Driving Under the Influence
Category > Driving Under the Influence
Updated 6/19/2023Defendant’s 1981 drunk driving and manslaughter convictions could not be combined to elevate his current drunk driving charge to a felony.Under Vehicle Code section 23550.5 a conviction for driving under the influence is elevated from a misdemeanor to a felony if defendant has suffered a previous conviction of a specified statute including gross vehicular manslaughter under Penal Code section 191.5(a). In 1981, defendant was convicted of vehicular manslaughter under section 192.3 and driving under the influence, neither of which was listed as a qualifying prior that would elevate drunk driving to a felony under section 23550.5. The non-qualifying convictions could not be treated together as if they were a qualifying prior under section 191.5(a) even though that provision was not enacted until five years later.id: 27620
Driving under the influence of alcohol causing injury is a lesser included offense of driving under the combined influence of alcohol and a drug causing injury.The crime of driving under the influence of alcohol causing injury (Vehicle Code section 23153, subd.(a)) is a lesser included offense of driving under the influence of alcohol and a drug causing injury (section 23153, subd.(f).) Defendant was therefore improperly convicted of both offenses and his conviction of the former was reversed.id: 24934
The prohibition of diversion in drunk driving cases doesn’t apply to veterans or active duty military who meet the criteria of section 1001.80.Vehicle Code section 23640, which generally prohibits pretrial diversion in drunk driving cases does not bar pretrial diversion for veterans or active duty military members who meet the criteria of Penal Code section 1001.80 and are charged with drunk driving.id: 24894
Defendant’s prior juvenile drunk driving adjudication could not be used to elevate the current charge to a felony under section 23550.5.A juvenile adjudication does not qualify as a “prior violation ... that was punished as a felony” so as to elevate a misdemeanor drunk driving to a felony under Vehicle Code section 23550.5.id: 24197
The four year sentence for drunk driving causing injury was unauthorized where defendant’s prior drunk driving convictions were neither pled nor proven. Defendant was convicted of drunk driving causing injury under Vehicle code section 23153, subd.(a). The trial court’s four year prison sentence was unauthorized because the defendant’s prior drunk driving convictions were neither pled nor proven.id: 23932
Defendant could not properly be convicted of gross vehicle manslaughter while intoxicated and the lesser included offense of drunk driving causing injury. Defendant was convicted of gross vehicle manslaughter while intoxicated. He was also convicted of drunk driving causing injury. The trial court erred by staying imposition of sentence on the latter count as it was a lesser included offense of the former. As such, it should have been dismissed.id: 23965
The trial court erred by not knowing it had discretion to permit the filing of an amended information alleging a new prior discovered after the guilty plea.Defendant pled guilty to drunk driving with a prior conviction and the agreement provided the maximum term was 14 years but defendant would receive eight. Before sentencing, the prosecution discovered another out-of-state strike and amended the information resulting in a new guilty plea and a 14 year sentence. However, the law requires that the prosecution obtain approval from the court before amending an information alleging a previously uncharged prior. The record here shows the trial court was unaware that it had discretion whether to permit the filing of the amended information. The judgment was reversed and the matter remanded to allow the court to exercise its discretion.id: 23380
Defendant’s felony drunk driving conviction was reversed where the court relied on facts outside the record to show his Arizona prior conviction qualified under California law.Defendant was convicted of drunk driving and the offense was elevated to a felony under Vehicle Code section 23550, subd.(a) because of three previous convictions in the past 10 years. However, one offense committed in Arizona could not be used as a qualifying offense because it did not rise to the level of a drunk driving offense in California as it criminalized driving while “impaired to the slightest degree.” In finding the offense qualified the trial court erred by relying on facts outside the record - specifically handwritten notes on the sentencing form. Absent that conviction, the evidence did not support the felony conviction.id: 22661
The trial court prejudicially erred in refusing to allow expert testimony raising doubts about the breath testing devices in a drunk driving trial. The trial court erred by excluding expert testimony that would have demonstrated some unreliability in breath testing devices, based upon the asserted problems in obtaining pure data about blood alcohol from the intake of air utilized by those devices. Even though similar factors affect the partition ratio, the expert sought to testify that they also separately affect the amount of alcohol found in the alveolar air supposedly being tested.id: 22284
The trial court erred in admitting evidence that defendant refused to take the PAS test because he had a legal right to refuse the test. The trial court erred by admitting evidence that defendant failed to take a preliminary alcohol screening (PAS) test when stopped for drunk driving. Because his right to refuse the PAS test is conferred by Vehicle Code section 23612, evidence of his refusal to take the test should not have been presented to the jury. id: 21866
Driving while under the influence conviction was reversed for lack of evidence that defendant’s methamphetamine use appreciably impaired his ability to drive.Defendant was convicted of driving under the influence of methamphetamine. However, even though the evidence showed he was under in influence of methamphetamine when arrested, and exhibited symptoms consistent with recent use, there was insufficient evidence that his methamphetamine use appreciably impaired his ability to drive. His failure to stop at the limit line was not enough, and there was no showing that vision problems or muscle rigidity (often associated with use of the drug) affected his driving.id: 20959
Partition ratio evidence is admissible in generic DUI cases to rebut the presumption that defendant was driving “under the influence”.If a chemical test within three hours of driving measures a driver’s blood alcohol at .08 percent or more, the driver is presumed to have been driving “under the influence” of alcohol. Partition ratio evidence which reflects the relationship between alcohol measured in a person’s breath and alcohol in the blood, is admissible in generic DUI cases to rebut the presumption.id: 21069
Court erred in prohibiting cross-examination of the criminalist about the ratio used to convert a urine-alcohol measurement into a blood-alcohol equivalent.The partition ration used to convert a urine-alcohol measurement into a blood-alcohol equivalent is relevant evidence in a drunk driving case. The trial court prejudicially erred when it precluded cross-examination of the criminalist on the subject.id: 16557
Trial court must define under the influence when instructing in driving under the influence of a controlled substance.When a jury is instructed pursuant to CALJIC 12.65 (defining the term drug for purposes of driving under the influence of any drug) an instruction defining the phrase under the influence must also be given.id: 10629
The trial court committed reversible error in failing to instruct the jury it had to find defendant committed a legal infraction other than driving under the influence to convict him of violating sections 23153, subdivisions (a) and (b).Defendant was charged with vehicular manslaughter without gross negligence (Penal Code section 192, subdivision (c)(3) and felony drunk driving under Vehicle Code section 23153, subdivisions (a) and (b). The prosecution's case was based on the defendant's violation of the basic speed law, the maximum speed law, and the laned roadway law - not on a negligence theory. The trial court committed reversible error in failing to explicitly instruct the jury that it had to find he committed a legal infraction other than drunk driving to convict him of violating section 23153, subdivision (a) and 23153, subdivision (b). Where the prosecution is relying on specific code violations for both manslaughter and felony drunk driving, the trial court must make it clear to the jurors that they are required to find the code section violations for both offenses.id: 10623
Lack of knowledge that the person borrowing the car was unlicensed is a mitigating factor warranting return of the vehicle after a seizure
Vehicle Code section 14602.6 provides for the 30-day seizure of a vehicle driven by a person while unlicensed or while the
person's driving privilege are revoked or suspended. Following the seizure, the registered owner is given an opportunity to present mitigating circumstances. The registered owner's lack of actual knowledge that the driver to whom he loaned his car was not validly licensed constitutes a mitigating circumstance warranting release of the vehicle to the registered owner before expiration of the30-day storage period set forth in the statute. Moreover, section 14602.6 does not condition the operation
of the mitigating circumstances exception to situations where the owner has made a reasonable inquiry as to the licensed status of the driver before lending the vehicle. id: 16753
Drunk driving offense could not be charged as a felony where the prior offenses spanned a period of more than seven years.Vehicle Code section 23550 provides that drunk driving may be charged as a felony if it occurred within seven years of three or more DUI violations that resulted in convictions. The provision applies only where all of the current and former offenses occur within a seven year period.id: 17008
Driving under the influence causing injury is necessarily included within gross vehicular manslaughter while intoxicated.Defendant's conviction of driving under the influence causing injury (Vehicle Code section 23153, subdivision (a)) was necessarily included within gross vehicular manslaughter while intoxicated (Penal Code section 191.5, subdivision (a)). There is no way a victim could be killed by a moving vehicle and not incur injury in the process.id: 10585
Fourth DUI could not be prosecuted as a felony where the third prior was not final and could not be pled and proved as a conviction at the preliminary hearing.A drunk driving offense is punishable as a felony under Vehicle Code section 23550 if the defendant has three prior convictions. Pleading and proof at the preliminary hearing of the three prior convictions is necessary to prosecute the fourth as a felony. In the present case the third prior was not yet a final conviction but the prosecutor represented the conviction would exist by the time of the fourth conviction. However, since all three prior convictions were not pled and proved at the preliminary hearing, the fourth could not be prosecuted as a felony.id: 16471
