PEOPLE v. ALFARO (1983)

Defendants have all been charged with violating section 23152, subdivision (b) of the Vehicle Code, which proscribes driving with a blood-alcohol of 0.10 percent or greater, and some also with prior convictions of driving under the influence of alcohol in violation of former Vehicle Code section 23102 (Veh.Code, §§ 23165, 23170).¹  All have demurred to complaints collectively on two grounds relevant here:  1) Section 23152, subdivision (b) is void for vagueness;  and 2) A former violation of section 23102 is not a prior conviction for purposes of enhanced punishment under section 23152, subdivision (b) and its accompanying penalty provisions (§§ 23165, 23166, 23170 and 23171).   The demurrers were sustained on both grounds in municipal court and the People appealed to the Appellate Department of the Monterey County Superior Court.   The cases were there consolidated by order of the superior court, which reversed the judgments sustaining the demurrers and remanded all cases to the municipal court.   The consolidated cases were thereupon transferred to this court pursuant to rule 62, California Rules of Court.

We first consider appellants' constitutional challenge to section 23152, subdivision (b), on the ground that it is impermissibly vague.

Prior to 1982, section 23102 prohibited driving under the influence of alcohol.   A conviction under that section required a judicial showing of impairment of physical or mental abilities resulting from consumption of alcohol, to the degree the driver no longer had the ability to drive a vehicle with the caution and characteristics of a sober person of ordinary prudence.   (Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 727, 140 Cal.Rptr. 897;  People v. Keith (1960) 184 Cal.App.2d Supp. 884, 7 Cal.Rptr. 613.)   According to former section 23126, a person with a blood-alcohol of 0.10 percent or more was presumed under the influence, but the presumption was rebuttable by a showing of reasonable doubt in light of all of the evidence.

The Legislature revised the drunk driving laws in 1981, one of the changes being the repeal of section 23102 effective January 1, 1982, and the adoption, in its place, of section 23152, subdivision (a), which contains identical provisions.   Also added was section 23155 which states the rebuttable presumption previously found in section 23126.

Section 23152, subdivision (b) was also added to the drunk driving laws.   It states:  “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.”   Defendants maintain that section 23152, subdivision (b) fails to give adequate notice of the conduct it proscribes and is thus unconstitutionally vague.

 Generally, statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.  (Collins v. Riley (1944) 24 Cal.2d 912, 915, 152 P.2d 169;  People v. Demery (1980) 104 Cal.App.3d 548, 556, 163 Cal.Rptr. 814.)   Statutes will be reasonably construed to clarify ambiguous terms, and uncertainties are often removed by reference to common understanding or technical meanings.  (Demery, supra;  Pennisi v. Department of Fish & Game (1979) 97 Cal.App.3d 268, 277, 158 Cal.Rptr. 683.)

 But it is an established principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.  (Grayned v. City of Rockford (1972) 408 U.S. 104, 108–109, 92 S.Ct. 2294, 2298–2299, 33 L.Ed.2d 222;  Music Plus Four, Inc. v. Barnet (1980) 114 Cal.App.3d 113, 125–126, 170 Cal.Rptr. 419.)   Quoting from Connally v. General Const. Co. (1926) 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, our high court recently explained that “ ‘․ a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ ”  (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 491, 134 Cal.Rptr. 630, 556 P.2d 1081;  see also Lanzetta v. New Jersey (1939) 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.)   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.  (People v. McCaughan (1957) 49 Cal.2d 409, 414, 317 P.2d 974;  Merandette v. City and County of San Francisco (1979) 88 Cal.App.3d 105, 112, 151 Cal.Rptr. 580.)   As noted in People v. Moreland (1978) 81 Cal.App.3d 11, 16, 146 Cal.Rptr. 118:  “ ‘Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.   To make the warning fair, so far as possible the line should be clear.’   (McBoyle v. United States (1931) 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 ․)”

Vagueness may cause serious constitutional problems in the area of criminal law.  “Vague laws may trap the innocent by not providing fair warning.”   (Grayned v. City of Rockford, supra, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222.)   In addition, vague statutes do not provide explicit standards to those who must enforce them, and thereby create the danger that police, prosecutors, judges or juries may arbitrarily and discriminatorily enforce the law.  (People v. Mirmirani (1981) 30 Cal.3d 375, 382, 178 Cal.Rptr. 792, 636 P.2d 1130;  Pryor v. Municipal Court (1979) 25 Cal.3d 238, 252, 158 Cal.Rptr. 330, 599 P.2d 636.)

