People v. Ojeda (1990) 225 Cal.App.3d 404: Officer may testify to relationship between HGN and alcohol intoxication and an opinion that the subject was or was not under the influence
PAS Test
Authority to administer PAS. (VC 23612(h).)
Relevance: The Bury court upheld the admission of PAS test results into evidence not just for the mere presence of alcohol, but also for the concentration measured by the test. (People v. Bury (1996) 41 Cal.App.4th 1194.)
Moreover, the numerical value of the PAS sample was admissible to establish intoxication. The Bury court furthered approved of instructing the jury that it could infer the defendant was intoxicated if a chemical analysis of defendant’s breath showed a BAC of at least .08. The only evidence of a numerical BAC value in Bury was PAS test itself.
Foundation
(People v. Williams (2002) 28 Cal.4th 408.) The court ruled the evidence of a PAS test result admissible despite a series of Title 17 violations, including failing to check the PAS instrument for accuracy at least every 10 calendar days or after 150 subjects, failing to comply with the 15-minute pretest observation period, and failing to obtain the two requisite breath samples.
Foundation for admissibility can be alternatively satisfied by demonstrating:
Instrument was properly functioning
Test was properly administered
The operator was qualified to administer the test
Reporting Breath-Test results to the third decimal point
Our common sense and experience as trial judges compel the conclusion that the “third decimal place” number is relevant (see EC 210.) or else prosecutors would not seek utilization of it when it is high and criminal defense attorneys would not seek utilization of it when it is low.