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16 Cal.4th 1210 (1997)

THE PEOPLE, Plaintiff and Respondent,
v.
GUY EDWARD SNOOK, Defendant and Appellant.

Docket No. S056760.

Supreme Court of California.

December 18, 1997.

1213*1213 COUNSEL

Jeff Brown, Public Defender, Paul F. DeMeester, Deputy Public Defender, and Susan Bookout, under appointments by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle Marie Boustany, Laura W. Halgren, Esteban Hernandez and Demetra P. Lewis, Deputy Attorneys General, for Plaintiff and Respondent.

Dennis L. Stout, District Attorney (San Bernardino), Grover D. Merritt and Mary L. Andonov, Deputy District Attorneys, as Amici Curiae on behalf of Plaintiff and Respondent.

OPINION

BROWN, J.

Driving a vehicle while under the influence of alcohol or drugs is a misdemeanor. (Veh. Code, § 23152; see id., §§ 23160, 23165, 23170; all further statutory references are to the Vehicle Code unless otherwise noted.) Driving under the influence (DUI) may be charged as a felony rather than a misdemeanor when the offense occurs within seven years of three or more separate DUI violations which resulted in convictions. (§ 23175, subd. (a); hereafter section 23175(a).)

In this case we decide what happens when DUI convictions do not follow the chronological sequence in which the offenses were committed. Does the enhanced penalty still apply when the conviction for the first offense comes last? And if the increased penalty is imposed, would it violate the ex post facto clauses of the state and federal Constitutions?

We conclude the Legislature intended to subject repeat DUI offenders to enhanced penalties regardless of the order in which the offenses were committed and the convictions obtained, and the imposition of such a penalty does not violate any constitutional prohibition against ex post facto laws. Accordingly, the judgment of the Court of Appeal is reversed.

I. FACTS AND PROCEDURAL HISTORY

On April 6, 1992, defendant was arrested for DUI. He was released from custody with a promise to appear in municipal court on May 6, 1992. On April 24, 1992, a three-count misdemeanor complaint was filed, charging 1214*1214 defendant with DUI(§ 23152, subd. (a)); driving a vehicle while having 0.08 percent alcohol in the bloodstream (§ 23152, subd. (b)); and driving with a suspended driver's license (§ 14601.1, subd. (a)). Defendant appeared in court on May 6 as promised, was informed the court had no record of his matter and was not detained, but a bench warrant was later issued.

For the next 22 months, no further proceedings were held in connection with the April 6, 1992, offense. In the meantime, defendant was arrested for DUI on June 11, 1992, two months after defendant had committed his first DUI offense, and twice the following year, on September 23, 1993, and October 25, 1993. Defendant was convicted of all charges arising from the three arrests on October 2, 1992, January 25, 1994, and February 25, 1994, respectively.

When action resumed on the April 6, 1992, violations, the original misdemeanor complaint was amended to charge count Nos. 1 and 2 as felonies under section 23175(a), and an information was filed on April 27, 1994. Defendant admitted the truth of the allegations of three separate DUI violations occurring within seven years of the charged offenses. On July 26, 1994, after court trial, defendant was found guilty of the April 6, 1992, offenses. Imposition of sentence was suspended and defendant was placed on three years' probation on condition he spend three hundred sixty-five days in local custody.

Defendant appealed his conviction on various grounds, arguing primarily the 22 months between his offenses and trial constituted a denial of the constitutional right to speedy trial. The Court of Appeal requested supplemental briefing from the parties on whether the section 23175(a) allegations constituted an ex post facto or other impermissible application of law because the separate violations resulting in convictions occurred after the April 6, 1992, offenses. Defendant made the same argument unsuccessfully in the trial court in a motion to dismiss, but did not raise the issue on appeal.

In the unpublished part of the Court of Appeal's opinion, the court rejected defendant's speedy trial claim. In the portion of its opinion certified for publication, the Court of Appeal held section 23175(a) could not be applied to increase defendant's present offense from a misdemeanor to a felony, and struck the enhanced penalty. Characterizing section 23175(a) as a general recidivist statute, the court determined the provision could not be used to increase the penalty for a first offense as a result of subsequent offenses. In the Court of Appeal's view, an interpretation of section 23175(a) permitting a penalty enhancement for a first offense on the basis of later-committed acts cannot further the purpose of a recidivist statute because the enhanced penalty could not deter earlier conduct. Consequently, 1215*1215 the court construed section 23175(a) to permit the enhanced penalty only for subsequent offenses. The Court of Appeal also concluded that applying section 23175(a) to enhance the penalty of defendant's first offense based on later-committed acts would violate the constitutional prohibition against ex post facto laws.

We granted the People's petition for review.

II. DISCUSSION

A. Construction of Section 23175(a)

(1a) Under the Court of Appeal's construction, in order to charge DUI as a felony, the offense must have occurred after the commission of the three or more separate violations triggering the enhanced penalty. In reviewing the decision of the Court of Appeal, we consider anew the proper interpretation of section 23175(a).

(2a) The court's role in construing a statute is to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal. Rptr.2d 903, 893 P.2d 1224]; see also Alexander v.Superior Court (1993) 5 Cal.4th 1218, 1226 [23 Cal. Rptr.2d 397, 859 P.2d 96].) In determining the Legislature's intent, a court looks first to the words of the statute. (People v. Pieters (1991) 52 Cal.3d 894, 898 [276 Cal. Rptr. 918, 802 P.2d 420].) "[I]t is the language of the statute itself that has successfully braved the legislative gauntlet." (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal. App.4th 1233, 1238 [8 Cal. Rptr.2d 298].)

(1b) When looking to the words of the statute, a court gives the language its usual, ordinary meaning. (Alexander v. Superior Court, supra, 5 Cal.4th at p. 1225; Moyerv. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal. Rptr. 144, 514 P.2d 1224].) If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs. (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal. Rptr.2d 77, 906 P.2d 1232]; Kizer v. Hanna (1989) 48 Cal.3d 1, 8 [255 Cal. Rptr. 412, 767 P.2d 679].)

In relevant part, section 23175(a) provides: "If any person is convicted of a violation of Section 23152 and the offense occurred within seven years of three or more separate violations of [any of three enumerated DUI offenses], or any combination thereof, which resulted in convictions, that person shall be punished by imprisonment in the state prison, or in the county jail for not less than 180 days nor more than one year, and by a fine of not less than 1216*1216 three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000)."

Section 23175(a) does not require the three or more triggering offenses to precede commission of the DUI offense underlying the present charge. By its terms, the statute requires only that the three or more "separate violations" which resulted in convictions occurred within seven years of the charged offense. A "separate" violation is a violation that is "unconnected; not united or associated; distinct." (Webster's New Internat. Dict. (2d ed. 1959) p. 2281.)

Moreover, when read in the context of the entire DUI penalty enhancement scheme to which section 23175 belongs, it is clear the term "separate violations" means that the three or more DUI offenses which resulted in convictions must simply be different from the offense at issue in the present proceeding, and not merely different from one another. The Legislature has employed the term "separate violation" or "separate violations" in all of the statutes increasing the penalties for repeat DUI offenders. (See §§ 23165 [penalty for conviction of DUIenhanced when offense occurred within seven years of a "separate violation" ofDUI], 23170 [same, but for two "separate violations"], 23185 [enhanced penalty for person convicted of DUI and causing bodily injury when offense occurred within seven years of a "separate violation" of DUI] and 23190 [same, but for two "separate violations"].) A "separate violation" as it appears in the penalty enhancement provisions triggered by only one DUI conviction (§§ 23165, 23185) clearly describes the relationship between the present offense and the offense triggering an enhanced penalty. There is nothing to indicate the Legislature intended this term to have any different meaning in section 23175(a). (Cf. Peoplev. Wells (1996) 12 Cal.4th 979, 985 [50 Cal. Rptr.2d 699, 911 P.2d 1374][recognizing principle that, absent contrary indications, Legislature's use of similar term in related statute reflects legislative intent that same meaning apply].)

Finally, we observe that the statute, by its terms, permits a DUI offense to be charged as a felony if the violation occurred within seven years "of" three or more other separate DUI violations that resulted in convictions, thus allowing convictions for offenses that occurred before or after the offense underlying the present conviction to be used to trigger an enhanced penalty. It would seem that if the Legislature had intended to count only "separate violations" that occurred prior to the offense presently at issue, it would have used the word "after" rather than "of."

(2b) If the statutory language is clear and unambiguous, the provision should be applied according to its terms without further judicial construction 1217*1217 so long as the literal meaning is in accord with the purpose of the statute. (Lungren v.Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal. Rptr. 115, 755 P.2d 299].) (1c) As the legislative history of section 23175 amply demonstrates, in enacting and amending the language of section 23175 to provide an enhanced penalty on conviction of a DUI offense occurring within seven years of three or more separateDUI violations, the Legislature "meant what it said."

When first enacted in 1983, former section 23175 provided for enhanced punishment when a defendant was convicted of DUI and the offense occurred "within five years of three or more prior offenses which resulted in convictions of violations of [enumerated DUI offenses]...." (Stats. 1983, ch. 637, § 3, p. 2546.) In 1984, shortly after the enactment of former section 23175, the Legislature amended that provision and four other DUI penalty enhancement statutes by substituting the words "separate violations" for "prior offenses." (Stats. 1984, ch. 1205, §§ 1-5, pp. 4129-4130.)

The legislation amending former section 23175 in 1984 also added section 23217 to the Vehicle Code to explain why "separate violations" replaced "prior offenses" in former section 23175 and the other enhanced penalty provisions amended in the same act. (Stats. 1984, ch. 1205, § 14, p. 4136.) Section 23217 read as follows when enacted:

"The Legislature finds and declares that some repeat offenders of the prohibition against driving under the influence of alcohol... may be escaping the intent of the Legislature to punish the offender with progressively greater severity if the offense is repeated one or more times within a five-year period. This situation may occur when a conviction for a subsequent offense occurs before a conviction is obtained on an earlier offense.

"The Legislature further finds and declares that the timing of court proceedings should not permit a person to avoid aggravated mandatory minimum penalties for multiple separate offenses occurring within a five-year period. It is the intent of the act enacting this section, in changing the word `prior' to the word `separate,' to provide that a person be subject to enhanced mandatory minimum penalties for multiple offenses within a period of five years, regardless of whether the convictions are obtained in the same sequence as the offenses had been committed."[1] (§ 23217, as added by Stats. 1984, ch. 1205, § 14, p. 4136.)

1218*1218 Section 23217 expresses the Legislature's concern that some DUI offenders were escaping enhanced punishment for multiple offenses when their convictions did not occur in the same order as the offenses were committed. The Legislature sought to remedy this situation by defining the offenses triggering enhancement as "separate violations" rather than as "prior offenses." By enacting these amendments, the Legislature did away with the requirement of a sequential relationship between the offense underlying the present conviction and the three or more offenses triggering an enhanced penalty under section 23175(a), thereby broadening the reach of the enhanced penalty provisions. (Cf. People v. Albitre(1986) 184 Cal. App.3d 895 [229 Cal. Rptr. 289] [term "prior offenses" in former section 23190 refers to timing of offenses which trigger enhanced punishment].) Specifically changing the language of the statute from "prior offenses" to "separate violations" evidences the Legislature's purposeful departure from the traditional approach taken in habitual offender statutes. (Cf. People v. Balderas (1985) 41 Cal.3d 144, 201 [222 Cal. Rptr. 184, 711 P.2d 480] [applying rationale of habitual offender statutes that offender undeterred by prior experience in criminal justice system is deserving of more severe punishment]; see also People v. McGee(1934) 1 Cal.2d 611, 614 [36 P.2d 378]; People v. Espinoza (1979) 99 Cal. App.3d 59, 74 [159 Cal. Rptr. 894]; People v. Diaz (1966) 245 Cal. App.2d 74, 77-78 [53 Cal. Rptr. 666].)

The legislative materials available to lawmakers who considered Assembly Bill No. 3833 in 1984 (which became chapter 1205 of the 1984 Statutes) also strongly suggest section 23175(a) is aimed at punishing more harshly the person who commits multiple DUI offenses, regardless of the sequence in which the offenses were committed and the convictions obtained. As described in bill analyses prepared by several legislative committees, Assembly Bill No. 3833 sought to "prevent a person from being able to circumvent the enhanced penalties for repeatDUI offenses by manipulating the timing of court proceedings," and "close a loophole in the law that allows some repeat DUI offenders to escape enhanced punishments mandated by law for a repeat offense." (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 2; see also Assem. Crim. Law & Pub. Safety Com., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) pp. 1-2; and see Sen. Republican Caucus, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 2; cf. Legis. Analyst, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 1 [because current law bases enhanced penalties onprior offenses, repeat offender may receive lower fine or sentence if court proceedings for prior offense are delayed].) As these analyses explained to legislators, by changing the words "prior offenses" to 1219*1219 "separate violations," a later-obtained conviction can be punished by the enhanced penalty for a multipleDUI offense regardless of when that offense occurred. (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 3; see also Assem. Crim. Law & Pub. Safety Com., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 1.)

Defendant argues nonetheless the legislative materials support the Court of Appeal's construction of section 23175(a). Defendant points to a statement in one committee bill analysis that Assembly Bill No. 3833 was meant "to prevent a person from being able to circumvent the enhanced penalties for repeat DUIoffenses by manipulating the timing of court proceedings" (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 2, italics added), and a statement in an enrolled bill report that the Legislature "declares the intent for DUIoffenders, convicted multiple times within a five-year period, [is] to suffer greater penalties for each succeeding offense." (Dept. of Health & Welfare, Enrolled Bill Rep., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) Sept. 7, 1994, p. 1, italics added.)

(2c) Legislative materials inform our construction of a statute only when the words of the statute are unclear (People v. Jones (1993) 5 Cal.4th 1142, 1146 [22 Cal. Rptr.2d 753, 857 P.2d 1163]), but a clear statement of intent may serve to confirm a provision's plain meaning. (1d) Here, although some of the language in these legislative materials, read in isolation, could be viewed as supporting the Court of Appeal's construction of section 23175(a), when read in light of the entire available legislative history, the statements do not support defendant's claim that the date of the commission of the offense, but not the date of conviction, should control application of section 23175(a). To the contrary. The Legislature's substitution of "separate violations" for "prior offenses" in former section 23175, its explanation for doing so in section 23217, and the legislative materials available to assist and inform the Legislature's consideration of Assembly Bill No. 3833, taken together, amply reflect the Legislature's goal of preventing the DUI offender from escaping an enhanced penalty for multiple offenses. They indicate moreover the Legislature's intention to punish all repeat DUI offenders harshly, regardless of the order in which offenses and convictions have occurred. In light of the statute's purpose, we conclude section 23175 must be read to permit imposition of an enhanced penalty on conviction of a violation of section 23152 if that offense was committed within seven years of three or more separate DUI violations resulting in convictions, regardless of the order in which the three separate DUI offenses occurred or the convictions were obtained.

In construing section 23175 to provide an enhanced penalty only for subsequent offenses, the Court of Appeal reasoned that imposing a penalty 1220*1220enhancement for a first offense on the basis of later-committed offenses could have no deterrent effect on past conduct. This rationale presumes a person can only be deterred from committing multiple DUI offenses by the threat of progressively harsher punishment for each subsequent DUI offense. However, in amending section 23175, the Legislature could reasonably have believed that closing the loophole that allowed some repeat offenders to avoid enhanced punishment would serve to increase the statute's overall deterrent effect. A person with DUI charges pending who knows he or she risks exposure to felony punishment if convicted of three other DUI offenses, in whatever order they were committed, may well refrain from driving under the influence again for fear of the consequences.

Moreover, to construe section 23175(a), as the Court of Appeal does, perpetuates the "loophole" the Legislature sought to close. Under the Court of Appeal's interpretation of section 23175(a), a defendant who committed four separate drunk driving offenses close in time could still escape the enhanced penalty by pleading guilty to the second, third and fourth offenses before going to trial on the first offense. This type of manipulation is precisely the situation the Legislature intended to remedy. (See § 23217.) Because the Court of Appeal's construction serves to defeat, rather than promote, the Legislature's purpose in amending former section 23175 in 1984, we decline to adopt it here. (People v. King (1993) 5 Cal.4th 59, 69 [19 Cal. Rptr.2d 233, 851 P.2d 27]; see also People v. Pieters, supra, 52 Cal.3d at pp. 898-901.)

B. Ex Post Facto

(3a) The Court of Appeal concluded its construction of section 23175(a) was compelled by the constitutional prohibition against ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) (4a) In deciding whether application of section 23175(a) to the circumstances of this case violates the ex post facto clause of the state and federal Constitutions, we begin by noting that we interpret the ex post facto clause in the California Constitution no differently than its federal counterpart. (See People v. McVickers (1992) 4 Cal.4th 81, 84 [13 Cal. Rptr.2d 850, 840 P.2d 955]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 295 [279 Cal. Rptr. 592, 807 P.2d 434].) Thus, United States Supreme Court precedent not only controls the federal constitutional question, but also provides persuasive authority as to whether a statute is an ex post facto law under California law. (People v.Helms (1997) 15 Cal.4th 608, 614 [63 Cal. Rptr.2d 620, 936 P.2d 1230].)

In Collins v. Youngblood (1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30], the court endorsed the view of its earlier decisions establishing that the 1221*1221 ex post facto clause prohibits three categories of legislative acts: any provision "`[1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed....'" (Id. at p. 42 [110 S.Ct. at p. 2719], quoting Beazell v. Ohio (1925) 269 U.S. 167, 169 [46 S.Ct. 68, 68, 70 L.Ed. 216]; cf. People v. McVickers, supra, 4 Cal.4th at p. 84.)

(3b) Focusing on the second category of prohibited legislative acts, those which make more burdensome the punishment for a crime after its commission, defendant argues the Court of Appeal correctly invoked the ex post facto clause in this case. Defendant points out that when he committed the April 6, 1992, offense, his crime was a misdemeanor, but at the time he was convicted of that offense, section 23175(a) made the crime a felony.

We reject defendant's argument. The increase in defendant's penalty in this case cannot be attributed to any change in law, since section 23175(a) was effective at the time defendant committed the instant offense. Rather, it was defendant's own conduct that ultimately increased his punishment. A self-inflicted change in defendant's status as a repeat offender does not constitute an ex post facto violation. The decisions of courts in other jurisdictions are in accord. (See Cornwellv. United States (D.C. 1982) 451 A.2d 628, 630; State v. Banks (1981) 105 Wis.2d 32 [313 N.W.2d 67, 76].)

(4b) Our conclusion is fully consistent with one of the primary purposes of the ex post facto clause: to prevent unforeseeable punishment. "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." (Weaver v.Graham (1981) 450 U.S. 24, 30 [101 S.Ct. 960, 965, 67 L.Ed.2d 17].) (3c) The portion of section 23175(a) relevant to this case has been in effect since 1985. At the time defendant committed his first offense in 1992, he was on notice that if he committed a DUI offense within seven years of three or more other DUI violations resulting in convictions, he could be subject to felony punishment. The mere fact that conviction of the offense that was first in time was obtained after he had committed the offenses triggering the enhanced penalty does not contravene the prohibition of the ex post facto clause.

III. CONCLUSION AND DISPOSITION

We conclude the Legislature intended to punish repeat DUI offenders with enhanced penalties, regardless of the order in which the offenses were 1222*1222committed or the convictions obtained. Moreover, imposition of an enhanced penalty on a fourth DUI conviction for an offense predating the triggering violations does not contravene the constitutional proscription against ex post facto laws, so long as the commission of the offense underlying the section 23175(a) charge occurred after the statute's 1984 amendment became effective.

The judgment of the Court of Appeal striking the allegations and true findings of three or more separate violations under section 23175(a) and remanding to the trial court for resentencing is reversed. The Court of Appeal is hereby directed to affirm the trial court's judgment in its entirety.

George, C.J., Mosk, J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.

[1] In 1986, the Legislature amended section 23175 (Stats. 1986, ch. 1117, § 6, p. 3934), and the otherDUI penalty enhancement provisions, substituting "seven years" for "five years" of a separate violation of the enumerated offenses. In 1988, section 23175 was further amended to make imprisonment in state prison an alternative to imprisonment in the county jail. (Stats. 1988, ch. 599, § 1, p. 2160; id., ch. 1553, § 2, p. 5580.) That provision was redesignated section 23175 (a) in 1990. (Stats. 1990, ch. 44, § 6, p. 255.)


8 Cal.4th 885 (1994)
884 P.2d 70
35 Cal. Rptr.2d 613

THE PEOPLE, Plaintiff and Respondent,
v.
DONALD E. BRANSFORD et al., Defendants and Appellants.

Docket No. S033486.

Supreme Court of California.

November 23, 1994.

887*887 COUNSEL

Gregg L. McDonough, Public Defender, under appointment by the Municipal Court, and Stephan Van Decker, Deputy Public Defender, for Defendants and Appellants.

Margaret H. Marr, Ed Kuwatch, John Halley, Esther R. Sorkin, Plourd & Breeze, John W. Breeze and Douglas E. Gee as Amici Curiae on behalf of Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Frederick R. Millar, Jr., Patti W. Ranger, Deputy Attorneys General, William E. Haynes, District Attorney, and Albert J. Hackworth, Deputy District Attorney, for Plaintiff and Respondent.

Michael R. Capizzi, District Attorney (Orange) and E. Thomas Dunn, Jr., Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.

OPINION

MOSK, J.

(1) We granted review in these consolidated matters to consider whether the trial court should have allowed defendants convicted of driving with 0.08 percent or more of alcohol in their blood to challenge 888*888 their breath-test results by showing that their personal ratio of breath-alcohol concentration to blood-alcohol concentration (the "partition ratio") differed from the standard partition ratio that breath-testing machines use to convert breath-alcohol readings into blood-alcohol equivalents. As will appear, we conclude the trial court correctly excluded such evidence, and we therefore affirm the judgment of the Court of Appeal to that effect.

Defendant Donald E. Bransford was arrested for drunk driving on August 18, 1991. He took a breath test, which showed a blood-alcohol concentration of 0.09 percent. A jury convicted him on October 22, 1992, of violating former Vehicle Code section 23152, subdivision (b) (hereafter section 23152(b)),[1] i.e., driving a vehicle while having 0.08 percent or more, by weight, of alcohol in the blood.

Defendant Ralph Maldonado was arrested on or about June 27, 1991. Although the record does not specifically so state, he also took a breath test. He was convicted on September 24, 1991, of violating section 23152(b).

