Opinion
CALDECOTT, P. J. The sole question presented by this appeal is whether the failure of the breath test to strictly comply with the calibration procedure of Administrative Code section 1221.4, subdivision (b)1 rendered the results of the test .inadmissible in evidence against appellants, who were each charged with violation of Vehicle Code section 23102, subdivision (a). We conclude that it did not.
Breath tests to determine blood alcohol concentration have long been recognized by decisional law as scientifically valid in this state and elsewhere. (People v. Sudduth, 65 Cal.2d 543, 546 [55 Cal.Rptr. 393, 421 P.2d 401]; People v. Conterno, 170 Cal.App.2d Supp. 817, 823-825 [339 P.2d 968], and cases cited therein.) In general, the foundational prerequisites for admissibility of testing results are that (1) the particular apparatus utilized was in proper working order, (2) the test used was properly administered, and (3) the operator was competent and qualified. (Cf. Lawrence v. City of Los Angeles, 53 Cal.App.2d 6, 8 [127 P.2d 931]; see Donigan, Chemical Tests and the Law (2d ed. 1966) (passim); 2 Jones on Evidence (6th ed. 1972) § 14.37; Richardson, Modern Scientific Evidence (2d ed. 1974) §§ 13.10, 13.13a.)
Absent a controlling statute, the test results must be interpreted at the trial by an expert witness (Conterno, supra, 170 Cal.App.2d Supp., at p. 824), under the general requirements for expert testimony. (Evid. Code, § 800 et Seq.) However, California (and apparently all other states) has adopted statutory presumptions applicable to specified blood alcohol test results. (Veh. Code, § 23126.) Under the statute (added in 1969) 0.10 percent or more by weight of alcohol in the blood gives rise to the presumption that the person was under the influence of intoxicating liquor. (Veh. Code, § 23126, subd. (a)(3).)
Although breath tests for blood alcohol content were, as observed above, admissible by decisional law, in 1966, the Legislature enacted [562]Vehicle Code section 13353, the so-called “Implied Consent” law, which states in part: “Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine. . . .” The courts have uniformly held that the enactment of this law does not affect the admissibility of the blood alcohol tests under earlier, established case law. (People v. Wren, 271 Cal.App.2d 788, 791-792 [76 Cal.Rptr. 673]; People v. Fite, 267 Cal.App.2d 685, 690-691 [73 Cal.Rptr. 666]; People v. Hanggi, 265 Cal.App.2d Supp. 969, 975 [70 Cal.Rptr. 540].)
In 1969, the Legislature added chapter 5 of division 1, part 1, of the Health and Safety Code, sections 436.50 to 436.63. These sections primarily relate to promulgation of rules and regulations governing the testing by laboratories of alcohol concentration in the blood, and the licensing and control of laboratories performing such tests. Section 436.52 (as amended, effective July 1, 1973) states: “The testing of breath samples by or for law enforcement agencies for purposes of determining the concentration of ethyl alcohol in the blood of persons involved in traffic accidents or in traffic violations shall be performed in accordance with regulations adopted by the State ... Department of... Health.
“The rules and regulations shall establish the procedures to be used by law enforcement agencies in administering breath tests for the purposes of determining the concentration of ethyl alcohol in a person’s blood. Such rules and regulations shall be adopted and published in accordance with the provisions of Chapter 4.5 (commencing with Section 11371) of Part 1 of Division 3 of Title 2 of the Government Code.” The “shall” wording of the statute is clearly mandatory, according to the definition provided in the code itself. (Health & Saf. Code, § 16.)
Pursuant to this directive, the Department of Health promulgated “Requirements for Breath Alcohol Analysis.” (Cal. Admin. Code, tit. 17, §§ 1221-1221.5.) Section 1221 of these regulations states that “[t]he testing of breath samples by or for law enforcement agencies shall be performed in accordance with standards set forth in these regulations.” Various standards of performance are set forth in the ensuing sections. Section 1221.4 states: “Procedures for breath alcohol analysis shall meet the following standards: (b) Maintenance of a breath testing instrument shall include the testing of unknown samples, either weekly or following every 100 tests of subjects, whichever comes sooner, by a usual operator of the instrument, and the reporting of the results to the licensed Forensic Alcohol Laboratory which maintains that instrument.”
[563]It is undisputed in the present case that this last quoted provision was not adhered to by the laboratory. Appellants urge that, because the language of both Health and Safety Code section 436.52 and the Administrative Code sections are mandatory, noncompliance must result in exclusion of the test results from evidence. They contend that the calibration requirement goes to the essence of the substantive value of the tests, and that evidence taken in the absence of statutorily mandated safeguards is incompetent and highly prejudicial. We disagree with this argument for several reasons.