Because the amended drunk driving statute defined the offense on the basis of grams of alcohol per 210 liters of breath the court properly excluded evidence of partition ratios.Defendants were convicted of driving with 0.08 percent or more of alcohol in their blood (Vehicle Code section 23152, subd.(b)). They argued the trial court erred in excluding evidence of their personal partition ratios - the ratio of breath alcohol concentration to blood alcohol concentration. However, because section 23152, subd.(b) defined the offense on the basis of alcohol per 210 liters of breath, the court correctly ruled such evidence irrelevant and inadmissible.id: 10557
Arresting officer was not qualified to give an expert opinion that defendant's nystagmus was caused by alcohol consumption.At defendant's drunk driving trial the arresting officer testified as to how he administered the horizontal gaze nystagmus test and that in his opinion defendant was under the influence of alcohol. The trial court erred in concluding that the officer's testimony was, to the extent it relied on the HGN testing, lay opinion. Moreover, the officer was not qualified to give an expert opinion that defendant's nystagmus was caused by alcohol consumption. Such testimony would be admissible only if linked to the testimony of a qualified expert who could give a meaningful explanation of the test results to the jury. The prosecution's forensic expert did not provide this necessary link because he offered no opinion as to the test given to defendant or as to what caused the nystagmus the officer observed in defendant.id: 10556
The DMV may not automatically suspend the driver’s license of someone convicted of drunken boating. State law does not authorize the Department of Motor Vehicles to automatically suspend the driver’s licenses of individuals convicted of boating while intoxicated. id: 20370
Defendant's prior Colorado conviction for driving while impaired could not be used for purposes of Vehicle Code section 23540 because it did not meet the elements of the California offense and no competent evidence was presented to establish the violation. The "driving while impaired" statute in Colorado punishes even the slightest degree of impairment. (The more serious drunk driving charge in Colorado has been dismissed as part of
the plea.) Moreover, the computer generated arrest report and other documents did not establish that defendant's blood alcohol content in the Colorado offense exceeded .93 percent, which
would have qualified it as a prior conviction for the present purposes. The documents were not part of the record of conviction of which the court could take judicial notice, and amounted to inadmissible hearsay.id: 19254
Evidence of Preliminary Alcohol Screening breath test was inadmissible because the test did not substantially comply with the Title 17 guidelines.Evidence of the Preliminary Alcohol Screening breath test is inadmissible unless sufficient evidence shows the test was performed in substantial compliance with Title 17 of the California Code of Regulations. There was no substantial compliance since the California Highway Patrol training procedures fail to comply with Title 17. For instance, the testing of the machine was not done by a forensic lab, but was done instead by Highway Patrol officers. The officers performed one, not the required two tests, and did not observe defendant for 15 minutes prior to the test. Finally, the officer who administered the test was not trained by a licensed forensic alcohol supervisor, and did not follow the checklist of instructions printed on the machine. However, the error was harmless in light of the overwhelming evidence that defendant was driving under the influence of alcohol.id: 14889
Defendant's prior conviction for drunk driving under section 23153, subd.(b) could not be charged as a prior felony conviction, after it had been declared to be a misdemeanor "for all purposes."When a court acts under Penal Code section 17 to specify that a conviction for driving under the influence of alcohol should be treated as a misdemeanor "for all purposes," that offense may not afterwards be pled as a prior felony conviction under the terms of former Vehicle Code section 23175.5, now section 23550.5, even though the offense may have been originally punished as a felony.id: 14887
The trial court erred in failing to give amplifying instructions defining "speeding."Defendant was convicted of felony driving under the influence under Vehicle Code section 23153, subdivision (a). That provision prohibits a person from driving while under the influence of alcohol and committing an act forbidden by law. CALJIC 12.60 describes the elements of the offense, and when discussing the legal violation, refers to "speeding." Because the term "speeding," in the context of the basic speed law, is not clear and definite, the trial court had a sua sponte duty to give an amplifying instruction defining the term.id: 15523
Results of HGN field sobriety test are inadmissible without a Kelly-Frye foundational showing and a police officer's testimony is insufficient to establish general acceptance.The results of a horizontal gaze nystagmus (HGN) field sobriety test are not admissible in the absence of Kelly-Frye (now Kelly) foundational showing disclosing general acceptance of the test within the relevant scientific community. A police officer without scientific expertise is not qualified to give an opinion concerning the results of the HGN test. Defendant's drunk driving conviction was reversed for failure to comply with Kelly and the case was remanded to the trial court for a Kelly hearing.id: 10616
Officer without scientific expertise may not give an opinion concerning the results of a horizontal gaze nystagmus test.A police officer without scientific expertise is not qualified to give an opinion concerning the results of a horizontal gaze nystagmus (HGN) field sobriety test. Moreover, it is error to permit HGN evidence as the basis of an opinion concerning intoxication without a Kelly-Frye foundation, i.e., proof of general acceptance of HGN in the scientific community.id: 10605
The trial court erred in giving CALJIC 12.61.1 at defendant's drunk driving trial where the permissive inference was not rationally connected to the proven fact. At defendant's drunk driving trial, the court instructed with CALJIC 12.61.1, which allowed the jury to infer that defendant had a blood alcohol content of at least 0.08 percent while he was driving if a blood alcohol test administered within three hours of the time he stopped driving revealed a BAC of 0.08 percent or more. Based on the evidence presented at trial, there was no rational connection between the proved fact and the fact to be inferred sufficient to justify giving the instruction. The error was prejudicial.id: 19969
Drunk driving arrest was invalid where the officer did not actually witness an act of driving a vehicle.Officer spotted appellant's truck in a parking stall in front of a bar. The engine was running, parking lights were on, as was the radio, and appellant was slumped over the steering wheel. The ensuing warrantless arrest was invalid. If the driver does not move the vehicle in the officer's presence at least a few inches, the offense of driving under the influence has not occurred in the officer's presence.id: 10590
A sentence enhancement imposed under Vehicle Code section 23182 may not be based upon the same count for which a separate felony drunk driving sentence is imposed.Appellant caused injury to three victims in one instance of drunk driving. Where a sentence is imposed on both a vehicular manslaughter count and a drunk driving count, the court may not enhance each sentence with the same victim named in the other count as there would be no additional victims from the one instance of drunk driving.id: 10550
General evidence may be offered concerning partition ratio variability.In a prosecution for driving a vehicle with a blood alcohol level of 0.10 percent or greater (Vehicle Code section 23152 subdivision (b)), the partition or conversion ratio defined by the Code of Regulations for converting a breath alcohol percentage to a blood alcohol percentage need not be restricted to defense evidence that defendant had a partition ratio different than that presumed by the code. General evidence may be offered concerning partition ratio variability.id: 10597
Officer lacked probable cause to search a woman's compact case for drugs after properly detaining her for drunk driving.Officer properly stopped appellant for driving under the influence of alcohol and a sobriety test was lawfully initiated. However, he acted improperly in subsequently opening what appeared to him to be a snuff case (a woman's compact) because it clearly was not a container for alcohol and the officer did not believe that it contained alcohol. That such containers may be used to store narcotics did not justify the search. Moreover, the doctrine of inevitable discovery did not justify the search where the officer's testimony made it abundantly clear that he called for a back up female officer only after he had found the narcotics in the snuff case/compact and arrested defendant.id: 10604
Court's failure to instruct on drunk in public as a lesser related offense of drunk driving was harmless.Appellant pulled into a gas station and drank a wine cooler. After telling the attendant that he had been drinking, the attendant called the police. He was arrested for and convicted of drunk driving. The trial court erroneously refused his instruction on the lesser related offense of being drunk in public. The error was harmless. For the jury to have acquitted on the charged offense and convicted on the related offense, it would have to have found that appellant was not driving a vehicle at the time the effects of the alcohol he admitted drinking, manifested themselves. The jury was properly instructed on what constituted driving and the verdict established they found appellant was driving while under the influence of alcohol.id: 10568
Blood sample drawn without consent was improper after appellant had provided the police with a urine sample.Appellant was lawfully arrested for drunk driving. At the police station he consented to a urine test and provided a sample to the police. Officers later believed a blood sample would provide the most accurate reading of blood alcohol and would also allow them to test for narcotics. Appellant refused the test and the officers restrained him while the lab technician took a blood sample. The Superior Court should have granted the suppression motion. Having already obtained one sample from appellant with his consent, the government did not demonstrate any need to force him to undergo a second intrusion.id: 10558
Drunk drivers subject to a jail sentence are eligible for an electronic home detention program but the probation officer, not the sentencing judge, determines eligibility.Defendants subject to mandatory minimum sentences for driving under the influence sentences may be eligible to participate in the Probation Department's Electronic Home Detention Program. The sentencing court may recommend that such a defendant be considered for the Probation Department's Electronic Home Detention Program through a work furlough referral. The sentencing court may not, however, order such a defendant's acceptance into the program and may not allow the defendant to participate in a home detention program which has not been authorized by the Board of Supervisors.id: 10589
Trial court erred in refusing appellant's request to bifurcate the trial of guilt from the trial on the drunk driving priors.Appellant was charged with driving under the influence of alcohol with three or more priors (Vehicle Code sections 23152 subdivision (a) and 23175). The prior offender status under section 23175 is not an element of the crime but an enhancement. Therefore, the trial court erred in refusing appellant's request to bifurcate the trial of guilt from the trial on the priors. However, appellant's conviction on the substantive charge need not be reversed because he admitted his prior convictions, and they were not revealed to the jury in the trial on the issue of guilt.id: 10628
