Filed 4/6/16 P. v. Mahjoob CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

QAYS MAHJOOB,

Defendant and Appellant.

B259878

(Los Angeles County

Super. Ct. No. KA102058)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Robert M. Martinez, Judge. Affirmed.

Hutton & Wilson and Richard A. Hutton; Jonathan K. Golden, under 

appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and 

Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________
2

INTRODUCTION

Defendant Qays Mahjoob appeals from his judgment of conviction on two felony 

counts of driving under the influence of alcohol in violation of Vehicle Code 

section 23153. The People’s case included the result of a blood test taken at the hospital 

where defendant was treated for injuries sustained in a traffic accident, which test 

indicated defendant’s blood alcohol concentration was 0.22 percent. Defendant 

attempted to exclude the blood test result, contending the hospital failed to comply with 

certain regulations applicable to forensic laboratories. The court refused to exclude the

blood test result, based mainly upon its finding that regulations relating to forensic 

laboratories do not apply to clinical laboratories, such as the laboratory maintained by 

the hospital. Defendant claims the court abused its discretion by excluding the forensic 

laboratory regulations, and further erred by refusing to give several jury instructions 

proposed by defendant relating to the regulations. Finding no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

A. The Accident

On April 4, 2013, Geraldine B. and her eight-year-old daughter Grace spent the 

day at Disneyland. Geraldine and Grace returned to their car, a 2000 Toyota Camry, 

and left Anaheim around midnight. An hour later, at roughly 1 a.m. on April 5, 2013, 

Geraldine was stopped at a red light at an intersection near her house. The road she was 

travelling on had two lanes running in each direction, with a center lane in the middle 

for turn lanes. Geraldine was waiting to turn left; her car was in the left pocket turn lane

on the correct side of the double yellow line. Geraldine saw a car driving toward her on 

the opposite side of the road in the lane closest to the center of the road. The car had its 

headlights on. The oncoming car hit Geraldine’s car head on, propelling her car out of 

the turn lane to the side of the road, and causing the driver’s side airbag to deploy. 

Geraldine and Grace both sustained serious injuries as a result of the crash and were 

taken by paramedics to U.C. Irvine Medical Center. Doctors performed surgery on 

Geraldine’s foot. Grace required immediate abdominal surgery and a subsequent 

surgery on her back.
3

Defendant also sustained injuries to his head and left hip as a result of the 

collision. At the scene, paramedics observed defendant was somewhat confused and 

smelled of alcohol. One of the paramedics who treated defendant started an I.V. 

catheter at the scene and used an alcohol swab on the defendant’s skin before inserting 

the catheter.

Paramedics took defendant to Western Medical Center (the hospital) for 

treatment, where he was admitted to the trauma unit. On arrival, the paramedics briefed 

the surgeon on call regarding defendant’s condition. Consistent with her general 

practice, the doctor ordered a series of blood tests, including a blood alcohol level. An 

emergency room nurse drew defendant’s blood. In accordance with her usual practice,

the nurse cleaned defendant’s arm using a prep pad containing isopropyl alcohol (70%) 

and chlorhexidine before inserting the needle for the blood draw. In accordance with 

the hospital’s usual practice, the blood samples were labeled and tracked in the 

hospital’s computer system. The laboratory test revealed defendant’s blood alcohol 

concentration was 0.22 percent.

B. The Charges

The information contained two felony counts of driving under the influence. 

Count one charged defendant with a violation of Vehicle Code section 23153, 

subdivision (a), driving under the influence of alcohol. Count two charged defendant 

with a violation of Vehicle Code section 23153, subdivision (b), driving with a blood 

alcohol level of 0.08 percent. As to both counts, the information alleged defendant 

inflicted great bodily injury on the two victims within the meaning of Penal Code 

section 12022.7, subdivision (a), rendering both counts serious felonies within the 

meaning of Penal Code section 1192.7, subdivision (c)(8). The information further 

alleged one strike prior (Penal Code, § 667, subds. (b)-(j), § 1170.12) and one serious 

felony prior (Penal Code, § 667, subd. (a)(1)).
4

C. Defendant’s Motion in Limine to Exclude the Hospital’s 

Blood Alcohol Test Result

Prior to trial, defendant moved to exclude the blood alcohol test result on the 

ground the hospital laboratory did not comply with regulations applicable to forensic 

laboratories (Cal. Code Regs., tit. 17, § 1215 et seq. [“Group 8 regulations”]). 

Defendant acknowledged hospital laboratories are not required to follow Group 8 

regulations, but argued blood alcohol analysis performed for medical purposes is 

unreliable—and therefore inadmissible in a criminal proceeding—to the extent it does 

not comply substantially with those regulations.

