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DUI checkpoint results in California

California DUI / drunk driving criminal defense lawyer news

A DUI checkpoint takes alleged drunk drivers off the streets before anyone gets hurt.

The California Highway Patrol held a sobriety checkpoint on Los Carneros Road in Goleta last night.

488 vehicles were screened, five people were arrested for driving under the influence. Another two were arrested for driving on a suspended license.

A CHP spokesman says DUI checkpoints save lives and to expect a zero tolerance policy from local law enforcement.

DUI CHECKPOINT
By CHP in Goleta

488 vehicles screened
5 arrests for DUI

Sunday, September 23, 2007

California DMV driving requirements & news update

California DUI / Underage criminal defense attorney news

DMV director explains new teen driving rules
9/23/2007

Do you have questions about general driving-related requirements such as registration or insurance? Are you unclear about laws and restrictions related to driving? The state Department of Motor Vehicles has answers in this column by DMV Director George Valverde.
Q: What are the most current teen driving rules?

A: New laws and regulations can be confusing for teens and their parents when obtaining a driver permit or provisional license. The DMV has provided teens with an online resource for information about the driver's license process, driver safety and insurance requirements. The site includes practice tests for teens and can be found at http://www.DMV.ca.gov/teenweb.

Additionally, parents can download and review the Parent-Teen Training Guide to help their teens be better prepared for safe driving on the road. The guide can be downloaded at http://www.dmv.ca.gov/pubs/dl603/dl603.pdf.

Q: Are senior citizens required to retake a driver's road test at a certain age?

A: The DMV does not take away driver's licenses when a person reaches a certain age. The mental and/or physical condition or a person's inability to follow traffic laws and rules, regardless of age, determines whether a license is renewed, restricted, suspended or revoked. However, the DMV does require that all persons older than 70 renew their driver's license in person at a DMV office. They will be asked to take a vision test using the wall chart.

Individuals may be asked to retake a driving test if they have failed the DMV vision test or have been referred to a driver safety office because of a physical or mental condition, sometimes made by a law enforcement officer or a concerned family member.

If you or someone you know is an elderly citizen who faces the prospect of retaking a driving test, it is a great idea to practice driving skills by taking a driver education or training class specifically developed for older persons. A list of approved mature driving courses is available at http://www.dmv.ca.gov/vehindustry/ol/md_programs.htm.

To better prepare seniors to renew their license, the DMV has created a senior-specific Web site at http://www.dmv.ca.gov/about/senior/senior_top.htm.

Q: I am going to move out of state soon. What can I do to keep from getting renewal notices from the California DMV?

A: Chances are, the state where you registered your vehicle hasn't notified the California DMV that you have registered your vehicle there, or that status hasn't been updated on our records.

Send a copy of your new state's registration certificate with a note explaining when and where you moved to the California DMV, P.O. Box 942869, Sacramento, CA 94269-0001. We will mark our records and you should not receive anything further from us.

To ask DMV Director George Valverde a question, e-mail askdmv@dmv.ca.gov.

Saturday, September 22, 2007

California DUI checkpoint targets repeat offenders

California drunk driving criminal defense attorney news

OAKLAND: California DUI WARRANT CHECKPOINT

September 22, 2007

The Oakland Police Department will be conducting a California DUI sobriety checkpoint today with an emphasis on California DUI & warrant checks.

The operation will begin at 6 a.m. and conclude at the discretion of the incident commander.

Through the warrant service operation, the police department will target repeat California DUI violators who have failed to appear in court or violated probation.

Friday, September 21, 2007

California DUI Lawyers Unfairly Prevented from Breath Test Truth-Finding!

Important California DUI criminal defense attorney case

12/17/07 The Marin County Superior Court Appellate Department has granted Paul Burglin's application for certification to the First District Court of Appeal on the partition ratio variability issue. Because it did not act on the application quickly enough, he had to file a "Petition To Transfer" in the Court of Appeal last Friday morning. In that petition, which was cc'd to the Supreme Court, he suggested a direct transfer to the Supreme Court and consolidation with McNeal should review be accepted.

Filed 9/21/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMMIE LANCE MCNEAL,

Defendant and Appellant.

E041226

(Super.Ct.No. CRA4177)

O P I N I O N

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Affirmed.
Linn Davis for Defendant and Appellant.
Michael A. Ramos, District Attorney, Mark A. Vos, Lead Deputy District Attorney, and Astrid G. Alfonso, Deputy District Attorney, for Plaintiff and Respondent.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant Timmie McNeal was charged with driving under the influence of alcohol (Veh. Code, § 23152, subd. (a) (section 23152(a))) and driving with a blood alcohol level of 0.08 percent or greater (§ 23152, subd. (b) (section 23152(b))). The jury convicted defendant of driving under the influence under section 23152(a); it was unable to reach a verdict on the section 23152(b) charge of driving with a blood alcohol level of 0.08 percent or greater. (We will refer at times to a charge under section 23152(a) as “generic DUI,” and to a charge under section 23152(b) as “per se DUI.”)
At trial, evidence of defendant’s blood alcohol level was admitted in the form of breath test results. The tests were administered by the City of Redlands police. Defendant’s first expiration did not register. The second and fourth expirations registered as insufficient. The third and fifth samples each registered a blood alcohol concentration of 0.10 percent. The blood alcohol concentration was determined based upon a mathematical constant for converting the amount of alcohol actually found in the defendant’s breath to an amount of alcohol that would presumably be found in his blood. This constant is known as the “standard partition ratio.”
After the defense rested, defendant moved to reopen relative to count 1, the generic DUI charge, to present an expert witness to “discuss the partition ratios.” (It is not clear from the record whether defendant sought to offer evidence of defendant’s personal partition ratio or evidence of the general variability of partition ratios.) After considering People v. Bransford (1994) 8 Cal.4th 885 (Bransford), wherein the California Supreme Court held that partition ratio evidence was inadmissible relative to a charge of per se DUI, the trial court denied defendant’s motion; the court indicated that partition ratio evidence was not relevant to an alleged violation of the generic DUI statute for the same reasons that partition ratio evidence was not relevant to a per se DUI charge.
Defendant appealed to the Appellate Division of the San Bernardino County Superior Court. He claimed the trial court committed reversible error in excluding partition ratio evidence. In affirming, the appellate division found that partition ratio evidence was admissible on a charge of generic DUI, but that the trial court’s error in not admitting the evidence was harmless.
On our own motion, we ordered the case transferred to this court to secure uniformity of decision and to settle an important question of law. (See former Cal. Rules of Court, rules 62 & 64(a); see also Code Civ. Proc., § 911.)
II. ANALYSIS
A. Standard of Review
“We review for abuse of discretion a trial court’s ruling on a motion to reopen a criminal case to permit the introduction of additional evidence.” (People v. Marshall (1996) 13 Cal.4th 799, 836.) “‘Factors to be considered in reviewing the exercise of [the trial court’s] discretion include the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect that the jury would accord it undue emphasis, and the significance of the evidence.’ [Citation.]” (People v. Rodriguez (1984) 152 Cal.App.3d 289, 295.) Here, the trial court denied the defendant’s request to reopen based upon its determination that the proffered evidence regarding partition ratios was inadmissible under Bransford. We review a trial court’s evidentiary rulings for an abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
B. Analysis
Under the generic DUI statute, it is “unlawful for any person who is under the influence of any alcoholic beverage . . . to drive a vehicle.” (§ 23152(a).) To prove this charge here (as well as the charge for per se DUI), the prosecution introduced evidence of alcohol in defendant’s breath. The relationship between such evidence and intoxication has been explained as follows: “Alcohol contained only in the breath does not cause intoxication. It is the impact of alcohol on the central nervous system, particularly on the brain, that causes the physical and psychological changes associated with impairment. Alcohol reaches the central nervous system through the blood. When used to establish blood alcohol levels, breath testing devices use a mathematical constant to approximate the percentage of alcohol in the blood based on the amount of alcohol present in a breath sample.” (State v. Brayman (1988) 110 Wn.2d 183, 188 [751 P.2d 294] (Brayman); see also State v. Hanks (2001) 172 Vt. 93, 94-95 [772 A.2d 1087] (Hanks).) In California, this mathematical constant is set forth in (among other places) section 23610. (See also § 23152(b); Cal. Code Regs., tit. 17, § 1220.4, subd. (f).)
Section 23610 provides that, in a prosecution for generic DUI, the amount of alcohol in the person’s blood, as shown by blood, breath, or urine, shall give rise to various presumptions as to whether the defendant was under the influence of alcohol at the time of driving. In particular, the statute provides that a person “shall be presumed” to be “under the influence of an alcoholic beverage” when “the amount of alcohol in the person’s blood at the time of the test as shown by chemical analysis of that person’s blood, breath, or urine” is 0.08 percent or more, by weight, of alcohol in the person’s blood. (§ 23610, subd. (a).) “Percent, by weight, of alcohol in the person’s blood” is defined as “grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” (§ 23610, subd. (b).) This definition creates a presumptive blood-breath partition ratio of 1:2,100; that is, the same amount of alcohol found in 2,100 milliliters of a person’s breath would presumably be found in a milliliter of the person’s blood.
However, actual partition “ratios vary both between individuals, and at different times in the same individual . . . . Factors influencing an individual’s blood-breath ratio include body temperature, hematocrit level (the ratio between red blood cells and blood plasma), and the time at which alcohol was consumed in relation to the time breath alcohol is measured. Higher than normal body temperatures resulting from fevers, exercise, and menstrual cycle variations in women result in a lower blood-breath ratio than normal. If all other factors are the same in a given individual, a breath test based on that individual’s normal blood-breath ratio, given when body temperature is elevated, will overestimate that individual’s actual blood alcohol level.” (Brayman, supra, 751 P.2d at p. 297; see also Bransford, supra, 8 Cal.4th at p. 889; People v. Lepine (1989) 215 Cal.App.3d 91, 94 (Lepine); Hanks, supra, 772 A.2d at p. 1089.)
Because of the uncertainty of breath alcohol content as an indicator of blood alcohol content, defendant contends he should be allowed to introduce evidence concerning partition ratios. The People submit that the Legislature has determined the appropriateness of calculating the blood alcohol content based upon a breath test, and that defendant should not be allowed to challenge that calculation. In agreeing with the People, the trial court relied upon Bransford. We begin there.
In Bransford, the California Supreme Court granted review to determine whether the defendants, convicted of driving with 0.08 percent or more of alcohol in their blood, should be allowed to challenge “their breath-test results by showing that their personal ratio of breath-alcohol concentration to blood-alcohol concentration (the ‘partition ratio’) differed from the standard partition ratio that breath-testing machines use to convert breath-alcohol readings into blood-alcohol equivalents.” (Bransford, supra, 8 Cal.4th at p. 888.) The court held that defendants could not place before the jury evidence of their individual partition ratios. The court focused on the 1990 amendment to section 23152, which changed the per se DUI statute from, “[f]or purposes of this subdivision percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood,” to “[f]or purposes of this subdivision, percent, by weight, of alcohol in a person’s blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” (Bransford, supra, at pp. 889-891, citing Stats. 1990, ch. 708, § 1, pp. 3289-3290.) The court explained, “we believe there is . . . only one reasonable manner in which to [read the statute], i.e., the Legislature intended the statute to criminalize the act of driving either with the specified blood-alcohol level or with the specified breath-alcohol level. The second paragraph provided two distinct definitions” for arriving at whether an individual is driving with a 0.08 percent or more of blood alcohol. (Bransford, supra, at p. 890, italics added.)
In response to the defendants’ argument that the statute as amended created an irrebuttable conclusive presumption that the amount of alcohol in 210 liters of breath was equivalent to the amount of alcohol in 100 milliliters of blood, the court stated that the statute “‘does not create a conclusive presumption of intoxication . . . . Instead the statute defines, in precise terms, the conduct proscribed.’ [Citation].” (Bransford, supra, 8 Cal.4th at p. 892.) The conduct prohibited is either (1) driving with a 0.08 percent blood alcohol level based on grams of alcohol per 100 milliliters of blood, or (2) driving with a blood alcohol level of 0.08 percent based on grams of alcohol per 210 liters of breath. Thus, while variances may exist because of the method used for measurement, there is no need to convert a breath alcohol measurement to a blood alcohol level. Both measurements are distinct substantive statutory means by which the per se DUI statute can be violated. (See People v. Pinkston (2003) 112 Cal.App.4th 387, 393.) Thus, under Bransford, when the alleged per se DUI is based upon the defendant’s breath alcohol level, evidence of variations in the partition ratio is irrelevant. (See People v. Acevedo (2001) 93 Cal.App.4th 757, 765-766.)
Lack of admissibility relative to a per se DUI charge does not, however, resolve the question of whether evidence of partition ratio is admissible on a charge of generic DUI. Indeed, the Bransford court expressly stated that it was not addressing this issue. (Bransford, supra, 8 Cal.4th at p. 893, fn. 10.) For per se DUI, as Bransford makes clear, we are concerned with whether the defendant was driving with a 0.08 percent blood alcohol level or above, as defined by that subdivision, regardless of whether the defendant was in fact intoxicated. However, under the generic DUI statute, we are ultimately concerned with the defendant’s actual state of intoxication (or, more precisely, with whether the defendant was “under the influence” of alcohol or drugs while driving).
Because Bransford does not directly resolve the question presented in this case, we turn next to evaluating the relevancy of partition ratio evidence in a generic DUI case. Generally, relevant evidence is admissible. (Evid. Code, § 351.) Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) The are two disputed facts in this case to which partition ratio evidence might be relevant: (1) the basic or preliminary fact giving rise to the presumption of being under the influence under section 23610, namely, that defendant had a 0.08 percent blood alcohol level, as defined by that section, at the time of the offense; and (2) the ultimate fact that defendant was driving under the influence within the meaning of the generic DUI statute. As we explain more fully below, because the Legislature has defined the basic fact—a certain blood alcohol concentration—to include breath alcohol concentration at the standard partition ratio, evidence of a different ratio is irrelevant. However, relative to the ultimate fact of intoxication, evidence of a defendant’s personal partition ratio, but not evidence of the general variability in partition ratios, is relevant and admissible.
C. Admissibility to Prove or Negate the Basic Fact Underlying the Presumption
As a preliminary matter, before addressing the relevance of partition ration evidence to challenge the basic fact underlying the presumption of being under the influence, we consider whether the statutory breath alcohol presumption is consistent with due process.
“Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime—that is, an ‘ultimate’ or ‘elemental’ fact—from the existence of one or more ‘evidentiary’ or ‘basic’ facts. [Citations.] The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder’s freedom to assess the evidence independently. . . . [¶] The most common evidentiary device is the entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. [Citation.] In that situation the basic fact may constitute prima facie evidence of the elemental fact. . . . Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.” (Ulster County Court v. Allen (1979) 442 U.S. 140, 156-157 [99 S.Ct. 2213, 60 L.Ed.2d 777].)
As set forth above, section 23610 provides for a presumption in generic DUI cases by which a person “shall be presumed” to be “under the influence of an alcoholic beverage” when “the amount of alcohol in the person’s blood at the time of the test as shown by chemical analysis of that person’s blood, breath, or urine” is 0.08 percent or more, by weight, of alcohol in the person’s blood. (§ 23610, subd. (a)(3).) Although section 23610 provides that the presumptions affect “the burden of proof” and employs the mandatory phrase, “shall be presumed” (§ 23610, subd. (a)), in order to save the statute from creating an unconstitutional mandatory presumption, it has been interpreted as creating merely a permissive inference that the trier of fact is free to credit or reject. (See People v. Milham (1984) 159 Cal.App.3d 487, 501-505.) Accordingly, CALJIC No. 12.61 provides: “If the evidence establishes beyond a reasonable doubt that at the time of the chemical analysis of the defendant’s blood, breath or urine, there was 0.08 percent or more by weight of alcohol in the defendant’s blood, you may, but are not required to, infer that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.” (Italics added.) (See also Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 2110 [“you may, but are not required to, conclude that the defendant was under the influence”].)
The basic or preliminary fact that gives rise to the presumption of intoxication in section 23610 is a certain percent of alcohol by weight in the person’s blood as defined in that section. In People v. Lachman (1972) 23 Cal.App.3d 1094, the court considered whether the presumption, set forth in a predecessor statute, that a person is under the influence when the person has a 0.10 percent blood alcohol content violated due process. The court held it did not, and explained: “The presumption . . . is not based on speculation but is founded on the long-recognized and scientifically established relationship between blood alcohol level and degree of intoxication. . . . It can be said with substantial assurance that a person with 0.10 per cent [sic] or more alcohol in his blood is more likely than not under the influence of intoxicating liquor. There thus exists sufficient rational connection in experience between the preliminary fact proved and the ultimate fact presumed to satisfy the requirement of due process of law.” (Id. at p. 1098.)
If, in the present case, defendant’s blood alcohol reading had been based on a blood extraction, there would clearly be a rational connection between the blood alcohol reading and whether defendant was under the influence of alcohol. And, because of the long-recognized and scientifically established relationship between blood alcohol concentration and intoxication, there would be no meritorious basis for attacking the underlying efficacy of the correlation. Here, however, the presumption is not based solely upon the relationship between blood alcohol content and intoxication, but also upon a statutorily prescribed mathematical constant for converting breath alcohol content into blood alcohol content. The statute addressed by Lachman did not include this formula for converting breath alcohol levels to blood alcohol levels.
The nature and extent of the relationship between breath alcohol and blood alcohol (and intoxication) has been a subject of scientific debate for decades. (See, e.g., People v. Ireland (1995) 33 Cal.App.4th 680, 693 (Ireland); State v. Downie (1990) 117 N.J. 450, 457 [569 A.2d 242]; State v. Brigham (Fla.Dist.Ct.App. 1997) 694 So.2d 793, 795; Schop, Is DWI DOA?: Admissibility of Breath Testing Evidence in the Wake of Recent Challenges to Breath Testing Devices (1991) 20 Sw.U. L.Rev. 247, 251-252 (hereafter Schop).) The breath test “is based on the premise that at any given temperature, the ratio between the concentration of alcohol in the blood and that in the air from the lungs is constant. Verification of this fact and the numerical magnitude of this ratio was done experimentally. [Citation.] As blood containing alcohol passes through the lungs, a fractional amount tends to diffuse through the pulmonary membranes and enter the lungs, where it is exhaled. A fluid dissolved in a liquid will, over time, partially diffuse into an adjacent gas in a distribution predictable for that fluid. A general law of physics, Henry’s law, describes the rate of diffusion. This predictable relationship is what allows a measurement of a person’s breath to be extrapolated to show the concentration of alcohol in the blood.” (Dahl v. State (Tex.Ct.App. 1986) 707 S.W.2d 694, 696.) According to one court, “many experts consider alveolar air, or air expelled from the lungs at the end of a deep breath, as the best practical measure of alcohol in the brain during the absorptive phase” of metabolizing alcohol. (State v. Downie, supra, at p. 246.) Although the 1:2,100 standard partition ratio has been criticized, it is nevertheless widely accepted. (See State v. Brigham, supra, at p. 795; Schop, supra, at p. 257.)
A report prepared for the Assembly Committee on Public Safety regarding the bill to redefine blood alcohol for purposes of the per se DUI to include breath alcohol at the standard partition rate addressed the issue: “Should the offense of driving under the influence of alcohol be statutorily defined in terms of the concentration of alcohol found in the breath when breath analysis is used?” (Assem. Com. On Public Safety (May 15, 1990) hearing, capitalization omitted.) The report included the following comment: “Scientific Recommendation. According to M. F. Mason, Ph.D., Professor of Forensic Medicine and Toxicology and K. M. Dubrowski, Ph.D., Professor of Medicine and Director of Toxicology Laboratories, ‘the conversion of a breath quantity to a blood concentration of ethanol, for forensic purposes, should be abandoned and the offense of driving while under the influence of alcohol should be statutorily defined in terms of the concentration of ethanol found in the breath in jurisdictions employing breath analysis.[’] (‘Breath-Alcohol Analysis: Uses, Methods, and Some Forensic Problems Review and Opinion’, 21 Journal of Frensic [sic] Sciences, No. 1, p. 33 (1976).” (Ibid.)
In Ireland, the defendant, convicted of per se DUI, challenged on due process grounds the exclusion of evidence of the variability between blood alcohol and breath alcohol measurements. He asserted numerous physiological “reasons why breath tests are inaccurate predictors of true alcohol content.” (Ireland, supra, 33 Cal.App.4th at p. 692.) The Ireland court rejected the argument, explaining: When the Legislature enacted the amendment defining blood alcohol to include breath alcohol using the standard partition ratio for purpose of the per se DUI statute, “it was aware of the ‘complexities’ of converting breath-alcohol values to blood-alcohol values. Indeed, it was precisely because of those complexities that the Legislature decided to eliminate the conversion requirement, accepting as sufficient for defining legislative policy a prohibition on driving based on the presence in a person’s breath of a certain amount of alcohol. [¶] . . . [¶] The fact that the current state of scientific knowledge has not settled the ongoing scientific debate as to the best method of measuring inebriation does not preclude the Legislature from regulating driving based on conflicting scientific theories.” (Id. at p. 693; see also Brayman, supra, 751 P.2d at p. 301 [“While the record may establish that breath is a less direct measure of blood alcohol levels, it does not establish a lack of a reasonable and substantial relationship between breath alcohol and impairment”].) Although the Ireland court addressed the legislative changes to the per se DUI statute, its rationale applies equally to the presumption of being under the influence in generic DUI cases. We therefore conclude that the presumption of driving under the influence provided by section 23610 for purposes of a generic DUI charge does not violate due process.
Next, we consider whether evidence of a defendant’s personal partition ratio is relevant to prove or disprove the basic fact of the presumption. The Ireland court’s consideration of legislative history provides guidance. As discussed in that case, the addition of “grams of alcohol per 210 [milliliters] of breath,” as an alternative method of measuring blood alcohol, was added to section 23155 (the predecessor to § 23610) in 1989 through Senate Bill No. 1119. (Ireland, supra, 33 Cal.App.4th at p. 691, citing Stats. 1989, ch. 1114, § 34, pp. 4085-4086.) The same language was added to the per se DUI statute in 1990 through Assembly Bill No. 4318. (Stats. 1990, ch. 708, § 1, pp. 3289-3290; see Bransford, supra, 8 Cal.4th at pp. 889-891.) As the Ireland court stated: “The Assembly Committee on Public Safety, the Senate Rules Committee, and the Senate Committee on Judiciary all decried that the challenges to the accuracy of the partition ratio had resulted in ‘expensive and time consuming evidentiary hearings and undermine[d] successful enforcement of driving under the influence laws.’ (Hearing notes of Assem. Com. on Pub. Saf. (May 15, 1990) Assem. Bill No. 4318.) [¶] In 1990, Assembly Bill No. 4318 . . . was introduced to ‘[e]liminate the need for conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when breath analysis is used.’ (Assem. Com. on Public Safety, May 15, 1990 hearing.) The committee explained that ‘[t]he complexities of the existing conversion or partition ratio result in a significant number of cases being challenged on the accuracy and applicability of the partition ratio.’ (Hearing notes of Assem. Com. on Pub. Saf., supra, [Assem. Bill No.] 4318)[.]” (Ireland, supra, at pp. 689-690.) The Assembly Committee on Public Safety further stated: “‘Last year the Legislature approved and the Governor signed Senate Bill [No.] 1119 (Seymour) which, effective January 1992, eliminates the DUI partition ratio [in generic DUI cases], an unnecessarily complicated method of converting units of alcohol per liter of breath into the current standard of .08% blood alcohol per milliliter of blood. [Assembly Bill No.] 4318 simply speeds up the effective date to January 1, 1991, in an effort to provide relief to our beleaguered DUI trial process.’” (Id. at p. 691.)
In light of this history, it is evident that the Legislature intended to eliminate partition ratio evidence as to both the crime of driving with a blood alcohol level of 0.08 percent or greater under the per se DUI statute, and the presumption of driving under the influence under the generic DUI statute. The Legislature intended to put breath alcohol test results on equal footing with blood alcohol tests. With respect to the presumption applicable to generic DUI prosecutions, the Legislature accomplished this by, in effect, redefining the basic fact that must be proved to trigger the presumption. Prior to these amendments, the basic fact was a certain blood alcohol level. A person charged with generic DUI, based only on a breath test, could introduce partition ratio evidence to challenge that basic blood alcohol fact; evidence of variances in personal partition ratios were relevant in determining whether the defendant had the blood alcohol level necessary to trigger the presumption. (See Bransford, supra, 8 Cal.4th at p. 889.) Following the amendments, the specified breath alcohol level itself is a basic fact that triggers the presumption of intoxication. If the prosecution can prove the defendant had the specified breath alcohol level, it no longer needs to prove any particular blood alcohol level to be entitled to the presumption of intoxication. In this situation, partition ratio evidence is simply irrelevant to the issue of whether the basic fact exist. (Cf. Ireland, supra, 33 Cal.App.4th at p. 691.)
D. Admissibility to Prove or Negate the Ultimate Fact of Being Under the Influence
We still must examine whether partition ratio evidence is admissible for purposes of creating a reasonable doubt as to the presumed or ultimate fact of intoxication. As discussed above, the presumption created by section 23610 permits jurors to infer, but does not require that they find, the ultimate fact from the existence of a certain blood alcohol or breath alcohol concentration. (People v. Milham, supra, 159 Cal.App.3d at pp. 501-505; CALJIC No. 12.61.) Nothing in the statute precludes the ability of the defendant from introducing other evidence relevant to the ultimate fact of intoxication. Indeed, when the Legislature redefined blood alcohol content to include breath alcohol, it left intact the following language now codified in subdivision (c) of section 23610: “This section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense.”
Because intoxication occurs when alcohol in sufficient amounts is carried to the central nervous system through the bloodstream, evidence of alcohol in a person’s bloodstream is relevant to proving that a defendant was under the influence of alcohol. When the evidence of blood alcohol is based on a breath test, the accuracy of the breath alcohol measurement as an indicator of the amount of alcohol in the defendant’s bloodstream is important. Such accuracy depends in part on the extent to which the defendant’s actual partition ratio varies from the statutory partition ratio. Evidence of a defendant’s personal partition ratio may show that the breath test overstates or understates the amount of alcohol in his bloodstream, thereby reducing or increasing the likelihood that he was intoxicated. Such evidence thus bears upon the question of whether the defendant was under the influence of alcohol, and is therefore relevant. (Veh. Code, § 23610, subd. (c); Evid. Code, § 210.)
While there is no published California case on point, two out-of-state decisions are instructive. In Hanks, supra, 772 A.2d 1087, defendant was charged with driving under the influence of an intoxicating liquor, a violation of Vermont Statutes Annotated, title 23, section 1201, subdivision (a)(2). (Hanks, supra, at p. 1088.) (Prosecutions under this subdivision are described in Hanks as “generic DWI” cases.) He was not charged with the crime of driving with an alcohol concentration of 0.08 percent or more, or “per se” DWI, a violation of subdivision (a)(1) of the same statute. Defendant’s breath sample registered 0.109 percent alcohol content. At the time of the offense, Vermont law provided that “(‘If the person’s alcohol concentration at [the time of operation] was 0.08 [percent] or more, it shall be a permissive inference that the person was under the influence of intoxicating liquor in violation of section 1201[, subdivision] (a)(2) . . . .’)” (Hanks, supra, at p. 1088.) By way of a motion in limine the prosecution sought an order limiting defense counsel’s cross-examination of the state’s toxicologist “‘to exclude any examination based on variations as a general matter in the human population in the so-called “partition ratio.”’” (Ibid.) The state’s motion was based on the fact that under Vermont law, alcohol concentration can be measured by either the number of grams of alcohol per 100 milliliters of blood or the number of grams of alcohol per 210 liters of breath. (Id. at p. 1089.) The state contended that given the legislatively-adopted partition ratio, any evidence on partition ratio variation would be irrelevant, confusing, and “misleading because it would subvert the legislative statement of what the law is on this subject.” (Id. at p. 1090.) At a hearing on the state’s motion, the state’s expert, “confirmed . . . that ‘[b]ecause blood-breath ratios vary both between individuals, and at different times in the same individual, a breath test based on a 2[,]100:1 blood-breath ratio may not accurately represent a particular individual’s blood alcohol level.’ [Citation.] The state chemist agreed that partition ratios can vary from 1[,]600:1 to 3[,]000:1 . . . .” (Id. at p. 1089.) The trial court adopted the analysis in Bransford and granted the state’s motion, precluding partition ratio evidence.
On appeal, the defendant argued that while partition ratio evidence may not be admissible in cases involving per se violations, they are relevant in cases involving generic DWI violations. The Vermont Supreme Court agreed. After characterizing the generic DWI statute as creating a permissive inference as opposed to a rebuttable presumption, the court stated, “We are not persuaded by the State’s arguments that allowing defense counsel to cross-examine the state chemist concerning the variability of partition ratios would be inconsistent with the statutory scheme and lead to jury confusion. . . . [A]llowing testimony on the variability of partition ratios would not prevent the jury from accepting the statutory inference. Because defendant is charged with driving while under the influence rather than driving with an alcohol concentration exceeding the statutory limit, admitting scientifically accepted evidence concerning the variability of partition ratios will not negate a statutory offense or even an element of a statutory offense; rather, it will merely allow defendant to challenge the permissive inference and the State’s charge that he was impaired.” (Hanks, supra, 772 A.2d at pp. 1092-1093.) The Arizona Court of Appeal, relying in part on Hanks, came to the same conclusion in Guthrie v. Jones (2002) 202 Ariz. 273, 276-277 [43 P.3d 601].
Although, as we explain below, we do not agree with Hanks and Guthrie to the extent that those decisions would allow general partition ratio evidence as well as personal partition ratio evidence, we agree with their essential analysis that partition ratio evidence can be admitted to challenge the inference of intoxication without affecting the basic fact supporting the inference.
Because evidence is admissible to challenge the ultimate fact of intoxication under the generic DUI statute, and personal partition ratio evidence is relevant to that fact, we hold that a defendant may introduce otherwise admissible evidence of his personal partition ratio in defense of a generic DUI charge.
E. General Partition Ratio Evidence
Our record does not reflect whether defendant sought to introduce evidence of his personal partition ratio or merely evidence of the variability of partition ratios in the general population. To the extent that he sought to introduce general partition ratio evidence, we believe that such evidence is irrelevant and inadmissible.
Defendant relies upon Lepine, supra, 215 Cal.App.3d 91. In Lepine, the defendant sought to introduce general partition ratio evidence in a per se DUI case prior to the Legislature’s amendment defining blood alcohol content to include breath alcohol content. At that time, the standard partition ratio was set forth in regulations promulgated by the Department of Health. (See Cal. Code Regs., tit. 17, § 1220.4, subd. (f).) Prior to Lepine, courts had allowed personal partition ratio evidence in per se DUI cases, but not general partition ratio evidence. (See Bransford, supra, 8 Cal.4th at 889.) Lepine held that general partition ratio evidence could also be admitted in such cases. Although Lepine was a per se DUI case, its holding would appear to be applicable by analogy. However, a close reading of the case compels a contrary conclusion here.
In Lepine, the Attorney General argued against the admissibility of general partition ratio evidence on the basis that the Department of Health regulations establishing the partition ratio “created a presumed fact that could only be challenged by a defendant presenting evidence that his particular partition ratio was less than that defined in the regulation.” (Lepine, supra, 215 Cal.App.3d at p. 98.) The Lepine court rejected the Attorney General’s argument, explaining: “There is nothing in either the Health and Safety Code section delegating to the department the power to create standards or in the regulations produced pursuant to that delegation which evidences a legislative intent to create a presumed fact. The Attorney General cites no case so finding. Nor does he suggest a canon of statutory construction which would compel the conclusion it was the Legislature’s intention to create such an unassailable scientific standard so central to the proof of a serious crime. Where the Legislature has established presumptions affecting crimes involving the use of alcohol, it has done so directly and unambiguously. [Citations.] We find no such directive in the Legislature’s general delegation of responsibility to set standards for the performance of breath alcohol tests.” (Lepine, supra, at p. 98.)
The Lepine court’s rationale indicates that if the standard partition ratio was established as a presumption by the Legislature, rather than an unauthorized regulation, it would have come to a contrary conclusion. The direct and unambiguous legislative statement the Lepine court found missing in the regulations now exists in sections 23610 and 23152(b). Indeed, as the legislative history of the amendments redefining blood alcohol to include breath alcohol (discussed above and in Ireland) make clear, the Legislature sought to limit, if not eliminate, partition ratio evidence in DUI cases. In light of these amendments and the legislative history behind them, we view Lepine as strong support for limiting partition ratio evidence to personal partition ratio evidence.
Moreover, subdivision (c) of section 23610, permits “the introduction of any other competent evidence bearing upon the question of whether the person . . . was under the influence of an alcoholic beverage at the time of the alleged offense.” (Italics added.) Construed in light of the legislative history of the statute, the reference to “whether the person . . . was under the influence” appears to us to limit partition ratio evidence to personal partition ratio evidence. General partition ratio evidence does not, we conclude, have any bearing upon whether the defendant in a particular case was under the influence. It is therefore irrelevant and inadmissible.
F. Conclusion
To the extent that the defendant in this case sought to introduce evidence of his personal partition ratio as evidence that he was not under the influence of alcohol, the trial court abused its discretion in determining that such evidence was inadmissible. Because the only reason apparent in the record for denying defendant’s motion to reopen the case was the erroneous evidentiary ruling, the denial of the motion to reopen would also be an abuse of discretion. If, however, defendant sought to introduce general partition ratio evidence, the court’s evidentiary ruling was not erroneous and the denial of the motion to reopen was not an abuse of discretion.
As stated above, we cannot discern from the record whether the defendant sought to introduce evidence of general variability of partition ratios or of his own partition ratio. “‘“For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him.” This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.’” (People v. Green (1979) 95 Cal.App.3d 991, 1001, quoting People v. Clifton (1969) 270 Cal.App.2d 860, 862.) Because defendant has failed to make a sufficient record of his offer of proof with respect to the type of partition ratio evidence he sought to introduce, he has failed to demonstrate error.
Nevertheless, as we explain in the next section, even if defendant had proffered evidence of his personal partition ratio and made a sufficient record of doing so, any error was harmless.
G. Harmless Error
“As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Here, defendant was not precluded from presenting his defense that he was not under the influence; “‘but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]).” (Id. at p. 1103.) Under Watson, an error is not harmless “only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson, supra, at p. 836.)
Here, there is strong evidence that, regardless of his blood alcohol level, defendant was under the influence of alcohol. Defendant was pulled over slightly before 11:00 p.m. Officer Herrera initially observed him on the Tennessee Avenue transition road. Defendant slowed down to make a right-hand turn onto Tennessee Avenue. Defendant ran the stop sign. Shortly after this, he slowed for a red light at the intersection of Tennessee Avenue and Colton. Defendant proceeded into the intersection and made a left-hand turn, against the red turn arrow. After approaching the vehicle, Officer Herrera asked for defendant’s driver’s license and registration. The defendant could not initially find his driver’s license. When asked why he ran the red light, defendant initially responded that he was chasing an individual that had pulled a gun on him. He thereafter said that he was either looking for his wife, or that his wife was right behind him. Defendant’s speech was slurred, his eyes were watery and bloodshot, and there was an odor of alcohol coming from the interior of defendant’s car. Upon exiting his vehicle, defendant used the vehicle to balance himself as he walked around his car to the sidewalk. Defendant told the officer that he had consumed one beer and that he had diabetes. Defendant’s performances on the Romberg, heel-to-toe, one leg, and finger-to-nose sobriety tests were all consistent with being under the influence of alcohol. Additionally, the PAS test showed the presence of alcohol. Officer Herrera wrote in his report that defendant’s face was flushed and that he had difficulty answering questions. The record thus demonstrates significant evidence of defendant’s intoxication. Therefore, we believe that it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of any error.
Moreover, it is probable that the jury did not use the 0.08 percent presumption in arriving at its verdict. As earlier noted, the jury was split on whether defendant was guilty of driving with a blood alcohol level of 0.08 percent or greater under section 23152(b). Given this, it is unlikely that the jurors who rejected that charge employed the presumption of intoxication in arriving at their guilty verdict on the section 23152(a) charge.
III. DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION

