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July 27th, 2010

Appellant Department of Motor Vehicles (DMV) appeals from a judgment granting a petition for writ of mandate directing the DMV to set aside the suspension of respondent Thomas Lee Childress’ commercial driver’s license. The DMV contends it is required to disqualify [*2] a driver’s commercial license if the driver operates a commercial vehicle with an excessive blood alcohol concentration. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Childress holds a Class A commercial driver’s license with hazardous materials and tank endorsements. On May 21, 2003, Childress was driving a commercial vehicle through the Donner Pass when a police officer stopped him for failing to display the appropriate fuel tax stickers. The officer smelled alcohol on Childress’ breath. Two preliminary alcohol screening device tests indicated his blood alcohol concentration was .115 percent. At the Nevada County jail, a breath test stated Childress’ blood alcohol concentration was .08 percent. Childress was arrested and charged with violating Vehicle Code section 23152, subdivisions (a) (driving under the influence of alcohol), (b) (driving a vehicle with a blood alcohol concentration of .08 percent or higher), and (d) (driving a commercial vehicle with a blood alcohol concentration of .04 percent or higher). 1

FOOTNOTES

1 All further statutory references are to the Vehicle Code unless otherwise indicated.

[*3] On July 8, 2003, Childress pled guilty to driving a vehicle with a blood alcohol concentration of .08 percent or higher in violation of section 23152, subdivision (b). The trial court suspended imposition of the sentence and granted conditional probation for three years. The trial court ordered Childress to serve two days in jail with one day credit for time served, pay a fine of $ 1,829.25, complete an alcohol program, and submit to chemical testing as requested by a police or probation officer. The trial court also ordered Childress’ driver’s license restricted for 90 days consecutive to the DMV’s administrative per se suspension. Apparently, an abstract of the court record was forwarded to the DMV stating that the vehicle involved in the offense was a commercial motor vehicle.

On August 20, 2003, the DMV notified Childress that he must surrender his commercial driver’s license for one year because DMV records showed that he had been “driving a commercial vehicle while under the influence of alcohol or a controlled substance.” Childress requested a hearing. The hearing was set for September 12, 2003. Childress could not attend on the scheduled date and requested a continuance. [*4] Apparently, Childress’ request was not received and the hearing was held on September 12, 2003, without his appearance. The DMV sent Childress a copy of the hearing officer’s findings and decision. The hearing officer found that Childress had violated section 23152, subdivision (b) and the order disqualifying his commercial license should be sustained. The DMV sent Childress a copy of the DMV’s decision to uphold the suspension of Childress’ commercial license.

On October 22, 2003, Childress filed a petition for writ of mandate for an order reinstating his license. After a hearing, the trial court granted the petition. On March 5, 2004, the trial court entered judgment granting a peremptory writ of mandate ordering the DMV to reinstate Childress’ commercial driver’s license. The DMV filed a timely notice of appeal.

DISCUSSION

Standard of Review

Resolution of an issue of statutory interpretation is a question of law which we review de novo on appeal. (Hamilton v. Gourley (2002) 103 Cal.App.4th 351, 356.) “‘The fundamental goal of statutory interpretation is to ascertain the intent of the Legislature so as to effectuate the purpose of [*5] the law. “In determining such intent, we first look to the words of the statute themselves, giving the language its usual, ordinary import. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.”‘ [Citation.]” (Ibid.)

Suspension of Commercial License

The DMV contends that if it receives a record showing a person has been convicted under section 23152, subdivision (b) of driving with a blood alcohol concentration of .08 percent, it is required to ascertain whether the person was driving a commercial vehicle at the time of the offense, and if so, suspend the driver’s commercial license for one year under section 15300. We disagree as to offenses occurring prior to September 20, 2005.

Prior to 1981, section 23102 made it illegal to drive while “under the influence” of alcohol. (Burg v. Municipal Court (1983) 35 Cal.3d 257, 264, 198 Cal. Rptr. 145.) In 1981, the Legislature retained the “driving under the influence” statute, but renumbered it section 23152, subdivision [*6] (a). At the same time, the Legislature added section 23152, subdivision (b), which provided that it was unlawful to drive a vehicle with a specified blood alcohol concentration level. Several states had enacted similar statutes in response to a federal law requiring states to enact blood alcohol concentration level laws in order to receive certain federal highway funds. (Ibid.) Depending on the state’s statutory scheme, the enactments created either a new offense of driving with a specified blood alcohol concentration level, an alternative definition of “driving under the influence,” or a lesser included offense within driving under the influence. (Id. at pp. 264-265.) In Burg, our Supreme Court held that section 23152, subdivision (b) established a new and separate offense. (Id. at p. 265.)

Driving while under the influence of alcohol, as prohibited by section 23152, subdivision (a), is defined in the following terms: “‘”A person is [under the influence of an alcoholic beverage] . . . when as a result of [drinking the alcoholic beverage] . . . [his] [her] physical or mental abilities are impaired to such a degree that [he] [she] [*7] 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.”‘” (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 360.) “In a [prosecution for driving under the influence], the question whether a person was under the influence of an intoxicating liquor is one of fact to be determined by the court or jury from all the circumstances of the case. [Citation.]” (Ibid.)

A conviction for violation of section 23152, subdivision (b) is not interchangeable with a conviction for driving under the influence, nor does it establish a conclusive presumption that a defendant was driving under the influence of alcohol. (Hamilton v. Gourley, supra, 103 Cal.App.4th at pp. 360-361.) Instead, section 23152, subdivision (b) defines and establishes a new and separate offense of driving with a specified breath-test reading. (Id. at p. 361.) To obtain a conviction under section 23152, subdivision (b), the prosecution need not prove that the defendant’s driving ability was impaired and the trier of fact need not determine whether a defendant was [*8] “driving under the influence,” only whether he had the specified blood alcohol concentration. (Ibid.)

The Federal Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. � 31101 et seq.) (the federal act) required sweeping changes in the testing and licensing of commercial drivers as a condition to maintain eligibility for federal highway funds. (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 358, fn. 1.) One of the requirements of the federal act is that the state “shall have in effect and enforce a law providing that an individual with a blood alcohol concentration level at or above the level established by section 31310(a) of this title when operating a commercial vehicle is deemed to be driving under the influence of alcohol.” (49 U.S.C. � 31311(a)(3).) Section 31310(a) of the federal act provides that “the blood alcohol concentration level at or above which an individual when operating a commercial motor vehicle is deemed to be driving under the influence of alcohol is .04 percent.”

The California Legislature enacted a series of amendments to the Vehicle Code in order to comply with the federal act. [*9] (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 358, fn. 1.) In 1989, section 23152 was amended to add subdivision (d) containing a specific prohibition against driving a commercial vehicle with a blood alcohol concentration of .04 or more. Section 23152 currently provides in relevant part: “(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. [P] (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. [P] . . . [P] (d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210. [P] . . . [P] (e) This section shall become operative on January 1, 1992, and shall remain operative until the [Director of Motor Vehicles] determines that federal regulations . . . do not require the state to prohibit operation of commercial vehicles when the operator has a concentration of alcohol in his or her blood of 0.04 percent by weight or more.”

Within 10 days [*10] after a person is convicted of a violation of the Vehicle Code, the clerk of the court must prepare and immediately forward to the DMV an abstract of the court record. ( � 1803, subd. (a).) “The abstract shall be made upon a form furnished or approved by the [DMV] and shall contain all necessary information to identify the defendant, including, but not limited to, the person’s driver’s license number, name, [] date of birth, the date and nature of the offense, . . . the license plate number of the vehicle involved in the offense, the date of hearing, and the judgment . . . . The abstract shall also indicate whether the vehicle involved in the offense is a commercial motor vehicle, as defined in subdivision (b) of Section 15210 . . . .” ( � 1804, subd. (a).) 2

FOOTNOTES

2 The requirement that courts furnish information to the DMV regarding whether a conviction involved a commercial vehicle was enacted as part of the 1988 amendments to the Vehicle Code to comply with the federal act. (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 358, fn. 1.)

[*11] Any abstract for which the original arrest and final conviction was for a violation of section 23152 must contain a statement indicating the percentage of alcohol, by weight, in the person’s blood whenever the percentage was determined by a chemical test. ( � 1804, subd. (b).) “The [DMV] may use the information for research and statistical purposes and for determining the eligibility of any person to operate a motor vehicle on the highways of this state.” (Ibid.) However, “the Legislature finds and declares that blood-alcohol percentages have valuable research potential in providing statistical summary information on impaired drivers but that a specific blood-alcohol percentage is only an item of evidence for purposes of criminal and licensing sanctions imposed by law. The Legislature recognizes that the accuracy of the determination of a specific blood-alcohol percentage is not the critical determination in a conviction for driving under the influence of an alcoholic beverage if the blood-alcohol percentage exceeds the statutory amount.” (Id., subd. (c).)

Upon receipt of a record showing a conviction for any violation of section 23152, the DMV must “immediately suspend [*12] or revoke, or record the court-administered suspension or revocation of, the privilege of a person to operate a motor vehicle” as set forth in section 13352, subdivision (a). Section 13352, subdivision (a) provides that if the offense occurs in a commercial vehicle, the suspension or revocation specified in section 13352 shall apply to the noncommercial driving privilege. “The commercial driving privilege shall be disqualified as specified in Sections 15300 to 15302, inclusive.” ( � 13352, subd. (a).) 3

FOOTNOTES

3 Section 13352, subdivision (a) provides in pertinent part: “If any offense specified in this section occurs in a [commercial] vehicle . . ., the suspension or revocation specified below shall apply to the noncommercial driving privilege. The commercial driving privilege shall be disqualified as specified in Sections 15300 to 15302, inclusive. For the purposes of this section, suspension or revocation shall be as follows: [P] (1) Upon a conviction or finding of a violation of Section 23152 punishable under Section 23536 [first violation], the privilege shall be suspended for six months.”

[*13] Section 15300, subdivision (a), added by the Legislature in 1988, provides in relevant part: “No driver of a commercial motor vehicle may operate a commercial motor vehicle for a period of one year if the driver is convicted of a first violation of any of the following: [P] (1) Driving a commercial motor vehicle while under the influence of alcohol or a controlled substance.”