 However, the presumptive validity of a legislative act militates against invalidating a statute merely because difficulty is encountered in determining whether certain acts or offenses fall within its language.   (Bowland v. Superior Court, supra, 18 Cal.3d 479, 492, 134 Cal.Rptr. 630, 556 P.2d 1081.)  “ ‘ “Reasonable certainty is all that is required.” ․’ ”  (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 345, 138 Cal.Rptr. 66, 562 P.2d 1315.)   Mere difficulty in ascertaining the meaning of a statute will not render it nugatory.  (People v. Anderson (1972) 29 Cal.App.3d 551, 561, 105 Cal.Rptr. 664.)   A statute must only give sufficiently definite warning of the conduct it proscribes in terms reasonably certain to convey what is prohibited.  (People v. Superior Court (Hartway), supra, 19 Cal.3d at p. 345, 138 Cal.Rptr. 66, 562 P.2d 1315;  Music Plus Four, Inc. v. Barnet, supra, 114 Cal.App.3d 113, 126, 170 Cal.Rptr. 419.)   And in all cases, a statute must be considered, if possible, “ ‘from the standpoint of a reasonable man who might be subject to its terms.’ ”  (People v. Cramblit (1976) 62 Cal.App.3d 475, 482, 133 Cal.Rptr. 232.)

 Appellants claim that section 23152, subdivision (b) fails to give fair notice of the conduct it prohibits.   The fatal flaw of the statute, argue defendants, is that it is based upon a measured level of blood-alcohol (in grams of alcohol per 100 milliliters of blood) rather than conduct or symptoms of alcohol consumption which can be identified by those who violate its provisions.

Section 23152, subdivision (b) is clear and concise in its terms:  it proscribes driving a motor vehicle with a blood-alcohol level of 0.10 percent or greater, thereby providing specific standards in absolute terms for determining criminality.   Irrespective of knowledge or intent, an individual who drives a vehicle while possessing a blood alcohol level of 0.10 is guilty of a crime.   The grave problem we perceive in the law is, however, that potential violators are given no rational means of measuring the relative level of alcohol consumption which the statute forbids, and that in some cases no such means are reasonably accessible.

Unlike former section 23102—currently section 23152, subdivision (a)—the “(b)” section does not focus upon conduct or require recognizable impaired driving ability;  instead, it is directed to a bodily condition based upon a measurement.   While the “(a)” section presumes criminality where a blood-alcohol level of 0.10 percent is found, it is directed at invidious conduct, and its presumption is one “affecting the burden of proof” (Witkin, Cal. Evidence (2d ed. 1982 supp.) (New) Evidentiary Effect of Test, § 910D, p. 481), which the defendant can rebut by raising a reasonable doubt that the ultimate fact of driving under the influence has been established.  (People v. Schrieber (1975) 45 Cal.App.3d 917, 923, 119 Cal.Rptr. 812.)   Criminality under the “(a)” section is predicated ultimately upon conduct which is described in the statute and easily ascertainable:  it may, incidentally, be proved on the basis of a blood-alcohol ratio of less than 0.10 percent.   In contrast, the only standard stated in section 23152, subdivision (b) is a blood-alcohol level of 0.10 percent, which need not be accompanied by evidence of impairment of driving ability.

Section 23152, subdivision (b) gives notice only that a particular percentage of alcohol in the blood of a driver is illegal, without further explication, notwithstanding that the measured concentration of alcohol in the blood at any given time is plainly not a matter of common understanding, as demonstrated by the fact that test results of clinically obtained specimens must be interpreted at trial by an expert witness.²  (People v. Adams (1976) 59 Cal.App.3d 559, 561, 131 Cal.Rptr. 190;  Evid.Code, § 800 et seq.)

