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People v. O'Neill12/5/2001
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant John H. O'Neill appeals from his misdemeanor conviction for driving with a blood alcohol level of 0.08 percent or more in violation of Vehicle Code section 23152, subdivision (b), contending that the trial court improperly admitted the test results from a preliminary alcohol screening (PAS) device to prove his blood alcohol level at the time of the alleged offense. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
O'Neill was charged in a three-count information with feloniously evading a pursing police officer in his vehicle (§ 2800.2, subd. (a)), misdemeanor driving under the influence of alcohol (§ 23152, subd. (a)) and misdemeanor driving with a blood alcohol level of 0.08 percent or more (§ 23152, subd. (b)).
According to the evidence presented at trial, while being pursued by a California Highway Patrol (CHP) officer in a marked patrol car with its lights and siren activated, O'Neill drove at an excessive and unsafe speed, failed to stop at posted stop signs and red signal lights and came close to hitting several pedestrians. When he was finally stopped and ordered out of his car, O'Neill exhibited objective symptoms of intoxication: He emitted an odor of alcohol; his eyes were glassy and bloodshot; his speech was slow and deliberate. The CHP officer administered field sobriety tests including a PAS test, which indicated with respect to each of the two required samples that O'Neill's blood alcohol level was 0.09 percent. O'Neill insisted he had consumed only one glass of wine.
Based on O'Neill's driving behavior, the objective symptoms of intoxication and the results of the PAS test, O'Neill was arrested for driving under the influence of alcohol. After being transported to jail, O'Neill was given a further breath test. The machine at the jail facility, the Intoximeter IR-3000, measured O'Neill's blood alcohol level at the time the two samples were submitted as 0.09 percent and 0.08 percent.
On the People's motion the trial court held an evidentiary hearing pursuant to Evidence Code section 402 to determine the admissibility of the numerical results of the PAS test. The court found that the test had been conducted in substantial compliance with the requirements of California Code of Regulations, title 17, governing administration of blood alcohol tests, and that controlling case law authorized admission of the PAS test results.
At the conclusion of the jury trial, O'Neill was convicted of the misdemeanor offense of evading a police officer (§ 2800.1, subd. (a)), a lesser included offense of the felony charged in count 1, and of driving with a blood alcohol level of 0.08 percent or more, as charged in count 3. The jury found him not guilty of driving under the influence of alcohol, charged in count 2.
At the sentencing hearing, imposition of sentence was suspended. O'Neill was placed on formal probation for three years with a condition that he serve 90 days in jail. He was also ordered to pay a fine and penalty assessments, as well as the costs of his defense.
O'Neill filed a timely notice of appeal. In this appeal O'Neill challenges only his conviction for driving with a blood alcohol level of 0.08 percent or more. (§ 23152, subd. (b).) He does not assert any error in the conviction for misdemeanor evading a police officer. (§ 2800.1, s
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