APPEAL from a judgment of the San Diego superior court appellate division, William S. Dato, Lorna Alksne, and George W. Clarke, Judges. (Super. Ct. No. CA221258)
The opinion of the court was delivered by: Huffman, J.
CERTIFIED FOR PUBLICATION
Reversed with directions.
Defendant and appellant Terry Vangelder appeals a judgment after jury trial, finding him guilty of misdemeanor driving while impaired in violation of Vehicle Code section*fn1 23152, subdivision (b), ("per se" driving under the influence (DUI), driving with a blood-alcohol level of .08 or more), and a speeding infraction (§ 22348, subd. (b), over 100 miles per hour). The jury was unable to reach a verdict on an additional count charged under section 23152, subdivision (a), "generic DUI," and the trial court set that remaining DUI count for retrial, which was stayed pending his appeal to the appellate division of the superior court. The appellate division affirmed his convictions and denied his request for rehearing and certification for transfer. Defendant sought relief in this court, and we granted his petition to transfer the appeal and received supplemental briefing.
Defendant's appeal from the conviction is based on the trial court's ruling disallowing any expert testimony from defendant that would have presented a physiologist's scientific criticisms of the reliability of the data produced by breath test machines, which are based on the assumption that such devices only measure alveolar (deep lung breath) air. Defendant's offer of proof from his expert would have provided testimony that this assumption is not always justified, and that a series of physiological factors (e.g., individual breathing patterns, body temperature, blood hematocrit, and breath temperature) may affect the transmission of alcohol in gas form, from the bloodstream to the lower and upper portions of the lungs, to the trachea and mouth and back again, thereby making such breath measurements unreliable, and undermining, in turn, the application of the standardized partition ratio calculation for converting breath levels to blood-alcohol levels. (§ 23610, subd. (b).)*fn2
In the challenged ruling, the trial court specified that no questions could be asked of this expert "which will solicit any testimony by him to be a fact that the breath sample that was measured here was not representative other than if it had contained mouth alcohol." The trial court found that the proposed testimony lacked foundation and was speculative, and did not materially differ from partition ratio evidence that had been determined to be inadmissible in per se DUI cases, pursuant to People v. Bransford (1994) 8 Cal.4th 885 (Bransford) (where charge is defined as driving with a blood-alcohol level of 0.08 percent or more). After this trial took place, the Supreme Court clarified that evidence about partition rate variability is admissible in impaired driving prosecutions on generic DUI charges. (People v. McNeal (2009) 46 Cal.4th 1183, 1188 (McNeal).)
In his petition, defendant asserts that the trial court failed to recognize that his expert was not seeking to testify about partition ratio issues, but rather was making a different challenge to the reliability of breath test devices, and that this should be allowed for both generic and per se DUI counts. We granted the petition to address this issue, recurring in many prosecutions, of whether it is error for the trial court to exclude expert testimony that would have demonstrated some unreliability in breath testing devices, based upon the asserted problems in obtaining pure data about blood alcohol from the intake of air utilized by those devices. Even though similar variable physiological factors admittedly affect the partition ratio, defendant's expert sought to testify that they also separately affect the amount of alcohol found in the alveolar air supposedly being tested.
The rules restricting admissibility of partition ratio evidence should now be considered to be well established, after McNeal, supra, 46 Cal.4th 1183, and Bransford, supra, 8 Cal.4th 885. The expert evidence offered by this defendant appears to be a different kind of scientific challenge to the data obtained by breath test machines, even before the partition ratio is applied to convert such breath test data to blood-alcohol content by weight. The standards for evaluating "the reliability and thus the relevance of scientific evidence" are set out in People v. Kelly (1976) 17 Cal.3d 24 and its progeny. In People v. Williams (2002) 28 Cal.4th 408, 414, the Supreme Court referred to those standards that are imposed on a party seeking to introduce evidence based on a new scientific technique, as requiring expert evidence to qualify the technique as "scientifically valid. [Citation.] Even for techniques thus established, the proponent must 'demonstrate that correct scientific procedures were used in the particular case.' " (Ibid.) The trial court acknowledged in this case that this expert testimony was "cut off at the pass," based on the trial court's evaluation that only partition ratio evidence was being offered.
As we will demonstrate, the trial court did not have a sufficient basis in the evidence to form that conclusion, and it prejudicially erred in excluding the proffered evidence about the quality of the sample taken by one or both of these types of breath testing devices: electrochromatograph/infrared (EC/IR) and/or preliminary alcohol screening (PAS). The evidence would have addressed breath testing devices and their results in a different manner, at a different stage of the process, than would partition ratio evidence. The superior court appellate division's order is reversed, for the issuance of its remittitur with directions to the trial court to vacate the count 2 conviction, while allowing the speeding count conviction to stand, and to allow further proceedings on count 2 and the remaining generic count, in accordance with the principles set forth in this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On December 22, 2009, around 2:30 a.m., Sergeant Richard W. Berg of the California Highway Patrol (CHP) saw defendant driving over 125 miles per hour on Highway 163. Berg followed defendant's pickup truck for about five miles and eventually caught up with him, noticing that defendant slowed down to about 100 miles per hour when he caught up to other traffic, and was not weaving outside his lane. After about another mile and a half, Berg turned on his red lights and defendant rapidly decelerated and pulled over, and as directed, went down to a wider spot on the shoulder.
