People v. Williams
| Decision Date | 17 May 2001 |
| Docket Number | No. C031921.,C031921. |
| Citation | 89 Cal.App.4th 85,107 Cal.Rptr.2d 135 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Steven Vaughn WILLIAMS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Linda J. Zachritz, under appointment by the Court of Appeal, Fresno, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, John A. O'Sullivan, Supervising Deputy Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Steven Vaughn Williams appeals his conviction by jury of driving while under the influence of alcohol and while his driving privileges were suspended. Evidence was admitted at trial of the results of a field sobriety test known as a Preliminary Alcohol Screening ("PAS") test. Defendant claims the results of his PAS test were (1) inadmissible as substantive evidence of intoxication; (2) inadmissible because the test was not administered in compliance with governing state regulations; and (3) prejudicial and should have been excluded under Evidence Code section 352. Although admitting the PAS test results was error in this instance due to the number and magnitude of regulatory violations, we conclude the error was harmless and affirm the judgment.
An information filed January 7, 1998, charged defendant with committing the following crimes:
Count 1: Driving under the influence (Veh.Code, § 23152, subd. (a)).1 In addition, defendant had suffered three prior convictions for driving under the influence, one in 1991 and two in 1997, within the meaning of former section 23175;
Count 2: Driving while privileges suspended (§ 14601.5, subd. (a)). In addition, the offense occurred within five years of two prior convictions of driving on a suspended license (§ 14601, subd. (b)(2)).
On August 4, 1998, defendant filed a motion to suppress evidence against him, including the results of the PAS test, pursuant to Penal Code section 1538.5. The trial court denied defendant's motion on September 3, 1998.
At the beginning of trial, December 8, 1998, defendant moved in limine to exclude the PAS test results. The trial court denied the motion. Upon the People resting their case, defendant again moved to exclude the PAS test results, this time pursuant to Evidence Code section 352. The court denied the motion.
On December 23, 1998, the jury found defendant guilty on both counts.
On January 22, 1999, the trial court sentenced defendant to state prison for the upper term of three years on count 1 and a concurrent term of six months in the county jail on count 2.
Defendant timely filed a notice of appeal on February 19,1999.
On the evening of December 27, 1997, Gary Pickle noticed his neighbors were having a party. At approximately 10:00 p.m. that night, Pickle saw someone drive an older Chevy pickup down his driveway, spin the vehicle in a circle very fast, then drive away (a maneuver Pickle called a "brodie"). This happened about every 30 minutes over a two- or three-hour period. Pickle recognized the pickup as one generally driven by defendant. On this night, however, Pickle could not see who was driving.
Frustrated, Pickle walked to the residence where the party was occurring. He confronted three gentlemen near the pickup, one of whom was defendant. Pickle asked them to stop driving down his driveway. Defendant was agitated and upset. The party's host described defendant as being "pretty drunk" at that time. Approximately 15 minutes later, someone again drove the truck down Pickle's driveway, spun around, and left. At that point, Pickle called the police. It was approximately 1:45 a.m., December 28,1997.
Arriving at the scene at approximately 2:00 a.m., Shasta County Deputy Sheriff Vickie Scocca observed a pickup truck parked on the side of the road with its engine running and its headlights on. Scocca observed a person in the truck ducking down underneath a blanket. The subject then got out of the truck—it was defendant. His clothes were disheveled, his fly was open, and he had an odor of alcohol about him. He appeared intoxicated to Scocca. Defendant told Scocca he was out delivering Christmas presents. Scocca was of the opinion defendant could not safely drive a motor vehicle at that time.
A few minutes after Scocca arrived at the scene, California Highway Patrol Officers Jonathan D'Arcy and Douglas Barrett arrived at the scene to assist. Defendant told D'Arcy he had a limp and stuttered. Defendant had a strong odor of alcohol emitting from his breath, bloodshot watering eyes, and slurred speech. Defendant said he drank four beers, the first at 1:00 p.m. the previous afternoon, the last at 2:00 a.m. that morning. D'Arcy administered two field sobriety tests to defendant. Defendant failed each.
D'Arcy then administered a third field sobriety test, the PAS test. To perform this test, D'Arcy used a device known as an Alco Sensor IV which had been assigned to his partner. For this test, the subject breathes into the device. According to the officers, the device gives out a blood-alcohol content measurement based on the subject's deep lung air. D'Arcy had previously been trained to perform the PAS and had used the Alco Sensor IV device well over 100 times. The device appeared to be functioning properly that morning, and he administered the test as he had been trained to do.
D'Arcy advised defendant he was under no obligation to take the PAS test. Defendant consented to taking the test. D'Arcy explained the device's operation to defendant and showed him how it worked. He showed defendant the device's readout of "000," indicating the device was running an "air blank" to clear itself and ensure there was no alcohol residue from a previous test. Defendant took the test. D'Arcy showed defendant the device's measurement: .181.
Based on defendant's performance on the three field tests and his observations of defendant, D'Arcy concluded defendant was under the influence of alcohol and unable to operate a motor vehicle safely. He arrested defendant. Defendant refused to submit to a chemical test.
California Highway Patrol Officer Stephen Hoxie calibrates PAS test instruments. Although he referred to the process as calibration, he stated the process actually concerns testing the instrument's accuracy to make sure its readings are within tolerances specified by regulation. To do this, Hoxie runs the device on a "wet simulator" using a solution rated from the laboratory to have an alcohol content of .10. If the Alco Sensor IV reads this solution as having an alcohol content within the range of .09 and .11, it is considered to be operating within an acceptable range of performance. If it is not, the device must be adjusted, or calibrated, and tested again.
Hoxie testified as the custodian of records of the calibration log maintained on Barrett's PAS device. The Highway Patrol's operating procedure was to test PAS devices every 10 days or every 150 uses, as required by California Code of Regulations, title 17, sections 1215-1222.2 ("Title 17"), the regulations that govern the performance of breath alcohol analysis. Upon reviewing the machine's log, Hoxie opined Barrett's machine was a reliable machine that had been working properly. Barrett's calibration log showed his device had been tested 19 times between January 28, 1997, and February 26, 1998, with but one correction. The last test of his PAS device prior to its use on defendant occurred on November 17, 1997, more than 40 days prior to the device's use on defendant on December 28, 1997. The one test resulting in a correction was performed 11 months prior to the machine's use on defendant. At that test, the machine tested at .11, the highest reading allowed within the specifications. Despite the machine still testing within the allowable range, adjustments were made and the machine was retested. On the retest, the machine read .10.
Defendant argues PAS test results are inadmissible as evidence under the language of section 23157, as that statute existed at the time of defendant's offense. We disagree.
Subdivisions (h) and (i) of former section 23157, now codified at section 23612 without change since defendant's incident, read as follows:
Defendant argues this language reflects a legislative intent for PAS tests to be used only as field sobriety tests, not as substantive evidence of intoxication. Defendant fails to acknowledge field sobriety tests may also serve as substantive evidence of intoxication. ...
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...People v. Williams (2000) 77 Cal. App. 4th 436, §12:37.2 People v. Williams (2001) 25 Cal.4th 441, §9:131 People v. Williams (2001) 89 Cal.App.4th 85, §9:38.6 People v. Williams (2002) 28 Cal4th 408, §§9:38.3, 9:116.1, 11:142.4.9, 11:122.3.3, 11:142.4.9(a), 11:211 People v. Williams (2005) ......