Opinion
[Copyrighted Material Omitted] Nancy B. Sperber, Los Angeles, for defendant and appellant.
Robert H. Philibosian, Dist. Atty., Roderick W. Leonard and Sterling S. Suga, Deputy Dist. Attys., for plaintiff and respondent.
REESE, Judge.
I.
FACTUAL BACKGROUND
This is an appeal from the judgment rendered against appellant on July 8, 1982 in Whittier Municipal Court following appellant's guilty plea to a violation of Vehicle Code section 23152, subdivision (b) (a person with a blood alcohol content of 0.10 percent or greater, driving a motor vehicle). Prior to the plea entry, the court heard and overruled a demurrer filed by appellant. The judgment provided that appellant be placed on summary probation for three (3) years, ordered to pay a fine of $390 plus penalty assessment, ordered to participate in an alcohol education program, and that his driving privileges be restricted for ninety (90) days. Notice of appeal was timely filed.
II.
ISSUES
Appellant attacks the constitutionality of Vehicle Code section 23152, subdivision (b) upon the same grounds as charged in his overruled demurrer:
(1) The statute fails to provide adequate notice and thereby results in a denial of due process of law; (2) The statute is an invalid strict liability statute; and
(3) The statute alleged in conjunction with other state laws is in violation of the Fifth Amendment right against self-incrimination.
III.
DISCUSSION
A. Adequacy of Notice
1. It is a general rule of statutory construction that appellate courts should construe statutes so as to render them valid whenever possible. (Bryant v. Swoap (1975) 48 Cal.App.3d 431, 439, 121 Cal.Rptr. 867.) Unconstitutionality must be clearly shown and any doubts resolved in favor of the statute's validity. (Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558, 11 Cal.Rptr. 758.)
2. We disagree with appellant's contention that Vehicle Code section 23152, subdivision (b) is void for vagueness and is a denial of due process in not providing fair notice of the conduct prohibited. The statute does not require, as appellant alleges in argument, that "every person be aware of very specific formulas." An analogous meritless position was adopted by the appellant in People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 21, 179 Cal.Rptr. 431 charging that Vehicle Code section 23126 (now Veh.Code § 23155) was unconstitutionally vague. In that case, this court stated, "This argument is based on the premise that one cannot be expected to know when his blood alcohol will reach a level to invoke the statutory presumption. There is no showing, nor could there be, that a driver cannot tell when his or her sobriety has been affected to such an extent as to significantly impair driving ability." (Emphasis added.)
B. Strict Liability Statute
Appellant contends Vehicle Code section 23152, subdivision (b) is unconstitutional because it is a strict liability criminal statute which impermissibly eliminates the element of intent or knowledge. Our careful analysis of California's Vehicle Code section 23152, subdivision (b) and similar statutes enacted by 14 other jurisdictions (none of which have been declared unconstitutional) reveal Vehicle Code section 23152, subdivision (b) to be one of those statutes enacted for the protection of the public health and safety, e.g., traffic and food and drug regulations, in which criminal sanctions are relied upon even if there is no wrongful intent. The offenses are not crimes in the orthodox sense, and wrongful intent is not required in the interest of enforcement. (People v. Vogel (1956) 46 Cal.2d 798, 801, fn. 2; 1 Witkin Cal. Crimes, § 62, p. 66.) We find the statute to be within the legitimate police power of the state and to be directed towards the legislative concern of protection of the public from the consequences of the drinking driver. The California Supreme Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 898-899, 157 Cal.Rptr. 693 has recognized the alarmingly high incidence of death and serious injury on our highways due in a significant degree to the effect of alcohol on drivers.
C. Fifth Amendment Rights
Appellant lastly seeks to pierce the constitutional armor of Vehicle Code section 23152, subdivision (b) by asserting that when read in conjunction with Vehicle Code section 13353 (Implied Consent Law), Vehicle Code section 23152, subdivision (b) is unconstitutional in that, in such circumstances, the Fifth Amendment rights of an arrestee are violated. Appellant contends that the results of a chemical test administered pursuant to Vehicle Code section 13353 would be conclusive evidence of guilt in a prosecution under Vehicle Code section 23152, subdivision (b), regardless of whether or not the person charged was under the influence.
Appellant's position is devoid of merit. The chemical test results are not conclusive evidence of guilt of violation of Vehicle Code section 23152, subdivision (b). It is incumbent upon the prosecution in such a proceeding to prove beyond a reasonable doubt that the defendant had 0.10 percent or more, by weight, of alcohol in his or her blood while driving a motor vehicle upon a highway or upon other than a highway in areas open to the general public. No presumption exists in favor of the validity of the test results. Reasonable doubt may be established in the minds of the trier of fact by the defense attacking the skill, experience and technique of the technician who administered the test, the reliability of the test itself, the dependability of equipment used, and other trial tactics available to competent counsel.
Appellant errs in his contention that the requirements of Vehicle Code sections 13353 and 23152, subdivision (b), when read in conjunction with each other, are violative of Fifth Amendment rights. Each of these statutes deal with real or physical evidence. "The privilege against self-incrimination is limited to the involuntary giving of testimonial and communicative evidence and does not extend to real or physical evidence extracted under compulsion. Consequently, the admission into evidence of the results of a blood alcohol test, physical evidence of intoxication, does not violate the privilege against self-incrimination." (People v. Gonzales (1982) 137 Cal.App.3d 114, 186 Cal.Rptr. 716, citing: Gilbert v. California (1967) 388 U.S. 263, 266, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 and Schmerber v. California (1966) 384 U.S. 757, 761, 86 S.Ct. 1826, 1830-31, 16 L.Ed.2d 908.)
We conclude Vehicle Code section 23152, subdivision (b) is constitutionally valid. The trial court correctly overruled the demurrer and we find the order of probation to be valid.
IV.
DISPOSITION
The judgment of conviction and the order of probation are affirmed.
FOSTER, P.J., and BERNSTEIN, J., concur.