Both defendants contended on appeal to the appellate department of the superior court and, following certification, to the Court of Appeal that the trial court improperly excluded the above described evidence of their personal partition ratios. The Court of Appeal rejected the contention and affirmed the judgments.

In Burg v. Municipal Court (1983) 35 Cal.3d 257 [198 Cal. Rptr. 145, 673 P.2d 732] (Burg), we reviewed the history of the Legislature's initial responses to the problem of drunk driving, and upheld the first California statute to criminalize the act of driving with a specified percentage of alcohol in the blood.[2] We held that the statute defined the "new and separate offense" of driving with a prohibited blood-alcohol concentration (35 Cal.3d at p. 265), and that it was a valid exercise of the police power and was not void for vagueness (id. at pp. 266-273).

In 1989, in the immediate predecessor to the statute under which defendants were convicted, the Legislature lowered the prohibited blood-alcohol concentration from 0.10 percent to 0.08 percent.[3] Because the statute continued to define the offense solely in terms of "grams of alcohol per 100 889*889 milliliters of blood," the prosecution continued to convert breath-test results into equivalent readings per 100 milliliters of blood. The relevant regulation of the Department of Health Services required that such conversion use a standard partition ratio treating the amount of alcohol per 210 liters of breath as equivalent to the amount of alcohol per 100 milliliters of blood. (Cal. Code Regs., tit. 17, § 1220.4, subd. (f).)[4]

Many variables, however, can affect the actual ratio of an individual's breath-alcohol concentration to blood-alcohol concentration. These variables include body temperature, atmospheric pressure, medical conditions, sex, and the precision of the measuring device. (Thompson, The Constitutionality of Chemical Test Presumptions of Intoxication in Motor Vehicle Statutes (1983) 20 San Diego L.Rev. 301, 327; Annot. (1991) 90 A.L.R.4th 155, 160.) Changes in these variables may result in a difference between an individual's actual blood-alcohol level and the blood-alcohol level determined by applying the standard partition ratio to the breath-test results.

Courts therefore allowed defendants charged under the predecessor statute to attack breath-test results on the basis of this variability. Defendants were initially allowed to demonstrate only that their personal partition ratio differed from the standard partition ratio. (See, e.g., People v. Pritchard (1984) 162 Cal. App.3d Supp. 13, 17 [209 Cal. Rptr. 314]; People v. Herst (1987) 197 Cal. App.3d Supp. 1, 3-4 [243 Cal. Rptr. 83].) They would do so by simultaneously measuring their breath-alcohol concentration and blood-alcohol concentration over a period of time. (See, e.g., People v. Cortes (1989) 214 Cal. App.3d Supp. 12, 21 [263 Cal. Rptr. 113] (Cortes); People v. Lepine (1989) 215 Cal. App.3d 91, 94 [263 Cal. Rptr. 543] (Lepine).) Later courts also allowed defendants to demonstrate that partition ratios differ among individuals generally. (See, e.g., Lepine, supra, 215 Cal. App.3d at p. 101.) Defendants would usually do so by having an expert testify that the standard partition ratio is merely an approximation and that different individuals have different personal partition ratios. (See, e.g., Lepine, supra, 215 Cal. App.3d at p. 101; Cortes, supra, 214 Cal. App.3d at p. Supp. 19.)

Defendants here, however, were convicted under section 23152(b), not its predecessor. By the time of their arrests, the Legislature had amended the predecessor statute by adding the following italicized language:

"It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

890*890 "For purposes of this subdivision, percent, by weight, of alcohol in a person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Stats. 1990, ch. 708, § 1, italics added.)

Speaking largely through their amici curiae, defendants briefly contend the amendment made no substantive change to the predecessor statute but merely codified the existing administrative definition of the standard partition ratio. (Cal. Code Regs., tit. 7, § 1220.4, subd. (f).) They argue that section 23152(b) on its face continued to define the offense in terms of blood-alcohol concentration, and urge that the addition of the phrase, "in a person's blood," in the second paragraph reinforces this reading. Although the statute did specify that percent, by weight, of alcohol "shall be based on" grams of alcohol per 210 liters of breath, defendants argue that this phrase merely provided an alternate means for calculating theblood-alcohol concentration.

Although it is possible to read the statute this way, we believe there is instead only one reasonable manner in which to do so, i.e., the Legislature intended the statute to criminalize the act of driving either with the specified blood-alcohol level or with the specified breath-alcohol level. The second paragraph provided two distinct definitions, "For purposes of this subdivision," of the phrase, "percent, by weight, of alcohol in a person's blood." (Stats. 1990, ch. 708, § 1.) Under the second definition — i.e., "grams of alcohol per 210 liters of breath" — section 23152(b) prohibited the act of driving with 0.08 percent or more of blood alcohol as defined by grams of alcohol in 210 liters of breath.

The Legislature originally considered the addition of the phrase, "or grams of alcohol per 210 liters of breath," while enacting the bill that became the version of section 23152(b) effective January 1, 1992. (Sen. Bill No. 1119 (1989-1990 Reg. Sess.) § 25, enacted as Stats. 1989, ch. 1114, § 25, p. 4079.)[5] Although the legislative history of that bill only briefly discusses the Legislature's reason for the change, one legislative digest does state that the bill would "Define [blood-alcohol concentration] as alcohol concentration expressed in ... grams of alcohol per 210 liters of breath." (Assem. Com. on Pub. Safety, Dig. of Sen. Bill No. 1119 (1989-1990 Reg. Sess.), as amended May 15, 1989, p. 3, italics added and deleted.)

891*891 The legislative history of the bill that became the version of section 23152(b) under which defendants were convicted (Assem. Bill No. 4318 (1989-1990 Reg. Sess.), enacted as Stats. 1990, ch. 708, § 1) lends further support to this interpretation. For example, the Court of Appeal buttressed with a legislative analysis of the bill its conclusion that section 23152(b) criminalized driving with either the stated blood-alcohol or breath-alcohol level. That analysis characterized the "key issue" of the bill as whether driving under the influence should "be statutorily defined in terms of the concentration of alcohol found in the breath when breath analysis is used." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 4318 (1989-1990 Reg. Sess.) p. 1, italics added.)[6] It observed that attacks by defendants on the partition ratio "result in expensive and time consuming evidentiary hearings and undermine successful enforcement of driving under the influence laws." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 4318, supra,at p. 2.) It stated that the amendments would "eliminate the need for conversion of a breath quantity to a blood concentration of alcohol...." (Id. at p. 1, italics added.)[7]

To read the statute to allow the prosecution to establish the offense solely by proof of a prohibited breath-alcohol level, moreover, promotes the state's interest in reducing the danger to the public caused by those who drink and drive. (See Burg, supra, 35 Cal.3d at pp. 261-262.) It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment. (American Bar Association Criminal Justice Section, Rep., Drunk Driving Laws and Enforcement (1986) p. 31.) Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. (Id. at p. 32.) And individuals prosecuted under 892*892 such a statute will be less likely to contest the charge. (Ibid.) It is true the Legislature could have drafted the statute more clearly. (E.g., U. Veh. Code (1992 rev.) § 11-902, subd. (a)(1);[8] State v. McManus (1989) 152 Wis.2d 113 [447 N.W.2d 654, 657] [former Wisconsin statute].) Nevertheless, we hold as we did in Burg, supra, 35 Cal.3d at page 265, that section 23152(b) defined a particular type of prescribed conduct: it set forth an alternative definition of the offense of driving with a prohibited blood-alcohol concentration, i.e., driving with 0.08 percent or more of blood alcohol as defined by grams of alcohol in 210 liters of breath.[9]

(2) Defendants contend section 23152(b) unconstitutionally created an irrebuttable conclusive presumption that the amount of alcohol in 210 liters of breath was equivalent to the amount of alcohol in 100 milliliters of blood. (See Ulster County Court v. Allen (1979) 442 U.S. 140 [60 L.Ed.2d 777, 99 S.Ct. 2213]; Sandstrom v.Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450].) In Burg, supra, 35 Cal.3d 257, we rejected a similar challenge to the predecessor to section 23152(b), which set forth the then-new offense of driving with a blood-alcohol level of 0.10 percent or more. We held that the statute "does not create a conclusive presumption of intoxication.... Instead, the statute defines, in precise terms, the conduct proscribed." (35 Cal.3d at p. 265.) We observed that "In other states that have enacted a statute similar to section 23152, subdivision (b), the courts have drawn the same conclusion, notably the Washington Supreme Court which declared, `The statute does not presume, it defines.' (State v. Franco (1982) 96 [Wn.2d] 816 [639 P.2d 1320, 1323]; see also State v. Abbott (1973) 15 Ore.App. 205 [514 P.2d 355, 357] [question is not whether defendant is intoxicated, but whether he had the specified level of alcohol in his blood]; State v. Gerdes (S.D. 1977) 252 N.W.2d 335, 335-336 [by proscribing driving with 0.10 percent blood alcohol, the legislature is `stating an offense']; cf. People v. Dillon (1983) 34 Cal.3d 441, 472-476 [194 Cal. Rptr. 390, 668 P.2d 697] [Pen. Code, § 189 does not presume malice; it defines first degree felony murder as an offense in which malice is not an element]." (Ibid.) Similarly, here section 23152(b) did not presume that the driver was intoxicated or "under the influence"; instead, it defined the substantive 893*893 offense of driving with a specified concentration of alcohol in the body. Thus, it did not create an irrebuttable conclusive presumption.

Defendants also contend section 28, subdivision (d), of article I of the California Constitution — declaring that trial courts shall not exclude "relevant evidence" from criminal trials except as provided by statute — mandated that this evidence be admissible. But evidence of the variability of partition ratios was not relevant evidence because, once again, section 23152(b) defined the offense without regard to such ratios. Defendants further contend the court's refusal to consider evidence of the variability of partition ratios denied them their rights to confrontation and counsel under the Sixth Amendment to the United States Constitution. It is clear, however, that "The accused does not have an unfettered right [under the Sixth Amendment] to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." (Taylor v.Illinois (1988) 484 U.S. 400, 410 [98 L.Ed.2d 798, 811, 108 S.Ct. 646].) Because section 23152(b) defined the offense on the basis of grams of alcohol per 210 liters of breath, the court correctly ruled such evidence irrelevant and therefore inadmissible. Moreover, defendants remained free to challenge the breath-test results on other, relevant grounds, including the reliability of the machine and the manner in which the test was administered.[10]

The judgment of the Court of Appeal is affirmed.

Lucas, C.J., Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.

KENNARD, J., Concurring and Dissenting.

Understandably alarmed by the carnage caused by drunk drivers on California's highways, the Legislature has toughened this state's laws directed at those who drive a vehicle 894*894 after consuming alcoholic beverages. In interpreting Vehicle Code[1] section 23152, subdivision (b) (hereafter section 23152(b)) in this case, however, the majority has gone beyond the stringent prohibitions enacted by the Legislature and has on its own created the new crime of driving with alcohol in one's breath. This result is achieved only at a serious cost, for it not only tramples the long-standing rule that a court interpreting a criminal statute with two possible meanings must choose the one more favorable to the defendant, but it also invades the Legislature's exclusive power to create new crimes. Because the law does not permit us to take either action, and because in any event the defendants here were not charged with the majority's newly created crime of driving with alcohol in the breath, I conclude that the evidence at issue in this appeal was erroneously excluded.

I

In two separate and unrelated cases, the Imperial County District Attorney filed complaints against Donald Bransford and Ralph Maldonado, alleging that each defendant "did willfully and unlawfully, while having .08 percent and more, by weight, of alcohol in his blood, drive a vehicle," in violation of section 23152(b).

At the time relevant to this case, section 23152(b) provided in its first sentence: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." (Italics added.) The next sentence stated that the "percent, by weight, of alcohol in a person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath."

The prosecution presented evidence to the jury in each case that the defendant, after arrest, was given a test to measure the amount of alcohol in his breath. As determined by experts, the amount of alcohol contained in 210,000 milliliters (210 liters) of the average person's breath is equal to the amount of alcohol contained in 100 milliliters of the person's blood. At each trial, a prosecution expert, relying on this "partition ratio" of 210,000 to 100 (or 2,100 to 1), testified that the breath test showed more than 0.08 percent, by weight, of alcohol in the blood.[2]

In each case, the defendant asked the trial court, outside the presence of the jury, for permission to cross-examine the prosecution's expert by asking 895*895 questions designed to show that the partition ratio of 2,100 to 1, even if accurate for the average person, did not accurately measure the amount of alcohol in this defendant's blood. In each case, the trial court denied the request, and the jury convicted the defendant of violating section 23152 (b).[3] In addition, defendant Maldonado was found guilty of the separate offense of driving under the influence of alcohol (Veh. Code, § 23152 subd. (a)), while defendant Bransford was acquitted of that charge.

Both defendants appealed their convictions to the appellate department of the superior court, which consolidated the two cases and certified them to the Court of Appeal. (Cal. Rules of Court, rule 62(c).) The Court of Appeal upheld the convictions.

II

To determine the meaning of section 23152(b), we first examine the statute's language, read in a commonsense manner. (People v. Broussard (1993) 5 Cal.4th 1067, 1071 [22 Cal. Rptr.2d 278, 856 P.2d 1134]; People v. Morris (1988) 46 Cal.3d 1, 15 [249 Cal. Rptr. 119, 756 P.2d 843].) If the statutory language is ambiguous and susceptible to two plausible interpretations, we must, because this is a criminal statute, adopt the one more favorable to the defendant. (People v.Overstreet (1986) 42 Cal.3d 891, 896 [231 Cal. Rptr. 213, 726 P.2d 1288] (plur. opn.).)

The rule of construction that requires us to construe ambiguities and resolve doubts as to the meaning of criminal statutes in a defendant's favor is an old and well-established one. (Ex Parte Rosenheim (1890) 83 Cal. 388, 391 [23 P. 372] ["[T]he defendant [in a criminal case] is entitled to the benefit of every reasonable doubt ... as to the true interpretation of words or the construction of language used in a statute ...."]; Harrison v. Vose (1850) 50 U.S. (9 How.) 372, 378 [13 L.Ed. 179, 182] ["In the construction of a penal statute, it is well settled, also, that all reasonable doubts concerning its meaning ought to operate in favor of the [defendant]."].) One early court, describing how criminal statutes "always have been and ever should be" construed, stated the rule this way: "It should be a principle of every criminal code, and certainly belongs to ours, that no person be adjudged guilty of an offence unless it be created and promulgated in terms which leave no reasonable doubt of their meaning.... [A] court has no option where any considerable ambiguity arises on a penal statute, but is bound 896*896 to decide in favour of the party accused." (The Schooner Enterprise (C.C.D.N.Y. 1810) 8 Fed. 732, 734-735.)

This principle, referred to as the rule of lenity by the United States Supreme Court, is not an arbitrary creation of judges; it arises from two fundamental tenets of our criminal justice system. "First, `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.' [Citations.] Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity." (United States v. Bass (1971) 404 U.S. 336, 348 [30 L.Ed.2d 488, 496-497, 92 S.Ct. 515], fn. omitted, quoting McBoyle v. United States (1931) 283 U.S. 25, 27 [75 L.Ed. 816, 818, 51 S.Ct. 340] (per Holmes, J.); accord, Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 633 [87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].)

As this court observed nearly 25 years ago: "[C]ourts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings. [Citation.] Penal statutes will not be made to reach beyond their plain intent; they include only those offenses coming clearly within the import of their language. [Citation.] Indeed, `Constructive crimes — crimes built up by courts with the aid of inference, implication, and strained interpretation — are repugnant to the spirit and letter of English and American criminal law.' [Citation.]" (Keeler v. Superior Court, supra, 2 Cal.3d at p. 632.)

These rules of construction make short work of the task of interpreting section 23152(b). The first sentence of section 23152(b) describes the conduct proscribed: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." In unambiguous language, the statute prohibits anyone having at least 0.08 percent of alcohol in the blood from driving a car. Nothing in this statutory language prohibits driving with a given quantity of alcohol in the breath.

At the time of defendants' arrests, the statute's second sentence provided: "For purposes of this subdivision, percent, by weight, of alcohol in a person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Stats. 1990, ch. 708, § 1, 897*897 italics added.)[4]As is true of the statute's first sentence, nothing in the second sentence expressly forbids driving with alcohol in the breath. The second sentence does not purport to make any conduct unlawful, in contrast to the first sentence, which begins "It is unlawful...." On its face, the second sentence — by stating that percent of blood alcohol by weight "shall be based upon" either blood-alcohol or breath-alcohol measurements — merely sets forth two alternatives by which the prosecution may prove the crime of driving with 0.08 percent, by weight, of alcohol in one's blood.The prosecution can establish the defendant's blood-alcohol level either by showing the grams of alcohol per 100 milliliters of the defendant's blood or circumstantially by showing the grams of alcohol per 210 liters of the defendant's breath.

Thus, the plain language of section 23152(b) expressly prohibits only driving with alcohol in the blood, and not driving with alcohol in the breath. The majority acknowledges that it is "possible" to construe section 23152(b) as prohibiting only the act of driving with alcohol in one's blood. (Maj. opn., ante, at p. 890.)

The majority nonetheless relies on the second sentence of section 23152(b) to create an ambiguity in the meaning of the otherwise unambiguous phrase "alcohol in his or her blood" used in the first sentence. The majority asserts that the second sentence provides "two distinct definitions" of alcohol in a person's blood and under the second "definition" prohibits "the act of driving with 0.08 percent or more of blood alcohol as defined by grams of alcohol in 210 liters of breath." (Maj. opn.,ante, at p. 890, original italics.) In doing so, the majority mischaracterizes the language of the second sentence, which nowhere purports to define the term "alcohol in [the] blood" used in the first sentence and does not state that alcohol in the blood is "defined by" alcohol in the breath.

In the majority's view, its reading of the second sentence makes the phrase "alcohol in his or her blood," as it is used in the first sentence to describe the conduct prohibited by section 23152(b), ambiguous and capable of meaning either alcohol in one's blood or alcohol in one's breath. The majority concludes from this that "the Legislature intended the statute to criminalize the act of driving either with the specified blood-alcohol level or with the specified breath-alcohol level." (Maj. opn., ante, at p. 890.) The majority then supports this conclusion by invoking the legislative history of section 23152(b).

898*898 It is irrelevant, however, whether the majority is correct that the second sentence of section 23152(b) renders the first sentence ambiguous and makes the majority's interpretation a possible construction. Even assuming that a legitimate ambiguity exists, because the majority's construction is the harsher one, the rule of lenity forbids us from adopting it. "[W]here there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." (United States v. Bass, supra, 404 U.S. at p. 348 [30 L.Ed.2d at p. 497].) Because driving with alcohol in the blood is the only crime clearly within the language of section 23152(b), it is the only crime the Legislature created in that statute. (See Keeler v. Superior Court, supra, 2 Cal.3d at p. 632.) We have "no option" in the matter and our task of interpretation should end here. (See The Schooner Enterprise, supra, 8 Fed. at p. 735.)

Nevertheless, the majority, contrary to the settled rule of construction described above, adopts the construction unfavorable to defendants and holds that section 23152 creates two separate offenses — driving with alcohol in the blood, and driving with alcohol in the breath. By its suggestion that in interpreting penal statutes courts should choose the interpretation that will "increase the likelihood of convict[ion]," cause "fewer legal issues [to] arise," and make defendants "less likely to contest the charge," (maj. opn., ante, at pp. 891-892), the majority appears to be applying a completely unprecedented "rule of harshness" in interpreting section 23152(b).

Long ago, Chief Justice Marshall rejected in the strongest terms the proposition that a court should choose the harsher of two interpretations of a criminal statute in order to make the statute more effective at eradicating the evil it is aimed at: "The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment. [¶] ... It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated." (United States v. Wiltberger (1820) 18 U.S. (5 Wheat.) 76, 95-96 [5 L.Ed. 37, 42].)[5]

899*899 Even if the rule of lenity did not exist, in my view the majority's interpretation of the statute is an implausible rendering of what the Legislature intended here. In section 23152(b), only the first sentence purports to make any conduct unlawful, and the only conduct it makes unlawful is driving with alcohol in the blood. The second sentence does not purport to define the term "alcohol in the blood" to mean as well alcohol in the breath. Instead of using the word "define" or some equivalent term, the second sentence uses the construction "shall be based upon" to describe the relationship between alcohol in the blood and alcohol in the breath. A base is something that supports or provides the foundation for something else, as, for example, a block supports a column or evidence supports a conclusion. As used in the second sentence of section 23152(b), the phrase "shall be based upon" does not suggest a definitional relationship of equivalence or interchangeability between the two matters it connects (here, blood alcohol as percent by weight and breath alcohol), as the majority's reading proposes. To the contrary, the words "percent, by weight, of alcohol in a person's blood shall be based upon ... grams of alcohol per 210 liters of breath" suggest that existence of a given amount of blood alcohol is a conclusion inferentially derived by some intermediate process of reasoning or deduction from the existence of alcohol in the breath. Had the second sentence been intended as a definition, it would have likely used the words "means" or "is defined as," instead of "shall be based upon."

Thus, the more plausible construction of section 23152(b) is that it creates a permissive presumption, permitting but not requiring the jury to find that a person who has 0.08 grams of alcohol per 210 liters of the breath has 0.08 percent, by weight, of alcohol in the blood. Under this construction, anyone driving with 0.08 grams of alcohol in 210 liters of the breath could thereby be presumed to also have 0.08 percent, by weight, of alcohol in the blood, and therefore to have violated section 23152(b). In turn, the defendant could attempt to rebut the inference that the presumption gives rise to, by introducing evidence of the type that was excluded here.[6] In my view, interpreting the second sentence of section 23152(b) as creating this rebuttable presumption is the most reasonable interpretation of the statutory language, as well as the one that is in accord with the rule of lenity.[7]

900*900 III

Even if, as the majority holds, the Legislature did make it an offense to drive with a certain percentage of alcohol in one's breath, that offense is irrelevant here because neither defendant was so charged. In each case, the complaint alleged that the defendant "did willfully and unlawfully, while having .08 percent and more, by weight, of alcohol in his blood, drive a vehicle." (Italics added.) In each case, the jury instructions made no mention of driving with alcohol in the defendant'sbreath. Rather, in each case the trial court instructed the jury: "Any person who drives a vehicle with 0.08 percent or more, by weight, of alcohol in his blood, is guilty of a misdemeanor." (Italics added.) And in each case the verdict form made reference only to the amount of alcohol in the defendant's blood.[8]

In short, the complaints, the jury instructions, and the verdicts all show that both defendants were charged with and convicted of driving with alcohol in their blood, and not the crime of alcohol in the breath that the majority has discovered lurking in the statute. Accordingly, the majority's 901*901 conclusion — that evidence of the relationship between breath alcohol and blood alcohol is irrelevant to its new crime of driving with alcohol in the breath — has no application to these defendants because they were not charged with or convicted of that crime.

