Metropolitan News-Enterprise


Tuesday, June 23, 2009


Page 3


Court of Appeal Upholds Retired Judge’s Conviction on Felony DUI Charge


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday affirmed retired Orange Superior Court Judge Theodore E. Millard’s felony drunk driving conviction, but ordered that his restitution obligation be recalculated because it improperly included attorney fees sustained in the victim’s civil action.

Millard, the court’s presiding judge in 1996 and 1997 and now a private judge with Judicate West in Santa Ana,  although under interim suspension from the State Bar as a result of his conviction, was on his way home after having dinner with friends when he hit motorcyclist William Payne, then 52, in Orange in December 2003.

Payne, who said he had to give up his job as a customer service representative for a home construction company as a result of the accident, obtained a $1.1 million settlement from the judge’s insurer.

The case was prosecuted by the Attorney General’s Office after Orange County District Attorney Tony Rackauckas, a friend of the judge, disqualified his entire office. The case was tried in Norwalk before Los Angeles Superior Court Judge John Torribio, sitting as an assigned Orange Superior Court judge, and the appeal was heard in San Diego.

 Forensic tests determined that Millard was driving with a blood-alcohol level of 0.11 at the time of the crash, and he was convicted of driving under the influence and driving with an excessive blood alcohol level, while committing an unlawful act—failure to yield while making a left turn—and causing bodily injury.

Police testified that Millard said he did not see the motorcycle, and that he had been drinking wine—three or four glasses with two to three inches of wine in each glass— at the home of friends prior to the accident.

Torribio sentenced the ex-judge to three years of informal probation, including 75 days in jail and five and one-half months of electronic confinement, and ordered him to pay nearly $390,000 in restitution to Payne.

In setting the restitution amount, the judge reasoned that Payne had suffered than $133,000 in medical expenses, and $800,000 in past and future wage losses. 

Since those losses represented 84.9 percent of the total settlement, the judge took the one-third contingency fee of $366,666 charged by Payne’s attorney and deducted 15.1 percent of that amount, representing the percentage of the settlement attributable to non-economic damages, and added $311,000 in attorney fees to the restitution amount, for a total of $1.245 million.

The judge then discounted that amount, taking into consideration the amount of the settlement and the extent to which the accident was partially Payne’s fault, and came up with the final figure of $386,164, plus interest.

In an unpublished portion of the Court of Appeal opinion, Justice Alex McDonald, writing for Div. One, rejected the contention that Torribio erred in barring a defense expert—who testified that Millard’s blood alcohol level was actually under 0.05 percent—from testifying that a driver is presumed unimpaired at that level, and also erred by not instructing on that presumption.

The expert’s testimony was based on a replication test conducted five months after the accident.

The applicable statute, McDonald noted, says the presumption arises if the defendant has a blood alcohol level under 0.05 percent “at the time of the test” for intoxication.

“The phrase ‘at the time of the test’ implicitly means the test taken by or on behalf of police at the time of or shortly after the defendant’s alleged offense,” the justice wrote. “It cannot reasonably be construed to include a replication test conducted on a defendant days, weeks, or even months after the alleged offense.”

In the published portion of his opinion, the justice said the trial judge’s restitution calculations, with the exception of those involving attorney fees and costs, were within the range of his discretion.

The fee amount was excessive, McDonald reasoned, because Torribio did not apply the lodestar method to calculate a reasonable fee, and did not find that the amount actually charged was reasonable.

The case is People v. Millard,  D047681.


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