People v. Perkins

• Decision Date: 19 October 1981
• Docket Number: Cr. A
• Citation: 179 Cal.Rptr. 431,126 Cal.App.3d Supp. 12
• Court: California Superior Court
• Parties: 126 Cal.App.3d Supp. 12 THE PEOPLE, Plaintiff and Respondent, v. Douglas PERKINS, Defendant and Appellant. 17922. Appellate Department, Superior Court, Los Angeles County, California

Page 431

179 Cal.Rptr. 431

126 Cal.App.3d Supp. 12

THE PEOPLE, Plaintiff and Respondent, v. Douglas PERKINS, Defendant and Appellant.

Cr. A. 17922.

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

Oct. 19, 1981.

Larry H. Layton, San Fernando, for defendant and appellant.

Ira Reiner, City Atty., Jack L. Brown and John D. O'Loughlin, Deputy City Attys., for plaintiff and respondent.

FAINER, Presiding Judge.

Defendant appeals from his judgment of conviction of having violated Vehicle Code section 23102, subdivision (a) (driving under the influence of alcohol). He raises many arguments on appeal, several of which require extended discussion, especially those pertaining to the jury instructions relating to the admissibility of the results of defendant's blood alcohol tests administered just after the offense.

The claim that defendant was improperly detained is wholly without merit. He was observed driving 20 miles per hour in a 40-mile-per-hour zone, weaving abruptly from one side of his lane to the other. This is certainly sufficient justification for an officer to stop a driver and make further inquiry into his sobriety. (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957; Cornforth v. Department of Motor Vehicles (1970) 3 Cal.App.3d 550, 552, 83 Cal.Rptr. 762.)

After defendant was unable to adequately perform his field sobriety tests and displayed the objective "drunk driving" symptoms of slurred speech, bloodshot eyes and a strong odor of alcohol on his breath, he was taken to a hospital for a blood test to determine the level of alcohol in his blood. Prior to trial, the People were ordered to provide him with a portion of the blood sample taken so that he could make his own independent analysis. The record on appeal indicates full compliance with this order and defendant does not contend otherwise. Neither is there any showing that the test results were in any way inaccurate. Nonetheless, defendant argues that the complaint should have been dismissed and the test results suppressed because the People destroyed records pertaining to the repair or maintenance of the testing machine. Failing that, he claims that the jury should have been instructed to disregard the results if they found that the People had destroyed quality control records.

The first focus of this argument is People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, which holds that a defendant is entitled to access to prosecution evidence (in that case, a breathalyzer test ampoule to determine blood-alcohol level) once it has been demonstrated that there exists a reasonable possibility that the evidence might be favorably considered on the issue of guilt or innocence (12 Cal.3d, at page 649, 117 Cal.Rptr. 9, 527 P.2d 361). In the present case, defendant was given access to his blood sample and he did not ask for the reference sample. He seeks to extend the holding in People v. Hitch to require the dismissal of the complaint or the suppression of the test results because printouts from quality control samples are not retained by the Los Angeles Police Department and are thus unavailable to him in his attempt to attack the reliability of his own test readings.

The simple answer to this argument is that there was no showing on the appellate record presented to us that the printouts would have had any bearing on the test results or on defendant's guilt or innocence. The only evidence on this issue was the testimony of David Margolis, a criminalist for the Los Angeles Police Department.

Margolis testified that the printouts were adjustment data which could not be called records within the meaning of title 17 of the California Administrative Code. They were a working tool which, according to Margolis, had no status at all and are not among the records which the testing unit is required to keep by state regulation. ¹ Defendant offered no evidence to establish that the printouts could have an effect on the proof of his guilt or innocence. He attempted to make his argument by reference to a partial reporter's transcript of another proceeding involving a different defendant and another judge where similar printouts were discussed. This other proceeding had no relevance to the present situation. (See People v. Merriam (1967) 66 Cal.2d 390, 397, 58 Cal.Rptr. 1, 426 P.2d 161; People v. Jablon (1958) 165 Cal.App.2d 348, 350, 331 P.2d 772.)

