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Court of Appeal, First District, Division 3, California.

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 of the State of California, Real Party in Interest and Respondent.


Decided: June 22, 1983

Law Offices of Perry E. Olsen, Thomas P. House, Watsonville, for plaintiff and appellant. No appearance for defendant and respondent. John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Robert R. Granucci and Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for real party in interest.


We hold that Vehicle Code section 23152, subdivision (b),1 which declares it unlawful for a person to drive if he or she has 0.10 percent or more of alcohol in his or her blood, is not vague and is therefore constitutional, valid, and enforceable.2


A detailed history of the case is not pertinent to the issue on appeal.   Appellant was charged by complaint with violation of Vehicle Code section 23152, subdivision (b).   It was alleged that he had suffered a prior conviction for driving under the influence of alcohol (former § 23102, subd. (a)).  He pled not guilty and denied the prior.   He also demurred to the complaint on the ground that the statute was unconstitutional because of vagueness.   The municipal court overruled the demurrer.   Appellant sought a writ of prohibition in the superior court, challenging the propriety of the lower court's ruling.   The writ was denied on the merits without a hearing.   This appeal followed.3


A. Background

Former section 23102 declared it unlawful for any person to drive who was under the influence of alcohol.  (This offense is commonly referred to as DUI [driving under the influence] or DWI [driving while intoxicated].)  A DUI 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 [or her] faculties.  [Citations.]”  (Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1058, 178 Cal.Rptr. 480, emphasis omitted.)   Former section 23126 established a rebuttable presumption that a person having a blood alcohol level (BA) of 0.10 or more was under the influence of alcohol.

These and other related statutes were inadequate to end the slaughter on our highways caused by the drinking driver—a tragedy repeatedly lamented by the United States Supreme Court (South Dakota v. Neville (1983) –––U.S. ––––, ––––, 103 S.Ct. 916, 920, 74 L.Ed.2d 748, 755), as well as by our own Supreme Court (e.g., Taylor v. Superior Court (1979) 24 Cal.3d 890, 898–899, 157 Cal.Rptr. 693, 598 P.2d 854).

In 1981, in an apparent attempt to reduce the carnage, our Legislature retained the DUI statutes, but added section 23152, subdivision (b), which provides:  “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.”

Statutes of this kind, sometimes referred to as “ ‘illegal per se laws,’ ” have been enacted in a number of states.  (See State v. Franco (Wash.1982), 96 Wash.2d 816, 639 P.2d 1320, 1322.)   Whether such enactment creates a new offense, a lesser included offense in DUI, or an alternative method of committing DUI depends on the statutory scheme.  (Ibid.)  Our statute created a new and separate offense.  (Wallace v. Municipal Court (1983) 140 Cal.App.3d 100, 108, 189 Cal.Rptr. 886, hg. den., May 18, 1983.)   Hereafter we shall refer to this offense as “D–10,” and to section 23152, subdivision (b), as the “D–10 statute.”

We note that the D–10 statute has been referred to as creating a “conclusive presumption” of intoxication.  (People v. Lujan (1983) 141 Cal.App.3d Supp. 15, 22, 192 Cal.Rptr. 109, pamp. No. 12, emphasis omitted.)   This is incorrect.   D–10 is a crime regardless of intoxication.   The Oregon Court of Appeals, in upholding that state's illegal per se .15 percent statute, explained:  “While common sense indicates that it is unlikely that a person with a .15 per cent or more blood alcohol is unintoxicated, ․ it is entirely possible that he may appear to be free of all or most of the usual indicia of intoxication.   Thus, there would be reason under such evidence to find him not guilty of a [DUI] charge.   Under the state's police power, it is not unreasonable that the legislature should nevertheless make it illegal for all people to drive who have such a concentration of alcohol in their blood.   We see no conclusive presumption of intoxication in such a prohibition because the question is not whether they are intoxicated, but whether they have .15 per cent or more of alcohol in their blood.”  (State v. Abbott (Or.App.1973), 15 Or.App. 205, 514 P.2d 355, 357.)   The Washington Supreme Court expressed the concept succinctly:  “The statute does not presume, it defines.”  (State v. Franco, supra, 639 P.2d at p. 1323.)

