Sunday, May 11, 2008

CHP v. Allende - Recovery of Emergency Response California DUI costs

California DUI attorney news

California DUI lawyers' clients sometimes receive CHP bills after California DUI incidents. CHP v. Allende (below) deals with when CHP may recover for emergency response costs for a California DUI investigation/California DUI arrest.

No California DUI conviction is required as CHP letters indicate, and as the case states. A California DUI arrest is apparently enough as long as the elements are met. Even if the charged California DUI client blows a .01% after arrest -- recovery of costs is apparently not predicated upon California DUI conviction.

What it is predicated upon is Gov. Code 53150 which sets out five distinct elements which must be met before recovery can be had under Gov. Code 53156. The problem with current CHP billings - which are issuing without an ACCIDENT incident - is that CHP v. Allende discusses in length the definition of what is an incident. A traffic stop and arrest for California DUI is not an "incident" under 53150, as it is not pursuant to a "reasonable emergency response".

They are currently trying to overzealously recover for those California DUI arrests which arise from citizen complaints via 911 calls re: suspected California DUI - drunk drivers. If the California DUI officers are taken from their "regular patrol duties" and redirected to the area where this purported drunken driver is located, CHP is attempting to view that as an "incident" which then sparks the "emergency response" which in turn opens up pandora's box for recovery of all costs associated with the California DUI stop, California DUI investigation, California DUI arrest and California DUI booking, even though there is no California DUI accident, no California DUI road blockage, no California DUI abandoned vehicle, and no other type California DUI "incident".

CHP may attempt to analyze this to a silent alarm call re: breaking and entering into a home where a vehicle responds, redirecting that unit from its normal patrol duties to respond to that scene. Whether or not the California DUI arrest culminates in a California DUI complaint or California DUI conviction, this California DUI statute and case law appears to allow recovery as long as one stretches it to the limit.

This is new ground that CHP is trying to forge in recovery. In finding the proper defense test case to take to an appellate court, one must read the prevailing authority carefully to determine if the 5 part tests in CHP v. Allende has been met to fulfill the "incident" and "reasonable emergency response" elements" leading to recovery pursuant to 53156.

Notwithstanding finding the appropriate test case for the appellate court, the CHP must first file a civil suit to recover these civil costs. CHP cannot persistently harass a California DUI client into paying, once the client indicates an unwaivering belief they do not owe these costs pursuant to Gov. Codes 53150-53159.

It is at this civil suit where the particular facts of the case can be extracted to determine if the CHP is going to open a new door to recovery vis-a-vis 911 calls constituting the "incident" versus the clear intent of the case law that the incident is some physical harm caused to person or property due to the negligent operation of a motor vehicle, while under the influence, which is the proximate cause of the damage, resulting in a reasonable emergency response from CHP.

The CHP can bill for whatever they want. Before they can send such a bill to a collection agency, ruin your client's credit, or continually harass your client, the proper course of action is to file a civil lawsuit to collect said bill, once there is an unqualified refusal to pay the charges. This is addressed in CHP v. Allende as Allende paid $16.00 of an original CHP bill which exceeded $300. Allende no doubt sent the $16 check with a letter stating "here's what I believe you are owed, if you disagree, sue me".

Thereafter, as required by law in order to obtain an enforceable court order/judgment, CHP filed civil suit. At trial, the trial court agreed in part with Allende, stating that CHP should be reimbursed for it's "extra" time spent "reasonably responding to an emergency call", due to the accident, but agreed in part with Allende that CHP could not recovery for duties performed in the investigation, arrest, and booking for the intertwined dui, including officer's salaries.

Note: If 5 CHP units respond where only 1 or 2 is needed to control traffic, arrange tow, interview wits, investigate accident and dui, then the response of many more patrol units with multiple officers standing around "jawing" would hardly seem reasonable costs if reference to dispatch tapes/logs/reports reveals those extra units did NOTHING in terms of assisting in the incident and were not mentioned in any of the reports.) Not a "reasonable emergency response".

After trial in Allende, CHP was unhappy with the $216.00 out of $300 plus from their original bill, they appealed, and it is this 2006 opinion from which we draw the most current interpretation of Gov. Code 53150-53159.

In the appellate decision 25 pages are devoted to defining an "incident", as well as other language in G.C. 53150 as well as the legislative intent argued by each side in this controversy. Finally, the appeallate court defined "incident" in the least illuminating terms possible. We do know for sure that an accident, car stranded in the middle of the roadway or on a train track is an "incident" under G.C. 53150.

What concerns many are situations where CHP is now unfairly pushing to recover for "incidents" such as citizen cell calls reporting suspected drunk driver's. That issue, not addressed in Allende or any subsequent case to my knowledge is ripe for judicial interpretation. Is a cell call from a named/unnamed citizen re: possible dui driver an "incident" as defined in Allende sufficient to trigger a "reasonable emergency response" by CHP, who leave the location of patrol, and redirect their focus to the location of this particular suspected DUI driver.

Does this citizen call/dispatch induced redirection of patrol location cause the loss of police surveillance, service and protection to the rest of the driving public, discussed in Allende as a justification for permitting recovery of costs? If the CHP officer redirected is merely changing his course of travel within his regularly assigned patrol route, how is the public any more adversely affected than if the officer were to personally observe the driving giving rise to a decision to detain for further investigation of dui? In either situation, the officer must devote his attention to the dui investigation, and will not be driving his little "tight circle" back and forth on the freeway during that portion of his shift.

