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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. John William O'NEIL, Defendant and Appellant.

Cr. 1636.

Decided: March 23, 1964

Edgar G. Langford and J. Perry Langford, San Diego, for defendant and appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for plaintiff and respondent.

Defendant-appellant was charged with and convicted by the trial court, sitting without a jury, of the crime of driving a vehicle while addicted to the use of a narcotic, a violation of Vehicle Code, section 23105.

The evidence produced in the superior court, under stipulation of the parties, was the evidence shown by the preliminary examination. Defendant was found guilty. He failed to appear on two occasions and a bench warrant was issued for his apprehension. On June 11, 1963, the trial court issued an order adjourning the proceedings for the filing of a petition, under Penal Code, section 6451, to ascertain if defendant was addicted to a narcotic or was in imminent danger of becoming addicted to it. On June 18, 1963, defendant was remanded to the trial court for further proceedings and on June 20 he was committed to state prison. Defendant appealed from the judgment of conviction and contends that the evidence was insufficient to establish (1) that he knew that he was ‘addicted’ within the meaning of Vehicle Code, section 23105; (2) that the definition of addiction, as declared in People v. Kimbley, 189 Cal.App.2d 300, 303, 11 Cal.Rptr. 519, is inapplicable to legal users of narcotics or amphetamine; and (3) that Vehicle Code, section 23105, as construed, denies him due process of law and equal protection of the laws and imposes cruel and unusual punishment.

The evidence produced as to addiction based on the preliminary examination hearing was that on October 16, 1962, at about 10:30 a. m., an officer saw defendant driving a Dodge pick-up truck on one of the streets of San Diego. Defendant was followed to an alley near his home. He stopped and the officer said, ‘Hello, John, where have you been?’ Defendant replied that he had just come from a doctor's office and a pharmacy to obtain a prescription; that he had secured dolophine by the prescription and he produced a large vial containing dolophine in pill form. He was asked if he had been using it and he said that he had up until about three weeks prior and that during those three weeks he had been using morphine. Defendant was asked if the officers could examine his arms and he consented. An officer found a number of what appeared to be hypodermic puncture marks. Defendant was then examined by a police physician at about noon that day. The physician found three needle marks in a scarred vein on the left elbow fold and five such marks on the lower left forearm, three in the right elbow fold and seven marks in an early scarred vein on top of the right wrist, all appearing to be varying in age from a few hours to three or four days old. The scarring of the veins indicated that the veins had been used longer than the age of the presence of the needle marks depicted. Defendant told the examining physician that he had been using morphine intravenously for a year and a half and that lately he had been using dolophine tablets, taking from four to six a day. The doctor concluded from his examination that defendant was addicted to the use of narcotics. Another physician examined defendant at about 1:30 in the afternoon of that day, conducting the standard narcotic examination, and he was of the opinion that defendant was addicted to the use of narcotics, that he was in early withdrawal, and that ‘injection route probability is morphine or dolophine.’ He found that the injection marks were recent and old, including new injections.

In defense, it was stipulated that defendant received narcotics legally and that defendant held a driver's license. It was maintained by defendant that he did not know that it was a crime to drive a car while taking narcotics under doctor's orders. It is not shown how often defendant took these tablets or whether he, on his own, may have exceeded the prescription dosage. He said that he had been using narcotics for about three years, had obtained a driver's license in August 1962 and did not inform them on the blank furnished that he was using narcotics. He said that he was not aware of his duty to do so. Knowledge of addiction may well be inferred from the fact of continuous use of morphine and its derivatives. The defendant did have knowledge of the narcotic character of the drugs involved. He did not explain the needle marks on his arm, either old or new.

The Kimbley case, supra, held that the term ‘addicted,’ as used in Vehicle Code section 23105, does not mean addicted in any technical or medical sense, but merely means ‘accustomed or habituated to the use.’ Vehicle Code, section 23107, provides that the fact that the use of drugs was legal is no defense to a prosecution under section 23105. People v. Berner, 28 Cal.App.2d 392, 82 P.2d 617, held that a person could be convicted of driving while addicted to narcotics, even though at the time of the driving the addiction did not affect his ability to operate a motor vehicle. Defendant's argument is that the simultaneous application of the principles laid down in the foregoing authorities, extended to the limit of their logic, would make a felon of a person accustomed to use a narcotic or amphetamine derivative on the prescription of a physician, if he drove an automobile when his use of the drug in no way affected his ability to drive and when he was completely ignorant of the fact that such driving was prohibited; that such an application of the law was not intended by the Legislature and would be unreasonable, unconscionable and unconstitutional.

