San Diego DUI criminal defense lawyer news

May 7, 2008

People v. Smith (2008) , Cal.App.4th

II. Application of Collateral Estoppel in the Context of Per Se and
Generic DUI Offenses

A. Our task is to determine whether the collateral estoppel rule should
be applied in a particular case with " 'with an eye to all the
circumstances of the proceedings,' " and with realism, rationality,
and practicality. ( Ashe, supra , 397 U.S. at p. 444; Santamaria,
supra , 8 Cal.4th at pp. 920, 926.) A practical application of
collateral estoppel in the context of this case necessarily requires a
consideration of the manner in which the Legislature has defined
offenses involving persons who drive with alcohol in their system.

The Legislature has created two offenses to punish unsafe driving
resulting from a driver's alcohol consumption: (1) driving while under
the influence of alcohol (§ 23152, subd. (a) (generic DUI)), and (2)
driving with a blood alcohol level of .08 or more (§ 23152, subd. (b)
(per se DUI)). (See People v. Bransford (1994) 8 Cal.4th 885 , 888.)
The two offenses are related because they pertain to the same criminal
event, but are {Slip Opn. Page 11} distinct because they have
different elements of proof--i.e., the generic DUI offense requires a
showing of driving impairment but does not require a showing of any
particular blood alcohol level, and the per se DUI offense requires a
showing of a .08 or more alcohol level but does not require a showing
of driving impairment. Although both punish the same act--unsafe
driving caused by alcohol consumption--that act can be established by
proving either impairment or a blood alcohol level of .08 or higher.
The creation of an offense based on a .08 or greater blood alcohol
level (without requiring proof of actual driving impairment) passes
constitutional muster because scientific evidence shows driving
impairment at this level of alcohol. (See Burg v. Municipal Court
(1983) 35 Cal.3d 257 , 267-268.) Concomitantly, because scientific
evidence shows impairment at the .08 level, when a defendant is
charged with generic DUI the Legislature has authorized a jury
instruction setting forth a permissive presumption allowing the jury
to infer the ultimate fact of driving under the influence from the
basic {Slip Opn. Page 12} fact of a .08 or more blood alcohol level.
(§ 23610; People v. Milham (1984) 159 Cal.App.3d 487 , 503-505; see
CALCRIM 2110.) fn. 2

Thus, although the generic and per se DUI offenses are distinct, they
are interrelated, and it is in this context that we must consider
whether collateral estoppel principles apply.

In the first trial the jury found the prosecution could not prove
beyond a reasonable doubt that Smith had a blood alcohol level of .08
or more while driving, but could not agree whether he was under the
influence of alcohol while driving. Double jeopardy principles did not
bar retrial on the generic DUI count because its elements are distinct
from per se DUI. However, collateral estoppel principles could apply
to bar issues (1) that were necessarily decided by the first jury, and
(2) that are issues of ultimate fact in the second trial. (
Santamaria, supra , 8 Cal.4th at pp. 916, 922.) fn. 3

Here, the first collateral estoppel component is clearly met. The jury
in the first trial necessarily decided that the prosecution could not
prove beyond a reasonable doubt that Smith drove with a blood alcohol
level of .08 or more. Unlike the situation in Santamaria , where the
jury could have rejected the knife use finding based on a doubt {Slip
Opn. Page 13} whether the defendant committed the murder by personally
using the knife or as an aider and abettor, here the sole reason the
jury could have rejected a guilty verdict on the per se DUI count was
that it found that the prosecution had not proven Smith's blood
alcohol level was at least .08 while driving.

