ABOUT SERIOUS TRAFFIC OFFENSES

VEHICULAR MANSLAUGHTER - DUI HOMICIDE

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.

Manslaughter is the unlawful killing of a human being without malice. There are three types of manslaughter: (a) Voluntary--upon a sudden quarrel or heat of passion; (b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. The above do not apply to acts committed in the driving of a vehicle.

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, 30 Cal. 3d 290.

Implied Malice - EC §1101(b) Evidence  In People v. Ortiz (2003) (5/23/03; 03 C.D.O.S. ___; ___ CA4th ___), the Court of Appeals held that a defendant who had a long history of traffic violations, including prior DUI convictions, had the requisite implied malice for vehicular murder inasmuch as the defendant "actually appreciated the risk involved" - here, passing over a double yellow line at a high rate of speed.    (See, People v. Watson (1981) 30 C3d, 290, 298.)  The defendant argued that the trial court erred reversibly in admitting the uncharged misconduct evidence (EC §1101(b)) dealing with his prior convictions for driving under the influence of alcohol and his attendance at an SB 38 program (18 month DUI traffic school), particularly, because all parties agreed that the defendant was not DUI at the time of the instant collision.  Nevertheless, the Court held that under the more relaxed "abuse of discretion" standard, the trial court did not abuse its disrection under EC §352 in allowing the unchraged evdice to come into evidenc eto establish the defendant's "appreciation of the risk involved."

HIT & RUN

VC §§16025, 20001 and 20002 require that a driver involved in any accident immediately stop and exchange pertinent information (name, address, vehicle license number, drivers license number and insurance information) with the other party. In the event of an injury accident, if feasible, a driver is also required to give aid and assistance to any other injured party. If no police arrive on the scene, an injury accident may be promptly reported to the CHP. VC §20002 makes it a misdemeanor to fail to stop and exchange information. VC §20001 (failing to stop at an injury accident) may be filed as either a misdemeanor of a felony, depending on the circumstances. In the case of a vehicular manslaughter situation (intoxicated or not) where there is also a Hit & Run offense, there is a five (5) year enhancement added onto any felony sentence (VC §20001(c) - Courtneys Law, 1996).

RECKLESS DRIVING (DRY)

VC §23103 provides that any person who drives any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. In addition, any person who drives any vehicle in any off-street parking facility, as defined in VC §12500(c), in willful or wanton disregard for the safety of persons or property is also guilty of reckless driving. Reckless driving is a misdemeanor offense. Punishment for a first-time reckless driving conviction can be by imprisonment in a county jail for not less than five (5) days nor more than 90 days or by a fine of not less than one hundred forty-five dollars ($145) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment, except as provided in VC §23104.

RECKLESS DRIVING (WET)

VC §23103.5 provides for plea bargained DUI cases down to what is commonly referred to as a wet reckless. Thus, when the prosecution agrees to a plea of guilty or no contest a charge of a violation of VC §23103 in satisfaction of, or as a substitute for, an original charge of a violation of VC §23152 (DUI), the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of any alcoholic beverage or ingestion or administration of any drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of any alcoholic beverage or the ingestion or administration of any drug by the defendant in connection with the offense. The court shall advise the defendant, prior to the acceptance of the plea offered pursuant to a factual statement, of the consequences of a conviction of a violation VC §23103. If the court accepts the defendant's plea of guilty or no contest to a charge of a violation of VC §23103 and the prosecutor's statement states that there was consumption of any alcoholic beverage or the ingestion or administration of any drugs by the defendant in connection with the offense, the resulting conviction shall be a prior offense for the purposes of VC §§23540, 23546, 23550, 23560, 23566, or 23622, as specified in those sections (priors). The court shall notify the Department of Motor Vehicles of each conviction of VC §23103 that is required under this section to be a prior offense for purposes of VC §§23540, 23546, 23550, 23560, 23566, or 23622.

If the court places the defendant on probation for a conviction of VC §23103 that is required under this section to be a prior offense for purposes of VC §§23540, 23546, 23550, 23560, 23566, or 23622, the court shall order the defendant to enroll in an alcohol and drug education program (Level 1). However, if compelling circumstances exist that mitigate against including the DUI school, the court may make an affirmative finding to that effect. The court shall state the compelling circumstances and the affirmative finding on the record, and may, in those cases, exclude the educational component from the order.

