PEOPLE v. BUSH (1981)

INTRODUCTION

This appeal is before us upon transfer from the Appellate Department of the Superior Court of Los Angeles County. Defendant Herbert Owen Bush, Jr. (hereinafter defendant and/or Bush), appeals from a conviction in the Municipal Court of the Beverly Hills Judicial District. He was convicted in a jury trial of having driven a motor vehicle upon a public highway while under the influence of intoxicating liquor in violation of Vehicle Code section 23102, subdivision (a). Defendant's conviction was reversed by the Appellate Department and its opinion was ordered published in the Advance California Appellate Reports. We ordered the matter transferred to this court for hearing and decision pursuant to the provisions of rule 62(a) of the California Rules of Court. We deemed the transfer necessary in order to secure uniformity of decision and to settle important questions of law.¹

FACTS

The evidentiary record on appeal comes to us as a Settled Statement made pursuant to rules 127, 184-187 of the California Rules of Court. Defendant Bush's proposed settled statement on appeal, to which the prosecuting attorney submitted no opposition, was adopted by the trial court. Following is a summary of the evidence contained in the settled statement relevant to this appeal:

THE PROSECUTION'S EVIDENCE

Defendant Bush was arrested on May 4, 1979, after California Highway Patrol Officer W. R. Marchant observed him to be driving erratically at the intersection of Sunset Boulevard and Fairfax Avenue and for about six blocks thereafter. The officer heard the defendant's tires squeal while negotiating a turn at the intersection of Sunset and Fairfax, and observed his car weave over lane lines, and after being stopped noticed the defendant had “pink and watery” eyes and also failed to satisfactorily perform a set of field sobriety tests. Officer Marchant testified to the foregoing at the trial and also testified that he inquired of defendant Bush as to whether or not he had any physical injuries and whether or not he was under the care of a doctor, and that the defendant indicated that he was not as to either. The defendant was then transported to the West Hollywood Sheriff's Substation for purposes of obtaining a blood alcohol test, at which time he (defendant Bush) submitted to a Gas Chromatograph Intoximeter (GCI) breath test (instrument No. 61) which yielded readings of 0.17 and 0.18 percent blood alcohol.²

Prosecution witness Thomas McCleary, a qualified criminalist, testified concerning the records kept on the accuracy of this instrument No. 61. He stated sample tests, using prepared sample solutions with known percentages of alcohol, had been performed on instrument No. 61 on May 1 and on May 17, 1979. (Defendant's breath tests had been administered the date of his arrest, May 4, 1979.) The records for the May 1, 1979, sample tests revealed that on a known sample solution of 0.193, instrument No. 61 showed readings on five tests of 0.192, 0.205, 0.211, 0.213 and 0.214, respectively. It was noted that a gas cylinder which was a functioning part of the instrument was low in pressure. The records for the May 17, 1979, sample tests revealed that the same gas cylinder was empty and that a new tank had to be installed after which the instrument gave accurate readings of the known sample solution.

Criminalist McCleary also testified that, in his opinion, GCI instrument No. 61 was in proper working condition on May 4, 1979, the date the alcoholic breath tests were administered to the defendant.

Following the testimony of arresting Officer Marchant and Criminalist McCleary, the prosecution offered in evidence the two test results of the GCI administered to defendant on May 4, 1979. Defendant Bush objected to the introduction into evidence of the May 4, 1979, GCI test results upon the ground that no foundation had been laid to show that the tests administered to defendant were in compliance with Title 17 of the California Administrative Code.³ The objection was overruled and the test-result evidence was admitted along with the check-off list used in administering the tests.

DEFENSE EVIDENCE

The only defense evidence was supplied by defendant Bush himself, who testified substantially as follows: that on May 3, 1979, he worked late at his office in Glendale in order to meet with a business associate in Hollywood later on in the evening; that at about 9 p. m. he went to dinner at a small restaurant in Glendale where he consumed an order of barbecued ribs and some coffee; that he then returned to his office at approximately 10 p. m. where he consumed half of a liter of wine which was the only alcoholic beverage he had consumed that day; that at approximately 12 midnight he departed his office on the way to Hollywood to complete his business; that while traveling southbound on Fairfax Avenue as it intersects with Sunset Boulevard, he made a right-hand turn at approximately 15 miles per hour and did not recall any squealing of his tires; that during the next six blocks before he was stopped, he was aware of a police car directly behind him and that at no time did he move out of his lane; that as he entered a long, sweeping left-hand turn during about the fourth or fifth block he may have touched the line separating the No. 2 from the No. 1 lane with his left wheels, but that his normal driving pattern is to hug the inside lane when he is making a turn in any particular direction; that upon activation of the red lights on the police car he pulled to the right at the earliest opportunity without any difficulty; that at the time of the stop, he was a little bit tired from a long day's work and that his eyes were slightly bloodshot but that both of such conditions are entirely normal for him; that when he was asked to step from the car to perform a series of field sobriety tests, he had a conversation with the police officer and informed Officer Marchant that he was under the care of an orthopedic surgeon, Dr. Alanson Mason, for complaints of pain in his low back which pain was radiating down his left, posterior thigh; and that during the evening he had other conversations with the police officer and related to him that he was scheduled for a physical therapy appointment that very morning. (The medical records of Dr. Alanson Mason were submitted and accepted into evidence by the defendant to verify this testimony by him.)

Defendant Bush further testified that on a few of the field sobriety tests administered by Officer Marchant he did not do too well, however, on some of them he did very well; that in the one test that required him to raise one leg off the ground while balancing on the other leg, he admitted that he was unable to do this test well but attributed his inability to perform the test properly to his back condition rather than his state of sobriety. (Defendant Bush and Officer Marchant were in accord that the defendant said the alphabet perfectly and was able to touch the correct finger to his nose on every occasion and was able to stand in a modified position of attention for the requested period with only a slight bit of sway.) Defendant Bush testified that overall his performance on the field sobriety tests was “pretty good”, especially considering the fact that he had been in relatively constant pain as a result of his low back injury.

Defendant Bush denied that he was ever under the influence of alcohol during the evening and stated that he had no difficulty in operating his motor vehicle although he did have some back and leg pain which hindered his ability to complete the field sobriety tests as well as he would like to have.

On cross-examination it was brought out that Dr. Mason had prescribed a soma compound for defendant Bush to relieve pain and the defendant acknowledged that he had taken a tablet of said soma compound at approximately 6 p. m. during the evening preceding his arrest.

PROSECUTION REBUTTAL EVIDENCE

Prosecution rebuttal witness Esther Lanier, a pharmacist possessing a doctorate in pharmacy, testified that soma compound with codeine like that which Dr. Mason had prescribed for defendant Bush would last in a person's system for a period of four to six hours, and would have a tendency to exaggerate the effects of alcohol; that the Physicians' Desk Reference indicates that said soma compound to be effective only for a period of four hours. Witness Lanier, in answering a hypothetical question as to whether or not the average person would be affected at 12:30 a. m. by the drug if it was taken the preceding evening at 6:00 p. m., testified that it may have had an effect.

ISSUES

On appeal defendant contends (1) that the trial court erred in admitting into evidence the breath-test results of May 4, 1979, which indicated that defendant's blood alcohol content was 0.17 percent on the first test and 0.18 percent on the second test; (2) that the trial court erred in refusing to give his proffered jury instruction that it (the jury) could completely disregard the breath-test results if the breath-testing device was found to be unreliable; and (3) that the evidence was insufficient to support the judgment of conviction.

