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Drunk Driving Offenses
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If you have
been arrested for a driving under the influence of alcohol (DUI –
aka Drunk Driving) or driving under the influence of drugs, you absolutely,
positively need an attorney who knows the law, who will pursue justice
in your case, and who can and will protect both your driver’s license
before the Department of Motor Vehicles (DMV) and your liberty interests
in a court of law. At the MAYO LAW CLINIC we
vigorously defend individuals who have been arrested for DUI before both
the DMV and before the courts. CALL US AT (530) 898-8468 TO
SCHEDULE YOUR FREE CONSULTATION! ABOUT DRUNK DRIVING WARNING – CAUTION! If you have been arrested in California for DUI, you will have had your driver’s license seized by the arresting officer. This is California’s version of the “Stop and Snatch” law which permits the police to act as an agent for the DMV. You will customarily be provided an 8.5” x 11” pink sheet of paper which acts as both a temporary (30 day) driver’s license, as well as a suspension order for your license – the DMV’s DS-367 form. This form also purports to advise you of your rights and obligations under the law. IT IS EXTREMELY IMPORTANT THAT YOU UNDERSTAND THAT YOU HAVE ONLY TEN (10) DAYS FROM THE DATE OF YOUR ARREST IN ORDER TO CALL THE DMV’S DRIVER’S SAFETY OFFICE IN ORDER TO GET AN ADMINISTRATIVE PER SE (APS) HEARING AND IN ORDER TO GET A STAY OF YOUR LICENSE SUSPENSION. IF YOU WAIT FOR ELEVEN (11) DAYS TO CONTACT THE DMV, YOU WILL NOT GET A HEARING, AND YOU WILL HAVE YOUR DRIVER’S LICENSE AUTOMATICALLY SUSPENDED BY THE DMV ON THE 31ST DAY AFTER YOUR ARREST! ALSO, YOU MUST CALL A SPECIFIC DMV OFFICE TO ARRANGE AN APS HEARING, AS NOT EVERY DMV OFFICE CAN ARRANGE AN APS HEARING IN YOUR MATTER! WARNING – CAUTION! DON’T WAIT ANOTHER DAY – IN CASE OF A DUI ARREST, YOU MUST CALL THE MAYO LAW CLINIC IMMEDIATELY IN ORDER TO PROTECT YOUR LICENSE – IT COSTS YOU NOTHING, AND THERE IS NO OBLIGATION ON YOUR PART WHATSOEVER! OUR PHONE NUMBER IS: (530) 898-8468 In point of fact, in virtually every DUI case, there are two (2) cases – (a) the DMV’s administrative case involving the potential suspension of your driver’s license – this is called an Admin Per Se or APS hearing, and (b) the Court case which concerns the criminal prosecution against you by the local county district attorney’s office. Don’t confuse the two proceedings, as they are distinct from one another, although, you will require legal representation in both instances and not just your court case! ABOUT THE DMV’S ADMIN PER SE PROCEEDING
15 Minute Observation Period In Manriquez v. Gourley (2003) 105 CA4th 1227; 130 CR2d 209 for purposes of properly administering an implied consent breath test to a defendant, the Court of Appeals held that continuous observation for purposes of compliance with CCR, reg §1219.3 does not mean an officer must keep his or her eyes focused on the subject for an uninterrupted 15-minute period. Observation is not limited to perception by sight; an officer may perceive a subject has eaten, drank, smoked, vomited or regurgitated by sound or smell and the perception by senses other than sight can be sufficient to comply with the regulation. Further, the regulation should be interpreted with reference to its purpose, which is to determine whether the test subject has smoked, ingested food or drink, or suffered physical symptoms that would adversely affect the test results. (Health & Safety Code §100715 [providing testing of breath samples by law enforcement shall be performed in accordance with regulations adopted by the Department of Health].) In our view, uninterrupted eye contact is not necessary (and may not always be sufficient by itself) to determine whether the proscribed events have occurred, so long as the officer remains present with the subject and able by the use of all his or her senses to make that determination. MINORS – In APS hearings