All states have enacted legislation relating to blood alcohol tests. The majority have either followed the guidance of the Uniform Vehicle Code section 11-902, subdivision (c) (1962)2 and expressly conditioned validity of the tests on compliance with health department regulations,3 or have made the evidence admissible provided that the regulations are followed.4 In these states, the effect of noncompliance is clear: the evidence may not be admitted.5
[564]Some states have not enacted mandatory regulations governing test procedures.6 One state has provided that the statutory presumption of intoxication depends upon compliance with the regulations,7 and a court in that state has held that because the statute does not require exclusion for noncompliance, inadmissibility is not mandated. (People v. Meikrantz (1974) 77 Misc.2d 892 [351 N.Y.S.2d 549]; but compare People v. Monahan (1969) 25 N.Y.2d 378 [306 N.Y.S.2d 453, 254 N.E.2d 758], ruling evidence inadmissible under general scientific and medical standards without proof of compliance with statutorily mandated regulations.) Another state has expressly provided that noncompliance goes only to the weight of the evidence.8
Several states have enacted legislation like California’s, providing that tests shall be made in accordance with the regulations but not expressly conditioning validity or admissibility of the test results thereon.9 Courts in two of these states have nonetheless held the evidence inadmissible in the absence of strict compliance with the regulations, based upon the mandatory language of the sections. (State v. Hansen (Iowa 1972) 203 N.W.2d 216; State v. Wallin (Iowa 1972) 195 N.W.2d 95; City of Cincinnati v. Sand (1975) 43 Ohio St.2d 79 [72 Ohio Ops.2d 44, 330 N.E.2d 908]; State v. Miracle (1973) 33 Ohio App.2d 289 [62 Ohio Ops.2d 440, 294 N.E.2d 903]; see also Jones v. Forrest City (1965) 239 Ark. 211 [388 S.W.2d 386] (same result before statute amended to expressly so provide).) The other states do not appear to have decided the question. However, we may note that in one state whose statute conditions admissibility on compliance with certain regulations, courts have held that noncompliance with other mandatory requirements in the statute, or technical or minor violations of the statute, does not require [565]exclusion of the test results. (State v. Gillis (1974) 114 N.H. 417 [321 A.2d 576]; State v. Groulx (1969) 109 N.H. 281 [249 A.2d 690].)
In California, our Evidence Code provides that: “Except as otherwise provided by statute, all relevant evidence is admissible.” (§ 351.) Neither the Iowa nor Ohio decisions noted above mention such a statutory scheme explicitly favoring admissibility in the absence of a contrary expression in a statute. Neither the regulations in the Administrative Code, nor Health and Safety Code section 436.52, make reference to the question of admissibility into evidence of tests which are not performed in compliance with the regulations. Appellants cite the language of the Law Revision Commission Comment to Evidence Code section 351 that “[o]ther codes also contain provisions that may in some cases result in the exclusion of relevant evidence” and claim that several of the code sections thereinafter enumerated in the comment contain no express limit on admissibility. This is correct. However, such sections uniformly relate to confidentiality of information, and expressly limit use and/or disclosure; thus, the comment accurately notes that the provisions may result in exclusion of relevant evidence, rather than that they exclude the evidence.10 None of the statutes, however, are even remotely similar to those involved in this case.
Additionally, we note that the Legislature rejected an express limitation on admissibility in Assembly Bill No. 789, as amended in the Senate on July 1, 1969. The amendment would have made inadmissible results of tests not performed in approved and licensed laboratories. This language was stricken from the bill in its final form. Although not directly involving the problem at hand, this indicates that Health and Safety Code section 436.51, framed in the same mandatory language as section 436.52, is not to be regarded as excluding evidence obtained in violation of the regulations, most of which relate to laboratory licensing: the statute is not to be read “so as to make it conform to a presumed intention which is not expressed.” (Seaboard Acceptance Corp. v. Shay, 214 Cal. 361, 365 [5 P.2d 882].) “The sweep of the statute should not be enlarged by insertion of language which the Legislature has overtly left [566]out.” (People v. Brannon, 32 Cal.App.3d 971, 977 [108 Cal.Rptr. 620].) It would be no less judicial interference with the legislative province to presume that section 436.52 mandates inadmissibility while section 436.51, couched in the same mandatory language, plainly does not so require.
Appellants cite the case of People v. Foulger, 26 Cal.App.3d Supp. 1 [103 Cal.Rptr. 156], in support of their contentions. The court therein ruled that noncompliance with the Administrative Code regulations required exclusion of the breathalyzer test results. The court stated that the absence of an express exclusionary provision did not indicate a contrary legislative intent, and that the mandatory nature of the language compelled inadmissibility.