DISCUSSION

I

Defendant Bush first contends that foundational evidence necessary to render the test results admissible was lacking which constituted reversible error. He points to the requirement of Title 17 of the California Administrative Code (particularly §§ 1221-1221.5) which requires a breathalyzer instrument to be calibrated every 100 tests or 10 days, whichever first occurs. As previously noted, Criminalist McCleary testified that the instrument used in the breath-test (No. 61) on defendant on May 4, 1979, was previously calibrated on May 1, 1979, and was next calibrated on May 17, 1979. Defendant also contends that on May 1, 1979, when the calibration was performed on the instrument in question, 5 separate readings were obtained, and in 4 of the last readings there were shown to be an excess of the 0.01 tolerance level prescribed by Title 17 of the California Administrative Code. The evidence discloses that the “Gas Chromatograph Intoximeter Check List” reading of the first test result taken of defendant's breath on May 4, 1979, shows 0.17 percent and the second test result shows 0.18 percent. These two readings did not give a variance in excess of 0.02 percent and therefore a repeat test was not required. (The check list points out that if the reading between the 2 tests varied more than 0.02 percent a repeat test was required under that check list.)

The foundational prerequisites for the admissibility of blood alcohol test results to be testified to by an expert witness are: (1) the particular apparatus that was used was in proper working order, (2) the test used was properly administered, and (3) the operator was competent and qualified. (People v. Adams (1976) 59 Cal.App.3d 559, 561, 131 Cal.Rptr. 190.)

Evidence Code section 403 establishes the rules for determination of foundational facts where relevancy is disputed. Under that section the function of the trial judge in deciding whether to admit the “proffered evidence”, i. e., the test results, is to determine whether a showing of the preliminary facts, i. e., the foundational prerequisites listed above, is sufficient to sustain a finding of the existence of such facts. (Evid. Code, § 403, subd. (a).) As indicated in the Code comment to section 403, it is not the trial judge's function to decide finally the preliminary facts because they have been traditionally regarded as jury questions. “[T]he questions involve the credibility of testimony or the probative value of evidence that is admitted on the ultimate issues. It is the jury's function to determine the effect and value of the evidence addressed to it. [Citation.] … the judge's function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question․” (Assem.Com. on Judiciary Com. to Evid.Code, § 403, 29B West's Ann.Evid. Code, (1966 ed.) p. 267.)

In the case at bench, the trial court, in its preliminary fact-finding process, must have necessarily found that the instrument in question was in proper working order on May 4, 1979, based on the testimony of Criminalist McCleary to that effect.

In People v. Adams, supra, 59 Cal.App.3d at p. 567, 131 Cal.Rptr. 190, the court concluded that noncompliance with California Administrative Code regulations merely goes to the weight of the evidence and that noncompliance with the Administrative Code regulations does not inherently and automatically render the instrument unreliable and the test worthless nor require that the test result be made inadmissible. (See also People v. French (1978) 77 Cal.App.3d 511, 522, 143 Cal.Rptr. 782; People v. Rawlings (1974) 42 Cal.App.3d 952, 956, 117 Cal.Rptr. 651 [dicta]; People v. Brannon (1973) 32 Cal.App.3d 971, 975, 108 Cal.Rptr. 620.) Accordingly, we hold that the trial court did not commit error when it allowed admission in evidence of the 0.17 and 0.18 percent readings obtained from instrument No. 61 on May 4, 1979.

II

Defendant Bush secondly contends the trial court erred by refusing to add the second paragraph of his proposed instruction No. 1⁴ to CALJIC No. 16.834 which stated “You are further instructed that the result of the breath test may be completely disregarded if the breath testing device is found to be unreliable.” (At the bottom of defendant's two paragraph Proposed Instruction No. 1 the following notation appears in handwriting: “Refused 16.834 given including Bracket material” followed by the initials of the trial judge.)

The presumption where a GCI test shows 0.10 percent or more by weight of alcohol in blood as provided by Vehicle Code section 23126, subdivision (a)(3), (added in 1969) “is classified as one affecting the burden of proof,” (Witkin, Cal.Evidence (2d ed., 1977 supp.) (New) Evidentiary Effect of Test, § 910C, p. 503) by its express terms.⁵ This further requires consideration of Evidence Code section 607⁶ and CALJIC No. 16.834 which was read to the jury.

The trial judge in the instant case instructed the jury on CALJIC No. 16.834 (1979 Revision) (Liquor Influenced Driving—Presumption of Intoxication) and pertinent portions of Title 17 as follows:

“If the evidence establishes beyond a reasonable doubt that the amount, by weight, of alcohol in the defendant's blood was one tenth of one percent (0.10%) or more at the time of the test as shown by a chemical analysis of his blood, breath, or urine, you should find that the defendant was under the influence of intoxicating liquor at the time of the alleged offense, unless from all the evidence you have a reasonable doubt that he was in fact under the influence of intoxicating liquor at the time of the alleged offense.

[The failure, if any, to follow the regulations adopted by the California State Department of Health for procedures to be used in administering tests to determine the concentration of ethyl alcohol in a person's blood, may be considered by you in determining the accuracy of the test or tests made in this case.]”7

“You are instructed that state laws and rules (Title 17—Forensic Alcohol Analysis) provide Standards of Procedure (in Section 1221.4):

Procedures for breath alcohol analysis shall meet the following standards:

Instruments for breath alcohol analysis shall, among other standards, be capable of analyzing a blank sample and analyzing a suitable reference sample, such as air equilibration with a reference solution of a known alcohol content at a known temperature.

For the purposes of such determinations of accuracy, periodic testing means such analysis either a period of time not exceeding 10 days or following the testing of every 150 subjects, whichever comes sooner.

Such records shall be kept for each instrument to show the frequency of determination of accuracy and the identity of the person performing the determination of accuracy.

Further, records shall be kept for each instrument at a licensed forensic alcohol laboratory showing compliance with this section.”

“You are instructed that Section 1221.2 of the Title 17, Chapter 2, Sub-chapter 1, Group 8, of the California Administrative Code, which was in effect at the time of the events of this litigation, was as follows:

‘1221.2. Standards of Performance. Instruments for breath alcohol analysis shall meet the following standards of performance:

(a) The instrument and any related accessories shall be capable of the collection and analysis of breath specimens which are essentially alveolar in composition;

(b) The quantity of breath analyzed for its alcohol content shall be established only by direct volumetric measurement at a known temperature.

(c) the instrument shall be capable of analyzing a blank sample and of analyzing a suitable reference sample, such as air equilibrated with a reference solution of known alcohol content at a known temperature.

(d) The instrument shall be capable of the analysis of a reference sample of known alcohol concentration within accuracy and precision limits of plus or minus 0.01 grams of the true value; these limits shall be applied to alcohol concentrations which are 0.10 grams, or higher;

(e) The instrument shall be capable, in a controlled experiment, of breath alcohol analysis which results in a determination of a subject's blood alcohol concentration which has correlation with his actual blood alcohol concentration as measured on a blood sample taken at the same time as the breath sample;

(f) The instrument shall be capable of breath alcohol analysis which results in a concentration less than 0.01 grams of alcohol per 100 milliliters of blood when alcohol-free subjects are tested.

(g) The ability of instruments and any related accessories to meet the standards of performance set forth in this Section shall be subject to evaluation by the Department.”'

We conclude that CALJIC No. 16.834 coupled with the pertinent portions of Title 17, as read to the jury in the instant case, adequately and properly applies the premises set forth in Evidence Code section 607. The jury is told in effect that in order for the presumption to apply the evidence must establish beyond a reasonable doubt that the defendant's percentage of blood alcohol by weight as shown by a chemical analysis was 0.10 percent. The basic fact which gives rise to the presumption is the alcoholic content of a person's blood in the amount of 0.10 percent or more by weight. The presumed fact under Vehicle Code section 23126 is that such person was under the influence of intoxicating liquor at the time of the offense. The instruction carries out the rest of Evidence Code section 607 by stating in essence that the effect of the presumption can be overcome if, from all the evidence, the jury has a reasonable doubt that the defendant was under the influence. (Jefferson, Cal.Evid. Benchbook, pp. 821-822.)

