People v. Bransford
| Decision Date | 23 November 1994 |
| Docket Number | No. S033486,S033486 |
| Citation | 884 P.2d 70,35 Cal.Rptr.2d 613,8 Cal.4th 885 |
| Court | California Supreme Court |
| Parties | , 884 P.2d 70 The PEOPLE, Plaintiff and Respondent, v. Donald E. BRANSFORD et al., Defendants and Appellants. |
Margaret H. Marr, Santa Cruz, Ed Kuwatch, Willits, John Halley, Redwood City, Esther R. Sorkin, Ventura, Plourd & Breeze, John W. Breeze and Douglas E. Gee, El Centro, as amici curiae on behalf of defendants and appellants.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Frederick R. Millar, Jr., and Patti W. Ranger, Deputy Attys. Gen., William E. Haynes, Dist. Atty., and Albert J. Hackworth, Deputy Dist. Atty., for plaintiff and respondent.
Michael R. Capizzi, Dist. Atty., Orange and E. Thomas Dunn, Jr., Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.
We granted review in these consolidated matters to consider whether the trial court should have allowed defendants convicted of driving with 0.08 percent or more of alcohol Defendant Donald E. Bransford was arrested for drunk driving on August 18, 1991. He took a breath test, which showed a blood-alcohol concentration of 0.09 percent. A jury convicted him on October 22, 1992, of violating former Vehicle Code section 23152, subdivision (b) (hereafter section 23152(b)), 1 i.e., driving a vehicle while having 0.08 percent or more, by weight, of alcohol in the blood.
[884 P.2d 71] in their blood to challenge [8 Cal.4th 888] their breath-test results by showing that their personal ratio of breath-alcohol concentration to blood-alcohol concentration (the "partition ratio") differed from the standard partition ratio that breath-testing machines use to convert breath-alcohol readings into blood-alcohol equivalents. As will appear, we conclude the trial court correctly excluded such evidence, and we therefore affirm the judgment of the Court of Appeal to that effect.
Defendant Ralph Maldonado was arrested on or about June 27, 1991. Although the record does not specifically so state, he also took a breath test. He was convicted on September 24, 1991, of violating section 23152(b).
Both defendants contended on appeal to the appellate department of the superior court and, following certification, to the Court of Appeal that the trial court improperly excluded the above described evidence of their personal partition ratios. The Court of Appeal rejected the contention and affirmed the judgments.
In Burg v. Municipal Court (1983) 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732 (Burg ), we reviewed the history of the Legislature's initial responses to the problem of drunk driving, and upheld the first California statute to criminalize the act of driving with a specified percentage of alcohol in the blood. 2 We held that the statute defined the "new and separate offense" of driving with a prohibited blood-alcohol concentration (35 Cal.3d at p. 265, 198 Cal.Rptr. 145, 673 P.2d 732), and that it was a valid exercise of the police power and was not void for vagueness (id. at pp. 266-273, 198 Cal.Rptr. 145, 673 P.2d 732).
In 1989, in the immediate predecessor to the statute under which defendants were convicted, the Legislature lowered the prohibited blood-alcohol concentration from 0.10 percent to 0.08 percent. 3 Because the statute continued to define the offense solely in terms of "grams of alcohol per 100 milliliters of blood," the prosecution continued to convert breath-test results into equivalent readings per 100 milliliters of blood. The relevant regulation of the Department of Health Services required that such conversion use a standard partition ratio treating the amount of alcohol per 210 liters of breath as equivalent to the amount of alcohol per 100 milliliters of blood. (Cal.Code Regs., tit. 17, § 1220.4, subd. (f).) 4
Many variables, however, can affect the actual ratio of an individual's breath-alcohol concentration to blood-alcohol concentration. These variables include body temperature, atmospheric pressure, medical conditions, sex, and the precision of the measuring device. (Thompson, The Constitutionality of Chemical Test Presumptions of Intoxication in Motor Vehicle Statutes (1983) 20 San Diego L.Rev. 301, 327; Annot. (1991) 90 A.L.R.4th 155, 160.) Changes in these variables may result in a difference between an individual's actual blood-alcohol level and the blood-alcohol level determined by applying the standard partition ratio to the breath-test results.
