BUEHLER v. MEESE

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

Shirley Sellars BUEHLER, Respondent, v. George MEESE, as Director of the Department of Motor Vehicles, Appellant.

G001967.

Decided: March 31, 1986

John K. Van de Kamp, Atty. Gen., Melvin R. Segal, Deputy Atty. Gen., for appellant. Richard A. Daily, Anaheim, for respondent.

The Department of Motor Vehicles (DMV) suspended Buehler's driving privilege under the implied consent law because she refused to take a chemical test to determine her state of sobriety.  (Veh.Code, § 13353.)1  The superior court issued a writ of mandate nullifying the suspension and the DMV appeals.   We address two questions:  (1) Does section 23152, which proscribes what is commonly called drunk driving, prohibit conduct occurring on private property?   And (2) is section 40300.5, permitting a peace officer to make an arrest for misdemeanor drunk driving even though the officer did not witness the driving, constitutional?

Midmorning on December 10, 1983, several police officers were dispatched to the scene of a hit-and-run accident inside a trailer park.   A witness described the car involved and its location in the park.   The witness also took the officers to the car and then to Buehler's nearby residence.   When Buehler appeared, the witness identified her as the driver of the car.   She had hit a large dumpster and its cinder block housing.

One officer noticed Buehler displayed the following symptoms:  the strong odor of an alcoholic beverage on her breath, bloodshot and watery eyes and difficulty maintaining her balance.   She was also uncooperative.   The officers at that point had decided to seek a misdemeanor complaint rather than “cause a problem” by arresting Buehler on the spot.   However, she then came outside and stood in the street.   No field sobriety test was administered because the officers felt Buehler was too intoxicated to perform one without injury.

Although it is not entirely clear from the record, it is apparent Buehler was arrested shortly thereafter notwithstanding the earlier decision to seek a complaint.   Buehler was then fully advised of the implied consent law.  (§ 13353.)   She refused to take a chemical test.   With respect to the accident, she said she did not hurt anyone and had only hit a trash can.   All the driving took place within the mobile home park.

The DMV acted on the police report of the incident and suspended Buehler's driving privilege for six months because she refused to take a chemical test.   She requested and was given an administrative hearing.  (§ 13353, subd. (c).)  At the hearing, Buehler claimed the officers did not have probable cause to believe she violated sections 23152 or 23153 and did not lawfully arrest her.   That, she argued, gave them no right to request a chemical test.   The DMV referee disagreed.   However, the superior agreed with Buehler and issued a writ of mandate nullifying the six-month license suspension.

I

 Section 23152 provides (as it did on December 10, 1983), in pertinent part:  “(a) It is unlawful for any person who is under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle.  [¶] (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.”

Section 21001 provides:  “The provisions of this division refer exclusively to the operation of vehicles upon the highways, unless a different place is specifically referred to.”  “Highways,” as that term is used in section 21001, does not include the private streets of Buehler's trailer park.  (§ 360.)   Section 23152 is part of the same division (11) as section 21001.   Because section 23152 does not specifically refer to private roads in any manner, Buehler argues (and the superior court agreed) that section does not proscribe conduct except upon “highways” as defined in section 360.   However, we conclude even if the statutes can be literally construed as Buehler suggests, the construction is directly contrary to the Legislature's intent and is thus not to be given effect.   Put another way, we conclude section 23152 did proscribe Buehler's conduct.

Section 21001, in its present form, was enacted in 1959 (stats. 1959, ch. 3, § 21001, p. 1664);  the statute dates back to 1935 (stats. 1935, ch. 27, § 457, p. 164).   The California statute which proscribes driving after imbibing alcohol, now embodied in section 23152, has a much more complex legislative history.   Our examination of its development convinces us the statute is directed at driving on private roadways, notwithstanding section 21001.2

The court in Weber v. Orr (1969) 274 Cal.App.2d 288, 79 Cal.Rptr. 297 held compliance with the implied consent law (§ 13353) was not required if there was no showing the driver operated a vehicle on a public highway.  (Id., at p. 291, 79 Cal.Rptr. 297.)   The drunk driving statute in effect at the time, section 23102 (section 23152's predecessor) provided it was unlawful to drive under the influence of alcohol “upon any highway.”  (See stats. 1963, ch. 177, § 1, p. 910;  stats. 1965, ch. 1662, § 1, p. 3771.)