IV

In each case, the trial court erred in excluding the "partition ratio" evidence of the relationship between breath alcohol and blood alcohol that the defendants sought to introduce. Because section 23152(b) does not criminalize driving with alcohol in the breath, and because in any event both defendants were only charged with driving with alcohol in the blood, the prosecution was required to prove that each defendant had a blood-alcohol level of 0.08 percent or more, by weight. The prosecution attempted to prove circumstantially how much alcohol was in each defendant's blood by means of evidence showing how much alcohol was in his breath, and expert evidence calculating the blood-alcohol level of each defendant by applying a partition ratio of 2,100 to 1 to the breath-alcohol level of each defendant.

Each defendant sought to refute this inference of his blood-alcohol level by introducing evidence, through the prosecution's experts, of possible variations between the average partition ratio and the partition ratio of the defendants. It is undisputed that the correlation between blood-alcohol levels and breath-alcohol levels can vary in different individuals, and that the partition ratio of 2,100 to 1 is only an average value for that correlation. Here, the defendants' partition ratio evidence, by attempting to show that the partition ratio of 2,100 to 1 did not accurately establish the quantity of alcohol in each defendant's blood, was relevant to disproving the prosecution's theory as to the relationship between alcohol in the defendants' breath and alcohol in their blood. In each case, the trial court erred in excluding this evidence.

The question in each case remains whether the error was prejudicial. With regard to defendant Maldonado, the appellate record does not show the results of the test that measured the alcoholic content of his breath. Thus, it is impossible to determine the effect of the trial court's erroneous ruling. It may be that the quantity of alcohol in Maldonado's breath was so great that the expert would have testified that, even applying a partition ratio far more favorable to Maldonado, his blood-alcohol content nevertheless exceeded 0.08 percent. Because Maldonado has failed to satisfy his burden of producing an adequate record from which this court can assess whether the trial court's error was prejudicial, I would affirm his conviction of violating section 23152(b).

With respect to defendant Bransford, the prosecution's expert witness testified that the breath test showed a blood-alcohol concentration of 0.09 902*902 percent, close to the legal limit of 0.08 percent. In my view, if the trial court had permitted Bransford to cross-examine the prosecution's expert witness regarding the accuracy of the partition ratio, there is a reasonable probability that the jury would have entertained a reasonable doubt that the alcohol in his blood equaled or exceeded 0.08 percent. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)[9] I would therefore reverse defendant Bransford's conviction of violating section 23152(b).

V

CONCLUSION

"The temptation to stretch the law to fit the evil is an ancient one, and it must be resisted." (Moskal v. United States (1990) 498 U.S. 103, 132 [112 L.Ed.2d 449, 473, 111 S.Ct. 461] (dis. opn. of Scalia, J.).) We all share a desire to drive our cars free from the fear of injury or death at the hands of a drunk driver. A statute criminalizing driving with alcohol in the breath may well "promote[] the state's interest in reducing the danger to the public caused by those who drink and drive." (Maj. opn., ante, p. 891].)

As a court, however, our task is to apply the laws that the Legislature has enacted, not those it could have enacted but did not. Thus, no matter how tempting, this court cannot create a new crime of driving with a given amount of alcohol in the breath, by stretching the language of section 23152(b) "to fit the evil" of drunk driving, as the majority has done. It is up to the Legislature to make such conduct unlawful, doing so in terms that plainly and unmistakably give fair notice of the prohibited behavior. (See United States v. Bass, supra, 404 U.S. at pp. 348-349 [30 L.Ed.2d at pp. 496-498]; Keeler v. Superior Court, supra, 2 Cal.3d at pp. 632-633.) The Legislature has not yet done so. Accordingly, I would reverse the judgment of the Court of Appeal as to defendant Bransford. With respect to defendant Maldonado, he failed to show prejudice from the error in his case; therefore, I would affirm the Court of Appeal's judgment as to him.

Appellants' petition for a rehearing was denied January 19, 1995. Kennard, J., was of the opinion that the petition should be granted.

[1] All statutory references are to this code unless otherwise specified.

[2] The statute made it unlawful for any person "who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.... [¶] For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood." (Stats. 1981, ch. 940, § 33, p. 3578.)

[3] The statute thus made it unlawful for any person "who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. [¶] For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood." (Stats. 1989, ch. 479, § 3, p. 1691.)

[4] The regulation is actually written in terms of the amount of alcohol in 2,100 milliliters of breath and the amount of alcohol in 1 milliliter of blood.

[5] In 1989, the Legislature enacted, effective January 1, 1992, the successor to the statute under which defendants were convicted. (Stats. 1989, ch. 1114, § 25, p. 4079.) The phrase, "or grams of alcohol per 210 liters of breath," first appeared there. The Legislature enacted the statute under which defendants were convicted after it enacted the successor statute (Stats. 1990, ch. 708, § 1); that statute also contained the quoted phrase. Although the statute under which defendants were convicted remained in effect only until January 1, 1992, essentially the same language is in force today.

[6] See also Assembly Committee on Public Safety, Digest of Assembly Bill No. 4318 (1989-1990 Reg. Sess.) page 2 ("statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when breath analysis is used"); Assembly Office of Research, third reading analysis of Assembly Bill No. 4318 (1989-1990 Reg. Sess.) page 1 ("statutorily defin[es] driving under the influence of alcohol in terms of the concentration of alcohol found in the breath"); Senate Rules Committee Analysis of Assembly Bill. No. 4318 (1989-1990 Reg. Sess.) page 1 (same).

[7] See also Assembly Committee on Public Safety, Digest of Assembly Bill No. 4318, supra, page 2 ("Eliminate the need for conversion of a breath quantity to a blood concentration of alcohol"); Assembly Office of Research, third reading analysis of Assembly Bill No. 4318, supra, page 1 (same); Senate Rules Committee, Analysis of Assembly Bill No. 4318, supra, page 1 (same).

Amicus curiae observe that the Legislative Counsel's Digest refers to "conforming changes." (See Legis. Counsel's Dig., Assem. Bill No. 4318 (1989-1990 Reg. Sess.).) They argue that the quoted phrase proves the Legislature merely added for the sake of consistency the phrase, "or grams per 210 liters of breath," to the language that referred only to milliliters of blood; they suggest it did so to simplify the conversion from breath-alcohol to blood-alcohol concentration, but they fail to explain how this incorporation simplifies the conversion. They also assert the Legislature believed the federal government required states to statutorily — as opposed to administratively — define the partition ratio, but they offer no support for this claim.

[8] The Uniform Vehicle Code provides in the cited section that a person shall not drive a vehicle when "The alcohol concentration in such person's blood or breath is 0.08 or more based on the definition of blood and breath units in [the definition section]...." (U. Veh. Code, § 11-902, subd. (a), italics added.) The definition section provides that "Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Id., § 11-903, subd. (a)(5), italics added.)

[9] Although Illinois's drunk driving statute is worded differently, the court in People v. Capporelli (1986) 148 Ill. App.3d 1048 [103 Ill.Dec. 864, 502 N.E.2d 11] interpreted it similarly. That court held that "The statute has provided two ways to measure the level of blood alcohol concentration; one by blood, by means of a blood test; the other by breath, by means of a breathalyzer test." (Id. at p. 14.)

[10] In their brief in this court defendants raise several additional issues. They make an equal protection argument. They also claim that "an erroneous conversion of an accurate breath-alcohol test resulted in an inaccurate blood-alcohol test," presumably implying the trial court should have allowed them to demonstrate that error. And they contend that under Penal Code section 1020 — providing that matters of fact tending to establish a defense are admissible on a guilty plea — they should have been allowed to present evidence of their personal partition ratios. Defendants did not timely raise these issues in the Court of Appeal. (Cal. Rules of Court, rule 29(b)(1).)

Defendant Maldonado, who was also convicted of driving under the influence of alcohol (§ 23152, subd. (a)), contends the court's failure to allow into evidence the fact of the variability of partition ratios converted the permissive presumption set forth in the standard instruction on the inference of intoxication (CALJIC No. 12.61 (5th ed. 1994 pocket pt.) p. 74) into an impermissible mandatory presumption. Because he failed to complain in a petition for rehearing that the Court of Appeal opinion did not discuss this issue, we do not address it. (Cal. Rules of Court, rule 29(b)(2).)

[1] Unless otherwise stated, all subsequent statutory references are to the Vehicle Code.

[2] In the case of defendant Bransford, the expert concluded that the breath test showed a blood-alcohol concentration of 0.09 percent, close to the legal limit of 0.08 percent. With respect to defendant Maldonado, the record does not disclose the exact results of the breath test.

[3] The appellate record contains no transcript of either trial, only settled statements. These reveal little about the evidence admitted at trial; each settled statement merely shows the trial court denied the defendant's request to cross-examine the expert on the accuracy of the partition ratio.

[4] The Legislature later amended the second sentence of section 23152(b) to read: "For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Stats. 1992, ch. 974, § 16, italics added.)

[5] On occasion, we have construed facially ambiguous statutes adversely to criminal defendants when to do otherwise "`"`would result in absurd consequences which the Legislature did not intend.'"'" (People v. Broussard, supra, 5 Cal.4th at p. 1071; People v. Pieters (1991) 52 Cal.3d 894, 898-901 [276 Cal. Rptr. 918, 802 P.2d 420].) In this case, however, the majority does not contend that construing section 23152(b) favorably to defendants would result in "absurd consequences."

[6] As explained in People v. Milham (1984) 159 Cal. App.3d 487, 503 [205 Cal. Rptr. 688], "A permissive presumption allows — but does not require — the trier of fact to infer the ultimate fact from proof by the prosecutor of the `basic' fact, and places no burden of any kind on defendant."

[7] In addition, the differences between the statute enacted by our Legislature and the model drunk driving statute of the Uniform Vehicle Code, which unambiguously does criminalize driving with alcohol in one's breath, also show that section 23152(b) is not a statute that criminalizes driving with alcohol in the breath. The Uniform Vehicle Code prohibits a person from driving a vehicle when "The alcohol concentration in such person's blood or breath is 0.08 or more...." (U. Veh. Code (1992 rev.) § 11-902, subd. (a)(1), italics added.) By contrast, the prohibitory language of section 21532(b) prohibits only driving with "alcohol in [the] blood." Moreover, in discussing the measurement of alcohol in the blood and the breath, the Uniform Vehicle Code provides that "Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (U. Veh. Code, supra,§ 11-903, subd. (a)(5), italics added.) By contrast, the second sentence of section 21352(b) is cast in terms of "alcohol in [the] blood," not "alcohol concentration" generally, and uses the phrase "shall be based upon," rather than the definitional phrase "shall mean."

The Wisconsin and Illinois statutes referred to by the majority (maj. opn., ante, at p. 892 & fn. 9) also are statutes that, like the Uniform Vehicle Code, expressly create a separate offense of driving with alcohol in the breath. (State v. McManus (1989) 152 Wis.2d 113 [447 N.W.2d 654, 657] ["(1) No person may drive or operate a motor vehicle while: [] [¶] (b) The person has a blood alcohol concentration of 0.1% or more by weight of alcohol in the person's blood or 0.1 grams or more of alcohol in 210 liters of that person's breath."]; People v. Capporelli (1986) 148 Ill. App.3d 1048 [103 Ill.Dec. 864, 502 N.E.2d 11, 14] ["`(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (1) The alcohol concentration in such person's blood or breath is 0.10 or more.... [¶] ... 5. Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.'"].) Unlike those states, our Legislature has not enacted a similar statute.

[8] In defendant Bransford's case, the verdict read: "We, the jury in the above-entitled cause, find the defendant DONALD EDWARD BRANSFORD GUILTY of the offense charged, to wit: COUNT 2, in violation of Sec. 23152b, of the Vehicle Code, a misdemeanor, said defendant did willfully and unlawfully, while having .08 percent or more, by weight, of alcohol in his blood, drive a vehicle." In defendant Maldonado's case, the verdict read: "We, the jury in the above-entitled cause, find the defendant RALPH MALDONADO GUILTY of the offense charged, to wit: CT II DRIVING WITH .08% OR MORE, ALCOHOL IN HIS BLOOD, IN VIOLATION OF 23152b of the VEHICLE CODE."

[9] It is arguable that by restricting defendant Bransford's cross-examination of the expert witness, the trial court violated his federal constitutional right to confront the witnesses against him, and that the effect of the trial court's error should be measured by the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]. Because I conclude that the error was prejudicial in any event, I do not reach this question.


3 Cal.Rptr.3d 750 (2006)
38 Cal.4th 811
135 P.3d 3

The PEOPLE, Plaintiff and Respondent,
v.
Daniel Lyon THOMPSON, Defendant and Appellant.

No. S130174.

Supreme Court of California.

June 1, 2006.  dui lawyer riverside drunk driving lawyer best dui lawyer 

752*752 Richard B. Lennon, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant.

Thomas W. Sneddon, Jr., District Attorney, and Gerald McC. Franklin, Deputy District Attorney, for Plaintiff and Respondent.

David Labahn, Sacramento; George Kennedy, District Attorney (Santa Clara) and Neal J. Kimball, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.  dui lawyer riverside drunk driving lawyer best dui lawyer 

751*751 BAXTER, J.  dui lawyer riverside drunk driving lawyer best dui lawyer 

A concerned citizen followed defendant, who was driving dangerously and under the influence of alcohol, through the streets of Santa Barbara in the early evening of July 21, 2003. Although defendant sped away and managed to get home, the police, with that citizen's assistance, arrived at the house a short time later. The officers spoke to defendant, who remained inside the house and was visibly intoxicated. When defendant refused to come outside to have his blood tested for the presence of alcohol, the police became anxious about the dissipation of alcohol in his bloodstream and entered the house without a warrant to arrest him for the criminal offense of driving under the influence (DUI).  dui lawyer riverside drunk driving lawyer best dui lawyer 

Relying on Welsh v. Wisconsin (1984) 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (Welsh), the Court of Appeal determined that the Fourth Amendment categorically prohibits warrantless entries into the home to effect a DUI arrest when the asserted exigency is merely to prevent the destruction of blood-alcohol evidence. Based on its conclusion that the arrest was unlawful, the Court of Appeal suppressed all the evidence seized during and after the warrantless entry.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Because the Court of Appeal has misread Welsh and because exigent circumstances justified the warrantless entry to effect the DUI arrest here, we reverse the Court of Appeal. We therefore need not consider the People's additional argument that even if the arrest violated the Fourth Amendment, evidence seized outside the home subsequent to the arrest—including the results of a blood-alcohol test—are nonetheless admissible under New York v. Harris(1990) 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13.

BACKGROUND  dui lawyer riverside drunk driving lawyer best dui lawyer 

On July 21, 2003, Madelene Orvos returned to her apartment complex in Santa Barbara from a walk at the beach with her dogs. She found defendant Daniel Lyon Thompson passed out in a white Ford Bronco in her assigned parking space. A neighbor came out, woke defendant up, and asked him to leave. Before defendant left, Orvos saw him stumble around, toss an empty vodka bottle out of the Bronco, and pass out a second time in the vehicle. She could tell he was intoxicated.  dui lawyer riverside drunk driving lawyer best dui lawyer 

753*753 Having seen defendant in this condition on many prior occasions, Orvos decided this time to follow defendant and called 911 to report the situation as she got into her car. Defendant ran a red light and drove about 70 miles per hour when he got onto the freeway, at one point going "way to his right ... close to the concrete on the side of the road." He exited the freeway and turned right onto State Street from the center lane. After defendant turned right onto South Ontare Road, Orvos fell behind because he was running stop signs and driving too fast in a neighborhood where children were present. Fortunately, Santa Barbara Police Officer Adrian Gutierrez arrived at 7:15 p.m., just as Orvos lost track of the Bronco. Gutierrez instructed Orvos to wait at the parking lot of the nearby golf course while he continued the pursuit.

Officer Gutierrez proceeded to 3610 San Jose Lane, which was the address of the Bronco's registered owner, and found the white Bronco parked in front. When Officer Ryan Dejohn arrived to assist, Gutierrez went back to update Orvos and ask her to follow him to identify the vehicle. After Orvos did so, Gutierrez touched the hood of the vehicle and discovered the hood was warm, indicating the Bronco had been driven very recently. He and Dejohn approached the front door, which was wide open, and rang the doorbell.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Slavka Kovarick answered the door. Officer Dejohn asked her who had been driving the Bronco. Kovarick said that Daniel owned the vehicle. Dejohn asked to speak to him, but Kovarick said he was asleep. When Dejohn asked whether she could wake Daniel up, Kovarick entered a bedroom directly to the left of the front door. She remained there a few moments and came back to tell them she could not wake Daniel up. She also refused to let the officers inside and instead walked away.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Officer Dejohn heard people speaking softly down the hall and then saw a tall shirtless White male, about 45 years old, leave the house and go into the backyard. This man, later identified as defendant, matched the description Orvos had provided of the driver. When defendant turned around, he made eye contact with Dejohn, who motioned for him to come to the front door. Defendant reentered the house and approached the officers by exiting the bedroom door near the entryway. He was staggering or swaying slightly, slurring his speech, and gave off a strong odor of alcohol. Dejohn, who addressed defendant as Daniel, explained that they suspected him of driving under the influence of alcohol and wanted to talk to him and perform some tests, but defendant refused to cooperate. As defendant began to walk away, Dejohn entered the house. He was afraid defendant might flee, so he placed his hand on defendant's shoulder. Defendant turned around and grabbed the doorjamb to the bedroom near the entryway. Officer Gutierrez entered the house only to assist Dejohn in effecting the arrest.

After defendant was handcuffed, Orvos identified defendant as the driver. His blood test revealed a blood-alcohol level of 0.21 percent. On the way to the jail, defendant told Officer Dejohn, "I'll kick your fucking ass."  dui lawyer riverside drunk driving lawyer best dui lawyer 

Following a hearing on defendant's motion to suppress, the trial court found there was probable cause to arrest defendant based on Orvos's report of the driver's behavior, defendant's resemblance to the description Orvos had provided of the driver, and defendant's visible intoxication. Under these circumstances, it was a "reasonable implication" that defendant was the driver. Relying on People v. Hampton (1985) 164 Cal.App.3d 27, 209 Cal.Rptr. 754*754 905, the trial court also found that the warrantless entry to arrest defendant was justified by exigent circumstances—i.e., the need to preserve the evidence of defendant's blood-alcohol level.

Defendant then pleaded no contest to driving with a blood-alcohol level in excess of 0.08 percent (Veh.Code, § 23152, subd. (b)) and to resisting an officer in the performance of his duties (Pen.Code, § 148, subd. (a)(1)) and admitted two prior convictions within the meaning of Vehicle Code section 23546. He was sentenced to 24 months, execution of which was suspended for three years under specified conditions.

A divided panel of the Appellate Division of the Santa Barbara County Superior Court affirmed the denial of the suppression motion, relying on "[t]he exigencies of preventing defendant from fleeing and possibly again driving while intoxicated, and of preserving evidence of his blood alcohol content." The Court of Appeal transferred the matter under rule 62 of the California Rules of Court and reversed in a published opinion. The court disagreed that defendant "was likely to flee and again drive while intoxicated" and declared that the likelihood evidence of driving under the influence would be concealed or destroyed by the passage of time could not justify a warrantless entry into a residence under Welsh.  dui lawyer riverside drunk driving lawyer best dui lawyer 

We granted the People's petition for review.

DISCUSSION

"The Fourth Amendment protects `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." (Devenpeck v. Alford (2004) 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537.) When, as here, the arrest occurs in the home, additional principles come into play. "It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." (Payton v. New York (1980) 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639.) Indeed, "the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" (Id. at p. 585, 100 S.Ct. 1371.) The requirement of a warrant "minimizes the danger of needless intrusions of that sort." (Id. at p. 586, 100 S.Ct. 1371.)  dui lawyer riverside drunk driving lawyer best dui lawyer   dui lawyer riverside drunk driving lawyer best dui lawyer   dui lawyer riverside drunk driving lawyer best dui lawyer 

Yet, as with so much of its Fourth Amendment jurisprudence, the high court has stopped short of erecting a categorical bar. The presumption of unreasonableness that attaches to a warrantless entry into the home "can be overcome by a showing of one of the few `specifically established and well-delineated exceptions' to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576), such as `"hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling"' (Minnesota v. Olson (1990) 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85). The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect's escape." (People v. Celis (2004) 33 Cal.4th 667, 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

755*755 Defendant asserts that the warrantless entry here was unreasonable under the Fourth Amendment. He argues in particular that the police lacked probable cause to arrest him and that, even if probable cause existed, Welsh precluded a finding of exigent circumstances for warrantless DUI arrests in the home.