/s/ King
J.

We concur:

/s/ Ramirez
P.J.

/s/ Richli
J.

No Parole for 7th California DUI / Murder convict

California DUI criminal defense lawyer news

James Meinecke of Leggett was denied parole at his September 14 hearing at Soledad State Prison. Meinecke was convicted of the 1989 drunk driving murder of Karla Takahashi, 19, and for inflicting such severe injuries to 20-year old Paul Higgins that he remains in a vegetative state.

Despite six drunk driving convictions, convictions for other alcohol related crimes and having just gotten out of jail for driving with a suspended license, Meinecke was heavily intoxicated when he crossed the center line southbound on Highway 101 near Leggett and collided head-on with the car bearing Takahashi and Higgins. Takahashi and Higgins were YMCA camp counselors driving to camp.

Meinecke was one of the first drunk drivers convicted of murder in California.

"This situation was what the law was written for, a kind of perfect storm," says Beth Norman, Mendocino County assistant district attorney, "Meinecke was not supposed to be driving, with all of his prior convictions for drunk driving and other alcohol related crimes. And, his victims were so amazingly innocent."

"At the trial, one of Meinecke's class counselors testified that he was warned that if he continued to drink and drive he would kill someone," Norman added.

The parole board received a number of letters including those opposing Meinecke's release from Representative Mike Thompson, California Highway Patrol Captain Madrigal and YMCA camp directors.

Thursday, September 20, 2007

False-positive breath-alcohol test after a ketogenic diet

California drunk driving criminal defense attorney article

False-positive breath-alcohol test after a ketogenic diet

AW Jones1 and S Rossner2

1Department of Forensic Chemistry, National Board of Forensic Medicine and University Hospital, Linko¨ping, Sweden
and
2Department of Obesity Research, Karolinska Hospital, Stockholm, Sweden

A 59-year-old man undergoing weight loss with very low calorie diets (VLCD) attempted to drive a car, which was fitted with an
alcohol ignition interlock device, but the vehicle failed to start. Because the man was a teetotaller, he was surprised and upset by
this result. VLCD treatment leads to ketonemia with high concentrations of acetone, acetoacetate and b-hydroxybutyrate in the
blood. The interlock device determines alcohol (ethanol) in breath by electrochemical oxidation, but acetone does not undergo
oxidation with this detector. However, under certain circumstances acetone is reduced in the body to isopropanol by hepatic
alcohol dehydrogenase (ADH). The ignition interlock device responds to other alcohols (e.g. methanol, n-propanol and
isopropanol), which therefore explains the false-positive result. This ‘side effect’ of ketogenic diets needs further discussion by
authorities when people engaged in safety-sensitive work (e.g. bus drivers and airline pilots) submit to random breath-alcohol
tests.
International Journal of Obesity (2007) 31, 559–561. doi:10.1038/sj.ijo.0803444; published online 8 August 2006
Keywords: acetone; alcohol; breath-test; driving; ignition interlocks; VLCD
Obesity constitutes a serious threat to health and longevity
and among various treatment options, very low calorie diets
(VLCD) are frequently used.1,2 Such diets provide essential
proteins and fats but negligible amounts of carbohydrates
and they typically furnish 800 kcal/day. After a few days of
dieting, fat becomes the main source of energy, and VLCD
regimens are consequently ketogenic.3
Ketone bodies (acetone, acetoacetate and b-hydroxybutyrate)
increase appreciably in the blood of people on VLCD.4,5
Acetone is a water-soluble volatile product of metabolism
and is therefore exhaled in the breath and excreted in the
urine. Indeed, monitoring breath-acetone has been advocated
as a way to ensure that patients comply with their
VLCD treatment.5
The elimination half-life of acetone in man is fairly long
(15–25 h) and the biosynthesis and metabolic fate of this
endogenous metabolite are summarized in Figure 1.6,7 During
ketonemia, the reduction pathway toward isopropanol
becomes a strong possibility and, indeed, this secondary
alcohol has been identified in blood of patients with
hyperglycemia and poorly controlled diabetes.8–10 The
conversion of acetoacetate into b-hydroxybutyrate and the
reduction of acetone to isopropanol are both nicotinamide
adenine dinucleotide (NAD)-dependent redox reactions.7
Moreover, administration of amino acids, precursors of
proteins, can accelerate the elimination of ethanol from
blood by enhancing activity of hepatic alcohol dehydrogenase
(ADH).11 An increased ADH activity after eating high
protein diets might help to promote reduction of acetone to
isopropanol.
Among various strategies to reduce drunk driving and
improve road traffic safety, the use of alcohol ignition
interlock devices shows great promise.12 Such devices are
increasingly being fitted to buses and other public transportation
vehicles as well as long-haul trucks and also in some
private cars, especially in Sweden.13 Incentives to install
ignition interlock systems in private cars include lower
insurance costs and earlier return of the driving permit to
people convicted of drunk driving and especially to control
recidivism.12,13
Most of the ignition interlock devices used today measure
alcohol (ethanol) in a person’s breath by electrochemical
oxidation. Endogenous breath volatiles like acetone are not
oxidized at the same electrode potential.14 However, the
secondary alcohol isopropanol (2-propanol) is oxidized at a
slightly faster rate than ethanol and these two alcohols
cannot be distinguished.14 Accordingly, if acetone is reduced
to isopropanol during ketonemia, there is a strong possibility
of false-positive results when ignition interlocks are used.
Indeed, the concentration threshold for a positive test and
Received 18 May 2006; revised 31 May 2006; accepted 2 June 2006;
published online 8 August 2006
Correspondence: Dr AW Jones, Department of Forensic Chemistry, National
Board of Forensic Medicine and University Hospital, Artillerigatan 12,
Linko¨ping 581 33, Sweden.
E-mail: wayne.jones@RMV.SE
International Journal of Obesity (2007) 31, 559–561
& 2007 Nature Publishing Group All rights reserved 0307-0565/07 $30.00
www.nature.com/ijo
failure to start the engine is often set fairly low, corresponding
to a blood alcohol concentration (BAC) of 0.01–0.02 g/
100 ml (10–20 mg/100 ml).
We report a case of a 59-year-old man, body mass index
26.6 kg/m2, who began a weight reduction program, partly
because of knee pains but also because he was a glider pilot
where weight is important. He used a Swedish textbook on
obesity treatment written by S Ro¨ssner together with the
commonly used Swedish VLCD Nutrilett (Cederroths,
Stockholm, Sweden), 5 packets/day for 3 weeks, which is an
approved standard regimen. This treatment resulted in a
weight loss of 7 kg.
During dieting, the man discovered that an alcohol
ignition interlock device, installed in an official company
car, indicated that he had consumed alcohol and the vehicle
failed to start. This was confusing because the man was a lifelong
teetotaller and was therefore both surprised and upset
by the result. As he had been supervising private aviation
he had access to a second breath-alcohol analyzer, which
indicated a simultaneous BAC ranging from 0.01 to 0.02 g/
100 ml.
In an attempt to understand the reason for the positive
breath-test result, which obviously caused some discomfort
and practical problems, the man contacted the Obesity Unit
(Karolinska University Hospital, Stockholm, Sweden) for
advice, and the mechanism was elucidated. Although we
did not have the opportunity to measure acetone and
isopropanol directly in this subject, the most plausible
explanation for the positive breath-alcohol test is reduction
of acetone to isopropanol, which then undergoes electrochemical
oxidation.10
Most countries enforce statutory BAC limits above which
it is an offence to drive a motor vehicle. These limits differ
between countries owing to tradition, lifestyle and political
influences.15 The punishable BAC limits for driving range
from as low as 0.02 g/100 ml in Norway and Sweden to
0.05 g/100 ml in most European countries and 0.08 g/100 ml
in UK, Ireland, USA and Canada. It seems important
therefore to consider the consequences of ketogenic diets
when blood- and breath-alcohol tests are interpreted in a
legal context.
Suspected drunk drivers first submit to a roadside breathalcohol
screening test and if this is positive they provide
either an evidential breath-alcohol test or a blood specimen
is taken for laboratory analysis. Breath-alcohol screening
tests incorporate electrochemical detectors similar to those
used in the ignition interlock device and therefore respond
to isopropanol. By contrast, most evidential breath-testing is
performed by multifilter infrared analysis and these are
programmed to abort the test if acetone is detected on the
suspect’s breath above a certain threshold value.10 Because
the half-life of isopropanol (t12
¼3–5 h) is much shorter than
that of acetone (t12
¼15–25 h), it is hard to envisage finding
elevated concentrations of isopropanol without concomitant
high concentrations of acetone. However, evidential
breath-alcohol analyzers based on electrochemical oxidation
cannot distinguish ethanol from isopropanol and this
resulted in a false-positive test after VLCD. An apparent
BAC of 0.02 g/100 ml seems likely according to the present
case report.
The reduction of acetone to isopropanol is not a problem
with blood-ethanol determination because gas chromatography
is used and this highly specific method can resolve
ethanol from both acetone and isopropanol under normal
operating conditions.15
In conclusion, we suggest that people on ketogenic diets
run the risk of false-positive breath alcohol tests owing to
reduction of acetone to isopropanol. People on VLCD need
to be warned about this artifact when alcohol ignition
interlock devices are used. This possibility also warrants
consideration in connection with workplace alcohol testing
and screening of drunk drivers with electrochemical sensors.
Both the manufacturers of ignition interlock devices and
government agencies that monitor performance and administer
sanctions should consider these problem. Technological
improvements might be possible, for example, by measuring
not only the final reading but also the kinetics of the
detector response to different alcohols.
Acknowledgements
There was no external funding for preparing this article and
neither author considers there to be any conflicts of interest.
References
1 Wyatt SB, Winters KP, Dubbert PM. Overweight and obesity:
prevalence, consequences, and causes of a growing public health
problem. Am J Med Sci 2006; 331: 166–174.
2 Bravata DM, Sanders L, Huang J, Krumholz HM, Olkin I, Gardner
CD et al. Efficacy and safety of low carbohydrate diets: a
systematic review. JAMA 2003; 289: 1837–1850.
Isopropanol
Breath
Urine
ADH
NADH
NAD
Acetone
Fat
FFA Keton-
Ketosis bodies
Lipolysis
Slow
reaction CYP2E1
(2-propanol)
Hydroxymetabolites
Figure 1 Biosynthesis and metabolic fate of acetone after ketogenic diets.
FFA¼free fatty acids; ADH¼alcohol dehydrogenase; NADþ and NADH are
oxidized and reduced forms, respectively, of the coenzyme nicotinamide
adenine dinucleotide; CYP2E1¼cytochrome P450 isozyme.
VLCD cause false-positive alcohol test
AW Jones and S Ro¨ssner
560
International Journal of Obesity
3 Shah P, Isley WL. Ketoacidosis during a low-carbohydrate diet.
N Engl J Med 2006; 354: 97–98.
4 Beisswenger BG, Delucia EM, Lapoint N, Sanford RJ, Beisswenger
PJ. Ketosis leads to increased methylglyoxal production on the
Atkins diet. Ann NY Acad Sci 2005; 1043: 201–210.
5 Musa-Veloso K, Likhodii SS, Cunnane SC. Breath acetone is a
reliable indicator of ketosis in adults consuming ketogenic meals.
Am J Clin Nutr 2002; 76: 65–70.
6 Jones AW. Elimination half-life of acetone in humans; case reports
and a review of the literature. J Anal Toxicol 2000; 24: 8–10.
7 Kalapos MP. On the mammalian acetone metabolism: from
chemistry to clinical implications. Biochim Biophys Acta 2003;
1621: 122–139.
8 Jones AE, Summers RL. Detection of isopropanol in a patient with
diabetic ketoacidosis. J Emerg Med 2000; 19: 165–168.
9 Bailey DN. Detection of isopropanol in acetonemic patients not
exposed to isopropanol. Clin Toxicol 1990; 28: 459–466.
10 Jones AW, Andersson L. Biotransformation of acetone to
isopropanol observed in a motorist involved in a sobriety control.
J Forensic Sci 1995; 40: 686–687.
11 Lisander B, Lundvall O, Tomner J, Jones AW. Enhanced rate of
ethanol elimination from blood after intravenous administration
of amino acids compared with equicaloric glucose. Alcohol Alcohol
2006; 41: 39–43.
12 Beirness DJ, Marques PR. Alcohol ignition interlock programs.
Traffic Inj Prev 2004; 5: 299–308.
13 Bjerre B. An evaluation of the Swedish ignition interlock
programme. Traffic Inj Prev 2003; 4: 98–104.
14 Falkensson M, Jones AW, So¨rbo B. Bedside diagnosis of alcohol
intoxication with a pocket-size breath-alcohol device: sampling
from unconscious subjects and specificity for ethanol. Clin Chem
1989; 35: 918–921.
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VLCD cause false-positive alcohol test
AW Jones and S Ro¨ssner
561
International Journal of Obesity

California DUI causing death, plus enhancements or priors, gets complicated - 12 years in prison

California DUI criminal defense lawyer news

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE,

Plaintiff and Respondent,

v.

LAMAR WHATLEY,

Defendant and Appellant.
C052305

(Super. Ct. No. 05F02081)

Based on a traffic accident in which defendant Lamar Whatley caused the death of one person and injuries to three others while driving intoxicated, a jury found him guilty of gross vehicular manslaughter while intoxicated (count one), driving under the influence with injury (count two), and driving with a blood-alcohol level of .08 percent or more (count three). As to counts two and three, the jury also found true that defendant injured more than one person and inflicted great bodily injury within the meaning of Vehicle Code section 23558 and Penal Code section 12022.7, respectively.
The trial court sentenced defendant to state prison for 12 years 4 months, consisting of the upper term of 10 years for the manslaughter plus an effective consecutive term, including the enhancements, of two years for driving under the influence. Sentence for the driving with a blood-alcohol percent greater than .08 was stayed pursuant to Penal Code section 654.
On appeal, defendant contends the court’s imposition of the upper term on count one and a consecutive term on count two violated his federal constitutional right to trial by jury and proof beyond a reasonable doubt because the court relied on a fact neither found by the jury nor admitted by defendant to impose that sentence. We reject these contentions.
PROCEDURAL BACKGROUND
At defendant’s sentencing on March 30, 2006, the court imposed the upper term of 10 years for the manslaughter conviction “because of [defendant’s] subsequent conduct most notably his arrest eight, nine months after the offense at issue for driving under the influence of alcohol and his conviction thereof with a blood-alcohol of .20.” The court then imposed an effective consecutive term of two years four months for count two, but stated no reason for doing so.
DISCUSSION
I
Upper-Term Sentencing
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) Under this rule, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court rejected a claim of Blakely error, concluding “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, at p. 1244.)
In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] however, the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law does “violate[] a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864].)
On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)
Defendant contends the trial court’s reliance on his conviction for driving under the influence to impose the upper term violated his rights under Blakely and Cunningham because that conviction occurred after the fatal accident of August 6, 2004. According to defendant, “Cunningham makes clear that the exception to the general rule is the ‘fact of a prior conviction’ -- which is distinct from a subsequent misdemeanor conviction. As such, it is an ‘extra fact’ beyond that established by the verdict and beyond that subject to the exception.”
In People v. Balderas (1985) 41 Cal.3d 144, 201, the California Supreme Court noted that “California courts have consistently . . . interpreted statutes which call for harsher penal treatment on the basis of ‘prior convictions’” as encompassing only “those [convictions] entered before commission” of the currently charged offense. Following Balderas, the appellate court in People v. Gonzales (1989) 208 Cal.App.3d 1170, 1172 concluded that “the ‘prior’ convictions and prison terms referred to in California Rules of Court, rule 421(b)(2) and (3) [now rule 4.421(b)(2) and (3)], are limited to those occurring prior to the currently charged offense.” Nevertheless, the court concluded that the “defendant’s conduct subsequent to the charged offense was properly considered as a factor in aggravation” because “[t]he judge was not . . . limited to the aggravating factors listed in rule 421, but was free to apply ‘additional criteria reasonably related to the decision being made.’” (Gonzales, at pp. 1172-1173.) Thus, in the absence of “some flat prohibition against using a defendant’s conduct subsequent to the offense to aggravate a sentence,” a conviction of another crime that occurs after the currently charged offense may be used to impose the upper term, even though it is not technically a “prior” conviction. (Id. at p. 1172.)
Here, defendant attempts to extend the reasoning in Balderas to the federal constitutional context of Blakely and Cunningham; however, he cites no authority supporting this extension. Instead, he simply asserts that a conviction subsequent to the currently charged offense cannot be a “prior” conviction for purposes of Blakely and Cunningham.
We are aware of no principled basis for defendant’s ipse dixit reasoning. Under Apprendi, Blakely, and Cunningham, the trial court may use a “prior” conviction to increase the penalty for a crime beyond the prescribed statutory maximum without the jury finding, or the defendant admitting, that conviction. Inasmuch as this rule relates to sentencing, there is no reason that, for purposes of the rule, a “prior” conviction can only be one that occurred before the presently charged offense was committed. Rather, logic dictates that a “prior” conviction for purposes of Apprendi, Blakely, and Cunningham may be any conviction that occurred before the time sentence is imposed on the currently charged offense. (Cf. People v. Balderas, supra, 41 Cal.3d at pp. 207-208 (conc. & dis. opn. of Lucas, J.) [applying the same reasoning to the use of a “prior” conviction in sentencing in a death penalty case].)
Here, defendant committed the currently charged offenses on August 6, 2004. On April 22, 2005, he was arrested for driving under the influence, and on May 27, 2005, he was convicted of a misdemeanor for that incident. We know of no reason why the trial court could not consider that conviction as a “prior” conviction, without the need for a jury finding or admission by defendant, when the court undertook the sentencing of defendant in this case in March 2006.
In addition to the foregoing reasoning, there is another reason why defendant’s rights under Apprendi, Blakely, and Cunningham were not violated here. The judicial record shows that in addition to his conviction for driving under the influence from May 2005, defendant has three convictions for driving with a suspended license -- all of which predated the accident underlying this case. Thus, even if the conviction for driving under the influence could not be deemed a “prior” conviction for purposes of Apprendi, Blakely, and Cunningham, the three convictions for driving with a suspended license are without question prior convictions. Under Black II, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Such is the case here. Thus, the imposition of the upper term for manslaughter did not violate defendant’s rights.
II
Consecutive Sentencing
Defendant contends that the reasoning of Apprendi, Blakely, and Cunningham as applied to California’s upper term determinate sentencing is equally applicable to California’s consecutive determinate sentencing. This is so, he asserts, because a concurrent rather than a consecutive sentence is the presumptive term. We reject this contention.
While this appeal was pending, the California Supreme held in Black II that there is no presumption for concurrent sentencing under Penal Code section 669, which generally governs consecutive sentencing. (Black II, supra, 41 Cal.4th at pp. 822-823.) We are bound by this holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.

