People v. Bury (41 Cal. App. 4th 1194, 1996)

Opinion

STONE (S. J.), P. J.

Brian Keith Bury appeals his conviction by a jury of felony driving under the influence of alcohol. (Veh. Code, § 23152, subd. (a).) He contends his conviction must be reversed due to the improper admission of the results of a preliminary alcohol screening (PAS) test administered to him at the scene of his arrest. A PAS device is a breath-testing instrument used to determine either the presence or concentration of alcohol in a person’s blood. Such device may be used by police, but is not required, in order to make a preliminary determination of sobriety prior to arrest. (§23157, subd. (h).) A PAS test is differentiated from mandated chemical testing of a suspect’s blood-alcohol level (BAL) after a lawful arrest under the implied consent law. (§23157, subd. (a)(1); 72 Ops.Cal.Atty.Gen. 226, 227, 229 (1989).)

We rule the PAS test evidence introduced at appellant’s trial was admissible.

Facts

At 1:40 a.m. on February 10, 1994, California Highway Patrol Officer David Hall was on patrol with his partner Officer Pedro Leon on highway 101 when they noticed an automobile traveling in the left-hand lane at 45 miles per hour. The vehicle then was driven across three lanes and onto a ramp exiting the freeway. The officers followed the vehicle. A check of its license plate revealed the automobile’s registration had expired. Also, the driver, appellant, was not wearing his seat belt. The officers stopped the vehicle.

Officer Leon walked up to the right side of the car where an extremely intoxicated passenger was sitting. The interior of the car smelled of alcohol. Leon told appellant he was suspected of drunk driving and asked him for his driver’s license and automobile registration. After appearing to look for his license, appellant told Leon he did not have it with him. Appellant looked dazed and did not respond when Leon next asked him for his name. When Leon asked a second time, appellant replied his name was “Lance.” Leon then asked twice for appellant’s last name, and appellant eventually said “James.” When Leon asked appellant for his middle name, appellant said “James” and then “Bury.”

Officer Leon then told appellant to get out of the car. Appellant dragged his feet on the sidewalk.

Leon instructed appellant to perform some field sobriety tests. The sidewalk was flat and illuminated by a street light. Appellant failed the first test to keep his feet close together, close his eyes, tilt his head back—he started to fall backwards, and to estimate how many seconds had passed—he said 30 seconds when 15 seconds had passed. He next failed to stand on one foot and count from 1,001 to 1,030—he lost his balance three times and could only count three numbers; on the fourth try he counted seven numbers, then put his foot down and indicated he was done. Appellant next could not walk heel to toe in a straight line for nine steps, turn around and walk another nine steps—he left spaces between his heel and toe and only walked nine steps one way.

Following appellant’s failure to correctly perform these physical and verbal coordination tests, Officer Leon decided to conduct a PAS test on appellant with an “Aleo-Sensor III” (Alco-Sensor) machine. After checking the machine’s calibration, Leon told appellant the test was optional and if he was arrested he would be required to take a blood, breath or urine test. Appellant voluntarily blew into the machine’s mouthpiece. The digital display showed a reading of .174. Leon rechecked the machine’s calibration, and after several minutes obtained another breath sample from appellant. The second reading was .179.

Appellant was arrested for driving under the influence of alcohol.

Following his arrest, appellant refused, then agreed, to take a chemical test under the implied consent law. (§ 23157, subd. (a)(1).) Later at the police station, he refused to take a chemical test until his attorney was present. As a result, no further test was taken to determine appellant’s BAL.

At appellant’s trial, the prosecution introduced undisputed expert testimony on the reliability of the Alco-Sensor machines used in Ventura County. This testimony further disclosed that a person with a concentration of anywhere from .05 to .10 percent BAL may be unable to operate an automobile safely. Impairment would be certain for most persons at .10 percent. Officer Leon testified to the numerical results of appellant’s PAS test. The jury was instructed that it could consider the PAS test results in determining whether appellant’s BAL was at least .08 percent. (CALJIC No. 12.61 (1990 rev.).)

Discussion

Appellant contends the results of his PAS test were inadmissible since (1) the Legislature did not intend such evidence to establish blood-alcohol content for purposes of establishing guilt; (2) PAS machines have not been accepted by the scientific community under the Kelly/Frye reliability test; (3) the PAS evidence here was unreliable as being based on hearsay; and (4) the use of this evidence violated appellant’s constitutional rights to due process and equal protection.

Prior to the trial, appellant moved in limine to exclude the PAS test evidence on the grounds of legislative intent and the Kelly/Frye test. He did not properly object to the evidence on the grounds of hearsay and unconstitutionality. Appellant has therefore waived review on the latter grounds. A judgment shall not be reversed for the erroneous admission of evidence unless the evidence was timely objected to in the trial court on the exact ground being raised on appeal. (People v. Belmontes (1988) 45 Cal.3d 744, 766-767 [248 Cal.Rptr. 126, 755 P.2d 310]; Evid. Code, § 353, subd. (a).)