1

 More particularly, defendant 

complained the hospital’s blood alcohol analysis method, which uses plasma rather than 

whole blood, is not generally accepted in the community of forensic scientists.

At the hearing on the motion conducted under Evidence Code section 402, the 

parties stipulated to several foundational facts, including: the hospital is not a forensic 

laboratory licensed under Group 8 regulations; the hospital did not retain defendant’s 

blood sample for one year after collection; the blood alcohol analysis was not performed 

by a licensed forensic alcohol analyst; the hospital used an enzymatic method of 

analysis performed on blood plasma to obtain the blood alcohol level; and, the hospital 

did not run a duplicate test to confirm the blood alcohol level.

Each side presented testimony regarding the reliability and accuracy of the 

hospital’s blood alcohol test result. Defendant offered expert testimony by 

Dewayne Beckner, a forensic chemist who worked for the Los Angeles County 

Sheriff’s Department for more than 25 years, regarding the Department of Health 

Services regulations applicable to forensic laboratories, as well as standard blood 

alcohol testing protocols used in forensic laboratories. Beckner explained forensic 

laboratories always test a blood sample twice, in order to ensure accurate results. 

 

1 Hospital laboratories are considered clinical laboratories rather than forensic 

laboratories. The regulations applicable to clinical laboratories (“Group 2 regulations”) 

are found in a different section of Title 17. (See Cal. Code Regs., tit. 17, 

§ 1029.5 et seq.)
5

Further, forensic laboratories use whole blood, rather than plasma, to test blood alcohol

concentration. Beckner explained that when plasma is separated from blood cells and 

platelets, the alcohol in the blood stays with the plasma, resulting in a higher alcohol 

concentration in the plasma sample as compared to an equal amount of whole blood. 

Accordingly, blood alcohol tests performed on plasma generally yield results that are 

significantly higher than results performed on whole blood. Beckner also indicated the 

degree of increased alcohol concentration is difficult to predict and can range between 

10 and 30 percent; for that reason, Beckner explained, enzymatic analysis is considered 

unreliable for forensic purposes.

The People presented testimony by clinical laboratory scientist Nancy

Wybel-Davis, the administrative director of the hospital’s laboratory. She summarized 

the licenses the hospital maintains as a clinical laboratory as well as some of the quality 

control and equipment testing procedures the hospital follows to ensure the accuracy of 

its laboratory test results. Specifically, she explained the hospital’s lab is accredited by 

the College of American Pathologists (CAP), which she indicated has the highest 

standards for lab proficiency in the country. As part of the accreditation process, CAP 

sends its member laboratories samples several times a year; the laboratories test the 

samples and send the results to CAP for evaluation. CAP then issues reports evaluating 

the participating laboratories concerning the accuracy of their test results. Wybel-Davis 

reviewed the 2013 CAP report regarding alcohol testing. The hospital received 

a 100 percent score for each of the three tests it participated in during 2013. 

Wybel-Davis also noted the mean blood alcohol level for enzymatic testing was very 

close to the mean blood alcohol level for gas chromatography (the method used by 

forensic laboratories), which she said indicated the two different test methods were 

comparable.

On the basis of this evidence, the court denied defendant’s motion to exclude the 

hospital’s blood alcohol test result. The court observed the Department of Health 

Services adopted separate regulatory and licensing schemes for clinical laboratories 

(Group 2) and forensic laboratories (Group 8). Although the requirements are different, 
6

both sets of regulations had “the objective of ascertaining as accurately and carefully as 

possible the amount of alcohol in a person’s blood.” The court also noted there was 

room for disagreement about which scheme was “better suited to achieve correctness.” 

Ultimately, however, the court found “there is no basis to preclude the introduction of 

the test result[ ] and that, at least up to this point, there appears to be compliance with 

the mandates required for the licensing of the hospital involved.”

D. The People’s Request to Exclude Evidence and Testimony 

Regarding Forensic Laboratory Regulations

At the outset of the trial proceedings, the People moved to exclude the Group 8 

regulations under Evidence Code section 352. The prosecutor expressed concern that 

defendant would elicit testimony and present other evidence regarding the forensic 

laboratory regulations as well as the hospital’s failure to comply with them. The 

prosecutor argued that in light of the court’s recognition that Group 8 regulations do not 

apply in the clinical laboratory setting, defendant’s anticipated approach would likely 

confuse and mislead the jury. Defendant maintained the jury was entitled to know 

about the Group 8 regulations as well as the hospital’s failure to comply with them.

