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2010-03-26T18:50:00.000-07:00

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California Legal Team is a law firm dedicated to do everything they can to help their clients obtain the best possible outcomes in their DUI or Driving Under the Influence cases and specialize in representing clients in the Pasadena Courthouse.

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Attorney Profiles

2009-03-26T19:08:00.000-07:00

Attorney Profiles

Okorie Okorocha
Counsel
B.A., California State University Northridge
Juris Doctor, Whittier College, School of Law

Nick Okorocha
Of Counsel
B.A., University of California, Berkeley
Juris Doctor, Pepperdine University, School of Law

Angela Rooney
Of Counsel
B.A., University of Southern California
Juris Doctor, Thomas M Cooley Law School

Kimberly Frasca
Of Counsel
B.A., Providence College
Juris Doctor, Southwestern School of Law

Jan Beltran
Law Clerk

Morphew v. Department of Motor Vehicles (1982) 137 Cal.App.3d 738 , 188 Cal.Rptr. 126

2008-05-17T15:30:00.003-07:00

The department of Motor Vehicles (hereafter DMV) appeals from a
judgment of the Superior Court of Monterey County granting a
peremptory writ of mandate to vacate an order suspending respondent's
driver's license. fn. 1 Respondent has not filed a brief. We have
concluded that the order of [137 Cal.App.3d 740] the DMV was correct
and that the judgment of the superior court should be reversed.

At the administrative hearing before the DMV, Monterey Police Officer
Tognotti testified that at approximately 2 a.m. on January 25, 1980,
he noticed respondent Roy Morphew driving with excessive speed, rapid
acceleration, and without maintaining control of his vehicle.
Respondent displayed the typical symptoms of intoxication when he
exited his vehicle, that is, lack of balance, odor of alcohol, slurred
speech, and bloodshot eyes. Owing to uneven terrain at the location of
the stop, the arresting officer transported respondent to the police
station to perform the field sobriety test.

En route to the station, the officer advised respondent that he had a
choice between a blood, breath, or urine test, and that the officer
would read him something pertaining to the test when they arrived at
the station so that respondent could make up his mind.

Respondent failed the field sobriety test administered at the police
station. Thereupon, the officer attempted three times to read
respondent a statement explaining the provisions of Vehicle Code
section 13353. fn. 2 Respondent listened as the officer read. The
officer succeeded each time in reading one-quarter to one-half of the
statement, at which point respondent interrupted the officer by
approaching him and stating that he had passed the sobriety test. Each
time, the officer instructed respondent to return to the place where
he had been standing, and recommenced the admonishment. As respondent
interrupted the officer the third time, he approached the officer and
attempted to strike him with his fist. Officer Tognotti and another
officer restrained respondent and placed him in a cell. Before they
placed him in the cell, respondent, whose language was becoming very
abusive, said, "I am not going to take the fucking test." Officer
Tognotti considered respondent's behavior a refusal of the chemical
test. The officer never reached that portion of the statement that
explained that failure to submit to or to complete a chemical test
would result in a six-month suspension of the respondent's driver's
license. [137 Cal.App.3d 741]

Respondent denied that he was told he had a choice among three tests,
and denied that the officer ever attempted to read anything to him. He
claimed that after being placed in the holding cell, he asked about an
"alcohol content" test, but the officer ignored the question. He also
acknowledged that when he was put in the holding cell, he was very mad
and hostile, and took his boots off and beat on the plexiglass window.

Among its findings of fact, the trial court found: "(2) The arresting
officer never completed giving petitioner the instruction that his
failure to submit to or complete such a chemical test will result in
the suspension of his privilege to operate a motor vehicle for a
period of 6 months.

"(3) The arresting officer had sufficient opportunity to advise
petitioner that he would lose his license for 6 months if he failed or
refused to complete a chemical test; opportunity existed to advise
petitioner in the police car on the way to substation; and such
opportunity existed once at the substation.

"(4) Petitioner's own actions during a portion of his time at the
substation did not preclude the arresting officer from telling
petitioner that his failure to submit to or complete such a chemical
test will result in the suspension of his privilege to operate a motor
vehicle for a period of 6 months during a substantial period of time
while petitioner was in custody at the substation."

The court made the following conclusions of law: "(1) Pursuant to
California Vehicle Code § 13353, petitioner should have been told that
his failure to submit to or complete such a chemical test will result
in the suspension of his privilege to operate a motor vehicle for a
period of 6 months. [¶] (2) Suspension of petitioner's driving
privileges for his refusal to submit to a chemical test without such
an admonition is thus improper."

We recognize that the Courts of Appeal have disagreed as to whether
the "independent judgment" test is the applicable standard of review
for the superior court in administrative mandate proceedings following
suspension of a driver's license (cf. McConville v. Alexis (1979) 97
Cal.App.3d 593 , 601 [159 Cal.Rptr. 49], and McGue v. Sillas (1978) 82
Cal.App.3d 799 , 806 [147 Cal.Rptr. 354]), and that the question is
currently pending before the Supreme Court. (Berlinghieri v.
Department of Motor Vehicles (Cal.App.) hg. granted July 22, 1982.) We
need not address that issue, however, as the question here is not the
sufficiency of the evidence to support either the findings of the DMV
or the trial court. It is apparent from the transcript of the
proceeding before the trial court and from its findings that the court
believed that respondent did interrupt the reading of the admonition,
but concluded that despite those interruptions, the officer should
have persisted until he was able to inform respondent that his license
would be suspended if he refused a test. [137 Cal.App.3d 742] (1) The
question, then, is one of law: does section 13353 require an officer
to attempt repeatedly to admonish the person arrested, despite his
interruptions and other uncooperative conduct, until the arrestee is
willing to listen? We think not.

The implied consent statute, including section 13353, was enacted to
fulfill the need for a fair, efficient, and accurate system of
detection and prevention of drunken driving. (Hernandez v. Department
of Motor Vehicles (1981) 30 Cal.3d 70 , 77 [177 Cal.Rptr. 566, 634
P.2d 917].) One purpose of section 13353 is to administer one of the
prescribed chemical tests as soon as possible after arrest in order to
discover the suspect's blood alcohol content at the time he was
arrested, since alcohol in the blood system dissipates quickly. "'...
To be of any probative value the test must be "near" to the offense in
point of time. If it is not taken promptly after the arrest, it proves
nothing.' [Citations.]" (Skinner v. Sillas (1976) 58 Cal.App.3d 591 ,
599 [130 Cal.Rptr. 91].)

In Zidell v. Bright (1968) 264 Cal.App.2d 867 [71 Cal.Rptr. 111] the
inebriate refused to take the chemical test. The arresting officer
then left the station to resume other duties. Thirty to forty-five
minutes later, the inebriate stated that he had changed his mind and
would submit to a test. The arresting officer was called but refused
to return. (Id, at p. 869.) The court upheld the driver's license
suspension pursuant to section 13353, finding that "[i]t would be
inconsistent with the purpose of the statute to hold that either [the
arresting officer], or the officers on duty at the police station,
were required to turn aside from their other responsibilities and
arrange for administration of a belated test when once appellant had
refused to submit ...." (Id, at p. 870.)

The facts in Skinner v. Sillas, supra, 58 Cal.App.3d 591 are similar,
except that when respondent requested the test approximately four and
one-half hours after his initial refusal, a police officer other than
the arresting officer did administer the test. (Id, at p. 598.)
Nevertheless, the court upheld the driver's license suspension based
upon respondent's refusal, stating that "it would be inconsistent with
the purposes of the statute to require the officer to sit around and
wait until the suspect believes he is ready to take the test. (See
Zidell v. Bright, supra.)" (Id, at p. 599.)

Noli v. Department of Motor Vehicles (1981) 125 Cal.App.3d 446 [178
Cal.Rptr. 5] represents a situation where the arresting officer took a
"combative" inebriated driver to the community medical center. The
officer admonished the driver in the parking lot. The driver replied
that he would submit to a urine test. Due to the driver's behavior,
the officers were unwilling to remove his handcuffs at the medical
center to allow him to take the urine test. Accordingly, they told him
that the urine test would have to be taken at the jail, but that the
blood and breath test were available at the medical center only, and
that if he were transported to the jail and failed to complete the
urine test, he [137 Cal.App.3d 743] would not have another opportunity
to take the blood or breath tests. The driver insisted that he would
take only the urine test. At the jail, he was unable to complete the
urine test. (Id, at pp. 448-449.) The court upheld the suspension of
the driver's license. "We hold that in the circumstances here
presented, section 13353 did not require the officers to offer
appellant another opportunity to choose one of the two tests he had
categorically refused, when it would mean transporting him back to the
Medical Center to do so, particularly when there was little reason to
believe he would submit to either of those tests if the opportunity
were renewed. To hold otherwise would be to exalt form over substance
in the interpretation of the statute and make the arresting officers
subservient to the caprice of an inebriated and uncooperative
arrestee. The officers had more important things to do than play games
with appellant in his condition. What it boils down to is that one who
is lawfully under arrest for drunk driving should not be able to
frustrate the procedure contemplated by section 13353 and defeat its
purpose by being combative and uncooperative with the arresting
officers." (Id, at p. 450.)

Here too it would be inconsistent with the purpose of section 13353 to
hold that the arresting officer should have persisted in his attempt
to admonish respondent, regardless of his interruptions and
obstreperous behavior, until respondent was ready to listen. To so
hold would be to allow the arrestee to control the timing of the blood
alcohol test, and thus make the arresting officer "subservient to the
caprice of an inebriated and uncooperative arrestee." (Noli, supra,
125 Cal.App.3d at p. 450.) Nor does the fact that the officer did not
immediately admonish respondent in the police car on the way to the
substation alter our conclusion. The officer was not required to
anticipate that respondent would become unruly at the substation.

Bush v. Bright (1968) 264 Cal.App.2d 788 [71 Cal.Rptr. 123] and
Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354
[165 Cal.Rptr. 626] reinforce our conclusion that a person may not
complain of the suspension of his driver's license if, by his own
actions, he frustrates the admonishment or the administration of the
chemical test. In Bush, the court rejected the defense to license
suspension under section 13353 that a person was so intoxicated at the
time of his arrest that he was incapable of refusing to submit to a
chemical test. (Bush, supra, at pp. 791-793.) The court stated that a
defense of this type "would lead to absurd consequences--the greater
the degree of intoxication of an automobile driver, the lesser the
degree of his accountability under the statute. It would invalidate
section 13353 as to grossly intoxicated drivers and frustrate the
purpose of the Legislature." (Id, at p. 792.) A driver should be held
accountable for refusing or otherwise manifesting an unwillingness to
take the chemical test while in a state of voluntary intoxication.
(Id, at p. 793.) In Thompson, supra, 107 Cal.App.3d 354 , the court
held that where a communication over the police radio which was heard
by both the officer and the [137 Cal.App.3d 744] driver drowned out
that portion of the admonishment informing the driver that refusal to
complete a chemical test would result in a suspension of his license,
the admonishment was not effectively communicated, and the driver's
noncomprehension should not have resulted in license suspension. The
court noted, "The Bush case seems readily distinguishable from the
present case because in Bush the driver's inability to comprehend was
his own fault." (Thompson, supra, at p. 362, fn. 5.) Further, "[w]hen
the driver, through no fault of his own, is unable to understand the
warning, he should not suffer the consequence of a license
suspension." (Id, at p. 363.) Thompson clearly suggests that when a
driver's own actions prevent admonishment or administration of the
chemical test, he may not complain that his license was improperly
suspended.

"Remedial statutes such as section 13353 'must be liberally construed
to effect their objects and suppress the mischief at which they are
directed. They should not be given a strained construction that might
impair their remedial effect.'" (Bush v. Bright, supra, 264 Cal.App.2d
at p. 792.) We hold, therefore, as a matter of law that respondent's
license was properly suspended under section 13353 although the
arresting officer did not admonish him that failure to submit to the
chemical test would result in a six-month license suspension, where it
was respondent's own obstreperous conduct which prevented the officer
from completing the admonition and which led the officer to conclude
that the respondent had refused to submit to the test. The officer
directs the proceedings under section 13353, and the inebriated
driver, by obstreperous behavior, may subjugate neither the arresting
officer nor the statute to his whims.

Judgment is reversed with directions to reinstate the order of the DMV
suspending respondent's driver's license.

White, P. J., and Barry-Deal, J., concurred.

FN 1. Respondent's license had been ordered suspended pursuant to
Vehicle Code section 13353, the "implied consent" law. At the time of
the offense, section 13353 provided in pertinent part: "(a) Any person
who drives a motor vehicle upon a highway shall be deemed to have
given his consent to a chemical test of his blood, breath or urine for
the purpose of determining the alcoholic content of his blood if
lawfully arrested for any offense allegedly committed while the person
was driving a motor vehicle under the influence of intoxicating
liquor. The test shall be incidental to a lawful arrest and
administered at the direction of a peace officer having reasonable
cause to believe such person was driving a motor vehicle upon a
highway while under the influence of intoxicating liquor. Such person
shall be told that his failure to submit to or complete such a
chemical test will result in the suspension of his privilege to
operate a motor vehicle for a period of six months. [¶] The person
arrested shall have the choice of whether the test shall be of his
blood, breath or urine, and he shall be advised by the officer that he
has such choice. ... [¶] (b) If any such person refuses the officer's
request to submit to, or fails to complete, a chemical test, the
department, upon receipt of the officer's sworn statement that he had
reasonable cause to believe such person had been driving a motor
vehicle upon a highway while under the influence of intoxicating
liquor and that the person had refused to submit to, or failed to
complete, the test after being requested by the officer, shall suspend
his privilege to operate a motor vehicle for a period of six months."
(Stats. 1978, ch. 911, § 4, p. 2872.) Subsequent amendments of section
13353 are immaterial to this appeal. (See Stats. 1980, ch. 67, § 1, p.
176; Stats. 1980, ch. 675, § 1, p. 1870; Stats. 1981, ch. 935, p.
3533; Stats. 1981, ch. 939, p. 3550.)

FN 2. The officer attempted to read the following statement to
respondent: "You are required by state law to submit to a chemical
test to determine the alcoholic content of your blood. You have a
choice of whether the test is to be of your blood, breath or urine. If
you refuse to submit to a test or fail to complete a test your driving
privilege will be suspended for a period of six months. You do not
have the right to talk to an attorney or to have an attorney present
before stating whether you will submit to a test, before deciding
which test to take, or during the administration of the test chosen.
If you are incapable or state you are incapable, of completing the
test you choose, you must submit to and complete any of the remaining
tests or test."

Cahall v. Department of Motor Vehicles , 16 Cal.App.3d 491

2008-05-17T15:30:00.001-07:00

Following an administrative hearing, the Department of Motor Vehicles
suspended the appellant's driver's license for a period of six months
for refusal to take a chemical test in compliance with the provisions
[16 Cal.App.3d 494] of the Implied Consent Law (Veh. Code, § 13353).
Appellant then sought mandamus relief in the superior court. The
petition was denied and a judgment (order) entered accordingly. This
appeal followed.

Inasmuch as the appellant stipulated at the time of the administrative
hearing that probable cause for arrest existed and that a lawful
arrest for driving under the influence of intoxicating liquor was
effected, the only significant issue requiring resolution by the
hearing officer and the superior court was whether the appellant had
refused to submit to a chemical test. Similarly, the only issue on
review is whether there is sufficient evidence to sustain the
administrative finding fn. 1 that appellant refused to comply with the
statutory requirements of the Implied Consent Law.

Following the appellant's arrest for drunk driving (Veh. Code, §
23102), the arresting officer informed him that he would have to
submit to a chemical test, that he had a choice as to whether the test
would be of his blood, breath or urine, and that a refusal would
result in suspension of his driving privilege for six months.
Appellant consented to a urinalysis test. The officer told appellant
that two samples of his urine would be required to constitute a
complete test. Appellant was then taken to the county jail and at 8:10
p.m. gave the officer a specimen. At 8:45 p.m. he was requested to
give a second sample. However, he said he was unable to furnish the
second specimen because he was a diabetic and, as such, did not drink
many fluids. The officer again informed him that two samples were
required to complete the test, and appellant stated he might be able
to give another sample later on. The officer waited until 9:30 p.m.
and again requested a sample, but appellant's attempt to comply with
the request proved unsuccessful. The officer admonished him that he
would lose his license if he did not complete the test. Appellant
replied, "We'll see about that." The officer then gave the following
specific advisement: "Since you have not been able to give a second
urine sample and have not fulfilled the requirements of the implied
consent law in giving us a test, I am at this time going to ask you to
give us either a blood test or a breath test. ..." Appellant said he
was not going to give an answer. He was then booked.

Appellant gave the following testimony at the administrative hearing:
He agreed to take the urine test; he was not told he would be required
to give a second sample; 30 to 40 minutes after giving the first
sample, the arresting officer told him another urine specimen was
required; he tried to comply but could not; the officer then told him
he either had to give another urine sample or take a blood test; the
officer demanded an answer; he replied he had given the officer what
he requested; the officer did not mention anything [16 Cal.App.3d 495]
regarding a breath test; he did not recall being told his license
would be suspended if he did not take the chemical test; he did not
recall the officer reading a statement defining the provisions of the
Implied Consent Law; he had no objection to taking a blood test but he
thought he had complied with the officer's request by giving the urine
specimen.

On appeal, the appellant claims he did not refuse to submit to a
chemical test and that the officer's statement concerning the test
confused him to the extent that he should be excused from the
consequences of any refusal.

[1] While there is some conflict in the evidence, the law is clear
that all conflicts must be resolved in favor of the prevailing party.
(McNeil v. Young, 201 Cal.App.2d 488 , 490 [20 Cal.Rptr. 34].) The
function of the reviewing court is to determine whether there is any
substantial evidence supporting the judgment. (McNeil v. Young,
supra.) [2] Inasmuch as findings of fact and conclusions of law were
waived in the superior court, every intendment is in favor of the
judgment, and it is presumed that every fact or inference essential to
the support of the judgment and warranted by the evidence was found by
the trial court. (Reid v. Valley Restaurants, Inc., 48 Cal.2d 606 ,
609 [311 P.2d 473].)

[3a] Appellant first contends that he did not refuse to submit to a
chemical test. Prior to the administration of the first urinalysis,
appellant was advised that he would be required to give two urine
samples in order to complete the test. He gave one sample, but was
unable to give another. He was explicitly told that because of his
inability to complete the second test a blood or breath test would
have to be taken in order to comply with the requirements of the
Implied Consent Law. He refused to consent to another test.

[4] Section 13353 requires that one lawfully arrested for driving
while intoxicated shall submit to one of the three designated types of
chemical tests or suffer the prescribed penalty. While he may choose
the type of test, the driver's obligation does not end when he has
expressed such a choice. He must go further and submit to the test.
"So strong is the legislative purpose that a test be submitted to,
that the statute (Veh. Code, § 13353, subd. (a), 3d par.) [fn.
omitted] permits it even though the subject driver, because of
unconsciousness, or other reasons, is unable to choose the type of, or
even to refuse the test. Certainly, by agreeing to one type of test,
and then, voluntarily or involuntarily, failing to submit to it, a
driver may not thereby deny to the state its right to any test. Such a
construction would do violence to the clear purpose of the statute and
to the public policy expressed thereby. [5] 'Statutes are to be
interpreted to give a reasonable result consistent with legislative
purpose and not evasive thereof. [Citations.]' [16 Cal.App.3d 496]
(Cal. Pacific Collections, Inc. v. Powers, 70 Cal.2d 135 , 140 [74
Cal.Rptr. 289, 449 P.2d 225].)" (Quesada v. Orr, 14 Cal.App.3d 866 ,
870-871 [92 Cal.Rptr. 640].)

[6] The purpose of the Implied Consent Law is to obtain the best
evidence of intoxication at the time of arrest and to provide a fair
and accurate system of detection and protection of the public and to
inhibit drunk driving. (Kesler v. Department of Motor Vehicles, 1
Cal.3d 74 , 77 [81 Cal.Rptr. 348, 459 P.2d 900].) The statute should
be interpreted in light of its purpose. (Zidell v. Bright, 264
Cal.App.2d 867 , 868-870 [71 Cal.Rptr. 111].) If appellant's argument
to the effect that the giving of one urine specimen was sufficient to
comply with the provisions of the law, notwithstanding that two
samples are required to complete the test, the purpose of the statute
would be nullified. Drivers arrested for operating a vehicle while
under the influence of intoxicating liquor could merely thwart the law
by giving a partial balloon test, a partial blood sample or, as here,
an inadequate specimen of urine. The giving of a partial urine sample
obviously did not satisfy the requirements of the law. The statute
contemplates that a partial test is not an entire test. fn. 2

[3b] Upon appellant's inability to comply with the requirements of the
statute by providing the second urine sample, he was obliged, upon
request so to do, to select another with which he could comply. Not
having done so, he refused a "request to submit to a chemical test"
(see Veh. Code, § 13353, subd. (b)) and brought upon himself the
penalty of the statute. (Quesada v. Orr, supra, 14 Cal.App.3d 866 ,
871.)

Appellant also suggests that he did not refuse a blood or breathalyzer
test inasmuch as the officer did not present him with the equipment or
facilities necessary to accomplish such tests. However, the officer
testified that he offered to have a blood or breach test administered
but the appellant stated, "I'm not even going to give you an answer."
Consequently, the officer did all he could reasonably have been
expected to do under the circumstances. There would have been no point
in taking the appellant to a hospital or laboratory for the purpose of
having a blood or breath test [16 Cal.App.3d 497] administered when he
had already inferred that he would not take either of the alternative
tests.

Appellant's reliance on Underwood v. Kelly, 5 App.Div. 2d 740 [168
N.Y.2d 752], in support of his position that an individual who
partially completes one test and then refuses to take additional tests
has not legally refused to submit to a chemical test as required by
the Implied Consent Law is not persuasive. In Underwood, the arresting
officer testified that the arrestee consented to a blood test but the
doctor was not satisfied that he had drawn enough blood and wanted to
draw more; however, the officer informed the arrestee that he was not
sure he had to take a second test or the amount thereof. This is not
the situation here, in which the appellant was unequivocally informed
after the initial specimen was given that he had not complied with the
Implied Consent Law, but he nevertheless refused to take another test.

[7a] Finally, appellant maintains that he was so confused concerning
the taking of a chemical test that his refusal should be vitiated.
While there is authority that where a driver refuses to take a test
because he was confused by the Miranda warnings as to his
constitutional rights and the demand for a test under the Implied
Consent Law (see Rust v. Department of Motor Vehicles, 267 Cal.App.2d
545 , 547 [73 Cal.Rptr. 366]), this rule does not apply when the
arresting officer explicitly informs the arrestee that the Miranda
rights do not apply to the taking of a chemical test pursuant to the
Implied Consent Law. (Reirdon v. Director of Dept. of Motor Vehicles,
266 Cal.App.2d 808 , 811 [72 Cal.Rptr. 614].)

[8] The question whether a driver "refused" a test within the meaning
of the statute is a question of fact. (Walker v. Department of Motor
Vehicles, 274 Cal.App.2d 793 , 799 [79 Cal.Rptr. 433].) When there is
no evidence of confusion, and where apparent confusion is not
demonstrated and is not apparent to the arresting officer, no further
clarification on the part of the arresting officer is required. (See
Wethern v. Orr, 271 Cal.App.2d 813 , 815 [76 Cal.Rptr. 807].)

The Rust "confusion doctrine" is inapplicable because the appellant
does not maintain that he suffered any bewilderment as a result of the
constitutional admonition. [9] In determining whether an arrestee's
refusal is the result of confusion, the crucial factor is not the
state of the arrestee's mind; it is the fair meaning to be given his
response to the demand that he submit to the chemical test. (Maxsted
v. Department of Motor Vehicles, 14 Cal.App.3d 982 , 986 [92 Cal.Rptr.
579].) [7b] Unlike Rust, supra, and its progeny (Kingston v. Dept. of
Motor Vehicles, 271 Cal.App.2d 549 , 554 [76 Cal.Rptr. 614]; Walker v.
Department of Motor Vehicles, supra, 274 Cal.App.2d 793 , 799, and
Lagomarsino v. Department of Motor Vehicles, [16 Cal.App.3d 498] 276
Cal.App.2d 517 [81 Cal.Rptr. 193]), after having been warned of his
Miranda rights and having been requested to submit to an alternative
test, appellant did not request an attorney; he answered the request
with "I'm not even going to give you an answer." The officer was
justified in inferring that such a reply was a refusal to take another
test. (See Maxsted v. Department of Motor Vehicles, supra, 14
Cal.App.3d 982 , 986.) Consequently, the superior court properly
determined that the appellant's refusal to submit to a chemical test
was not the result of confusion.

The judgment (order denying petition for writ of mandate) is affirmed.

Tamura, Acting P. J., and Gabbert, J., concurred.

FN 1. Findings were waived in the superior court.

FN 2. The arrest herein was effected on April 12, 1969, and the
proceedings below were terminated in January 1970. The Legislature
amended section 13353 of the Vehicle Code (Stats. 1970, ch. 733, p.
..., §§ 1 & 2, and ch. 1103, p. ..., § 2, effective November 23, 1970)
to provide that an arrestee "... shall be told that his failure to
submit to or complete ... a chemical test will result in the
suspension of his privilege to operate a motor vehicle ..." and that
"If the person arrested either is incapable, or states he is
incapable, of completing any chosen test, he shall then have the
choice of submitting to and completing any of the remaining tests or
test, and he shall be advised by the officer that he has such choice
... If any such person refuses ... to submit to, or fails to complete,
a chemical test, ..." his license shall be suspended.

People v. Wilson (2003) 114 Cal.App.4th 953 , -- Cal.Rptr.3d --

2008-05-17T15:29:00.001-07:00

On August 16, 2000, defendant was involved in an automobile accident
after his car crossed over a double yellow line and collided head-on
with [114 Cal.App.4th 956] another vehicle. Both the driver of the
other car and her passenger suffered severe injuries as a result of
the accident. Defendant was charged by information with driving under
the influence causing bodily injury (Veh. Code, § 23153, subd. (a) fn.
1 ; count 1), and driving with a 0.08 percent blood-alcohol level
causing injury (§ 23153, subd. (b); count 2). The information also
alleged that defendant caused bodily injury to more that one victim (§
23558), and that defendant personally inflicted great bodily injury on
both victims (Pen. Code, § 12022.7, subd. (a)). Finally, the
information alleged that defendant had suffered two prior strike
convictions (Pen. Code, § 667, subd. (a)(1)), and two prior serious
felony convictions (Pen. Code, § 667.5, subd. (b)).

Prior to trial, defendant made a motion to suppress the results of a
blood test taken after his arrest. The testimony given at the
suppression hearing provides the following factual history. Officer
Jerry Chu arrived on the scene of the accident shortly after it
occurred. Based on his initial observations that defendant's eyes were
quite red, watery and bloodshot, Chu believed that defendant was
intoxicated. Because of defendant's injuries, however, he was
transported to the hospital before Chu could conduct a field sobriety
test.

At the hospital, Chu conducted a nystagmus test whereby defendant was
asked to follow Chu's finger as it was moved back and forth in front
of his face. Defendant's inability to track Chu's finger indicated
that he was intoxicated. Chu also requested that defendant submit to a
PAS test and advised defendant that the test was voluntary and would
not satisfy his obligation to submit to a subsequent BAL test if he
were arrested. The PAS test showed a BAL of 0.09 percent. Based on his
observations and the test results, Chu determined that defendant was
under the influence of alcohol and arrested defendant.

After placing defendant under arrest, Chu advised defendant that he
was required to provide a blood sample. Although defendant maintained
that he was not consenting to the test, he permitted hospital staff to
draw the blood sample. The blood was tested and the toxicologist
determined that it contained a 0.12 percent BAL.

Based on this testimony, defendant argued that the results of the
blood test should be suppressed on the ground that they were the
product of an illegal warrantless search because any exigency that
might have justified the administration of the blood test was
eliminated by the prior administration of the PAS test. The trial
court denied defendant's motion, finding that the officer acted
reasonably in requiring the postarrest blood test. [114 Cal.App.4th
957]

After a three-day trial, the jury convicted defendant on both counts
contained in the information and found true the great bodily injury
and multiple-victim allegations. Thereafter, the trial court found
true the prior conviction allegations. Defendant was sentenced to 22
years in state prison. Defendant filed a timely notice of appeal.

Discussion

Defendant contends that his Fourth Amendment rights were violated by
the taking of his blood after he voluntarily submitted to a PAS breath
test. He acknowledges that prior case law and Vehicle Code section
23612, subdivisions (h) and (i), permit an officer to administer both
a PAS test to help determine whether defendant is intoxicated and a
postarrest blood, breath, or urine test to confirm the defendant's
BAL. Nonetheless, he argues that the recent decision in People v.
Williams (2002) 28 Cal.4th 408 [121 Cal. Rptr. 2d 854, 49 P.3d 203],
taken together with People v. Fiscalini (1991) 228 Cal. App. 3d 1639
[279 Cal. Rptr. 682], eliminated any justification for the
nonconsensual taking of a blood sample following the administration of
a PAS test.

[1] We review the trial court's denial of defendant's motion to
suppress by deferring to factual findings by the trial court that are
supported by substantial evidence. [2] We independently review,
however, whether the search and seizure was reasonable under the
United States Constitution. ( People v. Leyba (1981) 29 Cal.3d 591 ,
596-597 [174 Cal. Rptr. 867, 629 P.2d 961]; People v. Stanley (1999)
72 Cal.App.4th 1547 , 1551 [86 Cal. Rptr. 2d 89].)

Section 23612, subdivision (a)(1)(A), provides, "A person who drives a
motor vehicle is deemed to have given his or her consent to chemical
testing of his or her blood or breath for the purpose of determining
the alcoholic content of his or her blood, if lawfully arrested for an
offense allegedly committed in violation of Section 23140, 23152, or
23153. If a blood or breath test, or both, are unavailable, then
paragraph (2) of subdivision (d) [urine test] applies." Section 23612
provides further, "(h) A preliminary alcohol screening test that
indicates the presence or concentration of alcohol based on a breath
sample in order to establish reasonable cause to believe the person
was driving a vehicle in violation of Section 23140, 23152, or 23153
is a field sobriety test and may be used by an officer as a further
investigative tool. [¶] (i) If the officer decides to use a
preliminary alcohol screening test, the officer shall advise the
person that he or she is requesting that person to take a preliminary
alcohol screening test to assist the officer in determining if that
person is under the influence of alcohol or drugs, or a combination of
alcohol and drugs. The person's obligation to submit to a blood,
breath, or [114 Cal.App.4th 958] urine test, as required by this
section, for the purpose of determining the alcohol or drug content of
that person's blood, is not satisfied by the person submitting to a
preliminary alcohol screening test. The officer shall advise the
person of that fact and of the person's right to refuse to take the
preliminary alcohol screening test." Section 23612 has been upheld
against constitutional challenge on the ground that the warrantless
taking of blood (or breath or urine) to prevent the destruction of
evidence is reasonable under the Fourth Amendment. ( Schmerber v.
California (1966) 384 U.S. 757 [16 L. Ed. 2d 908, 86 S. Ct. 1826].)

In People v. Bury (1996) 41 Cal.App.4th 1194 [49 Cal. Rptr. 2d 107],
the court held that PAS test results are admissible to prove a
defendant's guilt if the proper foundation is laid. The court also
rejected the argument that a defendant who submits to a PAS test has
satisfied his obligations under section 23612, subdivision (a)(1)(A).
The court explained that former section 23157, subdivision (h), was
enacted in part "to require police to advise a suspected drunk driver
that the PAS test does not satisfy the chemical testing requirement
under the implied consent law. [Citation] ... The express exemption of
PAS devices from the implied consent law was necessary to correct the
problem ' "that occurs when a DUI suspect submits to a pre-arrest
Alco-Sensor test but subsequently refuses to submit to a post-arrest
blood, breath or urine test as required under section 23157 of the
Vehicle Code. At trial, these defendants typically argue that they
satisfied the implied consent law by submitting to the Alco-Sensor
test. [¶] Apparently, most judges have agreed with this argument and
hence do not allow the jury to be instructed that the defendant
refused to give a chemical test as required by the implied consent
law. If the Alco-Sensor results are not admissible at trial, which
seems to be occurring in most counties due to the lack of foundation
... the district attorney is left to prosecute the case without an
admissible chemical test and without a refusal instruction. Needless
to say, a case without a post-arrest alcohol screening result or a
refusal instruction is almost impossible to win." ' " ( People v.
Bury, supra, at p. 1205.) The court also stated, "The statute requires
police to obtain a driver's consent to PAS testing, along with
advising the driver that a PAS test is not a substitute for chemical
testing under the implied consent law. If this advisement is properly
given, a suspect who voluntarily submits to a PAS test cannot
reasonably believe that his submission to further chemical testing is
optional. Where, as here, the driver voluntarily takes a PAS test but
later wrongfully refuses to take a chemical test under the implied
consent law, he should not be able to profit therefrom by successfully
challenging the admission of the PAS evidence." ( Id. at p. 1206.)
Thus, the PAS test results are admissible to prove a defendant's guilt
if the proper foundation is laid, but the test does not satisfy
defendant's obligation under the section 23612 to submit to a
subsequent blood, urine or breath test after being arrested for drunk
driving. [114 Cal.App.4th 959]

Contrary to the defendant's assertion, nothing in People v. Williams,
supra , 28 Cal.4th 408 , or People v. Fiscalini , supra , 228 Cal.
App. 3d 1639, conflicts with or alters this rule of law. In Williams ,
the court reiterated, and perhaps clarified, the foundational
requirements for admitting PAS test results into evidence that were
applied in Bury . The court held that the results of a PAS test are
admissible even if the tests were not performed in compliance with
Department of Health Services regulations. The court held that the
foundational requirements for the admission of PAS test results may be
demonstrated either by showing compliance with the regulations or by
showing that (1) the equipment was properly functioning, (2) the test
was properly administered, and (3) the test was administered by a
qualified operator. (28 Cal.4th at p. 417.) Williams did not address
section 23612, subdivision (h) or (i).

[3] In Fiscalini , the court held that the implied consent law permits
the arresting officer to conduct only one of the alternate tests
provided by the statute based upon the suspect's choice. ( Fiscalini,
supra , 228 Cal. App. 3d at pp. 1644-1645.) The court reasoned that
once a defendant takes a urine test, the officer may not forcibly draw
blood without providing some additional justification for the
warrantless search, and that having successfully completed a urine
test, there is no longer an exigency to justify a second test. ( Id .
at p. 1645.) Fiscalini is distinguishable from the present case,
however, because the PAS test and the postarrest BAL blood test are
not mutually exclusive alternatives under the statute. To the
contrary, section 23612 specifically provides for the use of both
tests.

Defendant raises a novel question about the continued validity of
section 23612, subdivisions (h) and (i), which is not answered
directly by the authority cited above. Defendant suggests that since
the results of his PAS test were admissible under Williams and Bury ,
the provisions of section 23612 which permit the arresting officer to
take a subsequent BAL test are unconstitutional, because an additional
test is not necessary to preserve the blood-alcohol evidence.

[4] This argument is premised, however, on the assumption that the PAS
test is the scientific equivalent of a postarrest blood, breath or
urine test. Nothing in Williams compels the conclusion that the PAS
test is the functional equivalent of the mandatory BAL test under
section 23612, subdivision (a). Williams merely establishes the
requirements for receiving the PAS test in evidence. The Legislature,
however, has concluded that significant differences exist between the
two types of tests, as demonstrated by their separate treatment in the
statute. (§ 23612, subds. (h) & (i); see also Legis. Counsel's Dig.,
Sen. Bill No. 602 (1991-1992 Reg. Sess.), Stats. 1992, ch. 1242, pp.
3-4 [amending former section 23517 to permit use of consensual PAS
test, "which indicates the presence or concentration of alcohol based
[114 Cal.App.4th 960] on a breath sample in order to establish
reasonable cause, prior to arrest"]; Coniglio v. Department of Motor
Vehicles (1995) 39 Cal.App.4th 666 , 676 [46 Cal. Rptr. 2d 123],
citing Assem. Com. on Public Safety, Analysis of Sen. Bill No. 689
(1993-1994 Reg. Sess.) July 13, 1993 [legislative history of
amendments to "zero tolerance law" (§ 23137) demonstrates that
"Legislature considered arguments regarding the reliability of the PAS
test" and "reveals a recognition of possible foundational problems
associated with the PAS test"]; 59 Fed.Reg. 39382-02 (Aug. 2, 1994)
[differentiating between "evidential breath testing devices," which
"measure the alcohol content of deep lung breath samples with
sufficient accuracy for evidential purposes," and "alcohol-screening
devices," which are primarily used to detect the presence of alcohol
in a person's breath or bodily fluids]; 72 Ops.Cal.Atty.Gen 226
(1989).) [5] The Legislature may well have found that the results of
the PAS breath test, normally administered by a police officer in the
field, are less accurate and reliable than the chemical tests
administered under more controlled circumstances and likely with more
precise equipment. The immediate purpose of the implied consent law
"is to obtain the best evidence of blood alcohol content at the time
of the arrest of a person who is reasonably believed to be driving
while intoxicated." ( People v. Ryan (1981) 116 Cal. App. 3d 168, 182
[171 Cal. Rptr. 854], italics added.) In the absence of any evidence
to the contrary, we must accept the Legislature's implicit finding
that the tests are not equivalent, and therefore that despite the
taking of the PAS test, it remains important to obtain the more
reliable results of the chemical test before the evidence becomes
unavailable with the passage of time. ( People v. Ireland (1995) 33
Cal.App.4th 680 , 693 [39 Cal. Rptr. 2d 870] [" 'where scientific
opinions conflict on a particular point, the Legislature is free to
adopt the opinion it chooses, and the court will not substitute its
judgment for that of the Legislature' "].) "[T]he exigency created by
the evanescent nature of blood alcohol and the danger that important
evidence would disappear" is sufficient to satisfy Fourth Amendment
standards. ( People v. Trotman (1989) 214 Cal. App. 3d 430, 436 [262
Cal. Rptr. 640].) fn. 2

Disposition

The judgment is affirmed.

McGuiness, P. J., and Parrilli, J., concurred.

Appellant's petition for review by the Supreme Court was denied March 17, 2004.

FN 1. All statutory references are to the Vehicle Code unless otherwise noted.

FN 2. In light of this conclusion, we do not reach the Attorney
General's alternative argument that the blood test was justified here
by defendant's attempt to obstruct the breath test. (See People v.
Sugarman (2002) 96 Cal.App.4th 210 , 214-216 [116 Cal. Rptr. 2d 689].)
Although there was evidence that Officer Chu tried on three occasions
to obtain a proper breath sample, and that defendant interfered with
the results by failing to seal his lips around the tube, this evidence
was presented at trial and was not before the trial court when it
denied defendant's motion to suppress.

People v. Morgan (1990) 221 Cal.App.3d Supp. 1 , 270 Cal.Rptr. 597

2008-05-17T15:27:00.001-07:00

Defendant and respondent Dennis Morgan (hereinafter defendant) was
arrested on September 4, 1988, at a sobriety checkpoint organized by
the California Highway Patrol (CHP). Defendant was charged with a
violation of California Vehicle Code section 23152, subdivisions (a)
and (b), and with an allegation of a prior conviction of section
23152, subdivision (a). Prior to trial, defendant brought a motion to
suppress all evidence seized by the CHP, including the results of a
chemical test administered on the defendant, under Penal Code section
1538.5. The trial court granted the motion, and the People appeal from
that ruling.

