People v. Municipal Court (Sansone)
The PEOPLE, Petitioner, v. THE MUNICIPAL COURT FOR THE NORTH COUNTY JUDICIAL DISTRICT OF SAN DIEGO COUNTY, Respondent; THOMAS JOSEPH SANSONE, Real Party in Interest
- Area
- criminal
- Panel
- Gerald J. Lewis (author), Robert O. Staniforth
Analysis
The trial court excluded the defendant's urine test results and dismissed the DUI count, ruling that the prosecution failed to prove the test met the Kelly-Frye standard for general acceptance. The Court of Appeal issued a peremptory writ of mandate, holding that Kelly-Frye does not apply to long-established scientific procedures like urine testing, and ordered the trial court to vacate its orders.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Exclusion of urine test results“the court ruled to exclude the result of Sansone’s urine test because the prosecution did not prove that urine tests are generally accepted as reliable within the scientific community” | de novo | error | agree with court The appellate court held that the Kelly-Frye rule applies only to new scientific methods, not established ones like urine testing which has been used for over 20 years and codified in statute. Therefore, the trial court erred in requiring proof of general acceptance for a well-established procedure. |
Dismissal of count two (Vehicle Code section 23152, subdivision (b))“Since applying the Kelly-Frye rule to a long used, established scientific procedure was error, the ruling that the test results were inadmissible likewise was error as was the dismissal of count two.” | de novo | error | agree with court The dismissal was a direct consequence of the erroneous exclusion of the urine test results, which were the only evidence for the per se DUI count. Since the exclusion was error, the dismissal was also error. |
Authorities
- relied: Frye v. United States (1923) 293 Fed. 1013 — Established the 'general acceptance' test for admissibility of scientific evidence, which the court interpreted as applying to new, experimental methods.
- relied: People v. Kelly (1976) 17 Cal.3d 24 — Applied the Frye test to voiceprint evidence, limiting its application to new scientific methods of proof.
- relied: People v. Conterno (1959) 170 Cal.App.2d Supp. 817 — Demonstrated that urine tests had been routinely used in California courts for over 20 years, establishing their long-standing acceptance.
- relied: United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359 — Cited as authority for issuing a peremptory writ of mandate when the lower court's order was clearly erroneous.
- relied: Goodenough v. Superior Court (1971) 18 Cal.App.3d 692 — Cited as authority for issuing a peremptory writ of mandate.
The appellate opinion: sound — The opinion correctly distinguishes between new and established scientific methods, aligning with the holding in People v. Kelly that Frye applies to novel techniques. It logically concludes that a procedure codified in statute and used for decades does not require a Frye hearing, making the trial court's exclusion an error of law.
The municipal court excluded the blood-alcohol results of Sansone's urine test on the ground the People had not proved under Kelly-Frye that urine testing is generally accepted in the scientific community, and on his motion dismissed the Vehicle Code section 23152, subdivision (b) count; the superior court denied the People's writ petition. The Court of Appeal, over a dissent, held that Kelly-Frye does not apply to a long-established, legislatively recognized and regulated procedure such as urine testing, and issued a peremptory writ directing the municipal court to vacate both the exclusion order and the dismissal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Exclusion of urine-test blood-alcohol results under Kelly-Frye for the People's failure to prove general scientific acceptance of urine testing“They are correct because there is nothing new about the use of urine tests to ascertain the level of alcohol in the blood.” | unclear | error (law misapplied) | agree with court The court does not articulate a standard but treats the applicability of Kelly-Frye as a pure question of law. Kelly expressly confines the Frye general-acceptance requirement to new scientific techniques, and the court supports its finding that urine testing is not new with decades of courtroom use (Conterno), the Legislature's incorporation of urine tests into the implied consent law in 1966, and Title 17 regulation of the test; it also invokes judicial notice under Evidence Code sections 451 and 452. The dissent's burden-of-proof point has force, since Kelly contemplates proof by expert testimony or prior appellate decision and no appellate decision had established acceptance, but the majority's reliance on legislative recognition and long regulated use to take the technique outside the 'new' category is a defensible reading of Kelly. Real party's bladder-voiding objection was properly treated as going to weight of a particular test rather than validity of the procedure. |
Dismissal of count two (Veh. Code, § 23152, subd. (b)) following exclusion of the test results, and rejection of real party's argument that the People waived objection by not objecting to the dismissal“However, in view of the ruling, the People had nothing to object to since absent the test results they could not prove Vehicle Code section 23152, subdivision (b).” | unclear | error (other) | agree with court The dismissal was a direct consequence of the exclusion order; once the exclusion was held erroneous the dismissal necessarily fell with it. The court's rejection of waiver is sensible because an objection to dismissal would have been futile given the evidentiary ruling, and the People preserved their position by challenging the exclusion through writ proceedings. The opinion cites no authority on the futility or waiver point, but the conclusion follows logically from the disposition of the first ruling. |
Superior court's denial of the People's petition for writ of mandate or prohibition challenging the municipal court orders“That petition was denied, the court granting a 10-day stay of trial until July 7, 1986, a stay which was continued by this court pending response and disposition of the matter.” | unclear | not reached | unsure The Court of Appeal did not separately analyze the superior court's denial; it treated the matter as an original writ proceeding and directed its peremptory writ to the municipal court. The denial is implicitly disapproved by the result but the opinion contains no reasoning addressed to it, so no independent assessment is possible from this record. |
Authorities
- relied: People v. Kelly (1976) 17 Cal.3d 24 — Evidence based on a new scientific technique is admissible only upon a showing that the technique is generally accepted as reliable in the relevant scientific community; the court here relied on Kelly's repeated limitation of that rule to new methods of proof.