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Wednesday, September 19, 2007

Michigan may consider out-of-state DUI as prior conviction

September 19, 2007

California DUI criminal defense lawyers have previously had the luxury of telling clients that a California DUI conviction may not be considered as a prior drunk driving conviction in Michigan. The Interstate Compact's inapplicability may have had something to do with that. But now, California DUI offenses and out-of-state drunk driving offenses may count in Michigan.

California DUI convictions and out-of-state drunk driving offenses could be considered as prior convictions in Michigan under legislation recently introduced in the state House.

House Bill (HB) 5160, sponsored by Rep. Jim Marleau (R-Lake Orion), would allow law enforcement officials to add the out-of-state drunk driving convictions to an offender's prior convictions in order to draw stiffer penalties. If an offender had two drunk driving convictions in Ohio and was pulled over by police for the same thing in Michigan and convicted, the offender would have three drunk driving violations on their Michigan record. Judges and police could also consider those two prior offenses during the investigation and proceedings related to the third offense.

"Let's look at the totality here," said state Rep. Chuck Moss (R-Orchard Lake). "If (a driver) has a drinking problem, we want to know about it. If he's had a whole bunch or priors in Ohio or Tennessee or California, that would be nice to know when you're deciding what to do about him."

Moss is also listed as a co-sponsor on the bill, among many other house members. State Rep. Chris Ward (R-Milford) is one of those members.

"It just makes sense that if you break the law in some other state doing that, it should count here," said Ward's Chief of Staff Frank Raha. "State lines shouldn't be some kind of pass."

Lakes area state Reps. David Law (R-Commerce, West Bloomfield, Wolverine Lake), Fran Amos (R-Waterford, West Bloomfield), John Stakoe (R-Highland, White Lake), and Craig DeRoche (R-Walled Lake, Wixom) are all co-sponsors of the measure, but were unavailable for comment prior to press time.

The language of the bill changes the meaning of "prior conviction" in the state's drunk driving law — Pubic Act (PA) 300 of 1949, known as the "Michigan Vehicle Code" — by changing section 625 (MCL 257.625), as amended in 2006 by PA 564.

The change adds, "a law of the United States substantially corresponding to a law of this state, a law of another state substantially corresponding to a law of this state, or a local ordinance of a political subdivision of another state substantially corresponding to a law of this state" under the prescribed section.

Essentially, any other state's law that prohibits the operation of a motor vehicle while intoxicated meets that requirement, according to Oakland County Prosecutor David Gorcyca, who said he supports the measure.

Gorcyca said it's "absolutely fair" to consider out-of-state offenses as prior convictions to keep Michigan roadways safe.

"Just because the other violations were not abstracted to the Secretary of State, does that mean you should benefit because law enforcement isn't aware of them? I don't think so," he said. "More importantly, this allows us to prevent repeat drunk driving offenders from escaping harsher consequences."

The difference between a first drunk driving offense and, for example, two or three could be anywhere from a 93-day misdemeanor and a restricted driver's license to a five-year felony and a revoked license, according to Gorcyca.

HB 5160 awaits a hearing before the House Judiciary Committee.

The interstate impact of a California DUI appears to grow.

Credibility or Believability of California DUI trial witnesses

California DUI criminal defense lawyers often find their DUI cases being decided on the credibility of the witnesses.

Many times a California DUI crminal defense attorney will catch a DUI officer fabricating or changing his testimony. That is where this jury instruction comes in:

Calcrim Jury Instruction for California DUI

226. Witnesses

You alone, must judge the credibility or believability of the
witnesses. In deciding whether testimony is true and accurate, use
your common sense and experience. The testimony of each witness
must be judged by the same standard. You must set aside any bias
or prejudice you may have, including any based on the witness’s
disability, gender, race, religion, ethnicity, sexual orientation,
gender identity, age, national origin, [or] socioeconomic status[, or
].
You may believe all, part, or none of any witness’s testimony.
Consider the testimony of each witness and decide how much of it
you believe.
In evaluating a witness’s testimony, you may consider anything
that reasonably tends to prove or disprove the truth or accuracy of
that testimony. Among the factors that you may consider are:
• How well could the witness see, hear, or otherwise perceive
the things about which the witness testified?
• How well was the witness able to remember and describe
what happened?
• What was the witness’s behavior while testifying?
• Did the witness understand the questions and answer them
directly?
• Was the witness’s testimony influenced by a factor such as
bias or prejudice, a personal relationship with someone
involved in the case, or a personal interest in how the case
is decided?
• What was the witness’s attitude about the case or about
testifying?
• Did the witness make a statement in the past that is
consistent or inconsistent with his or her testimony?
• How reasonable is the testimony when you consider all the
other evidence in the case?
• [Did other evidence prove or disprove any fact about which
the witness testified?]
• [Did the witness admit to being untruthful?]
• [What is the witness’s character for truthfulness?]
• [Has the witness been convicted of a felony?]
• [Has the witness engaged in [other] conduct that reflects on
his or her believability?]
• [Was the witness promised immunity or leniency in
exchange for his or her testimony?]
Do not automatically reject testimony just because of
inconsistencies or conflicts. Consider whether the differences are
important or not. People sometimes honestly forget things or make
mistakes about what they remember. Also, two people may witness
the same event yet see or hear it differently.
[If the evidence establishes that a witness’s character for
truthfulness has not been discussed among the people who know
him or her, you may conclude from the lack of discussion that the
witness’s character for truthfulness is good.]
[If you do not believe a witness’s testimony that he or she no
longer remembers something, that testimony is inconsistent with
the witness’s earlier statement on that subject.]
[If you decide that a witness deliberately lied about something
significant in this case, you should consider not believing anything
that witness says. Or, if you think the witness lied about some
things, but told the truth about others, you may simply accept the
part that you think is true and ignore the rest.]

New January 2006; Revised June 2007

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on factors relevant to a witness’s
credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883–884 [123
Cal.Rptr. 119, 538 P.2d 247].) Although there is no sua sponte duty to
instruct on inconsistencies in testimony or a witness who lies, there is
authority approving instruction on both topics. (Dodds v. Stellar (1946) 77
Cal.App.2d 411, 426 [175 P.2d 607])

Tuesday, September 18, 2007

New California DUI laws - PAS test use expanded

California drunk driving criminal defense attorney news

New California DUI laws

Featured: newly added CVC 23154 expanding use of PAS test

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 13353.1 of the Vehicle Code is amended to read:

13353.1. (a) If a person refuses an officer's request to submit
to, or fails to complete, a preliminary alcohol screening test
pursuant to Section 13388 or 13389, upon the receipt of the officer's
sworn statement, submitted pursuant to Section 13380, that the
officer had reasonable cause to believe the person had been driving a
motor vehicle in violation of Section 23136 or 23154, and that the
person had refused to submit to, or did not complete, the test after
being requested by the officer, the department shall do one of the
following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either of the following:
(A) A separate violation of subdivision (a) of Section 23136, that
resulted in a finding of a violation, or a separate violation, that
resulted in a conviction, of Section 23103, as specified in Section
23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code.
(B) A suspension or revocation of the person's privilege to
operate a motor vehicle if that action was taken pursuant to this
section or Section 13353 or 13353.2 for an offense that occurred on a
separate occasion.
(3) Revoke the person's privilege to operate a motor vehicle for a
period of three years if the refusal occurred within 10 years of any
of the following:
(A) Two or more separate violations of subdivision (a) of Section
23136, that resulted in findings of violations, or two or more
separate violations, that resulted in convictions, of Section 23103,
as specified in Section 23103.5, of Section 23140, 23152, or 23153,
or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal
Code, or any combination thereof.
(B) Two or more suspensions or revocations of the person's
privilege to operate a motor vehicle if those actions were taken
pursuant to this section, or Section 13353 or 13353.2, for offenses
that occurred on separate occasions.
(C) Any combination of two or more of the convictions or
administrative suspensions or revocations described in subparagraph
(A) or (B).
(b) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or Canada
that, if committed in this state, would be a violation of Section
23103, as specified in Section 23103.5, or Section 23140, 23152, or
23153, or Section 191.5 or subdivision (a) of Section 192.5 of the
Penal Code, is a conviction of that particular section of the Vehicle
or Penal Code.
(c) The notice of the order of suspension or revocation under this
section shall be served on the person by the peace officer pursuant
to Section 13388 and shall not become effective until 30 days after
the person is served with that notice. The notice of the order of
suspension or revocation shall be on a form provided by the
department. If the notice of the order of suspension or revocation
has not been served by the peace officer pursuant to Section 13388,
the department immediately shall notify the person in writing of the
action taken. The peace officer who serves the notice, or the
department, if applicable, also shall provide, if the officer or
department, as the case may be, determines that it is necessary to do
so, the person with the appropriate non-English notice developed
pursuant to subdivision (d) of Section 14100.
(d) Upon the receipt of the officer's sworn statement, the
department shall review the record. For the purposes of this section,
the scope of the administrative review shall cover all of the
following issues:
(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section
23136.
(2) Whether the person was lawfully detained.
(3) Whether the person refused to submit to, or did not complete,
the test after being requested to do so by a peace officer.
(e) The person may request an administrative hearing pursuant to
Section 13558. Except as provided in subdivision (e) of Section
13558, the request for an administrative hearing does not stay the
order of suspension or revocation.
SEC. 1.5. Section 13353.1 of the Vehicle Code is amended to read:
13353.1. (a) If a person refuses an officer's request to submit
to, or fails to complete, a preliminary alcohol screening test
pursuant to Section 13388 or 13389, upon the receipt of the officer's
sworn statement, submitted pursuant to Section 13380, that the
officer had reasonable cause to believe the person had been driving a
motor vehicle in violation of Section 23136 or 23154, and that the
person had refused to submit to, or did not complete, the test after
being requested by the officer, the department shall do one of the
following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either of the following:
(A) A separate violation of subdivision (a) of Section 23136, that
resulted in a finding of a violation, or a separate violation, that
resulted in a conviction, of Section 23103, as specified in Section
23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code.
(B) A suspension or revocation of the person's privilege to
operate a motor vehicle if that action was taken pursuant to this
section or Section 13353 or 13353.2 for an offense that occurred on a
separate occasion.
(3) Revoke the person's privilege to operate a motor vehicle for a
period of three years if the refusal occurred within 10 years of any
of the following:
(A) Two or more separate violations of subdivision (a) of Section
23136, that resulted in findings of violations, or two or more
separate violations, that resulted in convictions, of Section 23103,
as specified in Section 23103.5, of Section 23140, 23152, or 23153,
or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal
Code, or any combination thereof.
(B) Two or more suspensions or revocations of the person's
privilege to operate a motor vehicle if those actions were taken
pursuant to this section, or Section 13353 or 13353.2, for offenses
that occurred on separate occasions.
(C) Any combination of two or more of the convictions or
administrative suspensions or revocations described in subparagraph
(A) or (B).
(b) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or Canada
that, if committed in this state, would be a violation of Section
23103, as specified in Section 23103.5, or Section 23140, 23152, or
23153, or Section 191.5 or subdivision (a) of Section 192.5 of the
Penal Code, is a conviction of that particular section of the Vehicle
or Penal Code.
(c) The notice of the order of suspension or revocation under this
section shall be served on the person by the peace officer pursuant
to Section 13388 and shall not become effective until 30 days after
the person is served with that notice. The notice of the order of
suspension or revocation shall be on a form provided by the
department. If the notice of the order of suspension or revocation
has not been served by the peace officer pursuant to Section 13388,
the department immediately shall notify the person in writing of the
action taken. The peace officer who serves the notice, or the
department, if applicable, also shall provide, if the officer or
department, as the case may be, determines that it is necessary to do
so, the person with the appropriate non-English notice developed
pursuant to subdivision (d) of Section 14100.
(d) Upon the receipt of the officer's sworn statement, the
department shall review the record. For the purposes of this section,
the scope of the administrative review shall cover all of the
following issues:
(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section
23136.
(2) Whether the person was lawfully detained.
(3) Whether the person refused to submit to, or did not complete,
the test after being requested to do so by a peace officer.
(e) The person may request an administrative hearing pursuant to
Section 13558. Except as provided in subdivision (e) of Section
13558, the request for an administrative hearing does not stay the
order of suspension or revocation.
SEC. 2. Section 13353.2 of the Vehicle Code is amended to read:
13353.2. (a) The department shall immediately suspend the
privilege of a person to operate a motor vehicle for any one of the
following reasons:
(1) The person was driving a motor vehicle when the person had
0.08 percent or more, by weight, of alcohol in his or her blood.
(2) The person was under 21 years of age and had a blood-alcohol
concentration of 0.01 percent or greater, as measured by a
preliminary alcohol screening test, or other chemical test.
(3) The person was driving a vehicle that requires a commercial
driver's license when the person had a 0.04 percent or more, by
weight, of alcohol in his or her blood.
(4) The person was driving a motor vehicle when both of the
following apply:
(A) The person was on probation for a violation of Section 23152
or 23153.
(B) The person had a 0.01 percent or more, by weight, of alcohol
in his or her blood, as measured by a preliminary alcohol screening
test or other chemical test.
(b) The notice of the order of suspension under this section shall
be served on the person by a peace officer pursuant to Section 13388
or 13382. The notice of the order of suspension shall be on a form
provided by the department. If the notice of the order of suspension
has not been served upon the person by the peace officer pursuant to
Section 13388 or 13382, upon the receipt of the report of a peace
officer submitted pursuant to Section 13380, the department shall
mail written notice of the order of the suspension to the person at
the last known address shown on the department's records and, if the
address of the person provided by the peace officer's report differs
from the address of record, to that address.
(c) The notice of the order of suspension shall clearly specify
the reason and statutory grounds for the suspension, the effective
date of the suspension, the right of the person to request an
administrative hearing, the procedure for requesting an
administrative hearing, and the date by which a request for an
administrative hearing shall be made in order to receive a
determination prior to the effective date of the suspension.
(d) The department shall make a determination of the facts in
subdivision (a) on the basis of the report of a peace officer
submitted pursuant to Section 13380. The determination of the facts,
after administrative review pursuant to Section 13557, by the
department is final, unless an administrative hearing is held
pursuant to Section 13558 and any judicial review of the
administrative determination after the hearing pursuant to Section
13559 is final.
(e) The determination of the facts in subdivision (a) is a civil
matter that is independent of the determination of the person's guilt
or innocence, shall have no collateral estoppel effect on a
subsequent criminal prosecution, and shall not preclude the
litigation of the same or similar facts in the criminal proceeding.
If a person is acquitted of criminal charges relating to a
determination of facts under subdivision (a), or if the person's
driver's license was suspended pursuant to Section 13388 and the
department finds no basis for a suspension pursuant to that section,
the department shall immediately reinstate the person's privilege to
operate a motor vehicle if the department has suspended it
administratively pursuant to subdivision (a), and the department
shall return or reissue for the remaining term any driver's license
that has been taken from the person pursuant to Section 13382 or
otherwise. Notwithstanding subdivision (b) of Section 13558, if
criminal charges under Section 23140, 23152, or 23153 are not filed
by the district attorney because of a lack of evidence, or if those
charges are filed but are subsequently dismissed by the court because
of an insufficiency of evidence, the person has a renewed right to
request an administrative hearing before the department. The request
for a hearing shall be made within one year from the date of arrest.
(f) The department shall furnish a form that requires a detailed
explanation specifying which evidence was defective or lacking and
detailing why that evidence was defective or lacking. The form shall
be made available to the person to provide to the district attorney.
The department shall hold an administrative hearing, and the hearing
officer shall consider the reasons for the failure to prosecute given
by the district attorney on the form provided by the department. If
applicable, the hearing officer shall consider the reasons stated on
the record by a judge who dismisses the charges. A fee shall not be
imposed pursuant to Section 14905 for the return or reissuing of a
driver's license pursuant to this subdivision. The disposition of a
suspension action under this section does not affect an action to
suspend or revoke the person's privilege to operate a motor vehicle
under another provision of this code, including, but not limited to,
Section 13352 or 13353, or Chapter 3 (commencing with Section 13800).

SEC. 3. Section 13389 is added to the Vehicle Code, to read:
13389. (a) If a peace officer lawfully detains a person
previously convicted of Section 23152 or 23153 who is driving a motor
vehicle, while the person is on probation for a violation of Section
23152 or 23153, and the officer has reasonable cause to believe that
the person is in violation of Section 23154, the officer shall
request that the person take a preliminary alcohol screening test to
determine the presence of alcohol in the person, if a preliminary
alcohol screening test device is immediately available. If a
preliminary alcohol screening test device is not immediately
available, the officer may request the person to submit to chemical
testing of his or her blood, breath, or urine, conducted pursuant to
Section 23612.
(b) If the person refuses to take, or fails to complete, the
preliminary alcohol screening test or refuses to take or fails to
complete a chemical test if a preliminary alcohol device is not
immediately available, or if the person takes the preliminary alcohol
screening test and that test reveals a blood-alcohol concentration
of 0.01 percent or greater, the officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve
the person with a notice of an order of suspension of the person's
driving privilege.
(2) (A) The officer shall take possession of any driver's license
issued by this state that is held by the person. When the officer
takes possession of a valid driver's license, the officer shall
issue, on behalf of the department, a temporary driver's license.
(B) The temporary driver's license shall be an endorsement on the
notice of the order of suspension and shall be valid for 30 days from
the date of issuance, or until receipt of the order of suspension
from the department, whichever occurs first.
(3) (A) The officer shall immediately forward a copy of the
completed notice of order of suspension form, and any driver's
license taken into possession under paragraph (2), with the report
required by Section 13380, to the department.
(B) For the purposes of subparagraph (A), "immediately" means on
or before the end of the fifth ordinary business day after the notice
of order of suspension was served.
(c) For the purposes of this section, a preliminary alcohol
screening test device is an instrument designed and used to measure
the presence of alcohol in a person based on a breath sample.

SEC. 4. Section 22651 of the Vehicle Code is amended to read:
22651. A peace officer, as defined in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2 of the Penal Code, or a
regularly employed and salaried employee, who is engaged in directing
traffic or enforcing parking laws and regulations, of a city,
county, or jurisdiction of a state agency in which a vehicle is
located, may remove a vehicle located within the territorial limits
in which the officer or employee may act, under the following
circumstances:
(a) When a vehicle is left unattended upon a bridge, viaduct, or
causeway or in a tube or tunnel where the vehicle constitutes an
obstruction to traffic.
(b) When a vehicle is parked or left standing upon a highway in a
position so as to obstruct the normal movement of traffic or in a
condition so as to create a hazard to other traffic upon the highway.

(c) When a vehicle is found upon a highway or public land and a
report has previously been made that the vehicle is stolen or a
complaint has been filed and a warrant thereon is issued charging
that the vehicle is embezzled.
(d) When a vehicle is illegally parked so as to block the entrance
to a private driveway and it is impractical to move the vehicle from
in front of the driveway to another point on the highway.
(e) When a vehicle is illegally parked so as to prevent access by
firefighting equipment to a fire hydrant and it is impracticable to
move the vehicle from in front of the fire hydrant to another point
on the highway.
(f) When a vehicle, except a highway maintenance or construction
equipment, is stopped, parked, or left standing for more than four
hours upon the right-of-way of a freeway that has full control of
access and no crossings at grade and the driver, if present, cannot
move the vehicle under its own power.
(g) When the person in charge of a vehicle upon a highway or
public land is, by reason of physical injuries or illness,
incapacitated to an extent so as to be unable to provide for its
custody or removal.
(h) (1) When an officer arrests a person driving or in control of
a vehicle for an alleged offense and the officer is, by this code or
other law, required or permitted to take, and does take, the person
into custody.
(2) When an officer serves a notice of an order of suspension or
revocation pursuant to Section 13388 or 13389.
(i) (1) When a vehicle, other than a rented vehicle, is found upon
a highway or public land, or is removed pursuant to this code, and
it is known that the vehicle has been issued five or more notices of
parking violations to which the owner or person in control of the
vehicle has not responded within 21 calendar days of notice of
citation issuance or citation issuance or 14 calendar days of the
mailing of a notice of delinquent parking violation to the agency
responsible for processing notices of parking violation or the
registered owner of the vehicle is known to have been issued five or
more notices for failure to pay or failure to appear in court for
traffic violations for which a certificate has not been issued by the
magistrate or clerk of the court hearing the case showing that the
case has been adjudicated or concerning which the registered owner's
record has not been cleared pursuant to Chapter 6 (commencing with
Section 41500) of Division 17, the vehicle may be impounded until
that person furnishes to the impounding law enforcement agency all of
the following:
(A) Evidence of his or her identity.
(B) An address within this state at which he or she can be
located.
(C) Satisfactory evidence that all parking penalties due for the
vehicle and all other vehicles registered to the registered owner of
the impounded vehicle, and all traffic violations of the registered
owner, have been cleared.
(2) The requirements in subparagraph (C) of paragraph (1) shall be
fully enforced by the impounding law enforcement agency on and after
the time that the Department of Motor Vehicles is able to provide
access to the necessary records.
(3) A notice of parking violation issued for an unlawfully parked
vehicle shall be accompanied by a warning that repeated violations
may result in the impounding of the vehicle. In lieu of furnishing
satisfactory evidence that the full amount of parking penalties or
bail has been deposited, that person may demand to be taken without
unnecessary delay before a magistrate, for traffic offenses, or a
hearing examiner, for parking offenses, within the county in which
the offenses charged are alleged to have been committed and who has
jurisdiction of the offenses and is nearest or most accessible with
reference to the place where the vehicle is impounded. Evidence of
current registration shall be produced after a vehicle has been
impounded, or, at the discretion of the impounding law enforcement
agency, a notice to appear for violation of subdivision (a) of
Section 4000 shall be issued to that person.
(4) A vehicle shall be released to the legal owner, as defined in
Section 370, if the legal owner does all of the following:
(A) Pays the cost of towing and storing the vehicle.
(B) Submits evidence of payment of fees as provided in Section
9561.
(C) Completes an affidavit in a form acceptable to the impounding
law enforcement agency stating that the vehicle was not in possession
of the legal owner at the time of occurrence of the offenses
relating to standing or parking. A vehicle released to a legal owner
under this subdivision is a repossessed vehicle for purposes of
disposition or sale. The impounding agency shall have a lien on any
surplus that remains upon sale of the vehicle to which the registered
owner is or may be entitled, as security for the full amount of the
parking penalties for all notices of parking violations issued for
the vehicle and for local administrative charges imposed pursuant to
Section 22850.5. The legal owner shall promptly remit to, and deposit
with, the agency responsible for processing notices of parking
violations from that surplus, on receipt of that surplus, the full
amount of the parking penalties for all notices of parking violations
issued for the vehicle and for local administrative charges imposed
pursuant to Section 22850.5.
(5) The impounding agency that has a lien on the surplus that
remains upon the sale of a vehicle to which a registered owner is
entitled pursuant to paragraph (4) has a deficiency claim against the
registered owner for the full amount of the parking penalties for
all notices of parking violations issued for the vehicle and for
local administrative charges imposed pursuant to Section 22850.5,
less the amount received from the sale of the vehicle.
(j) When a vehicle is found illegally parked and there are no
license plates or other evidence of registration displayed, the
vehicle may be impounded until the owner or person in control of the
vehicle furnishes the impounding law enforcement agency evidence of
his or her identity and an address within this state at which he or
she can be located.
(k) When a vehicle is parked or left standing upon a highway for
72 or more consecutive hours in violation of a local ordinance
authorizing removal.
() When a vehicle is illegally parked on a highway in violation of
a local ordinance forbidding standing or parking and the use of a
highway, or a portion thereof, is necessary for the cleaning, repair,
or construction of the highway, or for the installation of
underground utilities, and signs giving notice that the vehicle may
be removed are erected or placed at least 24 hours prior to the
removal by a local authority pursuant to the ordinance.
(m) Wherever the use of the highway, or a portion of the highway,
is authorized by a local authority for a purpose other than the
normal flow of traffic or for the movement of equipment, articles, or
structures of unusual size, and the parking of a vehicle would
prohibit or interfere with that use or movement, and signs giving
notice that the vehicle may be removed are erected or placed at least
24 hours prior to the removal by a local authority pursuant to the
ordinance.
(n) Whenever a vehicle is parked or left standing where local
authorities, by resolution or ordinance, have prohibited parking and
have authorized the removal of vehicles. A vehicle shall not be
removed unless signs are posted giving notice of the removal.
(o) (1) When a vehicle is found or operated upon a highway, public
land, or an offstreet parking facility with a registration
expiration date in excess of six months before the date it is found
or operated on the highway, public lands, or the offstreet parking
facility. However, whenever the vehicle is occupied, only a peace
officer, as defined in Chapter 4.5 (commencing with Section 830) of
Title 3 of Part 2 of the Penal Code, may remove the vehicle. For the
purposes of this subdivision, the vehicle shall be released to the
owner or person in control of the vehicle only after the owner or
person furnishes the storing law enforcement agency with proof of
current registration and a currently valid driver's license to
operate the vehicle.
(2) As used in this subdivision, "offstreet parking facility"
means an offstreet facility held open for use by the public for
parking vehicles and includes a publicly owned facility for offstreet
parking, and privately owned facilities for offstreet parking where
a fee is not charged for the privilege to park and which are held
open for the common public use of retail customers.
(p) When the peace officer issues the driver of a vehicle a notice
to appear for a violation of Section 12500, 14601, 14601.1, 14601.2,
14601.3, 14601.4, 14601.5, or 14604 and the vehicle is not impounded
pursuant to Section 22655.5. A vehicle so removed from the highway
or public land, or from private property after having been on a
highway or public land, shall not be released to the registered owner
or his or her agent, except upon presentation of the registered
owner's or his or her agent's currently valid driver's license to
operate the vehicle and proof of current vehicle registration, or
upon order of a court.
(q) Whenever a vehicle is parked for more than 24 hours on a
portion of highway that is located within the boundaries of a common
interest development, as defined in subdivision (c) of Section 1351
of the Civil Code, and signs, as required by Section 22658.2, have
been posted on that portion of highway providing notice to drivers
that vehicles parked thereon for more
than 24 hours will be removed at the owner's expense,
pursuant to a resolution or ordinance adopted by the local authority.

