DUI for drinking Kava-kava? California....

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California DUI for drinking Kava?


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California DUI attorney case law news

People v. Olive (2001) 92 Cal.App.4th Supp. 21 [112 Cal.Rptr.2d 687] ....

....This appeal involves a legal issue of first impression and continuing public interest in California.

Respondent, driving erratically at a slow speed southbound on U.S. Highway 101 at 1:20 a.m. on June 17, 2000, was stopped by California Highway Patrol officers. Requested to walk to the officers' vehicle, respondent displayed difficulty in maintaining his balance. His movements were deliberate, slow and sluggish; his eyes were red and watery. He denied drinking any alcohol but stated he had consumed approximately 23 cups of kava. Asked if he felt any effects from the kava, respondent replied that he felt "slow and heavy." Immediately thereafter, physical sobriety tests were administered to the respondent. His performance was flawed. A preliminary alcohol screening test showed 0.00 percent alcohol in his blood. One of the officers then arrested respondent after forming the opinion that respondent was under the influence of alcohol or a drug and his ability to operate a motor vehicle safely was impaired.

Appellant commenced criminal action against respondent on June 19, 2000, accusing him of violating Vehicle Code section 23152, subdivision (a). fn. 1 Respondent
moved to dismiss the charge, claiming unconstitutionality of section 23152,subdivision (a) as applied to him in the circumstances of the case. He alleged the statute
was "overly broad and vague" and its {Page 92 Cal.App.4th Supp. 24} application on the facts of the case denied him "due process of law." Respondent further contended section 23152, subdivision (a) provides no notice that driving under the influence of kava is a crime and that neither by statute nor case law is kava deemed a drug under section 23152, subdivision (a)....

[1b] Respondent herein contends that without inclusion of kava, in haec verba, section 23152, subdivision (a) is void for vagueness. Actual notice of each drug constituting a basis for prosecution under section 23152, subdivision (a) is not required if a person is reasonably made aware of the proscribed conduct, namely, impaired driving ability resulting from ingestion of some substance. "It is not required
that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem. It is not necessary that a statute furnish detailed plans and specifications of the acts or conduct prohibited." (Smith v. Peterson, supra, "131
Cal.App.2d at p. 246.)

In People v. Buese (1963) 220 Cal.App.2d 802, 806-807 [34 Cal.Rptr. 102], the court held not void for vagueness a statute barring transportation of "drugs" into a county jail. The drug in issue was a hypnotic. The court observed: " 'Drugs' is the general word used in association with 'narcotics' and 'alcoholic beverages.'
These terms have a number of things in common, {Page 92 Cal.App.4th Supp. 26} included among which is the fact that they are taken internally and when so taken they affect the brain, and particularly that function of the brain controlling judgment.By use of the word 'drugs' it is reasonable to assume the Legislature intended to include those drugs having similar characteristics. So interpreted hypnotic drugs
are clearly within a much larger group possessing such similarity." (Id. at p.
807.)

As used in section 23152, "drug" is defined by section 312, which declares: "The term 'drug' means any substance or combination of substances, other than alcohol,which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions."...

[The case is still in progress.]