People v. Vangelder

• Court: California Supreme Court
• Writing for the Court: CANTIL–SAKAUYE
• Citation: People v. Vangelder, 58 Cal.4th 1, 312 P.3d 1045, 164 Cal.Rptr.3d 522 (Cal. 2013)
• Decision Date: 21 November 2013
• Docket Number: No. S195423.,S195423.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Terry VANGELDER, Defendant and Appellant.

58 Cal.4th 1

312 P.3d 1045

164 Cal.Rptr.3d 522

The PEOPLE, Plaintiff and Respondent,

v.Terry VANGELDER, Defendant and Appellant.

No. S195423.

Supreme Court of California

Nov. 21, 2013.

Charles M. Sevilla, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Michael J. Fremont, Encinitas; Bartell & Hensel, Riverside, Donald J. Bartell and Lara J. Gressley for the California DUI Lawyers Association as Amicus Curiae on behalf of Defendant and Appellant.

Jan I. Goldsmith, City Attorney, Tricia Pummill, Assistant City Attorney, Marlea F. Dell'Anno and Angie M. Reddish–Day, Division Chiefs, and Jonathan I. Lapin, Deputy City Attorney, for Plaintiff and Respondent.

CANTIL–SAKAUYE, C.J.

In this prosecution for driving while having a proscribed alcohol concentration in blood or breath, the trial court excluded expert witness testimony challenging the reliability of breath-alcohol testing machines. Reviewing the ensuing conviction, the Court of Appeal determined that the trial court erred, and reversed for a new trial. We conclude that the trial court properly excluded the challenged expert testimony with respect to the charge of driving while having a proscribed alcohol concentration. Accordingly, we reverse the judgment of the appellate court and affirm the conviction.

I. Facts and procedure

On December 22, 2007, at approximately 2:30 a.m., Sergeant Richard W. Berg of the California Highway Patrol (CHP) observed defendant, who was then 50 years of age, driving a high-performance pickup truck more than 125 miles per hour on Highway 163 in San Diego County. Sergeant Berg followed defendant for more than five miles and eventually caught up with him, noticing that he slowed to 100 miles per hour when he approached other traffic and was not weaving outside his lane. After traveling an additional mile and one-half, Berg activated his patrol vehicle's red lights. Defendant rapidly decelerated, pulled over, and, as directed, proceeded to a wider spot on the shoulder.

Defendant provided his license and registration and said, “I was just screwing around.” Berg detected an odor of alcohol and noted that defendant's eyes were red and watery. Defendant admitted he had consumed two glasses of wine. Berg called for backup and transferred the matter to two other CHP officers, including Gerald Guzman, who arrived at 2:58 a.m.

Officer Guzman gave defendant field sobriety tests, in which defendant exhibited few signs of impairment. Defendant told Guzman he had three glasses of wine at dinner. Guzman thought defendant smelled of alcohol and noticed that his eyes were red and glassy. Soon thereafter, at approximately 3:10 a.m., defendant consented to two in-field preliminary alcohol screening breath tests using an Intoximeter Alco–Sensor IV. Such a test is “preliminary” in the sense that it is employed—only with the driver's actual consent—prior to any arrest, in order to assist an investigating officer in determining whether to arrest the driver.¹ Standard testing protocol required that a subject be observed continuously for 15 minutes before the test was administered, in order to make sure that the subject had not during that time ingested alcohol or done anything else that might compromise the test (see Cal.Code Regs., tit. 17, § 1219.3, 3d sentence), but Officer Guzman waited and observed for only nine or 10 minutes, reasoning that defendant had generally been under earlier surveillance for many minutes by Sergeant Berg. Guzman testified that defendant displayed an alcohol concentration of 0.095 percent on the first test, and 0.086 percent on the second test which was administered two minutes later.

Based on his observations and the preliminary breath tests, Guzman believed that defendant was under the influence of alcohol, arrested him, and transported him to the county jail. There, defendant was subject to additional chemical testing under the implied consent law, Vehicle Code section 23612 (subsequent statutory citations are to this code unless otherwise indicated), which provides for testing of blood, breath, or urine. He elected breath testing, which was conducted using an Intoximeter EC/IR. The first breath test from that device, taken at 3:37 a.m., registered a level that revealed an 0.08 percent alcohol level, and the second test, taken two minutes later, produced the same result.

Finally, defendant additionally consented to a blood test, taken at 3:52 a.m. These samples, tested at a later date, showed alcohol percentage levels of 0.088 and 0.087, respectively.