In the instant case under the last bracketed portion of CALJIC C No. 16.834 (which was read to the jury) defendant Bush was free to argue that despite the readings of 0.17 and 0.18 percent, the test results were suspect because of noncompliance with pertinent Title 17 requirements. Under the Adams rule since the GCI test results obtained in noncompliance with Title 17 are not made inadmissible, “defendant can attack the ‘credibility’ of the [GCI] test by showing that normal testing procedures were not followed, the operator was not properly qualified, or that the machine was unreliable.” (People v. French, supra, 77 Cal.App.3d 511, 522, 143 Cal.Rptr. 782, italics added.) Defendant Bush was also free to argue that the test results were suspect because of his own testimony. If a reasonable doubt were created by any of this testimony, under the instruction the jury would not have applied the presumption.

The proffered instruction was also properly refused because it t is an erroneous statement of the law. The decision of People v. Adams, supra, 59 Cal.App.3d 559, 567, 131 Cal.Rptr. 190, makes it clear that Title 17 does not provide an exclusive means for establishing the validity of test results. An adequate foundation can be presented despite technical violations; noncompliance may not affect test results in any way or render the results inaccurate. “Noncompliance with the Administrative regulations goes only to the weight of the blood alcohol concentration evidence. In accordance with prior case law, the validity of the test itself is to be determined in accordance with general scientific standards as to the foundational elements of properly functioning equipment, properly administered test, and qualified operator.” To tell a jury to disregard the test results if Title 17 had not been complied with beyond a reasonable doubt is contrary to the analysis in Adams and is an incorrect statement of the law. Accordingly, we hold the trial judge correctly rejected the instruction for this reason.

In addition to instructing the jury on CALJIC No. 16.834 (1979 Revision) and pertinent portions of Title 17 as hereinbefore discussed, the trial judge instructed the jury on pertinent composite basic instructions for misdemeanor trials (1979 Revision) consisting of CALJIC No. 16.000/X (Expert Testimony);⁸ CALJIC No. 16.000/XI (Presumption of Innocence and Burden of Proof);⁹ and CALJIC No. 16.000/XII (General Intent).¹⁰ In addition the jury was instructed on CALJIC No. 16.830 (1973 Revision) (Drunk Driving);¹¹ CALJIC No. 16.831 (1979 Revision) (Liquor or Drug Influenced Driving—“Under the Influence”— Defined);¹² and CALJIC No. 16.832 (Drunk Driving—Under the Influence Relates to Condition of Driver and Not Manner in Which Vehicle is Driven).¹³

6 Our review of all the instructions given the jury which included those hereinbefore specifically mentioned leads us to conclude that they adequately and properly covered the general principles of law applicable to the facts before the court and relevant to the issues raised by the evidence. They were the ones “necessary for the jury's understanding of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913.) No other instructions were required.

The dissenting opinion concludes that the trial court's refusal to give the jury the second paragraph of defendant's instruction No. 1 (see fn. 4, supra) constituted reversible error. We have heretofore set forth our reasons for concluding that the refusal did not constitute reversible error and that the trial court adequately and properly instructed the jury in the instant case.

The dissenting opinion also concludes that CALJIC No. 16.834 (1979 Revision) is “woefully deficient and inaccurate”. We disagree. The dissenting opinion then goes on to fashion a proposed “appropriate and legally sufficient instruction” viewed as incorporating Evidence Code sections 607 and 403 and the decisional law in the cases of People v. Rawlings, supra, 42 Cal.App.3d 952, 117 Cal.Rptr. 651; People v. Adams, supra, 59 Cal.App.3d 559, 131 Cal.Rptr. 190; and People v. Puccinelli (1976) 63 Cal.App.3d 742, 135 Cal.Rptr. 534.

The enactment of the Evidence Code provisions and the filing of the decisions in Rawlings, Adams and Puccinelli relied upon in the dissenting opinion in fashioning its proposed instruction all pre-date the 1979 Revision of CALJIC No. 16.834. The “comment” following the 1979 Revision of CALJIC No. 16.834 refers to Adams (hg. den. in the Supreme Court) which in turn cites Rawlings. The 1976 case of Puccinelli is clearly not to point and merely holds that the implied consent statute (Veh.Code, § 13353) does not expressly require suppression of blood test results where facilities for a breath and urine test are unavailable when a defendant originally refuses to consent to a blood test but is eventually persuaded to take the blood test by an arresting officer. In short the knowledgeable and competent CALJIC committee was undoubtedly fully apprised of and considered the statutory and decisional law referred to in the dissenting opinion when it (the CALJIC committee) drafted the 1979 revision of that instruction. In our view CALJIC No. 16.834 (1979 Revision) adequately, accurately and concisely states the law applicable to the instant case when read in conjunction with the other instructions given. Unless we have completely abandoned the adversary system of justice and the art of advocacy, it is the trial counsel's function during final argument to connect up the evidence with the law as given by the court. In the instant case there is no contention or showing that defense counsel did not properly perform that function.

In order to avoid any possible confusion, we point out that the proposed instruction presented in the dissenting opinion was not submitted by defense counsel to the trial judge in the case at bench and is therefore not before us on appeal. Moreover, as previously stated, the instructions given by the trial judge in the instant case adequately and properly covered the principles of law “necessary for the jury's understanding of the case” (People v. Sedeno, supra, 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913) and was under no duty to instruct, sua sponte, in any other respect or to instruct in the manner proposed in the dissenting opinion.

III

Defendant Bush's final contention that the evidence was insufficient to support the verdict is also without merit. The standard of review on appeal requires that the evidence be viewed in the light most favorable to the verdict, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Henderson (1977) 19 Cal.3d 86, 97, 137 Cal.Rptr. 1, 560 P.2d 1180.)

7 We conclude that even in the absence of the GCI test result, the record discloses substantial evidence of defendant's intoxicated condition. Defendant Bush straddled the lane on three separate occasions prior to having been stopped and caused his tires to squeal in making a turn; he had pink and watery eyes and had the appearance of being tired; and was unable to satisfactorily pass the field sobriety tests (to which he admits as to some). Defendant admitted to having consumed a half of a liter of wine shortly after 10 p. m. and was arrested by Officer Marchant sometime after 12 a. m. Although defendant Bush at the time of his arrest told Officer Marchant that he was not suffering from any physical injuries or that he was not under a doctor's care, he testified at the trial that he was under the care of an orthopedic doctor and that he had taken a soma compound at about 6 p. m. that evening. (Dr. Lanier, a pharmacist, testified that this medication, if ingested, would last in a person's system between four to six hours, but could not say, with any degree of certainty, what would have been the effect of this ingestion on defendant six and one-half hours subsequent to the ingestion.) The jury obviously chose to disbelieve defense evidence as it was entitled to do.

The above evidence coupled with the GCI tests of 0.17 and 0.18 percent blood alcohol, which the jury was entitled to accept under the totality of the evidence and the testimony of expert witness McCleary, constituted overwhelming evidence supporting the judgment of conviction.

DISPOSITION

The judgment of conviction is affirmed.

I dissent.

The majority finds no error in the trial court's refusal to give defendant's proffered instruction that the jury could completely disregard the breath-test results if the breath-testing device was found to be unreliable. I do. In addition, I conclude that, in light of the conflicting evidence, the court's failure to give the requested instruction constituted prejudicial error, requiring a reversal of the defendant's conviction. Although I agree with the majority's holding that evidence of the breath-test results of May 4, 1979, was properly admitted, I find it necessary to set forth my views on the question of determining the admissibility of evidence of chemical tests of a person's blood alcohol content as a prelude to stating why I consider the trial court's refusal to give to the jury defendant's requested instruction constituted error of an egregious and reversible nature.

I

The Legal Principles Involved in Determining Admissibility of Evidence of the Results of a Chemical Test Administered to Defendant To Determine the Percentage of Alcohol In His Blood

Defendant's attack upon the admissibility of the test results is twofold: He first points out that there was a lack of compliance with the requirements of the administrative regulations—Title 17 of the Administrative Code. He next argues that the foundation for admissibility was lacking in that the evidence did not establish (1) that the particular apparatus used was in proper working order, or (2) that the test was properly administered, or (3) that the operator of the apparatus was competent and qualified.

