Okorie Okorocha on the Daily News

May 1st, 2010

A CBS 2 News exclusive undercover investigation caught DWP workers drinking and driving on the job and going to strip clubs. This is the same agency that just raised electric rates and gave their workers a raise.

Linemen earn near six-figure salaries from the DWP — taxpayer money to work on the power lines. It is hard work when the weather cooperates, but when it rains, they can’t work on the poles. They are supposed to work in the yard.

But we found some of them go from hanging on the power poles to hanging out near the stripper poles.

With our hidden camera we watched three DWP employees park their truck right on the street. Then get frisked before
In a KCBS 2 investigation, DWP workers were seen entering this strip club while on the clock. (Photo courtesy KCBS 2).
being allowed to enter the Alameda Strip — a strip club on Alameda Street.

They left their uniforms on the front seat when they arrived at 12:35 p.m.

Inside it was too dark for our hidden camera to see exactly what they were doing, but the strip club advertises girls and serves alcohol.

A former DWP employee, who would only talk if we concealed his identity, said that he has been inside many times with other DWP workers.

David Goldstein: “So it’s pretty common on rainy days?”

Former DWP Employee: “I guess so. It’s maybe tradition.”

David Goldstein: “Did you ever see any of them have lap dances?”

Former DWP Employee: “Yes.”

David Goldstein: “Yes. On taxpayer money while they’re getting paid.”

Former DWP Employee: “Yes.”

David Goldstein: “They’re getting a lap dance.”

Former DWP Employee: “Correct.”

David Goldstein: “Drinking in the strip bar?”

Former DWP Employee: “Yes.”

David Goldstein: “Watching the girls, obviously?”

Former DWP Employee: “Yes.”

Almost an hour later one worker comes out of the strip club and appears to relieve himself outside the truck. As the rain comes down he falls asleep in the cab.

The other two were observed pounding on the door at 2:45 p.m. to wake their partner up after being inside the strip club for more than two hours.

They drove back to the yard to end their day. We caught up with one of the men, who’s first name is Santiago.

David Goldstein: “How do you guys get away with going to a strip club for hours at a time?”

Santiago: “I got nothing to say to you.”

David Goldstein: “How come?”

Santiago: “It’s not true. None of that (expletive) is true.”

David Goldstein: “None of it true?”

Santiago: “No.”

David Goldstein: “I got video, we got you going into the strip club.”

On sunny days we followed Santiago and others buying beer while on duty. We taped them parking their trucks outside a liquor store on 59th Street and Figueroa. They then walked inside without wearing any uniforms.

Inside we had an undercover producer with a hidden camera, documenting them buying large cans of beer, grabbing the cans paying the clerk and walking back to the truck.

As soon as they got back to the truck, we watched as they wrapped the cans in white paper towels before taking a drink.

Then they drove away and proceeded to drink and drive.

We drove our undercover van in front, as we videotaped them doing it again and again. Driving while drinking alcohol is of course is illegal; it’s even a violation for the passenger to have an open container of beer in a moving vehicle. But we saw them drinking, as well — all of this while driving city trucks while on duty.

We showed the video to Okorie Okorocha, an attorney and nationally-known DUI expert.

“This is extremely dangerous,” Okorocha said. “He could easily kill several people because of the size of his vehicle and his delayed reaction time and the fact that he is driving on a busy street.”

On another day we found some DWP employees at a picnic, sitting in lawn chairs at 2 p.m. in a park in Boyle Heights, earning taxpayer money. We again observed them drinking from cans with paper towels wrapped around them.

“Taxpayer money and you guys are sitting here having a picnic and drinking beers,” I asked them. But when we arrived they scattered and denied drinking beer, including one guy, who we had videotaped drinking and driving weeks earlier.

David Goldstein: “We caught you drinking a couple of weeks ago.”DWP Employee: “Who?”

David Goldstein: “You. You were drinking and driving. You wrapped the can in white paper and you were drinking and driving.”

DWP Employee: “I don’t know what you’re talking about.”

Our cameras caught one DWP employee with some liquid dripping out of a canvas bag. He claimed it was not from a beer can and did not know that we had already caught him with a hidden camera the day before buying beers.

David Goldstein: “We videotaped you guys doing this.”

DWP Employee: “You got proof?”

David Goldstein: “Yes, we got videotape.”

