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District Court of Appeal, Second District, Division 1, California.


Cr. 4829.

Decided: September 30, 1952

Cornwall & Westwick, John A. Westwick, Santa Barbara, for appellant. Edmund G. Brown, Atty. Gen., Frank Richards, Asst. Atty. Gen., Roy A. Gustafson, Dist. Atty., Ventura County, Donald L. Benton, Deputy Dist. Atty., Ventura County, Ventura, for respondent.

Defendant was charged with a violation of Section 501 of the Vehicle Code in that ‘she did drive a vehicle while under the influence of intoxicating liquor and when so driving did an act forbidden by law and neglected a duty imposed by law in the driving of the vehicle, which act and neglect proximately caused bodily injury’ to named persons; in a second count defendant was charged with violation of Section 192(3) of the Penal Code in that ‘she did then and there in the driving of a vehicle unlawfully kill Edward Ritter Amsel’. A trial by jury resulted in a verdict of guilty on both counts, and the defendant was admitted to probation.

It is contended on appeal that,

‘The conviction of the Defendant was obtained by methods that violated the due process clause of the Fourteenth Amendment of the United States Constitution, and Section Thirteen, Article One of the California Constitution.

‘The court erred in instructing the jury on the subject of intoxication.

‘The court by its conduct at the trial permitted the jury to gain the impression that the court favored the prosecution's side of the case.

‘The court committed error in admitting into evidence the opinion of a mechanic relative to the speedometer reading of the Lovelace car.

‘The court erred in not instructing the jury that if the accident was proximately caused by the negligence of Lovelace alone defendant was not guilty.’

As pointed out by respondent, the record reveals that ‘Shortly before midnight on October 19, 1951 the defendant left her dwelling in the city of Santa Barbara and proceeded to drive a 1947 Buick convertible automobile registered to her husband toward her parents' home in the city of Glendale. She proceeded without stopping until she was involved in an accident at a point approximately two miles west of the town of Camarillo in the County of Ventura on Highway 101. The defendant had rounded a curve in the highway and had been on a straightaway for approximately two-tenths of a mile before the collision occurred. The defendant has some recollection of going around the curve but has no memory whatsoever of the events that transpired immediately prior to the collision.

‘The other car involved in the collision, a 1949 Mercury sedan, was being driven by Vernon Lovelace. Seated on the right side of the front seat was Edward Ritter Amsel, the owner of the car, and in the rear seat was Wayne Goff, a friend of the driver, Vernon Lovelace. Lovelace and Goff were hitchhikers who were picked up by the owner of the car, Amsel, in Studio City, a suburb of Los Angeles. At the request of Amsel, Lovelace was driving the car and had been driving the car for 45 minutes prior to the time of the collision.

‘Highway 101, at the point of impact, is a two lane highway, each lane being approximately 10 feet wide. There are improved shoulders of approximately ten feet on each side of the highway. The last mile of the highway over which Lovelace traveled prior to the collision was straight with no turns and no hills. There were patches of fog in the area where the collision occurred. However, it was possible to see lights a distance of one thousand feet away. Lovelace was driving in his own land of traffic at approximately 55 miles per hour when he saw headlights approaching him in his own lane of traffic. The headlights were high enough so as to interfere with his ability to see. He had never driven this particular stretch of road before and did not know what was on the shoulder. He applied his brakes leaving 108 feet of skid marks and at the last moment attempted to swerve to his left over into the other lane so as to avoid the oncoming car. This maneuver was unsuccessful and the car he was driving was struck on the right front side.’ Amsel was killed and the others were injured. Defendant was unconscious and taken to the hospital. There the laboratory technician withdrew a sample of blood for the purpose of typing for subsequent transfusion which was later given.

Over the objection of defendant a state highway patrolman was permitted to qualify as an expert and testify as to where the ‘point of impact’ occurred. In the connection the record reveals the following:

‘The Court: How many accidents have you examined, if any, Officer? Would you estimate? Well, I will put it this way. Have you examined or investigated a hundred accidents?

‘The Witness: Yes, sir, easily in excess of that.

‘He Court: Easily in excess of that?

‘The Witness: Yes.

‘The Court: Is that a part of your duties and your responsibilities as a California Highway Patrolman?

‘The Witness: Yes, sir.