As to the "ultimate fact" component, it would appear, at first blush,
that the jury's rejection of the per se DUI count does not implicate
collateral estoppel principles. At the second trial the prosecution
had to prove impairment as a result of alcohol consumption; it did not
need to prove that Smith had a blood alcohol level of .08 or more
while driving. {Slip Opn. Page 14}

Thus, the fact determined at the first trial (rejection of the .08
finding) was, at least facially, not an issue of ultimate fact in the
second trial. But such a strict construction of the ultimate fact
requirement would fail to consider the interrelated nature of the two
offenses--i.e., (1) they involve the precise same criminal event, and
(2) by virtue of the section 23610 presumption, a violation of per se
DUI (.08 or more blood alcohol level) supports an inference of
impairment establishing a violation of generic DUI.

Additionally, such a strict construction ignores the evidentiary
impact of the section 23610 presumption in a generic DUI trial where,
as here, the only disputed issue is impairment. Although a jury
deciding whether a defendant is guilty of driving while impaired is
not required to rely on a .08 finding, that finding, coupled with the
presumption instruction, plays a pivotal--if not decisive--role in the
jury's determination of the charge. For all practical purposes,
permitting the second jury to consider whether the defendant had a .08
or more blood alcohol level while driving allowed the second jury to
decide an issue that was virtually dispositive of the ultimate fact,
even though that predicate fact was necessarily adjudicated and
rejected in the first trial. When considered in this context,
collateral estoppel is clearly implicated.

At the first trial, the prosecution proffered two different crimes in
an effort to punish the defendant for his alleged unsafe driving
arising from the consumption of alcohol. The first jury rejected the
crime premised on the .08 or higher blood alcohol level allegation (§
23152, subd. (b)), but could not reach a conclusion regarding the
crime premised on an impairment allegation (§ 23152, subd. (a)). Thus,
the whole purpose of the second trial was to determine whether the
prosecution could prove "drunk driving" {Slip Opn. Page 15} under the
impairment theory, and to do so without relying on the .08 blood
alcohol level finding rejected by the first jury and without the
benefit of the inference of impairment attendant to such a finding.

Because collateral estoppel principles were not applied, instead of
advising the jury of the limitation arising from the first jury's
verdict, the second jury was told it could render a guilty verdict
premised on the very finding rejected by the first jury: i.e., that
Smith drove with a blood alcohol level of .08 or more. Indeed, to the
extent the second jury based its verdict on a finding that the
defendant drove with a .08 or more blood alcohol level, the first
jury's acquittal was effectively negated.

Given that per se and generic DUI concern the same criminal event,
and that a finding establishing per se DUI supports an inference that
can establish generic DUI, this case strongly implicates the core
collateral estoppel concern of "protect[ing] a man who has been
acquitted from having to 'run the gantlet' a second time." ( Ashe,
supra , 397 U.S. at p. 446.) This case is distinctively different from
Catlin , where the court found no unfairness in requiring relitigation
of an issue resolved in an uncharged offense trial because the
defendant was on trial for an entirely distinct criminal event. Here,
it was inherently unfair to require Smith to relitigate an issue that
a jury resolved in his favor in a trial involving the same criminal
event , and which issue (if resolved against him) could have been
highly influential or even dispositive on the ultimate issue of fact
in the retrial. Further, unlike the situation in Santamaria , Smith
was seeking to prevent the prosecution from pursuing a theory that was
rejected in the context of an acquittal of the main criminal event,
not in the context of a conviction of the main criminal event. {Slip
Opn. Page 16}

Applying the collateral estoppel protection in a practical, realistic
manner, we conclude that the first jury's finding that the prosecution
did not prove the defendant drove with a .08 or more blood alcohol
level is binding on the prosecution in the second trial and cannot be
relitigated.

B.

Having concluded that collateral estoppel applied at the second trial
because the first jury necessarily decided the .08 issue and the .08
issue equated with an issue of ultimate fact at the second trial, we
now address the three specific contentions of error raised by Smith:
(1) the .17 blood alcohol level evidence should have been excluded;
(2) the jury should not have been instructed regarding the permissive
presumption of driving under the influence arising from a .08 or more
blood alcohol level; and (3) the jury should have been instructed to
presume Smith's blood alcohol level was less than .08 while driving.