DWP Employee: “Well then go show the proof then.”

You can watch the video accompanying this report. It shows the employee buying two large cans of beer at a liquor store around noon while on duty. Then he walked to his truck and they drove away for their lunch break.

“You want to look at video,” I asked Santiago. Be he didn’t want to see himself caught on tape.

His partner drove away when he saw our cameras, leaving Santiago on the street to answer questions.

“Why you leave me dude,” Santiago said while holding a wireless phone.

“How do you guys get away with going to a strip club for hours at a time on taxpayer money,” I asked.

But he didn’t have much to say and didn’t seem to care.

David Goldstein: “What do you think the mayor is going to say about this, Santiago? I’m going to show him the tape.”

Santiago: “I don’t give a (expletive) what u do.”

Well we showed the tape to the mayor, who shook his head in disbelief at what we uncovered.

“It’s very surprising; it just kind of boggles the mind,” Mayor Antonio Villaraigosa said, adding,” You know, even if you weren’t undercover, people could see you, they could report that. I mean the fact that they would do this in the truck. But we will investigate this and we’re going to take it very seriously. I hope you follow the investigation, because I think it’s important for the public to see that at some point, folks who do this during their work hours will be disciplined and have to be accountable for that.”

The DWP declined our invitation to look at the hidden camera videos. They have started an investigation into what we uncovered. The DWP has a zero-tolerance policy on drugs and alcohol. If workers have been found to violate the policy, they can be fired. A CBS 2 News exclusive undercover investigation caught DWP workers drinking and driving on the job and going to strip clubs. This is the same agency that just raised electric rates and gave their workers a raise.

Linemen earn near six-figure salaries from the DWP — taxpayer money to work on the power lines. It is hard work when the weather cooperates, but when it rains, they can’t work on the poles. They are supposed to work in the yard.

But we found some of them go from hanging on the power poles to hanging out near the stripper poles.

With our hidden camera we watched three DWP employees park their truck right on the street. Then get frisked before being allowed to enter the Alameda Strip — a strip club on Alameda Street.

They left their uniforms on the front seat when they arrived at 12:35 p.m.

Inside it was too dark for our hidden camera to see exactly what they were doing, but the strip club advertises girls and serves alcohol.

A former DWP employee, who would only talk if we concealed his identity, said that he has been inside many times with other DWP workers.

David Goldstein: “So it’s pretty common on rainy days?”

Former DWP Employee: “I guess so. It’s maybe tradition.”

David Goldstein: “Did you ever see any of them have lap dances?”

Former DWP Employee: “Yes.”

David Goldstein: “Yes. On taxpayer money while they’re getting paid.”

Former DWP Employee: “Yes.”

David Goldstein: “They’re getting a lap dance.”

Former DWP Employee: “Correct.”

David Goldstein: “Drinking in the strip bar?”

Former DWP Employee: “Yes.”

David Goldstein: “Watching the girls, obviously?”

Former DWP Employee: “Yes.”

Almost an hour later one worker comes out of the strip club and appears to relieve himself outside the truck. As the rain comes down he falls asleep in the cab.

The other two were observed pounding on the door at 2:45 p.m. to wake their partner up after being inside the strip club for more than two hours.

They drove back to the yard to end their day. We caught up with one of the men, who’s first name is Santiago.

David Goldstein: “How do you guys get away with going to a strip club for hours at a time?”

Santiago: “I got nothing to say to you.”

David Goldstein: “How come?”

Santiago: “It’s not true. None of that (expletive) is true.”

David Goldstein: “None of it true?”

Santiago: “No.”

David Goldstein: “I got video, we got you going into the strip club.”

On sunny days we followed Santiago and others buying beer while on duty. We taped them parking their trucks outside a liquor store on 59th Street and Figueroa. They then walked inside without wearing any uniforms.

Inside we had an undercover producer with a hidden camera, documenting them buying large cans of beer, grabbing the cans paying the clerk and walking back to the truck.

As soon as they got back to the truck, we watched as they wrapped the cans in white paper towels before taking a drink.

Then they drove away and proceeded to drink and drive.

We drove our undercover van in front, as we videotaped them doing it again and again. Driving while drinking alcohol is of course is illegal; it’s even a violation for the passenger to have an open container of beer in a moving vehicle. But we saw them drinking, as well — all of this while driving city trucks while on duty.

