People v. Bally

125 Cal.App.3d 584 (1981) 178 Cal. Rptr. 96 THE PEOPLE, Plaintiff and Respondent,

v.

JERRY AMEA BALLY, Defendant and Appellant.

Docket No. 21403. Court of Appeals of California, First District, Division One.

November 12, 1981. [585] COUNSEL

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Richard S. Kessler, Deputy State Public Defender, for Defendant and Appellant.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, Ronald E. Niver and Herbert F. Wilkinson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ELKINGTON, Acting P.J.

Defendant Bally was charged with driving a motor vehicle "while under the combined influence of intoxicating liquor and a drug, to wit: Diazepam [Valium], and when so driving did [586] an act forbidden by law," i.e., crossed a double yellow center line, which act proximately caused bodily injury to three persons, thereby violating Vehicle Code section 23102.

(1a) His appeal is from an order granting probation and he makes but one contention of error, as follows: "The trial court committed reversible error by denying appellant's motion to suppress the results of his blood test based upon the loss of his blood sample."

The relevant evidence is uncontroverted.

A "lab technician" on behalf of the arresting police officers had drawn two vials of blood from Bally's body. A medical bioanalyst then tested one or both of the vials and found a blood alcohol level of .27 which indicated that Bally had imbibed the equivalent of at least 12 or 13 one-ounce shots of 86 proof whiskey. Presence of Diazepam was also found. Thereafter at Bally's request a blood sample of the vials was sent by its official custodian to a private laboratory chosen by Bally for an additional test. The sample was sent by regular first class mail, but it was never received at the laboratory. Bally has thus been denied an opportunity to have a technician of his choice analyze, report, and testify in relation to the alcohol and drug content of his blood, while driving his motor vehicle.