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People v. Odom6/6/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Michael F. Odom appeals a judgment sentencing him to probation for a period of five years, with a condition of one year in county jail, following convictions for driving under the influence of alcohol. We affirm.
PROCEDURAL BACKGROUND
An information filed on June 28, 2000, in Napa County charged appellant with two counts of driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a) and subdivision (b). It alleged that the offenses were punishable as a felony by reason of a prior conviction described in Vehicle Code section 23550.5. Appellant pled not guilty.
Prior to trial, appellant filed a motion in limine to exclude evidence of a preliminary alcohol-screening (PAS) test and requested a hearing under Evidence Code section 402, subdivision (b). The trial court denied the motion to exclude the evidence after conducting the requested hearing on the first day of trial.
Following two days of testimony, the jury found appellant guilty as charged. In a separate bifurcated proceeding, the trial court found the allegation pursuant to Vehicle Code section 23550.5 to be true. On March 22, 2002, the trial court suspended imposition of sentence and granted probation for a period of five years on the condition, among others, that appellant spend one year in county jail.
FACTUAL BACKGROUND
A California Highway Patrol officer, Brian Compton, testified that at 5:35 p.m. on April 11, 2000, he was driving south on a two-lane road in Napa County and saw a red Jeep traveling at an excessive rate of speed in the opposite direction. When he obtained a radar reading showing that the vehicle was traveling 78 miles per hour in a 55-miles- per-hour zone, he made a U-turn and activated his overhead lights. The vehicle stopped by turning into a driveway. Officer Compton identified appellant as the driver of the vehicle.
As he approached the window of the driver's sear, officer Compton smelled the odor of alcohol and saw an open 24-ounce bottle of beer on the floor. He asked appellant if he had anything alcoholic to drink. Appellant replied that he drank a 24-ounce can of beer approximately an hour earlier at 4:30 p.m. Officer Compton observed that appellant's speech was low and slurred and his eyes red and watery and that he was unsteady on his feet as he left the vehicle. He asked appellant a standard series of questions to assess his physical condition and then administered five field sobriety tests intended to measure motor control and mental concentration. Appellant did poorly on all the tests.
Following the field sobriety tests, officer Compton asked appellant to perform two preliminary alcohol screening device tests. The first test, performed at 5:47 p.m. indicated a blood-alcohol content of 0.101; the second test performed at 5:49 indicated a blood-alcohol content of 0.102. Officer Compton then arrested appellant and took him to the Napa County Detention Center. Upon being told he was required to take a blood-alcohol test, appellant chose to take a breath test using an Intoxilyzer 5000. Before administering the test, officer Compton observed appellant for 15 minutes. Appellant provided his first breath sample at 6:33, which showed a blood-alcohol content of 0.09. A second breath sample registered as invalid on the machine. A third brea
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