People v. French

• Decision Date: 19 January 1978
• Docket Number: Cr. 16439
• Citation: 77 Cal.App.3d 511,143 Cal.Rptr. 782
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Wayne FRENCH, Defendant and Appellant.

Page 782

143 Cal.Rptr. 782

77 Cal.App.3d 511

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Wayne FRENCH, Defendant and Appellant.

Cr. 16439.

Court of Appeal, First District, Division 2, California.

Jan. 19, 1978.

Rick L. Ames, San Francisco, for defendant and appellant (under appointment by the Court of Appeal).

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Charles R. B. Kirk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Justice.

Defendant, Ronald W. French, appeals from a judgment entered on a jury verdict finding him guilty of driving while under the influence of alcohol (Veh.Code, § 23102, subd. (a)) and vehicular manslaughter (Pen.Code, § 192, subd. (3)(b)). He contends on this appeal that the trial court committed prejudicial error by admitting into evidence the results of a breath alcohol test, and that there was insufficient evidence of negligence to support the verdict and judgment. For the reasons set forth below, we reject both of these contentions and affirm the judgment.

The basic facts are not in dispute. The record indicates that after 11 P.M. on May 8, 1976, defendant struck a bicycle ridden by Richard (Rocky) Kardum, 13, who died as a result of the sustained injuries. The accident was witnessed by Rocky's cousin, Gary Kardum, 16, who was also riding a bike on the shoulder of the road. As Gary swerved to avoid a fast-moving car, he saw it strike Rocky's bike, and saw his cousin's body fly through the air. Gary heard the car continue down the road for several hundred feet until it stopped. As Sonoma Deputy Sheriff Cox radioed for an ambulance, defendant staggered toward him. Defendant's eyes were glassy and bloodshot, he reeked of alcohol, and his speech was slurred. He admitted driving the car that struck Rocky and admitted that he had about three drinks "down around the corner," where he started drinking about 7 P.M. Defendant refused to tell the officers where he had been drinking.

After defendant failed several field sobriety tests, ¹ he was taken to the Sonoma County jail where he elected to take a breath test. The intoxilyzer ² maintained there by the State Department of Justice (DOJ) rendered a first reading of .19, using a single breath method, ³ a second reading of .16 using the multi-breath method and a third reading of .17 also using the multi-breath method. ⁴ In between each reading, the intoxilyzer is purged by the air blank method. ⁵ In clearing the machine by the air blank method between the first and second readings, an erroneous reading of .01 was printed by the intoxilyzer. This erroneous reading, as well as the results of the tests, were admitted into evidence over defense objections.

Defendant's inability to perform the field sobriety tests was consistent with the intoxilyzer test results. All three breath test results were above the level where a person's ability to drive safely would be impaired. Defendant's expert Manwaring, a pathologist, opined that the intoxilyzer test results were unacceptable as scientifically inaccurate and beyond the limits of accuracy established by the applicable regulations of the State Department of Health (DOH). Defendant's expert Demorest, a forensic alcohol analyst, believed that the instant test results were scientifically unacceptable, but within the accuracy limits of the DOH regulations. Demorest performed an alcohol tolerance test on defendant using five ounces of 80 proof whiskey and ascertained that defendant was under the influence of alcohol when his blood alcohol level was .12.

Defendant's witness Butts, a part-time bartender at a cocktail lounge a few miles from the accident, indicated that defendant had no more than three drinks on the evening of May 9. Butts saw nothing about defendant's behavior to indicate that he had had too much to drink. On cross-examination, Butts indicated that his then employer was being sued about his involvement in Rocky's death.

The DOJ's expert Corazza explained the discrepancy between the .19 single breath reading and the .16 and .17 multi-breath readings as the natural result of comparing single with multi-breath readings. Corazza opined that the error which resulted in a .01 result after the air bank clearing following the first reading inured to defendant's benefit as the error reduced defendant's actual blood alcohol level on the second test by .01. The .01 inconsistency between the second and third readings could not be attributed to the intoxilyzer, which functioned properly both before and after the test on defendant.

Defendant's major contention on appeal is that the trial court committed reversible error by admitting into evidence the results of the intoxilyzer breath test administered to him by Officer Mayfield. Defendant argues that the test was inadmissible as Mayfield had failed to comply with the regulations governing the procedure for conducting the test. The pertinent rules concerning the breath test are contained in the DOJ's operator's manual (DOJ Manual) or checklist and in the DOH regulations.

