People v. McNeal

• Decision Date: 21 September 2007
• Docket Number: No. E041226.,E041226.
• Citation: 155 Cal.App.4th 582,66 Cal.Rptr.3d 212
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Timmie Lance McNEAL, Defendant and Appellant.

66 Cal.Rptr.3d 212

155 Cal.App.4th 582

The PEOPLE, Plaintiff and Respondent, v. Timmie Lance McNEAL, Defendant and Appellant.

No. E041226.

Court of Appeal, Fourth District, Division 2.

September 21, 2007.

Linn Davis, for Defendant and Appellant.

Michael A. Ramos, District Attorney, Mark A. Vos, Lead Deputy District Attorney, and Astrid G. Alfonso, Deputy District Attorney, for Plaintiff and Respondent.

OPINION

KING, J.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant Timmie McNeal was charged with driving under the influence of alcohol (Veh.Code, § 23152, subd. (a) (section 23152(a)))¹ and driving with a blood alcohol level of 0.08 percent or greater (§ 23152, subd. (b) (section 23152(b))).² The jury convicted defendant of driving under the influence under section 23152(a); it was unable to reach a verdict on the section 23152(b) charge of driving with a blood alcohol level of 0.08 percent or greater. (We will refer at times to a charge under section 23152(a) as "generic DUI," and to a charge under section 23152(b) as "per se DUI.")

At trial, evidence of defendant's blood alcohol level was admitted in the form of breath test results. The tests were administered by the' City of Redlands police. Defendant's first expiration did not register. The second and fourth expirations registered as insufficient. The third and fifth samples each registered a blood alcohol concentration of 0.10 percent. The blood alcohol concentration was determined based upon a mathematical constant for converting the amount of alcohol actually found in the defendant's breath to an amount of alcohol that would presumably be found in his blood. This constant is known as the "standard partition ratio."

After the defense rested, defendant moved to reopen relative to count 1, the generic DUI charge, to present an expert witness to "discuss the partition ratios." (It is not clear from the record whether defendant sought to offer evidence of defendant's personal partition ratio or evidence of the general variability of partition ratios.) After considering People v. Bransford (1994) 8 Cal.4th 885, 35 Cal. Rptr.2d 613, 884 P.2d 70 (Bransford), wherein the California Supreme Court held that partition ratio evidence was inadmissible relative to a charge of per se DUI, the trial court denied defendant's motion; the court indicated that partition ratio evidence was not relevant to an alleged violation of the generic DUI statute for the same reasons that partition ratio evidence was not relevant to a per se DUI charge.

Defendant appealed to the Appellate Division of the San Bernardino County Superior Court. He claimed the trial court committed reversible error in excluding partition ratio evidence. In affirming, the appellate division found that partition ratio evidence was admissible on a charge of generic DUI, but that the trial court's error in not admitting the evidence was harmless.

On our own motion, we ordered the case transferred to this court to secure uniformity of decision and to settle an important question of law. (See former Cal. Rules of Court, rules 62 & 64(a); see also Code Civ. Proc, § 911.)³

II. ANALYSIS

A. Standard of Review

"We review for abuse of discretion a trial court's ruling on a motion to reopen a criminal case to permit the introduction of additional evidence." (People v. Marshall (1996) 13 Cal.4th 799, 836, 55 Cal.Rptr.2d 347, 919 P.2d 1280.) `"Factors to be considered in reviewing the exercise of [the trial court's] discretion include the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect that the jury would accord it undue emphasis, and the significance of the evidence.' [Citation.]" (People v. Rodriguez (1984) 152 Cal.App.3d 289, 295, 199 Cal Rptr. 433.) Here, the trial court denied the defendant's request to reopen based upon its determination that the proffered evidence regarding partition ratios was inadmissible under Bransford. We review a trial court's evidentiary rulings for an abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805, 38 Cal.Rptr.3d 98,126 P.3d 938.)

