Contact a local lawyer now for a FREE consultation!  

(800)384-5297

On the heels of a month marked by extensive media coverage of the Orange County trial of Andrew Gallo–the San Gabriel man, who, despite having his license suspended for a prior DUI conviction, took the wheel after a night of binge drinking and killed Angeles’ rookie pitcher, Nick Adenhart, and two friends in an early morning collision–news has broken of a new law that will impact DUI repeat offenders. Starting January 1, 2012, judges will have the option of revoking an individual’s license for up to 10 years if that person has three or more convictions for driving under the influence within the past decade. The law is just one of many efforts by state legislators and officials to combat drunk driving in California.

Annually 1.5 million people are arrested for driving under the influence in this state, according to the National Highway Traffic Safety Administration (NHTSA). DUI repeat offenders account for one-third of those arrested. A recent study of the percentage of drivers with alcohol-related convictions in the nation’s 20 largest cities by insurance.com found that the greatest number of violators resided in San Diego, followed by San Jose in second place, Los Angeles in seventh, and San Francisco in eighth. The high incidence of convicted drivers in these cities was attributed to three factors: a higher rate of alcohol consumption among the population, “more partiers,” in general; a lack of public transportation; and effective enforcement of drinking-and-driving laws.

Over the last 30 years, numerous laws have been passed to prevent drinking and driving in the United States:

In 1984, the Federal Uniform Drinking Age Act was signed into law. Under the law, states that fail to prohibit the purchase or public consumption of alcohol by an individual under the age of 21 will have 10% of Federal highway funding withheld from them. In effect, this law raised the national minimum drinking age to 21.

In 1990, the U.S. Supreme Court ruled that sobriety checkpoints were legal under the constitution.

In 1995, the Federal Zero Tolerance Law was passed, making it illegal for individuals under 21 years old to drive with any measurable amount of blood alcohol content (BAC) in their blood. Highway safety funds would be withheld from any state failing to comply with the law by October 1, 1998.

In 2000, .08 BAC became the national illegal limit for impaired driving. Under the law, a percentage of federal highway construction funds would be withheld from any state failing to comply.

To date, 14 states have enacted laws mandating DUI first-time and repeat offenders to install ignition interlock devices in their vehicles: Alabama, Alaska, Arizona, Arkansas, Colorado, Illinois, Louisiana, Nebraska, New Jersey, New Mexico, New York, Oregon, Utah, and Washington. California, however, has only implemented a pilot program in four counties: Alameda, Los Angeles, Sacramento, and Tulare. Drivers with the device are forced to breathe into a tube connected to a machine that measures alcohol levels; if alcohol is detected, the machine will prevent the ignition from starting. The device not only prevents those with DUI convictions from drinking and driving, it also serves as a deterrent to all drivers, as it considerably increases the cost of receiving a DUI. Legislators will consider expanding the program statewide after a 5-year evaluation.

In California-and nationwide-efforts to combat drunk driving have had an impact on the number of fatal alcohol-related accidents. Throughout the country, such accidents decreased by almost 10 percent from 13,041 in 2007 to 11, 773 in 2008. In California, there were 108 fewer fatal accidents in 2008 than in 2007, from 1,347 to 1,239. Hopefully, the fatality rate will continue to decline with the state’s increasingly aggressive DUI enforcement and harsher penalties.

Originally published here.

THE PEOPLE, Plaintiff and Respondent, v. ROBERT FREDERICK SLACK, Defendant and Appellant
Court of Appeal of California, Fourth Appellate District, Division One
May 22, 1989