In Hamilton v. Gourley, supra, 103 Cal.App.4th 351, the court held that the one-year disqualification of a commercial license applies to first-time offenders who are convicted of driving under the influence under section 23152, subdivision (a) while operating a commercial vehicle. (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 358.) Although a conviction under section 23152, subdivision (a) does not require finding that a commercial vehicle was involved, DMV may determine whether a commercial motor vehicle was involved from the records the DMV receives from the court clerk pursuant to sections 1803 and 1804. (Ibid.)

The one-year disqualification does not apply to a conviction for driving a vehicle with a blood alcohol concentration of .08 percent under section [*14] 23152, subdivision (b), because that offense lacks the element that the driver be “under the influence” of alcohol at the time of the violation. (Hamilton v. Gourley, supra, 103 Cal.App.4th at pp. 360-361.) “By the time section 15300 was enacted in 1988, the Legislature had already made driving with a minimum [blood alcohol concentration] level a separate and distinct crime from [driving under the influence], while retaining the old [driving under the influence] statute. [Citation.] It must be presumed that the Legislature was aware of the distinction between the two offenses. [Citation.] Had the Legislature intended to impose the one-year penalty on the operator of a commercial vehicle who drove with a specified [blood alcohol concentration] level, it could easily have so stated. Yet section 15300 plainly requires that the one-year commercial penalty be based on a conviction of driving ‘under the influence.’” (Id. at p. 361, fn. omitted.)

The one-year disqualification also does not apply to a conviction under section 23152, subdivision (d) for driving a commercial vehicle with a blood alcohol concentration of .04 percent or more. [*15] (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 359.) As discussed above, driving “under the influence” and driving with a specified blood alcohol concentration are not equivalent. (Ibid.) “Driving with a [blood alcohol concentration] level in excess of the maximum specified in a statute is an independent offense which does not require a showing that the driver’s abilities were impaired by alcohol. [Citation.] More importantly, section 15300 was added to the code in 1988, prior to the enactment of section 23152(d). Obviously, the Legislature could not have intended the DMV to impose an administrative sanction for the conviction of a crime that did not yet exist.” (Ibid., fn. omitted.)

In the instant case, Childress was convicted of driving with a blood alcohol concentration level of .08 percent in violation of section 23152, subdivision (b). This conviction is not a basis for imposition of a one-year suspension under section 15300.

The DMV contends that Hamilton v. Gourley, supra, 103 Cal.App.4th 351 was incorrectly decided. The DMV asserts that notwithstanding California law providing that a conviction for driving under [*16] the influence is not equivalent to a conviction for driving with an excessive blood alcohol concentration, the Legislature intended the phrase “driving under the influence” as used in section 15300 to include driving with an excessive blood alcohol concentration level. The DMV’s interpretation is not reasonable in light of the fact that only five years prior to the enactment of section 15300, the Supreme Court made clear in Burg that a conviction for driving with an excessive blood alcohol concentration level is a separate offense from driving under the influence, not a lesser included offense and not an alternative definition of driving under the influence. In section 1804, which requires courts to transmit blood-alcohol level information to the DMV and was amended in 1988 as part of the enactments to comply with the federal act, the Legislature specifically recognizes that a driver’s blood-alcohol level is not the critical determination in a conviction for “driving under the influence.” The Hamilton court was correct to presume that the Legislature was aware of the distinction between the two offenses. (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 361, fn. 4.) [*17] Section 15300 uses the phrase “under the influence” and requires suspension of a driver’s commercial license for a year, based on a conviction for driving a commercial motor vehicle while under the influence of alcohol. The statute does not refer to blood alcohol concentration levels. Had the Legislature intended for a commercial license to be suspended based solely upon a conviction for driving with an excessive blood alcohol concentration level, it knew how to include language to that effect in section 15300. 4

FOOTNOTES

4 “There may be sound policy reasons why the Legislature chose to require a [driving under the influence] offense rather than a [blood alcohol concentration] percentage conviction to trigger the commercial penalty. For example, ‘”the Legislature may reasonably have concluded that the holders of commercial licenses as a group depend more upon those licenses for their employment and economic survival than do the holders of noncommercial licenses, . . .”‘ [Citation.]” (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 362, fn. 5.)

[*18] Any doubt as to the Legislature’s intent has been resolved with the Legislature’s amendment of section 15300, subdivision (a) in September 2004, operative September 20, 2005, to provide in relevant part: “A driver of a commercial motor vehicle may not operate a commercial motor vehicle for a period of one year if the driver is convicted of a first violation of any of the following: (1) Subdivision (a) or (b) of Section 23152. [P] (2) Subdivision (d) of Section 23152.” Under the statute as amended, a conviction for violating section 23152, subdivision (b) will now clearly trigger a one-year suspension of the driver’s commercial license. However, the Legislature specifically declared that any cause for disqualification of the commercial driving privilege enacted as part of the September 2004 legislation may only be applied to violations occurring on or after September 20, 2005. (Assem. Bill No. 3049 (2003-2004 Reg. Sess.) � 1.) Therefore, the Legislature had an opportunity after the decision in Hamilton to act immediately by enacting urgency legislation, but chose to delay implementation of commercial license suspensions for violations of section 23152, subdivisions (b) and (d) [*19] until September 20, 2005. By implication, the Legislature accepted the Hamilton court’s expression of legislative intent.

The DMV bases several additional arguments on its contention that if a driver is convicted of driving with an excessive blood alcohol concentration, the DMV may hold an administrative hearing to determine whether the driver was driving under the influence for purposes of suspending the driver’s commercial license under section 15300. In Hamilton, the appellate court concluded that a person would be deprived of procedural due process if a conviction for driving with an excessive blood alcohol concentration resulted in a license suspension under section 15300 for driving under the influence. (Hamilton v. Gourley, supra, 103 Cal.App.4th at pp. 362-363.) The appellate court’s analysis began with the fact that section 23610, subdivision (a)(3) provides a rebuttable presumption in a criminal action for driving under the influence in violation of section 23152, subdivision (a), that a person with a .08 percent blood alcohol concentration is under the influence of alcohol. (Id. at p. 362.) 5 The defendant has the opportunity [*20] to defeat the presumption. (Ibid.) The Hamilton court noted that section 15300, subdivision (a)(1) “does not allow an opportunity for a party saddled with the presumption to put on rebuttal evidence: the penalty is triggered automatically, without the benefit of a hearing, by the DMV’s receipt of the record of conviction. By imposing the one-year penalty for a .08 percent [blood alcohol concentration] conviction, the DMV has effectively converted a rebuttable presumption into a conclusive one, depriving [the defendant] of the most elementary elements of procedural due process.” (Id. at pp. 362-363.)

FOOTNOTES

5 Section 23610, subdivision (a) provides in pertinent part: “Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of an alcoholic beverage in violation of subdivision (a) of Section 23152 . . . the amount of alcohol in the person’s blood at the time of the test as shown by chemical analysis of that person’s blood, breath, or urine shall give rise to the following presumptions affecting the burden of proof: [P] . . .[P] (3) If there was at that time 0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.”

[*21] The DMV contends the due process analysis in Hamilton is incorrect, because the commercial license suspension under section 15300 is not necessarily automatic or without the right to a hearing. Alternatively, the DMV contends the instant case is distinguishable from Hamilton, because Childress was given an opportunity to present evidence at a noticed hearing. We disagree with both contentions. The one-year suspension under section 15300 is triggered by receipt of a record from the court showing a conviction for driving a commercial vehicle under the influence of alcohol. Under the statutory scheme, the DMV has no discretion to decide not to impose the prescribed penalty. The DMV’s jurisdiction depends upon the nature of the conviction, not upon the nature of the DMV’s policy to grant a hearing to the commercial driver. The DMV has no jurisdiction to suspend a commercial license under section 15300, subdivision (a)(1), unless the driver’s conviction is for driving under the influence.

Similarly, the DMV contends that Childress’ plea to a violation of section 23152, subdivision (b) raised a rebuttable presumption under section 23610, subdivision (a)(3) that he had been driving [*22] under the influence and his failure to present rebuttal evidence at the administrative hearing caused the presumption to become conclusive. This is incorrect. The presumption of section 23610, subdivision (a)(3) applies in a criminal action where it is alleged that the defendant was driving under the influence in violation of subdivision (a) of section 23152. Since Childress pled no contest to a violation of subdivision (b) rather than subdivision (a) of section 23152, the presumption of section 23610, subdivision (a)(3) was irrelevant. Childress’ plea to driving with an excessive blood alcohol concentration could not result in a conclusive presumption that Childress was driving under the influence. As stated above, a license suspension under section 15300 is triggered by a conviction for driving under the influence and cannot result from a failure to present rebuttal evidence at an administrative hearing. The trial court properly granted the writ of mandate in this case.

DISPOSITION

The judgment is affirmed.KRIEGLER, J. *

FOOTNOTES

* Judge of the Superior Court for the Los Angeles Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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July 27th, 2010

[**335] YEGAN, J.—In this driving under the influence case with an out-of-state prior conviction, we granted transfer from the Appellate Department of the Superior Court, County of Santa Barbara (opn. by Anderle, P. J. with Flores, and de Bellefeuille, JJ., concurring) to further study the issue of whether the Colorado state prior conviction can serve for purposes of sentence enhancement. After such study, we have concluded that the appellate division opinion correctly treats and disposes of the issue. We adopt it as and for the opinion of this court with appropriate deletions and additions. (See, e.g., Estate of McDill (1975) 14 Cal.3d 831, 833–834 [122 Cal. Rptr. 754, 537 P.2d 874].)

Defendant Jared J. Crane appeals from the sentence imposed after his conviction for violation of Vehicle Code sections 23152, subdivision (a) and 23152, subdivision (b). He contends that there was insufficient evidence at trial to establish [***2] that his prior conviction in Colorado for driving while ability impaired, in violation of Colorado Revised [**336] Statutes section 42-4-1301(1)(b), would have been a violation of either Vehicle Code section 23152, subdivision (a) (driving under the influence of alcohol) or section 23152, subdivision (b) (driving with blood-alcohol level of 0.08 percent or greater) if committed in California. As a result, defendant contends the Colorado conviction did not meet the standard set forth in Vehicle Code section 23626, and could not be used in California for any purpose under the Vehicle Code, including as a prior conviction for purposes of imposing sentence enhancements under Vehicle Code section 23540. We agree, and reverse.