It is then argued that the evidence in the instant case was not sufficient to establish the fact that defendant knew he was ‘addicted’ within the meaning of Vehicle Code, section 23105 (citing People v. Young, 197 Cal.App.2d 129, 17 Cal.Rptr. 283); that a doctor who legally prescribes a medicine may not inform the patient that the drug so prescribed belongs in the forbidden class; that in the absence of some evidence that the fact has been brought home to him that he is an ‘accustomed or habitual user,’ he ought not to be convicted of a felony for driving an automobile when not under the influence of a drug; that in the case at bar, defendant was not under the influence of a narcotic at the time he drove the vehicle; that the evidence falls far short of showing knowledge on his part that he came within the class of persons to whom the driving privilege is denied; that this court should only apply the Kimbley definition against the illegal user and not against the legal user; that if the narcotic does not impair the patient's ability to operate a vehicle, the law should not preclude him from so doing; that Welfare and Institutions Code, section 5350, defines a narcotic addict as:

‘* * * any person who habitually takes or otherwise uses to the extent of having lost the power of self-control any opium, morphine, cocaine, or other narcotic drug as defined in Article 1 of Chapter 1 of Division 10 of the Health and Safety Code.’;

that this section should apply and also should require proof that the addict uses the narcotic to the extent that he has ‘lost the power of self-control’ at the time.

Defendant then argues that the section is unconstitutional because it imposes a cruel and unusual punishment because it was only the intent of the Legislature in passing it to protect the users of the highway from injury by drivers lacking the capacity to operate their vehicles, or to punish the use or addiction to narcotics; that the punishment of narcotic addicts is no longer a permissible object of the statute, citing Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, which holds that narcotic addiction is a disease which may not be punished as a crime, and that a statute imposing imprisonment for addiction violates the Eighth Amendment to the U. S. Constitution.

Defendant's counsel concede that driving a car is a privilege and that withdrawal of the driving privilege from an addict is constitutional and may be enforced by criminal sanctions, but claims it should have its limitations, as above indicated. (Citing Robinson v. State of California, supra, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.)

It is also argued that defendant did not know that it was illegal to drive a can even though he was or had been an addict, where it did not interfere with his driving ability.

If defendant was addicted to a narcotic, whether obtained legally or otherwise, we see no reason for differentiation of the crime. At least a person who might be struck or injured by such a driver on our highways as a result of addiction would not be interested in whether the addiction was from a legal presciption or from an illegal source.

In People v. Berner, supra, 28 Cal.App.2d 392, 82 P.2d 617, it was definitely held that it is sufficient to convict a person of the offense under consideration if he was addicted to the use of narcotics without being under their influence at the time of his arrest, and the statute applies irrespective of whether the person so addicted was capable of operating a motor vehicle. It was there argued that such section was intended to apply only when such addiction rendered the individual thus affected incapable of operating a motor vehicle. It was said that this argument was plausible but not logical, and whether he was, at the moment of his arrest, under the ‘influence’ of said drug is unimportant, and that it was within the province of the Legislature to declare it to be an ‘offense.’ Vehicle Code, section 23105, provides that for any person who is addicted to the use of narcotic drugs to drive a vehicle upon any highway is a felony. No limitations are suggested in the statute. (People v. Berner, supra, 28 Cal.App.2d 392, 82 P.2d 617.) A hearing was denied in the Supreme Court in that action.

The word ‘addicted’ has also been defined by Webster's Dictionary as ‘given up or over (to); devoted (to); i. e., accustomed, habituated, inclined, prone, attached,’ and ‘addicted’ refers to one who is ‘given up or strongly disposed to some taste, practice or pursuit.’ See also People v. Thompson, 144 Cal.App.2d Supp. 854, 301 P.2d 313.

Vehicle Code, section 12805, provides that the Department of Motor Vehicles shall not issue a license to any person who is addicted to the use of a narcotic drug. Apparently, defendant failed to reveal that fact when he obtained his license. It is his contention that he did not know that he was addicted to a drug or that what he was taking was a drug. This was a factual question for the trial judge. Knowledge of addiction may be inferred from continuous use of drugs and their effects. Drugs, while a blessing to medicine, have effects other than the mere killing of pain. A person's reactions and judgment are affected. Both of these qualities are vital behind the wheel of an automobile. It is common knowledge that the nature of drugs is often to create a false sense of security and a heightened yet false sense of efficiency in the user that may completely eliminate necessary caution and awareness in the driver. Such a blithe spirit is a hazard on the road. Such a person is not a safe driver and is not in a condition to judge whether he is or is not. Vehicle Code, section 23105, is a reasonable and necessary provision to promote highway safety, as held in People v. Berner, supra, 28 Cal.App.2d 392, 82 P.2d 617, and is a lawful and valid exercise of police power.

It does not appear that the holding in In re De La O, 59 Cal.2d 128, 28 Cal.Rptr. 489, 378 P.2d 793, that mere ‘addiction’ is not a crime is here applicable, since the additional feature of driving a car by an addict is a necessary element of the crime.

We are convinced that the authorities heretofore cited and the evidence in the instant case support the trial court's judgment.

Judgment affirmed.

GRIFFIN, Presiding Justice.


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