People v. Olive

California Supreme Court Jul 24, 2001 No. AD-4645Published

Before: Kopp

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Holding. Vehicle Code section 23152, subdivision (a) is not unconstitutionally vague for failing to explicitly name kava as a drug, as the statute provides sufficient notice by prohibiting the operation of a vehicle while impaired by any substance that affects the nervous system, brain, or muscles. Furthermore, a defendant challenging the constitutionality of a statute as applied bears the initial burden of proof, which the respondent failed to meet.

Issues

Does Vehicle Code section 23152, subdivision (a) violate due process by failing to explicitly list kava as a prohibited drug?
Who bears the burden of proof when a defendant challenges the constitutionality of a statute as applied?
Does the definition of 'drug' in Vehicle Code section 312 provide sufficient notice of prohibited conduct to satisfy constitutional requirements?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Omission of kava by its name does not render section 23152, subdivision (a) unconstitutionally vague as applied.”

“It describes conduct; it does not purport to identify particular drugs, and it is not required constitutionally in this case to do so.”

“respondent, not appellant, was first obliged procedurally to establish, by experts or other evidentiary sources, unconstitutional application, after which appellant could respond.”

112 Cal.Rptr.2d 687 (2001) 92 Cal.App.4th Supp. 21 The PEOPLE, Plaintiff and Appellant,

Sione OLIVE, Defendant and Respondent.

No. AD-4645. Appellate Division, Superior Court, San Mateo County.

July 24, 2001. [688] Rachel Holt, for Respondent.

Hugo Borja, for Appellant.

KOPP, J.

This appeal involves a legal issue of first impression and continuing public interest in California.

Respondent, driving erratically at a slow speed southbound on U.S. Highway 101 at 1:20 a.m. on June 17, 2000, was stopped by California Highway Patrol officers. Requested to walk to the officers' vehicle, respondent displayed difficulty in maintaining his balance. His movements were deliberate, slow and sluggish; his eyes were red and watery. He denied drinking any alcohol but stated he had consumed approximately 23 cups of kava. Asked if he felt any effects from the kava, respondent replied that he felt "slow and heavy." Immediately thereafter, physical sobriety tests were administered to the respondent. His performance was flawed. A preliminary alcohol screening test showed 0.00% alcohol in his blood. One of the officers then arrested respondent after forming the opinion that respondent was under the influence of alcohol or a drug and his ability to operate a motor vehicle safely was impaired.

Appellant commenced criminal action against respondent on June 19, 2000, accusing him of violating Vehicle Code section 23152, subdivision (a).[1] Respondent moved to dismiss the charge, claiming unconstitutionality of section 23152, subdivision (a) as applied to him in the circumstances of the case. He alleged the statute was "overly broad and vague" and its application on the facts of the case denied him "due process of law." Respondent further contended section 23152, subdivision (a) provides no notice that driving under the influence of kava is a crime and that neither by statute nor case law is kava deemed a drug under section 23152, subdivision (a).

Respondent also moved pursuant to Penal Code section 1538.5 to suppress evidence from a postarrest urine test. Respondent's motion to suppress evidence was considered first by the trial court at a hearing in which the arresting officer testified for appellant and was cross-examined

People v. Olive

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KOPP, J.

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