Inglewood, 2nd Time DUI, 0.34% BAC, Prior DUI Dropped
Our client, age 40, was driving from California back to Texas. Before leaving, he decided to have a few drinks at one of his favorite bars. Unfortunately, he was driving a car that had a gas tank gauge that did not work, which he knew about, but did not fill up the gas tank before he left.
He did not even make it to the 405 Freeway, as his car ran out of gas and came to a stop on the Olive Street onramp to the 405. Our client, quite drunk, just left the car in the roadway and decided to take a nap in the nearby bushes.
After some period of time, which we suspect was quite short, he returned to his car to see that it was surrounded by police officers and a tow truck. He wanted to know what was happening to his car, and if towed, where he could retrieve it later. He told the officers that he just ran out of gas. It was about 8:00 p.m.
Officers described our client as looking disheveled and having leaves in his hair. They immediately noticed the odor of alcohol and thought he was a homeless person. Our client then showed the police the car keys in his pocket and said he was the driver, but that he last drove about four hours earlier.
Officers arrested our client on suspicion of DUI and took him to the police station, where our client agreed to a blood test and was kept in the jail for about 16 hours to sober up, before he was released.
After being released, he completed his move to Dallas and then called up Greg Hill & Associates. He then described what had happened. The client did not know his BAC since it was a blood test and explained that he had one prior DUI from California about 15 years earlier and another prior DUI from Texas about five years ago. The client wanted to know what kind of punishment he might face.
Greg explained that the new case would probably be alleged as a second-time DUI, although Greg said it merited looking further into the second DUI because Texas law may define DUI in a far broader way than California law. If that were the case, the Texas prior may not “count” as a DUI under California law because otherwise, one could be punished more severely for conduct that California does not recognize as DUI.
This issue had more urgency to our client because if guilty of a second-time DUI, he would have to come back to California to serve his jail time. A jail in another state will not accept a person to serve a sentence from California.
Greg then appeared in the Inglewood Courthouse for the client’s arraignment and as expected, the complaint alleged a second-time DUI. Greg then looked up the law in Texas for this code section that our client’s prior conviction was under.
It was under Texas Penal Code § 49.09(a). Greg read that § 49.09 prohibits “operating of a motor vehicle while intoxicated, . . . operating an aircraft while intoxicated, . . . operating a watercraft while intoxicated, or . . . operating or assembling an amusement ride while intoxicated.”
Greg then prepared a motion to strike a prior enhancement, explaining that Under California Vehicle Code § 23626, an out of state prior conviction may be alleged as a prior conviction for DUI as a sentencing enhancement as follows:
A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code for the purposes of this code."
The motion then pointed out that not every out-of-state conviction for what might be regarded as DUI can serve as a prior conviction under California Penal Code § 23626 for purposes of imposing a sentencing enhancement under Vehicle Code § 23540. People v. Crane, supra, 142 Cal.App.4th at 433. The Crane court held that "[e]nhancement is only permissible when the conduct underlying the foreign conviction would meet all of the elements of the California offense."
Likewise, “if the out-of-state statute is broader than the California statute, it is not equivalent even if the out-of-state driver was convicted of the same conduct prohibited in California.” Draeger v. Reed (1999) 69 Cal.App.4th 1511, at 1519.
To the great credit of the Inglewood City Attorney, he read our motion and realized the error in alleging the Texas prior as a prior. Instead of forcing a hearing on the client’s motion, he amended the complaint to strike the Texas prior allegation and we then resolved the DUI here.
The client, whose BAC was 0.34% by the blood test, agreed to three years of informal probation, a fine of $390 plus penalties and assessments (credit two days in actual custody, decreasing the total fine to $844), the nine-month alcohol awareness program (AB 1353) and ten Alcoholics Anonymous (AA) meetings.
The client was very happy with this motion Greg filed and the end result.
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