(r) When a vehicle is illegally parked and blocks the movement of
a legally parked vehicle.
(s) (1) When a vehicle, except highway maintenance or construction
equipment, an authorized emergency vehicle, or a vehicle that is
properly permitted or otherwise authorized by the Department of
Transportation, is stopped, parked, or left standing for more than
eight hours within a roadside rest area or viewpoint.
(2) For purposes of this subdivision, a roadside rest area or
viewpoint is a publicly maintained vehicle parking area, adjacent to
a highway, utilized for the convenient, safe stopping of a vehicle to
enable motorists to rest or to view the scenery. If two or more
roadside rest areas are located on opposite sides of the highway, or
upon the center divider, within seven miles of each other, then that
combination of rest areas is considered to be the same rest area.
(t) When a peace officer issues a notice to appear for a violation
of Section 25279.
SEC. 4.5. Section 22651 of the Vehicle Code is amended to read:
22651. A peace officer, as defined in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2 of the Penal Code, or a
regularly employed and salaried employee, who is engaged in directing
traffic or enforcing parking laws and regulations, of a city,
county, or jurisdiction of a state agency in which a vehicle is
located, may remove a vehicle located within the territorial limits
in which the officer or employee may act, under the following
circumstances:
(a) When a vehicle is left unattended upon a bridge, viaduct, or
causeway or in a tube or tunnel where the vehicle constitutes an
obstruction to traffic.
(b) When a vehicle is parked or left standing upon a highway in a
position so as to obstruct the normal movement of traffic or in a
condition so as to create a hazard to other traffic upon the highway.

(c) When a vehicle is found upon a highway or public land and a
report has previously been made that the vehicle is stolen or a
complaint has been filed and a warrant thereon is issued charging
that the vehicle is embezzled.
(d) When a vehicle is illegally parked so as to block the entrance
to a private driveway and it is impractical to move the vehicle from
in front of the driveway to another point on the highway.
(e) When a vehicle is illegally parked so as to prevent access by
firefighting equipment to a fire hydrant and it is impracticable to
move the vehicle from in front of the fire hydrant to another point
on the highway.
(f) When a vehicle, except a highway maintenance or construction
equipment, is stopped, parked, or left standing for more than four
hours upon the right-of-way of a freeway that has full control of
access and no crossings at grade and the driver, if present, cannot
move the vehicle under its own power.
(g) When the person in charge of a vehicle upon a highway or
public land is, by reason of physical injuries or illness,
incapacitated to an extent so as to be unable to provide for its
custody or removal.
(h) (1) When an officer arrests a person driving or in control of
a vehicle for an alleged offense and the officer is, by this code or
other law, required or permitted to take, and does take, the person
into custody.
(2) When an officer serves a notice of an order of suspension or
revocation pursuant to Section 13388 or 13389.
(i) (1) When a vehicle, other than a rented vehicle, is found upon
a highway or public land, or is removed pursuant to this code, and
it is known that the vehicle has been issued five or more notices of
parking violations to which the owner or person in control of the
vehicle has not responded within 21 calendar days of notice of
citation issuance or citation issuance or 14 calendar days of the
mailing of a notice of delinquent parking violation to the agency
responsible for processing notices of parking violation or the
registered owner of the vehicle is known to have been issued five or
more notices for failure to pay or failure to appear in court for
traffic violations for which a certificate has not been issued by the
magistrate or clerk of the court hearing the case showing that the
case has been adjudicated or concerning which the registered owner's
record has not been cleared pursuant to Chapter 6 (commencing with
Section 41500) of Division 17, the vehicle may be impounded until
that person furnishes to the impounding law enforcement agency all of
the following:
(A) Evidence of his or her identity.
(B) An address within this state at which he or she can be
located.
(C) Satisfactory evidence that all parking penalties due for the
vehicle and all other vehicles registered to the registered owner of
the impounded vehicle, and all traffic violations of the registered
owner, have been cleared.
(2) The requirements in subparagraph (C) of paragraph (1) shall be
fully enforced by the impounding law enforcement agency on and after
the time that the Department of Motor Vehicles is able to provide
access to the necessary records.
(3) A notice of parking violation issued for an unlawfully parked
vehicle shall be accompanied by a warning that repeated violations
may result in the impounding of the vehicle. In lieu of furnishing
satisfactory evidence that the full amount of parking penalties or
bail has been deposited, that person may demand to be taken without
unnecessary delay before a magistrate, for traffic offenses, or a
hearing examiner, for parking offenses, within the county in which
the offenses charged are alleged to have been committed and who has
jurisdiction of the offenses and is nearest or most accessible with
reference to the place where the vehicle is impounded. Evidence of
current registration shall be produced after a vehicle has been
impounded, or, at the discretion of the impounding law enforcement
agency, a notice to appear for violation of subdivision (a) of
Section 4000 shall be issued to that person.
(4) A vehicle shall be released to the legal owner, as defined in
Section 370, if the legal owner does all of the following:
(A) Pays the cost of towing and storing the vehicle.
(B) Submits evidence of payment of fees as provided in Section
9561.
(C) Completes an affidavit in a form acceptable to the impounding
law enforcement agency stating that the vehicle was not in possession
of the legal owner at the time of occurrence of the offenses
relating to standing or parking. A vehicle released to a legal owner
under this subdivision is a repossessed vehicle for purposes of
disposition or sale. The impounding agency shall have a lien on any
surplus that remains upon sale of the vehicle to which the registered
owner is or may be entitled, as security for the full amount of the
parking penalties for all notices of parking violations issued for
the vehicle and for all local administrative charges imposed pursuant
to Section 22850.5. The legal owner shall promptly remit to, and
deposit with, the agency responsible for processing notices of
parking violations from that surplus, on receipt of that surplus, the
full amount of the parking penalties for all notices of parking
violations issued for the vehicle and for all local administrative
charges imposed pursuant to Section 22850.5.
(5) The impounding agency that has a lien on the surplus that
remains upon the sale of a vehicle to which a registered owner is
entitled pursuant to paragraph (4) has a deficiency claim against the
registered owner for the full amount of the parking penalties for
all notices of parking violations issued for the vehicle and for all
local administrative charges imposed pursuant to Section 22850.5,
less the amount received from the sale of the vehicle.
(j) When a vehicle is found illegally parked and there are no
license plates or other evidence of registration displayed, the
vehicle may be impounded until the owner or person in control of the
vehicle furnishes the impounding law enforcement agency evidence of
his or her identity and an address within this state at which he or
she can be located.
(k) When a vehicle is parked or left standing upon a highway for
72 or more consecutive hours in violation of a local ordinance
authorizing removal.
() When a vehicle is illegally parked on a highway in violation of
a local ordinance forbidding standing or parking and the use of a
highway, or a portion thereof, is necessary for the cleaning, repair,
or construction of the highway, or for the installation of
underground utilities, and signs giving notice that the vehicle may
be removed are erected or placed at least 24 hours prior to the
removal by a local authority pursuant to the ordinance.
(m) Wherever the use of the highway, or a portion of the highway,
is authorized by a local authority for a purpose other than the
normal flow of traffic or for the movement of equipment, articles, or
structures of unusual size, and the parking of a vehicle would
prohibit or interfere with that use or movement, and signs giving
notice that the vehicle may be removed are erected or placed at least
24 hours prior to the removal by a local authority pursuant to the
ordinance.
(n) Whenever a vehicle is parked or left standing where local
authorities, by resolution or ordinance, have prohibited parking and
have authorized the removal of vehicles. A vehicle shall not be
removed unless signs are posted giving notice of the removal.
(o) (1) When a vehicle is found or operated upon a highway, public
land, or an offstreet parking facility under the following
circumstances:
(A) With a registration expiration date in excess of six months
before the date it is found or operated on the highway, public lands,
or the offstreet parking facility.
(B) Displaying in, or upon, the vehicle, a registration card,
identification card, temporary receipt, license plate, special plate,
registration sticker, device issued pursuant to Section 4853, or
permit that was not issued for that vehicle, or is not otherwise
lawfully used on that vehicle under this code.
(C) Displaying in, or upon, the vehicle, an altered, forged,
counterfeit, or falsified registration card, identification card,
temporary receipt, license plate, special plate, registration
sticker, device issued pursuant to Section 4853, or permit.
(2) When a vehicle described in paragraph (1) is occupied, only a
peace officer, as defined in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2 of the Penal Code, may remove the vehicle.
(3) For the purposes of this subdivision, the vehicle shall be
released to the owner or person in control of the vehicle only after
the owner or person furnishes the storing law enforcement agency with
proof of current registration and a currently valid driver's license
to operate the vehicle.
(4) As used in this subdivision, "offstreet parking facility"
means an offstreet facility held open for use by the public for
parking vehicles and includes a publicly owned facility for offstreet
parking, and privately owned facilities for offstreet parking where
a fee is not charged for the privilege to park and which are held
open for the common public use of retail customers.
(p) When the peace officer issues the driver of a vehicle a notice
to appear for a violation of Section 12500, 14601, 14601.1, 14601.2,
14601.3, 14601.4, 14601.5, or 14604 and the vehicle is not impounded
pursuant to Section 22655.5. A vehicle so removed from the highway
or public land, or from private property after having been on a
highway or public land, shall not be released to the registered owner
or his or her agent, except upon presentation of the registered
owner's or his or her agent's currently valid driver's license to
operate the vehicle and proof of current vehicle registration, or
upon order of a court.
(q) Whenever a vehicle is parked for more than 24 hours on a
portion of highway that is located within the boundaries of a common
interest development, as defined in subdivision (c) of Section 1351
of the Civil Code, and signs, as required by Section 22658.2, have
been posted on that portion of highway providing notice to drivers
that vehicles parked thereon for more than 24 hours will be removed
at the owner's expense, pursuant to a resolution or ordinance adopted
by the local authority.
(r) When a vehicle is illegally parked and blocks the movement of
a legally parked vehicle.
(s) (1) When a vehicle, except highway maintenance or construction
equipment, an authorized emergency vehicle, or a vehicle that is
properly permitted or otherwise authorized by the Department of
Transportation, is stopped, parked, or left standing for more than
eight hours within a roadside rest area or viewpoint.
(2) For purposes of this subdivision, a roadside rest area or
viewpoint is a publicly maintained vehicle parking area, adjacent to
a highway, utilized for the convenient, safe stopping of a vehicle to
enable motorists to rest or to view the scenery. If two or more
roadside rest areas are located on opposite sides of the highway, or
upon the center divider, within seven miles of each other, then that
combination of rest areas is considered to be the same rest area.
(t) When a peace officer issues a notice to appear for a violation
of Section 25279.

SEC. 5. Section 23154 is added to the Vehicle Code, to read:
23154. (a) It is unlawful for a person who is on probation for a
violation of Section 23152 or 23153 to operate a motor vehicle at any
time with a blood-alcohol concentration of 0.01 percent or greater,
as measured by a preliminary alcohol screening test or other chemical
test.
(b) A person may be found to be in violation of subdivision (a) if
the person was, at the time of driving, on probation for a violation
of Section 23152 or 23153, and the trier of fact finds that the
person had consumed an alcoholic beverage and was driving a vehicle
with a blood-alcohol concentration of 0.01 percent or greater, as
measured by a preliminary alcohol screening test or other chemical
test.
(c) (1) A person who is on probation for a violation of Section
23152 or 23153 who drives a motor vehicle is deemed to have given his
or her consent to a preliminary alcohol screening test or other
chemical test for the purpose of determining the presence of alcohol
in the person, if lawfully detained for an alleged violation of
subdivision (a).
(2) The testing shall be incidental to a lawful detention and
administered at the direction of a peace officer having reasonable
cause to believe the person is driving a motor vehicle in violation
of subdivision (a).
(3) The person shall be told that his or her failure to submit to,
or the failure to complete, a preliminary alcohol screening test or
other chemical test as requested will result in the suspension or
revocation of the person's privilege to operate a motor vehicle for a
period of one year to three years, as provided in Section 13353.1.
SEC. 6. Section 42009 of the Vehicle Code is amended to read:
42009. (a) For an offense specified in subdivision (b), committed
by the driver of a vehicle within a highway construction or
maintenance area, during any time when traffic is regulated or
restricted through or around that area pursuant to Section 21367, or
when the highway construction or maintenance is actually being
performed in the area by workers acting in their official capacity,
the fine, in a misdemeanor case, shall be double the amount otherwise
prescribed. In an infraction case, the fine shall be one category
higher than the penalty otherwise prescribed by the uniform traffic
penalty schedule established pursuant to Section 40310.
(b) A violation of the following is an offense that is subject to
subdivision (a):
(1) Section 21367, relating to regulation of traffic at a
construction site.
(2) Article 3 (commencing with Section 21450) of Chapter 2 of
Division 11, relating to obedience to traffic devices.
(3) Chapter 3 (commencing with Section 21650) of Division 11,
relating to driving, overtaking, and passing.
(4) Chapter 4 (commencing with Section 21800) of Division 11,
relating to yielding the right-of-way.
(5) Chapter 6 (commencing with Section 22100) of Division 11,
relating to turning and stopping and turn signals.
(6) Chapter 7 (commencing with Section 22348) of Division 11,
relating to speed limits.
(7) Chapter 8 (commencing with Section 22450) of Division 11,
relating to special traffic stops.
(8) Section 23103, relating to reckless driving.
(9) Section 23104, relating to reckless driving which results in
bodily injury to another.
(10) Section 23109, relating to speed contests.
(11) Section 23152, relating to driving under the influence of
alcohol or a controlled substance, or a violation of Section 23103,
as specified in Section 23103.5, relating to alcohol-related reckless
driving.
(12) Section 23153, relating to driving under the influence of
alcohol or a controlled substance, which results in bodily injury to
another.
(13) Section 23154, relating to convicted drunk drivers operating
a motor vehicle with a blood-alcohol concentration of 0.01 percent or
greater.
(14) Section 23220, relating to drinking while driving.
(15) Section 23221, relating to drinking in a motor vehicle while
on the highway.
(16) Section 23222, relating to driving while possessing an open
alcoholic beverage container.
(17) Section 23223, relating to being in a vehicle on the highway
while possessing an open alcoholic beverage container.
(18) Section 23224, relating to being a driver or passenger under
the age of 21 possessing an open alcoholic beverage container.
(19) Section 23225, relating to being the owner or driver of a
vehicle in which there is an open alcoholic beverage container.
(20) Section 23226, relating to being a passenger in a vehicle in
which there is an open alcoholic beverage container.
(c) This section applies only when construction or maintenance
work is actually being performed by workers, and there are work zone
traffic control devices, traffic controls or warning signs, or any
combination of those, to notify motorists and pedestrians of
construction or maintenance workers in the area.
SEC. 6.5. Section 42009 of the Vehicle Code is amended to read:
42009. (a) For an offense specified in subdivision (b), committed
by the driver of a vehicle within a highway construction or
maintenance area, during any time when traffic is regulated or
restricted through or around that area pursuant to Section 21367, or
when the highway construction or maintenance is actually being
performed in the area by workers acting in their official capacity,
the fine, in a misdemeanor case, shall be double the amount otherwise
prescribed. In an infraction case, the fine shall be one category
higher than the penalty otherwise prescribed by the uniform traffic
penalty schedule established pursuant to Section 40310.
(b) A violation of the following is an offense that is subject to
subdivision (a):
(1) Section 21367, relating to regulation of traffic at a
construction site.
(2) Article 3 (commencing with Section 21450) of Chapter 2 of
Division 11, relating to obedience to traffic devices.
(3) Chapter 3 (commencing with Section 21650) of Division 11,
relating to driving, overtaking, and passing.
(4) Chapter 4 (commencing with Section 21800) of Division 11,
relating to yielding the right-of-way.
(5) Chapter 6 (commencing with Section 22100) of Division 11,
relating to turning and stopping and turn signals.
(6) Chapter 7 (commencing with Section 22348) of Division 11,
relating to speed limits.
(7) Chapter 8 (commencing with Section 22450) of Division 11,
relating to special traffic stops.
(8) Section 23103, relating to reckless driving.
(9) Section 23104 or 23105, relating to reckless driving which
results in bodily injury to another.
(10) Section 23109 or 23109.1, relating to speed contests.
(11) Section 23152, relating to driving under the influence of
alcohol or a controlled substance, or a violation of Section 23103,
as specified in Section 23103.5, relating to alcohol-related reckless
driving.
(12) Section 23153, relating to driving under the influence of
alcohol or a controlled substance, which results in bodily injury to
another.
(13) Section 23154, relating to convicted drunk drivers operating
a motor vehicle with a blood-alcohol concentration of 0.01 percent or
greater.
(14) Section 23220, relating to drinking while driving.
(15) Section 23221, relating to drinking in a motor vehicle while
on the highway.
(16) Section 23222, relating to driving while possessing an open
alcoholic beverage container.
(17) Section 23223, relating to being in a vehicle on the highway
while possessing an open alcoholic beverage container.
(18) Section 23224, relating to being a driver or passenger under
the age of 21 possessing an open alcoholic beverage container.
(19) Section 23225, relating to being the owner or driver of a
vehicle in which there is an open alcoholic beverage container.
(20) Section 23226, relating to being a passenger in a vehicle in
which there is an open alcoholic beverage container.
(c) This section applies only when construction or maintenance
work is actually being performed by workers, and there are work zone
traffic control devices, traffic controls or warning signs, or any
combination of those, to notify motorists and pedestrians of
construction or maintenance workers in the area.
SEC. 7. Section 42010 of the Vehicle Code is amended to read:
42010. (a) For an offense specified in subdivision (b) that is
committed by the driver of a vehicle within an area that has been
designated as a Safety Enhancement- Double Fine Zone pursuant to
Section 97 and following of the Streets and Highways Code, the fine,
in a misdemeanor case, shall be double the amount otherwise
prescribed, and, in an infraction case, the fine shall be one
category higher than the penalty otherwise prescribed by the uniform
traffic penalty schedule established pursuant to Section 40310.
(b) A violation of the following is an offense that is subject to
subdivision (a):
(1) Chapter 3 (commencing with Section 21650) of Division 11,
relating to driving, overtaking, and passing.
(2) Chapter 7 (commencing with Section 22348) of Division 11,
relating to speed limits.
(3) Section 23103, relating to reckless driving.
(4) Section 23104, relating to reckless driving that results in
bodily injury to another.
(5) Section 23109, relating to speed contests.
(6) Section 23152, relating to driving under the influence of
alcohol or a controlled substance, or a violation of Section 23103,
as specified in Section 23103.5, relating to alcohol-related reckless
driving.
(7) Section 23153, relating to driving under the influence of
alcohol or a controlled substance, which results in bodily injury to
another.
(8) Section 23154, relating to convicted drunk drivers operating a
motor vehicle with a blood-alcohol concentration of 0.01 percent or
greater.
(9) Section 23220, relating to drinking while driving.
(10) Section 23221, relating to drinking in a motor vehicle while
on the highway.
(11) Section 23222, relating to driving while possessing an open
alcoholic beverage container.
(12) Section 23223, relating to being in a vehicle on the highway
while possessing an open alcoholic beverage container.
(13) Section 23224, relating to being a driver or passenger under
21 years of age possessing an open alcoholic beverage container.
(14) Section 23225, relating to being the owner or driver of a
vehicle in which there is an open alcoholic beverage container.
(15) Section 23226, relating to being a passenger in a vehicle in
which there is an open alcoholic beverage container.
(c) This section applies only when traffic controls or warning
signs have been placed pursuant to Section 97 or 97.1 of the Streets
and Highways Code.
(d) (1) Notwithstanding any other provision of law, the enhanced
fine imposed pursuant to this section shall be based only on the base
fine imposed for the underlying offense and shall not include any
other enhancements imposed pursuant to law.
(2) Notwithstanding any other provision of law, any additional
penalty, forfeiture, or assessment imposed by any other statute shall
be based on the amount of the base fine before enhancement or
doubling and shall not be based on the amount of the enhanced fine
imposed pursuant to this section.
SEC. 7.5. Section 42010 of the Vehicle Code is amended to read:
42010. (a) For an offense specified in subdivision (b) that is
committed by the driver of a vehicle within an area that has been
designated as a Safety Enhancement- Double Fine Zone pursuant to
Section 97 and following of the Streets and Highways Code, the fine,
in a misdemeanor case, shall be double the amount otherwise
prescribed, and, in an infraction case, the fine shall be one
category higher than the penalty otherwise prescribed by the uniform
traffic penalty schedule established pursuant to Section 40310.
(b) A violation of the following is an offense that is subject to
subdivision (a):
(1) Chapter 3 (commencing with Section 21650) of Division 11,
relating to driving, overtaking, and passing.
(2) Chapter 7 (commencing with Section 22348) of Division 11,
relating to speed limits.
(3) Section 23103, relating to reckless driving.
(4) Section 23104 or 23105, relating to reckless driving that
results in bodily injury to another.
(5) Section 23109 or 23109.1, relating to speed contests.
(6) Section 23152, relating to driving under the influence of
alcohol or a controlled substance, or a violation of Section 23103,
as specified in Section 23103.5, relating to alcohol-related reckless
driving.
(7) Section 23153, relating to driving under the influence of
alcohol or a controlled substance, which results in bodily injury to
another.
(8) Section 23154, relating to convicted drunk drivers operating a
motor vehicle with a blood-alcohol concentration of 0.01 percent or
greater.
(9) Section 23220, relating to drinking while driving.
(10) Section 23221, relating to drinking in a motor vehicle while
on the highway.
(11) Section 23222, relating to driving while possessing an open
alcoholic beverage container.
(12) Section 23223, relating to being in a vehicle on the highway
while possessing an open alcoholic beverage container.
(13) Section 23224, relating to being a driver or passenger under
21 years of age possessing an open alcoholic beverage container.
(14) Section 23225, relating to being the
owner or driver of a vehicle in which there is an open alcoholic
beverage container.
(15) Section 23226, relating to being a passenger in a vehicle in
which there is an open alcoholic beverage container.
(c) This section applies only when traffic controls or warning
signs have been placed pursuant to Section 97 or 97.1 of the Streets
and Highways Code.
(d) (1) Notwithstanding any other provision of law, the enhanced
fine imposed pursuant to this section shall be based only on the base
fine imposed for the underlying offense and shall not include any
other enhancements imposed pursuant to law.
(2) Notwithstanding any other provision of law, any additional
penalty, forfeiture, or assessment imposed by any other statute shall
be based on the amount of the base fine before enhancement or
doubling and shall not be based on the amount of the enhanced fine
imposed pursuant to this section.
SEC. 8. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 9. This act shall become operative on January 1, 2009.
SEC. 10. Section 1.5 of this bill incorporates amendments to
Section 13353.1 of the Vehicle Code proposed by this bill and AB 678.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2008, (2) each bill amends
Section 13353.1 of the Vehicle Code, and (3) this bill is enacted
after AB 678, in which case Section 13353.1 of the Vehicle Code, as
amended by AB 678, shall remain operative only until the operative
date of this bill, at which time Section 1.5 of this bill shall
become operative, and Section 1 of this bill shall not become
operative.
SEC. 11. Section 4.5 of this bill incorporates amendments to
Section 22651 of the Vehicle Code proposed by this bill and AB 1589.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2008, (2) each bill amends
Section 22651 of the Vehicle Code, and (3) this bill is enacted after
AB 1589, in which case Section 22651 of the Vehicle Code, as amended
by AB 1589, shall remain operative only until the operative date of
this bill, at which time Section 4.5 of this bill shall become
operative, and Section 4 of this bill shall not become operative.
SEC. 12. Section 6.5 of this bill incorporates amendments to
Section 42009 of the Vehicle Code proposed by this bill and AB 430.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2008, (2) each bill amends
Section 42009 of the Vehicle Code, and (3) this bill is enacted after
AB 430, in which case Section 42009 of the Vehicle Code, as amended
by AB 430, shall remain operative only until the operative date of
this bill, at which time Section 6.5 of this bill shall become
operative, and Section 6 of this bill shall not become operative.
SEC. 13. Section 7.5 of this bill incorporates amendments to
Section 42010 of the Vehicle Code proposed by this bill and AB 430.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2008, (2) each bill amends
Section 42010 of the Vehicle Code, and (3) this bill is enacted after
AB 430, in which case Section 42010 of the Vehicle Code, as amended
by AB 430, shall remain operative only until the operative date of
this bill, at which time Section 7.5 of this bill shall become
operative, and Section 7 of this bill shall not become operative.

California DUI criminal defense lawyers warn:

So if you are on probation, you have to submit to a PAS test.

California Drunk Driving Criminal Defense Attorney Speaker

Experience Speaks Volumes.

For over a decade, San Diego California DUI / DMV Defense Attorney Rick Mueller put on an extensive set of San Diego California DUI / DMV defense seminars for California DUI / DMV attorneys across California.

San Diego Drunk Driving Criminal Defense Lawyer Rick Mueller shares valuable tactics and techniques with California DUI attorneys throughout California focusing on new innovations in procedure, science and law related to California DUI cases.

San Diego drunk driving criminal defense attorney Rick Mueller explores all aspects of San Diego California DUI cases.

Persons arrested for San Diego California DUI have a special opportunity to tap into the experience of being represented by a premier San Diego DUI Attorney Specialist.

Visit http://www.SanDiegoDrunkDrivingAttorney.net for this San Diego Drunk Driving Attorney.

Too modest to complete Pee test after California DUI arrest?

California drunk driving criminal defense attorney case

Quesada v. Orr , 14 Cal.App.3d 866
[Civ. No. 27835. Court of Appeals of California, First Appellate District, Division One. January 29, 1971.]
RAYMOND MARTINEZ QUESADA, Plaintiff and Respondent, v. VERNE ORR, as Director, etc., Defendant and Appellant

(Opinion by Elkington, J., with Molinari, P. J., and Sims, J., concurring.) [14 Cal.App.3d 867]

COUNSEL

Thomas C. Lynch, Attorney General, and Ronald V. Thunen, Jr., Deputy Attorney General, for Defendant and Appellant.

Richard E. Hawk and Lawrence E. Kern for Plaintiff and Respondent.

OPINION
ELKINGTON, J.

This appeal relates to the provisions of Vehicle Code sections 13353 and 13354. Section 13353, subdivision (a), as relevant here, provides that one lawfully arrested on probable cause to believe that he was driving a motor vehicle upon a highway while under the influence of intoxicating liquor shall submit to a chemical test for the purpose of determining the alcoholic content of his blood. It further states that "The person arrested shall have the choice of whether the test shall be of his blood, breath or urine, ..." If the person refuses to submit to such a test the Department of Motor Vehicles after certain proceedings "shall suspend his privilege to operate a motor vehicle for a period of six months." (§ 13353, subd. (b).)

Section 13354, subdivision (e), provides: "If the test given under Section 13353 is a chemical test of urine, the person tested shall be given such privacy in the taking of the urine specimen as will insure the accuracy of the specimen and, at the same time, maintain the dignity of the individual involved."

The facts are undisputed. Respondent Raymond Martinez Quesada was lawfully arrested on probable cause to believe that he was driving a motor vehicle under the influence of intoxicating liquor. Advised of his choice of a blood, breath, or urine test, Quesada chose the latter. He was taken to a testing laboratory, handed a urine sample container, and directed to a small [14 Cal.App.3d 869] adjoining restroom. He proceeded to a urinal where with his back to the open door he endeavored to produce a urine specimen. At the time the arresting officer and a laboratory attendant remained behind Quesada about 5 or 6 feet away. Quesada asked them to leave and to close the door; the officer refused because he was concerned that the urine specimen might be diluted with water. Finally after about 15 minutes Quesada threw the empty sample container to the floor and stated that he could not take the test because he was too modest. Blood and breath tests were again offered but were refused.

