prohibits driving a motor vehicle with a blood-alcohol level of 0.08
percent or greater. In this case, a standard breath test administered
to the defendant shortly after an accident showed a blood-alcohol
level of 0.07 percent. The People offered to introduce expert
testimony to show that defendant's blood-alcohol level was at least
0.08 percent at the time he drove his car. The proposed expert
testimony was based on a methodology known as "retrograde
extrapolation." It considered the breath test results, the defendant's
statements regarding when he last consumed alcohol, and studies
regarding the normal "elimination rate" for alcohol in the blood in
reaching a conclusion regarding the defendant's blood-alcohol content
at the time of driving. {Slip Opn. Page 2}
At defendant's request, the trial court excluded the proposed expert
testimony. Relying primarily on Baker v. Gourley (2002) 98 Cal.App.4th
1263 , the court inferred a legislative intent that a violation of
section 23152(b) cannot be proven without a valid chemical test
showing a blood-alcohol content of 0.08 percent or greater. With the
People's expert testimony excluded, the court granted the defendant's
motion to dismiss the charge pursuant to Penal Code section 1118.1.
We conclude that Baker v. Gourley, supra, 98 Cal.App.4th 1263 , does
not stand for nearly so sweeping a proposition. Nor do we find
anything in the language of section 23152(b) suggesting an inflexible
limitation on the manner in which the People can prove their case. The
fact that the Legislature provided a presumption that favors the
People if they can show a blood-alcohol chemical test result of 0.08
percent or greater within three hours after driving does not mean they
cannot attempt to prove their case without the benefit of the
statutory presumption. Here, because the People were prevented from
trying to make their case, we reverse and remand with directions to
reinstate the section 23152(b) charge and deny defendant's request to
exclude the proposed retrograde extrapolation testimony.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of May 27, 2006, California Highway Patrol
Officer Chris Jensen was dispatched to investigate a collision
involving a vehicle driven by defendant Benjamin F. Warlick. At the
scene of the collision, Warlick admitted to drinking alcohol earlier
in the evening. A preliminary alcohol screening (PAS) test
administered by Jensen showed that Warlick had a blood-alcohol level
of 0.07 percent at approximately 12:17 a.m. Charged with violating
section 23152(b), Warlick made a motion in limine to exclude any
expert testimony based on retrograde extrapolation analysis. The trial
court conducted a hearing pursuant to Evidence Code section 402 at
which the prosecution offered the testimony of Marisa Ochoa, a
criminalist from the San Diego Sheriff's Department. Based on the PAS
test result, Warlick's statements about his consumption of alcohol,
and studies regarding normal alcohol elimination rates, Ochoa
indicated she would opine that Warlick had a blood-alcohol level of at
least 0.08 percent at the time of driving. The trial court ruled
Ochoa's proposed testimony inadmissible. It read Baker v. Gourley,
supra, 98 Cal.App.4th 1263 , as holding that a violation of section
23152(b) cannot be proved without a chemical test showing a
blood-alcohol level of 0.08 percent or greater. {Slip Opn. Page 3} Any
other result, the court reasoned, would permit proof of a violation by
means of circumstantial evidence, an outcome it believed was
specifically precluded by Baker . ( See Baker, supra, 98 Cal.App.4th
at p. 1273.)
Because the prosecutor conceded he could not establish a violation of
section 23152(b) without retrograde extrapolation evidence, the court
dismissed the charge. The People then filed this appeal. (See Pen.
Code, § 1466, subd. (b).)