The facts of the case are not in dispute. While driving west on Bryant
Street in San Francisco, defendant turned right onto Sixth Street,
where a CHP officer immediately guided him into the CHP sobriety
checkpoint. There were no signs on Bryant Street (a one-way street) to
advise drivers that there was a checkpoint on Sixth Street. After
detecting alcohol on the defendant's breath, a CHP officer led the
defendant through a variety of field sobriety tests. When defendant
failed the tests, he was arrested on suspicion of driving under the
influence of alcohol, and taken to San Francisco County jail where he
was given an intoxilizer test which revealed that his blood contained
more than 0.10 percent alcohol.

At the hearing on the motion to suppress, the trial judge granted the
motion on two grounds: first, the prosecution had failed to carry its
burden in showing there was adequate advance publicity as required by
the Supreme Court in Ingersoll v. Palmer (1987) 43 Cal.3d 1321 [241
Cal.Rptr. 42, 743 P.2d 1299]; second, due to the lack of signs on
Bryant Street, defendant was not afforded an opportunity to turn away
from the checkpoint. The People limit their appeal to the former
rationale.

The issue raised by this appeal is similar if not identical to the
issue raised in the case of People v. Mathis ((Nov. 13, 1989) App.
Dept. Super. Ct., City and County of San Francisco, Crim. A No. 4124),
which we decided in an unpublished written opinion. Because this
appeal involves a legal issue of continuing public interest, we have
ordered this opinion published so it may be referred to as precedent
in subsequent proceedings. (Cal. Rules of Court, rule 976.)

In Ingersoll v. Palmer, supra, the California Supreme Court upheld the
detention of motorists at a sobriety checkpoint in Burlingame, despite
the absence of any reasonable individualized suspicion of wrongdoing,
on the theory that such detentions were permissible administrative
inspections primarily intended to enhance public safety by deterring
potential lawbreakers [221 Cal.App.3d Supp. 4] from driving while
intoxicated. Applying the balancing test articulated in People v. Hyde
(1974) 12 Cal.3d 158 , 166-169 [115 Cal.Rptr. 358, 524 P.2d 830], the
Ingersoll court concluded that the intrusiveness on an individual's
liberty interest caused by a checkpoint detention is outweighed by the
substantial governmental and public concern about drunk driving and
the demonstrated or potential deterrent effect of sobriety checkpoints
in keeping drunk drivers off the road. (Ingersoll v. Palmer, supra, 43
Cal.3d at pp. 1338-1339.)

Taking note of a number of decisions of courts of other states and an
opinion of the California Attorney General, the court identified eight
factors to "provide functional guidelines for minimizing the
intrusiveness of the sobriety checkpoint stop." (Ingersoll v. Palmer,
supra, 43 Cal.3d at p. 1341.) However, in its discussion of one of the
eight factors, the Ingersoll court pronounced: "Advance publicity is
important to the maintenance of a constitutionally permissible
sobriety checkpoint. Publicity both reduces the intrusiveness of the
stop and increases the deterrent effect of the roadblock." (Id., at p.
1346.) Applying this factor to the Burlingame checkpoints, the court
found "substantial advance publicity accompanied each sobriety
checkpoint instituted." (Id., at p. 1347.)

[1a] The People contend that advance publicity is not a requirement of
a permissible sobriety checkpoint, but merely one of several
guidelines offered by the Ingersoll court to help ensure a balance
between the governmental and individual interests involved. Indeed,
Ingersoll does not expressly state that police departments must
strictly apply each of the eight factors. On this appeal, however, we
need not determine whether all eight guidelines, singly or in more
limited combinations, must be observed to constitute "substantial
compliance" with the holding of Ingersoll.

[2] Nevertheless, from the standpoint of the ultimate purpose and
legal theory supporting administrative motorist detentions, we hold
that advance warning and publicity of sobriety checkpoints is
essential if such checkpoints are to serve as an effective deterrent,
because it may be impossible to deter an uninformed public.
Ingersoll's requirement of "substantial advance publicity" means that
checkpoint authorities must do more than simply inform the press about
their plan to operate a checkpoint. To be constitutionally
permissible, the press relations strategy implemented by the
authorities must actually generate "substantial advance publicity."

Although the requirement of advance publicity has been given
inadequate attention in some cases and, apparently, held unimportant
in others (People v. Bartley (1985) 109 Ill.2d 273 [486 N.E.2d 880];
State v. Deskins (1983) 234 Kan. 529 [673 P.2d 1174]; Kinslow v.
Commonwealth (Ky.Ct.App. [221 Cal.App.3d Supp. 5] 1983) 660 S.W.2d
677; State v. Coccomo (1980) 177 N.J. Super. 575 [427 A.2d 131]),
other sister state decisions invalidated checkpoints on state grounds
where no advance publicity was proven (State v. Koppel (1985) 127 N.H.
286 [499 A.2d 977]; State ex rel. Ekstrom v. Justice Ct. of State
(1983) 136 Ariz. 1 [683 P.2d 992] (Feldman, J., conc.) ["the efficacy
of a deterrent roadblock is heightened by advance publicity in the
media and on the highways"].) We also note, however, that several
state courts have upheld sobriety checkpoints when evidence of
substantial advance publicity was established. (State v. Superior
Court (1984) 143 Ariz. 45 [691 P.2d 1073] [press releases, purchase of
radio, television and newspaper advertisements]; Commonwealth v.
Trumble (1985) 396 Mass. 81 [483 N.E.2d 1102] [press releases sent to
400 media outlets; individual police officers personally spoke to
media representatives; several newspapers and broadcast stations
disseminated information prior to roadblock]; Little v. State (1984)
300 Md. 485 [479 A.2d 903] [extensive statewide publicity campaign
announcing pilot checkpoint program; widespread media coverage after
series of press conferences].)

[1b] In this case, the People offered insufficient evidence of advance
publicity at the hearing on the motion to suppress to satisfy the
Ingersoll requirement. A CHP sergeant testified that another officer
followed CHP procedures and sent a notice to the Bay City News
"somewhere between 48 and 24 hours prior to our set up," and then
called Bay City News on the evening of the checkpoint to advise where
the checkpoint would be set up. There was no evidence of advance
information given by the media to an uninformed public. Although
Evidence Code section 664 allows a presumption that official duty has
been regularly performed, this presumption does not apply on an issue
as to lawfulness of an arrest if it is found or otherwise established
that the arrest was made without a warrant. (People v. Carson (1970) 4
Cal.App.3d 782 [84 Cal.Rptr. 699].)

The sergeant also testified that a television crew was on the scene on
the night of the checkpoint. In our view, the fact that a television
news crew was present during the operation of the checkpoint does not
have "any tendency in reason" to prove that the public was given
advance knowledge of the existence of a sobriety checkpoint. (Evid.
Code, § 210.) No reasonable inference can be drawn from the evidence
of on-the-spot coverage by the television media that the public was
given advance knowledge of a sobriety checkpoint.

It is therefore ordered that the order granting the motion to suppress
made and entered in the above-entitled cause is affirmed. The clerk of
the court is hereby ordered to forward a copy of this opinion to the
First [221 Cal.App.3d Supp. 6] District Court of Appeal, Division One,
upon the judgment becoming final as to this court. Kay, P. J., and
Alvarado, J., concurred.

Reirdon v. Director of Dept. of Motor Vehicles , 266 Cal.App.2d 808

2008-05-17T15:26:00.001-07:00

Petitioner was arrested on June 22, 1967, in Orange County while
driving under the influence of intoxicating [266 Cal.App.2d 809]
liquor when he went through a stop sign, crossed over a double yellow
line and nearly struck a police car. When his vehicle was stopped, a
strong odor of alcohol was detected on his breath and he failed a
field sobriety test.

After he had been placed under arrest, and while en route to a local
jail, the arresting officer advised petitioner that he would be
required to take one of the three chemical tests prescribed by the
California Implied Consent Law (Veh. Code, § 13353) for the purpose of
determining his sobriety.petitioner replied that he wanted to talk to
an attorney. Upon arrival at the jail, he was again informed that he
would have to take a test--breath, urine, or blood--and petitioner
stated he would not take a chemical test unless he could first talk to
his lawyer. The arresting officer permitted petitioner to make a
telephone call. After placing the call, petitioner stated to the
officer that he had called a friend and requested the latter to
contact an attorney for him.petitioner insisted again that he would
not take a test until an attorney was present at the jail with him at
the time the test was administered. The officer then repeated his
request that petitioner submit to a test, informed petitioner that he
had a choice of the test to be given, and admonished him that a
refusal would result in the suspension of his driving privilege for
six months. The officer further advised petitioner that he was not
entitled to have an attorney present with him in the jail at the time
the test was rendered. Petitioner declined to take any chemical test
until his attorney was present. He was then informed again that he
would lose his driving privilege for a period of six months because of
his refusal.

The arresting officer then prepared an officer's statement in
conformity with the provisions of section 13353 of the Vehicle Code,
and transmitted the same for filing with the Department of Motor
Vehicles. The preparation and execution of the form consumed
approximately 30 minutes. The officer then remained at the jail for
another 15 minutes.petitioner did not consent to take the test at any
time before the arresting officer left the jail, nor did he withdraw
his statement that he would take a chemical test only on condition
that his attorney was present before the officer's departure.

Following notification from the Department that his license was to be
suspended for six months for failure to comply with the provisions of
the California Implied Consent Law (Veh. Code, § 13353), petitioner
and his attorney requested a formal [266 Cal.App.2d 810] hearing.
Petitioner and his counsel were present at the hearing as was one of
the arresting officers. Following the hearing, the Department issued
its decision determining that appellant had violated the aforesaid
section of the Vehicle Code, and ordered a suspension of his license.
The Department decision contained the following findings of fact: (1)
Petitioner was arrested; (2) the arresting officer had reasonable
cause to believe he was driving a motor vehicle upon a highway while
under the influence of intoxicating liquor; (3) he was informed his
driving privilege would be suspended for a period of six months if he
refused to submit to a chemical test; and (4) he refused to submit to
any test of his blood, breath or urine.

After rendition of the Department's decision, petitioner sought
mandate in the superior court. In January 1968 a hearing was held with
petitioner and respondent both being represented by counsel. Following
the hearing, the trial court entered findings of fact, conclusions of
law, and judgment denying a peremptory writ of mandate, dismissing the
petition for writ of mandate, and discharging the alternative writ.

In his assault on the judgment, petitioner presents the following
issues: (1) He had a constitutional right to consult with an attorney
before deciding to submit to or refuse the chemical test prescribed by
section 13353 of the Vehicle Code; (2) he did not effectively refuse
the administration of a chemical test inasmuch as he was confused by
the Miranda advice given by the arresting officers; (3) the
departmental referee was not a lawyer as required by section 11502 of
the Government Code and, therefore, was not qualified to act in the
capacity of a hearing officer.

[1] In a civil proceeding for suspension of a person's driving
privilege under the California Implied Consent Law (Veh. Code, §
13353), a driver is not entitled to have counsel present when he is
requested, while in custody, to decide whether to submit, or refuse to
submit, to one of the tests required by the statute. (Finley v. Orr,
262 Cal.App.2d 656 , 663-664 [69 Cal.Rptr. 137].) Therefore,
petitioner's conditional consent amounted to a refusal. (Fallis v.
Department of Motor Vehicles, 264 Cal.App.2d 373 , 384 [70 Cal.Rptr.
595].)

However, petitioner maintains that his refusal was ineffective
inasmuch as he was confused by the Miranda advice [266 Cal.App.2d 811]
given him by the arresting officers. Nevertheless, the record
indicates the arresting officer fully explained to petitioner that he
only had the right to counsel in connection with the criminal charge
of driving a motor vehicle under the influence of intoxicating liquor.
In doing so, the officer used the following language: "... [you have]
the right to remain silent ... anything that [you] say will be held
against [you] in a court of law, the right to an attorney, the right
to have one appointed ... by the court prior [to] questioning, if [you
cannot] afford one." Following the foregoing admonition, petitioner
was again informed that although he had a right to counsel and had a
right to have counsel come to the jail, "... that it was not his right
to have an attorney present with him in the jail at the time the test
was being taken." Consequently, petitioner was not justified in
refusing to take the test until an attorney was present inasmuch as he
was clearly and unequivocally told that he had no right to the
presence of counsel at the time the test was being administered.
Therefore, his contention of bewilderment is not persuasive in view of
the fact that he refused the test after receiving an explicit
advisement. (See Finley v. Orr, supra, 262 Cal.App.2d 656 , 666-667.)

[2] Finally, petitioner maintains that the hearing officer appointed
by the director lacked the qualifications required by section 11502 of
the Government Code and, therefore, the decision of the Department of
Motor Vehicles suspending his driving privilege for six months was
invalid. However, the provisions of the Administrative Procedure Act
(Gov. Code, § 11500 et seq.) are not applicable to hearings conducted
under the provisions of the Vehicle Code (Veh. Code, § 14107), and
hearing officers of the Department of Motor Vehicles are not required
to be attorneys. (Serenko v. Bright, 263 Cal.App.2d 682 , 689-691 [70
Cal.Rptr. 1].)

Judgment affirmed.

McCabe, P. J., and Tamura, J., concurred.

Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293 , 160 Ca.Rptr. 557

2008-05-17T15:25:00.001-07:00

The Department of Motor Vehicles appeals from judgment granting the
petition of Robert Buchanan for peremptory writ of mandate to direct
the department to set aside its order suspending Buchanan's driving
privilege for six months for his refusal to submit to a chemical test
to determine the alcoholic content of his blood following his arrest
for driving a motor vehicle while under the influence of intoxicating
liquor. (Veh. Code, § 13353.)

At the administrative hearing before the department, it was stipulated
that the arresting officer had reasonable cause to believe that
Buchanan [100 Cal.App.3d 296] was driving under the influence of
intoxicating liquor, and that his arrest was lawful. The officer then
testified: at the time of the arrest, reading from a form, he advised
Buchanan that he was required by law to submit to a chemical test to
determine the alcoholic content of his blood, that he had a choice of
whether the test was to be of his blood, breath or urine, and that if
he refused to submit to a test or to complete a test his driving
privilege would be suspended for six months; Buchanan replied that he
would tell the officer which test he wanted when they reached the
police station; the officer stated that they soon would come to the
hospital which administers blood tests for the police department and
that if Buchanan wanted a blood test he would have to indicate that
choice before they reached the hospital so that the test could be
administered there en route to the police station; the officer
explained that if Buchanan did not choose a blood test before the
police car reached the hospital, such a test "would be out" because
once he arrived at the police station he would not be taken back to
the hospital for a blood test; fn. 1 Buchanan again stated that he
would specify his choice of a test at the police station; the officer
replied that Buchanan's choice there would be limited to a breath test
or a urine test; at the station, the officer asked Buchanan which of
those two tests he wanted; he stated that he wanted a blood test and
was told that such a test "was out' because he had refused it en route
to the station; the officer asked Buchanan if he would take a breath
test; Buchanan pointed to his lips and shook his head, saying nothing;
the officer then asked him if he would take a urine test and received
the same response.

Buchanan testified: the officer did not read to him the statement of
his right to choose among the three types of tests, but offered him
only a blood test; he told the officer that he understood he had the
right to a choice of three tests; fn. 2 the officer replied that he
had the right to a blood test and if he wanted one he would have to
say so then and there; Buchanan did not reply, and no mention of a
breath or a urine test was made at that time; at the police station,
the officer asked him if he wanted a breath test or a urine test; he
again replied that he thought he had a choice of three tests; the
officer repeated that he had a choice of a breath or a urine test;
Buchanan said nothing. [100 Cal.App.3d 297]

The hearing officer found: Buchanan was told that his driving
privilege would be suspended for six months if he refused to submit to
a chemical test of the alcoholic content of his blood; he refused to
submit to such a test of his blood, breath or urine after having been
requested to do so by the officer. The department adopted the
foregoing findings and ordered that Buchanan's driving privilege be
suspended for six months.

In the proceeding on Buchanan's petition for writ of mandate to set
aside the department's order, the trial court found as facts: the
evidence at the administrative hearing established that Buchanan was
advised en route to the police station that he would have to elect,
prior to reaching the station, whether or not he would take a blood
test; he stated that he would decide at the station, but was told by
the arresting officer that he could not do so; at the police station
Buchanan was given the choice of a breath or a urine test, but was not
offered the opportunity to take a blood test. As conclusions of law
the court determined: the arresting officer's procedure that required
Buchanan to elect whether or not to take a blood test before arriving
at the police station, and to choose between only a breath or a urine
test at the station, is unauthorized by statute, regulation or case
authority; Buchanan's statement in the police car that he would decide
at the station which test to take did not constitute a refusal to
submit to a chemical test; the department's finding that Buchanan
refused to submit to a chemical test of his blood, breath or urine is
not supported by substantial evidence.

[1a] The trial court erred in its conclusion that there is no
authority for the officer's having required Buchanan to elect whether
or not to take a blood test before reaching the police station, and
having limited his choice there to a breath or a urine test.

Vehicle Code section 13353 provides in part: "(a) Any person who
drives a motor vehicle upon a highway shall be deemed to have given
his consent to a chemical test of his blood, breath or urine for the
purpose of determining the alcoholic content of his blood if lawfully
arrested for any offense allegedly committed while the person was
driving a motor vehicle under the influence of intoxicating liquor.
The test shall be incidental to a lawful arrest and administered at
the direction of a peace officer having reasonable cause to believe
such person was driving a motor vehicle upon a highway while under the
influence of intoxicating liquor.... [¶] The person arrested shall
have the choice of [100 Cal.App.3d 298] whether the test shall be of
his blood, breath or urine, and he shall be advised by the officer
that he has such choice." (Italics added.) Section 13354 provides in
part: "(a) Only a physician, registered nurse, licensed vocational
nurse, duly licensed clinical laboratory technologist or clinical
laboratory bioanalyst, or certified paramedic acting at the request of
a peace officer may withdraw blood for the purpose of determining the
alcoholic content therein."

Thus, the arrestee is given the right to choose among the three tests,
but he is not given the further right to specify when the test which
he has chosen is to be administered. Section 13353, by providing that
the test shall be administered at the direction of a peace officer,
impliedly gives the officer that right. However, while the test must
be administered at his direction, the officer is not authorized to
withdraw blood in the event the arrestee chooses a blood test; only
the persons enumerated in section 13354 may withdraw blood, and they
are to be found in a hospital, not at a police station. We note also
that the efficacy of a blood test depends on its being made as soon as
possible after the time of the offense; if not taken promptly after
the arrest, it proves nothing. (Skinner v. Sillas (1976) 58 Cal.App.3d
591 , 598-599 [130 Cal.Rptr. 91].) Accordingly, the arresting officer
had at least implied authority (1) to require that Buchanan, if he
wanted a blood test, make that choice known before reaching the
hospital so that the test could be administered there en route to the
police station, and (2) to limit his choice at the station to a breath
or a urine test.

We turn now to the question whether Buchanan's conduct constituted a
refusal to submit to any of the chemical tests offered him. [2] The
trial court determined that the department's finding of such a refusal
was not supported by substantial evidence. fn. 3 On this appeal, we
occupy [100 Cal.App.3d 299] the same position as the trial court with
respect to the administrative record; accordingly, we must review that
record to determine whether the department's finding is supported by
substantial evidence. (See Lewin v. St. Joseph Hospital of Orange
(1978) 82 Cal.App.3d 368 , 386 [146 Cal.Rptr. 892]; Simons v. City of
Los Angeles (1977) 72 Cal.App.3d 924 , 930 [140 Cal.Rptr. 484];
Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833 ,
842 [130 Cal.Rptr. 169].)

[3] The determining factor on the issue whether a motorist actually
"refused" to submit to a test of intoxication, within the meaning of
Vehicle Code section 13353, is the fair meaning to be given to his
response to the request that he submit to such test, and not his state
of mind. (Maxsted v. Department of Motor Vehicles (1971) 14 Cal.App.3d
982 , 986 [92 Cal.Rptr. 579].) [1b] A motorist's silence in the face
of a police officer's repeated requests that he submit to a chemical
test and that he choose a test to determine the alcohol content of his
blood, constitutes a refusal to submit to a chemical test under
section 13353. (Lampman v. Department of Motor Vehicles (1972) 28
Cal.App.3d 922 , 926 [105 Cal.Rptr. 101].) Buchanan testified that
when the arresting officer asked him first whether he wanted a blood
test, and later whether he wanted a breath or a urine test, he did not
reply; instead, he insisted each time that he was entitled to a choice
of the three tests. Such evidence supports the department's finding
that Buchanan refused to submit to a chemical test of his blood,
breath or urine when requested to do so by the officer.

The judgment is reversed.

Hanson, J., and Kaufmann, J., concurred.

FN 1. When Buchanan was so advised, the police car in which he and
the officer were riding was five to seven miles from the hospital. The
police station is about three miles beyond the hospital.

FN 2. Buchanan testified that because he is an attorney, he was
familiar with the requirement that he be given the right to choose
among three tests to determine the alcoholic content of his blood.

FN 3. Since the right to a driver's license is not a fundamental
right, a trial court properly applies the substantial evidence test,
rather than the independent judgment test, in reviewing by
administrative mandamus an order of the department suspending a
driver's license under Vehicle Code section 13353. (McGue v. Sillas
(1978) 82 Cal.App.3d 799 , 803-806 [147 Cal.Rptr. 354].) For this
reason, we ignore the trial court's independent findings herein. (See
Simons v. City of Los Angeles (1977) 72 Cal.App.3d 924 , 930 [140
Cal.Rptr. 484].) Although we are aware that McConville v. Alexis, 97
Cal.App.3d 593 [159 Cal.Rptr. 49] holds that a six month's suspension
of a driver's license constitutes a substantial interference with a
vested fundamental right, and the trial court properly employed the
independent judgment test in reviewing the department's decision, we
are inclined toward the ruling in McGue. However, in light of our
holding that petitioner's conduct constituted a refusal as a matter of
law and the trial court erred in its conclusion that there is no
authority for the procedure used by the officer, we deem the test
employed by the trial judge in reviewing the department's decision to
be of no significance here.

Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165 , 195 Cal.Rptr. 707

2008-05-17T15:24:00.001-07:00

[1] Petitioner first asserts he was improperly advised of the legal
consequences of failure to submit to or complete a chemical test.
Petitioner refers to the transcript of the formal hearing wherein the
arresting officer testified at one point in conclusionary terms that
he told petitioner his driver's license "could" be suspended if he
refused to submit to a chemical test. Petitioner citesDecker v.
Department of Motor Vehicles (1972) 6 Cal.3d 903 [101 Cal.Rptr. 387,
495 P.2d 1307], for the proposition that an [148 Cal.App.3d 169]
arresting officer's use of the words "could be suspended" in a license
suspension admonition does not give sufficient warning of the legal
consequences of refusal to submit to or complete a chemical test and
therefore cannot be used as a basis for suspension. (Id, at pp.
905-907.)

We agree with Decker that section 13353 explicitly requires one
arrested for driving under the influence of alcohol be told his
failure to submit to a chemical test will result in suspension of his
driver's license. At the same time it is the duty of this court to
review all of the evidence presented at the administrative hearing,
and not just the evidence petitioner elects to quote out of context.
Our review of the entire transcript manifests petitioner was told by
the arresting officer that failure to submit to or complete a chemical
test would result in a suspension of his driver's license. Thus, the
arresting officer twice informed petitioner at the scene of the
arrest: "If you refuse to submit to a test or fail to complete a test,
your driving privilege will be suspended for a period of six months."
(Italics added.) fn. 2 If the foregoing were not enough, petitioner
testified he was told by the arresting officer he would lose his
driver's license if he did not submit to a chemical test. fn. 3

Our review of the record manifests beyond any doubt petitioner was
informed and aware of the fact that refusal to submit to a chemical
examination would result in a suspension of his driver's license.
Petitioner's assertion to the contrary must be rejected.

[2] Petitioner next argues he never refused to take a chemical test. A
brief explanation is required.

Following petitioner's arrest, the arresting officer informed
petitioner that he was required to submit to a chemical test, either
blood, urine or breath, [148 Cal.App.3d 170] and then asked petitioner
which test he wanted to take. Petitioner's response was that he did
not "want to take any fucking test." Petitioner now argues his
response was a reply only to whether he wanted to take a test, but not
whether he would have been willing to take a test if he had been so
asked. Petitioner argues that had he been asked by the arresting
officer "will you" or "which test will you take" and then answered as
he did, his answer would constitute a refusal. He asserts, however,
there cannot be a refusal until there is an unambiguous request that
the accused take a test, and that an officer's question "would you
like to take a test" or "which test do you want to take" to which a
negative answer is supplied does not constitute a refusal. We
disagree.

The law enforcement officers of this state have more important things
to do than to engage in semantic gamesmanship with those arrested for
driving under the influence of alcohol. Petitioner was clearly and
unequivocally informed that he was required by law to submit to a
chemical test or lose his driver's license, and was asked which test
he wanted to take. Plaintiff's response was equally clear and
unequivocal; he did not want to take any test. "The determining factor
is not the state of the suspect driver's mind, it is the fair meaning
to be given his response to the demand that he submit to the chemical
test." (Maxsted v. Department of Motor Vehicles (1971) 14 Cal.App.3d
982 , 986 [92 Cal.Rptr. 579].) Petitioner was informed of the law and
provided an opportunity to comply; he refused, and such refusal
constitutes a valid basis for suspension of his driver's license.

III

[3] Finally, plaintiff asserts that because a blood test was taken at
the hospital, there is no basis for the finding that he refused to
submit to a chemical examination. Petitioner contends that the officer
told him he could consent to a test at any time and that he did so at
the hospital when he allowed blood to be taken. This argument is
unavailing. A defendant may not verbally refuse to take a test
required by section 13353 and avoid the license suspension mandated by
the statute by later agreeing to take a specified test. (Covington v.
Department of Motor Vehicles (1980) 102 Cal.App.3d 54 , 59 [162
Cal.Rptr. 150]; Skinner v. Sillas (1976) 58 Cal.App.3d 591 , 598-599
[130 Cal.Rptr. 91]; Zidell v. Bright (1968) 264 Cal.App.2d 867 , 870
[71 Cal.Rptr. 111]; see Buchanan v. Department of Motor Vehicles
(1979) 100 Cal.App.3d 293 , 298 [160 Cal.Rptr. 557].) "[O]nce the
suspect refuses to take one of the three tests, blood, urine, or
breath, there is no requirement that the officers thereafter give him
a test when he decides he is ready. [Citation.]" (Skinner v. Sillas,
supra, 58 Cal.App.3d at p. 598.) In the instant case, the arresting
officer gave petitioner incorrect advice when the officer told
petitioner he could consent to [148 Cal.App.3d 171] the taking of a
test after having initially refused a test. However, we need not
consider the effect of the officer's incorrect advice on the instant
case, because it is clear petitioner never consented to a test.
Petitioner's own testimony indicates he never voluntarily submitted to
a blood test but rather allowed blood to be taken because "it would be
sheer stupidity to fight anybody. If they're going to take a test,
they're going to take a test."

Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870 [189
Cal.Rptr. 249], controls here. There, the respondent informed the
arresting officer he would not submit to a chemical test without first
consulting an attorney, notwithstanding the officer's advisement that
such an option was not available. Thereafter, respondent was
transported to a local hospital where a blood sample was taken from
respondent to be used as evidence in a subsequent criminal
prosecution. On appeal, respondent argued that while he may have been
reluctant to comply with the officer's request to submit to chemical
examination, there was no refusal because he did in fact "complete"
the test administered. The Cole court disagreed, holding there was no
evidence in the record of any voluntary submission on respondent's
part to any of the blood alcohol tests offered by the arresting
officer. "To require a showing of physical force perpetrated by the
arresting officer against the arrestee or vice versa before
characterizing the conduct in the instant case as a refusal would be
not only foolhardy but inconsistent with the purposes of Vehicle Code
section 13353 as well." (Id, at p. 874, fn. 4.) "The fact that a blood
sample ultimately was obtained and the test completed is of no
significance." (Id, at p. 875.) We agree with this appraisal. Here, as
in Cole, the only fair meaning that can be drawn from petitioner's
conduct is that he refused to submit to a chemical test.

The judgment is affirmed.

Puglia, P. J., and Sparks, J., concurred.

FN 1. All statutory references are to the Vehicle Code.

FN 2. In giving this admonition, the arresting officer twice read
the following warning to petitioner: "You are required by state law to
submit to a chemical test to determine the alcoholic content of your
blood. You have a choice of whether the test is to be of your blood,
breath or urine. If you refuse to submit to a test or fail to complete
a test, your driving privilege will be suspended for a period of six
months. You do not have the right to talk to an attorney or to have an
attorney present before stating whether you will submit to a test,
before deciding which test to take, or during the administration of
the test chosen. If you are incapable, or state you are incapable, of
completing the test you choose, you must submit to and complete any of
the remaining tests or test. If you refuse to submit to a test, the
refusal may be used against you in a court of law."

FN 3. "Mr. Ewing [counsel for petitioner]: Did he [Officer Elliot]
tell you that if you did not submit to a chemical test you'd lose your
drivers [sic] license?

"Mr. Morgan [petitioner]: Yeah, I think he did, but I said that I
didn't want a blood test."

People v. Warlick (2008) , Cal.App.4th Supp.

2008-05-17T15:23:00.001-07:00

Vehicle Code section 23152, subdivision (b) (section 23152(b)) fn. 1
prohibits driving a motor vehicle with a blood-alcohol level of 0.08
percent or greater. In this case, a standard breath test administered
to the defendant shortly after an accident showed a blood-alcohol
level of 0.07 percent. The People offered to introduce expert
testimony to show that defendant's blood-alcohol level was at least
0.08 percent at the time he drove his car. The proposed expert
testimony was based on a methodology known as "retrograde
extrapolation." It considered the breath test results, the defendant's
statements regarding when he last consumed alcohol, and studies
regarding the normal "elimination rate" for alcohol in the blood in
reaching a conclusion regarding the defendant's blood-alcohol content
at the time of driving. {Slip Opn. Page 2}

At defendant's request, the trial court excluded the proposed expert
testimony. Relying primarily on Baker v. Gourley (2002) 98 Cal.App.4th
1263 , the court inferred a legislative intent that a violation of
section 23152(b) cannot be proven without a valid chemical test
showing a blood-alcohol content of 0.08 percent or greater. With the
People's expert testimony excluded, the court granted the defendant's
motion to dismiss the charge pursuant to Penal Code section 1118.1.

We conclude that Baker v. Gourley, supra, 98 Cal.App.4th 1263 , does
not stand for nearly so sweeping a proposition. Nor do we find
anything in the language of section 23152(b) suggesting an inflexible
limitation on the manner in which the People can prove their case. The
fact that the Legislature provided a presumption that favors the
People if they can show a blood-alcohol chemical test result of 0.08
percent or greater within three hours after driving does not mean they
cannot attempt to prove their case without the benefit of the
statutory presumption. Here, because the People were prevented from
trying to make their case, we reverse and remand with directions to
reinstate the section 23152(b) charge and deny defendant's request to
exclude the proposed retrograde extrapolation testimony.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of May 27, 2006, California Highway Patrol
Officer Chris Jensen was dispatched to investigate a collision
involving a vehicle driven by defendant Benjamin F. Warlick. At the
scene of the collision, Warlick admitted to drinking alcohol earlier
in the evening. A preliminary alcohol screening (PAS) test
administered by Jensen showed that Warlick had a blood-alcohol level
of 0.07 percent at approximately 12:17 a.m. Charged with violating
section 23152(b), Warlick made a motion in limine to exclude any
expert testimony based on retrograde extrapolation analysis. The trial
court conducted a hearing pursuant to Evidence Code section 402 at
which the prosecution offered the testimony of Marisa Ochoa, a
criminalist from the San Diego Sheriff's Department. Based on the PAS
test result, Warlick's statements about his consumption of alcohol,
and studies regarding normal alcohol elimination rates, Ochoa
indicated she would opine that Warlick had a blood-alcohol level of at
least 0.08 percent at the time of driving. The trial court ruled
Ochoa's proposed testimony inadmissible. It read Baker v. Gourley,
supra, 98 Cal.App.4th 1263 , as holding that a violation of section
23152(b) cannot be proved without a chemical test showing a
blood-alcohol level of 0.08 percent or greater. {Slip Opn. Page 3} Any
other result, the court reasoned, would permit proof of a violation by
means of circumstantial evidence, an outcome it believed was
specifically precluded by Baker . ( See Baker, supra, 98 Cal.App.4th
at p. 1273.)

Because the prosecutor conceded he could not establish a violation of
section 23152(b) without retrograde extrapolation evidence, the court
dismissed the charge. The People then filed this appeal. (See Pen.
Code, § 1466, subd. (b).)

DISCUSSION

Section 23152(b) makes it "unlawful for any person who has 0.08
percent or more, by weight, of alcohol in his or her blood to drive a
vehicle." The statute also creates "a rebuttable presumption that the
person had 0.08 percent or more, by weight, of alcohol in his or her
blood at the time of driving the vehicle if the person had 0.08
percent or more, by weight, of alcohol in his or her blood at the time
of the performance of a chemical test within three hours after the
driving." (Ibid. )

In Baker v. Gourley, supra, 98 Cal.App.4th 1263 , the Court of Appeal
reviewed a pretrial administrative license suspension by the
Department of Motor Vehicles (DMV) under section 13353.2 after a
driver was arrested for driving with a blood-alcohol level of 0.08
percent or greater. Because the DMV failed to meet its burden of
showing that a chemical test that was not conducted in accordance with
applicable regulations was nevertheless reliable, the test results
were deemed inadmissible. ( Baker, supra, at p. 1265.) Faced with no
admissible chemical test, the DMV attempted to justify its suspension
of the defendant's license with evidence of symptoms typically
associated with intoxication, such as slurred speech and bloodshot
eyes. ( Ibid .)

The Baker court framed the question before it as follows: "Can a given
amount of blood-alcohol level be established without a valid chemical
test by evidence of behavior or indicia typically associated with
intoxication, such as, like here, slurred speech, bloodshot eyes, or
an unsteady gait?" ( Baker v. Gourley, supra, 98 Cal.App.4th at pp.
1265-1266.) Noting that these factors may be present in a person with
a blood-alcohol level of less than 0.08 percent, the Court of Appeal
found this evidence inadequate to support the summary suspension of
the defendant's driver's license. It was in this context that the
Baker court noted that "circumstantial evidence without a valid
chemical test is insufficient to suspend a license." ( Id. at p.
1273.) {Slip Opn. Page 4}

The Baker decision is limited by its terms to the "so-called'Admin Per
Se' laws where the . . . DMV suspends a driver's license when a
motorist has been arrested for drunk driving before the motorist has
had the benefit of a trial in a court of law." ( Baker v. Gourley,
supra, 98 Cal.App.4th at p. 1264.) The court was careful to emphasize
that the case did " not involve a criminal prosecution for drunk
driving." ( Ibid. ) These limitations alone advise caution in
extending the Baker holding to a criminal action for violation of
section 23152(b).

But even assuming that the per se nature of section 23152(b) would
make Baker 's analysis of section 13353.2 similarly applicable, the
factual context of that case is of crucial importance in understanding
the scope of the holding. Baker 's statement precluding reliance on
circumstantial evidence was based expressly on the lack of a " valid
chemical test." ( Baker v. Gourley, supra , 98 Cal.App. 4th at p.
1273, italics added.) Here in contrast, there was a perfectly valid
chemical test -- that happens to show a blood-alcohol level of only
0.07 percent. By its express terms, then, the statement relied on by
the trial court here simply does not apply.

Moreover, the circumstantial evidence considered in Baker is of an
entirely different nature than that offered here, and the Baker
court's comment must be understood in its factual context. " 'It is
the general rule that the language of an opinion must be construed
with reference to the facts presented by the case, and the positive
authority of a decision is coextensive only with such facts.' " (
Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 , 734-735,
quoting River Farms Co. v. Superior Court (1933) 131 Cal.App. 365,
369.) The circumstantial evidence in Baker was insufficient precisely
because "the usual symptoms of substantive intoxication -- slurred
speech, bloodshot eyes, etcetera -- can manifest themselves at a
blood-alcohol level below .08." ( Baker v. Gourley, supra, 98
Cal.App.4th at p. 1273.) In other words, even a driver who manifests
the "usual symptoms" may not have had a blood-alcohol level of at
least 0.08 percent. Here, the whole point of the proffered retrograde
extrapolation analysis will be to show that if Warlick had a
blood-alcohol level of 0.07 percent at 12:17 a.m., he must have had a
level of at least 0.08 percent when he was driving.

This less expansive reading of Baker has the added advantage of making
it consistent with Supreme Court decisions recognizing the validity of
retrograde extrapolation evidence, albeit in contexts different than
the facts of this case. (See People v. Clark (1993) 5 Cal.4th 950 ,
993.) The fact that such {Slip Opn. Page 5} extrapolations " ' "can be
speculative" ' (goes to the weight rather than the admissibility of
such testimony. ( People v. Thompson (2006) 38 Cal.4th 811 , 834 (dis.
opn. of Werdegar, J.).)

In addition to relying on Baker , the trial court here seemed to
interpret section 23152(b) itself as precluding conviction in the
absence of a chemical test showing a blood-alcohol level of 0.08
percent or higher. According to the court, the California statute
differs from statutes in other states in that section 23152(b)
eliminates the need for the prosecution to circumstantially prove the
actual blood-alcohol level at the time of driving. It construed the
statute as having been written to "obviate" the need for all
circumstantial evidence, including retrograde extrapolation evidence.

To the contrary, however, nearly 25 years ago in Burg v. Municipal
Court (1983) 35 Cal.3d 257 , the Supreme Court made clear that proving
a violation of section 23152(b) nearly always requires circumstantial
evidence. As the court noted, the statute "prohibits driving a vehicle
with a blood-alcohol level" above the legal limit; "it does not
prohibit driving a vehicle when a subsequent test shows a level" above
the legal limit. (35 Cal.3d at p. 266, fn. 10.) The crucial issue,
then, is whether the defendant drove a vehicle at a time when his or
her blood-alcohol level was 0.08 percent or higher. Since rarely, if
ever, would a blood-alcohol test be performed while the defendant was
driving, "[c]ircumstantial evidence will generally be necessary to
establish the requisite blood-alcohol level called for by the
statute." ( Ibid .) And a chemical test "will, obviously, be the usual
type of circumstantial evidence ...." ( Ibid. ) Here, the prosecution
proposes to do nothing more than use chemical test results in
conjunction with other evidence to circumstantially prove that Warlick
drove a vehicle with a blood-alcohol level above the legal limit. fn.
2

The trial court's comments also suggest a belief that the rebuttable
presumption created by the last sentence of section 23152(b) somehow
demonstrates a legislative intent to preclude prosecutions without a
chemical test showing a blood-alcohol level of 0.08 percent or
greater. But this presumption or inference (see generally People v.
Beltran, supra, 157 Cal. App. 4th at pp. 241-244) does not define
{Slip Opn. Page 6} the crime or create a rule of substantive law. (See
2 Jefferson, California Evidence Benchbook (3d rev. ed. 2003) § 46.11,
p. 1056.) Rather, it focuses on the prosecution's ability to prove one
fact by reference to another. Where the People introduce evidence of a
valid chemical test administered within three hours of the defendant's
driving showing a blood-alcohol level of at least 0.08 percent, in the
absence of other evidence the trier of fact may infer that the
defendant's blood-alcohol level at the time of driving was in excess
of the legal limit. The statute simply does not address what can be
inferred from a different set of circumstantial evidence, including a
0.07 percent bloold-alcohol chemical test result in combination with
other facts, which together suggest the defendant's blood-alcohol
level was higher at the time of driving.

CONCLUSION

Nothing in either the language of section 23152(b) or the construction
of the statute by California appellate courts prevents the prosecution
from trying to prove a statutory violation using expert testimony that
relies on retrograde extrapolation evidence. Because the People in
this case were precluded from even making the attempt, we reverse the
order of dismissal and remand for further proceedings.