Defendant was arrested on August 26, 2004, and charged with violations of Vehicle Code sections 23152, subdivision (a) and 23152, subdivision (b), to which he pleaded not guilty. On April 18, 2005, the district attorney filed a motion to amend the complaint, seeking to add the allegation that defendant had suffered a prior DUI (driving under the influence) conviction in Colorado which could be used to enhance his sentence if he was convicted [***3] of the pending charges. A copy of the record of the Colorado conviction was attached to the motion. Defendant opposed the motion to amend on grounds that the Colorado conviction was not for an offense which, if committed in California, would be a violation of Vehicle Code sections 23152, subdivision (a) or 23152, subdivision (b), and it therefore could not be used to enhance his sentence under Vehicle Code section 23540. The documents noted that, although defendant had originally been charged with both driving under the influence and driving while ability impaired in Colorado, the greater driving under the influence charge had been dismissed, and defendant had pleaded to driving while ability impaired. In various locations in the records, defendant was indicated to have had a 0.093 percent blood-alcohol [*430] level (BAC) at the time of his arrest, including on (1) a computer-generated arrest report, (2) a handwritten note in the margin of a document entitled “Court Minutes,” in the section entitled “Trial/Plea/Sentence,” (3) a computer-generated Colorado driver history report, and (4) a computer-generated case summary (where the BAC was noted only with reference to the [***4] dismissed driving under the influence charge, and not to the driving while ability impaired charge to which defendant had pleaded).

Determination of the motion was deferred, and trial was ultimately set to commence on June 6, 2005, in department 12. The trial court did not determine the motion to amend prior to the commencement of trial, and the parties agreed that if it was eventually granted, trial of that issue would be bifurcated from and held after conclusion of the trial on the pending charges. As the jury was deliberating on the pending charges, the court announced it would grant the motion. Defendant then waived his right to a jury trial and admitted the fact of his Colorado conviction, reserving his right to appeal the issue of whether it qualified as a prior conviction for purposes of the sentence enhancement. On June 13, 2005, the jury returned a guilty verdict on the pending charges. The People submitted no additional evidence with respect to the Colorado conviction, and the trial court sentenced defendant under the provisions of Vehicle Code section 23540, based solely upon defendant’s admission of the fact of his conviction, and the language [***5] of the statute he admitted violating.

Defendant has appealed from the sentence imposed, contending that the prior Colorado conviction was not for an offense which, if committed in California, would be a violation of Vehicle Code section 23152, subdivision (a) or subdivision (b).

Vehicle Code section 23626 provides: HN1Go to the description of this Headnote.“A conviction of an offense in any state, territory, or possession of the United States … which, if committed in this [**337] state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code for the purposes of this code.”

HN2Go to the description of this Headnote.CA(1)(1) In enacting Vehicle Code section 23626, the Legislature apparently made a qualitative determination that only out-of-state offenses reaching the level of DUI (Veh. Code, � 23152), DUI with bodily injury (Veh. Code, � 23153), vehicular manslaughter (Pen. Code, � 191.5), [***6] or vehicular homicide (Pen. Code, � 192, subd. (c)(3)), could be used in California for any purpose under the Vehicle Code. This limitation would necessarily include the determination of whether the out-of-state convictions could qualify as prior offenses for [*431] purposes of Vehicle Code sections 23540 (enhanced sentence where there is one prior qualifying conviction within 10 years), 23546 (enhanced sentence where there are two prior qualifying convictions within 10 years), and 23550 (enhanced sentence where there are three prior qualifying convictions within 10 years). Consequently, even though sections 23540, 23546, and 23550 expressly allow lesser offenses committed in California (e.g., “wet reckless” convictions under Veh. Code, � 23103.5) to qualify as prior convictions for sentence enhancement purposes, section 23626 would prohibit use of the out-of-state equivalents of such lesser charges for any purpose, including for sentence enhancement purposes.

No California case has interpreted Vehicle Code section 23626, to provide guidance to trial courts in analyzing whether or when an out-of-state offense [***7] “would be” a qualifying conviction if committed in California. Cases exist, however, interpreting whether out-of-state DUI convictions can be used as priors for purposes of administrative license suspension proceedings before the Department of Motor Vehicles, and whether out-of-state criminal convictions can be used for purposes of statutory sentencing enhancements for prior qualifying convictions. Different standards are used in the administrative and criminal contexts, and this court has concluded that the administrative standard is inconsistent with the express terms of section 23626 which, like the criminal standard, requires that the foreign offense “would be” a qualifying offense if it had been committed in California.

HN3Go to the description of this Headnote.CA(2)(2) In administrative driver’s license suspension proceedings, a prior conviction in a foreign jurisdiction can be used as a prior offense to enhance the suspension term, if the violation was of a substantially similar nature to a violation in California of Vehicle Code section 23152, subdivision (a) or subdivision (b). (Veh. Code, �� 15022, 15023; McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677 [91 Cal. Rptr. 2d 826].) [***8] In McDonald, the court found that Colorado’s driving while ability impaired statute—the same statute at issue in this case—was not identical to DUI in California, given the varying levels of impairment required for conviction by the two statutes. However, it found that such varying levels did not prevent a finding that the two statutes were substantially similar, for purposes of enhanced administrative driver’s license suspension provisions.

In reaching its conclusion, the McDonald court expressly noted the deterrence purposes of HN4Go to the description of this Headnote.the driver license compact (Veh. Code, � 15000 et seq.), under which party states are required to report convictions of persons from another state to the licensee’s home state, and which allows such convictions to be treated by the home state licensing authority as if they were committed in the home state, so long as they are of a “substantially similar [**338] nature.” (Veh. Code, �� 15022, 15023.) The McDonald court expressly found inapplicable [*432] to administrative license suspension proceedings the criminal test for use of foreign convictions as priors for purposes [***9] of sentence enhancements, noting both that the criminal test involved a more stringent standard (whether the prior offense involved conduct which satisfies all of the elements of the comparable California offense, rather than the substantial similarity of the two laws), and that license suspension proceedings were civil in nature, not criminal.

The People argue that McDonald’s analysis with respect to the substantial similarity of the two statutes should suffice with respect to the determination whether violation of the Colorado statute would constitute a priorable offense under Vehicle Code section 23626. We disagree. While this prosecution is “only” a misdemeanor, it is still criminal in nature, and the analysis of the two statutes changes when the “substantially similar” standard is abandoned for the proper criminal standard.

CA(3)(3) As the McDonald court readily acknowledged, HN5Go to the description of this Headnote.the Colorado statute is not identical to Vehicle Code section 23152. (McDonald v. Department of Motor Vehicles, supra, 77 Cal.App.4th 677, 686.) Colorado differentiates between driving while ability impaired, under which it is illegal for a person to drive when affected [***10] to the slightest degree so that he is less able than he ordinarily would have been to exercise due care in the safe operation of a vehicle, and driving under the influence, which requires the driver to be substantially incapable of safe operation of a vehicle. The California statute prohibits driving “under the influence,” defined as when, as a result of drinking alcohol, the 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. (Id. at p. 686, citing People v. Weathington (1991) 231 Cal. App. 3d 69, 81 [282 Cal. Rptr. 170].) Certainly, it is not necessary to prove any specific degree of intoxication under section 23152, subdivision (a), but Weathington makes clear that section 23152 requires impairment “to an appreciable degree.” (People v. Weathington, supra, 231 Cal.App.3d at p. 81 [although revisions in criminal jury instructions had removed the “to an appreciable degree” language, the alteration resulted from an attempt to eliminate unnecessary language, and there was no other meaning that [***11] could be given to California’s definition of DUI].)

Because the Colorado driving while ability impaired statute punishes “the slightest degree” of impairment, and because Vehicle Code section 23152 requires impairment to an appreciable degree, the Colorado statute punishes conduct which would not violate section 23152. It therefore does not meet the test set forth in section 23626, in spite of the McDonald court’s finding of substantial similarity for administrative purposes. [*433]

HN6Go to the description of this Headnote.CA(4)(4) In the criminal context, a defendant whose prior conviction was suffered in another jurisdiction is subject to the same punishment as a person previously convicted of an offense involving the same conduct in California. (People v. Myers (1993) 5 Cal.4th 1193, 1201 [22 Cal. Rptr. 2d 911, 858 P.2d 301].) Enhancement is only permissible when the conduct underlying the foreign conviction would meet all of the elements of the California offense. (People v. Guerrero (1988) 44 Cal.3d 343 [243 Cal. Rptr. 688, 748 P.2d 1150].) In making that determination, the trier of fact may look to the entire record of the conviction, but no further. (People v. Guerrero, supra, 44 Cal.3d at p. 355.) [**339] [***12] This restriction promotes the efficient administration of justice, but also bars the prosecution from relitigating the circumstances of a prior crime.

If the statutory definition of the crime in the foreign jurisdiction contains all of the necessary elements to meet the California definition, the inquiry ends. If the statutory definition of the crime in the foreign jurisdiction does not contain the necessary elements of the California offense, the court may consider evidence found within the record of the foreign conviction in determining whether the underlying conduct would have constituted a qualifying offense if committed in California, so long as the use of such evidence is not precluded by rules of evidence or other statutory limitation. (People v. Myers, supra, 5 Cal.4th 1193.) Where the record presented at trial does not competently disclose the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law. (People v. Guerrero, supra, 44 Cal.3d at 355.)