Foulger has been disapproved by higher courts on at least two occasions. In Brannon, supra, 32 Cal.App.3d 971, the court held that failure to comply with the mandatoiy language of Vehicle Code section 13353, requiring the arresting officer to inform the arrestee that he has his choice of blood, urine-or breath tests, did not render the results of the blood alcohol test inadmissible. The court stated that “[e]vidence obtained in violation of a statute is not inadmissible per se unless the statutory violation also has a constitutional dimension.” Having concluded that violation of section 13353 involved no constitutional inhibition, “[i]t follows that absent an express statutory provision making the evidence obtained as a result of such statutory violation inadmissible, the evidence was properly admitted.” (32 Cal.App.3d at p. 975.) Moreover, the court “disagree[d] with Foulger insofar as it suggests or implies that absent an express provision of the statute excluding the evidence in criminal prosecutions and absent any constitutional violation of a defendant’s rights the evidence may be excluded solely because it is proscribed by statute.” (32 Cal.App.3d at p. 978; cf. 56 Ops. Cal. Atty. Gen. 38, 40.)
In People v. Rawlings, 42 Cal.App.3d 952 [117 Cal.Rptr. 651], the court dealt, in dicta, with the very problem presented, herein. Disapproving Foulger, the court stated that: “Where a statute, such as this, does not specifically provide that evidence shall be excluded for failure to comply with said statute and there are no constitutional issues involved (and none are involved here) such evidence is not inadmissible. Statutory compliance or noncompliance merely goes to the weight of the evidence.” (42 Cal.App.3d at p. 956.)
[567]We agree with Rawlings that noncompliance goes merely to the weight of the evidence. The regulations are an expressed standard for competency of the test results; in effect, they are a simplified method of admitting the results into evidence. Were the rule to provide that the evidence of the test results would be inadmissible if the regulation were not followed there would be the incentive to turn the drunk driving case into a contest to find a technical defect in the test procedure so as to have the evidence excluded. Under the present rule, if the test procedure does not comply with the regulations, a defendant is protected, as the prosecution then must qualify the personnel involved in the test, the accuracy of the equipment used and the reliability of the method followed before the results can be admitted. In the present case, as the regulations were not followed, appellants were entitled to attempt to discredit the results by showing that noncompliance affected their validity; indeed, the court instructed that any such noncompliance could be considered by the jury in evaluating the test evidence.
However, we do not agree with appellants’ contention that such noncompliance inherently and automatically rendered the machine unreliable and the test results worthless. The expert witness testified that the machine was in good working order, and that he had ascertained its reliability by running standard known samples through it prior to giving each actual test. He stated that this served essentially the same function as the testing of unknown samples called for by the regulation; indeed, he stated that he normally made up the unknown samples used in the laboratory, and that their purpose was to prevent “fudging” of test results (of which there was not even the slightest suggestion by appellants). Appellants do not contend, nor could they on the record presented, that ■an inadequate foundation was presented as to the reliability of the machine used, despite the technical violation. Nor did they attempt any showing that the noncompliance affected the test results in any way, let alone rendered the results inaccurate.
Noncompliance with the Administrative Code regulations goes only to the weight of the blood alcohol concentration evidence. In accordance with prior case law, the validity of the test itself is to be determined in accordance with general scientific standards as' to the foundational elements of properly functioning equipment, properly administered test, and qualified operator. (Cf. People v. Monahan, supra, 25 N.Y.2d 378 [306 N.Y.S.2d 453, 254 N.E.2d 758].) .
[568]The judgment is affirmed.
Christian, J., concurred.
This regulation, and the others referred to herein (Cal. Admin. Code, tit. 17, §§ 1221-1221.5) were amended on November 24, 1975, effective 30 days thereafter.
See Uniform Vehicle Code section 11-902.1, subdivision (a) 1 (Supp. II 1976).
Ala. Code tit. 36, § 155, cl. 5(b) (Supp. 1973); Alaska Stats., § 28.35.033(3)(d) (1970 and Supp. 1975); Ariz. Rev. Stats. Anno., § 28-692D (Supp. 1973); Ark. Anno. Stats., §§ 75-1045(c)(1), 75-1046(b) Supp. 1975); Fla. Anno. Stats., § 322.262(3) (1975); Ga. Code Anno., § 68A-902.1(a)(1) (1975); Ill. Anno. Stats., ch. 9516, § 11-501(d) (Supp. 1975); La. Stats. Anno., § 32:663 (Supp. 1974); Miss. Code Anno., § 63-11-19 (1973); Mo. Stats. Anno., § 564.441(2) V.A.M.S. (Supp. 1975); Neb. Rev. Stats. Anno., § 39-669.11 (1974); N.H. Rev. Stats. Anno., § 262-A:69-i (III, IV) (Supp. 1975); N.J. Stats. Anno., § 39:4-50.3 (1973); N.C. Gen. Stats. Anno., § 20-139.1(b) (Supp. 1974); Okla. Stats. Anno., ch. 47, § 759 (Supp. 1975); Or. Rev. Stats., § 487.815 (1974); Tenn. Code Anno., § 59-1049 (Supp. 1975); Vernon’s Texas Rev. Civ. Stats. Anno., art. 67011-5(3)(b) (Supp. 1975); Vt. Stats. Anno., tit. 23, § 1203 (Supp. 1975); Wash. Rev. Code, § 46.61.506(3) (1970); Wis. Stats. Anno., § 343.305(9)(a) (1964); Wyo. Stats., § 31-247.5(a) (1975).