We showed the video to Okorie Okorocha, an attorney and nationally-known DUI expert.

“This is extremely dangerous,” Okorocha said. “He could easily kill several people because of the size of his vehicle and his delayed reaction time and the fact that he is driving on a busy street.”

On another day we found some DWP employees at a picnic, sitting in lawn chairs at 2 p.m. in a park in Boyle Heights, earning taxpayer money. We again observed them drinking from cans with paper towels wrapped around them.

“Taxpayer money and you guys are sitting here having a picnic and drinking beers,” I asked them. But when we arrived they scattered and denied drinking beer, including one guy, who we had videotaped drinking and driving weeks earlier.

David Goldstein: “We caught you drinking a couple of weeks ago.”

DWP Employee: “Who?”

David Goldstein: “You. You were drinking and driving. You wrapped the can in white paper and you were drinking and driving.”

DWP Employee: “I don’t know what you’re talking about.”

Our cameras caught one DWP employee with some liquid dripping out of a canvas bag. He claimed it was not from a beer can and did not know that we had already caught him with a hidden camera the day before buying beers.

David Goldstein: “We videotaped you guys doing this.”

DWP Employee: “You got proof?”

David Goldstein: “Yes, we got videotape.”

DWP Employee: “Well then go show the proof then.”

You can watch the video accompanying this report. It shows the employee buying two large cans of beer at a liquor store around noon while on duty. Then he walked to his truck and they drove away for their lunch break.

“You want to look at video,” I asked Santiago. Be he didn’t want to see himself caught on tape.

His partner drove away when he saw our cameras, leaving Santiago on the street to answer questions.

“Why you leave me dude,” Santiago said while holding a wireless phone.

“How do you guys get away with going to a strip club for hours at a time on taxpayer money,” I asked.

But he didn’t have much to say and didn’t seem to care.

David Goldstein: “What do you think the mayor is going to say about this, Santiago? I’m going to show him the tape.”

Santiago: “I don’t give a (expletive) what u do.”

Well we showed the tape to the mayor, who shook his head in disbelief at what we uncovered.

“It’s very surprising; it just kind of boggles the mind,” Mayor Antonio Villaraigosa said, adding,” You know, even if you weren’t undercover, people could see you, they could report that. I mean the fact that they would do this in the truck. But we will investigate this and we’re going to take it very seriously. I hope you follow the investigation, because I think it’s important for the public to see that at some point, folks who do this during their work hours will be disciplined and have to be accountable for that.”

The DWP declined our invitation to look at the hidden camera videos. They have started an investigation into what we uncovered. The DWP has a zero-tolerance policy on drugs and alcohol. If workers have been found to violate the policy, they can be fired.

Okorie Okorocha on CBS 2 News

May 1st, 2010

LOS ANGELES (CBS) ―

[Click to zoom.] Click to enlarge
1 of 2
A DWP worker drinks a can wrapped in what appears to be a paper towel while on duty and driving a city vehicle.

CBS
[Click to zoom.] Click to enlarge
2 of 2
A DWP worker drinks a can wrapped in what appears to be a paper towel while on duty and driving a city vehicle.

CBS

Close

numSlides of totalImages
Related Stories

* City Council Reacts To DWP Investigative Report
(5/1/2010)

A CBS 2 News exclusive undercover investigation caught DWP workers drinking and driving on the job and going to strip clubs. This is the same agency that just raised electric rates and gave their workers a raise.

Linemen earn near six-figure salaries from the DWP — taxpayer money to work on the power lines. It is hard work when the weather cooperates, but when it rains, they can’t work on the poles. They are supposed to work in the yard.

But we found some of them go from hanging on the power poles to hanging out near the stripper poles.

With our hidden camera we watched three DWP employees park their truck right on the street. Then get frisked before being allowed to enter the Alameda Strip — a strip club on Alameda Street.

They left their uniforms on the front seat when they arrived at 12:35 p.m.

Inside it was too dark for our hidden camera to see exactly what they were doing, but the strip club advertises girls and serves alcohol.

A former DWP employee, who would only talk if we concealed his identity, said that he has been inside many times with other DWP workers.

David Goldstein: “So it’s pretty common on rainy days?”

Former DWP Employee: “I guess so. It’s maybe tradition.”

David Goldstein: “Did you ever see any of them have lap dances?”

