Thursday, May 8, 2008

People v. Acevedo California DUI case

California dui attorney news

May 7, 2008
People v. Acevedo (2001) 93 Cal.App.4th 757 , 113 Cal.Rptr.2d 437

I.

Relevancy of Urine-alcohol Partition Ratio

[1a] Beginning in 1913, California prohibited an intoxicated person
from driving a motor vehicle upon any public highway. (Stats. 1913,
ch. 326, § 17, p. 646.) Recognizing that this definition was difficult
to apply, in 1969 the Legislature created a presumption that a driver
is under the influence if the driver has a .10 percent or more by
weight of alcohol in his or her blood. ( Burg v. Municipal Court
(1983) 35 Cal.3d 257 , 262-263.) Although the 1969 law aided the
prosecution, it still proved difficult to apply because the question
was defined in terms of the defendant's subjective behavior and
condition; "a defendant could escape conviction merely by raising a
doubt as to his intoxication." ( Id. at p. 263.) "In an [93
Cal.App.4th 762] attempt to address the continuing threat to public
safety posed by drinking drivers, in 1981 the Legislature retained the
'driving under the influence' statute, renumbered it [Vehicle Code]
section 23152, subdivision (a), and added ...section 23152,
subdivision (b) which provide[d]: '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. [¶] For purposes of this subdivision, percent, by
weight, of alcohol shall be based upon grams of alcohol per 100
milliliters of blood.'" ( Id. at p. 264.)

The Burg "court held that section 23152, subdivision (b), established
a new and separate offense. More significantly, the court held that
under the subdivision (b) scheme, it was no longer necessary to prove
that the defendant was in fact under the influence; it was enough to
prove that the defendant's blood-alcohol level was 0.10 percent or
more." ( People v. Ireland (1995) 33 Cal.App.4th 680 , 689.) In 1989,
the blood-alcohol level for a violation of Vehicle Code section 23152,
subdivision (b) was lowered from .10 to .08. (Stats. 1989, ch. 1114, §
27, p. 4040.)

"However, because the proscribed driving was still based on the amount
of alcohol present in the person's blood, it was necessary, in the
case of defendants who elected urine or breath tests, to convert the
alcohol readings in those tests to their corresponding blood-alcohol
readings." ( People v. Ireland, supra, 33 Cal.App.4th at p. 689.) The
guidelines used to convert the readings are set forth in title 17,
California Code of Regulations, section 1220.4 (the partition or
conversion ratio).

Because breath and urine tests had to be converted to blood-alcohol
readings, defendants mounted attacks on the reliability of the
partition ratio. In People v. Lepine (1989) 215 Cal.App.3d 91 , Lepine
was charged with driving with a 0.10 percent blood-alcohol content.
She submitted to a breath test. Her breath sample was converted to a
blood-alcohol percentage of 0.13 based on the conversion formula set
forth in title 17 of the California Code of Regulations, section
1220.4, subdivision (f). Before trial she stated her intention of
challenging the ratio contained in the regulations that was used to
convert her breath-alcohol percentage to its blood-alcohol equivalent.
She sought to do so by cross-examining the prosecution expert and by
presenting the testimony of a forensic scientist. The People objected
and "argued that to allow a general attack, unrelated to a defendant's
actual ratio at the time the breath sample was taken, was irrelevant,
speculative and potentially confusing." ( People v. Lepine, supra, 215
Cal.App.3d at p. 94.) The defense offered a transcript of testimony
from an expert in another case, which described variables in the
partition ratios in the general population. The municipal court
sustained the People's objection [93 Cal.App.4th 763] and refused to
allow introduction of defense evidence concerning general variability
in the partition ratio and refused to allow cross-examination of the
People's expert on the subject. ( Id. at pp. 94-95.)