The trial court found that probable cause existed to arrest defendant and that the warrantless entry was justified by exigent circumstances. Because the underlying facts are undisputed, we review the trial court's rulings independently. (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

A. Did Probable Cause Exist to Justify an Arrest of Defendant for DUI?  dui lawyer riverside drunk driving lawyer best dui lawyer 

We first consider whether the officers had probable cause to arrest defendant forDUI. "Probable cause exists when the facts known to the arresting officer would persuade someone of `reasonable caution' that the person to be arrested has committed a crime. [Citation.] `[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts....' (Illinois v. Gates (1983) 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527.) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769.) `"The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,'" and that belief must be `particularized with respect to the person to be ... seized.' (Ibid.)" (People v. Celis, supra, 33 Cal.4th at p. 673, 16 Cal.Rptr.3d 85, 93 P.3d 1027.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

That standard was satisfied here. Although Madelene Orvos did not see defendant drinking, she did see him have difficulty walking, toss an empty vodka bottle out of the Bronco, and pass out again in the vehicle. When he woke up, he drove erratically and too fast. He also ran red lights and stop signs. As defendant concedes, the record fully supported Orvos's belief, which she communicated to the police, that the driver of the Bronco was intoxicated. Orvos's report thus established probable cause to justify a warrantless arrest of the Bronco's driver. (Veh. Code, § 40300.5; People v. Schofield (2001) 90 Cal.App.4th 968, 972-975, 109 Cal.Rptr.2d 429; see generally People v. Smith (1976) 17 Cal.3d 845, 852, 132 Cal. Rptr. 397, 553 P.2d 557 [citizen-informant who has personally observed the commission of a crime "is presumptively reliable"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The officers also had ample justification for suspecting that defendant had been the driver of the Bronco. The registered owner of the vehicle lived at 3610 San Jose Lane. A Bronco was parked in front of that residence, and Orvos confirmed that this was the vehicle she had just been following. Officer Gutierrez touched the Bronco's hood and concluded that it had been driven very recently. The officers went to the door and inquired who had been driving the Bronco. Slavka Kovarick said that the Bronco belonged to Daniel and that she "was going to call Daniel out" to speak to them. Kovarick went into the bedroom immediately to the left of the front door and came out a short time later to say she could not wake Daniel up. Shortly thereafter, Officer Dejohn heard quiet voices coming from down the hall and then saw defendant, a tall White male, approximately 45 years old and shirtless, walk out the back door. At Dejohn's invitation, defendant walked back into the house and approached the entryway by exiting through the bedroom door immediately to the left of the front door. He was staggering and swaying, slurring his speech, and smelled of alcohol. His appearance 756*756 and demeanor matched the description of the driver provided by Orvos. He also had walked into and out of the bedroom that belonged to Daniel. The officers, having reasonable grounds for believing that defendant was Daniel and that Daniel was the driver, thus had probable cause to arrest him for DUI.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Defendant claims probable cause was nonetheless lacking because the description Orvos had provided was too general to justify suspicion of any individual person. He cites People v. Curtis (1969) 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33, in which a "cursory description" of the suspect's race, color of clothing, and presence in the neighborhood where a prowler has been reported was deemed sufficient to justify a detention but not an arrest (id. at p. 350, 74 Cal.Rptr. 713, 450 P.2d 33), and on People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658, in which the suspect's description as a fairly tall White man of large build with dark hair and a red sweater likewise failed to justify the arrest of a man matching that description who was merely in the "neighborhood" where a robbery had occurred more than 20 minutes earlier and was "driving toward the scene of the crime, not away from it." (Id. at pp. 450, 454, 30 Cal.Rptr. 18, 380 P.2d 658.) But we have in this case much more than a vague description of a suspect that happens to be matched by someone in the general neighborhood where a crime occurred. The Bronco was traced to a particular residence by its registration as well as by Orvos's visual identification and the fact the engine was still warm. Kovarick told the officers that Daniel, the owner of the Bronco, was indeed home and that she would tell him to come to the door. Only then did a man matching Orvos's description attempt to flee from the house, although he eventually came to the door— after passing through Daniel's bedroom. When the man arrived at the front door, the officers immediately could tell that he was intoxicated. These additional facts soundly distinguish Curtis and Mickelson.(People v. Schader (1965) 62 Cal.2d 716, 724, 44 Cal.Rptr. 193, 401 P.2d 665; In re Louis F. (1978) 85 Cal.App.3d 611, 616, 149 Cal.Rptr. 642 ["Curtis andMickelson should not be understood as standing for the proposition identification data furnished to a police officer can never alone be sufficient to justify a warrantless arrest unless there could not have been anyone other than the person arrested who could have fit the description. Rather, the question is one of degree. And when identification information of the kind here present is buttressed by additional probative evidence of complicity, it cannot be maintained probable cause was lacking"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Defendant also errs in supposing that the officers' lack of certainty defendant was the driver precludes a finding of probable cause. "`[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment.'" (Maryland v. Garrison (1987) 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d 72.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

B. Did Exigent Circumstances Justify a Warrantless Entry to Effect the Arrest?  dui lawyer riverside drunk driving lawyer best dui lawyer 

The imminent destruction of evidence is an exigent circumstance justifying a warrantless entry into a residence to effect an arrest. (People v. Celis, supra, 33 Cal.4th at p. 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027.) The People contend that the body's metabolization of alcohol qualified as the imminent destruction of evidence justifying a warrantless entry. Defendant disagrees, relying largely on Welsh.

Welsh held that the need to ascertain a suspect's blood-alcohol level did not justify a warrantless entry into a residence to effect an arrest for driving under the influence 757*757 in Wisconsin. (Welsh, supra, 466 U.S. at pp. 753-754, 104 S.Ct. 2091.) Welsh did not dispute the evanescent character of evidence of intoxication. Rather, the high court invalidated the arrest because "an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made." (Id. at p. 753, 104 S.Ct. 2091; see also Brigham City v. Stuart (May 22, 2006, No. 05-502) ___ U.S. ___, ___, 126 S.Ct. 1943, ___ L.Ed.2d ___ [2006 WL 1374566, *5].) "[T]he best indication of the State's interest in precipitating an arrest," the court explained, is the classification of the offense and the possible punishment, which "can be easily identified both by the courts and by officers faced with a decision to arrest." (Welsh, supra, at p. 754, 104 S.Ct. 2091.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Defendant, like the Court of Appeal here, reasons that DUI is likewise a minor offense in California and, under Welsh, cannot justify a warrantless entry to effect an arrest. We disagree. Wisconsin has chosen to classify a first offense for DUI as a noncriminal, civil forfeiture offense for which no imprisonment is possible. (Welsh, supra, 466 U.S. at p. 754, 104 S.Ct. 2091, citing Wis. Stat. § 346.65(2) (1975).) The issue thus presented in Welsh, as the high court explicitly stated, was whether "the Fourth Amendment prohibits the police from making a warrantless night entry of a person's home in order to arrest him for a nonjailable traffic offense." (Welsh, supra, 466 U.S. at p. 742, 104 S.Ct. 2091, italics added.) California, by contrast, classifies a first offense for driving under the influence as acriminal act that is punishable by no more than six months and no less than 96 hours in jail. (Veh. Code, § 23536, subd. (a).) The possibility of imprisonment distinguishes DUI in California from DUI in Wisconsin.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Other factors confirm that, in California, driving under the influence is not an "extremely minor" offense within the meaning of Welsh, supra, 466 U.S. at page 753, 104 S.Ct. 2091. When the Legislature amended Vehicle Code section 40300.5 to allow warrantless arrests for this misdemeanor offense not committed in the presence of the officer, it found and declared "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." (Stats.1984, ch. 722, § 2, pp. 2646-2647; see also People v. Schofield, supra, 90 Cal.App.4th at p. 973, 109 Cal.Rptr.2d 429 ["The Legislature has recognized that driving under the influence is widespread and serious with potential for catastrophic consequences"].) This court, too, has recognized the "monstrous proportions of the problem" as well as "the horrific risk posed by those who drink and drive" (Burg v. Municipal Court(1983) 35 Cal.3d 257, 262, 198 Cal.Rptr. 145, 673 P.2d 732) and has declared its "resolve to support `all possible means of deterring persons from driving automobiles after drinking.'" (Peterson v. Superior Court (1982) 31 Cal.3d 147, 155, 181 Cal.Rptr. 784, 642 P.2d 1305.) We therefore believe Welsh was limited to Wisconsin's "amazing" decision to classify DUI as a civil nonjailable offense (Welsh, supra, 466 U.S. at p. 755, 104 S.Ct. 2091 (conc. opn. of Blackmun, J.)) and not as a categorical bar on warrantless arrests in the home for DUI in the vast majority of states that, like California, classify it as a 758*758 crime with the possibility of imprisonment. (People v. Hampton, supra, 164 Cal. App.3d 27, 34, 209 Cal.Rptr. 905; see also Welsh, supra, 466 U.S. at p. 761, 104 S.Ct. 2091 (dis. opn. of White, J.) ["a bright-line distinction between felonies and misdemeanors is untenable"; "the Court—wisely in my view—does not adopt such an approach"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Illinois v. McArthur (2001) 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (McArthur), which construed the scope of exigent circumstances in the related circumstance of preventing a suspect from entering his own home, provides additional support for our understanding of Welsh. In McArthur, the police suspected that marijuana had been hidden underneath the couch of the trailer where McArthur was living. The police informed McArthur of their suspicions and asked for permission to search the trailer, which McArthur denied. While one officer went to get a search warrant, McArthur was told he could not reenter the trailer unless an officer accompanied him. McArthur then reentered the trailer two or three times, and each time an officer stood just inside the door to observe what McArthur did. About two hours later, an officer returned with the warrant and found a small amount of marijuana in the trailer. (McArthur, supra, 531 U.S. at p. 329, 121 S.Ct. 946.) Relying on Welsh, McArthur argued that misdemeanor possession of marijuana, which was punishable in Illinois by up to 30 days in jail, was too minor an offense to justify the warrantless restraint he had suffered. (McArthur, at pp. 335-336, 121 S.Ct. 946.) The high court disagreed, reiterating that "`the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense'" (id. at p. 336, 121 S.Ct. 946, quoting Welsh, supra, 466 U.S. at p. 754, fn. 14, 104 S.Ct. 2091.) and finding "significant distinctions" between "crimes that were `jailable,' not `nonjailable.'" (McArthur, at p. 336, 121 S.Ct. 946; see also id. at p. 337, 121 S.Ct. 946 (conc. opn. of Souter, J.) [observing that the risk of destruction of evidence of the misdemeanor would have justified a warrantless entry into the trailer].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

A substantial majority of our sister jurisdictions have limited Welsh's holding to nonjailable offenses and have thereby rejected defendant's extension of its rule to misdemeanor offenses where imprisonment is a potential penalty. (Mendez v. People (Colo.1999) 986 P.2d 275, 283 [distinguishing Welsh as involving "a minor, civil, nonjailable offense"]; Dolan v. Salinas (Conn.Super.Ct.1999) 1999 WL 566943, *4, 1999 Conn.Super. LEXIS 1988, *13 ["Unlike the State of Wisconsin, Connecticut provides for incarceration on a first conviction" for DUI]; Dyer v. State(Fla.Dist.Ct.App.1996) 680 So.2d 612, 613 [a misdemeanor punishable by up to a year in jail is "classified as a much more serious offense than in Welsh"]; Threatt v. State (1999) 240 Ga.App. 592, 524 S.E.2d 276, 280 (Threatt) [distinguishingWelsh because DUI, which is punishable by imprisonment of 10 days to 12 months, is "sufficiently serious criminal activity to justify an officer's warrantless, nonconsensual entry into a suspect's home to arrest the suspect"]; People v. Lagle(1990) 200 Ill. App.3d 948, 146 Ill.Dec. 551, 558 N.E.2d 514, 519 [distinguishingWelsh because DUI, a misdemeanor, is "considered a serious offense in Illinois"];State v. Legg (Iowa 2001) 633 N.W.2d 763, 773 [distinguishing Welsh becauseDUI, which is punishable by two days to one year in jail, is a "serious misdemeanor"]; State v. Paul (Minn.1996) 548 N.W.2d 260, 267 [distinguishingWelsh because DUI is a misdemeanor 759*759 and the legislature had authorized warrantless arrests for this offense when it occurs outside the officer's presence];City of Kirksville v. Guffey (Mo.Ct.App.1987) 740 S.W.2d 227, 229 [distinguishingWelsh because DUI is punishable by up to six months in jail]; State v. Ellinger(1986) 223 Mont. 349, 725 P.2d 1201, 1204 [distinguishing Welsh because DUI is a criminal offense with the possibility of imprisonment]; State v. Nikola(App.Div.2003) 359 N.J.Super. 573, 821 A.2d 110, 118 [distinguishing Welshbecause "in this State a charge of driving while under the influence of alcohol may subject an offender to a jail term of up to thirty days even for a first offense"];People v. Odenweller (1988) 137 A.D.2d 15, 527 N.Y.S.2d 127, 129 [distinguishingWelsh because DUI is punishable by up to one year in jail]; Beachwood v. Sims(1994) 98 Ohio App.3d 9, 647 N.E.2d 821, 825 [distinguishing Welsh because DUIis a misdemeanor punishable by a minimum term of three days in jail]; State v. Roberts (1985) 75 Or.App. 292, 706 P.2d 564, 566 [distinguishing Welsh becauseDUI is a misdemeanor punishable by up to one year in jail]; Beaver v. State(Tex.App. 2003) 106 S.W.3d 243, 248 [distinguishing Welsh "from cases, such as this one, where the offense is `jailable'"]; City of Orem v. Henrie (Utah Ct.App.1994) 868 P.2d 1384, 1392 [distinguishing Welsh because DUI is a misdemeanor punishable by imprisonment]; Cherry v. Com. (2004) 44 Va.App. 347, 605 S.E.2d 297, 307 ["if any bright line exists for warrantless entries into the home, it should be drawn between jailable and nonjailable offenses rather than between felonies and misdemeanors"]; State v. Griffith (1991) 61 Wash.App. 35, 808 P.2d 1171, 1176 & fn. 7 [distinguishing Welsh as a case involving a noncriminal, civil forfeiture offense without possible imprisonment]; Goines v. James (1993) 189 W.Va. 634, 433 S.E.2d 572, 577-578 [distinguishing Welshbecause DUI is a serious traffic offense punishable by up to six months in jail];State v. Hughes (2000) 233 Wis.2d 280, 607 N.W.2d 621, 631 [distinguishingWelsh because the misdemeanor offense was punishable by up to six months in jail]; Rideout v. State (Wyo. 2005) 122 P.3d 201, 210 ["The unmistakable implication of the discussion in McArthur is that the distinction drawn by the Court in Welsh between minor offenses that do not justify a warrantless entry into a residence and those offenses that do is predicated upon whether the subject offense carries a potential jail term"]; accord, Joyce v. Town of Tewksbury, Mass.(1st Cir.1997) 112 F.3d 19, 22 (en banc) ["the fact that Massachusetts classifies the alleged violation here as a misdemeanor does not reduce it to a `minor offense'" within the meaning of Welsh].).)
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Against this impressive array of authority, we have found only three courts that, like the Court of Appeal below, have extended Welsh to misdemeanors carrying a possibility of imprisonment. In Patzner v. Burkett (8th Cir.1985) 779 F.2d 1363, the Eighth Circuit asserted, without much analysis, that the punishment for DUI in North Dakota—a minimum sentence of a $100 fine or three days in jail—was only a "minor difference in penalty" and thus was "not sufficient to support a result different from that reached in Welsh," inasmuch as the state had since amended its statute to eliminate the possibility of imprisonment for first-time offenders. (Patzner, supra, 779 F.2d at pp. 1368-1369 & fn. 6.) In State v. Flegel (S.D.1992) 485 N.W.2d 210, the South Dakota Supreme Court made the remarkable assertion that the misdemeanor penalties for first-offense DUI, which ranged up to one year in jail, were "similar" to those attaching to the nonjailable traffic offense in Welshand the misdemeanor penalties in Patzner. (Flegel, supra, 485 N.W.2d at p. 215.) And in 760*760 Norris v. State (1999) 338 Ark. 397, 993 S.W.2d 918, the Arkansas Supreme Court held that DUI, which was punishable by up to one year in jail, was "relatively minor" when compared to criminal offenses involving violence or the threat of violence. (Id. at p. 923; but see 3 LaFave, Search and Seizure (4th ed.2004) § 6.1(f), p. 316, fn. 211 [criticizing Norris].))  dui lawyer riverside drunk driving lawyer best dui lawyer 

We do not find these decisions persuasive. First of all, they ignore Welsh itself, which cautions that the critical factor is not the nature of the crime but "the penalty that may attach to any particular offense." (Welsh, 466 U.S. at p. 754, fn. 14, 104 S.Ct. 2091; see also Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness" (1998) 98 Colum. L.Rev. 1642, 1683 ["If Wisconsin were unhappy with the Court's decision, it could, therefore, nullify it prospectively by simply changing (legislatively) the status of driving while intoxicated from a civil violation to a criminal offense"].) Indeed, they all predate McArthur, which clarified that the significant distinction for Fourth Amendment purposes in an analogous context is whether the crimes were "`jailable'" or "`nonjailable.'" (McArthur, supra,531 U.S. at p. 336, 121 S.Ct. 946.) Moreover, none of these cases acknowledges the substantial weight of authority limiting Welsh to nonjailable offenses—or even cites a single contrary case. Finally, a bright-line rule limiting warrantless entries to felonies "would send a message to the `bad man' who drinks and drives that a hot pursuit or arrest set in motion can be thwarted by beating the police to one's door. The Fourth Amendment simply cannot be stretched nor can public safety be ensured by a bright-line felony rule which would encourage drunk drivers to elude the police by racing through the streets to the sanctuary of their houses in order to `freeze' a hot pursuit or to otherwise evade a lawful arrest." (State v. Paul, supra,548 N.W.2d at p. 268.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

If, as we have concluded, a finding of exigent circumstances in DUI cases is not categorically precluded by Welsh, we must next consider whether exigent circumstances justified the warrantless entry in this particular case. The People rely on the exception to the warrant requirement for the imminent destruction of evidence. They point out (1) that defendant's blood-alcohol level would have diminished while the police sought a warrant as the body metabolized the alcohol, and (2) that defendant could have masked his blood-alcohol level while the police sought a warrant by ingesting more alcohol. The People's concerns are well founded.  dui lawyer riverside drunk driving lawyer best dui lawyer 

It is beyond dispute that "the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system." (Schmerber v. California (1966) 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908.) Because the "delay necessary to procure a warrant ... may result in the destruction of valuable evidence," "blood and breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible." (Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 623, 109 S.Ct. 1402, 103 L.Ed.2d 639.) Neither defendant nor the dissenting opinion here offers any reason why the dissipation of blood-alcohol evidence may be deemed to threaten the imminent destruction of evidence in Schmerber and in Skinner but not in this case. Nor does defendant offer any authority for his assertion at oral argument that the exigent circumstance relating to the imminent destruction of evidence encompasses only that evidence which qualifies as contraband or as an instrumentality of a crime. To the contrary, 761*761 most courts have concluded that the dissipation of blood-alcohol evidence "may constitute an exigent circumstance under the facts of a particular case." (City of Orem v. Henrie, supra, 868 P.2d at p. 1389; accord, Threatt, supra,524 S.E.2d at p. 281, fn. 1 ["when an officer has probable cause to arrest for the offense of DUI, the need to prevent destruction of evidence (which may occur by the dissipation of alcohol from a DUI suspect's blood while a warrant is obtained) may constitute an exigent circumstance which could justify a nonconsensual, warrantless entry into the suspect's home to arrest the suspect"]; State v. Komoto(1985) 40 Wash. App. 200, 697 P.2d 1025, 1033 ["This proposition is generally accepted by federal and state courts"]; State v. B  dui lawyer riverside drunk driving lawyer best dui lawyer ohling (1993) 173 Wis.2d 529, 494 N.W.2d 399, 404-405 [citing cases]; U.S. v. Reid (4th Cir.1991) 929 F.2d 990, 993-994.)[1]
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Defendant contends that no exigency existed because there is a rebuttable presumption that a driver had a blood-alcohol level of 0.08 percent or more at the time of driving if the person had a blood-alcohol level of 0.08 percent or more in a chemical test performed "within three hours after the driving." (Veh.Code, § 23152, subd. (b).) Defendant misapprehends the significance of this provision, which is not a presumption at all, but only a permissive inference. (Judicial Council of Cal., Jury Instns. (2006) Bench Note to CALCRIM No. 2111, p. 149; accord, Use Note to CALJIC No. 12.61.1 (Jan.2005 ed.) p. 845.) That the jury may, but is not required to, conclude that defendant's blood-alcohol level was in excess of legal limits based on a test taken within three hours of the driving does not eviscerate the People's interest in securing a blood test as soon as possible. (State v. Bohling, supra, 494 N.W.2d at p. 405; City of Orem v. Henrie, supra, 868 P.2d at p. 1393, fn. 10 [such a limitation "evinces the Legislature's intent to promote the rapid attainment of chemical tests for alcohol content"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

We are likewise unpersuaded by defendant's claim that any exigency is eliminated because of the possibility an expert could testify about the defendant's blood-alcohol level at an earlier point "by extrapolating backward from the later-taken results." As courts have recognized, "such extrapolations can be speculative." (State v. Bohling, supra, 494 N.W.2d at p. 405.) "[T]here are numerous variables such as weight, or time and content of last meal which may affect the rate at which the alcohol dissipates." (Carleton v. Superior Court (1985) 170 Cal.App.3d 1182, 1185, 216 Cal.Rptr. 890; see also Bennett v. Coffman (1987) 178 W.Va. 500, 361 S.E.2d 465, 469 [degree of physical exertion can affect body's metabolism of alcohol].)[2]  dui lawyer riverside drunk driving lawyer best dui lawyer 

762*762 In any event, none of defendant's arguments is responsive to the corruption of evidence that occurs when the suspect takes advantage of any delay to ingest more alcohol—or to claim to have done so—or when the suspect evades police capture until he or she is no longer intoxicated. Numerous courts have recognized this possibility as an additional reason supporting a finding of exigent circumstances in DUI cases. (Welsh, supra, 466 U.S. at p. 763, 104 S.Ct. 2091 (dis. opn. of White, J.); State v. Lovig (Iowa 2004) 675 N.W.2d 557, 566 & fn. 2;State v. Legg, supra, 633 N.W.2d at pp. 772-773; State v. Seamans, supra, 2005 Me.Super. LEXIS 105, *11, fn. 3; State v. Paul, supra, 548 N.W.2d at p. 267; City of Kirksville v. Guffey, supra, 740 S.W.2d at p. 229; People v. Odenweller, supra, 527 N.Y.S.2d at p. 129; Stark v. N.Y. State Dept. of Motor Vehicles (1984) 104 A.D.2d 194, 483 N.Y.S.2d 824, 826-827, affd. (1985) 65 N.Y.2d 720, 492 N.Y.S.2d 8, 9, 481 N.E.2d 548; City of Orem v. Henrie, supra, 868 P.2d at p. 1393; State v. Komoto, supra, 697 P.2d at p. 1033.) In this case, the corruption of evidence was not merely a theoretical possibility. The officers had good reason to believe that defendant, who had attempted to flee out the back door upon learning of their presence, would escape again or otherwise act to conceal his intoxication if given the opportunity. (See People v. Murphy (2005) 37 Cal.4th 490, 500, 36 Cal.Rptr.3d 125, 123 P.3d 155.) Time was of the essence here.

