Monday, March 31, 2008

California DUI attorney case law update - Generic DUI and Per Se DUI

California DUI attorney case law update

California DUI and .08% BAC

A driver is acquitted of "per se DUI" -- the offense of driving with a blood-alcohol level greater than .08, brought under Veh. Code § 23152, subd. (b) -- but the jury hangs on the "generic DUI" count of driving under the influence of alcohol, brought under Veh. Code § 23152, subd. (a). He is then retried on the generic DUI charge, and the jury is instructed than having a BAC higher than .08 creates a "presumption" that an individual is DUI.

That, said the California Fourth District Court of Appeal Friday in People v. Smith, D049993, was error, because the prosecution should have been collaterally estopped on this point. The court includes a helpful discussion of the relationship between generic and per se DUI:

The Legislature has created two offenses to punish unsafe driving resulting from a driver's alcohol consumption: (1) driving while under the influence of alcohol (§ 23152, subd. (a) (generic DUI)), and (2) driving with a blood alcohol level of .08 or more (§ 23152, subd. (b) (per se DUI)). (See People v. Bransford (1994) 8 Cal.4th 885, 888.) The two offenses are related because they pertain to the same criminal event, but are distinct because they have different elements of proof—i.e., the generic DUI offense requires a showing of driving impairment but does not require a showing of any particular blood alcohol level, and the per se DUI offense requires a showing of a .08 or more alcohol level but does not require a showing of driving impairment. Although both punish the same act—unsafe driving caused by alcohol consumption—that act can be established by proving either impairment or a blood alcohol level of .08 or higher. The creation of an offense based on a .08 or greater blood alcohol level (without requiring proof of actual driving impairment) passes constitutional muster because scientific evidence shows driving impairment at this level of alcohol. (See Burg v. Municipal Court (1983) 35 Cal.3d 257, 267-268.) Concomitantly, because scientific evidence shows impairment at the .08 level, when a defendant is charged with generic DUI the Legislature has authorized a jury instruction setting forth a permissive presumption allowing the jury to infer the ultimate fact of driving under the influence from the basic fact of a .08 or more blood alcohol level.

The court notes:

Because collateral estoppel principles were not applied, instead of advising the jury of the limitation arising from the first jury's verdict, the second jury was told it could render a guilty verdict premised on the very finding rejected by the first jury: i.e., that Smith drove with a blood alcohol level of .08 or more. Indeed, to the extent the second jury based its verdict on a finding that the defendant drove with a .08 or more blood alcohol level, the first jury's acquittal was effectively negated. Given that per se and generic DUI concern the same criminal event, and that a finding establishing per se DUI supports an inference that can establish generic DUI, this case strongly implicates the core collateral estoppel concern of "protect[ing] a man who has been acquitted from having to 'run the gantlet' a second time." (Ashe, supra, 397 U.S. at p. 446.)

California DUI lawyers carefully read these California DUI cases.