‘The Court: That is a task that is assigned to you in the ordinary course of your work and labor for the Patrol, is that right?

‘The Witness: Yes.

‘The Court: And you were out there investigating the accident in performance of those duties?

‘The Witness: Yes.

‘The Court: Have you formulated an opinion, based on what you saw out there on that occasion, as to how the impact actually occurred?

‘The Witness: Yes, sir I have. * * *

‘The Court: You observed debris on the highway, did you?

‘The Witness: Yes.

‘The Court: Gouge marks?

‘The Witness: Yes sir.

‘The Court: And glass, oil, water and so on, on the highway also?

‘The Witness: Yes, sir, dirt and parts of the vehicles.

‘The Court: Go ahead and testify then, where in your opinion the point of impact was.

‘The Witness: Well, the point of impact was at a point, an area which we measured, one foot and nine inches north of the center line in the westbound lane.’

The effect of this testimony was to place defendant's car in the wrong traffic lane. The ruling of the court in this regard was prejudicial error. Opinion evidence is the exception not the rule. The location of the cars at the time of impact was a question of fact for the jury to determine. Moreover the opinion of the witness was based on facts which were undecided. Whether the marks on the road upon which the opinion in part at least, was based were made at the instant of the impact or immediately thereafter and as a result thereof, was undecided and was a question for the jury to determine. California Jurisprudence summarizes the law relating to opinion evidence as follows, ‘The general rule is that witnesses must testify to facts, and not to opinions. Whenever a question to be determined is the result of the common experience of all men of ordinary education, or is to be inferred from particular facts, the inference is to be drawn by the jury, or the court acting as such, and not by witnesses. In other words, when the inquiry relates to a subject whose nature is not such as to require any peculiar habits or study in order to qualify one to understand it, or when all the facts upon which opinion is founded can be ascertained and made intelligible to the court or jury, the opinion of a witness is not to be received in evidence. If the relation between the facts and their probable results can be determined without any special skill or training, the facts themselves must be given in evidence, and the conclusions or inferences must be drawn by the jury. For example, if the circumstances out of which negligence is said to arise have been established by proof, or can be shown, the ultimate fact of negligence is an inference to be drawn therefrom by the jury, and is not to be established by the opinions of others.’ 10 Cal.Jur., sec. 211, pp. 948, 949, 950, 951. See also Fishman v. Silva, 116 Cal.App. 1, 8, 2 P.2d 473. And in this connection it is noteworthy, as stated in Hawthorne v. Gunn, 123 Cal.App. 452, 455, 11 P.2d 411, 412, that, ‘Perhaps there is nothing more certain about an automobile accident than the fact that the visible results afterward are not an infallible guide in determining what occurred.’

Appellant's contention that defendant's conviction ‘was obtained by methods that violated’ the federal and state constitutions as above noted is based on the introduction of evidence purporting to prove intoxication.

As pointed out by appellant, ‘After Defendant had been brought to the hospital following the accident, a laboratory technician at the hospital withdrew from the Defendant's body a certain amount of blood. The blood was taken by means of a hypodermic needle. Defendant was unconscious at the time. She was not at any time asked if blood could be taken from her, nor did she at any time consent to the taking of any blood from her person or body.

‘A blood alcohol test was made upon a portion of this blood without Defendant's knowledge or consent. Evidence pertaining to this test, and to the results thereof, was introduced at the trial over Defendant's specific objection. A doctor was permitted to testify that in his opinion the results of the test showed that Defendant was under the influence of liquor at the time of the accident. There was no other testimony of any kind to this effect.

‘More blood was taken from Defendant than was required for blood typing or transfusion purposes. The excess blood was turned over to the person who made the blood alcohol test.’

Appellant relies on the recent case of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205. In the Rochin case the contents of defendant's stomach had been removed for chemical analysis and the removal was accomplished over defendant's objection and resistance. There is no difference in principle between the facts in the Rochin case and the situation in the within action. That the law as outlined in the Rochin case applies there can be no question. The evidence of intoxication, in the circumstances was inadmissible and the trial court's ruling relating thereto was prejudicial error.

Other points raised by appellant although not without merit need not be considered.

The conviction is set aside, the order admitting to probation is reversed, and the cause remanded for a new trial.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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