Acknowledging the difficulty of gauging the precise blood-alcohol level made criminal by section 23152, subdivision (b), the People maintain that the statute provides sufficient notice of its proscriptions by warning potential violators that consumption of alcohol should not be followed by driving, and thus “properly places the burden on the drinking driver and not on the unsuspecting motorist, passenger or pedestrian․”  Recently, in People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 179 Cal.Rptr. 431, the court rejected a contention similar to that made by defendants here, that the presumption of intoxication stated in former section 23126 was unconstitutionally vague, explaining—perhaps with some begging of the question:  “The claim that Vehicle Code section 23126 is unconstitutionally vague because it establishes a presumption that an individual is intoxicated when his blood alcohol level reaches 0.10 percent is totally without merit.   This argument is based on the premise that one cannot be expected to know when his blood alcohol will reach a level to invoke the statutory presumption.   There is no showing nor could there reasonably be, that a driver cannot tell when his or her sobriety has been affected to such an extent as to significantly impair driving ability.”  (Id., at p. 21, 179 Cal.Rptr. 431.)

As noted, former section 23102 created only a presumption of intoxication, and as acknowledged in Perkins, criminality under that section depended upon a showing of impaired driving ability—as it does now under section 23152, subdivision (a)—which an ordinary driver should be able to recognize and avoid.   In contrast, section 23152, subdivision (b) is based, not upon a rebuttable statutory presumption, but in effect upon a conclusive one.   (People v. Roder (1983) 33 Cal.3d 491, 499, 189 Cal.Rptr. 501, 658 P.2d 1302.)³

Closely equivalent penal laws have been upheld in sister states.   For example, in Greaves v. State (Utah 1974) 528 P.2d 805, 808, the court encountered no difficulty at all in sweepingly rejecting the contention that a 0.10 test was vague, in the following terms:  “We 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.”   (Emphasis added.   See also State v. Franco (1982) 96 Wash.2d 816, 639 P.2d 1320, 1324–1325;  State v. Hamza (Fla.1977) 342 So.2d 80;  Roberts v. State (Fla.1976) 329 So.2d 296, 297;  Coxe v. State (Del.1971) 281 A.2d 606, 607.)⁴

Such decisions, however, do not in our view forthrightly address the problem of notice, and consequently are of scant assistance in the present analysis.   Here, we are not concerned with laws which forbid driving a motor vehicle after some alcoholic ingestion;  instead we deal with a law which allows persons to drink and drive, but gives no reasonably ascertainable means of knowing when such conduct becomes “criminal.”

Examples of how the “(b)” section might operate in a grossly unfair manner come easily to mind.   Posit any lawabiding citizen who, reasonably and correctly believing his driving ability to be unimpaired and his blood alcohol level to be below 0.10, decides to drive home after imbibing liquor at a social function.   Stopped by the police for reasons unrelated to his driving ability—say, for a mechanical defect—and exhibiting no objective signs of impaired ability, but conceding his use of alcohol, he may then be detained, tested, arrested and convicted because, unbeknownst to him, his blood-alcohol level had by assimilation increased—as the result of factors beyond the ken of lay persons to a level of 0.10 percent—during the course of his trip home.⁵

We think that the challenged subsection will, if upheld, regularly produce convictions on such palpably unfair terms of notice, since the individual could only speculate as to how and when his blood-alcohol ratio would reach the criminal point.

Therefore, with reluctance, given the compelling pragmatic reasons underlying the Legislature's salutary purpose in enacting section 23152, subdivision (b), we conclude that the section is fatally vague in its notice provisions, and hence unenforceable.

We feel constrained to repeat that, if the Legislature chooses to enact a law which prohibits drinking and driving, it may do so provided the statute meets minimum constitutional standards of notice.   Our disagreement is with the means used here, when measured against what we conceive to be constitutional restraints against vagueness.

We observe, finally, that the “(a)” section of section 23152, which remains intact as a tool of law enforcement, permits conviction for driving under the influence even where one's blood alcohol ratio is far below 0.10.   That section proscribes measurable conduct in plain language understandable to the average person without reference to recondite scientific data.⁶

The municipal court's judgments of dismissal are affirmed.

I respectfully dissent.

Vehicle Code section 23152, subdivision (b), 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.”

The premise of my esteemed colleagues' opinion is that the statute does not give a drinking driver “fair warning” of when he must stop in order to avoid violation of the statute, and that it thus denies him due process of law.

I disagree.

Vehicle Code section 23152, subdivision (b), manifestly warns the drinking driver that he must discontinue, or at least temper, his drinking after his initial imbibition, lest he reach the forbidden blood alcohol driving level, and face arrest and prosecution.   Such a warning is sufficient by any constitutional standard known to me.