CA(5)(5) We have already noted that HN7Go to the description of this Headnote.the statutory definitions vary to such a degree that conviction of driving while ability impaired [***13] would not necessarily constitute a violation of Vehicle Code section 23152. Rather, more is required other than the fact of conviction, in order to impose the Vehicle Code section 23540 prior conviction sentence enhancement. Certainly, in determining whether the conduct underlying the prior conviction would have violated Vehicle Code section 23152, the trial court would be entitled to look to the entire record of the foreign conviction. (People v. Guerrero, supra, 44 Cal.3d 343.) Here, however, the record of the Colorado conviction was never offered or admitted into evidence at trial. Rather, after being convicted by the jury of the pending charges, defendant admitted only the fact of his 2000 conviction for violation of Colorado Revised Statutes section 42-4-1301(1)(b) (driving while ability impaired). Because the facts underlying the Colorado offense were not before the trial court, it was required to presume that the Colorado conviction was for the least offense punishable under Colorado law, i.e., driving while impaired “to the slightest degree.” Because that standard [***14] does not violate section 23152, imposition of an enhanced sentence based upon the prior Colorado conviction was error. [*434]

The People cite Komas v. Future Systems, Inc. (1977) 71 Cal. App. 3d 809 [139 Cal. Rptr. 669], for the proposition that the failure to formally and expressly offer documents into evidence is not necessarily fatal where the court and the parties treat the documents as if they were in evidence. The principle is not applicable under the circumstances presented by this case. Komas involved a third party claim to a security interest in assets of a debtor upon which a judgment creditor was attempting to levy. In that case, the “evidence” considered by the court included the third party claimant’s verified claim and the supporting documents attached thereto. There is a world of difference between a civil hearing on a third party claim to assets, in which the evidence considered by the trial court in determining the validity of the claim is customarily and properly submitted via verified pleadings or declarations, and a criminal defendant’s due process right to be sentenced based only upon competent evidence properly offered and admitted at trial, [***15] and which meets the People’s burden to prove the sentence enhancement beyond a reasonable doubt. (See People v. Encinas (1998) 62 Cal. App. 4th 489, 492 [72 Cal. Rptr. 2d 622] [the fact that the trial court had, in ruling on a pretrial motion, learned of the facts establishing the manner in which a prior was [**340] committed, did not relieve the district attorney of the obligation to present evidence at trial to show that the prior offense was committed in such a manner as to qualify as a sentence-enhancing prior conviction].)

Even if the record of the Colorado conviction had been properly presented to the trial court, however, the result would not change. Normal rules of evidence apply to such records. (See People v. Woodell (1998) 17 Cal.4th 448, 458 [71 Cal. Rptr. 2d 241, 950 P.2d 85].) Here, there was nothing in the record of conviction to establish the conduct giving rise to defendant’s plea to and conviction of driving while ability impaired, including the purported 0.093 percent BAC. The documents on which the BAC was noted, including (1) the computer-generated arrest report, (2) the handwritten note in the margin—and not in the body—of a document entitled Court Minutes, in the section entitled Trial/Plea/Sentence, [***16] (3) the computer-generated Colorado driver history report, and (4) the computer generated case summary (which noted the BAC only with reference to the dismissed DUI charge), were not proper parts of the “record of conviction” of which the court could take judicial notice, were inadmissible hearsay, and did not in any way establish that the BAC was either admitted by or adjudicated against defendant in Colorado. Consequently, even had the trial court considered the record of conviction, there was no competent evidence in the record to support a determination that defendant’s Colorado offense would have constituted a violation of Vehicle Code section 23152, and imposition of the enhanced sentence would still have been error. [*435]

Disposition

The sentence imposed is vacated. The matter is remanded for resentencing without reference to appellant’s prior conviction as a Vehicle Code section 23540 enhancement.

Gilbert, P. J., and Coffee, J., concurred.

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July 27th, 2010

[*10] [**698] We find that Vehicle Code section 23152, subdivision (a) prohibits driving a vehicle while under the influence of alcohol and/or drugs even though the vehicle is driven only in an area not open to the general public.

Facts

CA(1)(1) According to the stipulated facts, appellant, who was under the influence of alcohol, drove a motor vehicle on a privately owned and paved area which was part of a locked storage facility. This facility was not open to [*11] the general public, but lessees and others with business on the property could enter. The lower court found him guilty, rejecting [***2] his contention that Vehicle Code section 23152, subdivision (a) 1 could not apply because he drove only on private property which was not open to use by the general public.

FOOTNOTES

1 All further statutory references are to the Vehicle Code unless otherwise noted.

Discussion

The single narrow issue raised by this appeal is whether section 23152, subdivision (a) applies to any place in California where a vehicle can be driven, including the [**699] particular venue of appellant’s under-the-influence driving, or whether it applies only to places where the general public is likely to be endangered by such driving.

Based on the stipulated facts, appellant, while under the influence of alcohol, drove in an area that was, at the most, accessible only to specific members of the public (those who were able to open the gate by using a code). If section 23152, subdivision (a) prohibits driving under the influence anywhere a vehicle can be driven, regardless of whether the property is publicly or privately owned and regardless of whether [***3] the property is open to the general public, the judgment against appellant must be affirmed.

HN1Go to the description of this Headnote.We find that section 23152, subdivision (a) does prohibit driving under the influence on private property for three reasons: first, section 23152, subdivision (a) is not limited to public highways and roads by virtue of its inclusion in division 11 of the Vehicle Code; second, section 23152, subdivision (a) is the product of a series of legislative refinements which progressively expanded its applicability and, third, Penal Code section 367d, which made it a misdemeanor to operate or drive a motor vehicle while intoxicated, has effectively merged into section 23152, subdivision (a).

Appellant relies upon section 21001 which provides that “[t]he provisions of this division [division 11] refer exclusively to the operation of vehicles upon the highways, unless a different place is specifically referred to …” to argue that he did not have reasonable notice that section 23152, subdivision (a) would be extended to private property not open to public use, i.e., to the private streets of a storage facility intended to be used only by customers of the facility.

It is arguable that the Legislature, [***4] recognizing how difficult it has been to protect the members of the public on the public highways and streets from the menace of the intoxicated driver, may not have had the subjective intent to monitor the intoxicated driver who confines his driving to locations where [*12] he will not encounter members of the general public. However, a fair reading of sections 21001, 23100 and 23152 as well as consideration of the evolution of section 23152 support the lower court’s conclusion that appellant’s driving under the influence on the private streets of the limited access storage facility did violate section 23152, subdivision (a).

HN2Go to the description of this Headnote.Section 21001 does provide that the provisions of division 11 of the Vehicle Code, of which section 23152 is one, only apply to the operation of vehicles on highways and, pursuant to section 360, streets; however, it also contemplates application of provisions in division 11 to locations other than highways (“unless a different place is specifically referred to.”)

Chapter 12 (Public Offenses) of division 11 of the Vehicle Code, which includes section 23152, begins with section 23100, a provision which clearly modifies the exclusivity of section 21001: “The [***5] provisions of this chapter apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.” We read this as meaning that the provisions in chapter 12 apply to vehicles anywhere they can be driven unless the specific provision limits itself to a specific location. For instance, one of the chapter 12 provisions, section 23103, prohibits reckless driving on a highway in subdivision (a) and prohibits reckless driving in an offstreet parking facility in subdivision (b). Had appellant been convicted of reckless driving rather than driving under the influence, he could have argued that the limited access storage facility was neither a highway nor an offstreet parking facility. A number of other chapter 12 provisions are expressly limited as to location, e.g., section 23109 prohibits speed contests “on a highway,” section 23110 prohibits throwing substances at a vehicle “on a highway,” section 23111 prohibits throwing cigarettes, etc. on “any road or highway or adjoining area,” sections 23220 and 23221 prohibit drinking any alcoholic beverage while driving a vehicle or while being in a vehicle “upon a highway.” Section 23152, however, [**700] contains [***6] no language limiting its applicability to any particular location.

The predecessor of section 23152, section 23102, made driving under the influence “upon any highway” illegal. When section 23102 was amended in 1972, the “upon any highway” language was continued in subdivision (a) while subdivision (b) prohibited driving while intoxicated “upon other than a highway.” The People contend that this amendment redressed the problem presented by Weber v. Orr (1969) 274 Cal.App.2d 288 [79 Cal.Rptr. 297], cited by appellant, which held that compliance with the implied consent law was not necessary absent a showing that the driver had operated a vehicle on a public highway. In 1981, when section 23152 replaced 23102 and was then amended, subdivision (a) prohibited any person from driving a [*13] vehicle while under the influence of alcohol and/or any drug. Subdivision (b) of section 23152 prohibited any person with .10 percent or more of alcohol in his or her blood from driving a vehicle “upon a highway or upon other than a highway in areas which are open to the general public.” In 1982, section 23152 was amended to delete the language in [***7] subdivision (b) referring to the location of the offense which left the pertinent portions of subdivisions (a) and (b) as “to drive a vehicle.” Thus, the statute that prohibits driving while under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.

Penal Code section 367d, originally enacted in 1911, made it a misdemeanor to operate or drive a motor vehicle while intoxicated. In 1968, it was amended to make illegal driving while under the influence of intoxicating liquor or under the combined influence of intoxicating liquor and any drug. In 1971, it was amended to make illegal driving under the influence of any drug. Penal Code section 367d never contained any language restricting the location of the driving to highways. In 1972, the Legislature, in the same statute (Ch. 92) that, inter alia, amended section 23102, repealed Penal Code section 367d. We find the logical conclusion is that the Legislature intended section 23102 (which later became � 23152) to define the misdemeanor crime of driving under the influence of alcohol and/or drugs. Since Penal Code section 367d contained no limitation on the location of the offense [***8] and since, at the time it was repealed, section 23102 was amended to ensure that it applied “upon any highway,” subdivision (a), and “upon other than a highway,” subdivision (b), it is also logical to conclude that the Legislature intended section 23102 to apply as broadly as Penal Code section 367d.

People v. Ashley (1971) 17 Cal.App.3d 1122 [95 Cal.Rptr. 509] noted that the words “upon any highway” had been “conspicuously omitted from section 40300.5″ and said, “whenever the Legislature has intended that a statute be limited to offenses which occur ‘upon any highway,’ it has done so expressly.” ( People v. Ashley, supra, at p. 1126.) Here, the People note that the limiting words have also been “conspicuously omitted” from section 23152.

