PEOPLE v. BRANSFORD (1993)

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

The PEOPLE, Plaintiff and Respondent, v. Donald E. BRANSFORD et al., Defendants and Appellants.

No. D016898.

Decided: May 20, 1993

Gregg L. McDonough, Imperial County Public Defender, and Stephan Van Decker, Deputy Public Defender, under appointment of the Municipal Court, for defendants and appellants. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Frederick R. Millar, Jr., and Patti Ranger, Deputy Attys. Gen., for plaintiff and respondent. Plourd & Breeze, John W. Breeze and Douglas E. Gee, El Centro, amicus curiae for defendants and appellants.

Donald E. Bransford and Ralph Maldonado were convicted of driving while impaired by alcohol within the meaning of Vehicle Code section 23152, ¹ subdivision (b).   In this appeal they argue the trial court erred in excluding evidence concerning the variability of the partition ratio used to convert breath alcohol findings to their blood alcohol equivalents.   Appellants note section 23152, subdivision (b), makes criminal driving a vehicle while having a blood alcohol level of 0.08 or higher.   Appellants concede the section states blood alcohol level shall be based either on the grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.   They argue, however, the offense remains one defined by blood alcohol level and unless the partition ratio stated in the section is an improper conclusive presumption (see Carella v. California (1989) 491 U.S. 263, 265–266, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218), appellants should be allowed to present evidence concerning the imperfections of the ratio.   We reject the contention.

We conclude the Legislature in creating the present form of section 23152, subdivision (b), determined, as have the Legislatures of numerous other states, that there is, given the inherent variability of human physiology and the limitations of testing methods, sufficient equivalence between the presence of 0.08 grams of alcohol per 100 milliliters of blood and the presence of 0.08 grams of alcohol per 210 liters of breath such that it is reasonable to treat them as the same for the purposes of the section.   Conviction is, therefore, not dependent on a conversion of a breath alcohol finding to its blood alcohol equivalent and evidence concerning such a conversion is irrelevant.

A. Evolution of Vehicle Code Section 23152, Subdivision (b) and the Problem of Partition Ratio Variability

1. Beginning

In Burg v. Municipal Court (1983) 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732 (Burg ), our Supreme Court traced the history of legislation directed at the serious problem of drunk driving.   The court notes the Legislature first made it unlawful to drive while “intoxicated”, then while “under the influence” of an alcoholic beverage or any drug and added to the law a presumption that if a driver had 0.10 percent or more by weight of alcohol in his blood, he was under the influence.  (Id. at pp. 261–264, 198 Cal.Rptr. 145, 673 P.2d 732.)   In 1981 California, joining most other states, made it unlawful to drive with a specific blood alcohol level.   As enacted, section 23152, subdivision (b), stated:  “ ‘It is unlawful for any person who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.  [¶] For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood.’ ”  (Burg v. Municipal Court, supra, 35 Cal.3d at pp. 261–264, 198 Cal.Rptr. 145, 673 P.2d 732.)

Burg, responding to a host of constitutional challenges, found the section did not create a conclusive presumption of driving under the influence but, rather, defined a separate offense.  (Burg v. Municipal Court, supra, 35 Cal.3d at pp. 266–267, 198 Cal.Rptr. 145, 673 P.2d 732.)   Citing scientific and governmental sources, the court concluded any person driving with a blood alcohol level of 0.10 was, because of the impairment resulting from the ingestion of alcohol, a danger to himself and others.   Specifically, the court noted evidence that vision impairment begins at blood alcohol levels of 0.03 to 0.08 percent and becomes significant in almost all subjects at 0.10, that reaction time impairment begins at 0.04, judgment of distance, dimensions and speed at 0.08 and coordination and memory at 0.10.   The court noted some states and foreign countries had set the unlawful blood alcohol percentage at levels as low as 0.08 and 0.05.   The court concluded the state could rationally make it unlawful for a person with a 0.10 blood alcohol level to drive a vehicle.  (Burg v. Municipal Court, supra, 35 Cal.3d at pp. 266–268, 198 Cal.Rptr. 145, 673 P.2d 732.)

