Tuesday, March 4, 2008

California DUI for drinking Kava?

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People v. Olive (2001) 92 Cal.App.4th Supp. 21 [112 Cal.Rptr.2d 687]

Appellate Division, Superior Court, San Mateo

[No. AD-4645.

Jul. 24, 2001.]

THE PEOPLE, Plaintiff and Appellant, v. SIONE OLIVE, Defendant and Respondent.

(Superior Court of San Mateo County, Southern Judicial District, No. SM306891,
Marta S. Diaz, Judge.)

(Opinion by Kopp, J., with Holm, P. J., and Pfeiffer, J., concurring.)


Hugo Borja for Plaintiff and Appellant.

Rachel Holt for Defendant and Respondent. {Page 92 Cal.App.4th Supp. 23}



This appeal involves a legal issue of first impression and continuing public
interest in California.

Respondent, driving erratically at a slow speed southbound on U.S. Highway 101 at
1:20 a.m. on June 17, 2000, was stopped by California Highway Patrol officers.
Requested to walk to the officers' vehicle, respondent displayed difficulty in
maintaining his balance. His movements were deliberate, slow and sluggish; his eyes were
red and watery. He denied drinking any alcohol but stated he had consumed
approximately 23 cups of kava. Asked if he felt any effects from the kava, respondent
replied that he felt "slow and heavy." Immediately thereafter, physical sobriety
tests were administered to the respondent. His performance was flawed. A preliminary
alcohol screening test showed 0.00 percent alcohol in his blood. One of the
officers then arrested respondent after forming the opinion that respondent was under the
influence of alcohol or a drug and his ability to operate a motor vehicle safely
was impaired.

Appellant commenced criminal action against respondent on June 19, 2000, accusing
him of violating Vehicle Code section 23152, subdivision (a). fn. 1 Respondent
moved to dismiss the charge, claiming unconstitutionality of section 23152,
subdivision (a) as applied to him in the circumstances of the case. He alleged the statute
was "overly broad and vague" and its {Page 92 Cal.App.4th Supp. 24} application on
the facts of the case denied him "due process of law." Respondent further
contended section 23152, subdivision (a) provides no notice that driving under the
influence of kava is a crime and that neither by statute nor case law is kava deemed a
drug under section 23152, subdivision (a).

Respondent also moved pursuant to Penal Code section 1538.5 to suppress evidence
from a postarrest urine test. Respondent's motion to suppress evidence was
considered first by the trial court at a hearing in which the arresting officer testified
for appellant and was cross-examined by respondent. The respondent neither
produced any evidence nor exercised responsibility for sustaining the burden of his
motion to dismiss the case. In fact, appellant's evidentiary presentation anent the
motion to suppress evidence and the testimonial hearing thereon were subsumed by the
court's consideration of the motion to dismiss for unconstitutionality. The trial
court denied the motion to suppress evidence and, after considering legal argument
in which the court requested appellant to proceed first, ordered dismissal of the
case, declaring it was doing so, "in this case, under these circumstances, based
on the evidence in this particular record."

[1a] Appellant appeals, claiming dismissal occurred pursuant to Penal Code section
1385 "in furtherance of justice" and that the trial court abused its discretion
thereunder. We reverse, not because Penal Code section 1385's discretionary power
was abused (Pen. Code, § 1385 was not the basis of dismissal), but because (1)
respondent, not appellant, bears the burden in his due process attack of showing
Vehicle Code section 23152, subdivision (a)'s unconstitutionality as applied and
failed utterly to do so, and (2) such showing as was adduced in the motion to suppress
hearing persuades us the statute is constitutional as applied to respondent. As
noted in People v. Archerd (1970) 3 Cal.3d 615, 639 [91 Cal.Rptr. 397, 477 P.2d
421], in which the defendant raised preindictment delay as a violation of his due
process right to a speedy trial, an accused must demonstrate "prejudice or improper
motive by the prosecution ... [and thereafter] the burden shifts to the People to
show that the pre-indictment delay was the result of a valid police purpose."
Similarly, respondent, not appellant, was first obliged procedurally to establish, by
experts or other evidentiary sources, unconstitutional application, after which
appellant could respond.

Since no facts were advanced by respondent concerning unconstitutional application
of section 23152, subdivision (a) to him, he rests his unconstitutionality
argument upon the lack of any judicial decision and omission of a literal statutory
statement that kava constitutes a "drug" within the meaning of section 23152,
subdivision (a). We could remand to the trial court for {Page 92 Cal.App.4th Supp. 25}
failure to compel respondent's execution of his burden to show unconstitutionality of
section 23152, subdivision (a) as applied. [2] We do not do so because
interpretation of a statute and the determination of its constitutionality are questions of
law, absent any factual showing by an accused. As an appellate court, we apply a
de novo standard of review. (People v. Health Laboratories of North America, Inc.
(2001) 87 Cal.App.4th 442, 445 [104 Cal.Rptr.2d 618].)