Appellant contends that section 23152 is sufficiently ambiguous to trigger a construction favorable to the defendant ( In re Tarter (1959) 52 Cal.2d 250 [339 P.2d 553]). However, reading section 23152 as controlled by section 23100, it is not ambiguous since it provides that it is illegal while under the influence [***9] or with a blood-alcohol concentration of 0.08 percent to drive a vehicle “upon the highways and elsewhere throughout the State” (italics added). [*14]

There is no question that the drunk driver is an “extremely dangerous” person (see, e.g., Berg v. Municipal Court (1983) 35 Cal.3d 257 [198 Cal.Rptr. 145]) who obviously poses more danger when he or she drives on public streets and highways and encounters the general public in greater numbers (see e.g., Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445, 452 [214 Cal.Rptr. 249]). However, regardless of any subjective legislative intent, the objective intent of the [**701] Legislature as derived from the language of the pertinent Vehicle Code provisions is that a person who is driving while under the influence of alcohol and/or drugs is always a threat and the purpose of section 23152 is to prohibit those “extremely dangerous” persons from driving anywhere in California.

Disposition

The judgment against appellant is affirmed.

Rylaarsdam, P. J., and Bedsworth, J., concurred.

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June 21st, 2010

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May 16th, 2010

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Lawsuit filed against Judge Bernie LaForteza by Dr. DUI

April 21st, 2010

Okorie OKOROCHA, Esq., SBN 226658

California Legal Team

117 E. Colorado Blvd., Suite 465

Pasadena, CA 91105

(626) 792-1301

Attorney for Plaintiff The Defendant

and Prospective Class Members

THE UNITED STATES DISRTICT COURT

CENTRAL DISTRICT OF CALIFORNIA

1. Comes plaintiff The Defendant individually, and as class representative for those persons similarly situated as arrested and prosecuted for crimes under California law (“Defendant”), who files this civil rights complaint pursuant to Title 42 U.S.C. §1983 for violation of the excessive bail clause of U.S.Const.Amend. VIII, and for imposing a more severe penalty for exercising the right to a jury, a due process violation under U.S. Const.Amend. XIV and the right to a jury trial under U.S. Const.Amend. VI.

2. Defendant sues Defendant Bernie Laforteza (“Laforteza”) in his individual capacity only for declaratory relief only. Laforteza is an agent of California, and is sued vicariously under the doctrines of respondeat superior and ratification for prospective injunctive relief only. This declaratory relief action is cognizant under Title 42 U.S.C. §1983 pursuant to Wilkinson v. Dotson, 544 U.S. 74 (2005).

3. This court has proper jurisdiction pursuant to Title 28 U.S.C. §1367(a), and proper venue pursuant to Title 28 U.S.C. §1391(a)(2); both as Laforteza was the presiding judge on Defendant’s case in its Superior Court In And For The County Of Los Angeles.

GENERAL ALLEGATIONS

4. The instant case was a standard Driving Under the Influence case pursuant to Cal.Veh.Code §§ 23152 (a) and (b) (“DUI”). Defendant had no bad driving record, and was a completely cooperative suspect who was pulled over initially for not having a registration sticker.

5. At the Antelope Valley/Lancaster Court, the standard punishment on a first time DUI offense for those who plead guilty is 3 days of County Jail. The Defendant is given credit for time served and is not forced to go to jail but making up the days of jail by doing Community Labor through the California Transportation Department for up to three (3) days depending on credit.

6. In the instant case, Defendant had used her inhaler which contains alcohol prior to administering the test. Defendant testified that she did use the inhaler but that she could not recall exactly when she used the inhaler in relation to the breath tests that she took. Defendant took both preliminary alcohol screening tests and had readings of 0.20 and 0.19 and evidentiary breath tests one hour later with readings of 0.13 and 0.12. There were no blood tests.

7. The Criminalist for California, Ed Barley (“Barley”) attempted to lie by stating that the inhaler could only increase Defendant’s blood alcohol reading by 0.01 based on a particular article. Barley was later impeached with the same article he was lying based on and shown that the article indicated alcohol based inhalers cause an increase of 0.20 in the blood alcohol reading on breath machines. Barley also could not explain the drastic difference in readings and testified that such a drop is only seen in alcohol detoxification.

8. Prior to the trial, Defendant was offered a plea bargain of 3 days Caltrans labor, standard fines, alcohol and MADD classes However, throughout the trial, Counsel for Defendant was consistently worried that the Laforteza would severely punish her for exercising her right to counsel and a trial as he was passively supportive of the Deputy District Attorney Donna Rappaport when she indicated that the People would seek the maximum if Defendant attempted to exercise her jury trial rights. Counsel was so concerned that prior to the jury’s return, multiple briefs were filed on the subject of bail pending appeal and increased punishment for going to trial

9. Defendant was convicted at a jury trial on March 18, 2010. Despite Laforteza being informed of the law, he sentenced the Defendant to sixty (60) days in jail and gave no reason on the record. When asked for bail, he set the “reasonable” bail at $150,000. The bail schedule for the offense is $5,000 and Defendant was a young nursing student with close community ties.

10. There is no doubt that the sentence was in retaliation for exercising the right to go to trial. Furthermore, counsel for Defendant filed these brief’s because the Antelope Valley/Lancaster Court consistently violates the U.S. and California Constitution in this manner and uses other unconstitutional methods such as remanding Defendants upon conviction and making them serve five (5) days before sentencing, the maximum allowed under the law, to make sure the Defendant gets jail time.

11. Defendant sues as class representative for those similarly situation as persons arrested and prosecuted for crimes in Los Angeles County. The actions brought by the case at bar are best resolved by class action status because they are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. Further, there are predominant common questions of law or fact between all plaintiff’s; Defendant as class representative has claims or defenses typical of the class; and class counsel will adequately s represent the entire class equally as no monetary damages are sought. Thus, all of the requirements of Fed.R.Civ.P. 23 are met for numerosity, commonality, typicality and adequacy of representation of the entire class.

CAUSES OF ACTION

IMPOSING EXCESSIVE BAIL THAT SHOCKS THE CONSCIOUS

IN VIOLATION OF U.S.CONST.AMEND. VIII. EXCESSIVE BAIL CLAUSE (DECLARATORY RELIEF ONLY)

12. Defendant realleges and incorporates all facts and allegations expressed in paragraphs no. 1-11, inclusive, as if alleged and incorporated herein.

13. Defendant and others similarly situated have a constitution right under U.S.Const.Amend. VIII to not have an excessive bail amount imposed on her that shocks the conscious.

14. The standard and customary bail schedule for the offense is $5,000. However, upon Defendant’s conviction on March 18, 2010, Laforteza imposed a bail of $150,000 for a first time DUI conviction for violating Cal.Veh.Code §§ 23152 (a) and (b), both misdemeanors. This imposition of excessive bail worthy of a violent felony was such that it shocks the conscious and in violation of U.S.Const.Amend. VIII.

15. Laforteza has a policy, pattern and practice in his rulings and decisions made while a judge in the Los Angeles County Superior Court, criminal division, of imposing such excessive bail amount on those criminal defendants that come before them prosecuted in violation of U.S.Const.Amend. VIII.

16. A declaration should issue establishing that Laforteza has and does impose excessive fines upon all criminal defendants that come before him that shock the conscious in violation of U.S.Const.Amend. VIII.

IMPOSING A MORE SEVERE PENALTY IN SENTENCING UPON EXERCISING THE CONSTITUTIONAL RIGHT TO A JURY TRIAL

THAN WOULD BE RECEIVED UPON PLEADING GUILTY IN VIOLATION OF THE DUE PROCESS CLAUSE UNDER U.S.CONST.AMEND. XIV AND THE RIGHT TO A JURY TRIAL CLAUSE UNDER U.S.CONST.AMEND. VI. (DECLARATORY RELIEF ONLY)

17. Defendant realleges and incorporates all facts and allegations expressed in paragraphs no. 1-16, inclusive, as if alleged and incorporated herein.

18. Defendant and others similarly situated have a constitution right under U.S.Const.Amend. XIV to the due process of law to not have a more severe punishment imposed upon them upon any conviction for exercising their constitutional right under U.S.Const.Amend VI to take their case to a jury trial, as opposed to pleading guilty and waiving the right to a jury trial.

19. A plea offer was made by Laforteza before trial that was for of 3 days Caltrans labor, standard fines, alcohol and MADD classes. No additional material facts were proffered at trial which would justify any increased penalty from the plea offer made to Defendant. However, upon Defendant’s conviction on March 18, 2010, Laforteza imposed a sentence of 60 days in jail, well above the plea bargain offered.

20. Laforteza has a policy, pattern practice in his rulings and decisions made while a judge in the Los Angeles County Superior Court, criminal division, of imposing a more severe penalty upon defendants that come before them prosecuted, and who exercise their constitutional right to a jury trial than upon those who plead guilty and waive the right to a jury trial, in violation of the due process clause of U.S.Const.Amend. XIV and the jury trial clause of U.S.Const.Amend. VI.

21. A declaration should issue establishing that Laforteza has and does impose a more severe penalty upon those defendants who exercise their constitutional right to a jury trial as opposed to leading guilty and waive their right to a jury trial in violation of the due process clause of U.S.Const.Amend. XIV and the jury trial clause of U.S.Const.Amend. VI.

PRAYER FOR RELIEF

22. Wherefore Defendant and all plaintiffs pray for such relief as follows:

a) A declaration establishing that Laforteza has and does impose excessive bail amounts that shock the conscious upon any criminal defendants that come before them prosecuted for alleged crimes in violation of U.S.Const.Amend. VIII;

b) A declaration establishing that Laforteza has and does impose a more severe penalty upon those defendants coming before them and prosecuted for alleged crimes who exercise their constitutional right to a jury trial that they were offered to plead guilty and waive the right to a jury trial.

c) For attorney’s fees pursuant to Title 42 U.S.C. §1988.

d) For all costs of suit.

` e) For all other such relief as the court deems proper and justified.

Dated this___day of March, 2010 CALIFORIA LEGAL TEAM

________________________

Okorie Okorocha

Attorney for Plaintiff The Defendant and the Prospective Class Members

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LAPD DUI Arrest Policy and Procedures from DR. DUI Okorie Okorocha

April 19th, 2010

343. UNDER ‑ THE ‑ INFLUENCE DRIVERS.

343.10 DRIVING ‑ UNDER ‑ THE ‑ INFLUENCE ARRESTS. An arrest for driving under the influence shall be made when:

An officer witnesses a person commit the elements of driving while under the influence; or,
*

The under‑the‑influence driver was lawfully detained by an officer of this or another law enforcement agency; or,
*

The under‑the‑influence driver was lawfully arrested or detained by a private person who witnessed the driving element of the offense.