The appellate court fn. 3 rejected the People's position that general
evidence of partition ratio variability is speculative, would confuse
the jury, and would prejudice the People. The appellate court stated:
"What the People seek, however, is not escape from an unfair
disadvantage, but the perpetuation of an unfair advantage. While we
will not, and cannot, arbitrate scientific disputes, it seems clear
from the evidence submitted in this case and from a host of opinions
in this and other states, that the partition ratio may vary from time
to time and from individual to individual. This being the case it is
appropriate a jury be allowed to consider that fact. We trust in the
general rules of evidence, the preparation of counsel and the good
judgment of trial judges to insure that this question of partition
ratio variability is presented to jurors in a proper, complete and
understandable form." ( People v. Lepine, supra, 215 Cal.App.3d at p.
100.)

The court reversed the judgment, concluding that "the trial court
erred in excluding the defense from cross-examining the People's
expert concerning partition ratio variability and from presenting
evidence concerning such variability." ( People v. Lepine, supra, 215
Cal.App.3d at p. 101.)

"The need for the prosecution to prove that breath-test readings met
the .08 percent requirement when converted to blood-alcohol readings
did not promote the legislative scheme. The Assembly Committee on
Public Safety, the Senate Rules Committee, and the Senate Committee on
Judiciary all decried that the challenges to the accuracy of the
partition ratio had resulted in 'expensive and time consuming
evidentiary hearings and undermine[d] successful enforcement of
driving under the influence laws.' [Citation.]." ( People v. Ireland,
supra, 33 Cal.App.4th at pp. 689-690.) Once again, in 1990, the
Legislature changed the law and amended Vehicle Code section 23152,
subdivision (b) to read: "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. [¶] 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." (Stats. 1990, ch. 708, § 1.)

The California Supreme Court in People v. Bransford (1994) 8 Cal.4th
885 interpreted the 1990 version of Vehicle [93 Cal.App.4th 764] Code
section 23152, subdivision (b). The court evaluated "whether the trial
court should have allowed defendants convicted of driving with 0.08
percent or more of alcohol in their blood to challenge their
breath-test results by showing that their personal ratio of
breath-alcohol concentration to blood-alcohol concentration (the
'partition ratio') differed from the standard partition ratio that
breath-testing machines use to convert breath-alcohol readings into
blood-alcohol equivalents." ( People v. Bransford, supra, 8 Cal.4th at
pp. 887-888.) The defendants argued that the amendment to Vehicle Code
section 23152, subdivision (b) made no substantive change to the prior
statute but merely codified the existing administration definition of
the standard partition ratio contained in the California Code of
Regulations. The Supreme Court disagreed and found that, as amended,
"the Legislature intended the statute to criminalize the act of
driving either with the specified blood-alcohol level or with the
specified breath-alcohol level. The second paragraph provided two
distinct definitions." (8 Cal.4th at p. 890.)

Because the statute defined the offense on the basis of grams of
alcohol per 210 liters of breath, the Supreme Court held the trial
court correctly ruled that the defendant's proffered evidence of the
partition ratio was irrelevant and therefore inadmissible. ( People v.
Bransford, supra, 8 Cal.4th at p. 893.)

Defendant here took a urine test. The prosecution's expert determined
defendant's blood-alcohol content by using the partition ratio for
urine in title 17, California Code of Regulations, section 1220.4,
subdivision (e). It provides: "A urine alcohol concentration shall be
converted to an equivalent blood-alcohol concentration by a
calculation based on the relationship: the amount of alcohol in 1.3
milliliters of blood is equivalent to the amount of alcohol in 1
milliliter of urine." Defendant attempted to cross-examine the expert
on the variability of individual partition ratios used to convert
urine-alcohol concentrations to blood-alcohol concentrations. The
trial court repeatedly precluded all questioning in this area.

Defendant contends that the failure of the trial judge to allow
defense counsel to question the prosecution expert regarding the
reliability of the urine test constituted a violation of defendant's
constitutional right of cross-examination and denied him the right to
a fair trial. Defendant relies on People v. Lepine, supra, 215
Cal.App.3d 91 to support his position. Defendant claims that the error
was prejudicial and his conviction for driving under the influence
(Veh. Code, § 23152, subd. (a)) and his conviction for driving with a
0.08 blood-alcohol level (Veh. Code, § 23152, subd. (b)) should be
reversed.