As to the printout issue, defendant also contends that the People willfully failed to comply with the discovery order by their failure to produce the printouts. The discovery order included, among other things, the repair records (including routine checks), calibration, and recalibration of any machine or instrument used to test defendant's blood for the period August 31, 1978 to August 31, 1979. Handwritten at the end of this discovery order item is the notation, "Maintenance record for 8-31-79 only." The People responded by supplying the quality control checks for September 4, 1979. There is nothing to show that the quality control checks for September 4, 1979, did not include the records pertinent to August 31, 1979. The discovery order required the records for a 60-day period showing the washing, cleaning, sterilization or other treatment of any machine, instrument or tool used to test defendant's blood. The People responded to this portion of the order by stating that there were no such records available. Defendant has not shown that there were or that there should have been any such records. Defendant merely argues that the requirements set forth in 17 California Administrative Code sections 1220.3, 1222.1, subdivision (a) and 1222.1, subdivision (a)(4) ² are controlling. These requirements provide for the retention of records by the laboratory for a period of three years. Margolis testified that the printouts requested by defendant were not among the records required by the department of health. Defendant has presented no evidence to the contrary.

Even if the failure to keep the printouts were to be seen as a violation of title 17, defendant is mistaken in his claim that the trial court erred in refusing to instruct the jury to disregard the blood alcohol test results if they found that the Los Angeles Police Department destroyed records pertaining to the repair, maintenance or adjustment of the machine. ³ The proposed instruction would be required if the provisions of Evidence Code section 403 ⁴ were applicable, but we hold that Evidence Code section 403 is not applicable in this case.

Evidence Code section 403 is invoked whenever the relevancy of proffered evidence depends on the determination of a preliminary fact. If the jury does not find that the preliminary fact exists, they are instructed to disregard the evidence. If there were a question here about whether the blood that was tested was actually defendant's blood, as was argued below, but abandoned on appeal, the test results would not be relevant to the proceedings unless the jury could reasonably find that it was, in fact, defendant's blood. Such an instruction was properly given here.

As we point out in this opinion, relevancy of the blood-alcohol-test results is not an issue and the provisions of Evidence Code section 403 are not applicable when the claim is that all the title 17 requirements have not been met and the violation is not of constitutional dimension. (See People v. French (1978) 77 Cal.App.3d 511, 522, 143 Cal.Rptr. 782.) As long as there is no constitutional violation, ⁵ the jury is not to be instructed to disregard the results if the People have established that "(1) the particular apparatus utilized was in proper working order, (2) the test used was properly administered, and (3) the operator was competent and qualified." (People v. Adams (1976) 59 Cal.App.3d 559, 561, 131 Cal.Rptr. 190.) The court in People v. Adams explained that failure to comply with the title 17 regulations goes to the weight of the evidence and that a defendant is entitled to attempt to discredit the test results by showing that noncompliance with the regulations affected those results (59 Cal.App.3d at p. 567, 131 Cal.Rptr. 190; People v. French, supra, 77 Cal.App.3d 511, 522, 143 Cal.Rptr. 782).

The conclusion that such tests are relevant is supported by both the language and the reasoning of People v. Adams, supra, 59 Cal.App.3d 559, 131 Cal.Rptr. 190 and People v. French, supra, 77 Cal.App.3d 511, 522, 143 Cal.Rptr. 782; see, also, People v. Rawlings (1974) 42 Cal.App.3d 952, 117 Cal.Rptr. 651. As explained in People v. French, supra, "We ... are convinced that the Adams majority rule is the proper one. The rule permits the admission of highly relevant and competent evidence on the issue of intoxication, while at the same time safeguarding the defendant's rights. Pursuant to the Adams rule, a defendant can attack the 'credibility' of the test by showing that normal testing procedures were not followed, the operator was not properly qualified, or that the machine was unreliable." (77 Cal.App.3d at p. 522, 143 Cal.Rptr. 782) Further support for the conclusion that relevance is not in issue in blood-alcohol tests is found in the reference in People v. Adams, supra, to Evidence Code section 351, which states: "Except as otherwise provided by statute, all relevant evidence is admissible." (59 Cal.App.3d, at p. 565, 131 Cal.Rptr. 190.) Neither Adams nor People v. Rawlings, supra, at page 956, 117 Cal.Rptr. 651, which also cites Evidence Code section 351, indicates that blood-alcohol tests fall within any of the statutory exceptions to section 351. Consistent with our interpretation are People v. Palmer (1978) 80 Cal.App.3d 239, 253, 145 Cal.Rptr. 466, and People v. Marx (1975) 54 Cal.App.3d 100, 111, 126 Cal.Rptr. 350, which suggest that once a test has achieved general acceptance in the scientific community, any possibility of error goes to the weight of the evidence and not to its...