B. Vagueness

“Both the California Constitution, article I, section 13, and the Constitution of the United States, Fourteenth Amendment, provide that no person shall be deprived of life, liberty, or property without due process of law.   Due process means that ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.   All are entitled to be informed as to what the State commands or forbids.’   [Citations.]

“The standard to be applied is set forth in Connally v. General Const. Co. [1926], 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322] ․:  ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.   And a statute which either forbids or requires the doing of an act in terms so vague that men [or women] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ ”  (Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 370, 341 P.2d 310.)

“A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it.  [Citations.]”  (People v. McCaughan (1957) 49 Cal.2d 409, 414, 317 P.2d 974.)

D–10 is an explicitly defined crime;  the statute could not be clearer in its creation of the standard of conduct for drinking drivers and the standard to be applied by trial courts.  (See People v. Campos (1982) 138 Cal.App.3d Supp. 1, 188 Cal.Rptr. 366, pamp. No. 3, regarding the effect of margin of error in BA measurement.)   Appellant's argument is that the D–10 statute is vague in the sense that it is impossible for a person to perceive through his or her senses whether his or her BA is precisely .09 or .10, and therefore to determine whether he or she is in violation.   While this is obviously true, it does not render the statute constitutionally infirm.

Similar arguments attacking obscenity statutes have been rejected consistently for reasons which apply, by analogy, to the case at bench.  “․ [L]ack of precision is not itself offensive to the requirements of due process.   ‘․  [T]he Constitution does not require impossible standards';  all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices․'  [Citation.] ․  ‘․ That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense․’  [Citations.]”  (Roth v. United States (1957) 354 U.S. 476, 491–492, 77 S.Ct. 1304, 1312–1313, 1 L.Ed.2d 1498, fn. omitted.)

A statute “ ‘ “․ will not generally be held invalid if the language is sufficient to enable the attorney to explain to his client and advise what questions may be left to the determination of the jury, so that he will be able to govern himself accordingly;  ․” ’ ”  (Eckl v. Davis (1975) 51 Cal.App.3d 831, 849, 124 Cal.Rptr. 685.)  “ ‘ “․ [W]here the statute involves some matters of degree as to which individuals and even jurors might reasonably disagree in their judgment, the statute will not for that reason alone be invalidated, ․”  [Citation.]’ ”  (Id., at p. 850, 124 Cal.Rptr. 685.)

We hold that the D–10 statute conveys to the drinking driver a sufficiently definite warning of what conduct is proscribed.  “We can see no reason why a person of ordinary intelligence would have any difficulty in understanding that if he has drunk anything containing alcohol, and particularly any substantial amount thereof, he should not attempt to drive or take control of a motor vehicle.”  (Greaves v. State (Utah 1974) 528 P.2d 805, 808.)

Furthermore, a statute “ ‘ “․ will be upheld if its terms may be made reasonably certain by reference to other definable sources.” ’  [Citations.]”  (County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 673, 114 Cal.Rptr. 345, 522 P.2d 1345.)   Charts are readily available which show the number of alcoholic beverages necessary to reach the BA of 0.10.   For example, the August 1982 California Driver's Handbook, issued by the Department of Motor Vehicles, and available in English and five foreign languages free of charge to any driver, contains a “Blood Alcohol Estimation Chart” on the inside of its front cover, together with the admonition:  “Keep this booklet in the glove compartment of your vehicle.   It will help you many times.”  (Cal.Driver's Handbook (Cal.Dept. of Motor Vehicles, pamp. Aug. 1982), p. 2.)

Also, we take judicial notice of the fact that since passage of the D–10 statute, numerous articles have appeared in publications of general circulation containing such charts, often with accompanying articles explaining their significance.  (E.g., How You Can Drink Safely During the Holidays, San Francisco Chronicle, Dec. 17, 1982, p. 51.)