The court expressed its concern that allowing evidence regarding the forensic lab 

regulations would require “the testimony of experts about a law that has no application 

to the underlying facts,” and would also require the People to introduce testimony 

regarding Group 2 regulations applicable to clinical laboratories such as the hospital’s 

laboratory. Accordingly, the court granted the People’s motion, finding evidence 

regarding the Group 8 regulations would be unduly time consuming, confusing to the 

jury, and would have no probative value because the regulations did not apply to the 

hospital.

E. Trial Testimony Regarding the Hospital’s Blood Alcohol Test Result

1. The People’s evidence

The People presented testimony by hospital personnel who participated in 

defendant’s care and treatment at the hospital after the accident, as well as the 

laboratory personnel that performed the analysis of defendant’s blood. As relevant here, 
7

the trauma surgeon ordered a panel of blood tests, including a blood alcohol level, upon 

defendant’s admission to the hospital. A registered nurse drew a blood sample from 

defendant in the emergency room. In the hospital’s laboratory, a phlebotomist placed 

a vial of defendant’s blood in a centrifuge and separated the blood cells and platelets 

from the plasma. A clinical laboratory scientist then placed the vial of separated blood 

into a machine called a Dimension RxL (RxL) which measured the amount of alcohol in 

defendant’s blood plasma using an enzyme-based testing process. According to the 

hospital’s records, the RxL measured defendant’s blood alcohol level at 215 milligrams 

per deciliter. Rounded and converted to a percentage, the test showed defendant’s 

blood alcohol concentration was 0.22 percent. In accordance with the hospital’s usual 

practice, defendant’s blood samples were destroyed after one week.

The hospital’s laboratory administrator, Nancy Wybel-Davis, also testified at 

trial as she had during the hearing on defendant’s motion in limine. Wybel-Davis again 

explained the licensure and accreditation requirements for clinical laboratories, and

described the hospital’s participation in the semi-annual quality control program 

monitored by CAP. In addition, Wybel-Davis described the more frequent quality 

control procedures used by the hospital to ensure the reliability of the RxL machines. 

Specifically, she explained that on a daily basis, the hospital laboratory scientists test 

samples provided by an independent monitoring company, and then the hospital sends 

its test results to the company for analysis. As in the CAP program, the independent 

company compares the hospital’s test results with the results of other laboratories 

participating in the program. On the day the hospital treated defendant, the RxL used to 

test his blood for alcohol content scored within the accepted range.

On cross-examination, Wybel-Davis acknowledged the quality control testing 

done in the hospital laboratory is performed on a clear sample, rather than on human 

blood. She confirmed the hospital maintains a clinical laboratory, not forensic 

laboratory, and as such, the hospital is not required to follow Group 8 regulations. 

Further, she explained that the hospital laboratory uses an enzyme testing method to 

determine blood alcohol concentration, rather than the gas chromatograph method used 
8

by forensic laboratories. Finally, she confirmed the hospital laboratory tests a patient’s 

blood solely for medical purposes.

In addition, the People presented an expert witness, Vina Spiehler, a forensic 

pharmacologist who is board certified in forensic toxicology. Spiehler offered several 

significant opinions in this case. First, she explained that the machine used by the 

hospital to measure blood alcohol (Dimension RxL) is very accurate in measuring blood 

alcohol content and compares well to other methods used to measure blood alcohol. 

Spiehler indicated that the RxL adds an enzyme to a sample of blood plasma to 

determine the amount of alcohol present in the blood. Specifically, the machine 

measures the amount of light that can shine through a plasma sample. Then, it adds an 

enzyme which reacts with and binds to any alcohol in the sample. After allowing the 

enzyme time to react, the machine shines a light through the sample a second time. The 

decrease in light penetration is used by the machine to calculate the alcohol level in the 

sample. As compared to gas chromatography, the preferred method in forensic 

laboratories, Spiehler said the RxL has a correlation of 0.989, which she described as 

“a good correlation.”

Second, Spiehler acknowledged alcohol levels in plasma are typically 15 to 

20 percent higher than the levels found in whole blood because all the alcohol in a blood 

sample stays with the plasma as the blood is separated in a centrifuge. In order to 

convert the result obtained from a plasma sample into a whole blood equivalent, 

Speihler generally divides the result by 1.18, a number derived from scientific studies. 

According to Speihler, although the raw data indicated defendant’s blood plasma 

alcohol level was 0.22 percent, in her opinion his whole blood alcohol level was most 

likely 0.19 percent, but could have been anywhere in the range of 0.16 to 0.21 percent. 