Hernandez, J., and Dato, J., concurred.

FN 1. All statutory references are to the Vehicle Code unless
otherwise indicated.

FN 2. Indeed, "retrograde extrapolation" is nothing more than the
prosecutorial version of the " 'rising blood-alcohol' defense." (
People v. Beltran (2007) 157 Cal. App. 4th 235, 246.) Each starts with
the defendant's blood-alcohol level at the time of chemical test and
relies on circumstantial evidence regarding the direction of change to
convince the trier of fact that the level was different -
significantly higher or lower - at the time of driving.

Roelfsema v. Department of Motor Vehicles (1995) 41 Cal.App.4th 871 , 48 Cal.Rptr.2d 817

2008-05-12T22:48:00.001-07:00

On September 10, 1993, at 10:55 p.m., in Palo Alto, California,
Officer Van Otten of the California Highway Patrol stopped respondent
at a sobriety checkpoint. Upon contacting respondent, the officer
observed signs of intoxication. Specifically, respondent's breath
smelled of alcohol, her eyes were red, watery, and glassy, and she
failed the field sobriety tests. The officer arrested respondent at
11:05 p.m. for violation of Vehicle Code section 23152. fn. 1 At
11:55 p.m., respondent submitted to a blood test that reported her
blood-alcohol content to be 0.21 percent. The officer issued an
"Administrative Per Se Order of Suspension/Revocation Temporary
License Endorsement," ordering that respondent's privilege to operate
a motor vehicle be suspended in 30 days.

Respondent requested an administrative hearing with the DMV. The
hearing was held on October 7, 1993. The DMV hearing officer presented
and admitted, over respondent's objections, the sworn statement of
Officer Van Otten, the temporary license, and the blood test results.
Van Otten's statement provided, "While working a DUI check point, I
observed the driver in a vehicle. Upon contact, I smelled the odor of
an alcoholic beverage and the Subj.'s eyes were red, watery and
glassy. Subj. failed F.S.T.'s/did not complete." Officer Van Otten
testified that there was no arrest warrant. On October 8, 1993, the
DMV issued the order sustaining the suspension of respondent's driving
privilege for four months.

On October 23, 1993, respondent petitioned for a writ of mandate
requesting that the trial court set aside the administrative decision.
The DMV filed its answer on November 19, 1993. Argument was heard on
December 10, 1993. The court granted the petition on the grounds that
the arrest was unlawful because the DMV did not prove that the
sobriety checkpoint had been publicized in advance.

On January 5, 1994, the DMV filed a motion to reconsider order
granting petition for writ of mandate in light of People v. Banks
(1993) 6 Cal.4th 926 [41 Cal.App.4th 875] [25 Cal.Rptr.2d 524, 863
P.2d 769]. Banks held that advance publicity is not a constitutional
prerequisite to the operation of a sobriety checkpoint. (Banks, supra,
6 Cal.4th at p. 931.) Argument was heard on January 7, 1994. The
motion to reconsider was denied on the grounds that the DMV failed to
establish the remaining factors in Ingersoll. Judgment was entered on
June 20, 1994. The DMV filed a timely appeal.

Standard of Review

[1] "Upon the driver's timely request, the Department must hold an
administrative hearing at which the evidence is not limited to that
presented at the prior administrative review. [Citation.] The
Department's determination is then subject to judicial review.
[Citation.] The trial court must conduct its review on the record of
the hearing and may not consider other evidence. [Citation.] The task
for the trial court is to determine, exercising its independent
judgment, whether the administrative decision was supported by the
weight of the evidence. [Citations.] On appeal, the only question is
whether substantial evidence supports the trial court's decision.
[Citations.]" (Santos v. Department of Motor Vehicles (1992) 5
Cal.App.4th 537 , 545 [7 Cal.Rptr.2d 10].)

Discussion

[2a] Respondent claims the DMV must prove the constitutionality of a
sobriety checkpoint as part of its "prima facie" case in a proceeding
pursuant to Vehicle Code section 13558. The trial court agreed,
relying upon Ingersoll v. Palmer, supra, 43 Cal.3d 1321 . As we shall
explain, the trial court erred. The DMV does not have to prove the
constitutionality of every sobriety checkpoint in every section 13558
license suspension hearing it considers.

We begin with Ingersoll v. Palmer. In Ingersoll, the California
Supreme Court considered whether sobriety checkpoints were
constitutional. Petitioners fn. 2 argued that the validity of the
sobriety checkpoint should be analyzed under the standard set out in
In re Tony C. (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957],
"requiring an individualized suspicion of wrongdoing." (Ingersoll v.
Palmer, supra, 43 Cal.3d 1321 , 1327.) [3] Rejecting this contention,
Ingersoll explained that the primary purpose of a sobriety checkpoint
is not to detect evidence of crime or arrest drunk drivers but to
"promote public safety by deterring intoxicated persons from driving
on the public streets and highways." (Id. at p. 1328.) Given this
purpose, Ingersoll found that the propriety of sobriety checkpoints
should be assessed [41 Cal.App.4th 876] under the standard applicable
to investigative detentions and inspections occurring as part of a
regulatory scheme in furtherance of an administrative purpose, and not
by the standard applying to traditional criminal investigative stops.
(Ibid.) Ingersoll also noted that the In re Tony C. court "expressly
recognized that individualized suspicion that the contactee is
involved in criminal activity is not required in certain types of
police-citizen contacts." (Ingersoll v. Palmer, supra, 43 Cal.3d 1321
, 1330, italics added.)

Having made this distinction, Ingersoll next examined various types of
seizures which did not require "reasonable suspicion." Ingersoll
discussed airport security screening searches, building inspections,
and border patrol checkpoint inspections. With respect to border
patrol searches, the court discussed United States v. Martinez-Fuerte
(1976) 428 U.S. 543 [49 L.Ed.2d 1116, 96 S.Ct. 3074], and emphasized
that Martinez-Fuerte held that no warrant was required for such
searches: "The need to provide an assurance of legitimacy of the
search/seizure required a warrant in the building inspection context,
but that need was served alternatively in the checkpoint operation by
the visible manifestation of authorization in the form of signs
announcing the roadblock, official insignia and vehicles, and fully
uniformed personnel." (Ingersoll v. Palmer, supra, 43 Cal.3d at pp.
1333-1334.) After analyzing these decisions, Ingersoll concluded that
"stops and inspections for regulatory purposes may be permitted if
undertaken pursuant to predetermined specified neutral criteria
[citation] such as the criteria for a checkpoint stop [citation]."
(Id. at p. 1335.)

Having so concluded, Ingersoll then assessed the constitutional
reasonableness of the sobriety checkpoint by "weighing the gravity of
the governmental interest or public concern served and the degree to
which the program advances that concern against the intrusiveness of
the interference with individual liberty." (Ingersoll v. Palmer,
supra, 43 Cal.3d at p. 1338.) [4] In examining the intrusiveness of
such checkpoints, the Ingersoll court identified eight factors to
"provide functional guidelines for minimizing the intrusiveness of the
sobriety checkpoint stop." (Ingersoll, supra, 43 Cal.3d at p. 1341.)
These factors are: (1) decisionmaking at the supervisory level; (2)
limits on discretion of field officers as to who is to be stopped; (3)
maintenance of safety conditions; (4) reasonable location of the
checkpoint; (5) a reasonable time and duration of the checkpoint; (6)
indicia of the official nature of the roadblock; (7) the length and
nature of the detention; and (8) advance publicity regarding each
checkpoint. (Ingersoll, supra, 43 Cal.3d at pp. 1341-1347.)

Ingersoll concluded, "while the intrusiveness of a sobriety checkpoint
is not trivial, the enumerated safeguards operate to minimize the
intrusiveness to the extent possible.... [¶] On balance, the intrusion
on Fourth [41 Cal.App.4th 877] Amendment interests is sufficiently
circumscribed so that it is easily outweighed and justified by the
magnitude of the drunk driving menace and the potential for
deterrence." (Ingersoll v. Palmer, supra, 43 Cal.3d at p. 1347.)

Three years after the Ingersoll decision, the United States Supreme
Court considered the constitutionality of sobriety checkpoints in
Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444 [110
L.Ed.2d 412, 110 S.Ct. 2481]. The court went through the same
balancing test as Ingersoll, and it also concluded that sobriety
checkpoints were constitutional.

Subsequently, in People v. Banks, supra, 6 Cal.4th 926 , the
California Supreme Court revisited the sobriety checkpoint issue. In
Banks, the court considered whether advance publicity, which is one of
the Ingersoll guidelines, was a constitutional prerequisite to the
operation of a sobriety checkpoint. In addressing the issue, the court
again emphasized that " 'federal constitutional principles require a
showing of either the officer's reasonable suspicion that a crime has
occurred or is occurring or, as an alternative, that the seizure is
"carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers." [Citations.]' "
(People v. Banks, supra, 6 Cal.4th at p. 936, latter italics added.)

In accordance with Michigan Dept. of State Police v. Sitz, supra, 496
U.S. 444, Banks concluded, "the operation of a sobriety checkpoint
conducted in the absence of advance publicity, but otherwise in
conformance with the guidelines we established in Ingersoll v. Palmer
[citation] does not result in an unreasonable seizure within the
meaning of the Fourth Amendment to the United States Constitution."
(People v. Banks, supra, 6 Cal.4th at p. 949, italics added.) fn. 3

As Ingersoll makes clear, sobriety checkpoints are constitutional so
long as certain guidelines are followed. The eight factors identified
in Ingersoll provide "functional guidelines" to assess the
intrusiveness of a checkpoint. However, the absence of one factor,
such as the failure to provide advance publicity, does not necessarily
mean the checkpoint is unconstitutional. (People v. Banks, supra, 6
Cal.4th at p. 949.)

Since sobriety checkpoints are constitutional, we must now consider
how those checkpoints mesh with the Vehicle Code license suspension
scheme. [41 Cal.App.4th 878] Vehicle Code section 13558 fn. 4
authorizes the licensee to request an administrative hearing regarding
a section 13353.2 license suspension. fn. 5 At such hearing, "[t]he
only issues ... shall be those facts listed in paragraph (2) of
subdivision (b) of Section 13557." (§ 13558, subd. (c)(2).)

Section 13557, subdivision (b)(2) provides in pertinent part that "If
the department determines in the review of a determination made under
Section 13353.2, by the preponderance of the evidence, all of the
following facts, the department shall sustain the order of suspension
or revocation ...: [¶] (A) That the peace officer had reasonable cause
to believe that the person had been driving a motor vehicle in
violation of Section 23136, 23140, 23152, or 23153. [¶] (B) That the
person was placed under arrest or, if the alleged violation was of
Section 23136, that the person was lawfully detained. [¶] (C) That the
person was driving a motor vehicle under any of the following
circumstances: (i) When the person had 0.08 percent or more, by
weight, of alcohol in his or her blood."

In this case, respondent requested a hearing to consider the three
issues under section 13557. At the hearing, the DMV submitted the
"Officer's Statement." The arresting officer stated: "While working a
DUI check point, I observed the driver in a vehicle. Upon contact, I
smelled the odor of an alcoholic beverage and the Subj.'s eyes were
red, watery and glassy. Subj. failed F.S.T.'s/did not complete." The
breath test printout was also admitted, and the arresting officer
testified. The arresting officer testified that the "Officer's
Statement" was completed and signed by him at or near the time of the
incident.

[5a] "An officer's statement reporting firsthand
observations-objective symptoms of intoxication, circumstances of a
driver's refusal to submit to a chemical test, or results of a
personally administered breath test-falls within the public employee
records exception to the hearsay rule. [Citations.]" (Santos v.
Department of Motor Vehicles, supra, 5 Cal.App.4th 537 , 546.) Under
the exception, a writing recording an act, condition or event is
admissible if the writing was: (1) made by and within the scope of
duty of a public employee; (2) at or near the time of the act,
condition or event; and (3) the sources of information and method and
time were such as to indicate its trustworthiness. (Evid. Code, §
1280; Santos v. Department of Motor Vehicles, supra, 5 Cal.App.4th at
pp. 546-547.)

In this case, the officer stated that he was "working a DUI
checkpoint." Under the hearsay exception above, this statement shows
the officer "was [41 Cal.App.4th 879] working a DUI checkpoint" when
respondent was stopped. As already discussed, sobriety checkpoints are
constitutional so long as certain requirements are met. "[T]he
operation of a sobriety checkpoint conducted in the absence of advance
publicity, but otherwise in conformance with the guidelines we
established in Ingersoll v. Palmer ... does not result in an
unreasonable seizure within the meaning of the Fourth Amendment to the
United States Constitution." (People v. Banks, supra, 6 Cal.4th at p.
949, italics added.) Further, the evidence showing that there was a
checkpoint, and that the officer witnessed signs of respondent's
intoxication, demonstrates that "the peace officer had reasonable
cause to believe that [respondent] had been driving a motor vehicle in
violation of Section ... 23152 ...." (§ 13557, subd. (b)(2)(A).) The
fact that there was a checkpoint justified the officer's stopping
respondent, and his subsequent observations of her condition gave him
reasonable cause to believe she had been driving under the influence.

This interpretation comports with common sense and fosters efficiency.
[2b] We doubt that the Legislature intended to require the DMV to
prove the constitutionality of each and every sobriety checkpoint, at
every license revocation hearing, regardless of whether the issue had
been raised. Such a result would be highly inefficient. No case has
imposed such a requirement upon the DMV.

[5b] Further, Evidence Code section 664 provides that "It is presumed
that official duty has been regularly performed. This presumption does
not apply on an issue as to the lawfulness of an arrest if it is found
or otherwise established that the arrest was made without a warrant."
Thus, in the absence of evidence to the contrary, it is presumed that
official duty has been properly performed. (Spahn v. Spahn (1945) 70
Cal.App.2d 791 , 793 [162 P.2d 53]; see also Davenport v. Department
of Motor Vehicles (1992) 6 Cal.App.4th 133 , 143 [7 Cal.Rptr.2d 818];
McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519 ,
525 [7 Cal.Rptr.2d 18]; Imachi v. Department of Motor Vehicles (1992)
2 Cal.App.4th 809 , 815 [3 Cal.Rptr.2d 478].) In McKinney, supra, the
court held that the DMV was not required to prove, in every
administrative suspension hearing, that the blood alcohol test was
properly administered and the machine was in working order. "Given the
statutory presumption that official duty has been regularly performed
(Evid. Code, § 664), the burden was on the person challenging the
result, here McKinney, to show that there was some irregularity in the
administration of the test such as would bring into question the
reliability of the BAL readings." (McKinney v. Department of Motor
Vehicles, supra, 5 Cal.App.4th at p. 525; see also Imachi v.
Department of Motor Vehicles, supra, 2 Cal.App.4th 809 .) [41
Cal.App.4th 880]

[2c] In this case, it is presumed the checkpoint was operated
consistent with Ingersoll. The official duty-setting up and operating
the sobriety checkpoint-is presumed to have been regularly performed.
(Evid. Code, § 664.) Once the presumption attaches, it is then up to
the licensee to attack the propriety of the checkpoint. She must show
there was "some irregularity" in the sobriety checkpoint operation.
(Cf. McKinney v. Department of Motor Vehicles, supra, 5 Cal.App.4th at
p. 525.) Until she does so, the constitutionality of the checkpoint is
not at issue.

Although respondent claims the Evidence Code section 664 presumption
does not apply because she was arrested without a warrant, she applies
the presumption to the wrong facts. Section 664 authorizes a
presumption that the checkpoint itself was lawful-operated in a
regular manner. Section 664 does not permit a presumption that
respondent's arrest was lawful. Once the existence of the checkpoint
is shown, the DMV still must show there were grounds to arrest
respondent-reasonable cause to believe she had been unlawfully
operating a motor vehicle. (Veh. Code, § 13557, subd. (b)(2)(A).)

Accordingly, once it was demonstrated that respondent was stopped
pursuant to a sobriety checkpoint, and it is presumed such a
checkpoint was "performed regularly," it was respondent's obligation
to attack the constitutionality of the checkpoint if she so chose. Had
she done so, then the DMV would have had to consider whether the
checkpoint was constitutional under the Ingersoll guidelines. But
respondent did not raise this issue. Rather, she contended the DMV was
required to establish, as part of its "prima facie" case, that the
Ingersoll guidelines were met.

Indeed, respondent never explained why she believed the checkpoint was
unconstitutional. In fact, at the hearing, she never precisely raised
the issue of unconstitutionality at all. At the end of the hearing,
respondent simply stated, "And the argument is that the suspension
should not go into effect based on a failure of proof, in that, the
cases of Ingersoll and a current one, which is now, I believe being
examined by the Courts, which is the Banks case, indicate there must
be a certain showing made for a check point stop. My understanding,
having read the law is that the burden shifts once I show that there
was no arrest warrant to the people who want to suspend the license,
whether it be you, the DMV, or the criminal courts, that failure of
any proof to show the lawfulness of the arrest, there's been a failure
of proof, and therefore the arrest, itself, has not been proven to be
lawful ...."

Accordingly, since respondent failed to properly raise the issue of
the constitutionality of the sobriety checkpoint, and merely claimed
it was the [41 Cal.App.4th 881] DMV's responsibility, as part of its
"prima facie" case, to show compliance with Ingersoll, the checkpoint
issue was not before the DMV. Since the issue was not before the DMV,
the DMV was not obligated to consider whether the sobriety checkpoint
complied with Ingersoll. The trial court therefore erred in granting
the writ of mandate.

Disposition

The judgment is reversed. Costs on appeal to appellant.

Cottle, P. J., and Premo, J., concurred.

FN 1. Vehicle Code section 23152 provides in pertinent part: "(a) It
is unlawful for any person who is under the influence of any alcoholic
beverage or drug, or under the combined influence of any alcoholic
beverage and drug, to drive a vehicle. [¶] (b) It is unlawful for any
person who has 0.08 percent or more, by weight, of alcohol in his or
her blood to drive a vehicle."

FN 2. The Ingersoll petitioners were California taxpayers seeking to
prohibit sobriety checkpoints in California.

FN 3. The court noted that its discussion was limited to the advance
publicity issue and that it was not revisiting the broader questions
addressed in Ingersoll and Sitz concerning the constitutionality
generally or the effectiveness of sobriety checkpoints. Further,
"nothing in our decision should be construed to suggest that any of
the eight guidelines set forth in Ingersoll, including advance
publicity [citation] are not relevant to a consideration of the
intrusiveness of a sobriety checkpoint stop." (People v. Banks, supra,
6 Cal.4th at p. 934, fn. 3, italics in original.)

FN 4. All unspecified statutory references are to the Vehicle Code.

FN 5. Section 13353.2 provides, among other things, that the DMV
shall immediately suspend a person's privilege to operate a motor
vehicle if the person was driving with .08 percent or more, by weight,
of alcohol in his or her blood.

People v. Bennett (1983) 139 Cal.App.3d 767 , 189 Cal.Rptr. 77

2008-05-12T22:47:00.001-07:00

Defendant Bennett pleaded guilty to charges of possession of cocaine
(Health & Saf. Code, § 11350), a felony, and driving a motor vehicle
while under the influence of alcohol and drugs (Veh. Code, § 23102,
subd. (a)), a misdemeanor. Imposition of judgment was suspended and he
was placed upon conditional probation. He appeals from the order
granting probation, which he terms "judgment" in his notice of appeal.
His only appellate contention is that the trial court erroneously
denied his motion to suppress certain evidence, claimed to be the
fruit of his unlawful detention and arrest, on his Penal Code section
1538.5 suppression hearing.

For reasons as follow we find no merit in the contention and affirm
the judgment.

A highway patrol officer about 2:30 o'clock one morning observed an
automobile traveling upon a freeway in such a manner as to swing "into
the south guard rail and [swing] back to prevent the vehicle from
striking the wall." The car then "crossed three lanes accelerating to
70 miles per hour"; and passed many other automobiles. As it
continued, it was "weaving" on both sides of a lane marker. It
continued to be so driven for about one and a half miles, whereupon
its driver was ordered to, and did, turn onto an off ramp. Upon being
stopped a short distance beyond that point the car's driver, who was
defendant Bennett, emerged from it. As he "stood up he stumbled back
into the open car door." Asking for his driver's license, the officer
observed a strong odor of alcohol, bloodshot watery eyes, and slurred
speech. The officer "explained" Bennett's violation to him and told
him why he had been stopped. And a field sobriety test was then
conducted.

The field sobriety test, as explained by the officer consisted of the
following: "[1] The subject is requested to stand erect with his heels
and toes right tight together. He is asked to leave his arms at his
sides, lean his head back and shot [sic 'shut'?] his eyes and stay in
position approximately ten or 15 seconds.... [2] The subject is
requested to just stand with one foot raised off the ground and then
repeat it with the other foot raised off the ground.... [3] The
subject is requested to just place one foot right directly in front of
the other foot touching heel to toe.... The fourth test was walking
heel to toe.... It's basically the same as standing heel to toe with
the difference you take steps each time placing one foot in front of
the other touching heel to toe as you walk a straight [139 Cal.App.3d
770] line.... The last test, No. 5, was the hand pat.... The subject
is requested to use whatever hand he feels most comfortable with and
strike with the palm down, lift, turn and strike the back of his hand,
and keep repeating the test and building up his speed...."

Bennett "flunked" all but the first of the five tests. He was not
until then placed under arrest, for driving a motor vehicle while
under the influence of alcohol, in violation of Vehicle Code section
23102, subdivision (a).

Bennett makes no contention that he was arrested, following the field
sobriety tests, on less than probable cause. [1a] He argues instead
that the highway patrol officer's detention of him and administration
of the tests, before his arrest on probable cause, was proscribed by
the Fourth Amendment.

Closely apposite to the contention, we think, is the wise and timely
comment of Chief Justice Traynor in People v. Sudduth (1966) 65 Cal.2d
543 , 546 [55 Cal.Rptr. 393, 421 P.2d 401]: "In a day when excessive
loss of life and property is caused by inebriated drivers, an
imperative need exists for a fair, efficient, and accurate system of
detection, enforcement and, hence, prevention.... A wrongful refusal
to cooperate with law enforcement officers does not qualify for such
protection. A refusal that might operate to suppress evidence of
intoxication, which disappears rapidly with the passage of
time...should not be encouraged as a device to escape prosecution."

A like contention was made by the defendant in Whalen v. Municipal
Court (1969) 274 Cal.App.2d 809 [79 Cal.Rptr. 523]. We quote at length
from the Court of Appeal's opinion (pp. 811-812) of that case:

"Defendant contends that the evidence obtained from the field sobriety
tests should be suppressed because it violates both the privilege
against self-incrimination of the Fifth Amendment of the United States
Constitution and the right to counsel as guaranteed by the Sixth
Amendment. These contentions are interrelated and must be considered
together.

"Our initial inquiry must be directed to whether the evidence secured
as a result of field sobriety tests is the type which the Fifth
Amendment of the Constitution of the United States is designed to
protect. As stated in Miranda v. Arizona, supra, 384 U.S. at page 439
[16 L.Ed.2d at p. 704], '[W]e deal with the admissibility of
statements obtained from an individual who is subjected to custodial
police interrogation and the necessity for procedures which assure
that the individual is accorded his privilege under the Fifth
Amendment to the Constitution not to be compelled to incriminate
himself.' (Italics added.) When discussing the type of evidence which
the Fifth Amendment protects, courts have repeatedly distinguished
between 'testimonial' and 'physical' evidence. [139 Cal.App.3d 771]
(SeeSchmerber v. California, 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct.
1826], involving chemical blood tests; People v. Ellis, 65 Cal.2d 529
[55 Cal.Rptr. 385, 421 P.2d 393], involving voice identification;
People v. Sudduth, 65 Cal.2d 543 [55 Cal.Rptr. 393, 421 P.2d 401],
involving breathalyzer test; People v. Graves, 64 Cal.2d 208 [49
Cal.Rptr. 386, 411 P.2d 114], involving handwriting exemplars.)

"InSchmerber v. California, supra, the defendant was forced to subject
himself to a blood test against his will to determine if he had been
driving an automobile while under the influence of intoxicating
liquor. The United States Supreme Court stated at pages 764, 765 [16
L.Ed.2d at pp. 916-917]: 'The distinction which has emerged, often
expressed in different ways, is that the privilege [against
self-incrimination]is a bar against compelling "communications" or
"testimony," but that compulsion which makes a suspect or accused the
source of "real or physical evidence" does not violate it.... Since
the blood test evidence, although an incriminating product of
compulsion, was neither petitioner's testimony nor evidence relating
to some communicative act or writing by the petitioner, it was not
inadmissible on privilege grounds.'

"We adopt the rationale ofSchmerber v. California, supra, for it is
apparent that if evidence obtained over a defendant's objection from a
blood test is not covered by the Fifth Amendment, assuredly evidence
obtained by an officer in observing a defendant perform the simple
physical exercises required in a field sobriety test does not fall
within the protection of the privilege."

We are aware that Whalen v. Municipal Court responded to a contention
of invalidity based on Fifth Amendment and Sixth Amendment grounds,
while here the contention concerns the Fourth Amendment only. But the
tests of reasonableness, as explicated by Chief Justice Traynor in
People v. Sudduth, supra, and as inSchmerber v. California, supra, 384
U.S. 757, are manifestly applicable also to field sobriety tests such
as with which we are here concerned.

On the related issue of "involuntariness," also raised by Bennett, we
observe that Whalen v. Municipal Court found no constitutional
violation although such a field test was described as an
"incriminating product of compulsion." We abide by the express and
implied holdings of that authority. [2] Normally a Court of Appeal
will follow prior decisions of its own or other districts or
divisions. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 667, p.
4580.) Moreover, as stated by Whalen v. Municipal Court, the high
court in Schmerber v. California found no constitutional transgression
where "the defendant was forced to subject himself to a blood test
against his will to determine if he had been driving an automobile
while under the influence of intoxicating liquor." (The italics are
ours.) [139 Cal.App.3d 772]

[1b] It is recognized, of course, that a motorist may not be stopped
by a police officer for no cause, or for harassment, and given such a
field sobriety test. Instead we are of the opinion that the criteria
ofIn re Tony C. (1978) 21 Cal.3d 888 , 894 [148 Cal.Rptr. 366, 582
P.2d 957], for a police officer's temporary stop or detention of a
suspect, is reasonably applicable to "drunken driver" suspects: It
follows:

[3] " [A] reasonable suspicion of involvement in criminal activity
will justify a temporary stop or detention. Under that standard, if
the circumstances are 'consistent with criminal activity,' they
permit--even demand--an investigation: the public rightfully expects a
police officer to inquire into such circumstances 'in the proper
discharge of the officer's duties.'.... No reason appears for a
contrary result simply because the circumstances are also 'consistent
with lawful activity,' as may often be the case. The possibility of an
innocent explanation does not deprive the officer of the capacity to
entertain a reasonable suspicion of criminal conduct. Indeed, the
principal function of his investigation is to resolve that very
ambiguity and establish whether the activity is in fact legal or
illegal--to 'enable the police to quickly determine whether they
should allow the suspect to go about his business or hold him to
answer charges.'.... The citizen's undoubted interest in freedom from
abuse of this procedure is protected--so far as it is within the law's
power to do so--by the correlative rule that no stop or detention is
permissible when the circumstances are not reasonably 'consistent with
criminal activity' and the investigation is therefore based on mere
curiosity, rumor, or hunch."

[1c] Here the temporary stop or detention of Bennett was manifestly
based on much more than "mere curiosity, rumor or hunch." Indeed, as
we view the facts and circumstances then apparent to the officer,
there was probable cause for Bennett's arrest, without the results of
the field sobriety tests.

The order granting probation, termed judgment in the notice of appeal,
is affirmed.

Racanelli, P.J., and Newsom, J., concurred.

People v. Banks (1993) 6 Cal.4th 926 , 25 Cal.Rptr.2d 524; 863 P.2d 769

2008-05-12T22:46:00.001-07:00

In this case we decide whether advance publicity is a prerequisite to
the operation of a constitutionally permissible highway "sobriety
checkpoint."

In Ingersoll v. Palmer (1987) 43 Cal.3d 1321 [241 Cal.Rptr. 42, 743
P.2d 1299] (hereafter Ingersoll), this court upheld the
constitutionality of sobriety checkpoints conducted pursuant to
various safeguards, observing, in the course of our analysis, that
advance publicity is one such safeguard "important to the maintenance
of a constitutionally permissible sobriety checkpoint." (Id. at p.
1346.) In the present case, the Court of Appeal interpreted Ingersoll
to require advance publicity as a prerequisite to the constitutional
validity of a sobriety checkpoint. As we shall explain, however, the
United States Supreme Court's analysis of the constitutionality of
sobriety checkpoints in Michigan State Police Dept. v. Sitz (1990) 496
U.S. 444 [110 L.Ed.2d 412, 110 S.Ct. 2481] (hereafter Sitz), decided
three years after our Ingersoll decision, establishes that advance
publicity is not a constitutional prerequisite to the operation of
such a checkpoint. Accordingly, we reverse the judgment of the Court
of Appeal.

I. Factual and Procedural Background

Defendant Mary Louise Banks was arrested for driving under the
influence of alcohol on November 18, 1990, after being stopped at a
sobriety checkpoint located on Pacific Coast Highway at the
intersection of First Street in the City of Seal Beach. The checkpoint
was operated by law enforcement officials of the Seal Beach, Cypress,
La Palma, and Los Alamitos police departments.

A complaint thereafter was filed in municipal court charging defendant
with violations of Vehicle Code former section 23152, subdivisions (a)
and [6 Cal.4th 932] (b), and other vehicular offenses. fn. 1 Defendant
entered a plea of not guilty and moved, pursuant to Penal Code section
1538.5, to suppress evidence (obtained at the sobriety checkpoint)
establishing her alcohol-related impairment. Her motion, challenging
the lawfulness of the sobriety checkpoint under the Fourth Amendment
to the United States Constitution, maintained that the checkpoint did
not conform to the guidelines set forth in Ingersoll.

At the hearing on the motion, the following evidence was adduced. The
location of the sobriety checkpoint, on a heavily congested roadway,
was chosen by supervisory law enforcement officials. The officers at
the checkpoint were instructed to select the first four vehicles from
every ten vehicles that approached the checkpoint between 10:10 p.m.
and 12:15 a.m., and the first four vehicles from every six vehicles
thereafter until 2:30 a.m., for the purpose of questioning the
occupants. Prior to establishment of the checkpoint, the law
enforcement officers operating it were briefed as to the manner in
which the checkpoint was to be marked clearly and conspicuously. The
officers used highway flares, cones, stop signs, overhead white
lights, traffic barricades mounted with flashing lights, and a truck
marked with arrows to identify the checkpoint and to divert motor
vehicles safely away from the flow of traffic. Drivers approaching the
checkpoint were confronted with a sign that read "Sobriety Checkpoint
Ahead." Officers were instructed not to pursue motorists who turned
their vehicles away before reaching the checkpoint. Numerous uniformed
officers and marked police vehicles were visible at the checkpoint.
Officers were instructed to detain approaching vehicles only for such
time as was necessary to question the driver briefly and look for
signs of intoxication. In the event such signs were found, the driver
was asked to exit from his or her vehicle so that a law enforcement
official could administer a field sobriety examination.

At the hearing, defendant testified that she did not observe highway
flares, a flashing arrow, or a sign indicating the presence of a
sobriety checkpoint, and that she drove through the checkpoint (until
she was asked to stop, as she was exiting from it) because she
believed someone was "making a movie." The municipal court found
defendant's testimony regarding the warnings at the checkpoint to be
less credible than that furnished by law enforcement officials. [6
Cal.4th 933]

Although one of the police officers testified that he previously had
participated in the operation of sobriety checkpoints, and that the
establishment of these prior checkpoints had been preceded by
publicity, the prosecution did not adduce any evidence specifically
demonstrating that the establishment of this particular sobriety
checkpoint was preceded by advance publicity.

At the conclusion of the hearing, the municipal court denied
defendant's motion to suppress evidence, ruling that advance publicity
was not a prerequisite to the constitutional validity of a sobriety
checkpoint and that the checkpoint otherwise complied with the
standards set forth in Ingersoll.

Following the municipal court's denial of her motion to suppress,
defendant pled guilty, received a suspended sentence, and was placed
on informal probation pending disposition of the present appeal.

In the appellate department of the superior court, defendant
reiterated her contention that advance publicity was required in order
to establish a constitutionally permissible sobriety checkpoint.
Rather than decide the issue, the appellate department certified
defendant's case to the Court of Appeal, which ordered transfer of the
case. (Cal. Rules of Court, rules 62(a), 63(a).) fn. 2 The Court of
Appeal thereafter reversed the judgment of the municipal court,
resting its decision on twin premises: (1) that under our decision in
Ingersoll, advance publicity is a "requirement" of a constitutionally
permissible sobriety checkpoint, and (2) because the United States
Supreme Court, in Sitz, supra, 496 U.S. 444, upheld a sobriety
checkpoint program that provided for advance publicity (and that
otherwise was similar to the program discussed in Ingersoll),
precheckpoint publicity is necessary if a checkpoint is to pass
constitutional muster.

We granted the People's petition for review. fn. 3 [6 Cal.4th 934]

II. Discussion

[1] Pursuant to article I, section 28, of the California Constitution,
a trial court may exclude evidence under Penal Code section 1538.5
only if exclusion is mandated by the federal Constitution. (In re
Lance W. (1985) 37 Cal.3d 873 , 896 [210 Cal.Rptr. 631, 694 P.2d
744].) Thus, exclusion of the evidence obtained at the sobriety
checkpoint, supporting the charge that defendant was under the
influence of alcohol while driving her vehicle, was proper only if
that evidence was obtained in violation of the Fourth Amendment.

That amendment provides, in pertinent part: "The right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated ...." (U.S.
Const., Amend. IV.) [2] State and local law enforcement officials are
subject to the requirements of the Fourth Amendment based upon the
operation of the due process clause of the Fourteenth Amendment to the
United States Constitution. (Mapp v. Ohio (1961) 367 U.S. 643 [6
L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933]; Wolf v. Colorado (1949)
338 U.S. 25, 27-28 [93 L.Ed. 1782, 1785-1786, 69 S.Ct. 1359].) [3a]
The detention incident to the operation of sobriety "checkpoints"
(which, for purposes of our analysis, we consider indistinguishable
from sobriety "roadblocks") constitutes a "seizure" within the meaning
of the Fourth Amendment. (Sitz, supra, 496 U.S. 444, 450 [110 L.Ed.2d
412, 420].) [4] The purpose of the Fourth Amendment prohibition is to
"safeguard the privacy and security of individuals against arbitrary
invasions by governmental officials." (Camara v. Municipal Court
(1967) 387 U.S. 523, 528 [18 L.Ed.2d 930, 935, 87 S.Ct. 1727]; see
also Delaware v. Prouse (1979) 440 U.S. 648, 653-654 [59 L.Ed.2d 660,
667-668, 99 S.Ct. 1391].) Thus, the narrow question presented in the
present case is whether the detention involved in a sobriety
checkpoint, established without advance publicity, constitutes a
"reasonable" seizure and thus complies with the requirements of the
Fourth Amendment.

[5a] The People contend this court's decision in Ingersoll does not
require advance publicity, which we identified as one of eight factors
to be examined in determining whether a sobriety checkpoint satisfies
the reasonableness requirement of the Fourth Amendment. In the
People's view, [6 Cal.4th 935] Ingersoll contemplates a balancing of
all relevant factors in determining the constitutionality of a
sobriety checkpoint. The People further contend that, because the
United States Supreme Court's decision in Sitz relied upon a balancing
test identical to that employed in Ingersoll, Sitz is corroborative of
Ingersoll's analysis and therefore lends no support to defendant's
argument. Finally, the People argue that because Sitz, in evaluating
the intrusiveness of a sobriety checkpoint, focused solely upon the
nature of the detention, that decision implicitly rejects the notion
that advance publicity is necessary if the constitutionality of a
sobriety checkpoint is to be upheld.

Defendant contends Ingersoll and Sitz each establish advance
publicity as a requirement of a constitutionally permissible sobriety
checkpoint. Defendant also relies upon People v. Morgan (1990) 221
Cal.App.3d Supp. 1 [270 Cal.Rptr. 597] (a decision rendered by the
Appellate Department of the San Francisco Superior Court after
Ingersoll, but prior to Sitz), which affirmed a motion to suppress
evidence on the ground the prosecution failed to provide sufficient
evidence of advance publicity for the sobriety checkpoint-publicity
that the court characterized as "essential." (Id. at p. Supp. 4.) fn.
4

As we shall explain, we reject defendant's argument that such
publicity is necessary to the operation of a constitutionally
permissible sobriety checkpoint. Although our decision in Ingersoll
did not determine explicitly whether each of the safeguards discussed
in that opinion was essential to the constitutional validity of a
sobriety checkpoint, the United States Supreme Court's subsequent
decision in Sitz demonstrates that advance publicity is not a
constitutionally required prerequisite.

A. Ingersoll v. Palmer

In Ingersoll, we examined the question whether sobriety checkpoints
are permissible under the United States and California Constitutions.
The case involved a challenge brought by California taxpayers against
various law enforcement officials and cited, as an example, a sobriety
checkpoint program established by the Burlingame Police Department. As
part of that program, law enforcement officials prepared a manual
governing checkpoint operations, including guidelines established by
the Attorney General, a cost analysis, factors affecting selection of
the checkpoint location, required personnel and equipment, training,
press relations and publicity, and procedures for a follow-up
evaluation. The Burlingame sobriety checkpoint operated pursuant to
these guidelines. (Ingersoll, supra, 43 Cal.3d at pp. 1325-1327.) [6
Cal.4th 936]

[6] In examining the challenge presented in Ingersoll, we held: "The
touchstone for all issues under the Fourth Amendment and article I,
section 13 of the California Constitution is reasonableness. (See
Terry v. Ohio [1968] 392 U.S. 1, 19 [20 L.Ed.2d 889, 904, 88 S.Ct.
1868]; People v. Hyde [1974] 12 Cal.3d 158 , 166 [115 Cal.Rptr. 358,
524 P.2d 830], conc. opn. [of Wright, C. J.] at pp. 172-173.) [¶] The
federal test for determining whether a detention or seizure is
justified balances the public interest served by the seizure, the
degree to which the seizure advances the public interest and the
severity of the interference with individual liberty. (Brown v. Texas
(1979) 443 U.S. 47, 50-51 [61 L.Ed.2d 357, 361-362, 99 S.Ct. 2637].)
In addition, federal constitutional principles require a showing of
either the officer's reasonable suspicion that a crime has occurred or
is occurring or, as an alternative, that the seizure is 'carried out
pursuant to a plan embodying explicit, neutral limitations on the
conduct of individual officers.' (Brown v. Texas, supra, 443 U.S. at
p. 51 [61 L.Ed.2d at p. 362], citing Delaware v. Prouse (1979) 440
U.S. 648, 663 [59 L.Ed.2d 660, 673-674, 99 S.Ct. 1391] and United
States v. Martinez-Fuerte (1976) 428 U.S. 543, 558-562 [49 L.Ed.2d
1116, 1128-1131, 96 S.Ct. 3074].)" (Ingersoll, supra, 43 Cal.3d at p.
1329.)

[7] The primary purpose of a sobriety checkpoint is to "prevent and
deter conduct injurious to persons and property." (Ingersoll, supra,
43 Cal.3d 1321 , 1331.) In Ingersoll, in applying Brown's
three-pronged balancing test, we determined that (1) "[d]eterring
drunk driving and identifying and removing drunk drivers from the
roadways undeniably serves a highly important governmental interest,"
and (2) sobriety checkpoints advance this interest. (43 Cal.3d at pp.
1338-1341.) [8] In examining the third prong of the Brown balancing
test, which we rephrased as "the intrusiveness on individual liberties
engendered by the sobriety checkpoints," we identified eight "factors
important in assessing intrusiveness," noting that such factors
"provide functional guidelines for minimizing the intrusiveness of the
sobriety checkpoint stop." (Id. at p. 1341.)