“Thus, although one can legally drink and drive [citation], our ․ law makes it perfectly clear that the two activities cannot be mixed to the extent that the drinking affects the driving, or the driver has a 0.1 percent of alcohol in his blood.   No further specificity is required if the statute gives fair warning of prohibited conduct.  [Citation.]”  (State v. Franco, supra, 639 P.2d at p. 1324.)

It is true that a drinking driver may, even with use of an available chart, err in his or her estimation of BA and thereby “innocently” commit a D–10 violation.  “ ‘․ [B]ut “the law is full of instances where a [person's] fate depends on his [or her] estimating rightly ․ some matter of degree.”   [Citation.]’ ”  (County of Nevada v. MacMillen, supra, 11 Cal.3d at p. 673, 114 Cal.Rptr. 345, 522 P.2d 1345;  see also People v. Daniel (1959) 168 Cal.App.2d Supp. 788, 799–800, 337 P.2d 247.)   This fact does not render such laws unconstitutional.

A number of penal statutes require some sort of measurement on the part of the prospective violator.  (E.g., Pen.Code, §§ 172 [sale of liquor within specified distances of certain institutions], 374d [animal carcass within 100 feet of street], 597u [requirements in killing a dog or cat by use of carbon monoxide gas], 597x [as above, by use of nitrogen gas];  Health & Saf.Code, § 11056 [controlled substances];  Veh.Code, §§ 21201 [bicycle size and equipment], 21707 [fire areas], 21752 [when driving on left prohibited].)  We are aware of none which has been declared constitutionally vague for that reason.

Finally, it is now virtually universally accepted that a person with a BA of 0.10 should not be driving.  (See, e.g., State v. Franco, supra, 639 P.2d at p. 1322;  People v. Lachman (1972) 23 Cal.App.3d 1094, 1098, 100 Cal.Rptr. 710.)   In creating the D–10 offense, the Legislature recognized this fact.   “ ‘Where a statute contains a reasonably adequate disclosure of the legislative intent regarding an evil to be combatted in language giving fair notice of the practices to be avoided, a court will be slow to say that such a statute is too indefinite to be enforced.   The complexities of the social problems dealt with by the Legislature require that a practical construction be given to the language employed by the [drafters] of legislation lest their purposes be too easily nullified by overrefined inquiries into the meaning of words.   “Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible.”  [Citation.]’  [Citations.]”  (People v. Vis (1966) 243 Cal.App.2d 549, 555, 52 Cal.Rptr. 527.)


Drinking of alcoholic beverages is an accepted and pervasive practice in our society;  the privilege of driving a personal automobile at one's pleasure is so engrained in our system of mores that any attempt to curtail it is bound to meet with strong resistance.   Hence for years the drinking driver has been tolerated, with the result that we have slaughtered more people on the road than have died in all our wars.4  The creation of the D–10 offense reflects the desire of the duly elected representatives of the People of this state to end this needless waste of life.   This court finds that the statute is reasonably certain in view of the conditions which it attempts to alleviate.

We therefore uphold the constitutionality of section 23152, subdivision (b).

The judgment is affirmed.


1.   All statutory citations are to the Vehicle Code unless otherwise indicated.

2.   We are aware of People v. Alfaro (1983) 143 Cal.App.3d 528, 192 Cal.Rptr. 178, in which Division One of this court declared section 23152, subdivision (b), unconstitutional.   We find the dissenting opinion of Justice Elkington persuasive.

3.   We note that this appeal arrived at this court through a procedural “ ‘loophole’ ” which has since been closed.  (See Code Civ.Proc., § 904.1, as amended effective Jan. 1, 1983;  see generally Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 728–736, 140 Cal.Rptr. 897.)   In light of the extraordinary importance of the issue presented, we do not fault counsel for using this procedure.  (See Mendieta v. Municipal Court (1980) 109 Cal.App.3d 290, 168 Cal.Rptr. 1.)

4.   South Dakota v. Neville, supra, 459 U.S. at p. ––––, 103 S.Ct. at p. 920, 74 L.Ed.2d at p. 755.)

BARRY–DEAL, Associate Justice.

SCOTT, Acting P.J., and FEINBERG, J., concur.