EVADING PURSUING POLICE

VC §§2800.1 to 2800.3 prohibit a person driving a motor vehicle from intentionally evading or fleeing from a police officer in a marked patrol car exhibiting at least one lighted red lamp. The offense is either a misdemeanor or a felony, depending upon the circumstances. In the case of a misdemeanor, it is an offense to evade a police officer if the driver either sees or reasonably should have seen the lamp, or the officer's motor vehicle is sounding a siren as may be reasonably necessary and the officer's motor vehicle is distinctively marked and the patrol vehicle is being operated by a peace officer, and that officer is wearing a distinctive uniform. It is also a misdemeanor to evade a pursuing officer who is riding a bicycle if the officer's bicycle is distinctively marked and the officer's bicycle is operated by a peace officer, and that officer is wearing a distinctive uniform and the officer gives a verbal command to stop or the officer sounds a horn that produces a sound of at least 115 decibels or the officer gives a hand signal commanding the person to stop, and the person is aware or reasonably should have been aware of the verbal command, horn, and/or hand signal, but refuses to comply with the command to stop.

It is, however, a felony to evade a pursuing police officer in a marked patrol car exhibiting at least one lighted red lamp where the fleeing vehicle is being driven in willful or wanton disregard for the safety of persons or property. Punishment may be by imprisonment in the state prison, or by confinement in the county jail for not less than six months, nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both imprisonment or confinement and fine. For purposes of establishing a willful or wanton disregard for the safety of persons or property, the driver necessarily only has to flee or attempt to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under VC §12810 occur or, alternatively, any property damage occurs.

In People v. Garcia (2003) 107 CA4th 1159; 132 CR2d 694, the Court of Appeals held that when a defendant leads police on a stolen car chase, that course of conduct is but one non-violent crime which could not be splintered into three separate counts of felony evading (VC §2800.2(a)) merely because the defendant was being chased by three separate police cars.  The Court relied on Wilkoff v. Superior Court (1985) 38 C3d 345, 349 for the proposition that "a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute - the gravamen of the offense -- has been committed more than once."  In Wilkoff, the defendant was charged with multiple counts of felony driving under the influence (VC §23153) arising out of a single incident in which six persons were injured or killed.  The Wilkoff Court held that only one count could be charged because the actus reus of the offense did not include causing bodily injury. (Id., at p. 352.) "A defendant may properly be convicted of multiple counts for multiple victims for a single criminal act only where the act prohibited by the statute is centrally an 'act of violence against the person.'  The Garcia Court went on to hold that, "Unlike robbery or carjacking, which are crimes of violence, felony evading, as defined by the Legislature, is not a crime of violence."  (As for multiple counts issue, see, also, People v. Lewis (1978) 77 CA3d 455 - "pimping" over a 5-year period was held to a "continuous course" of conduct.)

In People v. Acevedo (2003) 105 CA4th 195; 129 CR2d 270, the Court of Appeals held that where there was not substantial evidence admitted at the trial that the pursuing police officer had at least activated one red light, the jury's conviction of the defendant for violating VC 2800.2(a) could not be sustained.  Editor's Note:  The Court went onto to suggest that the Legislature cure this problem by possibly amending the section to make it possible to convict a person of felony evading without having to prove the existence of the operating emergency red light.  Of course, this would be a bad idea, if for no other reason than the public would be placed in a more precarious and obviously more dangerous situation if the police did not have to activate their overhead red emergency lights.  It appears that the court wasn't thinking about public safety, only the ease of convicting a defendant - one of the notable problems when the Court takes it upon itself to make recommendations to the Legislature.

In the event that the attempt to flee results in the proximate death or serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for three, four, or five years, by imprisonment in the county jail for not more than one year, or by a fine of not less than two thousand dollars ($2,000), nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment. Serious bodily injury means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and/or serious disfigurement.