It is not open to question that the breath alcohol analysis tests that were administered to defendant did not fully comply with the requirements of Title 17 of the Administrative Code. The Title 17 regulations impose requirements, among others, (1) that the breathalyzer instrument used be inspected, tested for accuracy and calibrated (if necessary) by a trained expert every 10 days or every 150 times it is actually used, whichever occurs sooner; and (2) that the instrument be capable of analyzing a reference sample of known alcohol concentration within accuracy and precision limits of plus or minus 0.01 grams percent of the true value. (Cal.Admin.Code, tit. 17, §§ 1221.1-1221.5.)

The expert criminalist, called by the prosecution, testified that neither of these requirements was met as to Instrument No. 61. He pointed out that Instrument No. 61 went 17 days between testing—May 1 to May 17—and that the tolerance limit was exceeded in four of the five test results from the known test sample solution obtained on the May 1, 1979 testing. The criminalist also testified that after the five readings were made in the May 1 testing, no adjustments were made in the machine. The criminalist also stated that the operating condition of the instrument when tested on May 17, 1979, was considerably different from the operating condition on May 1, 1979, and that it could have been due to a difference in the competency of the two operators on the separate dates or to a difference in the operating condition of Instrument No. 61. He was familiar with the two operators and was not inclined to attribute the tremendous difference in the apparent operating condition of the instrument as shown by the records to a difference in the ability of the two individuals in operating the instrument. Nevertheless, the criminalist testified that, in his opinion, the Gas Chromatograph Intoximeter—Instrument No. 61—was in proper working condition on May 4, 1979, the date of the tests administered to defendant.

There are three areas of significance involved in the question of admissibility of evidence of a chemical test such as the breath analysis for blood alcohol content involved in the case before us. All three areas pertain to the issue of relevancy and, hence, admissibility, of the proffered evidence—the evidence of the May 4, 1979 test results.

The first consideration deals with the evidentiary requirements for evidence of any scientific test to be deemed relevant evidence for admissibility purposes. “Evidence of the performance of various chemical and other scientific tests may be offered to prove the existence or nonexistence of facts revealed by the tests. Such test is relevant and admissible, however, only if its reliability has been established through general acceptance by recognized authorities in the particular scientific field to which the test belongs․ [[[[¶] The following are examples of more recent scientific tests that have gained recognition as satisfying the test of relevancy set forth in the rule above: (a) blood, breath, and urine tests for intoxication, …” (Jefferson, California Evidence Benchbook (1972) Evidence of Scientific Tests—Determination of Relevancy, § 20.6, p. 243.)

In People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, our high court points out that, once the underlying reliability of the method (scientific technique) is established by a showing of general acceptance of the technique in the relevant scientific community, there then is added the requirement for admissibility that “the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case.” (Id. at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240.)¹

The second area of significance regarding relevancy and admissibility revolves around the question of whether evidence of a scientific test such as a breath analysis to determine blood alcohol content, or any other kind of evidence for that matter—even though it meets the definition of relevant evidence (Evid.Code, § 210)—is precluded from admissibility by statute. This problem arises because of Evidence Code section 351 which provides: “Except as otherwise provided by statute, all relevant evidence is admissible.” (Emphasis added.)

Section 13353, subdivision (a), of the Vehicle Code provides that driving a motor vehicle constitutes a consent by the driver to a “chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood” upon an arrest for driving under the influence of intoxicating liquor. Health and Safety Code sections 436.50-436.52 require the State Department of Health Services to adopt and publish rules and regulations to govern the testing by law enforcement agencies of (1) blood, (2) urine and (3) breath samples to determine blood alcohol content. These regulations are set forth in California Administrative Code, sections 1221.1-1221.5. Does Evidence Code section 351 bar from admissibility evidence of a defendant's test results for blood alcoholic content if such evidence was secured without a full compliance with the Title 17 regulations? This question was answered in the negative in cases such as People v. Rawlings (1974) 42 Cal.App.3d 952, 117 Cal.Rptr. 651; People v. Adams (1976) 59 Cal.App.3d 559, 131 Cal. Rptr. 190; and People v. Puccinelli (1976) 63 Cal.App.3d 742, 135 Cal.Rptr. 534.

The rationale of the rule set forth in Puccinelli, Adams and Rawlings constitutes an interpretation of Evidence Code section 351. Section 351 is interpreted to mean that a statute must expressly prohibit the introduction of evidence secured in violation thereof before Evidence Code section 351 applies to preclude admissibility. There are no express words in either Vehicle Code section 13353 or Health and Safety Code sections 436.50-436.52 or in the pertinent Title 17 regulations which prohibit admissibility to evidence of blood alcohol test results secured in violation of any portion of the Title 17 regulations. These statutory provisions and administrative regulations are simply silent regarding the subject of evidence admissibility.

Although rejecting the concept of inadmissibility of evidence of test results for blood alcohol content based upon statutory preclusion, the decisional law did not hold that failure of such evidence to comply with Title 17 regulations was inconsequential. The Adams, Rawlings and Puccinelli cases held that evidence that test results for a defendant's blood-alcohol content were secured without full compliance with Title 17 regulations was admissible to attack the weight to be given to the test results by the trier of fact.

But this rule of evidentiary law is not the sole answer to the problem of admissibility of evidence of test results for blood alcohol content when it is revealed that there has not been full compliance with the Title 17 regulations. As I shall elucidate subsequently herein, the decisional law of Adams, Rawlings and Puccinelli does not deal adequately with the problem created by the fact that chemical test results of a defendant's blood-alcohol content establish a presumption that such defendant was under the influence of intoxicating liquor.

I thus turn next to a consideration of the third aspect of relevancy and admissibility requirements in connection with evidence of scientific tests. As I stated previously, the Kelly court pointed out that, even though the general reliability of a particular type of scientific test or technique has been established because of its general acceptance by the scientific community involved and proof of this fact has been presented in court by qualified expert testimony, “the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case.” (Kelly, supra, 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240.) (Emphasis added.) In effect, Puccinelli, Adams and Rawlings deal also with this latter point made by Kelly.

Although mere noncompliance with Title 17 regulations does not, in and of itself, preclude admissibility to evidence of test results showing a defendant's blood alcohol content, it is obvious that noncompliance with the regulations may be of such a substantial nature that the evidence becomes inadmissible on the ground of irrelevancy.

The Puccinelli, Adams and Rawlings cases make clear that “[t]he task of the trial judge in each particular case is to determine whether such test results are too speculative and, hence, unreliable and inadmissible when there is a failure of compliance with the regulatory provisions of Title 17 of the California Administrative Code, or whether, in spite of the statutory noncompliance, the machine, device, or apparatus used is proved to be in good working order and the tests have been administered properly so that the test results are not speculative but are sufficiently reliable to be deemed relevant and thus admissible in evidence.” (Jefferson, California Evidence Benchbook (1978 Supp.) § 20.1, pp. 166-167.) (Emphasis in original.)

The qualifications for admissibility of evidence of specific test results for blood alcohol content, to be determined by the trial judge, was expressed succinctly by the Adams court as follows: “In accordance with prior case law, the validity of the test itself is to be determined in accordance with general scientific standards as to the foundational elements of properly functioning equipment, properly administered test, and qualified operator.” (Adams, supra, 59 Cal.App.3d 559, 567, 131 Cal.Rptr. 190.) (Emphasis added.)²

II

It Was Error for the Trial Court To Refuse Defendant's Requested Instruction that the Jury Could Completely Disregard the Results of the Breath Tests If the Breath Testing Device Was Found To Be Unreliable

Of its own motion the trial court gave CALJIC Instruction No. 16.834 (1979 Revision) which reads as follows: “If the evidence establishes beyond a reasonable doubt that the amount, by weight, of alcohol in the defendant's blood was one tenth of one percent (0.10%) or more at the time of the test as shown by a chemical analysis of his blood, breath, or urine, you should find that the defendant was under the influence of intoxicating liquor at the time of the alleged offense, unless from all the evidence you have a reasonable doubt that he was in fact under the influence of intoxicating liquor at the time of the alleged offense. [¶] The failure, if any, to follow the regulations adopted by the California State Department of Health for procedures to be used in administering tests to determine the concentration of ethyl alcohol in a person's blood, may be considered by you in determining the accuracy of the test or tests made in this case.”

