 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Prado3/2/2004
Appellant, Jose Martin Prado, was convicted by a jury of felony drunk driving (Veh.Code, [FN1] § 23152, subd. (a)), felony driving with a blood alcohol level of .08 percent or more (§ 23152, subd. (b)), and misdemeanor driving with a suspended license (§ 14601.5, subd. (a)). In addition, the jury found true special allegations that at the time of his offense, appellant had a blood alcohol level .20 percent or more and that he had suffered three prior drunk driving convictions. In a bifurcated proceeding, the jury found true an allegation that appellant had suffered a prior strike conviction within the meaning of the three strikes law (Pen.Code, §§ 667, subds.(c)-(j), 1170.12, subds. (a)-(e)). The trial court subsequently sentenced appellant to a six-year prison term.
FN1. All further references are to the Vehicle Code unless otherwise indicated.
On appeal, appellant contends the prosecutor engaged in prejudicial misconduct during closing argument, the trial court erroneously instructed the jury pursuant to CALJIC No. 17.41.1, and the trial court improperly sentenced him to the upper term. We find appellant's claims without merit and affirm the judgment.
FACTS
Detective Raymond Reyna testified that he observed a car drive up onto a sidewalk and come to a stop, apparently in an effort to drive back onto the roadway. Reyna saw the driver, later identified as appellant, exit the vehicle and the officer approached him. Appellant exhibited objective symptoms of intoxication, including: staggering; difficulty maintaining balance; red, watery eyes; slurred speech; and smelling of alcohol. Reyna had appellant perform four field sobriety tests, all of which appellant performed unsatisfactorily. After conducting the tests, the officer formed the opinion that appellant was under the influence of alcohol and placed him under arrest. Reyna transported appellant to the police department where he administered a breathalyzer test approximately one half hour after his initial contact with appellant. Appellant registered a blood alcohol level of .21 percent.
Richard Lynd, a criminalist, testified that, in his opinion, any person with a blood alcohol level of .10 percent would constitute an impaired driver. A person with a blood alcohol level of .21 percent would not be able to safely operate a motor vehicle.
Lynd tested the breathalyzer used for appellant's test two days before and four days after appellant's test. The machine worked properly on both dates, and Lynd opined it was working properly on the day of appellant's test.
The parties stipulated that appellant's driving privileges were suspended at the time of the incident and that he knew of the suspension.
DISCUSSION
I. The prosecutor did not engage in prejudicial misconduct.
Appellant's defense at trial was that the prosecution failed to demonstrate, beyond a reasonable doubt that appellant had been driving while under the influence of alcohol. During closing argument, he contended that the manner in which he was driving did not demonstrate that he was under the influence of alcohol. Rather, he argued that appellant's driving up onto the curb could be seen as a mere misjudgment of distance. This encompassed appellant's defense in its entirety.
*2 In response to defense counsel's argument, the prosecutor stated:
"Let's talk a bit about the driving. You don't have to have bad driving in order to be convicted for drunk driving. If you recall the instructions is the person was driving. Not that he was driving bad, not that he was making some kind of error while driving, only that he was driving. And sometimes it's important that we remember that because if we think about how we want our police officers to protect us, that's our primary job to protect us, not to come into
Page 1 2 3 4 5 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|