People v. Lepine

• Decision Date: 31 October 1989
• Docket Number: No. D008908,D008908
• Citation: 215 Cal.App.3d 91,263 Cal.Rptr. 543
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Amy Jo LEPINE, Defendant and Appellant.

Page 543

263 Cal.Rptr. 543

215 Cal.App.3d 91

The PEOPLE, Plaintiff and Respondent, v.Amy Jo LEPINE, Defendant and Appellant.

No. D008908.

Court of Appeal, Fourth District, Division 1, California.

Oct. 31, 1989.

As Modified Nov. 29, 1989.

Review Denied Feb. 21, 1990.

Grimes & Warwick, Thomas J. Warwick and Lewis A. Wenzell, San Diego, for defendant and appellant.

John W. Witt, City Atty., Stuart H. Swett, Senior Chief Deputy Atty., Marilynn J. Winters and Ward S. Clay, Deputy City Attys., for plaintiff and respondent.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Rudolf Corona, Jr., and Frederick R. Millar, Jr., Deputy Attys.Gen., as amicus curiae on behalf of plaintiff and respondent.

BENKE, Associate Justice.

The issue before us is whether in a prosecution for driving a vehicle with a blood alcohol level of 0.10 percent or greater (VEH.CODE, § 23152¹, subd. (b)), the partition or conversion ratio defined by the Code of Regulations for converting a breath alcohol percentage to a blood alcohol percentage may only be rebutted by the defense demonstrating the defendant had a partition ratio different than that presumed by the code.We conclude the defense is not so restricted and hold general evidence may be offered concerning partition ratio variability.

IBACKGROUND

Section 23152, subdivision (b), states in part: "It is unlawful for any person who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.[p] For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood."Although it is the alcohol content of one's blood which defines violation of this subdivision, a driver may elect to take a breath or urine test instead of a blood test, for the purpose of determining the alcohol content of his or her blood.(§ 23157, subd. (a).)Thus when a breath or urine sample is taken, it is necessary to convert the alcohol content of that sample to its blood alcohol equivalent.

The manner by which conversion from breath alcohol to blood alcohol takes place has been addressed in Health and Safety Code section 436.52 which declares the testing of such samples taken will be done in accordance with regulations adopted by the State Department of Health.California Code of Regulations, Title 17, section 1215 et seq. contains the regulations formulated by the Department.California Code of Regulations section 1220.4(f) states: "A breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood."

AppellantAmy Jo Lepine was charged with driving with a 0.10 percent blood alcohol content.She submitted to a breath test which, based on the ratio set forth in section 1220.4(f) of the California Code of Regulations, determined her blood alcohol percentage was 0.13.Before trial defense counsel indicated his intent to challenge the 2,100 to 1 ratio used to convert a known breath alcohol percentage to its blood alcohol equivalent.Counsel stated he would do so by cross-examining the prosecution expert and by presenting the testimony of a forensic scientist.

The city attorney objected to both means of attack, arguing that before a challenge could be made to the defined ratio the defendant must demonstrate that at the time the breath sample was taken, appellant's partition ratio differed from the ratio set by the California Code of Regulations.The People argued that to allow a general attack, unrelated to a defendant's actual ratio at the time the breath sample was taken, was irrelevant, speculative and potentially confusing.

As an offer of proof, the defense presented a transcript of the testimony of their expert in another section 23152, subdivision (b), case.The expert explained the partition ratio was based on the assumption that for every 2,100 parts of alcohol in the blood, one part was released at the lungs.Thus, a blood alcohol reading could be made by multiplying any breath alcohol finding by 2,100 to determine blood alcohol content.

The expert stated, however, that the ratio of 2,100 to 1 is not constant and varies from individual to individual and from time to time.The expert also stated if an individual has a ratio less than 2,100 to 1, a machine calibrated to test with that ratio would give an erroneously high blood alcohol reading.He concluded the only way to determine the correct ratio for an individual at any given time is to take both a blood sample and a breath sample and test each for alcohol content.

Since variations in partition ratios are the function of whether the individual was still absorbing alcohol at the time the sample was taken, the temperature of the lungs, the speed of exhalation, the depth of exhalation, the amount of humidity in the air, the amount of mucus in the lungs and the individual's hematocrit, i.e., the ratio of blood cells to total blood volume, the expert stated there was no way, after the fact, to determine an individual's partition ratio at a given time.It would be possible, however, to conduct a series of tests at a later time to determine the individual's general partition ratio range.He stated a single test to determine an individual's partition ratio would cost $600, and a series of tests to determine a partition ratio range would cost approximately $6,000.