involving minors, usually the minor is at least 18 years old, but under 21. Due the State’s “Zero Tolerance” policy, in fact, there are several statutes which specifically concern themselves with minors, vehicles and alcohol. These are specialty statutes and require familiarity with them in order that the minor is suitably represented at the APS hearing by a knowledgeable and competent attorney. Regardless of whether you are a minor or an adult, it is critical that in any APS hearing you are represented by knowledgeable and competent counsel. At the MAYO LAW CLINIC we are well known to the DMV. Regardless of those who call themselves “DUI Gurus” or whatever, attorney Mayo is the only attorney in all of California to have ever had the DMV’s previously hidden rules and regulations (aka the DMV’s “Bible”) declared to be illegal underground regulations (see In re: Regulatory Determination, DEPARTMENT OF MOTOR VEHICLES, STATE OF CALIFORNIA (1987) Determination No. 14, California Office of Administrative Law, Docket No. 87-003 and In re: Regulatory Determination, DEPARTMENT OF MOTOR VEHICLES, STATE OF CALIFORNIA (1987) Determination No. 17, California Office of Administrative Law, Docket No. 87-006), inasmuch as before attorney Mayo took on the DMV, they had never as much as published nor made available to attorneys, even one of the DMV’s hidden internal rules. In addition, attorney Mayo has successfully handled hundreds of cases before the DMV and continues to vigorously defend individuals who have license suspension proceedings before this State agency. THE COURT PROCEEDING
As mentioned above, California Vehicle Code (VC) §23152 makes it a misdemeanor offense to drive a motor vehicle under the influence of an alcoholic beverage or a drug (or both). However, oftentimes the prosecution's case will be weakened by some evidentiary matter. Hence, when proof beyond a reasonable doubt for any element of the alleged crime becomes an issue, many times the prosecution will plea-bargain a DUI charge down to what is commonly referred to as a "wet reckless" or a violation of VC §23103/23103.5. The fact that one can possibly obtain a "wet reckless" vs. a regular DUI is significant in a number of ways. Firstly, a jail sentence is not mandatory and is not customarily given for a first time "wet". Can a "wet" nevertheless be charged with a "prior"? The Vehicle Code does not contain any statutory provision for a "wet reckless" charge with a "prior" DUI (for sentence enhancement purposes - see VC §23540), however, because trial courts have a fair amount of discretion in terms of sentencing a misdemeanor defendant, even in cases where probation is granted, courts will more times than not take into consideration one's prior driving record for purposes of sentencing. FELONY DUI
Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of VC §§23140, 23152, or 23153, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. Gross vehicular manslaughter while intoxicated also includes operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of §655 of the Harbors and Navigation (H&N) Code, and in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of §655 of the H&N Code, and in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. Gross vehicular manslaughter while intoxicated is a felony, punishable by imprisonment in the state prison for 4, 6, or 10 years. If any person convicted of gross vehicular manslaughter while intoxicated has one or more prior convictions of this section (PC §191.5) or of paragraph (1) or (3) of subd. (c) of §192, subd. (a) or (c) of §192.5 of the Penal Code, or of violating VC §23152 punishable under §§23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of VC §23153, shall be punished by imprisonment in the state prison for a term of 15 years to life. PC §191.5 does not preclude a prosecutor from charging murder under PC §188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal.3d 290. Although PC §191.5 is not to be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.
