People v. Ireland (33 Cal. App. 4th 680, 1995)

Opinion

PREMO, J.

Defendant Randy A. Ireland was charged by complaint in municipal court with misdemeanor offenses of driving under the influence of alcohol (Veh. Code, §23152, subd. (a)), and driving with .08 percent or more, by weight, of alcohol in his blood (§ 23152, subd. (b)).

The jury found defendant guilty on the section 23152, subdivision (b) count, but hung on the section 23152, subdivision (a) count. The trial court declared a mistrial on the subdivision (a) count, then later dismissed that count conditioned “upon ratification of verdict.”

Defendant appealed to the appellate department of the superior court, which affirmed the judgment. More than a year later, the appellate department recalled the remittitur and certified the appeal to us. We accepted the transfer of the appeal because of the importance of the issues raised.

During the pendency of the appeal with this court, defendant requested that judicial notice be taken of certain scientific literature and legislative histories. Respondent interposed no objection. We decided to consider that request together with the consideration of the merits of this appeal. We now resolve to take judicial notice of the legislative histories submitted. As to the scientific literature, we take judicial notice only to the existence of the writings; the truth of the scientific claims written about cannot be judicially noticed, but must be proved, since some of those claims are currently the subject of controversy. (Evid. Code, § 452.)

We affirm the judgment.

Facts

On October 19, 1991, at 11:30 p.m., Capitola City Police Officer Philip Wowak stopped a van which he had observed speeding and following too closely. As Wowak approached the van, defendant driver rolled down the window. The officer smelled the odor of alcohol coming from the vehicle. He noticed, among other symptoms, that defendant’s speech was slurred, his eyes were very bloodshot, and his movements were very slow and deliberate when retrieving his wallet and driver’s license. Wowak conducted field sobriety tests, which defendant failed. Defendant told Wowak he had consumed one beer earlier that evening. Wowak arrested defendant for driving under the influence.

Wowak advised defendant that he had the choice of a blood, breath, or urine test. Defendant chose the breath test. Wowak, who had been trained in administering breath tests, administered the breath test to defendant at 12:01 a.m. and 12:02 a.m. The results showed alcohol concentrations of 0.11 percent and 0.10 percent.

Wowak advised defendant he could choose another test at no charge. Defendant declined to do so, saying “this is all he wanted to do.”

The People presented as its expert witness Juan Bergado, a criminalist with the Department of Justice. Bergado reviewed the accuracy logs of the Intoxilyzer 5000 machine which was used for defendant’s breath test, and concluded that the instrument was operating properly on the date of defendant’s test.

Bergado explained that the 2,100:1 breath-to-blood conversion ratio is determined from correlation studies wherein blood samples drawn from an individual’s arm are compared to breath samples taken from that individual. He further explained that the 2,100:1 ratio represents the parts of alcohol found in the breath compared to the parts of alcohol found in the blood drawn from the arm.

Testifying in his defense, defendant testified that he had a beer at a relative’s home about 6 p.m. About 7 p.m., he, together with some relatives and friends, went to a restaurant for dinner. The dinner took two hours, during which time defendant consumed two beers. At 9 or 9:15 p.m., defendant went to another bar where he and his relatives and friends stayed for a half an hour or 40 minutes. They then went to a third bar (Castaways) where defendant consumed one beer. Approximately one hour later, defendant left for home.

Defendant’s expert witness, William Gigiere, explained the basis of the 2,100:1 alcohol-in-breath to alcohol-in-blood ratio. He testified that alcohol is first absorbed into the artery, then gets distributed throughout the body. The neurological effects of alcohol are the result of the alcohol coming in contact with the brain, which is the control center of the body. Alcohol reaches the veins after peak absorption. At peak absorption, the arterial value of alcohol is equal to its venous value “from a practical standpoint.” Prior to peak absorption, the amount of alcohol in the artery (reflected by the breath test) will be greater than the amount of alcohol in the veins (reflected by the blood test). Consequently, the 2,100:1 statutory partition ratio will be overstated during the absorptive phase and understated during the postabsorptive phase.