Isn't the purpose of patrolling in this fashion to detect, correct, cite or arrest law violators? How then is this dispatch redirection pursuant to a cell call characterized as the "trigger" for a "reasonable emergency response".
Recovery of costs cannot be had without all 5 elements first being proved by CHP per G.C. 53150 per the Allende court, including NEGLIGENT driving PROXIMATELY causing the "incident". If a citizen seems "erratic" driving characterized as "consistent" with one who may be under the influence, that is information insufficient to constitute an "incident" in my opinion, for the Allende court specifically stated that more than mere "negligent" driving while under the influence must be shown before recovery for costs will be granted.

The following is an excerpt from California Highway Patrol v. Superior Court (Allende) (2006) 135 Cal.App.4th 488:

Although an arrest is an event distinct from the negligent driving
that prompts it, an arrest following a traffic stop by itself does not
qualify as an "incident." If the Legislature had intended any police
intervention involving a person driving under the influence to qualify
for recovery of response costs, it could have provided simply that a
person is liable for costs incurred by a public agency responding to
that person's operation of a vehicle while intoxicated. There would
have been no need to add the requirement of an incident. Moreover,
regardless of how one defines "incident," the term is followed by
language limiting the incidents for which costs may be recovered to
those "resulting in an appropriate emergency response." (§ 53150.) It
would be a highly strained interpretation to consider stopping a
motorist for driving under the influence, without more, as an
"emergency" within the meaning of section 53150. Indeed, the Vehicle
Code defines "emergency response situation" in one context to mean
"instances in which necessary measures are needed in order to prevent
injury or death to persons or to prevent, confine, or mitigate damage
or destruction to property." (Veh. Code, § 23116, subd. (e).) While
the purpose underlying the prohibition of driving under the influence
and the enforcement of that prohibition is of course public safety,
that general objective hardly transforms every arrest for DUI into an

County of Santa Clara contends that interpreting "incident" as
"accident" would lead to absurd results, arguing that a person who
scuffs a lamp post while parking would cause an "incident" but an
intoxicated driver who gives rise to an emergency response by stalling
on train tracks would not. But neither the parties nor the trial court
have taken the position that an "incident" must involve an accident.
The trial court acknowledged that an event "such as abandoning a
vehicle in a roadway and impeding or blocking the normal and
reasonable movement of traffic" may constitute an incident. The CHP
has chosen as a matter of policy to seek cost recovery only for
traffic accidents, but its internal policy documents acknowledge that
the statute allows reimbursement for costs associated with any DUI
incident, not simply accidents. Moreover, we are not persuaded that
absurd results will follow unless "incident" is defined to include
simple traffic stops resulting in [135 Cal.App.4th 500] DUI arrests.
As the trial court recognized, an event not involving an accident may
necessitate an emergency response. Situations such as the abandonment
of a vehicle on railroad tracks, unlike a traffic stop or an arrest at
a DUI checkpoint, may involve an emergency response to prevent harm to
persons or property and require more of a peace officer's time and
attention than the typical enforcement of the DUI laws.

[7] To the extent there is ambiguity in the meaning of "incident," we
turn to legislative history for guidance. ( Day v. City of Fontana,
supra, 25 Cal.4th at p. 272.) The cost recovery statutes, codified in
sections 53150 through 53158, fn. 7 were added to the Government Code
in 1985 by Senate Bill No. 735. (Stats. 1985, ch. 337, § 1.) As
introduced, Senate Bill No. 735 required the occurrence of a
drunk-driving accident before a public agency could recover emergency
response costs. The initial proposal would have limited cost recovery
to situations involving an "incident resulting in injury to or death
to any person, including [the driver], or damage to any property . . .
." (Sen. Bill No. 735 (1985-1986 Reg. Sess.) as introduced Mar. 4,
1985.) The legislation was patterned after other laws allowing
recovery of costs incurred in responding to fires started negligently
or intentionally. (See Legis. Counsel's Dig., Sen. Bill No. 735
(1985-1986 Reg. Sess.) as introduced Mar. 4, 1985, p. 1.) The Senate
subsequently amended Senate Bill No. 735--to address the admissibility
in a subsequent criminal action of testimony in proceedings under the
cost recovery statute--but it retained the requirement that an
incident result in personal injury, death, or property damage in order
to permit cost reimbursement. (Sen. Bill No. 735 (1985-1986 Reg.
Sess.) as amended Apr. 18, 1985.)

The Assembly Judiciary Committee next reviewed Senate Bill No. 735 and
questioned whether the accident-based limitation was too narrow: "What
is the rationale for requiring injury or damage in order to trigger
liability? Would it not be more appropriate for liability to arise
whenever a public agency reasonably provides emergency services in
response to such an incident, whether or not there is damage?" (Assem.
Com. on Jud., Analysis of Sen. Bill No. 735 (1985-1986 Reg. Sess.) as
amended Apr. 18, 1985, p. 2.) In response to this concern, the
Assembly amended the legislation so that reimbursement could be sought
for emergency response costs regardless of whether an incident
resulted in property damage or personal injury. (Sen. Bill No. 735
(1985-1986 Reg. Sess.) as amended June 12, 1985.) The Legislature
ultimately passed this version of the bill. Relying in part on this
legislative history, County of Santa Clara argues that the Legislature
intended to expand the bill's coverage to include arrests. We [135
Cal.App.4th 501] disagree. While the scope of the statute was expanded
to cover more than accidents, there is nothing to indicate the
Legislature intended to include arrests following ordinary traffic
stops. We have found no support in the legislative history for the
proposition that an ordinary traffic stop constitutes an emergency

(January 21, 2006 revised with rehearing denied Jan. 31, 2006 - the revision adds a footnote 11 following the end of the first full paragraph on page 505, advance report. "In a petition for rehearing, Allende does cite the legislative history in support of the contention that investigative costs are not recoverable. " ) Then the court goes on to discuss how intertwined and impossible of division the accident investigation and dui investigation costs would be.

Supreme Court of California March 29, 2006 - Petition for review denied.

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