Except as provided in PC §191.5, vehicular manslaughter consists of driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. And except as provided in PC §192(c)(3), vehicular manslaughter also consists of driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence. However, PC §192(c)(3) provides for vehicular manslaughter while intoxicated. The offense consists of driving a vehicle in violation of VC §§23140, 23152, or 23153, and in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or driving a vehicle in violation of VC §23140, 23152, or 23153 and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence. Vehicular manslaughter also consists of driving a vehicle in connection with a violation of PC §550(a)(3) (fraudulent vehicular collision), where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person (auto insurance fraud). PC §192 does not preclude the prosecution of a defendant for the crime of murder. Further, PC §192 does not make any homicide in the driving of a vehicle punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner. "Gross negligence," as used in PC §192, is not to be construed as prohibiting or precluding a charge of murder under PC §188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson (1981) (Watson I) 30 C3d 290; 637 P.2d 279; 179 CR 43 (the California Supreme Court held for the first time that second degree murder may be charged when the facts surrounding a vehicular homicide support a finding of implied malice - the court consequently reversed the order of the trial court dismissing the murder counts) and People v. Watson (1983) (Watson II) 150 CA3d 313; 198 CR 26 (on remand, the trial court was ordered to modify the murder verdicts to vehicular manslaughter, if the evidence showed that defendant was not guilty of murder but guilty of manslaughter, or if modification was not warranted, to grant a new trial). THE ARRAIGNMENT
RESISTING O.R. REVOCATION
THE PRELIMINARY EXAMINATION
PRE-TRIAL MOTIONS
In The Presence Issue Penal Code §836 provides that a police officer may arrest a person pursuant to a warrant or, alternatively, may make a warrantless arrest of a person in the event that a public offense was committed in the presence of the arresting officer. In addition, Vehicle Code (VC) §40300.5 provides that a police officer may make a warrantless arrest of a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists: (a) The person is involved in a traffic accident, or (b) the person is observed in or about a vehicle that is obstructing a roadway, or (c) the person will not be apprehended unless immediately arrested, or (d) the person may cause injury to himself or herself or damage property unless immediately arrested, or (e) the person may destroy or conceal evidence of the crime unless immediately arrested. The VC further provides for the liberal interpretation of VC §40300.5 in order to further safe roads and the control of driving while under the influence of an alcoholic beverage or any drug so as to permit arrests to be made pursuant to that section within a reasonable time and distance away from the scene of a traffic accident. However, in People v. Schofield (2001) 90 CA4th 968; 109 CR2d 429, the defendant was reported by a liquor store clerk to be tanked and, further, was seen driving away by that same clerk. A police officer subsequently traced the defendant to his home and then and there conducted an investigation at defendant's doorway. The officer did not assert the right to enter or secure answers to his questions. The defendant "voluntarily" stepped outside of his house and took certain field sobriety tests, which he evidently failed. The defendant was arrested and a blood sample was taken. The appellate court held that: (1) there was no unlawful arrest because of the destruction of evidence exception to PC §836 (see, also, VC §40300.5), and (2) a warrantless misdemeanor DUI arrest not committed in the officer's presence was a circumstance requiring immediate arrest in order to preserve the defendant's evanescent blood alcohol. Further, the appellate court held that this holding did not authorize a peace officer to forcibly enter a residence to effect a driving under the influence arrest. (Welsh v. Wisconsin (1984) 466 U.S.740; 80 L.Ed. 2d 732, 753.) Electronic/Telephonic Search and Arrest Warrants As mentioned in other pages (See Drug Offenses), California was an early adopter of electronic warrant procedures, and has been a progressive state in terms of expanding the methods by which an officer may apply for either a search and/or an arrest warrant. California law allows a magistrate to take an oral statement made under oath from a field officer via telephone (PC §817(c)). In addition, because many police cruisers are equipped with a form of personal computer, the applying officer may also send his written, signed proposal to the magistrate via facsimile transmission. If the magistrate decides that probable