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People v. Perkins10/19/1981
California Appellate Department, Superior Court
Crim. A. No. 17922.
179 Cal.Rptr. 431, 1981.CA.40238
October 19, 1981
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DOUGLAS PERKINS, DEFENDANT AND APPELLANT.
Municipal Court for the Los Angeles Judicial District of Los Angeles County, No. 621762, Ronald Schoenberg, Judge.
Larry H. Layton for Defendant and Appellant.
Ira Reiner, City Attorney, Jack L. Brown and John D. O'Loughlin, Deputy City Attorneys, for Plaintiff and Respondent.
Fainer
FAINER, P. J.--Defendant appeals from his judgment of conviction of having violated Vehicle Code section 23102, subdivision (a) (driving under the influence of alcohol). He raises many arguments on appeal, several of which require extended discussion, especially those pertaining to the jury instructions relating to the admissibility of the results of defendant's blood alcohol tests administered just after the offense.
The claim that defendant was improperly detained is wholly without merit. He was observed driving 20 miles per hour in a 40-mile- per-hour zone, weaving abruptly from one side of his lane to the other. This is certainly sufficient justification for an officer to stop a driver and make further inquiry into his sobriety. (In re Tony C. (1978) 21 Cal. 3d 888, 893 [148 Cal. Rptr. 366, 582 P.2d 957]; Cornforth v. Department of Motor Vehicles (1970) 3 Cal. App. 3d 550, 552 [83 Cal. Rptr. 762].)
After defendant was unable to adequately perform his field sobriety tests and displayed the objective "drunk driving" symptoms of slurred speech, bloodshot eyes and a strong odor of alcohol on his breath, he was taken to a hospital for a blood test to determine the level of alcohol in his blood. Prior to trial, the People were ordered to provide him with a portion of the blood sample taken so that he could make his own independent analysis. The record on appeal indicates full compliance with this order and defendant does not contend otherwise. Neither is there any showing that the test results were in any way inaccurate. Nonetheless, defendant argues that the complaint should have been dismissed and the test results suppressed because the People destroyed records pertaining to the repair or maintenance of the testing machine. Failing that, he claims that the jury should have been instructed to disregard the results if they found that the People had destroyed quality control records.
The first focus of this argument is People v. Hitch (1974) 12 Cal. 3d 641 [117 Cal. Rptr. 9, 527 P.2d 361], which holds that a defendant is entitled to access to prosecution evidence (in that case, a breathalyzer test ampoule to determine blood-alcohol level) once it has been demonstrated that there exists a reasonable possibility that the evidence might be favorably considered on the issue of guilt or innocence (12 Cal. 3d, at p. 649). In the present case, defendant was given access to his blood sample and he did not ask for the reference sample. He seeks to extend the holding in People v. Hitch to require the dismissal of the complaint or the suppression of the test results because printouts from quality control samples are not retained by the Los Angeles Police Department and are thus unavaila
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