Section 23102 was amended in 1972.   Subdivision (a) then provided it was unlawful for a person under the influence of alcohol “to drive a vehicle upon any highway.”   Subdivision (b) prohibited driving while intoxicated “upon other than a highway.”  (Stats.1972, ch. 92, § 6, p. 120.)   This redressed the problem presented in Weber and comported with section 21001.   Thus, as of 1972, it was clear the Legislature meant to prohibit driving under the influence of alcohol upon private property.  (See Plomteaux v. Department of Motor Vehicles (1975) 51 Cal.App.3d 177, 181, 123 Cal.Rptr. 889;  Wallace v. Department of Motor Vehicles (1970) 12 Cal.App.3d 356, 90 Cal.Rptr. 657.)

In 1981, section 23102 was amended and became section 23152.  (Stats.1981, ch. 940, § 12, p. 3567.)   The statute provided it was unlawful for a person under the influence “to drive a vehicle.”   It was again amended in 1981 (stats. 1981, ch. 940, § 33, p. 3578) to add subdivision (b).   The statute then read, in pertinent part:  “(a) It is unlawful for any person who is under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle.  [¶] (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.”

Finally, in 1982 (stats. 1982, ch. 53, § 26, p. 172), the statute was again amended to conform the language of subdivision (b) to that of subdivision (a).   The pertinent parts of both subdivisions then read:  “to drive a vehicle.”   The Legislative Counsel noted the amendment would apply the 0.10 percent proscription to “driving unlawful[ly] anywhere.”  (Stats.1982, ch. 53, Digest, p. 237.)   This conclusion is entitled to our consideration.  (See Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 375–377, 211 Cal.Rptr. 748, 696 P.2d 141.)  “[I]t is reasonable to presume that the Legislature acts, in amending statutes, with the intent and meaning expressed in the Legislative Counsel's Digest.  [Citation.]  (Id., at pp. 376–377, 211 Cal.Rptr. 748, 696 P.2d 141.)

On this appeal, the DMV argues this history reflects an intent to proscribe alcohol impaired driving on private property in the current version of section 23152, notwithstanding section 21001.   We agree.

Interpreting section 40300.5, which we also discuss, post, the court in People v. Ashley (1971) 17 Cal.App.3d 1122, 95 Cal.Rptr. 509, noted “whenever the Legislature has intended that a statute be limited to offenses which occur ‘upon any highway,’ it has done so expressly.  [Citations.]  These limiting words were conspicuously omitted from Vehicle Code section 40300.5.”  (Id., at p. 1126, 95 Cal.Rptr. 509.)   This phrase is also “conspicuously omitted” from section 23152 as it now reads.  “By deleting an express provision from an existing statute, a presumption arises that the Legislature intended a substantial change in the law.  [Citations.]”  (Wallace v. Department of Motor Vehicles, supra, 12 Cal.App.3d 356, 361, 90 Cal.Rptr. 657.) 3

Buehler argues the deletion of the language of former section 23102, subdivision (b), proscribing intoxicated driving “upon other than a highway” from the current statutes, reflects a legislative intent to restrict the application of section 23152 to driving on public highways.   For several reasons, we disagree.

It is common knowledge our Legislature has acted in recent years to deter, not encourage, alcohol impaired driving.   It is now unlawful to drive with a blood alcohol level of .10 percent or more, whether or not under the influence of alcohol.  (§ 23152, subd. (b);  see Burg v. Municipal Court (1983) 35 Cal.3d 257, 264, 198 Cal.Rptr. 145, 673 P.2d 732.)   In its 1985 session, the Legislature amended several statutes (see §§ 13352, subds. (a)(3), (5), (6), (7);  23182;  23159) to increase penalties for alcohol related driving offenses.4  We cannot conclude the amendments to section 23152 reflect a legislative intent to permit alcohol impaired driving on private property.   The danger there (see Burg v. Municipal Court, supra, at p. 262, 198 Cal.Rptr. 145, 673 P.2d 732) is the same.   The Legislature intended section 23152 to reach any place where a person may “drive a vehicle.”

