Practice Tip of the Month

In light of the recent instrument change in Santa Clara County, the Practice Tip for this month revisits one of the foundational prerequisites of People v. Adams (1976) 59 Cal.App.3d 559, 131 Cal.Rptr. 190 -- that the breath test operator "was competent and qualified". Although the Adams rules [which, contrary to some young prosecutorsÕ views, do not go to weight, but do go directly to admissibility] apply with equal force to the admissibility of breath test evidence in DUI criminal trials as they do to "the sufficienty of evidence to support a finding" requirements of APS hearings [cf. Coombs v. Pierce (1991) 1 Cal.App.4th 568, 2 Cal. Rptr.2d 249, 255-256], the Department is particularly vulnerable to this evidentiary requirement in the latter proceedings.

First the rule: as in any scientific test or procedure, the conditions precedent for admissibility must be met before the result of the tests may be admitted or considered to support a necessary finding. The third prong of the Adams test requires that the operator or person conducting the test be qualified to perform it. In a DUI/APS proceedings this, in turn, requires that the prosecutor/Hearing Officer produce evidence to establish that either: (i) the breath test operator was properly certified as competent by a laboratory licensed by the California Department of Health Services to offer such certification, or if not so certified, (ii) to produce affirmative evidence of training, qualification, experience, etc. so as to otherwise meet the "competent and qualified" standard.

In APS proceedings, the Department may assert the presumption of Evidence Code ¤664. The problem in the DepartmentÕs reasoning in this regard is that no one is authorized to conduct a breath test unless that person has been legally certified in advance of such test administration. When the certification has not been properly given, no official duty is imposed upon the uncertified operator and therefore no presumption applies.

Typically, the foundational problem for the prosecutor/DMV arises in a variety of well defined contexts. Seldom will the operator of the breath test instrument be wholly untrained, rather, you should be alert to the following: (i) In your case, even if the breath test operator was trained at the academy on the same instrument used to conduct your clientÕs test, was he retrained by the laboratory servicing the county where the breath test was performed before your clientÕs breath test was administered? The problem is exacerbated where the instruments differ, but even simple differences in the training or protocol create a sufficient problem to justify the rules set forth in Title 17; (ii) even if the laboratory or other agency offering the breath test operatorÕs training is licensed by the State of California to offer such training, was the license specific for the instrument involved in your clientÕs test? The county agency offering that training must be licensed by the State of California to offer the training on the specific instrument involved, but (iii) even if the same instrument is involved and even if the county is licensed at the time the test was performed to offer breath test operator training, if the laboratory was not licensed at the time it trained and certified the operator, its subsequent licensing will not satisfy the foundational requirement -- particularly if there has been a change of any significance in the intervening procedures or the protocol ultimately approved by the Department of Health Services.

There are three analogies I find particularly helpful in explaining to a recalcitrant judge or a DMV hearing officer the purpose behind the law. Think of the requirement for licensing and certification in the context of the following: First, a young couple married by a "judge" who is either not a judge, as represented, or had postponed being sworn in until several years after the married ceremony was performed. Second, a skilled craftsman with many years of experience builds a house for you. You refuse to pay alleging in general terms that the work was not up to code. The builder sues you and it is discovered that he has never been a licensed contractor (furthermore, or perhaps, as is more apt as in the context of the analogy, several attempts to become a licensed contractor were made and rejected when he failed to pass the State contractor licensing test). Third, a non-lawyer represents a defendant accused of murder. The representation is flawless and the evidence against the defendant is overwhelming. Will his death penalty conviction be overturned automatically on appeal? What if the attorney was court-appointed or the contractor had to be selected from only a government "approved" list?

SUMMARY OF LICENSING PROVISIONS FOR QUALIFICATION OF BREATH TEST OPERATORS AND LABORATORY LICENSING
17 California Code of Regulation ¤1215 et seq.

Health and Safety Code Section 100700 formerly ¤436.50:

"The department [of Health Services] shall adopt and publish regulations to be used in approving and governing the operation of laboratories engaging in the performance of tests referred to in [Health and Safety Code] Sections 100710 and 100715, including the qualifications of the employees who perform the tests, that it determines are reasonably necessary to ensure the competence of the laboratories and employees to prepare, analyze, and report the results of the tests." [emphasis added]

NOTE: Two significant clarifying amendments were made with the adoption of the above Section, effective September 29, 1996: (i) the words "rules and" were deleted from ¤436.50 to conform with requirement that only regulations having binding effect; (ii) the words "of those laboratories" as a modifier to the phrase "including the qualifications of the employees of those laboratories who perform the tests", were stricken ostensibly in recognition of fact that breath test operators are normally employed by law enforcement agencies, but are covered by the relations re-training and qualification.

Section 1221.4(a)(5):

"An operator shall be ... person who has completed successfully the training described under Section 1221.4(a)(3) and who may be called on to operate a breath testing instrument in the performance of his duties."

Section 1218:

"Any organization, laboratory, institution, school, or college conducting a course of instruction for persons to qualify under these regulations shall submit a course summary and list of instructors and their qualifications to the Department approval."

Section 1221.4(a)(4)(A):

"After approval as set forth in Section 1218, the forensic alcohol laboratory is responsible for the training and qualifying of its instructors."

Section 1221.4(a)(3):

"(a) Procedures for breath alcohol analysis shall meet the following standards: * * *

(3) Breath alcohol analysis shall be performed only with instruments for which the operators have received training ..."

Section 1218.2: "* * * This section shall not be construed to authorize the delegation of any discretionary functions conferred on the Department by law, including, but not limited to, the evaluation of tests and examinations."

Section 1217.4:

"Licenses issued under these regulations shall not imply approval of anything carried out by a laboratory other than what is specified on the document."

Section 1221:

"Breath alcohol analysis shall be performed in accordance with standards set forth in this Article [7 of Group 8 of Title 17]."

Section 1221.4(a)(3):

"Breath alcohol analysis shall be performed only with instruments for which the operators have received training, such training to include a minimum the following schedule of subjects:

(A) Theory of operation;

(B) Detailed procedure of operation;

(C) Practical experience;

(D) Precautionary checklist;

(E) Written and/or practical examination."

Section 1216.1(c):

"The Department may deny a license or renewal thereof ... for failure to maintain these qualifications in a manner which meets the DepartmentÕs standards for approval.

Section 1217(b)

"Upon the laboratoryÕs successfully completing all of the qualifications, the Department shall issue to the applicant laboratory a forensic alcohol laboratory license."

1218.1:

"At the discretion of the Department, any phase or portion of a training program shall be subject to alteration in an effort to update the program as technological advances are made or if a portion has been judged inappropriate."

For those who have not seen a "Forensic Alcohol Laboratory License" issued by the California Department of Health Services, CLICK HERE for a sample (in this case, the Alameda County license issued to the SheriffÕs Department Crime Laboratory which permitted that county to "conduct the following training programs" for "Operators of Breath Testing Instruments...Intoxilyzer Model 5000 (CAL DOJ)" effective only after April 30, 1992.