In holding that exigent circumstances justified the warrantless entry here, we need not decide—and do not hold—that the police may enter a home without a warrant to effect an arrest of a DUI suspect in every case. We hold merely that the police conduct here, taking into account all of the circumstances, was reasonable—with reasonableness measured as "`a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331; accord, People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333 ["There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The state's interest in effecting an arrest here was substantial. There was strong evidence that defendant had committed the dangerous act of DUI, a jailable offense. Officer Dejohn feared, however, the evidence of that crime was in imminent danger of destruction. His suspicions were justified. Slavka Kovarick had told the police, alternately, that defendant would be coming to the door soon, and that he was asleep and could not be woken up, but he was in fact neither sleeping nor coming to the door. Instead, he spoke quietly in the hall with Kovarick and then763*763 walked away from the officers into the backyard. The police were able to see defendant leave the house only because the front door was open, and defendant returned to the house only after Officer Dejohn made eye contact with him and motioned for him to come back in. Having attempted to flee once, defendant was at risk of doing so again if he was not promptly taken into custody. Had he escaped, the evidence of his crime would have dissipated. Even if he had been prevented from escaping, he had already demonstrated plainly his desire to evade police investigation and could have corrupted the evidence simply by resuming drinking. The police thus had ample cause to believe defendant was inside the house and that the evidence was at risk of imminent destruction, as the superior court found. (Cf. Vale v. Louisiana (1970) 399 U.S. 30, 34-35, 90 S.Ct. 1969, 26 L.Ed.2d 409 [no exigency existed where the officers had no basis for suspecting anyone was inside the house or about to destroy the narcotics].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The Court of Appeal emphasized in particular that the police had not conducted a hot pursuit in that the pursuit was initiated by a citizen and the police did not observe defendant driving or entering the house. Even if the definition of hot pursuit were to exclude the situation here (but see People v. Escudero (1979) 23 Cal.3d 800, 810, 153 Cal.Rptr. 825, 592 P.2d 312 ["it is not necessary that the suspect be kept physically in view at all times"]), it is clear that defendant had arrived at the house only minutes before the police. The police thus had reasonable cause to believe the evidence of defendant's intoxication would be fresh at the time of his arrest.  dui lawyer riverside drunk driving lawyer best dui lawyer 

The intrusion on defendant's privacy, by contrast, was a diminished one. Kovarick had left the front door wide open during the entire encounter. This not only rendered a forcible entry unnecessary, but it exposed to public view the very area where the arrest would later occur. (Cf. U.S. v. Gori (2d Cir.2000) 230 F.3d 44, 53["Once the apartment was opened to public view by the defendants in response to the knock of an invitee, there was no expectation of privacy as to what could be seen from the hall"]; U.S. v. Vaneaton (9th Cir.1995) 49 F.3d 1423, 1427.) Moreover, Officer Dejohn entered only a few feet beyond the threshold, and Officer Gutierrez followed only when it became apparent that his assistance was necessary to overcome defendant's resistance. Neither conducted a search of the residence. In short, the state's intrusion into the home was the minimum necessary to effect the arrest and extended only to areas already exposed to public view. Under these circumstances, it was reasonable for the police to enter the home without a warrant in order to arrest defendant and thereby prevent the imminent destruction of evidence of his crime.[3]  dui lawyer riverside drunk driving lawyer best dui lawyer 

In light of our holding, we find it unnecessary to address the People's additional argument that even if the warrantless entry had violated the Fourth Amendment, the exclusionary rule would not extend to the officers' observations of defendant outside the house, any statements defendant made prior to the entry or after defendant was removed from the house, or the results of his blood-alcohol test. (See New York v. Harris, supra, 495 U.S. at p. 19, 110 S.Ct. 1640; People v. Marquez (1992) 1 Cal.4th 553, 569, 3 Cal.Rptr.2d 710, 822 P.2d 418.)

DISPOSITION  dui lawyer riverside drunk driving lawyer best dui lawyer 

The judgment of the Court of Appeal is reversed.

764*764 WE CONCUR: GEORGE, C.J., KENNARD, CHIN, MORENO, and CORRIGAN, JJ.

Dissenting Opinion by WERDEGAR, J.

"A man's house is his castle." (Miller v. United States (1958) 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332.) This phrase expresses the view that one's home is a place of personal privacy and its inhabitants are entitled to freedom from governmental intrusion absent a very good reason. "At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable." (United States v. Karo (1984) 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530,quoted with approval in People v. Camacho (2000) 23 Cal.4th 824, 831, 98 Cal.Rptr.2d 232, 3 P.3d 878.) "We have, after all, lived our whole national history with an understanding of `the ancient adage that a man's home is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown.'" (Georgia v. Randolph (2006) ___ U.S. ___, ___, 126 S.Ct. 1515, 1524, 164 L.Ed.2d 208.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Not just some forgotten vestige of 15th century English law that allowed English peasants to assert their rights against a powerful monarchy, the view that one's home is a place of privacy was also shared by the Framers of the United States Constitution. We need not interpret or gloss the constitutional text for hidden or obscure meaning, for the drafters of the Fourth Amendment made this point plain on the face of the document: "The right of the people to be secure in their persons,houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause." (U.S. Const., 4th Amend., italics added.)

The United States Supreme Court has emphasized repeatedly the primacy of the constitutional protection for persons in their homes. "`[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" (Payton v. New York (1980) 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639.) "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." (Silverman v. United States (1961) 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734.) The high court has been vigilant in extending this concept in the face of new technological threats to the sanctity of the home. (See Kyllo v. United States(2001) 533 U.S. 27, 28, 121 S.Ct. 2038, 150 L.Ed.2d 94 [warrantless use of a thermal imaging device to explore details inside home violated 4th Amend.]; United States v. Karo, supra, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 [warrantless placement of a beeper into a home violated 4th Amend.].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

This court has also on numerous occasions recognized this special constitutional protection for persons in their homes. For example, we held a warrantless search of a suspect's home could not be justified by a parole search condition of which police were unaware (People v. Sanders (2003) 31 Cal.4th 318, 324, 2 Cal.Rptr.3d 630, 73 P.3d 496); that, absent more, the warrantless entry into a suspect's home was not justified solely by the arrest of the suspect outside the home (People v. Celis (2004) 33 Cal.4th 667, 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027); that a person's expectation of privacy in the home was not compromised by his exposure of the home's interior to a private side yard (People v. Camacho, supra, 23 Cal.4th 824, 98 Cal. 765*765 Rptr.2d 232, 3 P.3d 878); and that the presumptive constitutional protection of the home extended to an attached garage (People v. Robles (2000) 23 Cal.4th 789, 795, 97 Cal.Rptr.2d 914, 3 P.3d 311; see Cal. Const., art. I, § 13). Perhaps our seminal case in this area is People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, where we held the warrantless entry into a suspect's home to make an arrest, even though supported by probable cause to believe he was guilty of a felony, was unreasonable per se under the Fourth Amendment to the United States Constitution and the state Constitution, at least in the absence of exigent circumstances. Four years later, the United States Supreme Court came to this view itself, holding in Payton v. New York that, in the absence of exigent circumstances, police entry into a suspect's home to arrest him for a felony was "presumptively unreasonable" in the absence of a warrant. (Payton v. New York, supra, 445 U.S. at p. 587, 100 S.Ct. 1371.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

I agree with the majority that Welsh v. Wisconsin (1984) 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732, wherein the high court concluded the warrantless arrest of a suspected drunk driver in his home was invalid, may plausibly be distinguished from the instant case on the ground the crime at issue in that case was not a jailable offense. (Maj. opn., ante, 43 Cal. Rptr.3d at pp. 756-757, 135 P.3d at pp. 8-9; Welsh v. Wisconsin, at pp. 742, 104 S.Ct. 2091 [emphasizing crime was "a nonjailable traffic offense"], 753, 104 S.Ct. 2091 ["important factor" was "the gravity of the underlying offense" and that crime was "a noncriminal, traffic offense"].) But even assuming Welsh is distinguishable from the instant case on the ground that incarceration is a possible punishment for drunk driving in California, I am not persuaded police were legally entitled, on the facts of this case, to enter defendant's home against his wishes without a warrant. The majority concedes, as it must, the Fourth Amendment's presumptive protection of persons in their homes, but reasons the warrantless entry into this defendant's home was justified by exigent circumstances. Because I disagree such circumstances existed here, and because I also find the majority's attempt to circumscribe the sweep of its holding unpersuasive, I dissent.  dui lawyer riverside drunk driving lawyer best dui lawyer 

I

The ultimate standard established by the Fourth Amendment to the United States Constitution is one of reasonableness. (Cady v. Dombrowski (1973) 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706.) Beginning with the unassailable proposition that the warrantless entry by government agents into a person's home is "presumptively unreasonable" (Payton v. New York, supra, 445 U.S. at p. 587, 100 S.Ct. 1371, italics added), courts have nevertheless recognized some "`specifically established and well-delineated exceptions' to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576), such as `"hot pursuit of a fleeing felon, or imminent destruction of evidence, ... or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling"' (Minnesota v. Olson (1990) 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85)." (People v. Celis, supra, 33 Cal.4th at p. 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027.) "A warrantless search by the police is invalid unless it falls within one of the narrow and well-delineated exceptions to the warrant requirement." (Flippo v. West Virginia (1999) 528 U.S. 11, 13, 120 S.Ct. 7, 145 L.Ed.2d 16; People v. Wharton (1991) 53 Cal.3d 522, 576-577, 280 Cal. Rptr. 631, 809 P.2d 290 [same].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

766*766 Once defendant demonstrated that police entered his home without a warrant, the burden shifted to the prosecution "to prove that the entry was nevertheless reasonable." (People v. Williams (1988) 45 Cal.3d 1268, 1300, 248 Cal.Rptr. 834, 756 P.2d 221.) Police admittedly did not have an arrest warrant permitting them to enter defendant's home and had been expressly denied consent to enter by defendant's housemate. (Georgia v. Randolph, supra, ___ U.S. ___, 126 S.Ct. 1515.) Although the majority hints otherwise (maj. opn., ante, 43 Cal.Rptr.3d at p. 763, 135 P.3d at p. 14), the forced entry cannot be justified under the hot pursuit doctrine, as "there was no immediate or continuous pursuit ... from the scene of the crime." (Welsh v. Wisconsin, supra, 466 U.S. at p. 753, 104 S.Ct. 2091.) Defendant had already arrived home, he was apparently sleeping in his bedroom, and police were on the scene; hence, "there was little remaining threat to the public safety." (Ibid.)

The majority concludes the failure by police to obtain a warrant before entering defendant's home is excused by the exigent-circumstances exception to the warrant requirement. "`"`[E]xigent circumstances' means an emergency situation requiring swift action to prevent imminent danger or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers."' [Citations.] The exception is applicable to the federal Constitution (see Mincey v. Arizona (1978) 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290) and `California courts are in full accord with the ... emergency exception to the warrant requirement.'" (People v. Wharton, supra, 53 Cal.3d at p. 577, 280 Cal.Rptr. 631, 809 P.2d 290.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

"In evaluating exigency, relevant factors include `"(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge `that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.'"'" (People v. Gentry (1992) 7 Cal.App.4th 1255, 1261-1262, 9 Cal.Rptr.2d 742.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The majority locates such an emergency situation inside defendant's body, which was slowly but inexorably metabolizing and thus destroying the alcohol police believed he had consumed. The emergency, in other words, involved the potential destruction of the evidence of defendant's crime of drunk driving. That such "burn off" occurs is undisputed. (People v. Schofield (2001) 90 Cal.App.4th 968, 975, 109 Cal.Rptr.2d 429; see In re Martin (1962) 58 Cal.2d 509, 512, 24 Cal.Rptr. 833, 374 P.2d 801 ["It is a matter of common knowledge that the intoxicating effect of alcohol diminishes with the passage of time"].) What is disputed is whether this natural metabolic process, standing alone, constitutes an emergency such that police may dispense with obtaining a warrant and immediately enter a person's home against his will.  dui lawyer riverside drunk driving lawyer best dui lawyer 

None of the cases on which the majority relies supports its broad conclusion that the natural metabolization of blood alcohol alone constitutes an exigent circumstance sufficient to permit police to enter a person's 767*767 home against his or her wishes and without a warrant. For example, in Schmerber v. California(1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the United States Supreme Court cited the natural metabolization of a body's blood alcohol to justify the police taking a nonconsensual blood sample from a suspect notwithstanding the lack of a search warrant. But the defendant in Schmerber had already been arrested and was in police custody, not in his home. Moreover, the fact of the alcohol burn off was just one factor the high court considered: "We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest." (Id. at pp. 770-771, 86 S.Ct. 1826, italics added.) No such time pressures or "special facts" were shown in the instant case; indeed, police were on the scene just minutes after defendant apparently had taken his last drink. (SeeVale v. Louisiana (1970) 399 U.S. 30, 35, 90 S.Ct. 1969, 26 L.Ed.2d 409 [in finding no exigent circumstances, court emphasized absence of evidence showing that obtaining a warrant was "impracticable"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Similarly, in Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639, the high court merely recognized that "alcohol and other drugs are eliminated from the bloodstream" (id. at p. 623, 109 S.Ct. 1402), a point no one disputes; it did not hold such elimination constituted an exigent circumstance entitling police to enter one's home without a warrant. Instead, the court held the warrant requirement was excused because the government's interest in regulating railway workers presented a special need beyond normal law enforcement. (Id. at p. 620, 109 S.Ct. 1402.)

The majority opines that "most courts have concluded that the dissipation of blood-alcohol evidence `may constitute an exigent circumstance under the facts of a particular case.'" (Maj. opn., ante, 43 Cal. Rptr.3d at p. 761, 135 P.3d at p. 12, italics added.) The qualifiers are important. The cases the majority cites in support are all distinguishable. In City of Orem v. Henrie (Utah Ct.App.1994) 868 P.2d 1384, the defendant was suspected not only of driving while intoxicated, but also of leaving the scene of an accident. In State v. Komoto (1985) 40 Wash.App. 200, 697 P.2d 1025, the defendant struck and killed a pedestrian. In both cases, the blood-alcohol evidence was needed to prosecute crimes far more serious than mere driving under the influence (DUI). The warrantless entry into a home may therefore have been justified. Here, by contrast, defendant was suspected only of driving while intoxicated, and at the time police entered his home any threat to public safety had ceased.  dui lawyer riverside drunk driving lawyer best dui lawyer 

The majority also cites State v. Bohling (1993) 173 Wis.2d 529, 494 N.W.2d 399and United States v. Reid (4th Cir.1991) 929 F.2d 990 in support (maj. opn., ante,43 Cal.Rptr.3d at p. 761, 135 P.3d at p. 12), but in both cases the defendants were lawfully arrested outside the home, at the scene of a traffic accident (Bohling) or at a traffic stop on the highway (Reid); their challenges were to the warrantless drawing of a blood sample. The cases thus presented a straightforward application of Schmerber v. California, supra, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908,and do not support the notion that the mere dissipation 768*768 of blood-alcohol evidence, standing alone, creates such an emergency that police may enter a suspect's home without a warrant or consent.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Finally, the majority cites Threatt v. State (1999) 240 Ga.App. 592, 596, 524 S.E.2d 276, but that case held, on facts similar to those here, that exigent circumstances did not, in fact, exist to authorize the warrantless entry to arrest for the crime of reckless driving. The Georgia appellate court then stated in dictum that—had officers possessed probable cause to arrest for DUI—the dissipation of evidence "may constitute an exigent circumstance." (Id. at p. 596, fn. 1, 524 S.E.2d 276, italics added.) In support, the Threatt court cited State v. Tosar (1986) 180 Ga.App. 885, 888, 350 S.E.2d 811, a case that did not involve entry into a home.
  dui lawyer riverside drunk driving lawyer best dui lawyer 
Invocation of the exigent-circumstances exception to the warrant requirement, moreover, must be supported by a showing of the "imminent destruction of evidence." (Minnesota v. Olson, supra, 495 U.S. at p. 100, 110 S.Ct. 1684, italics added; see also Brigham City v. Stuart (May 22, 2006, No. 05-502) ___ U.S. ___, ___, 126 S.Ct. 1943, ___ L.Ed.2d ___, 2006 WL 1374566, *4 [destruction of evidence must be "imminent"].) The prosecution made no showing in this case that the delay in obtaining a warrant would have resulted in the imminent destruction,as opposed to the gradual and incremental degradation, of the alcohol in defendant's body. Indeed, a delay of an hour or two to obtain a warrant would have made little difference, for "[i]t is common . . . for experts to take into account the metabolization rate of a substance and extrapolate from the amount of a substance in a blood sample to arrive at an opinion regarding the amount of the substance in the blood at a critical point in time." (People v. Clark (1993) 5 Cal.4th 950, 993, 22 Cal.Rptr.2d 689, 857 P.2d 1099.) The majority disparages the efficacy of so-called retrograde extrapolation evidence, asserting such evidence "`can be speculative'" (maj. opn., ante, 43 Cal. Rptr.3d at p. 761, 135 P.3d at p. 12), but surely it does not mean to suggest the admissibility of this type of evidence is suspect. In any event, the rule in this state (People v. Clark, supra, 5 Cal.4th 950, 22 Cal.Rptr.2d 689, 857 P.2d 1099)[1] and, indeed, in the majority of jurisdictions, is that retrograde extrapolation evidence is admissible, though of course its weight is subject to challenge, as are the qualifications of the expert witness presenting the evidence. (See generally Annot., Admissibility and Sufficiency of Extrapolation Evidence in DUI Prosecutions (2004) 119 A.L.R.5th 379.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

To further support its contention the exigent-circumstances doctrine applies here, the majority relies on the possibility defendant could have corrupted the evidence of his alcohol consumption by consuming more alcohol. (Maj. opn., ante, 43 Cal.Rptr.3d at p. 762, 135 P.3d at p. 13.) But this argument proves too much, for the possibility exists in every case that a criminal suspect in his home will try to destroy evidence of his crime. The drug dealer may flush his stash away, the bookie may burn his betting slips, the killer may take a metal file to the barrel of his gun or clean his hands of gunshot residue. The mere possibility a defendant may drink additional quantities of liquor is insufficient to overcome the constitutionally769*769 protected privacy interests of a person in his home. Instead, police must havearticulable facts that would lead a reasonable officer to believe such destruction isabout to occur. "`"[F]ear or apprehension alone that evidence will be destroyed will not justify a warrantless entry of a private home." [Citation.] Instead, "[t]here must exist `specific and articulable facts which, taken together with rational inferences...,' support the warrantless intrusion."'" (People v. Gentry, supra, 7 Cal.App.4th at p. 1262, 9 Cal.Rptr.2d 742.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Vale v. Louisiana, supra, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, illustrates this basic point of law. In that case, after police arrested the defendant outside a home, they entered the home without a warrant to search for drugs. The Louisiana Supreme Court upheld the search, in part, because the crime "involved narcotics, which are easily removed, hidden, or destroyed. It would be unreasonable, the Louisiana court concluded, `to require the officers under the facts of the case to first secure a search warrant before searching the premises, as time is of the essence inasmuch as the officers never know whether there is anyone on the premises to be search[ed] who could very easily destroy the evidence.'" (Id. at p. 34, 90 S.Ct. 1969.) The United States Supreme Court flatly rejected the state court's reasoning, explaining: "Such a rationale could not apply to the present case, since by their own account the arresting officers satisfied themselves that no one else was in the house when they first entered the premises. But entirely apart from that point, our past decisions make clear that only in `a few specifically established and well-delineated' situations [citation] may a warrantless search of a dwelling withstand constitutional scrutiny." (Ibid.) Because there was no evidence someone was about to remove or destroy evidence, the high court held the exigent-circumstances exception did not apply.  dui lawyer riverside drunk driving lawyer best dui lawyer 

As in Vale v. Louisiana, supra, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, the prosecution in this case presented no evidence suggesting defendant was about to alter evidence of his guilt by drinking again. Neither Officer Gutierrez nor Dejohn observed defendant drinking, or attempting to drink, any intoxicating beverage. Witness Madelene Orvos reported that defendant had discarded an empty bottle of vodka. Defendant's housemate, Slavka Kovarick, told police defendant was sleeping, which was apparently the case until police instructed her to awaken him. Although the majority opines that "[t]he officers had good reason to believe that defendant ... would ... act to conceal his intoxication if given the opportunity" (maj. opn., ante, 43 Cal.Rptr.3d at p. 762, 135 P.3d at p. 13), the record confirms police possessed no articulable facts suggesting defendant was actively corrupting, or about to corrupt, the blood-alcohol evidence by resuming his consumption of alcohol. By accepting in support of exigency the argument that defendant couldcorrupt the evidence, the majority converts the narrow exigent-circumstances exception to the constitutional warrant requirement into a free pass for police: So long as the destruction of evidence is possible, police may dispense with a warrant. But the possibility a suspect will destroy evidence exists in every case;that possibility thus cannot be the predicate for invoking the narrow exigent-circumstances exception to the constitutional requirement for a warrant. (Cf.People v. Gonzalez (1989) 211 Cal. App.3d 1043, 1050, 259 Cal.Rptr. 846 ["If specific indications of . . . destruction of evidence were not required, the exigent-circumstances exception would entirely consume" the knock-notice requirement].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