Former DWP Employee: “Yes.”

David Goldstein: “Yes. On taxpayer money while they’re getting paid.”

Former DWP Employee: “Yes.”

David Goldstein: “They’re getting a lap dance.”

Former DWP Employee: “Correct.”

David Goldstein: “Drinking in the strip bar?”

Former DWP Employee: “Yes.”

David Goldstein: “Watching the girls, obviously?”

Former DWP Employee: “Yes.”

Almost an hour later one worker comes out of the strip club and appears to relieve himself outside the truck. As the rain comes down he falls asleep in the cab.

The other two were observed pounding on the door at 2:45 p.m. to wake their partner up after being inside the strip club for more than two hours.

They drove back to the yard to end their day. We caught up with one of the men, who’s first name is Santiago.

David Goldstein: “How do you guys get away with going to a strip club for hours at a time?”

Santiago: “I got nothing to say to you.”

David Goldstein: “How come?”

Santiago: “It’s not true. None of that (expletive) is true.”

David Goldstein: “None of it true?”

Santiago: “No.”

David Goldstein: “I got video, we got you going into the strip club.”

On sunny days we followed Santiago and others buying beer while on duty. We taped them parking their trucks outside a liquor store on 59th Street and Figueroa. They then walked inside without wearing any uniforms.

Inside we had an undercover producer with a hidden camera, documenting them buying large cans of beer, grabbing the cans paying the clerk and walking back to the truck.

As soon as they got back to the truck, we watched as they wrapped the cans in white paper towels before taking a drink.

Then they drove away and proceeded to drink and drive.

We drove our undercover van in front, as we videotaped them doing it again and again. Driving while drinking alcohol is of course is illegal; it’s even a violation for the passenger to have an open container of beer in a moving vehicle. But we saw them drinking, as well — all of this while driving city trucks while on duty.

We showed the video to Okorie Okorocha, an attorney and nationally-known DUI expert.

“This is extremely dangerous,” Okorocha said. “He could easily kill several people because of the size of his vehicle and his delayed reaction time and the fact that he is driving on a busy street.”

On another day we found some DWP employees at a picnic, sitting in lawn chairs at 2 p.m. in a park in Boyle Heights, earning taxpayer money. We again observed them drinking from cans with paper towels wrapped around them.

“Taxpayer money and you guys are sitting here having a picnic and drinking beers,” I asked them. But when we arrived they scattered and denied drinking beer, including one guy, who we had videotaped drinking and driving weeks earlier.

David Goldstein: “We caught you drinking a couple of weeks ago.”

DWP Employee: “Who?”

David Goldstein: “You. You were drinking and driving. You wrapped the can in white paper and you were drinking and driving.”

DWP Employee: “I don’t know what you’re talking about.”

Our cameras caught one DWP employee with some liquid dripping out of a canvas bag. He claimed it was not from a beer can and did not know that we had already caught him with a hidden camera the day before buying beers.

David Goldstein: “We videotaped you guys doing this.”

DWP Employee: “You got proof?”

David Goldstein: “Yes, we got videotape.”

DWP Employee: “Well then go show the proof then.”

You can watch the video accompanying this report. It shows the employee buying two large cans of beer at a liquor store around noon while on duty. Then he walked to his truck and they drove away for their lunch break.

“You want to look at video,” I asked Santiago. Be he didn’t want to see himself caught on tape.

His partner drove away when he saw our cameras, leaving Santiago on the street to answer questions.

“Why you leave me dude,” Santiago said while holding a wireless phone.

“How do you guys get away with going to a strip club for hours at a time on taxpayer money,” I asked.

But he didn’t have much to say and didn’t seem to care.

David Goldstein: “What do you think the mayor is going to say about this, Santiago? I’m going to show him the tape.”

Santiago: “I don’t give a (expletive) what you do.”

Well we showed the tape to the mayor, who shook his head in disbelief at what we uncovered.

“It’s very surprising; it just kind of boggles the mind,” Mayor Antonio Villaraigosa said, adding,” You know, even if you weren’t undercover, people could see you, they could report that. I mean the fact that they would do this in the truck. But we will investigate this and we’re going to take it very seriously. I hope you follow the investigation, because I think it’s important for the public to see that at some point, folks who do this during their work hours will be disciplined and have to be accountable for that.”