Thereafter the Department of Motor Vehicles advised Quesada of the suspension of his driver's license for six months. A hearing was requested during the course of which he testified that he had always had great difficulty urinating in public restrooms and had had problems in school when he undressed in front of others in gym classes. The hearing resulted in a determination by the department that the suspension was "proper and required."

Quesada then sought judicial review of the department's decision by petition for mandate under Code of Civil Procedure section 1094.5. The superior court granted the petition and issued its peremptory writ commanding the department to set aside its order. The instant appeal is "from the judgment rendered in favor of the petitioner granting [the] writ of mandate."

In our resolution of the questions presented to us we must be mindful of certain basic considerations concerning the tests required by section 13353.

[1] "Such tests do not violate one's right against self-incrimination (Schmerber v. California, 384 U.S. 757, 760-765 ...; People v. Sudduth, ..., 65 Cal.2d 543, 546-547 [55 Cal.Rptr. 393, 421 P.2d 401]; United States v. Wade, 388 U.S. 218, 221 ...), nor one's right to be free from unreasonable searches and seizures (Schmerber v. California, supra, pp. 766-772 ...), nor one's right to counsel (United States v. Wade, supra; People v. Sudduth, supra, p. 546; see also Gilbert v. California, 388 U.S. 263 ...)." [2] Their purpose is "to reduce the toll of death and injury resulting from the operation of motor vehicles on California highways by intoxicated persons. As said in People v. Sudduth [supra] p. 546 ..., 'In a day when excessive loss of life and property is caused by inebriated drivers, an imperative need exists for a fair, efficient, and accurate system of detection, enforcement and, hence, prevention.'" (Bush v. Bright, 264 Cal.App.2d 788, 790 [71 Cal.Rptr. 123].)

[3a] The first issue is a question of law: Did the attempted administration of Quesada's urine test conform to the requirements of section 13354? We have concluded that it did; our reasons follow. [14 Cal.App.3d 870]

As we have pointed out, section 13354, subdivision (e) directs that "the person tested shall be given such privacy in the taking of the urine specimen as will insure the accuracy of the specimen and at the same time, maintain the dignity of the individual involved." The Legislature has clearly recognized the possibility of conflicting rights -- the right of the state to an accurate urine sample as opposed to its important duty to maintain the dignity of the suspected individual. In construing section 13354, subdivision (e), it is our task, if possible, to harmonize and give effect to each of the statutory demands, thus enforcing the obvious will of the Legislature. (See Ingram v. Justice Court, 69 Cal.2d 832, 839 [73 Cal.Rptr. 410, 447 P.2d 650].)

A reasonable concept of human dignity would seem to require the furnishing of toilet and handwashing facilities to one who is about to furnish a urine sample. But obviously dilution with water would decrease the percentage of alcohol residue in the specimen. (See 3 Curry, Methods of Forensic Science, p. 113 et seq.) The statutory goal to "insure the accuracy of the specimen" would be defeated were Quesada left alone in the washroom behind closed doors. Since urine is 960 parts water and 40 parts solid matter (see Webster's New Internat. Dict. (2d ed.)) a ready opportunity would then have existed to defeat the statutory insistence on "the accuracy of the specimen." [4] "[S]tatutes are to be given a reasonable and common sense construction which will render them valid and operative rather than defeat them." (People v. Davis, 68 Cal.2d 481, 483 [67 Cal.Rptr. 547, 439 P.2d 651].) [3b] Here the intrusion of the state's representatives was minimal; they could not observe Quesada's efforts to secure the sample since his back was turned to them. The affront to his dignity or "modesty" was not greater than that experienced daily by most males, minor and adult, when required to use the urinals of schools, service stations, restaurants, offices, public restrooms, military establishments and other places. The practice followed by the officer and the laboratory attendant gave effect reasonably to each of the contending rights of the statute.

[5a] Quesada next contends that since he was physically unable to take the test of his own choosing, "he should not have to choose another test or be deemed to have refused." This also is a question of law. The contention also has been examined and found to be without merit.

Section 13353 requires that one lawfully arrested for driving while intoxicated shall submit to one of the three designated types of chemical tests, or suffer the prescribed penalty. While he may choose the type of test, the driver's obligation does not end when he has expressed such a choice. He must go further and submit to the test. So strong is the legislative purpose [14 Cal.App.3d 871] that a test be submitted to, that the statute (§ 13353, subd. (a), 3d par.) fn. 1 permits it even though the subject driver, because of unconsciousness or other reasons, is unable to choose the type of, or even to refuse the test. Certainly, by agreeing to one type of test, and then, voluntarily or involuntarily, failing to submit to it, a driver may not thereby deny to the state its right to any test. Such a construction would do violence to the clear purpose of the statute and to the public policy expressed thereby. [6] "Statutes are to be interpreted to give a reasonable result consistent with legislative purpose and not evasive thereof. [Citations.]" (Cal Pacific Collections, Inc. v. Powers, 70 Cal.2d 135, 140 [74 Cal.Rptr. 289, 449 P.2d 225].)

[5b] We accordingly conclude that upon Quesada's inability to submit to the type of chemical test chosen by him, he was obliged, upon request so to do, to select another with which he could comply. Not having done so he refused a "request to submit to a chemical test" (see § 13353, subd. (b)) and brought upon himself the penalty of the statute.

Upon the conceded facts, and as a matter of law, we find the superior court's findings and decision to be unsupported. The peremptory writ of mandate, called judgment in the notice of appeal, must be reversed.

Reversed.

Molinari, P. J., and Sims, J., concurred. [14 Cal.App.3d 872-880]

FN 1. The text of Vehicle Code section 13353, subdivision (a) (3d par.) is: "Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent and such tests may be administered whether or not such person is told that his failure to submit to the test will result in the suspension of his privilege to operate a motor vehicle."

http://www.shybladder.org/

Monday, September 17, 2007

San Diego California DUI Criminal Defense Lawyer website (new) www.SanDiegoDrunkDrivingAttorney.net

San Diego, California (PRWEB) September 17, 2007

San Diego California DUI Lawyer Center Announces New Web Site Design and Internet Resource Center for California DUI Law

San Diego California DUI Attorney Rick Mueller of the San Diego County DUI Law Center, announces the design of the Center's web site: http://www.SanDiegoDrunkDrivingAttorney.net .

The new design for the San Diego Drunk Driving Attorney web site allows access to many California Drunk Driving resources, such as (a) San Diego California DUI/DMV hearing information, (b) California DUI and DMV penalties, (c) military base DUI, (d) California DUI breath and blood test defenses, and (e) other California DUI FAQs.

The California Center's web site: (1) discusses reasons for using a San Diego County California DUI Specialist Attorney, (2) addresses what to do if one is out of state and receives a San Diego California DWI/DUI, and (3) indicates what to expect if one receives a California Boating Under the Influence charge. (4) San Diego California-specific penalties, (5) California court locations, and (6) Victories are listed for informative reference.

California drunk driving criminal defense lawyer Rick Mueller addresses the newest industry trends in California, as well as important California DUI news and tips, in his California DUI Lawyer Center Blog at http://www.sandiegodrunkdrivingattorney.net/blog.html. This comprehensive discussion provides an exciting portal for users to learn more about the industry, as well as submit their questions or concerns regarding California DUI laws.

California users can contact California DUI Lawyer Rick Mueller through the free DUI survey on the web site or at Rick@SanDiegoDUI.com .

California DUI criminal defense attorney Rick Mueller is known as a DMV Guru. He speaks at numerous seminars on topics and issues of San Diego DUI / DMV Law.

California DUI criminal defense lawyer Rick Mueller is an Editorial Consultant to the California Drunk Driving Law book, is a Specialist Member of the California DUI Attorneys Association, and is recognized by his peers in the respectable San Diego California DUI defense community.

California DUI Lawyer Atkins Diet breath test defense

Atkins Diet causes Falsely Elevated California DUI Breath Test Results

A local doctor can explain what the Atkins diet does to the body to produce ketones (acetone and isopropyl alcohol are both produced by the body in ketosis).

Experts like Mary McMurray easily explain how the machine would read both acetone and isopropyl alcohol and report it as ethyl alcohol.

A doctor can explain the Atkins diet in simple terms. It is crucial for jurors to understand why and how the body produces the ketones during the Atkins diet.

Witnesses may show odd eating habits and/or weight loss.

California DUI criminal defense lawyers simply need to convey the reality that an Atkins Diet can easily cause falsely elevated California DUI Breath Test Results.

Feds fund California DUI Lawyer Prosecutors

California Drunk Driving Criminal Defense Attorney news

California Drunk Driving prosecutors announced they received a Federal
grant in the amount of $3.6 million this year to reduce California DUI / Drunk Driving in the State of California.

Funding is to assist in the hiring of California DUI prosecutors to
train other prosecutors on how to better handle California DUI / Drunk Driving
prosecutions.

The ultimate goal is to increase the 77% conviction rate of
all DUI / Drunk Driving arrests in the state of California.

In addition to convicting more people for Ca DUI / California Drunk Driving, the state also hopes to generate more sources of revenue as a result of court fines imposed upon a California DUI / Drunk Driving conviction.

By contrast, California DUI criminal defense lawyers receive no money from the federal government.

Sunday, September 16, 2007

San Diego California DUI Criminal Defense Attorney

San Diego California DUI Laws and San Diego DUI Lawyers is a complete source of information about San Diego California DUI laws, San Diego California DUI attorneys and lawyers, penalties for San Diego driving under the influence, San Diego California DMV driver's license suspensions, San Diego breath alcohol tests, criminal courts, San Diego car insurance after a DUI San Diego California arrest and San Diego police investigative procedures.

San Diego California DUI offers everything you need to know if you are arrested in San Diego California for driving under the San Diego influence of alcohol or driving under the influence of drugs ( DUI ) - sometimes referred to as San Diego "drunk driving", San Diego "drinking and driving" or San Diego "driving while intoxicated" ( DWI )

http://www.SanDiegoDrunkDrivingAttorney.net

California DUI Lawyers Association now an affiliate of NACDL

California Drunk Driving Criminal Defense Attorney announcement

The California DUI Lawyers Association (CDLA) [formerly known as the Association of California Duece Defenders) has been accepted by the National Association of Criminal Defense Lawyers (NACDL) as an Affiliate Organization.

http://www.nacdl.org/public.nsf/freeform/affiliate_cagroup?opendocument

Saturday, September 15, 2007

California drunk driving defense lawyer info

How can you find a qualified California DUI Lawyer?

Check his California drunk driving defense attorney's resume.

Specialist member of the California DUI Lawyers Association?

Involved in the National College for DUI Defense?

Why use San Diego County's Specialist in DUI and DMV Law http://www.sandiegoduilawyer.com/why.html .

Free California DUI Evaluation at http://www.sandiegodrunkdrivingattorney.net/survey.html .

More information or to contact a California DUI Lawyer:

Friday, September 14, 2007

San Diego County California DUI Law Center's creation

The San Diego County DUI Law Center was created to provide San Diego California DUI arrestees with complete information about the California DUI penalties, current California DUI laws, frequently asked California DUI questions, and other San Diego drunk driving information you may find helpful.

San Diego California DUI Lawyer Specialist Rick Mueller welcomes you to contact him with any of your questions.

For detailed information, click below:

San Diego DUI Lawyer

1-800-THE-LAW-DUI

Thursday, September 13, 2007

Sleeping in the car

Why get arrested for California DUI or Drunk Driving while you are parked legally and asleep in the car?

Be smart.

If you need to sleep in your car, make sure your vehicle is legally parked, the engine is off, the parking brake is on, the keys are in the glove box or outside the vehicle, and you are not in the driver's seat.

Sleeping off after a little alcohol is cool.

A California DUI / Drunk Driving conviction is not where you want to be.

California Drunk Driving Without a License is Moral Turpitude

California DUI defense attorney case law update

California DUI defense lawyers often are asked for immigration purposes:
"Is a California DUI moral turpitude?"
No, unless one is also driving without a California license!

Circuit Judges Define Moral Turpitude

September 13, 2007

Critics pan the Ninth Circuit U.S. Court of Appeals for any number of reasons, from its size to its politics, but if there's one thing above reproach, it's the court's nuanced view of moral turpitude.

The court has been known to engage in long, esoteric debates on what Merriam-Webster defines as "inherent baseness" or "depravity." On Wednesday, the evolving definition settled here: Drunken driving isn't turpitude. Drunken driving without a license is.

That's the stark message resident aliens will have to keep in mind, because moral turpitude is grounds for deportation.

Writing for the majority In Marmolejo-Campos v. Gonzalez, 07 CDOS 10982, Judge Consuelo Callahan found that, when combined, the two factors sink to the level of turpitude.

"Driving while intoxicated is despicable, and when coupled with the knowledge that one has been specifically forbidden to drive, it becomes 'an act of baseness, violence or depravity in the private and social duties which a person shows to a fellowman or to society in general, contrary to the accepted and customary rule of right and duty,'" Callahan wrote, referring to a U.S. Supreme Court definition of turpitude. She was joined by Senior Judge Cormac Carney of the Central District of California, who was sitting by designation.

Senior Judge Dorothy Nelson disagreed, with vehemence, going so far as to accuse her colleagues of sophistry. She said that despite the fact that the definition of turpitude is "nebulous," it's clear to her that driving drunk without a license doesn't qualify.

"It is well settled that driving while intoxicated is not a morally turpitudinous act," she wrote. "Nonetheless, the majority concludes that Campos's act of drunk driving was transformed into a turpitudinous offense because he was not legally licensed to drive."

Nelson pointed out that certain crimes — such as fraud, murder and child abuse — always entail turpitude. "On the other hand," she continued, "burglary, assault and battery, malicious mischief, alien smuggling, assault with a deadly weapon, indecency, rioting, and money laundering have all been found not to involve moral turpitude."

In the case of Armando Marmolejo-Campos — who had a history of drunken-driving offenses preceding the one at issue — Nelson said the most serious of his offenses was driving while drunk. And since the Ninth Circuit has previously ruled that multiple instances of intoxicated motoring didn't amount to turpitude, the less-serious violation of driving without a license shouldn't change the depravity level of the crime.

"In sum," she concluded, "while I certainly recognize that driving while intoxicated can have serious and harmful consequences, I am unable to concur in an opinion that contravenes well-established law and is belied by logic."

For its vocal dissent and majority opinion that includes a non-circuit judge, the Marmolejo-Campos case could be ripe for en banc review.

If so, it would be the second time in the last year that an expanded panel has taken on questions of turpitude: In December, an en banc panel heard arguments on whether being an accessory to a crime involves turpitude after a three-judge panel had split on the issue. The judges haven't ruled on that case yet.

California Drunk Driving defense attorneys now have a new case to advise clients.

Wednesday, September 12, 2007

Dept. of Transportation goes after California DUI drivers

California DUI criminal defense lawyer news

The U.S. Department of Transportation is targeting California DUI drivers, and more specifically repeat California Drunk driving offenders, in an effort to make California's roadways safer.

California DUI / drunk drivers kill and U.S. officials have launched a media campaign and enforcement crackdown to do something about it.

National Highway Safety Administrator Nicole Nason spoke recently about the campaign to safe driving advocates and law enforcement officials in Washington, D.C. "We really have not made any gains in reducing drunk driving deaths over the past decade. We continue to lose 13,000 people every single year."

That is why U.S. officials and safe driving advocates are calling for wider use of proven technology such as ignition interlock devices to keep alcohol-impaired drivers off the road.

Tuesday, September 11, 2007

DMV's alcohol report must be made at or near time of analysis

California DMV / DMV defense lawyer news:

For a California DUI blood test report to be admissible, even a 1 day lapse between the analysis and the report may be insufficient for the "at or near" requirement. There was no foundation to establish the lab report was produced by someone copying the actual results of the analysis.

California DUI / DMV defense attorney Ron Jackson did an excellent job here:

Filed 12/12/06 Certified for publication 1/10/07 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRENT ALLEN GLATMAN,
Plaintiff and Respondent,
v.
GEORGE VALVERDE, as Director, etc.,
et al.,
Defendants and Appellants.
G036880
(Super. Ct. No. 05CC10862)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Derek W.
Hunt, Judge. Affirmed.
Law Offices of Ronald A. Jackson and Ronald A. Jackson for Respondent.
Bill Lockyer, Attorney General, Jacob A. Applesmith, Assistant Attorney
General, Elizabeth Hong and Celine M. Cooper, Deputy Attorneys General, for
Appellants.
2
The Department of Motor Vehicles (DMV), George Valverde, DMV
director, and R. Sammartino, a DMV hearing officer (collectively, appellants), appeal
after a superior court judge issued a writ commanding the DMV to set aside its
suspension of Brent Allen Glatman’s driver’s license. Appellants contend the court erred
by finding the results of Glatman’s blood test were not timely recorded, as required by
Evidence Code section 1280, subdivision (b). 1 We affirm.
FACTS
On July 24, 2005, Officer J. Baggs stopped Glatman for speeding on
Pacific Coast Highway and observed Glatman exhibited “red watery eyes, slurred speech,
unsteady gait, [and] a strong odor of an alcoholic beverage.” Glatman stated “he had
consumed 4-5 bottles of beer.” He failed several field sobriety tests administered by
Baggs and was arrested by Baggs pursuant to Vehicle Code section 23152, subdivision
(a) (driving under the influence of alcohol). Glatman surrendered his driver’s license to
Baggs and was notified he could request a hearing to challenge the suspension of his
license.
A forensic alcohol examination report (the Forensic Report) prepared by
the Sheriff-Coroner Department’s Forensic Science Services on August 1, 2005, reflected
the following: At 12:30 a.m. on July 25, one hour after Glatman’s arrest, his blood was
drawn for a blood-alcohol concentration (BAC) test. That same day a forensic analyst at
1 All statutory references are to the Evidence Code unless otherwise stated.
Section 1280 provides: “Evidence of a writing made as a record of an act, condition, or
event is not made inadmissible by the hearsay rule when offered in any civil or criminal
proceeding to prove the act, condition, or event if all of the following applies: (a) The
writing was made by and within the scope of duty of a public employee. (b) The writing
was made at or near the time of the act, condition, or event. (c) The sources of
information and method and time of preparation were such as to indicate its
trustworthiness.”
3
the sheriff-coroner’s department analyzed the blood sample and determined Glatman’s
BAC was 0.137. The next day another sheriff-coroner’s forensic analyst analyzed the
sample and determined Glatman’s BAC was 0.135. The two analysts certified these test
results by their signatures dated August 1, 2005, on the Forensic Report, one week after
Glatman’s blood was drawn.
In September 2005, at an administrative per se hearing held before a DMV
hearing officer, Glatman’s counsel objected to the admission into evidence of the
Forensic Report on hearsay and other grounds. Under section 1280’s hearsay exception
for records made by public employees, the Forensic Report was admissible if, among
other requirements, “[t]he writing was made at or near the time of the act, condition, or
event,” as required by subdivision (b) of that section. Glatman’s counsel argued, inter
alia, that suspension of Glatman’s license was unjustified because his BAC tests were not
recorded at or near the time of the blood analysis. The hearing officer suspended
Glatman’s license for one year, finding, inter alia, the certification of the blood test
results was timely.
Glatman petitioned the superior court for a writ of mandate. At the hearing
on the petition, the DMV relied on two reports to establish Glatman’s BAC was greater
than the statutory requisite of .08 percent for driving under the influence of alcohol: (1)
the Forensic Report; and (2) the field sobriety test report of breath tests (preliminary
alcohol screen tests) administered by Officer Baggs showing Glatman’s BAC was 0.132
and 0.122. The court stated the Forensic Report was untimely and the field sobriety test
report might be inadmissible. The court directed the parties to further brief the issue.
After considering the supplemental briefing, the court granted the petition and issued the
writ commanding the DMV to set aside its suspension of Glatman’s license.
4
DISCUSSION
The Court did not Err in Finding the Forensic Report was Untimely
Appellants contend the court erred in concluding Glatman’s blood test
results were not recorded at or near the time of the analysis of his blood sample. They
assert the analysts entered the test results into a computer database soon after completing
each analysis, and argue the “preparation of the [Forensic Report] on August
1, 2005 . . . was simply the retrieval of the recorded information from the computer
database.” Appellants further contend that section 664 “establishes a presumption that
[Glatman’s] blood alcohol test result was recorded in compliance with official duties.”
We review for abuse of discretion the court’s ruling the Forensic Report did
not meet the timeliness requirement of section 1280, subdivision (b). “A trial court has
broad discretion in determining whether a party has established [the] foundational
requirements [of section 1280]. [Citation.] Its ruling on admissibility ‘implies whatever
finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not
applicable here, unnecessary. [Citation.]’ [Citation.] A reviewing court may overturn
the trial court’s exercise of discretion ‘“only upon a clear showing of abuse.”’” 2 (People
v. Martinez (2000) 22 Cal.4th 106, 119-120 (Martinez).)
Applying this standard of review, we conclude the court did not abuse its
discretion in finding the Forensic Report, prepared “a week later,” was not made “‘at or
[near] the time of the event.’”3 Although appellants assert the analysts promptly entered
2 When ruling on a writ petition challenging an order suspending a driver’s
license, a trial court exercises its independent judgment. (Lake v. Reed (1997) 16 Cal.4th
448, 457.) Generally, an appellate court reviews the trial court’s findings for substantial
evidence. (Ibid.) Here, however, appellants challenge the court’s section 1280 ruling;
the abuse of discretion standard of review therefore applies.
3 The court acknowledged Glatman’s reliance on our opinion in Downer v.
Zolin (1995) 34 Cal.App.4th 578 (Downer), where we stated in a footnote that “a report
prepared nearly a week after the forensic tests were completed does not fall within the
statutory requirement that the report be prepared ‘at or near the time’ of the reported
5
the test results into a computer database, the record contains no support for this assertion.
The computer printout in the clerk’s transcript is dated September 6, 2005, one month
after the date of the Forensic Report. The printout contains no reference to the date on
which the test results were entered into the computer database. Indeed the printout does
not even contain both test results but rather a single, rounded-off result. The record is
also silent as to the recordation procedures followed by the sheriff-coroner’s department.
In short, there is no evidence that Glatman’s test results were recorded in a computer
database (or anywhere else) prior to August 1.
Appellants quote our Supreme Court’s observation in Martinez, supra, 22
Cal.App.4th 106, “that the timeliness requirement ‘is not to be judged . . . by arbitrary or
artificial time limits, measured by hours or days or even weeks.’” (Id. at p. 128.) But the
Martinez court also stated: “‘Whether an entry made subsequent to the transaction has
been made within a sufficient time to render it within the [hearsay] exception depends
upon whether the time span between the transaction and the entry was so great as to
suggest a danger of inaccuracy by lapse of memory.’” (Ibid, italics added.) The
Martinez court held the DMV’s “entry into CLETS [California Law Enforcement
Telecommunications System] of criminal information it receives does not depend on
memory, but simply involves a transfer of information from one form of storage — the
disposition reports — to another — the CLETS database. Under these circumstances, the
Department’s statutory recording duties are sufficiently specific to support the trial
court’s discretionary determination that the CLETS printout met the timeliness
requirement of the official records exception.” (Ibid.)
In contrast, the instant case presents a “danger of inaccuracy by lapse of
memory.” (Martinez, supra, 22 Cal.4th at p. 128.) Appellants concede that, if the
analysts relied on memory, “even a lapse of one day could cast serious doubt about
whether such recordation was made sufficiently ‘at or near’ the time of testing to be
event.” (Id. at p. 582.) The court noted, however, that the Downer statement was dictum
and Downer “was later disapproved by our Supreme Court in other respects.”
6
deemed trustworthy.” But appellants argue that, given the number of tests an analyst
performs each day, it is unreasonable to infer the analyst would try to retain all the test
results in his or her head. The only reasonable inference, according to appellants, is that
“labs have policies and procedures in place to ensure the timely recordation of such
results by analysts.” But an inference may be drawn only if the “proposed conclusion is a
reasonable, logical, and nonspeculative deduction from the facts proved.” (S. C.
Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 539, fn. 12.) Here, the
record is silent as to the department’s recordation policies and procedures, any automatic
recording capability of the testing equipment used, and the average number of tests
performed by an analyst each day.
Appellants rely on Komizu v. Gourley (2002) 103 Cal.App.4th 1001, where
an appellate court upheld a trial court’s finding that an alcohol analysis report was
reliable because “the wording of the report reflected a postponement, not in the recording
of the analysis, but merely in the typing of ‘a journal-type entry.’” (Id. at p. 1007.) Thus,
Komizu involved a transfer of data from one form of recordation to another (as in
Martinez, supra, 22 Cal.4th 106.). Here, in contrast, the Forensic Report’s wording sheds
no light on whether the test results were first recorded on a date earlier than August 1.
And while appellants point out the Forensic Report was prepared only five
working days after the date of Glatman’s arrest, memory is subject to erosion with every
day that passes, whether working or nonworking.
Alternatively, appellants contend section 664 creates a presumption the
analysts timely recorded the test results. Section 664 provides: “It is presumed that
official duty has been regularly performed.” Appellants argue that regulations
promulgated under Health and Safety Code section 100700 (governing laboratories
performing forensic alcohol analysis tests by or for law enforcement agencies) impose an
official duty on forensic analysts to properly record test results. But while those
regulations require laboratories to maintain records, they specify no deadlines or time
7
periods or timeliness requirements governing such recordation. In Yordamlis v. Zolin
(1992) 11 Cal.App.4th 655, the Court of Appeal rejected “the DMV’s attempt to rely on
the presumption that an ‘official duty has been regularly performed . . .’ (. . . § 664) to
establish that [motorist] gave the blood sample within three hours of driving.” (Id. at
p. 661.) The Yordamlis court found “nothing in the language of [Vehicle Code section
21357] that ‘imposes any particular time requirement that can be assumed to have been
met pursuant to the presumption codified by . . . section 664.’”4 (Id. at p. 661.)
Appellants rely on Davenport v. Department of Motor Vehicles (1992) 6
Cal.App.4th 133 (Davenport), where an appellate court recognized a section 664
presumption. (Davenport, at p. 139.) In Davenport, the licensee objected at the
administrative hearing to the admission of the arresting officer’s sworn statement on the
grounds “the document failed to establish that the breath test given to him was given in a
correct manner, that the machine used for the test was operating properly, or that the
officer who administered the test was properly trained.” (Id. at p. 138.) The hearing
officer sustained the order of suspension; the trial court denied the licensee’s petition to
set aside the order. (Id. at pp. 138-139.) The Court of Appeal affirmed the trial court’s
denial of the petition, and recognized a presumption under section 664 that chemical tests
“were administered in compliance with statutory and regulatory requirements.”
(Davenport, at p. 139.) Critical to the Davenport decision, however, were the existence
of a statute and regulations promulgated thereunder which imposed an official duty on
law enforcement officers “to perform blood-alcohol analyses by methods devised to
assure reliability.” (Id. at p. 141.) In another significant distinction from the instant case,
Davenport involved subdivision (c) of section 1280, which mandates that “sources of
information and method and time of preparation” of writings be trustworthy, not the
timeliness requirement of subdivision (b) of section 1280. (Id. at pp. 142-143.)
4 Nor does Vehicle Code section 23612’s mandate that blood test results be
sent to the DMV within 15 calendar days of the date of arrest have any bearing on
whether analysis results were timely recorded.
8
Finally, appellants argue the summary nature of administrative per se
hearings militate against requiring forensic analysts to testify. But there are other ways
of evidencing the prompt recordation of test results, short of analysts testifying — for
example, preparing a laboratory report soon after completing a test, or at least providing
evidence the analysts’ results were truly entered into the computer database immediately
and only printed out later.
The court did not abuse its discretion in finding the Forensic Report was
not prepared at or near the time of the recorded event, as required under section 1280,
subdivision (b). 5
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O’LEARY, J.
5 We need not address appellants’ further contention the court erred in
concluding the evidence did not support a finding Glatman drove with a BAC of at least
0.08 percent, because that contention is predicated on Appellants’ assumption the test
results in the Forensic Report were admissible.
Filed 1/10/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRENT ALLEN GLATMAN,
Plaintiff and Respondent,
v.
GEORGE VALVERDE, as Director, etc.,
et al.,
Defendants and Appellants.
G036880
(Super. Ct. No. 05CC10862)
O R D E R
Respondent has requested that our opinion, filed on December 12, 2006, be
certified for publication. It appears that our opinion meets the standards set forth in
California Rules of Court, rule 8.1105(c). The request is GRANTED. The opinion is
ordered published in the Official Reports.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O’LEARY, J.