cause exists, he/she may then complete the warrant, sign it, and send it back to the officer via facsimile, noting the exact date and time of execution on the copy retained at the courthouse. In the event such transmission is unavailable, a magistrate may authorize the officer to sign his/her name on a “duplicate” original warrant prepared on location. In 1998, California further amended its telephonic search warrant statute to include e-mail as an acceptable method of application. An officer’s oath can still be taken over the telephone, but the warrant application and all supporting documents may also be transmitted using e-mail. A digital signature is further required from the officer to ensure the application’s authenticity. Under the new provision, a magistrate who decides to issue a warrant may return it to the applicant via either facsimile or e-mail. By enacting PC §817, the California Legislature intended to (1) codify that portion of People v. Bittaker (1989) 48 C3d 1046; 774 P.2d 659; 259 CR 630, that upholds, under the doctrine set forth in People v. Ramey (1976) 16 C3d 263; 545 P.2d 1333; 127 CR 629, the legality of issuing an arrest warrant upon a complaint without that complaint instituting a criminal action, and (2) to provide for the issuance of telephonic arrest warrants in essentially the same manner as telephonic search warrants pursuant to PC §1526 (including facsimile, e-mail (internet) applications, affidavits and original warrants), and (3) to reaffirm, in accordance with the decision of the U.S. Supreme Court in Payton v. New York (1980) 445 U.S. 573; 100 S.Ct. 1371; 63 L.Ed. 2d 639, that an arrest warrant founded on probable cause implicitly carries with it the authority to enter a dwelling in which the suspect lives or, alternatively, a place of business in which the subject has a proprietary interest, in order to arrest the suspect, when there is reason to believe the suspect is in the dwelling or place of business, and (4) by amending PC §813, to codify that portion of People v. Sesslin (1968) 68 C2d 418; 439 P.2d 321; 67 CR 409, that clarifies that an arrest warrant shall issue on a complaint if, and only if, the magistrate is satisfied from the complaint that the offense complained of has been committed and that there is reasonable ground to believe that the person named in the warrant has committed the offense. However, the Legislature made it clear that nothing in the law (or its subsequent amendments) shall be construed to abrogate the holding in Badillo v. Superior Court (1956) 46 C2d 269; 294 P.2d 23 (which case places the burden of proving the validity of a warrantless search or seizure on the prosecution. Editor's Note: While the above California statutory scheme is relatively recent, there are unfortunately no reported cases considering either the impact of this law on warrantless searches and/or seizures by the government, nor the validity of the process in general, particularly, regarding "exigent" circumstances in DUI situations. However, at least one Northern California District Attorney has considered the procedures involved in such a process. (See Alameda County DA's Point of View: E-Mail Warrants and the DA has gone so far as to provide form search warrants on-line - see Alameda County DA's Search Warrant Forms.) Mistake of Law Does Not Justify Vehicle Stop Following the lead of the Ninth Circuit, in People v. White (2003) 107 CA4th 636; 132 CR2d 371, the First District Court of Appeal held that where a police officer mistakenly believes another state requires two license plates (here, Arizona) but that, in truth, only one is required by Arizona law, the state cannot lawfully justify a traffic stop based upon a mistake in the law. The Court distinguished the holding in People v. Glick (1988) 203 CA3d 796 and, instead, relied on U.S. v. King (2001) 244 F.3d 736, 741; U.S. v. Twilley (2000) 222 F.3d 1092, 1096; U.S. v. Wallace (2000) 213 F.3d 1216, 1220-1221; U.S. v. Lopez-Soto (2000) 205 F.3d 1101, 1106, for the proposition that, under the 4th Amendment, a mistake of law by the police cannot justify a detention of an individual. See, also, US v. Colin infra, 314 F.3d 439, for the similar proposition in a DUI case. In U.S. v. Colin, surpa, the 9th Circuit Court of Appeal held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to investigatory traffic stops. (U.S. v. Arvizu (2002) 534 U.S. at 273; U.S. v. Sigmond- Ballesteros (2002) 285 F.3d 1117, 1121, reh’g en banc denied by 309 F.3d 545 (9th Cir. 2002). In order to justify an investigative stop, a police officer must have reasonable suspicion that a suspect is involved in criminal activity. (U.S. v. Lopez- Soto (2002) 205 F.3d at 1101, 1104-05.) Reasonable suspicion is formed by “specific articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.” Id. at 1105 (internal quotation marks and citations omitted); see also U.S. v. Mariscal, (2002) 285 F.3d at 