The factors identified in Ingersoll are:

(1) Whether the decision to establish a sobriety checkpoint, the
selection of the site, and the procedures for the operation of the
checkpoint are made and established by supervisory law enforcement
personnel;

(2) Whether motorists are stopped according to a neutral formula,
such as every third, fifth or tenth driver;

(3) Whether adequate safety precautions are taken, such as proper
lighting, warning signs, and signals, and whether clearly identifiable
official vehicles and personnel are used; [6 Cal.4th 937]

(4) Whether the location of the checkpoint was determined by a
policymaking official, and was reasonable, i.e., on a road having a
high incidence of alcohol-related accidents or arrests;

(5) Whether the time the checkpoint was conducted and its duration
reflect "good judgment" on the part of law enforcement officials;

(6) Whether the checkpoint exhibits sufficient indicia of its official
nature (to reassure motorists of the authorized nature of the stop);

(7) Whether the average length and nature of the detention is minimized; and

(8) Whether the checkpoint is preceded by publicity. (Ingersoll,
supra, 43 Cal.3d at pp. 1341-1347.)

In discussing the eighth factor-advance publicity-we stated as follows:

"Advance publicity is important to the maintenance of a
constitutionally permissible sobriety checkpoint. Publicity [without
disclosure of the precise location of the checkpoint] both reduces the
intrusiveness of the stop and increases the deterrent effect of the
roadblock.

"The concurring opinion in State ex rel. Ekstrom v. Justice Ct. of
State [1983] [136 Ariz. 1] 663 P.2d 992, at page 1001 explained the
value of advance publicity: 'Such publicity would warn those using the
highways that they might expect to find roadblocks designed to check
for sobriety; the warning may well decrease the chance of apprehending
"ordinary" criminals, but should certainly have a considerable
deterring effect by either dissuading people from taking "one more for
the road," persuading them to drink at home, or inducing them to take
taxicabs. Any one of these goals, if achieved, would have the salutary
effect of interfering with the lethal combination of alcohol and
gasoline. Advance notice would limit intrusion upon personal dignity
and security because those being stopped would anticipate and
understand what was happening.' (663 P.2d 992, 1001, conc. opn. [of]
Feldman, J.; see also State v. Deskins [(1983) 234 Kan. 529] 673 P.2d
1174, 1182.)

"Publicity also serves to establish the legitimacy of sobriety check-
points in the minds of motorists. Although the court in Jones v. State
[Fla.Dist.Ct.App. 1984] 459 So.2d 1068, found that advance publicity
was not constitutionally mandated for all sobriety roadblocks,
nevertheless the court offered the observation, consistent with
finding reasonableness under [6 Cal.4th 938] the Fourth Amendment,
that ' "[A]dvance publication of the date of an intended roadblock,
even without announcing its precise location, would have the virtue of
reducing surprise, fear, and inconvenience." [Citation.]' (Id. at p.
1080.)

"In the instant case, substantial advance publicity accompanied each
sobriety checkpoint instituted." (Ingersoll, supra, 43 Cal.3d at pp.
1346-1347.)

After completing our discussion of the eight factors, we concluded in
Ingersoll that, "while the intrusiveness of a sobriety checkpoint stop
is not trivial, the enumerated safeguards operate to minimize the
intrusiveness .... The fright or annoyance to motorists condemned in
connection with roving stops is absent when the checkpoint is operated
according to the guidelines followed here. [¶] On balance, the
intrusion on Fourth Amendment interests is sufficiently circumscribed
so that it is easily outweighed and justified by the magnitude of the
drunk driving menace and the potential for deterrence." (Ingersoll,
supra, 43 Cal.3d at p. 1347, italics added.)

Because the sobriety checkpoint program discussed in Ingersoll
encompassed all eight factors, we had no occasion in that decision to
examine the narrower question presented in this case-whether the
absence of evidence relating to the factor of advance publicity is
fatal to the constitutional validity of a sobriety checkpoint. As
previously noted, that question was addressed by the appellate
department of the superior court in People v. Morgan, supra, 221
Cal.App.3d Supp. 1.

B. People v. Morgan

In People v. Morgan, supra, 221 Cal.App.3d Supp. 1, the defendant
contended that a sobriety checkpoint was unconstitutional because it
had not been preceded by advance publicity. In Morgan, evidence was
introduced that a California Highway Patrol officer contacted a news
service 24 to 48 hours in advance of the checkpoint's operation,
following up with a telephone call on the evening of the checkpoint to
advise the news service of the checkpoint's precise location. A
television news crew was present at the checkpoint. No evidence was
presented indicating whether the media actually conveyed any advance
information to the public. In view of this factual record, the Morgan
court upheld the order granting the motion to suppress evidence,
observing that, because our opinion in Ingersoll referred to a finding
of " 'substantial advance publicity,' " such publicity constituted a
"requirement." (Id. at p. Supp. 4.)

Although our discussion in Ingersoll noted that one of the decisions
upon which we relied in explaining the significance of advance
publicity- Jones [6 Cal.4th 939] v. State (Fla.Dist.Ct.App. 1984) 459
So.2d 1068, 1080-had determined that such publicity was not
constitutionally mandated (see 43 Cal.3d at pp. 1346-1347), the court
in People v. Morgan, supra, 221 Cal.App.3d Supp. 1, held that our
discussion of the issue in Ingersoll, viewed as a whole, established
that such publicity is constitutionally required. In Morgan, the court
also concluded that the efforts undertaken by law enforcement
officials to publicize the checkpoint in that case were inadequate,
rendering the checkpoint stop unconstitutional, and the evidence
obtained at the stop inadmissible at trial. fn. 5

C. Michigan State Police Dept. v. Sitz

Three months after the Morgan decision (and three years after
Ingersoll), the United States Supreme Court rendered its decision in
Sitz, addressing for the first time the constitutionality of sobriety
checkpoints. [3b] In analyzing the issue of the validity of the
initial detention of a motor vehicle at such a checkpoint, the court
in Sitz acknowledged at the outset "that a Fourth Amendment 'seizure'
occurs when a vehicle is stopped at a checkpoint" (496 U.S. at p. 450
[110 L.Ed.2d at p. 420]), recognizing that "[t]he question thus
becomes whether such seizures are 'reasonable' under the Fourth
Amendment." (Ibid.) Sitz mirrored the opinion in Ingersoll in
determining that the balancing analysis of Brown v. Texas (1979) 443
U.S. 47 [61 L.Ed.2d 357, 99 S.Ct. 2637] provided the governing
framework for ascertaining the reasonableness of such a
sobriety-checkpoint seizure.

In applying Brown's balancing analysis, the court in Sitz first
considered the importance and strength of the state interest sought to
be served by such checkpoints, finding such interest to be of
considerable weight and observing that "[n]o one can seriously dispute
the magnitude of the drunken driving problem or the States' interest
in eradicating it." (Sitz, supra, 496 U.S. at p. 451 [110 L.Ed.2d at
p. 420].)

The court's opinion in Sitz then turned to "the weight bearing on the
other scale-the measure of the intrusion on motorists stopped briefly
at sobriety [6 Cal.4th 940] checkpoints," finding such intrusion to be
"slight." (Sitz, supra, 496 U.S. at p. 451 [110 L.Ed.2d at p. 421].)
The court explained: "We reached a similar conclusion as to the
intrusion on motorists subjected to a brief stop at a highway
checkpoint for detecting illegal aliens. See [United States v.]
Martinez-Fuerte [(1976) 428 U.S. 543], at 558 [49 L.Ed.2d at
1128-1129]. We see virtually no difference between the levels of
intrusion on law-abiding motorists from the brief stops necessary to
the effectuation of these two types of checkpoints, which to the
average motorist would seem identical save for the nature of the
questions the checkpoint officers might ask." (496 U.S. at pp. 451-452
[110 L.Ed.2d at p. 421].) The court in Sitz thus concluded that the
lower courts in that case had "accurately gauged the 'objective'
intrusion, measured by the duration of the seizure and the intensity
of the investigation, as minimal." (496 U.S. at p. 452 [110 L.Ed.2d at
p. 421].)

Although the lower courts in Sitz had found the "objective" intrusion
of the sobriety checkpoint to be minimal, those courts had found the
"subjective" intrusion, that is, the potential for generating "fear
and surprise" in motorists, to be substantial, and had invalidated the
checkpoint on that basis. (Sitz, supra, 496 U.S. at p. 452 [110
L.Ed.2d at p. 421].) The high court's opinion in Sitz observed that,
although the lower courts had agreed that "the guidelines governing
checkpoint operation minimize[d] the discretion of the officers on the
scene...," those courts had concluded that "the checkpoints ha[d] the
potential to generate fear and surprise in motorists ... because the
record failed to demonstrate that approaching motorists would be aware
of their option to make U-turns or turnoffs to avoid the checkpoints.
On that basis, the court[s] deemed the subjective intrusion from the
checkpoints unreasonable." (496 U.S. at p. 452 [110 L.Ed.2d at p.
421].)

In rejecting the lower courts' conclusion on this point, the high
court's opinion in Sitz explained that those courts had "misread our
cases concerning the degree of 'subjective intrusion' and the
potential for generating fear and surprise. The 'fear and surprise' to
be considered are not the natural fear of one who has been drinking
over the prospect of being stopped at a sobriety checkpoint but,
rather, the fear and surprise engendered in law-abiding motorists by
the nature of the stop. This was made clear in Martinez-Fuerte.
Comparing checkpoint stops to roving patrols considered in prior
cases, we said, [¶] 'we view checkpoint stops in a different light
because the subjective intrusion-the generating of concern or even
fright on the part of lawful travelers-is appreciably less in the case
of a checkpoint stop. In [United States v.] Ortiz [(1975) 422 U.S. 891
(45 L.Ed.2d 623, 95 S.Ct. 2585)], we noted: [¶] ' "[T] he
circumstances surrounding a checkpoint stop and search are far less
intrusive than those attending a roving-patrol stop. Roving patrols
often operate at night on seldom-traveled roads, and their approach
may [6 Cal.4th 941] frighten motorists. At traffic checkpoints the
motorist can see that other vehicles are being stopped, he can see
visible signs of the officers' authority, and he is much less likely
to be frightened or annoyed by the intrusion. 422 U.S. at [pp.]
894-895." ' [Citations.] Here, checkpoints are selected pursuant to
the guidelines, and uniformed police officers stop every approaching
vehicle. The intrusion resulting from the brief stop at the sobriety
checkpoint is for constitutional purposes indistinguishable from the
checkpoint stops we upheld in Martinez-Fuerte." (Sitz, supra, 496 U.S.
at pp. 452-453 [110 L.Ed.2d at pp. 421-422], italics added.)

[9a] Finally, in Sitz the United States Supreme Court explained that
the lower courts in that case also had erred in applying the third
prong of the Brown balancing test, which concerns " 'the degree to
which the seizure advances the public interest.' " (Sitz, supra, 496
U.S. at p. 453 [110 L.Ed.2d at p. 422], quoting Brown v. Texas, supra,
433 U.S. at p. 51 [61 L.Ed.2d at p. 362].) The lower courts in Sitz
had interpreted this language in Brown to require a judicial
determination as to the effectiveness of the checkpoint program, and,
on the basis of evidence adduced at trial, had concluded that the
program failed the "effectiveness" test. The majority opinion in Sitz
explained, however, that "[t]his passage from Brown was not meant to
transfer from politically accountable officials to the courts the
decision as to which among reasonable alternative law enforcement
techniques should be employed to deal with a serious public danger.
Experts in police science might disagree over which of several methods
of apprehending drunk drivers is preferable as an ideal. But for
purposes of Fourth Amendment analysis, the choice among such
reasonable alternatives remains with the governmental officials who
have a unique understanding of, and a responsibility for, limited
public resources ...." (496 U.S. at pp. 453-454 [110 L.Ed.2d at p.
422].) The high court concluded in Sitz that the evidence presented in
that case, which indicated that, on the average, sobriety checkpoints
resulted in the arrest of approximately 1 percent of all motorists
stopped, was sufficient to sustain the program's constitutionality
under the "public interest" component of the Brown test. fn. 6

D. Application of Sitz to the present case

[5b] Relying upon Sitz, the People contend that the United States
Supreme Court has determined that, under the federal Constitution,
advance [6 Cal.4th 942] publicity is not an essential element of a
valid sobriety checkpoint. Arguing to the contrary, defendant urges
that Sitz is not controlling authority for the narrow question posed
in the present case, and that instead we should adopt the reasoning of
People v. Morgan, supra, 221 Cal.App.3d Supp. 1, to conclude that a
sobriety checkpoint is constitutionally invalid in the absence of
advance publicity. We are persuaded by the People's argument.

As noted above, in discussing the advance-publicity guideline in
Ingersoll, we suggested that such publicity was significant in two
respects-in reducing the intrusiveness of the sobriety checkpoint
stop, and in increasing the deterrent value of the checkpoint itself.
The reasoning of the Sitz majority makes it clear, however, that
advance publicity is not a constitutional prerequisite to a valid
sobriety checkpoint in either respect.

In analyzing the question of intrusiveness, the high court in Sitz
considered both the "objective intrusion" of a checkpoint stop upon
motorists, and the "subjective intrusion" involved. (Sitz, supra, 496
U.S. at p. 452 [110 L.Ed.2d at p. 421].) With respect to the
objective-intrusion criterion, that is, "the duration of the seizure
and the intensity of the investigation," the court in Sitz found that
the objective intrusion occasioned by a sobriety checkpoint is no
different from the intrusion involved in a border-control checkpoint,
which the court previously had upheld. (496 U.S. at pp. 451-452 [110
L.Ed.2d at pp. 420-421] [citing United States v. Martinez-Fuerte
(1976) 428 U.S. 543, 558 (49 L.Ed.2d 1116, 1128, 96 S.Ct. 3074)].) The
presence or absence of advance publicity would appear to be irrelevant
to the objective intrusion occasioned by a sobriety checkpoint, and
defendant does not contend otherwise.

With respect to the subjective-intrusion criterion, that is, a
sobriety checkpoint's potential for generating fear and surprise in
motorists, the high court rejected the lower courts' conclusion that
the subjective intrusion posed by the sobriety checkpoints involved in
that case was unreasonable because of the approaching motorists'
unawareness of their option to avoid the impending detention.
Explaining that "[t]he 'fear and surprise' to be considered are ...
the fear and surprise engendered in law-abiding motorists by the
nature of the stop," the court in Sitz contrasted sobriety checkpoints
with the "roving patrols" considered in earlier cases, emphasizing
that " ' "[a]t traffic checkpoints the motorist can see that other
vehicles are being stopped, he can see visible signs of the officers'
authority, and he is much less likely to be frightened or annoyed by
the intrusion." ' [Citation.]" (Sitz, supra, 496 U.S. at pp. 452-453
[110 L.Ed.2d at pp. 421-422].) Because sobriety checkpoints share
these characteristics with the border-patrol checkpoints upheld in
Martinez-Fuerte, the court in Sitz concluded that "[t]he intrusion
resulting [6 Cal.4th 943] from the brief stop at the sobriety
checkpoint is for constitutional purposes indistinguishable from the
checkpoint stops ... in Martinez-Fuerte." (496 U.S. at p. 453 [110
L.Ed.2d at p. 422].) Although Justice Stevens (joined by Justices
Brennan and Marshall) argued vigorously in dissent that temporary
sobriety checkpoints were more akin to roving patrols than to the
permanent border-control checkpoint upheld in Martinez-Fuerte, because
motorists were likely to be surprised upon encountering temporary
sobriety checkpoints, the court in Sitz rejected that view, concluding
that, for constitutional purposes, sobriety checkpoints are not
impermissibly frightening or surprising-provided the motorist
encountering the checkpoint " ' "can see that other vehicles are being
stopped, [and] ... can see visible signs of the officers' authority
...." ' " (496 U.S. at p. 453 [110 L.Ed.2d at p. 422] [quoting United
States v. Ortiz (1975) 422 U.S. 891, 894-895 (45 L.Ed.2d 623, 627-628,
95 S.Ct. 2585)].)

Although publicizing in advance the location of a sobriety checkpoint
may serve to minimize the surprise or inconvenience experienced by
motorists alerted by the publicity, Sitz's analysis of the subjective
intrusion engendered by a sobriety checkpoint makes clear that advance
publicity is not a constitutional prerequisite to ensuring that the
subjective intrusion involved is confined to a reasonable level.

Sitz also makes clear that, however persuaded a court may be that
advance publicity will increase the deterrent value of the checkpoint
and thereby increase the procedure's effectiveness, the
constitutionality of the checkpoint does not hinge upon such judicial
evaluation of its effectiveness. [9b] As we have seen, the high court
in Sitz explained that the language contained in its prior decision in
Brown, identifying " 'the degree to which the seizure advances the
public interest' " as one factor in the balancing process, "was not
meant to transfer from politically accountable officials to the
courts" the responsibility for making policy decisions among
reasonable alternative law enforcement techniques. In so concluding,
the court emphasized that "for purposes of Fourth Amendment analysis,
the choice among such reasonable alternatives remains with the
governmental officials who have a unique understanding of, and a
responsibility for, limited public resources ...." (Sitz, supra, 496
U.S. at pp. 453-454 [110 L.Ed.2d at p. 422].)

[5c] Thus, Sitz establishes that a sobriety checkpoint may not be
held violative of the federal Constitution simply because a court may
believe that the law enforcement interests sought to be served by the
checkpoint would more effectively be served by a level of advance
publicity greater than that believed appropriate by politically
accountable officials. The nature and degree of publicity sought or
provided by law enforcement officials prior to [6 Cal.4th 944] the
operation of sobriety checkpoints inevitably involve policy judgments
reflecting not only the fiscal resources available to the agencies in
question, but also a determination as to whether to attempt to achieve
greater deterrence during a specified time period (e.g., a holiday
weekend) or at a particular location (e.g., near a professional sports
stadium), or whether, instead, to seek the more generalized deterrence
arguably obtainable when motorists learn-through personal experience
or by word of mouth-that sobriety checkpoints may be established
without advance publicity. fn. 7 Sitz establishes that the
constitutionality of a sobriety checkpoint should not hinge upon a
court's evaluation of the wisdom of policy decisions made by
accountable law enforcement officials.

[10] Nonetheless, courts have recognized that the absence of advance
publicity does not so lessen the deterrent effect of a sobriety
checkpoint as to tip the scales in favor of the detained motorist who
subsequently challenges the checkpoint. A sobriety checkpoint
conducted without advance publicity is unlikely to be totally without
deterrent effect, at least among those motorists who pass through, or
by, the checkpoint. (See People v. Rister (Colo. 1990) 803 P.2d 483,
489 ["[T]he announcement and establishment of a sobriety checkpoint
undoubtedly had some effect on advancing the state's interest in
preventing drunken driving." (Italics added.)].) If, in accordance
with the Ingersoll guidelines, the checkpoint is established on a
roadway "having a high incidence of alcohol related accidents and/or
arrests," the deterrent effect may be considerable. (Ingersoll, supra,
43 Cal.3d at p. 1343.) Also, if law enforcement agencies choose to
publicize the number of arrests made at sobriety checkpoints, an
additional deterrent effect may be realized. Thus, even in the absence
of advance publicity, a sobriety checkpoint has the potential of
substantially furthering the state's vital interest in deterring
motorists from driving "under the influence."

[11] In arguing that Sitz must be read to establish advance publicity
as a prerequisite to a constitutionally valid sobriety checkpoint
program, defendant relies upon the circumstance that the statement of
facts in Sitz indicates [6 Cal.4th 945] the sobriety checkpoint at
issue in that case was established under guidelines providing for some
form of unspecified publicity. (See Sitz, supra, 496 U.S. at p. 447
[110 L.Ed.2d at p. 418].) Defendant maintains that, because the
sobriety checkpoint program in Sitz contained advance publicity, the
decision in that case cannot be relied upon as authority for the
proposition that advance publicity is not constitutionally required.

Defendant's claim is untenable. In analyzing the constitutionality of
the sobriety checkpoint challenged in Sitz, the court's opinion placed
no reliance upon, and indeed made no reference to, any advance
publicity that might have been provided regarding the checkpoint. It
is well settled that language contained in a judicial opinion is " 'to
be understood in the light of the facts and issue then before the
court, and an opinion is not authority for a proposition not therein
considered. [Citation.]' " (People v. Superior Court (Marks) (1991) 1
Cal.4th 56 , 65-66 [2 Cal.Rptr.2d 389, 820 P.2d 613], quoting Ginns v.
Savage (1964) 61 Cal.2d 520 , 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d
689].) The reasoning contained in the Sitz opinion indicates that the
validity of a sobriety checkpoint turns upon the duration of the stop
and the intensity of the investigation, and upon the adequacy of
measures taken to apprise motorists who encounter the checkpoint that
it is an official law enforcement operation and that other motorists
also are being detained in regular fashion. Particularly in light of
the high court's implicit rejection of Justice Stevens's dissenting
opinion, which argued that the "surprise" nature of sobriety
checkpoints rendered them unconstitutional, we conclude that the
court's opinion in Sitz reasonably must be understood to hold that
advance publicity is not a prerequisite to a constitutionally
permissible sobriety checkpoint. (Accord, United States v. Ziegler
(N.D.Cal. 1993) 831 F.Supp. 771.) fn. 8

E. Other authority

Although the United States Supreme Court's reasoning in Sitz
demonstrates the untenable nature of defendant's position, it also is
instructive to examine court decisions from other jurisdictions that
have addressed the question whether advance publicity is necessary to
the operation of a constitutionally permissible checkpoint. Although
nearly all of these decisions predate Sitz, we briefly review them to
demonstrate that, even prior to Sitz, [6 Cal.4th 946] defendant's
position was rejected overwhelmingly by the state courts that have
considered the issue now before us.

We commence our survey of sister state courts with an examination of
those decisions that address the precise issue that confronts us in
the present case-whether advance publicity is necessary to the
operation of a constitutionally permissible checkpoint.

In People v. Bartley (1985) 109 Ill.2d 273 [93 Ill.Dec. 347, 486
N.E.2d 880], the Illinois Supreme Court upheld the constitutionality
of a sobriety roadblock, finding that the roadblock had been operated
pursuant to guidelines that served to limit the intrusiveness of the
detention. Although the media was advised in advance of the roadblock,
little (if any) media coverage actually preceded its operation, and
the Illinois Supreme Court considered the case as one involving a lack
of advance publicity. The court noted that such publicity "serves to
minimize any apprehension" on the part of detained motorists, and
promotes the goal of deterrence. (Id. at p. 888.) Notwithstanding
these observations, the court held that the failure of law enforcement
officials to publicize the roadblock in advance was not fatal to its
constitutionality. "Given the other factors serving to reduce the
subjective intrusion, the lack of advance publicity is not sufficient
to invalidate this roadblock." (Ibid.; accord, People v. Little (1987)
162 Ill.App.3d 6 [515 N.E.2d 846, 849].)

Similarly, in State v. DeCamera (1989) 237 N.J. Super. 380 [568 A.2d
86], the defendant, having been convicted of driving under the
influence of alcohol, challenged the constitutionality of the sobriety
roadblock on the ground there had been no advance published notice of
the roadblock. In rejecting this challenge, the court held: "We are
cognizant of the fact that some positive results might flow from
advance newspaper notice of police roadblocks. It is possible that if
the public was aware that there was to be a sobriety checkpoint on a
particular day, but was not aware of its location, intoxicated persons
might be less likely to attempt to drive. This heightened
effectiveness, however, does not rise to the level of a constitutional
imperative." (Id. at p. 88; accord, State v. Valencia Olaya (1987) 105
N.M. 690 [736 P.2d 495, 498] ["Because no one guideline is
dispositive," the court upheld the constitutionality of a sobriety
roadblock where, with the exception of advance publicity, the
roadblock "satisfied the intent" of each guideline subsequently set
forth in Ingersoll].)

Other state courts that have upheld the constitutionality of sobriety
checkpoints, operated pursuant to guidelines that included advance
publicity, have characterized such publicity-as we did in Ingersoll-as
a factor or guideline to be considered as part of a court's balancing
analysis, rather than as a [6 Cal.4th 947] prerequisite. (See State v.
Moskal (1991) 246 N.J.Super. 12 [586 A.2d 845]; People v. Rister,
supra, 803 P.2d 483 [post-Sitz decisions, neither of which interpreted
Sitz to require advance publicity]; see also Crandol v. City of
Newport News (1989) 238 Va. 697 [386 S.E.2d 113]; State v. Leighton
(Me. 1988) 551 A.2d 116; City of Las Cruces v. Betancourt (1987) 105
N.M. 655 [735 P.2d 1161]; State v. Garcia (Ind. 1986) 500 N.E.2d 158;
Commonwealth v. Trumble, supra, 396 Mass. 81 [483 N.E.2d 1102,
1107-1108]; Lowe v. Commonwealth (1985) 230 Va. 346 [337 S.E.2d 273];
Little v. State, supra, 479 A.2d 903; State v. Deskins (1983) 234 Kan.
529 [673 P.2d 1174]. Cf. State v. McMahon (Me. 1989) 557 A.2d 1324
[upholding the validity of a sobriety checkpoint operated pursuant to
neutral, unwritten guidelines, not preceded by advance publicity, and
where the state did not present evidence establishing the lack of
available superior methods of apprehension].) fn. 9

In addressing the narrower question whether advance publicity,
including reference to the location of a sobriety checkpoint, is
required, our sister courts uniformly have held that such precision is
unnecessary and counterproductive, because publicizing this type of
information would allow motorists to avoid the checkpoint, thereby
lessening its deterrent effect. (See State v. Garcia, supra, 500
N.E.2d 158, 162; People v. Scott (1984) 63 N.Y.2d 518 [483 N.Y.S.2d
649, 473 N.E.2d 1, 5]; State v. Super. Court in and for the County of
Pima, supra, 143 Ariz. 45 [691 P.2d 1073, 1077]; see also Commonwealth
v. Leninsky (1986) 360 Pa.Super. 49 [519 A.2d 984, 993, fn. 16]; State
v. Martin (1985) 145 Vt. 562 [496 A.2d 442, 450].)

Those state courts that, prior to Sitz, invalidated sobriety
checkpoints did so for reasons unrelated to the question whether
advance publicity is constitutionally mandated. These decisions can be
divided into two groups: those that invalidated sobriety checkpoints
as per se unconstitutional under the federal Constitution, or, more
commonly, the respective state constitution [6 Cal.4th 948] (see
Pimental v. Department of Transportation (R.I. 1989) 561 A.2d 1348;
State v. Church (La. 1989) 538 So.2d 993; Higbie v. State
(Tex.Crim.App. 1989) 780 S.W.2d 228; State v. Henderson (1988) 114
Idaho 293 [756 P.2d 1057; City of Seattle v. Mesiani (1988) 110 Wn.2d
454 [755 P.2d 775]; Nelson v. Lane County (1987) 304 Ore. 97 [743 P.2d
692]; State v. Koppel (N.H. 1985) 499 A.2d 977; State v. Smith
(Okla.Crim.App. 1984) 674 P.2d 562; State v. Olgaard (S.D. 1976) 248
N.W.2d 392, 394-395), and those decisions that invalidated sobriety
checkpoints on the ground they were operationally defective, because
they were not operated pursuant to neutral criteria, or because they
allowed field officers to exercise unbridled discretion in operating
the checkpoint (see State v. Parms (La. 1988) 523 So.2d 1293; Webb v.
State (Tex.Crim.App. 1987) 739 S.W.2d 802; State v. Jones (Fla. 1986)
483 So.2d 433; Commonwealth v. Amaral (1986) 398 Mass. 98 [495 N.E.2d
276]; State v. Crom (1986) 222 Neb. 273 [383 N.W.2d 461]; Commonwealth
v. Leninsky, supra, 519 A.2d 984; State v. Kirk (1985) 202 N.J. Super.
28 [493 A.2d 1271]; State v. Muzik (Minn.Ct.App. 1985) 379 N.W.2d 599;
State ex rel. Ekstrom v. Justice Ct. of State (1983) 136 Ariz. 1 [663
P.2d 992]; Commonwealth v. McGeoghegan (1983) 389 Mass. 137 [449
N.E.2d 349, 37 A.L.R.4th 1]; see also Commonwealth v. Tarbert (1987)
517 Pa. 277 [535 A.2d 1035] [roadblocks exceeded statutory
parameters]).

In invalidating sobriety checkpoints because they were not operated
pursuant to neutral criteria, or because they allowed field officers
to exercise unbridled discretion, several decisions in this group of
cases observed that such publicity is not essential. (See Commonwealth
v. Amaral, supra, 495 N.E.2d 276, 278; Commonwealth v. McGeoghegan,
supra, 449 N.E.2d 349, 353; State v. Jones, supra, 483 So.2d 433, 439;
State v. Muzik, supra, 379 N.W.2d 599, 604, fn. 4.)

As is disclosed by our survey of the foregoing decisions from other
jurisdictions, the weight of judicial authority has viewed advance
publicity as insignificant or (consistent with our own decision in
Ingersoll) has considered such publicity as a factor, but not a
prerequisite, in assessing the constitutionality of sobriety
checkpoints. Those decisions that have disapproved sobriety
checkpoints, with the exception of the appellate department opinion in
the California case of People v. Morgan, supra, 221 Cal.App.3d Supp.
1, and the Court of Appeal's opinion in this case, reached their
conclusions based upon issues unrelated to the question whether
advance publicity is essential to the operation of a constitutionally
permissible sobriety checkpoint.

Conclusion

[5d] In light of the United States Supreme Court's decision in
Michigan State Police Dept. v. Sitz, supra, 496 U.S. 444, and
consistent with the weight [6 Cal.4th 949] of authority examined
above, we conclude that the operation of a sobriety checkpoint
conducted in the absence of advance publicity, but otherwise in
conformance with the guidelines we established in Ingersoll v. Palmer,
supra, 43 Cal.3d 1321 , does not result in an unreasonable seizure
within the meaning of the Fourth Amendment to the United States
Constitution. fn. 10 Accordingly, we reverse the judgment of the Court
of Appeal and direct that court to affirm the judgment of conviction
of driving under the influence of alcohol rendered by the municipal
court.

Lucas, C. J., Kennard, J., Arabian, J., and Baxter, J., concurred.

PANELLI, J.,

Dissenting.-In Ingersoll v. Palmer (1987) 43 Cal.3d 1321 [241
Cal.Rptr. 42, 743 P.2d 1299] (Ingersoll) this court held by a vote of
four to three that it is constitutionally permissible for a police
officer to stop a motorist at a sobriety checkpoint even though the
officer does not suspect, reasonably or otherwise, that the motorist
is intoxicated. The court reached that conclusion by applying the
administrative search rationale articulated in Brown v. Texas (1979)
443 U.S. 47 [61 L.Ed.2d 357, 99 S.Ct. 2637] and by comparing sobriety
roadblocks to metal detectors at airports. (See Ingersoll, supra, 43
Cal.3d at pp. 1329-1331.)

Justice Mosk and I joined Justice Broussard's dissent in Ingersoll.
Since then, most courts have yielded to the overwhelming public
pressure to approve this type of warrantless, suspicionless search.
Under these circumstances there is little point in writing another
long dissent. However, when future courts are asked to approve still
more intrusive "administrative" searches by analogy to the sobriety
checkpoint, it may be useful for them to recall the reasons why some
of us were unwilling to take even the first small steps in this
direction. In Justice Broussard's words:

"The Fourth Amendment is highly inexpedient to law enforcement, yet to
date we have not allowed mass detentions on the theory that these
might prove useful in combating crime. I see no basis for
distinguishing a drunk driving roadblock from any other mass detention
established to prevent crime or apprehend wrongdoers. While drunk
driving is a revolting crime, it is not the only one which the
community abhors. If we abandon constitutional protections to combat
every abhorrent crime which has captured the public's attention, we
will find ourselves naked and unprotected in a hurry." (Ingersoll,
supra, 43 Cal.3d at p. 1356 (dis. opn. of Broussard, J.).)

At least the Ingersoll court saw the danger to our constitutional
protections. Because it did, the court tempered its holding by
distilling from the [6 Cal.4th 950] relevant cases a set of
"functional guidelines for minimizing the intrusiveness ...."
(Ingersoll, supra, 43 Cal.3d at p. 1341.) The court explained its
reasons for including one of those guidelines, advance publicity, in
these words: "Advance publicity is important to the maintenance of a
constitutionally permissible sobriety checkpoint. Publicity both
reduces the intrusiveness of the stop and increases the deterrent
effect of the roadblock." (Id. at p. 1346.)

For six years the Ingersoll guidelines, including advance publicity,
have served the state well by minimizing the intrusiveness of one type
of warrantless, suspicionless search. Today, however, the majority
concludes that "the United States Supreme Court's analysis of the
constitutionality of sobriety checkpoints in Michigan State Police
Dept. v. Sitz (1990) 496 U.S. 444 ... establishes that advance
publicity is not a constitutional prerequisite to the operation of
such a checkpoint." (Maj. opn., ante, p. 931.)

I am not entirely sure what this means. Perhaps the majority means to
say only this: While the presence or absence of advance publicity is
still relevant in assessing the intrusiveness, and thus the
constitutionality, of sobriety checkpoints, an unpublicized checkpoint
can still pass constitutional muster if it obtains a high score on the
other seven Ingersoll factors. In a footnote the majority invites this
interpretation with the statement that "nothing in our decision should
be construed to suggest that any of the eight guidelines set forth in
Ingersoll, including advance publicity (43 Cal.3d at pp. 1341-1347),
are not relevant to a consideration of the intrusiveness of a sobriety
checkpoint stop." (Maj. opn., ante, p. 933, fn. 3, italics in
original.)

If this is the correct interpretation of the majority opinion, then
it is still possible as a matter of logic that the lack of advance
publicity in a particular case will be decisive in holding
unconstitutional a checkpoint that does not score high on the other
seven Ingersoll factors.

Unfortunately, the opinion does not clearly say this. The majority
repeats, but will not reaffirm, Ingersoll's statement that advance
publicity is "important to the maintenance of a constitutionally
permissible sobriety checkpoint." (Ingersoll, supra, 43 Cal.3d at p.
1346, italics added; cf. maj. opn., ante, p. 931.) Then, as if to take
back what the footnote gives, the majority declares that "a sobriety
checkpoint may not be held violative of the federal Constitution
simply because a court may believe that the law enforcement interests
sought to be served by the checkpoint would more effectively be served
by a level of advance publicity greater than that believed appropriate
by politically accountable officials." (Maj. opn., ante, p. 943.)

In my view the majority wants it both ways. Clearly it does not wish
to encourage law enforcement officials to announce sobriety
checkpoints in [6 Cal.4th 951] advance, but it also does not want to
hold that advance publicity is irrelevant.

One good reason not to hold that advance publicity is irrelevant would
be that the high court's opinion in Michigan State Police Dept. v.
Sitz (1990) 496 U.S. 444 [110 L.Ed.2d 412, 110 S.Ct. 2481], on which
the majority places so much weight, would not support such a holding.
Sitz was an action for declaratory and injunctive relief against the
operation of a sobriety checkpoint program in Michigan. The plaintiffs
"challenge[d] only the use of sobriety checkpoints generally" (id. at
p. 450 [110 L.Ed.2d at p. 420]), and the court held that such
checkpoints are constitutional if they satisfy the balancing test set
out in Brown v. Texas, supra, 443 U.S. 47. This holding neither
compels us, nor gives us a reason, to abandon the guidelines that we
adopted in Ingersoll, supra, 43 Cal.3d 1321 , for applying the Brown
test in the context of sobriety checkpoints. This is especially true
since the guidelines of the checkpoint program that the high court
approved in Sitz did include publicity. (Sitz, supra, 496 U.S. at p.
447 [110 L.Ed.2d at p. 418]; see also id. at p. 475, fn. 19 [110
L.Ed.2d at p. 436] (dis. opn. of Stevens, J.).)

In summary, the majority invites law enforcement officials to dispense
with advance publicity while reassuring those who fear for the
vitality of the Fourth Amendment that all of the Ingersoll factors,
including advance publicity, are still in effect. In view of this
ambiguous message, the only prudent course of action is for law
enforcement officials and courts to continue to determine in each case
whether the lack of advance publicity has made each particular
checkpoint too intrusive to satisfy the Fourth Amendment. Only then
can we be confident that the Fourth Amendment is still alive and well.

Mosk, J., concurred.

FN *. Pursuant to California Constitution, article VI, section 21.

FN 1. Vehicle Code former section 23152 provided in pertinent part:
"(a) It is unlawful for any person who is under the influence of an
alcoholic beverage or any drug, or under the combined influence of an
alcoholic beverage and any drug, to drive a vehicle.

"(b) It is unlawful for any person who has 0.08 percent or more, by
weight, of alcohol in his or her blood to drive a vehicle." The
current version of the cited statutory language is virtually identical
to that quoted here.

FN 2. California Rules of Court, rule 62(a), provides in pertinent
part: "A Court of Appeal may order a case transferred to it for
hearing and decision when the superior court certifies or the Court of
Appeal on its own motion determines ... that such transfer appears
necessary to secure uniformity of decision or to settle important
questions of law."

Rule 63(a) provides in pertinent part: "The superior court on
application of a party or on its own motion may certify that the
transfer of a case to the Court of Appeal appears necessary to secure
uniformity of decision or to settle important questions of law...."

FN 3. The municipal court found that, but for the absence of
advance publicity, the sobriety checkpoint in this case complied with
the standards set forth in Ingersoll. The narrow question certified
to, and addressed by, the Court of Appeal was whether advance
publicity is a prerequisite to a constitutionally operated sobriety
checkpoint. Accordingly, in this decision we limit our discussion to
that issue and do not revisit the broader questions addressed in
Ingersoll and Sitz pertaining to the constitutionality of sobriety
checkpoints generally, and to the conflicting empirical evidence as to
their effectiveness. (See, e.g., 4 LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (2d ed. 1987 & 1993 supp.) Vehicle
Use Regulation, § 10.8(d), pp. 69-85 [examining sobriety checkpoints
generally].) Furthermore, because the question presented in this case
is limited to whether advance publicity is a prerequisite to a
constitutionally valid sobriety checkpoint, nothing in our decision
should be construed to suggest that any of the eight guidelines set
forth in Ingersoll, including advance publicity (43 Cal.3d at pp.
1341-1347), are not relevant to a consideration of the intrusiveness
of a sobriety checkpoint stop.

FN 4. People v. Morgan, supra, 221 Cal.App.3d Supp. 1, appears to
be the only published decision in the nation (other than the Court of
Appeal's decision in this case) that has invalidated a sobriety
checkpoint exclusively upon the basis of a lack of adequate advance
publicity.

FN 5. Although, as previously noted, People v. Morgan apparently is
the only published decision (other than the Court of Appeal's decision
in this case) that has found a sobriety checkpoint invalid based
solely upon the absence of advance publicity, it is not the only
California decision to have considered this particular one of
Ingersoll's eight guidelines. In People v. Squire (1993) 15
Cal.App.4th 775 [19 Cal.Rptr.2d 121], the Court of Appeal reversed an
order granting a motion to suppress evidence obtained at a sobriety
checkpoint, where an article in a local newspaper had publicized the
forthcoming checkpoint operation. The court in Squire found it
unnecessary to decide whether advance publicity was a prerequisite to
a constitutionally valid sobriety checkpoint, because of the court's
conclusion that, assuming such publicity was required, the single
newspaper article was adequate for that purpose. (Id. at pp. 781-782.)

