Drunk driving under Vehicle 23152(a) and 23152(b) are separate offenses and a driver may be convicted of both

People v. Grabham (Cal. Ct. App., Aug. 31, 2021, No. A160384) 2021 WL 3909628, at *1

Summary:  Grabham was convicted of violating Vehicle Code 1 section 23152, subdivision (a) (section 23152(a)) and section 23152, subdivision (b) (section 23152(b)). Grabham arguesd that section 23152(a) and (b) are different statements of the same offense and Penal Code section 954 trequires vacatur of one of his convictions. The First Appellate District concluded that section 23152(a) and (b) are separate offenses and Grabham may properly be convicted of both. 

Facts: California Highway Patrol Officers initiated  a traffic stop due to Grabham’s cellphone use and expired registration. After smelling alcohol coming from the truck and observing that Grabham’s eyes were red and watery and that his speech was slurred a full DUI investigation was conducted.

 Field sobriety tests indicated Grabham was under the influence of alcohol. Grabham was arrested and a breath test was administered. The first test reported a blood alcohol content (BAC) of 0.12, and the second test reported a BAC of 0.11. 

A jury found Grabham guilty of driving under the influence (DUI) of an alcoholic beverage (§ 23152(a)) and driving with a 0.08 BAC (§ 23152(b)). Grabham was placed on three years of probation on the condition that he participate in a residential treatment program.

Grabham appealed claiming that section 23152(a) and section 23152(b) constitute a single offense and asked that one of his convictions be vacated pursuant to Penal Code section 954. People v. Subramani (1985) 173 Cal.App.3d 1106, 219 Cal.Rptr. 644 (Subramani) and People v. Duarte (1984) 161 Cal.App.3d 438, 207 Cal.Rptr. 615 (Duarte) addressed subdivisions (a) and (b) of section 23153, a nearly identical statute providing the felony counterpart to section 23152, and both courts held that section 23153, subdivisions (a) and (b) describe separate offenses. 

Vehicle Code Section 23152

Section 23152(a) makes it unlawful for “a person who is under the influence of any alcoholic beverage to drive a vehicle.” Under this provision, the People must prove that: “(1) a person, (2) while under the influence of alcohol, (3) drove a vehicle.” (People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 5, 110 Cal.Rptr.2d 930 (McNorton); CALCRIM No. 2110.) A person is “under the influence” of alcohol when he or she “ ‘no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.’ ” (People v. Weathington (1991) 231 Cal.App.3d 69, 78, 282 Cal.Rptr. 170. 

Section 23152(b)) makes it unlawful for “a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” Under this provision, the People must prove that: (1) the defendant drove a vehicle; and (2) when the defendant drove the vehicle, his or her BAC was 0.08 percent or more. (CALCRIM No. 2111; see McNorton, supra, 91 Cal.App.4th Supp. at p. 5, 110 Cal.Rptr.2d 930.)

Penal Code Section 954

Penal Code section 954 provides:  “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts …. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged.”

The California Supreme Court has repeatedly held that a single act can support multiple charges and multiple convictions. (People v. White (2017) 2 Cal.5th 349, 354, 212 Cal.Rptr.3d 376, 386 P.3d 1172 (White); People v. Vidana (2016) 1 Cal.5th 632, 637, 206 Cal.Rptr.3d 556, 377 P.3d 805 (Vidana); People v. Sanders (2012) 55 Cal.4th 731, 736, 149 Cal.Rptr.3d 26, 288 P.3d 83.) Penal Code section 954, however, prohibits “multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.” (Vidana, at p. 650, 206 Cal.Rptr.3d 556, 377 P.3d 805; see id. at pp. 637, 647, 206 Cal.Rptr.3d 556 

Whether two statutes or statutory provisions describe the same offense “turns on the Legislature’s intent in enacting [the] provisions, and if the Legislature meant to define only one offense, we may not turn it into two.” (People v. Gonzalez (2014) 60 Cal.4th 533, 537, 179 Cal.Rptr.3d 1, 335 P.3d 1083 (Gonzalez).) 

The differing consequences of violations of various subdivisions of section 23152 indicate that section 23152(a) and 23152(b) describe different crimes. Although all subdivisions of section 23152 carry the same punishment under sections 23536, 23540, and 23546, the Vehicle Code establishes that commercial driving restrictions consequent to violations of section 23152 apply to convictions under subdivisions (a)–(d), but not subdivisions (e)–(g). (§§ 15300, 15302.) The Legislature’s detailing of specific consequences for “some, but not all” subdivisions of section 23152 suggests that the different subdivisions describe separate offenses. (White, at p. 358, 212 Cal.Rptr.3d 376, 386 P.3d 1172.)

Subdivisions (a) and (b) of section 23152 are not alternative theories of liability. Section 23152(b) is a “new and separate offense” that has different elements and that requires different (and lesser) evidence to sustain a conviction than section 23152(a). (See Vidana, supra, 1 Cal.5th at p. 644, 206 Cal.Rptr.3d 556, 377 P.3d 805; Burg, supra, 35 Cal.3d at pp. 265–266, 198 Cal.Rptr. 145, 673 P.2d 732; Hamilton, supra, 103 Cal.App.4th at p. 363, 126 Cal.Rptr.2d 652.)

A defendant may violate section 23152, subdivision (b) without violating subdivision (a). Here, the CHP Officer initiated a traffic stop because of defendant’s cellphone use and expired registration, not because he suspected defendant of driving while intoxicated. Although Grabham’s BAC was above the statutory limit, the officer saw signs of impaired driving while following Grabham.

Notwithstanding our conclusion that Penal Code section 954 permits Grabham to be convicted of violating both subdivisions of section 23152, Penal Code section 654 prohibits his being punished for both offenses. (People v. Jones (2012) 54 Cal.4th 350, 360, 142 Cal.Rptr.3d 561, 278 P.3d 821 [section 654 prohibits multiple punishment where two convictions were based on single act].) Grabham does not argue that his sentence violates Penal Code section 654.

The judgment was affirmed.