[3] All presumptions favor the validity of a statute, and statutes "must be upheld
unless their unconstitutionality clearly, positively and unmistakably appears."
(Smith v. Peterson (1955) 131 Cal.App.2d 241, 246 [280 P.2d 522, 49 A.L.R.2d
1194].) A criminal statute satisfies due process so long as it is "definite enough to
provide a standard of conduct for those whose activities are proscribed [citations]"
and "provide[s] definite guidelines for the police in order to prevent arbitrary
and discriminatory enforcement. [Citations.]" (People v. Heitzman (1994) 9 Cal.4th
189, 199-200 [37 Cal.Rptr.2d 236, 886 P.2d 1229].) A statute must give fair
warning and sufficiently inform ordinary people with average intelligence of the acts
it declares prohibited and punishable. (Burg v. Municipal Court (1983) 35 Cal.3d
257, 270-272 [198 Cal.Rptr. 145, 673 P.2d 732].) The defendant in Burg challenged
the then existing 0.10 percent blood-alcohol standard for conviction of a section
23152, subdivision (b) violation, with a vagueness theory that it was impossible
"for a person to determine by means of his senses whether his blood-alcohol level is
a 'legal' 0.09 percent or an 'illegal' 0.10 percent." (Burg, at p. 270.) The court
rejected defendant's curious theory and commented that consumption of a quantity
of alcohol "should notify a person of ordinary intelligence he is in jeopardy of
violating the statute." (Id. at p. 271.)

[1b] Respondent herein contends that without inclusion of kava, in haec verba,
section 23152, subdivision (a) is void for vagueness. Actual notice of each drug
constituting a basis for prosecution under section 23152, subdivision (a) is not
required if a person is reasonably made aware of the proscribed conduct, namely,
impaired driving ability resulting from ingestion of some substance. "It is not required
that a statute, to be valid, have that degree of exactness which inheres in a
mathematical theorem. It is not necessary that a statute furnish detailed plans and
specifications of the acts or conduct prohibited." (Smith v. Peterson, supra, "131
Cal.App.2d at p. 246.)

In People v. Buese (1963) 220 Cal.App.2d 802, 806-807 [34 Cal.Rptr. 102], the
court held not void for vagueness a statute barring transportation of "drugs" into a
county jail. The drug in issue was a hypnotic. The court observed: " 'Drugs' is the
general word used in association with 'narcotics' and 'alcoholic beverages.'
These terms have a number of things in common, {Page 92 Cal.App.4th Supp. 26} included
among which is the fact that they are taken internally and when so taken they
affect the brain, and particularly that function of the brain controlling judgment.
By use of the word 'drugs' it is reasonable to assume the Legislature intended to
include those drugs having similar characteristics. So interpreted hypnotic drugs
are clearly within a much larger group possessing such similarity." (Id. at p.

As used in section 23152, "drug" is defined by section 312, which declares: "The
term 'drug' means any substance or combination of substances, other than alcohol,
which could so affect the nervous system, brain, or muscles of a person as to
impair, to an appreciable degree, his ability to drive a vehicle in the manner that an
ordinarily prudent and cautious man, in full possession of his faculties, using
reasonable care, would drive a similar vehicle under like conditions."

Omission of kava by its name does not render Vehicle Code section 23152,
subdivision (a) unconstitutionally vague as applied. (People v. Avila (2000) 80 Cal.App.4th
791, 802-803 [95 Cal.Rptr.2d 651]; People v. Keith (1960) 184 Cal.App.2d Supp.
884.) In Avila, a Penal Code section 286, subdivision (i) action, the Court of
Appeal iterated: "A statute provides adequate notice when its 'language conveys
sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practices.' " (People v. Avila, supra, 80 Cal.App.4th at pp. 802-803,
italics added.) No actual substance was (or is) identified in Penal Code section
286, subdivision (i). There, the court held the purpose of the allegedly vague
language in that statute was "to define the crime in terms that clearly warn against
the commission of sodomy on a victim whose ability to resist, ... is prevented by
substances having anesthetic or intoxicating effects ...." (Avila, at p. 798.)

Section 23152, subdivision (a) provides that vehicle operation while under the
influence of a substance other than alcohol which could "affect the nervous system,
brain, or muscles" (§ 312) in such a way as to impair a person's ability to drive
as an ordinarily prudent and cautious man using reasonable care would drive a
vehicle under like conditions is a crime. It describes conduct; it does not purport to
identify particular drugs, and it is not required constitutionally in this case
to do so. (Testimony offered by appellant at the hearing on the motion to suppress
evidence demonstrates respondent was himself aware of kava's effects the very
night of his arrest; he felt "slow and heavy." fn. 2

Because respondent failed to sustain the burden of proof created by his due
process motion to dismiss for unconstitutionality as applied and because {Page 92
Cal.App.4th Supp. 27} section 23152, subdivision (a) in conjunction with section 312
conveys legally sufficient warning about the prohibited conduct, the judgment
dismissing the criminal action against respondent is reversed. The case is remanded for

Holm, P. J., and Pfeiffer, J., concurred.

­FN 1. All statutory references are to the Vehicle Code unless otherwise stated.

­FN 2. The effects upon his motoring ability were plainly observed by the
arresting officer, who also observed respondent's flawed performance on physical sobriety

[End_of_Volume 92 Cal.App.4th]