Section 21001 does not prevent this conclusion.   Granted, its literal application could restrict the ambit of section 23152 as Buehler contends.   But “[o]nce a particular legislative intent has been ascertained, it must be given effect ‘ “even though it may not be consistent with the strict letter of the statute.” ’  [Citation.]  ․  ‘ “The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the [L]egislature apparent by the statute;  and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention.   The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” ’ ”  (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049.)  “And it is ‘the duty of the courts, whenever possible, to interpret statutes so as to make them workable and reasonable.’  [Citation.]”  (Gibbs v. City of Napa (1976) 59 Cal.App.3d 148, 155, 130 Cal.Rptr. 382.)

“It is settled that a statute is to be construed in such a way as to render it ‘reasonable, fair and harmonious with [its] manifest [legislative] purposes․'  [Citation], and the literal meaning of its words must give way to avoid harsh results and mischievous or absurd consequences.  [Citations.]” (County of San Diego v. Muniz (1978) 22 Cal.3d 29, 36, 148 Cal.Rptr. 584, 583 P.2d 109.)  “ ‘ “It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.” ’   (People v. Barksdale (1972) 8 Cal.3d 320, 334, 105 Cal.Rptr. 1, 503 P.2d 257, quoting from Bruce v. Gregory (1967) 65 Cal.2d 666, 673–674, 56 Cal.Rptr. 265, 423 P.2d 193;  accord, Silver v. Brown (1966) 63 Cal.2d 841, 845–846, 48 Cal.Rptr. 609, 409 P.2d 689, and cases cited.)”  (Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014.)   “[A] literal interpretation of a statute is not necessarily controlling and will be rejected if it leads to an absurdity.  (People v. Darling (1964) 230 Cal.App.2d 615, 620, 41 Cal.Rptr. 219.)”  (People v. Hannon (1971) 5 Cal.3d 330, 335, 96 Cal.Rptr. 35, 486 P.2d 1235.)

These rules of construction do not change simply because section 23152 is a penal statute.  “ ‘Where the legislative intent is clear, penal statutes must be construed reasonably to effectuate such intent.   They should not be read literally where to do so would lead to absurd consequences.’  [Citation.]  ‘If the intent of the Legislature is clearly ascertainable, words inadvertently omitted from a statute may be supplied in the process of construction in order to effectuate the legislative intent.’  [Citation.]”  (People v. Hernandez (1980) 111 Cal.App.3d 888, 900, 168 Cal.Rptr. 898.)  “The courts may correct an inadvertent error in a statute.”  (People v. Tate (1985) 164 Cal.App.3d 133, 137, 210 Cal.Rptr. 117.

“Finally, we recognize that when a penal statute is reasonably susceptible of two constructions, that more favorable to the defendant should be adopted.   [Citation.]  However, this rule is not inflexible and courts decline to apply it where it leads to results that are contrary to legislative intent or that fail to prevent the harm that is identified in the statute or that override common sense and create palpable absurdities.  [Citations.]”  (People v. Davis (1985) 166 Cal.App.3d 760, 766, 212 Cal.Rptr. 673.)

Section 21001 is a general statute.   It antedates the amendments to section 23102 designed to remedy the problem identified in Weber v. Orr, supra, 274 Cal.App.2d 288, 79 Cal.Rptr. 297 and reach alcohol impaired driving on private roads.   Nothing in the subsequent history of drunk driving legislation suggests an intent to restrict its application in the manner Buehler contends.   To the contrary, the use of the unqualified language “to drive a vehicle” in section 23152 indicates the opposite.

