
    Appellate Division, Superior Court, San Bernardino.
    [Crim. A. No. 1441.
    July 15, 1985.]
    THE PEOPLE, Plaintiff and Respondent, v. DOROTHY ELEANOR LYON, Defendant and Appellant.
    
      Counsel
    David L. McKenna, Public Defender, and George E. Thompson, Deputy Public Defender, for Defendant and Appellant.
    
      Dennis Kottmeier, District Attorney, and Denice Brue, Deputy District Attorney, for Plaintiff and Respondent.
   Opinion

CAMPBELL, J.

Defendant, herein appellant, appeals from the conviction of violation of Vehicle Code section 23152, subdivision (a) (driving under the influence of alcohol).

The sole issue on appeal is whether or not the trial court erred in denying appellant’s motion to suppress the results of the breath test. (Pen. Code, § 1538.5.) It is conceded that the officer who offered the appellant her choice of tests pursuant to Vehicle Code section 13353 did not comply with the provisions of Vehicle Code section 13353.5, specifically, he did not advise appellant that the breath-testing equipment does not retain a sample, and that, therefore, she had the right to provide a blood or urine sample which could have been tested by either party. Vehicle Code section 13353.5 was enacted as an urgency statute effective September 15, 1983, in response to People v. Trombetta (1983) 142 Cal.App.3d 138 [190 Cal.Rptr. 319], which held at page 144 “Due process demands simply that where evidence is collected by the state, as it is with the intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. ”

California Constitution, article I, section 28, subdivision (d), was enacted by the people as a portion of Proposition 8 on June 8, 1982 and provides inter alia, “. . . relevant evidence shall not be excluded in any criminal proceedings, including pretrial . . . motions.” Article I, section 28, subdivision (d), eliminated “a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, . . . except to the extent that exclusion remains federally compelled. (In re Lance W. (1985) 37 Cal.3d 873 at pp. 886-887 [210 Cal.Rptr. 631, 694 P.2d 744], latter italics added.)

In 1984 the United States Supreme Court reversed the Trombetta case, holding “that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce breath-analyses tests at trial.” (California v. Trombetta (1984) 467 U.S. 479, at p. 491 [81 L.Ed.2d 413 at p. 423, 104 S.Ct. 2528].) The court held that the process is not fundamentally unfair since defendants are not “without alternative means of demonstrating their innocence,” by way of impeaching the accuracy of the intoxilyzer. (Id., at p. 490 [81 L.Ed.2d at p. 423].) “The evidence to be presented at trial was not the breath itself but rather the [i]ntoxilyzer results obtained from the breath samples.” (Id., at p. 488 [81 L.Ed.2d at p. 421].)

Appellant argues that states are free to set a more stringent due process standard and that California has done so by the enactment of Vehicle Code section 13353.5. The statute’s language is phrased as a mandatory procedure by the operative word “shall.” Courts will ordinarily refuse to construe the plain meaning of statutes. Nevertheless, it is well settled that courts decline “to follow the plain meaning of a statute . . . when it would inevitably have frustrated the manifest purposes of the legislation as a whole or led to absurd results.” (People v. Belleci (1979) 24 Cal.3d 879, 884 [157 Cal.Rptr. 503, 598 P.2d 473].)

It is clear that the Legislature did not intend the statute to raise additional barriers to the admissibility of intoxilyzer testing. The constitutional provision of article I, section 28, subdivision (d), clearly prohibits the exclusion of evidence beyond that required by the supremacy clause of the United States Constitution. (California v. Trombetta, supra, 467 U.S. 479; In re Lance W., supra, 37 Cal.3d 873; see also People v. Mills (1985) 164 Cal.App.3d 652 [210 Cal.Rptr. 669]; and People v. Bran-non (1973) 32 Cal.App.3d 971 [108 Cal.Rptr. 620].)

When viewed in the light of California Constitution, article I, section 28, subdivision (d), and the legislative history of Vehicle Code section 13353.5, it is clear that Vehicle Code section 13353.5 does not have the effect of setting a due process standard higher than that of the federal Constitution. Since the breath test itself was legally obtained, the appellant has shown no due process violation requiring the prophylactic remedy of the exclusionary rule. The trial court properly denied appellant’s motion to suppress.

(The result we reach should not be construed as approving or condoning individual noncompliance by law enforcement officers under Veh. Code, § 13353.5.)

Judgment of conviction is affirmed.

Simmons, P. J., and Cranmer, J., concurred. 
      
       Vehicle Code section 13353.5 provides in pertinent part: “(a) In addition to the requirements of Section 13353, a person who chooses to submit to a breath test shall be advised before or after the test that the breath-testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later by the person or any other person. [¶] (b) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcoholic content of the person’s blood .... [¶] (c) The person shall also be advised that the blood or urine sample may be tested by either party in any criminal prosecution. ...”
     