On cross-examination, Spiehler conceded defendant’s blood alcohol level could have 

been slightly lower, in the range of 0.159 to 0.195 percent.

Third, Speihler explained that the RxL measures ethanol, the type of alcohol 

found in alcoholic beverages such as wine, beer and spirits. By design, the machine 

does not register other types of alcohol, such as isopropyl alcohol, which is rubbing 
9

alcohol. Accordingly, the RxL’s blood alcohol test results would not be impacted by 

alcohol used topically, and as part of a normal clinical procedure.

Finally, Spiehler commented on the differences between forensic laboratory 

practices and clinical laboratory practices. For nearly seven years, Spiehler worked for 

the Orange County Crime Lab and investigated deaths caused by drunk driving. She 

explained that forensic laboratories take a different approach to blood alcohol testing in 

that they analyze whole blood, they generally run more than one test to determine the 

alcohol level in a sample, and they retain samples for at least one year to allow law 

enforcement and/or a defendant to perform additional tests on the sample. Spiehler 

indicated the forensic laboratory approach is probably the best practice, and that it 

would also be best practice to confirm a blood alcohol level obtained by enzymatic 

testing by performing a second test using a different method of analysis. She also 

conceded that when a laboratory only runs one test on a sample, she would have 

“perhaps not as high a level of confidence in the result as you’d have if you did more on 

it.”

2. Defendant’s evidence

Defendant again presented testimony by Dewayne Beckner, an expert forensic 

chemist. As he did at the hearing on defendant’s motion in limine, Beckner highlighted 

the differences between forensic and clinical laboratory procedures. In Beckner’s 

opinion, the enzymatic method used by the hospital is not used in any crime lab in 

California because “it’s not forensically reliable.” Beckner further criticized the 

hospital on several grounds. First, he stated daily machine testing would be inadequate 

in the forensic setting, where machines are tested before, during and after every test. 

Second, he criticized the methodology used by CAP because it evaluates laboratories on 

their accuracy in comparison to other laboratories performing the same test, whereas 

forensic laboratories measure their performance against an absolute standard. Further, 

based upon his review of the CAP 2013 alcohol test results, he stated although CAP 

deemed the hospital’s results to be “acceptable,” the hospital’s test results were not 
10

within five percent of the mean. In his view, that level of variation would not be 

acceptable in the forensic laboratory setting.

Beckner also explained several differences between the enzymatic testing 

method used by the hospital and the gas chromatography method used by forensic 

laboratories. In his view, the hospital’s method is susceptible to contamination through 

the topical use of alcohol to clean a patient’s skin immediately before inserting a needle 

to collect a blood sample. Further, the size of test sample used by the RxL is too small 

to get a forensically reliable result. Beckner also challenged the hospital’s practice of 

destroying a blood sample after one week. In his opinion, the better practice, and the 

one used by forensic laboratories, is to maintain a sample for at least one year so it can 

be retested. For all those reasons, Beckner stated he had “no forensic confidence at all” 

in the hospital’s blood alcohol test result.

F. Verdict and Sentencing

The jury found defendant guilty on both counts and found the allegations 

regarding serious bodily injury true as to both victims. Prior to sentencing, defendant 

brought a Romero motion seeking to strike his prior serious felony conviction. The 

court denied the motion and imposed the sentence as follows. On count one, the court 

selected the mid-term base sentence of two years, which it doubled due to the prior 

felony conviction (Pen. Code, § 1170.12, subd. (c)(1)), resulting in a base term of four 

years. The court imposed two three-year enhancements due to the serious bodily injury 

of the victims (Pen. Code, § 12022.7, subd. (a)) and an additional five year 

enhancement due to the prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), 

all to run consecutively for a total sentence of 15 years imprisonment in state prison. 

The court stayed the conviction and related enhancements on count two under Penal 

Code section 654. The court ordered a restitution fine of $300 (Pen. Code, § 1202.4, 

subd. (b)) and restitution to the victims in an amount to be determined (Pen. Code, 

§ 1202.4, subd. (f)). The court also awarded a total custody credit of 183 days, 

comprised of 159 days of actual custody and 24 days of good time credit.
11

CONTENTIONS

Defendant contends the trial court erred by excluding Group 8 regulations under 

Evidence Code section 352, refusing to give defendant’s proposed pinpoint instruction 

relating to Group 8 regulations, and refusing to instruct the jury it could consider the 

hospital’s noncompliance with Group 8 regulations in evaluating the blood test result.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion By Excluding

Inapplicable Regulations Under Evidence Code § 352.

