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People v. Dobbs5/12/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
As two highway patrol officers went down the freeway in their cruiser, they watched defendant enter the freeway from the right, quickly cut all the way over to the fast lane without signaling, accelerate to 80 miles per hour, weave within the lane, then move into the adjacent right lane. The officers turned on their patrol lights. Defendant moved over to the right, nearly hitting a car, and exited the freeway as directed. After defendant became belligerent and failed field sobriety tests, the officers arrested him.
Defendant pled no contest to driving without a license. A jury convicted him of driving under the influence , which is a felony because of defendant's prior convictions. The jury found that defendant had willfully refused a blood test. With a doubled second strike sentence and enhancements, defendant received a 9-year prison sentence.
Defendant claims the results of a breath test should not have been admitted. He claims Wheeler error, ineffective assistance of counsel, and error in giving the "anti-nullification" instruction. We reject his claims and affirm the judgment.
DISCUSSION
I.
Title 17 of the California Code of Regulations sets forth standards for breath tests and provides that there should be two separate breath samples. Claiming that he had once been shot in the stomach and had difficulty blowing, defendant provided only a single sample. The device read the level as .10. The trial court allowed the result into evidence.
In People v. Williams (2002) 28 Cal.4th 408, the Supreme Court held that, notwithstanding failure to comply with title 17, a trial court had discretion to admit the evidence. It can do so "after a showing of (1) the reliability of the instrument, (2) the proper administration of the test, and (3) the competence of the operator. [Citation.] To meet these requirements, the evidence would be admitted upon either a showing of compliance with the title 17 regulations or independent proof of the three elements. [Citation.]" (Id. at p. 414, fn. omitted.)
The trial court conducted a hearing and ruled that the Williams "three elements" had been met. The question becomes whether the evidence produced at the hearing justified the ruling. An expert examined the maintenance log for the device and testified that the machine operated properly. The officer who administered the test testified that he had received training at the highway patrol academy and had administered the test 100 to 150 times. In giving defendant the test, he had complied fully with an approved checklist.
This testimony, which the trial court accepted, establishes that the machine was working, the operator was qualified, and the test was properly administered. Accordingly, the evidence supports the trial court's conclusion that the Williams "three elements" were satisfied.
There seemed to be some question of whether the operator had been certified to operate the device. As did the trial court, we find this does not matter. Lack of a certificate does not automatically render one incompetent. The trial court listened to the operator's bona fides and justifiably determined he was competent.
Defendant argues that the prosecution's own expert opined the test might be unreliable because of the single specimen and the possibility of "mou
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