FN 6. Following remand from the United States Supreme Court, the
Michigan Supreme Court invalidated sobriety checkpoints in that
jurisdiction on state constitutional grounds, without referring in its
analysis to the advance-publicity component of Michigan's sobriety
checkpoint program. (See Sitz v. Michigan Dep't. of State Police
(1993) 443 Mich. 744 [506 N.W.2d 209].)

FN 7. Were this court to hold that advance publicity is necessary
to the operation of a constitutionally permissible sobriety
checkpoint, law enforcement officials and our courts inevitably would
be plagued with a host of operational concerns that they are
ill-suited to address, and upon which reasonable minds easily could
differ, leading to the uneven application of advance-publicity rules.
Among these concerns are the geographical area in which the advance
notice must be provided, the type and number of media organizations
that must be contacted, the minimum advance-notice period, the
requisite content of the notice, whether the notice should be provided
in languages other than English, the number of times the notice must
be repeated, the typeface size of the notice intended for
dissemination in the print media, and whether law enforcement agencies
must purchase necessary airtime or publishing space in the event media
organizations decline to convey the notice as a public service. (See
generally, People v. Squire, supra, 15 Cal.App.4th 775 , 778-782.)

FN 8. In view of our holding, we need not, and do not, undertake an
assessment of the relative merits of publicity efforts utilized in
connection with other sobriety checkpoint programs. (See, e.g., State
v. Super. Court in and for the County of Pima (1984) 143 Ariz. 45 [691
P.2d 1073] [press releases, purchase of advertisements in the media];
Commonwealth v. Trumble (1985) 396 Mass. 81 [483 N.E.2d 1102] [press
releases sent to more than 400 media outlets, and law enforcement
officials personally spoke to media representatives]; Little v. State
(1984) 300 Md. 485 [479 A.2d 903] [extensive statewide publicity
campaign].)

FN 9. Other courts have upheld the constitutionality of sobriety
checkpoints without discussing the matter of advance publicity, and,
therefore, their decisions are not inconsistent with those decisions,
discussed in the text, in which advance publicity was held not to be a
constitutional prerequisite. (See Christopher v. State (1991) 202
Ga.App. 40 [413 S.E.2d 236]; Chock v. Commissioner of Public Safety
(Minn.Ct.App. 1990) 458 N.W.2d 692 [applying Sitz]; see also Evans v.
State (1989) 190 Ga.App. 856 [380 S.E.2d 332]; State v. Riley (Iowa
Ct.App. 1985) 377 N.W.2d 242; State v. Alexander (1985) 22 Ohio
Misc.2d 34 [489 N.E.2d 1093]; People v. Torres (1984) 125 Misc.2d 78
[478 N.Y.S.2d 771]; People v. Peil (1984) 122 Misc.2d 617 [471
N.Y.S.2d 532]; State v. Golden (1984) 171 Ga.App. 27 [318 S.E.2d 693];
Kinslow v. Commonwealth (Ky.Ct.App. 1983) 660 S.W.2d 677; State v.
Coccomo (1980) 177 N.J. Super. 575 [427 A.2d 131]; cf. Cains v. State
(Ala.Ct.App. 1989) 555 So.2d 290; State v. Welch (Mo.Ct.App. 1988) 755
S.W.2d 624 [surveying other decisions that cited advance publicity as
a factor, but not relying upon that factor in upholding the
reasonableness of the seizure]; Stark v. Perpich (D.Minn. 1984) 590
F.Supp. 1057, 1058 [denying motion to enjoin proposed "drunk driving
survey" of motorists].)

FN 10. To the extent People v. Morgan, supra, 221 Cal.App.3d Supp.
1, is inconsistent with the views expressed herein, it is disapproved.

Peoples v. Rankins (1986) 178 Cal.App.3d 1163 , 224 Cal.Rptr. 282

2008-05-12T22:45:00.001-07:00

Defendant and appellant appeals from the judgment of the Superior Court of San Francisco County entered after a jury found him guilty of a violation of Penal Code section 288, subdivision (b) (lewd act upon a child under 14 years by force), a violation of Penal Code section 288a, subdivision (c) (forcible oral copulation), a violation of Penal Code section 261, subdivision (2) (forcible rape), and a violation of Penal Code sections 664 and 261 (attempted rape). Appellant contends that the trial court erred in admitting appellant's pretrial statement because it was taken in violation of an agreement between the defense counsel (O'Connor) and the deputy district attorney (Eto).

For the purpose of resolving the issue presented in this case, it is not necessary to set out the facts surrounding the convictions.

Upon his surrendering to the police on June 22, 1983, appellant was advised of his Miranda rights and waived them and gave a statement which essentially denied the facts which led to the charges. Before trial it was agreed between defense counsel and the deputy district attorney that appellant would voluntarily submit to a polygraph examination. The deputy district attorney suggested the test (apparently not for the purposes of using it as evidence), but to satisfy in her own mind as to whether or not to proceed [178 Cal.App.3d 1165] with the case. In other words, if appellant passed the test, the prosecution would consider dismissing the case. Defense counsel stated that it was "stipulated in advance that no statements or questioning would take place of the defendant outside the operation of the polygraph test itself, ..."

Before appellant was given the test, he was given his Miranda rights which he waived by signing a consent form. After the test was conducted, appellant was asked to explain what appeared to the technician to be untruthful statements. Prior to trial appellant made a motion to exclude the statements he made to the officer conducting the test when the officer asked appellant to explain what appeared to be untruthful statements. The trial court denied the motion.

Appellant argues that the "admission of these statements violated appellant's constitutional right to the assistance of counsel. Ever sinceMassiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199] it has been established that the Sixth Amendment of the U.S. Constitution forbids the use in a criminal trial of statements deliberately elicited by law enforcement officers from a defendant, after he has been formally charged by indictment or information, in the absence of his counsel (People v. Isby (1968) 267 Cal.App.2d 484 , 489 [73 Cal.Rptr. 294]; People v. Brice (1966) 239 Cal.App.2d 181 , 191 [48 Cal.Rptr. 562]). This is the rule whether or not the statements of the defendant are voluntary, and whether or not he has waived his Fifth Amendment Miranda rights (People v. Isby, supra, 267 Cal.App.2d at 489-495). The rule applies even to a defendant who is not in custody but is free on bail (Massiah v. United States), supra. It is based on the rationale that once a defendant has been formally charged there is no necessity for further police questioning to solve the crime or absolve the suspect, and extrajudicial questioning in the absence of his attorney denies the accused the effective assistance of counsel to which he is entitled (Massiah v. United States, supra, 377 U.S. 201, 205 [12 L.Ed.2d 246, 250]; People v. Isby, supra, 267 Cal.App.2d 484 , 490-494)."

InWyrick v. Fields (1982) 459 U.S. 42 [74 L.Ed.2d 214, 103 S.Ct. 394], the United States Supreme Court approved an interrogation following a defendant's requested polygraph examination. In a Fifth Amendment context, the Wyrick court states that when a suspect, who has an attorney, makes a voluntary, knowing, and intelligent waiver of the right to have counsel present at the polygraph examination, and it was clear that defendant understood that right and was aware of his power to stop questioning at any time or speak to his attorney at any time, there was no requirement that police again advise him of his rights before questioning him at the same interrogation about the results of the polygraph. [1] Although in the present case, [178 Cal.App.3d 1166] appellant did not "request" the test but "volunteered," nonetheless, the Wyrick rule is applicable in that appellant was read his Miranda rights and told the officer he understood them. At that point, appellant made a voluntary and knowing relinquishment of his Sixth Amendment right to have counsel present at the questioning immediately following the polygraph test.

Appellant next contends that this case is distinguishable from Wyrick because in Wyrick there had been no stipulation between counsel forbidding any interrogation following the polygraph examination. Actually, as presented to the trial court, the stipulation was that "no questioning of the defendant would go on outside the polygraph test...."

It is this court's position that the stipulation was in fact honored because the questioning which took place immediately after the machine was turned off was part of the polygraph test that appellant had agreed to take. The following language from Wyrick supports this position: "Disconnecting the polygraph equipment effectuated no significant change in the character of the interrogation. The CID agent could have informed Fields during the examination that his answers indicated deceit; asking Fields, after the equipment was disconnected, why the answers were bothering him was not any more coercive. The Court of Appeals stated that there was no indication that Fields or his lawyer anticipated that Fields would be asked questions after the examination. But it would have been unreasonable for Fields and his attorneys to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable result." (Wyrick v. Fields, supra, 459 U.S. 42, 47 [74 L.Ed.2d 214, 218-219].)

The interpretation of the stipulation presented by the defense attorney to the trial court in the present case that no questions would be asked of appellant after the polygraph machine was turned off, appears an unreasonable one. The very nature of a polygraph exam, as explained in Wyrick, involves questioning of a suspect of any unfavorable results.

If, at the time the test was administered it was the understanding of defense attorney that no questions would be asked after the polygraph machine was turned off, defense attorney could have instructed his client either to refuse to answer any questions after the machine was turned off or summon his attorney to observe the questions regarding appellant's unfavorable responses. The record does not show that any of these steps were taken on appellant's behalf. It is therefore the conclusion of this court that the trial court did not err in ruling that the statements made by appellant after the machine was turned off were admissible. [178 Cal.App.3d 1167]

The judgment is affirmed.

Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165 , 195 Cal.Rptr. 707

2008-05-12T22:44:00.001-07:00

[2] Petitioner next argues he never refused to take a chemical test. A
brief explanation is required.

III

The judgment is affirmed.

Puglia, P. J., and Sparks, J., concurred.

FN 1. All statutory references are to the Vehicle Code.

FN 3. "Mr. Ewing [counsel for petitioner]: Did he [Officer Elliot]
tell you that if you did not submit to a chemical test you'd lose your
drivers [sic] license?

"Mr. Morgan [petitioner]: Yeah, I think he did, but I said that I
didn't want a blood test."

Noli v. Department of Motor Vehicles (1981) 125 Cal.App.3d 446 , 178 Cal.Rptr. 5

2008-05-12T22:43:00.001-07:00

Following an administrative hearing, respondent Department of Motor
Vehicles ordered appellant's driver's license suspended for six months
pursuant to Vehicle Code section 13353, which provides for such
suspension when a motorist lawfully arrested for driving under the
influence of intoxicating liquor refuses to submit to one of three
chemical tests for determining the alcoholic content of his blood. The
present appeal is from a judgment of the superior court denying
appellant's petition for administrative mandamus to compel respondent
to vacate the license suspension order.

Appellant was arrested in Merced County by California Highway Patrol
officers in the evening of June 30, 1980, on suspicion of drunk
driving (Veh. Code, § 23102, subd. (a)). The two officers took him to
the Merced Community Medical Center (Medical Center). In the parking
lot there, before they entered the building, one officer read the
following statement to appellant from a Department of Motor Vehicles
form: "You are required by state law to submit to a chemical test to
determine the alcoholic content of your blood. You have a choice of
whether the test is to be your blood, breath or urine. If you refuse
to submit to a test or fail to complete a test, your driving privilege
will be suspended for a period of six months. You do not have the
right to talk to an attorney or to have an attorney present before
stating whether you will submit to a test, before deciding which test
to take, or during the administration of the test chosen. If you are
incapable or state you are incapable of completing the test you
choose, you must submit to and complete any of the remaining tests or
test." The officer then asked appellant successively whether he would
submit to a blood test, a breath test, or a urine test. Appellant
answered no to the first two but yes to the urine test. The two
officers then took appellant into the Medical Center and asked him
again whether he would submit to a blood test or a breath test, which
would be given at the Medical Center, but appellant refused both.

Appellant was "combative" with the officers and was in handcuffs while
at the Medical Center. The officers were unwilling to remove the
handcuffs at the Medical Center to allow the urine test to be taken
there. They told appellant that the urine test would have to be given
at [125 Cal.App.3d 449] the jail, but that the blood test and breath
test could only be given at the Medical Center, and if appellant was
transported to the jail for the urine test and failed to complete that
test, he would not have another opportunity to take the blood test or
the breath test. Appellant was insistent he would take only the urine
test.

The officers then took appellant back to the patrol car (putting him
in the car "forcibly") and proceeded with him to the county jail. At
the jail the handcuffs were removed and appellant was placed in the
drunk tank and given directions to proceed with his part of the urine
test. After a brief interval appellant reported back to the officers
he was unable to urinate. He was told that if he could not complete
the test his license would be suspended for six months. The officers
waited approximately 20 minutes but without further result.

The evidence on the point was conflicting, but the trial court found
that appellant did not request to be given another opportunity to take
the breath test or the blood test.

Respondent's decision after the administrative hearing was that the
automatic suspension of appellant's driver's license under section
13353 should remain in effect. The trial court in the administrative
mandamus proceeding reviewed the evidence presented at the
administrative hearing and, exercising its independent judgment,
determined in effect that appellant had failed and refused to complete
any of the three blood alcohol tests prescribed in section 13353,
without legal excuse, and denied the writ of mandate.

[1] We agree with respondent and the trial court. The total picture
disclosed shows a young man of large physical build, from all
indications heavily under the influence of alcohol, aggressive and
combative in his behavior with the officers and requiring physical
restraint. To say that he was uncooperative with the officers would be
a gross understatement. (We note appellant stipulated at the
administrative hearing that the arresting officer had reasonable cause
to believe appellant had been driving while drunk; and that he was
lawfully arrested.) The officers were justified in concluding, in the
circumstances, that appellant was unwilling to take any of the tests
and in fact was refusing to do so despite the warning given to him
about the consequences.

Section 13353 states in part: "The person arrested shall have the
choice of whether the test shall be of his blood, breath, or urine,
and he [125 Cal.App.3d 450] shall be advised by the officer that he
has such choice. If the person arrested either is incapable, or states
that he is incapable, of completing any chosen test, he shall then
have the choice of submitting to and completing any of the remaining
tests or test, and he shall be advised by the officer that he has such
choice." We hold that in the circumstances here presented, section
13353 did not require the officers to offer appellant another
opportunity to choose one of the two tests he had categorically
refused, when it would mean transporting him back to the Medical
Center to do so, particularly when there was little reason to believe
he would submit to either of those tests if the opportunity were
renewed. To hold otherwise would be to exalt form over substance in
the interpretation of the statute and make the arresting officers
subservient to the caprice of an inebriated and uncooperative
arrestee. The officers had more important things to do than play games
with appellant in his condition. What it boils down to is that one who
is lawfully under arrest for drunk driving should not be able to
frustrate the procedure contemplated by section 13353 and defeat its
purpose by being combative and uncooperative with the arresting
officers. fn. 1

MARVIN v. DEPARTMENT OF MOTOR VEHICLES , 161 Cal.App.3d 717

2008-05-12T22:42:00.002-07:00

A police officer, about 2:40 o'clock one morning, observed a motor
vehicle driven by plaintiff in a shopping market's uncrowded parking
area. About six times it was driven around the parking lot, through
some gas pump lanes, out onto the public street, and then back into
the parking lot where it was driven in circles. The car then came to a
stop in the exit driveway of the parking lot. Approaching the vehicle,
the officer inquired of plaintiff why she had been so driving. As he
did so, he detected a "strong odor of an alcoholic beverage on her
breath and person," and also observed "that her eyes were bloodshot."
He requested "that she exit from her vehicle" in order that he might
perform "a field sobriety test." She refused to do so. Perplexed, the
officer called his sergeant who, upon his arrival, "also requested the
driver to perform a field sobriety test and she refused."

The complaint of arrest of plaintiff, for driving under the influence
of alcohol, followed.

As noted, the issue before the superior court, and now before this
court, is whether, on the uncontroverted facts, probable cause existed
for the arrest of plaintiff Marvin.

In light of the public danger attending the reckless and drunken
driving of automobiles, it was manifestly reasonable for the officer
to step up to the stopped vehicle and inquire of its driver the reason
for its erratic operation. [2] "It is now settled law 'that
circumstances short of probable cause to make an arrest may still
justify an officer's stopping ... motorists on the streets for
questioning.'" (People v. Rios (1983) 140 Cal.App.3d 616 , 621 [189
Cal.Rptr. 634].)

[1b] And when, upon questioning plaintiff, the officer detected the
"strong odor of an alcoholic beverage on her breath and person," the
circumstances reasonably became "consistent with criminal activity,"
i.e., drunk driving. Such circumstances: "permit--even demand--an
investigation: the public rightfully expects a police officer to
inquire into such circumstances 'in the proper discharge of the
officer's duties.' ... No reason appears for a contrary result simply
because the circumstances are also 'consistent with lawful activity,'
as may often be the case. The possibility of an innocent explanation
does not deprive the officer of the capacity to entertain a reasonable
suspicion of criminal conduct. Indeed, the principal function of his
investigation is to resolve that very ambiguity and establish whether
the activity is in fact legal or illegal--to 'enable the police to
quickly determine whether they should allow the suspect to go about
his business [161 Cal.App.3d 720] or hold him to answer charges.' ..."
(In re Tony C. (1978) 21 Cal.3d 888 , 894 [148 Cal.Rptr. 366, 582 P.2d
957].)

In the course of his continued investigation, it was reasonable for
the officer to seek a field sobriety test of the drunken driver
suspect. And when the suspect, plaintiff Marvin, refused the field
sobriety test, additional evidence of her guilt appeared. Such has
been held to be evidence of a consciousness of guilt.

In People v. McGinnis (1953) 123 Cal.App.2d Supp. 945 [267 P.2d 458],
the court was also concerned with the refusal of a suspected drunken
driver to submit to a sobriety test. It was concluded that such a
refusal was conduct tending to show a consciousness of guilt, and that
it was therefore admissible in evidence against the suspect. (To the
same effect see People v. Zavala (1966) 239 Cal.App.2d 732 , 740-741
[49 Cal.Rptr. 129]; People v. Conterno (1959) 170 Cal.App.2d Supp.
817, 831 [339 P.2d 968]; Witkin, Cal. Evidence (2d ed. 1966) The
Hearsay Rule, § 515(e), p. 485.)

In the case before us the officer had observed plaintiff Marvin's
erratic driving, he then detected a strong odor of alcohol about her
breath and person. And when, added to that evidence, was her refusal
to submit to a field sobriety test, reasonably interpreted as a
consciousness of guilt, there was patently probable cause for her
arrest.

It becomes the function of this court on the uncontroverted evidence
to determine, in light of the whole record, whether there is
substantial evidence tending to support the finding of the superior
court, and in considering this question we must view the evidence most
favorably to the finding. (In re Roderick P. (1972) 7 Cal.3d 801 , 808
[103 Cal.Rptr. 425, 500 P.2d 1]; People v. Johnson (1980) 26 Cal.3d
557 , 576-577 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].)
Applying this rule, we find no substantial evidence supportive of the
superior court's finding of a lack of probable cause for plaintiff
Marvin's arrest.

It becomes unnecessary to determine whether probable cause for
plaintiff's arrest existed before her refusal to take the sobriety
test.

Rust v. Department of Motor Vehicles , 267 Cal.App.2d 545

2008-05-12T22:42:00.001-07:00

On March 31, 1967, having probable cause to believe Charles William
Rust was driving an automobile on a highway while drunk, California
Highway Patrol Officer Johnson stopped him and gave him a field
sobriety test, which he flunked. In the course of telling Rust his
Miranda rights Johnson said he had a right, beginning at that moment,
to an attorney. Rust said he understood. Johnson arrested him and
placed him in the patrol car. While traveling to the station Johnson
requested Rust to submit to a blood alcohol test of his blood, breath
or urine, stating if he refused his driving privilege would be
suspended six months. Rust replied he refused until he called his
attorney, he had taken a field test and would not take another. Rust
was then taken to the jail and booked.

The trial court in the mandamus proceeding found Rust's response
refusing to take a test until he called his attorney "did not
constitute an unequivocal rejection of said test sufficient to excuse
said peace officer from supplying further information to petitioner."

[1] A suspected drunk driver has refused to take the blood alcohol
test when he conditions his consent on having counsel present; he is
not entitled to the advice of counsel in connection with the test (Ent
v. Department of Motor Vehicles, 265 Cal.App.2d 936 [71 Cal.Rptr.
726]; Finley v. Orr, 262 Cal.App.2d 656 [69 Cal.Rptr. 137]; see also
United States v. Wade, 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926];
Gilbert v. California, 388 U.S. 263 [18 L.Ed.2d 1178, [267 Cal.App.2d
547] 87 S.Ct. 1951]; Stoval v. Denno, 388 U.S. 293 [18 L.Ed.2d 1199,
87 S.Ct. 1967]).

In Ent and Finley the suspected drunk drivers first asserted their
nonexistent rights to counsel in connection with the test. Here,
however, Officer Johnson introduced the subject, telling Rust he had
the right to an attorney. Rust's refusal to take any test until he
talked to his attorney "might well have been the direct result of the
police warning" (People v. Ellis, 65 Cal.2d 529 , 539 [55 Cal.Rptr.
385, 421 P.2d 393]). Having warned Rust of his right to an attorney,
Officer Johnson should have qualified his advice. When it became
evident Rust thought he was entitled to an attorney and might have
misconceived the warning, the officer should have elaborated by
stating it was inapplicable to the blood alcohol test. Such an
elaboration was made in Reirdon v. Director of Dept. of Motor
Vehicles, 266 Cal.App.2d 808 [72 Cal.Rptr. 614]. The situation is not
unlike that in People v. Ellis, supra, 65 Cal.2d 529 , 539, where
police officers advised defendant of his right to remain silent, and
testified he then refused to participate in a voice identification
test. The court stated, after warning defendant of his right to remain
silent, if the officers direct him "to speak for voice identification
and he refuses, they must, as a prerequisite to the use of the
defendant's refusal to speak as evidence of [a] consciousness of
guilt, advise him that the right to remain silent does not include the
right to refuse to participate in such a test." (People v. Ellis,
supra, 65 Cal.2d 529 , 539.)

People v. Snook (1997) 16 Cal.4th 1210 , 69 Cal.Rptr.2d 615; 947 P.2d 808

2008-05-10T15:15:00.003-07:00

Driving a vehicle while under the influence of alcohol or drugs is a
misdemeanor. (Veh. Code, § 23152; see id., §§ 23160, 23165, 23170; all
further statutory references are to the Vehicle Code unless otherwise
noted.) Driving under the influence (DUI) may be charged as a felony
rather than a misdemeanor when the offense occurs within seven years
of three or more separate DUI violations which resulted in
convictions. (§ 23175, subd. (a); hereafter section 23175(a).)

In this case we decide what happens when DUI convictions do not follow
the chronological sequence in which the offenses were committed. Does
the enhanced penalty still apply when the conviction for the first
offense comes last? And if the increased penalty is imposed, would it
violate the ex post facto clauses of the state and federal
Constitutions?

We conclude the Legislature intended to subject repeat DUI offenders
to enhanced penalties regardless of the order in which the offenses
were committed and the convictions obtained, and the imposition of
such a penalty does not violate any constitutional prohibition against
ex post facto laws. Accordingly, the judgment of the Court of Appeal
is reversed.

I. Facts and Procedural History

On April 6, 1992, defendant was arrested for DUI. He was released from
custody with a promise to appear in municipal court on May 6, 1992. On
April 24, 1992, a three-count misdemeanor complaint was filed,
charging [16 Cal.4th 1214] defendant with DUI (§ 23152, subd. (a));
driving a vehicle while having 0.08 percent alcohol in the bloodstream
(§ 23152, subd. (b)); and driving with a suspended driver's license (§
14601.1, subd. (a)). Defendant appeared in court on May 6 as promised,
was informed the court had no record of his matter and was not
detained, but a bench warrant was later issued.

For the next 22 months, no further proceedings were held in connection
with the April 6, 1992, offense. In the meantime, defendant was
arrested for DUI on June 11, 1992, two months after defendant had
committed his first DUI offense, and twice the following year, on
September 23, 1993, and October 25, 1993. Defendant was convicted of
all charges arising from the three arrests on October 2, 1992, January
25, 1994, and February 25, 1994, respectively.

When action resumed on the April 6, 1992, violations, the original
misdemeanor complaint was amended to charge count Nos. 1 and 2 as
felonies under section 23175(a), and an information was filed on April
27, 1994. Defendant admitted the truth of the allegations of three
separate DUI violations occurring within seven years of the charged
offenses. On July 26, 1994, after court trial, defendant was found
guilty of the April 6, 1992, offenses. Imposition of sentence was
suspended and defendant was placed on three years' probation on
condition he spend three hundred sixty-five days in local custody.

Defendant appealed his conviction on various grounds, arguing
primarily the 22 months between his offenses and trial constituted a
denial of the constitutional right to speedy trial. The Court of
Appeal requested supplemental briefing from the parties on whether the
section 23175(a) allegations constituted an ex post facto or other
impermissible application of law because the separate violations
resulting in convictions occurred after the April 6, 1992, offenses.
Defendant made the same argument unsuccessfully in the trial court in
a motion to dismiss, but did not raise the issue on appeal.

In the unpublished part of the Court of Appeal's opinion, the court
rejected defendant's speedy trial claim. In the portion of its opinion
certified for publication, the Court of Appeal held section 23175(a)
could not be applied to increase defendant's present offense from a
misdemeanor to a felony, and struck the enhanced penalty.
Characterizing section 23175(a) as a general recidivist statute, the
court determined the provision could not be used to increase the
penalty for a first offense as a result of subsequent offenses. In the
Court of Appeal's view, an interpretation of section 23175(a)
permitting a penalty enhancement for a first offense on the basis of
later-committed acts cannot further the purpose of a recidivist
statute because the enhanced penalty could not deter earlier conduct.
Consequently, [16 Cal.4th 1215] the court construed section 23175(a)
to permit the enhanced penalty only for subsequent offenses. The Court
of Appeal also concluded that applying section 23175(a) to enhance the
penalty of defendant's first offense based on later-committed acts
would violate the constitutional prohibition against ex post facto
laws.

We granted the People's petition for review.

II. Discussion

A. Construction of Section 23175(a)

[1a] Under the Court of Appeal's construction, in order to charge DUI
as a felony, the offense must have occurred after the commission of
the three or more separate violations triggering the enhanced penalty.
In reviewing the decision of the Court of Appeal, we consider anew the
proper interpretation of section 23175(a).

[2a] The court's role in construing a statute is to "ascertain the
intent of the Legislature so as to effectuate the purpose of the law."
(People v. Jenkins (1995) 10 Cal.4th 234 , 246 [40 Cal.Rptr.2d 903,
893 P.2d 1224]; see also Alexander v. Superior Court (1993) 5 Cal.4th
1218 , 1226 [23 Cal.Rptr.2d 397, 859 P.2d 96].) In determining the
Legislature's intent, a court looks first to the words of the statute.
(People v. Pieters (1991) 52 Cal.3d 894 , 898 [276 Cal.Rptr. 918, 802
P.2d 420].) "[I]t is the language of the statute itself that has
successfully braved the legislative gauntlet." (Halbert's Lumber, Inc.
v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233 , 1238 [8 Cal.Rptr.2d
298].)

[1b] When looking to the words of the statute, a court gives the
language its usual, ordinary meaning. (Alexander v. Superior Court,
supra, 5 Cal.4th at p. 1225; Moyer v. Workmen's Comp. Appeals Bd.
(1973) 10 Cal.3d 222 , 230 [110 Cal.Rptr. 144, 514 P.2d 1224].) If
there is no ambiguity in the language, we presume the Legislature
meant what it said and the plain meaning of the statute governs.
(People v. Coronado (1995) 12 Cal.4th 145 , 151 [48 Cal.Rptr.2d 77,
906 P.2d 1232]; Kizer v. Hanna (1989) 48 Cal.3d 1 , 8 [255 Cal.Rptr.
412, 767 P.2d 679].)

In relevant part, section 23175(a) provides: "If any person is
convicted of a violation of Section 23152 and the offense occurred
within seven years of three or more separate violations of [any of
three enumerated DUI offenses], or any combination thereof, which
resulted in convictions, that person shall be punished by imprisonment
in the state prison, or in the county jail for not less than 180 days
nor more than one year, and by a fine of not less than [16 Cal.4th
1216] three hundred ninety dollars ($390) nor more than one thousand
dollars ($1,000)."

Section 23175(a) does not require the three or more triggering
offenses to precede commission of the DUI offense underlying the
present charge. By its terms, the statute requires only that the three
or more "separate violations" which resulted in convictions occurred
within seven years of the charged offense. A "separate" violation is a
violation that is "unconnected; not united or associated; distinct."
(Webster's New Internat. Dict. (2d ed. 1959) p. 2281.)

Moreover, when read in the context of the entire DUI penalty
enhancement scheme to which section 23175 belongs, it is clear the
term "separate violations" means that the three or more DUI offenses
which resulted in convictions must simply be different from the
offense at issue in the present proceeding, and not merely different
from one another. The Legislature has employed the term "separate
violation" or "separate violations" in all of the statutes increasing
the penalties for repeat DUI offenders. (See §§ 23165 [penalty for
conviction of DUI enhanced when offense occurred within seven years of
a "separate violation" of DUI], 23170 [same, but for two "separate
violations"], 23185 [enhanced penalty for person convicted of DUI and
causing bodily injury when offense occurred within seven years of a
"separate violation" of DUI] and 23190 [same, but for two "separate
violations"].) A "separate violation" as it appears in the penalty
enhancement provisions triggered by only one DUI conviction (§§ 23165,
23185) clearly describes the relationship between the present offense
and the offense triggering an enhanced penalty. There is nothing to
indicate the Legislature intended this term to have any different
meaning in section 23175(a). (Cf. People v. Wells (1996) 12 Cal.4th
979 , 985 [50 Cal.Rptr.2d 699, 911 P.2d 1374] [recognizing principle
that, absent contrary indications, Legislature's use of similar term
in related statute reflects legislative intent that same meaning
apply].)

Finally, we observe that the statute, by its terms, permits a DUI
offense to be charged as a felony if the violation occurred within
seven years "of" three or more other separate DUI violations that
resulted in convictions, thus allowing convictions for offenses that
occurred before or after the offense underlying the present conviction
to be used to trigger an enhanced penalty. It would seem that if the
Legislature had intended to count only "separate violations" that
occurred prior to the offense presently at issue, it would have used
the word "after" rather than "of."

[2b] If the statutory language is clear and unambiguous, the provision
should be applied according to its terms without further judicial
construction [16 Cal.4th 1217] so long as the literal meaning is in
accord with the purpose of the statute. (Lungren v. Deukmejian (1988)
45 Cal.3d 727 , 735 [248 Cal.Rptr. 115, 755 P.2d 299].) (1c) As the
legislative history of section 23175 amply demonstrates, in enacting
and amending the language of section 23175 to provide an enhanced
penalty on conviction of a DUI offense occurring within seven years of
three or more separate DUI violations, the Legislature "meant what it
said."

When first enacted in 1983, former section 23175 provided for enhanced
punishment when a defendant was convicted of DUI and the offense
occurred "within five years of three or more prior offenses which
resulted in convictions of violations of [enumerated DUI offenses]
...." (Stats. 1983, ch. 637, § 3, p. 2546.) In 1984, shortly after the
enactment of former section 23175, the Legislature amended that
provision and four other DUI penalty enhancement statutes by
substituting the words "separate violations" for "prior offenses."
(Stats. 1984, ch. 1205, §§ 1-5, pp. 4129-4130.)

The legislation amending former section 23175 in 1984 also added
section 23217 to the Vehicle Code to explain why "separate violations"
replaced "prior offenses" in former section 23175 and the other
enhanced penalty provisions amended in the same act. (Stats. 1984, ch.
1205, § 14, p. 4136.) Section 23217 read as follows when enacted:

"The Legislature finds and declares that some repeat offenders of the
prohibition against driving under the influence of alcohol ... may be
escaping the intent of the Legislature to punish the offender with
progressively greater severity if the offense is repeated one or more
times within a five-year period. This situation may occur when a
conviction for a subsequent offense occurs before a conviction is
obtained on an earlier offense.

"The Legislature further finds and declares that the timing of court
proceedings should not permit a person to avoid aggravated mandatory
minimum penalties for multiple separate offenses occurring within a
five-year period. It is the intent of the act enacting this section,
in changing the word 'prior' to the word 'separate,' to provide that a
person be subject to enhanced mandatory minimum penalties for multiple
offenses within a period of five years, regardless of whether the
convictions are obtained in the same sequence as the offenses had been
committed." fn. 1 (§ 23217, as added by Stats. 1984, ch. 1205, § 14,
p. 4136.) [16 Cal.4th 1218]

Section 23217 expresses the Legislature's concern that some DUI
offenders were escaping enhanced punishment for multiple offenses when
their convictions did not occur in the same order as the offenses were
committed. The Legislature sought to remedy this situation by defining
the offenses triggering enhancement as "separate violations" rather
than as "prior offenses." By enacting these amendments, the
Legislature did away with the requirement of a sequential relationship
between the offense underlying the present conviction and the three or
more offenses triggering an enhanced penalty under section 23175(a),
thereby broadening the reach of the enhanced penalty provisions. (Cf.
People v. Albitre (1986) 184 Cal.App.3d 895 [229 Cal.Rptr. 289] [term
"prior offenses" in former section 23190 refers to timing of offenses
which trigger enhanced punishment].) Specifically changing the
language of the statute from "prior offenses" to "separate violations"
evidences the Legislature's purposeful departure from the traditional
approach taken in habitual offender statutes. (Cf. People v. Balderas
(1985) 41 Cal.3d 144 , 201 [222 Cal.Rptr. 184, 711 P.2d 480] [applying
rationale of habitual offender statutes that offender undeterred by
prior experience in criminal justice system is deserving of more
severe punishment]; see also People v. McGee (1934) 1 Cal.2d 611 , 614
[36 P.2d 378]; People v. Espinoza (1979) 99 Cal.App.3d 59 , 74 [159
Cal.Rptr. 894]; People v. Diaz (1966) 245 Cal.App.2d 74 , 77-78 [53
Cal.Rptr. 666].)

The legislative materials available to lawmakers who considered
Assembly Bill No. 3833 in 1984 (which became chapter 1205 of the 1984
Statutes) also strongly suggest section 23175(a) is aimed at punishing
more harshly the person who commits multiple DUI offenses, regardless
of the sequence in which the offenses were committed and the
convictions obtained. As described in bill analyses prepared by
several legislative committees, Assembly Bill No. 3833 sought to
"prevent a person from being able to circumvent the enhanced penalties
for repeat DUI offenses by manipulating the timing of court
proceedings," and "close a loophole in the law that allows some repeat
DUI offenders to escape enhanced punishments mandated by law for a
repeat offense." (Sen. Com. on Judiciary, analysis of Assem. Bill No.
3833 (1983-1984 Reg. Sess.) p. 2; see also Assem. Crim. Law & Pub.
Safety Com., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.)
pp. 1-2; and see Sen. Republican Caucus, analysis of Assem. Bill No.
3833 (1983-1984 Reg. Sess.) p. 2; cf. Legis. Analyst, analysis of
Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 1 [because current law
bases enhanced penalties on prior offenses, repeat offender may
receive lower fine or sentence if court proceedings for prior offense
are delayed].) As these analyses explained to legislators, by changing
the words "prior offenses" to [16 Cal.4th 1219] "separate violations,"
a later-obtained conviction can be punished by the enhanced penalty
for a multiple DUI offense regardless of when that offense occurred.
(Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984
Reg. Sess.) p. 3; see also Assem. Crim. Law & Pub. Safety Com.,
analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 1.)

Defendant argues nonetheless the legislative materials support the
Court of Appeal's construction of section 23175(a). Defendant points
to a statement in one committee bill analysis that Assembly Bill No.
3833 was meant "to prevent a person from being able to circumvent the
enhanced penalties for repeat DUI offenses by manipulating the timing
of court proceedings" (Sen. Com. on Judiciary, analysis of Assem. Bill
No. 3833 (1983-1984 Reg. Sess.) p. 2, italics added), and a statement
in an enrolled bill report that the Legislature "declares the intent
for DUI offenders, convicted multiple times within a five-year period,
[is] to suffer greater penalties for each succeeding offense." (Dept.
of Health & Welfare, Enrolled Bill Rep., analysis of Assem. Bill No.
3833 (1983-1984 Reg. Sess.) Sept. 7, 1994, p. 1, italics added.)

[2c] Legislative materials inform our construction of a statute only
when the words of the statute are unclear (People v. Jones (1993) 5
Cal.4th 1142 , 1146 [22 Cal.Rptr.2d 753, 857 P.2d 1163]), but a clear
statement of intent may serve to confirm a provision's plain meaning.
[1d] Here, although some of the language in these legislative
materials, read in isolation, could be viewed as supporting the Court
of Appeal's construction of section 23175(a), when read in light of
the entire available legislative history, the statements do not
support defendant's claim that the date of the commission of the
offense, but not the date of conviction, should control application of
section 23175(a). To the contrary. The Legislature's substitution of
"separate violations" for "prior offenses" in former section 23175,
its explanation for doing so in section 23217, and the legislative
materials available to assist and inform the Legislature's
consideration of Assembly Bill No. 3833, taken together, amply reflect
the Legislature's goal of preventing the DUI offender from escaping an
enhanced penalty for multiple offenses. They indicate moreover the
Legislature's intention to punish all repeat DUI offenders harshly,
regardless of the order in which offenses and convictions have
occurred. In light of the statute's purpose, we conclude section 23175
must be read to permit imposition of an enhanced penalty on conviction
of a violation of section 23152 if that offense was committed within
seven years of three or more separate DUI violations resulting in
convictions, regardless of the order in which the three separate DUI
offenses occurred or the convictions were obtained.

In construing section 23175 to provide an enhanced penalty only for
subsequent offenses, the Court of Appeal reasoned that imposing a
penalty [16 Cal.4th 1220] enhancement for a first offense on the basis
of later-committed offenses could have no deterrent effect on past
conduct. This rationale presumes a person can only be deterred from
committing multiple DUI offenses by the threat of progressively
harsher punishment for each subsequent DUI offense. However, in
amending section 23175, the Legislature could reasonably have believed
that closing the loophole that allowed some repeat offenders to avoid
enhanced punishment would serve to increase the statute's overall
deterrent effect. A person with DUI charges pending who knows he or
she risks exposure to felony punishment if convicted of three other
DUI offenses, in whatever order they were committed, may well refrain
from driving under the influence again for fear of the consequences.

Moreover, to construe section 23175(a), as the Court of Appeal does,
perpetuates the "loophole" the Legislature sought to close. Under the
Court of Appeal's interpretation of section 23175(a), a defendant who
committed four separate drunk driving offenses close in time could
still escape the enhanced penalty by pleading guilty to the second,
third and fourth offenses before going to trial on the first offense.
This type of manipulation is precisely the situation the Legislature
intended to remedy. (See § 23217.) Because the Court of Appeal's
construction serves to defeat, rather than promote, the Legislature's
purpose in amending former section 23175 in 1984, we decline to adopt
it here. (People v. King (1993) 5 Cal.4th 59 , 69 [19 Cal.Rptr.2d 233,
851 P.2d 27]; see also People v. Pieters, supra, 52 Cal.3d at pp.
898-901.)

B. Ex Post Facto

[3a] The Court of Appeal concluded its construction of section
23175(a) was compelled by the constitutional prohibition against ex
post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art.
I, § 9.) [4a] In deciding whether application of section 23175(a) to
the circumstances of this case violates the ex post facto clause of
the state and federal Constitutions, we begin by noting that we
interpret the ex post facto clause in the California Constitution no
differently than its federal counterpart. (See People v. McVickers
(1992) 4 Cal.4th 81 , 84 [13 Cal.Rptr.2d 850, 840 P.2d 955]; Tapia v.
Superior Court (1991) 53 Cal.3d 282 , 295 [279 Cal.Rptr. 592, 807 P.2d
434].) Thus, United States Supreme Court precedent not only controls
the federal constitutional question, but also provides persuasive
authority as to whether a statute is an ex post facto law under
California law. (People v. Helms (1997) 15 Cal.4th 608 , 614 [63
Cal.Rptr.2d 620, 936 P.2d 1230].)