Defendant contends the court erroneously excluded under Evidence Code 

section 352 evidence and testimony regarding Group 8 regulations applicable to 

forensic laboratories. We disagree.

“ ‘ “It is within a trial court’s discretion to exclude evidence if its probative value 

is substantially outweighed by the probability that its admission would create 

a substantial danger of undue prejudice. (Evid. Code, § 352.) Our review on this issue

is deferential. A trial court’s decision whether to exclude evidence pursuant to 

Evidence Code section 352 is reviewed for abuse of discretion.” ’ [Citation.]” (People 

v. Pearson (2013) 56 Cal.4th 393, 457.) Here, the court found the Group 8 regulations 

applicable to forensic laboratories had no probative value because they did not apply to 

the hospital, which maintained a clinical laboratory. The court was correct. Under 

Health and Safety Code section 100700, “laboratories engaged in the performance of 

forensic alcohol analysis tests by or for law enforcement agencies on blood, urine, 

tissue, or breath for the purposes of determining the concentration of ethyl alcohol in 

persons involved in traffic accidents or in traffic violations shall comply with Group 8 

(commencing with Section 1215) of Subchapter 1 of Chapter 2 of Division 1 of Title 17 

of the California Code of Regulations . . . . ” (Health & Saf. Code, § 100700, 

subd. (a)(1).) It is undisputed the hospital is not a forensic laboratory; it is a clinical 

laboratory and as such it is subject to the regulations set forth in Group 2 (commencing 

with section 1029.5) of the same section of Title 17.
12

The court also concluded if it allowed defendant to present evidence and 

testimony regarding the inapplicable regulations, two results were likely. First, the 

People would be required to present evidence and testimony regarding the applicable 

Group 2 regulations, which would render the entire subject unduly time consuming. 

Second, it was likely the jury would be misled or confused if defendant presented 

evidence about Group 8 regulations applicable to forensic laboratories and then the 

court instructed the jury that those regulations do not apply to clinical laboratories, such 

as the laboratory maintained by the hospital. Accordingly, the court excluded the 

Group 8 regulations as irrelevant. We see no error in the court’s reasoning. (See

People v. Rippberger (1991) 231 Cal.App.3d 1667, 1689-1690 [approving trial court’s 

decision to exclude under Evidence Code § 352 evidence of statutes and regulations 

from other states regarding Christian Science health practices due to lack of probative 

value, undue consumption of time, and potential to mislead and confuse the jury].)

Defendant argues the court’s ruling was extremely prejudicial because it 

prevented him “from presenting the core of his defense, i.e., that the hospital’s protocols 

fell far short of the stricter procedures applied statewide to all forensic alcohol 

laboratories and, in turn, the reliability of the hospital’s lab result was subject to doubt.” 

In so arguing, defendant overstates the scope and impact of the court’s ruling. Although 

the court excluded testimony and references to Group 8 regulations, it did not prevent 

the defendant from exploring the broader issue—the different standards of practice used 

by clinical laboratories and forensic laboratories. Indeed, defendant challenged the 

reliability of the hospital’s blood test result on that basis throughout the trial.

In opening statements, for example, defense counsel focused on the higher level 

of alcohol found in plasma as compared to whole blood: “[T]hey didn’t analyze whole 

blood. What they did was they centrifuge it out. It goes around real fast, and red blood 

cells settle to the bottom of the vial and there’s liquid at the top. There’s always going 

to be more alcohol in the liquid in the top of the sample.” He then criticized the 

hospital’s use of enzyme-based testing, which he argued is not as precise as gas 

chromatography: “Here the People are going to use a number. They don’t know what 
13

the number is. They can just give you a range of what their expert thinks it must have 

been because they never analyzed whole blood.” Then during trial, as described in 

detail ante, defense counsel elicited testimony from hospital employees regarding their 

practices related to the blood draw and testing, including the topical use of isopropyl 

alcohol in defendant’s skin prior to the blood draw. Defense counsel also questioned 

the People’s expert, Vina Spiehler, regarding the practices used by forensic laboratories 

as compared to the practices used in clinical laboratories, eliciting testimony suggesting 

the best practices in forensic laboratories are more rigorous and more reliable than those

used at hospitals. Perhaps most importantly, defendant presented expert testimony 

criticizing the standards of practice used at the hospital. As summarized ante, the 

defense expert, Beckner, testified that the hospital’s blood test results had “no forensic 

reliability” because the hospital does not follow the standard practices of forensic 

laboratories.