As a part of an instruction covering the same subject matter as that set forth in CALJIC Instruction No. 16.834 (1979 Revision), defendant requested the court to instruct the jury as follows: “You are further instructed that the result of a breath test may be completely disregarded if the breath testing device is found to be unreliable.” The trial court refused to give this instruction. Contrary to the majority's holding, I agree with defendant's assertion that the refusal of the court to give this requested instruction constituted error.

It is defendant's thesis that reliability of the breath-testing device—Instrument No. 61—is a “preliminary fact” which first must be established in order to make evidence of the test results of defendant's blood alcohol content relevant and admissible, and that, under Evidence Code section 403, he was entitled, therefore, to the requested instruction.

I begin my discussion of this contention of defendant with a consideration of the pertinent Evidence Code sections. Evidence Code section 400 defines the term “preliminary fact” to mean “a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.” Evidence Code section 401 defines “proffered evidence” to mean “evidence, the admissibility or inadmissibility of which is dependent upon the existence or nonexistence of a preliminary fact.” And Evidence Code section 403, subdivision (a), provides, in part pertinent to the issue before us, that “[t] he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [¶] (1) The relevance of the proffered evidence depends on the existence of the preliminary fact; …” (Emphasis added.)

The wording of Evidence Code section 403, subdivision (a)(1), has been explained in the following language: “If the relevancy of proffered evidence depends on existence of a preliminary fact, the proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the judge's function is to admit the proffered evidence if evidence of the existence of the preliminary fact produced by the proponent is sufficient to warrant a jury in deciding that such preliminary fact exists.” (See Jefferson, Cal. Evidence Benchbook, § 24.1, p. 310.)

As I have articulated above, evidence of the results of breath testing to determine a defendant's blood alcohol content is relevant only if it is established that (1) the particular device or machine utilized was in proper working order, (2) the test used was appropriately administered, and (3) the operator was competent and qualified. These three facts are preliminary facts to the admissibility of evidence of such test results—the proffered evidence in the case at bench—within the meaning of Evidence Code section 403, subdivision (a)(1). In admitting the proffered evidence of defendant's blood alcohol test results of May 4, 1979, the trial court in the instant case necessarily determined that the evidence presented before it by the prosecution was sufficient to warrant a finding by the trier of fact—the jury—that such preliminary facts existed.³

Once proffered evidence (here the evidence of the May 4, 1979 test results), the relevancy of which is dependent upon the existence of preliminary facts, has been admitted by the trial court judge, the issue then presented is whether the party against whom such evidence has been admitted is entitled to specific instructions to the jury as to how such proffered and admitted evidence is to be considered by the jury.

To date, we have only the paragraph of CALJIC Instruction No. 16.834 (1979 Revision) which tells the jury that “[t]he failure, if any, to follow the regulations adopted by the California State Department of Health for procedures to be used in administering tests to determine the concentration of ethyl alcohol in a person's blood, may be considered by you in determining the accuracy of the test or tests made in this case.” But is this instruction sufficient? Does it really tell the jury how it is to consider evidence that is introduced regarding the accuracy of the test results? Certainly it does not tell the jury that the jury has any obligation or right to redetermine the relevancy and admissibility of the evidence that defendant had a blood alcohol content of 0.17 and 0.18 percent according to the breath tests administered to defendant on May 4, 1979, by considering whether there has been a failure of the prosecution to prove, beyond a reasonable doubt, the existence of the three preliminary facts that are required to make such evidence relevant and admissible. And since this paragraph of CALJIC No. 16.834 does not tell the jury that this is the way it is to consider evidence of the failure to comply with the regulations establishing the procedures to be used in administering the tests for blood alcohol content, I consider this paragraph to be fatally flawed as part of a jury instruction and, hence should be discarded.

The particular paragraph of CALJIC No. 16.834 was developed in response to the believed teaching of such cases as Adams, Puccinelli and Rawlings that, although a failure by government employees to fully comply with Title 17 regulations, does not, in and of itself, require the trial judge to hold that evidence of the test results showing defendant's blood alcohol content is irrelevant and inadmissible, still, evidence of noncompliance with the regulations may, somehow, be used by the jury in determining the accuracy of the blood alcohol tests administered to a defendant. But a careful reading of Adams, Puccinelli and Rawlings indicates that those cases dealt only with the question of whether the trial judge was required to exclude evidence of a defendant's blood-alcohol content as determined by chemical tests that failed to fully comply with the Title 17 regulations—an admissibility decision for the trial judge. The Adams, Puccinelli and Rawlings cases cannot, with any degree of logic or appropriate decisional law interpretation, be considered as having decided that Evidence Code section 403, subparagraph (c)(1), is not applicable to the issue presented in the case at bench. The Adams, Puccinelli and Rawlings cases did not address at all the issue of what constitutes appropriate instructions to the jury once the trial judge admits proffered evidence of a defendant's blood alcohol content test results.

I fully recognize that, in Adams, the court made this observation: “Noncompliance with the Administrative Code regulations goes only to the weight of the blood alcohol concentration evidence. In accordance with prior case law, the validity of the test itself is to be determined in accordance with general scientific standards as to the foundational elements of properly functioning equipment, properly administered test, and qualified operator.” (Adams, supra, 59 Cal.App.3d 559, 567, 131 Cal.Rptr. 190.) This observation simply sets forth the principle that the three preliminary-fact requisites described must be established to make the chemical test results relevant and, hence, admissible into evidence.

It is unequivocally clear to me that the admissibility of evidence of chemical tests for the blood alcohol content of a defendant must be determined pursuant to the requirements of Evidence Code section 403, subdivision (a)(1), because the relevancy of such evidence depends on the existence of the three preliminary facts “of properly functioning equipment, properly administered test, and qualified operator” described in Adams. (Adams, supra, 59 Cal.App.3d 559, 567, 131 Cal.Rptr. 190.) That CALJIC No. 16.834 (1979 Revision) is woefully deficient and inaccurate as an instruction to the jury in this situation is demonstrated by the language of Evidence Code section 403, subdivision (c). This subdivision reads: “If the court admits the proffered evidence under this section, the court: [¶] (1) May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.” (Emphasis added.)

From the explicit provisions of Evidence Code section 403, subdivision (c)(1), the conclusion is inescapable that the jury—not the trial court—is to make the ultimate determination of the existence or nonexistence of a preliminary fact when proffered evidence is admitted but the admissibility of such proffered evidence depends on the existence of a preliminary fact to be determined under Evidence Code section 403. The existence of a preliminary fact necessary to relevancy of proffered evidence is simply one example of the application of Evidence Code section 403.⁴

It is manifestly clear that in the relevancy-preliminary fact situation such as is presented in the case before us, the trial court has no discretion with respect to the giving or the refusing to give the type of instruction requested by defendant. If such an instruction is requested by defendant, it is error for the court to refuse to give it. The language of Evidence Code section 403, subdivision (c)(1), provides no leeway for any other interpretation.

There is nothing incongruous or illogical about the fact that the trial judge rules initially upon the existence of the three preliminary facts to the relevancy and admissibility of evidence of a defendant's blood-alcohol-content test results with the jury being given the final responsibility of determining the relevancy of such test results by making a redetermination of the issue of the existence or nonexistence of the same three preliminary facts.