Respondent claims that the trial court properly limited
cross-examination regarding the partition ratio used to convert a
urine-alcohol measurement [93 Cal.App.4th 765] into its blood-alcohol
equivalent. Respondent contends that the Bransford case applies and in
light of Bransford, Lepine is no longer good law. In any event,
respondent submits that the error, if any, was harmless beyond a
reasonable doubt, "at least as to count II [Veh. Code, § 23152, subd.
(a)]."

Respondent fails to explain how the Bransford holding applies to the
situation here. Vehicle Code section 23152, subdivision (b) makes it a
crime to drive with a certain blood-alcohol level or breath-alcohol
level. The statute does not make it a crime to drive with a certain
urine-alcohol level. When the urine test is administered, the results
must be converted to a blood-alcohol level using the partition ratios
set forth in the California Code of Regulations. Bransford simply has
no application to urine partition ratios. The court in Bransford
explained why, prior to the amendment of the statute, courts allowed
defendants to challenge results of their breath tests on the basis of
variable partition ratios.

"Many variables, however, can affect the actual ratio of an
individual's breath-alcohol concentration to blood-alcohol
concentration. These variables include body temperature, atmospheric
pressure, medical conditions, sex, and the precision of the measuring
device. [Citations.] Changes in these variables may result in a
difference between an individual's actual blood-alcohol level and the
blood-alcohol level determined by applying the standard partition
ratio to the breath-test results.

"Courts therefore allowed defendants charged under the predecessor
statute to attack breath-test results on the basis of this
variability. Defendants were initially allowed to demonstrate only
that their personal partition ratio differed from the standard
partition ratio. [Citations.] They would do so by simultaneously
measuring their breath-alcohol concentration and blood-alcohol
concentration over a period of time. [Citations.] Later courts also
allowed defendants to demonstrate that partition ratios differ among
individuals generally. [Citation.] Defendants would usually do so by
having an expert testify that the standard partition ratio is merely
an approximation and that different individuals have different
personal partition ratios. [Citations.]" ( People v. Bransford, supra,
8 Cal.4th at p. 889.)

The court in Bransford did not disapprove of the above line of cases;
it merely found they were no longer applicable when the defendant was
charged with a violation of Vehicle Code section 23152, subdivision
(b) and sought to challenge the partition ratios for breath tests.
Because the statute now defined the crime in terms of specific grams
of alcohol per liter of breath, partition ratios comparing volume of
blood to volume of breath no [93 Cal.App.4th 766] longer bore
relevance. Contrary to respondent's assertion, Bransford does not
apply to urine partition ratios; Lepine applies. fn. 4

[2] "The Sixth Amendment guarantees the right of an accused in a
criminal prosecution '"to be confronted with the witnesses against
him."' [Citation.] 'The right of confrontation, which is secured for
defendants in state as well as federal criminal proceedings [citation]
"means more than being allowed to confront the witness physically."
[Citation.] Indeed, "'[t]he main and essential purpose of
confrontation is to secure for the opponent the opportunity of
cross-examination .'" [Citations.]' [Citation.] '[T]he right of
confrontation and cross-examination is an essential and fundamental
requirement for the kind of fair trial which is this country's
constitutional goal. Indeed, ... to deprive an accused of the right to
cross-examine the witnesses against him is a denial of the Fourteenth
Amendment's guarantee of due process of law.' [Citation.]" ( Alvarado
v. Superior Court (2000) 23 Cal.4th 1121 , 1137.)

