Monday, March 17, 2008

Evidence to support DUI in California?

California DUI attorney news

Filed 3/17/08 P. v. Adams CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

JEROME SIDNEY ADAMS,

Defendant and Appellant.
G038377
(Super. Ct. No. 06SF0668)

O P I N I O N


Appeal from a judgment of the Superior Court of Orange County, Everett W. Dickey, Retired Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

California Highway Patrol Officer Robert Hunter saw defendant Jerome Sidney Adams driving a car that was going 30 miles per hour over the speed limit. Hunter activated the patrol vehicle’s overhead lights, but defendant failed to pull over until Hunter turned on the siren. Although admitting his driver’s license had been suspended, defendant asked Hunter to give him a speeding ticket and let him leave. Defendant denied drinking, but Hunter noticed the smell of alcohol on him, that he had red, watery eyes, spoke with a slur, and stumbled when getting out of the car. Hunter had defendant perform several field sobriety tests, but he failed to do so properly. Defendant also faked attempts to perform breath tests. After his arrest, police officers found two half-empty beer cans under the front passenger seat. Based on this and other circumstantial evidence a jury found defendant guilty of driving while under the influence of alcohol, and the trial court sentenced him to two years in prison for a felony conviction of this crime.

Defendant now claims the evidence fails to support his conviction because “there was simply no testimony linking [his] being ‘under the influence’ of alcohol to impairment to drive, the element required to convict.” We find no error and affirm.

DISCUSSION

Although public service announcements frequently urged people not to drink and drive, it is not a crime in California to drink alcohol and drive a car. This activity becomes illegal only when, as a result of alcohol consumption, a person’s “‘physical or mental abilities are impaired to such a degree that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.’ [Citation.]” (People v. Weathington (1991) 231 Cal.App.3d 69, 78, 81; see also People v. Schoonover (1970) 5 Cal.App.3d 101, 105-106.)

Whether a person has been driving a vehicle while under the influence of alcohol presents “a question of fact to be determined by the [trier of fact] from all the proven circumstances of the case.” (People v. Markham (1957) 153 Cal.App.2d 260, 271; see also People v. Bui (2001) 86 Cal.App.4th 1187, 1194.) Furthermore, “whatever may be established by direct evidence in a criminal case may be established by circumstantial evidence. [Citations.]” (People v. Smith (1967) 253 Cal.App.2d 711, 715.) In a drunk driving prosecution, the evidence can include “[t]he detailed testimony of the observable physical and mental reactive state of the defendant . . . testified to by [a] police officer[] experienced in observing such details.” (Ibid.)

On appeal, “an appellate court . . . look[s] to whether there is substantial evidence in the record in support of the questioned element of the charged

offense . . . . We review the whole record in the light most favorable to the judgment and presume in support of the judgment every fact the trier could reasonably deduce from the evidence. [Citations.] ‘Substantial evidence’ is evidence which is reasonable, credible, and of solid value, and it is such that a reasonable trier of fact could find a defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Gallardo (1994) 22 Cal.App.4th 489, 492.)

The circumstances supporting a finding that one drove while impaired by alcohol include the facts cited by Hunter; driving “at a speed in excess of” the speed limit (People v. Torres (1959) 167 Cal.App.2d 36, 39), “testimony . . . that [the defendant] exhibited . . . symptoms of intoxication,” (People v. Baxter (1958) 165 Cal.App.2d 648, 651), such as “the odor of beer on his breath, . . . slurred speech and unsteadiness[],” plus “poor performance on the field sobriety tests.” (People v. Rice (1988) 200 Cal.App.3d 647, 651; see also People v. Weathington, supra, 231 Cal.App.3d at p. 84 [“appellant’s speech was slurred” and “he had a swaying, staggering walk”].)

In addition to the evidence concerning the manner in which defendant operated the car and Hunter’s observations of his speech, statements, and physical behavior after the stop, the prosecution presented evidence of conscious of guilt on defendant’s part. “The inference of consciousness of guilt from willful falsehood or fabrication or suppression of evidence is one supported by common sense, which many jurors are likely to indulge even without an instruction.” (People v. Holloway (2004) 33 Cal.4th 96, 142.) First, the prosecution introduced evidence defendant lied when he denied drinking since the police found two partially consumed beer cans in a car occupied only by him and an obviously intoxicated passenger. (People v. Ryan (1981) 116 Cal.App.3d 168, 178-179.) Second, the prosecution presented evidence that defendant attempted to suppress evidence of his blood alcohol level by twice feigning to properly blow into a breath-alcohol testing device. (People v. Farman (2002) 28 Cal.4th 107, 164-165 [consciousness of guilt instruction supported by a defendant’s “threat to forcibly resist . . . court order for hair and blood samples”].) We conclude the evidence presented at trial supports the jury’s verdict.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.