 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Groover5/20/2004
Following a jury trial, defendant Samuel Albert Groover was convicted of hit and run with injury, driving under the influence of alcohol, and driving with blood alcohol level of .08 percent or more. Before trial, he pleaded guilty to driving on a suspended license. Defendant contends the prosecutor committed misconduct during closing argument and the trial court erred by instructing the jury with CALJIC No. 2.28 (failure to timely produce evidence) and denying a motion for new trial. He further contends the cumulative effect of the first two errors requires reversal. In addition, defendant argues the court erred by revoking his license for three years and by failing to stay the use of his conviction in count 3 for driving with a blood alcohol level of .08 percent or more.
The Attorney General concedes defendant's license should only have been suspended for two years and use of his conviction in count 3 should have been stayed for penal and administrative purposes. We likewise find meritorious defendant's latter two contentions and modify the judgment accordingly, affirming it in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
One sunny November afternoon, defendant was driving his van southbound on coast highway near Dana Point when his right front tire went flat. Examination of a skid mark left at the scene indicated that he applied the brakes which caused the vehicle to veer right into the bike lane. About that time, a witness driving in the northbound lane noticed "a lot of smoke and debris . . . in the air" and saw the van enter the bike lane and then hit a cyclist. The cyclist was thrown up into the air and over a guardrail toward some nearby railroad tracks. The witness noted that the van, which he estimated to be traveling at 40 to 45 miles per hour, never slowed down or braked, but continued on in the bike lane. The cyclist, who had no memory of the incident, spent four months in the hospital and underwent numerous surgeries as the result of his injuries.
About a mile down the road, Deputy Risko heard a loud grinding noise and noticed the van traveling southbound in the bike lane at a slow rate of speed. The van came to a stop just as the deputy pulled up behind it. The windshield on the passenger side of the vehicle was smashed, and the right front fender had been damaged; the right front tire was completely shredded. The deputy smelled the odor of alcohol on defendant and observed a bottle of wine in a basket next to the driver's seat. Tests revealed defendant had been driving with a blood alcohol level of .15 percent.
An accident investigator for the sheriff's department testified that damage to the right front fender of the van was consistent with the vehicle having struck the cyclist. Fabric from the cyclist's clothing was transferred onto the fender area, the right hand mirror was bent backward, and yellow paint transfers from the cyclist's shoes were found on the right corner of the front bumper. The investigator could not determine, however, at what point the van struck the cyclist after it entered the bike lane. But it appeared the van contacted the cyclist near the right headlamp area.
The defense's expert, Dr. Clark, testified the damage to the windshield was not caused by contact with the cyclist, but by the hood when it "came up, hit underneath it, and popped th glass causing it to break . . . ." Utilizing a diagram he had prepared shortly before trial, which had not been disclosed to either side until the day he testified, Dr. Clark opined that the cyclist "was struck by the right front corner of the van." Given the speed of the van and the distance between the skid mark and a crush mark on the guardra
Page 1 2 3 4 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|