- relied: Frye v. United States (1923) 293 Fed. 1013 — The thing from which an expert deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs; applied there to exclude lie detector results.
- relied: People v. Conterno (1959) 170 Cal.App.2d Supp. 817 — Cited to show that urine testing for blood-alcohol content has been routinely used in California courts for over 20 years.
- relied: United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359 — A peremptory writ may issue in the first instance without an alternative writ where further proceedings would add nothing.
- relied: Goodenough v. Superior Court (1971) 18 Cal.App.3d 692 — A peremptory writ in the first instance is proper under Code of Civil Procedure section 1088 where the matter is adequately presented.
- missed: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — A peremptory writ may issue in the first instance only after the parties have received notice that the court is considering that course and an opportunity to oppose; the court cited older authority for the first-instance procedure without acknowledging Palma, although the reference to a stay 'pending response' suggests the procedure was followed.
The appellate opinion: sound with gaps — The majority reaches a defensible result by grounding the inapplicability of Kelly-Frye in Kelly's own limitation to new techniques, bolstered by legislative adoption, Title 17 regulation, decades of use, and judicial notice. It does not, however, squarely engage the dissent's point that Kelly ordinarily requires general acceptance to be shown by expert proof or prior appellate decision and that neither existed here, and it omits Palma when justifying a peremptory writ in the first instance.
Opinion — Lewis
Opinion
LEWIS, J.Real party, Thomas Joseph Sansone, was arrested December 28, 1985, for driving under the influence of alcohol. Pursuant to Vehicle Code section 13353, he chose and successfully completed the urine test and was charged with Vehicle Code section 23152, subdivisions (a) and (b). Sansone then brought a motion to exclude evidence of his blood alcohol content on the basis the urine test does not meet the Kelly-Frye (Frye v. United States (D.C.Cir. 1923) 293 Fed. 1013 [54 App.D.C. 46, 34 A.L.R. 145]; People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]) criteria for admissibility of evidence. At the hearing, the People called one witness, Janet LaMott, who is forensic alcohol supervisor of the San Diego Regional Crime Laboratory. She explained the method used to determine blood alcohol content, the way to obtain proper samples and the system of converting urine alcohol results to blood alcohol percentages. LaMott also testified that in her opinion a urine test done properly will give accurate results, an opinion shared by many but not all scientists. At the close of the hearing, the court ruled to exclude the result of Sansone’s urine test because the prosecution did not prove that urine tests are generally accepted as reliable within the scientific community. On defendant’s motion, the court dismissed count two, a violation of Vehicle Code section 23152, subdivision (b).
*201 On the People’s request, the municipal court granted a stay of trial which allowed them time to file a petition for writ of mandate or prohibition in the superior court. That petition was denied, the court granting a 10-day stay of trial until July 7, 1986, a stay which was continued by this court pending response and disposition of the matter.