B. Analysis

Under the generic DUI statute, it is "unlawful for any person who is under the influence of any alcoholic beverage ... to drive a vehicle." (§ 23152(a).) To prove this charge here (as well as the charge for per se DUI), the prosecution introduced evidence of alcohol in defendant's breath. The relationship between such evidence and intoxication has been explained as follows: "Alcohol contained only in the breath does not cause intoxication. It is the impact of alcohol on the central nervous system, particularly on the brain, that causes the physical and psychological changes associated with impairment. Alcohol reaches the central nervous system through the blood. When used to establish blood alcohol levels, breath testing devices use a mathematical constant to approximate the percentage of alcohol in the blood based on the amount of alcohol present in a breath sample." (State v. Brayman (1988) 110 Wash.2d 183, 188 (Brayman); see also State v. Hanks (2001) 172 Vt. 93, 94-95 (Hanks).) In California, this mathematical constant is set forth in (among other places) section 23610. (See also § 23152(b); Cal.Code Regs., tit. 17, § 1220.4, subd. (f).)

Section 23610 provides that, in a prosecution for generic DUI, the amount of alcohol in the person's blood, as shown by blood, breath, or urine, shall give rise to various presumptions as to whether the defendant was under the influence of alcohol at the time of driving. In particular, the statute provides that a person "shall be presumed" to be "under the influence of an alcoholic beverage" when "the amount of alcohol in the person's blood at the time of the test as shown by chemical analysis of that person's blood, breath, or urine" is 0.08 percent or more, by weight, of alcohol in the person's blood. (§ 23610, subd. (a).) "Percent, by weight, of alcohol in the person's blood" is defined as "grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (§ 23610, subd. (b).) This definition creates a presumptive blood-breath partition ratio of 1:2,100; that is, the same amount of alcohol found in 2,100 milliliters of a person's breath would presumably be found in a milliliter of the person's blood.

However, actual partition "ratios vary both between individuals, and at different times in the same individual.... Factors influencing an individual's bloodbreath ratio include body temperature, hematocrit level (the ratio between red blood cells and blood plasma), and the time at which alcohol was consumed in relation to the time breath alcohol is measured. Higher than normal body temperatures resulting from fevers, exercise, and menstrual cycle variations in women result in a lower blood-breath ratio than normal. If all other factors are the same in a given individual, a breath test based on that individual's normal blood-breath ratio, given when body temperature is elevated, will overestimate that individual's actual blood alcohol level." (Brayman, supra, 751 P.2d at p. 297; see also Bransford supra, 8 Cal.4th at p. 889, 35 Cal.Rptr.2d 613, 884 P.2d 70; People v. Lepine (1989) 215 Cal. App.3d 91, 94, 263 Cal.Rptr. 543 (Lepine); Hanks, supra, 772 A.2d at p. 1089.)

Because of the uncertainty of breath alcohol content as an indicator of blood alcohol content, defendant contends he should be allowed to introduce evidence concerning partition ratios. The People submit that the Legislature has determined the appropriateness of calculating the blood alcohol content based upon a breath test, and that defendant should not be allowed to challenge that calculation. In agreeing with the People, the trial court relied upon Bransford. We begin there.

In Bransford, the California Supreme Court granted review to determine whether the defendants, convicted of driving with 0.08 percent or more of alcohol in their blood, should be allowed to challenge "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." (Bransford, supra 8 Cal.4th at p. 888, 35 Cal.Rptr.2d 613, 884 P.2d 70.) The court held that defendants could not place before the jury evidence of their individual partition ratios.⁴ The court focused on the 1990 amendment to section 23152, which changed the per se DUI statute from, "[f]or purposes of this subdivision percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood," to "[f]or purposes of this subdivision, percent, by weight, of alcohol in a person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Bransford, supra, at pp. 889-891, 35 Cal. Rptr.2d 613, 884 P.2d 70, citing Stats.1990, ch. 708, § 1, pp. 3289-3290.) The court explained, "we believe there is ... only one reasonable manner in which to [read the statute], 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 arriving at whether an individual is driving with a 0.08 percent or more of blood alcohol. (Bransford, supra, at p. 890, 35 Cal.Rptr.2d 613, 884 P.2d 70, italics added.)

In response to the defendants' argument that the statute as amended created an irrebuttable conclusive presumption that the amount of alcohol in 210 liters of breath was equivalent to the amount of alcohol in 100 milliliters of blood, the court stated that the statute "`does not create a conclusive presumption of intoxication.... Instead the statute defines, in precise terms, the conduct proscribed.' [Citati...