Using the aforementioned rules of statutory construction, we can frame our conclusion in a number of ways.   We decline to apply section 21001 literally to restrict section 23152 because to do so would be contrary to legislative intent.   It would also lead to absurd consequences because alcohol impaired driving is dangerous wherever it is done.   That is amply illustrated by the present case where the offense took place in the relatively close quarters of a populated mobile home park.   Driving under the influence of alcohol or with a blood alcohol content of .10 percent or more in a private mobile home park violates section 23152.5

II

 Buehler also attacks the constitutionality of section 40300.5.6  That section permitted her arrest for a misdemeanor even though the offense did not take place in the officers' presence.  (See Pen.Code, § 836, subd. 1.)   The superior court did not reach this question because it agreed with Buehler's initial contention no offense had occurred.   We must address the issue to determine whether the superior court correctly granted the writ, albeit for the wrong reason.  (See Green v. Superior Court (1985) 40 Cal.3d 126, 138, 219 Cal.Rptr. 186, 707 P.2d 248.)   We conclude Buehler's constitutional attack on section 40300.5 is without merit.

Buehler claims the United States Supreme Court has ruled the Fourth Amendment forbids an arrest for a misdemeanor unless the offense was committed in a law enforcement officer's presence.   The case on which Buehler relies does not support her assertion.  Henry v. United States (1959) 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 discusses the federal arrest statute, 18 U.S.C., section 3052, which is essentially the same as Penal Code section 836 in all respects relevant here.   The court notes the federal statute embodies the constitutional standard (id., at p. 100, 80 S.Ct. at p. 170), but it is referring to the fact arrests can only legally be made when supported by probable cause.   The case is simply not authority for the proposition warrantless misdemeanor arrests are constitutional only when the offense occurs in an officer's presence.  Section 40300.5 complies with Henry —it permits an arrest only upon “reasonable cause.”  (Ibid.)

Also contrary to Buehler's argument, Gerstein v. Pugh (1974) 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 supports the general concept of warrantless probable cause arrests.  (See id., at pp. 112–114, 95 S.Ct. at pp. 862–63.)   The case does not suggest the provisions of Penal Code section 836 distinguishing felonies and public offenses are constitutionally compelled.

The United States Supreme Court has held the states may develop “workable rules governing arrests ․ to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures․”  (Ker v. California (1963) 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726;  see generally Beck v. Ohio (1964) 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.)  Section 40300.5 is just such a rule.

“The obvious intent of the Legislature in enacting section 40300.5 was to eliminate in misdemeanor drunk driving cases the troublesome requirement [of Penal Code section 836, subdivision 1] that a police officer can make an arrest only if he [or she] has reasonable cause to believe that the person to be arrested had committed an offense in his [or her] presence.”  (People v. Ashley, supra, 17 Cal.App.3d 1122, 1126, fn. omitted, 95 Cal.Rptr. 509;  see also Shaffer v. Department of Motor Vehicles (1977) 75 Cal.App.3d 698, 142 Cal.Rptr. 569.)

 The present case illustrates section 40300.5 is not constitutionally infirm.   A citizen informant, a reliable source (People v. Amos (1977) 70 Cal.App.3d 562, 566–567, 139 Cal.Rptr. 30;  People v. Guidry (1968) 262 Cal.App.2d 495, 497–498, 68 Cal.Rptr. 794), gave the officers information concerning the accident (see People v. Ashley, supra, 17 Cal.App.3d 1122, 1127, 95 Cal.Rptr. 509;  People v. Jordan (1977) 75 Cal.App.3d Supp. 1, 14, 142 Cal.Rptr. 401;  see also Cowman v. Department of Motor Vehicles (1978) 86 Cal.App.3d 851, 150 Cal.Rptr. 559), Buehler's car and whereabouts.   When the officers contacted Buehler, they observed she was intoxicated.7  The information available to the officers clearly supplied probable cause for Buehler's arrest.  (Shaffer v. Department of Motor Vehicles, supra, 75 Cal.App.3d 698, 700, 142 Cal.Rptr. 569.)   Consequently, she had no right to refuse a chemical test.  (See id., at pp. 699–700, 142 Cal.Rptr. 569.)