1130; U.S. v. Twilley, (2000) 222 F.3d 1092, 1095 (9th Cir.). An officer’s inferences must “be grounded in objective facts and be capable of rational explanation.” Lopez-Soto, supra, 205 F.3d at 1105 (internal quotation marks and citations omitted); see also Mariscal, supra, 285 F.3d at 1130; U.S. v. Twilley, supra, 222 F.3d at 1095. In reviewing the district court’s (trial court) determination of reasonable suspicion, we must look at the “totality of the circumstances” to see whether the officer had a “particularized and objective basis” for suspecting criminal activity. U.S. v. Arvizu, supra, (internal quotation marks and citations omitted); see also U. S. v. Diaz-Juarez (2002) 299 F.3d 1138, 1141-42. Officers are encouraged to draw upon their own specialized training and experience in assessing the “totality of the circumstances.” Arvizu, supra, 534 U.S. at 750-51. The Officer's inferences must be grounded in objective facts and be capable of rational explanation. In the Colin case, the traffic stop was based on an observation by the Officer that the defendant's car touched, but did not cross the fog line (the white line on the right side of the road), as well as touched, but did not cross, the solid yellow line. Accordingly, the defendant did not violate Vehicle Code §21658(a) (lane straddling), nor was the action enough to cause a reasonable officer to think that the defendant was under the influence (VC §23152), therefore, the Officer did not have the requisite reasonable suspicion in order to lawfully make an investigatory traffic stop. The appellate court also noted that the Officer did not conduct any roadside field sobriety test, which it considered an indication that the Officer did not really suspect the defendant of driving under the influence. In U.S. v. Fernandez-Castillo (2003) 324 F.3d 1114, the Ninth Circuit held in another traffic stop case that an officer had a reasonable suspicion that the driver of a car was impaired, justifying an investigatory traffic stop of that car, where: (1) the vehicle had been reported as driving erratically; (2) the officer who stopped the vehicle knew the source of the report; (3) the report described the vehicle in detail, noting the car's color, make and model, and state license plate; (4) the report was made contemporaneously with the source's observations of the erratic driving; (5) the officer discovered the car in the area where the report indicated that the car would likely be found; (6) the officer noticed that the driver was sitting very close to the steering wheel, a behavior the officer knew was typical of impaired drivers; and (7) the officer corroborated the report of erratic driving by observing the car weave within its lane. Given the "totality of these circumstances", the Court held that the trial court correctly found, after an evidentiary hearing, the existence of a reasonable suspicion that the operator of the car was impaired and properly held that the investigatory stop of the vehicle was constitutional. (See, also U.S. v. Thomas (2000) 211 F.3d 1186 - possible "sound" of marijuana bail hitting truck bed is insufficient to establish a reasonable suspicion of criminal activity and U.S. v. Morales (2001) 252 F.3d 1070 where tip provided to officer by another police department via an "Attempt to Locate" dispatch, which did not include info about the tip's source, is treated as being an anonymous tip.) Editor's Note: Traffic stops/detentions for DUI, or where contraband is ultimately seized by the police, and where an arrest ensues, raise similar Fourth Amendment issues, regardless if the arrest is for an alcohol-related offense, a drug-related offense, a weapons-related, etc. Although not analysed with any 4th Amendment considerations in mind*, nevertheless, the California Supreme Court held in People v. Williams (2002) 28 C4th 408; 49 P.3d 203; 121 CR2d 854, that the failure of the police to substantially comply with Title 17 Regulations (CCR, Title 17, §1219.3, et seq.) did not require the exclusion of a preliminary alcohol screening (PAS) test administered to a DUI suspect. Rather, the Court held that, similar to the holding in People v. Adams (1976) 59 CA3d 559, breath test results are admissible upon a showing of either compliance with title 17 or the foundational elements of: (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator, is the better approach. *Editor's Note: This is a rather unfortunate opinion authored by Justice Brown which, ironically, doesn't explain how the PAS evidence was admissible when the evidence in the case revealed that the operator of the PAS devise, the CHP officer, was never properly trained in its use and, hence, not a qualified operator. Justice Brown went on to state, "The exclusion of relevant evidence, however, is barred by the California Constitution’s Right to Truth-in-Evidence provision, unless otherwise compelled by the federal Constitution. (Calif. Constitution, Article