Updated 9/24/2023Misdemeanor DUI defendants are ineligible for pretrial diversion.Misdemeanor drunk driving defendants are categorically ineligible for Penal Code section 1001.95 diversion by operation of Vehicle Code section 23640.id: 28000
Updated 9/23/2023Misdemeanor DUI’s are not eligible for statutory diversion.Newly enacted Penal Code section 1001.95 allows defendants charged with misdemeanors to be eligible for diversion at the discretion of the judge. However, Vehicle Code section 23640 provides that those charged with driving under the influence are categorically ineligible for diversion. The two statutes can be harmonized, and misdemeanor diversion is unavailable to defendants charged with DUI.id: 27939
Drunk driving under sections 23152(a) and 23152(b) are separate offenses and the two convictions were proper. Defendant was convicted of both driving under the influence of alcohol under Vehicle Code section 23152(a), and driving with a blood alcohol content of .08 under section 23152(b). Contrary to defendant’s claim, these are distinct offenses and the two convictions were proper. id: 27485
Attempted drunk driving is a felony when the defendant has a qualifying prior.Defendant plead guilty to drunk driving with two prior convictions. He later argued the conviction could not be a felony under Vehicle Code section 23550.5 because that statute mentions only completed crimes. However, the trial court properly accepted defendant’s plea to the felony offense. id: 27255
Driving under the influence defendants are not entitled to pretrial mental health diversion under section 1001.36.In 2018, the Legislature enacted Penal Code section 1001.36, making defendants charged with a misdemeanor or felony and who suffer from qualifying mental health disorder generally eligible for pretrial mental health diversion. However, DUI defendants have long been found ineligible for any pretrial diversion. The Legislature did not intend to make DUI defendants eligible for pretrial mental health diversion under section 1001.36.id: 27131
Inconsistencies in drunk driving instructions had no bearing on defendant’s case.Driving under the influence under Vehicle Code section 23152 (a) is a lesser included offense of driving under the influence causing injury under section 23153 (a). CALCRIM 2110, the instruction on the lesser offense provides that the manner in which a person drives is not enough by itself to show that the person was under the influence although it’s a factor to consider. The instruction for DUI causing injury contains no such direction. There is no basis for the distinction. However, any error was harmless where “manner of driving” had no bearing on the case.id: 27089
Defendant was lawfully stopped for driving on a highway with his off-road lights on even though the road was unpaved and lacked a posted speed limit.Defendant was stopped for driving with his off-road-only lights illuminated while on a “highway,” in violation of Vehicle Code section 24411. He argued the stop was unlawful because the unpaved dirt road he was on was not a “highway” as defined in section 24411. However, contrary to defendant’s claim, the provision does not require the road be paved or have posted speed limit signs or other road markings.id: 26505
Officer’s testimony supported the required 15 minute observation before breath tests despite contrary notes on the DS-367 form. Defendant who was arrested for drunk driving, argued his blood alcohol test results were inadmissible because the time entries on the notice indicated the two breath tests were administered before the officer observed him for 15 minutes as required. However, the officer testified that he was aware of the requirement and complied with it, suggesting the notation on the form was just an estimate he provided after he had returned to the station. The dispatch logs supported his claim.id: 26506
A violation of Vehicle Code section 23153 is not a lesser included offense of gross vehicular manslaughter while intoxicated under Penal Code section 191.5 (a) where the offenses involved separate victims.Defendant was convicted of gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5 (a). He was also convicted of drunk driving causing injury under Vehicle Code section 23153. He argued the latter conviction had to be reversed because it was a lesser included offense of the former. However, both convictions were proper where the offenses involved separate victims.id: 26859
The defendant has the burden of proof on the “reasonable manner” issue when a valid search warrant authorizes a blood draw. When blood is drawn from a person arrested for driving under the influence, the Fourth Amendment requires that it be drawn in a “reasonable manner.” The defendant has the burden of proof on the “reasonable manner” issue.id: 25950
An officer may testify as to the significance of a defendant’s performance on an HGN test without separate expert testimony.Defendant was charged with drunk driving but the case was dismissed after the trial court refused to recognize the police officers as drunk driving experts. The ruling was erroneous because HGN testing now satisfies the Kelly test, and so a police officer can use findings from HGN testing as a basis for an opinion that the defendant was driving under the influence of alcohol.id: 25933
If a DUI suspect freely chooses a blood test over a breath test the arresting officer does not need a warrant for the blood draw.A police officer arrested defendant for drunk driving and informed him that he had to submit to a breath or blood test to measure blood alcohol content. The defendant elected a blood test. The officer was then not required to get a search warrant to draw the blood since it qualified as a search incident to arrest.id: 25886
The failure to advise a suspected drunk driver of his statutory right to choose between a blood and breath test does not violate the Constitution.Notwithstanding the statutory directive to advise an arrested suspected drunk driver of the choice between a blood or breath test, if a peace officer advises only regarding a blood test, the test results are admissible at trial provided the arrestee freely and voluntarily consented to the blood test.id: 25653
The prosecution failed to show exigent circumstances justifying the failure to obtain a warrant before drawing the DUI’s suspect’s blood where the officer was engaged in routine investigation before the blood draw.The drunk driving suspect was injured in an accident and taken to the hospital where police conducted a warrantless blood draw to determine his blood alcohol content. In Missouri v. McNeely (2013) 569 U.S. 141, the court held that such warrantless searches were unreasonable absent exigent circumstances. The prosecution did not establish exigent circumstances for bypassing the warrant requirement where the investigating officer spent time interviewing witnesses at the accident scene, communicated with the victim’s family at the hospital and spoke with defendant while awaiting medical care. There was no evidence shown as to why the officer could not have obtained a warrant before the blood draw. The error was harmless where other evidence would have shown an elevated blood alcohol content even if the blood test evidence had been suppressed.id: 25659
The officer’s failure to explain the consequences of refusing a chemical test did not render his consent to a blood test involuntary. Defendant was arrested for suspected drunk driving. He argued that because he was not informed by police that he could object to chemical testing, his consent to a blood test was not voluntary. However, the officer told defendant that he was required to submit to a blood or breath test. While the statement was incomplete by failing to mention the consequences of noncompliance, it was not false and there was no showing of an intent to deceive. Defendant freely consented to the blood test and the trial court properly found the consent was voluntary.id: 25664
Military diversion is not available for defendant charged with drunk driving.Vehicle Code section 23640 prohibits military diversion pursuant to Penal Code section 1001.8 for defendants charged with driving under the influence offenses.id: 24849
Defendant could not challenge the forced blood draw given his earlier probation condition that required he submit to such a procedure.Defendant charged with drunk driving moved to suppress the results of a blood draw taken without his consent. However, defendant was on probation at the time, and as a condition of that probation, acknowledged that he had no right to refuse to a chemical test if arrested for drunk driving.id: 26162
Vehicle Code section 41403 does not permit a defendant to move to strike a prior conviction in a drunk driving case based on the ineffective assistance of counsel.In Garcia v. Superior Court (1997) 14 Cal.4th 953, the court found that a defendant could not move to strike a prior conviction alleged as an enhancement, on the basis of ineffective assistance of counsel in the prior case. Contrary to defendant’s claim, Vehicle Code section 41403, which provides procedural rules for authorized challenges, does not allow a different result.id: 25207
The trial court did not err by refusing to bifurcate trial on the DUI misdemeanors.Defendant was convicted of felony drunk driving and misdemeanor driving with a license suspended for prior DUI convictions. He argued the trial court erred by refusing to bifurcate trial of the misdemeanors from the felonies to preclude evidence of prior DUI convictions during the guilt phase. However, the trial court lacks jurisdiction to bifurcate properly joined charges where a prior conviction is an element of one of the charges. Assuming the court had discretion to grant the request, there was no error in denying it.id: 25134
Evidence supported defendant’s drug DUI where the methamphetamine he had ingested the day before caused him to fall asleep at the wheel.Evidence supported the finding that defendant was under the influence of methamphetamine for purposes of his drug DUI conviction. He had ingested methamphetamine the day before and fell asleep at the wheel causing a serious accident. Sleepiness is a symptom of methamphetamine withdrawal and he experienced sleepiness because he had ingested methamphetamine.id: 24433
A defendant may be convicted of Vehicle Code section 23153, subdivisions (a) and (b) based on a single incident but he or she may not be punished for both.A defendant may be properly convicted of violating both subdivisions (a) and (b) of Vehicle Code section 23153 because neither describes a lesser included offense of the other. However, the court may not impose a sentence on both counts, and the court should have stayed the imposition of one term.id: 23934
Drunk driver was entitled to credit against his sentence for the time his license had been suspended by the DMV but not for the period where his license had been restricted.Defendant was arrested for drunk driving and the DMV suspended his driver’s license for four months after a hearing. 51 days later, he applied for and received a restricted license allowing him to drive to work and classes. He was later convicted of the drunk driving offense in court. While he was entitled to full credit for the time his license was suspended by the DMV (51 days) he was not entitled to credit for the time the licence was merely restricted. Defendant was not treated in an arbitrary and capricious way simply because of the delay between the DMV suspension and the criminal conviction. id: 23947