The standard for making the factual determination of the existence or nonexistence of preliminary facts for the relevancy of proffered evidence is different for the trial judge and for the jury, respectively. The trial judge does not have to be convinced—by even a preponderance of the evidence—of the existence of such preliminary facts. Under Evidence Code section 403, subdivision (a), the trial judge finds that preliminary facts exist by simply deciding that a reasonable jury could find that such preliminary facts exist from the evidence introduced, and then admits the proffered evidence. But the jury must be convinced from the evidence introduced to establish the preliminary facts, by a higher burden-of-proof standard, that such preliminary facts exist before the jury is entitled to consider that the proffered evidence (here, defendant's blood-alcohol-content test results) is relevant evidence to be used in deciding the disputed factual issue upon which the proffered evidence is offered—defendant's blood alcohol content of 0.10 percent or higher to trigger operation of the presumption of driving under the influence of intoxicating liquor. (Evid.Code, § 403, subd. (c)(1).)

In the instant case, the majority holds that the giving of CALJIC Instruction No. 16.834, together with pertinent portions of Title 17 regulations adequately and properly conformed to the requirements set forth in Evidence Code section 607 and negated any requirement for the trial court to give an instruction to conform to the requirements of Evidence Code section 403, subdivision (c)(1). I disagree.

I do not consider that the jury is told in any adequate or acceptable fashion whatever in CALJIC No. 16.834 what constitutes the basic facts to bring into play the presumption that defendant was under the influence of intoxicating liquor. All that Evidence Code section 607 provides is that the basic facts of a presumption affecting the burden of proof in a criminal case must be established by the burden-of-proof standard of “beyond a reasonable doubt.” Evidence Code section 607 leaves to other statutory provisions and the decisional law the matter of what facts constitute the facts of a particular presumption.

In the case before us, Vehicle Code section 23126, subdivision (a)(3), makes the existence of “0.10 percent or more by weight of alcohol in the person's blood,” as determined by a chemical test analysis of his blood, breath or urine, the basic fact for application of the presumption of being under the influence of intoxicating liquor. The pertinent provisions of Title 17 of the Administrative Code are designed to establish the procedural means of ascertaining a person's blood alcohol content by a chemical test analysis required by Vehicle Code section 23126, subdivision (a), to make applicable the drunk-driving presumption by reason of the 0.10 percent or more of blood alcohol content required by subdivision (a)(3) of Vehicle Code section 23126.

But informing a jury of lay persons of the detailed provisions of Title 17 does not, and cannot, inform the jury how failure of the government employees to follow the mandates of Title 17 is to be used by the jury in making the determination of the existence or nonexistence of the basic fact for the drunk-driving presumption—the percent of alcohol in a person's blood as determined by chemical analysis. The pivotal point in making such a determination is whether the test results from the chemical analysis are reliable or accurate.

I submit that the only reasonable interpretation of Vehicle Code section 23126, subdivision (a), in providing that “the amount of alcohol [0.10 percent or more by weight] in the person's blood at the time of the test as shown by chemical analysis of his blood, breath, or urine, shall give rise to” the presumption that such person was under the influence of intoxicating liquor, is to the effect that the test by chemical analysis which produces a defendant's blood alcohol content by a percent figure must be an accurate or reliable test in order for the percent-of-alcohol-in-the-blood figure to constitute the requisite basic fact for the drunk-driving presumption to come into operational existence.

As I have pointed out above, the blood-alcohol-content test results constitute the proffered evidence, the relevancy of which is dependent upon the existence of the three preliminary facts articulated in Kelly, Adams, Puccinelli and Rawlings that (1) the particular machine or device utilized for the tests was in proper working order, (2) the test used was appropriately administered, and (3) the operator was competent and qualified. It is unequivocally essential that the jury must find that these three preliminary facts exist in order for the test results to be found by the jury to be accurate or reliable so as to trigger application of the drunk-driving (being under the influence of intoxicating liquor) presumption under Vehicle Code section 23126, subdivision (a).

Here, in a drunk-driving case, we have the situation in which the proffered evidence (the test results) constitutes the basic fact for a presumption and evidence of such basic fact (the test results) is relevant and admissible only upon proof of the existence of preliminary facts—the three items necessary to make the proffered evidence relevant and admissible. But the evidence to establish the basic fact of the drunk-driving presumption comes within the definition of “proffered evidence” which is described in Evidence Code section 401 as “evidence, the admissibility or inadmissibility of which is dependent upon the existence or nonexistence of a preliminary fact.”

And the three factual items necessary to make the blood-alcohol-content chemical test results relevant and admissible constitute “preliminary facts” since Evidence Code section 400 defines a “preliminary fact” to mean “a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.” In light of the definitions of “proffered evidence” and “preliminary fact,” Evidence Code section 403 is necessarily and inexorably applicable to the admissibility of evidence of the test results of defendant's blood alcohol content. And, if evidence of such test results (the proffered evidence) is admitted by the trial court, Evidence Code section 403, subdivision (c)(1), mandates, upon a party's request, an instruction for the jury to “disregard the proffered evidence unless the jury finds that the preliminary fact does exist.” (Evid.Code, § 403, subd. (c)(1).)

In the case before us, the majority concludes that the trial court's giving of CALJIC No. 16.834, plus details of the provisions of Title 17, plus other general and specific instructions—CALJIC No. 16.000, subdivision X (Expert Testimony); CALJIC No. 16.000, subdivision XI (Presumption of Innocence and Burden of Proof); CALJIC No. 16.000, subdivision XIII (General Intent); CALJIC No. 16.830 (1973 Revision) (Misdemeanor Driving Under the Influence); CALJIC No. 16.831 (1979 Revision) (Liquor or Drug Influenced Driving—“Under the Influence” Defined); and CALJIC No. 16.832 (Liquor or Drug Influenced Driving—Under the Influence Relates to Condition of Driver)—adequately and properly covered the general principles of law applicable to the facts before the court and relevant to the issues raised by the evidence.

It is my view, however, that these various instructions given to the jury, considered singly or as a whole, failed to give any guidance to the jury on how the jury was to determine the existence of the basic fact of the alcoholic content, by chemical analysis, of defendant's blood of 0.10 percent or higher—the basic fact that was essential for the application of the drunk-driving presumption to defendant. I can find in the case at bench no substitute for defendant's right, under Evidence Code section 403, subdivision (c)(1), to have the jury instructed, as he requested, that the results of the breath test, administered to him, should be completely disregarded if the breath testing device used for the May 4, 1979 tests is found by the jury to be unreliable. I consider the use of the term “unreliable” as a fair equivalent of the term “not in proper working order.”

The majority seems to interpret defendant's requested instruction as one telling the jury to disregard the test results if Title 17 had not been complied with. I do not so interpret defendant's requested instruction. At best, it can only be interpreted as telling the jury that deviation from the requirements of the Title 17 regulations might be considered as some contribution to the determination to be made—whether the test machine or device was unreliable on the May 4, 1979 date when it was used to produce defendant's blood alcohol content by two separate percentage figures. This is a correct instruction. Furthermore, defendant's requested instruction sought to attack only one of the three preliminary facts necessary to relevancy and admissibility of the test results—the one preliminary fact being the question of the proper working order of the machine or device used on the date in question.

III

The Burden-of-Proof Standard for Proof of the Preliminary Facts to Admissibility of the Blood Alcohol Test Results—Proof Beyond a Reasonable Doubt

I cannot emphasize too strongly that there are three preliminary facts which must be proved by the prosecution in order to establish to the jury's satisfaction the relevancy and, hence, admissibility of evidence of blood-alcohol-content test results in a drunk-driving case: (1) the proper working order of the particular machine or device used on the date in question; (2) the proper administration of the test; and (3) a competent and qualified operator.