Finally, defense counsel emphasized the point during closing argument: “So 

let’s talk about the blood for a minute. I throw this out. I think it’s self-evident that if 

you’re asking a jury to convict somebody of a serious crime that they should do it right 

with the people that are analyzing the blood in this case, should do it right.” Counsel 

then reminded the jury the hospital staff applied alcohol topically before drawing the 

blood and, further, used an enzymatic analysis method which was inaccurate in that it 

identifies a range rather than a precise blood alcohol level. He went on to criticize the 

proficiency testing used for accreditation purposes: “[T]he proficiency tests that were 

mentioned by [the prosecutor] would never pass muster, would never come close to 

passing muster in a forensic laboratory. They’re outside of 5% on three of their five 

[test results].” Then, in addition to criticizing the hospital for testing defendant’s blood 

sample only once, as opposed to twice as is required in a forensic laboratory, counsel 

concluded: “My point is this: They’re held to much looser standards than a forensic 

alcohol laboratory is.” The record before us demonstrates defendant was allowed to, 

and did, challenge the hospital’s blood test result because it did not comply with the 

standards of practice used by forensic laboratories. The existence and content of the 
14

Group 8 regulations themselves, which was the subject of the court’s exclusionary 

order, would have added little, if any, weight to defendant’s argument.

In short, we see no error in the court’s decision to exclude evidence relating to 

the regulations applicable to forensic laboratories under Evidence Code section 352. 

Assuming the court did err in some fashion, the error was harmless.

B. The Trial Court Properly Refused To Give Defendant’s Proposed

Pinpoint Instruction Regarding Forensic Laboratory Regulations

Defendant contends the court erred by refusing to give his proposed pinpoint 

instruction regarding Group 8 regulations. We disagree.

“ ‘It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by the 

evidence. [Citations.] The general principles of law governing the case are those 

principles closely and openly connected with the facts before the court, and which are 

necessary for the jury’s understanding of the case.’ [Citations.]” (People v. Diaz

(2015) 60 Cal.4th 1176, 1189; see also Pen. Code, § 1127 [“Either party may present to 

the court any written charge on the law, but not with respect to matters of fact, and 

request that it be given. If the court thinks it correct and pertinent, it must be given; if 

not, it must be refused”].) The propriety of jury instructions is a legal question we 

review de novo. (People v. Leeds (2015) 240 Cal.App.4th 822, 830.)

“Under appropriate circumstances, ‘a trial court may be required to give 

a requested jury instruction that pinpoints a defense theory of the case by, among other 

things, relating the reasonable doubt standard of proof to particular elements of the 

crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is 

argumentative [citation], merely duplicates other instructions [citation], or is not 

supported by substantial evidence [citation].’ [Citation.]” (People v. Coffman and 

Marlow (2004) 34 Cal.4th 1, 99.) Here, the defendant requested a lengthy pinpoint

instruction which quoted six of the Group 8 regulations. The instruction would have 

advised the jury, for example, that Group 8 regulations require collection of enough 

blood to permit duplicate testing, prohibit topical use of alcohol to clean the skin surface 
15

before taking the blood sample, and require blood sample retention for one year. As we 

explained ante, these regulations did not apply to the hospital. Accordingly, the 

proposed instruction did not state “principles of law governing the case,” as required. 

Further, the requested instruction was plainly argumentative, in that it emphasized 

defendant’s contention the hospital should have been held to the purportedly higher 

standards of practice applicable to forensic laboratories. For both these reasons, we 

conclude the court properly refused the pinpoint instruction.

C. The Trial Court Was Not Required To Give The Optional 

Language in CALCRIM Instructions Nos. 2100 and 2101 Regarding 

Title 17 Regulatory Compliance

Finally, defendant contends the court erred by refusing to instruct the jury it 

could consider the hospital’s failure to comply with Group 8 regulations when it 

considered the hospital’s blood alcohol test result. We disagree.

The court properly instructed the jury regarding the elements of the two felony 

offenses using CALCRIM No. 2100 [driving under the influence] and 2101 [driving 

with a blood alcohol level of 0.08%]. As given, CALCRIM No. 2100 sets forth four 

elements the prosecution must prove beyond a reasonable doubt: “(1) The defendant 

drove a vehicle; (2) When he drove a vehicle, the defendant was under the influence of 

an alcoholic beverage; (3) While driving a vehicle under the influence, the defendant 

also committed an illegal act or neglected to perform a legal duty; and (4) The 

defendant’s illegal act or failure to perform a legal duty caused bodily injury to another 

person.” The instruction goes on to provide in pertinent part: “A person is under the 

influence if, as a result of drinking or consuming an alcoholic beverage, his or her 