Defendant voluntarily consented to the warrantless blood draw at the police station even though the officer partially misled him regarding the consequences of a refusal.Defendant argued the forced blood draw following his drunk driving arrest was unlawful under Missouri v. McNeely (2013) 133 S.Ct. 1552. However, defendant consented to the blood draw and his consent was voluntary even though he gave it in response to a partially misleading claim about the consequences of his refusal. And the blood was drawn in a reasonable manner even though done at the police station rather than a medical facility. Finally, even if defendant’s consent was invalid, the good faith exception to the exclusionary rule applied because the police reasonably relied on binding precedent to support the warrantless blood draw.id: 24008
Defendant was not eligible for a local jail term under the Realignment Act of 2011 following his conviction for drunk driving with a prior drunk driving conviction.Defendant was sentenced to state prison following his plea of drunk driving with a prior, and providing false information to the police officer. He argued on appeal that he was eligible for sentencing to county jail pursuant to the realignment legislation. However, the law requires that a conviction for drunk driving with a prior (Vehicle Code section 23550.5) be punished with a prison sentence absent circumstances not presently applicable. He was therefore not eligible for local custody under the Act.id: 23037
The trial court did not improperly exclude expert testimony challenging the reliability of breath-alcohol testing machines.The trial court did not err by excluding expert testimony challenging the reliability of breath alcohol testing machines. The excluded evidence included testimony that breath-testing machines are unreliable because expired breath contains only alcohol that has been absorbed from the upper airways and hence the machines fail to sample and analyze the concentration of alcohol contained in alveolar, deep lung air, and proposed testimony that breath testing machines are unreliable because other physiological factors may affect the transmission of alcohol from the bloodstream to the deep portions of the lungs and then through the exhalation process.id: 23391
Blood tests given to suspected drunk drives were reasonable under the Fourth Amendment where defendants chose the blood tests, they were performed by trained technicians, and there was no pain during the tests.Defendants were stopped for drunk driving and advised that under the implied consent law they were required to submit to a chemical test. Defendants opted for a blood test. In each case the blood was drawn in a reasonable manner for purposes of the Fourth Amendment. The unrebutted testimony of the police officers showed the defendants chose the blood test over a breath test, the blood was drawn by a person the officer believed to be a trained phlebotomist or blood technician and there was no pain or discomfort during the procedures.id: 23301
The trial court did not err in using defendant’s prior DUI manslaughter conviction both to elevate his current DUI to a felony and to serve as a strike. The trial court did not err by using defendant’s prior drunk driving manslaughter conviction both to elevate his current drunk driving conviction to a felony and to serve as a strike. Moreover, there was no equal protection violation in allowing this dual use even though the statute elevating the current DUI to a felony as a result of DUI manslaughter does not also elevate a current DUI to a felony if the prior was for DUI second degree murder. id: 23374
A passenger who grabs the steering wheel and thereby takes sufficient control to cause a crash is “driving” the car within the meaning of the Vehicle Code.While intoxicated and riding in the front passenger seat of the car, defendant grabbed the steering wheel and caused a crash. He was convicted of drunk driving causing injury but argued he was not the driver of the car. However, because he assumed physical control of the car, he was driving it for purposes of the drunk driving statutes.id: 22094
Defendant was not prejudiced by the exclusion of the partition ratio evidence regarding the PAS breath test results. Defendant argued the trial court improperly excluded all partition ration evidence which was incorrect as to the PAS breath test results at his drunk driving trial. However, he was allowed to show the regulatory requirements were not met in terms of timing before the PAS was administered. He could show no prejudice regarding the per se DUI count by excluding the partition ration evidence in this respect.id: 22285
There was no confrontation clause violation where the witnesses relied on the records of the officer who tested the Breathalyzer to establish the reliability of the machine.Defendant, in a drunk driving trial, argued the trial court erred in admitting his Breathalyzer test results, because the prosecution’s witnesses relied on hearsay in forming their opinions about the accuracy of those results. He argued there was a confrontation clause violation because Officer Rowe, who tested the machine, did not testify and the testifying officers relied on his records to establish the reliability of the subject machine. However, the statements contained in Rowe’s accuracy records were nontestimonial and, therefore the court did not err in allowing the testifying officers to rely on them in forming their opinions. id: 21603
Evidence supported the conviction of driving under the influence of meth where the drug was described as one that could impair driving ability and defendant was agitated, paranoid and impaired when stopped. Evidence supported defendant's conviction for driving under the influence of methamphetamine. The drug recognition expert essentially testified that methamphetamine is a drug that could impair driving ability. Moreover, when stopped, defendant was unsteady and seemed impaired during the field sobriety tests.id: 21623
Defendant failed to show the sobriety checkpoint did not substantially comply with the factors set forth in Ingersoll v. Palmer. The drunk driving defendant argued the sobriety checkpoint was unconstitutional because it failed to comply with certain factors set forth in Ingersoll v. Palmer (1987) 43 Cal.3d 1321. However, defendant did not show the checkpoint lacked supervisory decisionmaking where it was located at a different location than the media advisory provided. Moreover, the officer’s testimony that he was unaware of the mathematical selection process for stopping vehicles did not show the absence of such a process.id: 21571
Collateral estoppel prevented the jury at the retrial on the drunk driving charge from considering the issue of whether defendant drove with a BAC of .08 or higher where he was acquitted of that charge at the first trial.At defendant's drunk driving trial, the jury acquitted him of driving with a blood alcohol level of .08 or more (Vehicle Code section 23158, subd.(b).) but could not reach a verdict as to whether he drove under the influence (section 21358, subd. (a)). Collateral estoppel principles were violated at the retrial when the jury was permitted to consider whether defendant drove with a .08 or grater blood alcohol level. Moreover, the jury should not have been instructed regarding the permissive presumption arising from a .08 or more alcohol level and should have been instructed to presume his blood alcohol was less than .08 while driving.id: 20232
Enhanced drunk driving penalty applies when the “prior conviction” for vehicular manslaughter while intoxicated arises from conduct occurring after the commission of the present DUI offense. Vehicle Code section 23550.5 provides an enhanced penalty in drunk driving cases where the defendant had a prior drunk driving conviction committed within the previous 10 years. The enhanced penalty still applies when an accused is charged with drunk driving and subsequently commits vehicular manslaughter while intoxicated before the drunk driving offense is adjudicated. id: 20621
The DMV hearing officer did not err by continuing the license suspension hearing to allow a CHP officer to testify that he was on duty at the time of the incident.The hearing officer for the Department of Motor Vehicles in a drunk driving administrative proceeding did not abuse her discretion in granting a continuance of the hearing to allow the DMV to present an officer to testify that he was on duty at the time of the incident. The matter had been questioned by the defendant at the hearing, and was an unexpected development on a fairly small matter. There was no lack of diligence by the DMV. Moreover, the suspension of defendant’s license was stayed until after the DMV issued its findings. id: 20521
Application of the amended section 23550 which increased the “look-back” period of drunk driving priors from seven to 10 years did not violate ex post facto or due process. Defendant was convicted of violating Vehicle Code section 23550 for a fourth drunk driving conviction within a 10 year period. Section 23550 was amended in 2004 to extend the “look-back” period from seven to ten years. The oldest of defendant’s priors was more than seven although less than ten years old at the time the amended statute went into effect. Contrary to defendant’s argument, application of the amended stature did not violate ex post facto or due process provisions. id: 20368
Drunk driving arrest was not unlawful where the arresting officer drove an unmarked patrol car.Defendant argued his drunk driving arrest was unlawful because the officer who pulled him over was driving an unmarked patrol vehicle. Contrary to defendant’s claim, there was no violation of Vehicle Code section 40800 which applies to traffic officers engaged in traffic enforcement. Even if the officer qualified as a “traffic officer” under section 40800, the sanction for the violation, excluding the officer’s testimony in a speed-related case, would not invalidate the present arrest.id: 20367
Arresting officer need not have direct and unbroken eye contact for 15 minutes with a suspected drunk driver before administering a breath test.The Department of Motor Vehicles suspended defendant's driver's license after finding he was driving with a high blood alcohol content. The trial court thereafter granted defendant's writ of mandate based on the arresting officer's failure to comply with the requirement of a 15 minute period of continuous observation before administering a breath test. (Cal. Code Regs. title 17, �1219.3.) However, the regulation does not require direct and unbroken eye contact for 15 minutes so long as the officer remains present with the subject and is able to use all of his or her senses in making the determination . The trial court's finding, based on a misinterpretation of regulation 1219.3, was erroneous as a matter of law.id: 17188
Section 1219.3 does not require a single person observe the suspected drunk driver for 15 minutes prior to the breath test.California Code of Regulations, title 17 section 1219.3 does not require a single person to observe the breath test subject for 15 minutes prior to the test. The continuous observation requirement can also be met when two or more observers split the observation of the test subject.
