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‘Cough Syrup’ Defense Rejected, Suspension for Drinking Driver Upheld
By KENNETH OFGANG, Staff Writer/Appellate Courts
State law requiring suspension of the license of a motorist under 21 years of age who drives with a blood alcohol concentration in excess of 0.01 percent does not require proof the underage driver consumed an alcoholic beverage illegally, the First District Court of Appeal has ruled.
Div. Five yesterday ordered publication of a Dec. 16 opinion in which the panel upheld an order suspending the license of Karli Ann Bobus, who was 16 years of age when she was pulled over two years ago on suspicion of drunk driving.
The justices questioned Bobus’ claim that she had not been drinking, even though she was out with friends who had been, and that the .022 percent reading on her blood alcohol test was the result of having consumed a capful of cough syrup. But if she was telling the truth, Presiding Justice Barbara J.R. Jones wrote, the suspension was still valid because cough syrup is a “liquid containing alcohol” and thus falls within the statutory definition of an alcoholic beverage. .
Officer’s Testimony
The California Highway Patrol officer who stopped Bobus on the freeway late on the night of Nov. 30, 2002 testified at a Department of Motor Vehicles hearing that he pulled Bobus over because she was weaving from lane to lane, and that her eyes were bloodshot and her speech slurred, and that she smelled of alcohol.
Marin Superior Court Judge Lynn Duryea upheld the DMV ruling suspending Bobus’ license and denied her petition for writ of mandate under Vehicle Code Sec. 23136. The statute says ““it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater . . . to drive a vehicle” and that any such driver is guilty of a violation if “the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater.”
Even if Bobus was not drinking with her friends, Duryea reasoned, she violated the law because “a minor can maim or kill they drank cough syrup or if they drank beer.”
‘Not Believable’
Jones, writing for the Court of Appeal, said the trial judge “reasonably could have found it not believable that Bobus’s visibly pronounced symptoms were caused by a single capful of cough syrup” and instead reached “the common sense conclusion that Bobus, like her friends, had been drinking.”
In any event, Jones said, the trial judge correctly ruled that it is a violation of the statute for an underage driver to operate a vehicle with a blood alcohol level above the threshold even if the only alcohol-containing liquid that the driver has consumed is cough syrup.
The presiding justice, noting that Bobus’ counsel conceded that cough syrup is an alcoholic beverage under the Vehicle Code definition, rejected the argument that the Legislature intended to penalize underage driving after alcohol consumption only when the beverage was consumed illegally, that is, when it is an alcoholic beverage as defined in the liquor control statutes rather than under the more expansive Vehicle Code definition.
“The legislative history of section 23136 shows the Legislature had a more focused goal when it enacted the section,” Jones wrote, which was to alleviate the “untold grief and suffering,” as well as high insurance costs, resulting from the large number of accidents involving underage drinking drivers.
Jones went on to say that while the statute by its terms applies only to drivers who consume an alcoholic beverage, there is no requirement that the DMV make a specific finding of consumption in an administrative suspension proceeding. The statutory elements of proof at the hearing, the presiding justice explained, are limited to reasonable cause for the stop, lawful detention, and driving with a blood alcohol level at or above the 0.01 percent, or in the case of a driver over 21, 0.08 percent, threshold.
The case is Bobus v. Department of Motor Vehicles, 05 S.O.S. 73.
Copyright 2005, Metropolitan News Company