The San Diego City Attorney's Office filed a misdemeanor complaint charging defendant with (1) driving under the influence of alcohol in violation of section 23152, subdivision (a) (hereafter section 23152(a))—sometimes referred to as the “generic offense”; and (2) driving with a blood-alcohol concentration of 0.08 percent or more, in violation of section 23152, subdivision (b) (hereafter section 23152(b))—sometimes referred to as the “per se offense.” ²

Prior to trial, defendant filed motions to (1) exclude evidence of the PAS tests to establish blood-alcohol content, asserting they were not conducted in accordance with applicable regulations and were unreliable; and (2) allow evidence concerning “partition ratio variability” (described post, pt. II.A.3.) with regard to the generic offense.³ The People filed opposing motions. The trial court deferred ruling on the PAS and partition ratio evidence issues, and the matter proceeded to trial.

A. The People's evidence

CHP Officer Brandon Garland, who was responsible for maintaining and calibrating the agency's PAS breath-testing devices, testified regarding the requirements for successfully conducting a PAS test. Garland's records showed that the particular Intoximeter Alco–Sensor IV PAS machine used to analyze defendant's breath at the scene of the vehicle stop had been tested earlier that week and had been found to be operating within acceptable limits of error. ⁴

Marissa Ochoa, a criminologist at the San Diego County Sheriff's Regional Crime Laboratory, testified that both the particular Intoximeter EC/IR breath machine and the blood sampling device used to test defendant at the county jail were in proper working order when used to take and measure samples from defendant, and that the Intoximeter EC/IR breath-testing machine in question has an operational range within the accepted limits of error (see ante, fn. 4). Ochoa further testified regarding the effect of alcohol on the human body. She was asked to assume that a healthy male weighing 200 pounds had consumed three glasses of wine with a hearty meal between 8:00 and 9:00 p.m., was pulled over while driving at 2:45 a.m., and thereafter at the jailhouse produced a breath test result of 0.08 percent at 3:37 a.m. and a similar blood test result 15 minutes later. She concluded that under normal bodily processing of alcohol, such a “person[']s alcohol level [would] be 0.09, approximately, at the time of driving.” On cross-examination, Ochoa explained that if an average healthy male weighing 200 pounds had ingested alcohol only during a dinner between 8:00 and 9:00 p.m., he would have needed to consume approximately 11 drinks (each drink defined as a 12–ounce beer, a 4–to 6–ounce glass of wine, or a 1– to 1.25–ounce serving of hard liquor) in order to have a 0.08 percent blood-alcohol level seven and one-half hours later.

B. Defendant's evidence

1. Initial testimony by Dr. Hlastala concerning asserted unreliability of breath-testing machines in light of alcohol that is “picked up” during inhalation before reaching the deep lungs

Defendant called Dr. Michael P. Hlastala, professor of medicine, physiology, biophysics, and bioengineering at the University of Washington, to testify concerning the effects of alcohol on the respiratory system and the reliability of breath-testing machines. Hlastala explained that his field of study focuses on “the physiology of the human body, which means I deal with the lungs, blood and the way that substances move around the body ... and one of those is alcohol, [which] I've been studying ... for about 25 years, in terms of the physiology of alcohol and also the way alcohol is measured in testing procedures.” He related that he had written more than 400 articles, including approximately 170 peer-reviewed professional articles, and a textbook. He explained that he had testified in approximately 30 states, and served on committees of the National Institutes of Health. The People did not dispute Hlastala's expertise.

Defense counsel asked Dr. Hlastala to assume that both a preliminary “roadside breath test” (i.e., PAS) machine and an “EC/IR” breath-testing machine are “ working perfectly, and they've been properly done. Do they provide a scientifically accurate test? ” Hlastala replied, “ Well, they don't.” (Italics added.)

After a sidebar conference, Dr. Hlastala continued by explaining “the way we take oxygen and put it into the body” and “the way we eliminate carbon dioxide” from the body. He used a pen to create a diagram and explained: “Starting from the throat, the windpipe is called the ‘trachea.’ The trachea comes down ... to just about the heart, ... and that splits off into a left and right side, and that splitting goes on ... about 20 times before it gets into the air [sacs]” deep in the lungs, known as the alveolar sacs. “There are about 300 million of these [alveolar sacs] in every valve. They are ... very tiny.... There's blood vessels around that and this is where a lot of the action takes place. If we bring outside air with oxygen in it, the oxygen goes into the blood, ... and then it gets ... metabolized and that provides energy for us.”

Thereafter, Dr. Hlastala began to testify that even if breath-testing machines operate as designed, they do not perform a scientifically reliable test, because some alcohol present in mucus membranes and bronchial vessels in the upper airways absorbs...