An arrest may be made for 23152(a) VC per authority of 40300.5 VC when a traffic collision has occurred but the arresting officer did not witness driving, when:

The arresting officer has reasonable cause to believe that a person involved in the traffic collision was driving a vehicle while under the influence of intoxicating liquor, or the combined influence of intoxicating liquor and any drug; and,
*

The arrest is effected as a continuous uninterrupted portion of the investigation.

Note: The arrest shall be limited to the location of the traffic collision or the location of any timely follow‑up investigation.

The element of being under‑the‑influence shall be based on the objective symptoms observed by the arresting officer. Results of other examinations shall be corroborative evidence only.

343.20 SOBRIETY EXAMINATION. The physical phases of the sobriety examination shall be given when an under‑the‑influence driver is able and willing to perform them and, when practicable, shall be conducted at the scene of the incident in the presence of witnesses.

A sobriety examination, as per Form 05.02.05, shall be completed when an officer:

Arrests a person whom he/she witnesses commit the elements of driving while under the influence; or,
*

Arrests a driver suspected of being intoxicated who was lawfully arrested or detained by another peace officer or a private person (Manual Section 4/343.10); or,
*

Is investigating a suspect for driving‑under‑the‑influence; or,
*

Is investigating a traffic collision and an involved driver displays any objective symptoms of being under‑the‑influence, regardless of whether the driver is arrested.

When a suspected under‑the‑influence driver refuses to submit to a field sobriety test, the investigating officer shall, read the Field Sobriety Test Admonition to the driver.
343.25 DRIVING – UNDER – THE – INFLUENCE (DUI) DRUG ARREST PROCEDURES.

Arresting Officer’s Responsibility. When an arrest is made for driving under‑the‑influence of drugs or combination of drugs and alcohol, the arresting officer shall:

Admonish the arrestee regarding a chemical test as per the Chemical Test Admonition on the DUI Arrest Report, Form 05.02.05.
*

Administer a chemical test to the arrestee.

Note: Whenever possible, a breath test should be administered to determine alcohol intoxication.

If the breath test is obtained and the results are .08% or higher, book the arrestee for Section 23152(a) (DUI) V.C. When the results are below .08%, complete the following:
o

Read to the arrestee verbatim the Drug Admonition from the DUI Arrest Report.
o

Obtain a urine or blood sample from the arrestee.

Note: If urine is the only chemical examination administered, officers shall obtain the first void for possible detection of drugs, and the second void for the possible detection of alcohol. Both samples shall be marked accordingly and booked as evidence.

If the breath test is obtained and the results are .30% or higher, the arrestee shall be examined by medical personnel pursuant to Manual Section 4/648.17.
*

Request a Drug Recognition Expert (DRE) or, if none available, a Narcotics Expert.
*

If an on‑duty DRE or Narcotics Expert is not available within the concerned bureau, the arresting officer shall obtain an MT for the arrestee and request the examining physician to include an opinion regarding objective symptoms and possible drug ingestion.

Exception: If a traffic death or traffic felony arrest is involved and a DRE or Narcotics Expert is not available within the concerned bureau, the arresting officer shall contact Communications Division and request an on‑duty DRE or Narcotics Expert from anywhere in the City. If no on‑duty DRE or Narcotics Expert is available, the officer shall contact the Administrative Unit, Detective Support and Vice Division, and request that an off‑duty DRE be dispatched.

When applicable, include the Drug Influence Evaluation Form (completed by an expert) as a page of the arrest report.

Drug Recognition Expert (DRE)/Narcotics Expert’s Responsibility. A DRE or Narcotics Expert is responsible for evaluating and rendering an opinion of the drug influence of DUI Drug arrestees. As part of that examination, the expert shall:

Advise the arresting officer of any additional tests required.
*

Determine if an MT is needed.
*

Complete the Drug Influence Evaluation Form.
*

Enter a brief description of the findings and the examining officer’s name and serial number in the Remarks Section of the Booking Approval, Form 12.31.00.

Note: If during a drug evaluation, the expert determines that he/she is not qualified to render an opinion, the watch commander approving the booking shall determine if another expert should be called.
343.28 ADMINISTRATIVE PER SE ORDER OF SUSPENSION.

343.30 ARRESTING OFFICER’S RESPONSIBILITY. An officer making an arrest for driving-under-the-influence (DUI) shall complete a DUI arrest report in the usual manner and confiscate the California driver’s license of the arrestee when the arrestee:

Refuses to submit to and complete a chemical test; or

Note: The Chemical Test Admonition portion must be read to the arrestee in its entirety, even when the arrestee refuses to submit to or complete a chemical test.

Takes a breath test which shows a blood alcohol concentration (BAC) level of .08 percent or more; or,
*

Takes a urine or blood test and the officer believes that subsequent test results will show that the driver is at or above a blood alcohol concentration of .08 percent.

Note: Out-of-state/foreign licenses are not included under California law and cannot be confiscated.

Upon completion of the DUI arrest report and confiscation of the arrestee’s California driver’s license, the arresting officer shall complete:

A Department of Motor Vehicles (DMV) Officer’s Statement, Form DS367, and write the arrestee’s booking number in the upper right corner; and,
*

A DMV Administrative Per Se Order Of Suspension/Revocation Temporary License Endorsement, Form DS360.

Upon approval of the DUI arrest report and Administrative Per Se documentation, officers shall:

Attach page two of the DMV Form DS360 to the DUI arrest report;
*

Issue page three of the DMV Form DS360 to the arrestee; and,
*

Mail the original Form DS367; page one of the Form DS360; the arrestee’s original California Driver License; and Intoxicator EC/IR Operator Checklist, Form 05.20.07, to the DMV location which corresponds with the geographic bureau of arrest.

Note: The law requires that all reports and forms be received by DMV within five working days of the date of arrest.

Page two of the DMV Form DS360, issued to the arrestee, will serve as a temporary driver’s license for 45 days from the date of arrest for an arrestee with a valid California Driver License in his or her possession. Once the arrestee’s driver’s license has been confiscated, the arrestee will have 10 days to request a DMV hearing. Failure by the arrestee to request a hearing will result in an automatic suspension of the arrestee’s California Driver License.

Exception: The arresting officer shall check the “No Temporary License Issued” box on the DMV Form DS360, and complete the explanation why no temporary license was issued, if:

The arrestee has an out-of-state/foreign driver license; or,
*

The arrestee has not been issued a valid California Driver License; or,
*

The arrestee’s California Driver License is suspended, revoked, or not in possession.

Packaging Blood or Urine Samples. If an arrestee chooses a blood or urine test, the arresting officer shall follow procedures described in Manual Sections 4/343.40 or 4/343.42. Additionally, the arresting officer shall complete the top half of the DMV Form, DS367A, and mail all three copies of the form to Scientific Investigation Division.

Supervisor’s Responsibility. Supervisors approving DUI arrest reports shall ensure that arresting officers have complied with Administrative Per Se procedures (23158.5 VC), when applicable.

343.33 INDEPENDENT TEST BY QUALIFIED PERSON. When qualified persons appear at the place of confinement by requests of the prisoner (Manual Sections 4/658.12 and 4/658.17) or other person, for the purpose of obtaining a breath, blood, or urine sample, they shall be permitted to do so upon consent of the prisoner.

Only a duly licensed doctor, laboratory technologist, bioanalyst, or registered nurse shall be permitted to withdraw a sample of the arrestee’s blood. This limitation shall not apply to the taking of breath or urine specimens;
*

The doctor must be a physician or surgeon (M.D. or osteopath) licensed to practice in the State of California. If there is a question as to the identification of the doctor, Detective Support and Vice Division shall be called to see if the doctor is listed in the Directory of the State Board of Osteopathic Examiners;
*

The laboratory technologists or bio‑analysts must be licensed to practice in the State of California. If there is a question as to their identification, Detective Support and Vice Division shall be called to see if they are listed in the Department of Public Health directory for licensed laboratory technologists and bioanalysts; and,
*

The registered nurse must be licensed to practice in the State of California and must perform the blood extraction under the supervision or at the immediate direction, of a doctor.

A Follow‑Up Report, Form 03.14.00, shall be used, by the officer having custody of the prisoner, to record:

The time the telephone call was made by or for the prisoner;
*

The time the person arrived at the place of confinement and requested to see the prisoner;
*

The person’s name, address, and telephone number, including business office address and telephone number;
*

The time the sample was taken;
*

The amount of blood taken as stated by the person;
*

The names and serial numbers of the officers witnessing the telephone call and the taking of the breath, blood, or urine sample;
*

The name of the doctor employing or supervising the registered nurse; and,
*

Any other appropriate information.

343.36 CHEMICAL TEST ADMONITIONS. Prior to administering a chemical test to a driving‑under‑the‑influence arrestee, the Chemical Test Admonition (23157 VC) section of the Driving‑Under‑ The‑Influence Arrest Report, Form 05.02.05, shall be read to the arrestee. The name and serial number of the admonishing officer shall be entered in the space provided in this section.

Note: The Chemical Test Admonition (23157VC) (Spanish) contained in the Los Angeles Police Department Citation Guide, Form 16.65.00, shall be read to Spanish speaking driving‑under‑the‑influence arrestees, by an officer fluent in, and capable of, testifying in Spanish.

After a breath test, if the arrestee is suspected of driving under the influence of alcohol, the Additional Chemical Test Admonition (23157.5 VC) section of the Driving‑Under‑The‑Influence Arrest Report shall be read to the arrestee. The name and serial number of the admonishing officer shall be entered in the space provided in this section. If drug use is suspected, the Drug Admonition of the Driving‑Under‑The‑Influence Arrest Report shall be read to the arrestee instead of the Additional Chemical Test Admonition. The name and serial number of the admonishing officer shall be entered in the space provided in this section.
343.38 BREATH TEST.

Use of Equipment. Breath‑testing equipment is located at Metropolitan Jail Section (Parker Center), Valley Headquarters Building, 77th Street Jail Section, and all geographic Areas except Central, Newton Street, Hollenbeck, and Rampart Areas. Operation of the breath‑testing equipment shall be restricted to personnel who have been trained in its use. Arresting officers not trained in the use of the breath‑testing equipment shall ensure that the examination is administered by an officer trained in its use.