Gigiere testified that he had tested defendant on November 24, 1991, to determine defendant’s partition ratio. Defendant’s partition ratio during the absorptive phase was 1,329:1. During the postabsorptive stage, defendant’s breath alcohol result was slightly lower than his venous blood alcohol result.

On cross-examination, Gigiere stated he could not say what defendant’s partition ratio was at the time of defendant’s arrest. Gigiere acknowledged that a person’s partition ratio is germane to the time of the test.

Contentions

In this appeal, defendant contends:

1. The Legislature did not create a new substantive offense of driving with an excessive breath-alcohol content.

2. The Legislature did not intend to exclude evidence of the variability of blood:breath partition ratios.

3. Due process and the right to confront adverse witnesses entitle the accused to present evidence of the variability between blood and breath test results.

4. Unless defendants are allowed to challenge the blood: breath partition ratio, the statute creates an unconstitutional mandatory presumption.

5. To interpret the statute as creating a new offense of “excessive breath-alcohol” would violate equal protection because similarly situated individuals would be held to different standards of conduct based on the arbitrary factor of which test was given.

Discussion

Creation of New Substantive Offense

Defendant contends the Legislature did not create a new substantive offense of driving with an excessive breath-alcohol content. The contention is without merit.

The critical issue is not whether the 1990 amendment (hereafter, 1990 amendment) to section 23152, subdivision (b), creates a new substantive offense of driving with an excessive breath-alcohol content, but whether the Legislature has the power to prohibit any person with a certain amount of alcohol concentration in his or her breath from driving a motor vehicle. It is immaterial whether the prohibition is viewed as a new offense or as an alternative definition of an existing offense.

As amended in 1990, section 23152, subdivision (b), reads in pertinent part: “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle, [f] For 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.” (See Stats. 1990, ch. 708, § 1.)

California’s earliest law on drunk driving was a 1913 statute which provided: “No intoxicated person shall operate or drive a motor or other vehicle upon any public highway within this state.” (Stats. 1913, ch. 326, § 17, p. 646; Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal.Rptr. 145, 673 P.2d 732].)

In 1969, the Legislature, recognizing the need for a more precise understanding of the offense of “driving under the influence,” created a presumption that the driver is under the influence if he or she had .10 percent or more by weight of alcohol in his or her blood. (Burg v. Municipal Court, supra, 35 Cal.3d at p. 263; cf. Stats. 1969, ch. 231, § 1, p. 565.)

Reliance on this presumption subsequently proved inadequate. The Legislature realized that the ultimate question was still “defined in terms of the defendant’s subjective behavior and condition: ‘Was the defendant under the influence at the time he drove?’ ” (Burg v. Municipal Court, supra, 35 Cal.3d at p. 263.) In Burg, the court observed that “[c]elerity and certainty of punishment were frustrated by the ambiguity of the legal criteria; no matter what his blood-alcohol level, a defendant could escape conviction merely by raising a doubt as to his intoxication. [Citations.]” (Ibid.)

The magnitude of the problem was described by the court in Burg: “Nearly half of the traffic deaths in California between 1976-1980 involved drinking drivers. [Citation.] Nearly one-quarter of all traffic accidents resulting in injury involved the use of alcohol. [Citation.] Traffic deaths in the United States exceed 50,000 annually, and approximately one-half of those fatalities are alcohol-related. [Citations.] [¶][] The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation. The monstrous proportions of the problem have often been lamented in graphic terms by this court and the United States Supreme Court. [Citations.] As observed in Breithaupt v. Abram (1957) 352 U.S. 432 [1 L.Ed.2d 448, 77 S.Ct. 408], ‘[t]he increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield.’ [Citation.] Indeed, in the years 1976 to 1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War, and more were killed than in the bloodiest year of the Vietnam War. [Citation.] Given this setting, our observation that ‘[d]runken drivers are extremely dangerous people’ [citation] seems almost to understate the horrific risk posed by those who drink and drive.” (35 Cal.3d at pp. 261-262.)

In 1981, the Legislature fortified the drunk driving laws by amending subdivision (b) to section 23152. That amended subdivision stated: “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 upon a highway or upon other than a highway in areas which áre open to the general public. [