People v. Turntine (Cal. App. Dep’t Super. Ct., June 24, 2024, No. CA296018) 2024 WL 4143869
Summary: The trial court did not abuse its discretion in declining to exclude expert testimony of toxicologist who testified that all individuals were impaired for purposes of driving at .05% BAC;
Statement of the Case
On October 28, 2022, Turntine was arraigned and pled not guilty to a complaint charging him with a violation of section 23152, subdivision (a), Driving Under the Influence of Alcohol, and a violation of section 23152, subdivision (b), Driving While Having a Measurable Blood Alcohol of .08% or greater.
Trial began on December 13, 2022 and Turntine moved to exclude expert testimony that the expert believes “impairment for driving purposes is present in individuals with a 0.05% BAC.” The motion was denied.
On December 16, 2022, a jury found Turntine guilty of Count One and not guilty of Count Two. Turntine filed his notice of appeal on January 12, 2023 and the Court requested supplemental briefing on the issue :
1. Whether the prosecution expert’s testimony regarding a person being “impaired for purposes of driving” and “under the influence for purposes of driving” at a .05% BAC improperly invited the jury to nullify the legislative determination regarding the per se offense level being .08%. And if it did, whether such an invitation to nullify the legislative determination is prohibited under the reasoning of People v. Vangelder (2013) 58 Cal.4th 1, 164 Cal.Rptr.3d 522, 312 P.3d 1045.
Toxicology Expert Testimony
At trial, toxicology expert Jasmine Diaz explained the two kinds of impairment, mental and physical, that occur when someone drinks alcohol. She described the symptoms of each impairment and how it affects a person’s ability to drive safely. Ms. Diaz opined that red, watery eyes, the odor of alcohol, some slurred speech, lack of smooth pursuit, swaying and loss of balance in the stand test, eye lid tremors, and estimating 26 seconds as 30 seconds, would indicate someone is under the influence. She also opined that a person is impaired, or, under the influence for purposes of driving, at a BAC of 0.05% or higher.
Allowing the expert testimony was not an abuse of discretion under Evidence Code sections 352 or 801.
The trial court ruled the expert’s opinion was admissible under Evidence Code section 352. The error the dissent finds is fundamentally an issue regarding the admissibility of an expert opinion under Evidence Code section 801. Under either basis the standard of review is an abuse of discretion.
The testimony was within the bounds of judicial discretion to admit. It is agreed that is acceptable for a toxicologist to opine that everyone is under the influence at a .05% BAC. The dissent finds fault with expert testimony that all individuals are under the influence “for purposes of driving.” Neither Appellant nor the dissent has cited any case holding it is impermissible for a scientific expert to express the opinion that all persons are impaired for purposes of driving at a .05%. In our experience this is not an uncommon expert opinion in DUI cases. And, we have not found a case upholding such testimony either.
Ms. Diaz was not giving a legal opinion, but a scientific one. She was identified as a toxicologist with expertise in toxicology. The basis underlying her opinion was from scientific studies, not legal ones. “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.) Ms. Diaz’s opinion was not that the defendant was guilty. It was that, in her opinion as a toxicologist, anyone with a BAC of .05% was under the influence for purposes of driving. Here the jury was instructed that they were the exclusive judges of credibility, were not bound by the expert’s opinion, and could give it the weight they thought it deserved after considering the basis of the opinion.
The legislature created presumptions to evaluate whether someone is driving under the influence for the (a) count. The presumptions describe how a BAC of between .05-.08% can be used. “If there was at that time 0.05 percent or more but less than 0.08 percent, by weight, of alcohol in the person’s blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.” (Veh. Code, § 23610, subd. (a)(2).) This section only prohibits presuming that a BAC between .05 and .08 proves the driver was impaired. It does not preclude expert testimony about the effect of alcohol on drivers. No court has ever found that the language in Vehicle Code section 23610 constitutes a legislative determination that evidence of impairment based on BAC below .08 is inadmissible. Nor has any court found that 23610 is a legislative determination at all, rather than simply a bar against utilizing a mandatory presumption to reach a conclusion in the absence of evidence. “A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence.” (Evid. Code, § 600, subd. (a).) A presumption is a legal directive, not a factual or scientific determination by the legislature.
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