California DUI Checkpoint Law

California DUI defense attorney news: California DUI Checkpoint Law -

Ingersoll v. Palmer (1987) 43 Cal.3d 1321 [743 P.2d 1299; 241 Cal.Rptr. 42]

• 3d Series Citing Cases • 4th Series Citing Cases

[S.F. No. 25001. Supreme Court of California. October 29, 1987.]

WILLIAM INGERSOLL et al., Petitioners, v. ALFRED PALMER, as Chief of Police, etc., et al., Respondents

(Opinion by Kaufman, J., with Lucas, C. J., Arguelles and Eagleson, JJ., concurring. Separate dissenting opinion by Broussard, J., with Mosk and Panelli, JJ., concurring.) {Page 43 Cal.3d 1322}

COUNSEL

Margaret C. Crosby, Alan L. Schlosser, Edward Chen, Amatai Schwartz, Donna J. Hitchens, Paul L. Hoffman, Mark D. Rosenbaum and Joan W. Howarth for Petitioners.

John K. Van de Kamp, Attorney General, Linda Ludlow, Thomas A. Brady, Martin S. Kaye, Dane R. Gillette and Ronald E. Niver, Deputy Attorneys General, James K. Hahn and Gary R. Netzer, City Attorneys, Frederick N. Merkin, Senior Assistant City Attorney, Lewis N. Unger, Assistant City Attorney, Donna Weisz and Pamela Victorine, Deputy City Attorneys, for Respondents.

Ira Reiner, District Attorney (Los Angeles), Harry B. Sondheim, Maurice H. Oppenheim and Richard Sullivan, Deputy District Attorneys, and Christopher N. Heard as Amici Curiae on behalf of Respondents.

OPINION

KAUFMAN, J.

This case presents the question whether sobriety checkpoints are permissible under the federal and state Constitutions. We conclude that within certain limitations a sobriety checkpoint may be operated in a manner consistent with the federal and state Constitutions.

Facts

Petitioners are California taxpayers who seek to prohibit the operation of sobriety checkpoints in California. Respondents are chiefs of police of various California cities and the Commissioner of the California Highway Patrol. Petitioners alleged that the respondent law enforcement officers in the various jurisdictions around the state had begun or planned to begin using sobriety checkpoints.

In November 1984, in response to a request by the Commissioner of the California Highway Patrol, the Attorney General issued an opinion that roadblocks could constitutionally be used to detect and apprehend drunk drivers if certain safeguards were maintained to minimize the intrusion on motorists. (67 Ops.Cal.Atty.Gen. 471 (1984).)

That same month, the Burlingame Police Department (the Department) set up the first sobriety checkpoint program to operate in California, {Page 43 Cal.3d 1326} following the guidelines set forth in the Attorney General's opinion. fn. 1 The Burlingame checkpoint was expected to serve as a model for others. We therefore examine the Burlingame checkpoint as illustrative of checkpoint operation procedures.

The Department promulgated a detailed manual to govern the checkpoint operations. The manual covered legal considerations, including the Attorney General's guidelines; a cost analysis; factors affecting location selection; required personnel and equipment; training and briefing of checkpoint personnel; press relations and publicity; as well as procedures for a follow-up evaluation.

The location for the Burlingame checkpoint was selected by taking into account frequency of drunk driving arrests and accidents, and safety factors such as traffic patterns and street layout. A suitable location was selected on El Camino Real for a checkpoint intercepting northbound traffic. fn. 2 Warning signs (including a sign announcing a sobriety checkpoint) were posted. A cone taper diverted traffic to a single northbound lane. The signs and cone taper were set up according to Caltrans regulations for signing and lane closure.

The checkpoint operation was supervised by a commander under whom two sergeants served. One sergeant supervised a team of traffic control and screening officers, and the second sergeant supervised the field sobriety test teams. Two traffic control officers, with support staff, set up the checkpoint and selected every fifth car for screening. There were one to four screening officers who contacted the motorists. Nonsworn reserve personnel were available for recording information and timing each contact. One to four officers, each with a nonsworn reserve assistant, were on duty to administer the field sobriety tests. There was also a booking officer, an officer to operate an intoxilizer, one for photographing and one alternate. There were also nonsworn personnel available for interpreting, transportation and booking assistance. All the officers chosen for checkpoint duty had a good record of "driving under the influence" (DUI) detection and arrest, all had recent refresher training on recognizing the symptoms of drug and alcohol use, and all had special training in checkpoint procedures, including conducting a simulated checkpoint. All officers on duty at the checkpoint were in full uniform. {Page 43 Cal.3d 1327}

On the night of the checkpoint operation, every fifth car was stopped and directed to a screening officer. The screening officer gave the driver a brief prescribed oral explanation of the checkpoint, and handed him or her an information flyer and a postage paid opinion survey card. fn. 3 During the contact, the screening officer observed the driver for bloodshot eyes, alcohol on the breath, and any other signs of impairment. The officer also shined a flashlight into the vehicle, looking for any open containers or other evidence of alcohol consumption. If no symptoms of impairment were observed, the driver was directed to continue into the northbound traffic lanes. If signs of impairment were observed, the driver was directed to a secondary testing area, where another officer would administer a field sobriety test. A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.

The sobriety checkpoint was given advance publicity, including its date and general location. During the checkpoint operation, from 9:30 p.m. to 2:30 a.m. on November 16-17, 1984, 233 motorists were screened. Only 10 were asked to perform field sobriety tests, and all 10 passed. The checkpoint resulted in no arrests. The average detention periods for those cars stopped was 28 seconds. The average time for those who took the field sobriety tests was 6.13 minutes.

Petitioners filed an original petition for writ of mandate in this court within three days after Burlingame established its first sobriety checkpoint. We transferred the matter to the Court of Appeal. The First District, Division Three, denied petitioners' request for a stay and issued an alternative writ. The Court of Appeal issued an opinion in which the majority held sobriety checkpoints conducted in accordance with certain guidelines are permissible under the United States and California Constitutions. We granted the taxpayers' petition for review. fn. 4

Discussion

[1] Petitioners contend the validity of a sobriety checkpoint stop must be determined by the standard set forth in In re Tony C. (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957], requiring an individualized suspicion of wrongdoing. If the primary purpose of the stop here were to detect crime {Page 43 Cal.3d 1328} or gather evidence of crime, we would agree with the contention that an individualized suspicion of wrongdoing is required. But, as we shall explain, the primary purpose of the stop here was not to discover evidence of crime or to make arrests of drunk drivers but to promote public safety by deterring intoxicated persons from driving on the public streets and highways. We therefore conclude the propriety of the sobriety checkpoint stops involved here is to be determined not by the standard pertinent to traditional criminal investigative stops, but rather by the standard applicable to investigative detentions and inspections conducted as part of a regulatory scheme in furtherance of an administrative purpose. (See People v. Hyde (1974) 12 Cal.3d 158, 165-166, 173 [115 Cal.Rptr. 358, 524 P.2d 830].)

In upholding airport screening searches, a majority of this court in Hyde applied the administrative search rationale. (12 Cal.3d at p. 165 et seq.) The concurring minority, reaching the same result, preferred a more generic balancing test of reasonableness. (12 Cal.3d at p. 172 et seq.) But, verbal formulations aside, both the majority and the concurring minority in Hyde relied upon essentially the same principles and factors.

The majority noted: "Like all searches subject to the Fourth Amendment, an administrative screening must be measured against the constitutional mandate of reasonableness. In the case of administrative searches, however, 'there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.' (Camara v. Municipal Court (1967) supra, 387 U.S. 523, 536-537 [18 L.Ed.2d 930, 940, 87 S.Ct. 1727].) It is ironic, therefore, that by adopting the administrative search doctrine to evaluate the validity of airport screening procedures we must undertake a similar process of balancing to that which would have followed from a reliance upon Terry [v. Ohio (1968) 392 U.S. 1 (20 L.Ed.2d 889, 88 S.Ct. 1868)]." (People v. Hyde, supra, 12 Cal.3d 158, 166, italics added.) The concurring minority reasoned: "It is now settled ... that there is no fixed standard of reasonableness that applies to all types of governmental action which is subject to the mandates of the Fourth Amendment. Where, as here, we deal with a type of official conduct that (1) has objectives qualitatively different from those of the conventional search and seizure in the criminal context and (2) cannot feasibly be subjected to regulation through the traditional probable cause standard of justification, we may assess the reasonableness of the particular type of search and seizure by examining and balancing the governmental interest justifying the search and the invasion which the search entails. [Citations.]" (Id., conc. opn. at p. 173. Italics added, fns. and original italics omitted.) We perceive no real inconsistency in the two analyses. They both employed a balancing test for reasonableness. {Page 43 Cal.3d 1329}

1. Reasonableness Standard Under the Fourth Amendment and the California Constitution

[2] The touchstone for all issues under the Fourth Amendment and article I, section 13 of the California Constitution is reasonableness. (See Terry v. Ohio, supra, 392 U.S. 1, 19 [20 L.Ed.2d 889, 904]; People v. Hyde, supra, 12 Cal.3d 158, 166, conc. opn. at pp. 172-173.)

The federal test for determining whether a detention or seizure is justified balances the public interest served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty. (Brown v. Texas (1979) 443 U.S. 47, 50-51 [61 L.Ed.2d 357, 361-362, 99 S.Ct. 2637].) In addition, federal constitutional principles require a showing of either the officer's reasonable suspicion that a crime has occurred or is occurring or, as an alternative, that the seizure is "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." (Brown v. Texas, supra, 443 U.S. at p. 51 [61 L.Ed.2d at p. 362], citing Delaware v. Prouse (1979) 440 U.S. 648, 663 [59 L.Ed.2d 660, 673-674] and United States v. Martinez-Fuerte (1976) 428 U.S. 543, 558-562 [49 L.Ed.2d 1116, 1128-1131].)

California constitutional principles are based on the same considerations, i.e., balancing the governmental interests served against the intrusiveness of the detention. (See People v. Hyde, supra, 12 Cal.3d 158, 166, also conc. opn. at pp. 172-173.) With respect to a seizure for conventional investigation of criminal activity, standards similar to federal standards have been articulated. [3] "[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (People v. Superior Court (Kiefer) [1970] 3 Cal.3d [807,] at p. 827 [91 Cal.Rptr. 729, 478 P.2d 449]), to suspect the same criminal activity and the same involvement by the person in question." (In re Tony C., supra, 21 Cal.3d 888, 893, fn. omitted.)

But Tony C. itself further pointed out that, for purposes of analysis under the Fourth Amendment and under California constitutional law, "[a] more fruitful approach focuses on the purpose of the intrusion itself. If the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity, his Fourth Amendment rights are {Page 43 Cal.3d 1330} implicated and he is entitled to the safeguards of the rules set forth above. But similar safeguards are not required if the officer acts for other proper reasons." (In re Tony C., supra, 21 Cal.3d 888, at p. 895, italics added.) Thus, the court in Tony C., like the United States Supreme Court in Brown, supra, 443 U.S. 47, expressly recognized that individualized suspicion that the contactee is involved in criminal activity is not required in certain types of police-citizen contacts.

We therefore turn to a consideration of the kinds of stops permitted under federal and state law upon less than a reasonable suspicion of personal involvement in criminal wrongdoing.

2. Seizures Not Requiring a Reasonable Suspicion

In People v. Hyde, supra, 12 Cal.3d 158, this court considered the question of airport security screening searches. The majority in an opinion authored by Justice Mosk reasoned that airport searches could not be justified on the basis of Terry v. Ohio, supra, 392 U.S. 1, because Terry carefully limited the permissible search to a patdown necessary to discover weapons, and because, before even the limited patdown search could be conducted, Terry required there to be specific and articulable facts which would lead a reasonable officer to believe the safety of the officer was in danger.

"Nevertheless," we stated, "we do find support under the Fourth Amendment for the pre-departure screening of prospective passengers in the series of United States Supreme Court decisions relating to administrative searches. (United States v. Biswell (1972) 406 U.S. 311 [32 L.Ed.2d 87, 92 S.Ct. 1593]; Wyman v. James (1971) 400 U.S. 309 [27 L.Ed.2d 408, 91 S.Ct. 381]; Colonnade Corp. v. United States (1970) 397 U.S. 72 [25 L.Ed.2d 60, 90 S.Ct. 774]; See v. City of Seattle (1967) 387 U.S. 541 [18 L.Ed.2d 943, 87 S.Ct. 1737]; Camara v. Municipal Court (1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727]; see also United States v. Davis (9th Cir. 1973) 482 F.2d 893; United States v. Schafer (9th Cir. 1972) 461 F.2d 856; Downing v. Kunzig (6th Cir. 1972) 454 F.2d 1230 [15 A.L.R.Fed. 926].) [4a] These cases recognize that 'searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.' [Citation.]" (People v. Hyde, supra, 12 Cal.3d 158, 165.)

We pointed out that the purpose of the airport search is not to ferret out contraband or preserve for trial evidence of criminal activity, although the mechanics of the search itself take the form of a search to detect criminal {Page 43 Cal.3d 1331} activity (carrying weapons or explosives aboard an aircraft). Rather, we characterized the search as "a central phase of a comprehensive regulatory program designed to insure that dangerous weapons will not be carried onto an airplane and to deter potential hijackers from attempting to board. [Citations.]" (People v. Hyde, supra, 12 Cal.3d 158, 166.) In the reasonableness analysis under the Fourth Amendment, we found the governmental interest substantial, the intrusion minimal, and the method effective for its purpose (in fact, we found in that case that there was no other effective means of achieving the purpose). We pointed out it was possible for a traveler to avoid the intrusion by either checking his or her hand luggage or foregoing air travel and opting for alternate means of transportation. Finally, we pointed out that airport searches were singularly unsuited to the warrant procedure because of the extremely high volume of air passenger traffic, rendering it impractical if not impossible to issue a warrant for any individual passenger. In addition, the consequences of not having a warrant were found mitigated by (1) neutral application of the screening process to all air passengers, minimizing the discretion of the officials in the field, and (2) limiting the intrusiveness of the search to those actions strictly necessary to disclose the presence of weapons or explosives.

The three concurring justices in Hyde agreed that the airport screening procedures were constitutionally permissible but questioned whether the airport search could properly be labelled an "administrative search" like the building inspection in Camara v. Municipal Court (1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727]. In the view of the concurring justices in Hyde, supra, 12 Cal.3d 158, the Fourth Amendment considerations should simply be evaluated pursuant to a balancing test of reasonableness, consisting of an assessment of the governmental interest justifying the search and the intrusiveness entailed in the search. The concurring minority had no difficulty in concluding the governmental interest was compelling and the intrusion resulting from the search was minimal. Thus, the airport searches were concluded to be reasonable. No warrant was required because compliance with the warrant procedure, as the majority had also pointed out, would completely frustrate the legitimate governmental purpose.

[5] The sobriety checkpoint presents a compelling parallel to the airport screening search. While the label "administrative search" is open to some criticism in application to either the airport search or the sobriety checkpoint stop, both, although they operate mechanically as a search or inspection for the violation of law, actually serve a primary and overriding regulatory purpose of promoting public safety. Their primary purpose is to prevent and deter conduct injurious to persons and property; they are not conventional criminal searches and seizures. The fact that sobriety checkpoint stops will lead to the detection of some individuals involved in {Page 43 Cal.3d 1332} criminal conduct does not alter the fundamental regulatory character of the screening procedure. (See People v. Hyde, supra, 12 Cal.3d 158, at p. 166; see also New York v. Burger (1987) 482 U.S. ___, ___ [96 L.Ed.2d 601, 622-623, 107 S.Ct. 2636, 2651].)

Our analysis in Hyde is supported by decisions of the United States Supreme Court which have similarly approved regulatory searches in appropriate circumstances in the absence of any particularized suspicion of wrongdoing. Camara v. Municipal Court, supra, 387 U.S. 523 and Marshall v. Barlow's, Inc. (1978) 436 U.S. 307 [56 L.Ed.2d 305, 98 S.Ct. 1816] are examples.

In Camara, a city ordinance gave authorized city employees, upon presentation of credentials, the right to enter buildings or structures to perform necessary duties. The United States Supreme Court recognized that in performing a function such as building inspections, the governmental entity will rarely have knowledge of conditions in a particular building, but must necessarily rely on general conditions in an area. The court held that a warrant for building inspections based on area conditions, rather than upon probable cause to believe violations exist in a particular dwelling, was reasonable. The Supreme Court stated, "In determining whether a particular inspection is reasonable -- and thus in determining whether there is probable cause to issue a warrant for that inspection -- the need for the inspection must be weighed in terms of [the] reasonable goals of code enforcement .... [¶] ... [¶] ... [T]here can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." (Camara v. Municipal Court, supra, 387 U.S. 523, 535-537 [18 L.Ed.2d 930, 939-940].)

In Marshall v. Barlow's, Inc., supra, 436 U.S. 307, the court examined the regulatory scheme for administrative inspections of business premises under the Occupational Safety and Health Act of 1970 (OSHA) (29 U.S.C.A. § 657(a)). The court held that the OSHA inspections should be subject to a warrant requirement, but significantly did not require an individualized suspicion of violation of OSHA regulations before the warrant could be issued.

Some industries are so heavily regulated that government inspections are held constitutionally permissible, without notice, warrant, or individualized suspicion of wrongdoing. (Donovan v. Dewey (1981) 452 U.S. 594 [69 L.Ed.2d 262, 101 S.Ct. 2534] [mines]; United States v. Biswell (1972) 406 U.S. 311 [32 L.Ed.2d 87, 92 S.Ct. 1593] [firearms]; Colonnade Corp. v. United States (1970) 397 U.S. 72 [25 L.Ed.2d 60, 90 S.Ct. 774] [liquor].) Business owners in the heavily regulated industries are presumed to know {Page 43 Cal.3d 1333} that they are subject to the periodic inspections which are specified by and regularly carried out pursuant to enabling legislation.

Regulatory inspections and stops have also been permitted under decisions of the United States Supreme Court and the California courts in the absence of an individualized suspicion of wrongdoing in border patrol checkpoint inspections (United States v. Martinez-Fuerte, supra, 428 U.S. 543), agricultural inspection checkpoints (People v. Dickinson (1980) 104 Cal.App.3d 505 [163 Cal.Rptr. 575]), vehicle mechanical inspection checkpoints (People v. De La Torre (1967) 257 Cal.App.2d 162 [64 Cal.Rptr. 804]), and license and registration inspection checkpoints (People v. Washburn (1968) 265 Cal.App.2d 665 [71 Cal.Rptr. 577]).

The United States Supreme Court in United States v. Martinez-Fuerte, supra, 428 U.S. 543, held with respect to immigration checkpoints that neither a warrant nor particularized suspicion is required. The court upheld the constitutionality of an immigration stop without particularized suspicion at a checkpoint away from the international border by balancing the governmental interests served against the intrusion on Fourth Amendment interests. The court concluded the need for routine checkpoint stops was great because the flow of illegal aliens cannot be controlled effectively at the border. (Martinez-Fuerte, supra, 428 U.S. 543, at pp. 556-557 [49 L.Ed.2d 1116 at pp. 1127-1128].) By contrast, the checkpoint stop was a "quite limited intrusion" on Fourth Amendment interests. Such a stop entailed only a brief detention, requiring no more than a response to a question or two and possible production of a document. Neither the vehicle nor the occupant was searched. The court also concluded the "subjective intrusion" of a fixed checkpoint stop was minimal, unlike a random or roving stop, because motorists could see that other vehicles were being stopped, could see visible signs of the officers' authority, and were much less likely to be frightened or annoyed by the intrusion. (Id., at pp. 557-558 [49 L.Ed.2d at p. 1128].)

Moreover, the court found an area warrant was not required, and distinguished Camara, supra, 387 U.S. 523, both on the ground the checkpoint seizure of an automobile involves significantly different expectations of privacy from the traditional expectations of privacy in one's residence, as to which a warrant traditionally has been required, and on the ground the warrant requirement in Camara served purposes under the Fourth Amendment which were not relevant to a checkpoint operation.

The need to provide an assurance of legitimacy of the search/seizure required a warrant in the building inspection context, but that need was served alternatively in the checkpoint operation by the visible manifestations {Page 43 Cal.3d 1334} of authorization in the form of signs announcing the roadblock, official insignia and vehicles, and fully uniformed personnel. Another purpose of the warrant requirement in Camara was to prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure. In the checkpoint operation, however, "The reasonableness of checkpoint stops ... turns on factors such as the location and method of operation of the checkpoint, factors that are not susceptible to the distortion of hindsight, and therefore will be open to post-stop review notwithstanding the absence of a warrant. Another purpose for a warrant requirement is to substitute the judgment of the magistrate for that of the searching or seizing officer. [Citation.] But the need for this is reduced when the decision to 'seize' is not entirely in the hands of the officer in the field, and deference is to be given to the administrative decisions of higher ranking officials." (United States v. Martinez-Fuerte, supra, 428 U.S. 543, 565-566 [49 L.Ed.2d 1116, 1133].)

The United States Supreme Court also strongly suggested that other checkpoint type stops would be viewed similarly. "Stops for questioning, not dissimilar to those involved here, are used widely at state and local levels to enforce laws regarding drivers' licenses, safety requirements, weight limits, and similar matters. The fact that the purpose of such laws is said to be administrative is of limited relevance in weighing their intrusiveness on one's right to travel; and the logic of the defendants' position, if realistically pursued, might prevent enforcement officials from stopping motorists for questioning on these matters in the absence of reasonable suspicion that a law was being violated. As such laws are not before us, we intimate no view respecting them other than to note that this practice of stopping automobiles briefly for questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use." (United States v. Martinez-Fuerte, supra, 428 U.S. 543, 560, fn. 14 [49 L.Ed.2d 1116, 1130].)

The intimation that neutrally operated checkpoint stops are permissible was reiterated in dictum in Delaware v. Prouse, supra, 440 U.S. 648. In that case, a single patrol officer decided to make a roving stop for the purpose of a license or registration "spot check," but he had no information or reasonable suspicion either that the driver was unlicensed or that the vehicle was improperly registered. The Supreme Court held that such a random roving stop made without a reasonable suspicion of law violation was contrary to the Fourth Amendment. However, the court was careful to state that "This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative." (Id., at p. 663, fn. omitted [ 59 L.Ed.2d at pp. 673-674].) This dictum was not mere rhetoric, {Page 43 Cal.3d 1335} however. It is analytically consistent with the court's holdings in other cases. Standardless and unconstrained discretion on the part of government officers is what the court sought to circumscribe in the regulatory inspection and stop cases. (Almeida-Sanchez v. United States (1973) 413 U.S. 266, 270 [37 L.Ed.2d 596, 601, 93 S.Ct. 2535]; Camara v. Municipal Court, supra, 387 U.S. 523, 532-533 [18 L.Ed.2d 930, 937-938].) [4b] Accordingly, such stops and inspections for regulatory purposes may be permitted if undertaken pursuant to predetermined specified neutral criteria (Delaware v. Prouse, supra, 440 U.S. 648, 662 [59 L.Ed.2d 660, 673]) such as the criteria articulated for a checkpoint stop (United States v. Martinez-Fuerte, supra, 428 U.S. 543, 553-554, 556-564 [49 L.Ed.2d 1116, 1126, 1127-1132]).

3. Regulatory Purpose

[6] Petitioners argue the sobriety checkpoint stop we examine here is a criminal investigation roadblock, subject not only to Tony C., supra, 21 Cal.3d 888, but barred by the Fourth Amendment under this court's decision in People v. Gale (1956) 46 Cal.2d 253 [294 P.2d 13]. (See also Wirin v. Horrall (1948) 85 Cal.App.2d 497 [193 P.2d 470].) In Gale, sheriff's officers stopped and searched cars at a roadblock explicitly for the purpose of "'[curb]ing the juvenile problem and also check for, well, anything that we might find, anything that looked suspicious.'" (People v. Gale, supra, 46 Cal.2d 253, 255.) We do not agree.

Dragnet searches, explicitly undertaken for the purpose of uncovering evidence of crime but without any reason to believe any criminal activity has taken place, are unreasonable. (People v. Gale, supra, 46 Cal.2d 253, 256; Wirin v. Horrall, supra, 85 Cal.App.2d 497, 504.) However, the sobriety checkpoint here was operated not for the primary purpose of discovering or preserving evidence of crime or arresting lawbreakers, but primarily for the regulatory purpose of keeping intoxicated drivers off the highways to the end of enhancing public safety. Analytically it is much the same as an immigration checkpoint or a checkpoint to inspect for the safety of equipment or compliance with agricultural regulations. The threat to public safety is at least as great and the intrusion into Fourth Amendment interests is no greater here than in those other regulatory checkpoint inspections which have invariably been held constitutionally permissible.

Our conclusion in this regard is based on factors related to the operation of the checkpoint in this case, on the stated goals of law enforcement agencies in implementing sobriety checkpoint programs, on the observable, albeit limited, experience with checkpoint operations in this and other states, as well as common sense. {Page 43 Cal.3d 1336}

In the Burlingame program, the sobriety checkpoints received substantial advance publicity, which was clearly designed both to inform the public of the serious problem of drunk driving and to deter potential drinking drivers before they decided to drink and drive. An important part of the Burlingame procedure was to educate by giving each stopped driver a leaflet about the checkpoint program, as well as a survey postcard. In addition, the checkpoint was not conducted as a criminal dragnet. Checkpoint personnel were specifically instructed that drivers were not to be stopped merely for avoiding the checkpoint. fn. 5 The road sign announcing the checkpoint was placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint.

