Good News/Bad News for CA DUI Defense ( Breath Test Evidence )
Nov. 21, 2013 – Today’s CA Supreme Court verdict on DUI Defense case People v. Vangelder has Good News + Bad News implications for DUI Defense in California.
Here’s what happened…
In December 2007, a CHP officer observed Vangelder driving 125 miles per hour on Highway 163 in San Diego County. Vangelder slowed for traffic and was not weaving, but the officer who pulled him over smelled alcohol on his breath and thought the defendant’s eyes were red and watery. The defendant admitted to drinking three glasses of wine five hours earlier with dinner, but insisted his driving was not impaired, and that his 2:30 am speeding was for his own amusement. Field sobriety tests supported the defendant’s claim, but PAS breath tests indicated 0.095% and 0.086% BAC, and breath tests taken later at county jail measured 0.08% BAC.
The DUI Defense team brought in a heavy hitter witness, Dr. Michael P. Hlastala, a Univ. of Washington physiologist who has written over 400 articles (170 peer-reviewed) and a textbook challenging the reliability of breath-testing machines. Hlastala stated before the jury that breath test machines cannot reliably reflect the concentration of alcohol in blood because they constitute “an indirect test” of blood alcohol and because of “partition ratio variability.”
(For you law/science buffs… Blood Breath Partition Ratio is an outdated, highly contested theory that assumes that 2100 mL of breath contains the same amount of alcohol as 1 mL of blood—which means that breath alcohol percentages can theoretically be multiplied by 2100 to estimate blood alcohol levels. That assumption may not always be true, but it’s The Law in California, thanks to our Supreme Court’s controversial 1994 decision People v. Bransford.)
The prosecution in the original trial countered that Vehicle Code 23152(b) criminalizes driving with .08% BAC, as measured by a properly calibrated and administered breath-testing machine, and that the defense was arguing against an established law that had been vetted by legislators, rather than arguing that the particular breath machines used in the case malfunctioned, were not properly calibrated, or were not properly used.
The case moved up through various appellate courts to the California Supreme Court, and now the verdict is in. How will today’s Supreme Court DUI decision affect future DUI cases and DUI defense law in general? First, the bad news…
Supreme Court Impact on DUI Defense Law
The Supreme Court of California reversed a lower court of appeal, and stated that the testimony by Dr. Hlastala regarding the unreliability of breath test results was inadmissible. The fact that breath test results are unreliable based on partition ratio variability—those facts are not allowed to be shared in court. The reliability of breath-testing models used in the enforcement of Sec. 23152(b) has been endorsed as policy by the legislature, which approved its evidential use in a California prosecution. The Court upheld its own People v. Bransford decision regarding blood breath partitions, and further cemented a state law (VC 23152(b)) which, in effect, can make it a crime to have alcohol on your breath.
The Bad News for DUI Defense… From a DUI Defense perspective, today’s decision removes one of the arrows in a DUI Defense Attorney’s quiver—the right to challenge the accuracy of DUI breath test results based on other individual physiological differences that the machine does not recognize. The defense can still present evidence on whether the test measurements themselves were accurate and/or the breath tests properly administered, but cannot challenge the validity of breath testing in general.
The Good News for DUI Defense… In People v. Vangelder, the CHP officer did not observe the 15-minute observation period required by law before administering a DUI breath test. The good news is that the Supreme Court today reaffirmed the importance of standard testing protocol and Mandatory Minimum Requirements (per Title 17, California Code of Regulations), which requires “continuous observance” of a DUI suspect for at least 15 minutes prior to giving a breath test—in order to insure that the subject has not regurgitated, ingested alcohol, or done anything that might compromise the breath test results.
In their rush to arrest, police sometimes disregard the mandatory observation period when administering a PAS test. (NEVER agree to take a PAS test.) If the officer administers a PAS test without the 15 minute observation period, a good DUI attorney should be able to get the PAS test “evidence” thrown out of court.
Lessons learned for DUI Defense?
From my perspective, today’s Supreme Court ruling is not a huge deal. Frankly, attacking Blood Breath Partition Ratio was never the best DUI defense. Much better DUI defenses include:
- Rising blood alcohol defense (blood absorption)
- Challenging problems with testing equipment (see Orange County blood test “fail”)
- Showing that officer did not following proper Title 17 procedures
But the HUGE takeaway from today’s decision is something I hope you already know:
NEVER submit to PAS breath test—Refuse ALL DUI tests except a blood test!
PAS breath tests are unreliable. If arrested for DUI, tell the officer you don’t want to take any DUI tests, but you will submit to a blood test because you have to.
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