Orange Superior Court Judge Theodore E. Millard’s felony DUI conviction was upheld in People v. Millard, Case Number D047681. However, his restitution order must be recalculated as it had attorney fees sustained in the victim’s civil action.
After having dinner with friends, his vehicle ran into motorcyclist William Payne. He had to give up his job as a customer service representative for a home construction company as a result of the accident and obtained a $1.1 million settlement from the judge’s insurer.
California DUI blood test showed that the judge had a .11% at some time after the collision. He was found guilty of California DUI and driving with .08% BAC, while committing an unlawful act—failure to yield while making a left turn—and causing bodily injury.
California drunk driving police testified that Millard said he did not see the motorcycle, and that he had been drinking 3 or 4 glasses of win with 2 to 3 " of wine in each glass.
The trial judge sentenced the ex-judge to 3 years of informal probation, including 75days in jail and 5 & 1/2 months of electronic confinement, plus about $390,000 in restitution to the victim.
In setting the restitution amount, the judge reasoned that Payne had suffered than $133,000 in medical expenses, and $800,000 in past and future wage losses.
Since those losses represented 84.9 percent of the total settlement, the judge took the one-third contingency fee of $366,666 charged by Payne’s attorney and deducted 15.1 percent of that amount, representing the percentage of the settlement attributable to non-economic damages, and added $311,000 in attorney fees to the restitution amount, for a total of $1.245 million.
The judge then discounted that amount, taking into consideration the amount of the settlement and the extent to which the accident was partially Payne’s fault, and came up with the final figure of $386,164, plus interest.
Justice McDonald rejected the contention that the trial judge erred in barring a defense expert—who testified that Millard’s blood alcohol level was actually under 0.05 percent—from testifying that a driver is presumed unimpaired at that level, and also erred by not instructing on that presumption.
The California DUI expert’s testimony was based on a replication test conducted five months after the accident.
The California DUI statute says the presumption arises if the defendant has a blood alcohol level under 0.05 percent “at the time of the test” for intoxication.
“The phrase ‘at the time of the test’ implicitly means the test taken by or on behalf of police at the time of or shortly after the defendant’s alleged offense,” the justice wrote. “It cannot reasonably be construed to include a replication test conducted on a defendant days, weeks, or even months after the alleged offense.”
The trial judge’s restitution calculations, with the exception of those involving attorney fees and costs, were within the range of his discretion. The fee number was excessive because the lower court did not apply the lodestar method to calculate a reasonable fee, and did not find that the amount actually charged was reasonable.
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