Based on his reading and his own studies, the expert stated the average partition ratio was 2,286 to 1 and further stated studies have indicated 68 percent of the population has partition ratios between 2,040 to 1 and 2,420 [215 Cal.App.3d 95] to 1 while 95 percent of the population has ratios between 1,800 to 1 and 2,660 to 1.²

The municipal court sustained the city attorney's objection and refused to allow cross-examination of the People's expert or introduction of defense evidence concerning general variability in the partition ratio.

On appeal the appellate department of the superior court reversed and the matter was transferred to this court pursuant to Code of Civil Procedure section 911.

IIDISCUSSION

In refusing to allow defense evidence concerning the general variability of partition ratios, the trial court relied upon two cases, People v. Pritchard(1984)162 Cal.App.3d Supp. 13, 209 Cal.Rptr. 314, andPeople v. Gineris(1984)162 Cal.App.3d Supp. 18, 209 Cal.Rptr. 317.³Although not cited by the municipal court, another opinion, (People v. Herst(1987)197 Cal.App.3d Supp. 1, 243 Cal.Rptr. 83) supports the proposition that general evidence concerning partition ratio variability is irrelevant.These cases, which arise from the appellate department of the Los Angeles County Superior Court, involved defense arguments that the breath test evidence offered to prove a blood alcohol percentage of 0.10 or greater was insufficient because the partition ratio used to convert a known breath alcohol percentage to a blood alcohol percentage was variable and, under the facts of those cases, allowed the possibility the blood alcohol level was less than 0.10.

In Pritchard the appellate department observed there was evidence the intoxilyzer machine used to test the defendant's breath had an error factor of .005. The court also noted evidence that while the conversion of a known breath-alcohol percentage to a blood-alcohol percentage was based on a presumed partition ratio of 2,100 to 1, that ratio varied in 95 percent of the population by a factor of plus or minus 10 percent.(People v. Pritchard, supra, 162 Cal.App.3d Supp. at pp. 15-16, 209 Cal.Rptr. 314.)At trial, the defendant, who was cognizant of these observations, had argued that since the breath tests taken at the time of his arrest indicated a blood-alcohol level of .11 or .12 and since the People's expert at trial testified there could be an error factor of 10 percent in the partition ratio used to convert a breath-alcohol finding to its blood-alcohol equivalent, the evidence present at trial was insufficient to prove his blood-alcohol level was 0.10 or greater at the time he was driving.

Similarly, in Gineristhe People's evidence was that the partition ratio used to convert breath alcohol findings to blood-alcohol figures was an average ratio and that on an individual basis there could be as much as a 50 percent margin of error.Since the defendant's converted blood alcohol percentage was 0.11, the People's expert stated that given the error margin of the testing machine, the variability of individual partition ratios and the time between the driving and the test, he could not say beyond a reasonable doubt the defendant had a blood-alcohol percentage of 0.10 or greater at the time the defendant was driving.(People v. Gineris, supra, 162 Cal.App.3d Supp. at p. 22, 209 Cal.Rptr. 317;see alsoPeople v. Herst, supra, 197 Cal.App.3d Supp. at pp. 3-4, 243 Cal.Rptr. 83.)

In arguing the evidence insufficient the defendant in Pritchard relied upon People v. Campos(1982)138 Cal.App.3d Supp. 1, 188 Cal.Rptr. 366, a case dealing with former Vehicle Code section 23126, subdivision (a), driving while under the influence of intoxicating liquor.In Camposthe court determined the blood test employed had an inherent inaccuracy of plus or minus .005 percent.It concluded that given the inherent inaccuracy of the test, it was error to instruct the jury, as the law then required (former Veh.Code, § 23126, subd. (a)(3)), that appellant was presumptively under the influence since his blood alcohol level was 0.10 or greater.(People v. Campos, supra, 138 Cal.App.3d Supp. at pp. 3-4, 188 Cal.Rptr. 366.)

The court in Campos reasoned that given the inherent inaccuracy of the blood test and the 0.10 level of blood-alcohol found by the test, it was possible appellant's true blood-alcohol level was as low as .095. The presumption of being...