With near universality it has been authoritatively declared that a drinking driver who has ingested so much alcohol, as to have developed a blood alcohol content of 0.10 percent, has, for the public's and his own safety, been rendered unfit for further driving.  (“[T]here is a long-recognized and scientific relationship between a drunk driving suspect's blood alcohol levels and the degree of intoxication of a suspect.”)  (People v. Perkins, 126 Cal.App.3d Supp. 12, 21, 179 Cal.Rptr. 431;  and see People v. Lachman, 23 Cal.App.3d 1094, 100 Cal.Rptr. 710.)   By any test of reason and experience he has, and knows he has, imbibed a large quantity of alcohol before he reaches the proscribed 0.10 percent blood alcohol limit.

It is settled law that a criminal statute is “sufficiently definite” if it shall “guide the [affected] individual in planning his own future conduct” (People v. Daniel, 168 Cal.App.2d Supp. 788, 792, 337 P.2d 247), or “enable those persons within its reach to understand and correctly apply its requirements” (Lorenson v. Superior Court, 35 Cal.2d 49, 60, 216 P.2d 859).   Under these criteria, a drinking driver is patently warned by the statute that his drinking must stop, before he has ingested the forbidden quantity.

Moreover, “ ‘ “[T]he Constitution does not require impossible standards”;  and all that is required is that the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices․” ․ “․ 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․” ․’ ” (Roth v. United States, 354 U.S. 476, 491–492, 77 S.Ct. 1304, 1312–1313, 1 L.Ed.2d 1498;  Eckl v. Davis, 51 Cal.App.3d 831, 849, 124 Cal.Rptr. 685.)  “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 draftsmen 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.’ ”   (People v. Vis, 243 Cal.App.2d 549, 555, 52 Cal.Rptr. 527, and see authority there collected.)  “Statutes such as the one before us must be given a reasonable and practical construction in accordance with the probable intent of the Legislature.”  (County of Nevada v. MacMillen, 11 Cal.3d 662, 672–673, 114 Cal.Rptr. 345, 522 P.2d 1345.)

And:  “Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakeably appears.”  (In re H., 2 Cal.3d 513, 519, 86 Cal.Rptr. 76, 468 P.2d 204.)

It is further noted that such a statute as this court has today declared unconstitutional, has been enacted throughout the states of our union and, so far as I have been able to determine, has there uniformly withstood close constitutional scrutiny.

I would uphold the constitutionality of Vehicle Code section 23152, subdivision (b).

FOOTNOTES

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

2.   Calculation depends upon a number of factors, including:  the weight of the individual;  the amount of alcohol ingested, and in what form;  the time elapsed since drinking commenced;  the speed of absorption of alcohol into the blood;  the rate at which alcohol is dissipated from the blood;  any germane physiological factors.  (Cf. generally Dubowski, Curt M. (Ph.D.) Alcohol and Traffic Safety:  U.S. Dept. HEW;  Public Health Service Publication # 1043, where the clearance rate of alcohol from the bloodstream in a study of 922 male subjects was found to vary from .006 to .04 per hour.)

3.   Compare the recent decision of the California Supreme Court in People v. Roder, supra, 33 Cal.3d 491, 189 Cal.Rptr. 501, 658 P.2d 1302 condemning the exclusive use of a conclusive presumption to obtain a criminal conviction.

4.   We pause to observe that it seems unarguably within the power of the Legislature to forbid driving after any recent ingestion of alcohol.   The problem before us is quite different.  (Cf. Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 84, 177 Cal.Rptr. 566, 634 P.2d 917.)

5.   We find in section 23152, subdivision (b) no guidelines governing the discretion of law enforcement officers in determining whether a subject detained for reasons unrelated to his driving ability should be subjected to chemical testing.   This also in our opinion creates grave constitutional problems with the statute as applied.  (Cf. People v. Mirmirani, supra, 30 Cal.3d 375, 382, 178 Cal.Rptr. 792, 636 P.2d 1130.)

6.   In view of our conclusion that the “(b)” section is unconstitutionally vague, we find it unnecessary to address the issue of enhancement under the challenged ordinance and its punishment provisions.

NEWSOM, Associate Justice.

RACANELLI, P.J., concurs.