I, § 28(d).) By adopting this provision in 1982, the voters indicated that excluding evidence is not an acceptable means of deterring police misconduct. (In re Lance W. (1985) 37 C3d 873, 887.) Even prior to the enactment, courts recognized that absent a constitutional error the failure to follow the regulations in obtaining evidence was not grounds for exclusion. (People v. Perkins, supra, 126 CA3d at Supp. 18; French, supra, 77 CA3d at p. 522; People v. Rawlings (1974) 42 CA3d 952, 956.)" Unfortunately, though, neither Justice Brown, nor any other Justice for that matter, ever bothered to determine if administering a PAS test to a suspect was a "search" within the meaning of the 4th Amendment (which, of course, it is - Schmerber v. California (1966) 384 U.S. 757; 86 S.Ct. 1826). If it is a search, then, failure to substantially comply with Title 17 means that the police search is an unreasonable search inasmuch as it is not in compliance with the law. If the search is unreasonable, it is per se violative of the 4th Amendment, as the 4th Amendment only permits "reasonable" searches by the government. Unreasonabel searches result in the application of the judicially-created exclusionary rule. See, also, U.S. v. Patane regarding Miranda Violation and suppression of physical evidence per Wong Sun. Bad Govt. Info Does Not Permit A Good Faith Exception In People v. Willis (2002) 28 C4th 22; 46 P.3d 898; 120 CR2d 105, the California Supreme Court held that the good faith exception to the exclusionary rule did not apply to a warrantless search of a person who the police thought was still on parole. Here, the police relied on information supplied to them by a CDC parole agent to the effect that an erroneous parole list showed the defendant to still be on parole. In this case, the Court held that the CDC parole agent who supplied the erroneous information to the police, as well as the CDC clerks that made the erroneous data entry regarding defendant's parole status, are "adjuncts to the law enforcement team," to whom the exclusionary rule applies. In accord is People v. Ferguson (2003) 109 Cal. App. 4th 367; 134 CR2d 705, a case which following a traffic stop the police relied on faulty information that the defendant was on searchable probation for a prior drug offense. It turned out that the defendant was not on probation, and based upon Willis, supra, the Third District Court of Appeal was compelled to reverse its earlier decision and overrule the trial court's denial of defendant's suppression motion. Thus, where clerical staff for the County Probation Department is in error, that error redounds to the police, and the good faith exception to an otherwise erroneous warrantless search cannot be justified. Bad Traffic Stop = Civil Liability? In Bingham v. City of Manhattan Beach (2003) 329 F.3d 723, the Ninth Circuit held in a civil rights violation case brought by the plaintiff under 42 USC §1982, that a party held for several hours in a police station following a traffic stop because the check of the party's expired license found an outstanding warrant for an individual with similar identifying information, the officer was not entitled to summary judgment on the issue of qualified immunity with respect to the traffic stop, and that an unlawful traffic stop is not a de minimis (minor) violation of one's rights under the 4th Amendment. However, the police officer was entitled to summary judgment as to the arrest, since the arrest of the plaintiff for the purpose of verifying the outstanding warrant was a reasonable seizure under the 4th Amendment. THE DUI TRIAL
DUI SENTENCE ENHANCEMENTS
In instances where a person is determined to be DUI, and that person has a minor child under the age of 14 accompanying them in the vehicle, VC §23572 provides for enhanced penalties to the defendant under the “child endangerment” umbrella. A first-time DUI offense is punishable by this enhancement by way of doubling the minimum mandatory jail time from 48 to 96 hours; and with one “prior” DUI within seven (7) years, there is an additional 10 days added on to whatever else the defendant is sentenced to in the way of incarceration; and with two “prior” DUI’s within seven (7) years, there is added on another 120 days to whatever other custody time the defendant is sentenced to; and with a “prior” felony within ten (10) years, there is an additional 90 days added to the prison sentence in the case of a felony, or an additional 90 days added to one’s county jail time in the event probation is granted. Also, in the case of a felony DUI (where injury is caused), in addition to the above-mentioned sentence enhancements, where there are multiple injured victims, VC §23558 requires enhanced punishment of one year in state prison for each additional injured victim, up to a maximum of 3 years (i.e., 3 additional victims), which allegation must be pled and proven by the prosecution.