DISCUSSION
Section 23152(b) makes it "unlawful for any person who has 0.08
percent or more, by weight, of alcohol in his or her blood to drive a
vehicle." The statute also creates "a rebuttable presumption that the
person had 0.08 percent or more, by weight, of alcohol in his or her
blood at the time of driving the vehicle if the person had 0.08
percent or more, by weight, of alcohol in his or her blood at the time
of the performance of a chemical test within three hours after the
driving." (Ibid. )
In Baker v. Gourley, supra, 98 Cal.App.4th 1263 , the Court of Appeal
reviewed a pretrial administrative license suspension by the
Department of Motor Vehicles (DMV) under section 13353.2 after a
driver was arrested for driving with a blood-alcohol level of 0.08
percent or greater. Because the DMV failed to meet its burden of
showing that a chemical test that was not conducted in accordance with
applicable regulations was nevertheless reliable, the test results
were deemed inadmissible. ( Baker, supra, at p. 1265.) Faced with no
admissible chemical test, the DMV attempted to justify its suspension
of the defendant's license with evidence of symptoms typically
associated with intoxication, such as slurred speech and bloodshot
eyes. ( Ibid .)
The Baker court framed the question before it as follows: "Can a given
amount of blood-alcohol level be established without a valid chemical
test by evidence of behavior or indicia typically associated with
intoxication, such as, like here, slurred speech, bloodshot eyes, or
an unsteady gait?" ( Baker v. Gourley, supra, 98 Cal.App.4th at pp.
1265-1266.) Noting that these factors may be present in a person with
a blood-alcohol level of less than 0.08 percent, the Court of Appeal
found this evidence inadequate to support the summary suspension of
the defendant's driver's license. It was in this context that the
Baker court noted that "circumstantial evidence without a valid
chemical test is insufficient to suspend a license." ( Id. at p.
1273.) {Slip Opn. Page 4}
The Baker decision is limited by its terms to the "so-called'Admin Per
Se' laws where the . . . DMV suspends a driver's license when a
motorist has been arrested for drunk driving before the motorist has
had the benefit of a trial in a court of law." ( Baker v. Gourley,
supra, 98 Cal.App.4th at p. 1264.) The court was careful to emphasize
that the case did " not involve a criminal prosecution for drunk
driving." ( Ibid. ) These limitations alone advise caution in
extending the Baker holding to a criminal action for violation of
section 23152(b).
But even assuming that the per se nature of section 23152(b) would
make Baker 's analysis of section 13353.2 similarly applicable, the
factual context of that case is of crucial importance in understanding
the scope of the holding. Baker 's statement precluding reliance on
circumstantial evidence was based expressly on the lack of a " valid
chemical test." ( Baker v. Gourley, supra , 98 Cal.App. 4th at p.
1273, italics added.) Here in contrast, there was a perfectly valid
chemical test -- that happens to show a blood-alcohol level of only
0.07 percent. By its express terms, then, the statement relied on by
the trial court here simply does not apply.
Moreover, the circumstantial evidence considered in Baker is of an
entirely different nature than that offered here, and the Baker
court's comment must be understood in its factual context. " 'It is
the general rule that the language of an opinion must be construed
with reference to the facts presented by the case, and the positive
authority of a decision is coextensive only with such facts.' " (
Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 , 734-735,
quoting River Farms Co. v. Superior Court (1933) 131 Cal.App. 365,
369.) The circumstantial evidence in Baker was insufficient precisely
because "the usual symptoms of substantive intoxication -- slurred
speech, bloodshot eyes, etcetera -- can manifest themselves at a
blood-alcohol level below .08." ( Baker v. Gourley, supra, 98
Cal.App.4th at p. 1273.) In other words, even a driver who manifests
the "usual symptoms" may not have had a blood-alcohol level of at
least 0.08 percent. Here, the whole point of the proffered retrograde
extrapolation analysis will be to show that if Warlick had a
blood-alcohol level of 0.07 percent at 12:17 a.m., he must have had a
level of at least 0.08 percent when he was driving.
