Burg v. Municipal Court

• Citation: 198 Cal.Rptr. 145,35 Cal.3d 257,673 P.2d 732
• Decision Date: 22 December 1983
• Docket Number: S.F. 24622
• Court: United States State Supreme Court (California)
• Parties: , 673 P.2d 732 Richard Joseph BURG, Plaintiff and Appellant, v. The MUNICIPAL COURT For the SANTA CLARA JUDICIAL DISTRICT OF SANTA CLARA COUNTY, Defendant and Respondent; The PEOPLE, Real Party in Interest and Respondent.

Page 145

198 Cal.Rptr. 145

35 Cal.3d 257, 673 P.2d 732

Richard Joseph BURG, Plaintiff and Appellant, v. The MUNICIPAL COURT For the SANTA CLARA JUDICIAL DISTRICT OF SANTA CLARA COUNTY, Defendant and Respondent;

The PEOPLE, Real Party in Interest and Respondent.

S.F. 24622.

Supreme Court of California,

In Bank.

Dec. 22, 1983.

Rehearing Denied Jan. 20, 1984.

Perry E. Olsen, Watsonville, and Thomas P. House, San Jose, for plaintiff and appellant.

W. Scott Quinlan, Quinlan, Kershaw, Fanucchi & Hoffman, Fresno, Owen P. Rafferty, Philip A. Rafferty, Los Angeles, Linda Lee DeMetrick and Campbell & DeMetrick, San Francisco, as amici curiae on behalf of plaintiff and appellant.

No appearance for defendant and respondent.

John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Robert R. Granucci and Herbert F. Wilkinson, Deputy Attys. Gen., for real party in interest and respondent.

MOSK, Justice.

Richard Joseph Burg, hereafter defendant, appeals from a judgment denying his petition for a writ of prohibition. He contends that Vehicle Code section 23152, subdivision (b), ¹ fails to give constitutionally adequate notice of the conduct it prohibits, and that the municipal court erred in overruling his demurrer to that effect. We conclude that section 23152, subdivision (b), is constitutional, and therefore affirm the judgment.

Defendant was arrested at 2:25 in the morning of March 27, 1982, for violation of section 23152, subdivision (a) (driving while under the influence of alcohol). A chemical test administered 50 minutes later revealed a blood alcohol content of 0.23 percent. He was charged with violating section 23152, subdivision (b), i.e., driving a vehicle while having 0.10 percent or more, by weight, of alcohol in one's body. The complaint also alleged a prior conviction of former section 23102, subdivision (a) (driving while under the influence of alcohol).

Defendant demurred on the ground that section 23152, subdivision (b), gives constitutionally inadequate notice of the conduct proscribed. The municipal court overruled his demurrer, and defendant sought a writ of prohibition in the superior court. The petition was denied on the merits, and this appeal followed. ²

I. Background

A. The Problem

Eighty years ago an editorialist complained, "Inebriates and moderate drinkers are the most incapable of all persons to drive motor wagons. The general palsy and diminished power of control of both the reason and the senses are certain to invite disaster in every attempt to guide such wagons." (26 Q.J. Inebriety (1904) 308, 309.) In the ensuing decades motor vehicles have become faster, heavier, and ubiquitous, with proportionately tragic consequences to the victims of drinking drivers. Nearly half of the traffic deaths in California between 1976-1980 involved drinking drivers. (Cal. Highway Patrol, 1980 Ann.Rep., Fatal & Injury Motor Vehicle Traffic Accidents, p. 2, tables 1a, 1b, and p. 58, tables 6a, 6b.) Nearly one-quarter of all traffic accidents resulting in injury involved the use of alcohol. (Id. at p. 3, tables 1c, 1d, and p. 58, tables 6a, 6b.) Traffic deaths in the United States exceed 50,000 annually, and approximately one-half of those fatalities are alcohol-related. (U.S.Dept.Transp., 1977 Highway Safety Act Rep., Appen. A-9, table A-1; cf. Jones & Joscelyn, Alcohol and Highway Safety 1978: A Review of the State of Knowledge (U.S.Dept. of Transp.1978) pp. 11-26.)

The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation. The monstrous proportions of the problems have often been lamented in graphic terms by this court and the United States Supreme Court. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 898-899, 157 Cal.Rptr. 693, 598 P.2d 854) [quoting U.S.Dept.Health, Ed. & Welf., 3d Special Rep.U.S.Cong. on Alcohol and Health (1978) ]; South Dakota v. Neville (1983) --- U.S. ----, ----, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 [describing the "tragic frequency" of the "carnage caused by drunk drivers"]; Mackey v. Montrym (1979) 443 U.S. 1, 17-18, 99 S.Ct. 2612, 2620-2621, 61 L.Ed.2d 321. As observed in Breithaupt v. Abram (1957) 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448, "[t]he increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield." (Id. at p. 439, 77 S.Ct. 408, 1 L.Ed.2d 448.) Indeed, in the years 1976 to 1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War, and more were killed than in the bloodiest year of the Vietnam War. (Compare Cal. Highway Patrol, 1980 Ann.Rep., Fatal & Injury Motor Vehicle Traffic Accidents, p. 2, tables 1a, 1b, 1c, 1d, and p. 58, tables 6a, 6b, with Statistical Abstract of U.S. (103d ed. 1982) p. 361, tables 598, 599.) Given this setting, our observation that "[d]runken drivers are extremely dangerous people" (Taylor v. Superior Court, supra, 24 Cal.3d 890, 899, 157 Cal.Rptr. 693, 598 P.2d 854) seems almost to understate the horrific risk posed by those who drink and drive.