2. Partition Ratio Problem

While section 23152, subdivision (b), unambiguously defined the elements of the offense as driving with a blood alcohol level of 0.10 percent or greater, problems arose because a suspect was allowed to select a breath, urine or blood test to determine his blood alcohol level.  (§ 23157, subd. (a).)  Since the offense was defined in terms of blood alcohol level, it was necessary by means of a partition ratio to convert a breath alcohol finding to its blood alcohol equivalent.  Title 17, California Code of Regulations section 1220.4, subdivision (f), states:  “A breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship:  the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood.”  (People v. Lepine (1989) 215 Cal.App.3d 91, 93, 263 Cal.Rptr. 543 (Lepine ).)

Because, however, the actual partition ratio of individuals varies, it is possible in a given test the conversion of a breath alcohol finding to its blood alcohol equivalent using the assumed partition ratio of 2100 to 1 will result in a blood alcohol figure greater or lesser than the subject's true blood alcohol level.   Given this fact, and the fact the crime was defined solely by the concentration of alcohol in blood, it was determined a defendant charged with a violation of section 23152, subdivision (b), could offer general evidence concerning the variability of the partition ratio and argue that even though his blood alcohol level, as converted from breath alcohol, was set at 0.10 or greater, a reasonable doubt nonetheless existed his actual blood alcohol level exceeded the legal limit.  (People v. Lepine, supra, 215 Cal.App.3d at pp. 93–95, 263 Cal.Rptr. 543;  see also People v. McDonald (1988) 206 Cal.App.3d 877, 879–883, 254 Cal.Rptr. 384 (McDonald );  People v. Thompson (1989) 215 Cal.App.3d Supp. 7, 10–14, 265 Cal.Rptr. 105 (Thompson ).)

3. Amendments to Section 23152

In 1989 the Legislature amended section 23152, subdivision (b), by making it unlawful for any person with 0.08 percent, by weight, of alcohol in his or her blood to drive a vehicle.  (Stats.1989, ch. 479, § 3, p. 1691.)   On a second occasion in 1989, the Legislature changed the provisions of section 23152 so that the measurement of alcohol in a person's blood could be based on grams of alcohol per 210 liters of breath.  (Stats.1989, ch. 1114, § 25, p. 4079.) ²  This amendment, operative on January 1, 1992, wrote into section 23152 the partition ratio from the Code of Regulations.   (Cal.Code Regs., tit. 17, § 1220.4)  The Legislature added this breath partition ratio to the then-current version of section 23152 in 1990.   (Stats.1990, ch. 708, § 1, No. 10 West's Cal.Legis. Service, p. 2870.)

Section 23152, subdivision (b), now states in part:  “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.  [¶] For purposes of this article ․, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.”

Thus, while section 23152, subdivision (b), still nominally criminalizes driving with a specified percentage of alcohol in the blood, the section defines that figure either as a stated percentage of alcohol in the blood or the breath.

B. Meaning and Validity of Section 23152, subdivision (b)

Our first task in deciding whether the 1989 amendment of section 23152, subdivision (b), makes irrelevant evidence of partition ratio variability is to determine the intent of the Legislature in amending section 23152, subdivision (b), to state that for the purposes of the subdivision blood alcohol level is determined either by the stated blood alcohol concentration or the stated breath alcohol concentration.  (Code Civ.Proc., § 1859.)

 The scope of our review is narrow.   The identification of social evils and the formulation of means to deal with them are matters uniquely within the legislative prerogative.   The task of the courts is merely to determine the intent of the Legislature, whether the law enacted was within the state's police power and rationally relates to the evil identified.  (See Antonello v. City of San Diego (1971) 16 Cal.App.3d 161, 167, 93 Cal.Rptr. 820;  8 Witkin, Summary of Cal.Law, Const.Law, § 787, pp. 313–315;  13 Cal.Jur., Const.Law, § 158.)

Our approach to determining the meaning and validity of section 23152, subdivision (b), was defined in Burg v. Municipal Court, supra, 35 Cal.3d at page 266, 198 Cal.Rptr. 145, 673 P.2d 732.   The court stated:  “We have previously observed that ‘the area of driving is particularly appropriate for extensive legislation, and that the state's traditionally broad police power authority to enact any measure which reasonably relates to public health or safety operates with full force in this domain.’  [Citations.]”  (Ibid.)

The court further noted:  “ ‘The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute.’ ”  (Burg v. Municipal Court, supra, 35 Cal.3d at p. 267, 198 Cal.Rptr. 145, 673 P.2d 732.)