The stated goals of several law enforcement agencies explicitly point to deterrence as a primary objective of the checkpoint program. The Burlingame manual described the objectives of its program, noting the historical use of roving patrols as the principal law enforcement response to the drunk driving problem. Despite increased patrols, public awareness campaigns, stiffer drunk driving penalties, and increased arrests, the Burlingame Police Department found the major problem was that the public's perceived (and actual) risk of apprehension was very low. Two major goals of the checkpoint as stated in the manual were to increase public awareness of the seriousness of the problem and to increase the perceived risk of apprehension.

The evaluation report on the pilot project carried out by the California Highway Patrol (CHP) stated that, although a project of stepped up roving patrols in 1980 had resulted in approximately twice the number of arrests per work hour, "it must be remembered that accomplishing more arrests is not the intent of sobriety checkpoints. Rather, they are intended to deter persons who have been drinking from driving for fear of encountering a checkpoint. If checkpoints are truly accomplishing their purpose, DUI arrests, as well as DUI accidents, should decrease." (Italics added.) In addition, the report recommended a six-month long-term study to be carried out in two CHP test areas. The report recommended using two different patterns of roadblock implementation -- employing sobriety checkpoints during major holiday seasons at one test location, and using twice monthly checkpoints at the other location. Significantly, the recommendation report stated that "This dual study method will not only permit long term evaluation of checkpoint deterrence, but may also identify the frequency necessary to produce deterrence."

A sobriety checkpoint program operated by the Arizona Highway Patrol is assertedly designed "to develop a public perception of the high risk of {Page 43 Cal.3d 1337} apprehension of drinking drivers," and the program abstract for the Maryland sobriety checkpoint project stated it was intended to function as a general deterrent to drinking drivers by instilling the perception that there was an increased likelihood of detection and arrest. An integral aspect of the Maryland program was publicity, to attain maximum public awareness and voluntary compliance with DUI laws.

Not only is deterrence the stated objective of DUI roadblock programs, but actual, though admittedly limited, experience with checkpoint programs indicates deterrence is in fact a significant result of such programs. In written responses to interrogatories posed by the Court of Appeal in the instant case, Burlingame Police Chief Alfred Palmer pointed out that deterrent value was demonstrated in two test areas of the Maryland program: incidence of alcohol related traffic accidents was reduced by 71 percent in Prince Georges County and fatalities were reduced 75 percent in Montgomery County in 1981. The follow-up report relating to the Burlingame checkpoint noted that some level of deterrence was indicated by the facts that traffic volume fell considerably below normal during the last two hours of their checkpoint operation, that the volume of business in Burlingame bars was also significantly below normal after 10 p.m., that calls for taxicabs were 12 percent above normal, and that, as officers on duty at the checkpoint noticed, several cars with sober drivers but intoxicated passengers proceeded through the checkpoint (the "designated driver" phenomenon). In New York, the Governor's Alcohol and Highway Safety Task Force found "'that the systematic ... traffic checkpoint is the single most effective action in raising the community's perception of the risk of being detected and apprehended for drunk driving' (Report, at p. 103)." (People v. Scott (1984) 63 N.Y.2d 518 [483 N.Y.S.2d 649, 473 N.E.2d 1, 4-5].)

Petitioners argue in their discussion of the balancing test that roadblocks are not effective for apprehending DUI violators, and point out that the CHP experience showed that roving patrols were over twice as effective as roadblocks per work hour in producing drunk driving arrests, and that the Burlingame checkpoint in fact resulted in no arrests. The absence of arrests, however, is both explained by and affords substantial support for the conclusion that increasing drunk driving arrests -- i.e., conducting investigations for the purpose of gathering evidence of criminal activity -- is not the primary purpose of sobriety checkpoints. An absence of arrests does not indicate a sobriety checkpoint is a futile exercise. It more likely indicates that the existence of the checkpoint program has succeeded in inducing voluntary compliance with the law, thus fulfilling the program's primary objective of keeping automobiles operated by impaired drivers off the roads. Drunk driving is not merely a crime, it is a serious public safety problem. A vehicle driven by an intoxicated person is as much a road hazard as a {Page 43 Cal.3d 1338} vehicle with defective brakes or a defective steering mechanism. Sobriety checkpoints serve to keep such hazardous instrumentalities off the road in the first instance. If checkpoints perform a significant deterrent function, it follows that drunk driving arrests would decrease in areas of checkpoint operation.

It is perhaps the characteristic of the automobile as a hazardous instrumentality that affords the greatest distinction between the sobriety checkpoint and an impermissible criminal dragnet. While the sobriety checkpoint differs from, e.g., an agricultural inspection, because the item to be examined is a person and not an offending plant, nevertheless, the automobile is stopped for reasons directly related to public safety, and not for purposes of criminal investigation. In this sense it is as we have said analogous to a permissible equipment inspection checkpoint. The fact that the officer's observations of a driver's demeanor have the potential to result in criminal sanctions is not determinative. Just as an airport screening search may result in criminal arrests and prosecutions, but is nevertheless not a criminal investigative search, the sobriety checkpoint inspection primarily serves the proper regulatory purpose of deterring intoxicated persons from driving and thus endangering the public.

4. The Balancing Test

[7] As we have explained, both the majority and concurring minority in Hyde, supra, 12 Cal.3d 158, and, ultimately, all other pertinent authorities determine the constitutional reasonableness of searches and seizures by a balancing test: weighing the gravity of the governmental interest or public concern served and the degree to which the program advances that concern against the intrusiveness of the interference with individual liberty. (See, e.g., Brown v. Texas, supra, 443 U.S. 47, at pp. 50-51 [61 L.Ed.2d 357, at pp. 361-362]; People v. Hyde, supra, 12 Cal.3d 158, at pp. 166-169, conc. opn. at pp. 172-178.)

Deterring drunk driving and identifying and removing drunk drivers from the roadways undeniably serves a highly important governmental interest. As we noted in Burg v. Municipal Court (1983) 35 Cal.3d 257, at page 262 [198 Cal.Rptr. 145, 673 P.2d 732], "The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation. The monstrous proportions of the problem have often been lamented in graphic terms by this court and the United States Supreme Court. [Citations.] ... [I]n the years 1976 to 1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War, and more were killed than in the bloodiest year of the Vietnam {Page 43 Cal.3d 1339} War. [Citations.] Given this setting, our observation that '[d]runken drivers are extremely dangerous people' [citation] seems almost to understate the horrific risk posed by those who drink and drive." Stopping the carnage wrought on California highways by drunk drivers is a concern the importance of which is difficult to overestimate.

While it may be less self evident, the record here also supports a reasonable inference sobriety checkpoints of the sort here described do advance this important public goal. Petitioners contend that sobriety checkpoints are not as effective in detecting drunk drivers as other less intrusive alternatives, such as roving patrols. However, officers on a roving patrol can effect a stop only upon observable indications of impairment (i.e., reasonable suspicion). Petitioners point to the observation in the CHP report that a CHP project in 1980 utilizing stepped up patrols resulted in an arrest rate per work hour over twice that resulting from use of the roadblocks. But, as we have pointed out, the number of arrests does not necessarily measure the effectiveness of the sobriety checkpoint. If the checkpoint is properly serving its function -- deterrence -- it may result in no arrests at all. An Arizona court considering the question concluded that although a sobriety checkpoint may be no more efficient than a roving patrol in detecting, drunk drivers it is more effective in deterring drunk driving. (State v. Super. Ct. in & for County of Pima (1984) 143 Ariz. 45 [691 P.2d 1073, 1076-1077].) This is consonant with our conclusion that the primary purpose of sobriety checkpoints is deterrence.

Petitioners argue respondents have not made a sufficient showing of the effectiveness of sobriety checkpoints. However, such effectiveness is difficult to quantify. The experience both in California and in other states with sobriety checkpoints has been very limited, and no definitive statistics are yet available. It would be presumptuous in the extreme for this court to prohibit the use of an otherwise permissible and potentially effective procedure merely because its effectiveness is at the present time largely untested. Indeed, to do so would prevent the compilation of any data to show its effectiveness.

Nevertheless, there are indications of the effectiveness of the roadblocks even in the absence of statistical evidence. For example, the Maryland court in Little v. State (1984) 300 Md. 485 [479 A.2d 903, 913], noted certain evidence in that record that on the night of the checkpoint operation many people who had been drinking asked a sober companion to drive instead, that calls for taxi service by drunk individuals increased, and that certain groups anticipating consumption of alcohol at social events chartered vehicles instead of driving. "The prospect of being stopped at a roadblock thus convinced some intoxicated individuals to find alternate means of transportation." {Page 43 Cal.3d 1340} (Little v. State, supra, 479 A.2d 903, 913.) Similar results were observed in connection with the Burlingame checkpoint in the instant case, and at oral argument counsel for petitioners conceded the likely deterrent effect of the sobriety checkpoints involved here.

We further observe that roving stops may not be a more effective alternative means of enforcing drunk driving laws. Constitutionally permissible roving stops must be based on an articulable suspicion of law violation. With respect to drunk driving, this requires an officer's observation of some objectively manifested behavior indicating impairment. By this method, the number of drunk drivers detected and arrested is estimated between one in two hundred to one in two thousand. Stepped up holiday patrols, with attendant publicity, have been used in many jurisdictions for many years, without appreciable effect on the drunk driving toll to people and property. In addition, although stiffer penalties for drunk driving in California appeared to result in a decline in alcohol-related accident incidence in 1981 and 1982, thereafter alcohol-involved accidents and fatalities began to increase again, to nearly pre-1981 levels. As noted in the Burlingame manual, despite countermeasures consisting of publicity, heightened patrol efforts and more severe penalties, an attitude of impunity continues to exist with respect to drinking and driving.

The failure of traditional methods of enforcement was commented on by Professor LaFave: "[A] rather strong argument can be made that mere patrol and stoppings based upon the Terry standard [of reasonable suspicion, supra, 391 U.S. 1] do not produce what the Camara Court [, supra, 387 U.S. 523] referred to as 'acceptable results.' For one thing, even if a patrolling officer is ... in the vicinity where a drunk driver is operating his vehicle, it does not necessarily follow that the driver will at that particular time drive his car in such a fashion as to create a reasonable suspicion justifying a stop. And the chances of such observation in the first place are rather slight, given the substantial number of intoxicated drivers on the roads .... It is by no means surprising, therefore, that it has been reliably estimated that only one of every 2,000 drinking drivers is apprehended." (4 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2d ed. 1987) Vehicle Use Regulation, § 10.8(d), pp. 72-73.)

Justice Feldman, in a concurring opinion in State ex rel. Ekstrom v. Justice Ct. of State (1983) 136 Ariz. 1 [663 P.2d 992], observed that "The governmental interest sought to be protected by the roadblocks is greater than merely detecting and apprehending drunk drivers. Given the carnage on our highways, there is a unique societal interest in enforcing compliance with the law by deterring driving while under the influence of alcohol or other drugs. [¶] ... [T]he state cannot satisfy this interest by traditional {Page 43 Cal.3d 1341} methods which satisfy the Terry test. The traditional system has left us far short of achieving the law's objective. ... It is only fortuitous that an officer happens to be in a position to see a drunk entering the freeway on the off-ramp [sic] before that drunk happens to kill some innocent person. ... [¶] ... [It is] obvious that traditional law enforcement methods, involving the arrest by roving officers of only those whom they can stop upon a founded suspicion of drunk driving, fall short of satisfying society's compelling interest in enforcing compliance with the laws prohibiting drunk driving." (Id., 663 P.2d 992 at pp. 998-999, conc. opn. Feldman, J.)

Not only are roving patrol stops inadequate generally, but there are also indications that roving patrols are less effective than sobriety checkpoints in detecting lower but nonetheless dangerous levels of intoxication. The average person arrested for drunk driving by roving patrols tends to have a significantly higher blood-alcohol level than the average sobriety checkpoint drunk driving arrestee. The CHP evaluation report showed that in all four test areas, the blood-alcohol level of checkpoint arrestees was lower (though still above the presumptive drunk driving level) than the blood-alcohol level of roving patrol arrestees in the same area for the same period. Thus, there may in fact be no effective alternate means of detecting those drivers whose judgment has actually been seriously impaired by alcohol and whose blood-alcohol level is illegal, but who do not consistently manifest outwardly observable impaired driving behavior. fn. 6

The third balancing factor is the intrusiveness on individual liberties engendered by the sobriety checkpoints. Upon examination of the record, we conclude that the programs at issue in this case have implemented procedures designed to provide minimal interference with individual liberties. The decisions of courts of other states and the California Attorney General's opinion which originally sanctioned the kind of checkpoints operated here have analyzed the issue of intrusiveness extensively and have identified a number of factors important in assessing intrusiveness. The standards articulated in these cases provide functional guidelines for minimizing the intrusiveness of the sobriety checkpoint stop.

A. Decisionmaking at the Supervisory Level

The decision to establish a sobriety checkpoint, the selection of the site and the procedures for the checkpoint operation should be made and established by supervisory law enforcement personnel, and not by an officer in {Page 43 Cal.3d 1342} the field. This requirement is important to reduce the potential for arbitrary and capricious enforcement. (See United States v. Martinez-Fuerte, supra, 428 U.S. at p. 559 [49 L.Ed.2d at p. 1129].)

Several out-of-state decisions are in accord on this point. Sobriety checkpoints have been upheld in a variety of situations in which the chief commanding officer of a law enforcement agency has drawn up a comprehensive procedures document (in some cases reviewed by other officials) or where the regulations were promulgated by supervisory personnel. (People v. Scott, supra, 473 N.E.2d 1 [program set up by county sheriff]; State v. Super. Ct. in & for County of Pima, supra, 691 P.2d 1073 [commander of traffic enforcement division issued detailed command directive]; Little v. State, supra, 479 A.2d 903 [regulations reviewed by Superintendent of State Police, the Governor and the Attorney General]; State v. Coccomo (1980) 177 N.J.Super. 575 [427 A.2d 131] [township police chief adopted regulations approved by state Attorney General]; State v. Golden (1984) 171 Ga.App. 27 [318 S.E.2d 693] [roadblock set up by supervising DUI task force project coordinator]; State v. Deskins (1983) 234 Kan. 529 [673 P.2d 1174] [roadblock a joint effort of several law enforcement agencies, and all personnel briefed by supervisory officers].)

In each of the sobriety checkpoint projects here, the decision to implement the checkpoints, the site selection and the establishment of operational procedures were made or done by command level personnel, and detailed program regulations were promulgated.

B. Limits on Discretion of Field Officers

A related concern is that motorists should not be subject to the unbridled discretion of the officer in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every third, fifth or tenth driver should be employed. To permit an officer to determine to stop any particular driver or car when there is no legitimate basis for the determination would be to sanction the kind of unconstrained and standardless discretion which the United States Supreme Court sought to circumscribe in its decisions in Prouse, supra, 440 U.S. 648, Almeida-Sanchez, supra, 413 U.S. 266, and Camara, supra, 387 U.S. 523. In all the checkpoint programs at issue here, neutral mathematical selection criteria were used.

C. Maintenance of Safety Conditions

Primary consideration must be given to maintaining safety for motorists and officers. Proper lighting, warning signs and signals, and clearly identifiable official vehicles and personnel are necessary to minimize the risk of {Page 43 Cal.3d 1343} danger to motorists and police. (Cf. Jones v. State (Fla.Dist.Ct.App. 1984) 459 So.2d 1068, 1079.) The checkpoint should be operated only when traffic volume allows the operation to be conducted safely. Screening procedures may at times be altered consistent with traffic volume, such that, for example, every car might be stopped when traffic is light, but if traffic began to back up, a different neutral formula might be applied, such as every fifth or tenth car, or operations might be temporarily suspended until traffic volume permitted resumption of safe checkpoint operation.

The Burlingame and CHP checkpoints were operated with a very high degree of safety assurance. The sites of the checkpoint operations were carefully selected with safety considerations in mind, including ample offroad or shoulder area for screening or field sobriety test procedures. The lane closures and road signs complied with all Caltrans safety guidelines. During operations, designated officers were responsible for maintaining the safety of the traffic lanes and cone patterns. There were no safety problems with respect to traffic backups.

D. Reasonable Location

The location of checkpoints should be determined by policy-making officials rather than by officers in the field. The sites chosen should be those which will be most effective in achieving the governmental interest; i.e., on roads having a high incidence of alcohol related accidents and/or arrests. (See State v. Coccomo, supra, 427 A.2d 131, 134.) Safety factors must also be considered in choosing an appropriate location.

One state court has found a sobriety checkpoint unconstitutional largely because it was not at a permanent location. (State v. Olgaard (S.D. 1976) 248 N.W.2d 392.) A decision of the Ninth Circuit also held that a border patrol stop at a temporary checkpoint was unlawful. (United States v. Maxwell (9th Cir. 1977) 565 F.2d 596.) We believe, however, that the temporary nature of sobriety checkpoints does not affect their constitutionality. The Olgaard court's concern with lack of permanency was solely based on its worry about surprise and lack of publicity in connection with the checkpoint. Although it is not precisely clear from the record in Olgaard, it is inferrable from the circumstances that the Olgaard checkpoint was set up on a surprise basis. The checkpoint was operated by only four officers utilizing nothing but the red flashing lights on several patrol cars. They stopped all traffic in both directions. No lights or signs were used that would have given advance notice of the checkpoint. There was no advance publicity about the checkpoint. The checkpoint plainly also lacked sufficient indicia of legitimacy in terms of staffing strength. In addition, there was no showing who made the decision to set up the checkpoint, or how the {Page 43 Cal.3d 1344} location was selected. Thus the Olgaard court appears to have acted with propriety in holding the checkpoint unlawful.

Similarly, the "temporary" border patrol checkpoint at issue in Maxwell, supra, 565 F.2d. 596, was deficient with respect to notice and indicia of legitimacy. The checkpoint was marked only by a "stop ahead" sign with battery operated blinking yellow lights, half a dozen traffic cones, one ordinary stop sign, and a border patrol car with a flashing red light. Whereas motorists know or may learn of a permanent immigration checkpoint, the checkpoint in Maxwell was in operation on an intermittent basis without advance notice. There were no structures or electrical equipment connections. So far as the motorist was concerned, he was called to a halt on a lonely road by a blinking red light which could belong to anybody. In addition, the location of the checkpoint may have been inappropriate for an immigration checkpoint. The immigration checkpoint in Martinez-Fuerte, supra, 428 U.S. 543, was justified in part by its being placed on a major highway to prevent easy access by illegal aliens into the interior. Just as a sobriety checkpoint would be improper at a location without any significant traffic or incidence of drunk driving, the location of the Maxwell checkpoint on a route without any significant traffic, by illegal aliens or otherwise, may have been improper. (United States v. Maxwell supra, 565 F.2d. 596, 597-598.)

As was pointed out in People v. Scott, supra, 473 N.E.2d 1, at page 5, "The fact that the [United States] Supreme Court has approved permanent roadblocks but disapproved roving patrol stops is not determinative. What is critical is the intrusiveness of the checkpoint in relation to the governmental purpose involved. The subjective effect upon a vehicle driver approaching a roadblock is unrelated to whether it is permanent or was established but a few minutes before the driver approached it; in either instance his or her observation of it will be measured in minutes if not seconds. The likelihood of there being the kind of fright or annoyance that invalidates a random stop made by a roving patrol is obviated in the case of a temporary checkpoint by the visible signs of authority which the checkpoint entails -- signs announcing the purpose, lighting, and identifiable police vehicles and the observable fact that there is a uniform system for stopping cars [citations]." (Accord, Little v. State, supra, 479 A.2d 903, 914.)

With respect to the Burlingame checkpoint, the lighting, signing, substantial uniformed police presence, official vehicles, etc., provided advance notice to the motorist sufficient to ward off surprise and fright. In fact, sufficient advance notice was provided so a motorist could choose to avoid the checkpoint altogether. The objective and subjective intrusion into {Page 43 Cal.3d 1345} Fourth Amendment rights was no greater than that resulting from a permanent checkpoint. The checkpoints at issue here were reasonable as to location.

E. Time and Duration

The time of day that a checkpoint is established and how long it lasts also bear on its intrusiveness as well as its effectiveness. For example, a nighttime stop may be more hazardous and possibly more frightening to motorists, but it will also probably prove more effective. While mentioned as a factor in State v. Deskins, supra, 673 P.2d 1174, time and duration have received little attention in the decisions addressing sobriety checkpoints, although most of the checkpoints approved have been operated in the late evening and early morning hours. (People v. Scott, supra, 473 N.E.2d 1; Little v. State, supra, 479 A.2d 903; State v. Coccomo, supra, 427 A.2d 131; State v. Golden, supra, 318 S.E.2d 693; State v. Deskins, supra, 673 P.2d 1174.) We agree with the assessment of the Court of Appeal that no hard and fast rules as to timing or duration can be laid down, but law enforcement officials will be expected to exercise good judgment in setting times and durations, with an eye to effectiveness of the operation, and with the safety of motorists a coordinate consideration.

F. Indicia of Official Nature of Roadblock

Those aspects of a sobriety roadblock which evidence its official nature are critical in minimizing its intrusiveness. The roadblock should be established with high visibility, including warning signs, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are such factors important for safety reasons, advance warning will reassure motorists that the stop is duly authorized.

Clearly visible warning lights and other signs of authority have been present in most of the checkpoints upheld by the courts of other states. (See People v. Scott, supra, 473 N.E.2d 1, 3; Little v. State, supra, 479 A.2d 903, 905-906; State v. Golden, supra, 318 S.E.2d 693, 694.) In contrast, most of the checkpoints found unlawful have not provided adequate warning to motorists. (See State v. McLaughlin (Ind.Ct.App. 1984) 471 N.E.2d 1125, overruled in State v. Garcia (Ind. 1986) 500 N.E.2d 158, 162 [holding checkpoints lawful]; Com. v. McGeoghegan (1983) 389 Mass. 137 [449 N.E.2d 349, 353]; State v. Olgaard, supra, 248 N.W.2d 392, 394; State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, 993; State v. Hilleshiem (Iowa 1980) 291 N.W.2d 314 [vandalism roadblock]; cf. State v. Smith (Okla.Crim.App. 1984) 674 P.2d 562, 564.) {Page 43 Cal.3d 1346}

The checkpoints at issue here clearly complied with requirements for proper lighting, signing, and official presence, both in the comprehensive regulations developed for the checkpoint operation and in actual practice.

G. Length and Nature of Detention

Minimizing the average time each motorist is detained is critical both to reducing the intrusiveness of the stop on the individual driver and to maintaining safety by avoiding traffic tie-ups. As occurred in the Burlingame and CHP checkpoints, each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test. At that point, further investigation would of course be based on probable cause, and general principles of detention and arrest would apply.

H. Advance Publicity

Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.

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

Publicity also serves to establish the legitimacy of sobriety checkpoints in the minds of motorists. Although the court in Jones v. State, supra, 459 So.2d 1068, found that advance publicity was not constitutionally mandated for all sobriety roadblocks, nevertheless the court offered the observation, consistent with finding reasonableness under the Fourth Amendment, that {Page 43 Cal.3d 1347} "'[A]dvance publication of the date of an intended roadblock, even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience.' [Citation.]" (Id., at p. 1080.)

In the instant case, substantial advance publicity accompanied each sobriety checkpoint instituted.

I. Conclusions as to Intrusiveness

We conclude that, while the intrusiveness of a sobriety checkpoint stop is not trivial, the enumerated safeguards operate to minimize the intrusiveness to the extent possible. The fright or annoyance to motorists condemned in connection with roving stops is absent when the checkpoint is operated according to the guidelines followed here.

On balance, the intrusion on Fourth Amendment interests is sufficiently circumscribed so that it is easily outweighed and justified by the magnitude of the drunk driving menace and the potential for deterrence.

5. Statutory Authorization

Petitioners contend that sobriety roadblocks are impermissible in the absence of specific authorizing legislation. Petitioners make three points. [8a] The first and broadest argument is that the police may not enforce traffic laws in any manner not specifically authorized by statute. [9a] The second is that the Vehicle Code provides for uniform statewide rules governing vehicle use and police regulation of that use, so that to allow municipalities to set up roadblocks on an ad hoc basis would allow a balkanization of vehicle use regulation that various sections of the Vehicle Code show the Legislature did not intend. [10a] The third point is that the Vehicle Code specifically permits police officers to use roadblocks in limited circumstances. Pointing out that two recent bills to amend the Vehicle Code to permit drunk driving roadblocks have died in committee, petitioners advance the proposition that since the Legislature has only permitted roadblocks in limited circumstances, roadblocks in any other circumstances are impermissible.

[8b] Petitioners cite no persuasive authority for the proposition that police officers may not enforce the Vehicle Code in any manner not specifically provided for by statute. Citing People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95-96 [41 Cal.Rptr. 290, 396 P.2d 706], they claim that the general police power only permits detention on reasonable suspicion when a motorist is engaged in wrongdoing unless there is statutory authority for other police action. The cited case is inapposite; it merely applies {Page 43 Cal.3d 1348} familiar principles as to the circumstances necessary to justify a detention, and establishes that the exclusionary rule applies in a civil action for forfeiture of a car believed to be involved in drug trafficking.

Petitioners also cite People v. McGaughran (1979) 25 Cal.3d 577, 583-584 [159 Cal.Rptr. 191, 601 P.2d 207] (warrant checks during traffic stops); People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 199-200 [101 Cal.Rptr 837, 496 P.2d 1205] (search incident to arrest for violations for which accused would not be booked) and People v. Franklin (1968) 261 Cal.App.2d 703, 707 [68 Cal.Rptr. 231] (scope of statutes allowing stops for vehicle safety and registration inspection) for the proposition that the Vehicle Code is comprehensive and controls methods of enforcement of its provisions. None of these cases, however, establishes that unless a method of law enforcement is specifically authorized in the Vehicle Code, it is prohibited. Rather, these cases interpret the limits on officers' authority which have been expressly established by statute.

For similar reasons, petitioners' position is not aided by their citation to People v. Welsch (1984) 151 Cal.App.3d 1038 [199 Cal.Rptr. 87] (warrantless arrest for hit and run outside officer's presence not authorized by statute); People v. Horvath (1982) 127 Cal.App.3d 398 [179 Cal.Rptr. 577] (neither Pen. Code nor Pub. Util. Code authorized arrest of pilot who flew while intoxicated outside officer's presence); or People v. Aldapa (1971) 17 Cal.App.3d 184 [94 Cal.Rptr. 579] (arrest outside jurisdiction not authorized by former Pen. Code, § 817). In each case, the officer breached a statutory limitation on his authority; none of these decisions holds that methods of law enforcement not specifically authorized are prohibited.

It is illogical to suggest that an officer who has a reasonable suspicion an individual is driving under the influence of intoxicants and thus endangering the public may take corrective action, but that a law enforcement agency having knowledge that on any given night hundreds of drivers will be under the influence of intoxicants and thus endangering the public may not. The threat to public safety in the second instance is immeasurably greater than in the first. We conclude, as did the Court of Appeal majority, that the requisite authority is implicit in law enforcement's statutory authority to enforce criminal laws generally or traffic laws specifically. (See, e.g., Veh. Code, § 2400; Gov. Code, §§ 26600, 26601.)

