licensed Forensic Alcohol Laboratory which maintains that instrument.'

It is undisputed in the present case that this last quoted provision was not adhered to by the laboratory. Appellants urge that, because the language of both Health and Safety Code section 436.52 and the Administrative Code sections are mandatory, noncompliance must result in exclusion of the test results from evidence. They contend that the calibration requirement goes to the essence of the substantive value of the tests, and that evidence taken in the absence of statutorily mandated safeguards is incompetent and highly prejudicial. We disagree with this argument for several reasons.

All states have enacted legislation relating to blood alcohol tests. The majority have either followed the guidance of the Uniform Vehicle Code section 11--902(c) (1962) ² and expressly conditioned Validity of the tests on compliance with health department regulations, ³ or have made the evidence admissible Provided that the regulations are followed. ⁴ In these states, the effect of noncompliance is clear: the evidence may not be admitted. ⁵

Some states have not enacted mandatory regulations governing test procedures. ⁶ One state has provided that the statutory presumption of intoxication depends upon compliance with the regulations, ⁷ and a court in that state has held that because the statute does not require exclusion for noncompliance, inadmissibility is not mandated. (People v. Meikrantz (1974) 77 Misc.2d 892, 351 N.Y.S.2d 549; but compare People v. Monahan (1969) 25 N.Y.2d 378, 360 N.Y.S.2d 453, 254 N.E.2d 758, ruling evidence inadmissible under general scientific and medical standards without proof of compliance with statutorily mandated regulations.) Another state has expressly provided that noncompliance goes only to the weight of the evidence.

Several states have enacted legislation like California's, providing that tests shall be made in accordance with the regulations but not expressly conditioning validity or admissibility of the test results thereon. ⁹ Courts in two of these states have nonetheless held the evidence inadmissible in the absence of strict compliance with the regulations, based upon the mandatory language of the sections. (State v. Hansen (Iowa 1972) 203 N.W.2d 216; State v. Wallin (Iowa 1972) 195 N.W.2d 95; City of Cincinnati v. Sand (1975) 43 Ohio St.2d 79, 330 N.E.2d 908; State v. Miracle (1973) 33 Ohio App.2d 289, 294 N.E.2d 903; see also Jones v. Forrest City (1965) 239 Ark. 211, 388 S.W.2d 386 (same result before statute amended to expressly so provide).) The other states do not appear to have decided the question. However, we may note that in one state whose statute conditions admissibility on compliance with Certain regulations, courts have held that noncompliance with Other mandatory requirements in the statute, or technical or minor violations of the statute, does not require exclusion of the test results. (State v. Gillis (N.H.1974) 321 A.2d 576; State v. Groulx (N.H.1969) 249 A.2d 690.)

In California, our Evidence Code provides that: 'Except as otherwise provided by statute, all relevant evidence is admissible.' (§ 351.) Neither the Iowa nor Ohio decisions noted above mention such a statutory scheme explicitly favoring admissibility in the absence of a contrary expression in a statute. Neither the regulations in the Administrative Code, nor Health and Safety Code section 436.52, make reference to the question of admissibility into evidence of tests which are not performed in compliance with the regulations. Appellants cite the language of the Law Revision Commission Comment to Evidence Code section 351 that '(o)ther codes also contain provisions that may in some cases result in the exclusion of relevant evidence' and claim that several of the code sections thereinafter enumerated in the comment contain no express limit on admissibility. This is correct. However, such sections uniformly relate to confidentiality of information, and expressly limit use and/or disclosure; thus, the comment accurately notes that the provisions May result in exclusion of relevant evidence, rather than that they Exclude the evidence. ¹⁰ None of the statutes, however, are even remotely similar to those involved in this case.

Additionally, we note that the Legislature rejected an express limitation on admissibility in Assembly Bill 789, as amended in the Senate on July 1, 1969. The amendment would have made inadmissible results of tests not performed in approved and licensed laboratories. This language was stricken from the bill in its final form. Although not directly involving the problem at hand, this indicates that Health and Safety Code section 436.51, framed in the same mandatory language as ...