1. Legislative Intent

 While the Legislature might have stated the matter more clearly, we conclude section 23152, subdivision (b), in keeping with similar legislation in other states, declares a legislative finding that for the purposes of the section the presence of 0.08 grams of alcohol per 100 milliliters of blood and the presence of 0.08 grams of alcohol per 210 liters of breath reflect such an equivalent level of impairment it is reasonable to treat the concentrations as the same for the purposes of the section.   Stated differently, section 23152, subdivision (b), creates an offense that is committed by driving with either the stated blood or breath alcohol concentration.

Support for this interpretation is found in a Senate Judiciary Committee Report prepared for a hearing on Assembly Bill 4318, which eventually became an amendment, adding to a contingent version of section 23152, subdivision (b), the statutory language now under consideration.  (Sen. Judiciary Com., Analysis of Assem. Bill No. 4318 (1989–1990 Reg.Sess.) as introduced at p. 1.)

The committee report states the issue addressed by the bill is:  “Should the offense of driving under the influence of alcohol be statutorily defined in terms of the concentration of alcohol found in the breath when breath analysis is used.”   The report notes the “bill would eliminate the need for a conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when the breath analysis is used.”

The report quotes the author of the bill as stating:  “[T]he partition ratio is used to convert breath test results to blood alcohol levels in driving under the influence prosecutions.   California law defines the offense in terms of the amount of alcohol in the defendant's blood.   Attacks on the partition ratio may result in expensive and time consuming evidentiary hearings and undermine successful enforcement of driving under the influence laws.”

The report makes clear the intent of the Legislature was to define the offense as driving with a stated concentration of blood or breath alcohol.

 We find further support for our interpretation of the statute in the rule of construction that an amendment to existing law evidences an intent to change the law.  (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 666, fn. 6, 150 Cal.Rptr. 250, 586 P.2d 564.)   As noted, after the decisions in McDonald, Lepine and Thompson, it was clear general evidence of partition ratio variability was admissible to attack the conversion of breath alcohol findings to their blood alcohol equivalents.   If the amendment to section 23152, subdivision (b), defining the blood alcohol concentration of the offense as either a stated blood alcohol or breath alcohol concentration did nothing but create a rebuttable presumption, then evidence concerning partition ratio variability would still be admissible and the amendment to the statute would have made no change in the law.  (See Evid.Code, § 607.)

2. Validity

Having found a legislative intent to treat stated concentrations of blood and breath alcohol as equivalent for the purposes of the section, the question becomes whether the Legislature could properly do so.

In determining whether the Legislature could properly declare that a sufficient equivalence exists between the stated concentrations of blood and breath alcohol such that they can be treated as the same for the purposes of the statute, it is necessary to briefly review the policy basis for section 23152, subdivision (b), and the nature of human physiology related to that policy.

As Burg notes, section 23152, subdivision (b), is a per se drunk driving law similar to many others that have been enacted across the country.   The statute nominally criminalizes driving with a blood alcohol level of .08.   As Burg determined, the Legislature reasonably made the finding that at a blood alcohol level of 0.10 everyone has reached such a level of impairment that it is reasonable to make driving under those circumstances criminal.   (Burg v. Municipal Court, supra, 35 Cal.3d at pp. 266–268, 198 Cal.Rptr. 145, 673 P.2d 732.)

 Strictly speaking the Legislature did not criminalize driving with a particular blood alcohol level.   The impairment of driving skills, sensory and judgmental capacities that creates the social evil legitimately addressed by section 23152, subdivision (b), is not the result of alcohol in the blood but rather alcohol in the brain.   There is, however, no practical method for testing the actual level of alcohol in brain tissue and indirect testing methods must be used.  (State v. Downie (1990) 117 N.J. 450, 569 A.2d 242, 245.) ³

The physiological problem is to determine the relationship between the level of alcohol in a given body fluid and the degree of impairment associated with that level.   Doing so allows the reasonable conclusion that when a level of alcohol is found in a given body fluid, a sufficient level of alcohol is present in the brain to produce a given level of impairment in drivers such that they are a danger to themselves and others.   The task for the Legislature is to determine the level of impairment it wishes to declare criminal and then determine the alcohol percentage in a given bodily fluid which relates to that level of impairment.   This determination is not a presumption but defines a criminal offense.  (See Burg v. Municipal Court, supra, 35 Cal.3d at pp. 266–268, 198 Cal.Rptr. 145, 673 P.2d 732;  see also 1 Nichols, Drinking/Driving Litigation, Criminal and Civil, §§ 2:14–2:17.)