id: 17687
Virginia drunk driving conviction should have been given reciprocal effect in California.Defendant was convicted of drunk driving in California. The DMV then suspended his driver's license. The order cited an earlier Virginia drunk driving conviction as a basis for the suspension. The trial court erred by then granting defendant's writ petition refusing to treat the Virginia offense as a drunk driving conviction under California law. The out-of-state conviction should have been given reciprocal effect in California. id: 17598
Seizure of blood from a drunk driver was proper based on the subsequent contemporaneous arrests.Following defendant's plea of guilty to felony drunk driving and vechicular manslaugher, defendant argued that his blood was illegally seized because the seizure was not preceded by a formal arrest. However, although defendant had not been placed under arrest prior to his blood being drawn, the seizure was not unlawful simply because the arrest followed, rather than preceded it, as long as the one was substantialy contemporaneous with the other.id: 10617
An officer may draw an opinion as to the defendant's intoxication based upon his own experience with the horizontal gaze nystagmus test.An officer with sufficient experience may testify, based on his or her own experience with the relationship between the horizontal gaze mystagmus test and alcohol intoxication, to an opinion that a subject was or was not under the influence.id: 10555
Application of a law extending the period a prior drunk driving conviction could be used to enhance a sentence did not violate due process or ex post facto principles.Defendant pled guilty to drunk driving at a time when a defendant convicted of a second offense within seven years received increased punishment. The statute was later amended to extend the seven years to ten years. Defendant reoffended more than seven but less than ten years later. The amended statute may be applied to defendant without violating ex post facto or due process principles.id: 19934
The corpus delicti for the drunk driving offense was established by evidence showing an intoxicated person was standing outside of a car that was facing in the wrong direction with its engine running.Defendant was convicted of several drunk driving related counts. He argued the prosecutor did not present sufficient evidence of the corpus delicti independent of his statements. However, the corpus delicti of the offense was established by evidence that a car was parked facing the wrong direction with its engine running and headlights on, and where there was a person seated in the passenger sear with her seatbelt buckled and another intoxicated person outside of the car.id: 19917
Any abuse of discretion in excluding evidence of drunk driving defendant's personal partition ration was harmless given the strong evidence that he was under the influence of alcohol. Defendant argued the trial court, in his drunk driving trial, erred by excluding partition ratio evidence. The record did not show whether he sought to introduce evidence of general variability of partition ratios or his own partition ratio. If it was the former there was no error. If it was the latter the court's ruling would be an abuse of discretion. However, any error was harmless where there was strong evidence that, regardless of his blood alcohol level, defendant was under the influence.id: 19864
Ohio traffic citations showing appellant was weaving and driving with a suspended license were sufficient to show he was "driving" under California law.The DMV provided sufficient evidence that defendant's Ohio conviction was based on conduct that if committed in California would violate the drunk driving statute - Vehicle Code section 23152. The traffic citations issued in that case indicated defendant was "weaving outside the marked lines" and "driving" with a suspended license. This was sufficient to show his out-of-state conviction for "operating a vehicle while under the influence of alcohol involved "driving."id: 19871
The evidence supported the trial court's finding that defendant refused a chemical test following a drunk driving arrest where he selected a breath test but refused to cooperate.The trial court upheld the DMV's suspension of defendant's driver's license following a drunk driving incident. Defendant argued the evidence was insufficient to support the trial court's finding that he refused to complete a chemical test to measure blood alcohol content. However, defendant agreed to a breath test but then failed to cooperate. Contrary to
defendant's claim, the officer was not thereafter obligated to offer him a new choice of tests.id: 19746
The trial court did not err in finding the victims of gross vehicular manslaughter while intoxicated were "vulnerable" for purposes of probation denial and "particularly vulnerable" as an aggravating factor when selecting the prison term.Defendant pled guilty to one count of gross vehicle manslaughter while intoxicated in violation of Penal Code section 191.5, subd.(a). The trial court thereafter did not err in denying her
request for probation based on the fact that the victims were vulnerable. Moreover, the court also did not err in finding the victims were "particularly vulnerable" as an aggravating factor when imposing a prison term.id: 19572
Defendant's drunk driving offense could be enhanced with Nevada priors even though defendant did not have a right to a jury trial on those petty offenses.Defendant argued his prior Nevada convictions could not be used to enhance his current California drunk driving offense under Vehicle Code section 23546, because he did not have a right to a jury trial in the Nevada proceedings. However, since there is no federal constitutional right to a jury trial for petty offenses, and defendant's Nevada priors were for petty offenses,
defendant's sentence for the current offense was properly enhanced by those priors.id: 19262
An anonymous and uncorroborated tip regarding a possibly intoxicated highway driver provides reasonable suspicion sufficient to justify a temporary detention to investigate further. Police may conduct a limited traffic stop to confirm an
officer's reasonable suspicion of drunk driving following an uncorroborated phone-in tip that accurately describes the vehicle and its location and relates that a possible intoxicated person is behind the wheel, "weaving all over the roadway."id: 19122
PAS test results were properly admitted where the evidence showed the device was functioning properly and was administered by a qualified operator.Defendant, who was convicted of drunk driving, argued the trial court erred when it denied his motion to exclude the results of his preliminary alcohol screening (PAS) test. While the test solution container's label showing the content was .10 percent alcohol was hearsay, it was properly admitted to explain the basis of the opinion of the expert witness who testified as to the accuracy of the PAS device. Moreover, the PAS test results were properly admitted where the device was functioning properly, and the test was done by a qualified operator. That he did not observe defendant for 15 minutes before administering the test, and administered the test once, did not render the result inadmissible, but merely went to its weight.id: 18791
There was no equal protection violation where suspected drunk driver's blood was drawn by an unauthorized person unlike other drunk driving suspects around the state.Defendant was arrested for suspected drunk driving and argued for suppression of the blood test results since the tests were administered by phlebotomists rather than licensed persons authorized by Penal Code section 23158, as it existed at the time. The courts had previously held the use of phlebotomists did not violate due process or the Fourth Amendment. Defendant here argued an equal protection violation in that he was treated differently than other drunk driving suspects arrested elsewhere in the state. However, there was no equal protection violation where defendant was not subjected to prosecution on an arbitrary and invidious basis, and because the means employed in prosecuting him was not chosen on an arbitrary or invidious basis.id: 18539
The blood draw was not unreasonable after defendant had refused both the blood and breath tests.Defendant argued the blood draw was unreasonable because he had stated his preference for a breathalyzer test. However, defendant was originally given the option of either test but refused both. Once a defendant refuses both tests he may not later complain about the refusal to accommodate his preference.id: 17912
Suppression of blood test results was not required simply because the state used a phlebotomist to withdraw the blood in violation of section 23158.Defendant argued that San Diego law enforcement agencies knowingly and systematically violate Vehicle Code section 23158 by using phlebotomists to conduct blood draws, and the trial court should have suppressed the results of the blood alcohol test as a sanction for that conduct. However, the blood draw did not become unreasonable for purposes of the exclusionary rule merely because it was effected in violation of the statutory requirement.id: 17913
Speed trap exclusionary rules do not apply to drunk driving cases.The Commissioner held defendant's initial stop for speeding was the result of an illegal speed trap and all evidence obtained thereafter was inadmissible under Vehicle Code sections 40803 and 40804. However, the speed trap exclusionary rules set forth in section 40803 and 40804 only apply when a defendant is charged with an offense involving the speed of the vehicle. The statutes did not apply to the present case in which the defendant was charged with drunk driving.id: 17786
Provision permitting arresting officer to take a chemical test of a suspected drunk driver is constitutional even though PAS test results are now admissible.Prior to defendant's arrest, he consented to a preliminary alcohol screening test (PAS) that measured his blood alcohol level in the breath sample provided at .09 percent. After the arrest he was required to submit to a blood test which provided a measurement of .12 percent. Defendant argued that since PAS results are admissible under the same law, Vehicle Code section 23612 which permits the arresting officer to take another test, is unconstitutional, because the second test is not necessary to preserve the blood alcohol evidence. However, 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.id: 17686
