People v. Pritchard

162 Cal.App.3d 13 (1984) 209 Cal. Rptr. 314 THE PEOPLE, Plaintiff and Respondent,

v.

KELTON RAY PRITCHARD, Defendant and Appellant.

Docket No. 21591. Court of Appeals of California, Appellate Department, Superior Court, Los Angeles.

October 25, 1984. [14] COUNSEL

John A. Slawson for Defendant and Appellant.

Robert H. Philibosian, District Attorney, Donald J. Kaplan and Eugene D. Tavris, Deputy District Attorneys, for Plaintiff and Respondent.

OPINION

BERNSTEIN, J.

Defendant appeals his conviction by a jury of a violation of Vehicle Code section 23152, subdivision (b) (driving with a blood-alcohol [15] level of 0.10 percent or more). He was acquitted of driving while under the influence (Veh. Code, § 23152, subd. (a)). On appeal he contends that the evidence presented was insufficient to support the conviction.

At the trial the People's expert testified that the results of an intoxilyzer test administered to appellant were 0.11 percent and 0.12 percent. He further testified that the machine had an error factor of .005. However, in order to convert the breath reading to that of a blood-alcohol reading for purposes of Vehicle Code section 23152, subdivision (b) a partition ratio must be used. The expert testified that there could be an error factor of 10 percent in the partition ratio used. Appellant contends that if this 10 percent error margin in the partition ratio is applied to the 0.11 percent machine reading, the result would be less than 0.10 percent; therefore, pursuant to People v. Campos (1982) 138 Cal. App.3d Supp. 1 [188 Cal. Rptr. 366], there was insufficient evidence presented to establish that he was driving with a blood-alcohol level of 0.10 percent or more.