Metropolitan News-Enterprise


Friday, December 17, 2004


Page 1


Drunk Driving Conviction Disqualifies Defendant From Diversion Into Drug Treatment, Appeals Court Rules


By DAVID WATSON, Staff Writer


A misdemeanor drunk driving conviction involves the “threat of physical injury to another person” which disqualifies a defendant from probation and drug treatment under Proposition 36, the Fifth District Court of Appeal ruled yesterday.

Kern Superior Court Judge John L. Fielder properly applied Penal Code Sec. 1210.1(b)(1) in ruling John Edgar Eribarne did not qualify for Proposition 36 diversion, the appeals court said.

Eribarne was convicted of first degree burglary in 1974 and of driving with a blood alcohol level higher than 0.08 on 1998. Last year he pled guilty to methamphetamine possession and contested the trial judge’s finding he was ineligible for diversion.

Sec. 1210.1(b)(1) provides that a person previously convicted of a serious or violent felony is disqualified from benefiting from the probation and treatment scheme of Proposition 36, approved by voters in November 2000 for nonviolent drug offenders, unless the drug offense “occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in...a misdemeanor conviction involving physical injury or the threat of physical injury to another person.”

On appeal, Eribarne argued that the crime of driving under the influence does not involve physical injury or the threat of such injury, since neither is an element of the offense. But Justice Betty L. Dawson, writing for the appellate panel, disagreed.

“The flaw in this argument is that the very reason why driving with a blood-alcohol level of 0.08 percent or higher has been criminalized is precisely because such conduct presents a threat of physical injury to other persons,” Dawson explained, citing People v. Canty (2004) 32 Cal.4th 1266, People v. Malvitz (1992) 11 Cal.App.4th Supp. 9, and Burg v. Municipal Court (1983) 35 Cal.3d 257.

She went on to reject the contention that any evidentiary showing was required to establish that Eribarne’s conviction involved a threat of injury.

Citing Miller v. Dunn (1887) 72 Cal. 462, Dawson declared:

“We think a voter reading the statutory language and ascribing to that language ‘the meaning apparent on its face according to the general use of the words employed’...would deem a misdemeanor conviction for driving with a blood-alcohol level of 0.08 percent or be ‘a misdemeanor conviction involving...the threat of physical injury to another person.’”

She pointed out that that Burg court noted that alcohol-related traffic accidents caused more injuries between 1976 to 1980 than the Union Army suffered during the Civil War, and killed more people than lost their lives during the most deadly year of the Vietnam conflict. In Taylor v. Superior Court, (1979) 24 Cal.3d 890, she observed, the court commented that it is commonly understood that drunken drivers are “extremely dangerous people.”

She added:

“Appellant makes no contention that the words ‘a misdemeanor conviction involving...the threat of physical injury to another person’ necessarily require a verbally expressed ‘threat’ (or a ‘threat’ in writing) to cause physical injury to another person.  Although that type of threat would appear to qualify as one type of ‘threat of physical injury to another person,’ the statutory language does not limit itself to any particular type of ‘threat of physical injury to another person.’

Justices Herbert Levy and Dennis Cornell concurred.

The case is People v. Eribarne, F044634.


Copyright 2004, Metropolitan News Company