By what burden-of-proof standard must the existence of these preliminary facts to relevancy and admissibility of evidence of blood alcohol test results be established to the jury's satisfaction? It seems clear that the burden-of-proof standard involved is that of proof beyond a reasonable doubt as to the existence of each of the three preliminary facts. This standard applies because of Evidence Code section 607, which provides: “When a presumption affecting the burden of proof operates in a criminal action to establish presumptively any fact that is essential to the defendant's guilt, the presumption operates only if the facts that give rise to the presumption have been found or otherwise established beyond a reasonable doubt, and, in such case, the defendant need only raise a reasonable doubt as to the existence of the presumed fact.”

By introducing evidence of a defendant's blood alcohol test results showing a minimum of 0.10 percent of alcohol in the person's blood, the prosecution relies upon the presumption created by Vehicle Code section 23126, subdivision (a). The presumed fact flowing from the basic fact of 0.10 percent or higher of alcohol in defendant's blood, is that defendant was under the influence of intoxicating liquor. The presumed fact is one of the elements of the drunk-driving offense—that defendant was under the influence of intoxicating liquor. Under Vehicle Code section 23126, subdivision (a), the presumed fact follows only from the existence of the basic fact of a blood-alcohol-content figure that is produced by a chemical test. Thus, proof of the existence of the three preliminary facts (1) working machine, (2) proper administration of test and (3) competent operator, necessary to establish the basic fact of the presumption (blood alcohol content of 0.10 or more), is required by Evidence Code section 607 to be established by the beyond-a-reasonable-doubt standard. The instant case in which a presumption is used is not unlike the situation found in People v. Katz (1975) 47 Cal.App.3d 294, 120 Cal.Rptr. 603, and requires a similar result. In Katz, a secondhand dealer was charged with a violation of Penal Code section 496 by receiving stolen property. A presumed fact of knowledge of the stolen character of the property was relied upon by the prosecution. The court emphasized that the presumed fact could be found to exist only by proof by the prosecution, beyond a reasonable doubt, of the following basic facts of the presumption: (1) that the defendant was a secondhand dealer; (2) that he obtained property which had been stolen; (3) that he obtained such property under circumstances that should have caused him to make reasonable inquiry to ascertain the right of the person from whom he received the property to sell or deliver it to him; and (4) that he did not make reasonable inquiry.

It follows that, by reason of the provisions of Evidence Code sections 607 and 403, Vehicle Code section 23126 and the decisional law found in Kelly, Adams, Puccinelli, Rawlings and Katz, defendant was entitled to a specific instruction which required the prosecution to prove, beyond a reasonable doubt, the existence of the three preliminary facts to the admissibility of the evidence of defendant's blood-alcohol content test results (the basic fact of the drunk-driving presumption) in order for the presumptive fact of being under the influence of alcoholic liquor to apply. I consider that such an instruction is required, sua sponte, even though not requested.

In my view, the instructions given by the trial court in the instant case do not meet the legal requirements imposed by Evidence Code sections 607 and 403 and Vehicle Code section 23126 and the decisional law found in the Kelly, Adams, Puccinelli, Rawlings and Katz cases, as I have set forth above.

In addition, by reason of Evidence Code section 403, subdivision (c)(1), defendant was entitled to the specific instruction requested by him. In the absence of a request by a defendant, the language of Evidence Code section 403, subdivision (c)(1), gives the trial judge discretion to instruct the jury—or not to instruct the jury—with respect to the existence or nonexistence of preliminary facts.

Since I find the instructions given in the instant case to be legally inadequate, I suggest that the following constitutes an appropriate and legally sufficient instruction when an attack is made by a defendant upon the reliability or accuracy of chemical test results of such defendant's blood alcohol content:

“Evidence has been received of the results of breath (or urine or blood) tests administered to defendant seeking to establish his blood alcohol content at the time of the alleged offense. Before you may find that such test results are accurate, the evidence must convince you, beyond a reasonable doubt, that (1) the particular device, machine or instrument utilized in performing the test was in proper working order, (2) the test used was appropriately administered, and (3) the operator was competent and qualified.

In determining the existence or nonexistence of the three facts just stated, you may consider the failure, if any, of government employees, to follow the regulations adopted by the California State Department of Health for procedures to be used in administering tests to determine the concentration of ethyl alcohol in a person's blood.

If you are not convinced beyond a reasonable doubt from the evidence that the three facts just mentioned exist, you must disregard such breath (or urine or blood) test results in determining whether or not defendant was under the influence of intoxicating liquor at the time of the alleged offense.

However, if you are convinced beyond a reasonable doubt from the evidence of the existence of these three facts just mentioned, you are instructed that if the evidence establishes beyond a reasonable doubt that such test results show that the amount, by weight, of alcohol in the defendant's blood was one-tenth of one percent (0.10%) or more at the time of the test as shown by a chemical analysis of his blood, breath or urine, you should find that the defendant was under the influence of intoxicating liquor at the time of the alleged offense, unless from all the evidence you have a reasonable doubt that defendant was in fact under the influence of intoxicating liquor at the time of the alleged offense.”

The suggested instruction which I have set forth incorporates, as part of one instruction, (1) CALJIC No. 16.834 (1979 Revision)—the presumption-of-intoxication instruction; (2) the requirements of Evidence Code sections 607 and 403, subdivision (c)(1); and (3) the decisional-law principle, set forth in Adams, Rawlings and Puccinelli, that evidence that blood-alcohol-content test results were secured through noncompliance with Title 17 regulations may be used by the trier of fact to determine the existence or nonexistence of the three facts required for relevancy and admissibility of the test results. These three parts are all essential for the type of case presented in the case at bench—a case in which defendant requests an instruction mandated by Evidence Code section 403, subdivision (c)(1), when such a request is made.

I have proposed the above instruction to replace CALJIC No. 16.834 (1979 Revision) even though, as the majority points out, no such instruction was requested by defendant. But it is my view that a correct instruction on the law—necessary for the jury to render an appropriate decision—is mandated by People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913, in which the court observed: “‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.”’ (Emphases in original.)

IV

It Was Reversible Error for the Trial Court To Admit the Blood-Alcohol-Content Test Results and Refuse To Instruct the Jury Regarding the Preliminary Facts to Admissibility

In the case at bench, defendant argues that, as a matter of law, the three foundational facts to relevancy and admissibility of the blood-alcohol-content test results were not established and, hence, evidence of the test results should have been excluded. I agree with the majority's conclusion that there was no error on the part of the trial judge in admitting the evidence of defendant's breath tests administered on the Gas Chromatograph Intoximeter, Instrument No. 61, which yielded readings of 0.17 and 0.18 percent blood alcohol level on the date in question, May 4, 1979.

I recognize that evidence was received which tended to establish the nonexistence of one of the three preliminary facts to admissibility, namely, that Instrument No. 61 was not in proper working order on the date in question. But, as I have previously pointed out, the principle which the trial court must apply in determining whether preliminary facts exist to make proffered evidence relevant and admissible for the jury's consideration is simply to determine whether the evidence introduced to establish the existence of such preliminary fact is sufficient for a jury to reasonably find that such preliminary fact does exist. This is the meaning of the language found in Evidence Code section 403, subdivision (a), that “the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact.” (Emphasis added.)

The evidentiary principle is significant that the trial judge need not be persuaded of the existence of the preliminary fact by even a preponderance-of-the-evidence standard. It is clear that the trial judge must find that the preliminary fact exists and admit the proffered evidence even though he is not personally persuaded that the preliminary fact exists, as long as the evidence is such that a jury, as the trier of fact, reasonably could find that the preliminary fact exists. (See Jefferson, Cal. Evidence Benchbook (1972) Determination of Preliminary or Foundational Fact to Relevancy of Proffered Evidence, § 24.1, pp. 309-315.) In such a case, the final determination of the existence or nonexistence of the preliminary fact and the admissibility or inadmissibility of the proffered evidence is for the jury.