This less expansive reading of Baker has the added advantage of making
it consistent with Supreme Court decisions recognizing the validity of
retrograde extrapolation evidence, albeit in contexts different than
the facts of this case. (See People v. Clark (1993) 5 Cal.4th 950 ,
993.) The fact that such {Slip Opn. Page 5} extrapolations " ' "can be
speculative" ' (goes to the weight rather than the admissibility of
such testimony. ( People v. Thompson (2006) 38 Cal.4th 811 , 834 (dis.
opn. of Werdegar, J.).)
In addition to relying on Baker , the trial court here seemed to
interpret section 23152(b) itself as precluding conviction in the
absence of a chemical test showing a blood-alcohol level of 0.08
percent or higher. According to the court, the California statute
differs from statutes in other states in that section 23152(b)
eliminates the need for the prosecution to circumstantially prove the
actual blood-alcohol level at the time of driving. It construed the
statute as having been written to "obviate" the need for all
circumstantial evidence, including retrograde extrapolation evidence.
To the contrary, however, nearly 25 years ago in Burg v. Municipal
Court (1983) 35 Cal.3d 257 , the Supreme Court made clear that proving
a violation of section 23152(b) nearly always requires circumstantial
evidence. As the court noted, the statute "prohibits driving a vehicle
with a blood-alcohol level" above the legal limit; "it does not
prohibit driving a vehicle when a subsequent test shows a level" above
the legal limit. (35 Cal.3d at p. 266, fn. 10.) The crucial issue,
then, is whether the defendant drove a vehicle at a time when his or
her blood-alcohol level was 0.08 percent or higher. Since rarely, if
ever, would a blood-alcohol test be performed while the defendant was
driving, "[c]ircumstantial evidence will generally be necessary to
establish the requisite blood-alcohol level called for by the
statute." ( Ibid .) And a chemical test "will, obviously, be the usual
type of circumstantial evidence ...." ( Ibid. ) Here, the prosecution
proposes to do nothing more than use chemical test results in
conjunction with other evidence to circumstantially prove that Warlick
drove a vehicle with a blood-alcohol level above the legal limit. fn.
2
The trial court's comments also suggest a belief that the rebuttable
presumption created by the last sentence of section 23152(b) somehow
demonstrates a legislative intent to preclude prosecutions without a
chemical test showing a blood-alcohol level of 0.08 percent or
greater. But this presumption or inference (see generally People v.
Beltran, supra, 157 Cal. App. 4th at pp. 241-244) does not define
{Slip Opn. Page 6} the crime or create a rule of substantive law. (See
2 Jefferson, California Evidence Benchbook (3d rev. ed. 2003) § 46.11,
p. 1056.) Rather, it focuses on the prosecution's ability to prove one
fact by reference to another. Where the People introduce evidence of a
valid chemical test administered within three hours of the defendant's
driving showing a blood-alcohol level of at least 0.08 percent, in the
absence of other evidence the trier of fact may infer that the
defendant's blood-alcohol level at the time of driving was in excess
of the legal limit. The statute simply does not address what can be
inferred from a different set of circumstantial evidence, including a
0.07 percent bloold-alcohol chemical test result in combination with
other facts, which together suggest the defendant's blood-alcohol
level was higher at the time of driving.
CONCLUSION
Nothing in either the language of section 23152(b) or the construction
of the statute by California appellate courts prevents the prosecution
from trying to prove a statutory violation using expert testimony that
relies on retrograde extrapolation evidence. Because the People in
this case were precluded from even making the attempt, we reverse the
order of dismissal and remand for further proceedings.
Hernandez, J., and Dato, J., concurred.
FN 1. All statutory references are to the Vehicle Code unless
otherwise indicated.
FN 2. Indeed, "retrograde extrapolation" is nothing more than the
prosecutorial version of the " 'rising blood-alcohol' defense." (
People v. Beltran (2007) 157 Cal. App. 4th 235, 246.) Each starts with
the defendant's blood-alcohol level at the time of chemical test and
relies on circumstantial evidence regarding the direction of change to
convince the trier of fact that the level was different -
significantly higher or lower - at the time of driving.
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