In Collins v. Youngblood (1990) 497 U.S. 37 [110 S.Ct. 2715, 111
L.Ed.2d 30], the court endorsed the view of its earlier decisions
establishing that the [16 Cal.4th 1221] ex post facto clause prohibits
three categories of legislative acts: any provision " '[1] which
punishes as a crime an act previously committed, which was innocent
when done; [2] which makes more burdensome the punishment for a crime,
after its commission, or [3] which deprives one charged with crime of
any defense available according to law at the time when the act was
committed ....' " (Id. at p. 42 [110 S.Ct. at p. 2719], quoting
Beazell v. Ohio (1925) 269 U.S. 167, 169 [46 S.Ct. 68, 68, 70 L.Ed.
216]; cf. People v. McVickers, supra, 4 Cal.4th at p. 84.)

[3b] Focusing on the second category of prohibited legislative acts,
those which make more burdensome the punishment for a crime after its
commission, defendant argues the Court of Appeal correctly invoked the
ex post facto clause in this case. Defendant points out that when he
committed the April 6, 1992, offense, his crime was a misdemeanor, but
at the time he was convicted of that offense, section 23175(a) made
the crime a felony.

We reject defendant's argument. The increase in defendant's penalty in
this case cannot be attributed to any change in law, since section
23175(a) was effective at the time defendant committed the instant
offense. Rather, it was defendant's own conduct that ultimately
increased his punishment. A self-inflicted change in defendant's
status as a repeat offender does not constitute an ex post facto
violation. The decisions of courts in other jurisdictions are in
accord. (See Cornwell v. United States (D.C. 1982) 451 A.2d 628, 630;
State v. Banks (1981) 105 Wis.2d 32 [313 N.W.2d 67, 76].)

[4b] Our conclusion is fully consistent with one of the primary
purposes of the ex post facto clause: to prevent unforeseeable
punishment. "Critical to relief under the Ex Post Facto Clause is not
an individual's right to less punishment, but the lack of fair notice
and governmental restraint when the legislature increases punishment
beyond what was prescribed when the crime was consummated." (Weaver v.
Graham (1981) 450 U.S. 24, 30 [101 S.Ct. 960, 965, 67 L.Ed.2d 17].)
(3c) The portion of section 23175(a) relevant to this case has been in
effect since 1985. At the time defendant committed his first offense
in 1992, he was on notice that if he committed a DUI offense within
seven years of three or more other DUI violations resulting in
convictions, he could be subject to felony punishment. The mere fact
that conviction of the offense that was first in time was obtained
after he had committed the offenses triggering the enhanced penalty
does not contravene the prohibition of the ex post facto clause.

III. Conclusion and Disposition

We conclude the Legislature intended to punish repeat DUI offenders
with enhanced penalties, regardless of the order in which the offenses
were [16 Cal.4th 1222] committed or the convictions obtained.
Moreover, imposition of an enhanced penalty on a fourth DUI conviction
for an offense predating the triggering violations does not contravene
the constitutional proscription against ex post facto laws, so long as
the commission of the offense underlying the section 23175(a) charge
occurred after the statute's 1984 amendment became effective.

The judgment of the Court of Appeal striking the allegations and true
findings of three or more separate violations under section 23175(a)
and remanding to the trial court for resentencing is reversed. The
Court of Appeal is hereby directed to affirm the trial court's
judgment in its entirety.

George, C. J., Mosk, J., Kennard, J., Baxter, J., Werdegar, J., and
Chin, J., concurred.

FN 1. In 1986, the Legislature amended section 23175 (Stats. 1986,
ch. 1117, § 6, p. 3934), and the other DUI penalty enhancement
provisions, substituting "seven years" for "five years" of a separate
violation of the enumerated offenses. In 1988, section 23175 was
further amended to make imprisonment in state prison an alternative to
imprisonment in the county jail. (Stats. 1988, ch. 599, § 1, p. 2160;
id., ch. 1553, § 2, p. 5580.) That provision was redesignated section
23175 (a) in 1990. (Stats. 1990, ch. 44, § 6, p. 255.)

People v. Forrester (2007) , Cal.App.4th

2008-05-10T15:15:00.001-07:00

In People v. Sweet (1989) 207 Cal.App.3d 78 ( Sweet ), defendant
pled guilty to driving under the influence of alcohol (DUI). At the
time of his plea, a defendant convicted of a subsequent DUI offense
within five years receives increased punishment. After Sweet's plea,
the Legislature amended the statute to extend the five years to seven
years. Sweet reoffended more than five but less than seven years
later. In Sweet , we held that the statute may constitutionally be
applied to prior DUI convictions entered when five years was the
maximum period in which prior convictions could be used for increased
sentence. ( Id. at p. 83.)

Jason Michael Forrester is in a similar predicament. The statute was
again amended to extend the seven years to ten years. (Veh. Code, §§
23540 & 23546.) fn. 1 Faced with the seemingly insuperable Sweet
precedent, Forrester asks us to reexamine our holding in light of
Stogner v. California (2003) 539 U.S. 607. We have, and conclude {Slip
Opn. Page 2} nothing has changed. Forrester's enhanced sentence does
not violate ex post facto or due process principles. We affirm the
judgment.

Factual and Procedural Background

Forrester suffered two DUI convictions, one in 1997 and another in
2001. In 1997, sections 23540 and 23546 provided that DUI-related
convictions increase punishment for subsequent DUI convictions
occurring within seven years. Effective January 1, 2005, the
California Legislature amended these statutes to extend the period to
10 years. fn. 2

In March 2006, Forrester was again charged with DUI offenses. (§§
23152, subd. (a) & 23152, subd. (b).) The People alleged his two prior
convictions to enhance his sentence.

Forrester moved to strike his prior 1997 conviction. He argues, as did
defendant Sweet, that to enhance his sentence with this prior
conviction violates the ex post facto clause. The trial court denied
the motion and Forrester pled no contest to a violation of section
23152, subdivision (b), and admitted the two prior convictions. He was
sentenced to confinement in county jail. The trial court stayed
execution of his sentence pending appeal and granted him a certificate
of probable cause.

The Appellate Division of the Superior Court affirmed. It concluded
that use of the 1997 prior conviction to enhance Forrester's sentence
does not violate ex post facto principles. We granted Forrester's
request to transfer the case here for resolution of the constitutional
issues. {Slip Opn. Page 3}

Ex Post Facto Clause and Due Process

Forrester acknowledges our analysis in Sweet and other precedent. Ex
post facto laws (1) criminalize formerly innocent actions after their
commission; (2) aggravate a crime after its commission; (3) increase
the punishment associated with the crime after its commission; or (4)
alter the legal rules of evidence required to convict the offender. (
Miller v. Florida (1987) 482 U.S. 423, 429; Sweet , supra , 207
Cal.App.3d at p. 82.) "Statutes enacting punishment for a defendant
convicted of violating section 23152 with prior convictions do not
have the effect of being ex post facto laws. [Citations.] It is the
law in effect at the time of commission of the offense which controls.
[Citations.]" ( Sweet , at p. 82.)

In 2006, when Forrester committed the current DUI offense, the law
provided that an individual with prior section 23103.5 convictions
within the last 10 years would be subject to enhanced punishment if
convicted of violating section 23152, subdivision (a). (§§ 23540,
23546 & 23550.) "There is no constitutional bar preventing application
of the statute to later offenses solely because the prior conviction
which serves as a basis for enhancement was committed before the
habitual offender statute was enacted." ( Sweet , supra , 207
Cal.App.3d at p. 83.) The crime Forrester is punished for is not the
prior conviction, "but the subsequent offense of which the prior
conviction constitutes only one element. [Citation.]" ( Ibid .)

Courts have routinely rejected ex post facto challenges to statutes
that increase penalties for recidivism. Courts reason that the
sentence imposed upon a habitual offender is not an additional
punishment for the earlier crime, but a punishment for the later
crime, which is aggravated because of its repetitive nature. (See,
e.g., Gryger v. Burke (1948) 334 U.S. 728, 732; People v. Snook (1997)
16 Cal.4th 1210 , 1221; People v. Eribarne (2004) 124 Cal.App.4th 1463
, 1469 [three strikes law]; People v. Wohl (1991) 226 Cal.App.3d 270 ,
273 [rejecting ex post facto contention where DUI conviction is
elevated to felony on fourth conviction].). Additionally, it is well
established that even expungement of a conviction will not eliminate
all consequences associated with that conviction. ( People v. Jacob
(1985) 174 Cal.App.3d 1166 , 1173.) {Slip Opn. Page 4}

Forrester argues that Sweet is no longer good law because Stogner v.
California, supra, 539 U.S. 607, compels a different result. In
Stogner , the State of California attempted to revive the statute of
limitations for the crime of child molestation after the original
statute of limitations had expired. The United States Supreme Court
held that California was barred from doing so because the new statute
of limitations attached criminal liability "'. . . where the party was
not, by law, liable to any punishment .'" ( Id. at p. 613.)

The Appellate Division correctly noted the difference between reviving
a prosecution in its entirety after the statute of limitations has
run, and enhancing the sentence in a new criminal prosecution stemming
from new criminal conduct. Here Forrester's prosecution stems from a
law that became effective more than one year before the date of his
arrest, and one that apprised him of the possible consequences of a
new violation. Unlike Stogner , Forrester has not been charged with a
crime for which the statute of limitations has run. He has not been
deprived of a "vested defense" because the statute extending the
maximum period of prior offenses was enacted before the current
offense. (See Sweet , supra , 207 Cal.App.3d at pp. 82, 86.)

Violation of Forrester's 1997 Plea Agreement and Estoppel

Forrester next contends that the plea agreement he signed in 1997 is a
contract in which the district attorney promised he would receive an
enhanced sentence only for DUI offenses committed within seven years.
He relies on language in the plea form stating that the court and
counsel advised him of the elements of the offense, the possible
defenses, and the direct consequences of his plea, including the
minimum and maximum sentences listed on a chart appearing on the
second page of the plea form. A chart lists the penalties for DUI
convictions effective January 1, 1994, depending upon the number of
prior DUI offenses committed within the previous seven years. The
chart simply provides information concerning the relevant law at that
time. No language in the plea agreement, nor any evidence supports the
contention that Forrester relied on the information in the chart in
entering his plea. Nor would such reliance have been reasonable. {Slip
Opn. Page 5}

For these reasons, there is no merit to Forrester's contention the
state is estopped from using his 1997 conviction. (See Hair v. State
of California (1991) 2 Cal.App.4th 321 , 328-329.)

The judgment is affirmed.

Yegan, J., and Coffee, J., concurred.

FN 1. All statutory references are to the Vehicle Code.

FN 2. Section 23540 currently provides in part: "If a person is
convicted of a violation of Section 23152 and the offense occurred
within 10 years of a separate violation of Section 23103, as specified
in Section 23103.5, 23152, or 23153, that resulted in a conviction,
that person shall be punished by imprisonment in the county jail for
not less than 90 days nor more than one year and by a fine of not less
than ($390) nor more than ($1000)." Section 23546 provides for
additional punishment if a person has two prior qualifying convictions
(e.g., "wet reckless" driving convictions).

People v. Casillas (2001) 92 Cal.App.4th 171 , 111 Cal.Rptr.2d 651

2008-05-10T15:14:00.001-07:00

The criminal law often punishes more harshly an accused who already
has a criminal conviction than an accused who has none. The three
strikes law is one example. (Pen. Code, §§ 667, subds. (b)-(i),
1170.12, subds. (b)-(e).) Petty theft with a prior is another. (Pen.
Code, § 666.) Vehicle Code sections 23152 and 23550 constitute yet
another. fn. 1 Normally punishable as a misdemeanor, an offense of
driving under the influence (DUI) is punishable as a felony if an
accused has three "separate violations [92 Cal.App.4th 174] ... which
resulted in convictions" of DUI. (§§ 23152, 23536, 23540, 23546,
23550. fn. 2 )

At the time of the preliminary hearing of Casimero Carlos Casillas
(defendant) on his fourth DUI, he had a pending DUI complaint and two
"separate violations ... which resulted in convictions" of DUI. The
magistrate held him to answer, but the superior court found "no
evidence" of three "separate violations ... which resulted in
convictions" of DUI and set aside the ensuing information. (Pen. Code,
§ 995. fn. 3 ) A timely People's appeal followed. (Pen. Code, § 1238,
subd. (a)(1).)

[1a] The issue on appeal is whether pleading and proof at the
preliminary hearing of three "separate violations ... which resulted
in convictions" of DUI is necessary to prosecute and punish a fourth
DUI as a felony. Defendant argues it is necessary. The Attorney
General argues it is not. In the alternative, the Attorney General
argues pleading and proof at the preliminary hearing of a pending DUI
complaint and two "separate violations ... which resulted in
convictions" of DUI is adequate if three "separate violations ...
which resulted in convictions" of DUI will exist by the time of
conviction of a fourth DUI.

Our analysis of California's historical framework for charging a
felony by information persuades us that pleading and proof at the
preliminary hearing of three "separate violations ... which resulted
in convictions" of DUI is a constitutional and statutory condition
precedent to prosecution and punishment of a fourth DUI as a felony.
We affirm the superior court order setting aside the information.

Discussion

Legislative history of section 23550

[2] The "fundamental task of statutory construction is to 'ascertain
the intent of the lawmakers so as to effectuate the purpose of the
law.' " ( People v. Cruz (1996) 13 Cal.4th 764 , 774-775 [55
Cal.Rptr.2d 117, 919 P.2d 731].) [92 Cal.App.4th 175] If the language
is clear, the plain meaning of the words is determinative, and there
is ordinarily no need to look beyond the statute itself. ( People v.
Benson (1998) 18 Cal.4th 24 , 30 [74 Cal.Rptr.2d 294, 954 P.2d 557].)
If the language is ambiguous, the courts may "resort to extrinsic
sources, including the ostensible objects to be achieved and the
legislative history." ( People v. Coronado (1995) 12 Cal.4th 145 , 151
[48 Cal.Rptr.2d 77, 906 P.2d 1232].)

[1b] Section 23550 authorizes felony punishment of a fourth DUI that
occurs within seven years of commission of three "separate violations
... which resulted in convictions" of DUI, but the statute does not
specify when pleading and proof of those conditions precedent to
felony punishment shall occur. (§ 23550, subd. (a).) The Attorney
General argues the opening words of the statute-"If any person is
convicted of a violation of Section 23152"-show that pleading and
proof of the three "separate violations ... which resulted in
convictions" of DUI is not necessary at the preliminary hearing since
"the time at which to inquire about any other convictions is the point
at which the defendant is convicted, and not earlier."

A legislative intent to impose harsher penalties for successive DUI's
is readily inferable from section 23550's legislative history. The
statute, originally enacted as section 23175, authorized a harsher
misdemeanor penalty for a fourth DUI within five years of three "prior
offenses which resulted in convictions" of DUI. (Stats. 1983, ch. 637,
§ 3, p. 2546.) By subsequent amendment, the statute applied to three
"separate violations ... which resulted in convictions" of DUI without
regard to whether they were priors (Stats. 1984, ch. 1205, § 3, p.
4130; Stats. 1984, ch. 1417, § 2.5, p. 4984, operative July 1, 1985),
then changed from five years to seven years the time between the new
offense and the three "separate violations ... which resulted in
convictions" of DUI (Stats. 1986, ch. 1117, § 6, p. 3934), then
authorized felony punishment by evolving from a misdemeanor to a
wobbler (Stats. 1988, ch. 599, § 1, p. 2160; Stats. 1988, ch. 1553, §
2, p. 5580 fn. 4 ), and then was repealed and reenacted as section
23550 with no significant change in text (Stats. 1998, ch. 118, §§ 41,
84). Nowhere in the legislative history, however, do we find an intent
to authorize a prosecution leading to harsher recidivist penalties
before three "separate violations ... which resulted in convictions"
of DUI exist.

The section 23550 enhancement and an analogous enhancement

The cornerstone of the prosecutor's opposition to defendant's Penal
Code section 995 motion in the superior court was People v. Snook
(1997) 16 [92 Cal.App.4th 176] Cal.4th 1210 [69 Cal.Rptr.2d 615, 947
P.2d 808]. That case analyzed the legislative intent of section 23217,
a statute the Legislature enacted while changing the trigger for
harsher punishment of a DUI from three "prior offenses which resulted
in convictions" of DUI to three "separate violations ... which
resulted in convictions" of DUI without regard to whether they were
priors. fn. 5 ( People v. Snook , supra , at p. 1218; see Stats. 1984,
ch. 1205, § 14, p. 4136.) Snook found a legislative intent to permit
felony punishment "regardless of the order in which the offenses were
committed and the convictions obtained." ( People v. Snook , supra ,
at p. 1213.) On appeal, however, the Attorney General concedes neither
Snook nor any other published case addresses the issue whether
pleading and proof at the preliminary hearing of three "separate
violations ... which resulted in convictions" of DUI is necessary to
prosecute and punish a fourth DUI as a felony.

Both parties cite People v. Superior Court ( Mendella ) (1983) 33
Cal.3d 754 [191 Cal.Rptr. 1, 661 P.2d 1081] ( Mendella ), in which the
Supreme Court announced, in the Attorney General's words, a "broad
rule" making enhancement allegations subject to a Penal Code section
995 motion. ( Mendella , supra , at pp. 758-763, superseded by statute
on another point as stated in In re Jovan B. (1993) 6 Cal.4th 801 ,
814, fn. 8 [25 Cal.Rptr.2d 428, 863 P.2d 673].) The three "separate
violations ... which resulted in convictions" of DUI are enhancement
allegations, not elements of the crime. ( People v. Coronado , supra ,
12 Cal.4th at p. 152, fn. 5; People v. Bowen (1992) 11 Cal.App.4th 102
, 105-106 [14 Cal.Rptr.2d 40]; People v. Weathington (1991) 231
Cal.App.3d 69 , 87-90 [282 Cal.Rptr. 170].)

The prosecutor in Mendella filed a complaint that charged assault with
a deadly weapon or by force likely to produce great bodily injury
(GBI) but that alleged no GBI enhancement. ( Mendella , supra , 33
Cal.3d at p. 757; Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd.
(a).) Skeptical of the accused's denial of intent to cause injury, the
magistrate held him to answer. ( Mendella , supra , at p. 757.) [92
Cal.App.4th 177]

Once the ensuing information in Mendella added a GBI allegation to the
original assault charge, the accused filed (1) a Penal Code section
995 motion on the ground the prosecutor adduced insufficient evidence
of GBI at the preliminary hearing, and (2) a Penal Code section 739
motion on the ground an information can charge an offense, but cannot
allege an enhancement, that was not in the complaint at the time of
the preliminary hearing. fn. 6 ( Mendella , supra , 33 Cal.3d at p.
757; Pen. Code, § 12022.7, subd. (a).) The superior court granted the
Penal Code section 739 motion, ruling that a Penal Code section 995
motion can challenge an offense but not an enhancement. ( Mendella ,
supra , at pp. 758, 763.)

The Supreme Court in Mendella examined the transition from the
indeterminate sentencing law (ISL) to the determinate sentencing law
(DSL) and found nothing in the "history or form" of the DSL that
intimated a legislative intent "to deprive the defendant of the
opportunity" the ISL traditionally recognized "for pretrial challenges
of enhancement allegations." ( Mendella , supra , 33 Cal.3d at p.
763.) The court noted, too, that Penal Code section 995 draws no
distinction between an offense and an enhancement and held that to
allow the prosecutor "to indiscriminately charge enhancements without
subjecting such allegations to judicial scrutiny under a [Penal Code]
section 995 motion is to undermine" procedural guaranties that
"implement the defendant's due process right to a pretrial
determination of probable cause." ( Mendella , supra , at pp. 758-759;
see Ervin v. Superior Court (1981) 119 Cal.App.3d 78 , 89 [173
Cal.Rptr. 208].) The court vacated the order setting aside the
enhancement under Penal Code section 739 since the record contained
sufficient evidence of GBI to withstand a Penal Code section 995
motion. ( Mendella , supra , at pp. 757-758, 765.)

History of the requirement of pleading and proof at the preliminary hearing

Mendella fits squarely within the constitutional and statutory
framework for charging a felony by information. Among the components
of that framework are Penal Code sections 871 and 872. Penal Code
section 871 provides: [92 Cal.App.4th 178] "If, after hearing the
proofs, it appears either that no public offense has been committed or
that there is not sufficient cause to believe the defendant guilty of
a public offense, the magistrate shall order the complaint dismissed
and the defendant to be discharged." (Italics added.) Penal Code
section 872, subdivision (a) provides in relevant part: "If, however,
it appears from the examination that a public offense has been
committed, and there is sufficient cause to believe that the defendant
is guilty, the magistrate shall make or indorse on the complaint an
order ... 'that he or she be held to answer to the same.' " (Italics
added.)

Both statutes use the word "shall," which generally refers to a
mandatory duty. ( Common Cause v. Board of Supervisors (1989) 49
Cal.3d 432 , 443 [261 Cal.Rptr. 574, 777 P.2d 610].) [3] The accused
is entitled to the benefit of every reasonable doubt in questions of
statutory construction. ( Keeler v. Superior Court (1970) 2 Cal.3d 619
, 631 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420], superseded by
statute on another ground as stated in Wilson v. Kaiser Foundation
Hospitals (1983) 141 Cal.App.3d 891 , 897, fn. 6 [190 Cal.Rptr. 649];
In re Tartar (1959) 52 Cal.2d 250 , 257 [339 P.2d 553].) [1c] Applying
those established rules of statutory construction, we consider
mandatory the magistrate's Penal Code sections 871 and 872 duties.
(See 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial
Proceedings, §§ 147, 148, 151, pp. 350, 351, 354.)

To discharge those duties, the magistrate must hold the accused to
answer if the evidence at the preliminary hearing shows three
"separate violations ... which resulted in convictions" of DUI but
must dismiss the complaint if the evidence fails to show three
"separate violations ... which resulted in convictions" of DUI. (See
Pen. Code, §§ 871, 872; Veh. Code, § 23550.) The standard of proof is
"sufficient cause," which "is generally equivalent to that 'reasonable
or probable cause' required to justify an arrest" but which "need not
be sufficient to support a conviction." ( Williams v. Superior Court
(1969) 71 Cal.2d 1144 , 1147 [81 Cal.Rptr. 761, 460 P.2d 961].)

The original 1879 California Constitution mandated that felonies
"shall be prosecuted by information, after examination and commitment
by a Magistrate, or by indictment, with or without such examination
and commitment, as may be prescribed by law." (Cal. Const. of 1879,
art. I, § 8.) That mandate embodies the pleading and proof requirement
that Penal Code sections 871 and 872 introduced a century and a half
ago and that article I, section 14 of the California Constitution
continues to the present: "Felonies shall be prosecuted as provided by
law, either by indictment or, after examination and commitment by a
magistrate, by information." (Stats. 1851, ch. 29, §§ 163-164, p. 230;
Cal. Const., art. I, § 14 (pertinent part), added by [92 Cal.App.4th
179] initiative, Gen. Elec. (Nov. 5, 1974), commonly known as Prop. 7;
see Assem. Const. Amend. No. 60, Stats. 1974 (1973-1974 Reg. Sess.)
Res. ch. 90, pp. 3736-3740.)

An early case emphasized that compliance with the constitutional and
statutory requirements of pleading and proof is the sine qua non of
superior court jurisdiction to try an accused on a felony information:
"Before any accused person can be called upon to defend himself on any
charge prosecuted by information, he is entitled to a preliminary
examination upon said charge, and the judgment of the magistrate
before whom such examination is held as to whether the crime for which
it is sought to prosecute him has been committed, and whether there is
sufficient cause to believe him guilty thereof. These proceedings are
essential to confer jurisdiction upon the court before whom he is
placed on trial. To say that he was accorded a fair trial upon an
information filed against him without a substantial compliance with
these jurisdictional requirements, and, therefore, that there had been
no miscarriage of justice, hardly meets the situation. Such an
argument would apply with equal force to the validity of the
conviction upon an information filed by the district attorney in a
case where no preliminary examination at all had been held. Such
practice would result, in legal effect, in wiping out all provisions
of the constitution and the Penal Code providing for preliminary
examination, and in clothing the district attorney with unlimited
authority to file information against whomsoever in his judgment he
might consider guilty of crime." ( People v. Bomar (1925) 73 Cal.App.
372, 378 [238 P. 758].)

The constitutional mandate " 'protects a person from prosecution in
the absence of a prior determination by either a magistrate or a grand
jury that such action is justified.' " ( Jones v. Superior Court ,
supra , 4 Cal.3d at p. 664.) A statute in force for almost a century
complements the constitutional mandate by specifically prohibiting
amendment of the "information so as to charge an offense not shown by
the evidence taken at the preliminary examination." (Pen. Code, § 1009
(Pen. Code, former § 1008); Stats. 1911, ch. 257, § 1, p. 436; Stats.
1927, ch. 608, § 1, p. 1040; Stats. 1941, ch. 497, § 2, p. 1809;
Stats. 1951, ch. 1674, §§ 76-77, p. 3842; see People v. Superior Court
( Alvarado ) (1989) 207 Cal.App.3d 464 , 472 [255 Cal.Rptr. 46].)

The "clear purpose" of the protections inherent in the constitutional
and statutory framework for charging a felony by information is "to
give the accused a preliminary hearing either before a grand jury or
before a committing magistrate, and to deny to the district attorney
the right to force an accused to trial before a jury upon an
information which is not within the scope of the evidence taken." (
People v. Fyfe (1929) 102 Cal.App. 549, 553 [92 Cal.App.4th 180] [283
P. 378]; see Cal. Const., former art. I, § 8; Pen. Code, former §
1008.) Those protections, which are "mandatory" and "in whole harmony"
with one another, require "examination and commitment by a magistrate
as a prerequisite to the filing of an information by the district
attorney." ( People v. Fyfe , supra , at p. 555.)

In light of those protections, we turn to the statute at issue,
section 23550, which authorizes felony punishment of an offender with
three "separate violations ... which resulted in convictions" of DUI.
(§ 23550, subd. (a), italics added.) The statute does not authorize
felony punishment of an offender with three separate violations which
will result in convictions of DUI. By arguing the three "separate
violations ... which resulted in convictions" of DUI "need only be
proven at the time of conviction on the charged offense," the Attorney
General equates "sufficient cause" of a pending DUI complaint with
"sufficient cause" of a DUI that resulted in conviction. That is
entirely too reminiscent of the Queen's retort to the King in Alice's
Adventures in Wonderland:

" 'Let the jury consider their verdict,' the King said, for about the
twentieth time that day.

" 'No, no!' said the Queen. 'Sentence first-verdict afterwards.' "
(Carroll, Alice's Adventures in Wonderland (1865) ch. XII, Alice's
Evidence.)

Legislative enactment of a felony convictions exception to the
requirement of pleading and proof at the preliminary hearing

At the end of the Roaring Twenties, the Legislature enacted a
statutory exception to the requirement of pleading and proof at the
preliminary hearing so as to allow amendment of a pending information
that fails to charge all of an accused's felony convictions. (Pen.
Code, § 969a; fn. 7 Stats. 1927, ch. 631, § 1, p. 1064. fn. 8 ) The
Legislature has not enacted an analogous statute for misdemeanor
convictions. [92 Cal.App.4th 181]

Despite the absence of an analogous statute, the Attorney General
argues public policy considerations require that the magistrate have
the authority to hold an accused to answer even if the three "separate
violations ... which resulted in convictions" of DUI do not yet exist.
The Attorney General argues the absence of that authority would lead
to the absurdity of "reward[ing] a defendant who was able to
accumulate DUI violations faster than our courts were able to process
the cases."

As if to intimate we might carve out a misdemeanor convictions
exception to the requirement of pleading and proof at the preliminary
hearing, the Attorney General argues footnote 9 in Mendella "carved
out an exception for prior felony convictions" from the "broad rule"
that enhancement allegations are subject to a Penal Code section 995
motion ( Mendella , supra , 33 Cal.3d at pp. 758-763): "The People are
particularly concerned that they will be required to charge and prove
prior convictions at the preliminary hearing stage. A specific
statutory provision, however, permits amendment of the information and
rearraignment of the defendant 'Whenever it shall be discovered that a
pending indictment or information does not charge all prior felonies
of which the defendant has been convicted ....' (Pen. Code, § 969a
....) Nothing in this opinion is intended to question this statutorily
authorized procedure." ( Mendella , supra , 33 Cal.3d at p. 764, fn.
9, italics omitted, boldface added.)

Quite to the contrary, footnote 9 in Mendella simply took note of the
role Penal Code section 969a has played since 1927 in the
constitutional and statutory framework for charging a felony by
information. The Supreme Court carved out no exception there.

The Attorney General argues People v. Shaw (1986) 182 Cal.App.3d 682
[227 Cal.Rptr. 378] differentiated between enhancements like GBI that
are transactionally related to the charged offense and enhancements
like convictions that are not. In reliance on Penal Code section 969a
and on footnote 9 in Mendella , Shaw held " Mendella does not mandate
proof of a prior felony conviction at the preliminary hearing as a
precondition to its later charge and proof at trial." ( People v. Shaw
, supra , at pp. 685-686; Mendella , supra , 33 Cal.3d at p. 764, fn.
9.) Shaw 's reliance on Penal Code section 969a, which applies only to
felony convictions, makes the case inapposite to the question on
appeal.

The Attorney General argues Miranda v. Superior Court (1995) 38
Cal.App.4th 902 [45 Cal.Rptr.2d 498] shows "not all prior conviction
allegations must be pled and proven at the preliminary hearing." The
issue in [92 Cal.App.4th 182] Miranda was whether the prosecutor must
plead and prove strike priors (which, of course, are felony
convictions) at the preliminary hearing. ( Id. at pp. 904-905.) The
opinion held in the negative, finding no persuasive reason why Penal
Code section 969a should not apply to a three strikes case. ( Miranda
v. Superior Court , supra , at p. 909.) Miranda 's reliance on Penal
Code section 969a, like Shaw 's, makes the case inapposite to the
question on appeal.

Absence of a misdemeanor convictions exception to the requirement of
pleading and proof at the preliminary hearing

The Attorney General admits Penal Code section 969a creates an
exception only for felony convictions but nonetheless argues "strict
adherence" to that statute "would yield absurd results," and section
23550 "should not turn on such fortuitous circumstances as the
classification of pending cases as felonies or misdemeanors." Nowhere
in section 23550 do we find a legislative intent even vaguely
validating that argument. [4] "[I]t should not be presumed that the
legislative body intends to overthrow long-established principles of
law unless such intention is made clearly to appear either by express
declaration or by necessary implication." ( People v. Davenport (1985)
41 Cal.3d 247 , 266 [221 Cal.Rptr. 794, 710 P.2d 861], superseded by
statute on another ground as stated in People v. Crittenden (1994) 9
Cal.4th 83 , 140 and fn. 14 [36 Cal.Rptr.2d 474, 885 P.2d 887].)

[1d] The statutory language that creates another enhancement is
corroborative. As section 23550 authorizes felony punishment for a
person who is "convicted" of a new violation of section 23152 and who
has three "separate violations ... which resulted in convictions" of
DUI, so Penal Code section 12022.7 authorizes an additional three-year
sentence for a person who is "convicted" of a new felony and who
inflicts GBI. fn. 9 The Attorney General argues the opening words of
section 23550-"If any person is convicted of a violation of Section
23152"-show "the time at which to inquire about any other convictions
is the point at which the defendant is convicted, and not earlier,"
but the analogous argument that the time at which to inquire about GBI
is "the point at which the defendant is convicted, and not earlier,"
would lead to absurdities like separate pleading and proof of that
enhancement and a separate trial on that enhancement. (Cf. Mendella ,
supra , 33 Cal.3d at pp. 758-763.) [92 Cal.App.4th 183]

[5] We respect the legislative intent that if similar statutes have
similar language the meaning of that language is the same. ( People v.
Wells (1996) 12 Cal.4th 979 , 985 [50 Cal.Rptr.2d 699, 911 P.2d
1374].) "We must select the construction that comports most closely
with the apparent intent of the Legislature, with a view to promoting
rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences." ( People v.
Jenkins (1995) 10 Cal.4th 234 , 246 [40 Cal.Rptr.2d 903, 893 P.2d
1224].)

[1e] That the Legislature has not enacted an analogous statute for
misdemeanor convictions in the three-fourths of a century since the
enactment of Penal Code section 969a could stem from the intrinsic
conceptual intricacy of that task. The Attorney General argues that
"the time at which to inquire about any other convictions is the point
at which the defendant is convicted, and not earlier," but "[d]ue
process of law requires that an accused be advised of the charges
against him in order that he may have a reasonable opportunity to
prepare and present his defense and not be taken by surprise by
evidence offered at his trial." ( In re Hess (1955) 45 Cal.2d 171 ,
175 [288 P.2d 5]; see In re Oliver (1948) 333 U.S. 257, 273 [68 S.Ct.
499, 507-508, 92 L.Ed. 682]; 4 Witkin & Epstein, Cal. Criminal Law,
supra , Pretrial Proceedings, § 177, p. 382.) To comport with due
process, the Attorney General's argument implies that after a finding
of guilt of a fourth DUI, a separate trial is necessary on the three
"separate violations ... which resulted in convictions" of DUI.

Yet do the opening words of section 23550-"If any person is convicted
of a violation of Section 23152"-manifest a legislative intent to
create a hybrid offense for which an accused could be guilty of a
fourth DUI at a misdemeanor trial but be lawfully subject to a felony
sentence if a trier of fact at a separate trial were later to find
true three "separate violations ... which resulted in convictions" of
DUI? A sea change like that in the criminal law could hardly make its
way through the Legislature without copious comment from legislative
committees, the Legislative Counsel, the Legislative Analyst, and
criminal justice professionals. The Attorney General cites none.

Or do the opening words of the statute manifest a legislative intent
to take an accused to trial on a felony charge without pleading and
proof of the three "separate violations ... which resulted in
convictions" of DUI without which, of course, there simply is no
felony? The Attorney General so intimates by stating "[t]he issue on
appeal is whether driving under the influence ... can be charged as a
felony when the third violation is still pending at the time the
fourth is committed." Yet on the concomitant due process issue-whether
the criminal justice system can subject a person to [92 Cal.App.4th
184] the rigors of a felony trial before affording any opportunity to
inquire whether the conditions precedent to felony prosecution and
punishment even exist-the Attorney General is silent. We do not infer
from the opening words of the statute any legislative intent to so
transform the criminal justice system.

In passing, Miranda intimated that statutes like former section 23175
and petty theft with a prior require pleading and proof at the
preliminary hearing of misdemeanor convictions. ( Miranda v. Superior
Court , supra , 38 Cal.App.4th at pp. 907-908; Pen. Code, § 666.) In
another case, the Court of Appeal noted, with the parties in
agreement, that "as a matter of procedural necessity the People must
adduce evidence at the preliminary hearing of prior convictions that
serve to elevate a charged offense from a misdemeanor to a felony." (
Thompson v. Superior Court (2001) 91 Cal.App.4th 144 , 149-150 [110
Cal.Rptr.2d 89].) "Although prior convictions alleged pursuant to such
statutes are neither elements of the charged offenses [citations], nor
directly or transactionally related to the charged offense, proof of
the prior conviction is required so that the parties and the court may
know whether to treat the charged offense as a misdemeanor or a
felony." ( Id. at p. 150.) We agree, but we are aware of no case that
squarely so holds. Nor do the parties cite us to one.

Section 23550 does not, of course, expressly require pleading and
proof at the preliminary hearing of three "separate violations ...
which resulted in convictions" of DUI. Nonetheless, "a pleading and
proof requirement should be implied as a matter of statutory
interpretation and must be implied as a matter of due process." (
People v. Hernandez (1988) 46 Cal.3d 194 , 197 [249 Cal.Rptr. 850, 757
P.2d 1013], italics added, superseded by statute on another point as
noted in People v. Rayford (1994) 9 Cal.4th 1 , 8-9 [36 Cal.Rptr.2d
317, 884 P.2d 1369], and disapproved on another ground in People v.
King (1993) 5 Cal.4th 59 , 78, fn. 5 [19 Cal.Rptr.2d 233, 851 P.2d
27]; accord, People v. Jackson (1985) 37 Cal.3d 826 , 835, fn. 12 [210
Cal.Rptr. 623, 694 P.2d 736], overruled on another ground in People v.
Guerrero (1988) 44 Cal.3d 343 , 347-349 [243 Cal.Rptr. 688, 748 P.2d
1150], as stated in People v. Burton (1989) 48 Cal.3d 843 , 863 [258
Cal.Rptr. 184, 771 P.2d 1270]; 3 Witkin & Epstein, Cal. Criminal Law,
supra , Punishment, § 282, pp. 372-373; see generally Jones v.
Superior Court , supra , 4 Cal.3d at p. 664; Cal. Const., art. I, § 14
(former § 8).)

We are sympathetic with the Attorney General's concern that "a
defendant should not benefit by committing DUI violations faster than
his convictions can be processed by the courts." The Legislature has
responded to that concern by enacting section 23550 to permit felony
punishment of a fourth [92 Cal.App.4th 185] DUI "regardless of the
order in which the offenses were committed and the convictions
obtained." ( People v. Snook , supra , 16 Cal.4th at p. 1213.) If an
accused with fewer than three "separate violations ... which resulted
in convictions" of DUI attains that number after the filing of a
misdemeanor DUI complaint, amendment of the complaint to charge a
felony is permissible. (See People v. Snook , supra , at pp.
1213-1214; 2 Witkin & Epstein, Cal. Criminal Law, supra , Crimes
Against Public Peace and Welfare, § 225, pp. 770-771.) If the
Legislature were to choose to address the Attorney General's concern
in other ways, that is the branch of government with the authority to
initiate the necessary enactments, constitutional or statutory or
both. We simply hold the Legislature has not yet done so.

Disposition

The order is affirmed.

Ardaiz, P. J., and Vartabedian, J., concurred.

FN *. Judge of the Fresno Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

FN 1. All further statutory references are to the Vehicle Code
unless otherwise indicated.

FN 2. Section 23550, subdivision (a) provides in relevant part: "If
any person is convicted of a violation of Section 23152 and the
offense occurred within seven years of three ... separate violations
of ... Section 23152 ... which resulted in convictions, that person
shall be punished by imprisonment in the state prison, or in a county
jail ...."

FN 3. Penal Code section 995 provides in subdivision (a)(2)(B) that
the "information shall be set aside by the court in which the
defendant is arraigned, upon his or her motion," if "the defendant had
been committed without reasonable or probable cause." The parties
litigated the Penal Code section 995 motion by reference to section
23550's predecessor, former section 23175. We refer to the statute by
the section number in effect at the relevant time.

FN 4. The later chaptered statute prevailed over the earlier
chaptered statute, but the two amendments were substantively similar.
(Stats. 1988, ch. 599, § 1, p. 2160; Stats. 1988, ch. 1553, § 2, p.
2160; see Gov. Code, § 9605.)

