Cough Syrup Defense

Supreme Court Will Not Review Rejection of Young
Driver’s Cough Syrup Defense

Thursday, April 21, 2005

By a MetNews Staff Writer

The state Supreme Court yesterday declined to review a January Court
of Appeal ruling that 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 in December 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
court’s Div. Five ordered its ruling published in
January.

At their weekly conference yesterday, six Supreme Court justices voted
to deny Bobus’ petition for review. They also denied
her request that the Court of Appeal’s opinion be
depublished.

Chief Justice Ronald M. George was recused and did not participate in
consideration of the petition and depublication request.

The First District justices had 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 even if she were 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.

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, 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.â€

Even if Bobus was not drinking with her friends, Duryea reasoned, she
violated the law because “a minor can maim or kill if
they drank cough syrup or if they drank beer.â€

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.â€

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.

Copyright 2005, Metropolitan News Company


UPDATED:

License Suspension Linked to Medicine Upheld

Posted on Thu, Apr. 21, 2005

By DAVID KRAVETS

Associated Press

SAN FRANCISCO – The California Supreme Court on Wednesday upheld the
one-year driver’s license suspension handed to a 16-year-old motorist
police pulled over after she allegedly ingested a capful of cough
medicine to battle a cold.

The justices upheld a 1993 California law in which motorists under 21
automatically lose driving privileges for a year even if a trace amount
of alcohol is detected in their blood. The outcome also clarified for the
first time that the source of alcohol does not have to be adult
beverages.

The motorist’s attorney argued that the zero-tolerance law was aimed
at minors drinking alcoholic beverages, not those legitimately taking
cough syrup — in this case allegedly a small amount of cough medicine
that was 26 percent alcohol.

”It is our position the Legislature never intended to yank a kid’s
license for a year simply for taking a normal dose of cough medicine for
a cold,” said Paul Burgin, the attorney for Karli Bobus, a Novato girl
who was 16 when pulled over in 2002.

An appeals court, while questioning whether Bobus was telling the
truth about what she drank, upheld Bobus’ license suspension in January.
The 1st District Court of Appeal in San Francisco ruled that ”a minor
can maim or kill if they drank cough syrup or if they drank beer.”

Bobus appealed that decision to California’s seven justices, who
upheld the suspension without comment.

The California Highway Patrol reported that Bobus, now 18, measured a
0.022 percent blood-alcohol level, the equivalent of roughly one beer’s
worth of alcohol.

The CHP said she was swerving and stuttering. She was not prosecuted
for drunken driving, which usually requires a blood-alcohol level of
about 0.08 percent.

Citing the appellate court’s ruling, state prosecutors urged the
Supreme Court to uphold Bobus’ license suspension.

”The Supreme Court considered the appeals court opinion and decided
it was well written and correct,” said Deputy Attorney General Raymond
Hamilton.

Burgin, meanwhile, said Bobus’ automobile insurance rates have
skyrocketed.

Under the appellate court’s decision, Burgin said, it could logically
be argued that minors could be charged for illegally possessing alcohol
simply by having a bottle of cough medicine, and that adults could
violate open container laws when driving with an opened bottle of cough
medicine.

The case is Bobus v. Department of Motor Vehicles, S131323.

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