Conn. Gen. Stats., § 14-227a(b) (1975); Idaho Code Anno., § 49-352 (Supp. 1975); Ind. Stats. Anno., § 9-4-4-,5-6 (Supp. 1974); Anno. Code of Md., Cts. & Judic. Proc., § 10-304(b), 10-307(a) (1974 and Supp. 1975); N.M. Anno. Stats., § 64-22-2.10A (1972); N.D. Century Code Anno., § 39-20-07(5) (Supp. 1975); Pa. Stats. Anno. tit. 75, § 624.1(a) (Purdon 1971); R.I. Gen. Laws Anno., § 31-27-2(b) (Supp. 1975); W.Va. Code Anno., § 17C-5A-5 (1974); cf. Nev. Rev. Stats., § 484.393 (1973).
See, e.g„ Webster v. State (Alaska 1974) 528 P.2d 1179; State v. Bruins (La. 1975) 315 So.2d 293; State v. Sinclair (Mo.App. 1971) 474 S.W.2d 865; Otte v. State (1961) 172 Neb. 110 [108 N.W.2d 737]; State v. Warf (1972) 16 N.C. App. 431 [192 S.E.2d 37]; State v. Fogle (1969) 254 Or. 268 [459 P.2d 873]; State v. Hood (1971) 155 W.Va. 337 [184 S.E.2d 334]. Compare Cutchens v. State (Miss. 1975) 310 So.2d 273 (evidence admissible under statutory phrase (contained in other state laws as well) that implied consent provisions do not limit introduction of “other competent evidence” on question of intoxication (cf. Cal. Veh. Code, § 23126, subd. (c)). See also Patterson v. State (1968) 224 Ga. 197 [160 S.E.2d 815] (compliance with regulations not required if statutory intoxication presumptions are not utilized).
Kans. Stats. Anno., §§ 8-1001, 8-1005 (1975); Ky. Rev. Stats., § 186.565 (1975); Mass. Anno. Laws, ch. 90, § 24 (1974); Mich. Stats. Anno., §§ 9.2325(1), 9.2325(7) (1975); S.D. Comp. Laws Anno., §§ 32-23-1 - 32-23-17 (Supp. 1975); Utah Code Anno., §§41-6-44,41-6-44.10(1970); Minn. Stats. Anno., §§ 169.121, 169.123 (Supp. 1974).
62A McKinney’s Consol. Laws of N.Y. Anno., Vehicle & Traffic Law, §§ 1194-1195 (Supp. 1975).
Va. Code Anno., § 18.2-268(s) (1975). Compare Shumate v. Commonwealth (1967) 207 Va. 877 [153 S.E.2d 243] (applying the statute) with Brush v. Commonwealth (1964) 205 Va. 312 [136 S.E.2d 864] and Kyhl v. Commonwealth (1964) 205 Va. 240 [135 S.E.2d 768] (applying an earlier version of the statute, requiring exclusion for noncompliance).
Colo. Rev. Stats., § 42-4-1202 (1973); Del. Code Anno. tit. 21, §§ 2741, 2746 (1974); D.C. Code Enc. Anno., §§ 40-1001 - 40-1004 (Supp. 1975); Hawaii Rev. Stats., § 286-151 (1968); Idaho Code Anno., § 49-1102 (Supp. 1975); Iowa Code Anno., §§ 321B.3, 321B.4 (Supp. 1975); Me. Rev. Stats. Anno. tit. 29, § 1312 (Supps. 1973, 1975); Mont. Rev. Code, § 32-2142.3(f) (Supp. 1975); Ohio Rev. Code Anno., § 4511.19 (1973); S.C. Code Anno., § 46-344(a) (Supp. 1975).
E.g., Civil Code sections 4306 (formerly 79.06), 4309 (formerly 79.09), 227; Code of Civil Procedure section 1747; Education Code section 13892 (formerly 14026); Finance Code section 8754 (repealed 1970); Fish and Game Code section 7923; Government Code sections 15619, 18934, 18952, 20134, 31532; Health and Safety Code sections 211.5, 410; Insurance Code sections 735 (repealed 1970), 855; Labor Code section 6309 (formerly 6319); Penal Code sections 290, 938.1, 3046, 3107, 11105; Revenue and Taxation Code section 16563; Unemployment Insurance Code section 2111; Vehicle Code section 16005; Welfare and Institutions Code sections 10850 (formerly 118), 827.