(San Francisco County Super. Ct. App. No. 6443 Super. Ct. Trial No. 2234694). Hon. Lillian Sing, Judge.
The opinion of the court was delivered by: Jenkins, J.
CERTIFIED FOR PUBLICATION
Defendant Leroy B. Jackson was convicted after a jury trial of misdemeanor drunk driving in violation of Vehicle Code section 23152, subdivisions (a) and (b).*fn1 Defendant appealed to the Appellate Division of the Superior Court, which affirmed his convictions without opinion. Defendant sought relief in this court and we granted defendant's petition for transfer in order to address the issue of whether the trial court erred by admitting evidence that defendant refused to take a preliminary alcohol screening (PAS) test. For the reasons set forth below, we hold that the trial court erred by admitting evidence of defendant's refusal to take the PAS test. Nevertheless, because the trial court's error was harmless, we affirm defendant's convictions.
FACTUAL AND PROCEDURAL BACKGROUND
On September 20, 2005, the San Francisco District Attorney's Office filed a misdemeanor criminal complaint charging defendant in two counts with driving under the influence of alcohol and driving with a blood alcohol concentration of 0.08 or more, in violation of Vehicle Code sections 23152, subdivisions (a) and (b), respectively. Before trial, defendant filed a supplemental motion in limine to exclude evidence of his refusal to take the PAS test. At a hearing on the motion, defense counsel argued that evidence of defendant's refusal to take the PAS test should be excluded because he had a statutory right to refuse the PAS test, therefore his refusal was not probative of his consciousness of guilt.*fn2 In denying defendant's motion, the trial court ruled as follows: "The test is voluntary and the determining factor is that if the defendant had refused to take a field sobriety test, would that refusal be admissible. His [PAS] test is considered one of the field sobriety tests to help the officer determine whether or not to arrest the defendant. Because of that, I will allow the defendant's refusal to come in."
At trial, the prosecution's case rested largely on the testimony of arresting officer, California Highway Patrol (CHP) Officer Rachaude Crawford. Crawford testified that on September 16, 2005, at about 4:00 a.m., he was driving a marked CHP vehicle travelling eastbound on Interstate 80 coming onto the Bay Bridge, accompanied by his partner, Officer Price. Traffic was "extremely light" at that time. Crawford first noticed defendant's vehicle when it overtook his CHP vehicle on the Bay Bridge. After defendant overtook him, Crawford began a "bumper pace" to estimate the speed of defendant's vehicle. Crawford eventually moved in behind defendant's vehicle. Crawford observed that defendant was traversing from lane to lane on both sides and was speeding as well.
Based on these observations, Crawford thought defendant might be under the influence and decided to pull him over. Crawford activated his overhead lights and instructed defendant to pull over to the right hand side. Defendant reacted slowly and pulled over to the left side instead of to the right. When defendant rolled down the driver's side window, Crawford smelled the odor of alcohol coming from the vehicle and noticed defendant's eyes were red and watery. After defendant admitted he had consumed alcohol that night, Crawford asked him to exit his vehicle and walk back to the CHP car for a DUI investigation. Defendant appeared unsteady on his feet as he walked to the CHP vehicle.
After defendant was at the CHP vehicle, Crawford asked him several questions. He asked defendant where he was going and when he had anything to eat or drink that evening. Defendant indicated he last ate a salad and that having driven from a bar in San Francisco, he was going nowhere in particular. Defendant also told Crawford he had consumed "a couple of glasses" of vodka and beer, that he started drinking at 3:00 a.m. and was not sure what time he stopped drinking.
After questioning defendant, Crawford asked defendant to participate in several field sobriety tests (FSTs). Defendant agreed. The first FST Crawford administered was the horizontal gaze nystagmus test to look for an involuntary jerking of the eye. Defendant displayed all three indicators of impairment associated with that test. Crawford next administered the Romberg FST, during which defendant was asked to close his eyes, tilt his head back, and estimate the passage of 30 seconds. Defendant swayed during the test, appeared off-balance, and allowed 42 seconds to elapse. The longer time-lapse and defendant's poor balance indicated alcohol impairment. Crawford also administered the one-legged stand FST, in which defendant was instructed to raise either leg, look down at his foot, and count out loud. Defendant exhibited three of the four indicators of impairment on this test -- putting his foot down prior to starting the test, using arms to maintain balance and swaying or hopping on one foot. The last FST administered by Crawford was "hand pat test," which measures impairment of fine motor skills. Defendant exhibited both indicators associated with alcohol impairment.
At this juncture, Crawford asked defendant to take the PAS test, a hand-held breath test carried in the CHP vehicle. Crawford explained to defendant that he had a right to refuse the PAS test and that if arrested he would have to submit to either a blood or a breath test at the station. Defendant refused the PAS test. Based on defendant's driving, on his answers to questions prior to the FSTs, and on his performance on the FSTs, Crawford placed defendant under arrest. Defendant was arrested at 4:28 a.m. and transported to county jail. When he arrived at the county jail, jail personnel obtained a sample of defendant's breath using the Intoxilyzer (breath analysis) machine. Pursuant to standard testing protocol, defendant was observed for 15 minutes before the test was administered. Defendant's breath was tested twice and both tests reflected a blood alcohol content (BAC) of 0.10.
The jury also heard testimony at trial from CHP Officer Tony Tam, the training officer for the San Francisco Area Office. The prosecution offered Officer Tam as an expert witness regarding the administration of calibration checks on the Intoxylizer 5000 machine used to test defendant. Tam testified that the machine was tested successfully for accurate calibration on September 15 and again on September 22, 2005. The prosecution also presented the testimony of Debbie Madden, a criminologist at the City of San Francisco police lab, who testified as an expert on the effects of alcohol on the body. The prosecutor posed a hypothetical question in which he asked Madden to assume that a male weighing 215 pounds and standing 5 feet 9 inches tall had been drinking beer and vodka at 2:00 a.m., ate a salad around 2:00 a.m., was seen driving just before he was pulled over at 4:00 a.m., and tested at 0.10 BAC at 5:00 a.m. Under this hypothetical, Madden opined that the male would likely have tested at the same or slightly higher BAC level at 4:00 a.m. and would have been impaired to drive at that time. Madden also opined that a man weighing 215 pounds would need at least six standard drinks (e.g. a 12-ounce beer at 4.5 percent alcohol) to reach a 0.10 BAC.
At the conclusion of the prosecution's case, defendant rested without presenting any witnesses. The jury, after deliberations, found defendant guilty as charged on both counts. After discharging the jury, the trial court proceeded with sentencing. The trial court suspended imposition of sentence on defendant's conviction for driving under the influence of an alcoholic beverage, in violation of section 23152, subdivision (a), and placed defendant on three years probation. Pursuant to Penal Code section 654, the trial court stayed the sentence on defendant's conviction for driving with 0.08 percent or more by weight of alcohol in his blood, in violation of section 23152, subdivision (b).
Defendant contends that because his right to refuse the PAS test is conferred by section 23612, evidence of his refusal to take the test should not ...