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People v. Reagan6/24/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant was charged with felony driving under the influence and felony driving with a blood alcohol level of .08 percent or higher. (Veh. Code, §§ 23152, subd. (a), 23152, subd. (b).) It was also alleged he had suffered three prior convictions pursuant to section 23550.5 and Penal Code section 667.5, subdivision (b). Defendant pled not guilty and denied the special allegations. The trial court granted defendant's non-statutory motion to dismiss, and the information was amended to reflect both counts as misdemeanors.
The prosecution filed a petition for writ of mandate (B140958). We issued an alternative writ. The trial court vacated its order granting the motion to dismiss and denied the motion. We ordered the writ discharged and dismissed the petition as moot.
In a bifurcated trial, the jury found defendant guilty as charged on both counts. The court found true the prior conviction allegations.
Defendant claims unambiguous language of section 23550.5 precludes elevation of his offenses to felonies. We conclude otherwise and affirm the judgment.
BACKGROUND
On the night of July 10, 1999, a Los Angeles police officer saw a brown pickup truck he recognized from a stop two months earlier in which the driver displayed symptoms of being under the influence of alcohol and did not have a valid driver's license. The officer followed the truck, which began to straddle the two southbound lanes, traveling "almost straight down the middle of the line" separating the two lanes. The straddling continued for about 200 feet and suggested to the officer a driver under the influence of alcohol. The driver then made a right turn at a red light without signaling. The officer stopped defendant and asked for his license. He recognized defendant as the man he had earlier stopped. He reminded defendant he had stopped him before. Defendant said he didn't know what the officer was talking about.
The officer noticed defendant's eyes were bloodshot and detected the odor of alcohol on defendant's breath. In response to the officer's questions, defendant said he had had a couple of drinks at home, having begun drinking two and a half hours before the stop (11:00 p.m.). Defendant said he had stopped drinking about an hour and a half before the stop. Defendant took a variety of field sobriety tests and a preliminary alcohol screening test, from which the officer concluded defendant was under the influence of alcohol and unable to operate a motor vehicle. A post-arrest blood alcohol test showed defendant's level was .09 percent. A voluntary blood test showed defendant's blood alcohol level to be the same.
Defendant presented no affirmative defense.
DISCUSSION
Defendant was charged with felony drunk driving pursuant to section 23550.5, as effective July 1, 1999, because his three prior convictions (in 1990, 1992, and 1996) were for felony drunk driving (§ 23152, subd. (a)). On the date of his current offenses, section 23550.5 read: "A person is guilty of a public offense, punishable by imprisonment in the state prison or in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars . . . nor more than one thousand dollars . . . if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of th
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