People v. Diaz

JEFFERSON, J. In a trial by the court, defendant was found guilty of driving a vehicle upon a highway, while addicted to heroin, in violation of section 23105 of the Vehicle Code. A motion for new trial was denied, proceedings were suspended and probation was granted for three years upon the usual conditions and that defendant spend the first 30 days in the county jail.

Defendant noticed her appeal “from the Order Denying Motion for New Trial,” a nonappealable order. (Pen. Code, § 1237.) However, because a notice of appeal “shall be liberally construed in favor of its sufficiency” (Cal. Rules of Court, rule 31(b)), we treat the notice of appeal here, as being from the judgment (order granting probation).

Three issues are raised in this appeal: (1) whether, as applied to defendant, section 23105 of the Vehicle Code is constitutional, (2) whether certain statements made by defendant to the police were inadmissible under the exclusionary rule of People v. Dorado, 62 Cal.2d 338, 353-354 [42 Cal.Rptr. 169, 398 P.2d 361], and (3) whether the evidence was sufficient to support a finding that such statements were voluntary.

In view of our conclusion that the judgment must be [820]reversed under People v. Dorado, supra, we need not decide point (3).

As to point (1), the question presented is whether a licensed driver may constitutionally be punished for driving while addicted, unless it is shown that his ability to drive was impaired at the time of driving. Defendant argues that Robinson v. California, 370 U.S. 660 [82 S.Ct. 1417, 8 L.Ed.2d 758] (which holds that mere addiction is not a crime), is applicable. Our Supreme Court in the recent case of People v. O’Neil, 62 Cal.2d 748 [44 Cal.Rptr. 320, 401 P.2d 928], which was handed down subsequent to the filing of the briefs and the oral argument on the present appeal, has decided the issue contra to defendant’s position. In upholding the constitutionality of section 23105, the court in O'Neil, stated (at p. 754, fn. 9), that “. . . the proscription found in section 23105 does not fall under the holding of Robinson v. California. ...”

The facts pertinent to the Dorado issue (point (2)) follow:

Officer Reed, a police officer trained in narcotic law enforcement, was called to the scene of an automobile accident in which one of the vehicles involved was an automobile driven by defendant. After observing numerous puncture marks over the veins on defendant’s arms and that she exhibited the numerous symptoms of drug addiction—running nose, chilling, watery eyes, gagging or nausea, pupil fluctuation and dilation —the officer formed the opinion that she was an addict, then in a “withdrawal” state.