Court did not err in denying the suppression motion in the drunk driving case where the phlebotomist who drew the blood did not meet the statutory requirements. The drawing of blood in a drunk driving case by a phlebotomist who did not qualify under Vehicle Code section 23158, subd.(a) did not amount to a Fourth Amendment violation, nor did such violation support exclusion of the blood test evidence under either the California or federal constitutions. As to proof of the manner of drawing the blood, the record showed the draw was made by a person trained in venipuncture and done in the same manner as blood is regularly drawn in ordinary blood tests. It was therefore drawn in a medically approved manner within the meaning of Schmerber v. California (1966) 384 U.S. 757. Finally, introducing the test results did not result in a violation of due process.id: 17591
Trial court did not err in admitting into evidence records and testimony of defendant's prior participation in a drinking driver program.Defendant was convicted of gross vehicular manslaughter and driving under the influence of alcohol. He argued the court erred in admitting into evidence records and testimony concerning his prior participation in a drinking driver program. However, Health and Safety Code section 11977, which provides privacy for drug abuse treatment programs, does not apply to DUI programs. Moreover, since the evidence was relevant, and excludable under the federal constitutions, it was properly admitted.id: 17375
Failure to regularly test the preliminary alcohol screening device as required did not require exclusion of the evidence.In a drunk driving trial, the prosecution presented the results of a preliminary alcohol screening test (Alco Sensor IV) showing defendant's breath registered a blood alcohol content of .181 percent. The defense argued the test results were not admissible because the California Highway Patrol failed to comply substantially with title 17 of the California Code of Regulations. However, the absence of substantial compliance with the regulations did not justify blanket exclusion of the PAS test results. Instead, the laxity goes to the weight of the evidence.id: 16879
CHP officer did not violate the Fourth Amendment by requiring defendant to take a blood alcohol test after defendant frustrated the officer's attempt to conduct a breath analyzer test.The evidence showed the officer terminated defendant's breath test after defendant failed to follow the officer's instructions by not sealing his lips around the tube. Defendant was blowing air out the side of his mouth and not into the machine. This happened several times and the machine did not record a valid blood alcohol content reading. Thereafter, the officer did not violate the Fourth Amendment by requiring defendant to take a blood alcohol test at a hospital.id: 16693
Corpus delicti for felony drunk driving was established where it was determined that no one in the vicinity but defendant could have been the driver of the car.Defendant argued his statement to the officer that he was the driver of the car should not have been admitted since the corpus delicti for the drunk driving offense was never established. When the officer arrived on the scene, defendant was approximately one-quarter mile away from the car. However, there were no other cars and no other pedestrians in the area. Moreover, there was marsh mud on the defendant and the left front panel of the car; the keys to the car were in his pocket; the lug nuts to the detached wheel were in his pocket; and the car was registered to someone living at his address. The circumstances permitted more than a reasonable inference that defendant was the driver of the car.id: 15515
Drunk driving statute for persons under age 21 is not void for vagueness in failing to define "affected by" since the law also refers to being under the influence which is sufficiently defined.Defendant was convicted of gross vehicular manslaughter while intoxicated under Penal Code section 191.5, based on the underlying offense of Vehicle Code section 23140 - person under 21 years of age driving with a blood alcohol concentration of 0.05. He argued section 23140, and therefore, section 191.5, are fatally vague since they failed to define the phrase "affected by" an alcoholic beverage. Whatever affected by may mean, the section places persons under 21 clearly on notice they will be liable under the section if they drive while under the influence, a term defendant acknowledges is sufficiently defined.id: 15519
Enhancement for multiple drunk driving offenses applied where the fourth conviction predated the triggering violations.Drunk driving 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. (Vehicle Code section 23175, subdivision (a).) The Legislature intended to subject repeat offenders to enhanced penalties regardless of the order in which the offenses were committed and the convictions obtained. Moreover, imposition of an enhanced penalty on a fourth DUI conviction for an offense predating the triggering violations does not violate ex post facto principles, so long as the commission of the offense underlying the section 23175, subdivision (a) charge occurred after the statute's 1984 amendment became effective.id: 15520
The trial court properly imposed the section 12022.7 enhancement following defendant's conviction of drunk driving causing injury despite the enhancement options in the Vehicle Code.Defendant was convicted of drunk driving causing injury under Vehicle Code section 23153, subd.(b), during the commission of which felony he personally inflicted great bodily injury under Penal Code section 12022.7, subd. (a). He received a three year prison term under Vehicle Code section 23180 and a stayed three year term for the section 12022.7 enhancement. He argued that since the Vehicle Code specifically provides enhancements for drunk drivers who cause injury, imposition of the traditional GBI enhancement was improper. However, because the Legislature intended to give section 12022.7 broad application, the court properly imposed the enhancement.id: 15524
Provision making it unlawful for a young person to drive with a blood alcohol level of 0.05 or more does not violate equal protection.Young people who drink and drive are a greater accident risk than older people and they are not similarly situated. Therefore, Penal Code section 191.5, subdivision (a) (gross vehicular manslaughter while intoxicated) does not deny equal protection in making liable persons under 21 years who drive with a blood alcohol concentration of 0.05 and all other drivers when they drive with a 0.08 concentration.id: 15276
Results from Preliminary Alcohol Screening test are admissible as substantive evidence of intoxication.Defendant argued the Preliminary Alcohol Screening tests may be used only as field sobriety tests, not as substantive evidence of intoxication. However, field sobriety tests may also serve as substantive evidence of intoxication.id: 14890
Legislature's failure to expressly include a former Vehicle Code section to felony drunk driving provision did not preclude its application where the oversight was obvious and there was no substantive change in the law.Vehicle Code section 23550.5 became effective on July 1, 1999. It provided that a drunk driving conviction under section 23152 or 23153 are felonies if they occurred within 10 years of a prior violation of section 23552 that was punished under section 23550. However, defendant's 1992 prior conviction could not have been punished under section 23550. Rather, it was punished under former section 23175. Because the statute in effect when defendant committed his new crime did not refer to the former section 23175, the trial court sustained defendant's demurrer. Thereafter, the Legislature amended section 23550.5 to include convictions punished under former section 23175. The enactment demonstrates the omission of former section 23175 from the original section 23550.5 was merely an oversight. Interpreting that provision to include defendant's prior conviction did not violate ex post facto or due process principles.id: 14804
Horizontal gaze nystagmus test is generally accepted in the scientific community.Defendant argued the trial court erred in allowing a police officer to use findings from a horizontal gaze nystagmus (HGN) test as a basis for his opinion that defendant was driving while intoxicated. However, a cross-section of the relevant, qualified scientific community has accepted HGN testing procedures as a useful tool when combined with other tests and the observations in reaching an opinion whether a defendant was intoxicated. Moreover, it was not an error to allow an officer, without scientific qualifications, to form opinions concerning intoxication based on nystagmus findings.id: 10599
Instruction that blood alcohol levels under 0.05 percent means defendant was not under the influence of alcohol was not required where it was the combination of drugs and alcohol that was alleged to make him intoxicated.Defendant challenged the court's failure to instruct the jury sua sponte in the language of Vehicle Code section 23155, subdivision (a)(1), which creates a rebuttable presumption in a criminal prosecution that a tested blood alcohol level of less than 0.05 percent means the defendant was not under the influence of alcohol at the time of the offense. However, the prosecution's theory of the case was that defendant was driving under the combined influence of alcohol and drugs. Since it is the combination that was alleged to have made defendant intoxicated, the level of alcohol alone in his blood is irrelevant.id: 10600