FN 5. Section 23217 (added by Stats. 1984, ch. 1205, § 14, p. 4136,
and amended by Stats. 1986, ch. 1117, § 13, p. 3937) provides in
pertinent part: "The Legislature finds and declares that some repeat
offenders of the prohibition against driving under the influence of
alcohol or drugs, when they are addicted or when they have too much
alcohol in their systems, may be escaping the intent of the
Legislature to punish the offender with progressively greater severity
if the offense is repeated one or more times within a seven-year
period. This situation may occur when a conviction for a subsequent
offense occurs before a conviction is obtained on an earlier offense.
[¶] The Legislature further finds and declares that the timing of
court proceedings should not permit a person to avoid aggravated
mandatory minimum penalties for multiple separate offenses occurring
within a seven-year period. It is the intent of the Legislature to
provide that a person be subject to enhanced mandatory minimum
penalties for multiple offenses within a period of seven years,
regardless of whether the convictions are obtained in the same
sequence as the offenses had been committed."

FN 6. Penal Code section 739 provides in pertinent part: "When a
defendant has been examined and committed, ... it shall be the duty of
the district attorney ... to file ... an information against the
defendant which may charge the defendant with either the offense or
offenses named in the order of commitment or any offense or offenses
shown by the evidence taken before the magistrate to have been
committed." To avoid conflict "with the constitutional mandate which
'protects a person from prosecution in the absence of a prior
determination by either a magistrate or a grand jury that such action
is justified[,]' [citations] ... the rule has developed that an
information which charges the commission of an offense not named in
the commitment order will not be upheld unless (1) the evidence before
the magistrate shows that such offense was committed [citations], and
(2) that the offense 'arose out of the transaction which was the basis
for the commitment' on a related offense." ( Jones v. Superior Court
(1971) 4 Cal.3d 660 , 664-665 [94 Cal.Rptr. 289, 483 P.2d 1241].)

FN 7. With amendments not relevant here, Penal Code section 969a now
provides: "Whenever it shall be discovered that a pending ...
information does not charge all prior felonies of which the defendant
has been convicted either in this State or elsewhere, said ...
information may be forthwith amended to charge such prior conviction
or convictions, and if such amendment is made it shall be made upon
order of the court .... Defendant shall promptly be rearraigned on
such information ... as amended and be required to plead thereto."
(Stats. 1931, ch. 485, § 1, p. 1060; Stats. 1957, ch. 1617, § 1, p.
2963, italics added.)

FN 8. In the middle of the Great Depression, the Legislature enacted
a statute allowing amendment of a complaint that fails to charge every
felony conviction. (Pen. Code, § 9691/2; Stats. 1935, ch. 203, § 1,
pp. 862-863.) The Legislature later moved that authorization from
Penal Code section 9691/2 to Penal Code section 969.5, subdivision
(a). (Stats. 1998, ch. 235, § 1.) The statute now provides: "Whenever
it shall be discovered that a pending complaint to which a plea of
guilty has been made under Section 859a does not charge all prior
felonies of which the defendant has been convicted either in this
state or elsewhere, the complaint may be forthwith amended to charge
the prior conviction or convictions and the amendments may and shall
be made upon order of the court." (Italics added.)

FN 9. Penal Code section 12022.7 provides in pertinent part: "(a) A
person who personally inflicts great bodily injury on any person other
than an accomplice in the commission or attempted commission of a
felony shall, in addition and consecutive to the punishment prescribed
for the felony or attempted felony of which he or she has been
convicted , be punished by an additional term of three years, unless
infliction of great bodily injury is an element of the offense of
which he or she is convicted." (Italics added.)

People v. Munoz (2002) 102 Cal.App.4th 12 , 125 Cal.Rptr.2d 182

2008-05-10T15:13:00.001-07:00

Driving under the influence of alcohol or drugs, or driving while
having 0.08 percent or more of alcohol in one's blood is a [102
Cal.App.4th 14] misdemeanor. (Veh. Code, § 23152, subds. (a) & (b).)
fn. 1 However, the same offense may be charged as a felony if the
offense occurred within seven years of three or more separate driving
under the influence (DUI) violations that resulted in convictions.
(Former § 23175, subd. (a) [repealed by Stats. 1998, ch. 118, §§ 39 to
42, operative July 1, 1999], now § 23550.) In this case of first
impression, we are asked to determine whether the three separate DUI
violations and the current violation must all occur within a
seven-year period or whether the only requirement is that each of the
three separate violations occur within seven years of the current
offense, effectively allowing for felony prosecutions in cases where
some convictions occurred as many as 14 years apart. Although we are
mindful of the serious dangers posed by drunk drivers, we conclude
that it is for the Legislature to determine whether the seven-year
period the Legislature has set should be extended. Accordingly,
because the separate DUI offenses in the instant case spanned a period
of more than seven years, we reverse the judgment.

Procedural Background

On June 21, 1999, defendant Ubaldo Vazquez Munoz was charged in a
refiled criminal complaint with driving under the influence of alcohol
(§ 23152, subd. (a)), while having a blood-alcohol level of 0.08 or
more (§ 23152, subd. (b)), and without a license (§ 12500, subd. (a)).
The first two counts were charged as felonies on the ground that the
current offense, which took place on September 14, 1996, occurred
within seven years of three separate DUI violations which had resulted
in convictions. One of these separate violations occurred prior to the
current incident-on November 11, 1990. The other two occurred
subsequent to the current incident-on October 23, 1998, and September
15, 1997-but had already resulted in convictions before the criminal
complaint was filed in this case.

At the preliminary hearing, defense counsel moved for a determination
that former section 23175 should not apply to elevate the charged
offenses to felonies, based on the equal protection clauses and on the
fact that more than seven years separated the priors of 1990 and 1998.
The magistrate expressed his concern to the district attorney,
stating, "The Court's concern at this time is one of the priors
occurred November 11th, 1990 and another one occurred October 23rd,
1998. The time difference which would exceed the seven year period in
which the statute refers to in regards to priors and/or separate
offenses." The district attorney answered, "What the reference point
should be for the seven year period, and our position is that that
reference point is the 1996 offense, the offense that is being
addressed in the complaint. And that that seven year period goes from
the 1996 offense, you could look after [102 Cal.App.4th 15] the 1996
offense as well as before the 1996 offense." The court then asked, "If
we go both ways, both before and after seven years, that would be a
total of 14 years possibly?" The district attorney responded, "Yes.
[¶] ... [¶] As long as each of those offenses is within seven years of
the charged offense."

After questioning defense counsel, the court asked the district
attorney if defendant would have been prosecuted only for misdemeanors
if the offenses had been tried in the order they were committed. The
district attorney acknowledged, "That's correct," but pointed out that
defendant was responsible for the cases not being tried in order, as
he had failed to appear. The court then stated, "I agree with you that
a criminal defendant should not escape criminal responsibility for his
failure to appear. In our case we have two things going on. The
defendant did fail to appear and also the District Attorney failed to
serve the warrant and/or prosecute the defendant. So there's two
wrongs there.... [¶] ... [¶] But my question to you is, and I agree
with you, he should face up to his criminal responsibility for what he
has done, but should it now be elevated to a felony because the
District Attorney did not prosecute him?" The District Attorney
replied, "Whether it's fair or not, I'm not going to argue that. But I
believe the statute on its face requires that."

The court then explained its concern, "As a judicial officer looking
at this argument, I can't make my ruling based on a narrow
interpretation or just looking at the statute. I must look at all the
law including equal protection and due process. I'm concerned that
another defendant in his same position would have been, or if this
defendant had been properly prosecuted and served then he'd be
criminally responsible for misdemeanors. And by prosecuting him in
this manner he's suddenly elevated to a felony charge. Under the equal
protection due process of both California and the United States
Constitution, should such a result occur because the District Attorney
has failed to prosecute a defendant? [¶] ... [¶] ... However, even by
mistake or happenstance or negligence or an oversight, should he be
punished because of the oversight of the District Attorney from a
misdemeanor to a felony?"

The district attorney explained that he was "not looking at it as he's
being punished because of his failure to appear or because of the
oversight. He's being punished because he has three D.U.I. offenses
within seven years." He conceded once again, however, that if
defendant had been prosecuted in order, he would have been liable only
for misdemeanor driving under the influence.

After taking the matter under submission, the magistrate dismissed
counts one and two and instead held defendant to answer to misdemeanor
violations [102 Cal.App.4th 16] of sections 23152, subdivisions (a)
and (b) based on the magistrate's determination that "the prior
convictions relied on by the People did not occur within a seven year
period of time as required by the statute."

In the superior court, the People filed a "motion to compel magistrate
to reinstate the complaint pursuant to PC 871.5," which the court
granted. (Full capitalization omitted.) Subsequently, the court set
aside the magistrate's dismissal of counts one and two and reinstated
the felony charges.

Defendant waived his right to a jury trial on the three prior
convictions, which the court found to be true. Defendant then pleaded
no contest to counts 2 and 3 and admitted that he had a blood-alcohol
level of .20 percent or more at the time of the offense. The People
dismissed count 1. Defendant was admitted to probation for five years
on various conditions, including that he serve 10 months in county
jail. He timely appealed.

Discussion

[1] On appeal, defendant renews his contentions that since he did not
have three separate convictions for violating section 23152 within a
seven-year period, the evidence is insufficient to elevate the offense
to a felony under former section 23175. He also renews his claim that
due process and equal protection require that former section 23175
apply only when a defendant's separate offenses occur within the
seven-year period described in section 23217.

We begin with a brief history of the legislation that allows
recidivist drunk drivers to be treated as felons. In 1983, when former
section 23175 was first enacted, the section allowed for enhanced
penalties for driving under the influence if the offender had three or
more prior offenses for driving under the influence within five years
of the current offense. Due to the use of the word "prior," the
statute sometimes resulted in uneven application where a defendant had
his cases resolved out of order. An individual who had his fourth
driving under the influence conviction resolved before his third could
not have either offense elevated to a felony. When the fourth was
resolved, there were only two prior offenses-the first and second.
When the third was resolved, again there were only two prior offenses
as the fourth offense was subsequent, not prior, to the others.

As a result of this unequal treatment, the Legislature in 1984 amended
former section 23175 to provide that individuals who committed four or
[102 Cal.App.4th 17] more "separate violations" of DUI laws within a
five-year period fn. 2 of the current offense would be subject to
felony treatment. At the same time, the Legislature amended several
other DUI recidivist statutes, and it added section 23217, which set
forth the legislative intent in enacting the changes.

Section 23217 provides: "The Legislature finds and declares that some
repeat offenders of the prohibition against driving under the
influence of alcohol or drugs, when they are addicted or when they
have too much alcohol in their systems, may be escaping the intent of
the Legislature to punish the offender with progressively greater
severity if the offense is repeated one or more times within a
seven-year period . This situation may occur when a conviction for a
subsequent offense occurs before a conviction is obtained on an
earlier offense.

"The Legislature further finds and declares that the timing of court
proceedings should not permit a person to avoid aggravated mandatory
minimum penalties for multiple separate offenses occurring within a
seven-year period . It is the intent of the Legislature to provide
that a person be subject to enhanced mandatory minimum penalties for
multiple offenses within a period of seven years , regardless of
whether the convictions are obtained in the same sequence as the
offenses had been committed.

"Nothing in this section requires consideration of judgment of
conviction in a separate proceeding which is entered after the
judgment in the present proceeding, except as it relates to violation
of probation.

"Nothing in this section or the amendments to Section 23540, 23546,
23550, 23560, 23566, 23622, or 23640 made by Chapter 1205 of the
Statutes of 1984 affects the penalty for a violation of Section 23152
or 23153 occurring prior to January 1, 1985." (Italics added.)

In section 23217, the Legislature made clear its intent that the four
separate offenses must occur within a seven-year period .
Nevertheless, in a somewhat ambiguous application of that legislative
intent, former section 23175 provides: "If any person is convicted of
a violation of Section 23152 and the offense occurred within seven
years of three or more separate violations of [any of three enumerated
DUI offenses], or any combination thereof, which resulted in
convictions, that person shall be punished by imprisonment in the
state prison, or in the county jail for not less than 180 days nor
more than one year, and by a fine of not less than three hundred
ninety dollars ($390) nor more than one thousand dollars ($1,000)."
(See Stats. 1991, ch. 1091, § 160, p. 5171.) [102 Cal.App.4th 18]

The People contend that section 23152 allows the current offense to be
charged as a felony so long as there are three or more convictions
that occurred within seven years of the current offense, allowing for
the possibility of felony prosecutions in cases where two of the
offenses occurred 14 years apart. While we agree that the language of
the statute, read in isolation, is amenable to that interpretation,
given the clear legislative intent set forth in section 23217, we do
not believe that that was what the Legislature had in mind.

Both the People and the defendant rely on People v. Snook (1997) 16
Cal.4th 1210 [69 Cal.Rptr.2d 615, 947 P.2d 808] ( Snook ). In Snook ,
the defendant was arrested and charged with misdemeanor drunk driving
in April 1992. He made a court appearance the next month, but no
further proceedings were held for 22 months. In the meantime,
defendant was arrested and convicted for driving under the influence
in June 1992, September 1993 and October 1993. At that point, the
original misdemeanor complaint on the April 1992 violation was amended
to charge a felony violation under former section 23175. The defendant
was convicted in a court trial. The Court of Appeal reversed the trial
court, concluding that former section 23175 permitted a felony
prosecution only for subsequently committed offenses.

The Supreme Court reversed the judgment of the Court of Appeal and
affirmed the trial court judgment in its entirety. The court explained
that "the Legislature intended to subject repeat DUI offenders to
enhanced penalties regardless of the order in which the offenses were
committed and the convictions obtained, and the imposition of such a
penalty does not violate any constitutional prohibition against ex
post facto laws." ( Snook, supra, 16 Cal.4th at p. 1213.)

The court then extensively discussed the 1984 legislative changes in
the statutory scheme for recidivist drunk drivers. By substituting the
words "separate violations" for the words "prior offenses" in former
section 23175, the court explained, the Legislature sought to ensure
that a person be subject to enhanced mandatory minimum penalties for
multiple offenses within a period of seven years, regardless of
whether the convictions were obtained in the same sequence as the
offenses had been committed. These amendments sought to close the
loophole that allowed some repeat offenders to avoid enhanced
punishment by "pleading guilty to the second, third and fourth
offenses before going to trial on the first offense." ( Snook, supra,
16 Cal.4th at p. 1220.)

In Snook , all three of the "separate violations" occurred within a
seven-year period. In fact, only 18 months separated the first from
the fourth [102 Cal.App.4th 19] incident. As a consequence, the court
was not presented with the question presented here: whether the
"separate offenses" convictions that were each within seven years of
the present offense, could themselves be more than seven years apart.

The People contend that former section 23175 is not ambiguous, and
cite the following language from Snook dealing with statutory
construction: "When looking to the words of the statute, a court gives
the language its usual, ordinary meaning. [Citations.] If there is no
ambiguity in the language, we presume the Legislature meant what it
said and the plain meaning of the statute governs. [Citations.]" (
Snook, supra, 16 Cal.4th at p. 1215.)

However, the court also acknowledged that a clear statement of intent
may serve to confirm a statute's plain meaning. ( Snook, supra, 16
Cal.4th at p. 1219.) And, in fact, the court did look to the entire
statutory scheme, including section 23217, in ascertaining the meaning
of former section 23175. The court found that former section 23175
"does not require the three or more triggering offenses to precede
commission of the DUI offense underlying the present charge. By its
terms, the statute requires only that the three or more 'separate
violations' which resulted in convictions occurred within seven years
of the charged offense. A 'separate' violation is a violation that is
'unconnected; not united or associated; distinct.' (Webster's New
Internat. Dict. (2d ed. 1959) p. 2281.) [¶] Moreover, when read in the
context of the entire DUI penalty enhancement scheme to which section
23175 belongs, it is clear the term 'separate violations' means ...."
( Snook, supra, 16 Cal.4th at p. 1216.)

The court then observed that the term "separate violation" or
"separate violations" had been inserted by the Legislature in all the
statutes that increased the penalties for repeat DUI offenders, and it
cited and summarized the changes in former sections 23165, 23170,
23185 and 23190. The court said, "If the statutory language is clear
and unambiguous, the provision should be applied according to its
terms without further judicial construction so long as the literal
meaning is in accord with the purpose of the statute;" it also said
that "in enacting and amending the language of [former] section 23175
to provide an enhanced penalty on conviction of a DUI offense
occurring within seven years of three or more separate DUI violations,
the Legislature 'meant what it said.' " ( Snook, supra, 16 Cal.4th at
pp. 1216-1217.) The court thus suggested that it need not examine the
Legislature's intent and the entire statutory scheme in this case, but
it went on to do precisely that: The court first noted, "In 1984,
shortly after the enactment of former section 23175, the Legislature
amended that provision and four other DUI penalty enhancement statutes
by substituting the words 'separate violations' for 'prior offenses.'
(Stats. 1984, ch. 1205, §§ 1-5, pp. 4129-4130.) [102 Cal.App.4th 20]
[¶] The legislation amending former section 23175 in 1984 also added
section 23217 to the Vehicle Code to explain why 'separate violations'
replaced 'prior offenses' in former section 23175 and the other
enhanced penalty provisions amended in the same act. (Stats. 1984, ch.
1205, § 14, p. 4136.)" ( Snook, supra, 16 Cal.4th at p. 1217.) The
court then quoted the legislative intent set forth in section 23217 in
its entirety, which we have quoted above.

As earlier noted, section 23217 states the Legislature's intent to
punish repeat DUI offenders "with progressively greater severity if
the offense is repeated one or more times within a seven-year period
.... [¶] The Legislature further finds and declares that the timing of
court proceedings should not permit a person to avoid aggravated
mandatory minimum penalties for multiple separate offenses occurring
within a seven-year period . It is the intent of the Legislature to
provide that a person be subject to enhanced mandatory minimum
penalties for multiple offenses within a period of seven years ,
regardless of whether the convictions are obtained in the same
sequence as the offenses had been committed." (Italics added.)

We conclude that former section 23175 (now 23550) must be read in
conjunction with section 23217. Accordingly, for a fourth DUI offense
to be charged as a felony, the offense must be committed within seven
years of three or more separate DUI violations resulting in
convictions, and all four must occur within a period of seven years.

California Highway Patrol v. Superior Court (Allende) (2006) 135 Cal.App.4th 488 , -- Cal.Rptr.3d

2008-05-10T15:12:00.001-07:00

[6] Although an arrest is an event distinct from the negligent driving
that prompts it, an arrest following a traffic stop by itself does not
qualify as an "incident." If the Legislature had intended any police
intervention involving a person driving under the influence to qualify
for recovery of response costs, it could have provided simply that a
person is liable for costs incurred by a public agency responding to
that person's operation of a vehicle while intoxicated. There would
have been no need to add the requirement of an incident. Moreover,
regardless of how one defines "incident," the term is followed by
language limiting the incidents for which costs may be recovered to
those "resulting in an appropriate emergency response." (§ 53150.) It
would be a highly strained interpretation to consider stopping a
motorist for driving under the influence, without more, as an
"emergency" within the meaning of section 53150. Indeed, the Vehicle
Code defines "emergency response situation" in one context to mean
"instances in which necessary measures are needed in order to prevent
injury or death to persons or to prevent, confine, or mitigate damage
or destruction to property." (Veh. Code, § 23116, subd. (e).) While
the purpose underlying the prohibition of driving under the influence
and the enforcement of that prohibition is of course public safety,
that general objective hardly transforms every arrest for DUI into an
emergency.

County of Santa Clara contends that interpreting "incident" as
"accident" would lead to absurd results, arguing that a person who
scuffs a lamp post while parking would cause an "incident" but an
intoxicated driver who gives rise to an emergency response by stalling
on train tracks would not. But neither the parties nor the trial court
have taken the position that an "incident" must involve an accident.
The trial court acknowledged that an event "such as abandoning a
vehicle in a roadway and impeding or blocking the normal and
reasonable movement of traffic" may constitute an incident. The CHP
has chosen as a matter of policy to seek cost recovery only for
traffic accidents, but its internal policy documents acknowledge that
the statute allows reimbursement for costs associated with any DUI
incident, not simply accidents. Moreover, we are not persuaded that
absurd results will follow unless "incident" is defined to include
simple traffic stops resulting in [135 Cal.App.4th 500] DUI arrests.
As the trial court recognized, an event not involving an accident may
necessitate an emergency response. Situations such as the abandonment
of a vehicle on railroad tracks, unlike a traffic stop or an arrest at
a DUI checkpoint, may involve an emergency response to prevent harm to
persons or property and require more of a peace officer's time and
attention than the typical enforcement of the DUI laws.

[7] To the extent there is ambiguity in the meaning of "incident," we
turn to legislative history for guidance. ( Day v. City of Fontana,
supra, 25 Cal.4th at p. 272.) The cost recovery statutes, codified in
sections 53150 through 53158, fn. 7 were added to the Government Code
in 1985 by Senate Bill No. 735. (Stats. 1985, ch. 337, § 1.) As
introduced, Senate Bill No. 735 required the occurrence of a
drunk-driving accident before a public agency could recover emergency
response costs. The initial proposal would have limited cost recovery
to situations involving an "incident resulting in injury to or death
to any person, including [the driver], or damage to any property . . .
." (Sen. Bill No. 735 (1985-1986 Reg. Sess.) as introduced Mar. 4,
1985.) The legislation was patterned after other laws allowing
recovery of costs incurred in responding to fires started negligently
or intentionally. (See Legis. Counsel's Dig., Sen. Bill No. 735
(1985-1986 Reg. Sess.) as introduced Mar. 4, 1985, p. 1.) The Senate
subsequently amended Senate Bill No. 735--to address the admissibility
in a subsequent criminal action of testimony in proceedings under the
cost recovery statute--but it retained the requirement that an
incident result in personal injury, death, or property damage in order
to permit cost reimbursement. (Sen. Bill No. 735 (1985-1986 Reg.
Sess.) as amended Apr. 18, 1985.)

The Assembly Judiciary Committee next reviewed Senate Bill No. 735 and
questioned whether the accident-based limitation was too narrow: "What
is the rationale for requiring injury or damage in order to trigger
liability? Would it not be more appropriate for liability to arise
whenever a public agency reasonably provides emergency services in
response to such an incident, whether or not there is damage?" (Assem.
Com. on Jud., Analysis of Sen. Bill No. 735 (1985-1986 Reg. Sess.) as
amended Apr. 18, 1985, p. 2.) In response to this concern, the
Assembly amended the legislation so that reimbursement could be sought
for emergency response costs regardless of whether an incident
resulted in property damage or personal injury. (Sen. Bill No. 735
(1985-1986 Reg. Sess.) as amended June 12, 1985.) The Legislature
ultimately passed this version of the bill. Relying in part on this
legislative history, County of Santa Clara argues that the Legislature
intended to expand the bill's coverage to include arrests. We [135
Cal.App.4th 501] disagree. While the scope of the statute was expanded
to cover more than accidents, there is nothing to indicate the
Legislature intended to include arrests following ordinary traffic
stops. We have found no support in the legislative history for the
proposition that an ordinary traffic stop constitutes an emergency
response.

People v. Acevedo (2001) 93 Cal.App.4th 757 , 113 Cal.Rptr.2d 437

2008-05-07T20:48:00.001-07:00

Relevancy of Urine-alcohol Partition Ratio

[1a] Beginning in 1913, California prohibited an intoxicated person
from driving a motor vehicle upon any public highway. (Stats. 1913,
ch. 326, § 17, p. 646.) Recognizing that this definition was difficult
to apply, in 1969 the Legislature created a presumption that a driver
is under the influence if the driver has a .10 percent or more by
weight of alcohol in his or her blood. ( Burg v. Municipal Court
(1983) 35 Cal.3d 257 , 262-263.) Although the 1969 law aided the
prosecution, it still proved difficult to apply because the question
was defined in terms of the defendant's subjective behavior and
condition; "a defendant could escape conviction merely by raising a
doubt as to his intoxication." ( Id. at p. 263.) "In an [93
Cal.App.4th 762] attempt to address the continuing threat to public
safety posed by drinking drivers, in 1981 the Legislature retained the
'driving under the influence' statute, renumbered it [Vehicle Code]
section 23152, subdivision (a), and added ...section 23152,
subdivision (b) which provide[d]: 'It is unlawful for any person who
has 0.10 percent or more, by weight, of alcohol in his or her blood to
drive a vehicle. [¶] For purposes of this subdivision, percent, by
weight, of alcohol shall be based upon grams of alcohol per 100
milliliters of blood.'" ( Id. at p. 264.)

The Burg "court held that section 23152, subdivision (b), established
a new and separate offense. More significantly, the court held that
under the subdivision (b) scheme, it was no longer necessary to prove
that the defendant was in fact under the influence; it was enough to
prove that the defendant's blood-alcohol level was 0.10 percent or
more." ( People v. Ireland (1995) 33 Cal.App.4th 680 , 689.) In 1989,
the blood-alcohol level for a violation of Vehicle Code section 23152,
subdivision (b) was lowered from .10 to .08. (Stats. 1989, ch. 1114, §
27, p. 4040.)

"However, because the proscribed driving was still based on the amount
of alcohol present in the person's blood, it was necessary, in the
case of defendants who elected urine or breath tests, to convert the
alcohol readings in those tests to their corresponding blood-alcohol
readings." ( People v. Ireland, supra, 33 Cal.App.4th at p. 689.) The
guidelines used to convert the readings are set forth in title 17,
California Code of Regulations, section 1220.4 (the partition or
conversion ratio).

Because breath and urine tests had to be converted to blood-alcohol
readings, defendants mounted attacks on the reliability of the
partition ratio. In People v. Lepine (1989) 215 Cal.App.3d 91 , Lepine
was charged with driving with a 0.10 percent blood-alcohol content.
She submitted to a breath test. Her breath sample was converted to a
blood-alcohol percentage of 0.13 based on the conversion formula set
forth in title 17 of the California Code of Regulations, section
1220.4, subdivision (f). Before trial she stated her intention of
challenging the ratio contained in the regulations that was used to
convert her breath-alcohol percentage to its blood-alcohol equivalent.
She sought to do so by cross-examining the prosecution expert and by
presenting the testimony of a forensic scientist. The People objected
and "argued that to allow a general attack, unrelated to a defendant's
actual ratio at the time the breath sample was taken, was irrelevant,
speculative and potentially confusing." ( People v. Lepine, supra, 215
Cal.App.3d at p. 94.) The defense offered a transcript of testimony
from an expert in another case, which described variables in the
partition ratios in the general population. The municipal court
sustained the People's objection [93 Cal.App.4th 763] and refused to
allow introduction of defense evidence concerning general variability
in the partition ratio and refused to allow cross-examination of the
People's expert on the subject. ( Id. at pp. 94-95.)

The appellate court fn. 3 rejected the People's position that general
evidence of partition ratio variability is speculative, would confuse
the jury, and would prejudice the People. The appellate court stated:
"What the People seek, however, is not escape from an unfair
disadvantage, but the perpetuation of an unfair advantage. While we
will not, and cannot, arbitrate scientific disputes, it seems clear
from the evidence submitted in this case and from a host of opinions
in this and other states, that the partition ratio may vary from time
to time and from individual to individual. This being the case it is
appropriate a jury be allowed to consider that fact. We trust in the
general rules of evidence, the preparation of counsel and the good
judgment of trial judges to insure that this question of partition
ratio variability is presented to jurors in a proper, complete and
understandable form." ( People v. Lepine, supra, 215 Cal.App.3d at p.
100.)

The court reversed the judgment, concluding that "the trial court
erred in excluding the defense from cross-examining the People's
expert concerning partition ratio variability and from presenting
evidence concerning such variability." ( People v. Lepine, supra, 215
Cal.App.3d at p. 101.)

"The need for the prosecution to prove that breath-test readings met
the .08 percent requirement when converted to blood-alcohol readings
did not promote the legislative scheme. The Assembly Committee on
Public Safety, the Senate Rules Committee, and the Senate Committee on
Judiciary all decried that the challenges to the accuracy of the
partition ratio had resulted in 'expensive and time consuming
evidentiary hearings and undermine[d] successful enforcement of
driving under the influence laws.' [Citation.]." ( People v. Ireland,
supra, 33 Cal.App.4th at pp. 689-690.) Once again, in 1990, the
Legislature changed the law and amended Vehicle Code section 23152,
subdivision (b) to read: "It is unlawful for any person who has 0.08
percent or more, by weight, of alcohol in his or her blood to drive a
vehicle. [¶] For purposes of this subdivision, percent, by weight, of
alcohol in a person's blood shall be based upon grams of alcohol per
100 milliliters of blood or grams of alcohol per 210 liters of
breath." (Stats. 1990, ch. 708, § 1.)

The California Supreme Court in People v. Bransford (1994) 8 Cal.4th
885 interpreted the 1990 version of Vehicle [93 Cal.App.4th 764] Code
section 23152, subdivision (b). The court evaluated "whether the trial
court should have allowed defendants convicted of driving with 0.08
percent or more of alcohol in their blood to challenge their
breath-test results by showing that their personal ratio of
breath-alcohol concentration to blood-alcohol concentration (the
'partition ratio') differed from the standard partition ratio that
breath-testing machines use to convert breath-alcohol readings into
blood-alcohol equivalents." ( People v. Bransford, supra, 8 Cal.4th at
pp. 887-888.) The defendants argued that the amendment to Vehicle Code
section 23152, subdivision (b) made no substantive change to the prior
statute but merely codified the existing administration definition of
the standard partition ratio contained in the California Code of
Regulations. The Supreme Court disagreed and found that, as amended,
"the Legislature intended the statute to criminalize the act of
driving either with the specified blood-alcohol level or with the
specified breath-alcohol level. The second paragraph provided two
distinct definitions." (8 Cal.4th at p. 890.)

Because the statute defined the offense on the basis of grams of
alcohol per 210 liters of breath, the Supreme Court held the trial
court correctly ruled that the defendant's proffered evidence of the
partition ratio was irrelevant and therefore inadmissible. ( People v.
Bransford, supra, 8 Cal.4th at p. 893.)

Defendant here took a urine test. The prosecution's expert determined
defendant's blood-alcohol content by using the partition ratio for
urine in title 17, California Code of Regulations, section 1220.4,
subdivision (e). It provides: "A urine alcohol concentration shall be
converted to an equivalent blood-alcohol concentration by a
calculation based on the relationship: the amount of alcohol in 1.3
milliliters of blood is equivalent to the amount of alcohol in 1
milliliter of urine." Defendant attempted to cross-examine the expert
on the variability of individual partition ratios used to convert
urine-alcohol concentrations to blood-alcohol concentrations. The
trial court repeatedly precluded all questioning in this area.

Defendant contends that the failure of the trial judge to allow
defense counsel to question the prosecution expert regarding the
reliability of the urine test constituted a violation of defendant's
constitutional right of cross-examination and denied him the right to
a fair trial. Defendant relies on People v. Lepine, supra, 215
Cal.App.3d 91 to support his position. Defendant claims that the error
was prejudicial and his conviction for driving under the influence
(Veh. Code, § 23152, subd. (a)) and his conviction for driving with a
0.08 blood-alcohol level (Veh. Code, § 23152, subd. (b)) should be
reversed.

Respondent claims that the trial court properly limited
cross-examination regarding the partition ratio used to convert a
urine-alcohol measurement [93 Cal.App.4th 765] into its blood-alcohol
equivalent. Respondent contends that the Bransford case applies and in
light of Bransford, Lepine is no longer good law. In any event,
respondent submits that the error, if any, was harmless beyond a
reasonable doubt, "at least as to count II [Veh. Code, § 23152, subd.
(a)]."

Respondent fails to explain how the Bransford holding applies to the
situation here. Vehicle Code section 23152, subdivision (b) makes it a
crime to drive with a certain blood-alcohol level or breath-alcohol
level. The statute does not make it a crime to drive with a certain
urine-alcohol level. When the urine test is administered, the results
must be converted to a blood-alcohol level using the partition ratios
set forth in the California Code of Regulations. Bransford simply has
no application to urine partition ratios. The court in Bransford
explained why, prior to the amendment of the statute, courts allowed
defendants to challenge results of their breath tests on the basis of
variable partition ratios.

"Many variables, however, can affect the actual ratio of an
individual's breath-alcohol concentration to blood-alcohol
concentration. These variables include body temperature, atmospheric
pressure, medical conditions, sex, and the precision of the measuring
device. [Citations.] Changes in these variables may result in a
difference between an individual's actual blood-alcohol level and the
blood-alcohol level determined by applying the standard partition
ratio to the breath-test results.

"Courts therefore allowed defendants charged under the predecessor
statute to attack breath-test results on the basis of this
variability. Defendants were initially allowed to demonstrate only
that their personal partition ratio differed from the standard
partition ratio. [Citations.] They would do so by simultaneously
measuring their breath-alcohol concentration and blood-alcohol
concentration over a period of time. [Citations.] Later courts also
allowed defendants to demonstrate that partition ratios differ among
individuals generally. [Citation.] Defendants would usually do so by
having an expert testify that the standard partition ratio is merely
an approximation and that different individuals have different
personal partition ratios. [Citations.]" ( People v. Bransford, supra,
8 Cal.4th at p. 889.)

The court in Bransford did not disapprove of the above line of cases;
it merely found they were no longer applicable when the defendant was
charged with a violation of Vehicle Code section 23152, subdivision
(b) and sought to challenge the partition ratios for breath tests.
Because the statute now defined the crime in terms of specific grams
of alcohol per liter of breath, partition ratios comparing volume of
blood to volume of breath no [93 Cal.App.4th 766] longer bore
relevance. Contrary to respondent's assertion, Bransford does not
apply to urine partition ratios; Lepine applies. fn. 4

[2] "The Sixth Amendment guarantees the right of an accused in a
criminal prosecution '"to be confronted with the witnesses against
him."' [Citation.] 'The right of confrontation, which is secured for
defendants in state as well as federal criminal proceedings [citation]
"means more than being allowed to confront the witness physically."
[Citation.] Indeed, "'[t]he main and essential purpose of
confrontation is to secure for the opponent the opportunity of
cross-examination .'" [Citations.]' [Citation.] '[T]he right of
confrontation and cross-examination is an essential and fundamental
requirement for the kind of fair trial which is this country's
constitutional goal. Indeed, ... to deprive an accused of the right to
cross-examine the witnesses against him is a denial of the Fourteenth
Amendment's guarantee of due process of law.' [Citation.]" ( Alvarado
v. Superior Court (2000) 23 Cal.4th 1121 , 1137.)

"It is the essence of a fair trial that reasonable latitude be given
the cross-examiner, even though he is unable to state to the court
what facts a reasonable cross-examination might develop. Prejudice
ensues from a denial of the opportunity to place the witness in his
proper setting and put the weight of his testimony and his credibility
to a test, without which the jury cannot fairly appraise them.
[Citations.] To say that prejudice can be established only by showing
that the cross-examination, if pursued, would necessarily have brought
out facts tending to discredit the testimony in chief, is to deny a
substantial right and withdraw one of the safeguards essential to a
fair trial." ( Alford v. United States (1931) 282 U.S. 687, 692.)

[1b] The trial court erred when it limited defendant's
cross-examination of the prosecution expert, Lynd, sustaining all
objections to questions relating to challenging the partition ratio
used by the expert. Respondent asserts the error, if any, was harmless
at least as to the Vehicle Code section 23152, subdivision (a) count.

We set forth in detail a close review of the record to demonstrate
that the error was prejudicial as to both Vehicle Code convictions:
driving under the [93 Cal.App.4th 767] influence (Veh. Code, § 23152,
subd. (a)) and driving with a blood-alcohol level of .08 or above
(Veh. Code, § 23152, subd (b)).

Lynd testified that he was familiar with the effect of alcohol upon a
person's ability to drive safely. He stated, "I think everybody is an
impaired driver with a blood alcohol of .10 percent or higher. Most
people are going to be impaired at a level less than that." He
supported his conclusion by describing certain studies done on a
driver's impairment at different levels of intoxication, again
emphasizing the .10 level as the level where drivers are always under
the influence, in his opinion.

Lynd then described the procedures used in the laboratory to test
alcohol in a urine sample. He then testified about how he tested
defendant's urine sample. The tests resulted in a conclusion that
defendant's blood-alcohol level at the time of the urine sample was
.10. He further testified that based solely on defendant's .10
blood-alcohol level "I could say he wouldn't be able to drive a car
safely with this blood alcohol level" and defendant would be under the
influence.

The prosecutor described several of the observations of defendant by
Officer French to the expert and asked if those were consistent with a
person being under the influence of intoxicating liquor. Lynd replied
that they were consistent. Lynd testified that if defendant had
reached his peak blood-alcohol level and was on a "downhill," his
blood-alcohol level at the time he was stopped would be in the
neighborhood of .13 or .14. This was only accurate if the assumption
that defendant had reached his peak was true. Lynd testified that if
these higher figures were in fact defendant's level at the time he was
driving "that would certainly be consistent with him being under the
influence of alcohol."

On cross-examination, Lynd testified that a formula was used to
determine the blood-alcohol level from urine. Lynd agreed there are
people who would argue that urinalysis is not the best method of
determining blood-alcohol concentration. The court sustained the
prosecution's relevance objection to questions regarding the universal
acceptance of the conversion ratio for breath to blood and the fact
that about half the states do not recognize urinalysis as a legitimate
means of obtaining the blood-alcohol concentration. An objection was
sustained to the question of whether Lynd had kept abreast of any
studies regarding the strength of the analysis he utilized in testing
the urine. The court sustained an objection from defendant's counsel
of whether Lynd was aware that law enforcement officers no longer have
to [93 Cal.App.4th 768] offer a choice of urinalysis. fn. 5 Defense
counsel then began questioning Lynd regarding the assumptions that
have to be made in order to use urinalysis to convert the results back
to blood-alcohol concentration. Lynd replied "We don't have to because
we work under some rules that are found in Title 17 of the California
Code of Regulations, and they tell me I have to divide how much
alcohol I found in the urine by 1.3. That doesn't give me any choice.
It's not a concern." Defense counsel asked, "And you have to assume
that the ratio of alcohol in the blood to that in the fluid is
relatively constant over the whole general population of California."
Again the prosecution's objection was sustained. Counsel questioned
whether different states use different models. Lynd said he was not
aware of that. The court sustained an objection as to Lynd's awareness
as to the ratio used in other states. Next the court sustained an
objection to counsel's question whether the 1.3 ratio assumes that
everyone in that particular state has the same urine-to-blood ratio.
Immediately thereafter, the court sustained an objection to counsel's
question regarding different biological makeups from person to person.

Apparently frustrated with counsel's persistence in this area, the
court interjected and the following occurred:

"THE COURT: You can challenge the individual test in this case, but
the method of testing, that's the law in the State of California,
three methods of testing. If you want to change that, go to the
legislature.

"MR. LOPEZ [defense counsel]: There are assumptions, though, that he
is making in order to make this test.

"THE COURT: The law tells him he has to make those assumptions, right?
It's in Title 17.

"Is that what it is?

"THE WITNESS: Yes, Your Honor.

"THE COURT: Not here to litigate whether those rules are good or bad.

"MR. LOPEZ: California uses the .13 (sic) ratio.

"MS. VAUGHN [district attorney]: Same objection. [93 Cal.App.4th 769]

"THE COURT: Sustained.

"MR. LOPEZ: Q. So when you first test -- you first get a result of
what the urine alcoholic concentration is, right?

"A. Actually, no. The way it works is, when we prepare the samples for
the gas chromatograph, I tell the instrument whether it's a blood or a
urine sample. If I tell it it's a urine, it automatically divides by
this 1.3 ratio. I don't have to do anything extra.

"Q. So you don't know what it was at, urine alcoholic concentration,
you don't know what that level was?

"A. Oh, sure.

"Q. What was it?

"A. It was 1.3 times the results the instruments gave me.

"Q. Do people vary in the level -- scratch that, Your Honor. "Is it
true that the reason 1.3 was used, 1.3 to one ratio used --

"MS. VAUGHN: I am going to object to any further questions about the ratio.

"THE COURT: Sustained.

"MR. LOPEZ: Q. Does everybody have that ratio?