"It is the essence of a fair trial that reasonable latitude be given
the cross-examiner, even though he is unable to state to the court
what facts a reasonable cross-examination might develop. Prejudice
ensues from a denial of the opportunity to place the witness in his
proper setting and put the weight of his testimony and his credibility
to a test, without which the jury cannot fairly appraise them.
[Citations.] To say that prejudice can be established only by showing
that the cross-examination, if pursued, would necessarily have brought
out facts tending to discredit the testimony in chief, is to deny a
substantial right and withdraw one of the safeguards essential to a
fair trial." ( Alford v. United States (1931) 282 U.S. 687, 692.)

[1b] The trial court erred when it limited defendant's
cross-examination of the prosecution expert, Lynd, sustaining all
objections to questions relating to challenging the partition ratio
used by the expert. Respondent asserts the error, if any, was harmless
at least as to the Vehicle Code section 23152, subdivision (a) count.

We set forth in detail a close review of the record to demonstrate
that the error was prejudicial as to both Vehicle Code convictions:
driving under the [93 Cal.App.4th 767] influence (Veh. Code, § 23152,
subd. (a)) and driving with a blood-alcohol level of .08 or above
(Veh. Code, § 23152, subd (b)).

Lynd testified that he was familiar with the effect of alcohol upon a
person's ability to drive safely. He stated, "I think everybody is an
impaired driver with a blood alcohol of .10 percent or higher. Most
people are going to be impaired at a level less than that." He
supported his conclusion by describing certain studies done on a
driver's impairment at different levels of intoxication, again
emphasizing the .10 level as the level where drivers are always under
the influence, in his opinion.

Lynd then described the procedures used in the laboratory to test
alcohol in a urine sample. He then testified about how he tested
defendant's urine sample. The tests resulted in a conclusion that
defendant's blood-alcohol level at the time of the urine sample was
.10. He further testified that based solely on defendant's .10
blood-alcohol level "I could say he wouldn't be able to drive a car
safely with this blood alcohol level" and defendant would be under the
influence.

The prosecutor described several of the observations of defendant by
Officer French to the expert and asked if those were consistent with a
person being under the influence of intoxicating liquor. Lynd replied
that they were consistent. Lynd testified that if defendant had
reached his peak blood-alcohol level and was on a "downhill," his
blood-alcohol level at the time he was stopped would be in the
neighborhood of .13 or .14. This was only accurate if the assumption
that defendant had reached his peak was true. Lynd testified that if
these higher figures were in fact defendant's level at the time he was
driving "that would certainly be consistent with him being under the
influence of alcohol."

On cross-examination, Lynd testified that a formula was used to
determine the blood-alcohol level from urine. Lynd agreed there are
people who would argue that urinalysis is not the best method of
determining blood-alcohol concentration. The court sustained the
prosecution's relevance objection to questions regarding the universal
acceptance of the conversion ratio for breath to blood and the fact
that about half the states do not recognize urinalysis as a legitimate
means of obtaining the blood-alcohol concentration. An objection was
sustained to the question of whether Lynd had kept abreast of any
studies regarding the strength of the analysis he utilized in testing
the urine. The court sustained an objection from defendant's counsel
of whether Lynd was aware that law enforcement officers no longer have
to [93 Cal.App.4th 768] offer a choice of urinalysis. fn. 5 Defense
counsel then began questioning Lynd regarding the assumptions that
have to be made in order to use urinalysis to convert the results back
to blood-alcohol concentration. Lynd replied "We don't have to because
we work under some rules that are found in Title 17 of the California
Code of Regulations, and they tell me I have to divide how much
alcohol I found in the urine by 1.3. That doesn't give me any choice.
It's not a concern." Defense counsel asked, "And you have to assume
that the ratio of alcohol in the blood to that in the fluid is
relatively constant over the whole general population of California."
Again the prosecution's objection was sustained. Counsel questioned
whether different states use different models. Lynd said he was not
aware of that. The court sustained an objection as to Lynd's awareness
as to the ratio used in other states. Next the court sustained an
objection to counsel's question whether the 1.3 ratio assumes that
everyone in that particular state has the same urine-to-blood ratio.
Immediately thereafter, the court sustained an objection to counsel's
question regarding different biological makeups from person to person.