People established prima facie case that defendant was the driver where he was found behind the car bleeding and by himself after the accident.After a two car collision defendant was seen standing behind one of the cars. His head injury and the glass on his person tied him to the damage inside the driver's side of the car. His lack of leg injuries discounted the possibility that he was in the front passenger seat which was pushed up to the dash board. No one else was seen near the car and no one else was injured. This constituted sufficient prima facie proof that defendant was the driver of the car.id: 10609
Prior drunk driving convictions were not an element of new offense and it was not improper to consider them in denying probation.Defendant was convicted of driving under the influence with prior convictions. Contrary to defendant's claim, prior convictions under Vehicle Code section 23175 are not elements of the offense but facts enhancing punishment. It was therefore permissible to rely on the priors in denying probation.id: 10611
Proceeding with drunk driving charges following the DMV license suspension did not violate double jeopardy.Defendants were charged in the municipal court with drunk driving. At the same time the Department of Motor Vehicles administratively suspended their drivers' licenses for the same conduct. The superior court erred in ordering the criminal charges dismissed because proceeding with the criminal charges after the licenses were suspended by the DMV did not violate double jeopardy principles.id: 10612
Prosecutor's failure to state facts indicating appellant's intoxication during wet reckless plea proceedings did not preclude use of those pleas to enhance subsequent drunk driving convictions.Appellant admitted the two convictions in issue were wet reckless pleas. He argued that the prosecutor's failure at the time of the plea to orally state the facts tending to prove intoxication means that this particular type of wet reckless conviction cannot be used to enhance his sentence. However, where a defendant is properly advised of the consequences of a plea to a wet reckless charge, the resulting conviction may be used for the purpose of enhancing subsequent penalties for recidivision, despite the prosecutor's failure to orate such words as breath test, objective symptoms, or odor of alcohol in the factual statement which Vehicle Code section 23103.5 specifies.id: 10613
Steering the car from the passenger's seat constitutes driving for purposes of the drunk driving statute.Minor was found in violation of Vehicle Code section 23153, subd. (a), drunk driving and causing injury. She argued that she was not driving the car within the meaning of that provision because while she was steering the wheel from the front passenger' seat the man in the driver's seat operated the brakes and accelerator. However, she was in control of the vehicle and her conduct constituted driving for purposes of the instant provision.id: 10618
Substantial evidence including defendant's drinking and running of two stop signs supported the finding of driving under the influence despite the low blood alcohol content.Defendant's blood alcohol content was between .04 and .07 percent at the time of the accident. However, the evidence supported a finding that defendant was driving under the influence of alcohol at the time of the accident. He admitted drinking two beers at a bar before driving to the church to pick up his sister. While sitting in the car he drank another beer. He then ran two stop signs before colliding with another vehicle. His failure to stop or attempt to brake were inconsistent with sober driving. Moreover, an investigating officer observed his bloodshot eyes, difficulty balancing and the odor of alcohol on his breath. Finally, the rebuttable presumption of Vehicle Code section 23155, subdivision (a) that a person is not under the influence if his or her blood alcohol level is .05 percent or less at the time of the test was sufficiently rebutted by the summarized evidence.id: 10619
Taking suspected drunk driver's blood sample at the jail without his consent by a licensed clinical technologist, was constitutionally permissible.Appellant was arrested for drunk driving. At the police station, the officer requested that a licensed clinical technologist withdraw a blood sample from appellant. Without appellant's consent, but without force, the technologist took the sample using a standard procedure and materials obtained from a local hospital. The lack of appellant's consent did not make the seizure unreasonable. Moreover, withdrawal of the blood at the jail rather than the hospital was not unreasonable. Finally, the seizure was not unreasonable per se because this was an unaggravated case, that is, a simple non-injury, non-accident driving under the influence arrest.id: 10620
The trial court did not err in finding evidence of the inaccuracy of the DUI partition ratio irrelevant and such holding did not violate due process or the confrontation clause.The 1991 amendment to Vehicle Code section 23152, subdivision (b), eliminated the DUI partition ratio of converting units of alcohol per liter of breath into the current standard of .08% blood alcohol per milliliter of blood. The intent of the Legislature was to define drunk driving in terms of the concentration of alcohol in the breath when breath analysis is used. The trial court did not err in holding that evidence of the inaccuracy of the partition ratio, when applied to defendant, was irrelevant. Moreover, preventing defendant from adducing evidence of the variability between blood and breath-alcohol measurements did not violate due process or confrontation clause principles. The statutory scheme under the 1991 amendment is for the blood alcohol ratio to apply when a blood test is used and for the breath alcohol ratio to apply when the breath test is used, regardless of their conversion values. Since defendant was not precluded from challenging the breath analyzer there was no constitutional violation.id: 10624
There is no need to put a conscious drunk driving suspect under arrest before extracting his blood.If there is probable cause to believe that a person committed driving under the influence of alcohol, the taking of such person's blood is valid regardless of whether that person is first formally placed under arrest.id: 10626
Trial court did not abuse its discretion in admitting evidence of a preliminary alcohol screening test at defendant's drunk driving trial.Defendant argued reversal of his drunk driving conviction was required due to the improper admission of the results of the preliminary alcohol screening (PAS) test administered to him at the scene of his arrest. A PAS device is a breath testing instrument used to determine either the presence or concentration of alcohol in a person's blood. Such device may be used by police, but is not required in order to make a preliminary determination of sobriety prior to arrest. A PAS test is differentiated from mandated chemical testing of a suspect's blood alcohol level after a lawful arrest under the implied consent law. Contrary to defendant's claim PAS test evidence is admissible subject to the trial court's Evidence Code section 352 discretion.id: 10627
Trial court properly excluded evidence concerning the blood alcohol/breath alcohol partition ratio.Defendants were convicted of drunk driving under Vehicle Code section 23152, subd. (b). They argued the court erred in excluding evidence concerning the variability of the partition ratio used to convert breath alcohol findings to their blood alcohol equivalents. They claimed the offense is defined by blood alcohol level and unless the partition ratio is an improper conclusive presumption, they should be allowed to present evidence concerning the imperfections of the ratio. However, the Legislature in creating section 23152, subd. (b), has determined that there is, given the inherent variability of human physiology and the limitation on testing methods, sufficient equivalence between the presence of .08 grams of alcohol per 100 milliliters of blood and the presence of .08 grams of alcohol per 210 liters of breath such that it is reasonable to treat them as the same. Conviction is therefore not dependant on a conversion of a breath alcohol finding to its blood alcohol equivalent and evidence concerning such a conversion is irrelevant.id: 10630
Violating mandatory seat belt law satisfies the neglect of duty element of drunk driving causing injury provision.Defendant's failure to ensure all his adult passengers were wearing a safety belt, which is a violation of the mandatory seat belt law (Vehicle Code section 27315, subdivision (d)(1)), may satisfy the neglect of duty element within section 23153, the statute which defines the felony offense of driving under the influence and causing injury.id: 10631
Defendant's arrest in her house two hours and fifteen minutes after the nearby accident was supported by reasonable cause.Evidence supported the trial court's finding there was reasonable cause to arrest defendant for drunk driving. Defendant's home was a relatively short distance from the accident. The accident occurred in a remote area, involved no injuries, and the responding officers were delayed by other incidents. Defendant admitted she was driving. She showed the usual signs of intoxication and denied drinking after the accident. Her arrest two hours and fifteen minutes after the accident and in the neighborhood where it occurred was not unreasonable as a matter of law.id: 10572
Determination in the criminal proceeding that the drunk driving arrest was unlawful did not preclude relitigation of the issue in the administrative proceeding.A determination in a prosecution that a defendant had been illegally arrested for driving under the influence did not preclude relitigation of the same question in the DMV's administrative proceeding to suspend the license. Such a dismissal is not the equivalent of an acquittal since there was no judicial determination in defendant's favor regarding the factual elements. Moveover, Penal Code section 1538.6, subd. (d), does not itself prohibit relitigation of the legality of the arrest in the administrative proceeding.id: 10574