III

Buehler also makes a third creative but flawed argument.8  In her criminal prosecution for the section 23152 violation, she claims her demurrer was granted and the charge dismissed.   She argues there should therefore be no license suspension because section 13353 really only provides for a discovery sanction vis-a-vis the criminal prosecution.   Once the prosecution is dismissed, the “discovery sanction” has no validity, so the argument goes.   We disagree.

She first suggests collateral estoppel may apply, while freely admitting Lofthouse v. Department of Motor Vehicles (1981) 124 Cal.App.3d 730, 177 Cal.Rptr. 601 holds otherwise.   Granted, there is some authority to support Buehler's contention.  (See Shackelton v. Department of Motor Vehicles (1975) 46 Cal.App.3d 327, 119 Cal.Rptr. 921;  see also Skinner v. Sillas (1976) 58 Cal.App.3d 591, 130 Cal.Rptr. 91.)   Yet Buehler virtually concedes collateral estoppel is not a proper tool for analysis here.   We agree with her in this respect and with Lofthouse.   It is also of particular note the dismissal here apparently occurred after the administrative hearing.   It is difficult to see how the DMV was collaterally estopped from acting by something which had not yet occurred.

Rather, Buehler argues section 13353, “the Implied Consent statute, is simply a method employed by the State to sanction the failure to give discovery.”   Once a criminal prosecution is dismissed, she submits sanctions for failure to give discovery are impermissible.

In a sense, Buehler is correct—one purpose of section 13353 is to obtain evidence for criminal prosecution.  “The immediate purpose of Vehicle Code section 13353 is to obtain the best evidence of blood-alcohol content at the time of the arrest of the person believed to be driving while intoxicated.  [Citation.]”  McGue v. Sillas (1978) 82 Cal.App.3d 799, 804–805, 147 Cal.Rptr. 354;  see also People v. Ryan (1981) 116 Cal.App.3d 168, 182, 171 Cal.Rptr. 854.)

However, that is not the only purpose.  “ ‘The long-range purpose of Section 13353 is to inhibit intoxicated persons from driving on the highways [citations] and thus reduce the carnage and slaughter on California freeways and byways caused by drunk drivers [citations] which “now reaches the astounding figures only heard of on the battlefield” [citations].’  [Citations.]”  (McGue v. Sillas, supra, 82 Cal.App.3d 799, 805, 147 Cal.Rptr. 354;  see also People v. Ryan, supra, 116 Cal.App.3d 168, 182, 171 Cal.Rptr. 854.)

“The legislative history of the implied consent statute and cases heretofore discussed indicate that the statute is remedial in nature and aimed at reducing the hazards of drunken driving on the highways of California.   It was designed to secure the civil cooperation of all persons privileged to drive in providing objective scientific evidence of intoxication (or sobriety) when the privilege is being exercised.   The sanction of suspension when such cooperation is refused is not a criminal penalty and does not depend upon a subsequent conviction of driving while under the influence.   Hearings under the statute are civil and not criminal in nature.  [Citation.]  The test is as much for the benefit of a driver who is not under the influence as it is to the state when the driver is intoxicated.   It was also intended to obviate incidents of violence that may be expected when a recalcitrant inebriate is tested by force as under proper circumstances the police have a right to do.”  (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 662, fn. omitted, 119 Cal.Rptr. 804.)  “[T]he statute was conceived and enacted for laudable public purposes and to serve valid state interests, including the avoidance of the use of force in obtaining samples for blood alcohol tests, to assist in obtaining the best evidence of driving while intoxicated, and to reduce the number of death-dealing drunk drivers on the highways by the administrative sanction of drivers' licenses suspensions.”  (People v. Brannon (1973) 32 Cal.App.3d 971, 978, 108 Cal.Rptr. 620.)  Section 13353's effectiveness does not depend on the success of a criminal prosecution.

