People v. Campos

• Court: California Superior Court
• Writing for the Court: FOSTER
• Citation: People v. Campos, 138 Cal.App.3d Supp. 1, 188 Cal.Rptr. 366 (Cal. Super. 1982)
• Decision Date: 09 November 1982
• Docket Number: Cr. A
• Parties: 138 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Respondent, v. Cruz Taveras CAMPOS, Defendant and Appellant. 19108. Appellate Department, Superior Court, Los Angeles County, California

Page 366

188 Cal.Rptr. 366

138 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Respondent, v. Cruz Taveras CAMPOS, Defendant and Appellant.

Cr. A. 19108.

Appellate Department, Superior Court, Los Angeles County, California.

Nov. 9, 1982.

Harold Kippen, Encino, for defendant and appellant.

John K. Van De Kamp, Dist. Atty., Donald J. Kaplan and Arnold T. Guminski, Deputy Dist. Attys., for plaintiff and respondent.

FOSTER, Acting Presiding Judge.

Cruz Taveras Campos was arrested on a charge of driving under the influence of alcohol ¹ and submitted to a blood test to determine the alcohol content of his blood. The test reading indicated an alcohol content of .10 percent, but the test employed contained an inherent inaccuracy of plus or minus .005 percent, thus making it impossible to determine the alcohol content more precisely than that it was at some figure between .095 percent and .105 percent. On his appeal from the judgment of conviction, Campos contends that it was prejudicial error on the basis of this evidence to instruct the jury that he was presumed to have been under the influence of alcohol. We agree and reverse the judgment.

Former section 23126 of the Vehicle Code provided ² in significant part:

"(a) Upon the trial of any criminal action ... arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the time of the test as shown by chemical analysis of his blood, breath or urine shall give rise to the following presumptions affecting the burden of proof:

" * * *

"(3) If there was at that time 0.10 percent or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of intoxicating liquor at the time of the alleged offense." ³

After Campos was arrested, he submitted to a test in which blood was withdrawn and analyzed by a "wet" chemical procedure known as a "Smith-Widmark." This test, according to a criminalist called by the People, has a margin of error of .005 percent, so that the actual alcohol content of defendant's blood upon a test reading of 0.10 percent could have been as low as 0.095 percent. ⁴ Over the objection of counsel for defendant ⁵ the trial judge instructed the jury in the terms of CALJIC No. 16.834. ⁶

The presumption of a person with a blood alcohol content of .10 percent or greater being under the influence of intoxicants, created by Vehicle Code section 23126, is one affecting the burden of proof and requires the defendant to raise a reasonable doubt as to the existence of the presumed fact. (People v. Kitt (1978) 83 Cal.App.3d 834, 842-843, 148 Cal.Rptr. 447.) To be proper in a criminal prosecution, the underlying fact giving rise to the presumption must be proved beyond a reasonable doubt (Evid.Code, § 607), and due process requires that there be a rational connection between the proven fact and that presumed. (People v. Lachman (1972) 23 Cal.App.3d 1094, 1097, 100 Cal.Rptr. 710; Ulster County Court v. Allen (1979) 442 U.S. 140, 165, 99 S.Ct. 2213, 2228, 60 L.Ed.2d 777.)

The fact giving rise to the presumption under Vehicle Code section 23126 that a person is under the influence of intoxicants, and which must be proven beyond a reasonable doubt, is that "the amount of alcohol in the person's blood at the time of the test as shown by chemical analysis" was "at that time 0.10 percent or more by weight of alcohol in the person's blood." The precise issue before us is whether a reading of 0.10 percent upon a chemical analysis itself containing a margin of error of .005 percent is a sufficient evidentiary basis upon which to find beyond a reasonable doubt that the amount of alcohol in defendant's blood was 0.10 percent or more. We believe that it is not.