The DOJ checklist requires the operator to purge the breath-collection chamber of alcohol after each breath sample to obtain a reading of .00 to indicate that no alcohol remains in the chamber to affect the accuracy of the test. As indicated above, after the first of three breath samples was taken from defendant, Mayfield purged the chamber but obtained a reading of .01. This reading indicated that a small amount of alcohol remained. However, rather than conducting another purge test to clear the chamber of this small amount of extraneous alcohol and obtain a reading of .00, Mayfield continued with the tests.

Defendant first argues that the DOJ checklist constitutes a regulation and, therefore, Mayfield's failure to follow it completely by getting a reading of .00 before continuing with the test, rendered the second and third test results inadmissible. However, the DOJ checklist is not an "agency regulation" within the language of Government Code section 11371, subdivision (b), set forth below, ⁶ that defines a regulation as "every rule . . . adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it . . . ." A regulation, as defined by Government Code section 11371, can be adopted only where there has been a statutory grant of authority (Gov.Code, § 11373), set forth below. ⁷ (Ralph's Grocery Co. v. Reimel, 69 Cal.2d 172, 70 Cal.Rptr. 407, 444 P.2d 79). The DOJ checklist has not been adopted pursuant to a statute enforced or administered by DOJ, as the exclusive statutory authority to promulgate regulations concerning breath testing has been delegated to the DOH by Health and Safety Code section 436.50, set forth below. ⁸ At oral argument, defendant argued that the DOJ checklist was not within the purview of Government Code section 11373, as it came within the exceptions of Government Code section 11380, subdivision (a) (3), set forth below. ⁹ (Cf. American Friends Service Committee v. Procunier, 33 Cal.App.3d 252, 259-262, 109 Cal.Rptr. 22.) This argument cannot be raised for the first time on appeal ¹⁰ and, therefore, need not be discussed here.

In any event, failure to follow the DOJ checklist was harmless error because the evidence showed that the resultant reading on the intoxilyzer was .01 lower than the actual amount of alcohol in defendant's breath and, therefore, favorable to him. In any event, all of the blood alcohol readings were well above the .10 level at which an individual is presumptively under the influence of alcohol, pursuant to Vehicle Code section 23126, subdivision (a)(3).

Defendant next argues that Mayfield violated the purpose and intent of a DOH regulation which requires two breath samples to be taken that are within .02 of each other (17 Cal.Admn.Code, § 1221.4, subd. (a)(1)), set forth below. ¹¹ Defendant chooses to interpret the requirement of two separate breath samples of this regulation to preclude taking repeated breath samples until two samples agreeing by .02 or less are obtained. He argues that to permit innumerable samples in order to meet the .02 tolerance limit would defeat the regulation's purpose of ensuring accurate and reliable measurements from two separate breath samples. As indicated above, both defense experts supported this view while the state's expert testified that the test procedure was consistent with the DOH regulation.

The record on appeal includes a memorandum signed by the assistant chief counsel of DOH, of which we may take judicial notice pursuant to Evidence Code section 452, subdivision (b). ¹² (People v. Terry, 38 Cal.App.3d 432, 113 Cal.Rptr. 233.) This memorandum confirms Corazza's testimony that pursuant to the agency's current official practice, the above DOH regulation is satisfied if any two test values are within .02 of each other, regardless of the number of samples taken. The DOH memorandum further explains that the number of tests given does not matter because the purpose of its regulation was to ensure that alveolars of "deep lung" air samples have been obtained. A sample which is not entirely deep lung air is diluted by fresh air or mouth air and thus gives an erroneously low indication on the intoxilyzer. Corazza explained that several samples are taken to achieve the correlation of .02, so that the subject can be released from further testing. If the correlation cannot be obtained, other types of tests are administered.

The interpretation given a regulation by the administrative agency charged with its enforcement is entitled to great weight (People v. Ruster, 16 Cal.3d 690, 697, 129 Cal.Rptr. 153, 548 P.2d 353; Carmona v. Division of Industrial Safety, 13 Cal.3d 303, 118 Cal.Rptr. 473, 530 P.2d 161). This is particularly true where, as here, a...