770*770 Realizing, perhaps, that none of its previous rationales adequately justify the warrantless entry, the majority suggests defendant had attempted to flee. (Maj. opn., ante, 43 Cal.Rptr.3d at pp. 762-763, 135 P.3d at pp. 13-14.) This suggestion finds no support in the record. Officer Dejohn testified defendant, on learning police were on his doorstep, left his house by the back door, walked about 10 feet into the backyard, and then returned to the house. Although this caused Dejohn to be concerned defendant would flee, he admitted defendant was so intoxicated that he was staggering and slurring his words and that he immediately returned to the house. But even assuming defendant might have attempted to flee, that possibility did not create an emergency situation justifying the warrantless entry. Police at the scene could easily have detained him while they sought a warrant. In any event, the prosecution did not argue below that defendant's asserted attempt to flee created an emergency situation, and the trial court did not mention this circumstance. The court denied defendant's suppression motion solely on the ground that his body's metabolization of alcohol in his blood constituted the destruction of evidence. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640-641, 108 Cal.Rptr. 585, 511 P.2d 33 [People cannot change theory on appeal of suppression decision].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Finally, the majority attempts to minimize the scope of its holding, explaining that it does not decide "that police may enter a home without a warrant to effect an arrest of a DUI suspect in every case. We hold merely that the police conduct here, taking into account all of the circumstances, was reasonable...." (Maj. opn., ante,43 Cal.Rptr.3d at p. 762, 135 P.3d at p. 13.) I find the majority's attempt to circumscribe the sweep of its holding both unpersuasive and disingenuous. What are the circumstances in this case that make it unusual? Police had probable cause to believe defendant had recently become intoxicated and had driven home and that he was now inside his house. Police lacked both a warrant and consent to enter. Defendant's body was naturally metabolizing the alcohol, but that would be true in every crime involving alcohol. Defendant might consume additional alcohol, thereby corrupting the evidence, but that possibility, too, would exist in every case involving an alcohol-related crime. Police, in any event, had no articulable facts to suggest defendant was about to drink anything. Under the majority's reasoning, therefore, it would appear that any time police have probable cause to arrest someone for an alcohol-related crime (for which the possible penalty involves some jail time) and they reasonably believe the suspect is in his home, they may forcibly enter without a warrant to make an arrest to preserve the blood-alcohol evidence. One can only hope the majority's reasoning today is akin to "a restricted railroad ticket, good for this day and train only." (Smith v. Allwright (1944) 321 U.S. 649, 669, 64 S.Ct. 757, 88 L.Ed. 987 (dis. opn. of Roberts, J.).)  dui lawyer riverside drunk driving lawyer best dui lawyer 

II

That those enforcing our criminal laws will proceed vigorously is generally to society's benefit, but the Fourth Amendment to the United States Constitution places reasonable and recognizable limits on such activities. One such limit is that the warrantless entry into an individual's home is presumptively unreasonable unless justified by one of the narrow exceptions to the warrant requirement. By requiring, in all other situations, the interposition of the considered judgment of a neutral magistrate, the Constitution protects the citizenry's reasonable expectation of privacy in their homes. As Justice Robert Jackson 771*771 explained: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent." (Johnson v. United States (1948) 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The majority endorses a scheme today by which police may too easily evade the warrant requirement. Because I conclude its reasoning and result are contrary to the Fourth Amendment to the United States Constitution, I dissent.  dui lawyer riverside drunk driving lawyer best dui lawyer 

[1] The dissent concedes that the dissipation of blood-alcohol evidence may constitute an exigent circumstance to justify a warrantless entry to effect an arrest, but would limit such arrests to crimes "far more serious than mere driving under the influence." (Dis. opn., post, 43 Cal.Rptr.3d at p. 767, 135 P.3d at p. 17.) The text of the Fourth Amendment, however, offers no basis for distinguishing between DUI, which is a serious and jailable offense in California (see ante, at pp. 757-758, 135 P.3d at pp. 8-9), and the crimes alleged in Henrie and Komoto, nor does the dissent point to any case law to support such a distinction. Indeed, inasmuch as the dissent concedes that the nonjailable offense in Welsh is distinguishable from the jailable offense in this case (dis. opn., post, at p. 765, 135 P.3d at p. 15), the line the dissent would draw between this case and Henrie or Komoto remains undefined.  dui lawyer riverside drunk driving lawyer best dui lawyer 

[2] Defendant also argues that a person suspected of DUI may refuse to submit to chemical testing and accept the specified punishment, rendering the blood-alcohol evidence superfluous. Defendant once again misapprehends the statutory scheme. A person who drives a motor vehicle "is deemed to have given his or her consent to chemical testing" of his or her blood, breath, or urine for the purpose of determining the alcoholic or drug content of his or her blood (Veh.Code, § 23612, subds.(a)(1)(A) & (B), (d)(2)). "It is thus firmly established that a drunken driver has no right to resist or refuse such a test." (Bush v. Bright (1968) 264 Cal.App.2d 788, 792, 71 Cal.Rptr. 123.) Moreover, the possibility of sanctions under Vehicle Code section 13353 for the driver's refusal to submit to chemical tests does not preclude the People from also obtaining a blood sample without any further approval, based on the consent any driver has given under section 23612, and punishing the driver for the criminal act of driving under the influence. (Covington v. Department of Motor Vehicles (1980) 102 Cal. App.3d 54, 60, 162 Cal.Rptr. 150; People v. Fite (1968) 267 Cal.App.2d 685, 690-691, 73 Cal.Rptr. 666.)

[3] To the extent dictum in People v. Schofield, supra, 90 Cal.App.4th at pages 970 and 975, 109 Cal.Rptr.2d 429, is inconsistent with the views expressed herein, it is disapproved.  dui lawyer riverside drunk driving lawyer best dui lawyer 

[1] See also Vehicle Code section 23152, subdivision (b) which states in part: "In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving."3 Cal.Rptr.3d 750 (2006)38 Cal.4th 811
135 P.3d 3  dui lawyer riverside drunk driving lawyer best dui lawyer 

The PEOPLE, Plaintiff and Respondent,
v.
Daniel Lyon THOMPSON, Defendant and Appellant.

No. S130174.

Supreme Court of California.

June 1, 2006.

752*752 Richard B. Lennon, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant.

Thomas W. Sneddon, Jr., District Attorney, and Gerald McC. Franklin, Deputy District Attorney, for Plaintiff and Respondent.

David Labahn, Sacramento; George Kennedy, District Attorney (Santa Clara) and Neal J. Kimball, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.  dui lawyer riverside drunk driving lawyer best dui lawyer 

751*751 BAXTER, J.  dui lawyer riverside drunk driving lawyer best dui lawyer 

A concerned citizen followed defendant, who was driving dangerously and under the influence of alcohol, through the streets of Santa Barbara in the early evening of July 21, 2003. Although defendant sped away and managed to get home, the police, with that citizen's assistance, arrived at the house a short time later. The officers spoke to defendant, who remained inside the house and was visibly intoxicated. When defendant refused to come outside to have his blood tested for the presence of alcohol, the police became anxious about the dissipation of alcohol in his bloodstream and entered the house without a warrant to arrest him for the criminal offense of driving under the influence (DUI).  dui lawyer riverside drunk driving lawyer best dui lawyer 

Relying on Welsh v. Wisconsin (1984) 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (Welsh), the Court of Appeal determined that the Fourth Amendment categorically prohibits warrantless entries into the home to effect a DUI arrest when the asserted exigency is merely to prevent the destruction of blood-alcohol evidence. Based on its conclusion that the arrest was unlawful, the Court of Appeal suppressed all the evidence seized during and after the warrantless entry.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Because the Court of Appeal has misread Welsh and because exigent circumstances justified the warrantless entry to effect the DUI arrest here, we reverse the Court of Appeal. We therefore need not consider the People's additional argument that even if the arrest violated the Fourth Amendment, evidence seized outside the home subsequent to the arrest—including the results of a blood-alcohol test—are nonetheless admissible under New York v. Harris(1990) 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13.  dui lawyer riverside drunk driving lawyer best dui lawyer 

BACKGROUND

On July 21, 2003, Madelene Orvos returned to her apartment complex in Santa Barbara from a walk at the beach with her dogs. She found defendant Daniel Lyon Thompson passed out in a white Ford Bronco in her assigned parking space. A neighbor came out, woke defendant up, and asked him to leave. Before defendant left, Orvos saw him stumble around, toss an empty vodka bottle out of the Bronco, and pass out a second time in the vehicle. She could tell he was intoxicated.  dui lawyer riverside drunk driving lawyer best dui lawyer 

753*753 Having seen defendant in this condition on many prior occasions, Orvos decided this time to follow defendant and called 911 to report the situation as she got into her car. Defendant ran a red light and drove about 70 miles per hour when he got onto the freeway, at one point going "way to his right ... close to the concrete on the side of the road." He exited the freeway and turned right onto State Street from the center lane. After defendant turned right onto South Ontare Road, Orvos fell behind because he was running stop signs and driving too fast in a neighborhood where children were present. Fortunately, Santa Barbara Police Officer Adrian Gutierrez arrived at 7:15 p.m., just as Orvos lost track of the Bronco. Gutierrez instructed Orvos to wait at the parking lot of the nearby golf course while he continued the pursuit.

Officer Gutierrez proceeded to 3610 San Jose Lane, which was the address of the Bronco's registered owner, and found the white Bronco parked in front. When Officer Ryan Dejohn arrived to assist, Gutierrez went back to update Orvos and ask her to follow him to identify the vehicle. After Orvos did so, Gutierrez touched the hood of the vehicle and discovered the hood was warm, indicating the Bronco had been driven very recently. He and Dejohn approached the front door, which was wide open, and rang the doorbell.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Slavka Kovarick answered the door. Officer Dejohn asked her who had been driving the Bronco. Kovarick said that Daniel owned the vehicle. Dejohn asked to speak to him, but Kovarick said he was asleep. When Dejohn asked whether she could wake Daniel up, Kovarick entered a bedroom directly to the left of the front door. She remained there a few moments and came back to tell them she could not wake Daniel up. She also refused to let the officers inside and instead walked away.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Officer Dejohn heard people speaking softly down the hall and then saw a tall shirtless White male, about 45 years old, leave the house and go into the backyard. This man, later identified as defendant, matched the description Orvos had provided of the driver. When defendant turned around, he made eye contact with Dejohn, who motioned for him to come to the front door. Defendant reentered the house and approached the officers by exiting the bedroom door near the entryway. He was staggering or swaying slightly, slurring his speech, and gave off a strong odor of alcohol. Dejohn, who addressed defendant as Daniel, explained that they suspected him of driving under the influence of alcohol and wanted to talk to him and perform some tests, but defendant refused to cooperate. As defendant began to walk away, Dejohn entered the house. He was afraid defendant might flee, so he placed his hand on defendant's shoulder. Defendant turned around and grabbed the doorjamb to the bedroom near the entryway. Officer Gutierrez entered the house only to assist Dejohn in effecting the arrest.
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After defendant was handcuffed, Orvos identified defendant as the driver. His blood test revealed a blood-alcohol level of 0.21 percent. On the way to the jail, defendant told Officer Dejohn, "I'll kick your fucking ass."  dui lawyer riverside drunk driving lawyer best dui lawyer 

Following a hearing on defendant's motion to suppress, the trial court found there was probable cause to arrest defendant based on Orvos's report of the driver's behavior, defendant's resemblance to the description Orvos had provided of the driver, and defendant's visible intoxication. Under these circumstances, it was a "reasonable implication" that defendant was the driver. Relying on People v. Hampton (1985) 164 Cal.App.3d 27, 209 Cal.Rptr. 754*754 905, the trial court also found that the warrantless entry to arrest defendant was justified by exigent circumstances—i.e., the need to preserve the evidence of defendant's blood-alcohol level.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Defendant then pleaded no contest to driving with a blood-alcohol level in excess of 0.08 percent (Veh.Code, § 23152, subd. (b)) and to resisting an officer in the performance of his duties (Pen.Code, § 148, subd. (a)(1)) and admitted two prior convictions within the meaning of Vehicle Code section 23546. He was sentenced to 24 months, execution of which was suspended for three years under specified conditions.
  dui lawyer riverside drunk driving lawyer best dui lawyer 
A divided panel of the Appellate Division of the Santa Barbara County Superior Court affirmed the denial of the suppression motion, relying on "[t]he exigencies of preventing defendant from fleeing and possibly again driving while intoxicated, and of preserving evidence of his blood alcohol content." The Court of Appeal transferred the matter under rule 62 of the California Rules of Court and reversed in a published opinion. The court disagreed that defendant "was likely to flee and again drive while intoxicated" and declared that the likelihood evidence of driving under the influence would be concealed or destroyed by the passage of time could not justify a warrantless entry into a residence under Welsh.  dui lawyer riverside drunk driving lawyer best dui lawyer 

We granted the People's petition for review.  dui lawyer riverside drunk driving lawyer best dui lawyer 

DISCUSSION

"The Fourth Amendment protects `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." (Devenpeck v. Alford (2004) 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537.) When, as here, the arrest occurs in the home, additional principles come into play. "It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." (Payton v. New York (1980) 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639.) Indeed, "the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" (Id. at p. 585, 100 S.Ct. 1371.) The requirement of a warrant "minimizes the danger of needless intrusions of that sort." (Id. at p. 586, 100 S.Ct. 1371.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Yet, as with so much of its Fourth Amendment jurisprudence, the high court has stopped short of erecting a categorical bar. The presumption of unreasonableness that attaches to a warrantless entry into the home "can be overcome by a showing of one of the few `specifically established and well-delineated exceptions' to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576), such as `"hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling"' (Minnesota v. Olson (1990) 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85). The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect's escape." (People v. Celis (2004) 33 Cal.4th 667, 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

755*755 Defendant asserts that the warrantless entry here was unreasonable under the Fourth Amendment. He argues in particular that the police lacked probable cause to arrest him and that, even if probable cause existed, Welsh precluded a finding of exigent circumstances for warrantless DUI arrests in the home.  dui lawyer riverside drunk driving lawyer best dui lawyer 

The trial court found that probable cause existed to arrest defendant and that the warrantless entry was justified by exigent circumstances. Because the underlying facts are undisputed, we review the trial court's rulings independently. (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

A. Did Probable Cause Exist to Justify an Arrest of Defendant for DUI?  dui lawyer riverside drunk driving lawyer best dui lawyer 

We first consider whether the officers had probable cause to arrest defendant forDUI. "Probable cause exists when the facts known to the arresting officer would persuade someone of `reasonable caution' that the person to be arrested has committed a crime. [Citation.] `[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts....' (Illinois v. Gates (1983) 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527.) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769.) `"The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,'" and that belief must be `particularized with respect to the person to be ... seized.' (Ibid.)" (People v. Celis, supra, 33 Cal.4th at p. 673, 16 Cal.Rptr.3d 85, 93 P.3d 1027.)
  dui lawyer riverside drunk driving lawyer best dui lawyer 
That standard was satisfied here. Although Madelene Orvos did not see defendant drinking, she did see him have difficulty walking, toss an empty vodka bottle out of the Bronco, and pass out again in the vehicle. When he woke up, he drove erratically and too fast. He also ran red lights and stop signs. As defendant concedes, the record fully supported Orvos's belief, which she communicated to the police, that the driver of the Bronco was intoxicated. Orvos's report thus established probable cause to justify a warrantless arrest of the Bronco's driver. (Veh. Code, § 40300.5; People v. Schofield (2001) 90 Cal.App.4th 968, 972-975, 109 Cal.Rptr.2d 429; see generally People v. Smith (1976) 17 Cal.3d 845, 852, 132 Cal. Rptr. 397, 553 P.2d 557 [citizen-informant who has personally observed the commission of a crime "is presumptively reliable"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The officers also had ample justification for suspecting that defendant had been the driver of the Bronco. The registered owner of the vehicle lived at 3610 San Jose Lane. A Bronco was parked in front of that residence, and Orvos confirmed that this was the vehicle she had just been following. Officer Gutierrez touched the Bronco's hood and concluded that it had been driven very recently. The officers went to the door and inquired who had been driving the Bronco. Slavka Kovarick said that the Bronco belonged to Daniel and that she "was going to call Daniel out" to speak to them. Kovarick went into the bedroom immediately to the left of the front door and came out a short time later to say she could not wake Daniel up. Shortly thereafter, Officer Dejohn heard quiet voices coming from down the hall and then saw defendant, a tall White male, approximately 45 years old and shirtless, walk out the back door. At Dejohn's invitation, defendant walked back into the house and approached the entryway by exiting through the bedroom door immediately to the left of the front door. He was staggering and swaying, slurring his speech, and smelled of alcohol. His appearance 756*756 and demeanor matched the description of the driver provided by Orvos. He also had walked into and out of the bedroom that belonged to Daniel. The officers, having reasonable grounds for believing that defendant was Daniel and that Daniel was the driver, thus had probable cause to arrest him for DUI.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Defendant claims probable cause was nonetheless lacking because the description Orvos had provided was too general to justify suspicion of any individual person. He cites People v. Curtis (1969) 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33, in which a "cursory description" of the suspect's race, color of clothing, and presence in the neighborhood where a prowler has been reported was deemed sufficient to justify a detention but not an arrest (id. at p. 350, 74 Cal.Rptr. 713, 450 P.2d 33), and on People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658, in which the suspect's description as a fairly tall White man of large build with dark hair and a red sweater likewise failed to justify the arrest of a man matching that description who was merely in the "neighborhood" where a robbery had occurred more than 20 minutes earlier and was "driving toward the scene of the crime, not away from it." (Id. at pp. 450, 454, 30 Cal.Rptr. 18, 380 P.2d 658.) But we have in this case much more than a vague description of a suspect that happens to be matched by someone in the general neighborhood where a crime occurred. The Bronco was traced to a particular residence by its registration as well as by Orvos's visual identification and the fact the engine was still warm. Kovarick told the officers that Daniel, the owner of the Bronco, was indeed home and that she would tell him to come to the door. Only then did a man matching Orvos's description attempt to flee from the house, although he eventually came to the door— after passing through Daniel's bedroom. When the man arrived at the front door, the officers immediately could tell that he was intoxicated. These additional facts soundly distinguish Curtis and Mickelson.(People v. Schader (1965) 62 Cal.2d 716, 724, 44 Cal.Rptr. 193, 401 P.2d 665; In re Louis F. (1978) 85 Cal.App.3d 611, 616, 149 Cal.Rptr. 642 ["Curtis andMickelson should not be understood as standing for the proposition identification data furnished to a police officer can never alone be sufficient to justify a warrantless arrest unless there could not have been anyone other than the person arrested who could have fit the description. Rather, the question is one of degree. And when identification information of the kind here present is buttressed by additional probative evidence of complicity, it cannot be maintained probable cause was lacking"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Defendant also errs in supposing that the officers' lack of certainty defendant was the driver precludes a finding of probable cause. "`[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment.'" (Maryland v. Garrison (1987) 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d 72.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

B. Did Exigent Circumstances Justify a Warrantless Entry to Effect the Arrest?  dui lawyer riverside drunk driving lawyer best dui lawyer 

The imminent destruction of evidence is an exigent circumstance justifying a warrantless entry into a residence to effect an arrest. (People v. Celis, supra, 33 Cal.4th at p. 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027.) The People contend that the body's metabolization of alcohol qualified as the imminent destruction of evidence justifying a warrantless entry. Defendant disagrees, relying largely on Welsh.

Welsh held that the need to ascertain a suspect's blood-alcohol level did not justify a warrantless entry into a residence to effect an arrest for driving under the influence 757*757 in Wisconsin. (Welsh, supra, 466 U.S. at pp. 753-754, 104 S.Ct. 2091.) Welsh did not dispute the evanescent character of evidence of intoxication. Rather, the high court invalidated the arrest because "an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made." (Id. at p. 753, 104 S.Ct. 2091; see also Brigham City v. Stuart (May 22, 2006, No. 05-502) ___ U.S. ___, ___, 126 S.Ct. 1943, ___ L.Ed.2d ___ [2006 WL 1374566, *5].) "[T]he best indication of the State's interest in precipitating an arrest," the court explained, is the classification of the offense and the possible punishment, which "can be easily identified both by the courts and by officers faced with a decision to arrest." (Welsh, supra, at p. 754, 104 S.Ct. 2091.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Defendant, like the Court of Appeal here, reasons that DUI is likewise a minor offense in California and, under Welsh, cannot justify a warrantless entry to effect an arrest. We disagree. Wisconsin has chosen to classify a first offense for DUI as a noncriminal, civil forfeiture offense for which no imprisonment is possible. (Welsh, supra, 466 U.S. at p. 754, 104 S.Ct. 2091, citing Wis. Stat. § 346.65(2) (1975).) The issue thus presented in Welsh, as the high court explicitly stated, was whether "the Fourth Amendment prohibits the police from making a warrantless night entry of a person's home in order to arrest him for a nonjailable traffic offense." (Welsh, supra, 466 U.S. at p. 742, 104 S.Ct. 2091, italics added.) California, by contrast, classifies a first offense for driving under the influence as acriminal act that is punishable by no more than six months and no less than 96 hours in jail. (Veh. Code, § 23536, subd. (a).) The possibility of imprisonment distinguishes DUI in California from DUI in Wisconsin.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Other factors confirm that, in California, driving under the influence is not an "extremely minor" offense within the meaning of Welsh, supra, 466 U.S. at page 753, 104 S.Ct. 2091. When the Legislature amended Vehicle Code section 40300.5 to allow warrantless arrests for this misdemeanor offense not committed in the presence of the officer, it found and declared "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." (Stats.1984, ch. 722, § 2, pp. 2646-2647; see also People v. Schofield, supra, 90 Cal.App.4th at p. 973, 109 Cal.Rptr.2d 429 ["The Legislature has recognized that driving under the influence is widespread and serious with potential for catastrophic consequences"].) This court, too, has recognized the "monstrous proportions of the problem" as well as "the horrific risk posed by those who drink and drive" (Burg v. Municipal Court(1983) 35 Cal.3d 257, 262, 198 Cal.Rptr. 145, 673 P.2d 732) and has declared its "resolve to support `all possible means of deterring persons from driving automobiles after drinking.'" (Peterson v. Superior Court (1982) 31 Cal.3d 147, 155, 181 Cal.Rptr. 784, 642 P.2d 1305.) We therefore believe Welsh was limited to Wisconsin's "amazing" decision to classify DUI as a civil nonjailable offense (Welsh, supra, 466 U.S. at p. 755, 104 S.Ct. 2091 (conc. opn. of Blackmun, J.)) and not as a categorical bar on warrantless arrests in the home for DUI in the vast majority of states that, like California, classify it as a 758*758 crime with the possibility of imprisonment. (People v. Hampton, supra, 164 Cal. App.3d 27, 34, 209 Cal.Rptr. 905; see also Welsh, supra, 466 U.S. at p. 761, 104 S.Ct. 2091 (dis. opn. of White, J.) ["a bright-line distinction between felonies and misdemeanors is untenable"; "the Court—wisely in my view—does not adopt such an approach"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Illinois v. McArthur (2001) 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (McArthur), which construed the scope of exigent circumstances in the related circumstance of preventing a suspect from entering his own home, provides additional support for our understanding of Welsh. In McArthur, the police suspected that marijuana had been hidden underneath the couch of the trailer where McArthur was living. The police informed McArthur of their suspicions and asked for permission to search the trailer, which McArthur denied. While one officer went to get a search warrant, McArthur was told he could not reenter the trailer unless an officer accompanied him. McArthur then reentered the trailer two or three times, and each time an officer stood just inside the door to observe what McArthur did. About two hours later, an officer returned with the warrant and found a small amount of marijuana in the trailer. (McArthur, supra, 531 U.S. at p. 329, 121 S.Ct. 946.) Relying on Welsh, McArthur argued that misdemeanor possession of marijuana, which was punishable in Illinois by up to 30 days in jail, was too minor an offense to justify the warrantless restraint he had suffered. (McArthur, at pp. 335-336, 121 S.Ct. 946.) The high court disagreed, reiterating that "`the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense'" (id. at p. 336, 121 S.Ct. 946, quoting Welsh, supra, 466 U.S. at p. 754, fn. 14, 104 S.Ct. 2091.) and finding "significant distinctions" between "crimes that were `jailable,' not `nonjailable.'" (McArthur, at p. 336, 121 S.Ct. 946; see also id. at p. 337, 121 S.Ct. 946 (conc. opn. of Souter, J.) [observing that the risk of destruction of evidence of the misdemeanor would have justified a warrantless entry into the trailer].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