B. The Legislative Response

Recognizing the effect of alcohol on drivers, state legislatures early in the century attempted to regulate such conduct. Because "both popular and legal views of the problem centered on the grossly intoxicated driver" (Ross, Deterring the Drinking Driver (1982) p. 2), the laws also reflected that conception. Thus, California's first statute on the topic read simply, "No intoxicated person shall operate or drive a motor vehicle or other vehicle upon any public highway within this state." (Italics added.) (Stats.1913, ch. 326, § 17, p. 646.)

A more satisfactory means of defining the problem of drinking and driving emerged in the middle decades of this century, with the development of scientific measurement of blood-alcohol levels. (Ross, Deterring the Drinking Driver (1982) p. 2; Cameron, The Impact of Drinking-Driving Countermeasures: A Review and Evaluation 1979 Contemp. Drug Prob. 495, 497-498.) Research on alcohol's effect on both motor skills and judgment revealed that impairment occurred at alcohol concentrations as low as 0.05 percent (Hurst, Estimating the Effectiveness of Blood Alcohol Limits (1970) 1 Behav. Research Highway Safety 87), considerably below the point at which typical clinical symptoms of intoxication appear in most persons. (Ross, Deterring the Drinking Driver (1982) p. 2; Jones & Joscelyn, Alcohol and Highway Safety 1978, op. cit. supra, at pp. 35-50.) Thus in 1969, after a number of intervening amendments that attempted to refine definitions and specified penalties, California's "driving under the influence" statute (former § 23102) was fortified by the addition of former section 23126, which created a presumption of being under the influence if a driver had 0.10 percent or more by weight of alcohol in his blood. (Stats.1969, ch. 231, § 1, p. 565.) By 1972, 47 states had similar statutes. (Murray & Aitken, The Constitutionality of California's Under-the-Influence-of-Alcohol Presumption (1972) 45 So.Cal.L.Rev. 955, 958, fn. 8.)

Even these laws, which considerably assisted the prosecution of "driving under the influence" cases, proved inadequate in many respects. Under them, the ultimate question was defined in terms of the defendant's subjective behavior and condition: "Was the defendant under the influence at the time he drove?" Celerity and certainty of punishment were frustrated by the ambiguity of the legal criteria; no matter what his blood-alcohol level, a defendant could escape conviction merely by raising a doubt as to his intoxication. (People v. Lachman (1972) 23 Cal.App.3d 1094, 1097, 100 Cal.Rptr. 710; People v. Schrieber (1975) 45 Cal.App.3d 917, 923, 119 Cal.Rptr 812; Cameron, The Impact of Drinking-Driving Countermeasures: A Review and Evaluation 1979 Contemp. Drug Prob. 495, 510-511.)

In response to this continuing problem, in the past decade most states enacted additional legislation supplementing existing "driving under the influence" statutes and fashioned after what has been termed the "Scandinavian model." (Ross, Deterring the Drinking Driver (1982) pp. 21-70; Ross, The Scandinavian Myth: The Effectiveness of Drinking-and-Driving Legislation in Sweden and Norway (1975) 4 J. Legal Stud. 285; Snortum, Alcohol Impaired Driving in Norway and Sweden: Another Look at "The Scandinavian Myth" (forthcoming) (Issue 1, 1984) 6 Law & Pol'y Q. ----; Snortum, Controlling the Alcohol-Impaired Driver in Scandinavia and the U.S.: Simple Deterrence and Beyond (forthcoming) (Issue 2, 1984) 12 J.Crim.Just. ----; Votey, Scandinavian Drinking-Driving Control: Myth or Intuition? (1982) 11 J. Legal Stud. 93.) These statutes--which are most frequently subdivisions of a general "driving and alcohol" statute--define the substantive offense not by the subjective term "driving under the influence," but instead as the act of driving with a specified blood alcohol level. (Macdonald & Wagner, Rep., Nat. Study of Preliminary Breath Test (PTB) and Illegal per se Laws (U.S.Dept. of Transp.1981) (Executive Summary) p. xv.) Under these laws, proof of being "under the influence" is unnecessary. The statutes represent a legislative determination that public safety is endangered when a person drives a motor vehicle while having a specified percentage (typically 0.10) or more by weight of alcohol in his blood.

II. Section 23152, Subdivision (b)

As noted, former section 23102 made it illegal to drive while under the influence of alcohol. Conviction required a showing that alcohol had "so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties." (...