People v. Cheryl S.

California Court of Appeal Feb 27, 1987 No. A034731Published

Before: Low

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Holding. The court held that there is no constitutional or due process requirement for an officer to advise a suspect that a breath test sample cannot be preserved prior to the administration of the test. Compliance with the statutory advisement requirements of Vehicle Code section 23157.5 is sufficient to satisfy fundamental fairness.

Issues

Whether the failure to advise a minor that a breath sample would not be preserved prior to the test violates due process or fundamental fairness.
Whether the juvenile court erred in suppressing breath test results based on the timing of the non-preservation advisement.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“No due process or fundamental fairness concerns are implicated when a state fails to preserve a nonexculpatory breath sample for independent testing.”

“If there is no constitutional right attached to this evidence, there is no constitutional duty to advise the suspect at any point in the procedure that the test is not preservable.”

Opinion

LOW, P. J.

—The People appeal from an order by the juvenile court dismissing a petition for wardship (Welf. & Inst. Code, § 602) after suppressing the results of a “breath test.” The juvenile court ruled that “fundamental fairness” dictated the testing officer advise the minor, before taking the breath test, that the breath sample would not be preserved. We reverse.

On September 19, 1985, Cheryl S., a minor, was,observed driving erratically. A traffic stop was effected and the officer smelled alcohol when the

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minor rolled down the window. The minor was asked to submit to a field sobriety test, which she failed. She was placed in a police car and advised that she was required, under Vehicle Code section 23157 (former § 13353), to give a chemical test of her blood, breath or urine. The minor wanted to take the urine test, but could not provide a urine sample. The officer advised her that she must take the blood or breath test. She asked to take a breath test, but also inquired as to the location of where a blood test would be taken, to which the officer responded that she would have to go to the hospital.

The minor completed the breath test, which indicated that she had a blood alcohol content above the .10 percent legal limit. (Veh. Code, § 23152.) After the test, the officer advised the minor, in accordance with Vehicle Code section 23157.5 (former § 13353.5), that he could not preserve a sample of her breath, but that she had the opportunity to provide a blood or urine sample for subsequent analysis. The minor waived her right to preserve a sample.

The minor does not challenge the validity of the breath test in its administration or result. Nor does the minor challenge whether the officer complied with the literal terms of the law requiring the necessary advisements for a breath test. The minor does not allege nor did the referee conclude that any coercion was involved in the minor foregoing the blood test.

The referee applied an erroneous legal standard when he suppressed the admissibility of the breath test. No due process or fundamental fairness concerns are implicated when a state fails to preserve a nonexculpatory breath sample for independent testing.

People v. Cheryl S.

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LOW, P. J.

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