Apparently frustrated with counsel's persistence in this area, the
court interjected and the following occurred:

"THE COURT: You can challenge the individual test in this case, but
the method of testing, that's the law in the State of California,
three methods of testing. If you want to change that, go to the
legislature.

"MR. LOPEZ [defense counsel]: There are assumptions, though, that he
is making in order to make this test.

"THE COURT: The law tells him he has to make those assumptions, right?
It's in Title 17.

"Is that what it is?

"THE WITNESS: Yes, Your Honor.

"THE COURT: Not here to litigate whether those rules are good or bad.

"MR. LOPEZ: California uses the .13 (sic) ratio.

"MS. VAUGHN [district attorney]: Same objection. [93 Cal.App.4th 769]

"THE COURT: Sustained.

"MR. LOPEZ: Q. So when you first test -- you first get a result of
what the urine alcoholic concentration is, right?

"A. Actually, no. The way it works is, when we prepare the samples for
the gas chromatograph, I tell the instrument whether it's a blood or a
urine sample. If I tell it it's a urine, it automatically divides by
this 1.3 ratio. I don't have to do anything extra.

"Q. So you don't know what it was at, urine alcoholic concentration,
you don't know what that level was?

"A. Oh, sure.

"Q. What was it?

"A. It was 1.3 times the results the instruments gave me.

"Q. Do people vary in the level -- scratch that, Your Honor. "Is it
true that the reason 1.3 was used, 1.3 to one ratio used --

"MS. VAUGHN: I am going to object to any further questions about the ratio.

"THE COURT: Sustained.

"MR. LOPEZ: Q. Does everybody have that ratio?

"MS. VAUGHN: Objection.

"THE COURT: Sustained."

Defendant was allowed to ask Lynd if someone's blood-alcohol content
would be different if his or her ratio was 1.5 instead of 1.3. Lynd
said yes, the blood-alcohol content would be lower. The court
continued to sustain objections to defense counsel's questions
regarding differing ratios.

The prosecutor began her redirect of the expert by asking him if the
testing machine in the laboratory was set to California legal
standards. Lynd replied it was. [93 Cal.App.4th 770] The district
attorney continued: "That's accepted ... as reliable scientific
evidence throughout the State of California; isn't that true?" Lynd
replied it was.

In closing argument to the jury, the district attorney argued that
defendant drove under the influence and drove with a .08 or above
blood-alcohol level. In making this determination, the district
attorney argued that the jury should consider that defendant's urine
tested .10, "tested according to California laws, California
standards."

During defense counsel's closing argument, he stated to the jury that
Lynd's estimate of defendant's blood-alcohol level was wrong and he
would tell the jury why the estimate was wrong. The following
occurred:

"You have heard -- you heard Dr. Lynd testify that urinalysis is still
in serious debate in California. There are many experts who disagree
with him. Many experts --

"THE COURT: You asked those questions. I sustained the objection.

"MS. VAUGHN: This is not the law.

"MR. LOPEZ: No, I asked him --

"THE COURT: Don't argue with me. That wasn't objected to. There is a
debate. There was a debate in the community."

The district attorney in her final argument emphasized that it was
important for the jury to remember that questions are not evidence and
if a question was objected to and the objection sustained, then it is
not even on the record. Regarding the ratio questions and the validity
of Lynd's testimony the prosecutor argued:

"Additionally, all the questions regarding the urine test and supposed
ratios, all of that is not evidence because the law in California says
that the drug laboratory, the Department of Justice, is to use a
certain standard in doing their urine tests.

"In fact, the law in California says you get to choose a urine test if
that's your choice. If you choose a urine test, you can't come in here
and say, well, urine tests are bad across the board because that was
his choice. He chose that.