A substantial majority of our sister jurisdictions have limited Welsh's holding to nonjailable offenses and have thereby rejected defendant's extension of its rule to misdemeanor offenses where imprisonment is a potential penalty. (Mendez v. People (Colo.1999) 986 P.2d 275, 283 [distinguishing Welsh as involving "a minor, civil, nonjailable offense"]; Dolan v. Salinas (Conn.Super.Ct.1999) 1999 WL 566943, *4, 1999 Conn.Super. LEXIS 1988, *13 ["Unlike the State of Wisconsin, Connecticut provides for incarceration on a first conviction" for DUI]; Dyer v. State(Fla.Dist.Ct.App.1996) 680 So.2d 612, 613 [a misdemeanor punishable by up to a year in jail is "classified as a much more serious offense than in Welsh"]; Threatt v. State (1999) 240 Ga.App. 592, 524 S.E.2d 276, 280 (Threatt) [distinguishingWelsh because DUI, which is punishable by imprisonment of 10 days to 12 months, is "sufficiently serious criminal activity to justify an officer's warrantless, nonconsensual entry into a suspect's home to arrest the suspect"]; People v. Lagle(1990) 200 Ill. App.3d 948, 146 Ill.Dec. 551, 558 N.E.2d 514, 519 [distinguishingWelsh because DUI, a misdemeanor, is "considered a serious offense in Illinois"];State v. Legg (Iowa 2001) 633 N.W.2d 763, 773 [distinguishing Welsh becauseDUI, which is punishable by two days to one year in jail, is a "serious misdemeanor"]; State v. Paul (Minn.1996) 548 N.W.2d 260, 267 [distinguishingWelsh because DUI is a misdemeanor 759*759 and the legislature had authorized warrantless arrests for this offense when it occurs outside the officer's presence];City of Kirksville v. Guffey (Mo.Ct.App.1987) 740 S.W.2d 227, 229 [distinguishingWelsh because DUI is punishable by up to six months in jail]; State v. Ellinger(1986) 223 Mont. 349, 725 P.2d 1201, 1204 [distinguishing Welsh because DUI is a criminal offense with the possibility of imprisonment]; State v. Nikola(App.Div.2003) 359 N.J.Super. 573, 821 A.2d 110, 118 [distinguishing Welshbecause "in this State a charge of driving while under the influence of alcohol may subject an offender to a jail term of up to thirty days even for a first offense"];People v. Odenweller (1988) 137 A.D.2d 15, 527 N.Y.S.2d 127, 129 [distinguishingWelsh because DUI is punishable by up to one year in jail]; Beachwood v. Sims(1994) 98 Ohio App.3d 9, 647 N.E.2d 821, 825 [distinguishing Welsh because DUIis a misdemeanor punishable by a minimum term of three days in jail]; State v. Roberts (1985) 75 Or.App. 292, 706 P.2d 564, 566 [distinguishing Welsh becauseDUI is a misdemeanor punishable by up to one year in jail]; Beaver v. State(Tex.App. 2003) 106 S.W.3d 243, 248 [distinguishing Welsh "from cases, such as this one, where the offense is `jailable'"]; City of Orem v. Henrie (Utah Ct.App.1994) 868 P.2d 1384, 1392 [distinguishing Welsh because DUI is a misdemeanor punishable by imprisonment]; Cherry v. Com. (2004) 44 Va.App. 347, 605 S.E.2d 297, 307 ["if any bright line exists for warrantless entries into the home, it should be drawn between jailable and nonjailable offenses rather than between felonies and misdemeanors"]; State v. Griffith (1991) 61 Wash.App. 35, 808 P.2d 1171, 1176 & fn. 7 [distinguishing Welsh as a case involving a noncriminal, civil forfeiture offense without possible imprisonment]; Goines v. James (1993) 189 W.Va. 634, 433 S.E.2d 572, 577-578 [distinguishing Welshbecause DUI is a serious traffic offense punishable by up to six months in jail];State v. Hughes (2000) 233 Wis.2d 280, 607 N.W.2d 621, 631 [distinguishingWelsh because the misdemeanor offense was punishable by up to six months in jail]; Rideout v. State (Wyo. 2005) 122 P.3d 201, 210 ["The unmistakable implication of the discussion in McArthur is that the distinction drawn by the Court in Welsh between minor offenses that do not justify a warrantless entry into a residence and those offenses that do is predicated upon whether the subject offense carries a potential jail term"]; accord, Joyce v. Town of Tewksbury, Mass.(1st Cir.1997) 112 F.3d 19, 22 (en banc) ["the fact that Massachusetts classifies the alleged violation here as a misdemeanor does not reduce it to a `minor offense'" within the meaning of Welsh].).)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Against this impressive array of authority, we have found only three courts that, like the Court of Appeal below, have extended Welsh to misdemeanors carrying a possibility of imprisonment. In Patzner v. Burkett (8th Cir.1985) 779 F.2d 1363, the Eighth Circuit asserted, without much analysis, that the punishment for DUI in North Dakota—a minimum sentence of a $100 fine or three days in jail—was only a "minor difference in penalty" and thus was "not sufficient to support a result different from that reached in Welsh," inasmuch as the state had since amended its statute to eliminate the possibility of imprisonment for first-time offenders. (Patzner, supra, 779 F.2d at pp. 1368-1369 & fn. 6.) In State v. Flegel (S.D.1992) 485 N.W.2d 210, the South Dakota Supreme Court made the remarkable assertion that the misdemeanor penalties for first-offense DUI, which ranged up to one year in jail, were "similar" to those attaching to the nonjailable traffic offense in Welshand the misdemeanor penalties in Patzner. (Flegel, supra, 485 N.W.2d at p. 215.) And in 760*760 Norris v. State (1999) 338 Ark. 397, 993 S.W.2d 918, the Arkansas Supreme Court held that DUI, which was punishable by up to one year in jail, was "relatively minor" when compared to criminal offenses involving violence or the threat of violence. (Id. at p. 923; but see 3 LaFave, Search and Seizure (4th ed.2004) § 6.1(f), p. 316, fn. 211 [criticizing Norris].))  dui lawyer riverside drunk driving lawyer best dui lawyer 

We do not find these decisions persuasive. First of all, they ignore Welsh itself, which cautions that the critical factor is not the nature of the crime but "the penalty that may attach to any particular offense." (Welsh, 466 U.S. at p. 754, fn. 14, 104 S.Ct. 2091; see also Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness" (1998) 98 Colum. L.Rev. 1642, 1683 ["If Wisconsin were unhappy with the Court's decision, it could, therefore, nullify it prospectively by simply changing (legislatively) the status of driving while intoxicated from a civil violation to a criminal offense"].) Indeed, they all predate McArthur, which clarified that the significant distinction for Fourth Amendment purposes in an analogous context is whether the crimes were "`jailable'" or "`nonjailable.'" (McArthur, supra,531 U.S. at p. 336, 121 S.Ct. 946.) Moreover, none of these cases acknowledges the substantial weight of authority limiting Welsh to nonjailable offenses—or even cites a single contrary case. Finally, a bright-line rule limiting warrantless entries to felonies "would send a message to the `bad man' who drinks and drives that a hot pursuit or arrest set in motion can be thwarted by beating the police to one's door. The Fourth Amendment simply cannot be stretched nor can public safety be ensured by a bright-line felony rule which would encourage drunk drivers to elude the police by racing through the streets to the sanctuary of their houses in order to `freeze' a hot pursuit or to otherwise evade a lawful arrest." (State v. Paul, supra,548 N.W.2d at p. 268.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

If, as we have concluded, a finding of exigent circumstances in DUI cases is not categorically precluded by Welsh, we must next consider whether exigent circumstances justified the warrantless entry in this particular case. The People rely on the exception to the warrant requirement for the imminent destruction of evidence. They point out (1) that defendant's blood-alcohol level would have diminished while the police sought a warrant as the body metabolized the alcohol, and (2) that defendant could have masked his blood-alcohol level while the police sought a warrant by ingesting more alcohol. The People's concerns are well founded.
  dui lawyer riverside drunk driving lawyer best dui lawyer 
It is beyond dispute that "the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system." (Schmerber v. California (1966) 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908.) Because the "delay necessary to procure a warrant ... may result in the destruction of valuable evidence," "blood and breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible." (Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 623, 109 S.Ct. 1402, 103 L.Ed.2d 639.) Neither defendant nor the dissenting opinion here offers any reason why the dissipation of blood-alcohol evidence may be deemed to threaten the imminent destruction of evidence in Schmerber and in Skinner but not in this case. Nor does defendant offer any authority for his assertion at oral argument that the exigent circumstance relating to the imminent destruction of evidence encompasses only that evidence which qualifies as contraband or as an instrumentality of a crime. To the contrary, 761*761 most courts have concluded that the dissipation of blood-alcohol evidence "may constitute an exigent circumstance under the facts of a particular case." (City of Orem v. Henrie, supra, 868 P.2d at p. 1389; accord, Threatt, supra,524 S.E.2d at p. 281, fn. 1 ["when an officer has probable cause to arrest for the offense of DUI, the need to prevent destruction of evidence (which may occur by the dissipation of alcohol from a DUI suspect's blood while a warrant is obtained) may constitute an exigent circumstance which could justify a nonconsensual, warrantless entry into the suspect's home to arrest the suspect"]; State v. Komoto(1985) 40 Wash. App. 200, 697 P.2d 1025, 1033 ["This proposition is generally accepted by federal and state courts"]; State v. Bohling (1993) 173 Wis.2d 529, 494 N.W.2d 399, 404-405 [citing cases]; U.S. v. Reid (4th Cir.1991) 929 F.2d 990, 993-994.)[1]
  dui lawyer riverside drunk driving lawyer best dui lawyer 
Defendant contends that no exigency existed because there is a rebuttable presumption that a driver had a blood-alcohol level of 0.08 percent or more at the time of driving if the person had a blood-alcohol level of 0.08 percent or more in a chemical test performed "within three hours after the driving." (Veh.Code, § 23152, subd. (b).) Defendant misapprehends the significance of this provision, which is not a presumption at all, but only a permissive inference. (Judicial Council of Cal., Jury Instns. (2006) Bench Note to CALCRIM No. 2111, p. 149; accord, Use Note to CALJIC No. 12.61.1 (Jan.2005 ed.) p. 845.) That the jury may, but is not required to, conclude that defendant's blood-alcohol level was in excess of legal limits based on a test taken within three hours of the driving does not eviscerate the People's interest in securing a blood test as soon as possible. (State v. Bohling, supra, 494 N.W.2d at p. 405; City of Orem v. Henrie, supra, 868 P.2d at p. 1393, fn. 10 [such a limitation "evinces the Legislature's intent to promote the rapid attainment of chemical tests for alcohol content"].)
  dui lawyer riverside drunk driving lawyer best dui lawyer 
We are likewise unpersuaded by defendant's claim that any exigency is eliminated because of the possibility an expert could testify about the defendant's blood-alcohol level at an earlier point "by extrapolating backward from the later-taken results." As courts have recognized, "such extrapolations can be speculative." (State v. Bohling, supra, 494 N.W.2d at p. 405.) "[T]here are numerous variables such as weight, or time and content of last meal which may affect the rate at which the alcohol dissipates." (Carleton v. Superior Court (1985) 170 Cal.App.3d 1182, 1185, 216 Cal.Rptr. 890; see also Bennett v. Coffman (1987) 178 W.Va. 500, 361 S.E.2d 465, 469 [degree of physical exertion can affect body's metabolism of alcohol].)[2]  dui lawyer riverside drunk driving lawyer best dui lawyer 

762*762 In any event, none of defendant's arguments is responsive to the corruption of evidence that occurs when the suspect takes advantage of any delay to ingest more alcohol—or to claim to have done so—or when the suspect evades police capture until he or she is no longer intoxicated. Numerous courts have recognized this possibility as an additional reason supporting a finding of exigent circumstances in DUI cases. (Welsh, supra, 466 U.S. at p. 763, 104 S.Ct. 2091 (dis. opn. of White, J.); State v. Lovig (Iowa 2004) 675 N.W.2d 557, 566 & fn. 2;State v. Legg, supra, 633 N.W.2d at pp. 772-773; State v. Seamans, supra, 2005 Me.Super. LEXIS 105, *11, fn. 3; State v. Paul, supra, 548 N.W.2d at p. 267; City of Kirksville v. Guffey, supra, 740 S.W.2d at p. 229; People v. Odenweller, supra, 527 N.Y.S.2d at p. 129; Stark v. N.Y. State Dept. of Motor Vehicles (1984) 104 A.D.2d 194, 483 N.Y.S.2d 824, 826-827, affd. (1985) 65 N.Y.2d 720, 492 N.Y.S.2d 8, 9, 481 N.E.2d 548; City of Orem v. Henrie, supra, 868 P.2d at p. 1393; State v. Komoto, supra, 697 P.2d at p. 1033.) In this case, the corruption of evidence was not merely a theoretical possibility. The officers had good reason to believe that defendant, who had attempted to flee out the back door upon learning of their presence, would escape again or otherwise act to conceal his intoxication if given the opportunity. (See People v. Murphy (2005) 37 Cal.4th 490, 500, 36 Cal.Rptr.3d 125, 123 P.3d 155.) Time was of the essence here.

In holding that exigent circumstances justified the warrantless entry here, we need not decide—and do not hold—that the police may enter a home without a warrant to effect an arrest of a DUI suspect in every case. We hold merely that the police conduct here, taking into account all of the circumstances, was reasonable—with reasonableness measured as "`a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331; accord, People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333 ["There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The state's interest in effecting an arrest here was substantial. There was strong evidence that defendant had committed the dangerous act of DUI, a jailable offense. Officer Dejohn feared, however, the evidence of that crime was in imminent danger of destruction. His suspicions were justified. Slavka Kovarick had told the police, alternately, that defendant would be coming to the door soon, and that he was asleep and could not be woken up, but he was in fact neither sleeping nor coming to the door. Instead, he spoke quietly in the hall with Kovarick and then763*763 walked away from the officers into the backyard. The police were able to see defendant leave the house only because the front door was open, and defendant returned to the house only after Officer Dejohn made eye contact with him and motioned for him to come back in. Having attempted to flee once, defendant was at risk of doing so again if he was not promptly taken into custody. Had he escaped, the evidence of his crime would have dissipated. Even if he had been prevented from escaping, he had already demonstrated plainly his desire to evade police investigation and could have corrupted the evidence simply by resuming drinking. The police thus had ample cause to believe defendant was inside the house and that the evidence was at risk of imminent destruction, as the superior court found. (Cf. Vale v. Louisiana (1970) 399 U.S. 30, 34-35, 90 S.Ct. 1969, 26 L.Ed.2d 409 [no exigency existed where the officers had no basis for suspecting anyone was inside the house or about to destroy the narcotics].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The Court of Appeal emphasized in particular that the police had not conducted a hot pursuit in that the pursuit was initiated by a citizen and the police did not observe defendant driving or entering the house. Even if the definition of hot pursuit were to exclude the situation here (but see People v. Escudero (1979) 23 Cal.3d 800, 810, 153 Cal.Rptr. 825, 592 P.2d 312 ["it is not necessary that the suspect be kept physically in view at all times"]), it is clear that defendant had arrived at the house only minutes before the police. The police thus had reasonable cause to believe the evidence of defendant's intoxication would be fresh at the time of his arrest.  dui lawyer riverside drunk driving lawyer best dui lawyer 

The intrusion on defendant's privacy, by contrast, was a diminished one. Kovarick had left the front door wide open during the entire encounter. This not only rendered a forcible entry unnecessary, but it exposed to public view the very area where the arrest would later occur. (Cf. U.S. v. Gori (2d Cir.2000) 230 F.3d 44, 53["Once the apartment was opened to public view by the defendants in response to the knock of an invitee, there was no expectation of privacy as to what could be seen from the hall"]; U.S. v. Vaneaton (9th Cir.1995) 49 F.3d 1423, 1427.) Moreover, Officer Dejohn entered only a few feet beyond the threshold, and Officer Gutierrez followed only when it became apparent that his assistance was necessary to overcome defendant's resistance. Neither conducted a search of the residence. In short, the state's intrusion into the home was the minimum necessary to effect the arrest and extended only to areas already exposed to public view. Under these circumstances, it was reasonable for the police to enter the home without a warrant in order to arrest defendant and thereby prevent the imminent destruction of evidence of his crime.[3]  dui lawyer riverside drunk driving lawyer best dui lawyer 

In light of our holding, we find it unnecessary to address the People's additional argument that even if the warrantless entry had violated the Fourth Amendment, the exclusionary rule would not extend to the officers' observations of defendant outside the house, any statements defendant made prior to the entry or after defendant was removed from the house, or the results of his blood-alcohol test. (See New York v. Harris, supra, 495 U.S. at p. 19, 110 S.Ct. 1640; People v. Marquez (1992) 1 Cal.4th 553, 569, 3 Cal.Rptr.2d 710, 822 P.2d 418.)

DISPOSITION  dui lawyer riverside drunk driving lawyer best dui lawyer 

The judgment of the Court of Appeal is reversed.v

764*764 WE CONCUR: GEORGE, C.J., KENNARD, CHIN, MORENO, and CORRIGAN, JJ.

Dissenting Opinion by WERDEGAR, J.  dui lawyer riverside drunk driving lawyer best dui lawyer 

"A man's house is his castle." (Miller v. United States (1958) 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332.) This phrase expresses the view that one's home is a place of personal privacy and its inhabitants are entitled to freedom from governmental intrusion absent a very good reason. "At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable." (United States v. Karo (1984) 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530,quoted with approval in People v. Camacho (2000) 23 Cal.4th 824, 831, 98 Cal.Rptr.2d 232, 3 P.3d 878.) "We have, after all, lived our whole national history with an understanding of `the ancient adage that a man's home is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown.'" (Georgia v. Randolph (2006) ___ U.S. ___, ___, 126 S.Ct. 1515, 1524, 164 L.Ed.2d 208.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Not just some forgotten vestige of 15th century English law that allowed English peasants to assert their rights against a powerful monarchy, the view that one's home is a place of privacy was also shared by the Framers of the United States Constitution. We need not interpret or gloss the constitutional text for hidden or obscure meaning, for the drafters of the Fourth Amendment made this point plain on the face of the document: "The right of the people to be secure in their persons,houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause." (U.S. Const., 4th Amend., italics added.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The United States Supreme Court has emphasized repeatedly the primacy of the constitutional protection for persons in their homes. "`[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" (Payton v. New York (1980) 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639.) "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." (Silverman v. United States (1961) 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734.) The high court has been vigilant in extending this concept in the face of new technological threats to the sanctity of the home. (See Kyllo v. United States(2001) 533 U.S. 27, 28, 121 S.Ct. 2038, 150 L.Ed.2d 94 [warrantless use of a thermal imaging device to explore details inside home violated 4th Amend.]; United States v. Karo, supra, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 [warrantless placement of a beeper into a home violated 4th Amend.].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

This court has also on numerous occasions recognized this special constitutional protection for persons in their homes. For example, we held a warrantless search of a suspect's home could not be justified by a parole search condition of which police were unaware (People v. Sanders (2003) 31 Cal.4th 318, 324, 2 Cal.Rptr.3d 630, 73 P.3d 496); that, absent more, the warrantless entry into a suspect's home was not justified solely by the arrest of the suspect outside the home (People v. Celis (2004) 33 Cal.4th 667, 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027); that a person's expectation of privacy in the home was not compromised by his exposure of the home's interior to a private side yard (People v. Camacho, supra, 23 Cal.4th 824, 98 Cal. 765*765 Rptr.2d 232, 3 P.3d 878); and that the presumptive constitutional protection of the home extended to an attached garage (People v. Robles (2000) 23 Cal.4th 789, 795, 97 Cal.Rptr.2d 914, 3 P.3d 311; see Cal. Const., art. I, § 13). Perhaps our seminal case in this area is People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, where we held the warrantless entry into a suspect's home to make an arrest, even though supported by probable cause to believe he was guilty of a felony, was unreasonable per se under the Fourth Amendment to the United States Constitution and the state Constitution, at least in the absence of exigent circumstances. Four years later, the United States Supreme Court came to this view itself, holding in Payton v. New York that, in the absence of exigent circumstances, police entry into a suspect's home to arrest him for a felony was "presumptively unreasonable" in the absence of a warrant. (Payton v. New York, supra, 445 U.S. at p. 587, 100 S.Ct. 1371.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

I agree with the majority that Welsh v. Wisconsin (1984) 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732, wherein the high court concluded the warrantless arrest of a suspected drunk driver in his home was invalid, may plausibly be distinguished from the instant case on the ground the crime at issue in that case was not a jailable offense. (Maj. opn., ante, 43 Cal. Rptr.3d at pp. 756-757, 135 P.3d at pp. 8-9; Welsh v. Wisconsin, at pp. 742, 104 S.Ct. 2091 [emphasizing crime was "a nonjailable traffic offense"], 753, 104 S.Ct. 2091 ["important factor" was "the gravity of the underlying offense" and that crime was "a noncriminal, traffic offense"].) But even assuming Welsh is distinguishable from the instant case on the ground that incarceration is a possible punishment for drunk driving in California, I am not persuaded police were legally entitled, on the facts of this case, to enter defendant's home against his wishes without a warrant. The majority concedes, as it must, the Fourth Amendment's presumptive protection of persons in their homes, but reasons the warrantless entry into this defendant's home was justified by exigent circumstances. Because I disagree such circumstances existed here, and because I also find the majority's attempt to circumscribe the sweep of its holding unpersuasive, I dissent.  dui lawyer riverside drunk driving lawyer best dui lawyer 