[9b] With respect to the second point, it is true that the Vehicle Code generally preempts the field of traffic regulation vis-a-vis local ordinances. {Page 43 Cal.3d 1349} (See Veh. Code, § 21.) fn. 7 We have observed that unless the Legislature so provides, a city has no authority over traffic control. (See Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 550 [183 Cal.Rptr. 73, 645 P.2d 124] [city has no authority to erect traffic barriers not qualifying as traffic control devices under Veh. Code].) While this rule of preemption might conceivably prevent municipalities from establishing permanent drunk driving roadblocks that might in effect regulate traffic, it does not affect the statutory authority of the CHP and local police to enforce the Vehicle Code and other laws with checkpoints at more temporary locations. (See, e.g., Veh. Code, § 2400; Gov. Code, §§ 26600, 26601.)

[10b] Petitioners' arguments as to their third point, again go far beyond the authority they cite. Petitioners point out examples in which the Legislature has permitted police to stop or inspect cars. The Vehicle Code authorizes police officers to require motorists to stop and submit their vehicles for safety inspections upon reasonable cause to believe that the vehicle is in violation of the code. (Veh. Code, § 2806.) CHP and law enforcement officers "whose primary responsibility is to conduct vehicle theft investigations" may make warrantless inspections for vehicle registration. (Veh. Code, § 2805.) The CHP is authorized to run mechanical inspection stations. (Veh. Code, § 2814.) And the Legislature has provided for agricultural inspection stations at state borders. (Food & Agr. Code, § 5341 et seq.) But it does not follow that because the Legislature has specifically authorized these inspections, no other inspections are permissible under the general police power. Indeed, it may be more reasonable to assume the Legislature would not feel obliged to enact specific legislation authorizing conduct it deemed to be constitutional and appropriate within the scope of existing police power. Legislative silence is an unreliable indicator of legislative intent in the absence of other indicia. We can rarely determine from the failure of the Legislature to pass a particular bill what the intent of the Legislature is with respect to existing law. fn. 8 "As evidences of legislative intent they [unpassed bills] have little value." (Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 58 [69 Cal.Rptr. 480]; see Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 735, fn. 7 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161]; Miles v. Workers' Comp. Appeals Bd. (1977) 67 Cal.App.3d 243, 248, fn. 4 [136 Cal.Rptr. {Page 43 Cal.3d 1350} 508]; see also United States v. Wise (1962) 370 U.S. 405, 411 [8 L.Ed.2d 590, 594-595, 82 S.Ct. 1354]; Gregory v. City of San Juan Capistrano (1983) 142 Cal.App.3d 72, 84 [191 Cal.Rptr. 47]; cf. 2A Sutherland, Statutory Construction (4th ed. 1984) § 49.10, pp. 407-408.)

Disposition

For the reasons stated, the judgment of the Court of Appeal denying the writ of mandate is affirmed.

Lucas, C. J., Arguelles, J., and Eagleson, J., concurred.

BROUSSARD, J.

I dissent. The majority uphold drunk driving fn. 1 roadblocks on the theory that they are administrative inspections, not subject to the usual rule that any detention be justified by reasonable suspicion of individual wrongdoing. In my opinion, when uniformed law enforcement officers stop motorists to check them for intoxication, shine a light in the car to look for open containers of alcohol or other evidence of intoxication, with special officers ready to administer blood-alcohol tests and booking officers and police vans ready to take offenders to jail, it is not an administrative inspection but an ordinary police detention, which must be justified on the same grounds as any other detention for the purpose of law enforcement.

Administrative Search Doctrine

The majority concede that if the primary purpose of the roadblock were to detect crime, the detention of a driver without individualized suspicion that the driver had engaged in criminal activity would be unconstitutional. In fact, the roadblock has two purposes: detection of drunk drivers and collection of evidence. The majority maintain, however, that the primary purpose of these roadblocks is to promote public safety by deterring drunk driving. The majority assert that this is a regulatory or administrative purpose, and conclude that detention without individualized suspicion is permissible by analogy to the administrative search doctrine we adopted in People v. Hyde (1974) 12 Cal.3d 158 [115 Cal.Rptr. 358, 524 P.2d 830].

In Hyde, we permitted predeparture screening of airline passengers, without individualized suspicion of wrongdoing. Our theory was that the screening was a central part of a general regulatory scheme in furtherance of an {Page 43 Cal.3d 1351} administrative purpose, not an effort to seize contraband or evidence of crime. (People v. Hyde, supra, 12 Cal.3d at p. 166.)

Hyde does not bring the drunk driving roadblock into the administrative search doctrine. First of all, the Vehicle Code provisions prohibiting drunk driving are not a "regulatory scheme." In Hyde, we used federal cases approving warrantless inspection of the firearms and liquor industry as examples of pervasively regulated activities in which a warrantless inspection was permissible. (People v. Hyde, supra, 12 Cal.3d 158, 165, citing United States v. Biswell (1972) 406 U.S. 311 [32 L.Ed.2d 87, 92 S.Ct. 1593]; Colonnade Corp. v. United States (1970) 397 U.S. 72 [25 L.Ed.2d 60, 90 S.Ct. 774].) The rationale of those cases is that a person engaging in the pervasively regulated industry is on notice that he has a limited expectation of privacy because the regulations provide for effective inspection. (United States v. Biswell, supra, 406 U.S. 311, 316 [32 L.Ed.2d 87, 92], see also Marshall v. Barlow's, Inc. (1978) 436 U.S. 307, 313 [56 L.Ed.2d 305, 311-312, 98 S.Ct. 1816].) No such "regulatory scheme" puts California drivers on notice that they are subject to detention without reasonable suspicion to determine whether they are driving under the influence of alcohol or drugs. Drivers do not "impliedly consent" to being inspected for alcohol on their breath.

The United States Supreme Court has rejected the Colonnade/Biswell analogy for automobile inspections on the ground that motorists have a considerable and legitimate expectation of privacy in the automobile, including an expectation of freedom of movement. (Delaware v. Prouse (1979) 440 U.S. 648, 662-663 [59 L.Ed.2d 660, 673, 99 S.Ct. 1391].) The Supreme Court also has rejected the argument that driving is a pervasively regulated activity subjecting motorists to suspicionless roving immigration stops. (Almeida-Sanchez v. United States (1973) 413 U.S. 266 [37 L.Ed.2d 596, 93 S.Ct. 2535].) The court has explained that a roving stop of a motorist to check for illegal aliens was unreasonable; the driver was not in the same position as the gun manufacturer or liquor distributor who had in effect consented to inspection by entering a heavily regulated industry. (Id. at pp. 271-272 [37 L.Ed.2d at p. 602].)

A drunk driving roadblock also differs from the usual administrative or regulatory inspection because there is no "regulatory" agency to enforce the drunk driving prohibitions other than the police and the criminal courts. fn. 2 The clear purpose of these laws is not to regulate, but to detect and punish criminal drunk driving. Nothing distinguishes this crime from any other serious one. {Page 43 Cal.3d 1352}

The majority suggest that as long as the purpose of a drunk driving roadblock is to deter rather than detect crime, the roadblock is "regulatory." But we certainly did not hold in Hyde, supra, 12 Cal.3d 158, as the majority suggest, that if the purpose of a detention is to deter rather than detect crime, it may be justified as an administrative search. Criminal law enforcement encompasses both detection and deterrence. If we allowed detentions without individualized suspicion to deter crime, we would allow preventive detentions in high crime areas. But we do not allow such practices. (See People v. Loewen (1983) 35 Cal.3d 117, 124 [196 Cal.Rptr. 846, 672 P.2d 436].) What distinguishes the permissible administrative inspection from other searches is not that they are only intended to deter, but that they carry out an administrative scheme that is not part of the penal system. There is no such administrative scheme here. In fact, the majority would permit roadblocks carried out without uniform regulation, without statewide oversight, in a Balkanized system varying from jurisdiction to jurisdiction.

The majority also rely on dictum in Delaware v. Prouse, supra, 440 U.S. 648, another case involving random stops of automobiles. There the high court disapproved a roving patrol stop conducted without individualized suspicion to check for current license and vehicle registration. The court said that its holding did not mean that police could not try other methods to enforce license and registration laws, such as a permanent roadblock to inspect for license and registration violations. But the Prouse dictum is inapposite. A roadblock inspection for license and vehicle registration is an administrative inspection, since these aspects of motoring are closely regulated. Since license and registration violations do not involve criminal sanctions primarily, the inspections themselves are less intrusive for the average motorist. A request to look at one's license is far less accusatory than an inspection for red, watery eyes, slurred speech, alcohol on the breath, open containers in the car, and the other signs of intoxication. It does not follow that, because a roadblock may be permissible to check for drivers' licenses, it must be permissible to check for drunk driving.

To call a drunk driving roadblock an administrative inspection ignores its true purpose -- apprehension of drunk drivers. The fact is that the apparatus of the law enforcement system is moved to the scene of the roadblock -- with breathalyzers ready to take evidence for introduction at a criminal trial, police officers ready to arrest offenders, and police vans ready to take suspects away. If we call the Burlingame roadblock an administrative inspection, then a detention to investigate any crime could be deemed an administrative inspection. The Constitution cannot, and should not, be stretched so far. {Page 43 Cal.3d 1353}

Application of the Balancing Test

The propriety of an administrative search is judged under a balancing test in which the invasion of individual liberty is weighed against the necessity for the invasion and its effectiveness in achieving the state's goal. (See Camara v. Municipal Court (1967) 387 U.S. 523, 536-537 [18 L.Ed.2d 930, 940, 87 S.Ct. 1727]; People v. Hyde, supra, 12 Cal.3d 158, 166.) Even assuming that the analogy to administrative searches is proper, and that we should abandon individualized suspicion in favor of a balancing test, I would conclude that roadblocks are neither necessary nor effective enough to warrant the intrusion on the individual that they cause.

We all agree that the government has a profound interest in deterring and punishing drunk driving. We have recently lamented the "... horrific risk posed [to public safety] by those who drink and drive." (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal.Rptr. 145, 673 P.2d 732].) Yet the necessity for and effectiveness of drunk driving roadblocks remains to be demonstrated. And the intrusion is far from minimal.

In the federal cases allowing detentions and other intrusions without individualized reasonable suspicion that wrongdoing was taking place, there was little alternative available to the state, and this entered into the balance in determining whether the stop was reasonable. In those cases, the suspicionless intrusions were literally necessary, since the transgressions to be detected could not be observed unless the inspectors entered the premises; there were no objective indicators visible from the outside upon which an official could form a reasonable suspicion. (See United States v. Biswell, supra, 406 U.S. 311, 316 [32 L.Ed.2d 87, 92]; Colonnade Corp. v. United States, supra, 397 U.S. 72, 74, 76-77 [25 L.Ed.2d 60, 64]; Camara v. Municipal Court, supra, 387 U.S. 523, 537 [18 L.Ed.2d 930, 940]; cf. United States v. Martinez-Fuerte (1976) 428 U.S. 543, 557 [49 L.Ed.2d 1116, 1128, 96 S.Ct. 3074].) By contrast, drunk drivers are conspicuous. We have all observed drunks weaving down the road, speeding up and slowing down, straddling lanes, and ignoring traffic and traffic signs. It is preposterous to claim that police have no way other than a roadblock to detect or deter drunk drivers.

The majority suggest that roadblocks are necessary because existing enforcement techniques have not eradicated the problem of drunk driving. If this were a proper consideration, the Fourth Amendment would have little meaning. Existing enforcement techniques have not eradicated the scourge of crime in our society, yet no one would seriously propose that the Constitution therefore permits the police to make unprecedented invasions of personal liberty. If we allow mass detentions through the means of roadblocks merely because the police claim that they may be more effective and {Page 43 Cal.3d 1354} helpful to law enforcement, we have gone a long way towards abandoning the protection of the Fourth Amendment.

The majority find that the deterrent effect of drunk driving roadblocks weighs heavily in the balance. (The majority concede that roadblocks do not produce nearly as many arrests per officer hour as patrols in which drivers are stopped for cause.) fn. 3 This assertion is based on anecdotal evidence and flawed logic. Some states justify roadblocks by comparing accident rates in counties having roadblocks with others having none, but to conclude that it was the roadblock that caused the difference is the rankest speculation. fn. 4 The California Highway Patrol concedes that such evidence is inconclusive. In fact, some studies indicate that whatever deterrent effect a roadblock may have is entirely the result of its novelty and the waywardness of publicity. For example, as European drivers became accustomed to roadblocks and the publicity about them died down, their deterrent effect disappeared. (See ABA, Assessment of Effectiveness, supra, at p. 3.)

The majority admit that the deterrent effect of drunk driving roadblocks is not established and that "[t]he experience both in California and in other states with sobriety checkpoints has been very limited, and no definitive statistics are yet available." (Maj. opn., ante, at p. 1339.) Yet, the majority insist that "[i]t would be presumptuous in the extreme for this court to prohibit the use of an otherwise permissible and potentially effective procedure merely because its effectiveness is at the present time largely untested." (Ibid.) This distorts the balancing test and makes it possible for any law enforcement method to pass constitutional muster as long as a plausible argument can be made that it might turn out to be effective. If this is the balancing test, it is not a test but a rubber stamp.

We also must weigh the intrusion of the roadblock on the individual. There can be no question of the reasonableness of the motorist's expectation of privacy. Though the expectation of privacy in the automobile is not as great as in the home, it is clear from Almeida-Sanchez, supra, 413 U.S. 266, {Page 43 Cal.3d 1355} and Delaware v. Prouse, supra, 440 U.S. 648, that motorists do retain a reasonable expectation of considerable privacy in the automobile. The invasiveness of a drunk driving roadblock is far greater than the invasion that the high court has characterized as minimal in the immigration checkpoint. (See United States v. Martinez-Fuerte, supra, 448 U.S. 543, 559 [49 L.Ed.2d 1116, 1129].) In the immigration checkpoint, the immigration agent's primary purpose is not to make arrests. But at a drunk driving roadblock, officers stop individuals with the purpose of determining if they are then committing the crime of drunk driving -- a crime now involving considerable public stigma, to say nothing of the substantial criminal penalties that now result from a drunk driving conviction. The United States Supreme Court has repeatedly distinguished the minimal invasion of the administrative inspection from the necessarily hostile, threatening, and frightening intrusion of an investigation for crime. (See, e.g., Camara v. Municipal Court, supra, 387 U.S. 523 at pp. 530, 537 [18 L.Ed.2d 930 at pp. 936, 940].) Moreover, the detention at a drunk driving roadblock is necessarily experienced as personally intrusive, since unlike in the license inspection or immigration checkpoint, the officer's object is to inspect the interior of the vehicle for evidence of crime and to examine the present mental and physical condition of the driver to determine if he or she should be arrested.

The majority seem to suggest that as long as a neutral plan assures that the roadblock is run safely and without arbitrariness, the individual's interest in being free from police detention does not weigh in the balance at all. This antiseptic approach denies the unavoidable invasion of privacy which occurs when a citizen is confronted by the police and his demeanor inspected for evidence that he is committing a crime. Furthermore, the protection of the neutral plan is illusory. What recourse does any driver have if the neutral plan was not being followed when he or she was stopped? In the Burlingame example, the plan provided that motorists who refused to stop would be allowed to proceed. Yet one of the participating officers said he would have pursued any motorist who refused to stop. As there is apparently no remedy for violations of the neutral plan, the plan is no protection against arbitrariness.

The pervasiveness of the invasion also must be considered. Take one example. The New York City police used 100 officers to operate a series of drunk driving roadblocks from May 27 to June 26, 1983. The police stopped 184,828 cars. There were 222 arrests for drunk driving. (N.Y. Times (June 27, 1983) at p. B1, col. 2, described in Grossman, Sobriety Checkpoints: Roadblocks to Fourth Amendment Protections, supra, 12 Am. J. Crim. L. 123, 157.) fn. 5 During a one-month period, 184,606 people who {Page 43 Cal.3d 1356} turned out to be innocent were detained by the police. For every arrest there were 831 innocent drivers whose privacy was infringed. We certainly would be concerned about the propriety of detaining the same number of citizens on our streets for "inspection" for drug abuse or other crimes. It is one thing to invade personal privacy in order to apprehend dangerous criminals, but when the purported object is deterrence, such mass detentions are a very high price to pay when the effectiveness of such detentions is questionable at best.

The invasion of privacy occasioned by these roadblocks also may become pervasive in the sense that the roadblocks will be everywhere. If we approve drunk driving roadblocks, they may appear in every community. This could mean 20 or 30 or more roadblocks in any urban area on any given night. Omnipresent police blockades at each community's border would be not only inconvenient for motorists, but also would be a contradiction of our values as an open and free society.

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

Conclusion

Since I regard a drunk driving roadblock under which a motorist is stopped with no reasonable suspicion that he is intoxicated inconsistent with the federal and state Constitutions, I would reverse the decision of the Court of Appeal and order the issuance of a peremptory writ.

Mosk, J., and Panelli, J., concurred.

FN 1. The California Highway Patrol shortly thereafter set up checkpoints at four test locations throughout the state. Other law enforcement agencies also announced or implemented sobriety checkpoint programs within a short time.

FN 2. At the location selected, El Camino Real was a divided road, providing safety and minimizing distraction to southbound traffic. There was a separate frontage road area which provided a safe place for directing motorists out of and back into the northbound traffic lanes. There was also a safe area in which to conduct field sobriety tests.

FN 3. Approximately 29 percent of those stopped returned the postage paid survey cards. Of those responding, about 91 percent said they were not significantly delayed and 80 percent approved of drunk driving checkpoints.

FN 4. Petitioners did not renew their request for a stay when they brought the matter before this court on the petition for review.

FN 5. Cars avoiding the checkpoint would be stopped, however, if in avoiding the checkpoint the driver did anything unlawful, or exhibited obvious signs of impairment.

FN 6. It is also worthy of mention that in some cases stepped up roving patrols may not be a viable alternative for some law enforcement agencies for other reasons. The Riverside Police Department indicated, for example, that it was greatly handicapped in using roving patrols as an alternative because of a lack of patrol vehicles.

FN 7. Vehicle Code section 21 provides: "Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein."

FN 8. Petitioners point out the failure of Senate Bill No. 5 (1985-1986 Reg. Sess.) (see Sen. Weekly Hist., No. 134 (1985-1986 Reg. Sess.) Sept. 13, 1985) and Assembly Bill No. 14 (1985-1986 Reg. Sess.) (see Assem. Weekly Hist., No. 128 (1985-1986 Reg. Sess.) Sept. 13, 1985). They also cite the failure of Assembly Bill No. 104 (1983-1984 Reg. Sess.) and Assembly Bill No. 3604 (1983-1984 Reg. Sess.).

FN 1. For the purpose of this opinion, the term "drunk driving" includes driving under the influence of alcohol or drugs. (See Veh. Code, § 23152 et seq.)

FN 2. Although the Department of Motor Vehicles administers the license and registration provisions of the Vehicle Code, it has no agents enforcing the prohibition against drunk driving.

FN 3. The majority do maintain that roadblocks may be effective in detecting the drunk driver with a low blood-alcohol level whose driving would not give objective signs that he is drunk. While this may be true, I fail to see the point of dedicating twice as many officer hours to arrest a mildly intoxicated driver as would be employed to arrest a seriously intoxicated driver. Police resources being limited, it is obviously more effective to use them to apprehend the more dangerous offender.

FN 4. This point is made in great detail in Grossman, Sobriety Checkpoints: Ineffective and Intrusive in American Bar Association, Criminal Justice Section, Drunk Driving Laws and Enforcement, an Assessment of Effectiveness (1986) 15, 17 (hereafter ABA, Assessment of Effectiveness), and in Grossman, Sobriety Checkpoints: Roadblocks to Fourth Amendment Protections (1984) 12 Am. J. Crim. L. 123, 162-165. See also Jacobs & Strossen, Mass Investigations Without Individualized Suspicion: A Constitutional and Policy Critique of Drunk Driving Roadblocks (1985) 18 U.C.Davis L.Rev. 595, 640-641.

FN 5. A similar example is the experience of Missouri. In a 12-month period, there were 83 roadblocks; 23,934 cars were stopped. There were 181 arrests for drunk driving and 34 for drug-related offenses. (See ABA, Assessment of Effectiveness, supra, at p. 9.)

Cal. DMV must pay attorney fees, expert fees when a rehearing is necessitated by loss of transcript

California DUI criminal defense attorney case

Frase v. Gourley (2000) 85 Cal.App.4th 762 [102 Cal.Rptr.2d 432]
[No. G025876.Fourth Dist., Div. Three. Dec. 19, 2000.]

STUART FRED FRASE, Plaintiff and Respondent, v. STEVEN GOURLEY, as Director, etc.,
Defendant and Appellant.
(Superior Court of Orange County, No. 805815, F. Latimer Gould, Temporary Judge. fn. * )
(Opinion by Sills, P. J., with Crosby and Bedsworth, JJ., concurring.)
COUNSEL
Bill Lockyer, Attorney General, Silvia M. Diaz and Gabrielle Harner Brumbach, Deputy
Attorneys General, for Defendant and Appellant.
George L. Chelius for Plaintiff and Respondent. {Page 85 Cal.App.4th 764}
OPINION
SILLS, P. J.-
The Department of Motor Vehicles (DMV) suspended Stuart Fred Frase's driver's license
following an administrative per se hearing. When Frase challenged the suspension in court, the
DMV was unable to file the complete administrative record because it had lost a portion of the
hearing—the testimony of Frase and his expert—and refused to bear the cost of reconstructing it.
We affirm the judgment setting aside the suspension.
I
Early in the evening on October 7, 1998, Frase was involved in a minor automobile accident in
Irvine. Results of a blood test indicated he had been driving with a blood-alcohol content in
excess of the legal limit. Based upon that report, his driver's license was suspended.
Frase requested an administrative per se hearing. Witnesses at the hearing were Frase and
Darrell Clardy, his expert. Clardy contended that forensic test results were flawed because Frase's
blood-alcohol level was rising. He submitted his own test results to prove it. In upholding the
suspension, the hearing officer discounted Clardy's testimony as "too speculative."
Frase filed a petition for writ of administrative mandamus in the superior court and asked the
DMV to prepare the record. The record prepared by the DMV did not contain the testimony of
Frase or his expert; apparently that portion of the tape of the hearing had been erased. No one
knows why only {Page 85 Cal.App.4th 765} these discrete portions were missing, but without
them the administrative record is incomplete. In an effort to recreate the record, the deputy
attorney general assigned to the case suggested that the parties stipulate to remand the matter for
a new hearing where Frase and his expert would retestify. Frase indicated he would agree to that
if the DMV paid the cost, estimated to be about $1,500, for his expert and attorney to appear at
the new hearing. The DMV refused without giving a reason.
The DMV certified the record even though it was incomplete. Following a hearing, the trial
court set aside the suspension.
II
[1] When a licensee files a petition for writ of administrative mandamus to challenge the
DMV's decision to suspend his or her driver's license, "review shall be on the record of the
hearing." (Veh. Code, § 13559.) The burden of supplying a record sufficient for review is on the
licensee. (Code Civ. Proc., § 1094.5, subd. (a); Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347,
355 [25 Cal.Rptr.2d 852].) That burden is met when the licensee makes a proper request on the
DMV to prepare and certify the record because the DMV records and transcribes the hearing
(Veh. Code, § 14104.2), has sole custody and control of the recordings and other evidence, and
has a duty to maintain an adequate record. (Hothem v. City and County of San Francisco (1986)
186 Cal.App.3d 702, 705 [231 Cal.Rptr. 70]; Cal. Administrative Mandamus (Cont.Ed.Bar 2d
ed. 1989) Initiating Proceedings to Review, § 8.13, p. 267.)
If the DMV does not maintain a record which is adequate for judicial review it may choose, for
example, to set aside the order, reconstruct the record, prepare a summary of the facts, or hold a
new hearing. (SeeHothem v. City and County of San Francisco, supra, 186 Cal.App.3d at p.
705; Chavez v. Civil Service Com. (1978) 86 Cal.App.3d 324, 332 [150 Cal.Rptr. 197].) On the
other hand, if it fails to maintain an adequate record and then refuses to assist the petitioner in
compiling the record, "the agency can be foreclosed from disputing petitioner's statement of fact"
(Woodard v. Personnel Commission (1979) 89 Cal.App.3d 552, 561 [152 Cal.Rptr. 658]) or the
court may set aside the order of suspension on that basis.
[2a] The DMV, whether intentionally or negligently, failed to maintain, and thus could not
prepare, an adequate record in this case because discrete portions of the tape had been erased.
The deputy attorney general properly recognized that the DMV had a duty to assist Frase in
preparing an adequate record. She suggested that the parties stipulate to remand the matter for a
{Page 85 Cal.App.4th 766} new hearing. Frase agreed, but on condition that the DMV pay the
costs of his expert and attorney to attend the new hearing. This was a reasonable condition under
the circumstances.
It is unclear why the DMV refused to pay Frase's costs. We were advised at oral argument that
this was a "departmental decision," which suggests the DMV recognized the request was not
unreasonable. But the fact the DMV made a conscious decision to force Frase to expend
additional moneys when the need for the rehearing was solely its doing is outrageous. While
$1,500 may be an insignificant sum of money to some, it can be a considerable sum for the
average licensee, especially when it is placed on top of the sum which must be advanced for an
attorney and an expert witness just to mount a basic defense to an administrative per se hearing.
Moreover, requiring a licensee to pay any additional sum simply to obtain judicial review
violates fundamental notions of due process and runs contrary to the legislative scheme.
[3] InGikas v. Zolin (1993) 6 Cal.4th 841 [25 Cal.Rptr.2d 500, 863 P.2d 745], our high court
explained that "[t]he express legislative purposes of the administrative suspension procedure are:
(1) to provide safety to persons using the highways by quickly suspending the driving privilege of
persons who drive with excessive blood-alcohol levels; [and] (2) to guard against erroneous
deprivation [of that privilege] by providing a prompt administrative review of the suspension ...."
(Id. at p. 847, italics added.) This is why administrative per se hearings are set up as summary
proceedings.
[2b] Just as important as a quick hearing, however, is a fair one. AsGikas suggests, a fair
hearing is one which ensures that the licensee has an opportunity to guard against the "erroneous
deprivation" of his or her license. Any procedure which is overly burdensome or expensive
undermines the licensee's ability to raise potentially valid defenses, and creates roadblocks in any
effort to obtain judicial review. A prohibitively expensive procedure would, for example, be an
unfair barrier. But just as the DMV cannot impose excessive fees, it cannot act in a way which
functionally has that effect. A licensee who hires an attorney and expert witness to represent him
or her at the administrative per se hearing must bear the initial cost of that representation. Having
done so once, however, the licensee cannot be commanded by the DMV to do so again simply in
order to pursue judicial review.
Frase paid for his representation once. The DMV's refusal to bear the cost of Frase's attorney
and expert witness at a new hearing here was arbitrary. The DMV must bear the responsibility for
its intransigence. Accordingly, the {Page 85 Cal.App.4th 767} judgment setting aside the
suspension is affirmed. Frase shall recover his costs on appeal.
Crosby, J., and Bedsworth, J., concurred.
FN *. Pursuant to California Constitution, article VI, section 21.

Monday, September 10, 2007

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Saturday, September 8, 2007

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