The People challenge the order excluding the urine test results on the basis the Kelly-Frye rule does not apply. They are correct because there is nothing new about the use of urine tests to ascertain the level of alcohol in the blood. In Frye, the prosecution objected to defendant’s use of results from a lie detector. The court stated: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Frye v. United States, supra, 293 Fed. at p. 1014.) Likewise, in Kelly, where the evidence sought to be admitted was a voiceprint, the court repeatedly limited the application of the Frye test to new scientific methods of proof. There is nothing new about using the urine test to determine blood-alcohol content. It has been routinely used in California courts for over 20 years (see People v. Conterno (1959) 170 Cal.App.2d Supp. 817, 823 [339 P.2d 968]). The Legislature, some 20 years ago, incorporated urine tests into the implied consent law (Veh. Code, ' § 23157, see former Veh. Code, § 13353, added Stats. 1966, ch. 138, § 1). Urine, blood and breath tests are all carefully regulated to assure the accuracy of the test results (see Cal. Admin. Code, tit. 17, part 1, § 1215 et seq.). Real party argues that urine testing has been commonplace for many years but argues that this deals only with individual samples and not with the acceptability of the procedure itself. There is no appellate decision that establishes the general acceptance of urinalysis testing, says real party, and since the People failed to present any evidence on that point, the results must be excluded. However, were the procedure itself not acceptable, its use would not be commonplace; were the procedure not acceptable, the Legislature would not have included it as an alternative of testing for blood alcohol levels.
Real party suggests the procedure for collecting urine samples makes the results unreliable because one can never completely void one’s bladder. However, the conversion factor derived after empirical studies takes this into account. The accuracy of a particular test may be compromised by the subject failing to completely void his bladder but this does not detract from the validity of the procedure itself.
*202 Real party points out that just because a procedure has been used for years should not place it beyond attack. But absent a showing of new information as to a particular scientific principle or discovery there is no reason to challenge an already established procedure. It is in such situations that it is appropriate for the court to take judicial notice (see Evid. Code, §§ 451, subd. (f), 452, subds. (g) and (h)). Here, real party presents no new scientific data concerning the reliability of urine testing.
When the court ruled that the urine test results were not admissible, it then granted the real party’s motion to dismiss count two (Veh. Code, § 23152, subd. (b)). The People did not object and real party suggests that this was a waiver. However, in view of the ruling, the People had nothing to object to since absent the test results they could not prove Vehicle Code section 23152, subdivision (b). Since applying the Kelly-Frye rule to a long used, established scientific procedure was error, the ruling that the test results were inadmissible likewise was error as was the dismissal of count two.
An alternative writ or order to show cause would add nothing to the presentation. A peremptory writ is proper. (Code Civ. Proc., § 1088; United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359 [169 Cal.Rptr. 827]; Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697 [96 Cal.Rptr. 165].)
Let a peremptory writ issue directing the municipal court to vacate its orders excluding urine test results and dismissing count two. The stay issued by this court on July 3, 1986, is vacated.
Wiener, J., concurred.
STANIFORTH, Acting P. J.I respectfully dissent. The People have the burden of showing the test used is valid which they failed to do in this case as a matter of proof. This does not mean the test is not valid but merely that the People failed to prove it here. I would deny the petition.
On August 29, 1986, the opinion was modified to read as printed above. The petition of real party in interest for review by the Supreme Court was denied October 30, 1986. Mosk, J., was of the opinion that the petition should be granted.
Opinion — Lewis
OPINION
Real party, Thomas Joseph Sansone, was arrested December 28, 1985, for driving under the influence of alcohol. Pursuant to Vehicle Code section 13353, he chose and successfully completed the urine test and was charged with Vehicle Code section 23152, subdivisions (a) and (b). Sansone then brought a motion to exclude evidence of his blood alcohol content on the basis the urine test does not meet the Kelly-Frye (Frye v. UnitedStates (D.C. Cir. 1923) 293 Fed. 1013 [54 App.D.C. 46, 34 A.L.R. 145]; People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144,549 P.2d 1240]) criteria for admissibility of evidence. At the hearing, the People called one witness, Janet LaMott, who is forensic alcohol supervisor of the San Diego Regional Crime Laboratory. She explained the method used to determine blood alcohol content, the way to obtain proper samples and the system of converting urine alcohol results to blood alcohol percentages. LaMott also testified that in her opinion a urine test done properly will give accurate results, an opinion shared by many but not all scientists. At the close of the hearing, the court ruled to exclude the result of Sansone's urine test because the prosecution did not prove that urine tests are generally accepted as reliable within the scientific community. On defendant's motion, the court dismissed count two, a violation of Vehicle Code section 23152, subdivision (b). *Page 201
On the People's request, the municipal court granted a stay of trial which allowed them time to file a petition for writ of mandate or prohibition in the superior court. That petition was denied, the court granting a 10-day stay of trial until July 7, 1986, a stay which was continued by this court pending response and disposition of the matter.
