People v. Schrieber
| Decision Date | 11 March 1975 |
| Docket Number | Cr. 7831 |
| Citation | 45 Cal.App.3d 917,119 Cal.Rptr. 812 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Marvin Lee SCHRIEBER, Defendant and Appellant. |
Evelle J. Younger, Atty. Gen. by Peter J. McBrien, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.
Richard J. Asbill, Redding, for defendant and appellant.
*
Defendant herein was convicted by a jury in the Redding Justice Court of driving while under the influence of intoxicating liquor (Veh.Code, § 23102, sub. (a)). He appealed to the superior court which reversed the conviction. In its memorandum opinion, the court expressed the opinion that section 23126 of the Vehicle Code is unconstitutional and the instruction given the jury thereon was prejudicial. The case was thereafter certified to this court.
The facts of the case are classically typical of the customary drunk driving arrest, the alleged erratic driving first calling the attention of the arresting officers to the defendant, the failure to pass roadside sobriety tests, an alcoholic breath, slurred speech, etc. The arrest occurred at approximately 2:05 a.m. Defendant consented to a blood test which was administered by a licensed technician at 2:45 a.m. Laboratory analysis showed a blood alcohol content of .15 at that time.
A forensic chemist testified as to the general effects of alcohol upon one's driving abilities. He was unable to state what the blood alcohol level of defendant was at the time of the arrest without knowing the drinking habits of the defendant. He did testify that it would require approximately eight one-ounce drinks of 100 proof alcohol to raise defendant's blood level to that found at 2:45 a.m. in a period from 45 to 70 minutes and that the body would 'burn off' alcohol at the approximate rate of .02 percent per hour.
Defendant asserts two basic contentions to support his thesis that section 23126 of the Vehicle Code is unconstitutional, namely, that there is no rational connection between blood alcohol level in a defendant at the time of his offense and that at the time of the taking of the sample inasmuch as no time limit is specified as to the time interval between the two events, and, secondly, that section 23126 deprives a defendant of the presumption of innocence in that it establishes by law a rebuttable presumption that a prescribed blood alcohol level of .10 percent determines that a defendant is presumptively under the influence of alcohol. Furthermore, it requires a defendant to testify against himself to dispel the presumption.
It is axiomatic that the test to be applied in any situation wherein a presumption may be relied upon in a criminal case is whether there is a rational connection between the fact proved and the fact presumed. For example, in the case of Turner v. United States (1970) 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610, the court upheld the presumption that heroin found on the defendant was illegally imported into the United States since virtually no heroin is produced in the United States, but the presumption that the cocaine found upon the defendant was illegally imported was not a supportable presumption since cocaine is produced in the United States.
We readily find a rational connection between the fact proved and the fact presumed. Probably, no fact is more firmly established medically than that the ingestion of alcohol in any substantial quantity impairs one's ability to drive a vehicle. The dismal statistic that alcohol is involved in an inordinate percentage of the accidents resulting in death, dispels any claim that there is no rational connection between the consumption of alcohol by a driver and his driving record. (See, Annual Report of Fatal and Injury Motor Vehicle Traffic Accident (1973) Dep. Cal. Highway Patrol.)
Defendant focuses his attention on the claimed unconstitutionality of section 23126 of the Vehicle Code upon the failure of the Legislature to specify a mandatory time interval between the offense and the taking of a blood sample in this case. Defendant contends that the Legislature, in enacting the Vehicle Code provision herein disputed, recognized that some interval of time would elapse between the offense and the arrest therefor and the extraction of the blood sample, but defendant insists that such a time interval should be specified and in any event a lapse of 40 minutes is unreasonable. We do not agree. Section 23126 of the Vehicle Code is an integral part of the legislative process to bar the use of public highways to persons operating vehicles while under the influence of alcohol, and section 23126 of the Vehicle Code must be read in conjunction with sections 13353 and 13354 of said code. Subdivision (a) of Vehicle Code 13353 provides:
In other words, as prescribed by the statute, the test must be incidental to both the offense and to the arrest and the only reasonable interpretation which can be given such language is that no substantial time elapse occurs between the offense and the arrest.
In testing the constitutionality of a statute, a cardinal principle is that the legislative act is presumed to be constitutional and unconstitutionality must be clearly shown and doubts resolved in favor of its validity. (See, 5 Witkin, Summary of Cal.Law (8th ed.) § 43, p. 3281; see also, 16 Am.Jur.2d, § 137.)
This concept is clearly expressed in the context of the present law in the case of Zidell v. Bright (1968) 264 Cal.App.2d 867, 869--870, 71 Cal.Rptr. 111, 112:
To accept defendant's thesis that in the ordinary course of events defendant may not be inebriated at the time of driving, but inebriated at the time of the taking of the test, we would necessarily be required to presume that an automobile driver would hurriedly gulp down, as in this instance he would have to have done, eight drinks, jump in his car and hope to reach his destination before he became intoxicated. This variety of Russian roulette leaves a very small margin for error, inasmuch as medical studies demonstrate that the majority of ingested alcohol is absorbed by the body within 15 to 20 minutes and that the brain, requiring as it does a large blood...
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