The DWP declined our invitation to look at the hidden camera videos. They have started an investigation into what we uncovered. The DWP has a zero-tolerance policy on drugs and alcohol. If workers have been found to violate the policy, they can be fired.

(© MMX, CBS Broadcasting Inc. All Rights Reserved.)

San Diego DUI Lawyers — http://www.hslblaw.com

Santa Barbara DUI Attorneys – http://www.bhglaw.com

Newport Beach Attorneys – http://www.cprslaw.com/

Newport Beach DUI Specialists — http://www.calegalteam.com

San Diego DUI Specialists

February 23rd, 2010

San Diego DUI Lawyers — http://www.hslblaw.com

Santa Barbara DUI Attorneys – http://www.bhglaw.com

Newport Beach Attorneys –  http://www.cprslaw.com/

 Newport Beach DUI Specialists — http://www.calegalteam.com

 

MEMORANDUM OF POINTS & AUTHORITIES

I

THE DEFENDANT’S ARIZONA CONVICTION DOES NOT MEET THE STANDARD SET FORTH IN VEHICLE CODE SECTION 23152(a) and 23152(b) AND CANNOT BE USED IN CALIFORNIA FOR ANY PURPOSE UNDER THE VEHICLE CODE, INCLUDING AS PRIOR CONVICTIONS UNDER VEHICLE CODE SECTION 23540, 23542 AND/OR SECTIONS 12546 AND 24648.

According to documentation obtained by defense counsel, the defendant had a conviction in the State of Arizona violating ARS 28-1281A1 in December of 2004. As to the 2004 conviction the defense has obtained a waiver of rights plea of guilty form and an order approving/accepting guilty plea and Judgment and Sentence. Those documents indicate that the defendant entered a plea of guilty on December 15, 2004. to a violation of ARS 28-1281A, “driving under the influence of intoxicating liquor, drugs or vapor releasing substance while impaired to the slightest degree.” [Emphasis added]

A. THE RECORD OF THE DEFENDANT’S ARIZONA CONVICTION SHOWS THAT HE WAS NOT CONVICTED AN OF AN OFFENSE THAT, IF COMMITTED IN CALIFORNIA, WOULD HAVE BEEN A VIOLATION OF VEHICLE CODE SECTION 23152(a} OR 23152(b}.

Vehicle Code section 23626 provides:

A conviction of an offense in any state, territory, or possession of the United States. ..which, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code for the purposes of this code.

B. WHETHER AN OUT-OF-STATE PRIOR CONVICTION IS VALID IN CALIFORNIA IS GOVERNED ENTIRELY BY THE PROVISIONS IN VEHICLE CODE §§ 13363 AND 15023

The application and subsequent validity of out-of-state intoxicated driving convictions in California is governed by Vehicle Code sections 13363 and 15023. “[S]ection 13363, subdivision (b) prescribes how California, as a home state under the Compact, will construe reports of section 15023, subdivision (a) offenses from other states. It provides that California will not give effect to such reports unless: (1) the law of the reporting state pertaining to conviction is “substantially the same” as California law pertaining to the conviction; (2) the description of the violation from which the conviction arose is sufficient; and (3) the interpretation and enforcement of the law of the reporting state are “substantially the same” as the interpretation and enforcement of the California law in question.” Draeger v. Reed (1999) 69 Cal.App.4th 1511 at 1521. See also Moles v. Gourley (2003)112 Cal.App.4th 1 049; McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677. Contrary to the Penal Code provisions governing the applicability of prior prison terms and serious felony priors (Penal Code §§ 667 and 667.5), the Vehicle Code specifically provides that it must be established that the ~ of the other state is substantially the same and particularly that the interpretation and enforcement are substantially similar. Nowhere does the Vehicle Code authorize the court to decide the validity of an out-of-state prior based upon the underlying conduct.

Here, the glaring problem is that the defendant’s conviction in Arizona was not for driving under the influence of alcohol or drugs but for driving under the influence of intoxicating liquor, drugs or vapor releasing substance while impaired to the slightest degree. As such, it is not equivalent to the violations of California Vehicle Code Section 23152(a) or 23152(b).