When defendant rolled down his right side window, he provided his license and registration and told Berg, "I know, I was just screwing around." He also told Berg that he did not know how fast he was going. Berg detected an odor of alcohol coming from the truck and noted his eyes were red and watery. Defendant admitted he had consumed two glasses of wine earlier that evening. Berg called for backup and turned the matter over to two other officers, Gerald Guzman and Jacob Sanchez, who arrived at 2:58 a.m.
Officer Guzman began his DUI evaluation, while Officer Sanchez provided scene security. Guzman gave Vangelder field sobriety tests (FST), including the horizontal gaze nystagmus test, the Romberg FST (close eyes, tilt head back, and estimate the passage of 30 seconds), the one-legged stand-and-count FST, and the "hand pat test" (measuring impairment of fine motor skills). Defendant exhibited little signs of any impairment on these tests, except for an occasional pause or sway. He told Guzman he had about three glasses of white zinfandel at dinner. Guzman thought he smelled like alcohol and his eyes were red and glassy, and he looked like a normal nice man.
At 3:09 a.m., Guzman gave defendant the PAS test, a hand-held breath test. Vangelder tested at a blood-alcohol content (BAC) of .095 and .086 on the PAS tests. Standard testing protocol required that defendant be observed for 15 minutes before the PAS test was administered, but Officer Guzman had waited only 9 or 10 minutes, reasoning that the sergeant had already stopped defendant earlier. (Cal. Code Regs., tit. 17, §§ 1220 et seq., 1220.4, subd. (f).)
Guzman believed defendant was under the influence, arrested him and transported him to county jail. At the jail, Vangelder did not need assistance walking and although he spoke slowly, he did not have any difficulty answering questions. He consented to a breath test on the EC/IR machine. The first breath test (taken at 3:37 a.m.) registered a level that was equivalent to a .08 BAC level, and the second (taken at 3:39 a.m.) produced the same result.
Vangelder next consented to a blood test, taken at 3:52 a.m. The first reading of his blood test showed a blood-alcohol level of .088 and the second showed a level of .087.
B. Charges and Prosecution Case
The city attorney filed a misdemeanor criminal complaint charging defendant in two DUI counts, driving under the influence of alcohol and driving with a blood-alcohol concentration of 0.08 or more, in violation of section 23152, subdivisions (a) and (b), respectively, as well as a count of speeding. Before trial, defendant filed motions in limine to exclude evidence of the PAS tests to establish blood-alcohol content (as unreliable), and to allow partition ratio evidence to be admitted regarding both blood and breath tests. The People's motions sought to exclude partition ratio evidence.*fn3
At the three-day trial held in April-May 2009, the court addressed the motions in limine, deferring ruling on the PAS and partition ratio issues. The jury heard from the detaining and arresting officers, and from the People's expert, Marissa Ochoa, a criminologist at the city police lab. Ochoa testified about her expertise on the effect of alcohol on the human body, leading her to conclude that based on the results of the EC/IR breath tests and the blood tests, and normal bodily processing of alcohol, Vangelder's blood-alcohol level would have been .09 at the time of driving. This was based on a hypothetical question, asking her to assume that a healthy male weighing 200 pounds had consumed three glasses of wine with a hearty meal at 8:00 p.m.-9:00 p.m., was pulled over at 2:45 a.m., and had an EC/IR breath test result of .08 BAC at 3:37 a.m., and a similar blood test 15 minutes later. On cross-examination, Ochoa also admitted that a person drinking at that time would have had to have approximately 11 drinks in order to have a .08 blood-alcohol level 7 1/2 hours later, considering the absorption and elimination processes.
Ochoa's records showed that both the EC/IR breath test and the blood test analytical devices were in working order that night. The EC/IR breath test device has an operational range of error, plus or minus .01 from the known range, and its gas tank was replaced two days after this test was conducted.
The jury also heard testimony at trial from Officer Brandon Garland, the officer in charge of maintaining and calibrating PAS breath test devices for the police department. He testified about the requirements for successfully completing a PAS test, including a waiting period of 15 minutes to avoid mouth-alcohol contamination. His records showed that the PAS machine was recently tested successfully for accurate operation, within an operational range of error, plus or minus .010 from the known range. It was sent out for servicing two weeks after this test was conducted.
C. Defense Case, Verdict and Appeal
At the conclusion of the prosecution's case, defendant called an expert on the effects of alcohol on the body, Dr. Michael P. Hlastala, who is a medical school professor with a doctorate in physiology. The prosecutor did not dispute his expertise in the field. Vangelder started to have his expert testify that even if breath tests are operating as designed, they do not give a scientifically accurate test. The expert stated that physiological factors in the human body have an influence with respect to the quality and nature of the breath expelled into the device, and these factors affect the absorption of alcohol from airway tissue, including bronchial blood vessels, into the sampled breath. On the objection of the prosecutor, the trial court held a hearing under Evidence Code section 403 regarding admissibility.*fn4 As will be further described in the discussion portion of this opinion, the trial court ...