Metropolitan News-Enterprise


Friday, November 22, 2013


Page 1


S.C. Says Expert Cannot Challenge Breathalyzer Technology


By JUSTIN LEVINE, Staff Writer


A trial judge overseeing a DUI case properly excluded expert testimony that challenged the overall reliability of breath-alcohol testing machines, the California Supreme Court has ruled.

In a unanimous opinion written by Chief Justice Tani Cantil-Sakauye, the court held that a defendant charged with driving with a blood-alcohol level of 0.08 percent or more, in violation of Vehicle Code §23152(b), can argue that a particular breathalyzer machine used to convict him was faulty. But an expert witness cannot challenge the overall reliability of such devices since the Legislature determined as a matter of policy that they are reliable for purposes of evidential use in a criminal prosecution, the court said.

The case involved Terry Vangelder, who was pulled over by the California Highway Patrol for speeding and consented to take two tests using an Intoximeter Alco-Sensor IV, a handheld breathalyzer device. The device indicated that Vangelder had an alcohol level of 0.095 percent on the first test, and 0.086 percent on a second test administered two minutes later.

Officers arrested him and subjected him to additional breathalyzer tests at the county jail using an Intoximeter EC/IR device which indicated an alcohol level of 0.08 percent.

Vangelder was charged with misdemeanor counts of driving under the influence of alcohol in violation of Vehicle Code §23152(a) and driving with a blood-alcohol concentration of 0.08 percent or more, in violation of §23152(b).

During trial, his defense called a University of Washington professor of medicine, Dr. Michael P. Hlastala, as an expert witness.

‘Inherently Inaccurate’

Hlastala testified that breathalyzer tests were “inherently inaccurate” because they worked on a false assumption that the alcohol concentration in one’s breath is directly related to the amount in one’s blood. He said that such breath tests were only an “indirect” means of determining blood alcohol levels and that even if the breathalyzer devices operated properly as designed, they could be impacted by a variety of psychological factors and would not produce scientifically reliable results.

The jury heard portions of Hlastala’s testimony, while other portions were offered in hearings outside of the jury’s presence to determine admissibility.

The trial court ruled that Hlastala’s testimony concerning the overall reliability of breathalyzers was speculative and inadmissible, but that he could still testify that the particular machines used in Vangelder’s case were not operating properly and that their results could be contaminated by “mouth alcohol” which dissolves into mouth tissues and does not reach the bloodstream. 

The jury could not reach a verdict on the generic charge of driving under the influence, but found Vangelder guilty under §23152(b) of driving with 0.08 percent or more alcohol in his blood.

The Court of Appeal reversed the conviction, holding that Hlastala’s testimony was improperly barred and should have been allowed.

The Supreme Court disagreed, holding that Hlastala’s statements were properly excluded because they were incompatible with legislative determinations that could not be challenged.

Case Cited

Cantil-Sakauye wrote that the court’s previous decision in People v. Bransford (1994) 8 Cal.4th 885 concluded that amendments to §23152(b) in 1990 showed a legislative intent to criminalize driving with a specified alcohol level determined from either a suspect’s blood or breath. The Bransford ruling also concluded that the amended law rendered conversion methodologies that determined blood-alcohol levels from breath samples to be irrelevant because the revised statute “defined the offense without regard to such ratios.”

She further wrote that a DUI offense under §23152(a) carries a rebuttable presumption of unlawful intoxication levels if the jury finds the defendant has an alcohol level of 0.08 percent or more based strictly on blood testing, which would allow Hlastala’s testimony to be relevant in determining guilt. In contrast, §23152(b) makes questions of breath to blood alcohol ratios irrelevant since it specifically defines alcohol limits in terms of either blood or breath levels.

Cantil-Sakauye also said that in enacting Health and Safety Code §§100700 and 100701 in 2004, the Legislature effectively ratified administrative determinations and federal specifications for breathalyzers as well as an approved model list of such machines.

“By both statute and legislatively endorsed regulations,” she said, “California has in essence determined that all models meeting the federal standards produce sufficiently reliable results for purposes of California’s statutes relating to alcohol-concentration limits.”

Cantil-Sakauye said that although Hlastala could hold “scientifically based reservations concerning these legislative conclusions,” courts were required to defer to the Legislature’s findings in this area regarding admissible evidence.

In holding that Hlastala’s testimony was irrelevant for purposes of proving a violation of §23152(b), Cantil-Sakauye wrote:

“[D]efendant remained free to argue, and present evidence, that the particular machines used in this case malfunctioned, or that they were improperly calibrated or employed. But the fundamental reliability of the breath-testing models used in this case to produce results that are pertinent to the [§23152(b)] has been determined by the Legislature. That legislative determination is not subject to rebuttal as a defense in a criminal prosecution…Just as a court will not substitute its judgment for that of the Legislature in this regard, nor may a defendant, through an expert witness, invite a jury to substitute the expert’s judgment for that of the Legislature in this respect.”

Saying the “fundamental reliability of federally approved, properly calibrated” breathalyzers used to enforce California’s DUI statute under §23152(b) had been “determined as policy by the Legislature,” Cantil-Sakauye said that the expert testimony in Vangelder’s case was properly excluded by the trial judge.

The case is People v. Vangelder, 13 S.O.S. 5916.


Copyright 2013, Metropolitan News Company