As conceded by the People's expert, the inherent inaccuracies of the test prevented a determination of defendant's blood alcohol content more precisely than that it was at some level between .095 percent and .105 percent. Based upon the chemical analysis it was as likely that the amount of alcohol in defendant's blood was below .10 percent as that it was .10 percent or more. As the only evidence upon which the jury could make a determination of the amount was insufficient to permit it to make a rational decision, it was error to instruct the jury in accordance with CALJIC No. 16.834, which charged the jurors with the responsibility of determining beyond a reasonable doubt the existence of a fact concerning which the evidence was insufficient to remove any doubt. We believe, therefore, it was error to instruct upon this statutory presumption when the reading upon chemical analysis did not exceed 0.10 percent by the test's margin of error.

This issue is of first impression in California, but it has been addressed in the same or similar contexts in other states.

In State v. Rucker (1972 Del.Super.Ct.) 297 A.2d 400, a Delaware statute made it unlawful for a person to drive a motor vehicle "while such person's blood has reached a blood alcohol concentration of 1/10 of 1% or more, by weight, as shown by a chemical analysis of a blood, breath, or urine sample taken within 4 hours of the alleged offense, ...." ⁷ Defendant had taken a breath test which showed a reading of .104 percent, but the test procedure had a margin of error of plus or minus .009 percent. He argued that a factual basis for a presumption of intoxication had not been proven beyond a reasonable doubt. Rejecting the contention, the Delaware court observed that the statute did not purport to create a presumption. "It simply makes a blood alcohol concentration of 0.100%, or more as shown by specified types of tests, an element of the offense. If one has that concentration while driving, as determined by the test specified in the statute and if that test was administered within 4 hours after the alleged offense, 21 Del.C. Section 4176 directs that such person 'shall be guilty.' " (P. 402.) The court viewed the function of the trier of fact as limited to determining whether the test results showed the required percentage of alcohol in the blood, but "[t]he trier of fact is not free to disregard the mandate of the statute or to question the wisdom of the General Assembly in providing that test results constitute proof of that element of the crime." (P. 402.) It assumed that the Delaware General Assembly, in making the test result determinative, had taken into consideration the possibility of variations between the test results and the actual blood alcohol content of the accused when it enacted the statute.

In State v. Bjornsen (1978 Neb.) 201 Neb. 709, 271 N.W.2d 839, a majority of the Supreme Court of Nebraska reached a conclusion contrary to Rucker under a Nebraska statute worded similarly to the Delaware statute. It, too, made unlawful a person's operation of a motor vehicle "when that person has ten-hundredths of one percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath or urine." Defendant's chemical test resulted in a reading of .10 percent blood alcohol content, but the state's criminalist testified that the reading could have been off as much as .005 percent, so that defendant's blood alcohol content could have been as low as .095 percent. The prosecutor argued that, under the statute, so long as the chemical test result showed .10 percent or more any inaccuracies in the testing procedures were irrelevant. The court held:

"While the Legislature has the acknowledged right to prescribe acceptable methods of testing for alcohol content in body fluids and perhaps even the right to prescribe that such evidence is admissible in a court of law, it is a judicial determination as to whether this evidence is sufficient to sustain a conviction. The Legislature has selected a particular percent of alcohol to be a criminal offense if present in a person operating a motor vehicle. It is not unreasonable to require that the test, designed to show that percent, do so outside of any error or tolerance inherent in the testing process." (P. 840.)

A dissenting opinion urged that the Nebraska statute should be interpreted in the same manner as the Rucker court had interpreted the Delaware statute.

The difference between the Rucker and Bjornsen decisions is one of statutory interpretation. Rucker interpreted the Delaware statute as making the test reading conclusive of the issue of blood alcohol content. Bjornsen interpreted the Nebraska statute as requiring a blood alcohol content of .10 percent, with a chemical test being only evidence of such content.

In State v. Boehmer (1980 Hawaii) 613 P.2d 916, the intermediate appellate court construed a Hawaii statute worded identically to California's former Vehicle Code section 23126, so far as here pertinent. It provided:

"(3) If there was ten-hundredths per cent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor at the time of the alleged violation."

The test reading of appellant Boehmer's blood was 0.11 percent; of appellant Gogo's blood 0.10 percent. According to the state's criminalist, the testing procedure...