I

The ultimate standard established by the Fourth Amendment to the United States Constitution is one of reasonableness. (Cady v. Dombrowski (1973) 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706.) Beginning with the unassailable proposition that the warrantless entry by government agents into a person's home is "presumptively unreasonable" (Payton v. New York, supra, 445 U.S. at p. 587, 100 S.Ct. 1371, italics added), courts have nevertheless recognized some "`specifically established and well-delineated exceptions' to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576), such as `"hot pursuit of a fleeing felon, or imminent destruction of evidence, ... or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling"' (Minnesota v. Olson (1990) 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85)." (People v. Celis, supra, 33 Cal.4th at p. 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027.) "A warrantless search by the police is invalid unless it falls within one of the narrow and well-delineated exceptions to the warrant requirement." (Flippo v. West Virginia (1999) 528 U.S. 11, 13, 120 S.Ct. 7, 145 L.Ed.2d 16; People v. Wharton (1991) 53 Cal.3d 522, 576-577, 280 Cal. Rptr. 631, 809 P.2d 290 [same].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

766*766 Once defendant demonstrated that police entered his home without a warrant, the burden shifted to the prosecution "to prove that the entry was nevertheless reasonable." (People v. Williams (1988) 45 Cal.3d 1268, 1300, 248 Cal.Rptr. 834, 756 P.2d 221.) Police admittedly did not have an arrest warrant permitting them to enter defendant's home and had been expressly denied consent to enter by defendant's housemate. (Georgia v. Randolph, supra, ___ U.S. ___, 126 S.Ct. 1515.) Although the majority hints otherwise (maj. opn., ante, 43 Cal.Rptr.3d at p. 763, 135 P.3d at p. 14), the forced entry cannot be justified under the hot pursuit doctrine, as "there was no immediate or continuous pursuit ... from the scene of the crime." (Welsh v. Wisconsin, supra, 466 U.S. at p. 753, 104 S.Ct. 2091.) Defendant had already arrived home, he was apparently sleeping in his bedroom, and police were on the scene; hence, "there was little remaining threat to the public safety." (Ibid.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The majority concludes the failure by police to obtain a warrant before entering defendant's home is excused by the exigent-circumstances exception to the warrant requirement. "`"`[E]xigent circumstances' means an emergency situation requiring swift action to prevent imminent danger or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers."' [Citations.] The exception is applicable to the federal Constitution (see Mincey v. Arizona (1978) 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290) and `California courts are in full accord with the ... emergency exception to the warrant requirement.'" (People v. Wharton, supra, 53 Cal.3d at p. 577, 280 Cal.Rptr. 631, 809 P.2d 290.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

"In evaluating exigency, relevant factors include `"(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge `that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.'"'" (People v. Gentry (1992) 7 Cal.App.4th 1255, 1261-1262, 9 Cal.Rptr.2d 742.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The majority locates such an emergency situation inside defendant's body, which was slowly but inexorably metabolizing and thus destroying the alcohol police believed he had consumed. The emergency, in other words, involved the potential destruction of the evidence of defendant's crime of drunk driving. That such "burn off" occurs is undisputed. (People v. Schofield (2001) 90 Cal.App.4th 968, 975, 109 Cal.Rptr.2d 429; see In re Martin (1962) 58 Cal.2d 509, 512, 24 Cal.Rptr. 833, 374 P.2d 801 ["It is a matter of common knowledge that the intoxicating effect of alcohol diminishes with the passage of time"].) What is disputed is whether this natural metabolic process, standing alone, constitutes an emergency such that police may dispense with obtaining a warrant and immediately enter a person's home against his will.  dui lawyer riverside drunk driving lawyer best dui lawyer 

None of the cases on which the majority relies supports its broad conclusion that the natural metabolization of blood alcohol alone constitutes an exigent circumstance sufficient to permit police to enter a person's 767*767 home against his or her wishes and without a warrant. For example, in Schmerber v. California(1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the United States Supreme Court cited the natural metabolization of a body's blood alcohol to justify the police taking a nonconsensual blood sample from a suspect notwithstanding the lack of a search warrant. But the defendant in Schmerber had already been arrested and was in police custody, not in his home. Moreover, the fact of the alcohol burn off was just one factor the high court considered: "We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest." (Id. at pp. 770-771, 86 S.Ct. 1826, italics added.) No such time pressures or "special facts" were shown in the instant case; indeed, police were on the scene just minutes after defendant apparently had taken his last drink. (SeeVale v. Louisiana (1970) 399 U.S. 30, 35, 90 S.Ct. 1969, 26 L.Ed.2d 409 [in finding no exigent circumstances, court emphasized absence of evidence showing that obtaining a warrant was "impracticable"].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Similarly, in Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639, the high court merely recognized that "alcohol and other drugs are eliminated from the bloodstream" (id. at p. 623, 109 S.Ct. 1402), a point no one disputes; it did not hold such elimination constituted an exigent circumstance entitling police to enter one's home without a warrant. Instead, the court held the warrant requirement was excused because the government's interest in regulating railway workers presented a special need beyond normal law enforcement. (Id. at p. 620, 109 S.Ct. 1402.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The majority opines that "most courts have concluded that the dissipation of blood-alcohol evidence `may constitute an exigent circumstance under the facts of a particular case.'" (Maj. opn., ante, 43 Cal. Rptr.3d at p. 761, 135 P.3d at p. 12, italics added.) The qualifiers are important. The cases the majority cites in support are all distinguishable. In City of Orem v. Henrie (Utah Ct.App.1994) 868 P.2d 1384, the defendant was suspected not only of driving while intoxicated, but also of leaving the scene of an accident. In State v. Komoto (1985) 40 Wash.App. 200, 697 P.2d 1025, the defendant struck and killed a pedestrian. In both cases, the blood-alcohol evidence was needed to prosecute crimes far more serious than mere driving under the influence (DUI). The warrantless entry into a home may therefore have been justified. Here, by contrast, defendant was suspected only of driving while intoxicated, and at the time police entered his home any threat to public safety had ceased.  dui lawyer riverside drunk driving lawyer best dui lawyer 

The majority also cites State v. Bohling (1993) 173 Wis.2d 529, 494 N.W.2d 399and United States v. Reid (4th Cir.1991) 929 F.2d 990 in support (maj. opn., ante,43 Cal.Rptr.3d at p. 761, 135 P.3d at p. 12), but in both cases the defendants were lawfully arrested outside the home, at the scene of a traffic accident (Bohling) or at a traffic stop on the highway (Reid); their challenges were to the warrantless drawing of a blood sample. The cases thus presented a straightforward application of Schmerber v. California, supra, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908,and do not support the notion that the mere dissipation 768*768 of blood-alcohol evidence, standing alone, creates such an emergency that police may enter a suspect's home without a warrant or consent.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Finally, the majority cites Threatt v. State (1999) 240 Ga.App. 592, 596, 524 S.E.2d 276, but that case held, on facts similar to those here, that exigent circumstances did not, in fact, exist to authorize the warrantless entry to arrest for the crime of reckless driving. The Georgia appellate court then stated in dictum that—had officers possessed probable cause to arrest for DUI—the dissipation of evidence "may constitute an exigent circumstance." (Id. at p. 596, fn. 1, 524 S.E.2d 276, italics added.) In support, the Threatt court cited State v. Tosar (1986) 180 Ga.App. 885, 888, 350 S.E.2d 811, a case that did not involve entry into a home.  dui lawyer riverside drunk driving lawyer best dui lawyer 

Invocation of the exigent-circumstances exception to the warrant requirement, moreover, must be supported by a showing of the "imminent destruction of evidence." (Minnesota v. Olson, supra, 495 U.S. at p. 100, 110 S.Ct. 1684, italics added; see also Brigham City v. Stuart (May 22, 2006, No. 05-502) ___ U.S. ___, ___, 126 S.Ct. 1943, ___ L.Ed.2d ___, 2006 WL 1374566, *4 [destruction of evidence must be "imminent"].) The prosecution made no showing in this case that the delay in obtaining a warrant would have resulted in the imminent destruction,as opposed to the gradual and incremental degradation, of the alcohol in defendant's body. Indeed, a delay of an hour or two to obtain a warrant would have made little difference, for "[i]t is common . . . for experts to take into account the metabolization rate of a substance and extrapolate from the amount of a substance in a blood sample to arrive at an opinion regarding the amount of the substance in the blood at a critical point in time." (People v. Clark (1993) 5 Cal.4th 950, 993, 22 Cal.Rptr.2d 689, 857 P.2d 1099.) The majority disparages the efficacy of so-called retrograde extrapolation evidence, asserting such evidence "`can be speculative'" (maj. opn., ante, 43 Cal. Rptr.3d at p. 761, 135 P.3d at p. 12), but surely it does not mean to suggest the admissibility of this type of evidence is suspect. In any event, the rule in this state (People v. Clark, supra, 5 Cal.4th 950, 22 Cal.Rptr.2d 689, 857 P.2d 1099)[1] and, indeed, in the majority of jurisdictions, is that retrograde extrapolation evidence is admissible, though of course its weight is subject to challenge, as are the qualifications of the expert witness presenting the evidence. (See generally Annot., Admissibility and Sufficiency of Extrapolation Evidence in DUI Prosecutions (2004) 119 A.L.R.5th 379.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

To further support its contention the exigent-circumstances doctrine applies here, the majority relies on the possibility defendant could have corrupted the evidence of his alcohol consumption by consuming more alcohol. (Maj. opn., ante, 43 Cal.Rptr.3d at p. 762, 135 P.3d at p. 13.) But this argument proves too much, for the possibility exists in every case that a criminal suspect in his home will try to destroy evidence of his crime. The drug dealer may flush his stash away, the bookie may burn his betting slips, the killer may take a metal file to the barrel of his gun or clean his hands of gunshot residue. The mere possibility a defendant may drink additional quantities of liquor is insufficient to overcome the constitutionally769*769 protected privacy interests of a person in his home. Instead, police must havearticulable facts that would lead a reasonable officer to believe such destruction isabout to occur. "`"[F]ear or apprehension alone that evidence will be destroyed will not justify a warrantless entry of a private home." [Citation.] Instead, "[t]here must exist `specific and articulable facts which, taken together with rational inferences...,' support the warrantless intrusion."'" (People v. Gentry, supra, 7 Cal.App.4th at p. 1262, 9 Cal.Rptr.2d 742.)  dui lawyer riverside drunk driving lawyer best dui lawyer 
  dui lawyer riverside drunk driving lawyer best dui lawyer 
Vale v. Louisiana, supra, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, illustrates this basic point of law. In that case, after police arrested the defendant outside a home, they entered the home without a warrant to search for drugs. The Louisiana Supreme Court upheld the search, in part, because the crime "involved narcotics, which are easily removed, hidden, or destroyed. It would be unreasonable, the Louisiana court concluded, `to require the officers under the facts of the case to first secure a search warrant before searching the premises, as time is of the essence inasmuch as the officers never know whether there is anyone on the premises to be search[ed] who could very easily destroy the evidence.'" (Id. at p. 34, 90 S.Ct. 1969.) The United States Supreme Court flatly rejected the state court's reasoning, explaining: "Such a rationale could not apply to the present case, since by their own account the arresting officers satisfied themselves that no one else was in the house when they first entered the premises. But entirely apart from that point, our past decisions make clear that only in `a few specifically established and well-delineated' situations [citation] may a warrantless search of a dwelling withstand constitutional scrutiny." (Ibid.) Because there was no evidence someone was about to remove or destroy evidence, the high court held the exigent-circumstances exception did not apply.  dui lawyer riverside drunk driving lawyer best dui lawyer 

As in Vale v. Louisiana, supra, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, the prosecution in this case presented no evidence suggesting defendant was about to alter evidence of his guilt by drinking again. Neither Officer Gutierrez nor Dejohn observed defendant drinking, or attempting to drink, any intoxicating beverage. Witness Madelene Orvos reported that defendant had discarded an empty bottle of vodka. Defendant's housemate, Slavka Kovarick, told police defendant was sleeping, which was apparently the case until police instructed her to awaken him. Although the majority opines that "[t]he officers had good reason to believe that defendant ... would ... act to conceal his intoxication if given the opportunity" (maj. opn., ante, 43 Cal.Rptr.3d at p. 762, 135 P.3d at p. 13), the record confirms police possessed no articulable facts suggesting defendant was actively corrupting, or about to corrupt, the blood-alcohol evidence by resuming his consumption of alcohol. By accepting in support of exigency the argument that defendant couldcorrupt the evidence, the majority converts the narrow exigent-circumstances exception to the constitutional warrant requirement into a free pass for police: So long as the destruction of evidence is possible, police may dispense with a warrant. But the possibility a suspect will destroy evidence exists in every case;that possibility thus cannot be the predicate for invoking the narrow exigent-circumstances exception to the constitutional requirement for a warrant. (Cf.People v. Gonzalez (1989) 211 Cal. App.3d 1043, 1050, 259 Cal.Rptr. 846 ["If specific indications of . . . destruction of evidence were not required, the exigent-circumstances exception would entirely consume" the knock-notice requirement].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

770*770 Realizing, perhaps, that none of its previous rationales adequately justify the warrantless entry, the majority suggests defendant had attempted to flee. (Maj. opn., ante, 43 Cal.Rptr.3d at pp. 762-763, 135 P.3d at pp. 13-14.) This suggestion finds no support in the record. Officer Dejohn testified defendant, on learning police were on his doorstep, left his house by the back door, walked about 10 feet into the backyard, and then returned to the house. Although this caused Dejohn to be concerned defendant would flee, he admitted defendant was so intoxicated that he was staggering and slurring his words and that he immediately returned to the house. But even assuming defendant might have attempted to flee, that possibility did not create an emergency situation justifying the warrantless entry. Police at the scene could easily have detained him while they sought a warrant. In any event, the prosecution did not argue below that defendant's asserted attempt to flee created an emergency situation, and the trial court did not mention this circumstance. The court denied defendant's suppression motion solely on the ground that his body's metabolization of alcohol in his blood constituted the destruction of evidence. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640-641, 108 Cal.Rptr. 585, 511 P.2d 33 [People cannot change theory on appeal of suppression decision].)  dui lawyer riverside drunk driving lawyer best dui lawyer 

Finally, the majority attempts to minimize the scope of its holding, explaining that it does not decide "that police may enter a home without a warrant to effect an arrest of a DUI suspect in every case. We hold merely that the police conduct here, taking into account all of the circumstances, was reasonable...." (Maj. opn., ante,43 Cal.Rptr.3d at p. 762, 135 P.3d at p. 13.) I find the majority's attempt to circumscribe the sweep of its holding both unpersuasive and disingenuous. What are the circumstances in this case that make it unusual? Police had probable cause to believe defendant had recently become intoxicated and had driven home and that he was now inside his house. Police lacked both a warrant and consent to enter. Defendant's body was naturally metabolizing the alcohol, but that would be true in every crime involving alcohol. Defendant might consume additional alcohol, thereby corrupting the evidence, but that possibility, too, would exist in every case involving an alcohol-related crime. Police, in any event, had no articulable facts to suggest defendant was about to drink anything. Under the majority's reasoning, therefore, it would appear that any time police have probable cause to arrest someone for an alcohol-related crime (for which the possible penalty involves some jail time) and they reasonably believe the suspect is in his home, they may forcibly enter without a warrant to make an arrest to preserve the blood-alcohol evidence. One can only hope the majority's reasoning today is akin to "a restricted railroad ticket, good for this day and train only." (Smith v. Allwright (1944) 321 U.S. 649, 669, 64 S.Ct. 757, 88 L.Ed. 987 (dis. opn. of Roberts, J.).)  dui lawyer riverside drunk driving lawyer best dui lawyer 

II

That those enforcing our criminal laws will proceed vigorously is generally to society's benefit, but the Fourth Amendment to the United States Constitution places reasonable and recognizable limits on such activities. One such limit is that the warrantless entry into an individual's home is presumptively unreasonable unless justified by one of the narrow exceptions to the warrant requirement. By requiring, in all other situations, the interposition of the considered judgment of a neutral magistrate, the Constitution protects the citizenry's reasonable expectation of privacy in their homes. As Justice Robert Jackson 771*771 explained: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent." (Johnson v. United States (1948) 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

The majority endorses a scheme today by which police may too easily evade the warrant requirement. Because I conclude its reasoning and result are contrary to the Fourth Amendment to the United States Constitution, I dissent.  dui lawyer riverside drunk driving lawyer best dui lawyer   dui lawyer riverside drunk driving lawyer best dui lawyer 

[1] The dissent concedes that the dissipation of blood-alcohol evidence may constitute an exigent circumstance to justify a warrantless entry to effect an arrest, but would limit such arrests to crimes "far more serious than mere driving under the influence." (Dis. opn., post, 43 Cal.Rptr.3d at p. 767, 135 P.3d at p. 17.) The text of the Fourth Amendment, however, offers no basis for distinguishing between DUI, which is a serious and jailable offense in California (see ante, at pp. 757-758, 135 P.3d at pp. 8-9), and the crimes alleged in Henrie and Komoto, nor does the dissent point to any case law to support such a distinction. Indeed, inasmuch as the dissent concedes that the nonjailable offense in Welsh is distinguishable from the jailable offense in this case (dis. opn., post, at p. 765, 135 P.3d at p. 15), the line the dissent would draw between this case and Henrie or Komoto remains undefined.  dui lawyer riverside drunk driving lawyer best dui lawyer 

[2] Defendant also argues that a person suspected of DUI may refuse to submit to chemical testing and accept the specified punishment, rendering the blood-alcohol evidence superfluous. Defendant once again misapprehends the statutory scheme. A person who drives a motor vehicle "is deemed to have given his or her consent to chemical testing" of his or her blood, breath, or urine for the purpose of determining the alcoholic or drug content of his or her blood (Veh.Code, § 23612, subds.(a)(1)(A) & (B), (d)(2)). "It is thus firmly established that a drunken driver has no right to resist or refuse such a test." (Bush v. Bright (1968) 264 Cal.App.2d 788, 792, 71 Cal.Rptr. 123.) Moreover, the possibility of sanctions under Vehicle Code section 13353 for the driver's refusal to submit to chemical tests does not preclude the People from also obtaining a blood sample without any further approval, based on the consent any driver has given under section 23612, and punishing the driver for the criminal act of driving under the influence. (Covington v. Department of Motor Vehicles (1980) 102 Cal. App.3d 54, 60, 162 Cal.Rptr. 150; People v. Fite (1968) 267 Cal.App.2d 685, 690-691, 73 Cal.Rptr. 666.)  dui lawyer riverside drunk driving lawyer best dui lawyer 

[3] To the extent dictum in People v. Schofield, supra, 90 Cal.App.4th at pages 970 and 975, 109 Cal.Rptr.2d 429, is inconsistent with the views expressed herein, it is disapproved.  dui lawyer riverside drunk driving lawyer best dui lawyer 

[1] See also Vehicle Code section 23152, subdivision (b) which states in part: "In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving."    dui lawyer riverside drunk driving lawyer best dui lawyer 

Hire a DUI lawyer from the best dui law firm and get the dui facts about the drunk driving myths. What was really funny was that 2 weeks after the officer arrested my client he went to a SFST class. This was when my cross really got interesting. As we went through his failures in giving the SFST he had to agree that he gave the SFST wrong on several, several occasions. I also have over 15 hours of training on the Datamaster DMT breath machine. I am the owner of the Alcosensor IV PAS breath machine which is the most widely used roadside breath tester in So. Cal.

Hire a DUI lawyer from the best DUI law firm and get the dui facts about the drunk driving myths. A quick story, the other day I was in a DMV hearing and I was cross examining the officer. Some of the highlights made me almost laugh outload. The officer could not identify the 3 SFST. As you read this you probably already know that they are the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS). As we went through the cross examination the officer could not identify the 3 validating clues in the HGN, he did not know how many clues were needed to believe that my client might have been over a .08. The Officer did not know the 8 clues associated with the WAT, in fact he made up other clues as he went along. I did finally start to smurk as he failed to understand the OLS or the 4 clues associated with that test.

Attorney Patrick J. Silva has focused his law practice defending those who have been accused of driving under the influence. We represent good folks both in the criminal court system and in the DMV proceedings. Mr. Silva is certified in Standardize Field Sobriety Tests (SFST). He has completed 24 hours of intense training under the guidelines set forth by the National Highway Traffic Safety Administration (NHTSA). It is "only" with this specialized training that allows an attorney to effectively cross examine a police officer on the stand about how he "screwed" up when he was giving you the test.

Mr. Silva started representing those accused of DUI over 13 years ago. We like to say we represent the "falsely" accused. He is a member of the CALIFORNIA DUI LAWYERS ASSOCIATION which is a close knit membership of DUI Attorneys whose main goal is the represention of those accused of DUI. Patrick J. Silva is also a member of NATIONAL COLLEGE FOR DUI DEFENSE which is compromised of the "best" dui attorneys in the nation. Hire a DUI Lawyer from the Best DUI Law Firm and get the DUI facts about the Drunk Driving Myths.

One of my proudest days as a DUI Trial Lawyer came after I had actually lost a .17% blood BAC jury trial. Actually, I got a Not Guilty on the .08% count but lost on the "Driving Impaired" count.  Anyways, after the trial the judge told me that in his 30 plus years as a trial judge I was the "best dui trial attorney" he had ever seen.

Patrick J. Silva is a well respected DUI Lawyer in Riverside County. He has over the last 14 years successfully defended those accused of this "opinion" crime. His hard work over the past years has lead to his success today!

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If I handle your case I can promise 2 things, I am really really good at what I do, and I will work hard for you. I AM APPROVED BY THE STATE BAR OF CALIFORNIA TO TEACH OTHER LAWYERS ABOUT BLOOD TESTING IN A DUI CASE.  The judge said I was one of the best DUI Lawyers he had seen in 30 plus years. "My name is David and when I got my 3rd DUI I hired Pat Silva to fight for me and he did! He got my 3rd DUI dropped, all I had to do was plead no contest to a few moving violations. I had a bac of .17 and he still got it dropped that's why I call him the specialist!"     ONLINE REVIEWS!