In enacting Section 23626, the Legislature apparently made a qualitative determination that only out-of-state offenses reaching the level of DUI [Vehicle Code 23152], could be used in California for any purpose under the Vehicle Code. People v. Crane, supra 142 Cal.App.4th at430. The legislative limitation on the use of out of state priors would include the determination of whether the out-of-state convictions could qualify as prior offenses for purposes of Vehicle Code sections 23540 [enhanced sentence where there is one prior qualifying conviction within 10 years] People v. Crane, supra, 142 Cal.App.4th at 430-431For an out-of-state conviction to qualify as a prior conviction, for sentencing enhancement in California, the Trial Court must be satisfied that the conduct underlying the foreign conviction would meet all of the elements of the California offense. People v. Guerrero (1988) 44 Cal.3d 343; People v. Crane, supra, 142 Cal.App.4th at 430-431.

C. THE CONDUCT UNDERLYING THE DEFENDANT’S CONVICTION IN

    ARIZONA DOES NOT MEET ALL OF THE ELEMENTS OF CALIFORNIA VEHICLE CODE SECTION 23152{A) OR 23152{8).

Here, the defendant was convicted of violating A.R.S. Sections 28-1381(A)(1, 12-707, and 12-802, a class (1) misdemeanor. “Drove or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor, drugs or vapor releasing substance while impaired to the slightest degree. Arizona law proves that  a person commits the offense of driving while impaired to the slightest degree operating while under the influence of liquor, drugs or vapor release substance. It does not contain the element of a combined influence of drugs and alcohol and lists the necessary elements to convict a person in Arizona:

1. The defendant drove a motor vehicle or was in actual physical control of a motor vehicle; and

2. At that time the defendant was either under the influence of intoxicating liquor, drugs or vapor release substance while impaired to the slightest degree. Clearly, the conduct underlying the  Arizona statutes for which the defendant was convicted is less than what is required to meet the elements of California Vehicle Code Section 23152 (a) or (b).

D. “BEING UNDER THE INFLUENCE” FOR PURPOSES OF VEHICLE CODE SECTION 23152{a), MUST BE TO AN APPRECIABLE DEGREE, NOT THE SLIGHTEST DEGREE OF IMPAIRMENT UNDERLYING THE DEFENDANT’S ARIZONA CONVICTION.

To be convicted of driving under the influence in California it is necessary that the defendant drove while under the influence, defined by California Jury Instruction, CALCRIM 2110, as follows:

As a result of (drinking an alcoholic beverage), a person’s mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. CALCRIM 2110, Driving Under the Influence. Certainly, it is not necessary to prove any specific degree of intoxication under Section 23152(a), but that section does require impairment to an “appreciable degree.” People v. Crane, supra, 142 Cal.App.4th at 432, citing People v. Weathington (1991) 231 Cal.App.3d 69, 81. Comparing California’s definition of being under the influence with  Arizona’s shows even more clearly that the conduct underlying the defendant’s convictions for driving while under the influence in Arizona does not meet the elements necessary for a conviction of Vehicle Code Section 23152 (a) or (b), i.e. the element of impaired to the slightest degree, as California requires a blood alcohol of .08 or higher and requires impairment to an appreciable degree.

E. STATUTORILY, THE DEFENDANT’S ARIZONA CONVICTION DOES NOT

CONTAIN ALL OF THE NECESSARY ELEMENTS OF A CALIFORNIA OFFENSE. NOR, DOES THE RECORD OF HIS CONVICTION PROVIDE EVIDENCE THAT THE UNDERLYING CONDUCT WOULD HAVE CONSTITUTED AN OFFENSE IN CALIFORNIA.

The present case is a virtual mirror of People v. Crane, supra, 142 Cal.App.4th 425, in which the defendant, opposed the use of his Colorado conviction to enhance his sentence under Vehicle Code section 23540 as it was not for an offense which, if committed in California, would be a violation of Vehicle Code sections 23152(a) or 23152(b). People v. Crane, supra, 142 Cal.App.4th at 429-430. In People v. Crane, the Court found that because the Colorado Driving While Ability-lmpaired statute punishes ‘the slightest degree” of impairment, and because Vehicle Code section 23152 requires impairment to an appreciable degree, the Colorado statute punishes conduct which would not violate Section 23152. It therefore does not meet the test set forth in 23626. People v. Crane, supra, 142 Cal.App.4th at 433. Here, as in People v. Crane, more than just the fact of the conviction is required where the statutory definition of the out-of-state conviction varies to such a degree that conviction for it would not necessarily constitute a violation of Vehicle Code section 23152. In People v. Crane the Colorado Driving While Ability Impaired, did not constitute a violation of Section 23152 and neither does the Arizona driving while impaired to the slightest degree. Under the Influence, in this case. As the statutory definition of the Arizona conviction varies to such a degree that a conviction does not constitute a violation of Vehicle Code section 23152, the Court can look to the record of the foreign conviction when deciding whether to use them as a sentencing enhancement, so long as the use of such evidence is not precluded by rules of evidence or other statutory limitation. People v. Crane, supra, 142 Cal.App.4th at 433. Likewise, the record of the defendant’s Arizona conviction in the present case, consisting of the following:

1. Plea agreement, waiver of rights plea of guilty form; and

2. Order approving/accepting guilty plea and Judgment and Sentence.

This does not contain competent evidence in the record to support a determination that Defendant’s Arizona offense would have constituted a violation of Vehicle Code Section 2152 and imposition of the enhanced sentence would be in error.[Exhibit A].

CONCLUSION

Because the Arizona statute punishes impairment to the slightest degree and because it contains the element of driving under the influence of a vapor releasing substance, it does not meet the essential elements of impairment which are necessary for a violation  under California Vehicle Code Section 23152. As such, the Arizona statute punishes conduct which would not violate Vehicle Code Section 23152, does not meet the test set forth in Vehicle Code Section 23626 and is not usable for any purpose under the Vehicle Code. This is equally true that the Arizona offense would have constituted a violation of Vehicle Code Section 23152.

After consideration of the constitutional rights of the defendant and the interests of society in the fair prosecution of crimes properly alleged, the court should exercise its discretion dismiss the prior conviction for driving under the influence of intoxicating liquor, drugs or vapor releasing substance while impaired to the slight degree in violation of ARS 28-1281A1 incurred on December 15, 2004.

This is not a trite nor trivial matter.  California Vehicle Code Sections separated by decimal points describe completely different crimes, with different elements and different defenses, this is even more significant when it is a statute from another state with that statute’s attendant “decimal point” differentiations. In the case at bench, it is clear that the prior offense does not exist in California and therefore, logically the court has no jurisdiction over it and it should be stricken.

A reasonable or even cursory reading of the two laws shows specifically that the elements of the crimes are not the same and as such should be dismissed. In addition, the court should consider the detriment to the defendant if the prior is not dismissed such has being considered a second offender which carries with it a greater time of loss of license, greater fines, jail time or greater jail time, a longer probationary period and significantly longer alcohol program requirements, not to mention the effect on the defendant’s insurance rates.

San Diego DUI Specialists and DUI Defense

February 23rd, 2010

San Diego DUI Lawyers — http://www.hslblaw.com

Santa Barbara DUI Attorneys – http://www.bhglaw.com

Newport Beach Attorneys –  http://www.cprslaw.com/

 Newport Beach DUI Specialists — http://www.calegalteam.com

 

ISSUE PRESENTED

The sole issue presented by this petition is whether the Superior Court has the authority to exclude the testimony of a prosecution witness, whose identity was disclosed to the defense after the trial had begun and critical testimony has already been adduced by the prosecution, if the Superior Court finds that 1) the disclosure delay was prejudicial to the defense; 2) a continuance in the trial would not cure the delay; but 3) the disclosure delay was not willful on the part of the prosecution.

In support of the requested Writ of Mandate, petitioner, by this verified petition, alleges as follows:

I.

Defendant, (Name Deleted), was ultimately arraigned on a first amended information alleging violations of Vehicle Code §§§ 20001(a) (leaving the scene of an accident causing injury), 23153(a) (DUI causing injury), and 23153(b) (DUI with BAC above .08% causing injury). See Exhibit A attached: Copy of information dated October 22, 2007.

II.

At the preliminary hearing on August 21, Name Deleted) testified. She identified defendant as the driver who left the scene of the accident. See Exhibit B attached: Copy of transcript dated August 21, 2007.

III.

On October 28, 2007, a 402 hearing was conducted regarding the possible suggestiviness of the lineup where Mr. (Name Deleted) was identified by Name Deleted). Ms. Name Deleted) again testified at length about her identification of Mr. (Name Deleted). The court ruled that Name Deleted)will be permitted to testify at trial about her identification of Mr. (Name Deleted). See Exhibit C attached: Copy of transcript dated Monday, October 28, 2007.

