People v. Lujan2/18/1983
California Appellate Department, Superior Court
Crim. A. Nos. 1064, 1065, 1059
192 Cal.Rptr. 109, 1983.CA.41059
February 18, 1983
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LAURENCE JOSEPH LUJAN, DEFENDANT AND APPELLANT. THE PEOPLE, PLAINTIFF AND RESPONDENT, V. RAYMOND FRANK BLASCHKE, DEFENDANT AND APPELLANT. THE PEOPLE, PLAINTIFF AND RESPONDENT, V. JOE LOUIS TUCKER, DEFENDANT AND APPELLANT
Municipal Court for the San Bernardino County Judicial District, Central Division, of San Bernardino County, Nos. TSB-40413, TSB-40391, and TSB-40698, Thomas Parry, Temporary Judge, and David Aaron, Judge.
Charles E. Ward, Public Defender, and Kathleen Bryan-Hackleman, Deputy Public Defender, for Defendants and Appellants.
Dennis Kottmeier, District Attorney, Sally Penso and Tracy Bartell, Deputy District Attorneys, for Plaintiff and Respondent.
Opinion by Ziebarth, J., with Bierschbach, P. J., and Chapman, J., concurring.
Ziebarth
All of these appeals raise essentially the same issues and we have, therefore, consolidated them for purposes of this decision.
I
Facts
The facts in each of these consolidated appeals indicate that each of the appellants has suffered convictions of violations of the relatively new California drunk driving statute, Vehicle Code section 23152, subdivision (b) (hereafter 23152(b)). This statute, which became effective on January 1, 1982, reads as follows:
"(b) It is unlawful for any person who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle upon a highway or upon other than a highway in areas which are open to the general public.
"For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood."
The appellant, Laurence Joseph Lujan, was observed by a California Highway Patrol (CHP) officer on January 16, 1982, to run a red light (causing another vehicle to brake), to speed and to weave erratically. After he was stopped by the officer, Lujan was observed to be exhibiting physical symptoms of intoxication. He refused to submit to any field sobriety tests. However, he did agree to submit to a chemical test of his breath. The results of that test were .24 and .25 blood alcohol level (BA), respectively. Lujan was thereafter charged with violating Vehicle Code section 23152(b). Both sides waived trial by jury in this case. As the result of his court trial, Lujan was found guilty of the offense charged. Because Lujan had suffered a prior conviction of a violation of the previous statute, Vehicle Code section 23102, subdivision (a) (hereafter 23102(a)), on August 19, 1977, his sentence was enhanced when judgment was pronounced on him on May 14, 1982.
The appellant, Raymond Frank Blaschke, was involved in a traffic collision on the streets of Victoria Avenue and Pacific Street, in the City of San Bernardino on January 17, 1982. A CHP officer observed him to be exhibiting
physical symptoms of intoxication. Blaschke attempted to perform some field sobriety tests, which the officer concluded he had failed. He submitted to a chemical test of his blood. The result of that test was .26 BA. Blaschke was charged with violations of Vehicl
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