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Wallace v. Municipal Court for Chico Judicial District of Butte County2/22/1983
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
Civ. No. 22067
1983.CA.41057 ; 140 Cal. App. 3d 100; 189 Cal. Rptr. 886
February 22, 1983
ELWYN CHESTER WALLACE, PETITIONER,
v.
THE MUNICIPAL COURT FOR THE CHICO JUDICIAL DISTRICT OF BUTTE COUNTY, RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST
Leverennz, Ward & Sweeney and William A. Ward for Petitioner.
No appearance for Respondent.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Real Party in Interest.
Opinion by Sparks, J., with Evans, Acting P. J., and Bond, J., concurring.
Sparks
Penal Code section 853.6, subdivision (e)(3), provides that the failure of the prosecutor to file the notice to appear or a formal complaint in the
municipal or justice court within 25 days of the arrest shall bar prosecution of the misdemeanor charged in the notice to appear. The principal issue in this writ proceeding is whether, for the purposes of the bar of that section, the crime of driving under the influence of an alcoholic beverage or any drug in violation of Vehicle Code section 23152, subdivision (a), is the same offense as driving with a blood-alcohol level of 0.10 percent or more in violation of Vehicle Code section 23152, subdivision (b). We hold that it is not.
Petitioner Elwyn Chester Wallace was arrested for suspected drunken driving on February 15, 1982. He was transported to the Chico Police Department and given a breath test on an Omicron Intoxilyzer. The results of that test were printed on an intoxilyzer test record. The arresting officer prepared a notice to appear upon which was written "DUI of an alcoholic beverage" and which specified the offense as a violation of Vehicle Code section 23152, subdivision (a). Wallace signed the notice to appear, was given a copy, and was then released.
On February 16, 1982, the notice to appear, together with an arrest and investigation report, and the intoxilyzer test record, was delivered to the Butte County District Attorney's office. The prosecutor added as count II a charge of a violation of Vehicle Code section 23152, subdivision (b), driving with a blood-alcohol level of 0.10 percent or above. He then filed the amended notice to appear in the municipal court on March 26, 1982, some 39 days after petitioner's arrest.
Wallace moved to dismiss the charges against him under Penal Code section 853.6, subdivision (e)(3), on the ground that the prosecutor had not filed the notice or a complaint within 25 days of his arrest. The municipal court dismissed count I, but refused to dismiss count II. Wallace sought a writ of prohibition from the superior court. In that writ proceeding, petitioner unsuccessfully argued that the two subdivisions of Vehicle Code section 23152 state the identical offense for purposes of the bar of Penal Code section 853.6, subdivision (e)(3). The superior court held that the bar to prosec
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