Arguments substantially similar to those of Buehler have been rejected:  “Petitioner's contention that since the charge of Vehicle Code section 23102, subdivision (a) (misdemeanor drunk driving), was dismissed and he pleaded guilty to Vehicle Code section 23103 (reckless driving), Section 13353 is inoperative, is incorrect.   The facts in Spurlock v. Department of Motor Vehicles (1969) 1 Cal.App.3d 821, 82 Cal.Rptr. 42, are similar to the case at bench, in that petitioner-motorist was involved in a collision with a signal-light pole, refused to take one of the chemical sobriety tests required by Section 13353, and subsequently pleaded guilty to a hit-and-run charge (Veh.Code, § 20002) with the charges of misdemeanor drunk driving being dismissed.   The Court of Appeal, in affirming the superior court's upholding of DMV's finding and order suspending her driver's license for six months, stated at pages 829–830:  [¶] ‘Initially, it must be noted that Vehicle Code, section 13353, authorizes the suspension of an individual's driver's license for failure to submit to the sobriety tests without any finding that the individual is, in fact, intoxicated.  [¶]  ‘In Walker v. Department of Motor Vehicles, 274 Cal.App.2d 793, 79 Cal.Rptr. 433, the Court of Appeal held that the procedure required by section 13353 is consistent with due process.  “The Legislature had a sufficient reason for requiring a chemical test, and for providing a simple administrative sanction to enforce that requirement.   The combination of criminal punishment and administrative sanctions which are imposed upon a person convicted of drunk driving (see Veh.Code, §§ 23102, 13210 and 13352) serve a different purpose and, in a particular case, may be more or less onerous than the sanction imposed under section 13353.” ’ ”  (Anderson v. Cozens (1976) 60 Cal.App.3d 130, 144, fn. 12, 131 Cal.Rptr. 256.)

We too reject Buehler's contention that dismissal of a criminal prosecution renders section 13353 inoperative.   The DMV properly imposed sanctions for what Buehler admits was a refusal to comply with that section's provisions.   The judgment granting a writ of mandate to annul DMV's suspension of Buehler's driving privileges is reversed.

FOOTNOTES

1.   All statutory references are to the Vehicle Code unless otherwise specified. 

2.   “The interpretation of a statute is a question of law․  [Citation.]”  (Valov v. Tank (1985) 168 Cal.App.3d 867, 873, 214 Cal.Rptr. 546.)

3.   We are aware, of course, section 40300.5 is not in the same division as section 21001.

4.   In addition, the Legislature amended section 40300.5 in 1984 and said in section 2 of statute 1984, chapter 722:  “The Legislature finds and declares that driving while under the influence of alcohol or drugs continues to pose a substantial danger to public health and safety, injuring over 65,000 people per year and killing an additional 2,400.   Given the severity of the conduct involved, the exception in Section 40300.5 of the Vehicle Code from the general requirements of Section 836 of the Penal Code should be expanded to cover other instances in which the officer has reasonable cause to believe that the person to be arrested had been driving while under the influence of alcohol, drugs, or both.”

5.   Although we are confident this conclusion effectuates the Legislature's intent, we commend for its consideration the possibility of amending section 21001 or section 23152 to avoid any further confusion.

6.   Section 40300.5 currently provides:  “Notwithstanding any other provision of law, a peace officer may, without a warrant, arrest a person who is (1) involved in a traffic accident or (2) observed by the peace officer in or about a vehicle which is obstructing a roadway, when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug.”In 1984, after Buehler's offense, the Legislature amended the section in respects not germane to this appeal.

7.   No issue is raised regarding the propriety of the contact made at Buehler's residence.  (See generally People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333.)

8.   The trial court never reached this question below either.   She asks us to take judicial notice (see Evid.Code, §§ 451, 452, subd. (d) and 459) of her section 23152, subdivision (a) prosecution.   Given our conclusion, we need not finally resolve Buehler's request for judicial notice to pass upon her contention.

SONENSHINE, Associate Justice.

TROTTER, P.J., and CROSBY, J., concur.