People v. McCunney CA2/6

Filed 3/5/14 P. v. McCunney CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B246996 (Super. Ct. No. 1356020) Plaintiff and Respondent, (Santa Barbara County)

v.

BRUCE ALAN McCUNNEY II,

Defendant and Appellant.

Bruce Alan McCunney II appeals an order of probation following conviction of driving under the influence of alcohol, and driving with an 0.08 percent blood alcohol level, with findings that he violated Vehicle Code provisions while driving, and that more than one victim sustained bodily injury. (Veh. Code, §§ 23153, subds. (a) & (b), 22107, 22349, 27315, subd. (d)(1), 23558.)1 We affirm. FACTS AND PROCEDURAL HISTORY Shortly after midnight on April 20, 2011, California Highway Patrol Officer Scott Williams responded to the report of a traffic accident on the highway south of Buellton. Williams found McCunney and Travis Hawley standing on the shoulder of the southbound highway lane. McCunney informed Williams that he had been driving his vehicle at approximately 65 to 70 miles per hour when he lost control ("cut off by a

1 All further statutory references are to the Vehicle Code.

white SUV") and drove down an embankment into a ravine. McCunney stated that his passengers were still inside the vehicle. Williams noticed that McCunney's eyes were red, his speech was slurred, and he had an alcohol odor. Believing that McCunney was under the influence of alcohol, Williams administered field sobriety tests. McCunney performed poorly on the tests and had difficulty following the test instructions. Williams then arrested McCunney for being under the influence of alcohol. McCunney later admitted that he had consumed two containers of beer earlier that evening. The five passengers in McCunney's vehicle sustained individual injuries, including a fractured pelvis, a broken tooth, lacerations, and poison oak rash (the ravine contained poison oak). McCunney suffered a bloody nose and a lacerated lip. At trial, several of McCunney's passengers testified that he was driving between 75 and 85 miles per hour and swerving or "goof[ing] off" before "fishtail[ing]" off the road. A blood alcohol test revealed that McCunney had a blood alcohol level of 0.15 several hours following the accident. An alcohol breath test administered later revealed a 0.11 blood-alcohol concentration. Nicholas Coronado, a criminalist whose expertise includes forensic alcohol analysis, opined that a person whose blood alcohol level is 0.15 within an hour and one- half of an accident, and 0.11 within two and one-half hours of an accident, is sufficiently impaired to preclude safe operation of a motor vehicle. The jury convicted McCunney of driving under the influence of alcohol (count 1), and driving with an 0.08 percent blood alcohol level (count 2). (§ 23153, subds. (a) & (b).) It also found that he violated three Vehicle Code provisions while driving, and that more than one victim sustained bodily injury. (§§ 22107 [unsafe lane change without signaling], 22349 [exceeding maximum speed limit], 27315, subd. (d)(1) [passengers not wearing seatbelts], 23558 [bodily injury enhancement].) The trial court suspended imposition of sentence and granted McCunney five years of formal probation with terms and conditions, including service of 180 days confinement in county jail. The