While this is conceptually simple, its practical application is more complex.   An inherent aspects of human physiology is its variability.   Depending on a host of factors, different individuals are affected in different ways by the ingestion of alcohol and the same individual may be affected differently on different occasions.   The impairment of mental and physical capacities important to driving occur at different levels of brain alcohol concentrations.   Tests of a particular bodily fluid may return results that, given the time of the test relative to the time of alcohol ingestion, better reflect brain alcohol concentrations than the test of another bodily fluid.   (See State v. Downie, supra, 569 A.2d at pp. 245–247;  see also 2 Nichols,supra, §§ 23:01–23:61, 24:11–24:18;  Erwin, Defense of Drunk Driving Cases Criminal/Civil, V.1 1:04, V.2 14:01–14:07.)

This problem of physiological variability is exacerbated when those arrested for driving under the influence are allowed to take either a blood, breath or urine test.   Now added to the inherent variability surrounding determinations of impairment related to given body fluid alcohol findings is the problem of relating the findings of each test to the other, i.e., when is a given blood alcohol finding equivalent to a given breath alcohol level such that they both relate to the same level of brain alcohol concentration and produce the same level of impairment.  (See Lepine, supra, 215 Cal.App.3d at pp. 93–94, 263 Cal.Rptr. 543;  State v. Downie, supra, 569 A.2d at pp. 242–251.)

We conclude the Legislature's answer to these questions of variability is that they are irrelevant.   We find the Legislature could properly so determine.   While there was no scientific testimony in the present cases, a generally good review of the physiological issues involved can be had from the testimony cited in appellate opinions and general sources on the matter prepared for the bar.   These sources make clear impairment resulting from the ingestion of alcohol begins at levels of alcohol concentration in bodily fluids far lower than the .08 level made criminal in this state.   The Legislature, if it chose to do so, could make criminal concentrations of body fluid alcohol significantly lower than those now established.  (See Burg v. Municipal Court, supra, 35 Cal.3d at p. 267, 198 Cal.Rptr. 145, 673 P.2d 732;  Erwin, supra, at § 14:02.)   Indeed, the Legislature has made it unlawful to drive a commercial vehicle with a blood alcohol level of .04.  (Veh.Code, § 23152, subd. (d).)

Given the inherent variability in the effect of alcohol on individuals, and given the inherent variability of human physiology, it was reasonable for the Legislature to conclude that while the partition ratio used in the section to relate blood alcohol levels to breath alcohol levels was not precise and that the partition ratio of individuals varies, there is, given the inherent variability of the whole subject matter of alcohol related offenses, a sufficient equivalence between the stated breath alcohol concentration and the blood alcohol concentration stated in the section that the cited levels can reasonably be treated as the same.   The Legislature could, therefore, rationally determine that for the purposes of the statute the inherent variability in partition ratios was simply irrelevant to the overall purpose of the statute, i.e., the identification of those too impaired to drive.

California is not alone in treating a stated concentration of blood alcohol the same as a stated concentration of breath alcohol.⁴

The Legislature of this state, using its extensive regulatory powers, has determined the danger of impairment so great when the amount of alcohol in the brain reaches levels reflected by stated concentrations of alcohol in the blood or breath, that it is appropriate to make driving with such concentrations illegal.   Courts reviewing similar legislation in other states have uniformly found the use of either stated blood or breath alcohol concentrations or both in defining the alcohol concentration element of their per se driving under the influences offenses to be both rational and supported by scientific authority.  (See People v. Ziltz (1983) 98 Ill.2d 38, 74 Ill.Dec. 40, 42, 455 N.E.2d 70, 72;  People v. Capporelli (1986) 148 Ill.App.3d 1048, 103 Ill.Dec. 864, 867–68, 502 N.E.2d 11, 14–15;  State v. McManus (1989) 152 Wis.2d 113, 447 N.W.2d 654, 656–662.)

Based on those authorities and the materials cited therein, we conclude the Legislature of this state could properly determine the concentrations of blood and breath alcohol stated in section 23152, subdivision (b), are sufficiently equivalent for the purposes of the section such that it is reasonable to treat them as the same.