Scientific Reliability

Appellant’s reliance on the Kelly/Frye test to exclude his PAS test evidence is without merit. This test requires the proponent of the application of a new scientific technique to establish (1) the technique has gained general acceptance in its field; (2) testimony regarding the technique and its application is offered by a properly qualified expert; and (3) correct scientific procedures have been used in the particular case. (People v. Morris (1991) 53 Cal.3d 152, 206 [279 Cal.Rptr. 720, 807 P.2d 949].) The trial court found the technique used here was not a new scientific procedure that would trigger a Kelly/Frye hearing. We agree.

A PAS device is not a novel technique. (McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 525 [7 Cal.Rptr.2d 18]; 72 Ops.Cal.Atty.Gen., supra, at p. 227.) Breath tests for alcohol content have been admissible by decisional law before the enactment of the implied consent law in 1966. (72 Ops.Cal.Atty.Gen., supra, at p. 229.) The first device used to test breath for alcohol, the “Harger Drunkometer,” was developed in 1931, and the scientific reliability and accuracy of its operation were first approved in the United States in 1954. (Id., at p. 227; People v. Sudduth (1966) 65 Cal.2d 543, 546, fn. 1 [55 Cal.Rptr. 393, 421 P.2d 401].) Breath tests to determine blood-alcohol concentration have long been recognized by decisional law in California as scientifically valid. (People v. Adams (1976) 59 Cal.App.3d 559, 561 [131 Cal.Rptr. 190], citing People v. Sudduth, supra, at p. 546.) Recently, the PAS test has been approved as a reliable method of measuring the presence of alcohol in a minor’s blood under the zero tolerance law. (Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 673-677 [46 Cal.Rptr.2d 123]; § 23136.)

Appellant specifically refers to the “fuel cell” device in the Alco-Sensor machine as being a new scientific development. The trial court found that neither the Alco-Sensor itself nor its fuel cell was scientifically new. Appellant presented no evidence to contradict these findings.

Even if his particular theory is correct, it is unavailing. A PAS device is characterized by the purpose of its use rather than the nature of the device itself. (72 Ops.Cal.Atty.Gen., supra, at p. 227.) “Conceivably, any breath testing device could be used ... if the necessary equipment and personnel to operate it are made available to the peace officer before an arrest is made.” (Ibid.) Many types of breath-testing devices exist; by 1989, there were 56 approved PAS devices. (72 Ops.Cal.Atty.Gen., supra, at pp. 227228.) Appellant’s theory of requiring each new breath-testing device or mechanism to be subject to a Kelly/Frye analysis would lead to unnecessary and unduly burdensome litigation.

To properly contest the foundational requirements for the admission of the PAS evidence, appellant should have questioned whether the testing apparatus was in working order, whether the test was properly administered, and whether the operator was competent and qualified. (People v. Sangani (1994) 22 Cal.App.4th 1120, 1137 [28 Cal.Rptr.2d 158].) This appellant failed to do.

He also did not challenge Ventura County’s compliance with state law. (Health & Saf. Code, § 436.52; Cal. Code Regs., tit. 17, § 1215 et seq.) In this regard, a distinction is made in California between breath-testing devices which determine the concentration of alcohol in the blood versus devices which simply determine the presence of alcohol in the blood. The title 17 regulations (Cal. Code Regs., tit. 17, §§ 1215-1222.2) have been held to be inapplicable to breath testing equipment utilized to detect the presence of alcohol in a person’s blood. (Coniglio v. Department of Motor Vehicles, supra, 39 Cal.App.4th 666, citing §23136, subd. (c)(1) [zero tolerance law]; 72 Ops.Cal.Atty.Gen., supra, at pp. 230-231.) These regulations are applicable to PAS devices used by law enforcement to preliminarily measure the concentration of alcohol in a suspect’s blood prior to arrest. (72 Ops.Cal.Atty.Gen., supra, at pp. 226, 230-232; Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 816 [3 Cal.Rptr.2d 478] .) Here, the Alco-Sensor device employed by Officer Leon determined, via the machine’s digital display, the numerical concentration of alcohol in appellant’s blood.

Appellant’s failure to object to any of these foundational requirements for establishing the reliability of the PAS evidence is a waiver of his entitlement to a review of the evidence on this ground. (Evid. Code, § 353, subd. (a).)

Legislative Intent

Section 23157, subdivision (h), provides: “A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 may be used only after the officer evaluates the totality of the circumstances, including the person’s performance on the field sobriety tests and under both of the following conditions: [