People v. Lujan

• Decision Date: 18 February 1983
• Docket Number: Nos. 1064,1065 and 1059,s. 1064
• Citation: 192 Cal.Rptr. 109,141 Cal. App. 3
• Court: California Superior Court
• Parties: 141 Cal.App.3d Supp. 15 The PEOPLE, Plaintiff and Respondent, v. Laurence Joseph LUJAN, Defendant and Appellant, The PEOPLE, Plaintiff and Respondent, v. Raymond Frank BLASCHKE, Defendant and Appellant, The PEOPLE, Plaintiff and Respondent, v. Joe Louis TUCKER, Defendant and Appellant. Crim. A. Appellate Department, Superior Court, San Bernardino County, California

Page 109

192 Cal.Rptr. 109

141 Cal.App.3d Supp. 15

The PEOPLE, Plaintiff and Respondent, v.Laurence Joseph LUJAN, Defendant and Appellant,The PEOPLE, Plaintiff and Respondent, v.Raymond Frank BLASCHKE, Defendant and Appellant,The PEOPLE, Plaintiff and Respondent, v.Joe Louis TUCKER, Defendant and Appellant.

Crim. A. Nos. 1064, 1065 and 1059.

Appellate Department, Superior Court, San Bernardino County, California.

Feb. 18, 1983.

Charles E. Ward, Public Defender, and Kathleen Bryan-Hackleman, Deputy Public Defender, for defendants and appellants.

Dennis Kottmeier, Dist. Atty., Sally Penso and Tracy Bartell, Deputy Dist. Attys., for plaintiff and respondent.

ZIEBARTH, Judge.

All of these appeals raise essentially the same issues and we have, therefore, consolidated them for purposes of this decision.

IFACTS

The facts in each of these consolidated appeals indicate that each of the appellants has suffered convictions of violations of the relatively new California drunk driving statute, Vehicle Code section 23152, subdivision (b)(hereafter 23152).This statute, which became effective on January 1, 1982, reads as follows:

"(b) It is unlawful for any person who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle upon a highway or upon other than a highway in areas which are open to the general public.

"For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood."

The appellant, Laurence Joseph Lujan, was observed by a California Highway Patrol (CHP) officer on January 16, 1982, to run a red light (causing another vehicle to brake), to speed and to weave erratically.After he was stopped by the officer, Lujan was observed to be exhibiting physical symptoms of intoxication.He refused to submit to any field sobriety tests.However, he did agree to submit to a chemical test of his breath.The results of that test were .24 and .25 blood alcohol level (BA), respectively.Lujan was thereafter charged with violating Vehicle Code section 23152(b).Both sides waived trial by jury in this case.As the result of his court trial, Lujan was found guilty of the offense charged.Because Lujan had suffered a prior conviction of a violation of the previous statute, Vehicle Code section 23102, subdivision (a)(hereafter 23102(a)), on August 19, 1977, his sentence was enhanced when judgment was pronounced on him on May 14, 1982.

The appellant, Raymond Frank Blaschke, was involved in a traffic collision on the streets of Victoria Avenue and Pacific Street, in the City of San Bernardino on January 17, 1982.A CHP officer observed him to be exhibiting physical symptoms of intoxication.Blaschke attempted to perform some field sobriety tests, which the officer concluded he had failed.He submitted to a chemical test of his blood.The result of that test was .26 BA.Blaschke was charged with violations of Vehicle Code sections 23152and23152(b).Blaschke demurred to the complaint and he also filed a motion to strike prior convictions of violations of former Vehicle Code section 23102(a) on September 1 and November 25, 1981.The demurrer was overruled and the motion to strike was denied.Both sides waived trial by jury, and the case was then submitted to the trial court, sitting without a jury, on the police reports and the crime lab analysis.The trial court found Blaschke guilty as charged and on May 7, 1982, sentenced him to 120 days in the county jail in view of his prior convictions.

The appellant, Joe Louis Tucker, was stopped by a CHP officer on February 10, 1982.After he was asked to perform some field sobriety tests, he was arrested for a violation of the above quoted statute.The results of his breath tests on the gas chromatograph intoximeter were .16, .13, and .14 (BA) respectively.Both sides having waived trial by jury, he was found guilty by the trial court on June 17, 1982.Judgment was subsequently pronounced and he has appealed that judgment.