SPEED CONTEST AND EXCESSIVE SPEED

Speed Exhibition and Speed Contest - VC §23109 prohibits any person from engaging in any motor vehicle speed contest on a highway. A motor vehicle speed contest includes a motor vehicle race against another vehicle, a clock, or other timing device. An event in which the time to cover a prescribed route of more than 20 miles is measured, but where the vehicle does not exceed the speed limits, is not a speed contest. Also, a person is prohibited from aiding or abetting any motor vehicle speed contest on any highway. Further, no person shall engage in any motor vehicle exhibition of speed on a highway, and no person shall aid or abet in any motor vehicle exhibition of speed on any highway. Obstructing or placing any barricade or obstruction upon any highway in order to facilitate or aid any motor vehicle speed contest or exhibition upon a highway in any manner is likewise prohibited. Violation of VC §23109 is a misdemeanor and a person convicted of the same is subject to punishment by imprisonment in the county jail for not less than 24 hours nor more than 90 days or by a fine of not less than three hundred fifty-five dollars ($355) nor more than one thousand dollars ($1,000), or both that fine and imprisonment. The person's privilege to operate a motor vehicle shall be subject to suspension as provided in VC §13352. The person's privilege to operate a motor vehicle may be restricted for 90 days to six months to necessary travel to and from that person's place of employment and, if driving a motor vehicle is necessary to perform the duties of the person's employment, restricted to driving in that person's scope of employment. A prior conviction of VC §23109 within five years is punishable by imprisonment in the county jail for not less than four days nor more than six months and by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000). Additionally, the DMV shall either suspend the person's privilege to operate a motor vehicle, as provided in VC §13352, or the person's privilege to operate a motor vehicle shall be restricted for six months to necessary travel to and from that person's place of employment and, if driving a motor vehicle is necessary to perform the duties of the person's employment, restricted to driving in that person's scope of employment. This subdivision does not interfere with the court's power to grant probation in a suitable case.  A person's vehicle may also be impounded at the registered owner's expense for not less than one day nor more than 30 days.

Excessive Speed (100+ mph) - Any person who drives a vehicle upon a highway at a speed greater than 100 miles per hour is guilty of an infraction punishable, as follows: (1) Upon a first conviction, by a fine of not to exceed five hundred dollars ($500). The court may also suspend the privilege of the person to operate a motor vehicle for a period not to exceed 30 days pursuant to VC §13200.5, and (2) Upon a second conviction within three (3) years of a prior offense resulting in a conviction, by a fine of not to exceed five hundred dollars ($500). The person's privilege to operate a motor vehicle shall be suspended by the DMV pursuant to VC §13355(a) - a 6 month suspension, and (3) Upon a conviction within five years of two or more prior offenses resulting in convictions, by a fine of not to exceed five hundred dollars ($500). The person's privilege to operate a motor vehicle shall be suspended by the DMV pursuant to VC §13355(b) - a one year suspension.

Parking Lot Exception  Oftentimes the police will make a traffic stop in a private parking lot. Notwithstanding that VC §23109(c) (speed exhibition) calls for the violation on a highway, VC §21107.8 provides that by local ordinace, a city or county may enact legislation to have the Vehicle Code enforced in privately owned parking facilities.  Specifically, if local legislation is passed, and provided the required signage, three specific Vehicle Code sections may be enforced in private parking facilities, to wit: VC §22350 (speeding), VC §23103 (reckless driving) and VC §23109 (speed exhibition).  VC §21107.8 provides as follows:

21107.8. (a) Any city or county may, by ordinance or resolution,

find and declare that there are privately owned and maintained

offstreet parking facilities as described in the ordinance or

resolution within the city or county that are generally held open for

use of the public for purposes of vehicular parking. Upon enactment by a city or county of the ordinance or resolution, Sections 22350, 23103, and 23109 and the provisions of Division 16.5 (commencing with Section 38000) shall apply to privately owned and maintained offstreet parking facilities, except as provided in subdivision (b).

(b) Notwithstanding the provisions of subdivision (a), no

ordinance or resolution enacted thereunder shall apply to any

offstreet parking facility described therein unless the owner or

operator has caused to be posted in a conspicuous place at each

entrance to that offstreet parking facility a notice not less than 17

by 22 inches in size with lettering not less than one inch in

height, to the effect that the offstreet parking facility is subject

to public traffic regulations and control. (emphasis added)

(c) No ordinance or resolution shall be enacted under subdivision

(a) without a public hearing thereon and 10 days prior written notice to the owner and operator of the privately owned and maintained offstreet parking facility involved.

(d) Section 22507.8 may be enforced without enactment of an ordinance or resolution as required under subdivision (a) or the posting of a notice at each entrance to the offstreet parking facility as required under subdivision (b).

(e) The department shall not be required to provide patrol or

enforce any provisions of this code on any privately owned and

maintained offstreet parking facility subject to the provisions of

this code under this section except those provisions applicable to

private property other than by action under this section.

Thus, as seen by the Vehicle Code, private parking lots may have certain provision of the Vehicle Code laws enforced, provided, however, that a) the local City or County legislative body enacts the appropriate legislation to have specific Vehicle Code laws enforced on their premises, and b) provided that the parking lot owner or operator has caused to be posted in a conspicuous place at each entrance to that offstreet parking facility a notice not less than 17 by 22 inches in size with lettering not less than one inch in height, to the effect that the offstreet parking facility is subject to public traffic regulations and control.