"MS. VAUGHN: Objection.

"THE COURT: Sustained."

Defendant was allowed to ask Lynd if someone's blood-alcohol content
would be different if his or her ratio was 1.5 instead of 1.3. Lynd
said yes, the blood-alcohol content would be lower. The court
continued to sustain objections to defense counsel's questions
regarding differing ratios.

The prosecutor began her redirect of the expert by asking him if the
testing machine in the laboratory was set to California legal
standards. Lynd replied it was. [93 Cal.App.4th 770] The district
attorney continued: "That's accepted ... as reliable scientific
evidence throughout the State of California; isn't that true?" Lynd
replied it was.

In closing argument to the jury, the district attorney argued that
defendant drove under the influence and drove with a .08 or above
blood-alcohol level. In making this determination, the district
attorney argued that the jury should consider that defendant's urine
tested .10, "tested according to California laws, California
standards."

During defense counsel's closing argument, he stated to the jury that
Lynd's estimate of defendant's blood-alcohol level was wrong and he
would tell the jury why the estimate was wrong. The following
occurred:

"You have heard -- you heard Dr. Lynd testify that urinalysis is still
in serious debate in California. There are many experts who disagree
with him. Many experts --

"THE COURT: You asked those questions. I sustained the objection.

"MS. VAUGHN: This is not the law.

"MR. LOPEZ: No, I asked him --

"THE COURT: Don't argue with me. That wasn't objected to. There is a
debate. There was a debate in the community."

The district attorney in her final argument emphasized that it was
important for the jury to remember that questions are not evidence and
if a question was objected to and the objection sustained, then it is
not even on the record. Regarding the ratio questions and the validity
of Lynd's testimony the prosecutor argued:

"Additionally, all the questions regarding the urine test and supposed
ratios, all of that is not evidence because the law in California says
that the drug laboratory, the Department of Justice, is to use a
certain standard in doing their urine tests.

"In fact, the law in California says you get to choose a urine test if
that's your choice. If you choose a urine test, you can't come in here
and say, well, urine tests are bad across the board because that was
his choice. He chose that.

"And it is important to remember that the law is the urine test is
valid and the procedure with which Dr. Lynd said they use is the
California legal procedure. That's what the law says they have to do.
They do it as they are told to do it. There is no disputing that.
There is no evidence to the contrary. [93 Cal.App.4th 771] You didn't
hear anybody get up here and say that test didn't work. Was the
machine not working properly? The only evidence you have is that it
was working properly.

"They have -- and Dr. Lynd told you we have tests. We have samples in
there that we know are .0. We have controls set up to make sure that
it's working right. And they take two samples out of the urine and run
them through the machine. That's how they got these results. He told
you that. It's in the testimony. Only what he said is evidence.

"That is very important for you to remember, because counsel just sat
here and went on and on about Count III, saying there is no evidence
to support it. Well, I told you in my opening -- closing argument that
we're not here to prove he was drunk, we are not to prove he was
falling down, that he weaved all over the road. That's not what we
have to prove. There is no element there that says that. Weaved. All
we have to do is show he was under the influence of the alcohol.

"Dr. Lynd said you're impaired. What does that mean? Dr. Lynd said
there is such a thing as tolerance. There is no evidence as to what
the history of this man's drinking is. We don't know what his
tolerance is. But we know from what Dr. Lynd said, what is in
evidence, is that everybody at .10 is impaired. How much impaired? It
doesn't matter. They are impaired. They are impaired to the point that
they are not going to make the same decisions or react the same way
that a normal person who has no alcohol in their system or under that
amount would do."

Defendant was precluded from asking questions regarding partition
ratios. As stated in People v. Lepine, supra, 215 Cal.App.3d at page
100, the jury should be allowed to consider that partition ratios may
vary from time to time and from individual to individual. Not only was
the jury here precluded from hearing all evidence related to this
variability, but the court, the prosecutor, and Lynd separately
emphasized that the partition ratio used by Lynd is the ratio mandated
by the State of California, and the prosecutor went so far as to
elicit from Lynd that the ratio is "accepted ... as reliable
scientific evidence throughout the State of California." After hearing
from several sources, including the judge, that the ratios are
mandated in California, the jury was clearly led to believe that the
partition ratios were cast in stone with no variations allowed.
Defendant was not allowed to attempt to establish that the partition
ratio used by the expert might not be accurate for all individuals.
Defendant's blood-alcohol level was calculated to be .10, this is not
appreciably higher than the .08 required to prove a violation of
Vehicle Code section 23152, subdivision (b). Defendant was clearly
prejudiced as to the subdivision (b) count. [93 Cal.App.4th 772]

He was also prejudiced as to the driving under the influence count
(Veh. Code, § 23152, subd. (a)). Although Officer French provided
significant evidence that defendant was driving under the influence,
the evidence was not overwhelming, and defendant offered plausible
explanations for his failure to pass some of the sobriety tests
conducted by French. Lynd repeatedly stated that anyone driving with a
.10 or above blood-alcohol level was under the influence. The
prosecutor during her closing argument emphasized this. In addition,
the trial court, Lynd, and the prosecutor fortified the ratio used in
Lynd's .10 calculation as sacrosanct in California, thus giving it a
false aura of absolute reliability. During deliberations the jury
asked to hear the testimony of both Officer French and Lynd. The jury
may very well have used Lynd's .10 calculation and testimony that
anyone with a .10 or above blood-alcohol level is under the influence
in determining that defendant was guilty of driving under the
influence pursuant to Vehicle Code section 23152, subdivision (a). The
failure to allow cross-examination on the partition ratio prejudiced
defendant for this count also. Counts II and III of case No. 146157
must be reversed.

II.-IV. fn. *

. . . . . . . . . . . . . . . . . . . . . . .

DISPOSITION

The convictions of count II (Veh. Code, § 23152, subd. (a)) and count
III (Veh. Code, § 23152, subd (b)) in case No. 146157 are reversed.
After further proceedings are concluded on the reversed counts in case
No. 146157, the trial court must resentence defendant in accordance
with the views expressed above. In all other respects, the judgment is
affirmed.

People v. McNeal (2007) , Cal.App.4th

2008-05-07T20:41:00.001-07:00

Under the generic DUI statute, it is "unlawful for any person who is
under the influence of any alcoholic beverage . . . to drive a
vehicle." (§ 23152(a).) To prove this {Slip Opn. Page 5} charge here
(as well as the charge for per se DUI), the prosecution introduced
evidence of alcohol in defendant's breath. The relationship between
such evidence and intoxication has been explained as follows: "Alcohol
contained only in the breath does not cause intoxication. It is the
impact of alcohol on the central nervous system, particularly on the
brain, that causes the physical and psychological changes associated
with impairment. Alcohol reaches the central nervous system through
the blood. When used to establish blood alcohol levels, breath testing
devices use a mathematical constant to approximate the percentage of
alcohol in the blood based on the amount of alcohol present in a
breath sample." ( State v. Brayman (1988) 110 Wn.2d 183, 188 [751
P.2d 294] ( Brayman ); see also State v. Hanks (2001) 172 Vt. 93,
94-95 [772 A.2d 1087] ( Hanks ).) In California, this mathematical
constant is set forth in (among other places) section 23610. (See also
§ 23152(b); Cal. Code Regs., tit. 17, § 1220.4, subd. (f).)

Section 23610 provides that, in a prosecution for generic DUI, the
amount of alcohol in the person's blood, as shown by blood, breath, or
urine, shall give rise to various presumptions as to whether the
defendant was under the influence of alcohol at the time of driving.
In particular, the statute provides that a person "shall be presumed"
to be "under the influence of an alcoholic beverage" when "the amount
of alcohol in the person's blood at the time of the test as shown by
chemical analysis of that person's blood, breath, or urine" is 0.08
percent or more, by weight, of alcohol in the person's blood. (§
23610, subd. (a).) "Percent, by weight, of alcohol in the person's
blood" is defined as "grams of alcohol per 100 milliliters of blood or
grams of alcohol per 210 liters of breath." (§ 23610, subd. (b).) This
definition creates a presumptive blood-breath {Slip Opn. Page 6}
partition ratio of 1:2,100; that is, the same amount of alcohol found
in 2,100 milliliters of a person's breath would presumably be found in
a milliliter of the person's blood.

However, actual partition "ratios vary both between individuals, and
at different times in the same individual . . . . Factors influencing
an individual's blood-breath ratio include body temperature,
hematocrit level (the ratio between red blood cells and blood plasma),
and the time at which alcohol was consumed in relation to the time
breath alcohol is measured. Higher than normal body temperatures
resulting from fevers, exercise, and menstrual cycle variations in
women result in a lower blood-breath ratio than normal. If all other
factors are the same in a given individual, a breath test based on
that individual's normal blood-breath ratio, given when body
temperature is elevated, will overestimate that individual's actual
blood alcohol level." ( Brayman, supra, 751 P.2d at p. 297; see also
Bransford, supra, 8 Cal.4th at p. 889; People v. Lepine (1989) 215
Cal.App.3d 91 , 94 ( Lepine ); Hanks, supra, 772 A.2d at p. 1089.)

Because of the uncertainty of breath alcohol content as an indicator
of blood alcohol content, defendant contends he should be allowed to
introduce evidence concerning partition ratios. The People submit that
the Legislature has determined the appropriateness of calculating the
blood alcohol content based upon a breath test, and that defendant
should not be allowed to challenge that calculation. In agreeing with
the People, the trial court relied upon Bransford . We begin there.

In Bransford , the California Supreme Court granted review to
determine whether the defendants, convicted of driving with 0.08
percent or more of alcohol in their blood, {Slip Opn. Page 7} should
be allowed to challenge "their breath-test results by showing that
their personal ratio of breath-alcohol concentration to blood-alcohol
concentration (the 'partition ratio') differed from the standard
partition ratio that breath-testing machines use to convert
breath-alcohol readings into blood-alcohol equivalents." ( Bransford ,
supra , 8 Cal.4th at p. 888.) The court held that defendants could not
place before the jury evidence of their individual partition ratios.
fn. 4 The court focused on the 1990 amendment to section 23152, which
changed the per se DUI statute from, "[f]or purposes of this
subdivision percent, by weight, of alcohol shall be based upon grams
of alcohol per 100 milliliters of blood," to "[f]or purposes of this
subdivision, percent, by weight, of alcohol in a person's blood {Slip
Opn. Page 8} shall be based upon grams of alcohol per 100 milliliters
of blood or grams of alcohol per 210 liters of breath ." ( Bransford,
supra, at pp. 889-891, citing Stats. 1990, ch. 708, § 1, pp.
3289-3290.) The court explained, "we believe there is . . . only one
reasonable manner in which to [read the statute], i.e., the
Legislature intended the statute to criminalize the act of driving
either with the specified blood-alcohol level or with the specified
breath-alcohol level. The second paragraph provided two distinct
definitions" for arriving at whether an individual is driving with a
0.08 percent or more of blood alcohol. ( Bransford, supra, at p. 890,
italics added.)

In response to the defendants' argument that the statute as amended
created an irrebuttable conclusive presumption that the amount of
alcohol in 210 liters of breath was equivalent to the amount of
alcohol in 100 milliliters of blood, the court stated that the statute
"'does not create a conclusive presumption of intoxication . . . .
Instead the statute defines, in precise terms, the conduct
proscribed.' [Citation]." ( Bransford, supra , 8 Cal.4th at p. 892.)
The conduct prohibited is either (1) driving with a 0.08 percent blood
alcohol level based on grams of alcohol per 100 milliliters of blood,
or (2) driving with a blood alcohol level of 0.08 percent based on
grams of alcohol per 210 liters of breath. Thus, while variances may
exist because of the method used for measurement, there is no need to
convert a breath alcohol measurement to a blood alcohol level. Both
measurements are distinct substantive statutory means by which the per
se DUI statute can be violated. (See People v. Pinkston (2003) 112
Cal.App.4th 387 , 393.) Thus, under Bransford , when the alleged per
se DUI is based upon the defendant's breath alcohol {Slip Opn. Page 9}
level, evidence of variations in the partition ratio is irrelevant.
(See People v. Acevedo (2001) 93 Cal.App.4th 757 , 765-766.)

Lack of admissibility relative to a per se DUI charge does not,
however, resolve the question of whether evidence of partition ratio
is admissible on a charge of generic DUI. Indeed, the Bransford court
expressly stated that it was not addressing this issue. ( Bransford,
supra , 8 Cal.4th at p. 893, fn. 10.) For per se DUI, as Bransford
makes clear, we are concerned with whether the defendant was driving
with a 0.08 percent blood alcohol level or above, as defined by that
subdivision, regardless of whether the defendant was in fact
intoxicated. However, under the generic DUI statute, we are ultimately
concerned with the defendant's actual state of intoxication (or, more
precisely, with whether the defendant was "under the influence" of
alcohol or drugs while driving).

Because Bransford does not directly resolve the question presented in
this case, we turn next to evaluating the relevancy of partition ratio
evidence in a generic DUI case. Generally, relevant evidence is
admissible. (Evid. Code, § 351.) Evidence is relevant if it has "any
tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action." ( Id., § 210.) The
are two disputed facts in this case to which partition ratio evidence
might be relevant: (1) the basic or preliminary fact giving rise to
the presumption of being under the influence under section 23610,
namely, that defendant had a 0.08 percent blood alcohol level, as
defined by that section, at the time of the offense; and (2) the
ultimate fact that defendant was driving under the influence within
the meaning of the generic DUI statute. As we explain more fully
below, because the Legislature has defined the basic fact--a certain
blood alcohol {Slip Opn. Page 10} concentration--to include breath
alcohol concentration at the standard partition ratio, evidence of a
different ratio is irrelevant. However, relative to the ultimate fact
of intoxication, evidence of a defendant's personal partition ratio,
but not evidence of the general variability in partition ratios, is
relevant and admissible.

C. Admissibility to Prove or Negate the Basic Fact Underlying the Presumption

As a preliminary matter, before addressing the relevance of partition
ration evidence to challenge the basic fact underlying the presumption
of being under the influence, we consider whether the statutory breath
alcohol presumption is consistent with due process.

"Inferences and presumptions are a staple of our adversary system of
factfinding. It is often necessary for the trier of fact to determine
the existence of an element of the crime--that is, an 'ultimate' or
'elemental' fact--from the existence of one or more 'evidentiary' or
'basic' facts. [Citations.] The value of these evidentiary devices,
and their validity under the Due Process Clause, vary from case to
case, however, depending on the strength of the connection between the
particular basic and elemental facts involved and on the degree to
which the device curtails the factfinder's freedom to assess the
evidence independently. . . . [¶] The most common evidentiary device
is the entirely permissive inference or presumption, which allows--but
does not require--the trier of fact to infer the elemental fact from
proof by the prosecutor of the basic one and that places no burden of
any kind on the defendant. [Citation.] In that situation the basic
fact may constitute prima facie evidence of the elemental fact. . . .
Because this permissive presumption leaves the trier of fact free to
credit or reject the inference and does not shift {Slip Opn. Page 11}
the burden of proof, it affects the application of the 'beyond a
reasonable doubt' standard only if, under the facts of the case, there
is no rational way the trier could make the connection permitted by
the inference." ( Ulster County Court v. Allen (1979) 442 U.S. 140,
156-157 [99 S.Ct. 2213, 60 L.Ed.2d 777].)

As set forth above, section 23610 provides for a presumption in
generic DUI cases by which a person "shall be presumed" to be "under
the influence of an alcoholic beverage" when "the amount of alcohol in
the person's blood at the time of the test as shown by chemical
analysis of that person's blood, breath, or urine" is 0.08 percent or
more, by weight, of alcohol in the person's blood. (§ 23610, subd.
(a)(3).) Although section 23610 provides that the presumptions affect
"the burden of proof" and employs the mandatory phrase, "shall be
presumed" (§ 23610, subd. (a)), in order to save the statute from
creating an unconstitutional mandatory presumption, it has been
interpreted as creating merely a permissive inference that the trier
of fact is free to credit or reject. (See People v. Milham (1984) 159
Cal.App.3d 487 , 501-505.) Accordingly, CALJIC No. 12.61 provides: "If
the evidence establishes beyond a reasonable doubt that at the time of
the chemical analysis of the defendant's blood, breath or urine, there
was 0.08 percent or more by weight of alcohol in the defendant's
blood, you may, but are not required to, infer that the defendant was
under the influence of an alcoholic beverage at the time of the
alleged offense." (Italics added.) (See also Judicial Council of Cal.
Crim. Jury {Slip Opn. Page 12} Instns. (2006-2007), CALCRIM No. 2110
["you may, but are not required to, conclude that the defendant was
under the influence"].) fn. 5

The basic or preliminary fact that gives rise to the presumption of
intoxication in section 23610 is a certain percent of alcohol by
weight in the person's blood as defined in that section. In People v.
Lachman (1972) 23 Cal.App.3d 1094 , the court considered whether the
presumption, set forth in a predecessor statute, that a person is
under the influence when the person has a 0.10 percent blood alcohol
content violated due process. The court held it did not, and
explained: "The presumption . . . is not based on speculation but is
founded on the long-recognized and scientifically established
relationship between blood alcohol level and degree of intoxication. .
. . It can be said with substantial assurance that a person with 0.10
per cent [ sic ] or more alcohol in his blood is more likely than not
under the influence of intoxicating liquor. There thus exists
sufficient rational connection in experience between the preliminary
fact proved and the ultimate fact presumed to satisfy the requirement
of due process of law." ( Id . at p. 1098.)

If, in the present case, defendant's blood alcohol reading had been
based on a blood extraction, there would clearly be a rational
connection between the blood alcohol reading and whether defendant was
under the influence of alcohol. And, because of the long-recognized
and scientifically established relationship between blood alcohol
{Slip Opn. Page 13} concentration and intoxication, there would be no
meritorious basis for attacking the underlying efficacy of the
correlation. Here, however, the presumption is not based solely upon
the relationship between blood alcohol content and intoxication, but
also upon a statutorily prescribed mathematical constant for
converting breath alcohol content into blood alcohol content. The
statute addressed by Lachman did not include this formula for
converting breath alcohol levels to blood alcohol levels.

The nature and extent of the relationship between breath alcohol and
blood alcohol (and intoxication) has been a subject of scientific
debate for decades. (See, e.g., People v. Ireland (1995) 33
Cal.App.4th 680 , 693 ( Ireland ); State v. Downie (1990) 117 N.J.
450, 457 [569 A.2d 242]; State v. Brigham (Fla.Dist.Ct.App. 1997) 694
So.2d 793, 795; Schop, Is DWI DOA?: Admissibility of Breath Testing
Evidence in the Wake of Recent Challenges to Breath Testing Devices
(1991) 20 Sw.U. L.Rev. 247, 251-252 (hereafter Schop).) The breath
test "is based on the premise that at any given temperature, the ratio
between the concentration of alcohol in the blood and that in the air
from the lungs is constant. Verification of this fact and the
numerical magnitude of this ratio was done experimentally. [Citation.]
As blood containing alcohol passes through the lungs, a fractional
amount tends to diffuse through the pulmonary membranes and enter the
lungs, where it is exhaled. A fluid dissolved in a liquid will, over
time, partially diffuse into an adjacent gas in a distribution
predictable for that fluid. A general law of physics, Henry's {Slip
Opn. Page 14} law, fn. 6 describes the rate of diffusion. This
predictable relationship is what allows a measurement of a person's
breath to be extrapolated to show the concentration of alcohol in the
blood ." ( Dahl v. State (Tex.Ct.App. 1986) 707 S.W.2d 694, 696.)
According to one court, "many experts consider alveolar air, or air
expelled from the lungs at the end of a deep breath, as the best
practical measure of alcohol in the brain during the absorptive phase"
of metabolizing alcohol. ( State v. Downie, supra, at p. 246.)
Although the 1:2,100 standard partition ratio has been criticized, it
is nevertheless widely accepted. (See State v. Brigham, supra, at p.
795; Schop, supra, at p. 257.)

A report prepared for the Assembly Committee on Public Safety
regarding the bill to redefine blood alcohol for purposes of the per
se DUI to include breath alcohol at the standard partition rate
addressed the issue: "Should the offense of driving under the
influence of alcohol be statutorily defined in terms of the
concentration of alcohol found in the breath when breath analysis is
used?" (Assem. Com. On Public Safety (May 15, 1990) hearing,
capitalization omitted.) The report included the following comment: "
Scientific Recommendation . According to M. F. Mason, Ph.D., Professor
of Forensic Medicine and Toxicology and K. M. Dubrowski, Ph.D.,
Professor of Medicine and Director of Toxicology Laboratories, 'the
conversion of a breath quantity to a blood concentration of ethanol,
for forensic purposes, should be abandoned and the offense of driving
while under the influence of alcohol should be statutorily defined in
terms of the {Slip Opn. Page 15} concentration of ethanol found in the
breath in jurisdictions employing breath analysis.['] ('Breath-Alcohol
Analysis: Uses, Methods, and Some Forensic Problems -- Review and
Opinion', 21 Journal of Frensic [ sic ] Sciences , No. 1, p. 33
(1976)." ( Ibid .) fn. 7

In Ireland , the defendant, convicted of per se DUI, challenged on due
process grounds the exclusion of evidence of the variability between
blood alcohol and breath alcohol measurements. He asserted numerous
physiological "reasons why breath tests are inaccurate predictors of
true alcohol content." ( Ireland, supra, 33 Cal.App.4th at p. 692.)
The Ireland court rejected the argument, explaining: When the
Legislature enacted the amendment defining blood alcohol to include
breath alcohol using the standard partition ratio for purpose of the
per se DUI statute, "it was aware of the 'complexities' of converting
breath-alcohol values to blood-alcohol values. Indeed, it was
precisely because of those complexities that the Legislature decided
to eliminate the conversion requirement, accepting as sufficient for
defining legislative policy a prohibition on driving based on the
presence in a person's breath of a certain amount of alcohol. [¶] . .
. [¶] The fact that the current state of scientific knowledge has not
settled the ongoing scientific debate as to the best method of
measuring inebriation does not preclude the Legislature from
regulating driving based on conflicting scientific theories." ( Id .
at p. 693; see also Brayman, supra, 751 P.2d at p. 301 ["While the
record may establish that breath is a less direct measure of blood
alcohol levels, it does not establish a lack of a {Slip Opn. Page 16}
reasonable and substantial relationship between breath alcohol and
impairment"].) Although the Ireland court addressed the legislative
changes to the per se DUI statute, its rationale applies equally to
the presumption of being under the influence in generic DUI cases. We
therefore conclude that the presumption of driving under the influence
provided by section 23610 for purposes of a generic DUI charge does
not violate due process.

Next, we consider whether evidence of a defendant's personal partition
ratio is relevant to prove or disprove the basic fact of the
presumption. The Ireland court's consideration of legislative history
provides guidance. As discussed in that case, the addition of "grams
of alcohol per 210 [milliliters] of breath," as an alternative method
of measuring blood alcohol, was added to section 23155 (the
predecessor to § 23610) in 1989 through Senate Bill No. 1119. (
Ireland, supra, 33 Cal.App.4th at p. 691, citing Stats. 1989, ch.
1114, § 34, pp. 4085-4086.) The same language was added to the per se
DUI statute in 1990 through Assembly Bill No. 4318. (Stats. 1990, ch.
708, § 1, pp. 3289-3290; see Bransford, supra, 8 Cal.4th at pp.
889-891.) fn. 8 As the Ireland court stated: "The Assembly Committee
on Public Safety, the Senate Rules Committee, and the Senate Committee
on Judiciary all decried that the challenges to the accuracy of the
partition ratio had resulted in 'expensive and time consuming
evidentiary hearings and undermine[d] successful enforcement of
driving under the influence laws.' (Hearing {Slip Opn. Page 17} notes
of Assem. Com. on Pub. Saf. (May 15, 1990) Assem. Bill No. 4318.) [¶]
In 1990, Assembly Bill No. 4318 . . . was introduced to '[e]liminate
the need for conversion of a breath quantity to a blood concentration
of alcohol by statutorily defining driving under the influence of
alcohol in terms of the concentration of alcohol found in the breath
when breath analysis is used.' (Assem. Com. on Public Safety, May 15,
1990 hearing.) The committee explained that '[t]he complexities of the
existing conversion or partition ratio result in a significant number
of cases being challenged on the accuracy and applicability of the
partition ratio.' (Hearing notes of Assem. Com. on Pub. Saf., supra ,
[Assem. Bill No.] 4318)[.]" ( Ireland, supra, at pp. 689-690.) The
Assembly Committee on Public Safety further stated: "'Last year the
Legislature approved and the Governor signed Senate Bill [No.] 1119
(Seymour) which, effective January 1992, eliminates the DUI partition
ratio [in generic DUI cases], an unnecessarily complicated method of
converting units of alcohol per liter of breath into the current
standard of .08% blood alcohol per milliliter of blood. [Assembly Bill
No.] 4318 simply speeds up the effective date to January 1, 1991, in
an effort to provide relief to our beleaguered DUI trial process.'" (
Id . at p. 691.)

In light of this history, it is evident that the Legislature intended
to eliminate partition ratio evidence as to both the crime of driving
with a blood alcohol level of 0.08 percent or greater under the per se
DUI statute, and the presumption of driving under the influence under
the generic DUI statute. The Legislature intended to put breath
alcohol test results on equal footing with blood alcohol tests. With
respect to the presumption applicable to generic DUI prosecutions, the
Legislature accomplished this by, in effect, {Slip Opn. Page 18}
redefining the basic fact that must be proved to trigger the
presumption. Prior to these amendments, the basic fact was a certain
blood alcohol level. A person charged with generic DUI, based only on
a breath test, could introduce partition ratio evidence to challenge
that basic blood alcohol fact; evidence of variances in personal
partition ratios were relevant in determining whether the defendant
had the blood alcohol level necessary to trigger the presumption. (See
Bransford, supra , 8 Cal.4th at p. 889.) Following the amendments, the
specified breath alcohol level itself is a basic fact that triggers
the presumption of intoxication. If the prosecution can prove the
defendant had the specified breath alcohol level, it no longer needs
to prove any particular blood alcohol level to be entitled to the
presumption of intoxication. In this situation, partition ratio
evidence is simply irrelevant to the issue of whether the basic fact
exist. (Cf. Ireland, supra, 33 Cal.App.4th at p. 691.)

D. Admissibility to Prove or Negate the Ultimate Fact of Being Under
the Influence

We still must examine whether partition ratio evidence is admissible
for purposes of creating a reasonable doubt as to the presumed or
ultimate fact of intoxication. As discussed above, the presumption
created by section 23610 permits jurors to infer, but does not require
that they find, the ultimate fact from the existence of a certain
blood alcohol or breath alcohol concentration. ( People v. Milham,
supra, 159 Cal.App.3d at pp. 501-505; CALJIC No. 12.61.) Nothing in
the statute precludes the ability of the defendant from introducing
other evidence relevant to the ultimate fact of intoxication. Indeed,
when the Legislature redefined blood alcohol content to include breath
alcohol, it left intact the following language now codified in
subdivision (c) of section 23610: "This {Slip Opn. Page 19} section
shall not be construed as limiting the introduction of any other
competent evidence bearing upon the question of whether the person
ingested any alcoholic beverage or was under the influence of an
alcoholic beverage at the time of the alleged offense."

Because intoxication occurs when alcohol in sufficient amounts is
carried to the central nervous system through the bloodstream,
evidence of alcohol in a person's bloodstream is relevant to proving
that a defendant was under the influence of alcohol. When the evidence
of blood alcohol is based on a breath test, the accuracy of the breath
alcohol measurement as an indicator of the amount of alcohol in the
defendant's bloodstream is important. Such accuracy depends in part on
the extent to which the defendant's actual partition ratio varies from
the statutory partition ratio. Evidence of a defendant's personal
partition ratio may show that the breath test overstates or
understates the amount of alcohol in his bloodstream, thereby reducing
or increasing the likelihood that he was intoxicated. Such evidence
thus bears upon the question of whether the defendant was under the
influence of alcohol, and is therefore relevant. (Veh. Code, § 23610,
subd. (c); Evid. Code, § 210.)

While there is no published California case on point, two out-of-state
decisions are instructive. In Hanks, supra, 772 A.2d 1087, defendant
was charged with driving under the influence of an intoxicating
liquor, a violation of Vermont Statutes Annotated, title 23, section
1201, subdivision (a)(2). ( Hanks, supra, at p. 1088.) (Prosecutions
under this subdivision are described in Hanks as "generic DWI" cases.)
He was not charged with the crime of driving with an alcohol
concentration of 0.08 percent or more, or "per se" {Slip Opn. Page 20}
DWI, a violation of subdivision (a)(1) of the same statute.
Defendant's breath sample registered 0.109 percent alcohol content. At
the time of the offense, Vermont law provided that "('If the person's
alcohol concentration at [the time of operation] was 0.08 [percent] or
more, it shall be a permissive inference that the person was under the
influence of intoxicating liquor in violation of section 1201[,
subdivision] (a)(2) . . . .')" ( Hanks, supra, at p. 1088.) By way of
a motion in limine the prosecution sought an order limiting defense
counsel's cross-examination of the state's toxicologist "'to exclude
any examination based on variations as a general matter in the human
population in the so-called "partition ratio."'" ( Ibid .) The state's
motion was based on the fact that under Vermont law, alcohol
concentration can be measured by either the number of grams of alcohol
per 100 milliliters of blood or the number of grams of alcohol per 210
liters of breath. ( Id . at p. 1089.) The state contended that given
the legislatively-adopted partition ratio, any evidence on partition
ratio variation would be irrelevant, confusing, and "misleading
because it would subvert the legislative statement of what the law is
on this subject." ( Id . at p. 1090.) At a hearing on the state's
motion, the state's expert, "confirmed . . . that '[b]ecause
blood-breath ratios vary both between individuals, and at different
times in the same individual, a breath test based on a 2[,]100:1
blood-breath ratio may not accurately represent a particular
individual's blood alcohol level.' [Citation.] The state chemist
agreed that partition ratios can vary from 1[,]600:1 to 3[,]000:1 . .
. ." ( Id . at p. 1089.) The trial court adopted the analysis in
Bransford and granted the state's motion, precluding partition ratio
evidence. {Slip Opn. Page 21}

On appeal, the defendant argued that while partition ratio evidence
may not be admissible in cases involving per se violations, they are
relevant in cases involving generic DWI violations. The Vermont
Supreme Court agreed. After characterizing the generic DWI statute as
creating a permissive inference as opposed to a rebuttable
presumption, the court stated, "We are not persuaded by the State's
arguments that allowing defense counsel to cross-examine the state
chemist concerning the variability of partition ratios would be
inconsistent with the statutory scheme and lead to jury confusion. . .
. [A]llowing testimony on the variability of partition ratios would
not prevent the jury from accepting the statutory inference. Because
defendant is charged with driving while under the influence rather
than driving with an alcohol concentration exceeding the statutory
limit, admitting scientifically accepted evidence concerning the
variability of partition ratios will not negate a statutory offense or
even an element of a statutory offense; rather, it will merely allow
defendant to challenge the permissive inference and the State's charge
that he was impaired." ( Hanks, supra, 772 A.2d at pp. 1092-1093.) The
Arizona Court of Appeal, relying in part on Hanks , came to the same
conclusion in Guthrie v. Jones (2002) 202 Ariz. 273, 276-277 [43 P.3d
601].

Although, as we explain below, we do not agree with Hanks and Guthrie
to the extent that those decisions would allow general partition ratio
evidence as well as personal partition ratio evidence, we agree with
their essential analysis that partition ratio evidence can be admitted
to challenge the inference of intoxication without affecting the basic
fact supporting the inference. {Slip Opn. Page 22}

Because evidence is admissible to challenge the ultimate fact of
intoxication under the generic DUI statute, and personal partition
ratio evidence is relevant to that fact, we hold that a defendant may
introduce otherwise admissible evidence of his personal partition
ratio in defense of a generic DUI charge.

E. General Partition Ratio Evidence

Our record does not reflect whether defendant sought to introduce
evidence of his personal partition ratio or merely evidence of the
variability of partition ratios in the general population. To the
extent that he sought to introduce general partition ratio evidence,
we believe that such evidence is irrelevant and inadmissible.

Defendant relies upon Lepine, supra, 215 Cal.App.3d 91 . In Lepine ,
the defendant sought to introduce general partition ratio evidence in
a per se DUI case prior to the Legislature's amendment defining blood
alcohol content to include breath alcohol content. At that time, the
standard partition ratio was set forth in regulations promulgated by
the Department of Health. (See Cal. Code Regs., tit. 17, § 1220.4,
subd. (f).) Prior to Lepine, courts had allowed personal partition
ratio evidence in per se DUI cases, but not general partition ratio
evidence. (See Bransford, supra, 8 Cal.4th at 889.) Lepine held that
general partition ratio evidence could also be admitted in such cases.
Although Lepine was a per se DUI case, its holding would appear to be
applicable by analogy. However, a close reading of the case compels a
contrary conclusion here.

In Lepine , the Attorney General argued against the admissibility of
general partition ratio evidence on the basis that the Department of
Health regulations establishing the partition ratio "created a
presumed fact that could only be challenged by {Slip Opn. Page 23} a
defendant presenting evidence that his particular partition ratio was
less than that defined in the regulation." ( Lepine, supra, 215
Cal.App.3d at p. 98.) The Lepine court rejected the Attorney General's
argument, explaining: "There is nothing in either the Health and
Safety Code section delegating to the department the power to create
standards or in the regulations produced pursuant to that delegation
which evidences a legislative intent to create a presumed fact. The
Attorney General cites no case so finding. Nor does he suggest a canon
of statutory construction which would compel the conclusion it was the
Legislature's intention to create such an unassailable scientific
standard so central to the proof of a serious crime. Where the
Legislature has established presumptions affecting crimes involving
the use of alcohol, it has done so directly and unambiguously.
[Citations.] We find no such directive in the Legislature's general
delegation of responsibility to set standards for the performance of
breath alcohol tests." ( Lepine, supra, at p. 98.)

The Lepine court's rationale indicates that if the standard partition
ratio was established as a presumption by the Legislature, rather than
an unauthorized regulation, it would have come to a contrary
conclusion. The direct and unambiguous legislative statement the
Lepine court found missing in the regulations now exists in sections
23610 and 23152(b). Indeed, as the legislative history of the
amendments redefining blood alcohol to include breath alcohol
(discussed above and in Ireland ) make clear, the Legislature sought
to limit, if not eliminate, partition ratio evidence in DUI cases. In
light of these amendments and the legislative history behind them, we
view Lepine as strong support for limiting partition ratio evidence to
personal partition ratio evidence. {Slip Opn. Page 24}

Moreover, subdivision (c) of section 23610, permits "the introduction
of any other competent evidence bearing upon the question of whether
the person . . . was under the influence of an alcoholic beverage at
the time of the alleged offense." (Italics added.) Construed in light
of the legislative history of the statute, the reference to "whether
the person . . . was under the influence" appears to us to limit
partition ratio evidence to personal partition ratio evidence. General
partition ratio evidence does not, we conclude, have any bearing upon
whether the defendant in a particular case was under the influence. It
is therefore irrelevant and inadmissible.

F. Conclusion

To the extent that the defendant in this case sought to introduce
evidence of his personal partition ratio as evidence that he was not
under the influence of alcohol, the trial court abused its discretion
in determining that such evidence was inadmissible. Because the only
reason apparent in the record for denying defendant's motion to reopen
the case was the erroneous evidentiary ruling, the denial of the
motion to reopen would also be an abuse of discretion. If, however,
defendant sought to introduce general partition ratio evidence, the
court's evidentiary ruling was not erroneous and the denial of the
motion to reopen was not an abuse of discretion.

As stated above, we cannot discern from the record whether the
defendant sought to introduce evidence of general variability of
partition ratios or of his own partition ratio. "'"For an appeal to
engage the consideration of an appellate court, it must be brought up
on a record which, in addition to being otherwise formally sufficient,
shows the error calling for correction. Such error is never presumed,
but must be affirmatively shown, {Slip Opn. Page 25} and the burden is
upon the appellant to present a record showing it, any uncertainty in
the record in that respect being resolved against him." This basic
rule is a corollary of the equally fundamental principle that all
presumptions and intendments are in favor of the regularity of the
action of the lower court in the absence of a record to the
contrary.'" ( People v. Green (1979) 95 Cal.App.3d 991 , 1001, quoting
People v. Clifton (1969) 270 Cal.App.2d 860 , 862.) Because defendant
has failed to make a sufficient record of his offer of proof with
respect to the type of partition ratio evidence he sought to
introduce, he has failed to demonstrate error.

Nevertheless, as we explain in the next section, even if defendant had
proffered evidence of his personal partition ratio and made a
sufficient record of doing so, any error was harmless.

G. Harmless Error

"As a general matter, the '[a]pplication of the ordinary rules of
evidence . . . does not impermissibly infringe on a defendant's right
to present a defense.' [Citations.]" ( People v. Fudge (1994) 7
Cal.4th 1075 , 1102-1103.) Here, defendant was not precluded from
presenting his defense that he was not under the influence; "'but only
a rejection of some evidence concerning the defense.' [Citation.]
Accordingly, the proper standard of review is that announced in People
v. Watson (1956) 46 Cal.2d 818 , 836 [299 P.2d 243], and not the
stricter beyond-a-reasonable-doubt standard reserved for errors of
constitutional dimension ( Chapman v. California (1967) 386 U.S. 18,
24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065])." ( Id.
at p. 1103.) Under Watson , an error is not harmless "only when the
court, 'after an examination of the entire cause, {Slip Opn. Page 26}
including the evidence,' is of the 'opinion' that it is reasonably
probable that a result more favorable to the appealing party would
have been reached in the absence of the error." ( People v. Watson,
supra, at p. 836.)

Here, there is strong evidence that, regardless of his blood alcohol
level, defendant was under the influence of alcohol. Defendant was
pulled over slightly before 11:00 p.m. Officer Herrera initially
observed him on the Tennessee Avenue transition road. Defendant slowed
down to make a right-hand turn onto Tennessee Avenue. Defendant ran
the stop sign. Shortly after this, he slowed for a red light at the
intersection of Tennessee Avenue and Colton. Defendant proceeded into
the intersection and made a left-hand turn, against the red turn
arrow. After approaching the vehicle, Officer Herrera asked for
defendant's driver's license and registration. The defendant could not
initially find his driver's license. When asked why he ran the red
light, defendant initially responded that he was chasing an individual
that had pulled a gun on him. He thereafter said that he was either
looking for his wife, or that his wife was right behind him.
Defendant's speech was slurred, his eyes were watery and bloodshot,
and there was an odor of alcohol coming from the interior of
defendant's car. Upon exiting his vehicle, defendant used the vehicle
to balance himself as he walked around his car to the sidewalk.
Defendant told the officer that he had consumed one beer and that he
had diabetes. Defendant's performances on the Romberg, heel-to-toe,
one leg, and finger-to-nose sobriety tests were all consistent with
being under the influence of alcohol. Additionally, the PAS test
showed the presence of alcohol. Officer Herrera wrote in his report
that defendant's face was flushed and that he had difficulty answering
questions. {Slip Opn. Page 27} The record thus demonstrates
significant evidence of defendant's intoxication. Therefore, we
believe that it is not reasonably probable that a result more
favorable to defendant would have been reached in the absence of any
error.

Moreover, it is probable that the jury did not use the 0.08 percent
presumption in arriving at its verdict. As earlier noted, the jury was
split on whether defendant was guilty of driving with a blood alcohol
level of 0.08 percent or greater under section 23152(b). Given this,
it is unlikely that the jurors who rejected that charge employed the
presumption of intoxication in arriving at their guilty verdict on the
section 23152(a) charge.

"I might leave in a bodybag, but never in cuffs"