"And it is important to remember that the law is the urine test is
valid and the procedure with which Dr. Lynd said they use is the
California legal procedure. That's what the law says they have to do.
They do it as they are told to do it. There is no disputing that.
There is no evidence to the contrary. [93 Cal.App.4th 771] You didn't
hear anybody get up here and say that test didn't work. Was the
machine not working properly? The only evidence you have is that it
was working properly.

"They have -- and Dr. Lynd told you we have tests. We have samples in
there that we know are .0. We have controls set up to make sure that
it's working right. And they take two samples out of the urine and run
them through the machine. That's how they got these results. He told
you that. It's in the testimony. Only what he said is evidence.

"That is very important for you to remember, because counsel just sat
here and went on and on about Count III, saying there is no evidence
to support it. Well, I told you in my opening -- closing argument that
we're not here to prove he was drunk, we are not to prove he was
falling down, that he weaved all over the road. That's not what we
have to prove. There is no element there that says that. Weaved. All
we have to do is show he was under the influence of the alcohol.

"Dr. Lynd said you're impaired. What does that mean? Dr. Lynd said
there is such a thing as tolerance. There is no evidence as to what
the history of this man's drinking is. We don't know what his
tolerance is. But we know from what Dr. Lynd said, what is in
evidence, is that everybody at .10 is impaired. How much impaired? It
doesn't matter. They are impaired. They are impaired to the point that
they are not going to make the same decisions or react the same way
that a normal person who has no alcohol in their system or under that
amount would do."

Defendant was precluded from asking questions regarding partition
ratios. As stated in People v. Lepine, supra, 215 Cal.App.3d at page
100, the jury should be allowed to consider that partition ratios may
vary from time to time and from individual to individual. Not only was
the jury here precluded from hearing all evidence related to this
variability, but the court, the prosecutor, and Lynd separately
emphasized that the partition ratio used by Lynd is the ratio mandated
by the State of California, and the prosecutor went so far as to
elicit from Lynd that the ratio is "accepted ... as reliable
scientific evidence throughout the State of California." After hearing
from several sources, including the judge, that the ratios are
mandated in California, the jury was clearly led to believe that the
partition ratios were cast in stone with no variations allowed.
Defendant was not allowed to attempt to establish that the partition
ratio used by the expert might not be accurate for all individuals.
Defendant's blood-alcohol level was calculated to be .10, this is not
appreciably higher than the .08 required to prove a violation of
Vehicle Code section 23152, subdivision (b). Defendant was clearly
prejudiced as to the subdivision (b) count. [93 Cal.App.4th 772]

He was also prejudiced as to the driving under the influence count
(Veh. Code, § 23152, subd. (a)). Although Officer French provided
significant evidence that defendant was driving under the influence,
the evidence was not overwhelming, and defendant offered plausible
explanations for his failure to pass some of the sobriety tests
conducted by French. Lynd repeatedly stated that anyone driving with a
.10 or above blood-alcohol level was under the influence. The
prosecutor during her closing argument emphasized this. In addition,
the trial court, Lynd, and the prosecutor fortified the ratio used in
Lynd's .10 calculation as sacrosanct in California, thus giving it a
false aura of absolute reliability. During deliberations the jury
asked to hear the testimony of both Officer French and Lynd. The jury
may very well have used Lynd's .10 calculation and testimony that
anyone with a .10 or above blood-alcohol level is under the influence
in determining that defendant was guilty of driving under the
influence pursuant to Vehicle Code section 23152, subdivision (a). The
failure to allow cross-examination on the partition ratio prejudiced
defendant for this count also. Counts II and III of case No. 146157
must be reversed.

II.-IV. fn. *

. . . . . . . . . . . . . . . . . . . . . . .

DISPOSITION

The convictions of count II (Veh. Code, § 23152, subd. (a)) and count
III (Veh. Code, § 23152, subd (b)) in case No. 146157 are reversed.
After further proceedings are concluded on the reversed counts in case
No. 146157, the trial court must resentence defendant in accordance
with the views expressed above. In all other respects, the judgment is
affirmed.