An Intoximeter EC/IR Operator Check List, Form 05.20.07, shall be completed each time the Intoximeter EC/IR is set up for a test and for each subject to whom a test is administered.

Note: Breath‑testing equipment may be used as an investigative aid in driving‑under‑ the‑influence arrests involving narcotics, non‑narcotic drugs, or dangerous drugs, or for other purposes at the discretion of the concerned watch commander.

Watch commanders shall ensure that breath‑testing equipment receives timely calibration by qualified personnel.

Administering Test. Prior to administering the test, the testing officer shall observe the subject for a 15‑minute period, during which the subject shall not have eaten, drunk, smoked, regurgitated, or vomited.

Note: If the subject regurgitates, vomits, eats, drinks, or smokes between samplings, the pre-testing observation shall be repeated.

At least two breath samples shall be collected. (No waiting period is required between samples.) If the readings of the two samples vary more than .02 percentage points, additional samples shall be collected until the results of any two samples are within .02 percentage points. If five samples have been collected and the test is not complete (two samples, within .02 percentage points), the officer shall direct the subject to submit to either a blood or urine test. Failure to complete a test shall be deemed a “refusal.”

Note: Arrestees who obtain a EC/IR reading of .30 percent or higher shall be examined by medical personnel pursuant to Manual Section 4/648.17

Recording Results. The EC/IR test tape shall be separated from the machine only when:

The test is completed (two samples, within .02 percentage points); or,
*

Five samples have been collected and the test is not completed.

The date/time stamp shall be applied on the front of the test tape with each sample, and the time of each sampling shall be recorded.

Note: The date/time stamp and the required entries shall not cover any portion of the test results.

The EC/IR test tape shall be stapled to the EC/IR Check List on the space provided. The staple shall be positioned in a manner that will not interfere with reading the test results. When the test tape is longer than the Check List, the tape shall be folded in a manner that will not interfere with reading the test results.

The Intoximeter EC/IR Operator Check List shall be completed by the administering officer and:

Attached to the Arrest Report; or,
*

Submitted with the officer’s DFAR and a DUI Arrest Report, Form 05.02.05, when no arrest report is completed.

343.40 BLOOD TEST.

Criteria for Requesting. A blood sample may be requested in the following situations:

The arrestee indicates a willingness to submit to a blood test incidental to the arrest; or,
*

The arrestee is in custody for a felony and the level of intoxication would be an essential element in the alleged violation; or,
*

The arrestee is unconscious or is so impaired and is unable to consent to a chemical test. When such a condition exists, the following steps shall be taken in order to determine if the arrestee is a hemophiliac or a heart patient possibly using anticoagulant medication:
o

Check for medical information on the arrestee’s person such as a “Medic Alert” bracelet or necklace, or any other item indicative of the arrestee’s medical background;
o

If a relative or a friend of the arrestee is present who can provide information about the arrestee’s medical condition, record the name, the relationship to the arrestee, and the statements of that person in the arrest report; and,
o

Inform the attending physician of all information in the officer’s possession which may have a bearing on the arrestee’s physical condition.

Requesting Forced Blood Sample Withdrawal. A forced blood sample may be obtained from an arrestee only when all of the following conditions have been met:

The arrestee is in custody for a felony traffic offense where the injury occurred to a person other than the arrestee; and,
*

Intoxication is an essential element of the alleged violation; and,
*

The arrestee refuses to voluntarily submit to any of the available chemical tests; and,
*

Prior approval from a traffic supervisor has been obtained; and,
*

A traffic or patrol supervisor is present at the medical facility (e.g., jail dispensary, contract hospital, etc.) to witness the withdrawal of blood from the suspect.

Note: The name and serial number of the approving supervisor and the supervisor present during the forced blood withdrawal, if different from the approving supervisor, shall be written in the arrest report.

Exception: An arrestee whose medical condition prohibits a blood sample from being taken shall not be forced to submit to a blood test.

Traffic Division Supervisor’s Responsibility. Upon being advised of a request for a forced blood withdrawal, the concerned traffic division supervisor shall determine if the criteria for forced blood withdrawal is met. The approving supervisor, if readily available, should be the supervisor present during the procedure.

The supervisor who is present at the scene of a forced blood withdrawal where the use of force becomes necessary shall ensure that the use-of-force investigation is conducted by a non-involved supervisor.

Requesting Withdrawal. Whenever a blood sample is to be obtained from an arrestee, the arresting officer shall direct a Request for Withdrawal of Blood, Form 04.35.00, to any of the following hospital personnel:

Physician.
*

Registered nurse.
*

Licensed clinical laboratory technologist.
*

Licensed clinical bio‑analyst.

Physician or Hospital Employee Refusal. When a physician or hospital employee authorized by Vehicle Code Section 23158 VC refuses to withdraw a blood sample, the officers having custody of the arrestee shall request a supervisor to respond to their location. Upon arrival, the responding supervisor shall:

Become familiarized with the situation including a determination that the arrest and officer’s actions conformed with Department policy;
*

Verify the refusal by the hospital employee to withdraw blood; and,
*

Attempt to contact an administrator of the hospital who may advise the refusing employee as to responsibilities according to the contract provisions of the hospital, to the City.

When the employee still refuses to withdraw a blood sample, the supervisor shall then request the arrestee to submit to one of the other two remaining chemical tests. When the arrestee refuses the other tests, the supervisor shall advise the officers to complete the appropriate arrest report, including a notation regarding the absence of a chemical test.

Note: If a hospital employee refuses to withdraw a blood sample and the arrestee declines the remaining tests, the arrestee may be transported to a Jail Division Dispensary to obtain the blood sample.

After the arrestee is booked and all appropriate reports are completed, the concerned supervisor and officers shall each complete an Employee’s Report, Form 15.07.00, recording all pertinent information regarding the refusal to withdraw blood. The completed Employee’s Reports shall be forwarded through channels to Detective Support and Vice Division-Attention Medical Evaluation Unit.

Obtaining and Packaging. The withdrawal of all blood samples shall be witnessed by the requesting officer. Officers obtaining blood samples for alcohol or drug analysis shall, in addition to following the procedures outlined on the Analyzed Evidence To Be Refrigerated Envelope, Form 12.51.01, place the defendant’s booking number above the officer’s serial number when completing the Sealed Evidence Label. If there is no arrestee, the DR number shall be placed in the space above the booking officer’s serial number. When there is more than one suspect and a DR number is used, both the DR number and the last name of the suspect shall be used.

Officers obtaining whole blood samples from hospital employees for other than alcohol or drug analysis shall:

Tilt the vial slowly and gently for approximately twenty seconds to ensure the preservative in the vial mixes with the blood;
*

Complete the label on the vial with the suspect’s name, the DR number, and the booking officer’s initials;
*

Check the “Blood Grouping” box on the Analyzed Evidence To Be Refrigerated Envelope, and complete all other applicable reports;
*

Place the vial in the Analyzed Evidence Envelope and seal the envelope with a Sealed Evidence Label bearing the date and DR number and the officer’s payroll signature and serial number signed in ink; and,
*

Affix the Biohazard Label to the upper left corner of the front of the Analyzed Evidence To Be Refrigerated Envelope.

Supervisor Approving. The supervisor approving the booking of the sample shall inspect the sample vial or container label to ensure that the required identifying information is included.

Booking. Whole blood samples shall be booked in the SID courier refrigerated temporary storage locker most convenient for the booking employee. The SID courier shall be responsible for transporting items to be analyzed to SID.
343.42 URINE TEST.

Location Obtained. A urine sample shall be obtained from a male arrestee at the booking location, and from a female at:

Female Jail Unit, Valley Section, when arrested in West Los Angeles, Pacific, or the Valley Areas; and,
*

The Area of arrest, when arrested in the metropolitan area.

Administering Test. An officer or detention officer of the same sex as the arrestee shall:

Escort the arrestee to an appropriate restroom facility;
*

Instruct the arrestee that he/she must empty his/her bladder;
*

Remain present while the arrestee empties his/her bladder;
*

Wait twenty minutes, or as soon as possible thereafter, before attempting to collect a urine sample;
*

Provide the arrestee with a pretreated urine sample container;
*

Ensure that the container is not rinsed prior to sample collection;
*

Remain present while the arrestee provides a urine sample; and,
*

Ensure that the label identifying the chemist responsible for preparation of the container is not removed.

Note: A protective glove shall be worn when handling a urine sample.

The Driving‑Under‑the‑Influence Arrest Report (Continuation), Form 05.02.05, shall indicate:

The time the bladder of the arrestee was first emptied,
*

The time the urine sample was collected, and,
*

The name of the employee who administered the urine test.

Note: When an arresting officer becomes aware that an arrestee has emptied his/her bladder after coming into the custody of the officer, the twenty‑minute waiting period shall begin at the time the bladder was first emptied. The time and circumstances of the emptying shall be recorded on the Driving‑Under‑the‑Influence Arrest Report (Continuation), Form 05.02.05.

Booking Sample. The officer booking a urine sample shall:

Ensure that the lid is placed tightly on the container;
*

Place a completed Sealed‑Evidence Label on the side of the container, and place the defendant’s booking number above the officer’s serial number when completing the Sealed‑Evidence Label. If there is no arrestee, the DR number shall be placed in the space above the booking officer’s serial number. When there is more than one suspect and a DR number is used, both the DR number and the last name of the suspect shall be used;
*

Complete the Analyzed Evidence To Be Refrigerated Envelope, Form 12.51.01, and check the appropriate box, “Alcohol Analysis” or “Drug Analysis;”
*

Place the container in the Analyzed Evidence Envelope;
*

Seal the flap of the envelope with a completed Sealed Evidence Label; and,
*

Affix the Biohazard Label to the upper left corner of the front of the Analyzed Evidence Envelope.

Alcohol and/or opiate urine samples shall be booked in the SID courier refrigerated temporary storage locker most convenient for the booking employee. The SID courier shall be responsible for transporting items to be analyzed to SID.

Supervisor Approving. The supervisor approving the booking of the sample shall inspect the sample vial or container label to ensure that the required identifying information is included.

