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Barragan v. Gutierrez6/17/2004
After his girlfriend called the police to report that he hit her, Daniel Barragan was stopped by police while he was driving his white van. The officer concluded that he had too much to drink and arrested him in the wee hours of the morning (12:30 a.m. to be specific) of March 10, 2002. Barragan subsequently flunked a breath test performed by the BAC Datamaster, which showed blood alcohol readings of .11 percent and .10 percent.
A regulation promulgated by the state Department of Health Services requires alcohol breath test machines to be checked for accuracy at least every ten days by a qualified and identified analyst. [FN1] The particular BAC Datamaster in question had been checked for accuracy within the previous ten days (on February 28, 2002) by a qualified and identified analyst, but would not be so checked again for at least another month. In fact the total period between checks for accuracy by qualified and identified analysts was, according to this record, no less than 56 days--from February 28, 2002 to April 8, 2002.
FN1. Section 1221.4 of Title 17 of the California Code of Regulations provides in pertinent part:
"(2) The accuracy of instruments shall be determined.
(A) Such determination of accuracy shall consist, at a minimum, of periodic analysis ...
[ ] (1) ... performed by an operator as defined in Section 1221.4(a)(5)....
(B) For purposes of such determinations of accuracy, 'periodic' means either a period of time not exceeding 10 days or following the testing of every 150 subjects, whichever comes sooner.
[ ... ]
"(5) An operator shall be a forensic alcohol supervisor, forensic alcohol analyst, etc.
"(6) Records shall be kept for each instrument to show the frequency of determination of accuracy and the identity of the person performing the determination of accuracy." (Emphasis added .)
That particular fact led the trial court to grant Barragan's request for a writ petition setting aside a one-month (at that point stayed) suspension of Barragan's driver's license. (Barragan is a sales rep, so the loss of his ability to drive is going to exact a considerable hardship.) Specifically, the trial court reasoned that the failure to have a qualified and identified operator check for accuracy rebutted the presumed reliability of the breath test, and the DMV had failed to meet its burden of proving the test was accurate.
We now reverse. People v. Williams (2002) 28 Cal.4th 408 and a number of other cases (e.g., Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 140-143; Coombs v. Pierce (1991) 1 Cal.App.4th 568, 580; People v. Adams (1976) 59 Cal.App .3d 559, 561) are clear that the DMV may show the reliability of a breath either by showing compliance with the regulations promulgated by the California Department of Health set forth in Title 17 of the California Code of Regulations or by showing an adequate evidentiary foundation for the accuracy of the test.
For purposes of this opinion we shall assume that the "bookending" of accuracy checks is a violation of the regulation promulgated by the Department of Health Services, shifting the burden to the DMV to show an adequate evidentiary foundation for the accuracy of the test. However, we must note that not only is this an assumption favorable to Barragan, but it is counter to the majority of out-of-state cases which have considered bookending of accuracy checks of breath machines (no California case has yet considered and we are passing up the opportunity to do so now).
Most of the those cases, however, are not particularly helpful for our purpose here, because they do not shed light on what our own relevant regulatory language requires. Triplett v. Schwendiman (Utah App.1988) 754 P.2d 87 merely en
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