The Defendant was convicted of driving while intoxicated. In camera, defendant alleged he was dining with an acquaintance in Tijuana and had a misunderstanding with the restaurant manager over the dinner check and that, although he had been drinking, it was necessary that he drive to escape a potential assault. Mexican police pursued defendant all the way to the United States border entry point, where he was detained by United States Customs Service officials for drunken driving. Defendant alleged he eluded the police because he had once been assaulted by a Tijuana policeman. The municipal court found defendant’s offer of proof legally insufficient to sustain an instruction on the defense of necessity.  On being convicted of driving under the influence of intoxicating beverages ( Veh. Code, § 23152, subds. (a) and (b)) and admitted a previous conviction for the same charge, he successfully appealed to the Appellate Department of the San Diego Superior Court. That appellate body found the municipal court erred in determining Slack’s offer of proof was insufficient to justify instructing the jurors on the defense of necessity. The appellate department certified the matter to this court to resolve what it perceived to be as a conflict between two published decisions of this division, People v. Lemus (1988) 203 Cal.App.3d 470 [249 Cal.Rptr. 897] and People v. Patrick (1981) 126 Cal.App.3d 952 [179 Cal.Rptr. 276].

Issues:

Whether there is any conflict between the decisions People v. Lemus (1988) 203 Cal.App.3d 470 [249 Cal.Rptr. 897] and People v. Patrick (1981) 126 Cal.App.3d 952 [179 Cal.Rptr. 276]?

Whether the trial court erred in refusing to instruct on the necessity defense?

Discussion:

This court held that Comparing Patrick and Lemus leaves an unalterable conclusion that there is no conflict between them on any issue relevant to this appeal. That Slack elected to satisfy his foundational burden through an offer of proof, rather than on the witness stand in his case in chief, is irrelevant. Presumably, this election prevented the jurors from hearing him admit he was intoxicated while driving, an admission extricably intertwined with the factual predicate he needed to lay to present a necessity defense. He undoubtedly surmised, correctly it turns out, after he finished testifying and exposing his guilt to the jurors the trial court would not give the necessity instruction. However, had he testified, the standard of review on appeal as to the correctness of the trial court’s decision would have been exactly the same, that is whether there is evidence deserving of consideration from which reasonable jurors could conclude the Pena elements have been satisfied. The court held that although it recognized that accuracy of perception depends on the eyes of the beholder there was no legal inconsistencies or conflicts between Lemus and Patrick.

This court held that the trial court did not err in refusing to instruct on the necessity defense.Slack was detained by officials of the United States Customs for drunk driving upon reaching the border. His entry while driving intoxicated placed the persons at this normally congested checkpoint and the adjacent property in danger. Even assuming Slack would have testified that he intended to drive only to the safety of the border and no further, an assertion significantly missing from his offer of proof, the defendant has not shown a good faith belief that it was necessary for him to continue driving while intoxicated once he realized he was no longer being pursued by the participants in the restaurant exchange, but was being requested by the Tijuana police to pull over. Whatever the contacts consisted of, with the exception of the occasion of the alleged assault, he does not characterize them as benign or otherwise. Thus, as expressed in the settled statement, this testimony has no evidentiary weight. Further, that he was assaulted by a Tijuana policeman on one occasion, the circumstances and gravity of which are not presented, gives no support for a jury finding that in this case, under these circumstances where Slack was admittedly driving drunkenly through the streets of Tijuana, he could have had a good faith belief it was necessary to do so because the threat of physical assault from law enforcement officials significantly outweighed the threat of public mayhem and property destruction to which he exposed those in his wake. This court is satisfied, as the trial court must have been, that as a matter of law even if the jurors accepted Slack’s entire offer of proof as true, it would not establish the elements of a necessity defense because the risk of vehicular destruction is so great that even the risk of physical assault to the intoxicated driver pales in comparison. Also, Slack does not show why he had no adequate reasonable alternative to driving drunk, nor that his own acts did not contribute to the “emergency” he perceived. His offer of proof contains no allegation he lacked sufficient cash to pay the bill or even that he asked the restaurant manager to verify his authorization to use the credit card. Nor does he suggest his professional dinner companion was not sufficiently affluent to “pick up the tab” or to temporarily loan Slack the money to pay the bill. Most significantly, except for his voluntary inebriation, the risk of harm from Slack’s conduct would have been minimized. This court held that as in Patrick, Slack’s evidentiary predicate is insufficient as a matter of law to establish the elements of a necessity defense even if accepted as true by the trier of fact.

Conclusion:

This court affirmed the municipal court’s order, and finding that defendant’s offer of proof was insufficient for justifying a jury instruction on the defense of necessity

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

Originally published here.