Implied Finding of Enhancement Allegation As "True" In People v. Chambers, 104 CA4th 1047; 128 CR2d 679, the Court of Appeals ruled that for purposes of sentencing on the basis of an enhancement allegation in the People's Information (here, the allegation of the personal use of a firearm in the commission of a robbery by the defendant) the trial court, as well as the sentencing court, could make that finding implicitly as opposed to expressly. Punishment for a firearm use enhancement may be imposed only if the trier of fact finds the enhancement allegation to be true. PC §12022.53, subdivision (j), provides: "For the penalties in this section to apply, the existence of any fact required . . . shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact." §1158a, subdivision (a) provides that, when a defendant is alleged to have used a firearm within the meaning of §12022.5, "the jury, if they find a verdict of guilty of the offense with which the defendant is charged, or any offense included therein, must also find whether or not the defendant was armed as charged in the count to which the plea of not guilty was entered. A verdict of the jury upon a charge of using a firearm may be: ' We find the charge of being armed contained in the _______ count true' or ' We find the charge of being armed contained in the _______ count not true . . . ." The requirements as to form for a jury verdict substantially apply when trial is by the court: "When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes." (1167.) The Court of Appeal held that the controlling authority was People v. Clair (1992) 2 C4th 629. In Clair the defendant was charged with murder and two counts of burglary. The information alleged that he had been previously convicted of a serious felony. The murder and burglary charges were tried to a jury, which returned guilty verdicts. The defendant waived jury on the prior serious felony allegation and consented to trial by the court. The trial court did not expressly find that the prior allegation was true, but it imposed a five-year prison term for the prior serious felony conviction. Clair rejected the contention "that the sentence on the serious-felony enhancement must be set aside because no finding on the underlying prior-conviction appears." (Id., at p. 691, fn. 17.) Clair reasoned: "At sentencing, the court impliedly - but sufficiently - rendered a finding of true as to the allegation when it imposed an enhancement expressly for the underlying prior conviction." (Ibid.)
California's Constitution, Article I, §28(b), mandates economic restitution in criminal cases. Further, Penal Code §1202.4 mandates restitution in "every case in which a victim has suffered economic loss as a result of the defendant's conduct." A senetnce imposed without such an award is invalid (People v. Rowland (1997) 51 CA4th 1745, 1751.) Accordingly, in People v. Bernal (2002) 101 CA4th 155, 123 CR2d 622, a case involving a felony DUI with ensuing great bodily injury (VC §23153(a) and PC §12022.7), the Court of Appeal reversed the sentencing court when the lower court held that a release of liability agreement obtained from the victim in favor of the defendant by the defendant's insurance carrier (for civil personal injury damages caused by the DUI-related accident) released the defendant of any restitution obligation. The Court went on to hold that, "(1) a release by a victim cannot waive the People’s right to have a defendant pay restitution ordered as part of his sentence, (2) the victim would be in an untenable position if he or she had to reject a settlement offer from a defendant’s insurance company that covers only a portion of the victim’s losses in order to preserve the uncertain possibility that the full amount might be recovered from the defendant, and (3) People v. Clifton (1985) 172 CA3d 1165 and People v. Hove (1999) 76 CA4th 1266 so indicate. "A restitution order pursuant to a defendant’s plea is an agreement between the defendant and the state. (People v. Pitts (1990) 223 CA3d 606, 872.) The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence. Since the categories of loss recoverable by restitution and the dollar amounts ordered are not identical to the defendant’s civil liability, there is no reason that a release of civil liability should release a restitution obligation, just as a satisfied restitution obligation does not bar a civil action for further damages. (However, see PC §1202.4(j) [“Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained against the defendant arising out of the crime for which the defendant was convicted”].) (See, also, People v. Pinedo (1998) 60 CA4th 1403 (allowing