(1) The People challenge the order excluding the urine test results on the basis the Kelly-Frye rule does not apply. They are correct because there is nothing new about the use of urine tests to ascertain the level of alcohol in the blood. In Frye, the prosecution objected to defendant's use of results from a lie detector. The court stated: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." (Frye v. United States, supra, 293 Fed. at p. 1014.) Likewise, inKelly, where the evidence sought to be admitted was a voiceprint, the court repeatedly limited the application of theFrye test to new scientific methods of proof. There is nothing new about using the urine test to determine blood-alcohol content. It has been routinely used in California courts for over 20 years (see People v. Conterno (1959) 170 Cal.App.2d Supp. 817, 823 [339 P.2d 968]). The Legislature, some 20 years ago, incorporated urine tests into the implied consent law (Veh. Code, § 23157, see former Veh. Code, § 13353, added Stats. 1966, ch. 138, § 1). Urine, blood and breath tests are all carefully regulated to assure the accuracy of the test results (see Cal. Admin. Code, tit. 17, part 1, § 1215 et seq.). Real party argues that urine testing has been commonplace for many years but argues that this deals only with individual samples and not with the acceptability of the procedure itself. There is no appellate decision that establishes the general acceptance of urinalysis testing, says real party, and since the People failed to present any evidence on that point, the results must be excluded. However, were the procedure itself not acceptable, its use would not be commonplace; were the procedure not acceptable, the Legislature would not have included it as an alternative of testing for blood alcohol levels.
Real party suggests the procedure for collecting urine samples makes the results unreliable because one can never completely void one's bladder. However, the conversion factor derived after empirical studies takes this into account. The accuracy of a particular test may be compromised by the subject failing to completely void his bladder but this does not detract from the validity of the procedure itself. *Page 202
Real party points out that just because a procedure has been used for years should not place it beyond attack. But absent a showing of new information as to a particular scientific principle or discovery there is no reason to challenge an already established procedure. It is in such situations that it is appropriate for the court to take judicial notice (see Evid. Code, §§ 451, subd. (f), 452, subds. (g) and (h)). Here, real party presents no new scientific data concerning the reliability of urine testing.
When the court ruled that the urine test results were not admissible, it then granted the real party's motion to dismiss count two (Veh. Code, § 23152, subd. (b)). The People did not object and real party suggests that this was a waiver. However, in view of the ruling, the People had nothing to object to since absent the test results they could not prove Vehicle Code section23152, subdivision (b). Since applying the Kelly-Frye rule to a long used, established scientific procedure was error, the ruling that the test results were inadmissible likewise was error as was the dismissal of count two.
An alternative writ or order to show cause would add nothing to the presentation. A peremptory writ is proper. (Code Civ. Proc., § 1088; United Nuclear Corp. v. Superior Court (1980)113 Cal.App.3d 359 [169 Cal.Rptr. 827]; Goodenough v. SuperiorCourt (1971) 18 Cal.App.3d 692, 697 [96 Cal.Rptr. 165].)
Let a peremptory writ issue directing the municipal court to vacate its orders excluding urine test results and dismissing count two. The stay issued by this court on July 3, 1986, is vacated.
Wiener, J., concurred.
Dissent — Staniforth
I respectfully dissent. The People have the burden of showing the test used is valid which they failed to do in this case as a matter of proof. This does not mean the test is not valid but merely that the People failed to prove it here. I would deny the petition.
On August 29, 1986, the opinion was modified to read as printed above. The petition of real party in interest for review by the Supreme Court was denied October 30, 1986. Mosk, J., was of the opinion that the petition should be granted. *Page 203
Cites, in this corpus
- United Nuclear Corp. v. Superior Court Civ. 24286 · 1980-12-16
- People v. Kelly Crim. 19028 · 1976-05-28
- Goodenough v. Superior Court Civ. 11068 · 1971-07-12
- People v. Conterno Crim. A. 3981 · 1959-04-30
Cited by
- People v. Nolan B149669 · 2002-02-04
- People v. Nolan No. B149669 · 2002-02-04
- McKinney v. Department of Motor Vehicles A052875 · 1992-04-10
- Imachi v. Department of Motor Vehicles A053704 · 1992-01-14