Drunk driver could have been arrested for public intoxication in the officer's presence and forced to submit to a breath test.Defendant argued that his breath test results should have been suppressed because warrantless misdemeanor arrests are permissible only if the offense is committed in the officer's presence and the officer who arrested defendant for drunk driving did not see him drive. However, defendant could have been arrested for public intoxication (Penal Code section 647, subd. (f)), which occurred in the officer's presence, and on that basis could have been required to submit to a breath test.id: 10587
Drunk driver is not entitled to conduct credits for time spent in an alcohol treatment center.Appellant was convicted of drunk driving under Vehicle Code section 23152. He was entitled to custody credits for actual time served in an alcohol rehabilitation program as a pretrial condition to release on his own recognizance, but he was not entitled to conduct credits under Penal Code section 4019. That provision applies only to time in custody in specified places and does not include alcohol treatment programs.id: 10588
Felony drunk driving can constitute a serious felony for purposes of a section 667 enhancement.Appellant plead guilty to felony drunk driving after broadsiding the victim's car and accelerating after the victim's car was pinned against the wall. He argued the offenses of drunk driving causing injury (Vehicle Code section 23153, subd. (a)) and hit and run with injury (Vehicle Code section 20001, subd. (a)) are not serious felonies within the meaning of Penal Code section 667, subd. (a). Offenses involving drunk driving can come within the categories of serious felonies for purposes of the five year enhancement. However, the complaint to which appellant plead guilty did not allege either that appellant inflicted great bodily injury or that he intentionally used his vehicle as a weapon. The omission was waived by appellant's failure to challenge the sufficiency of the complaint prior to entering his plea.id: 10596
1991 amendment to drunk driving statute does not violate equal protection since any arrestee has the same right as any other member to elect a breath or a blood test.The 1991 amendment to Vehicle Code section 23152, subdivision (b) eliminated the DUI partition ratio of converting units of alcohol per liter of breath into .08% blood alcohol per milliliter of blood. Defendant argued that to interpret the 1991 amendment as creating a new offense of excessive breath alcohol would violate equal protection because similarly situated individuals would be held to different standards of conduct based on the arbitrary factor of which test was given. Under the 1991 amendment, the persons similarly situated are drinking drivers. The amendment does not treat any member of that group differently. Any member of that group has the same right as any other member to elect a breath test or a blood test.id: 10544
A developmentally disabled defendant charged with drunk driving is ineligible for diversion.Vehicle Code section 23202 and 23206, which prohibit diversion in any driving under the influence case, do not make an exception for a developmentally disabled defendant.id: 10546
A drunk driver may be charged with a felony even though the convictions for the three prior offenses occurred before the amendment making the fourth offense a felony.Vehicle Code section 23175, as amended in 1988 and effective January 1, 1989, provides that a person who is convicted of drunk driving within seven years of three or more previous offenses may be convicted of a felony. Prior to the effective date of the amendment, a fourth drunk driving offense could only be charged and punished as a misdemeanor. A defendant may be charged with a felony under Vehicle Code section 23175 even though the convictions for the three prior offenses occurred before the amendment making the fourth offense a felony. Such use of the prior convictions did not violate ex post facto principles.id: 10549
A single newspaper article was sufficient advance notice of the sobriety checkpoint.A detective who was the public information officer for the police department prepared a press release announcing a sobriety checkpoint to be conducted and placed it on the front counter at the police station. He then contacted the three major television networks by telephone advising them of the particulars of the checkpoint and contacted several local newspapers. He testified that to his knowledge the only publicity his efforts actually garnered was an article in the morning daily newspaper (with county wide circulation). The trial court erred in finding there was insufficient advance publicity for the check point and granting the suppression motion. Defendant had argued the police could have disseminated flyers, used billboards and placed advance signs in the general area of the roadblock. However, the advance publicity actually given in this case was adequate.id: 10551
Advance publicity is not a prerequisite to the operation of a constitutionally permissible highway sobriety checkpoint.The operation of a sobriety checkpoint conducted in the absence of advance publicity but otherwise in conformince with the guidelines established in <i>Ingersoll v. Palmer</i> (1987) 43 Cal.3d 1321, does not result in an unreasonable seizure within the meaning of the Fourth Amendment.id: 10553
Blood sample may be taken from a suspected drunk driver where there is a probable cause for an arrest.The warrantless seizure of a blood sample from an apparently intoxicated, but conscious, driver without his consent and without a prior formal arrest was not unconstitutional. The Fourth Amendment requires only that there be probable cause to place the defendant under arrest before the sample is withdrawn in a medically approved manner.id: 10559
California Highway Patrol officer's reliance on the detaining officer's statement that defendant was weaving like a snake provided reasonable cause to believe defendant was driving while intoxicated for purposes of the DMV proceeding.The Department of Motor Vehicles suspended defendant's driver's license following an administrative hearing under Vehicle Code section 13558. Defendant was detained by a deputy sheriff who then called the California Highway Patrol and the CHP officer made the arrest. Defendant argued the only evidence in support of the essential finding that the officer had reasonable cause to believe defendant was driving while intoxicated, was the hearsay statement in the CHP officer's report that the deputy sheriff saw defendant weaving like a snake. However, the statement was not hearsay because the question was not whether defendant was driving under the influence but whether the officer had reasonable cause to so believe. The CHP officer's reliance on the sheriff's statement was reasonable and the statement constituted substantial evidence supporting the finding that the arresting officer had reasonable cause to believe defendant was driving while intoxicated.id: 10560
Court did not err in failing to instruct that a drunk driving defendant's ability must be impaired to an appreciable degree.Appellant argued that the court erred in failing to instruct the jury that if it found he drove the vehicle while impaired to some degree, that was insufficient to convict. Instead, he claimed the prosecution had to prove that his driving ability was impaired to an appreciable degree. However, the court properly instructed with CALJIC 971 and 16.831 which says a driver is under the influence if his ability to drive a car is so impaired that he no longer has the ability to drive with the cautious characteristics of a sober person of ordinary prudence under the same or similar condition.id: 10564
Court may admit evidence obtained in a misdemeanor arrest outside the officer's presence unless the exclusion is mandated by the federal exclusionary rule.The arrest for drunk driving was violative of Penal Code section 836, subdivision (a)(1) which requires that a warrantless arrest for a misdemeanor be committed in the presence of the arresting officer. The judicially created exclusionary rule mandating that evidence obtained incident to such arrest be excluded was abrogated by the adoption of Article 1, section 28, subdivision (d) of the California Constitution. The Legislature did not intend to revive the judicially created exclusionary rule as a remedy for an illegal arrest when it amended section 836 in 1992 and 1993 by a two-thirds vote.id: 10567
Defendant was properly convicted of both being under the influence and driving under the influence of methamphetamine.Defendant pled guilty to being under the influence of a controlled substance (Health and Safety Code section 11550, subd. (a)) and driving under the influence of a drug (Vehicle Code section 23152, subd. (a)). He argued that his being under the influence of methamphetamine was a necessarily included offense of driving under the influence of methamphetamine and thus his conviction of the lesser offense should be reversed. However, a statutory violation of the driving under the influence offense may occur without violating the under the influence offense. Moreover, in pleading guilty he admitted the factual underpinnings of the convictions. Thus, his contention the record did not demonstrate the existence of an adequate factual basis for the guilty plea had to fail.id: 10570
Defendant who appeared intoxicated while parked in the middle of a highway was properly arrested for drunk driving notwithstanding the vehicle's lack of movement.Defendant's vehicle was stopped in the number two lane of southbound Interstate 280 at 2:34 a.m. Defendant was asleep behind the wheel with his foot on the brake, the engine running and the gear in drive. The officer did not observe the vehicle move. Defendant exhibited signs of being intoxicated and was arrested after failing the field sobriety test. Normally, an arrest may not be made if the car is parked and the officer does not observe volitional movement. However, Vehicle Code section 40300.5 provides an exception if the parked vehicle is obstructing a roadway. The officer properly arrested defendant who displayed symptoms of intoxication in the vehicle that was obstructing an interstate highway.id: 10571
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850