In the instant case, the expert witness—the criminalist—testified that it was his opinion that Instrument No. 61, the Gas Chromatograph Intoximeter, was in proper working condition on May 4, 1979, the date the tests were administered to the defendant. This testimony satisfied the requirement for the trial judge's finding of the existence of the preliminary fact—the proper working order of Instrument No. 61—to make admissible evidence of the blood-alcohol-content test results. It is of no moment for purposes of the trial judge's ruling on admissibility that the evidence introduced which tended to show that Instrument No. 61 was not in proper working order on that date appeared to be far more persuasive than the criminalist's opinion that Instrument No. 61 was in proper working condition.

But it is the manifest persuasiveness of the evidence pointing to the nonexistence of the preliminary fact of the good working order of Instrument No. 61 that, in my view, compels a conclusion that the refusal of the trial judge to give the mandatory instruction requested by defendant, namely, that the jury should disregard the test results if it finds the instrument to be unreliable, constituted, unequivocally, error of reversible magnitude. Thus, this evidence indicated rather conclusively that widely varying test results were obtained from Instrument No. 61 on the prior date of May 1, 1979, with a known sample; that there was low gas pressure in the cylinder on the prior date of May 1, 1979, and that there was an empty gas cylinder on this instrument on the subsequent date of May 17, 1979. These items of evidence lead strongly to an unmistakable inference that Instrument No. 61 was not in proper working order on May 4, 1979. Had the jury been properly instructed, it may well have so found and disregarded the test results which brought into being the application of the being-under-the-influence-of-intoxicating-liquor presumption.

I fully recognize that there was other evidence introduced by the prosecution such as defendant's erratic driving and his unsatisfactory performance of field sobriety tests. But defendant, his wife, a friend and another couple who had been with defendant for the seven hours preceding the arrest all testified to normal driving by defendant and that there was no evidence of defendant being under the influence of alcohol. With the other evidence being in sharp conflict, the scientific evidence—the blood-alcohol-content test results—may well have been the significant factor in securing defendant's conviction. After an examination of all the evidence, I conclude that it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the jury instruction error made by the trial court with its attendant consequences. (People v. Duran (1976) 16 Cal.3d 282, 296, 127 Cal.Rptr. 618, 545 P.2d 1322; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

I would thus reverse the judgment of conviction.

FOOTNOTES

1.  Rule 62(a) of the California Rules of Court provides:“A Court of Appeal may order a case transferred to it for hearing and decision where the superior court certifies or the Court of Appeal on its own motion determines from an opinion of the appellate department published or to be published in Advance California Appellate Reports that such transfer appears necessary to secure uniformity of decision or to settle important questions of law.”

2.  Vehicle Code section 23126, subdivision (a)(3), provides:“(a) Upon the trial of any criminal action or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the time of the test as shown by chemical analysis of his blood, breath, or urine shall give rise to the following presumptions affecting the burden of proof: [ [ [ [¶] … (3) If there was at that time 0.10 percent or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of intoxicating liquor at the time of the alleged offense.” An attack on the validity of the presumption created by Vehicle Code section 23126 based on claims that a defendant's right to due process and the right against self-incrimination were violated was rejected in People v. Schrieber (1975) 45 Cal.App.3d 917, 119 Cal.Rptr. 812.

3.  Section 436.52 of the Health and Safety Code provides:“The testing of breath samples by or for law enforcement agencies for purposes of determining the concentration of ethyl alcohol in the blood of persons involved in traffic accidents or in traffic violations shall be performed in accordance with regulations adopted by the State Department of Health Services.“The rules and regulations shall establish the procedures to be used by law enforcement agencies in administering breath tests for the purposes of determining the concentration of ethyl alcohol in a person's blood. Such rules and regulations shall be adopted and published in accordance with the provisions of Chapter 4.5 (commencing with Section 11371) of Part 1 of Division 3 of Title 2 of the Government Code.” (Italics added.) Pursuant to this directive, the Department of Health promulgated “Requirements for Breath Alcohol Analysis”. (Cal.Admin.Code, tit. 17, §§ 1221-1221.5.)

4.  The total text of defendant's “Proposed Instruction No. 1” is as follows:“You are instructed that non-compliance with applicable state laws and rules that pertain to the maintenance and calibration of breath testing devices is a factor that may be considered in determining what weight or value, if any, should be given to the results of the breath test herein.“You are further instructed that the result of the breath test may be completely disregarded if the breath testing device is found to be unreliable.”

5.  Vehicle Code section 23126, in pertinent part, reads as follows:“(a) Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the time of the test as shown by chemical analysis of his blood, breath, or urine shall give rise to the following presumptions affecting the burden of proof:“…“(3) If there was at that time 0.10 percent or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of intoxicating liquor at the time of the alleged offense.”

6.  Evidence Code section 607 reads as follows:“When a presumption affecting the burden of proof operates in a criminal action to establish presumptively any fact that is essential to the defendant's guilt, the presumption operates only if the facts that give rise to the presumption have been found or otherwise established beyond a reasonable doubt and, in such case, the defendant need only raise a reasonable doubt as to the existence of the presumed fact.”

7.  The “use note” following CALJIC No. 16.834 states:“The bracketed paragraph may be used if it is contended that the procedures provided for in Calif.Admin.Code, Title 17, § 1221.4 were not followed by the law enforcement agency.”

8.  CALJIC No. 16.000/X given as modified provides:“[In determining the weight to be given to the opinion of any expert who has testified in this case, you should consider the qualifications and credibility of such expert and the reasons given for his opinion.“You are not bound to accept an expert opinion as conclusive, but should give to it the weight, if any, to which you find it to be entitled.]”

9.  CALJIC No. 16.000/XI states:“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”

10.  CALJIC No. 16.000/XII states:“[In the offense with which the defendant is charged there must be a joint operation of act or conduct and criminal intent.“When a person intentionally does that which the law declares to be an offense, he is acting with criminal intent, even though he may not know that his conduct is unlawful, or even though he may not intend to violate the law.]”

11.  CALJIC No. 16.830 provides:“Any person who, while [under the influence of intoxicating liquor,] [or] [ [ [ [under the combined influence of intoxicating liquor and any drug,] drives a vehicle, is guilty of a misdemeanor.“[The term ‘drug’, as used in this instruction, means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.]”

12.  CALJIC No. 16.831 as modified provides:“A person is [under the influence of intoxicating liquor] or [under the combined influence of intoxicating liquor and a drug] when as a result of drinking such liquor [and using a drug] his physical or mental abilities are impaired to such a degree that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence, under the same or similar circumstances.”

13.  CALJIC No. 16.832 provides:“The manner in which a vehicle is being operated does not itself establish that the driver of the vehicle either is or is not [under the influence of intoxicating liquor] or [under the combined influence of intoxicating liquor and a drug.]“However, the manner in which the vehicle is being operated is a factor to be considered in light of all the proved surrounding circumstances in deciding whether the person operating the vehicle was or was not [under the influence of intoxicating liquor] or [under the combined influence of intoxicating liquor and a drug].”

1.  I shall consider subsequently the issue regarding whether correct scientific procedures were used in the particular case at hand.

2.  I will deal at a later point in this opinion with the validity of defendant's argument that, in the case at bench, the foundational requirements for relevancy and, hence, admissibility, of the evidence of the test results with respect to defendant were not satisfied and that such evidence should have been excluded as irrelevant evidence.

3.  See People v. James (1977) 19 Cal.3d 99, 137 Cal.Rptr. 447, 561 P.2d 1135; People v. Blair (1975) 51 Cal.App.3d 480, 124 Cal.Rptr. 123. These two cases are based upon Evidence Code section 402, subdivision (c), which provides that “[a] ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.”

4.  Other examples of preliminary facts determined under Evidence Code section 403 include (1) the preliminary fact of the personal knowledge of a witness concerning the subject matter of his testimony; (2) the preliminary fact of the authenticity of a writing; and (3) the proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself. (Evid.Code, § 403, subd. (a).)

L. THAXTON HANSON, Associate Justice.

LILLIE, Acting P. J., concurs. BERNARD JEFFERSON, Associate Justice.*Hearing denied; BIRD, C.J., dissenting.