Courts therefore allowed defendants charged under the predecessor statute to attack breath-test results on the basis of this variability. Defendants were initially allowed to demonstrate only that their personal partition ratio differed from the standard partition ratio. (See, e.g., People v. Pritchard (1984) 162 Cal.App.3d Supp. 13, 17, 209 Cal.Rptr. 314; People v. Herst (1987) 197 Cal.App.3d Supp. 1, 3-4, 243 Cal.Rptr. 83.) They would do so by simultaneously measuring their breath-alcohol concentration and blood-alcohol concentration over a period of time. (See, e.g., People v. Cortes (1989) 214 Cal.App.3d Supp. 12, 21, 263 Cal.Rptr. 113 (Cortes ); People v. Lepine (1989) 215 Cal.App.3d 91, 94, 263 Cal.Rptr. 543 (Lepine ).) Later courts also allowed defendants to demonstrate that partition ratios differ among individuals generally. (See, e.g., Lepine, supra, 215 Cal.App.3d at p. 101, 263 Cal.Rptr. 543.) Defendants would usually do so by having an expert testify that the standard partition ratio is merely an approximation and that different individuals have different personal partition ratios. (See, e.g., Lepine, supra, 215 Cal.App.3d at p. 101, 263 Cal.Rptr. 543; Cortes, supra, 214 Cal.App.3d Supp. at p. 19, 263 Cal.Rptr. 113.)
Defendants here, however, were convicted under section 23152(b), not its predecessor. By the time of their arrests, the Legislature had amended the predecessor statute by adding the following italicized language:
Speaking largely through their amici curiae, defendants briefly contend the amendment made no substantive change to the predecessor statute but merely codified the existing administrative definition of the standard partition ratio. (Cal.Code Regs., tit. 7, § 1220.4, subd. (f).) They argue that section 23152(b) on its face continued to define the offense in terms of blood-alcohol concentration, and urge that the addition of the phrase, "in a person's blood," in the second paragraph reinforces this reading. Although the statute did specify that percent, by weight, of alcohol "shall be based on" grams of alcohol per 210 liters of breath, defendants argue that this phrase merely provided an alternate means for calculating the blood-alcohol concentration.
Although it is possible to read the statute this way, we believe there is instead only one reasonable manner in which to do so, i.e., the Legislature intended the statute to criminalize the act of driving either with the specified blood-alcohol level or with the specified breath-alcohol level. The second paragraph provided two distinct definitions, "For purposes of this subdivision," of the phrase, "percent, by weight, of alcohol in a person's blood." (Stats.1990, ch. 708, § 1.) Under the second definition--i.e., "grams of alcohol per 210 liters of breath"--section 23152(b) prohibited the act of driving with 0.08 percent or more of blood alcohol as defined by grams of alcohol in 210 liters of breath.
The Legislature originally considered the addition of the phrase, "or grams of alcohol per 210 liters of breath," while enacting the bill that became the version of section 23152(b) effective January 1, 1992. (Sen.Bill No. 1119 (1989-1990 Reg.Sess.) § 25, enacted as Stats.1989, ch. 1114, § 25, p. 4079.) 5 Although the legislative history of that bill only briefly discusses the Legislature's reason for the change, one legislative digest does state that the bill would "Define [blood alcohol concentration] as alcohol concentration expressed in ... grams of alcohol per 210 liters The legislative history of the bill that became the version of section 23152(b) under which defendants were convicted (Assem.Bill No. 4318 (1989-1990 Reg.Sess.), enacted as Stats.1990, ch. 708, § 1) lends further support to this interpretation. For example, the Court of Appeal buttressed with a legislative analysis of the bill its conclusion that section 23152(b) criminalized driving with either the stated blood-alcohol or breath-alcohol level. That analysis characterized the "key issue" of the bill as whether driving under the influence should "be statutorily defined in terms of the concentration of alcohol found in the breath when breath analysis is used." (Sen.Com. on Judiciary, Analysis of Assem.Bill No. 4318, supra, p. 1, italics added.) 6 It observed that attacks by defendants on the partition ratio "result in expensive and time consuming evidentiary hearings and undermine successful enforcement of driving under the influence laws." (Sen.Com. on Judiciary, Analysis of Assem.Bill No. 4318, supra, at p. 2.) It stated that the amendments would "eliminate the need for conversion of a breath quantity to a blood concentration of alcohol...." (Id. at p. 1, italics added.) 7
[884 P.2d 73] of breath." (Assem.Com. on Pub.Safety, Dig. of Sen.Bill No. 1119 (1989-1990 Reg.Sess.), as amended May 15, 1989, p. 3, italics added and deleted.)
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