mental or physical abilities are so impaired that he or she is no longer able to drive 

a vehicle with the caution of a sober person, using ordinary care, under similar 

circumstances. [¶ ] . . . [¶] If the People have proved beyond a reasonable doubt that 

the defendant’s blood alcohol level was 0.08 percent or more at the time of the chemical 

analysis, you may, but are not required to, conclude that the defendant was under the 

influence of an alcoholic beverage at the time of the alleged offense.”
16

CALCRIM No. 2101 contains identical language regarding the elements of that

offense, except that element 2 is more specific, requiring the prosecution to prove “the 

defendant’s blood alcohol level was 0.08 percent or more by weight.” In terms of the 

standard of proof, CALCRIM No. 2010’s language is similar to CALCRIM No. 2100, 

providing: “If the People have proved beyond a reasonable doubt that a sample of the 

defendant’s blood was taken within three hours of the defendant’s driving and that 

a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, 

you may, but are not required to, conclude that the defendant’s blood alcohol level was 

0.08 percent or more at the time of the alleged offense.”

Defendant does not argue these instructions were incorrect. Instead, he contends 

the court erred when it refused to give an optional paragraph found in both of the pattern 

CALCRIM instructions. Specifically, defendant requested the court to instruct the jury: 

“ ‘In evaluating any test results in this case, you may consider whether or not the person 

administering the test or the agency maintaining the testing device followed the 

regulations of the California Department of Health Services.’ ” (CALCRIM Nos. 2100, 

2101.) Further, and as already noted, defendant requested the court give a special 

pinpoint instruction containing the text of several Group 8 regulations. Taken together 

those instructions would have advised the jury it could consider the hospital’s failure to 

comply with Group 8 regulations when it considered the weight of the blood alcohol test 

result.

In order to evaluate defendant’s instructional error claim, we summarize relevant 

law regarding the regulations applicable to blood alcohol tests conducted by or for law 

enforcement, and the legal effect of noncompliance with those regulations. The 

optional language in CALCRIM Nos. 2100 and 2101 was derived from two cases:

People v. Adams (1976) 59 Cal.App.3d 559, 567 (Adams) and People v. Williams

(2002) 28 Cal.4th 408, 417 (Williams). The issue presented in those cases was whether 

law enforcement’s failure to comply with Group 8 regulations governing breath tests 

rendered the test results inadmissible under Evidence Code section 402.
17

In Adams, the defendants asked the court to exclude the results of a breath test 

which failed to strictly comply with the applicable regulation regarding equipment 

calibration. In analyzing the issue, the court first noted the prevailing view that breath 

tests are considered a reliable means to determine blood alcohol concentration, so long 

as the general foundational requirements for admissibility of testing results are met. 

(People v. Adams, supra, 59 Cal.App.3d at p. 561 [noting admissibility requirements 

“are that (1) the particular apparatus utilized was in proper working order, (2) the test 

used was properly administered, and (3) the operator was competent and qualified”].) 

Further, although the applicable regulations provided “ ‘the testing of breath samples by 

or for law enforcement agencies for purposes of determining the concentration of ethyl 

alcohol in the blood of persons involved in traffic accidents or in traffic violations shall 

be performed in accordance with’ ” the regulatory standards, the regulations did not 

indicate whether or to what extent noncompliant test results would be admissible in 

criminal proceedings. (Id. at p. 562.) The court cited Evidence Code section 351, 

which “favor[s] admissibility [of evidence] in the absence of a contrary expression in 

a statute,” and ultimately concluded “noncompliance goes merely to the weight of the 

evidence. The regulations are an expressed standard for competency of the test results; 

in effect, they are a simplified method of admitting the results into evidence.” (Adams, 

supra, at pp. 565, 567.) Although the court indicated the defendants “were entitled to 

attempt to discredit the results by showing that noncompliance affected their validity,” 

the court rejected the defendants’ contention “that such noncompliance inherently and 

automatically rendered the machine unreliable and the test results worthless,” holding 

that so long as the general indicia of reliability are present, test results obtained by law 

enforcement without regulatory compliance are admissible. (Id. at p. 567.)

The Supreme Court later adopted Adams, noting “[e]ssential to Adams was the 

principle that admissibility depends on the reliability and consequent relevance of the 

evidence, not the precise manner in which it was collected. Compliance with 

regulations is sufficient to support admission, but not necessary. Noncompliance goes 

only to the weight of the evidence, not its admissibility. [Citation.]” (Williams, supra,
18

28 Cal.4th at p. 414.) The court further clarified that “although the regulations are 

a standard of competency, they are not the only standard.” (Id. at p. 416.) The court 

held “breath test results are admissible upon a showing of either compliance with 

title 17 or the foundational elements of (1) properly functioning equipment, 

(2) a properly administered test, and (3) a qualified operator . . . . ” (Id. at p. 417.)

