People v. Buell
A144046
| Cal. Ct. App. | Oct 25, 2017Background
- Defendant Russell Buell pleaded guilty to felony DUI (VC §23152(b)) with three prior DUI convictions; sentenced to 16 months with 6 months suspended and placed on mandatory supervision with a condition prohibiting alcohol.
- Buell was enrolled in Marin County’s Continuous Alcohol Monitoring Program and fitted with an AMS transdermal alcohol monitoring ankle bracelet.
- AMS generated an alert for a large TAC (transdermal alcohol concentration) spike and a tamper event on Dec. 7–8, 2014; AMS confirmed the event as a consumption violation and produced a client noncompliance report including TAC, temperature, and IR distance graphs.
- At the revocation hearing the prosecution’s sole witness, the probation lead case manager Shelley Mays, testified about the AMS report, explained device function, and relied on AMS’s conclusion that the spike represented alcohol consumption with tampering.
- The trial court found Buell violated supervision, revoked mandatory supervision, and ordered him to serve the remaining 161 days in custody; Buell appealed arguing insufficient evidence and ineffective assistance for failing to object under Kelly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there substantial evidence to support revocation based on AMS report and Mays’s testimony? | AMS report and Mays’s testimony corroborated the TAC spike and tamper—sufficient for preponderance. | AMS conclusion was hearsay/unreliable and smaller prior spikes undercut the consumption finding. | Yes. Graph showed a markedly larger spike plus tamper; Mays corroborated AMS; substantial evidence supports revocation. |
| Was the appeal moot because sentence was served? | People: moot because sentence completed. | Buell: not moot—violation remains on permanent record; appeal can remove stigma. | Not moot. Appeal considered on merits. |
| Was AMS report inadmissible hearsay lacking trustworthiness? | Hearsay with indicia of reliability is admissible in revocation proceedings; AMS report was generated in regular course and corroborated by data and Mays. | Report is uncorroborated hearsay and should not support revocation. | Report and testimony had sufficient indicia of reliability and corroboration; admissible. |
| Did counsel render ineffective assistance by failing to object under Kelly to scientific evidence? | Any Kelly objection would have failed: continuous alcohol monitoring generally accepted; Mays could have satisfied foundational showing of correct procedures. | Counsel was deficient for not forcing a Kelly hearing; prejudice likely. | No ineffective assistance: objection would have been futile and no reasonable probability of different outcome. |
Key Cases Cited
- People v. Kelly, 17 Cal.3d 24 (governs admissibility of new scientific techniques; two-step plus case-specific procedures requirement)
- People v. Maki, 39 Cal.3d 707 (hearsay with substantial guarantees of trustworthiness admissible in revocation hearings)
- Morrissey v. Brewer, 408 U.S. 471 (due process framework for parole/supervision revocation hearings)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance and prejudice)
- People v. Nolan, 95 Cal.App.4th 1210 (appeal of revocation not moot when violation stays on permanent record)
- People v. Brown, 215 Cal.App.3d 452 (discusses indicia of reliability for hearsay in revocation contexts)