IICONTENTIONS OF THE PARTIES

A.Contentions of the Appellants

1.Vehicle Code section 23152(b) is unconstitutionally vague.

2.Vehicle Code section 23152(b) is also unconstitutional because it is a criminal statute which in effect imposes strict liability on a defendant.

3.Enhancement of penalties for violation of Vehicle Code section 23152 based on prior convictions under Vehicle Code section 23102(a) is not authorized by the statute or by a reasonable construction thereof and, therefore, it fails to provide adequate notice to the defendant that he may be violating the law.

4.The prior convictions under Vehicle Code section 23102(a) were invalid because inadequate waivers of rights were obtained from the appellants in question.

B.Contentions of the Respondents.

1.Section 23152(b) fulfills constitutional due process requirements, and provides adequate notice to persons engaging in the proscribed activity.

2.Section 23152(b) is not an invalid strict liability statute because it fulfills the required union of act and intent.

3.Vehicle Code section 23170's mandatory sentencing requirements are applicable to a defendant convicted under section 23152(b) who has a prior conviction under former section 23102(a).

4.There was an adequate finding that each of the appellants in question knowingly and intelligently waived his constitutional rights in his prior case/cases.

IIIISSUES

A.Are the provisions of Vehicle Code section 23152(b) so vague that they fail to give those persons subject to its provisions adequate notice thereby violating the due process requirements of both the United States and California Constitutions?

B.Is Vehicle section 23152(b) unconstitutional because it is a criminal statute which has the effect of imposing strict liability on a defendant?

C.Can prior convictions under former Vehicle Code section 23102, (a) or (b) be properly used to enhance the penalty for a violation of Vehicle Code section 23152(b)?

D.Did each of the appellants who had suffered a prior conviction validly waive his constitutional right before entering a plea of guilty to the prior charge?

IVDISCUSSION

A.

The appellants contend first of all that Vehicle Code section 23152(b) is unconstitutionally vague because it fails to give an accused adequate notice of the conduct proscribed.

The appellants point out that the due process clause of the United States Constitution requires that a statute sufficiently define a crime so as to give adequate notice of the conduct which is proscribed.In the case of Connally v. General Const. Co.(1926)269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328, the United States Supreme Court stated that:

"... [A]statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."

The applicants argue that section 23152(b) fails to meet both requirements of the due process standard established in Connally.They argue that the new statute is so technical that persons without some background in science or chemistry would have no real understanding of its meaning.Furthermore, the statute defines the crime in terms of an internal physical state which can only be measured by sophisticated scientific procedures.Therefore, it is argued that a potential defendant has no way of determining when he may be violating the law.

The appellants have cited as authority for these contentions the case of People v. Clenney(1958)165 Cal.App.2d 241, 331 P.2d 696.In the Clenney case, the reviewing court stated (at p. 251, 331 P.2d 696) as follows:

"... The citizens cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions.A criminal statute cannot rest upon an uncertain foundation.The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is unlawful for him to pursue."

The respondent counters this claim of unconstitutionality of the statute in question on the ground of vagueness by pointing out that this same argument was made against the predecessor statutes to section 23152(b) and the argument was held to be without any merit.Therefore, the respondent argues that this statute should also be determined to meet all constitutional requirements as to certainty and definiteness of purpose.

Although section 23152 has been in force since January 1, 1982, we have not found any reported California appellate decision in which the question of the constitutionality of this new statute was considered.Therefore, a review of the holdings of previous appellate decisions regarding the predecessor statutes might be helpful to us in deciding these appeals.This would be true if it first determined that the new statute does not represent a major change in the law that was established by the predecessor statutes.We will, therefore, proceed to review the prior state of the law in this area.

Former Vehicle Code section 23102(a) provided that it was unlawful for any person who was under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, to drive a vehicle upon any highway.To assist the trier of fact to make the determination of whether a particular defendant was under the influence of intoxicating liquor, etc., former Vehicle Code section 23126, subdivision (a)(3) established a rebuttable presumption affecting the burden of proof to the effect that where the amount of alcohol at the time of the test of the driver's blood, breath, or urine by chemical analysis established that it was 0.10 percent or more, it was presumed that the person was under the influence of intoxicating liquor at the time of the alleged driving of a vehicle while...