Brannon
United States v. Brannon
Opinion
Lead Opinion
Noonan, J.
Opinion by Judge NOONAN; Dissent by Judge WALLACH.
Kevin Vincent Brannon appeals his conviction of driving under the influence on a military base in violation of the Assimilative Crimes Act, 18 U.S.C. § 13 , which incorporates California Vehicle Code (CVC) § 23152(a).
FACTS
Shortly after 1:00 a.m. on June 6, 1996, Brannon drove to McClellan Air Force Base in Sacramento County, California for the purpose of dropping a passenger off at a club on the base. Airman Sherri Wellman stopped Brannon at the gate and requested military I.D. No one in the car had the proper I.D. Brannon requested and received permission from Wellman to make a U-turn to leave the installation. However, he did not follow Wellman’s instructions as to where to make the U-turn and was stopped by Staff Sergeant David Trudel.
There was an open container of alcohol in the backseat from which one of Brannon’s passengers was drinking. Trudel detected an odor of alcohol coming from Brannon’s breath and asked Brannon to perform several field sobriety tests. In Trudel’s opinion the effects of alcohol on Brannon were obvious. Brannon’s performance of the tests was unsatisfactory, and he begged off completing them on…
Dissenting Opinion
Wallach, J.
dissenting:
I dissent. An incomplete breathalyzer test is not admissible under the circumstances here present. 1 In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), the Supreme Court stated that “under the [Federal] Rules [of Evidence] the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 2795, 113 S.Ct. 2786 . Here, the majority upholds the admission of this evidence based on a hurried observation 2 of a flashing LED readout. 3 Experts recommend, and some states have adopted, admission of such breath alcohol evidence when there are two completed tests with printouts of the results. Under the Daubert standard, the government failed to show that the results of the partial breathalyzer test were reliable.
As recognized by the majority, experts in the industry recommend against reliance on a single uncompleted test because such results may be unreliable. See Opinion at 7793 (citing Kurt M. Dubowski, Quality Assurance in Breath-Alcohol Analysis, 18 J. Analytical Toxicology 306 (1994); 2 Richard E. Erwin, Defense of Drunk Driving Cases § 18.03 (3d…