IV.

On October 29, the DDA (Name Deleted) submitted her formal witness list to the court. This list did not include (Name Deleted) (Name Deleted). See Exhibit D attached: Prosecution witness list dated October 29, 2007.

//

V.

On October 30, 2007, jury selection began. See Exhibit E attached: October 30, 2007 minute order.

VI.

Jury selection continued on October 31, 2007, and the jury was selected on November 1, 2007. See Exhibits F and G attached: Minute orders from October 31, 2007 and November 1, 2007.

VII.

On November 5, 2007, opening statements were made and the prosecution began presenting her case. The first witness was the victim, deleted. She was unable to identify the driver. The next witness was deleted, the sole ID witness. The third witness was deleted. The trial was adjourned until the following day.

VIII.

On November 6, 2007, in the morning, DDA (Name Deleted), met with defense counsel and the court. She said that she was just handed (Name Deleted) a previously undisclosed police report, authored by an Officer (Name Deleted), who interviewed (Name Deleted) (Name Deleted) at the scene. Miss (Name Deleted) also identified Mr. (Name Deleted) as the driver.

IX.

In the morning of November 6, 2007, defense counsel asked that Ms. (Name Deleted) be precluded from testifying, because the entire defense was predicated on the premise that there was only one ID witness, whose identification of Mr. (Name Deleted) was shaky at best. Judge (Name Deleted) reserved ruling on the issue.

X.

In the afternoon of November 6, 2007, DDA (Name Deleted) presented a bench brief re: late discovery. See Exhibit H attached.

DDA (Name Deleted) presented the remainder of her witness, which did not deal in any way with identification of the defendant.

XI.

After DDA (Name Deleted) presented her remaining witnesses, and the jury was excused for the day, a lengthy discussion was held on the record regarding the remedy for the late discovery. Judge (Name Deleted) reserved ruling on the issue.

XII.

The morning of November 7, 2007, DPD (Name Deleted) prepared a response to the Bench Brief re: Late Discovery. See Exhibit I. There was no testimony that morning. Again a lengthy discussion was on the record about the possible exclusion of Miss (Name Deleted)’s testimony. Judge (Name Deleted) reserved ruling until the afternoon.

XIII.

The afternoon of November 7, 2007, Judge (Name Deleted) ruled that the defense has shown prejudice as a result of the late discovery, because the defense was predicated on a theory that the only eyewitness identification was shaky at best. He also ruled that a continuance would be meaningless because core issue of the case was the sole witness. However, Judge (Name Deleted) felt that he had no authority to exclude the witness because the defense did not show that DDA (Name Deleted)’s late discovery was in any way willful on her part. Therefore, Judge (Name Deleted) felt that he had to allow the testimony of Miss (Name Deleted). He did, however, give defense counsel the option of a continuance to investigate the witness (although he agreed that it would not help in this case), or a stay in the trial to give her an opportunity to file a writ.

XIV.

With the defense agreement (given the limited options at that point), Judge (Name Deleted) excused the jury until Monday, November 19, 2007. The case is scheduled for a status hearing on Thursday, November 15, 2007.

XIV.

The refusal of Respondent Court to preclude (Name Deleted) (Name Deleted)’s testimony, based on his erroneous interpretation of the case law, constitutes an abuse of discretion. It is a violation of Petitioner’s constitutional rights, in that he now is forced to choose among agreeing to a noncontinuous trial (in order for this writ to be filed, or to investigate the witness), or asking for a mistrial that was neither contemplated nor desired.

XV.

Petitioner has no plain, speedy, or adequate remedy at law. Unless restrained by this court, petitioner and his counsel are placed in the dilemma of not being able to present a meaningful defense at trial.

XVI.

Petitioner is the party beneficially interested in these proceedings and an aggrieved party in the proceedings in the respondent court. The other interested parties are the respondent, the San Bernardino Superior Court, and the real party in interest, the People of the State of California, by and through their attorney, Michael Ramos, District Attorney of the County of San Bernardino. All actions complained of in this Petition have occurred within the territorial jurisdiction of the respondent court and the Court of Appeal of the State of California, Fourth Appellate District, Division Two.

XVII.

No other petitions seeking relief sought herein have been filed by or on behalf of the petitioner.