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People v. Hennessey9/30/2002
ged in misconduct during closing argument. Addressing factors to consider in determining whether defendant drove under the influence, the prosecutor argued, "In addition . . . there is an instruction on refusal to take a sobriety test. I am not going to read this whole thing. Generally what it says is if somebody refuses to take a test of their blood or breath when asked by a police officer to determine the alcohol content, that can be considered to show consciousness of guilt. [ ] If they had nothing to hide, why not give them a test? That's the general rule. Okay? [ ] The weight to which this is entitled, whether or not that conduct shows a consciousness of guilt are matters for your determination. You can say anybody in that situation would not give a blood test. If that's what you decide, that's what you decide. [ ] I will submit to you, if you are not guilty of something, there is a way to prove that. You will do it. And by refusing to take that blood or breath test, [defendant] is telling you, I am quoting, `so you can incriminate me.'" Hennessey had made the "so you can incriminate me" statement at the time she refused the blood test.
Defendant complains the italicized portion of the prosecutor's argument unconstitutionally shifted the burden of proof: " he prosecutor improperly argued to the jury that if appellant was not guilty of driving under the influence , she could have proven it by submitting to a chemical test." But there was no objection to this remark. A timely objection and admonition would have cured any harm, so the alleged error or misconduct was waived. (People v. Riel (2000) 22 Cal.4th 1153, 1212.) Considering the complaint on the merits, we note the prosecutor did not argue defendant bore the burden at trial to prove her innocence. In context, the prosecutor's comment referred to defendant's refusal to submit to a chemical test because she believed she was under the influence. There was nothing improper in that. And the jury was properly instructed on the presumption of innocence and burden of proof. There was no misconduct.
IX.
Finally, defendant claims there is insufficient evidence she drove under the influence because "the prosecution failed to call a toxicologist or other qualified expert to testify whether [defendant's] physical condition and performance on the FST's was consistent with a person under the influence of alcohol." Not so. Garrity was amply qualified to opine she was too impaired to drive (see People v. Smith (1967) 253 Cal.App.2d 711) and a jury could decide the issue without an expert detailing a link between performance on field sobriety tests and driving. Because there were no chemical tests to interpret, a toxicologist could have added little to the mixture. Defendant drove without headlights, appeared intoxicated (slurred speech, bloodshot and watery eyes, smelled of alcohol, fumbled for her driver's license, hung on to the door for balance as she got out), admitted she drank alcohol, failed most of the field sobriety tests, refused to take a chemical test, and offered a bribe to avoid arrest. The jury saw the videotape of the field tests. This was more than ample evidence to sustain the conviction.
Judgment affirmed.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O'LEARY, J.
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