DRIVING ON A SUSPENDED OR REVOKED LICENSE

The Vehicle Code provides for six (6) different statutes that prohibit driving on a suspended or revoked drivers license VC §§14601, 14601.1, 14601.2, 14601.3, 14601.4 and 14601.5. These statutes impose varying punishments depending upon the reason the suspension or revocation was imposed in the first instance. There are also enhanced penalties depending upon whether the defendant has any priors. Typically, a person will be cited for a VC §14601.2, driving on a suspended license as a result of a DUI conviction. In that instance, the DMV has tried (without really mush success) to get the court to order an interlock ignition device (IID) installed on the offenders vehicle when the case is plea bargained to a VC §14601 charge. In the event that a person has a restricted license (driving to and from work, in the course and scope of ones employment, and to and from any DUI school) driving outside the restricted license is likewise prohibited. The problem with driving on a suspended drivers license is the fact that the vehicle being driven may be seized by the police and impounded up to 30 days, regardless if the vehicle being driven is owned by another person who is licensed and unaware that the defendant is not. In order to settle these nuisance cases, because they are misdemeanor offenses, one necessarily has to set them for trial before a jury. In those cases where a jury trial is calendared, you rarely will find a district attorney who is enthusiastic about proceeding to trial.

CHILD ENDANGERMENT

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 doubling the minimum mandatory jail time from 48 to 96 hours, and with one prior DUI within seven (7) years, there is added on an additional 10 days to whatever else the defendant is sentenced to; with two prior DUIs within seven (7) years, there is added on an additional 120 days to whatever else the defendant is sentenced to; and with a prior felony within ten (10) years, there is added on an additional 90 days added to the prison sentence in the case of a felony, or an additional 90 days in county jail in the event probation is granted.

Child endangerment statutes are also seen in VC §27360, et seq., which require mandatory seat restraint systems for minors, which systems must meet the minimum federal requirements. A police officer suspecting a violation of VC §27360, may lawfully stop and cite the parent or guardian. Separately, Penal Code §273a prohibits any form of child abuse - endangering a child or causing or permitting a child to suffer physical pain, mental suffering, or injury. PC §273a can be charged as a felony or as a misdemeanor, depending upon the circumstances and the injury to the minor. Leaving an unattended minor is a vehicle, which act causes injury to the child, may trigger a PC §273a prosecution.

PROVIDING ALCOHOL TO MINORS

California's Business & Professions Code (B&P) §25658(c) makes it a misdemeanor offense to sell, furnish, give, or cause to be sold, furnished or given away any alcoholic beverage to any person under age 21 who thereafter proximately causes great bodily injury or death to himself, herself, or any other person.  In In re Jennings* (2003) 106 CA4th 869; 131 CR2d 233 the Court of Appeals held that it is not required that the person furnishing the alcoholic beverage need specifically know that the person to whom it is furnished is under the age of 21.  Thus, a violation of B&P Code§25658(c) is an otherwise "strict liability crime".  Editor's Note:  On May 21, 2003, the California Supreme Court granted review of In re Jennings, supra.  Hence, the appellate decision cannot be cited for purposes of legal authority.

FALSELY IMPERSONATING ANOTHER vs. FALSE INFORMATION

In Lee v. Superior Court (People) (2000) 22 C4th 41; 989 P.2d 1277; 91 CR2d 509, a unanimous California Supreme Court held that where a defendant falsely signs a traffic citation in the name of a deceased person (here, defendant's deceased brother), he can be charged with violating PC §529(3), a wobbler (versus being charged with a violation of PC §148.9, giving false information to a police officer - a straight misdemeanor).  Here, because the defendant had two prior serious felony convictions (2 strikes), the DA charged the defendant with his third strike - 25 years to life - for falsely signing a traffic ticket!  (See, also, People v. Rathert (2000)  24 C4th 200; 6 P.3d 700; 99 CR2d 779, where Court defined the mental state (mens rea) necessary to commit a PC §529(3) violation as, "PC §529(3), by its terms, is violated when one intentionally falsely personates another and, in such assumed character, does any act that might cause the liability or benefit described in the statute.")

Of course, all serious traffic offenses, Vehicular Manslaughter, Hit & Run, Reckless Driving (Wet or Dry), Child Endangerment, Evading Pursuing Police, Excessive Speed (100+ mph), Driving on Suspended License or being an Unlicensed Driver, whether charged as a felony or as a misdemeanor, are grave accusations and can result in substantial prison or jail sentences, fines, as well as the loss of one's driver's license for a substantial period of time.  Therefore, if you have been arrested for any serious traffic offense, 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 drivers 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 or cited for serious traffic offenses before both the DMV and before the courts.  CALL US AT (530) 898-8468 TO SCHEDULE YOUR FREE CONSULTATION!