343.57 REFUSAL TO SUBMIT TO OR COMPLETE CHEMICAL TEST – NOTIFICATION TO DMV. When a person who has been arrested for operating a motor vehicle while under the influence of intoxicating liquor and/or drugs refuses to submit to or complete a chemical test, the arresting officer shall mark the left margin of the related Driving‑Under‑The‑Influence Arrest Report, “Copy to Bureau Traffic Division Auditor.”

343.60 DRIVING ‑ UNDER ‑ THE ‑ INFLUENCE ARREST-OFFICER REPORTING. When an arrest is made for any offense committed while driving a vehicle under the influence of alcohol and/or drugs, one officer shall normally complete the report and be prepared to testify regarding all phases of the arrest. That officer’s name shall be placed in the upper portion of the “Reporting Officer’s” box on page 1 of the Arrest Report and in the appropriate boxes of Form 05.02.05.

343.65 MISDEMEANOR TRAFFIC COLLISION RELATED DRIVING ‑ UNDER ‑ THE ‑ INFLUENCE BOOKINGS. When an arrestee involved in a traffic collision is booked for driving under the influence (23152(a) VC) the officer responsible for completing the arrest and traffic collision reports shall cause the arrest report and a copy of the traffic collision report to be submitted together at the location of booking for processing and distribution.

Exception: When the arrestee is booked into the Los Angeles County‑USC Medical Center jail ward or Los Angeles County Jail, the reports shall be submitted to the approving supervisor at the Communications Division Telephonic Report Counter, Parker Center.

Note: Records unit personnel shall ensure that one copy of the Traffic Collision Report is forwarded, with the copies of the DUI arrest report, to the appropriate custodial detention officer. The original reports and subsequent copies shall be processed and distributed according to current procedures.

343.70 DRIVING – UNDER – THE – INFLUENCE BOOKINGS. A teletype request shall be sent to DMV concerning each arrestee booked for 23152(a) VC. This request shall be teletyped by divisional record clerks immediately upon receipt of the Booking and Identification Record, Form 05.01.00, from the location of the arrestee’s detention. Requests may be sent using either the driver’s license number or the full name of the arrestee.

When using the driver’s license number, the teletype shall be sent in the following form:

ID.
*

(Information code, driver’s license number.)

When no driver’s license number is available, the teletype shall contain: (Manual Section 4/155.15)

STATUS AND RECORD.
*

Arrestee’s full name.
*

Arrestee’s address.
*

Arrestee’s birthdate (if unknown, give age).

Teletype requests shall originate from the division at which the arrest reports are completed for distribution. The employee shall use the appropriate teletype code to ensure that the docket number and the court of prior conviction, if applicable, appear on the reply from DMV. The employee making the inquiry shall attach the return teletype information to the court copy of the arrest report and forward them to the detention officer having custody of the arrestee.
344. TRAFFIC CASES INVOLVING PHYSICIANS.

344.50 ARREST OF PHYSICIAN ENROUTE TO TREAT EMERGENCY CASE. When a physician is taken into custody while enroute to treat an emergency case, the arresting officer shall immediately cause the patient to be notified. If this is not possible, the person who summoned the physician shall be notified.

A physician traveling in response to an emergency shall be exempt from the provisions of Vehicle Code Section 22351 (Speed Law Violations) and 22352 (Prima Facie Speed Limits), if the vehicle so used by the physician displays an insignia approved by the Department of Motor Vehicles indicating that the vehicle is owned by a licensed physician (21058 VC).

Note: The caduceus, symbol of the American Medical Association, is the approved insignia.
346. TRAFFIC CASES INVOLVING JUVENILES.

346.10 CITING PROCEDURE – TRAFFIC NOTICE TO APPEAR (CITATION). When a juvenile is issued a Traffic Notice to Appear, Form 04.50.00 for a moving or non‑moving violation, the juvenile shall be advised that a parent or guardian’s presence is required when at Juvenile Traffic Court in answer to the citation.

346.20 REFUSAL TO SIGN CITATION – JUVENILES. When a juvenile refuses to sign a citation, the juvenile shall be processed according to Manual Section 4/334.40.

346.40 MISDEMEANOR TRAFFIC VIOLATION – JUVENILE ARRESTED. When a juvenile is booked for a misdemeanor Vehicle or Municipal Code (traffic-related) violation, the arresting officer shall:

Complete a Traffic Notice to Appear in the normal manner and have the juvenile sign the citation.
*

Cite the juvenile to the morning or afternoon session (Manual Section 4/320.45) of the Juvenile Traffic Court on the appropriate citing date.
*

Give the juvenile the defendant’s copy.

Note: If the juvenile is to be released to a parent or guardian, the defendant’s copy of the citation should be given to the parent or guardian at the time of release.

Complete an Arrest Report, Form 05.02.00, and include the citation number and the notation that the court copy of the citation is attached to the investigating officer’s copy of the arrest report.
*

Attach the court copy of the citation to the arrest report.
*

When the juvenile is to be released to a parent or guardian, provide the adult with a copy of the Juvenile, Notice to Appear, Form 09.03.00.

Exception: Juveniles arrested for violation of Section 23152 VC shall be processed in the same manner as a non‑traffic misdemeanor arrest. A Traffic Notice to Appear shall not be issued for driving under the influence.

The investigating officer shall:

When the juvenile is not detained, forward one copy of the arrest report and the court copy of the citation to Traffic Court Liaison, Traffic Coordination Section.
*

When continued detention is deemed necessary, process the detained petition request, court copy of the citation, and related reports in the same manner as a detained petition request for any other charge.

346.45 JUVENILE OFFENSES INVOLVING ALCOHOL. Officers citing a juvenile for a violation of 23140(a) VC shall:

Document probable cause for administering the Intoximeter EC/IR Test in the narrative section of a Traffic Notice to Appear or on a Continuation of Notice to Appear, if necessary;
*

Write the corresponding citation number in the box entitled “DR NO.” in the upper right corner of the completed Intoximeter EC/IR Operator Check List, Form 05.20.07;
*

Attach the completed Form 05.20.07 to the Traffic Notice to Appear “court copy” (green), and forward it to the appropriate Juvenile Traffic Court; and,
*

Release the juvenile to a parent or guardian.

Note: Section 23140(a) VC does not require a Field Sobriety Test (FST); however, should an officer administer an FST, the results of the FST shall be documented on a Driving-Under-the-Influence Arrest Report (Continuation), Form 05.02.05. The completed Form 05.02.05 shall include the corresponding citation number in the upper right corner in the box entitled “DR” and be attached to the Traffic Notice to Appear “court copy” (green) and forwarded to the appropriate Juvenile Traffic Court. Enforcement of Section 23140(a) VC does not preclude the enforcement of 23152(a) VC, Driving-Under-the-Influence of Alcohol or Drugs.

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The government lies about Breathalyzers

April 11th, 2010

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Crowe & Dunlevy, PC v. Stidham, 609 F. Supp. 2d 1211 – Dist. Court, ND Oklahoma

April 1st, 2010

With regard to the textual discussion of judicial immunity, the sentence immediately preceding footnote 6 indicates that plaintiffs are generally able to sue judicial officers for declaratory relief. Id. at 766 (noting “[t]he only type of relief available to a plaintiff who sues a judge is declaratory relief“). This sentence continues to state that “not every plaintiff is entitled to this remedy,” and footnote 6, which is placed at the end of this sentence, provides additional explanation regarding the identity of those plaintiffs who are not “entitled to this remedy.” The Tenth Circuit is therefore indicating that there are a subset of plaintiffs who are not entitled to the relief afforded in Pulliam, and that subset is discussed in more detail within footnote 6. Nowhere does the Tenth Circuit state that all plaintiffs are prohibited from seeking the relief permitted in Pulliam. Further, the discussion included in footnote 6 clearly indicates that this subset of plaintiffs is comprised of those suing under § 1983. Id. n. 6 (discussing FCIA’s amendment to § 1983). The footnote’s case citations follow suit, as all concern instances where the plaintiff’s claim was tied to § 1983. Id. (citing Roth v. King, 449 F.3d 1272, 1286 (D.C.Cir.2006) (holding judges of Superior Court of District of Columbia were immune from § 1983 suit for injunctive relief) (noting “42 U.S.C. § 1983, as amended in 1996 by the [FCIA], explicitly immunizes judicial officers against suits for injunctive relief“) and Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir.2000) (finding district court properly dismissed plaintiffs’ Bivens action against defendant judges pursuant to FCIA amendment to § 1983) (noting that § 1983 law is incorporated into Bivens actions)).

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Declaratory relief against Judges

April 1st, 2010

The Defendants also argued that the district court erred when it denied them qualified immunity. As the Defendants have conceded, qualified immunity is only an immunity from a suit for damages, and does not provide immunity from suit for declaratory or injunctive relief. See L.A. Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir.1993). The Defendants argue that they are entitled to qualified immunity to the extent that the Plaintiffs seek monetary damages.

In analyzing the Defendants’ qualified immunity defense, we must determine: (1) what right has been violated; (2) whether that right was so “clearly established” at the time of the incident that a reasonable official would have been aware that the conduct violated constitutional bounds; and (3) whether a reasonable public official could have believed that the alleged conduct 989 was lawful. See Newell v. Sauser, 79 F.3d 115, 117 (9th Cir.1996).

To withstand the Defendants’ claims of qualified immunity, the Plaintiffs must allege a violation of a right that was clearly established in 1998 — the time the alleged constitutional violations first occurred. See Anderson, 483 U.S. at 639-40, 107 S.Ct. 3034; Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir.2002). To defeat qualified immunity, “the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.” Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999).

But, the Plaintiffs need not establish that the Defendants’ “behavior had been previously declared unconstitutional.” Blueford v. Prunty, 108 F.3d 251, 254 (9th Cir.1997). Rather, if binding authority indicates that “the disputed right existed, even if no case had specifically so declared,” the Defendants would be on notice of the right. Id. at 255. If the occasion has not risen for our circuit to reach a question, we may draw clearly established law from other circuits. See Prison Legal News v. Lehman, 397 F.3d 692, 701 (9th Cir.2005); Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir.2000) (finding a violation of clearly established law where there is “such a clear trend in the case law” that recognition of the right is “only a matter of time”).

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