Adams and Williams stand for the proposition that compliance with applicable 

regulations is a means of establishing the reliability of test results under Evidence Code 

section 402; failure to comply with applicable regulations may be used at trial to cast 

doubt on the reliability of the test results. But Adams and Williams do not hold (and 

cannot reasonably be read to mean) failure to comply with inapplicable regulations 

indicates test results are not reliable. The court was under no obligation to instruct the

jury on that unsound theory.

Defendant also maintains “[t]he trial court would not allow the jurors to consider 

that lack of compliance [with Group 8 regulations] when deciding the weight to be 

afforded the test results.” First, defendant blurs the distinction between regulations and 

standards of practice. The court excluded evidence of the regulations only, and did not 

prevent defendant from exploring the more pertinent issue to his defense, namely the 

purportedly heightened standards of practice used by forensic laboratories, as compared 

to the hospital laboratory. As explained ante, defendant had ample opportunity to 

exploit that argument at trial.

Second, and in any event, the instructions made clear the People needed to prove 

each element of the offense beyond a reasonable doubt and made clear the hospital’s 

test results were not conclusive on the issue of intoxication. On count one, the second 

element required the People to prove that “when he drove the vehicle, the defendant was 

under the influence.” After describing generally that a person is under the influence if 

his or her mental abilities were so impaired that he or she could no longer drive 

a vehicle with the caution of a sober person using reasonable care, the instruction then 

stated “[i]f the People have proved beyond a reasonable doubt that the defendant’s

blood alcohol level was 0.08% or more at the time of the chemical analysis, you may, 
19

but are not required to, conclude that the defendant was under the influence of an 

alcoholic beverage at the time of the alleged offense.” The second charge, driving with 

a blood alcohol level of 0.08% or above, contained similar language on this point. 

These instructions advised the jury that it had to find beyond a reasonable doubt 

defendant was under the influence at the time of the accident, and that the hospital test 

result was relevant but not conclusive on that point. As the triers of fact, the jurors had 

the right to reject the test result. Accordingly, the court’s refusal to give the optional 

paragraphs in the pattern instructions did not impermissibly remove the issue of 

reliability from the jury, as defendant asserts.

Defendant also cites Evidence Code section 403 and seems to suggest the trial 

court “was required to instruct the jury to determine whether the hospital protocols were 

reliable and to disregard the test result unless they found the test to be reliable.” 

Although defendant couches his argument as an attack on jury instructions, it appears 

defendant believes the jury should have been asked to make a specific factual finding 

regarding the blood test’s reliability. But defendant’s cited authority, Evidence Code 

section 403, governs the admissibility of evidence, not special jury findings or jury 

instructions. “When . . . the relevance of evidence depends on the existence of 

a preliminary fact, the proffered evidence is inadmissible unless the trial court finds 

there is sufficient evidence to sustain a finding of the existence of the preliminary fact. 

(Evid. Code, § 403, subd. (a)(1).) That is, the trial court must determine whether the 

evidence is sufficient for a trier of fact to reasonably find the existence of the 

preliminary fact by a preponderance of the evidence. [Citation.] ‘The court should 

exclude the proffered evidence only if the “showing of preliminary facts is too weak to 

support a favorable determination by the jury.” ’ [Citation.] A trial court’s decision as 

to whether the foundational evidence is sufficient is reviewed for abuse of discretion. 

[Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1120, disapproved on another 

point by People v. Rundle (2008) 43 Cal.4th 76, 114.) As best we can discern, 

defendant suggests the jury was required to find, as a preliminary fact, that the test was 

reliable. However, defendant cites no authority suggesting the jury is required to make 
20

an explicit factual finding as to reliability, nor has he demonstrated he requested that the 

jury make such a finding. In the absence of relevant authority or factual support, we 

reject the defendant’s argument. (See, e.g., Cal. Rules of Court, rule 8.204(a); Pringle 

v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003, fn. 2 [appellant must provide 

sufficient citations to record; contentions waived when there is a lack of reasoned 

argument and citation to authority]; Badie v. Bank of America (1998) 67 Cal.App.4th 

779, 784-785 [“When an appellant fails to raise a point, or asserts it but fails to support 

it with reasoned argument and citations to authority, we treat the point as waived”].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

HOGUE, J.

*

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.