Our holding that collateral estoppel barred relitigation of the issue
of whether Smith drove with a .08 or more blood alcohol level does not
bar use of the evidence that his blood alcohol level was .17 about one
hour after the accident. Based on the expert testimony regarding
alcohol absorption and Smith's own testimony that he drank alcohol
after the accident, the first jury's finding that the prosecution
could not prove Smith had at least a .08 blood alcohol level while
driving did not necessarily constitute a finding that he did not have
a .17 blood alcohol level about one hour after the accident. Indeed,
Smith concedes that he had a .17 blood alcohol level about one hour
after the accident and attributes it to his claim that after the
accident he consumed alcohol he had in his car. {Slip Opn. Page 17}

Further, even though the first jury rejected the .08 finding, the
evidence that Smith's blood alcohol level was .17 about one hour after
the accident was still relevant to the prosecution's case on the issue
of whether he was impaired at the time of driving. The jury's finding
that the prosecution could not prove beyond a reasonable doubt that
Smith drove with a blood alcohol level of .08 or more does not
preclude a finding that Smith drank a substantial amount of alcohol
before the accident, even though the prosecution could not show it had
reached the .08 level while he was driving. For example, the second
jury could find that Smith's postaccident .17 blood alcohol level
supported an inference that he drank a substantial amount of alcohol
both before and after the accident, and that (when considered with all
the evidence) he had enough alcohol in his system while driving to
cause impairment even though his blood alcohol level was not shown to
have reached .08 while driving.

However, given the collateral estoppel bar operative because of the
first jury's acquittal on the per se DUI count, the second jury should
not have been instructed regarding the permissive presumption of
driving under the influence arising from a .08 or more blood alcohol
level. The permissive presumption, which arises "[i]f the People have
proved beyond a reasonable doubt that the defendant's blood alcohol
level was .08 percent or more" (CALCRIM No. 2110), is premised on a
finding directly contrary to the {Slip Opn. Page 18} finding rejected
by the first jury. fn. 4

Additionally, because the jury was presented with the .17 blood
alcohol level evidence, the jury should have been instructed that it
must presume Smith's blood alcohol level was not .08 or more at the
time he was driving. fn. 5 In order to consider the implications of
the .17 blood alcohol evidence, the jury necessarily needed to
consider what level of blood alcohol can cause impairment. Relevant to
this issue, the jurors were aware from expert witness testimony and
the prosecutor's argument that the legal blood alcohol limit for
driving is below .08, and the jury was instructed on the permissive
presumption of driving under the influence arising from a .08 or more
blood alcohol level. fn. 6 Based on the .17 blood alcohol evidence and
their knowledge of the .08 {Slip Opn. Page 19} threshold, the jurors
could readily draw an inference that Smith had a .08 or greater blood
alcohol level while driving, and in turn readily infer that he drove
under the influence. A special instruction effectively advising the
jury about the first jury's acquittal on the .08 count was necessary
to ensure that the second jury did not improperly rest its verdict on
a finding that was expressly rejected by the first jury. fn. 7

C.

The erroneous failure to preclude the second jury's consideration of
the .08 issue was prejudicial under any standard of review. (See
Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond
reasonable doubt standard for federal constitutional error]; People v.
Watson (1956) 46 Cal.2d 818 , 836 [no reasonable probability of
different result standard for state law error].) Because a finding
that the defendant drove with a .08 or more blood alcohol level
carries such a strong inference of driving impairment and the jury was
expressly instructed regarding this inference, there is a reasonable
probability that had this theory been foreclosed, the second jury
would have reached a different verdict. Although there was sufficient
evidence to support a finding that Smith was driving under the
influence of alcohol, this is an issue that a jury must resolve
without {Slip Opn. Page 20} being permitted to rely on a finding that
Smith drove with a .08 or more blood alcohol level. fn. 8