attorney's fees incurred to obtain a settlement with the victim's insurer as proper for restitution), and People v. Lyon (1996) 49 CA4th 1521 (allowing fees incurred to prevent the sale of the defendant's assets as proper for restitution), and People v. Moreno (2003) (4/23/03; 03 C.D.O.S. ___; ___ CA4th ___) wherein the Court of Appeal ordered the defendant to pay restitution to the State's Victims of Crime Program, after the defendant had been sentenced without the court reserving jurisdiction on the issue of any further restitution order, and after defendant's appeal had been decided.) PROPOSITION 36 (PC §1210, et seq.) INELIGIBILITY Recently, a number of cases have held that a person is simply not eligible for Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 – PC §1210, et seq., (aka Drug Court) in the event the charge is for driving under the influence of a drug. Hence, the court reasons that simple non-violent possession is not what is charged in a DUI and, thus, drug court (for which expungement of one’s record may be available), is simply precluded in a VC §23152(a) charge. People v. Walters (2002) 103 CA4th 936, and Trumble v. Superior Court (2002) 103 CA4th 1011. However, although the Courts of Appeals have unanimously held that a person is ineligible for Prop 36 treatment, in People v. Canty (2002) 100 CA4th 903, the Supreme Court granted review of this case (and holding). In light of its review of People v. Canty, supra, the Supreme Court has now granted review in People v. Walters and People v. Trumble, however, it has merely placed these two cases on hold pending its determination in People v. Canty. And chalk up another DUI-Drug-Prop 36 case placed on hold by the Supreme Court. In People v. Garcia (2002) (11/27/02; ___ CA4th ___) the Fifth District Court of Appeals ruled against a defendant who had pled guilty to felony possession of methamphetamine and misdemeanor driving under the influence of methamphetamine. Thus, look for the California Supreme Court to rule on the issue within the next six to eight months. In general, the Substance Abuse and Crime Prevention Act of 2000 (Prop 36) mandates drug treatment, rather than incarceration, for defendants, probationers, and parolees who commit qualifying offenses or violate qualifying conditions of probation or parole. However, in a new twist to the issue of Drug-related DUI's and one's qualification for Prop 36 treatment, the Court of Appeals in People v. Campbell (2003) 106 CA4th 808; 131 CR2d 221, held that a defendant who was placed on probation for simple drug possession (heroin) prior to the enactment of Proposition 36, may nevertheless have his probation revoked when the defendant has an otherwise non-qualifying probation violation. Here, the Court held that a Drug-related DUI is not a nonviolent drug possession (NOVIDPO) offense (citing People v. Anzalone (1999) 19 C4th 1074, 1081 [the expression of one thing is the exclusion of another].) Look for this case to possibly be placed on further hold by the Supreme Court? PENAL CODE §1000 (DIVERSION) INELIGIBILITY? In People v. Duncan (1990) 216 CA3d 1621, 265 CR 612, the Court of Appeals held that a person charged with driving under the influence of a controlled substance and alcohol (VC §23152(a)) and being under the influence of a controlled substance (H&S §11550), was not eligible for pre-trial drug treatment and counseling (diversion) pursuant to PC §1000(a)(3), as the VC §23152(a) charge was a drug-related offense, however, one that was not expressly listed under PC §1000(a). The Court went on to state, "The subdivision provides that an arrestee is not eligible for diversion if there is evidence that he or she has committed a drug related offense ' other than a violation of the sections listed in this subdivision.' (Italics added.) The language simply could not be plainer. Vehicle Code §23152(a) is not listed in Penal Code §1000. Moreover, it is evident that VC §23152(a), as applied to defendant in this case, is a drug related offense. Being under the influence of 'any drug' is one of its essential elements, and there was significant evidence that defendant was under the influence of cocaine while driving. Editor's Note: If the Duncan court found that driving under the influence of a controlled substance was a "drug-related" offense for purposes of PC §1000(a)(3) exclusion, then Prop 36 eligibility immediately springs to mind. Alas, as noted above, the various appellate courts have consistently shot down this notion, as well. It will be up to the Supreme Court to decide Canty before we have the final word on the subject.
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