Since we conclude the Legislature properly has defined per se driving under the influence as driving with a stated blood or breath concentration, we conclude the trial court properly excluded evidence concerning the blood alcohol/breath alcohol partition ratio.

Judgments affirmed.

FOOTNOTES

1.   All statutory references are to the Vehicle Code unless otherwise specified.

2.   Section 23152 was amended again in 1989 (Stats.1989, ch. 1114, § 23, p. 4077) to add an automatic repeal date of January 1, 1992.   Sections 24 through 27 of chapter 1114 added various versions of section 23152 to the Vehicle Code, all to become operative January 1, 1992.   Because of contingencies spelled out in section 46 of chapter 1114, sections 25 and 27 became operative.   The section 25 version of code section 23152 became the law on January 1, 1992, and remains the law today.   The version in section 27 is operative upon the director of the California Department of Motor Vehicles filing with the Secretary of State a notice of determination that federal regulations do not require a state to prohibit operation of commercial vehicles when the operator has a .04 percent alcohol concentration in his or her blood.In 1990, the Legislature amended the version of section 23152 that had a repeal date of January 1, 1992 (Stats.1990, ch. 708, § 1) and provided that alcohol in a person's blood could be measured by grams of alcohol per 210 liters of breath.

3.   In Downie the Supreme Court of New Jersey ordered a hearing at which the parties presented evidence concerning partition ratio variability and the scientific reliability of breathalyzer test results.   The expert witnesses at the hearing were highly qualified and the summary of their testimony in Downie is a very useful review of the scientific issues that form the foundation of the present legal questions.  (See State v. Downie, supra, 569 A.2d at pp. 243–247.)

4.   (See, e.g. Alaska Stat., § 28.35.030(a)(2);  Ariz.Rev.Stat.Ann., § 28–101, subd. 2(a) & (b), § 28–692, subd. A(1) & (4);  Colo.Rev.Stat., § 42–4–1202(1.5)(a);  Fla.Stat., §§ 316.193, 316.1932(1)(b)(1), 322.01(3)(a)–(c);  Ga.Code Ann., § 40–1–1(1);  Ga.Code Ann., § 40–6–391(a)(4);  Idaho Code, §§ 18–8004(1)(a) & 18–8004(4);  Ill.Comp.Stat., ch. 625, § 5/11–501.2(a)(5);  Ill.Comp.Stat., ch. 625, § 5/11–501(a)(1);  Iowa Code, § 321J.2, subd. 1(b);  § 321J.1, subd. 1(a)–(c), Kan.Stat.Ann., § 8–1567(a)(1) & (2);  Kan.Stat.Ann., § 8–1013(a);  Ky.Rev.Stat.Ann., § 189A.010(1)(a);  Ky.Rev.Stat.Ann., § 189A.005(1);  Md.Transp.Code Ann., § 11–103.2;  Mass.Gen.L., ch. 90F § 1, 3d par.;  Minn.Stat., § 169.01, subd. 61(a)–(c);  Minn.Stat., § 169.121, subd. 1(d) & (e);  Mont.Code Ann., § 61–8–407;  Mont.Code Ann., § 61–8–406;  Neb.Rev.Stat., § 39–669.07(1)(b) & (c);  Nev.Rev.Stat.Ann., § 484.0135;  Nev.Rev.Ann., § 484.379, subd. 1;  N.H.Rev.Stat.Ann., § 259:3–b;  N.H.Rev.Stat.Ann., § 265:82, subd. I(b);  Ohio Rev.Code Ann., § 4511.9(A)(2)–(4);  Okla.Stat., tit. 47, § 756(d);  Okla.Stat., tit. 47, § 11–902, subd. A(1);  Tex.Rev.Civ.Stat.Ann., arts. 6701l–1(a)(1)(A)–(C), 6701l–1(a)(2)(B), 6701l–1(b);  Utah Code Ann., § 41–6–44(1)(a), (2);  Vt.Stat.Ann., tit. 23, § 1200(1)(A) & (b);  Vt.Stat.Ann., tit. 23, § 1201(a)(1);  Wis.Stat., § 346.63(1)(b).)

BENKE, Associate Justice.

TODD, Acting P.J., and NARES, J., concur.