Posted On: November 21, 2013 by Mary Frances Prevost


This morning People v. Vangelder came down. it was argued by Chuck Sevilla.

The Court reversed the Court of Appeal which had reversed a DUI conviction for excluding an expert who would have testified that the breath test machines used: 1) measure no alveolar air, and 2) had unreliable test result from variable in the breath sample due to factors like breathing
variations, temperature of the lung air, etc.

The Court ruled that 1) the Title 17 regulation requiring "essentially alveolar air" to be measured merely means to test the last expired breath. (See p. 45, et seq --you read that right). 2) The Court ruled that variables that alter breath alcohol out the mouth were close enough to
partition ratio rules (despite the expert's testimony that he was not comparing blood/breath ratios) to warrant exclusion also under that doctrine. (p. 49.)

They do all this because the state adopted the fed regulations for approvals of machines and since the machines are federally approved, this creates an irrebuttable presumption of accuracy. (See p. 46, you read that right). In other words, there can be no global attacks on approved breath machines because that would have the witness "nullifying the legislature." (You read
that right, see pp. 45-46).

AN AREA FOR LITGATION: The court finds that approved PAS machines are evidential breath tests. See p. 40, fn 23. This may give rise to the defense later that any subequent test must be suppressed (per Fiscalini) as being unnecessary and without justification.