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People v. Irvin4/18/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Ronald Cary Irvin appeals his conviction of driving under the influence and causing bodily injury. (Veh. Code, § 23153, subd. (a).) He contends evidence of a blood alcohol test should not have been admitted because the drawing and testing of his blood was not performed in conformance with the California State Department of Health Services' (DHS) regulations (see Cal. Code of Regs., tit. 17, § 1215 et seq.) and the chain of custody of his blood sample was not adequately established.
Irvin also contends the court erred in instructing the jury pursuant to CALJIC No. 12.61 (allowing the jury to infer a person was under the influence if his blood alcohol was .08 percent or greater); erred in omitting a paragraph from CALJIC No. 12.61 (telling the jury they could consider a failure to follow the DHS procedures in determining whether the blood alcohol test result was accurate); and in giving CALJIC No. 17.41.1 (providing guidelines to a jury if a juror refuses to deliberate, indicates he or she will disregard the law, or that he or she will decide the case on an improper basis). We affirm the judgment.
FACTS
On October 20, 2000, about 10:00 p.m., Irvin was driving erratically and faster than the traffic flow as he drove eastbound on Mission Gorge Road. Irvin came within inches of hitting one car as he crossed the three lanes of eastbound traffic from the right hand to the left hand lane; the collision was avoided by the other driver who braked and turned slightly to the left. Irvin almost ran another car off the road. At the intersection of Mission Gorge Road and State Route 125, Irvin stopped for the red light, but at the next intersection with Fanita Road, Irvin ran the red light and hit a truck that was making a left turn with a green light from westbound Mission Gorge Road to Fanita Road. The driver of the truck suffered a broken left leg, a laceration on her leg requiring 12 stitches or staples, a liver laceration, bruised kidneys, bruised hips, and a bruise on her shoulder from the seatbelt.
A deputy sheriff contacted Irvin when Irvin was inside an ambulance. From a distance of three to four feet, the deputy sheriff noticed an odor of alcohol emanating from Irvin and that Irvin was alternating between being boisterous and very quiet, conduct consistent with being under the influence of alcohol. The deputy sheriff believed Irvin was under the influence and requested that a phlebotomist meet him at the hospital to draw blood. At the hospital, Irvin resisted having his blood drawn. When Irvin's breath became labored as he struggled to avoid the blood draw, the attempt to take Irvin's blood was stopped; the deputy sheriff feared Irvin might have suffered chest injuries in the accident.
The trauma surgeon who treated Irvin believed that Irvin was intoxicated because Irvin smelled of alcohol, his speech was slurred, and a brain scan showed Irvin did not have a head injury. Additionally, Irvin had told the surgeon that he had used alcohol that night.
A blood test, drawn at the hospital as standard care for a trauma patient, showed Irvin's blood alcohol level was .25 percent.
DISCUSSION
I. Admission of Blood Alcohol Test Results
Irvin contends that, as a matter of law, the blood alcohol test was inadmissible because the blood sample was not taken in
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